296 



legal State (rechts-stat), i. e., that its functions should be confined merely 

 to the administration of justice, says that in such case " the State would 

 at last become a mere institution for administering justice, in which the 

 legislative power would establish the legal rules, and the judicial power 

 would protect them and apply them to particular cases ; " which is in 

 efl;*ect but a different expression of the proposition asserted by Kant. 

 And the same prejudice seems to be entertained by many other 

 writers, (gr) 



But obviously in this they are inconsistent, for nothing can be clearer 

 than the two propositions — one of principle, the other of fact ; first, that 

 if there are any principles of natural right sufliciently definite and suf- 

 ficiently known to be observed, it is right that they should be observed ; 

 and secondly, that in fact they are substantially observed in all systems. 

 The true test or criterion of the jural or legal nature of such principles, 

 therefore, is not the will of the legislator, but general recognition by 

 the people ; when they are thus recognized they become, ipso facto, 

 part of the law. Hence it is a principle universally received by jurists 

 that custom is part of the law, and that in fact the law consists mainly 

 of customs. 



(6) This is the doctrine of the so-called historical school of jurists, of 

 whom the most distinguished representatives are Hugo and Savigny, 

 and wliich, indeed, is but a formulation of the views of practical jurists 

 genei'ally. According to this doctrine, as expressed by Mr. Ahrens, 

 "the source of right (that is, positive right, or the law) is placed, not 

 in the individual reason, but in the national conscience, as successively 

 existing in history."* And this is unquestionably the true doctrine. 

 For to be observed as a common rule obligatory upon all, the prin 

 ciples of right must be generally recognized, and hence such gen- 

 eral recognition consiitutes the test or criterion by which the prin- 

 ciples of positive right are to be distinguished. The proposition, 

 however, it will be observed, does not assert that the general recog- 

 nition of a given principle as a principle of natural right necessarily 

 makes it such. The general consensus of the moral convictions of 

 men derives its authority partly from the necessity of observing cus- 

 tom, but chiefly from the presumption it gives rise to, that it is in fact 

 right. But it is, within certain limits, competent for the legislature to 

 entertain the question whether the principle asserted be true, and if not, 

 to correct it. And this in general equallj^ belongs to the function of 

 the judge — the only restriction upon him being that he is bound to 

 decide, not according to the exigencies of the pariicular case, but 

 according to the effect of the rule. And this accords with the principle 

 explained in a former chapter, that the interference of the State should 

 not be extended to cases where the desired end may be etl'ected by the 

 spontaneous action of natural social forces. 



(7) Hence, to sum up the argument, if it be true, as we have sufliciently 



* Cours de Droit Naturel, p. 22. 



