LAW. 



l.AW. 



IM 



. la iihnlnhlriij justice. In prooes* of time these rule* 

 by the nuu* uf the /-l</r (rfirt, were handed down, with little 



they f umi.h * text for 

 who* expository 



The 



one pngtor to another; and they 

 of the Roman lawyers, many uf 



drawn up in the form of treatises ad 



lo cultivation of law a 



the Romans naturally led to 



of a technical legal vocabulary in their language. Tht 

 Latin fc accordingly very rich in legal terms, many or most of which 

 hen been retained in the modern languages of western Europe, espe- 

 cially in thoa* countries whose legal systems are founded on the 

 Roman law. The only terms, however, with which we are at 

 moaned are those which denote the most general notion* tx 

 o the subject of jurisprudence, Ux, which hat the same etymologica 

 relation to Ugo that ret has to rtgo, meant properly a measure proposed 

 by a magistrate in the nmitia, or assembly of the people. A Us woi 

 not necessarily a rule, and might relate to a special case (Hup 

 p. SS7); but M most of UM ityet proposed by the magistrate* wen 

 .ml the word came to aignify a written law. Jut denoted law 

 noerally, whether written or unwritten ; it also denoted a legal right 

 or faculty. Lu signified " a law ; " jut " law " generally. (Austin's 

 Province of Jurisprudence,' p. 307.) 



The P-nt"-""* language* hare retained the word Itjr in the Latin 

 acceptation (Iryye Italian, ley Spanish, lui French). They have how- 

 ever lost the word jut (though they retain many of its derivatives), 

 and have substituted for it words formed from the passive participle oi 

 atiry* (oVriMo Italian, derteko Spaniah, drvit French), probably after 

 the analogy of the German r*oU 



Nearly all the Teutonic languages (including the Anglo-Saxon) pos- 

 sess some form of the word reekt, with a double sense equivalent to 

 the Latin jut, namely, law and faculty. The modern English use* 

 ribiJ in the sense of /iifWry alone. The High German has gttett (from 

 setam, " to place," like torpit and V/us), for a written law equivalent 

 to It*. The Low German languages have, instead of gettt;, a word 

 formed from leyem, to lay down, which in Anglo-Saxon is laya or /";. 

 hi modern g *m li - > ' lair. The word late, however, in modern English, 

 has nut the limited sense of grtei:, but is coextensive with the Latin 

 jut, when the latter does not signify faculty. We do not wish to dwell 

 unnecessarily on then etymologies, but we will shortly notice that, 

 hesidisj regt, the Dutch language has the word tnl in the sense of IMC. 

 This word i* derived from the ancient trillion, Gothic, " to bind," and 

 is equivalent etymologically to the Latin Migatio. The English verb 

 It ml is the same word. Me, which signifies marriage in modern 

 German, originally meant lav or ordinance (' Mibelungen Lied,' v. 139, 

 6M1) ; so that the Dutch vet and the English wed stand to one another 

 in the same relation as the ancient and modern senses of the. 



2. Proper mmd improper Mtanixgt of Ou iron/ Late. A lav, in the 

 strict sense of the word, is a general command of an intelligent being 

 to another intelligent being.* Laws established by the sovereign 

 ornament of an independent civil society are styled potitire, as ex- 

 isting by patitio. [SovmiONTT.] When law is spoken of simply and 

 absolutely, positive law is always understood. Thus in such phrase* as 

 "a lawyer," "a student of law," "legal," "legality," "legislation," 

 legislator," Ac., positive law is meant Positive law is the subject- 

 matter of the science of jurisprudence. [JuiuaracDKircE.] 

 general command of a sovereign government to its subjects, however 

 conveyed, falls under the head of positive laws. The general com- 

 mands of Ood to man (whether revealed or unrevealed) are called the 

 kws of Ood, or the Divine law : they are sometimes also known by 

 the name of " natural law," or " law of nature." The Divine law 

 (according to the phraseology just explained) is the standard to which 

 all human laws ought to conform. On the mode of determining this 

 standard some remarks will be made lower down. 



i positive law, which is known to be a command enforced by 

 D,t and the Divine law, which is presumed to be so, there are 

 SMS of laws which are not commands, though they bear an 

 analogy, more or less remote, to laws properly so called. Thus by tin- 

 term " law of nations," or " international law," are signified those 

 maxims or rule* which independent political societies observe, or 

 ought to observe, in their conduct towards one another. An hide 

 political society i* a society which is not in the h . 



obedience to a political superior; consequently, an hide 

 i niiiiii* toUtioal society cannot receive a command or be subje 

 few pmperly so called. But inasmuch as the IIITH of international 

 nvonbty are general, and determine men's wills by the fear of pro- 

 voking the hostility of other independent societies against their own 

 country, there is a close analogy between UM so-called " law of nations " 

 and positive law. 



Other rlsssai of law* not imperative, but having as close an analogy 

 to laws proper a* the maxim* composing international law, are the 

 * law of honour " and the " law of fashion ; " the laws of certain sport* 



:**. all slid qua nfuU imftmtt," sajs Bason, I* Angm. Sclent. 

 Oh. vui, SB*. U. The were nguU. or rub, it smMoou : It ooawumn 



Imply ; U *n*stl*ns slfaUss a KOTM, 

 I snemsxl, Monom, It U s meUpbor to 

 sr Ik* la* rak or MTM tt*U eo*HM*0s. Bern's drflBluon would n 

 h* man prwi** If itmnmtt at Maws : " Lsx nt norms inmml unpennlii." 

 t A mcltae, Is Ik* rrU with vhlta sav one U visited la imilnueiiii of dli- 



and game* also stand in a similar predicament The term tow is also 

 employed in certain cases where the analogy to laws properly so called 

 is much more remote. Instance* of this usage are such expressions as 

 the " laws of motion," the " law of attraction or gravitation," the " law 

 of mortality " in a given country, tho "I ." tho " law* 



of human thought, the " law of a mathematical series." In laws of 

 this class (which may bo styled " metaphorical laws ") there is n 

 mand and no intelligence to work upon ; nothing more is signified 

 than that there i* a certain uniformity of phenomena, analogous to the 

 iimfoii iuct produced in men by the operation of a law 



properly so called. [ANALOUY.] 



Y I'utilirc lav. The positive laws of any countn 

 sidered as a system, may be divided with reference to their tourcet (or 

 the mode* by which they become laws) into vritten and unwritten. 

 This division of laws is of great antiquity ; the expression unwritten 

 tow occurs in Xenophon's ' Memorabilia,' in a conversation attributed 

 to Socrates (iv. 4, 19), in the ' Antigone' of Sophocles (v. 450-7, comp. 

 ' Aristot liliet.,' i. 13, 2), in the ' Republic and Laws of Plato ' (v. 63 

 and 70S, ed. Steph.), and in Demosthenes (' Aristocrat.,' p. 639, ed. 

 Reisk.). In these passages it appears to signify those rules of law or 

 morality which (being founded on obvious dictates of utility) are 

 nearly common to all countries. Unwritten law, in this sense, corre- 

 sponds with the jut nataralt of the Roman lawyers. In the language 

 of the Digests and the Institutes, the terms written and uitu-ritten low 

 (" jus quod oonstat ex scripto aut ex non scripto ") are used in a more 

 precise manner, to signify those laws which had been promulgated by 

 the Roman legislature in writing, and those rules of law which had 

 been tacitly adopted by the same legislature from usage.* For (as it is 

 stated in a passage of the Digests) " since the laws derive their binding 

 force from nothing but the decision of the people, it is fitting that 

 those rules which the people have approved of without reducing tin m 

 to writing should be equally obligatory. For what difference i.- 

 whcther the people declare* its will by vote, or by its conduct ?" (Dig. 

 i. 3. 32.) 



Sir William Blackstone, dividing the law of England into " the lex 

 non tcrijita, the unwritten or common law, and the le.c tcripta, the 

 written or statute law," goes at some length into the explanation of 

 unwritten law generally, and the elements of which it is composed, as 

 well as into a specific account of tho matter composing the unwritten 

 law of England. (1 Com. p. 63.) 



In that passage Blackstone clearly explains that unwritten law is so 

 called, not because it does not exist in writing, but because it was not 

 promulgated by the legislature in a written form. His statement oi 

 the sorts of laws severally comprehended by the classes of writt 

 unwritten law in England in erroneous. Written law comprehends 

 lot only the statutes made by the parliament or supreme legislature, 

 rat also the written regulations issued by subordinate legislatures, a* 

 orders in council, and rules of court made by the judges. Unwritten 

 aw, moreover, comprehends not only tho common law which is 

 administered by the courts styled ' courts of common law,' but also 

 he greatest part of the law styled 'equity,' which is administered 

 the courts styled ' courts of equity.' 



I'M writ ten law has been called by Mr. Bentham judge-made late ; a 

 name which correctly denotes the mode by which it becomes law. 



It may be remarked that a written law is called a law, but that a 

 rule of unwritten law is never called a law. This phraseology corres- 

 wnds to the distinction between lex and jut, and genet; and recht, which 

 was explained above. 



Positive laws are also divided, according to their tourer, into laws 

 made by tuprtme, and laws made by tubordinate legislatures. In 

 words, laws may be issued by the sovereign legislature, or by function- 

 aries deriving their authority from the sovereign legislature. 



The source* of law are not (infrequently confounded with its caiinet ; 

 n other words, with the facts which induce the sovereign to im.-t, 

 certain maxima with the legal sanction. Thus it is i . rule 



of customary or con . law exists as law, by virtue of custom or 



usage, and not by virtue of the auth .sovereign or his 



tentative, who has imp. . > binding force. This subject is 



clearly explained in Mr. Austin's ' Outline of a Course of Lecture* on 

 General Jurisprudence,' pp. 10, 11. 



The laws of a state, considered as a system, may be divided, with 

 reference to | their lal-ject-matter, into //.//. and in-irate. The <li 

 >f jut into jut jinUicum and jut priratum originated with the Roman 



nous station at the beginning . 



Jigests and Institutes. No trace of this division exists, as far as we are 



aware, in any Greek author. Jut /iitblicttm is denned to be 'quod ad 



Mat urn iei Komantu spoctat,' 'quod in sacris, in aaoerdotibus, in rnagis- 



tratibus eotuustit.' Jut privat um is that ' quod ad singulorum utilita- 



>m pertinet' Tho institutional treatise* of the Roman lawyers 



appear to have been confined to jut priratum; the Institutes of 



uMim.in do not touch upon jut puUicum, except in the lm:>l chapter 



'It 1'Mictt Judiciit, and this chapter is wanting in tho Commentaries 



The ili-tinctiiin of law into written and unwritten dots not teem to have 

 en regularly nude bjr the Roman JurlnU ; for it doc not occur in Gain*. 



wboM Commentaries the tubtUnre of the wcond title of the Hot !><>, of tin: 

 utltatM Ii borrowed. Tbe distinction In qucition i introduced, both In the 



Digrrti uid the Institutes with * reference to the Greek writem, il' 



philosopher!. 



