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within it, and to reproduce the skeleton of its history; and even now, in the present great imperfection of the science, it is impossible for an intelligent person to read the laws of any nation without obtaining considerable insight into its life and conformation.
Now, the legislation of the first school of legislation is the last step in the formation of a nation. Till then it is not sufficiently consolidated; its elements are still too distinct and conflicting to permit us to consider the multitude of tribes which happen to inhabit any particular country, as any thing else but a fortuitous assemblage of human beings, whose feelings to each other are generally those of mutual hatred. The first legislators form the nation, and from that moment it begins its course of national progress. Now, it may be conceded at once, that the developments of no two nations have ever been exactly alike, and the chances are very great that they never will be; but the truth of the case is not that nations start as from a common point of departure along different routes, but they all traverse the same route, in a manner and with a result different in each instance; the difference being caused principally by the absence or weakness of any of those social elements which would all be in full strength in a nation of perfect development-in short, the differences in national developments are the differences resulting from arrested development.
The laws of every nation present the truest record of those differences in development. While historians inform us only of the names of the kings, the dates of their accession, the battles they waged, the courtiers they favoured, the crimes they committed; the statute book tells us when aristocracy was the dominant power, by portraying the maintenance of local distinctions and individual privileges, and the character of minute, though well intended, interference which then pervaded the whole legislation, as may be observed in the sumptuary laws of Rome from the time of the Twelve Tables, in the republics of modern Italy, especially Venice, and in our country from the time of the conquest till that of Elizabeth : the statute book again tells us when monarchy has
overcome the aristocracy out of which it has grown, by portraying the increased centralization and equality of the laws; so the rudiments of commerce, passed by perhaps in scorn by the historian, appear in the laws formed for its protection, and in them we trace the growth of that democratic element which, perhaps, afterwards obtains absolute power.
Thus, the legislation of the second school is the direct result of the conflicts of the social elements, and of the new forms and modes of living which the course of national progress produces, and it reflects and records them. One other characteristic belongs to it—the utter absence of science or method. The laws which are added, are added separately, upon the exigencies of the moment, to obviate special evils, or at the bidding of some triumphant faction. Magnificent, indeed, are some of the laws which are thus Aung, as it were, into the statute book-great and self-denying in their authors are the principles which, at a lavish expense of blood and treasure, are piece by piece fought for and established; but the whole of the legislation is patchwork, and all are not purpurei panni — the chaos becomes worse in proportion to the amount of social conflicts, and the liberty which is secured by them; while the affairs of daily life, becoming more intricate, require the legislature to enact, or the tribunals to declare, a continuous series of new regulations, improvised on each occasion to meet the sudden necessities arising from the new and complex transactions of life, and apt to repress the everincreasing doctrine of ill-doing.
Though each law, whether enacted by the legislature, or indirectly enacted by the tribunals, is probably the law best suited for the immediate state of circumstances which it is made to meet, there are yet two principal and obvious evils incident to this system-1, The law is made with too little reference to the rest of the laws of the country. 2, When once made there is very little facility for altering it, although, from the alteration of social circumstances, it has become inappropriate. Thus, the system of law becomes ful of regulations which jar with each other, and which, though once useful, are retained from the respect for the authority of settled laws, long after they have become useless and mischievous, I feel, however, relieved from the duty of further describing this school of legislation, for in England one may say, si exemplum quaeris circumspice.
It is of more use to observe the means by which the transition has been effected in other countries, from the second to the third school of legislation.
Those means have been the cultivation and application to the arts used by the legislator of the correlative sciences. Now, I submit for the consideration of the Society, that there are, in fact, two distinct arts and two distinct sciences. 1. The art of legislation, consisting in establishing the rights which ought to exist in the society on which the legislator operates, and in giving their due power to the social elements which are then present. 2. The science of legislation, whose function is to ascertain what are the rights which ought to be established, and how the due share of power is to be secured for the social elements, not devising a general scheme for all nations alike, but ascertaining in each instance the rights appropriate to the particular circumstances of the nation; the science of legislation being, in fact, dependent upon, and in one sense a branch of the science which investigates the course of national progress and the social phases through which nations pass, determining what are the pecu
, liar attributes and excellences of each stage, and what are the institutions and rights which naturally belong to and arise out of it—a science for which no better name has yet been suggested than the barbarous term sociology. 3. The art of enforcing justice, whose duty it is to provide the means by which the rights belonging to each social phase are to be protected, and the opposite wrongs repressed. 4. The science of jurisprudence, which does not employ itself with the investigation of what rights ought or ought not to exist, but investigates and determines the species of justice which exists consistently with, and ought to follow from, the rights established at any period by the legislature of any country, and studies to discover the most clear, precise, and certain methods in which that species of justice can be enunciated and enforced
The two arts have been, of course, exercised from the beginning of human society; the art of legislation proper being the peculiar function of the legislator. The art of enforcing justice is exercised partly by the legislator, and partly by the judicial order; and there has never yet existed a thoughtful and reflecting nation, whose philosophers have forborne the attempt to discover and cultivate the sciences which belong to these arts.
Notwithstanding the objections urged by Charles Comte (a) and others, I apprehend that one object which may be legitimately pursued by the student of the science of legislation is, to ascertain those principles of right which reason and experience combine in proving to be fit, and indeed necessary, for all forms of human society; while the science of jurisprudence may be equally employed in investigating how those principles ought to be protected and enforced, so that the two sciences together shall create an ideal form of society, governed only by the principles of natural justice-a model after which the system of laws in every nation ought to be framed. Some good result may follow from speculations of this description ; but in my view that result will be very small, and there is great danger that the whole study may degenerate into disquisitions on the constitution and laws of Utopia ; and while the science of legislation which Aristotle founded, and in which not one step was taken from his time till Vico and Montesquieu appeared, instead of being used to discover what rights ought to exist in each stage of national development, and in eaeh instance of development differently arrested, has been perverted to the investigation of the laws of ideal commonwealths; so the science of jurisprudence, whose duty it is to discover the principles according to which those rights ought to be protected and enforced, has been too much occupied by inquiries into natural law, in other words, the principles of law which apply to the protection and enforcement of the natural rights of mankind.
The science of jurisprudence has been, however, more fortunate than the science of legislation ; inasmuch as, in the
(a) Traité de Legislation, liv. i. c. r.
former, the inquiry into natural law has generally been ancillary to the study of the proper mode of enforcing the rights established in some individual country: in jurisprudence abstract law has been studied, not as a thing apart from present human affairs, but with a view to improve the laws of a specific nation, and therefore practical good has been achieved; while it is difficult to point to a single practical advantage which has yet resulted from the cultivation of the science of legislation.
Now, during the time when the legislation of a country has the characteristics of the second school, the science of jurisprudence arises, but has no practical application. It belongs to the group of sciences which become the inheritance of each nation at the age of its refinement, sciences which are then taken up by a new nation at the point where its predecessor left them; and, after being advanced a few stages further, are handed over to some newer and more vigorous nation, so that the science is steadily advanced though the nations who advance it fall away and perish. Jurisprudence was founded by the Stoics, and yet the Greeks never had a school of scientific
a legislation. Jurisprudence came to Rome with the other arts and sciences from Greece, and was cultivated by Cicero, Rutilius, Rufus, and the most brilliant orators of the Roman republic, while the legislation of Rome long remained a mass of unscientific patchwork-an accumulation of such laws as the Cornelian, the Pompeian, and the Julian added, without an attempt at scientific connection to the Laws of the Twelve Tables. In modern Italy, when the sciences of antiquity revived, jurisprudence came hand in hand with them. Dante was born five years after the death of Accursius ; Petrarch and Boccaccio were the contemporaries of Bartolus. The schools of Bologna and Padua, Milan, Pisa and Vicenza, when jurisprudence was the chief study, formed the principal institutions for the education of the noble youth of Italy; yet the legislation of the Italian Republics continued during the whole of their greatness to consist of a rude combination of Roman law, with the rules of the Consolato del Mare, and the special statutes enacted by each republic to meet special emergencies peculiar to it.