Front Page Titles (by Subject) [CHAPTER III.]: [PRELIMINARY DISTINCTION OF POSITIVE LAWS INTO TWO CLASSES; AND THE RELATION OF THESE TO POLITICAL ECONOMY PROPER,—OR TO PART FIRST.] - Lectures on Political Economy, vol. 1
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[CHAPTER III.]: [PRELIMINARY DISTINCTION OF POSITIVE LAWS INTO TWO CLASSES; AND THE RELATION OF THESE TO POLITICAL ECONOMY PROPER,—OR TO PART FIRST.] - Dugald Stewart, Lectures on Political Economy, vol. 1 
Lectures on Political Economy. Now first published. Vol. I. To which is Prefixed, Part Third of the Outlines of Moral Philosophy, edited by Sir William Hamilton (Edinburgh, Thomas Constable, 1855).
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[PRELIMINARY DISTINCTION OF POSITIVE LAWS INTO TWO CLASSES; AND THE RELATION OF THESE TO POLITICAL ECONOMY PROPER,—OR TO PART FIRST.]
The President De Goguet, in his very learned and valuable work On the Origin of Laws, Arts, and Sciences, [1758,] lays much stress, among other fundamental principles, upon a distinction between two different classes or orders of positive laws. The first comprehends those which are, or at least which ought to be, common to all the different kinds of political society. The second, those which are peculiar to a society which has made some progress in Agriculture, in Commerce, and in the more refined arts of life.
To the former of these classes he refers “the laws which sanction the right of property;” “the laws which settle the formalities of marriage;” and “the laws which regulate the punishment of crimes;” to which he adds, “the laws establishing public worship,”—an institution which, in one shape or other, has had a place in all civilized nations. This class of laws (he observes) may be regarded as essential to the very existence of political society, however various may be the forms which the laws may assume in different instances.
Under the second class of positive laws, Goguet arranges “the laws which regulate the common transactions of civil life, and the particular interests of the different members of the community.” Such are the laws concerning inheritances, successions, sales, and contracts;—“Laws,” says Goguet, “which must necessarily vary according to the climate, genius, and particular circumstances of different nations.”
In the course of the following disquisitions, I shall have occasion to illustrate some of the causes which produce a diversity in the municipal institutions of different countries; and at the same time to investigate those general principles which ought to be common to them all. It will afterwards appear, that even in the second class of positive laws, there are certain principles which are never departed from, without injustice and inexpediency: And, indeed, one great object which I have in view in this course, is to ascertain what these principles are. This, I conceive, to be the proper aim of Political Economy, in the extensive sense in which I employ that expression.
With respect to the first class of positive laws, their nature has been so long understood, and their authority so long recognised among all civilized nations, that they do not appear to form a proper object of philosophical discussion: and a very few years ago I should certainly not have thought of referring to them in this place. In the late rage, however, of political innovation, those fundamental principles which it has been the aim of all wise legislators, both ancient and modern, to consecrate in the opinions of their fellow-citizens, have not escaped the indiscriminate fury of some reformers; and, in various philosophical theories an attempt has been made to expose them to general reprobation and ridicule. I hope, therefore, it will not be considered as altogether superfluous, if I employ one or two lectures (before engaging in any particular discussion) in reviewing some subjects of a more general description. I propose at present to confine myself to two of these, the laws relating to the contract of marriage, and the laws sanctioning and regulating the right of property;—institutions, which (together with the established solemnities of public worship) are justly considered by Goguet as the great pillars of the social system. The last of these articles I shall pass over in this course, as being more immediately connected with some of the doctrines of Ethics.*
[* ] [See Philosophy of the Active and Moral Powers, Vol. II. pp. 260-273. Works, Vol. VII.]