SOUTHERN LAW REVIEW. SEYMOUR D. THOMPSON, EDITOR. NEW SERIES-VOLUME II. ST. LOUIS: Entered according to Act of Congress, in the year one thousand eight hundred and seventy six, by G. I. JONES & CO., In the office of the Librarian of Congress, at Washington. LIBRARY OF THE LELAND STANFORD, JR., UNIVERSITY LAW DEPARTMENT. THE SOUTHERN LAW REVIEW. VOL. II, N. S.] ST. LOUIS, APRIL, 1876. [No. I. I. CONTROVERSIES OF MODERN CONTINENTAL JURISTS. Preliminary. Various Theories of the Basis of General Jurisprudence.-Roman Institutes.-System of Utility of Hobbes.-System of Utility of Bentham.-System of Sociability-System of Perfectibility of Leibnitz.-System of the Possibility of Co-existence of Kant.-Eclectic System of Krause.-System of Rosmini, Before noticing some of the more modern controversies on the subject of general jurisprudence, it seems to be proper to refer to a few of the most celebrated theories which have been brought forward at different times as to the fundamental principles of the derivation of rights, the primary fabric of law. The subject itself is very obscure, and the manner in which it has been treated by the ablest minds has not served greatly to elucidate it. The more it is considered, the greater the difference of opinion seems to be. The learning on the question fills many volumes; and yet perhaps they hardly contain anywhere a general principle that would command universal assent. It is needless to say that the question is at the bottom of ethics as well as of law. It has therefore supplied an open. field in which writers on morals and writers on jurisprudence have met in indiscriminate conflict. The question is none other than this, expressed in a variety of ways: What are the rights of men? Whence do they come? Upon what basis do they stand? What is the criterion of their existence? It is a known fact that there are certain principles which pervade all systems of laws, and which are common to all. There is no system of laws that does not forbid murder, or theft. Though the laws of different countries differ, yet they differ rather as to means than as to ends. There are many things which all laws abhor, many things which all laws favor. This substratum of laws which is presumed to exist, and practically does exist, wherever society exists—that which the legislator takes as a starting point—was called by the Roman jurists jus omnium gentium, the law of all peoples, or the jus naturale, the natural law. This being a constituent element of every conceivable or known system of laws, it is hence assumed that law is not an arbitrary thing; but that it is something either innate in man, or imposed on him by necessities which he cannot escape, and which, to some extent, prescribe its qualities. If this were so, it were to be supposed that the innate quality might be defined in the abstract, or that the nature of the necessities might be explained and summed up in a few words. If the vast bulk of the laws could thus be reduced to one or a few simple theorems, doubtless the gain would be great. The Roman Institutes possibly essayed to do this. They proclaimed, Juris præcepta sunt hæc: honeste vivere; alterum non lædere; suum cuique tribuere." But it is obvious that this tells us but little. The honeste vivere applies to morals rather than to law. The alterum non lædere is better. That we should not wantonly harm another is doubtless a principle at the bottom of all laws. The precept that we should give to each his due, leaves us in the dark as to what is his due, and as to the principle on which a man may claim any particular thing as his due. The celebrated precepts therefore mean but little, if anything, more than that it is the duty of the citizen to live morally, harmlessly, and in accordance with the laws, seeing that he must ascertain what is due to others by reference to positive law. However prudent these precepts may be as a guide to the private citizen, they do not purport to be of any profit to the legislator, except within very narrow limits; nor to show forth the essential |
