Neither the Oéμioтes nor the domas are generalisations got by some logical process out of individual decisions: nor are they the decisions themselves, as original sources. They are previously existing principles or rules, declared by the judge, who assigns or selects the right one*.

For the most primitive jurisdiction, however, of the most implicitly believed divine law, unless a belief in inspired judges be also maintained, it is clear that the ordinance of heaven must soon be replaced by the coμós or recognised ordinance of man: as the domboc or judge's book of model decisions is historically the work of kings and their councils. To the same category as the last clearly belong the Roman leges regiae, whatever false stories of national publication and formal enactment may have gathered round those venerable fragments, in a later time. The first meaning, in England, of the Danish law, appears to present little variety from that of dom, while its more extended application may have arisen from a less rigorous adherence to the proper signification of what was practically a foreign word. In point of original derivation, lagu came, as I have endeavoured to shew, nearer to the idea of custom than of ordinance (above, p. 68).

Hitherto, the previous setting and laying down of law, so far as it has been developed, has been primarily and properly for the judge's instruction alone. From the judge's hand-book to the statute proper is a step which varies according to the different constitutional developement of different countries: but which appears, as we should expect, always to involve the idea of publication, whether effective or not, which I have shewn to be expressed in the traditional character and true etymology of lex.

4 I cannot refer to all the previously alleged authorities on which the italicised words rest. See, however, in particular ch. 4, pp. 47, 49, notes 26, 35, and ch. 5, p. 69, note 41.

When this last stage, of statute law, has been reached, many of the old terms will still retain their ground but come gradually to be used in the sense of everything administered by the national courts; as jus, vóμos, recht and law. By their side grow up others, with no significance as to the matter to which they are applied, but expressing simply the fact or mode of enactment; as pioua, plebiscitum, senatus consultum, gesetz, asetnis, gerædnis, statute, ordinatio. The meanings of this last class may have a bearing upon particular constitutional law, but little or none upon the definition and origin of law generally.

Austin's Right and Law. Before proceeding to conscious or intended definitions of law, I may here add a few remarks suggested by the admissions made in the present and preceding chapters.

In recognising, as matter of historical fact, the intervention of some authority declaring that to be right which was only held such, before, by general opinion and approval, I am aware that I approach very near to Austin's judiciary or indirect legislation. Moreover, as to many rules of law and as to many individual or particular rights (and duties), I am quite willing to admit that they owe their origin and entire existence solely to direct and avowed legislation. Nay, in the case of others, for which I must, as against Austin, claim an existence which, if the thoughts recorded and still expressed in names go for anything, is prior to any idea of imposition or command, I agree that they do not come within the jurist's consideration until they are supported by some organised or semi-organised sanctions of human displeasure3.

It may therefore be asked why we should not accept at least Austin's definition of Right and Rights—as in fact

5 Below, pp. 150—154.

including almost exactly the Legal Right and Rights which I consider to be the province of the Jurist.

Some of the reasons which weigh strongly, with myself, against such acceptance may be stated here-the others fall rather under the subject of particular or individual rights.

In the first place, whether Right and Wrong are, as some believe, innate ideas-perhaps I should rather say, modes of thought essential and necessary to the human mind-or, as Austin holds, generalisations from a number of particulars, it seems clear that the original and subsisting acceptation of the words is not what Austin lays down.

In the second place, supposing Right and Wrong to be generalisations or abstractions, we yet must see that Rights and Wrongs, as understood either by Austin or by any one. else, are not those particulars from which Right and Wrong were abstracted or generalised. For it seems clearly established that the moral adjective right, and à fortiori whatever it was abstracted from, preceded the substantive a right.

If therefore we are to treat of practical matters in a practical way, there is nothing to gain, and much to lose, by running counter either to an accepted meaning or an established order of meanings.

With regard to law, the objections to Austin's definition of it, as a present or modern fact, will be stated hereafter; when we come to consider whether the objects which he excludes are not armed with sufficient practical sanctions to entitle them to the place and the consideration rightly enjoyed by law. Hitherto, I have been mainly occupied in shewing that the original conception of law, in several very important instances, by no means agrees with the fundamental part of his definition.

See pp. 78, 168-170, 184–186.

CHAPTER VIII.

DEFINITIONS OF LAW.

Unsatisfactory character of definitions. I pass now from early definitions of law, unconsciously made by nations, in the names which they have given it, to those conscious definitions which have been framed, at a far later period, by philosophers or lawyers. These are even less satisfactory than might, from the considerations above (p. 15) urged, have been expected. Very rarely has the definer of law made any attempt fully to express what would be understood, among his ordinary contemporaries, by the words which he explains. Many so-called definitions are mere descriptions or enumerations of the different subdivisions of law-a subject which will be treated hereafter, under that special heading. Some are the enunciations of a moral thesis, others-more valuable-of a political theory. The last-mentioned, if not extending to a full expression of the current national conception, may yet preserve for us some important point of national usage. In this class, for instance, I place the definition of lex, by Capito, cited above (p. 29)—a definition which, besides testifying to immemorial practice and so throwing light upon the original meaning of lex, appears to contain one important feature, not of lex only but of statute law in general (see pp. 38, 39, 92).

Chrysippus. The definitions to be found in the Digest, on the other hand, are mostly due rather to the philosophising than to the practical spirit. Such is the commencement of Chrysippus' treatise on law, which has been preserved to us by Marcianus, and has formed the foundation of many subsequent definitions. Here the philosopher of that "highest Stoic wisdom", as Marcianus calls it, takes for his text the well-known passage of Pindar', but interpolates notions of moral obligation, a moral standard, and the social nature of man, quite foreign to the "good old rule...that they should take who have the power, and they should keep who can". "Law (vópos) is the king", he tells us, "of all mortal and immortal affairs, which ought to be the chief, the ruler and the leader of the noble and the base, and thus the standard of what is just and unjust, the commander, to animals naturally social, of what they should do the forbidder of what they should not do?"

Demosthenes. There is, perhaps, a little trace of the practical politician in another quotation, by the same jurist,

1 Above, ch. 4, p. 54.

2 Marcianus (Aelius: wrote his Institutiones shortly after the death of Caracalla, 217 A.D.). Digest 1. 3. 2. Sed et philosophus summae Stoicae sapientiae, Chrysippus, sic incipit libro quem fecit περὶ νόμου· ὁ νόμος πάντων ἐστὶ βασιλεὶς θείων τε καὶ ἀνθρωπίνων πραγμάτων· δεῖ δὲ αὐτὸν προστάτην τε εἶναι τῶν καλῶν καὶ τῶν αἰσχρῶν καὶ ἄρχοντα καὶ ἡγεμόνα, καὶ κατὰ τοῦτο κανόνα τε είναι δικαίων καὶ ἀδίκων καὶ τῶν φύσει πολιτικῶν ζῴων προστακτικὸν μὲν ὧν ποιητέον ἀπαγορευτικὸν δὲ ὧν οὐ ποιητέον. This curious passage-apparently a cento-is certainly a perversion of Pindar's meaning. The substitution of θ. καὶ ἀ. πραγμάτων for the poet's personal θνατῶν καὶ ἀθανάτων is not of much moment. The word προστάτην must clearly, from ἄρχοντα καὶ ἡγεμόνα, be used in the old sense of chief or leader, and is therefore most probably quoted from some poet (it does not seem to be Pindaric) who may have meant κaŵ and aioxpwv, too, for masculine. Chrysippus, in his practical application—which is unmixed philosophy, e.g. kavŵv K.T.λ.—seems to make capital out of these words as indicating both men and deeds. φίσει πολιτικὸν Šov (aveρwπos) is, of course, from Aristotle Pol. 1. 2. 9. Whether it has an earlier source I do not know.