18 



JUDGE GEORGE H. SMITH, ON 



proper rules of conduct. This is peculiarly true of tlie principles 

 of Jurisprudence, as will be seen as we proceed ; and this may 

 be at least provisionally admitted, until we come to consider 

 more particularly the Method and Principles of Jurisprudence ; 

 when the matter may be judged. 



On tliis point I have no apprehensions. But when we speak 

 of right, as denoting a quality, it is important to determine the 

 standard or rule of right referred to. For, as we iiave seen, 

 there is in fact, in this term, a very subtle ambiguity ; and this, 

 indeed, is the principal, or one of the principal sources of the 

 confusion reigning over the subject of Jurisprudence and of 

 Morality generally. For, as has been explained, there are, in 

 fact, two standards or rules referred to, namely : the Instituted 

 and the Positive Morality. But these are commonly conceived 

 as the same, and thus the essential difference between them, 

 overlooked. Hence, in using the terms, right, in this general 

 sense, the two standards are commonly confused, and it cannot 

 be determined which of the two referred to, is regarded as 

 paramount. But in the accurate observance of this distinction, 

 I am persuaded, is to be found the key to the serious problems 

 with which we are confronted. 



Positive and Instituted IiivispTudence, and Positive and Instituted 

 lavj Distinguished. 



In this connection it is to be observed that, as Jurisprudence 

 is a part of Morality, it follows there must be also a correspond- 

 ing distinction between Positive and Instituted Jurisprudence. 

 Also, if we regard the term, the LaAv, as the appropriate English 

 equivalent of the Latin Jus, as used in the composite term 

 Jurisprudence, there must be a corresponding distinction between 

 the Positive, and the Instituted Law, or Jus. 



The Positive Law consists of the principles of justice or right, 

 with their logical applications to circumstances of place and 

 time ; or, as it has been otherwise expressed, it is the " local and 

 temporal realization " of those principles. 



The Instituted Law is the attempted, but necessarily 

 imperfect realization of the principles of justice or right, or, in 

 other words of the Positive Law, in a particular community at 

 a given time, with all its inevitable defects and errors. 



In this distinction, however, it will be observed that the term 

 Law is used in the sense appropriate to Jurisprudence, regarded 

 as a science ; in which sense, it is simply equivalent to Justiee 

 or Bight. It remains therefore, to consider the relation of " the 

 Law " in this sense, or Jurisprudence, to " the Law " in the 



