The Kantian Ethics: Metaphysics of Morals, The Critique of Practical Reason & Perpetual Peace. Immanuel Kant
is usually regarded as the founder, and Savigny (1778-1861) as the chief representative of the Historical School. Hugo, Lehrbuch des Naturrechts als einer Philosophie des positiven Rechts, 1799, 3 Auf. 1820. Frederich Carl von Savigny, Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft, 1814; System des heutigen Römischen Rechts, 1840. (See Guthrie's translation of Savigny, Treatise on the Conflict of Laws, with an excellent Preface. T. & T. Clark.)
31. The Historical School, as Ahrens shows, must be carried back so as to include such thinkers as Cujas, the great French Jurist of the 16th century, who called the History of Right his 'hameçon d'or;' Montesquieu (1689-1755), whose well-known book, L'Esprit des Lois (1748), ran through twenty-two editions in a few years; and the Neapolitan Vico (1688-1744), the founder of the 'New Science' of History. Vico is only now becoming properly appreciated. See Professor's Flint's able and instructive 'Vico' in Blackwood's Philosophical Classics. 'In his work, De universi juris uno principio et fine (1820), Vico divides the whole Science of Right into three parts: (1) the Philosophy of Right, (2) the History of Right, and (3) the Art of applying the Philosophy to facts. He distinguishes profoundly in Laws the spirit or will of the legislator (mens legis) and the reason of the law (ratio legis), which consists in the accordance of a law with historical facts and with the eternal principles of the True and Good' (Ahrens). The contemporary Historical School does not yet occupy so philosophical a position.
32. Sir Henry Sumner Maine, the most eminent English representative of the Historical School, continues to regard 'the philosophy founded on the hypothesis of a state of nature' as 'still the greatest antagonist of the Historical Method' (Ancient Law, pp. 90, 91); but this is evidently said in disregard of the transformation of Rousseau's theory by Kant, and the contributions to the application of the Historical Method by Hegel and his school, in whose principle the historic evolution is an essential element. Sir H. S. Maine's own contributions cannot be too highly recommended for their thoroughness and suggestiveness. He has gathered much of his original and pregnant matter from direct acquaintance with India, where, as is the case with the forms of nature, the whole genesis and stratification of the forms of Society are presented livingly to view. (Ancient Law, 1861, 7th ed. 1880. Village Communities in the East and West, 4th ed. 1881. Early History of Institutions, 1874.)
33. Extremes meet in the moral indifference of the universal naturalism of the ultra-historical School and the abstract absolute rationalism of Spinoza. It was Grotius who first clearly distinguished between positive fact and rational idea in the sphere of Right, and thus originated the movement of modern 'jural' speculation. For evidence of the statement in the text, see Bentham's Works, Buckle's History of Civilisation, Mill on Liberty, and especially Puchta's Encyclopädie, introductory to his Cursus der Institutionen, 6 Auf. 1865. The standpoint of the Historical School has been thoroughly reviewed by Stahl, i. 570-90; Ahrens, i. 51-61; and Röder, i. 266-279.
34. 'Ueber den Charakter und die Aufgaben unserer Zeit in Beziehung auf Staat und Staatswissenschaft,' Giess. 1832. Zwölf Bücher vom Staate, 1839. See Rosenkranz's Geschichte der Kant'schen Philosophie, p. 268.
35. This remark especially applies to the running fire of criticism in Von Kirchmann's recent Erläuterungen zu Kant's Metaphysik der Sitten, 1882. It is a matter of regret that such criticisms cannot be here dealt with in detail. Kant has himself clearly indicated the position stated above, as at p. 54, infra.—The depth and subtlety of Kant's method, so far transcending the common modes of juridical thinking in England, are inseparable from the system, but he has himself given the sufficient reason for their appearance in it (infra, p. 116). Without entering in detail upon the point, the translator may remark with regard to one conspicuous, yet irremoveable blot, that he homologates the unanimous disapprobation of subsequent jurists, and would only refer to Dr. Hutchison Stirling's drastic castigation of it in his Lectures, p. 51. But of this and other difficulties in so original and originative a work can only be said in the meantime:
'Sunt delicta tamen, quibus ignovisse velimus.'
And every reader and student should be ready to apply the Horatian rule here too:
'Verum ubi plura intent . . . non ego paucis
Offendar maculis, quas aut incuria fudit
Aut humana parum cavit natura.'
36. Fragment on Government, 1776. Essay on Political Tactics, 1791. Principles of Morals and Legislation, 1780. Traités de Legislation, 1802.
37. Province of Jurisprudence determined, or Philosophy of Positive Law, 1832. Lectures on Jurisprudence, edited by his Widow. Austin (1790-1859) has been greatly overestimated as a Jurist by his friends and followers. The affectionate tributes of his widow may be borne with, but it is more extraordinary to find Professor Sheldon Amos characterizing him as 'the true founder of the Science of Law' (S. Amos, The Science of Law, p. 4). Here is Austin's estimate of Kant's Science of Right: 'A treatise darkened by a philosophy which, I own, is my aversion, but abounding, I must needs admit, with traces of rare sagacity. He has seized a number of notions, complex and difficult in the extreme, with distinction and precision which are marvellous, considering the scantiness of his means. For of positive systems of law he had scarcely the slightest tincture; and the knowledge of the principles of jurisprudence, which he borrowed from other writers, was drawn, for the most part, from the muddiest sources; from books about the fustian which is styled the Law of Nature.' (Lectures, iii. 157.) And here is his account of the German Jurists generally: 'It is really lamentable that the instructive and admirable books which many of the German Jurists have certainly produced, should be rendered inaccessible, or extremely difficult of access, by the thick coat of obscuring jargon with which they have wantonly incrusted their necessarily difficult science' (ii. 405). Comment on this is superfluous. In the same breath a more condemnatory judgment is dealt out even to Sir W. Blackstone. So long as such statements passed as philosophical criticism there was no possibility for a genuine Philosophy of Law in England. Austin, notwithstanding his English reputation, is entirely ignored by the German Jurists. He seems to have known only enough of German to consult the more popular productions of the Historical School. Dr. Hutchison Stirling has dealt with Austin's commonplace Hedonism in a severe way, and yet not too severely, in his Lectures on the Philosophy of Law (sub fin.).
38. Utilitarianism has been the subject of incessant discussion in England down to its latest systematic exposition in Sidgwick's Methods of Ethics. On the Continent the system has also been carefully and ably reviewed by Th. Jouffroy (Cours de droit naturel, 1835), Ahrens (i. 48, but less fully in the later editions), I. H. Fichte (Die philosophischen Lehren von Recht, Staat und Sitte, 1850), De Wal (Prysverhandeling van het Natuurregt, 1833), and particularly by the Italian Jurists (Röder, i. 108).
39. Ancient Law, p. 118.
40. Much more may be justly claimed for Scotland than for England since the middle of the last century in regard to the cultivation of the Philosophy of Right. The Scottish School of Philosophy started on this side from Grotius and Thomasius. Gershom Carmichael edited Pufendorf with praiseworthy notes. Hutchison discussed the doctrine of Right with fulness and care in his System of Moral Philosophy (1755). Hume, in consistency with the method of his Intellectual Philosophy, derationalized the conceptions of Justice and Right, and resolved them into empirical products of public Utility (Treatise on Human Nature, 1739. Essays, 1742). Reid, leading the realistic reaction, examined this side of Hume's