-Property of Monarch in his State-Independence- Intervention Modern Multiplication of Treaties - Free Trade-Private International Law-Naturalisation Rights with reference to Time-Hereditary Trades and Offices -Theories of Succession which found it on Right of Property Intestate Succession-The Family and Suc- cession-Modern Law-Distribution by State Rights of State-Ipso Jure Investiture-Ancient and Modern Conceptions of a Will-A Will an Act of Legislation- Entail and Primogeniture-Arguments for and against Late Development of Idea- Individual not Member of Family or of State, but of Humanity-Not a Citizen merely, but a Man-Fallacy of the Psychological and Analytical Methods-Development of Personality in Children-Infancy-Minority-Women-Recognition by Law-Rights over One's own Body-Imbeciles- Correspondence of Legal Institutions with Categories of List of Categories-- Illustration of Development through Categories of Quantity, Quality, Relation and Modality -Progress from Quality to Modality on Side of State, and from Quantity to Relation on Side of Individual- Ideas of Individual and Humanity give Rise to Sciences of Natural Law and Law of Nature and Nations-Latter raises Antinomies-Nature of these Examination of Differentiation in Human Life and Activity-Legal, Ethical, and Religious Views of Actions-Analogies of these Ideas-Uniform Customs-Positive Institutions and Ideals-The three Ideas ultimately identical-Tran- sition from the one to the other-Their mutual Rela LECTURES ON THE PHILOSOPHY OF LAW. INTRODUCTION. ART-SCIENCE-PHILOSOPHY. As practical arts invariably precede science, law first appears as "Positive Law." This does not necessarily involve the existence of a legislative body or a king, or even a judicial tribunal, for we find rudimentary traces of law before these exist in any form. But when law has become separated from other social phenomena, and where, as in active communities, there is much intercourse between individuals, its growth is rapid and its bulk often overwhelming. This was one of the causes of codification in the time of Justinian, and this is also the cause of the agitation for codification in our own day. code in such circumstances are practical. The objects of a They are, first, the instruction of the student of law, and, secondly, the necessities of the practising lawyer or judge. Setting aside compilations in the form of dictionaries, we have various codes, digests, and treatises, arranged on some definite principle. Thus, treatises on the law of property, husband and wife, contract, succession, evidence, proce B dure, or bankruptcy, though nominally treating a single subject, may be so expanded as to cover a large area of the law. Such treatises are invaluable as supplying a theoretical knowledge of law, which is supplementary to the skill acquired by practice. A treatise on law, or a code, occupies, in this view, precisely the same position as a treatise on whist or cricket.1 Now, the ideas which form the basis of a code may be philosophic, and, in truth, the only satisfactory arrangement of legal rules will be one where the philosophical ideas underlying them are kept clearly in view. But the scientific arrangement of a great body of laws for practical purposes must not be taken for the sum and substance of the philosophy of law. There is with most English writers a distinct tendency to do so. They confound science with technical education-subjects which are related but are not identical. Beyond physics and chemistry we have metaphysics; beyond anatomy and physiology we have biology; beyond biology, the ultimate problem of life. Beyond practical jurisprudence we have the Philosophy of Law. The scientific stage indicates that the idea of Right is explicit that mankind has become conscious of 1 Mr. Justice Markby (Elements of Law, Introduction) points out that, until shortly before his time, English lawyers learned law only as a practical art, in the same way as an apprentice learns a trade-i.e., by rule of thumb. In Scotland, before the institution of university chairs for the teaching of conveyancing, a knowledge of that subject was acquired in the same manner. See Inaugural Lecture by Prof. Dicey, Can English Law be Taught in the Universities? Macmillan, 1883. |