THE THEORY OF JURISPRUDENCE. 



11 



we must admit an essential identity, more or less complete, 

 between Jurisprudence as the science of justice or rights, and 

 the same as the science of jus or the Laio. 



This is, at least, a legitimate sense of the term, the Laic, and 

 I conceive it to be the proper sense to be used in Jurisprudence. 

 How far the Law in this sense can be identified with the Law 

 in the more familiar sense, as denoting the aggregate of the 

 rules by which the courts are customarily governed in the 

 exercise of jurisdiction, will be considered in the sequel. 



The definition of Jurisprudence as the Science of Eights is 

 the most specific, and pregnant of results ; and from it it 

 follows that, to acquire an adequate notion of Jurisprudence, an 

 adequate analysis of the notion expressed in the term, rights, is 

 essential. 



Rights defined. 



The term, a right, is but a special use of the more abstract 

 word, right, which is used in many senses. Of these, three only 

 are material to our present purpose, according to w^hich, the 

 term is used to denote : (1) A liberty or power of acting 

 {facidtas agendi), as when we speak of a right ; (2) the quality 

 of rightness or rectitude, as when we speak of right as opposed 

 to vjvong ; and (3) the rule or standard in conformity to which 

 the quality of rectitude consists (norma agendi). 



Of these several senses, the last is involved only indirectly as 

 implied in the others, and will be considered in the sequel. Of 

 the other two senses, the second is involved in the first — that is 

 to say : the term, " a right," according to its universal use and 

 acceptation, connotes the quality of rightness. 



This is no less admitted by Austin and jurists of his school 

 than by others. Their definition of a right is that it is a power 

 or liberty created by the will of the State. But to maintain 

 this, they are compelled to invent a new kind of rightness or 

 rectitude, consisting in conformity to the will of the State. 



A right may, therefore, be regarded as constituted of the two 

 elements — the faculty of acting, and the quality of rectitude, 

 and may be defined as a rightful or jural liberty to act. 



An " Unjust Right " an '^Insignificant Sound." 



Hence, to speak of an unjust right would be an expression 

 belonging to the category of wdiat Hobbes calls " insignificant 

 sounds" as when men make a name of two names whose 

 significations are contradictory and inconsistent ; as, " an in- 

 corporeal body," and a great number more, or as if we should 



