A New School of Jurists n 



sical period of Roman law, in which the growing-point was to 

 be found in juristic speculation under the influence of a philo- 

 sophical theory. Until the rise of legislation upon the Continent, 

 the theory of natural law was dominant in jurisprudence. The 

 idea which was at work in legal theory and practice can not be 

 stated more clearly than in the words of Montesquieu (1748) : 

 "Law in general is human reason." 1 In the eighteenth century, 

 the movement for codification and the influence of an age of 

 absolute governments revived the older conception of law, nat- 

 ural and positive, as enactment, and brought about a reaction. 

 This reaction begins, indeed, with Hobbes, a century earlier. 

 Writing in England where there was a vigorous and efficient 

 legislative, and where, for historical reasons, the notion of nat- 

 ural law was producing no practical results, it was natural that 

 he should be impressed with the imperative element only. Ac- 

 cordingly, he says: "Civil law is to every subject those rules 

 which the commonwealth hath commanded him ... to 

 make use of for the distinction of right and wrong; that is, of 

 what is contrary and what is not contrary to the rule." 2 Until 

 Kant, this insistence upon the imperative element becomes grad- 

 ually more and more marked. Thus Burlamaqui (1747) defines 

 law as "a rule prescribed by the sovereign of a society to his 

 subjects." 3 Likewise Rousseau (T762), seeing in law "the con- 

 ditions of civil association," and perceiving that these conditions 

 were controlled by a highly centralized sovereign, whereas in his 

 view the people are the sole legitimate sovereign, insists upon 

 the imperative side. He says : "Law is the expression of the 

 general will." 4 Finally, Blackstone (1765), characteristically 

 reconciling the current philosophy with his common sense as a 

 practical lawyer, by the simple process of stating the results to 



. l L' esprit des Lois, liv. I, chap. 3. 



2 Leviathan, chap. 26. As to the circumstances influencing Hobbes's con- 

 ception of law, see Maine, Early Hist. Lnst., 395. 



3 Principes du Droit Natwcl, par. I, chap. 8, sec. 2. The imperative 

 theory is stated very clearlv as to positive law by Wolff, Institutiones Juris 

 Naturae et Gentium, sec. 1068 (1750). 



4 Contrat Social, liv. 2, chap. 6. 



259 



