30 



JUDGE GEORGE H. SMITH, ON 



In this definition, jurists generally seem to agree ; and from it, the 

 theory is nobly developed by Herbert Spencer in Social Statics," 

 though not without some serious errors, and even logical fallacies. 



Kant's theory of Justice — in which Spencer admits he was 

 anticipated by that author — is also based on the same principle, but 

 his treatment of the subject is far less satisfactory. He tells us 

 indeed, that : " Right, therefore, comprehends the whole of the con- 

 ditions under which the voluntary actions of any one person can be 

 harmonized in reality with the voluntary actions of every other 

 person according to a universal Law of Freedom." But he makes 

 no attempt to determine this Law — which is the real problem, 

 which Spencer, at least, attempted to do. (See work in the Library 

 of the Institute, entitled Right and Lau\ §§ 30-39 inclusive ; to 

 which, and to my original essay, I must, for lack of space, refer the 

 reader.) 



In the above observations I have assumed that the term " legal 

 rights " is used by Mr. Brown merely as the equivalent of juridical 

 rights.''^ Otherwise, for the reasons explained in the paper read to 

 the Society, pp. 11 and 12, 1 would regard the term as inadmissible. 



To the question of Mr. Oke : "Has the writer made sufficient 

 distinction between law and morality 1 " I answer : " Yes. " The 

 distinction is simply between fart and whole — that is to say : the 

 Positive Law is, both in fact and in theory, a department of 

 Morality ; and this is, in theory, equally true of the Instituted Law, 

 and true also in fact, in proportion to its successful develop- 

 ment. 



The necessary and essential connection between Law and Morality 

 cannot, I hold, be questioned without denying the existence of 

 moral distinctions; and hence, I think, the divorce between Law 

 and Morality temporarily effected by Austin and others of his 

 school, has been in the highest degree disastrous, not only to the 

 interests of Jurisprudence, but to those of Political Science and 

 Morality generally. 



To the objection of Professor Orchard to my use of the term, 

 " Eight,'' as denoting rights in the aggregate, I have only to say 

 that I have used the term in this sense (which is one only of its 

 many related senses) to supply an obvious need for a collective term 

 corresponding to rights. It is so used by Hobbes in the following 

 passages, among others : " Right is that liberty which the law 



