396 



LAW, LEGISLATION, CODES. 



peculiar cliaracteristio of tins third school of modern 

 ,uri>ts the historical is, that they regard no leal 

 principles as capable of universal and unconditional 

 application. They view law as a mere result of the 

 acvidt-nial relations of a people, and as changing with 

 tin-in. .According to the principles of this school, 

 every tiling may be right, even slavery, and many 

 other thing's which the philosophical school declares 

 to be a violation of the universal rights of man, and 

 absolutely wrong. The historical school allows a 

 very narrow sphere to that legislation in which law 

 is based on the will of the lawgiver, and a very 

 large one, on the contrary, to the customary law, 

 which commences and perpetuates itself by popular 

 usages, and the decisions of courts. Its ideal is the 

 Human law, as it is presented in the writings of 

 jurists before Justinian. Every innovation in the law, 

 on the part of government, it regards as dangerous ; 

 and especially new codes, which interrupt the silent 

 growth of legal rules in a country. So far, this school 

 agrees with the views of the practical school 

 above-mentioned, from which in fact, it originated. 

 But it rejects all reasons deduced from a supposed 

 nature of things (or, indeed, from philosophical 

 opinions of right), and derives existing law, not from 

 the decisions of courts and colleges, in which it per- 

 ceives many glaring errors, but from ancient laws and 

 law-books. It regards as truly right, not what 

 modern times have recognised and followed as right, 

 but what they would have esteemed right, if they had 

 properly understood the ancient sources ; and there- 

 fore considers that all improvement must be the result 

 of a thorough examination of history. Notwithstand- 

 ing the manifest inconsistency of this reasoning, 

 since, if the system of law, in any country, is formed 

 by self-development, the newest shape is always the 

 only one that ought to be recognised, and the present 

 cannot be explained from the past, this view has 

 met with much acceptance, since it avers that what- 

 ever is, is right, from the very fact that it is ; and in 

 history, by which almost any principle may be proved 

 or refuted at pleasure, it finds a means of crushing 

 every desire of reform ; but it is most favoured because 

 it declares all efforts for something higher to be both 

 foolish and wrong. This view, however, has, doubt- 

 less, already reached its acme. It has the merit of 

 having directed to the only successful way of under- 

 standing laws by the aid of history ; but the erroneous 

 expectation cannot long be maintained, of discovering 

 what should be, from knowing what is, and how that 

 which is, grew up. For, although we may be set in 

 the right way by history, yet nothing but philosophy 

 can direct us to the proper end. History and philo- 

 sophy supply each other's defects, and either of them, 

 by itself, leads to partial views. It is only together that 

 they can teach us the true science of law, and impart 

 the wisdom requisite for legislation. A fourth view 

 has been advanced, in modern times, which may be 

 termed the strict judicial (legistic). Justly offended 

 at the authority over the laws assumed by the practi- 

 cal school, and the uncertainty which had resulted 

 from the fluctuations of their practice, impatient of 

 the toilsome researches of an historical jurisprudence, 

 Bud convinced that the philosophical school could 

 afford materials to the legislator only, and not to the 

 judge, a respectable number of jurists abandoned the 

 authority of existing practice, and returned to the posi- 

 tive laws, though less to the spirit of them than the 

 etter, and frequently to the letter of those laws of 

 which the existence was scarcely known among the 

 people. Much has been said of the injury which 

 attends a sudden change of the laws, by introducing 

 a new code. But, if the object of such a code is to 

 confirm and sanction the ideas of right already pre- 

 valent among a people, it can never bring with it con- 



sequences so pernicious as followed the calling up 

 from oblivion, and adopting into use, of antiquated 

 la\\'^, Roman forms and subtleties, and the cruel 

 penal laws of the sixteenth century. In case of the 

 literal njijiliration of these old laws, no regard can be 

 paid to the circumstances of the age or to the peculiar 

 cliaracter of the particular ordinances ; and, in con- 

 sequence of the incompleteness and want of technical 

 accuracy in the ancient legislation, the laws of the 

 empire, the old and new ordinances of particular 

 countries, papal ordinances, Roman constitutions, and 

 fragments of legal writers, are unavoidably mixed up 

 in the most embarrassing confusion, to form a mosaic, 

 which has the outward appearance of an organized 

 whole, but is wholly destitute of inward, living 

 energy. The historical school is right in maintaining 

 that laws can be properly comprehended only by an 

 historical examination of their development; but it has 

 fallen into the error of the legistic school, in asserting 

 that the deficiencies which are found in every positive 

 institution should be supplied, not from the fountain 

 of all right, but either by the aid of historical hypo- 

 theses, which attribute the most artificial systems to 

 nations in the early periods of civilization, or by 

 heterogeneous additions from wholly different systems 

 of legislation. In so doing, the historical school have 

 particularly forgotten that the objects of their vener- 

 ation, the juridical classics of Rome, owed their 

 greatness to a perpetual habit of reverting to the 

 maxims of natural law (their eequitas). Even the 

 Roman lawyers recognised an universal right, which 

 exists prior to all positive legislation, and without it, 

 and, at the same time, in and with it the rule of con- 

 duct wherever the precepts of positive law have not 

 yet reached. There is an important difference be- 

 tween a maxim of law created by a positive ordi- 

 nance, and one only acknowledged by it as already 

 existing in natural equity. In the first case, the law 

 cannot extend beyond the immediate object of its 

 creation : in the second, it is of universal application. 

 Of special importance is this distinction in deciding 

 concerning relations and acts without the bounds of 

 a state, for example, a crime committed abroad,' 

 cases in which' positive law has a very limited appli- 

 cation. But, however narrow the last-mentioned 

 legistic view may be, it has effected much good, by 

 bringing to light the imperfection, and, in some 

 sense, the utter worthlessness, of the existing posi- 

 tive law, and thus aided to promote the reform, 

 which hi several German states, is so necessary. 



3. If the question should arise, From what public 

 organ the improvement of laws should proceed, it 

 may be answered, The various juridical theories 

 exhibit a great practical difference. But, at least, 

 the two principal parties the historical and philo- 

 sophical are perfectly agreed in the opinion, that 

 mere caprice, which sees in laws only a means of 

 promoting its own favourite ends, should be, as far 

 as possible, excluded : and it is also agreed, that 

 legislation is an office with which neither the judiciary 

 nor the executive departments can be concerned, 

 without injury to each of them. Nothing can defend 

 men from the arbitrary exercise of power but a 

 separation of the executive, legislative and judicial 

 authorities ; for in no other way can each of these 

 three powers be kept within its natural limits. The 

 great discrepancy, both in the intrinsic nature of 

 these powers, and in the character of their results, 

 makes it important that each of them should be 

 administered by a separate organ. To govern is the 

 business of the state. The executive government is 

 the organ of the people's will. The characteristic of 

 its acts is command. Such commands, however, 

 are not irrevocable, for at any moment, they may 

 be repealed. Opinions contrary to them may be 



