with any prescribed rule"; nor merely that which is just (where however I cannot but think that he uses the word in a narrower sense than the id quod justum est spoken of above)—but "the subject-matter of other virtues as well as justice 28" In fact he appears implicitly to recognise, in rectum, all the subject-matter of that moral approbation to which I adverted in my philological investigation of the meaning of right".

The word moral is not used by even Grotius with much clearness or uniformity of meaning. In the qualitas moralis of a right the adjective does not appear to mean anything more than non-material or non-physicals. That explanation

will not suit the moral actions of the text. Elsewhere Grotius speaks of effects and operations as determining the nature of moral matters. And Puffendorf, probably with this last passage in view, defines moral actions to be voluntary human actions considered with the imputation of their consequences in ordinary life".

Thus much, I think, is clear-that Grotius meant by actus morales the voluntary conduct, or some part of the

27 See above, ch. 6, pp. 77, 81: also the definition of Hobbes at the end of the present chapter.

28 1. c. Diximus autem ad rectum obligans, non simpliciter ad justum, quia jus hac notione non ad solius justitiae qualem exposuimus sed et aliarum virtutum materiam pertinet. He goes on to mention a lax use of the word just in the general sense of virtuous, which has, I think, ceased in England, though un just still bears this meaning in French.

29 See above, ch. 6, pp. 81, 86.

30 See too the antithesis of Grotius, "in moralibus ut in naturalibus". De Jure, &c. 2. 1. 5. 1.

31 Ib. 1. 3. 11. 2. rerum moralium natura ex operationibus cognoscitur. 32 Puffendorf De Jure Naturae et Gentium 1. 5. 1. Sunt autem actiones morales actiones hominis voluntariae cum imputatione suorum effectuum in vita communi spectatae. As to the imputability (Puffendorf's imputativitas) of the ordinary (and therefore expectable) consequences of conduct, see my Analysis of Criminal Liability, p. 47.

voluntary conduct, of human agents able to take into account the consequences of their conduct. As to further limitation of the signification of moralis, I cannot find any express statement in Grotius, though the impression left by his few usages of the word coincides with the following conclusion, based upon an independent consideration of its classical meaning. Moralis is of course a translation of the Greek Okos. It is therefore a late word in Latin, and must be taken, in meaning, to be determined partly by that of the Greek, perhaps still more by that of mores in the times of Cicero or shortly preceding him. Then3, it would seem to me that mores meant a man's ways or customs, as determining his character and repute. If so, moralis points to a particular kind of general opinion, involving, as has been already said, the specific feeling of approbation or disapprobation. I believe I might particularise further and say that the mores entering into the ideas of moral and morality are such part of a man's voluntary conduct as is considered a subject of absolute praise or blame, i.e. praise or blame without conscious reference to any ulterior end. There, however, I must stop, as encroaching too much on the province of Ethics.

With the distinction, which Grotius goes on to make, of law into natural and voluntary, I am not at present concerned. But, as to his view of law in general, I would conclude by remarking: first, that it agrees exactly with the conclusions of philology in deducing Law from a prior re

33 Coined by Cicero, de Fato 1. 1.

34 I do not go back to earlier times. If mos is really derived from a root meaning to measure, it may from the first have signified the measure or standard of the man. In Plautus, however, the word mores generally means the qualities for which a man is liked or disliked.

35 See above, ch. 6, p. 86.

36 See Sidgwick's Methods of Ethics, Int. 1. § 4. Also Osiander on Grotius De Jure, &c. 1. 1. 9, actus...laudis atque vituperii...capaces, qui proprie moralitati substernuntur.

cognition of Right: second, that it does not necessarily include the idea of any determinate imposer, but is defined primarily by its practical results, i. e. as regulating human conduct.

37

Hobbes. Upon the extremely clear and able chapter "of Civil Laws" in Hobbes' Leviathan is really founded the greater part of Austin's criticism upon Blackstone, and his own definition, both of which will be considered presently. "Law in general", says Hobbes, "is not counsel but command; nor a command of any man to any man; but only of him whose command is addressed, to one formerly obliged to obey him. And, as for Civil Law, it addeth only the name of the person commanding, which is Persona Civitatis, the Person of the Commonwealth." He therefore thus defines Civil Law: "Civil Law is to every subject those rules which the Commonwealth hath commanded him, by word, writing or any other sufficient sign of the will, to make use of for the distinction of right and wrong; that is to say of what is contrary and what is not contrary to the rules". The "Commonwealth" is, in the following paragraph, for legislative purposes, identified with, or rather replaced by, its representative the "Sovereign, be it an assembly or one man".

In these views, practically followed by Puffendorf", we see at once the origin of that definition which I presume most students of jurisprudence would just now give as an answer to the question, What is law?

Austin. "Law," according to Austin, "is the aggregate of rules set by men as politically superior, or sovereign, to men as politically subject “o:

40"

37 Chap. 26. I have used the English edition of 1651.

38 Ib. p. 137.

39 De Jure Naturae et Gentium 1. 6. His law of nature is therefore, like Austin's, in its origin a law of God.

40 Austin 1. p. 89, &c. &c.

With the reasoning upon which this and other dicta, of the same author, are based, there is, if his postulates are borne in mind, no fault to be found. Nor can any one deny the great services rendered by Austin to Jurisprudence, in clearly marking off the province of that science, at once from all subjects which only resemble law by analogy, from all mere ideals of what law ought to be, and from all socalled accounts of law which depend on à priori assumptions. But, taken as Austin appears often to be taken, like a string of pellets or boluses of ultimate knowledge, I question whether this "simple and strict" sense, of law, can be considered satisfactory, either as the account of actual fact or as the enunciation of a desirable ideal. With the latter, indeed with the question what opinions it is expedient that a future generation should hold about law—I have not to deal, nor does Austin affect to do so.

I only propose to enquire what it is that people in general have understood and in particular do now understand by law, as a practical working reality. Of the early days preceding conscious definition I have already spoken. As to later and present time, the best lines that I can find, on which to base my enquiry, are those of Blackstone's second section in the Introduction to his Commentaries-a short essay once very highly esteemed, but now known to too many only through Austin's quotations and criticisms. I shall, therefore, in the remaining part of what I have to say on the definition of law, follow Blackstone, so far as I can in his own order, eliminating all objects which his definition includes, but which are not practically included under the ordinary acceptation of the word law, in order that I may determine, with some degree of accuracy, what that acceptation really covers.

CHAPTER IX.

DEFINITION: LAW AS A RULE OF HUMAN CONDUCT.

Blackstone. "The general signification of law", says Blackstone, "is a rule of action dictated by some superior being ...but laws, in their more confined sense, in which it is our present business to consider them, denote the rules, not of action in general, but of human action or conduct, &c.1"

To consider, first, the distinction to which our author himself calls attention; the word human is intended to exclude such objects, metaphorically termed laws, as the laws of motion, the law of gravitation, the law of storms, the laws of inanimate matter generally, and the laws which are said to govern the action of animals other than man. Order, or a comparatively uniform sequence, is generally considered to be the common phenomenon in all these cases, such phenomenon being however attributed, by different schools, to different

causes.

The notion of law governing the whole universe appears most definitely in the Stoic philosophy. It is not, I think, exactly that of the "laws" of modern science; the old philosophers rather attributing animation and reason to matter, than speaking of inanimate matter as obedient to a rule.

1 Blackstone Int. § 2, p. 39.

2 Zeno, Diogenes Laertius 7. 1. 136-148. Cicero de Nat. Deorum 1. c. 14: see also the passages quoted above, pp. 99, 100, notes 18-21.