Austin, Lectures on Jurisprudence Binney, Horace, The Privilege of the Writ of Habeas Corpus, INTRODUCTORY CHAPTER. §1. THE systematic juridical writers among the Romans, whose works formed the basis of the compilations made by Justinian, separated the entire positive jurisprudence into two grand and opposed departments: the Public Law, and the Private Law (jus publicum, jus privatum). The Digest thus states the division: "Hujus studii [juris] duæ sunt positiones; publicum et privatum. Publicum jus est quod ad statum rei Romanæ spectat; privatum, quod ad singulorum utilitatem: sunt enim quædam publice utilia, quædam privatim." Most of the modern jurists of Europe make the same classification. Mr. John Austin, the profoundest writer on general jurisprudence which England has produced, rejects this division as useless and even perplexing. Before Austin, Blackstone, in his Commentaries, had suppressed this separation of departments, and had treated most of those matters which are generally ranged under the head of Public Law, as parts of the law pertaining to persons. There can be no doubt that Blackstone's method has the merit of simplicity when the object is to present either an outline, or a complete detailed statement, of the positive rules which make up the entire internal or municipal jurisprudence of a particular nation. But when it is designed to present simply some portion of this whole, the division made by the Roman jurists, and followed by a majority of the moderns, is not only convenient and natural but necessary. § 2. Assuming, therefore, the department of Public Law as opposed to that of Private Law, we inquire what portion of 1 Dig. Lib. 1, tit. 1, § 2. |