THE THEORY OF JORISPRUDENCE. 



23 



The laws of Hammurabi, though not devoid of humane touches, 

 form a striking contrast to those of Moses. 



The principle of love to the neighbour is, of course, fundamental 

 in Christian morals ; it increasingly affects our own laws. 



For instance, the Poor Laws, the Old Age Pensions Act, and the 

 feeding of necessitous children. We have recognized in our law, 

 that the indigent have a claim on the well-to-do. 



Hence the old jurisprudence (in the sense of the essay) tends to 

 become inadequate as a moral basis for modern (English) law. 



It is interesting to compare a Hebrew pattern of a righteous 

 man : — 



" He hath dispersed, he hath given to the poor, his righteous- 

 ness endureth for ever " (Ps. cxii, 9), 

 with the Eoman model — 



" Vir bonus est quis 1 

 Qui consulta patrum, qui leges juraque servat." 

 Mr. Balfour Browne, K.C., said : — It was difficult to criticise 

 the paper because he was in substantial agreement with the writer. 

 He took it that the judge's view was that law, positive law, or 

 jurisprudence was another name of the Science of Justice or right. 

 In this, he was in antagonism to the obsolete theory of Laws of 

 Austin, who found in them nothing but Legislation and Sanctions. 

 That theory left us still to determine by what right legislation 

 exists, and upon what ground its sanctions or compulsions were 

 just. 



But even the writer of the paper begins his theory of jurisprudence 

 too late. A science of philosophy of law must deal with and discuss 

 the principles upon which legal rights rest and are enforcible. 

 Locke and Mill seemed to think that there was no question of 

 "right "in the matter, and that utility was the sole basis of law. 

 Scotch lawyers had since the time of Lord Staire based their juris- 

 prudence upon the law of nature, and Hume, who was one of the most 

 thorough-headed of Scotchmen, said, "the apparatus of our govern- 

 ment has ultimately no other objective purpose but the distribution 

 of justice, or in other words the support of the twelve judges " : 

 which implies the existence of an antecedent "justice " which is to 

 be "distributed." Sir Henry Maine has gone for his Twelve Talks of 

 the Law to history, and has drawn from remote ages the germs 

 which have evolved into the whole system of law, but without 



c 



