Page:Gaii institutionum iuris civilis commentarii quattuor, or, Elements of Roman law by Gaius (Poste, Third Edition, 1890, gaiiinstitution00gaiu).djvu/28

2 himself to unfolding the import of some of the pivot terms and most pervading conceptions; and we shall find most of the definitions we require already elaborated for us in the writings of Austin, to whose valuable but unfortunately unfinished Lectures of Jurisprudence I am indebted for many of the definitions and divisions that will be employed in this introduction.

A few definitions will suffice. The words which denote the instruments and materials of legislation and the subject-matter of Jurisprudence are Law, Sanction, Title, Right, Obligation. The definitions of these five terms may, indeed, be regarded as a single definition, for the things denoted by these five words are merely the same thing looked at from different sides; at least they are correlative ideas, indissolubly connected parts of the same indivisible whole. The definitions of these terms which we proceed to give their definitions, it is to be observed, as used in jurisprudence, that is, in the exposition not of natural or moral laws but of positive or political laws, and are accordingly unconnected with the hypothesis of any particular school of Ethical speculation.

A Law is a command; that is to say, it is the signification by a lawgiver to a person obnoxious to evil of the lawgiver's wish that such person should do or forbear to do some act, with the intimation of an evil that will be inflicted in case the wish be disregarded.

Points to be noted here are the author and the subject of law. Every law is set by a sovereign person or a sovereign body of persons to a member or members of the independent political society wherein that person or body is sovereign or supreme: it is set by a monarch or sovereign number to a person or persons in a state of subjection to its author. A Sovereign is a determinate human superior, who received habitual obedience or submission from the bulk of a given society, and is not in the habit of yielding obedience to a like superior.

A Sanction is the evil annexed to the command of the lawgiver.

Obligation or duty is the burden imposed by the command of the lawgiver on a person obnoxious to the evil annexed to the command.

Right is the capacity of exacting by the power of the sovereign certain acts or forbearances; or, it is the capacity of the person benefited by a doing or forbearance commanded by the lawgiver to enforce that performance or forbearance from the person to