167 

LECTURE V.

Laws proper or properly so called, and laws improper or improperly so called.

The term law, or the term laws, is applied to the following objects:—to laws proper or properly so called, and to laws improper or improperly so called: to objects which have all the essentials of an imperative law or rule, and to objects which are wanting in some of those essentials, but to which the term is unduly extended either by reason of analogy or in the way of metaphor.

Strictly speaking, all improper laws are analogous to laws proper: and the term law, as applied to any of them, is a metaphorical or figurative expression.

For every metaphor springs from an analogy: and every analogical extension given to a term is a metaphor or figure of speech. The term is extended from the objects which it properly signifies to objects of another nature; to objects not of the class wherein the former are contained, although they are allied to the former by that more distant resemblance which is usually styled analogy. But, taking the expressions with the meanings which custom or usage has established, there is a difference between an employment of a term analogically and a metaphor.

Analogy and metaphor as used in common parlance, defined.

Analogy is a species of resemblance. The word resemblance is here taken in that large sense, in which all subjects which have any property in common, are said to resemble. But besides this more extended acceptation according to which resemblance is a genus, and analogy one of the species included therein, there is another and a narrower sense, in which resemblance is opposed to analogy. Two resembling subjects are said to resemble in the narrower meaning of the term, when they both belong to some determinate genus or species expressly or tacitly referred to; when they both have every property, which belongs to all the subjects included in the class. Two resembling subjects are said on the contrary to be analogous, when one of them belongs to some class expressly or tacitly referred to, and the other does not: when one possesses all the properties common to the class and the other only some of them. I choose, for instance, on account of a particular convenience, to range together in one class all animals having feet. When I am speaking with reference to this class, the foot of a lion and the foot of a man would be said to resemble in the narrower as well as in the wider sense of the word. But the foot of a table, though it resembles the foot of a lion and of a man in the more enlarged sense, does 168not resemble these in the narrower sense, but is only analogous to them. For these possess the whole of the qualities belonging universally to the class, while it possesses only a part of the same qualities. If I were not tacitly referring to a genus, I might say that all the three objects resemble, but if the genus be referred to, the foot of the lion and the foot of the man resemble, the foot of the table is only analogous to them.

Resemblance is hence an ambiguous term. When two things resemble in the narrow sense, that is, when they both possess all the properties which belong universally to the class, the common name (such as foot in the instance above given), is applied to both of them strictly and properly. When they are analogous, that is when the one possesses all, the other only some of the properties which belong universally to the class, the name denotes the one properly, the other improperly or analogically.

It is extremely important to fix our conception with respect to this ambiguity, as the words analogy and analogous often recur in the science of jurisprudence, and by the laxity with which they are employed involve it in a scarcely penetrable mist. The nature of unwritten law, and the principles of interpretation or construction, are among the most obscure of all the questions which arise in jurisprudence. This obscurity springs, as is usually the case, from nonsense or jargon; which jargon, on these questions, arises from hence, that men talk profusely of analogy and things analogous, without ascertaining the precise meaning of those terms, or taking pains to employ them with any precise meaning. Professor Thibaut of Berlin, in his treatise on the interpretation of the Roman Law, is, as far as I know, the only writer who has seen this perplexity; and notwithstanding my warm respect for that learned and discerning jurist, it seems to me that even he has scarcely solved the difficulty, though he has pointed out the path by which we may arrive at a solution.

A metaphor is the transference of a term from its primitive signification to subjects to which it is applied not in that, but in a secondary sense. An analogy real or supposed, is always the ground of the transference; hence every metaphor is an analogical application of a term, and every analogical application of a term is a metaphor. But a metaphorical or figurative application is scarcely, in common parlance, synonymous with an analogical application. By a metaphorical or figurative application, we usually mean one in which the analogy is faint, the alliance between the primitive and the derivative signification 169remote. When the analogy is clear, strong, and close; when the subjects to which the term is deflected lie on the confines of the class properly denoted by it, and have many of the properties common to the class, we hardly say that the name is employed figuratively or metaphorically.

In the language of logic, objects which have all the qualities composing the essence of the class, and all the qualities which are the necessary consequences of those composing the essence, resemble. When an object does not possess all the essence of the class, but possesses many of the qualities which compose the essence, or many of those which necessarily result from the essence, the application of the name to that object will be said to be analogical and not a metaphor. The difference between metaphor and analogy is hence a difference of degree, and not to be settled precisely by drawing a strict line between them.¹⁴

Laws improper are of two kinds.—1. Laws closely analogous to laws proper. 2. Laws metaphorical or figurative.

Now a broad distinction obtains between laws improperly so called. Some are closely, others are remotely analogous to laws proper. The term law is extended to some by a decision of the reason or understanding. The term law is extended to others by a turn or caprice of the fancy.

In order that I may mark this distinction briefly and commodiously, I avail myself of the difference, established by custom or usage, between the meanings of the expressions analogical and figurative.—I style laws of the first kind laws closely analogous to laws proper. I say that they are called laws by an analogical extension of the term.—I style laws of the second kind laws metaphorical or figurative. I say that they are called laws by a metaphor or figure of speech.

Division of laws proper, and of such improper laws as are closely analogous to the proper.

Now laws proper, with such improper laws as are closely analogous to the proper, are divisible thus.

Of laws properly so called, some are set by God to his human creatures, others are set by men to men.

Of the laws properly so called which are set by men to men, some are set by men as political superiors, or by men, as private persons, in pursuance of legal rights. Others may be described in the following negative manner: They are not set by men as 170political superiors, nor are they set by men, as private persons, in pursuance of legal rights.

The laws improperly so called which are closely analogous to the proper, are merely opinions or sentiments held or felt by men in regard to human conduct. As I shall show hereafter, these opinions and sentiments are styled laws, because they are analogous to laws properly so called: because they resemble laws properly so called in some of their properties or some of their effects or consequences.

Distribution of laws proper, and of such improper laws as are closely analogous to the proper, under three capital classes.—1. The law of God, or the laws of God. 2. Positive law, or positive laws. 3. Positive morality, rules of positive morality, or positive moral rules.

Accordingly, I distribute laws proper, with such improper laws as are closely analogous to the proper, under three capital classes.

The first comprises the laws (properly so called) which are set by God to his human creatures.

The second comprises the laws (properly so called) which are set by men as political superiors, or by men, as private persons, in pursuance of legal rights.

The third comprises laws of the two following species: 1. The laws (properly so called) which are set by men to men, but not by men as political superiors, nor by men, as private persons, in pursuance of legal rights: 2. The laws which are closely analogous to laws proper, but are merely opinions or sentiments held or felt by men in regard to human conduct.—I put laws of these species into a common class, and I mark them with the common name to which I shall advert immediately, for the following reason. No law of either species is a direct or circuitous command of a monarch or sovereign number in the character of political superior. In other words, no law of either species is a direct or circuitous command of a monarch or sovereign number to a person or persons in a state of subjection to its author. Consequently, laws of both species may be aptly opposed to laws of the second capital class. For every law of that second capital class is a direct or circuitous command of a monarch or sovereign number in the character of political superior: that is to say, a direct or circuitous command of a monarch or sovereign number to a person or persons in a state of subjection to its author.

Laws comprised by these three capital classes I mark with the following names.

I name laws of the first class the law or laws of God, or the Divine law or laws.

For various reasons which I shall produce immediately. I name laws of the second class positive law, or positive laws.

171 For the same reasons, I name laws of the third class positive morality, rules of positive morality, or positive moral rules.

Digression to explain the expressions positive law and positive morality.

My reasons for using the two expressions ‘positive law’ and ‘positive morality,’ are the following.

There are two capital classes of human laws. The first comprises the laws (properly so called) which are set by men as political superiors, or by men, as private persons, in pursuance of legal rights. The second comprises the laws (proper and improper) which belong to the two species mentioned on the preceding page.

As merely distinguished from the second, the first of those capital classes might be named simply law. As merely distinguished from the first, the second of those capital classes might be named simply morality. But both must be distinguished from the law of God: and, for the purpose of distinguishing both from the law of God, we must qualify the names law and morality. Accordingly, I style the first of those capital classes ‘positive law:’ and I style the second of those capital classes ‘positive morality.’ By the common epithet positive, I denote that both classes flow from human sources. By the distinctive names law and morality, I denote the difference between the human sources from which the two classes respectively emanate.

Strictly speaking, every law properly so called is a positive law. For it is put or set by its individual or collective author, or it exists by the position or institution of its individual or collective author.

But, as opposed to the law of nature (meaning the law of God), human law of the first of those capital classes is styled by writers on jurisprudence ‘positive law.’ This application of the expression ‘positive law’ was manifestly made for the purpose of obviating confusion; confusion of human law of the first of those capital classes with that Divine law which is the measure or test of human.

And, in order to obviate similar confusion, I apply the expression ‘positive morality’ to human law of the second capital class. For the name morality, when standing unqualified or alone, may signify the law set by God, or human law of that second capital class. If you say that an act or omission violates morality, you speak ambiguously. You may mean that it violates the law which I style ‘positive morality,’ or that it violates the Divine law which is the measure or test of the former.

Again: The human laws or rules which I style ‘positive 172morality,’ I mark with that expression for the following additional reason.

I have said that the name morality, when standing unqualified or alone, may signify positive morality, or may signify the law of God. But the name morality, when standing unqualified or alone, is perplexed with a further ambiguity. It may import indifferently either of the two following senses.—1. The name morality, when standing unqualified or alone, may signify positive morality which is good or worthy of approbation, or positive morality as it would be if it were good or worthy of approbation. In other words, the name morality, when standing unqualified or alone, may signify positive morality which agrees with its measure or test, or positive morality as it would be if it agreed with its measure or test. 2. The name morality, when standing unqualified or alone, may signify the human laws, which I style positive morality, as considered without regard to their goodness or badness. For example, Such laws of the class as are peculiar to a given age, or such laws of the class as are peculiar to a given nation, we style the morality of that given age or nation, whether we think them good or deem them bad. Or, in case we mean to intimate that we approve or disapprove of them, we name them the morality of that given age or nation, and we qualify that name with the epithet good or bad.

Now, by the name ‘positive morality,’ I mean the human laws which I mark with that expression, as considered without regard to their goodness or badness. Whether human laws be worthy of praise or blame, or whether they accord or not with their measure or test, they are ‘rules of positive morality,’ in the sense which I give to the expression, if they belong to either of the two species lastly mentioned on p. 170. But, in consequence of that ambiguity which I have now attempted to explain, I could hardly express my meaning with passable distinctness by the unqualified name morality.

Explanation of the following expressions: viz. science of jurisprudence and science of positive morality; science of ethics or deontology, science of legislation, and science of morals.

From the expression positive law and the expression positive morality, I pass to certain expressions with which they are closely connected.

The science of jurisprudence (or, simply and briefly, jurisprudence) is concerned with positive laws, or with laws strictly so called, as considered without regard to their goodness or badness.

Positive morality, as considered without regard to its goodness or badness, might be the subject of a science closely analogous to jurisprudence. I say ‘might be:’ since it is only 173in one of its branches (namely, the law of nations or international law), that positive morality, as considered without regard to its goodness or badness, has been treated by writers in a scientific or systematic manner.—For the science of positive morality, as considered without regard to its goodness or badness, current or established language will hardly afford us a name. The name morals, or science of morals, would denote it ambiguously: the name morals, or science of morals, being commonly applied (as I shall show immediately) to a department of ethics or deontology. But, since the science of jurisprudence is not unfrequently styled ‘the science of positive law,’ the science in question might be styled analogically ‘the science of positive morality.’ The department of the science in question which relates to international law, has actually been styled by Von Martens, a recent writer of celebrity, ‘positives oder practisches Völkerrecht:’ that is to say, ‘positive international law,’ or ‘practical international law.’ Had he named that department of the science ‘positive international morality,’ the name would have hit its import with perfect precision.

The science of ethics (or, in the language of Mr. Bentham, the science of deontology) may be defined in the following manner.—It affects to determine the test of positive law and morality, or it affects to determine the principles whereon they must be fashioned in order that they may merit approbation. In other words, it affects to expound them as they should be; or it affects to expound them as they ought to be; or it affects to expound them as they would be if they were good or worthy of praise; or it affects to expound them as they would be if they conformed to an assumed measure.

The science of ethics (or, simply and briefly, ethics) consists of two departments: one relating specially to positive law, the other relating specially to positive morality. The department which relates specially to positive law, is commonly styled the science of legislation, or, simply and briefly, legislation. The department which relates specially to positive morality, is commonly styled the science of morals, or, simply and briefly, morals.

Meaning of the epithet good or bad as applied to a human law.

The foregoing attempt to define the science of ethics naturally leads me to offer the following explanatory remark.

When we say that a human law is good or bad, or is worthy of praise or blame, or is what it should be or what it should not be, or is what it ought to be or what it ought not to be, we mean (unless we intimate our mere liking or aversion) this: 174namely, that the law agrees with or differs from a something to which we tacitly refer it as to a measure or test.

For example, According to either of the hypotheses which I stated in preceding lectures, a human law is good or bad as it agrees or does not agree with the law of God: that is to say, with the law of God as indicated by the principle of utility, or with the law of God as indicated by the moral sense. To the adherent of the theory of utility, a human law is good if it be generally useful, and a human law is bad if it be generally pernicious. For, in his opinion, it is consonant or not with the law of God, inasmuch as it is consonant or not with the principle of general utility. To the adherent of the hypothesis of a moral sense, a human law is good if he likes it he knows not why, and a human law is bad if he hates it he knows not wherefore. For, in his opinion, that his inexplicable feeling of liking or aversion shows that the human law pleases or offends the Deity.

To the atheist, a human law is good if it be generally useful, and a human law is bad if it be generally pernicious. For the principle of general utility would serve as a measure or test, although it were not an index to an ulterior measure or test. But if he call the law a good one without believing it useful, or if he call the law a bad one without believing it pernicious, the atheist simply intimates his mere liking or aversion. For, unless it be thought an index to the law set by the Deity, an inexplicable feeling of approbation or disapprobation can hardly be considered a measure or test. And, in the opinion of the atheist, there is no law of God which his inexplicable feeling can point at.

To the believer in a supposed revelation, a human law is good or bad as it agrees with or differs from the terms wherein the revelation is expressed.

In short, the goodness or badness of a human law is a phrase of relative and varying import. A law which is good to one man is bad to another, in case they tacitly refer it to different and adverse tests.

Meaning of the epithet good as applied to the law of God.

The Divine laws may be styled good, in the sense with which the atheist may apply the epithet to human. We may style them good, or worthy of praise, inasmuch as they agree with utility considered as an ultimate test. And this is the only meaning with which we can apply the epithet to the laws of God. Unless we refer them to utility considered as an ultimate teat, we have no test by which we can try them. To 175say that they are good because they are set by the Deity, is to say that they are good as measured or tried by themselves. But to say this is to talk absurdly: for every object which is measured, or every object which is brought to a test, is compared with a given object other than itself.—If the laws set by the Deity were not generally useful, or if they did not promote the general happiness of his creatures, or if their great Author were not wise and benevolent, they would not be good, or worthy of praise, but were devilish and worthy of execration.

Before I conclude the present digression, I must submit this further remark to the attention of the reader.

The expression law of nature, or natural law, has two disparate meanings. It signifies the law of God, or a portion of positive law and positive morality.

I have intimated in the course of this digression, that the phrase law of nature, or the phrase natural law, often signifies the law of God.

Natural law as thus understood, and the natural law which I mentioned in my fourth lecture, are disparate expressions. The natural law which I there mentioned, is a portion of positive law and positive morality. It consists of the human rules, legal and moral, which have obtained at all times and obtained at all places.

According to the compound hypothesis which I mentioned in my fourth lecture, these human rules, legal and moral, have been fashioned on the law of God as indicated by the moral sense. Or, adopting the language of the classical Roman jurists, these human rules, legal and moral, have been fashioned on the Divine law as known by natural reason.

But, besides the human rules which have obtained with all mankind, there are human rules, legal and moral, which have been limited to peculiar times, or limited to peculiar places.

Now, according to the compound hypothesis which I mentioned in my fourth lecture, these last have not been fashioned on the law of God, or have been fashioned on the law of God as conjectured by the light of utility.

Being fashioned on the law of God as known by an infallible guide, human rules of the first class are styled the law of nature: For they are not of human position purely or simply, but are laws of God or Nature clothed with human sanctions. As obtaining at all times and obtaining at all places, they are styled by the classical jurists jus gentium, or jus omnium gentium.

But human rules of the second class are styled positive. For, not being fashioned on the law of God, or being fashioned on the law of God as merely conjectured by utility, they, certainly or probably, are of purely human position. They are not laws of God or Nature clothed with human sanctions.

176 As I stated in my fourth lecture, and shall show completely hereafter, the distinction of human rules into natural and positive involves the compound hypothesis which I mentioned in that discourse.¹⁵

The connection of the present (the fifth) lecture with the first, second, third, fourth, and sixth.

Positive laws, the appropriate matter of jurisprudence, are related in the way of resemblance, or by a close or remote analogy, to the following objects.—1. In the way of resemblance, they are related to the laws of God. 2. In the way of resemblance, they are related to those rules of positive morality which are laws properly so called. 3. By a close or strong analogy, they are related to those rules of positive morality which are merely opinions or sentiments held or felt by men in regard to human conduct. 4. By a remote or slender analogy, they are related to laws merely metaphorical, or laws merely figurative.

To distinguish positive laws from the objects now enumerated, is the purpose of the present attempt to determine the province of jurisprudence.

In pursuance of the purpose to which I have now adverted, I stated, in my first lecture, the essentials of a law or rule (taken with the largest signification which can be given to the term properly).

In my second, third, and fourth lectures. I stated the marks or characters by which the laws of God are distinguished from other laws. And, stating those marks or characters, I explained the nature of the index to his unrevealed laws, or I explained and examined the hypotheses which regard the nature of that index. I made this explanation at a length which may seem disproportionate, but which I have deemed necessary because these laws, and the index by which they are known, are the standard or measure to which all other laws should conform, and the standard measure or test by which they should be tried.

But before I can complete the purpose to which I have adverted above, I must examine or discuss especially the following principal topics (and must touch upon other topics of secondary or subordinate importance).—1. I must examine the marks or characters by which positive laws are distinguished from other laws. 2. I must examine the distinguishing marks 177of those positive moral rules which are laws properly so called. 3. I must examine the distinguishing marks of those positive moral rules which are styled laws or rules by an analogical extension of the term. 4. I must examine the distinguishing marks of laws merely metaphorical, or laws merely figurative.

In order to an explanation of the marks which distinguish positive laws, I must analyze the expression sovereignty, the correlative expression subjection, and the inseparably connected expression independent political society. For the essential difference of a positive law (or the difference that severe it from a law which is not a positive law) may be stated thus. Every positive law, or every law simply and strictly so called, is set by a sovereign person, or a sovereign body of persons, to a member or members of the independent political society wherein that person or body is sovereign or supreme. Or (changing the expression) it is set by a monarch, or sovereign number, to a person or persons in a state of subjection to its author.

But my analysis of those expressions occupies so large a space, that, in case I placed it in the lecture which I am now delivering, the lecture which I am now delivering would run to insufferable length.

The purpose mentioned above will, therefore, be completed in the following order.

Excluding from my present discourse my analysis of those expressions, I shall complete, in my present discourse, the purpose mentioned above, so far as I can complete it consistently with that exclusion. In my present discourse, I shall examine or discuss especially the following principal topics: namely, the distinguishing marks of those positive moral rules which are laws properly so called: the distinguishing marks of those positive moral rules which are styled laws or rules by an analogical extension of the term: the distinguishing marks of the laws which are styled laws by a metaphor.

I shall complete, in my sixth lecture, the purpose mentioned above, by explaining the marks or characters which distinguish positive laws, or laws strictly so called: an explanation involving an analysis of the capital expression sovereignty, the correlative expression subjection, and the inseparably connected expression independent political society.

Having shown the connection of my present discourse with foregoing and following lectures, I proceed to examine or discuss its appropriate topics or subjects.

The essentials of a law properly so called, together with certain consequences which those essentials import.

178 In my first lecture, I endeavoured to resolve a law (taken with the largest signification which can be given to the term properly) into the necessary or essential elements of which it is composed.

Now those essentials of a law proper, together with certain consequences which those essentials import, may be stated briefly in the following manner.—1. Laws properly so called are a species of commands. But, being a command, every law properly so called flows from a determinate source, or emanates from a determinate author. In other words, the author from whom it proceeds is a determinate rational being, or a determinate body or aggregate of rational beings. For whenever a command is expressed or intimated, one party signifies a wish that another shall do or forbear: and the latter is obnoxious to an evil which the former intends to inflict in case the wish be disregarded. But every signification of a wish made by a single individual, or made by a body of individuals as a body or collective whole, supposes that the individual or body is certain or determinate. And every intention or purpose held by a single individual, or held by a body of individuals as a body or collective whole, involves the same supposition. 2. Every sanction properly so called is an eventual evil annexed to a command. Any eventual evil may operate as a motive to conduct: but, unless the conduct be commanded and the evil be annexed to the command purposely to enforce obedience, the evil is not a sanction in the proper acceptation of the term. 3. Every duty, properly so called supposes a command by which it is created. For every sanction properly so called is an eventual evil annexed to a command. And duty properly so called is obnoxiousness to evils of the kind.

The laws of God, and positive laws, are laws properly so called.

Now it follows from these premises, that the laws of God, and positive laws, are laws proper, or laws properly so called.

The laws of God are laws proper, inasmuch as they are commands express or tacit, and therefore emanate from a certain source.

Positive laws, or laws strictly so called, are established directly or immediately by authors of three kinds:—by monarchs, or sovereign bodies, as supreme political superiors: by men in a state of subjection, as subordinate political superiors: by subjects, as private persons, in pursuance of legal rights. But every positive law, or every law strictly so called, is a direct or circuitous command of a monarch or sovereign number in the character of political superior: that is to say, a direct or circuitous command 179of a monarch or sovereign number to a person or persons in a state of subjection to its author. And being a command (and therefore flowing from a determinate source), every positive law is a law proper, or a law properly so called.

The generic character of positive moral rules.

Besides the human laws which I style positive law, there are human laws which I style positive morality, rules of positive morality, or positive moral rules.

The generic character of laws of the class may be stated briefly in the following negative manner.—No law belonging to the class is a direct or circuitous command of a monarch or sovereign number in the character of political superior. In other words, no law belonging to the class is a direct or circuitous command of a monarch or sovereign number to a person or persons in a state of subjection to its author.

Of positive moral rules, some are laws proper, but others are laws improper.

But of positive moral rules, some are laws proper, or laws properly so called: others are laws improper, or laws improperly so called. Some have all the essentials of an imperative law or rule: others are deficient in some of those essentials, and are styled laws or rules by an analogical extension of the term.

The positive moral rules which are laws properly so called, are commands.

The positive moral rules which are laws properly so called, are distinguished from other laws by the union of two marks.—1. They are imperative laws or rules set by men to men. 2. They are not set by men as political superiors, nor are they set by men as private persons, in pursuance of legal rights.

Inasmuch as they bear the latter of these two marks, they are not commands of sovereigns in the character of political superiors. Consequently, they are not positive laws: they are not clothed with legal sanctions, nor do they oblige legally the persons to whom they are set. But being commands (and therefore being established by determinate individuals or bodies), they are laws properly so called: they are armed with sanctions, and impose duties, in the proper acceptation of the terms.

It will appear from the following distinctions, that positive moral rules which are laws properly so called may be reduced to three kinds.

Of positive moral rules which are laws properly so called, some are established by men who are not subjects, or are not in a state of subjection: Meaning by ‘subjects,’ or by ‘men in a state of subjection,’ men in a state of subjection to a monarch or sovereign number.—Of positive moral rules which are laws properly so called, and are not established by men in a state of subjection, some are established by men living in the negative state which is styled a state of nature or a state of anarchy: 180that is to say, by men who are not in the state which is styled a state of government, or are not members, sovereign or subject, of any political society.—Of positive moral rules which are laws properly so called, and are not established by men in a state of subjection, others are established by sovereign individuals or bodies, but are not established by sovereigns in the character of political superiors. Or a positive moral rule of this kind may be described in the following manner: It is set by a monarch or sovereign number, but not to a person or persons in a state of subjection to its author.

Of laws properly so called which are set by subjects, some are set by subjects as subordinate political superiors. But of laws properly so called which are set by subjects, others are set by subjects as private persons: Meaning by ‘private persons,’ subjects not in the class of subordinate political superiors, or subordinate political superiors not considered as such.—Laws set by subjects as subordinate political superiors, are positive laws: they are clothed with legal sanctions, and impose legal duties. They are set by sovereigns or states in the character of political superiors, although they are set by sovereigns circuitously or remotely. Although they are made directly by subject or subordinate authors, they are made through legal rights granted by sovereigns or states, and held by those subject authors as mere trustees for the granters.—Of laws set by subjects as private persons, some are not established by sovereign or supreme authority. And these are rules of positive morality: they are not clothed with legal sanctions, nor do they oblige legally the parties to whom they are set.—But of laws set by subjects as private persons, others are set or established in pursuance of legal rights residing in the subject authors. And these are positive laws or laws strictly so called. Although they are made directly by subject authors, they are made in pursuance of rights granted or conferred by sovereigns in the character of political superiors: they legally oblige the parties to whom they are set, or are clothed with legal sanctions. They are commands of sovereigns as political superiors, although they are set by sovereigns circuitously or remotely.^(f)

181 It appears from the foregoing distinctions, that positive moral rules which are laws properly so called are of three kinds.—1. Those which are set by men living in a state of nature. 2. Those which are set by sovereigns, but not by sovereigns as political superiors. 3. Those which are set by subjects as private persons, and are not set by the subject authors in pursuance of legal rights.

To cite an example of rules of the first kind were superfluous labour. A man living in a state of nature may impose an imperative law: though, since the man is in a state of nature, he cannot impose the law in the character of sovereign, and cannot impose the law in pursuance of a legal right. And the law being imperative (and therefore proceeding from a determinate 182 source) is a law properly so called: though, for want of a sovereign author proximate or remote, it is not a positive law but a rule of positive morality.

An imperative law set by a sovereign to a sovereign, or by one supreme government to another supreme government, is an example of rules of the second kind. Since no supreme government is in a state of subjection to another, an imperative law set by a sovereign to a sovereign is not set by its author in the character of political superior. Nor is it set by its author in pursuance of a legal right: for every legal right is conferred by a supreme government, and is conferred on a person or persons in a state of subjection to the granter. Consequently, an imperative law set by a sovereign to a sovereign is not a positive law or a law strictly so called. But being imperative (and therefore proceeding from a determinate source), it amounts to a law in the proper signification of the term, although it is purely or simply a rule of positive morality.

If they be set by subjects as private persons, and be not set by their authors in pursuance of legal rights, the laws following are examples of rules of the third kind: namely, imperative laws set by parents to children; imperative laws set by masters to servants; imperative laws set by lenders to borrowers; imperative laws set by patrons to parasites. Being imperative (and therefore proceeding from determinate sources); the laws foregoing are laws properly so called: though, if they be set by subjects as private persons, and be not set by their authors in pursuance of legal rights, they are not positive laws but rules of positive morality.

Again: A club or society of men, signifying its collective pleasure by a vote of its assembled members, passes or makes a law to be kept by its members severally under pain of exclusion from its meetings. Now if it be made by subjects as private persons, and be not made by its authors in pursuance of a legal right, the law voted and passed by the assembled members of the club is a further example of rules of the third kind. If it be made by subjects as private persons, and be not made by its authors in pursuance of a legal right, it is not a positive law or a law strictly so called. But being an imperative law (and the body by which it is set being therefore determinate), it may be styled a law or rule with absolute precision or propriety, although it is purely or simply a rule of positive morality.

The positive moral rules which are laws improperly so called, are laws set or imposed by general opinion.

The positive moral rules which are laws improperly so called, are laws set or imposed by general opinion: that is to say, 183by the general opinion of any class or any society of persons. For example, Some are set or imposed by the general opinion of persons who are members of a profession or calling: others, by that of persons who inhabit a town or province: others, by that of a nation or independent political society: others, by that of a larger society formed of various nations.

A few species of the laws which are set by general opinion have gotten appropriate names.—For example, There are laws or rules imposed upon gentlemen by opinions current amongst gentlemen. And these are usually styled the rules of honour, or the laws or law of honour.—There are laws or rules imposed upon people of fashion by opinions current in the fashionable world. And these are usually styled the law set by fashion.—There are laws which regard the conduct of independent political societies in their various relations to one another: Or, rather, there are laws which regard the conduct of sovereigns or supreme governments in their various relations to one another. And laws or rules of this species, which are imposed upon nations or sovereigns by opinions current amongst nations, are usually styled the law of nations or international law.

A law set or imposed by general opinion, is merely the opinion or sentiment of an indeterminate body of persons in regard to a kind of conduct.

Now a law set or imposed by general opinion is a law improperly so called. It is styled a law or rule by an analogical extension of the term. When we speak of a law set by general opinion, we denote, by that expression, the following fact.—Some indeterminate body or uncertain aggregate of persons regards a kind of conduct with a sentiment of aversion or liking: Or (changing the expression) that indeterminate body opines unfavourably or favourably of a given kind of conduct. In consequence of that sentiment, or in consequence of that opinion, it is likely that they or some of them will be displeased with a party who shall pursue or not pursue conduct of that kind. And, in consequence of that displeasure, it is likely that some party (what party being undetermined) will visit the party provoking it with some evil or another.

The body by whose opinion the law is said to be set, does not command, expressly or tacitly, that conduct of the given kind shall be forborne or pursued. For, since it is not a body precisely determined or certain, it cannot, as a body, express or, intimate a wish. As a body, it cannot signify a wish by oral or written words, or by positive or negative deportment. The so called law or rule which its opinion is said to impose, is merely the sentiment which it feels, or is merely the opinion which it holds, in regard to a kind of conduct.

184 A determinate member of the body, who opines or feels with the body, may doubtless be moved or impelled, by that very opinion or sentiment, to command that conduct of the kind shall be forborne or pursued. But the command expressed or intimated by that determinate party is not a law or rule imposed by general opinion. It is a law properly so called, set by a determinate author.—For example, The so called law of nations consists of opinions or sentiments current among nations generally. It therefore is not law properly so called. But one supreme government may doubtless command another to forbear from a kind of conduct which the law of nations condemns. And, though it is fashioned on law which is law improperly so called, this command is a law in the proper signification of the term. Speaking precisely, the command is a rule of positive morality set by a determinate author. For, as no supreme government is in a state of subjection to another, the government commanding does not command in its character of political superior. If the government receiving the command were in a state of subjection to the other, the command, though fashioned on the law of nations, would amount to a positive law.

The foregoing description of a law set by general opinion imports the following consequences:—that the party who will enforce it against any future transgressor is never determinate and assignable. The party who actually enforces it against an actual transgressor is, of necessity, certain. In other words, if an actual transgressor be harmed in consequence of the breach of the law, and in consequence of that displeasure which the breach of the law has provoked, he receives the harm from a party, who, of necessity, is certain. But that certain party is not the executor of a command proceeding from the uncertain body. He has not been authorised by that uncertain body to enforce that so called law which its opinion is said to establish. He is not in the position of a minister of justice appointed by the sovereign or state to execute commands which it issues. He harms the actual offender against the so called law or (to speak in analogical language) he applies the sanction annexed to it, of his own spontaneous movement. Consequently, though a party who actually enforces it is, of necessity, certain, the party who will enforce it against any future offender is never determinate and assignable.

A brief statement of the analogy between a law proper and a law set or imposed by general opinion.

It follows from the foregoing reasons, that a so called law set by general opinion is not a law in the proper signification of the term. It also follows from the same reasons, that it is 185not armed with a sanction, and does not impose a duty, in the proper acceptation of the expressions. For a sanction properly so called is an evil annexed to a command. And duty properly so called is an obnoxiousness to evils of the kind.

But a so called law set by general opinion is closely analogous to a law in the proper signification of the term. And, by consequence, the so called sanction with which the former is armed, and the so called duty which the former imposes, are closely analogous to a sanction and a duty in the proper acceptation of the expressions.

The analogy between a law in the proper signification of the term and a so called law set by general opinion, may be stated briefly in the following manner.—1. In the case of a law properly so called, the determinate individual or body by whom the law is established wishes that conduct of a kind shall be forborne or pursued. In the case of a law imposed by general opinion, a wish that conduct of a kind shall be forborne or pursued is felt by the uncertain body whose general opinion imposes it. 2. If a party obliged by the law proper shall not comply with the wish of the determinate individual or body, he probably will suffer, in consequence of his not complying, the evil or inconvenience annexed to the law as a sanction. If a party obnoxious to their displeasure shall not comply with the wish of the uncertain body of persons, he probably will suffer, in consequence of his not complying, some evil or inconvenience from some party or another. 3. By the sanction annexed to the law proper, the parties obliged are inclined to act or forbear agreeably to its injunctions or prohibitions. By the evil which probably will follow the displeasure of the uncertain body, the parties obnoxious are inclined to act or forbear agreeably to the sentiment or opinion which is styled analogically a law. 4. In consequence of the law properly so called, the conduct of the parties obliged has a steadiness, constancy, or uniformity, which, without the existence of the law, their conduct would probably want. In consequence of the sentiment or opinion which is styled analogically a law, the conduct of the parties obnoxious has a steadiness, constancy, or uniformity, which, without the existence of that sentiment in the uncertain body of persons, their conduct would hardly present. For they who are obnoxious to the sanction which arms the law proper, commonly do or forbear from the acts which the law enjoins or forbids; whilst they who are obnoxious to the evil which will probably follow the displeasure of the 186uncertain body of persons, commonly do or forbear from the acts which the body approves or dislikes.—Many of the applications of the term law which are merely metaphorical or figurative, were probably suggested (as I shall show hereafter) by that uniformity of conduct which is consequent on a law proper.

Distinction between a determinate, and an indeterminate body of single or individual persons.

In the foregoing analysis of a law set by general opinion, the meaning of the expression ‘indeterminate body of persons’ is indicated rather than explained. To complete my analysis of a law set by general opinion (and to abridge that analysis of sovereignty which I shall place in my sixth lecture), I will here insert a concise exposition of the following pregnant distinction: namely, the distinction between a determinate, and an indeterminate body of single or individual persons.—If my exposition of the distinction shall appear obscure and crabbed, my hearers (I hope) will recollect that the distinction could hardly be expounded in lucid and flowing expressions.

I will first describe the distinction in general or abstract terms, and will then exemplify and illustrate the general or abstract description.

If a body of persons be determinate, all the persons who compose it are determined and assignable, or every person who belongs to it is determined and may be indicated.

But determinate bodies are of two kinds.

A determinate body of one of those kinds is distinguished by the following marks.—1. The body is composed of persons determined specifically or individually, or determined by characters or descriptions respectively appropriate to themselves. 2. Though every individual member must of necessity answer to many generic descriptions, every individual member is a member of the determinate body, not by reason of his answering to any generic description, but by reason of his bearing his specific or appropriate character.

A determinate body of the other of those kinds is distinguished by the following marks.—1. It comprises all the persons who belong to a given class, or who belong respectively to two or more of such classes. In other words, every person who answers to a given generic description, or to any of two or more given generic descriptions, is also a member of the determinate body. 2. Though every individual member is of necessity determined by a specific or appropriate character, every individual member is a member of the determinate body, not by reason of his bearing his specific or appropriate character, but by reason of his answering to the given generic description.

187 If a body be indeterminate, all the persons who compose it are not determined and assignable. Or (changing the expression) every person who belongs to it is not determined, and, therefore, cannot be indicated.—For an indeterminate body consists of some of the persons who belong to another and larger aggregate. But how many of those persons are members of the indeterminate body, or which of those persons in particular are members of the indeterminate body, is not and cannot be known completely and exactly.

For example, The trading firm or partnership of A B and C is a determinate body of the kind first described above. Every member of the firm is determined specifically, or by a character or description peculiar or appropriate to himself. And every member of the firm belongs to the determinate body, not by reason of his answering to any generic description, but by reason of his bearing his specific or appropriate character. It is as being that very individual person that A B or C is a limb of the partnership.

The British Parliament for the time being, is a determinate body of the kind lastly described above. It comprises the only person who answers for the time being to the generic description of king. It comprises every person belonging to the class of peers who are entitled for the time being to vote in the upper house. It comprises every person belonging to the class of commoners who for the time being represent the commons in parliament. And, though every member of the British Parliament is of necessity determined by a specific or appropriate character, he is not a member of the parliament by reason of his bearing that character, but by reason of his answering to the given generic description. It is not as being the individual George, but as being the individual who answers to the generic description of king, that George is king of Britain and Ireland, and a limb of the determinate body which is sovereign or supreme therein. It is not as being the individual Grey, or as being the individual Peel, that Grey is a member of the upper house, or Peel a member of the lower. Grey is a member of the upper house, as belonging to the class of peers entitled to vote therein. Peel is a member of the lower house, as answering the generic description ‘representative of the commons in parliament.’—The generic characters of the persons who compose the British Parliament, are here described generally, and, therefore, inaccurately. To describe those generic characters minutely and accurately, were to render a complete description 188 of the intricate and perplexed system which is styled the British Constitution.—A maxim of that Constitution may illustrate the subject of the present paragraph. The meaning of the maxim, ‘the king never dies,’ may, I believe, be rendered in the following manner. Though an actual occupant of the kingly office is human, mortal, and transient, the duration of the office itself has no possible limit which the British Constitution can contemplate. And on the death of an actual occupant, the office instantly devolves to that individual person who bears the generic character which entitles to take the crown: to that individual person who is then heir to the crown, according to the generic description contained in the Act of Settlement.

To exemplify the foregoing description of an indeterminate body, I will revert to the nature of a law set by general opinion. Where a so called law is set by general opinion, most of the persons who belong to a determinate body or class opine or feel alike in regard to a kind of conduct. But the number of that majority, or the several individuals who compose it, cannot be fixed or assigned with perfect fulness or accuracy. For example, A law set or imposed by the general opinion of a nation, by the general opinion of a legislative assembly, by the general opinion of a profession, or by the general opinion of a club, is an opinion or sentiment, relating to conduct of a kind, which is held or felt by most of those who belong to that certain body. But how many of that body, or which of that body in particular, hold or feel that given opinion or sentiment, is not and cannot be known completely and correctly. Consequently, that majority of the certain body forms a body uncertain. Or (changing the expression) the body which is formed by that majority is an indeterminate portion of a determinate body or aggregate.—Generally speaking, therefore, an indeterminate body is an indeterminate portion of a body determinate or certain. But a body or class of persons may also be indeterminate, because it consists of persons of a vague generic character. For example, The body or class of gentlemen consists of individual persons whose generic character of gentleman cannot be described precisely. Whether a given man were a genuine gentleman or not, is a question which different men might answer in different ways.—An indeterminate body may therefore be indeterminate after a twofold manner. It may consist of an uncertain portion of an uncertain body or class. For example, a law set or imposed by the general opinion of gentlemen is an opinion or sentiment of most of those who are commonly deemed gentle189manly. But what proportion of the class holds the opinion in question, or what proportion of the class feels the sentiment in question, is not less indeterminate than the generic character of gentlemen. The body by whose opinion the so called law is set, is, therefore, an uncertain portion of an uncertain body or aggregate.—And here I may briefly remark, that a certain portion of a certain body is itself a body determinate. For example, The persons who answer the generic description ‘representative of the commons in parliament,’ are a certain portion of the persons who answer the generic description ‘commoner of the united kingdom.’ A select committee of the representative body, or any portion of the body happening to form a house, is a certain or determined portion of the representatives of the commons in parliament. And, in any of these or similar cases, the certain portion of the certain body is itself a body determinate.

A determinate body of persons is capable of corporate conduct, or is capable, as a body, of positive or negative deportment. Whether it consist of persons determined by specific characters, or of persons determined or defined by a character or characters generic, every person who belongs to it is determined and may be indicated. In the first case, every person who belongs to it may be indicated by his specific character. In the second case, every person who belongs to it is also knowable: For every person who answers to the given generic description, or who answers to any of the given generic descriptions, is therefore a member of the body. Consequently, the entire body, or any proportion of its members, is capable, as a body, of positive or negative deportment: As, for example, of meeting at determinate times and places; of issuing expressly or tacitly a law or other command; of choosing and deputing representatives to perform its intentions or wishes; of receiving obedience from others, or from any of its own members.

But an indeterminate body is incapable of corporate conduct, or is incapable, as a body, of positive or negative deportment. An indeterminate body is incapable of corporate conduct, inasmuch as the several persons of whom it consists cannot be known and indicated completely and correctly. In case a portion of its members act or forbear, in concert, that given portion of its members is, by that very concert, a determinate or certain body. For example, A law set or imposed by the general opinion of barristers condemns the sordid practice of hugging or caressing attorneys. And as those whose opinion 190or sentiment sets the so called law are an indeterminate part of the determinate body of barristers, they form a body uncertain and incapable of corporate conduct. But in case a number or portion of that uncertain body assembled and passed a resolution to check the practice of hugging, that number or portion of that uncertain body would be, by the very act, a certain body or aggregate. It would form a determinate body consisting of the determined individuals who assembled and passed the resolution.—A law imposed by general opinion may be the cause of a law in the proper acceptation of the term. But the law properly so called, which is the consequent or effect, utterly differs from the so called law which is the antecedent or cause. The one is an opinion or sentiment of an uncertain body of persons; of a body essentially incapable of joint or corporate conduct. The other is set or established by the positive or negative deportment of a certain individual or aggregate.

For the purpose of rendering my exposition as little intricate as possible, I have supposed that a body of persons, forming a body determinate, either consists of persons determined by specific characters, or of persons determined or defined by a generic description or descriptions.—But a body of persons, forming a body determinate, may consist of persons determined by specific or appropriate characters, and also of persons determined by a character or characters generic. Let us suppose, for example, that the individual Oliver Cromwell was sovereign or supreme in England: or that the individual Cromwell, and the individuals Ireton and Fleetwood, formed a triumvirate which was sovereign in that country. Let us suppose, moreover, that Cromwell, or the triumvirs, convened a house of commons elected in the ancient manner: and that Cromwell, or the triumvirs, yielded a part in the sovereignty to this representative body. Now the sovereign or supreme body formed by Cromwell and the house, or the sovereign and supreme body formed by the triumvirs and the house, would have consisted of a person or persons determined or defined specifically, and of persons determined or defined by a generic character or description. The members of the house of commons would have been members of the sovereign body, as answering the generic description ‘representatives of the commons in parliament.’ But it is as being the very individual Cromwell, or as being the very individuals Cromwell, Ireton, and Fleetwood, that he or they would have formed a limb of the sovereign or supreme body. It is not as answering to a given generic description, or 191as acquiring a part in the sovereignty by a given generic mode, that he or they would have shared the sovereignty with the body representing the people.—A body of persons, forming a body determinate, may also consist of persons determined or defined specifically, and determined or defined moreover by a character or characters generic. A select committee of a body representing a people or nation, consists of individual persons named or appointed specifically to sit on that given committee. But those specific individuals could not be members of the committee, unless they answered the generic description ‘representative of the people or nation.’

It follows from the exposition immediately preceding that the one or the number which is sovereign in an independent political society is a determinate individual person or a determinate body of persons. If the sovereign one or number were not determinate or certain, it could not command expressly or tacitly, and could not be an object of obedience to the subject members of the community.—Inasmuch as this principle is amply explained by the exposition immediately preceding, I shall refer to it in my sixth lecture, as to a principle sufficiently known. The intricate and difficult analysis which I shall place in that discourse, will thus be somewhat facilitated, and not inconsiderably abridged.

As closely connected with the matter of the exposition immediately preceding, the following remark concerning supreme government may be put commodiously in the present place.—In order that a supreme government may possess much stability, and that the society wherein it is supreme may enjoy much tranquillity, the persons who take the sovereignty in the way of succession, must take or acquire by a given generic mode, or by given generic modes. Or (changing the expression) they must take by reason of their answering to a given generic description, or by reason of their respectively answering to given generic descriptions.—For example, the Roman Emperors or Princes (who were virtually monarchs or autocrators) did not succeed to the sovereignty of the Roman Empire or World by a given generic title: by a mode of acquisition given or preordained, and susceptible of generic description. It was neither as lineal descendant of Julius Cæsar or Augustus, nor by the testament or other disposition of the last possessor of the throne, nor by the appointment or nomination of the Roman people or senate, nor by the election of a determinate body formed of the military class, nor by any mode of acquisition generic and preordained, 192that every successive Emperor, or every successive Prince, acquired the virtual sovereignty of the Roman Empire or World. Every successive Emperor acquired by a mode of acquisition which was purely anomalous or accidental: which had not been predetermined by any law or custom, or by any positive law or rule of positive morality. Every actual occupant of the Imperial office or dignity (whatever may have been the manner wherein he had gotten possession) was obeyed, for the time, by the bulk of the military class; was acknowledged, of course, by the impotent and trembling senate; and received submission, of course, from the inert and helpless mass which inhabited the city and provinces. By reason of this irregularity in the succession to the virtual sovereignty, the demise of an Emperor was not uncommonly followed by a shorter or longer dissolution of the general supreme government. Since no one could claim to succeed by a given generic title, or as answering for the time being to a given generic description, a contest for the prostrate sovereignty almost inevitably arose between the more influential of the actual military chiefs. And till one of the military candidates had vanquished and crushed his rivals, and had forced with an armed hand his way to the vacant throne, the generality or bulk of the inhabitants in the Roman Empire or World could hardly render obedience to one and the same superior. By reason, also, of this irregularity in the succession to the Imperial office, the general and habitual obedience to an actual occupant of the office was always extremely precarious. For, since he was not occupant by a given generic title, or by reason of his having answered to a given generic description, the title of any rebel, who might anyhow eject him, would not have been less legitimate or less constitutional than his own. Or (speaking with greater precision) there was no mode of acquiring the office, which could be styled legitimate, or which could be styled constitutional: which was susceptible of generic description, and which had been predetermined by positive law or morality. There was not, in the Roman World, any determinate person, whom positive law or morality had pointed out to its inhabitants as the exclusively appropriate object of general and habitual obedience.—The reasoning which applies in the case of a monarchy, will also apply, with few variations, in the case of a government by a number. Unless the members of the supreme body hold their respective stations by titles generic and fixed, the given supreme government must be extremely unstable, and the given society wherein it is supreme must 193often be torn by contests for the possession of shares in the sovereignty.

Laws set by general opinion, or opinions or sentiments of indeterminate bodies, are the only opinions or sentiments that have gotten the name of laws. But an opinion or sentiment held or felt by an individual, or by all the members of a certain aggregate, may be as closely analogous to a law proper as the opinion or sentiment of an indeterminate body.

Before I close my analysis of those laws improperly so called which are closely analogous to laws in the proper acceptation of the term, I must advert to a seeming caprice of current or established language.

A law set or imposed by general opinion, is an opinion or sentiment, regarding conduct of a kind, which is held or felt by an indeterminate body: that is to say, an indeterminate portion of a certain or uncertain aggregate.

Now a like opinion or sentiment held or felt by an individual, or held or felt universally by the members of a body determinate, may be as closely analogous to a law proper as a so called law set by general opinion. It may bear an analogy to a law in the proper acceptation of the term, exactly or nearly resembling the analogy to a law proper which is borne by an opinion or sentiment of an indeterminate body. An opinion, for example, of a patron, in regard to conduct of a kind, may be a law or rule to his own dependant or dependants, just as a like opinion of an indeterminate body is a law or rule to all who might suffer by provoking its displeasure. And whether a like opinion be held by an uncertain aggregate, or be held by every member of a precisely determined body, its analogy to a law proper is exactly or nearly the same.

But when we speak of a law set or imposed by opinion, we always or commonly mean (I rather incline to believe) a law set or imposed by general opinion: that is to say, an opinion or sentiment, regarding conduct of a kind, which is held or felt by an uncertain body or class. The term law, or law set by opinion, is never or rarely applied to a like opinion or sentiment of a precisely determined party: that is to say, a like opinion or sentiment held or felt by an individual, or held or felt universally by the members of a certain aggregate.

This seeming caprice of current or established language probably arose from the following causes.

An opinion, regarding conduct, which is held by an individual person, or which is held universally by a small determinate body, is commonly followed by consequences of comparatively trifling importance. The circle of the persons to whom its influence reaches, or whose desires or conduct it affects or determines, is rarely extensive. The analogy which such opinions bear to laws proper, has, therefore, attracted little attention, and has, therefore, not gotten them the name of laws.194—An opinion held universally by a large determinate body, is not less largely influential, or is more largely influential, than an opinion of an uncertain portion of the same certain aggregate. But since the determinate body is large or numerous, an opinion held by all its members can hardly be distinguished from an opinion held by most of its members. An opinion held universally by the members of the body determinate, is, therefore, equivalent in practice to a general opinion of the body, and is, therefore, classed with the laws which general opinion imposes.

Deferring to this seeming caprice of current or established language, I have forborne from ranking sentiments of precisely determined parties with the laws improperly so called which are closely analogous to the proper. I have restricted that description to sentiments, regarding conduct, of uncertain bodies or classes. My foregoing analysis or exposition of laws of that description, is, therefore, an analysis of laws set by general opinion.

If the description ought to embrace (as, I think, it certainly ought) opinions, regarding conduct, of precisely determined parties, my foregoing analysis or exposition will still be correct substantially. With a few slight and obvious changes, my foregoing analysis of a law set by general opinion will serve as an analysis of a law set by any opinion: of a law set by the opinion of an indeterminate body, and of a law set by the opinion of a precisely determined party.

For the character or essential difference of a law imposed by opinion, is this: that the law is not a command, issued expressly or tacitly, but is merely an opinion or sentiment, relating to conduct of a kind, which is held or felt by an uncertain body, or by a determinate party. A wish that conduct of the kind shall be pursued or forborne, is not signified, expressly or tacitly, by that uncertain body, or that determinate party: nor does that body or party intend to inflict an evil upon any whose conduct may deviate from the given opinion or sentiment. The opinion or sentiment is merely an opinion or sentiment, although it subjects a transgressor to the chance of a consequent evil, and may even lead to a command regarding conduct of the kind.

Between the opinion or sentiment of the indeterminate body, and the opinion or sentiment of the precisely determined party, there is merely the following difference.—The precisely determined party is capable of issuing a command in pursuance of the opinion or sentiment. But the uncertain body is not. For, being essentially incapable of joint or corporate conduct, it can195not, as a body, signify a wish or desire, and cannot, as a body, hold an intention or purpose.

The foregoing distribution of laws proper and of such improper laws as are closely analogous to the proper, briefly recapitulated.

It appears from the expositions in the preceding portion of my discourse, that laws properly so called, with such improper laws as are closely analogous to the proper, are of three capital classes.—1. The law of God, or the laws of God. 2. Positive law, or positive laws. 3. Positive morality, rules of positive morality, or positive moral rules.

It also appears from the same expositions, that positive moral rules are of two species.—1. Those positive moral rules which are express or tacit commands, and which are therefore laws in the proper acceptation of the term. 2. Those laws improperly so called (but closely analogous to laws in the proper acceptation of the term) which are set by general opinion, or are set by opinion: which are set by opinions of uncertain bodies; or by opinions of uncertain bodies, and opinions of determinate parties.

The sanctions, proper and improper, by which those laws are respectively enforced; the duties, proper and improper, which those laws respectively impose; and the rights, proper and improper, which those laws respectively confer.

The sanctions annexed to the laws of God, may be styled religious.—The sanctions annexed to positive laws, may be styled, emphatically, legal: for the laws to which they are annexed, are styled, simply and emphatically, laws or law. Or, as every positive law supposes a πόλις or civitas, or supposes a society political and independent, the epithet political may be applied to the sanctions by which such laws are enforced.—Of the sanctions which enforce compliance with positive moral rules, some are sanctions properly so called, and others are styled sanctions by an analogical extension of the term: that is to say, some are annexed to rules which are laws imperative and proper, and others enforce the rules which are laws set by opinion. Since rules of either species may be styled positive morality, the sanctions which enforce compliance with rules of either species may be styled moral sanctions. Or (changing the expression) we may say of rules of either species, that they are sanctioned or enforced morally.^(g)

The duties imposed by the laws of God may be styled 196religious.—The duties imposed by positive laws, may be styled, emphatically, legal: or, like the laws by which they are imposed, they may be said to be sanctioned legally.—Of the duties imposed by positive moral rules, some are duties properly so called, and others are styled duties by an analogical extension of the term: that is to say, some are creatures of rules which are laws imperative and proper, and others are creatures of the rules which are laws set by opinion. Like the sanctions proper and improper by which they are respectively enforced, these duties proper and improper may be styled moral. Or we may say of the duties, as of the rules by which they are imposed, that they are sanctioned or enforced morally.

Every right supposes a duty incumbent on a party or parties other than the party entitled. Through the imposition of that corresponding duty, the right was conferred. Through the continuance of that corresponding duty, the right continues to exist. If that corresponding duty be the creature of a law imperative, the right is a right properly so called. If that corresponding duty be the creature of a law improper, the right is styled a right by an analogical extension of the term.—Consequently, a right existing through a duty imposed by the law of God, or a right existing through a duty imposed by positive law, is a right properly so called. Where the duty is the creature of a positive moral rule, the nature of the corresponding right depends upon the nature of the rule. If the rule imposing the duty be a law imperative and proper, the right is a right properly so called. If the rule imposing the duty be a law set by opinion, the right is styled a right through an analogical extension of the term.—Rights conferred by the law of God, or rights existing through duties imposed by the law of God, may be styled Divine.—Rights conferred by positive law, or rights existing through duties imposed by positive law, may be styled, emphatically, legal. Or it may be said of rights conferred by positive law, that they are sanctioned or protected legally.—The rights proper and improper which are conferred by positive morality, may be styled moral. Or it may be said of rights conferred by positive morality, that they are sanctioned or protected morally.^(h)

The law of God, positive law, and positive morality, sometimes coincide, sometimes do not coincide, and sometimes conflict.

197The body or aggregate of laws which may be styled the law of God, the body or aggregate of laws which may be styled positive law, and the body or aggregate of laws which may be styled positive morality, sometimes coincide, sometimes do not coincide, and sometimes conflict.

One of these bodies of laws coincides with another, when acts, which are enjoined or forbidden by the former, are also enjoined, or are also forbidden by the latter.—For example, The killing which is styled murder is forbidden by the positive law of every political society: it is also forbidden by a so called law which the general opinion of the society has set or imposed: it is also forbidden by the law of God as known through the principle of utility. The murderer commits a crime, or he violates a positive law; he commits a conventional immorality, or he violates a so called law which general opinion has established: he commits a sin, or he violates the law of God. He is obnoxious to punishment, or other evil, to be inflicted by sovereign authority: he is obnoxious to the hate and the spontaneous ill-offices of the generality or bulk of the society: he is obnoxious to evil or pain to be suffered here or hereafter by the immediate appointment of the Deity.

One of these bodies of laws does not coincide with another, when acts, which are enjoined or forbidden by the former, are not enjoined, or are not forbidden by the latter.—For example, Though smuggling is forbidden by positive law, and (speaking generally) is not less pernicious than theft, it is not forbidden by the opinions or sentiments of the ignorant or unreflecting. Where the impost or tax is itself of pernicious tendency, smuggling is hardly forbidden by the opinions or sentiments of any: And it is therefore practised by any without the slightest shame, or without the slightest fear of incurring general censure. Such, for instance, is the case where the impost or tax is laid upon the foreign commodity, not for the useful purpose of raising a public revenue, but for the absurd and mischievous purpose of protecting a domestic manufacture.—Offences against the game 198laws are also in point: for they are not offences against positive morality, although they are forbidden by positive law. A gentleman is not dishonoured, or generally shunned by gentlemen, though he shoots without a qualification. A peasant who wires hares escapes the censure of peasants, though the squires, as doing justiceship, send him to the prison and the tread-mill

One of these bodies of laws conflicts with another, when acts, which are enjoined or forbidden by the former, are forbidden or enjoined by the latter.—For example, In most of the nations of modern Europe, the practice of duelling is forbidden by positive law. It is also at variance with the law which is received in most of those nations as having been set by the Deity in the way of express revelation. But in spite of positive law, and in spite of his religious convictions, a man of the class of gentlemen may be forced by the law of honour to give or to take a challenge. If he forebore from giving, or if he declined a challenge, he might incur the general contempt of gentlemen or men of honour, and might meet with slights and insults sufficient to embitter his existence. The negative legal duty which certainly is incumbent upon him, and the negative religious duty to which he believes himself subject, are therefore mastered and controlled by that positive moral duty which arises from the so-called law set by the opinion of his class.

The simple and obvious considerations to which I have now adverted, are often overlooked by legislators. If they fancy a practice pernicious, or hate it they know not why, they proceed, without further thought, to forbid it by positive law. They forget that positive law may be superfluous or impotent, and therefore may lead to nothing but purely gratuitous vexation. They forget that the moral or the religious sentiments of the community may already suppress the practice as completely as it can be suppressed: or that, if the practice is favoured by those moral or religious sentiments, the strongest possible fear which legal pains can inspire may be mastered by a stronger fear of other and conflicting sanctions.⁽ⁱ⁾

199 In consequence of the frequent coincidence of positive law and morality, and of positive law and the law of God, the true nature and fountain of positive law is often absurdly mistaken by writers upon jurisprudence. Where positive law has been fashioned on positive morality, or where positive law has been fashioned on the law of God, they forget that the copy is the creature of the sovereign, and impute it to the author of the model.

For example: Customary laws are positive laws fashioned by judicial legislation upon pre-existing customs. Now, till they become the grounds of judicial decisions upon cases, and are clothed with legal sanctions by the sovereign one or number, the customs are merely rules set by opinions of the governed, and sanctioned or enforced morally: Though, when they become the reasons of judicial decisions upon cases, and are clothed with legal sanctions by the sovereign one or number, the customs are rules of positive law as well as of positive morality. But, because the customs were observed by the governed before they were clothed with sanctions by the sovereign one or number, it is fancied that customary laws exist as positive laws by the institution of the private persons with whom the customs originated.—Admitting the conceit, and reasoning by analogy, we ought to consider the sovereign the author of the positive morality which is often a consequence of positive law. Where a positive law, not fashioned on a custom, is favourably received by 200the governed, and enforced by their opinions or sentiments, we must deem the so called law, set by those opinions or sentiments, a law imperative and proper of the supreme political superior.

Again: The portion of positive law which is parcel of the law of nature (or, in the language of the classical jurists, which is parcel of the jus gentium) is often supposed to emanate, even as positive law, from a Divine or Natural source. But (admitting the distinction of positive law into law natural and law positive) it is manifest that law natural, considered as a portion of positive, is the creature of human sovereigns, and not of the Divine monarch. To say that it emanates, as positive law, from a Divine or Natural source, is to confound positive law with law whereon it is fashioned, or with law whereunto it conforms.¹⁶

The foregoing distribution of laws proper, and of such improper laws as are closely analogous to the proper tallies, in the main, with a division of laws which is given incidentally by Locke in his Essay on Human Understanding.

The foregoing distribution of laws proper, and of such improper laws as are closely analogous to the proper, tallies, in the main, with a division of laws which is given incidentally by Locke in his Essay on Human Understanding. And since this division of laws, or of the sources of duties or obligations, is recommended by the great authority which the writer has justly acquired, I gladly append it to my own division or analysis. The passage of his essay in which the division occurs, is part of an inquiry into the nature of relation, and is therefore concerned indirectly with the nature and kinds of law. With the exclusion of all that is foreign to the nature and kinds of law, with the exclusion of a few expressions which are obviously redundant, and with the correction of a few expressions which are somewhat obscure, the passage containing the divisions may be rendered in the words following:^(k)

201 ‘The conformity or disagreement men’s voluntary actions have to a rule to which they are referred, and by which they are judged of, is a sort of relation which may be called moral relation.

‘Human actions, when with their various ends, objects, manners, and circumstances, they are framed into distinct complex ideas, are, as has been shown, so many mixed modes, a great part whereof have names annexed to them. Thus, supposing gratitude to be a readiness to acknowledge and return kindness received, or polygamy to be the having more wives than one at once, when we frame these notions thus in our minds, we have there so many determined ideas of mixed modes.

‘But this is not all that concerns our actions. It is not enough to have determined ideas of them, and to know what names belong to such and such combinations of ideas. We have a further and greater concernment And that is, to know whether such actions are morally good or bad.

‘Good or evil is nothing but pleasure or pain, or that which occasions or procures pleasure or pain to us. Moral good or evil, then, is only the conformity or disagreement of our voluntary actions to some law, whereby good or evil is drawn on us by the will and power of the law-maker: which good or evil, pleasure or pain, attending our observance or breach of the law, by the decree of the law-maker, is that we call reward or punishment.

‘Of these moral rules or laws, to which men generally refer, and by which they judge of the rectitude or pravity of their actions, there seem to me to be three sorts, with their three different enforcements, or rewards and punishments. For since it would be utterly in vain to suppose a rule set to the free actions of man, without annexing to it some enforcement of good and evil to determine his will, we must, wherever we suppose a law, suppose also some reward or punishment annexed to that law. It would be in vain for one intelligent being to set a rule to the actions of another, if he had it not in his power to reward the compliance with, and punish deviation from his rule, by some good and evil that is not the natural product and consequence of the action itself: for that being a natural convenience or inconvenience, would operate of itself without a law. This, if I mistake not, is the true nature of all law properly so called.

‘The laws that men generally refer their actions to, to judge of their rectitude or obliquity, seem to me to be these three: 1. The Divine law. 2. The civil law. 3. The law of opinion or 202reputation, if I may so call it.—By the relation they bear to the first of these, men judge whether their actions are sins or duties: by the second, whether they be criminal or innocent: and by the third, whether they be virtues or vices.

‘By the Divine law, I mean that law which God bath set to the actions of men, whether promulgated to them by the light of nature, or the voice of revelation. This is the only true touchstone of moral rectitude. And by comparing them to this law, it is, that men judge of the most considerable moral good or evil of their actions: that is, whether as duties or sins, they are like to procure them happiness or misery from the hands of the Almighty.

‘The civil law, the rule set by the commonwealth to the actions of those who belong to it, is a rule to which men refer their actions, to judge whether they be criminal or no. This law nobody overlooks, the rewards and punishments that enforce it being ready at hand, and suitable to the power that makes it: which is the force of the commonwealth, engaged to protect the lives, liberties and possessions of those who live according to its law, and has power to take away life, liberty or goods from him who disobeys.

‘The law of opinion or reputation is another law that men generally refer their actions to, to judge of their rectitude or obliquity.

‘Virtue and vice are names pretended, and supposed everywhere to stand for actions in their own nature right or wrong: and as far as they really are so applied, they so far are coincident with the Divine law above mentioned. But yet, whatever is pretended, this is visible, that these names virtue and vice, in the particular instances of their application through the several nations and societies of men in the world, are constantly attributed to such actions only as in each country and society are in reputation or discredit. Nor is it to be thought strange, that men everywhere should give the name of virtue to those actions which amongst them are judged praiseworthy, and call that vice which they account blameable; since they would condemn themselves, if they should think anything right, to which they allowed not commendation; anything wrong, which they let pass without blame.

‘Thus the measure of what is everywhere called and esteemed virtue and vice, is this approbation or dislike, praise or blame, which by a secret and tacit consent establishes itself in the several societies, tribes, and clubs of men in the world; 203whereby several actions come to find credit or disgrace amongst them, according to the judgment, maxims, or fashions of that place. For though men uniting into politick societies have resigned up to the publick the disposing of all their force, so that they cannot employ it against any fellow-citizens any further than the law of the country directs, yet they retain still the power of thinking well or ill, approving or disapproving of the actions of those whom they live amongst and converse with: and by this approbation and dislike, they establish amongst themselves what they will call virtue and vice.

‘That this is the common measure of virtue and vice, will appear to any one who considers, that, though that passes for vice in one country, which is counted virtue (or, at least, not vice) in another, yet everywhere virtue and praise, vice and blame go together. Virtue is everywhere that which is thought praiseworthy; and nothing but that which has the allowance of public esteem is called virtue. Virtue and praise are so united, that they are often called by the same name. “Sunt sua prœmia laudi,” says Virgil. And, says Cicero, “nihil habet natura præstantius, quam honestatem, quam laudem, quam dignitatem, quam decus:” all which, he tells you, are names for the same thing. Such is the language of the heathen philosophers, who well understood wherein the notions of virtue and vice consisted.

‘But though, by the different temper, education, fashion, maxims, or interest of different sorts of men, it fell out, that what was thought praiseworthy in one place, escaped not censure in another, and so in different societies virtues and vices were changed, yet, as to the main, they for the most part kept the same everywhere. For since nothing can be more natural, than to encourage with esteem and reputation that wherein everyone finds his advantage, and to blame and discountenance the contrary, it is no wonder that esteem and discredit, virtue and vice, should in a great measure everywhere correspond with the unchangeable rule of right and wrong which the law of God bath established: there being nothing that so directly and visibly secures and advances the general good of mankind in this world as obedience to the law He has set them, and nothing that breeds such mischiefs and confusion as the neglect of it. And therefore men, without renouncing all sense and reason, and their own interest, could not generally mistake in placing their commendation or blame on that side which really deserved it not. Nay, even those men, whose practice was otherwise, failed not to give their approbation right: few being depraved 204to that degree, as not to condemn, at least in others, the faults they themselves were guilty of. Whereby, even in the corruption of manners, the law of God, which ought to be the rule of virtue and vice, was pretty well observed.

‘If any one shall imagine that I have forgotten my own notion of a law, when I make the law, whereby men judge of virtue and vice, to be nothing but the consent of private men who have not authority to make a law; especially wanting that which is so necessary and essential to a law, a power to enforce it: I think, I may say, that he who imagines commendation and disgrace not to be strong motives on men to accommodate themselves to the opinions and rules of those with whom they converse, seems little skilled in the nature or history of mankind: The greatest part whereof he shall find to govern themselves chiefly, if not solely, by this law of fashion: and so they do that which keeps them in reputation with their company, little regard the law of God or the magistrate. The penalties that attend the breach of God’s law, some, nay, perhaps, most men seldom seriously reflect on; and amongst those that do, many, whilst they break the law, entertain thoughts of future reconciliation, and making their peace for such breaches. And as to the punishments due from the law of the commonwealth, they frequently flatter themselves with the hope of impunity. But no man escapes the punishment of their censure and dislike, who offends against the fashion and opinion of the company he keeps, and would recommend himself to. Nor is there one of ten thousand, who is stiff and insensible enough to bear up under the constant dislike and condemnation of his own club. He must be of a strange and unusual constitution, who can content himself to live in constant disgrace and disrepute with his own particular society. Solitude many men have sought and been reconciled to: but nobody that has the least thought or sense of a man about him, can live in society under the constant dislike and ill opinion of his familiars, and those he converses with. This is a burthen too heavy for human sufferance: and he must be made up of irreconcileable contradictions, who can take pleasure in company, and yet be insensible of contempt and disgrace from his companions.

‘The law of God, the law of politick societies, and the law of fashion or private censure, are, then, the three rules to which men variously compare their actions. And it is from their conformity or disagreement to one of these rules, that they judge of their rectitude or obliquity, and name them good or bad.

205 ‘Whether we take the rule, to which, as to a touchstone, we bring our voluntary actions, from the fashion of the country, or from the will of a law-maker, the mind is easily able to observe the relation any action hath to it, and to judge whether the action agrees or disagrees with the rule. And thus the mind hath a notion of moral goodness or evil: which is either conformity or not conformity of any action to that rule. If I find an action to agree or disagree with the esteem of the country I have been bred in, and to be held by most men there worthy of praise or blame, I call the action virtuous or vicious. If I have the will of a supreme invisible law-maker for my rule, then, as I suppose the action commanded or forbidden by God, I call it good or evil, duty or sin. And if I compare it to the civil law, the rule made by the legislative power of the country, I call it lawful or unlawful, no crime or a crime. So that whencesoever we take the rule of actions, or by what standard soever we frame in our minds the ideas of virtues or vices, their rectitude or obliquity consists in their agreement or disagreement with the patterns prescribed by some law.

‘Before I quit this argument, I would observe that, in the relations which I call moral relations, I have a true notion of relation, by comparing the action with the rule, whether the rule be true or false. For if I measure any thing by a supposed yard, I know whether the thing I measure be longer or shorter than that supposed yard, though the yard I measure by be not exactly the standard. Measuring an action by a wrong rule, I shall judge amiss of its moral rectitude: but I shall not mistake the relation which the action bears to the rule whereunto I compare it.’—Essay concerning Human Understanding. Book II. Chap. XXVIII.

Laws metaphorical or figurative.—The common and negative nature of laws of the class.

The analogy borne to a law proper by a law which opinion imposes, lies mainly in the following point of resemblance. In the case of a law set by opinion, as well as in the case of a law properly so called, a rational being or beings are obnoxious to contingent evil, in the event of their not complying with a known or presumed desire of another being or beings of a like nature. If, in either of the two cases, the contingent evil is suffered, it is suffered by a rational being, through a rational being: And it is suffered by a rational being, through a rational being, in consequence of the suffering party having disregarded a desire of a rational being or beings.—The analogy, therefore, by which the laws are related, mainly lies in the resemblance of the improper sanction and duty to the sanction and duty 206properly so called. The contingent evil in prospect which enforces the law improper, and the present obnoxiousness to that contingent evil, may be likened to the genuine sanction which enforces the law proper, and the genuine duty or obligation which the law proper imposes.—The analogy between a law in the proper acceptation of the term, and a law improperly so called which opinion sets or imposes, is, therefore, strong or close. The defect which excludes the latter from the rank of a law proper, merely consists in this: that the wish or desire of its authors has not been duly signified, and that they have no formed intention of inflicting evil or pain upon those who may break or transgress it.

But, beside the laws improper which are set or imposed by opinion, there are laws improperly so called which are related to laws proper by slender or remote analogies. And, since they have gotten the name of laws from their slender or remote analogies to laws properly so called, I style them laws metaphorical, or laws merely metaphorical.

The metaphorical applications of the term law are numerous and different. The analogies by which they are suggested, or by which metaphorical laws are related to laws proper, will, therefore, hardly admit of a common and positive description. But laws metaphorical, though numerous and different, have the following common and negative nature.—No property or character of any metaphorical law can be likened to a sanction or a duty. Consequently, every metaphorical law wants that point of resemblance which mainly constitutes the analogy between a law proper and a law set by opinion.

The common and negative nature of laws metaphorical or figurative, shown by examples.

To show that figurative laws want that point of resemblance, and are therefore remotely analogous to laws properly so called, I will touch slightly and briefly upon a few of the numberless cases in which the term law is extended and applied by a metaphor.

The most frequent and remarkable of those metaphorical applications is suggested by that uniformity, or that stability of conduct, which is one of the ordinary consequences of a law proper.—By reason of the sanction working on their wills or desires, the parties obliged by a law proper commonly adjust their conduct to the pattern which the law prescribes. Consequently, wherever we observe a uniform order of events, or a uniform order of coexisting phænomena, we are prone to impute that order to a law set by its author, though the case presents us with nothing that can be likened to a sanction or a duty.

207 For example: We say that the movements of lifeless bodies are determined by certain laws: though, since the bodies are lifeless and have no desires or aversions, they cannot be touched by aught which in the least resembles a sanction, and cannot be subject to aught which in the least resembles an obligation. We mean that they move in certain uniform modes, and that they move in those uniform modes through the pleasure and appointment of God: just as parties obliged behave in a uniform manner through the pleasure and appointment of the party who imposes the law and the duty.—Again: We say that certain actions of the lower and irrational animals are determined by certain laws: though, since they cannot understand the purpose and provisions of a law, it is impossible that sanctions should effectually move them to obedience, or that their conduct should be guided by a regard to duties or obligations. We mean that they act in certain uniform modes, either in consequence of instincts (or causes which we cannot explain), or else in consequence of hints which they catch from experience and observation: and that, since their uniformity of action is an effect of the Divine pleasure, it closely resembles the uniformity of conduct which is wrought by the authors of laws in those who are obnoxious to the sanctions.^(l)—In short, whenever we talk of laws governing the irrational world, the metaphorical application of the term law is suggested by this double analogy. 1. The successive and synchronous phænomena composing the irrational world, happen and exist, for the most part, in uniform series: which uniformity of succession and coexistence resembles the uniformity of conduct produced by an imperative law. 2. That uniformity of succession and coexistence, like the uniformity of conduct produced by an imperative law, springs from the will and intention of an intelligent and rational author.—When an atheist speaks of laws governing the irrational world, the metaphorical application is suggested by an analogy still more slender and remote than that which I have now analyzed. He means that the uniformity of succession and coexistence resembles the uniformity of conduct produced by an imperative rule. If, to 208draw the analogy closer, he ascribes those laws to an author, he personifies a verbal abstraction, and makes it play the legislator. He attributes the uniformity of succession and coexistence to laws set by nature: meaning, by nature, the world itself; or, perhaps, that very uniformity which he imputes to nature’s commands.

Many metaphorical applications of the term law or rule are suggested by the analogy following.—An imperative law or rule guides the conduct of the obliged, or is a norma, model, or pattern, to which their conduct conforms. A proposed guide of human conduct, or a model or pattern offered to human imitation, is, therefore, frequently styled a law or rule of conduct, although there be not in the case a shadow of a sanction or a duty.

For example: To every law properly so called there are two distinct parties: a party by whom it is established, and a party to whom it is set. But, this notwithstanding, we often speak of a law set by a man to himself: meaning that he intends to pursue some given course of conduct as exactly as he would pursue it if he were bound to pursue it by a law. An intention of pursuing exactly some given course of conduct, is the only law or rule which a man can set to himself. The binding virtue of a law lies in the sanction annexed to it. But in the case of a so called law set by a man to himself, he is not constrained to observe it by aught that resembles a sanction. For though he may fairly purpose to inflict a pain on himself, if his conduct shall depart from the guide which he intends it shall follow, the infliction of the conditional pain depends upon his own will.—Again: When we talk of rules of art, the metaphorical application of the term rules is suggested by the analogy in question. By a rule of art, we mean a prescription or pattern which is offered to practitioners of an art, and which they are advised to observe when performing some given process. There is not the semblance of a sanction, nor is there the shadow of a duty. But the offered prescription or pattern may guide the conduct of practitioners, as a rule imperative and proper guides the conduct of the obliged.¹⁷

Laws metaphorical or figurative are often blended and confounded with laws imperative and proper.

The preceding disquisition on figurative laws is not so superfluous as some of my hearers may deem it. Figurative 209laws are not unfrequently mistaken for laws imperative and proper. Nay, attempts have actually been made, and by writers of the highest celebrity, to explain and illustrate the nature of laws imperative and proper, by allusions to so called laws which are merely such through a metaphor. Of these most gross and scarcely credible errors, various cases will be mentioned in future stages of my Course. For the present, the following examples will amply demonstrate that the errors are not impossible.

In an excerpt from Ulpian placed at the beginning of the Pandects, and also inserted by Justinian in the second title of his Institutes, a fancied jus naturale, common to all animals, is thus distinguished from the jus naturale or gentium to which I have adverted above. ‘Jus naturale est, quod natura omnia animalia docuit: nam jus istud non humani generis proprium, sed omnium animalium, quæ in terra, quæ in mari nascuntur, avium quoque commune est. Hinc descendit maris atque feminæ conjunctio, quam nos matrimonium appellamus; hinc liberorum procreatio, hinc educatio: videmus etenim cetera quoque animalia, feras etiam, istius juris peritia censeri. Jus gentium est, quo gentes humanæ utuntur. Quod a naturali recedere, inde facile intelligere licet; quia illud omnibus animalibus, hoc solis hominibus inter se commune est.’ The jus naturale which Ulpian here describes, and which he here distinguishes from the jus naturale or gentium, is a name for the instincts of animals. More especially, it denotes that instinctive appetite which leads them to propagate their kinds, with that instinctive sympathy which inclines parent animals to nourish and educate their young. Now the instincts of animals are related to laws by the slender or remote analogy which I have already endeavoured to explain. They incline the animals to act in certain uniform modes, and they are given to the animals for that purpose by an intelligent and rational Author. But these metaphorical laws which govern the lower animals, and which govern (though less despotically) the human species itself, should not have been blended and confounded, by a grave writer upon jurisprudence, with laws properly so called. It is true that the instincts of the animal man, like many of his affections which are not instinctive, are amongst the causes of laws in the proper acceptation of the term. More especially, the laws regarding the relation of husband and wife, and the laws regarding the relation of parent and child, are mainly caused by the instincts which Ulpian particularly points at. And that, it is likely, was the reason which determined 210this legal oracle to class the instincts of animals with laws imperative and proper. But nothing can be more absurd than the ranking with laws themselves the causes which lead to their existence. And if human instincts are laws because they are causes of laws, there is scarcely a faculty or affection belonging to the human mind, and scarcely a class of objects presented by the outward world, that must not be esteemed a law and an appropriate subject of jurisprudence.—I must, however, remark, that the jus quod natura omnia animalia docuit is a conceit peculiar to Ulpian: and that this most foolish conceit, though inserted in Justinian’s compilations, has no perceptible influence on the detail of the Roman law. The jus naturale of the classical jurists generally, and the jus naturale occurring generally in the Pandects, is equivalent to the natural law of modern writers upon jurisprudence, and is synonymous with the jus gentium, or the jus naturale et gentium, which I have tried to explain concisely at the end of a preceding note. It means those positive laws and those rules of positive morality, which are not peculiar or appropriate to any nation or age, but obtain, or are thought to obtain, in all nations and ages: and which, by reason of their obtaining in all nations and ages, are supposed to be formed or fashioned on the law of God or Nature as known by the moral sense. ‘Omnes populi’ (says Gains), ‘qui legibus et moribus reguntur, partim suo proprio, partim communi omnium hominum jure utuntur. Nam quod quisque populus ipse sibi jus constituit, id ipsius proprium est, vocaturque jus civile; quasi jus proprium ipsius civitatis. Quod vero naturalis ratio inter omnes homines constituit, id aput omnes populos peræque custoditur, vocaturque jus gentium; quasi quo jure omnes gentes utuntur.’ The universal leges et mores here described by Gaius, and distinguished from the leges et mores peculiar to a particular nation, are styled indifferently, by most of the classical jurists, jus gentium, jus naturale, or jus naturale et gentium. And the law of nature, as thus understood, is not intrinsically absurd. For as some of the dictates of utility are always and everywhere the same, and are also so plain and glaring that they hardly admit of mistake, there are legal and moral rules which are nearly or quite universal, and the expediency of which must be seen by merely natural reason, or by reason without the lights of extensive experience and observation. The distinction of law and morality into natural and positive, is a needless and futile subtilty: but still the distinction is founded on a real and manifest difference. The jus naturale or gentium would be liable 211to little objection, if it were not supposed to be the offspring of a moral instinct or sense, or of innate practical principles. But, since it is closely allied (as I shall show hereafter¹⁸) to that misleading and pernicious jargon, it ought to be expelled, with the natural law of the moderns, from the sciences of jurisprudence and morality.

The following passage is the first sentence in Montesquieu’s Spirit of Laws. ‘Les lois, dans la signification la plus étendue, sont les rapports nécessaires qui dérivent de la nature des choses: et dans ce sens tous les êtres ont leurs lois: la Divinité a ses lois; le monde matériel a ses lois; les intelligences supérieures à l’homme ont leurs lois; les bêtes out leurs lois; l’homme a ses lois.’ Now objects widely different, though bearing a common name, are here blended and confounded. Of the laws which govern the conduct of intelligent and rational creatures, some are laws imperative and proper, and others are closely analogous to laws of that description. But the so called laws which govern the material world, with the so called laws which govern the lower animals, are merely laws by a metaphor. And the so called laws which govern or determine the Deity are clearly in the same predicament. If his actions were governed or determined by laws imperative and proper, he would be in a state of dependence on another and superior being. When we say that the actions of the Deity are governed or determined by laws, we mean that they conform to intentions which the Deity himself has conceived, and which he pursues or observes with inflexible steadiness or constancy. To mix these figurative laws with laws imperative and proper, is to obscure, and not to elucidate, the nature or essence of the latter.—The beginning of the passage is worthy of the sequel. We are told that laws are the necessary relations which flow from the nature of things. But what, I would crave, are relations? What, I would also crave, is the nature of things? And how do the necessary relations which flow from the nature of things differ from those relations which originate in other sources? The terms of the definition are incomparably more obscure than the term which it affects to expound.

If you read the disquisition in Blackstone on the nature of laws in general, or the fustian description of law in Hooker’s Ecclesiastical Polity, you will find the same confusion of laws imperative and proper with laws which are merely such by a glaring perversion of the term. The cases of this confusion 212are, indeed, so numerous, that they would fill a considerable volume.

Physical or natural sanctions.

From the confusion of laws metaphorical with laws imperative and proper, I turn to a mistake, somewhat similar, which, I presume to think, has been committed by Mr. Bentham.

Sanctions proper and improper are of three capital classes: —the sanctions properly so called which are annexed to the laws of God: the sanctions properly so called which are annexed to positive laws: the sanctions properly so called, and the sanctions closely analogous to sanctions properly so called, which respectively enforce compliance with positive moral rules. But to sanction religious, legal, and moral, this great philosopher and jurist adds a class of sanctions which he styles physical or natural.

When he styles these sanctions physical, he does not intend to intimate that they are distinguished from other sanctions by the mode wherein they operate: he does not intend to intimate that these are the only sanctions which affect the suffering parties through physical or material means. Any sanction of any class may reach the suffering party through means of that description. If a man were smitten with blindness by the immediate appointment of the Deity, and in consequence of a sin he had committed against the Divine law, he would suffer a religious sanction through his physical or bodily organs. The thief who is hanged or imprisoned by virtue of a judicial command, suffers a legal sanction through physical or material means. If a man of the class of gentlemen violates the law of honour, and happens to be shot in a duel arising from his moral delinquency, he suffers a moral sanction in a physical or material form.

The meaning annexed by Mr. Bentham to the expression ‘physical sanction,’ may, I believe, be rendered in the following manner.—A physical sanction is an evil brought upon the suffering party by an act or omission of his own. But, though it is brought upon the sufferer by an act or omission of his own, it is not brought upon the sufferer through any Divine law, or through any positive law, or rule of positive morality. For example: If your house be destroyed by fire through your neglecting to put out a light, you bring upon yourself, by your negligent omission, a physical or natural sanction: supposing, I mean, that your omission is not to be deemed a sin, and that the consequent destruction of your house is not to be deemed a punishment inflicted by the hand of the Deity. In short, 213though physical sanction is an evil falling on a rational being, and brought on a rational being by an act or omission of his own, it is neither brought on the sufferer through a law imperative and proper, nor through an analogous law set or imposed by opinion. In case I borrowed the just, though tautological language of Locke, I should describe a physical sanction in some such terms as the following. ‘It is an evil naturally produced by the conduct whereon it is consequent: and, being naturally produced by the conduct whereon it is consequent, it reaches the suffering party without the intervention of a law.’

Such physical or natural evils are related by the following analogy to sanctions properly so called. 1. When they are actually suffered, they are suffered by rational beings through acts or omissions of their own. 2. Before they are actually suffered, or whilst they exist in prospect, they affect the wills or desires of the parties obnoxious to them as sanctions properly so called affect the wills of the obliged. The parties are urged to the acts which may avert the evils from their heads, or the parties are deterred from the acts which may bring the evils upon them.

But in spite of the specious analogy at which I have now pointed, I dislike, for various reasons, the application of the term sanction to these physical or natural evils. Of those reasons I will briefly mention the following.—1. Although these evils are suffered by intelligent rational beings, and by intelligent rational beings through acts or omissions of their own, they are not suffered as consequences of their not complying with desires of intelligent rational beings. The acts or omissions whereon these evils are consequent, can hardly be likened to breaches of duties, or to violations of imperative laws. The analogy borne by these evils to sanctions properly so called, is nearly as remote as the analogy borne by laws metaphorical to laws imperative and proper. 2. By the term sanction, as it is now restricted, the evils enforcing compliance with laws imperative and proper, or with the closely analogous laws which opinion sets or imposes, are distinguished from other evils briefly and commodiously. If the term were commonly extended to these physical or natural evils, this advantage would be lost. The term would then comprehend every possible evil which a man may bring upon himself by his own voluntary conduct. The term would then comprehend every contingent evil which can work on the will or desires as a motive to action or forbearance.

In strictness, declaratory laws, laws repealing laws, and laws of imperfect obligation (in the sense of the Roman jurists), ought to be classed respectively with laws metaphorical or figurative, and rules of positive morality.

214 I close my disquisitions on figurative laws, and on those metaphorical sanctions which Mr. Bentham denominates physical, with the following connected remark.

Declaratory laws, laws repealing laws, and laws of imperfect obligation (in the sense of the Roman jurists), are merely analogous to laws in the proper acceptation of the term. Like laws imperative and proper, declaratory laws, laws repealing laws, and laws of imperfect obligation (in the sense of the Roman jurists), are signs of pleasure or desire proceeding from law-makers. A law of imperfect obligation (in the sense of the Roman jurists) is also allied to an imperative law by the following point of resemblance. Like a law imperative and proper, it is offered as a norma, or guide of conduct, although it is not armed with a legal or political sanction.

Declaratory laws, and laws repealing laws, ought in strictness to be classed with laws metaphorical or figurative: for the analogy by which they are related to laws imperative and proper is extremely slender or remote. Laws of imperfect obligation (in the sense of the Roman jurists) are laws set or imposed by the opinions of the law-makers, and ought in strictness to be classed with rules of positive morality. But though laws of these three species are merely analogous to laws in the proper acceptation of the term, they are closely connected with positive laws, and are appropriate subjects of jurisprudence. Consequently I treat them as improper laws of anomalous or eccentric sorts, and exclude them from the classes of laws to which in strictness they belong.

[beginning of lecture 6]