the State in his ultimate conception of Law, and he discards the idea that a Sanction makes any necessary part of it. The idea from which English Jurisprudence starts is, that Law is intended to restrain a refractory people. Hence the necessity for a Sovereign to impose it, and for physical force to ensure obedience to it. German Jurisprudence, on the other hand, starts from the idea that Law exists only to ensure the due liberty of the individual; from the customs of the individuals it originally springs, and as they obey it willingly, a Sanction is no essential feature in it, but merely an occasional necessity. This position may seem anomalous to those who compare the actual liberty enjoyed by the German with that enjoyed by the English citizen; but it must be remembered that we are now contrasting the abstract conceptions of different philosophers, and that these may not correspond exactly to the facts of life. There were special reasons which made Austin place the idea of sovereignty at the base of his theory of Law, in exactly the same way as there were special reasons which induced Savigny to prefer the idea of individual liberty. Austin was influenced very largely by the political writings of Hobbes, and Hobbes, with the spectacle of civil strife before his eyes, was anxious above all things to find somewhere a strong restraining power, even though he should incur the reproach of upholding despotism. Moreover, Austin wrote at a time when England was in need of vast legislative reforms, when there was no school of Jurisprudence which could take any share in the work,

and when full confidence was placed in the power and wisdom of Parliament as a legislative assembly. It is not wonderful, then, that he should have adopted Sovereignty as his ultimate idea, and have hoped to build on this a science of Jurisprudence sufficient to meet the wants of men. Savigny, on the other hand, wrote in an age which was longing to give expression to national union, and he took his stand upon the principle of nationality. Law was, in the first place, the outcome of the customs of a people sprung from the same stock and possessing the same feelings and ideas. They practised the same customs as naturally as they spoke the same language, and Law was at first merely the expression of this. Then, when this national unity found expression in the formation of the State, it was possible for the next step to be taken. The common will of the people is now expressed by Legislation. Finally, Science takes up the work when the complexity of affairs renders necessary a division of labour, and not only arranges and expresses the existing law, but in several ways it is influential in making new law also. Each of these systems is of course only an abstraction, and it is for us to consider which of them represents most nearly the facts of life, or which will have the best influence upon the future development of Law; it is not improbable, indeed, that each contains valuable elements of truth, and we may, perhaps, find some means of availing ourselves of these without becoming bound to the acceptance of either system in its entirety.

CHAPTER XII.

THE MODERN GERMAN SCHOOL OF JURISPRUDENCE.

slow

THE general distinction that is always apparent when we compare the ordinary German with the ordinary English Jurisprudence is, that the former leans towards an ideal view of Law, the latter to a strictly real view; in reading German works we see a system unfolded which would be perfect could it only be realised, while in English works we are continually reminded of the pace at which Law really follows after the wants of men. Thus to the German the only distinction between Law and Morality is, that the former springs from and supplements the latter; while to the Englishman the continual difference between the two in actual life leads him to characterise each by distinctive marks. It is true that even the German recognises the fact that this discrepancy exists; but he either says enigmatically, like Savigny, "that this implies no contradiction," or more intelligibly like Trendelenburg, that it is useful to hold to the idea of their proper relation on account of" the power of improvement and

1 System des heutigen Römischen Rechts, sec. 52. Most of the following extracts are taken from the French version.

rectification which it contains in itself." In this phrase, indeed, we have the key to the whole difference. In no case can our idea correspond absolutely to the facts of life; but the German chooses such an abstraction as shall tend gradually to improve the facts, the Englishman is contented if his abstraction correspond at least to some of the facts as they are. The former, we may say, chooses his ideal in the hope that the facts may come up to it, the latter resolves to make an approximation to existing facts, and is content to alter it as the facts change. Thus to the German, Law is a supplement to Morality, and does not necessarily imply the idea of Force; to the Englishman, Law is distinct from Morality, and bases its claims upon Force solely. In considering, then, the following views of German writers, it will be necessary to keep this distinction continually before us.

The point of divergence between what we have called the German and the English schools of Jurisprudence, is to be found in the fact that the former regards Law as a Rule, the latter regards it as a Command. This may seem strange to readers who have been accustomed only to Austin's analysis, but nothing can be clearer than the fact that this distinction does exist. I shall proceed, therefore, to consider the nature of the Jurisprudence which is developed from the former idea.

It must be remembered that German lawyers, basing their system so entirely on the Roman Law, have had their attention largely confined to private

1 Naturrecht, p. 93.

legal relations; hence they derive their notions of Law from the private Rights thence arising, rather than from the Duties which are imposed by the State. Thus Savigny starts from the idea of a Right as being a power of the individual. Within the limits of this power the will of the individual reigns, and reigns with the consent of all." But inasmuch as society consists of a number of such individuals, each endowed with a will of his own, it is necessary to draw a line round the province of activity of each, in order that the will of the individual in question may not pass outside this, or the wills of others intrude within it. Hence we have the metaphor by which Savigny illustrates the nature of Law.

The external world, that is to say the medium in which man exists, touches him at a thousand points of contact; but the most important are his relations with the beings who have the same nature and the same destiny as himself. In order that free creatures, thus placed in the presence of each other, may mutually aid and never impede each other in their development, it is necessary that an invisible line of demarcation should define the limits within which the existence and activity of each may find independence and security. The rule which fixes these limits and guarantees this independence is called Law.2

Law is thus compared to an invisible line of demarcation between the provinces of the wills of different individuals. The domain appertaining to each represents the collection of his Rights, and in this way the German distinguishes between the two meanings of the word Recht. This province in which the will of the individual reigns represents Recht in the subject

1

System, sec. 4.

2

Ibid. sec. 52.