John Grier Hibben - The Relation of Ethics To Jurisprudence

The Relation of Ethics to Jurisprudence
Author(s): John Grier Hibben

Source: International Journal of Ethics, Vol. 4, No. 2 (Jan., 1894), pp. 133-160
Published by: The University of Chicago Press
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INTERNATIONAL
JOURNAL
OF ETHICS.
JANUARY,
THE RELATION
1894.
OF ETHICS TO JURISPRUDENCE.
THE complete separationof these two sciences, Ethics and

has been insisted upon, not only with marked
Jurisprudence,
emphasis,but with some asperityas well, and in many quarters with undisguised contemptfor,all who may thinkotherwise. Thus, Jevonsinsiststhat" therecan be no such things
in social mattersas abstract rights,absolute principles,indefeasiblelaws, unalterablerules,or anythingof an eternalor
inflexiblenature."* And in a similar vein Matthew Arnold
professesthe followingethical creed: " If it is sound English doctrinethat all rights are created by law, and are based
on expediency,and are alterableas the public advantage may
require, certainlythat orthodox doctrine is mine."t And
Pollock insiststhat " he does not see that a jurist is bound to
be a moral philosopher more than other men."t Such opinions are the popular ones, and the tide has set against any
attemptto join togetherwhat man has put asunder. Still,we
are not satisfiedthat these writershave spoken the last word
upon this subject. While they have emphasized important
" The State in Relation to Labor," p. 6.
Rightand Wrong,"p. 44.
and Ethics,"p. 23.
I Pollock," Essays on Jurisprudence
IO
IV.-No. 2
f Lilly, "On
VOL.

I34
InternationalYournal of Ethics.
distinctionsin insisting upon the complete separateness of

the two spheres of ethics and jurisprudence,they have, nevertheless,failed to penetratethe deep thingsof these sciences.
We would thereforeally ourselves with the protestantsin
this regard.
We will attempt,in the firstplace, to define accuratelythe
proper spheres of the two sciences; secondly,to prove that
the genesis of law discloses natural limitationsof sovereign
power which are ethical in their character; thirdly,to indicate the indirectand impalpable influenceof existingethical
sentimentin creating, annulling, and reforminglaw; and,
finally,to examine several contributionsto the solution of
this problemfromthe sphere of internationallaw.
The necessityof strictdefinitionshould be recognized by
the moral as well as the political philosopher. No advantage
accrues to eitherby a confusedblendingof radical differences.
Each must preserveits autonomy. Ethics is not a branchof
jurisprudence,nor is jurisprudencea branch of ethics. By
each science conserves its own force
an exact differentiation,
and dignity. And, therefore,ethics influencesjurisprudence
more by bringing to it life and light from without, than
by holding an artificialand false position within the jural
sphere.
In order that we may not be charged with begging the
question at issue in the definitionof our terms,we will take
the definitionsgiven by Holland, and which are framedin the
spiritof Austin,and the general school of analytical jurists.
He definesjurisprudence as " the formalscience of positive
law, i.e., the general rules of external action, enforcedby a
sovereignauthority."* And ethics he definesas " the science
of those laws of conduct self-recognizedas right,and selfimposed by the freechoice of the individual."t
Here the antithesisis betweena standard imposed by the
sovereign power and an ideal recognizedby the individual;
also, between the outer act which is the contentof the one,
and the inner motive which is the exponent of the other.
* Holland, "Jurisprudence,"
p. 37.
t Ibid., p. 25.

The Relation of Ethics to Jurisprudence.
I35
The one depends upon objective authorityfor its enforcement,the other seeks as its guarantee a subjective support.
In the spiritof these distinctions,we findlegal right sharply
distinguishedfrom moral right,-the formeris a claim enforcedby sovereign power; the latteris a claim urged upon
another or upon society at large, but incapable of external
sanction. Moreover,rightboth legal and moral has always
expressed or implied its correlatives,-legal obligation and
moral obligation. Three parties are necessaryto the existence of a legal right,-the state,the one in whom the right
conferredby the state inheres,and the one subject to the
correlativeobligation which the state imposes. But as regards a moral right,two parties alone are concerned; the
thirdparty,the state,is no longer present,and thereforethe
moral right cannot be enforced.* Its forcelies alone in the
inherentreasonablenessof its demands,and has weightonly
as it appeals to the conscience of one whose moral judgment
recognizesits urgencyas an evidentduty. Inasmuch as the
one possessing a moral claim is powerless to enforceit, the
emphasis is placed upon the moral duty ratherthan upon the
moral right,so thatactually not two persons,but one alone is
to be consideredin this matter;-and he is the one who recognizes the obligation,forhe alone can compel action.
In commentingupon the above distinctionsand definitions,
we observe that law and moralityboth referconduct to a
standard,-the one imposed by the sovereignpower,the other
self-recognizedas categorical imperativeto the individual
will. While the two standards are often distinct,there are
cases where they are identical. Let us examine the possible
combinationsthat may arise withthe variable factors,-legally
right,legally wrong,morallyright,and morallywrong.
The two spheres of morality and legality may have no
single point of contact. Some acts may have legal significance, but have no moral value one way or the other. The
well-knownlaw of the road is entirelydevoid of any moral
bearing whatsoever. And, on the other hand, I may be
* On thispoint,see Merkel's"JuristischeEncyclopaedie,"p. 43.

I36
Internationaljournal of Ethics.
obligated morallyto relieve certain suffering

or distress,and
yet the deed in question may be wholly without the sphere
of law.
We have also the possible cases of conflict,where an action
morallyright may be legally wrong,or morally wrong and
yet legally right. This is seen in the manyhistoricalinstances
where resistanceto law has arisenforconscience'sake, e.g.,the
acts in England regarding
refusalto submitto the uniformity
worship.
We have instancesalso of coincidencewhere an act is both
legally and morally right,or else both legally and morally
wrong. " Thou shalt do no murder"is law of the land, and
law imposed by the individualconscience. One and the same
act, or one and the same person,regarded as author of the
act, presents a point in which legal and moral lines meet.
From one pointof view it has ethicalrelations; fromanotherit
is common ground. Many writers
has jural. Here, therefore,
have been so intentupon emphasizingthe differences
between
the external and internal aspects of the two sciences, that
they overlook this importantfact,that in some cases the same
standardwhen viewed as objectivelyposited is law, but when
regarded as subjectivelymanifestis the moral ideal. Thus
the ancient distinctionbetweenmala prohibitaand malaperse
likewise overlooks the case where the two may be exactly
coincident. Bentham,in speaking of the relationof private
ethics to the art of legislation, says: "The persons whose
happiness these two ought to have in view,as also the persons
whose conduct they ought to be occupied in directing,are
preciselythe same. The veryacts they ought to be conversant about are even in a great measure the same." *
Moreover, to emphasize the spheres of ethics and jurisprudence as distinctand separate does not necessitate the
negation of all possible relations obtaining between them.
Although one science may not be subsumed under the other
as species and genus, it does not followthat,while each preserves its proper autonomy,they may not radicallyinfluence
* " Principles of Morals and Legislation," vol. ii., p. 239.


one another; even as the separationof churchand state does
not diminishbut ratherincreases the play of mutuallyhelpful
influenceswhich must ever radiate froma true churchand a
just state. The spirit of the age insists upon an exact differentiationof all spheres of investigation.* It is true that
specialization is the inspirationof the Zeitgeist,but there is
anotherspiritof investigationwhich is not antagonisticto the
former,but supplementsit. It is the spiritwhich seeks unity
amidst diversity,
which explores the depthsto discoverfundamentalresemblancescorrespondingto surfacedifferences,
and
which seeks an ultimate synthesisamidst the scatteredelementsof a rigorousanalysis. It is the spiritwhich strives,as
Tennyson puts it, "to reach the law withinthe law." Sucha
spiritcannot failto discovera more intimaterelationbetween
ethics and jurisprudence. As Bluntschlisays:
"We recognize in the scientificdistinctionof Poli/ikand Etkik a greatand
lasting advance which for the firsttime rendersan independentscience of
Polilik possible . . . However, Machiavelli,to whomthe meritof thisdistinction shall not be disputed,has throughthe indiscreetexaggerationof thisdistinction,even to the completeseparationof Politik and Ethik, weakened the
power of the good among mankind,and has greatlystimulatedthe tyranny
of
princes,and radicallydestroyedall politicalPraxis." t
The two sciences have to do with a wonderfullycomplex

net-workof vital social forces,where minute separationis of
the natureof dissection. The dead elementsmaybe correctly
estimatedand classified,but such a process does not present
for observation a living organism. This is the case with
jurisprudenceregarded merely as a systemizationof existent
laws, and which takes no note of the mode of theirbecoming,
or of the possibilitiesof theirfuturemodificationand growth.
Moreover,the applicationof law to concretecases must be
wholly within the. sphere of positive law. Ethics has no
place in its interpretation. What is writtenis written,and
must be so adjudged. Positive law applied to attested facts
* On thispoint,see Mackenzie's " Introductionto Social Philosophy,"p. 41.
t " Lehre vom modernenStaaten," vol. iii., p. 7. What Bluntschlisays of
Politik would applywithequal forceto jurisprudence.

138
gives the sole methodof practical jurisprudence. No ethical

factors are to be considered as affectingthe results. But,
while we may not interpolateethical factorswhich will only
complicatethe problem,still,it is possible that ethical forces
may modifythe original data of the problem. While law
rules supremein its own sphere,neverthelessits own nature
may be susceptibleto external influences,some of which are
ethical. In early days the patriarch'swill was law. Yet the
sphere in which'thatwill was operativewas not so completely
separate,so preciselydefinedas distinctfromall otherspheres
of activityand interest,that no external forcesever touched
the patriarch'shead and heart,and so indirectlymodifiedfor
better or for worse the weal of his little realm. Likewise
the sovereign,whether individualor collective,is supremeas
positorand executorof law; yet,nevertheless,thatsovereignty
is not a forceoperatingin a closed sphere,incapable of being
influencedby the manifoldethico-socialforceswhichfindplay
about it.
as do Austin and his school,
Again, to announce arbitrarily,
that rightmeans always a legal right,at once begs the question at issue. -It leads to the false inferencethat all right
is originallylegal right,and that any other as a moral right
must be derived fromit; or it ignores the existence of any
such thingas a moral right. When Hobbes says that it is
nonsense to speak of a law as unjust,he is correctonly upon
the assumptionthat unjust is a term co-extensivein meaning
with illegal. Even Hobbes acknowledges that a law may be
pernicious,though not unjust. If right is always to mean a
legal right,though an arbitraryassumption,then it must be
adhered to consistently.*IHe is most inconsistentand illogical who tacitlyinfersa moral privilegefromthe possession of
a merelylegal right. This fallacyunderliesthe vast majority
of cases where questionable practicesin commercialrelations
exist, and where conduct withinthe pale of the law seems
to be the sole desideratum. Ethics as well as jurisprudence
entersa plea forclear and consistentusage of terms. There* See Green's "' PhilosophicalWorks," vol. ii., p. 339.

I39
fore,if right is to be regarded always as legal right,it is

illogical in the extreme to add a plus significationwhich
includes a moral right,or to ignore the moral rightby a tacit
reductionof the moral factorto zero.
Having these distinctionsand definitionsin mind,we pass
to the considerationof the derivationof law. The analytical
jurists hold that all law proceeds from sovereignty. Law,
withthem,is sovereign power enforcedby externalsanction.
Here they would cease all furtherinquiry. In their"juristic
as Von Ihering styles it,they discovera resultant
chemistry,"
element-sovereignty. But as long as any elementis capable
of a more ultimateanalysis,scientificmethod demands continued investigationuntila final analysis is reached. Their
position is true fromthe point of view of formallaw. It is
true for the lawyer,but it does not satisfythe political philosopher who is forced to subject sovereigntyto a closer examination. What is the warrantfor the supremacyassumed
by a part over the whole of a communityor state? Whence
did it arise? What is the guaranteeof its permanentsway?
Is the supremepower withoutlimitations? These and similar questions force themselves upon one who desires a complete account of the matter. The tendencyto cease all investigationof originsas soon as sovereigntyis reached may
be due, partly, to the excessive specialization of to-day,
already noted; or partlyon account of the disastrousfailure
of the French in their governmentalexperimentfoundedon
the doctrine of natural -rights,where " liberty,equality, and
fraternity"
were prostitutedto the cause of wrong rather
than right,and created license of evil ratherthan libertyto
realize the good. Such a historywould naturallydiscredit
all " natural right"doctrines. Or this tendencymay be due
in some measure to a growing philosophical distaste for all
a prior postulatesin seekingan ultimatebasis forlaw. Whatever the reasons,the tendencyis evident.
There is, however,an historical indicationof the felt need
of some basis forsovereignty,in the many attemptsto fortify
the bare concept of sovereigntyby some formof an original
social contract. All these attempts have failed, but they

140
International
of Ethics.
_7ournal
indicatea naturalstrivingto discovera solid foundationupon

which sovereigntymightstand. It is significantthat Hobbes
posits a social contractin behalf of absolutism,and Locke
urges the same in defenceof a liberal government,and Rousseau, in turn,refersto a social contract by which supreme
power is ultimatelyreferredto the general will. The latter
has worked its logical result-anarchy. That these widely
divergenttheoriesshould seek a furtherexplanationof sovereignty, indicates an instinctivelyfelt need in this regard.
soluAlthough these theories have not given a satisfactory
tion,being disproved theoreticallyby Hume and Burke, and
practicallyby the logic of history,still,it does not followthat
no solution is possible. The attemptsprove the need of a
solution; the failureindicatesthatthe solution lies in another
direction. It thereforeseems that the question raised as to
the furtheranalysis of sovereigntyis in the line of a natural,
and thereforescientific,methodof investigation.
In answer to this question, we insist that sovereigntyis.
limited in this respect, that it is not always the absolute
creator of law. As Lieber, in his "Political Ethics," says:
"The agents of the state may put a stamp on precious metal,
but they cannot create value." The existentmaterialwhich
receivesthe stampof law is largelycustom. It is irrelevantto
our discussion whetherthe sovereigndeclares directlycertain
customs to be law, or indirectly(" obliquely") recognizesjudicial decisionsbased on customto be law, accordingto Austin's
dictumthatwhateverthe sovereignpermitsis ipsofacto comforour purpose to note that laws are
manded. It is sufficient
oftendeclaratoryratherthancreative.* Bacon terselyexpresses
this thought: " Regula enimlegem,utacus nauticapolos indicat,
non statuit."t However, on the other hand, Bentham says
that " Governmentfulfilsits officeby creatingrights."t But
creating may mean the formingout of nothing,or the forming out of pre-existentmaterial. Benthamwould have great
* See Burke," PoperyLaws," Cap. III., I.
t " Aphorisms,"LXXXV.
4 " Bentham'sWorks," Bowring'sed., vol. i., p.
301.

I41
difficultyin proving his proposition if he takes the former

meaning; and ifhe takes the latter,the question is still raised
as to the natureof this material. The creationof rightsrefers
us back to certain materials. No one can escape the issue.
For our purpose the chief interestis this: have these materials out of which the right is created an ethical substratum? Some customs have no ethical significance,but
others have, being the expressionof the moral convictionsof
the community,tribe,family,or state. Savigny says:
" Positivelaw is derived in everycommunity
partlyfromprinciplescommon
to mankindand partlyfromthe operationof special agencies."*
Here Savigny recognizes a constantas well as a variable

factorin the genesis of law. The variable is the operationof
special agencies, as environment,
racial or tribal peculiarities,
in short,all that Montesquieu has emphasized as determining
forcesin the developmentof a state. The constantfactorwe
find in the principles common to mankind. If these principles, therefore,reveal ultimate,ethical elements,law at its
source has importantethicalrelations. ProfessorT. H. Green
affirms:
"The establishment
of obligationsby law or authoritativecustomand the
gradualrecognitionof moral duties have not been separate processes. They
have gone on togetherin the historyof man. The growthof the institutions
by
whichmorecompleteequalityof rightsis graduallysecuredto a wider range of
persons,and of thoseinterestsin the variousformsof social well-beingbywhich
will is moralized,have been relatedto each otheras the outer and innerside of
the same spiritualdevelopment."t
Mr. Freeman acknowledges fromthe historian'sstand-point

that "there is at present among civilized nations a general
agreementas to what is rightand wrong in the conduct of an
individualman."T
And Sohm, fromthe jurist's point of view, traces law to
an " ideal of justice which resides,in the firstinstance,in the
Savigny," PrivateInternationalLaw," p. 6.
t " PhilosophicalWorks," vol. ii., p. 552.
f PrincetonReview,New Series, vol. ii., pp. 642, 643.
*

142
communityof a people, and through it in the communityof

mankind at large, and the ultimatesource of which is belief
in divine justice." *
Assuming as proved the existence of ethical elements in
certain customs,the question suggests itself,How did these
ethical elements originate? They certainlydid not proceed
fromthatpart of man's naturewhich Mr. Fiske designatesas
his " brute inheritance." And yet many writerstake this as
the meaningof natural law, and they referto Ulpian's definition, "Jus natural est, quod natura oniia animalia docuit:
nam jus istud non humani generispropriumsed oniuniu animalium."t ProfessorHuxley had such a definitionin mind,
no doubt, in his article on " Natural Rights and Political
Rights,"T where he insists that it is as reasonable to ascribe
a natural right to the ferocityof a tiger as to the so-called
rightsof man. But the rightsof man are not deduced from
the tigerpart of his nature,nor fromthe considerationof man
merelyas a self-seekingindividualin the struggle forexistence. We must consider the facts not only of the animal
parts of his nature. The ethical
but of the ethico-intellectual
judgments are the deliverances of that part of his nature
man fromthe tigerand the ape. Regardwhich differentiate
ing him merelyas a more highly organized and more completely equipped animal,his rights are coextensive with his
strengthand his shrewdness. Such an ultra individualism
would lead to anarchy. And such a conclusion Huxley
reaches logically,but his premisesare at fault. Man's nature
is social as well as individual; egoistic appetences are correlated withaltruistic. "Man is by nature a political animal."
Aristotle'sdoctrine? puts the doctrineof a rightemergingout
of natureupon its properbasis. Man, as a memberof society,
naturallyand not artificiallyrelated,necessitates the rise of
correlated rights and duties. Ubi societas,jus est. It is
* Sohm, " Institutesof Roman Law," p. 14.
t " Just.Inst.," i., 2.
4 The NineteenthCentury,February,i890.
c"Pol.," i. 2, paragraph9.

I43
impossible to thinkof man isolated fromhis fellows. He is

essentially a gregarious animal. Unus homo, u//llus
ihomo.
The association of man withman necessitatesa recognitionof
mutual rightsand obligations,bearing and forbearing,
which
are naturalrestrictionsupon individualself-seeking.* Where
this recognitionis not fullydeveloped, it is seen in the germ.
When the innate principlesof equity seem to be contradicted
by prevalentpractices,they may be still foundburied beneath
passion and appetite. They may be a forcethat is neutralized,
but neverthelessa force,potentialthough not actual.
It is generallyagreed that the beginningof the state is the
family. In the familythere naturallyarises a recognitionof
rights and obligations obtaining between parent and child,
and between children of common parentage, and even between more distantly related members of a clan holding
allegiance to a common chief. The natural solidarityof
familylifewould give rise to a balance of egoistic and altruistic principleswhichwould affectthe manifoldrelationsof man
in the largerworld of the tribe,and of the state. Von Iheringt ridiculessuch a position,declaringthatwe mightas well
affirmthat nature had endowed the -soulof Adam with the
concept of a cooking-pot,or a ship, or a steam-engine,as with
the concept of right. There is, however, a vast difference
between that which is realized in the sphere of experience
and that which is the result of experience. The essential
point is this: whetherthe perfectedethical concept is derived
fromnon-ethicalelements. Von Ihering overlooks this distinction.
It would be well at this stage of our discussion to distinguish between a legal personality,so called, and a moral
personality. The formerphrase is used in a technical sense
given to it originallythroughRoman law. The legal person
is such by virtueof possessing certainlegal rights. It is not
necessarilyan individual; it may be a corporation,estate,etc.
But antecedentto the legal person,both in time and logical
* See ProfessorGreen," PhilosophicalWorks,"vol. ii., p. 353.
t " Der Zweck im Recht," ii., 112.

144
sequence, is the personalitywhich stands for all that man is

generically,and out of which rise both rightsand obligations.
Imagine all law to be annulled; this latterpersonalitywould
still remain. It is " this personalitywhich gives the capacity
for legal rights: it is the foundationfromwhich all abstract
formalrightarises."* This is Sterling'spositionin commenting upon Hegel's system.t If thereare rightsincidentto the
relationsof man as a memberof society, we should expect
some consensus of judgments among various races of peoples
of the world concerning these rights. The probabilityis
largelyagainst any correspondencein theirideas of rightand
wrong,unless therebe some one determining
cause producing
such correspondence. And we do findsubstantialagreement
regarding fundamentalprinciples,though codes of law differ
in their details. As in philology a common root indicates
common originof words,so in law commonprinciplesamong
widely different
nationalitiesindicateone source whence they
spring. Grote,in his " Ethical Fragments,"I says:
" The ethical sentimentis naturalin the sense of universal,inasmuchas the
foundationof it depends upon causes of universaloccurrencenot peculiar to
any one age, or to any one formof society,or to any one particularmode of
training. But it is not natural in the sense of simple, uncompounded,an
instinctive."
As regardsthis latterqualification,it seems to be a matterof

forour purpose at least, whetherthe ethical eleindifference,
ments in the common customs be "simple, uncompounded,
and instinctive,"as the Intuitionalistwould insist, or occasioned,as Groteholds,by " causes of universaloccurrence,and
not peculiarto any age, or to any one formof society,or to any
one particularmode of training." In eithercase we arriveat
a certain uniformityconcerning fundamentalethical princithe uniformity
ples; the one affirming
as priorto and shaping
experience,the other as the necessary result of experience.
* Sterling," Lectureson the Philosophyof Law," p. 28.
t ProfessorGreenis in fullaccordwiththisthought. " PhilosophicalWorks,"
ii., p. 352.
t Page 93.

145
A constantfactorindicatesa constantcause, a somewhat that

makes forrighteousness,an ultimateethical force,ever influencing and giving color to custom,and therebymodifyingthe
law which emerges fromcustom and declared by sovereign
power.
custom,as a source of law, has a certain uniIf,therefore,
formethical content,it will followthat whatever ethical unithere may be in the customs of various peoples, that
formity
will characterizethe laws whichspring
same ethicaluniformity
fromthese customs. And whateverethical worth a custom
may have possessed, the same worth is conservedwhen the
custom is declared to be law. Sovereigntymayadd sanction,
and clothe with dignity,and entail additional responsibility,
but it can never alter the natureof that which is essentially
rightor wrong. To say that a law is unjust,or, as Bentham
would insist,pernicious,is equivalent to affirmingthat the
pernicious elements in the pre-existing custom perdure in
their essential naturebeneath the guise of a sovereign sanction. Lotze remarks,concerningcontracts,that " they are, of
course, in our real life,placed under the protectionof laws,
but these laws could notbe called upon to protectthem unless
some worthymoral element lay within the contractsthemselves."*
We would now examine the doctrinesof the English and
Continental schools of jurisprudence for the purpose of
and concessions as well, connoting certain confirmations,
cerningthe propositionwhich we have advanced. The English school of analytical jurists, already referredto, insist
that law as it is limits the entire sphere and scope of jurisprudence. They are not concernedwith.law as it ought to
be. Jurisprudencewith them is a system of codification
simply,and not the science of generalprinciples. Their study
of law has nothing to do with origins; it is the analysis of
force,and the power to execute through sanctions. Nevertheless,they acknowledge that while the considerationof law
as it ought to be has no place in jurisprudence,still it may
* Lotze, " PracticalPhilosophy,"p. 88.

i46
International-7ournalof Ethics.
veryproperlybe relegatedto thescienceoflegislation. Austin,

in criticisingUlpian's definitionof law, says:
if it is anything,is the science of law; but Ulpian's definition
"Jurisprudence,
embracesnot onlylaw, but positivemorality,and even thetestto whichbothof
these are to be referred. It thereforeconfusesthe science of legislationand
deontology."*
Our purpose is to show that law in some one of its aspects,

at least, has ethical relations; thereforethe above concession
whether
is significant. It is to us a matterof indifference
the subjectof law as it ought to be is a topic of jurisprudence
or of the science of legislation. In either case it holds
an importantplace in the philosophical encyclopedia. Sir
Frederick Pollock, in his criticismof Professor Lorimer's
"Institutes of Law," acknowledges that these ethical questions may be admissible as belongingto a sort of borderland
or penumbra of legal science. So also Sir Henry Maine
agrees to the relevancyof these questions in the sphereof the
science of legislation,though not in jurisprudence. Indeed,
he says that next to a new history of law, what we most
require is a new philosophy of law.t Strangely enough,
interchanges
Jevons,whileinsistingupon the same distinction,
the meaningof the termslegislationand jurisprudence,saying,
" There may be a general science of ethics,of economics, of
jurisprudencewhich may assist us in the work of legislation."T
seems to be, not the relevancy
The point at issue, therefore,
of ethical considerations,but the proper place to which they
shall be referredin the classificationof the legal sciences.
A concession of anotherkind we notice in Austin's " Jurisprudence,"where he states that the general rules of morality
are laws improperlyso called, and yet that the divine commands revealed to man are laws properlyso called. But the
fact must not be ignored that many rules of moralitywhich
Austin disregards totallyare themselves coincidentwith the
commands of God; for God's commands may be known,
* Austin," Jurisprudence,"
vol. i., p. 223.
p. 342.
t " Early Institutions,"
t " The State in Relationto Labor," p. 9.

I47
not only by external revelation,but by revelation to man

throughthe veryconstitutionof his nature,and appearing in
the universaldictatesof conscience. For
"The truthin God's breast
Lies tracefortraceupon oursimpressed:
Though He so brightand we so dim,
We are made in His image to witnessHim."
Therefore,when Austin acknowledges the influenceof the

laws of God in giving shape to the laws of the state,he must
concede also a certain relation betweenthe laws of the state
and the rules of positive moralityso far forthas the latter
have universalrecognitionand worth.
Let us now examine brieflythe Continentalschool of Jurists
which divides into two, the philosophical and the historical.
There is a tendencytowardsa unionofthe two-as constituting
a trulyscientificmethod.* The formerschool ofjurisprudence
traces law to an ultimate a priori source. And the disciples
of this school avowedly profess a belief in some form of
NIaturrechtas the fundamentalbasis of law. They are the
special targetsforcriticismand ridicule. And yet they merit
a respectfulhearing. For the idea of Naturrechtis the central
idea of German jurisprudence. And the Germanphilosophy
cannot certainlybe charged witha superficialview of things.
This school holds a doctrinediametricallyopposed to that of
Austin and his followers. They seek an ultimate basis of
right prior to sovereignty. The stream must be traced to a
source above the point of positive law. Their methodis to
deduce the actual fromthe ideal, or,to quote fromTrendelenburg," to deduce the multiplicityof rightsfromthe self-same
fount,that theymay be exhibitedas governedby the unityof
an inherentcoordinating thought." We findin the " Introduction to the Metaphysic of Law" a statementof Kant's
that may be fittingly
opposed to the attemptto discreditall
a priori considerationsrelativeto the principlesof jurisprudence:
* See Bluntschli,"Theory of the State," p. 70.

I48
International_7ournalof Ethics.
" What the law in any instance is the jurisconsultcan easily tell, but
whetherit is RIGHT or JUST thatit should be so, is whathe wantsa criterion
to determine. But this criterioncan onlythen be foundwhen,abandoningall
a posterioriprinciples,he ascends to the sources of reason,and discoverson
what all legislationwhatsoevercan alone be based; in whichanalysispositive
law is doubtlessa greathelp and guide. But laws foundedsinglyon experience
are like the maskin the fable-beautifulbut hollow." *
The analyticalschool,however,has receivedits mostsearching criticismfromthe historical school, whose foundersare

Savigny and Puchta. Their main contention is that the
essence of law is not command,that forceis not its main nor
characteristicfeature. They insistthatlaw is a naturalgrowth,
being at its various stages the reflex of the common consciousness of the people, and thereforeits formationis similar
to that of language. Such a position emphaticallyindicates
a process anteriorto the command of sovereignty. It is the
working of silent forces,the slow but sure growing of the
power of truthand of justice in the thoughts and customs
of man. For, by a mere process of analysis through simple
abstraction,the English school reach the concept,sovereignty,
strippedof all its attributessave that of force,but in so doing
they lose sight of all other attributes. As Sir Henry Maine
says:
" They neglect the vast mass of influenceswhichwe maycall, forshortness,
shapes,limits,or forbidsthe actual directionof the
moral,and whichperpetually
forcesofsocietybyits sovereign.. . . Justas it is possibletoforgetthe existence
of frictionin nature,and the realityof othermotivesin societyexceptthe desire
to grow rich,so the pupil of Austinmaybe temptedto forgetthatthereis more
in actual sovereigntythan force, and more in laws which are commands of
sovereignsthancan be got out of themby merelyconsideringthemas regulated
A despotwitha disturbedbrainis the sole conceivable exampleof
force.
such sovereignty."
t
Moreover,therehave been a numberof organized political

societies in the historyof mankind,where forceas an element
of law has been entirelyabsent,or has been presentin a minimum degree. In the Irish courts in early days, the institu* Kant, " Metaphysicsof Ethics," Third Edition,p. 178.
pp. 359 and 36I.
t " Early Institutions,"

I49
tions which stood in the place ofjustice exercisedjurisdiction

only throughthe voluntarysubmissionof intendinglitigants.
Spencer,in " The Man versusThe State,"* instancesa number
of tribesgovernedby customs withoutany sanctionwhatever
to enforcethem. In Iceland, in the tenth and eleventh centuries, the so-called courts of law had no coercive power
whatever. Sir Henry Maine also citest several examples of
kingdoms in India ruled by a sovereign, and yet with no
appeal to force.
Again, Von IheringT acknowledges that while the essence
of law is force,yet it does not reach the higheststage in law
until the sovereign is obligated as well as the subject. This
he calls a bilateral obligation,the special subjugationof the
state power to the laws issued by it. This impliesa dominion
of rightand of law superiorto the command of the sovereign.
He gives us, too, the proper relation which should obtain
betweenrightand mightin the followingbeautifulsimile:
"Justice,which in one hand holds the scales in whichshe weighsthe right,
carriesin the otherthe swordwithwhichshe executes it. The swordwithout
the scales is bruteforce; the scales withoutthe sword is the impotenceof law.
and thestateof the law is perfectonly
The scales and the swordbelongtogether,
whenthe powerwithwhichjustice carriesthe swordis equalled by the skillwith
whichshe holds the scales." Q
our posiWith these authoritiesas allies, we would fortify

tion that the analyticalschool are but partial in theiranalysis
and process of abstraction,and are at variance with the facts
of historyas well as the deductions of a sound philosophy.
They overlook the factthat the " Thou shalt" of the sovereign
derives its peculiar force fromthe " I ought" in the heart of
the subject. The majoritykeep the law out of reverencefor
the law. They overlook the evident truthwhich Lowell expresses:
"Before man made us citizens,
GreatNaturemade us men."
* Pp. 90, 91.

+ " Der Zweck im Recht," p. 344.
II
VOL. IV.-No. 2
tj "Early Institutions,"chap. ii.

C
"The StruggleforLaw," p. 2.

I50
International-7ourna/of Ethics.
Is it possible to discoverany cause which would naturally

lead the English jurists to emphasize the command of sovereigntyas sole essence of law? There is in English history
an evident" Tendenz"towards unlimitedsovereignty,growing
out of the absolutismof the seventeenthand eighteenthcenturies. Cromwelland Puritanismwere a protestagainst this;
in America the assertionof "inalienable rights"as a declaration of independence was itselfa protest against this same
absolutism. And to-day the factthat writersof the analytical
school sneer at the bare suggestion of " inalienable rights,"is
more than a mere coincidence. It is the logic of history.
There is anotherlaw source, namely,equity. We wish to
prove that the very existence of such a concept as that of
equity,lyingside by side in thoughtwiththe concept of law,
implies a relationbetweenthe two which is of the natureof a
contrast. Law as it is is confrontedby law as it ought to be.
This indicates that therehas been a feltneed in the mindsof
men that the formershould be supplementedby the latter.
The two historical illustrationsof the influenceof equity
upon law are: the edicts of the Roman pretor and the decisions of the Court of Chanceryin England.
The special functionof the Roman proetorwas, originally,
to interpretthe existing law, the jus civile; the executive
powerwas also in his hands. Later, the officewas divided into
two separate functions,vested in two different
praetors,-the
peregrinus. The latterwas conprctorurbanusand the practor
cerned with the adjudication of cases in which foreignresidents in Rome, or foreignersin transit, were litigants. At
once a difficulty
arose: a foreignercould not claim legal rights
under Roman law, and a Roman could not be obligated by
foreignlaw. Two foreignerscould not be tried by the law
of the land of either,or by the Roman law. In all such cases
purelypositivelaw was not available; the parties in question
adhad no legal status. The prator peregrinus,therefore,
judged all such cases according to his own judgment as to the
factsand circumstancesat issue. Later, it became necessary
to have some system,some common principle of reference.
Accordingly,the prwtorssought to formulatethe principles

The Relation of Ethics to Jurissprudence.
I5'
of law which were found in the several codes in the various

foreignstates. Such an inductionexpressed the commoncontent of the customs of all the Italian States and otherforeign
powers. This gave a mass of legal principles founded upon
customsthatwere freedfromall local and temporalcoloring,
and, therefore,
presentingfeaturesof a universalcharacter.
Furthermore,through the influencelargely of the Stoic
philosophy,the Roman jurists maintainedthat such a system
of principlescommon to all tribes and peoples, namely,the
jus gentium,could have but one origin,viz., in the nature
and constitutionof man as a member of society. This
interpretation
of praetorianedicts gave thema dignitywhich
they had not beforepossessed, and they in turnmodifiedthe
interpretationand application of the jus civile,the law applicable to Roman citizensonly. Later, the praetorianedicts
attained a dignity and validity superior to the jus civil.
Finally, the two were absorbed into one systemof law and
codifiedunderJustinianin the CorpusJuris Civilis.
Sohm says:
"What was so entirelyunique in the achievementsof Roman law was simply
and solely its masterlytreatment
of the casuistryof privatelaw,-a treatment
which, while discoveringthe laws of a particularcase, revealed,at the same
time,boththe elementsof the case and the principlesinherent
in theseelements,
a treatment
which had solved the great problemhow to reconcile a free
equitable discretionwithfixedrules,the vindicationof the concreteindividual
intentionwiththe necessarysubjectionto its immutable,innatelaw." *
We see in this. quotation that Rome's contributionto the

historicaldevelopmentof law was somethingof an " immutable and innate" character,such as ProfessorJevons and Sir
Frederick Pollock so strenuouslyexclude fromthe domain of
law proper.
So, also, Morey,in his work on Roman law, declares that
the CorpusJuris Civiliswas the product of a universal system of rightsfoundedupon principlesof naturalequity.t
Moreover,the legislationof Justinianhas affectedthe juris* Sohm, " Institutesof Roman Law," p. 96.
t Morey," Roman Law," p. 163.

152
prudence of all subsequent time,for it was in this form,according to Savigny and Sir Henry Maine, that the Roman
law became the common law of Europe. The old fus gentium,formulatinguniversal and ultimaterights and obligations, influencesdirectlylaw as it is to-day. We findthis
ethical stream taking its rise in the heightsof historywhen
the world was young, minglingits currentswith another historical stream,that of jurisprudence,whose flowis across the
centuries.
Lotze has admirablyexpressed the same thought:
" It is to be regardedas an historicalbenefitthat the modernworld has inheritedthe Roman science of right. . . . It is not the single propositionabout
rights,but the science of rightswhichit produced(and especiallyin high perfectionwith respectto privatejustice) that has been of advantage for the discovery,even underwhollynew relationsof life,of a justice whichcorresponded
with the natureof these relationsthemselves,and which was independentof
temporarypresuppositionsof the then prevalent religious and social sentiments."*
In like mannerthere grew up in England a courtof equity,

where the lord chancellor,the " Keeper of the King's Conscience,"decided cases according to the broad principlesof an
equitable jurisprudence. By means of injunctionsthe ordinary
procedureof the commonlaw courtswas discontinuedwhen it
seemed to be workinginjustice,and a transferwas effectedto
the equity court. Like the pr.etorianedicts,the decisions of
systemthe lord chancellorsbecame moreand more definitely
law
statute
in
the
atized, and at lengthbecame incorporated
occurs
It
often
of England underthe JudicatureAct of I 873.in England, and America as well, that a given case has no
guiding precedent or relevant statute; then the judge's decision mustbe based upon his individualconceptionofjustice
and equity.t
It has been declared judicially that "justice, moral fitness,
and public conscience,when applied to a new subject,make
common law withoutprecedent."4 In Judge Rick's decision
* Lotze, " PracticalPhilosophy,"p. 130.
t See Holland, "Jurisprudence,"p. 57.
I Millar v. Taylor, 4 Burr, 2312, cited by Sir James Stephen in 3 " Hist.
CriminalLaw," p. 359.

153
in the Ann Arbor case, where the Lake Shore Railroad engineers and firemenrefusedto handle Ann Arbor freight,the
followingis reportedin the New York Tribune,April 4, i893:
" Let us apply the generalprinciplesof equity which are consistentwitheveryrule of naturallaw and justice to the facts
in the case."
From all this,we draw the followingconclusions: the existence of equity courts indicatesthat thereare certainclaims
of justice which are either opposed to existent law or upon
which the law does not touch. Also, the fact of decisions
based directlyupon rightand justice as generallyrecognized,
where there is no precedent,signifiesa directappeal to a universal law which certainlypossesses some ethical features.
And the fact of equity decisions being incorporated into
statute law itself,indicates a transferof inherentlyethical
principlesinto the body of positivelaw.
We come now to legislationas a source of law. We will
indicatetwo ways in which ethicsputs a check upon unlimited
legislation: where legislationviolates an innatesense of justice on the one hand, and, on the other,where it opposes a
legal sanction to duties which should be relegated to the
sphere of the individual conscience. The legislator'sstandpoint is naturallya utilitarianone, looking to the greatest
happiness of the greatestnumber. Yet, as Pollock acknowledges, "A public judgment of happiness, expediency, wellbeing, or whatever else we call it, is, in the natureof human
affairs,a rough thing at best." * It needs at all times the
controllinginfluenceof established principles. It may not
lightlyset aside rights that have been generallyrecognized
and felt to be innate. The sphere of rights acknowledged
by the state has been growingsteadilythroughoutall history.
The limits upon sovereign legislation are Teutonic in their
origin. As Montesquieu says: " The germs of parliamentary
constitutionsare to be found in the forestsof Germany."
This Teutonic spirithas ever opposed the inalienable rights
of personalityto the unlimitedsway of despoticpower. There
* Pollock, " Historyof the Science of Politics,"p. 4!.

I54
has also been a decided protestagainst paternal government,

and the police controlof duties which should naturallybe
leftto the freechoice of the individual. Ethics here entersa
plea for the inviolabilityof its distinctivesphere. Spencer
has valiantly championed this cause against Huxley. The
two representextremepositions,but there is a propermean
between them. A harmonious adjustmentwill ensue when
ethical considerationsare allowed at least a respectfulhearing
in mattersof legislation. Legislation is not to usurp the
functionsof morality,but merelyto renderpossible the conditionsunderwhich moralitymay flourish. Therefore,while
jus may not be the supremeend of the state,nor the end be
consideredas alone the legal guaranteeof individualfreedom,
still,these conditionsshall not be violated in pursuing as an
end public welfareor public safety.
We findthat law is extremelysensitiveto prevailingpublic
opinion. The historicalschool has emphasizedthis. A deadletterlaw is a law minusthis popular sentiment. This sentimentis not always ethical; but when it is, it is the mightiest
force that can move upon the face of society. No law can
survive the determinedprotestof an aroused public,for law,
as Savigny puts it,"has its roots in the common consciousness of a nation."* Von Ihering,in his " Struggle forLaw,"
calls attentionto the factthat progressin law is attainedby a
continual conflictbetweenpositivelaw and a feelingof right
(Rechtsgefiih1).tThe latteris ever urging law reform. But
whenever Von Ihering speaks of rights,he is scrupulously
carefulto qualifythe termby the adjective legal, always using
the phrase "legal rights." Yet legal is frequentlyused by
him in the sense of that which ought to be legal rather than
that which positivelaw declares. In one place he speaks of
the disastrousinfluencewhich " unjust laws" and " bad legal
exercise on the moral power of the nation. And
institutions"
he adds that in the "feeling of legal right"the nation possesses the most fruitfulsource of its strength. Now, it is
* Savigny," PrivateInternational
Law," p. 370.
t " StruggleforLaw," p. I I.

I55
impossible that thereshould be any antithesisbetween legal

rightand law. Hobbes will stand suretyforthe truthof this
statement. Von Ihering,therefore,must mean by legal right
that which oughtto be legal. It is a right,ideally conceived,
which law ought to recognize. This is equivalent to an
ethical forcestimulatinglegislation. This he acknowledges
in the closing paragraph of his work: " Ethics has to tell us
what is in harmony with and what contradictsthe idea of
law." * The idea of law is higherthan law. It was the idea
of law which incitedthe barons to demand the Magna Charta
at thehands of John. Though itsvarious clauses are foundin
earlierdecrees,yet as positivelaw theywere dead. To revive
them had the forceof creationanew. That which animated
the barons could not have been the dead laws, for they had
no life-givingforce,but the idea of law in which would be
comprehendedtheirinstinctively
feltrights. It was the idea
,thatthe dead law ought to be made alive. It was the idea of
law which stimulatedthe demand forthe Petitionof Rights
in i628, the Bill of Rights in i688, the Declaration of Independence in 1776, the Constitutionof the United States
in 1787, and the ReformBill of i832. Whether the idea of
vested rightswhich the sovereign had ignored,or the idea of
a natural rightnever beforeacknowledged by the sovereign,
it was still an idea, an idea, too, whose force was largely
ethical,and whose realizationwas due to the strengthof an
ethical sentimentdeep-rootedin the heart of humanity,which
neitherlords temporal nor lords spiritual,neithercrown nor
Parliament,could withstand.
Antigone's replyto Kreon is an appeal to this feeling of
rightas opposed to the tyrannyof the king:
" It was not Zeus who heraldedthesewords,
Nor Justice,helpmeetof the gods below.
'Twas theywho ratifiedthoseotherlaws,
And set theirrecordin thehumanheart.
Nor do I deem thyheraldingsso mighty
That thou,a mortalman, couldsttrampleon
The unwritten
and unchanginglaws of Heaven.
* " StruggleforLaw," p.
129.

I56
Internationaijournal of Ethics.
They are not of to-dayor yesterday,
But everlive, and no one knowstheirbirth-tide.
These, forthe dread of any humananger,
I was notmindedto annul,and so
thatheaven exacts."*
Incurthepunishment
We come now to the final portion of this discussion,the

relationof ethicsto internationallaw. Internationallaw has
been called the "vanishing point of jurisprudence." That
which is true in mathematical relations may obtain here,
namely, that in limitingcases there are revealed important
facts which in approaching the limits escape observation.
The point of view of internationallaw presents law without
any sanctionwhatever. The partiesare all sovereign. There
is no superior,and thereforeno positivelaw is possible. The
appeal in all controversymust be to generally recognized
principlesof justice and equity.
The historyof internationallaw shows its origin in Roman
law. A part is derived from treaties and precedents; but
over and above this is a considerable remaindercalled by
Vattel the " necessarylaw of nations." This correspondsto
thelus gentiumof Roman law.
The Greek staterecognizedcertainmutualobligations,tand
the Romans adhered-to certainformulaein declaringwar, as
indicated in theirjus feciale; and during the Middle Ages
the papacy at times exercised internationalauthority; also
arbitrator;
the Holy Roman Emperorappeared as international
and certainrulesregardinginternationaltrade existedin maritimecodes,as the" Consolato del Mare,"and thelaws ofOleron,
of Wisbuy,and of the Hanseatic Towns. Nevertheless,international law received its systematizedformoriginallyin the
work of Grotius. And Grotiushimselfwas versed in Roman
law and imbued with its spirit. The chief idea of Roman
law in his writings,and of the publicistsafterhim,was that of
thejus gentium. While the Romans had not conceived of the
jus gentiumas applyingto the relation between independent
* " Antigone,"V., 448-458. Translationby Dr. Donaldson.
t See Morey," Roman Law," pp. 207, 208.

The Relation of Ethics to Jurisprudence;
I57
states,it was neverthelessso interpretedby all early writers

on internationallaw.
Internationallaw relativeto treatiesalso was foundedlargely
upon the Roman law of contracts,which were derivedlargely
fromthejus gentium,and were liberallyinterpretedaccording
to the principlesof national equity. We findthereforethat
internationallaw is largely derived fromthe jus gentiumof
Roman law, which in turn expressed the common sentiment of mankind in referenceto the principles of justice
and right.
Also, where there are no treatyrightsand no precedents,
disputesbetweennationsare oftenarbitratedby appeal to the
principlesof nationalequity. This was urged by Mr. Carter,
the United States counsel beforethe Behring Sea Commission at Paris,and in oppositionto the propositionof England's
counsel, Sir Charles Russell, who insisted that international
law is forall practicalpurposes a code, and ethics and equity
have nothingto do with it.
The common ideas of equity and justice have been applied
in recent years to the control and governing power of an
in which were found 42,608,000 people in
immenseterritory,
i885, namely,thegovernmentofthe Congo Free State. This
had its rise in the Berlin Conferenceof i885. The African
InternationalAssociation had obtained throughtreatieswith
four hundred and fifty
independentAfrican chiefs rights of
sovereignty. This ceded sovereign power rules over a large
complex whole composed of small sovereign principalities.
The right to make any such cession of sovereigntyis confirmedby the opinions of Sir Francis Twiss, of England, and
ProfessorArntz, the Belgian publicist. The International
AfricanAssociation was firstrecognizedas a governmentby
the United States on April i0, i884. And in the Berlin
Conferenceof i884-85 it received formalrecognitionas the
Congo Free State fromall the European powers.* A nation
was thus born in a day. It came into existence not by conquest, nor hereditaryright,but by the sufferanceof the great
* Stanley's" Congo," vol. ii., p. 380.

i58
powers of the world; or,as it was put by one of the presiding

officersof the Conference,"The new state owes its birth to
the generousaspirationsand enlightenedinitiativeof a Prince
(i. e., King of the Belgians) respectedthroughoutEurope. It
has been devoted from its cradle to the practice of every
liberty."*
At the Conference,the avowed policy of the new-born
governmentwas indicated as that of the free exercise of all
rights of all peoples throughoutthe length and breadth of
that territory. Africans, Germans, English, and Belgians
wereput upon a footingof equality. Commercialintercourse,
rightsof water-way,state protectionof propertyand person,
were placed upon the broad basis of justice and equity. We
behold a nationwithouta history,withoutprecedents,without
traditions,its laws ready-made,and these laws of such a nature
that they met with the approval of the great powers of the
world,because they representedthat which was common to
arising
all these several governments. In cases of difficulties
betweenthe powers regarding Congo matters,theyagreed to
appeal to the InternationalCongo Commission,which is substantiallyan InternationalCourt of Arbitration. Moreover,
the Congo State seeks to establish a higher standard of
individualconduct,the abolition of the slave-tradein Africa,
the decrease of intemperance,etc. It is a state dedicated to
the noble task of developing an ideal citizenship. It is a
unique instance in history. It indicates how thoroughly
ethical ideas have permeated public policy. It is an index of
the common consciousness of nationsregardingthe claims of
justice. One hundred years ago such an undertakingwould
have been impossible. The time has come in the historyof
mankindwhen it is generallyrecognizedthat a state possesses
certain moral responsibilities. There is a civic as well as an
individualconscience. Napoleon could not say to-day," With
the armies of France at my back, I shall be always in the
right." The prophecyof the Grand Duke of Weimar concerning Napoleon's empire is more consonant with inter* Stanley's" Congo," vol. ii., p. 423.

I59
national sentiment:" It is unjust; it cannot last." Nor could

Charles Augustus of Sweden to-day declare, as he did when
he broke the truceof Roskild, " There is always just cause of
war as soon as there is found a realm incapable of resisting."
There has been a marked ethical progress in international
relations. A national altruism has been developed, to this
extentat least, that the claims of anothernationare regarded
with due consideration whenever founded upon truth and
justice. As in private ethicsa healthyaltruismis corrective
of a falseegoism, so nationalaltruismshould supplementand
check a governmentalpolicy of short-sightedegoism. Interand concessions,has
nationallaw, withits commonrestrictions
at least partlyrealized such an ideal, and it in turn has influencedthe spiritof all law. Law is becoming more akin to
equity. Punishmentis becoming more humane. It has become reformatory
as well as penal, in which conception the
state has in view an enlarged ethical end,not only the greater
good of society,but also the realization of good instead of
evil in the criminalas well. Courts of arbitrationare settling
internationaldisputes rather than the arbitramentof war.
Might is no longer synonymouswith right. There is a proand
gressivemovementin all law, national and international,
the progressis along ethical lines,and it is towardsthe recognition of a solidarityof mankind,towards that reign of law
which is justice and which is peace. Afterall, Burke's fancy
of an ideal state may not be merelya passing dream,but a
factmanifoldlyrealized:
"The stateought not to be consideredas nothingbetterthana partnership
agreementin a tradeof pepperand coffee,calico or tobacco,to be takenup for
a littletemporary
interest,and to be dissolved by the fancyof the parties. It
is to be looked on withotherreverence,because it is not a partnership
in things
subservientonly to the gross animal existenceof a temporaryand perishable
nature. It is a partnershipin all science,a partnershipin all art,a partnership
in everyvirtueand in all perfection. As the ends of such a partnership
cannot
it becomesa partnership
be obtainedin manygenerations,
not onlybetweenthose
who are living,butbetweenthosewho are living,thosewho are dead, and those
who are to be born. Each contractof each particularstateis but a clause in the
great primevalcontractof eternalsociety,linking the lower with the higher
natures,connectingthe visibleand theinvisibleworldaccordingto a fixedcom-

i6o
International7ournal of Ethics.
pact sanctionedby the inviolable oath which holds all physical and all moral
natureseach in theirappointedplace." *
JOHN GRIER
PRINCETONCOLLEGE.
MORAL
SCIENCE
AND
THE
MORAL
HIBBEN.
LIFE.t
WHAT is the relation between Ethics and Morals? This

is a question which Ethical Societies are naturallyled to ask
themselves. When a societyis describedas an Ethical Society,
or as a Society forEthical Culture,does this mean that such
a society intends to study the Science of Ethics, 'or does it
mean ratherthat it seeks to advance the moral life? Or does
it mean both these things? Are these two things naturally
connected,or are they not? This is an importantquestion.
DifferentEthical Societies seem to be answeringit in different
ways; and, unless,-someagreementis come to with regard to
it, theremay be a split in the ethical movement.
I suppose an Ethical Societywould mostnaturallybe understood to mean a society forthe study of ethical science; and
which some of the English
this seems to be the interpretation
Societies have put upon the term. On the other hand, the
American Societies for Ethical Culture appear to be much
more distinctlypracticalin theiraims. They seek to improve
men's practice much more than to advance their theories.
This aim would seem to be more naturallyexpressed by the
term" moral" than by the term" ethical;" unless the Greek
word is understoodsimplyas expressinga wider conception
of moral life than the Latin one suggests-as including the
larger social relationsas well as the more purelyindividual
aspects of morality. However this may be, it seems clear
that thereare,prima face, two distinctconceptionsof the aim
of an ethical society; and what I wish now to ask is-How
* Edmund Burke, "Reflections on the Revolution in France." Clarendon
Press,Select Works,editedby Payne,vol. ii., pp. II3, I14.
t Read beforethe Ethical Congressand Conventionof Ethical Societies at
Chicago, Octoberi, i893.


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The Relation of Ethics to Jurisprudence

Author(s): John Grier Hibben

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THE complete separationof these two sciences, Ethics and

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distinctionsin insisting upon the complete separateness of

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The Relation of Ethics to Jurisprudence.

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obligated morallyto relieve certain suffering

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The Relation of Ethics to Jurisprudence.

The two sciences have to do with a wonderfullycomplex

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gives the sole methodof practical jurisprudence. No ethical

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The Relation of Ethics to Jurisprudence.

fore,if right is to be regarded always as legal right,it is

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indicatea naturalstrivingto discovera solid foundationupon

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The Relation of Ethics to Jurisprudence.

difficultyin proving his proposition if he takes the former

Here Savigny recognizes a constantas well as a variable

Mr. Freeman acknowledges fromthe historian'sstand-point

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communityof a people, and through it in the communityof

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The Relation of Ethics to Jurisprudence.

impossible to thinkof man isolated fromhis fellows. He is

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sequence, is the personalitywhich stands for all that man is

As regardsthis latterqualification,it seems to be a matterof

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The Relation of Ethics to Jurisprudence.

A constantfactorindicatesa constantcause, a somewhat that

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veryproperlybe relegatedto thescienceoflegislation. Austin,

Our purpose is to show that law in some one of its aspects,

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The Relation of Ethics to Jurisprudence.

not only by external revelation,but by revelation to man

Therefore,when Austin acknowledges the influenceof the

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The analyticalschool,however,has receivedits mostsearching criticismfromthe historical school, whose foundersare

Moreover,therehave been a numberof organized political

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The Relation of Ethics to Jurisprudence.

tions which stood in the place ofjustice exercisedjurisdiction

our posiWith these authoritiesas allies, we would fortify

* Pp. 90, 91.

tj "Early Institutions,"chap. ii.

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Is it possible to discoverany cause which would naturally

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The Relation of Ethics to Jurissprudence.

of law which were found in the several codes in the various

We see in this. quotation that Rome's contributionto the

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In like mannerthere grew up in England a courtof equity,

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The Relation of Ethics to Jurisprudence.

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