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Besides these notions, those of indulgence, of facility, of charity, and of piety, appear also kindred to the group belonging to the conception of justice.

According to the just definitions of Grotius, indulgence is the willingness of one, who has the power to release another from some obligation with regard to a person, a thing, or an action, to remit such obligation, as far as this may be done without detriment to justice or to public utility; and facility is the readiness to renounce one's lawful claim against others, for the sake of peace or of humanity. Both these notions, accordingly, deviate from that of justice as well as from that of equity; they are not founded upon the principle of asserting uniformity, but upon that sentiment which, going beyond the effects of distributive justice, provides protection and succour for weakness, and not only allows full scope to the exertion of others, but supplements it by the surplus of its own. strength, and lays no claim to enlist it for purposes of community. Charity advances even further in the same direction; and if practised under the influence of such considerations of humanity as pass beyond the limits of mere public interest, it relates to the relief of private wants which are outside and do not concern the social interest, and cannot be attended to sufficiently in any other way; whereas, if it appears in the garb of a religious character, and as the fruit of devoutness and of awe of the superhuman, it is styled piety.

$176. This whole series of conditions to be realized, of inclinations and of virtues, has, therefore, its foundation in the sense of the necessity of satisfying human wants, that self-same sense which had led to the formation and organization of the spheres of society, the conditions of which relating to and dependent upon human action, are comprised in the law. The notion of law is, however, always more comprehensive than its concrete embodiment, and is connected not only with the existence of a community, but also with the conditions of its development, and even with such of its conditions as have not

yet fully assumed this character in the public consciousness, and the bearings of which upon the development of the community are a mere matter of guess, or with conditions which have casually figured as such in the past, but are not necessary conditions. To the extent that these conditions are not observed either instinctively or consciously by the individual, they present themselves as commands of a superior power. It is necessary, therefore, to distinguish between the different kinds of commands, to elucidate the origin and character of those which predominate at various phases of social development, and to ascertain, which of them are of a permanent nature, and which of a fleeting character, and thus to gather from the mass of notions mixed up with the idea of law, its common and enduring features.

Commands may, according to the source whence they appear to emanate, and to the means required for their assertion, be distinguished, either into injunctions derived from the Deity, or into commands of reason looked upon as the postulates of the human understanding, or into social desires, accepted as rules of social intercourse between men, or into commands of the state as declared by positive law. All of these at first appear to the human mind and to human experience as isolated regulations, relating to particular individuals and special cases and actions, but gradually they are conceived as permanent and proper rules or laws, relating to everybody, or, at least, to large groups of men, intended to govern general conduct, and subject to no change, nor bound to place, time or persons. For this reason, as soon as scientific thought develops, and the conviction of the uniformity and immutability of the order of nature, as of the universality of the connection between cause and effect, gains ground, other rules of a different kind are also viewed as running parallel to the laws of nature, as of like import, and as sharing in their attributes. The order of nature is conceived as the Divine will, and the laws of nature are

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identified with the manifestations of Divine intendment, and, later on, according to metaphysical views, the relations between the conceptions of the mind are assumed to run entirely parallel with those which are supposed necessarily to subsist between things in nature. Thus develops the law of reason and of nature, as the the idea of a sum of rules to be unconditionally asserted, and as coinciding, on the one hand, with the idea of the order established by Divine purpose itself, and, on the other, with that of a body of customs universally prevailing amongst men, of institutions of spontaneous growth to be met with everywhere, and even with the idea of instinct manifesting itself uniformly in man and in brute creatures alike. Hence arises the absolute ideal of law identified in every direction with other absolute ideals.

§ 177. In opposition to this onesided abstraction, however, which leads to the accentuation of the common characteristics of these ideas, and even to their assimilation, and which removes these ideas more and more from actual reality, and even places them into antagonism with the same, owing to this very necessity of avoiding such antagonism the divergence of these notions also begins to become apparent; in the first instance, upon the grounds of difference between the modes and means of sanction and assertion which assure the effect of the various commands in a different way. The obedience to Divine injunction is founded upon religious sentiment, resting, in the first instance, upon the dread of the punishing and avenging action of the Deity, and to this dread are subsequently added confidence in superhuman judgment and wisdom, and love of and attachment to the personification of final and absolute perfection. The unconditional sway of the commands of reason is justified by the internal logical force of ideas, by their being in harmony with general human sentiment, by the supposed possibility of avoiding contradictions by means of consistency of reasoning, and, finally, by the experience of the permanence of the order of nature, deemed to run quite parallel with the dialectical

operations of the mind, and to be even identical with them. The observation, again, of social customs, of the externals of mutual intercourse, and of ceremonials, is enforced by the approving or disapproving judgment of those with whom man comes into social contact; whilst the irresistible force of public power secures the common recognition of the rules of law of the state. Accordingly, since a more general authority, extending to the sphere of the other commands, too, is attributed to the order of nature and to the command of reason, and since the latter does not manifest itself as externally, concretely, and directly effective, but is taken into account in an indirect way, strictly with reference to theory, to philosophical and scientific conceptions, and to criticism,—the notions of religious regulations, of the rules of law, and of custom embracing ceremonial and propriety of conduct, divide and part company. Morality, however, detaching itself from the rest independently, as being of a more essential character, unites within itself all those qualities of the three kinds of laws above mentioned, which are conceived as rationally inevitable, and as important according to true conceptions of man. Morality thus becomes connected with conscience and with individual faith, and therefore figures as an ideal rule and standard purely internal, and identical in its nature with the nature of the ideal of law.

§ 178. The separation of the different spheres of these notions is, however, effected but gradually, and in such a manner that, whilst the province of each is recognized in part as peculiar to itself, there always remain elements common to all. Thus the rules of religion and those of law, although certain actions fall under respectively the one or the other, relate in common to certain other actions, in such a way, that state-coercion presents itself as a support and substitute of Divine coercion. In like manner certain groups of the Divine order and of ceremonial custom also coincide, and, on the other hand, Divine injunctions are conceived as bearing also upon human thought and purpose, whilst customs are, again,

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regarded as external forms, which are only of account owing to their traditional character. Law and custom, again, assimilate in part, by each ascribing a legal effect only to acts strictly ceremonious. On the other hand, the principle begins to assert itself that "plus valet id, quod agitur, quam quod dicitur," and the rules of law are founded rather upon the essence of the relations of activity, and not upon the accidental form in which they may present themselves, whilst custom appears as the expression of decency and social propriety. Custom, comprehending ceremonial regulations, formed under the influence of the everyday and continually recurring circumstances of social life, and being the sum of the agencies of social tradition most faithfully preserving its peculiarities, is the first to separate and become distinct, as such; and remains confined to some portion, or to some single class of the society, fostered by its sentiment and maintained by its opinion, even at a time when the frame of the society has already expanded, and has been in part remodelled. The religious rules are of a less exclusive character, but they are, nevertheless, closely connected with the original and central interest of the society with which they correspondingly developed. Hence, as the social principle and organism changes, and is replaced by another, and as their peculiar features are likewise in keeping only with those component elements within the novel society which still answer the former society, they cease to occupy a place amongst the general laws of the dominant society. (The rules of law, again, obtain an independent province of action of their own, as soon as the sphere of ordered intercourse extends beyond the circle of those who originally belonged to the independent society, and thus demands the conscious interference of the state. Coercion by the public power is in this case confined merely to the assertion of the law, or of what is recognized as the will of the state, although not, in point of fact, springing from the law of the state, but incidentally from either of those other two sources, which were in general already conceived as being of a different nature, and the currents. of which had by that time been diverted into other channels.