Pollock - First Book of Jurisprudence

8/8/2019 Pollock - First Book of Jurisprudence

1/403


2/403

From the Library ofProfessor David Mellinkoff

Who donated his collectionTO THEUCLA School of LawHugh & Hazel DarlingLaw Library

August 1 999

"Cleansed of words without reason, muchof the language of the law need not bePECULIAR AT ALL. AND BETTER FOR IT."

The Language of the LawBY David Mellinkoff


3/403


4/403

/ V


5/403


6/403


7/403

FIEST BOOK OF JURISPRUDENCE


8/403

MACMILLAN AND CO., LimitedLONDON BOMBAY CALCUTTA MADEASMELBOURNE

THK MACMILLAN COMPANYNEW YORK BOSTON CHICAGO

DALLAS SAN FRANCISCOTHE MACMILLAN CO. OF CANADA, Ltd.

TORONTO


9/403

KA FIRST BOOK Pt,

OFA3H

JURISPRUDENCEFOR STUDENTS OF THE COMMON LAW

Right Hon. Sir FREDERICK POLLOCK, Bart.BARIII.STKE-AT-LAW

D.C.L., HON. LL.D. EDIN., DUBLIN, HARVAUD AND CHRISTIANIALATK CORPUS CHRISTI PROFESSOR OF JURISPRUDENCE IN THE USIVERSITV OK OXFORDPAST FELLOW OF TRINITY COLLEOE, CAMBRIDGECORRESPONDENT OF THE INSTITUTE OF FRANCE

A.SSOCIATE MEMBER OF THE ROYAL ACADEMY OF BELGIUM

FOURTH EDITION

MACMILLAN AND CO., LIMITEDST. MARTIN'S STREET, LONDON

1918


10/403

COPYRIGHTFirst Edition, Mly 1896. Reprinted, November 1S96

Second Edition, 1904Third Edition, 1911FoMrt/i Edition, 1918


11/403

PREFACEThis book is not intended to lay out a generalsystem of tlie philosophy of law, nor to give aclassified view of the whole contents of any legalsystem, and it does not profess to compete with themany works which have aimed at one or both ofthose objects. It is addressed to readers who havelaid the foundation of a liberal education and arebeginning the special study of law. Such a readerfinds, in the new literature he has to master, anumber of leading conceptions and distinctionswhich are assumed to be familiar, and are so tolawyers, but which, for that very reason, are notoften expressly stated, still less often discussed,and hardly ever explained. He has not only todiscover for himself, often with nnich bewilder-ment, the actual content of legal terms, but torealise the legal point of view and the legal habitof mind. Law seems to the layman, at first sight,to make much of trifles and to disregard greater


12/403

VI FIRST BOOK OF JURISPRUDENCEmatters. Again, some speculative problems arecapable of giving much trouble in the actualpractice and administration of the law, while othersare seldom or never heard of in court ; and it ishard for the layman or the novice to distinguishthe two kinds. In this as in other sciences everyone must make his way through the stage ofconfusion and illusion in his own fashion. But,though it is his own work which no one else cando for him, it is possible for those who have passedbeyond that adventure to be ready with a helpinghand and a warning voice.

In the first part of this book I have tried to setforth, in language intelligible to scholars who arenot yet lawyers, so much of the general ideasunderlying legal discussions as appeared needfulfor the removal of the most pressing difficulties.Not much will be found about constitutional orcriminal law ; not because I underrate their actualimportance, but because they do not, as a rule, somuch require this kind of explanation, and theirexceptional problems, when they do occur, are toohard for novices, and are best left for a riper stage.Quotation and criticism of other modern writers'opinions have been, with rare exceptions, purposelyavoided as useless and distracting to those for


13/403

PREFACE vilwhom I mainly write. Any detailed acknowledg-ment of my obligations will therefore not beexpected. Among the authors of past generationsI owe most, so far as I can judge, to Savignyamong recent and living ones to Maine, Jhering,and my friend Mr. Justice Holmes of the SupremeCourt of the United States. Learned readers andadvanced students will easily see that the philo-sophy of the English or " analytical " school isnot mine ; nevertheless I have learned much fromHobbes, and hold acquaintance with his work atfirst hand indispensable for all English-speakingmen who give any serious consideration to thetheoretical part of either politics or law. Itmay be that I love Hobbes a little too well tobe perfectly just to his successors, who, to mythinking, have often got more praise than theydeserved for repeating Hobbes's ideas in clumsierand really less, exact words. But, as I am notundertaking a critical estimate, this is but a matterof personal taste, and of no importance to thereader.

While I have endeavoured to be as clear aspossible, I have not attempted to make funda-mental and difficult problems look easy. Thecheap facility that comes of gliding over hard


14/403

viii FIRST BOOK OF JURISPRUDENCEplaces can only be found a dear bargain in theend. I do not promise the reader that he will findthis book easy reading in every part. I do makebold to promise him that, if he reads it withattention, he will find several other books lessdifficult and more profitable. Sometimes I haveallowed myself to devote a few sentences or evena paragraph to readers who have to some extentmastered the language and methods of philosophy.This, I hope, will not be unwelcome to such as havetaken honour degrees in classics, especially in theOxford School of Literac Humaniores.

The second part of the book aims at an end notreally dissimilar in kind, but it is more practicaland more exclusively addressed to students of theCommon Law, the system according to whichjustice is administered in almost every part ofthe English-speaking world except Scotland andLouisiana. Like the Eoman law, that system isembodied in a special and technical literaturegoverned by its own authoritative conventions,accessible only through its own apparatus ofreference, and available for any practical purposeonly on condition of understanding its peculiarmethods. The use of law - books and theappreciation of legal authorities can be fully


15/403

PREFACE IXlearned only by assiduous practice ; but here,again, it has long seemed to me that somethingcan be done to lighten the first steps of thebeginner, and this is what 1 have tried to do. Nopractical art can really be taught ; one man canonly help another to learn ; but it is commonexperience that such help will often save a greatdeal of trouble. Certainly no man ever learnedto shoot by being lectured on the construction ofa rifle, and yet such lectures are a regular partof musketry instruction. So far as I know, theexperiment has never been made, in the case inhand, for the same purpose or in any very similarmanner, though different parts of the subject havebeen touched upon by several writers, both Englishand American, on legal studies and literature, andnotably by Kent. Possibly a connected account ofthe sources and authorities of English law, as theyhave come to be in modern practice, may be ofinterest to some of the Continental scholars, especi-ally Frenchmen, who of late years have broughtadmirable industry and intelligence to bear on ourmethods of conducting both political and judicialaffairs. But I have written, in the first place, foroui own learners of the Common Law on both sidesof the ocean, and my work stands to be judged by


16/403

X FIRST BOOK OF JURISPRUDENCEtlieir proof in using it. If they find it useful 1 shallbe well content, even more content than if I shouldperchance convince a mature philosopher or econo-mist that the science of law has some right toexist.

It will be seen that tlie two parts of the bookare to some extent independent of one anotherand any reader who so chooses can, witliout muchinconvenience, disregard the logical order of gener-ality and take the second part first. However thatmay be, the combination of the two in one volume,and the preference of English examples and illustra-tions in the first part, are intended as a protestagainst the habit of regarding "jurisprudence" assomething associated with a little knowledge of thelaws of every country but one's own.

In the second and third editions I have amplifieda few passages where further explanation seemeddesirable. The latter part of the book, being moreversed in current decisions and literature than theformer, has called for several new references and-otlier amendments due to lapse of time. Bothin making additions and in supplying omissions Ihave tried to avoid the temptation of crossing theboundary between illustration of principles andexposition of technical rules.


17/403

PREFACE XIIn the present reprint (1918) the process of minor

amendment has been continued down to date. Thereare no substantive alterations, but some observationson rules of pleading and evidence have been addedat page 79.

F. P.


18/403


19/403

CONTENTSPART I

SOME GENERAL LEGAL NOTIONS

CHAPTER IThe Nature and Meaning of Law

Difficulties of DefinitionRules of Civic Conduct .Legal Profession not necessaryCustom ....Moral and Natural LawLaw of NationsExtended Senses of "Law"Sanctions of Law .Law as "Will of the State"Definition ....

37810121317222729

CHArXER IIJustice according to Laav

Conditions necessary for Existence of LawJusticeOrder as Fundamental Principle

xiii

303234


20/403

XIV FIRST BOOK OF JURISPRUDENCESingular Sovereign ActsNormal Marks of Law :Generality

EqualityCertaintyScientific Nature of Law

Relation of Law to Morals .Legal Responsibility without Moral FaultDevelopment of Law necessarily Artificial

PAGE3537384146485254

CHAPTER IIIThe Subject-Matter of Law

Duties of Subjects ....Duty, Positive and NegativeNo Duty without Right.Can the State have Duties ?Wro.ngAuxiliary Rules of LawRules of Evidence and ProceduuePleading and Evidence .Substantive and Adjective Law .

575864656973777982

CHAPTER IVDivisions of Law

Formal Nature of Legal Classification ... 84Impersonal and Personal Duties or Rights . . 85Personal Duties dependent on Will of Parties or

PRESCRIBED ];Y Law 91, 92Public and Privatk Law .... .95The State as a Party 100Law as regarding Persons, Things, Actions . . 103Equality of Persons in Modern Law .... 105


21/403


22/403

FIRST BOOK OF JURISPRUDENCEownkkshipPossession, Ownership, Real RightsPossession as Evidence of Title .Possession as Origin of TitlePossession historically prior to OwnershipPrescription and Limitation of ActionsServitudes or Easements ....Incorporeal exclusive RightsDebts and other Obligations as Property .

PACE. 178. 180

183, 185. 186. 188. 190. 192. 201. 205

CHAPTEE VIIIClaims of Persons on Persons : Relation of

Obligations to PropertyPersonal DutiesPersonal Obligations in Early and ModeiiContracts for Sale .Contracts for Payment .Transferable ContractsNegotiable Instruments .Shares and Stocks .Contractual Rights as PropertyRights arising from Wrongful Acts

. 207N Law 209, 211

213216217219221223226

PART IILEGAL AUTHORITIES AND THEIR USE

CHAPTEE IThe Express Forms op Law

Forms of stating LawCommand ........MaximInterpretation

Case-Law and other Systems ok Interpretation

232234235238241


23/403

CONTENTS xvu

CHAPTEE IIThe Sources of English Law

PAGEWritten and Unwritten Law 247Written : Original and Delegated Legislation . 247Unwritten : Judicial and Non-Judicial Exposition . 249Unwritten Law and Custom 252The "Custom of the Realm" 255Equity Jurisdiction in England 257

CHAPTEE IIISovereignty in English Law

The Supremacy of Parliament 261Acts of Parliament not Judicially Disputable . 270Sovereignty distinguished from i^ltimate PoliticalPower 271

CHAPTEE IVCustom in English Law

Custom : What it Means 280Conditions of Validity 281Ancient : Examples 283Rules now merged in General Law . . 284The Law Merchant 285Local 289

CHAPTEE VLaw Reports

What ark Reports 291Origins in England : Bracton 294

The Year Books . . 294, 301


24/403

xviu FIRST BOOK OF JITRISPRUDENCEPAGE

Anglo-French and its Degradation .... 298Early Private Reports 305Commencement of Modern Reporting . . . 307The Law Reports 311English and American Case - Law : its estimated

Bulk 313Use of Authorities 316

CHAPTER VICase-Law and Precedents

Authority of Decisions 319Early Statements 321Modern Usage : Co-ordinate Authority . . . 324Manifest Error 326Decisions confirmed by long Usage .... 326Courts of Appeal 328House of Lords: Whether bound by its own Decisions 332Judicial Committee of the Privy Council . . . 338Criminal Appeals 340Supreme Court of the United States.... 341Decisions in other Common Law Jurisdictions . . 342Nisi Prius Decisions 344Roman and Foreign Law 347

CHAPTER VIIAncient and Modern Statutes

Ancient Acts of Parliament : how Framed . . 352Professional Jealousy of Statute Law . . . 354Degeneration of Workmanship in Tudor Period . 355Modern Reforms 359Criminal Statutes 364Codification 365INDEX 369


25/403

1 PAET ISOME GENEEAL LEGAL NOTIONS


26/403


27/403

CHAPTEE ITHE NATURE AND MEANING OF LAW

We find iu all human sciences that those ideas Difficultyof the mostwhich seem to be most simple are really the most generalideas in all

difficult to grasp with certainty and express with sciences.accuracy. The clearest witness to this fact isborne by the oldest of the sciences, Geometry. Nodifficulty whatever is found in defining a parabola,or a circle, or a triangle. When we come to astraight line, still more when we speak of a linein general, we feel that it is not so easy to besatisfied. And if it occurs to us to ask thegeometer what is the relation of his " lengthwithout breadth " to the sensible phenomena ofspace, matter, and motion, we shall find ourselveson the verge of problems which are still too deepfor all the resources of mathematics and meta-physics together. A philologist will be ready


28/403

FIRST BOOK OF JURISPRUDENCE CHAP.

No com-pletetheoryof lawwithoutcompletetheory ofsociety :but ap-proximategeneralisa-tionneedful.

enough with his answer if we question him on theGreek or the Slavonic verb. If we ask him whatis a verb in general we may have to wait a little,and if we ask him to account for language itselfwe shall find ourselves again in a region of doubtand contention. It is not surprising, then, that thestudent approaching the science of law should findthe formal definiteness of its ideas to vary inverselywith their generality. No tolerably prepared candi-date in an English or American law school willhesitate to define an estate in fee simple : on theother hand, the greater have been a lawyer'sopportunities of knowledge, and the more time hehas given to the study of legal principles, thegreater will be his hesitation in face of theapparently simple question. What is Law ?

In fact, a complete answer to this question isnot possible unless and until we have a completetheory of the nature and functions of humansociety. Yet we cannot afford to wait for such atheory, for we are born into a social and politicalworld from which we cannot escape. Rule, custom,and law beset us on every side. Even if at this orthat point we go about to defy them we cannotignore them ; and the possible points of revolt, asreflection will show, are really but few even in


29/403

I THE NATURE AND MEANING OF LAW 5such kinds of life as are called lawless. "We haveto abide the law whether we will or no ; and toabide it, on the whole, in obedience rather than inresistance. The French Revolution seemed, and inmany respect:^ was, a fundamental catastrophe: butit appeared, as things resumed a settled frame, thata large proportion of French institutions, traditionsof policy, and positive laws too, had survived theRevolution. If then we are to obey with under-standing, we must endeavour to understand somuch as is needful for the purpose in hand, relyingon the most approximately certain data that we cancommand.

Man cannot live alone ; the individual cannot Societycannotdo without the family ; and although family groups exist with

can be conceived as independent and self-sufficing, of socialthe family has from very early times been in likemanner part of a larger society, whether it be aclan, a tribe, or a nation, with which it is boundup. No society can continue without some uniformpractice and habits of life. Individual impulse hasto be subordinated to this need ; and this sub-ordination is a never-ending process. Hence therenmst be rule and constraint ; and not the less sobecause, in one sense, the aims of the society and


30/403

6 FIRST BOOK OF JURISPRUDENCE chap.of the individual coincide. On the whole and inthe long run the interest of the individual is thatsociety should exist. This is obviously true ; butit is far from obviously true, indeed it seems notto be true, that his interest coincides always oreverywhere with the interest of the society whereofhe is a member, either as it really is or as it seemsto be to those who conduct its affairs. Societycomes into existence because its members could notlive without it ; but in continuing to exist itforthwith aims at an ideal, and that ideal is for thesociety and not for the individual member. Theneed for internal order is as constant as the needfor external defence. No society can be stable inwliich either of these requirements substantiallyfails to be provided for ; and internal order meansa great deal more than the protection of individualsagainst wilful revolt or wanton lawlessness. Ex-press and definite forms of association are requiredfor the fulfilment of these purposes and the main-tenance of a perpetual succession from one genera-tion of men living in society to another. Whenestablished, these forms embody and preserve theindividual character of every self - maintainingcommunity. In the sum of such forms, as express-in" and determiuins; in each case the conditions of


31/403

I THE NATURE AND JIEANING OF LAW 7collective life and well-being, we have the State.We say well-being with reference to the ideal andnot with reference to the actual success attained.Some States have secured the well-being of theirmembers much better than others, and the lesssuccessful ones may be called relatively bad, or insome cases even very bad. Still an inferior socialorganisation, though measurably worse than otherand better forms, is immeasurably better than none.

Further, if the State is to be permanent, we The stateii66cls rnlcsneed more than the existence of some kind of binding oncitizens tissocial rule. We conceive many rules, the common such.

and fundamental ones in matters of right andwrong, for example, to be binding on men simplyas rational and social bein


32/403

8 FIRST BOOK OF JURISPRUDENCE chap.by public authority for declaring, administering,and enforcing rules of this kind. In dealing withthese rules, as with all others, both the personsadministering them and those whose interests areaffected have to attend not only to the rules orprinciples themselves, but to the conditions underwhich they become applicable, the mode in whichthey are applied, and the consequences of their

Such rules application. The sum of such rules as existing in !law! ^ given commonwealth, under whatever particular

\ forms, is what in common speech we understandby law; the publicly appointed or recognisedbodies which administer such rules are courts ofjustice. By justice, in this usage, we mean not

,

only the doing of right, or the duty thereof, as1

between man and man, but the purpose and en-deavour of the State to cause right to be done. j

Law not lu modern times and in civilised countries wenecessarilyprofes- find the work of courts of justice carried on bysional or . . ^ ^ t nofficial. permanent omcers ; it is a special kind oi \\ork,

and the knowledge of law is a special kind ofknowledge which can be acquired only by a pro-fessional training. Law has developed an art anda science of its own just as much as medicine.These conditions are now so usual that we mighteasily think them necessary ; but they are not so.


33/403

I THE NATURE AND MEANING OF LAW 9Law and legal justice can exist without a professionof judges or advocates ; and where a legal professionexists, its divisions, and the relation of its branchesto one another, have varied and still vary to awide extent in highly civilised countries and downto our own times. Thus at Kome under the laterKepublic and the early Empire there was a classof highly skilled advocates, and under the Empirethere was something like a Ministry of Justice, butfor a long time there was nothing answering to theordinary judicial establishments of modern States.In England it does not appeal' that before theNorman Conquest there was any distinct legalprofession at all, and in the succeeding Anglo-Norman period there were professional or at anyrate skilled judges, but no professional advocates.In Iceland, about the same time, there was a highlytechnical system of law ; ' courts were regularlyheld, and their constitution was the subject ofminute rules ; and there were generally two orthree persons to be found who liad the reputationof being more skilled in law than their neighbours.Yet with all this there were neither judges norcounsellors in our modern sense. It is the ad-

' There is quite euough to support this statement apart from /the elaborate pleadings set out in the present text ol' the NjdlsSaga, which are believed to be of much later introduction.


34/403

10 FIRST BOOK OF JURISPRUDENCE chap.ministration of justice with some sort of regularitythat marks the existence of law, not the complete-ness of the rules administered, nor any officialcharacter of those who administer them.

Custom. There has been much discussion about therelation of custom to law. Custom, except indistinctly technical applications which are reallypart of a developed legal system, seems to have noprimary meaning beyond that of a rule or habit ofaction which is in fact used or observed (we mayperhaps add, consciously used or observed) by somebody or class of persons, or even by one person. Itwas the "custom" of Hamlet's father to sleep in hisorchard of the afternoon. In the Morte d'Arthu?'we constantly read of a " custom " peculiar to thisor that knight ; for example, Sir Dinadan had sucha custom that he loved every good knight, and SirGalahalt, " the hault prince," had a custom that hewould eat no fish. And it is still correct, thoughless common than it was, to use the word in thismanner. Often custom is the usage of some classor body less extensive than the State, such as theinhabitants of a city, the members of a trade. Butit can have a scope much wider than the limits ofthe State. The Church, which of course is notbounded by any State, and in the medieval view


35/403

I THE NATURE AND MEANING OF LAW 11could not be, had her own customs and refused tolet any secular power pass judgment on theirvalidity. No constant relation to law or judicialauthority can be predicated of custom. It may ormay not be treated as part of the law. Much lawpurports to be founded upon custom, and muchcustom has certainly become law. The extent towhich this has happened, and the manner in whichit has been brought about, are matters of history inthe legal system which each particular State hasdeveloped or adopted. We shall have to returii tothis when we consider the sources and forms of thelaw of England. So far the word " custom " maybe said to suggest the notion of potential or in-cipient legality. But on the other hand muchcustom is quite outside the usual sphere of law.Still the word has a certain ethical force tending tocoufiue its use to those habits whicli the personspractising them recognise as in some way binding.Such are, to take a conspicuous example, customsof tribes and castes which have a religious character." Customary " carries more weight, though it maybe only a little more, than " usual." ^ In theweakest case we mean by custom a little more than

' See Little, s. v. Coutuinc. Perhaps this tendency is moremarked in Frencli than in English.


36/403

12 FIRST BOOK OF JURISPRUDENCE chap.habit, for one may have habits of an automatic ormechanical kind of which one is barely or not atall conscious. It is hardly needful to add that agreat deal of law, at any rate of modern law, hasnot any visible relation to pre-existing custom.

" Practice," in the modern usage of the legal' profession, signifies a particular kind of custom,

namely, that by which a court of justice regulatesthe course of its own proceedings.

iioiai law, We have used the word Law, so far, withoutnatural lawor law of any epithet, the sense in which we have used itnature. being that which is commonly understood where

nothing in the context requires a different one.But the word has other usages more or less analo-gous to the principal meaning. Moral law is the

1 1 sum of the rules of conduct which we conceive tobe binding on human beings, generally or withregard to the circumstances of a particular society,so far forth as they are capable of discerningbetween right and wrong ; but it may also meanthe rules to which the members of a particularsociety are actually expected, by the feelings andopinions prevalent in that society, to conform.Sometimes the distinction between actual and idealrules of conduct is marked by speaking of moralrules, or of " positive morality," when we mean the


37/403

I THE NATURE AND MEANING OF LAW 13rules accepted in fact at given times and places,but of "natural law," "law of nature" or "naturaljustice," when we mean such rules as are universallyaccepted, or in our opinion ought so to be. Theterm " law of nature " has a long history, beginningwith the distinction made by Greek ethical philo-sophy from Aristotle downwards between naturaland conventional justice. It came to mean so muchof the rules of justice as can be discovered by man'sreason apart from either specific revelation or localor temporary ordinances ; it was identified with thelaw of God ; and it followed, in the medieval view,that the law of nature, once being ascertained, wasof universal and paramount obligation. It nevermeant (as some later writers have assumed) thearbitrary speculative opinion of an individual as towhat is right and wrong. ^ Positive morality maybe, and in many times and places is known to havebeen or still to be, contrary to universal morality ornatural law. The supposed duty of a Hindu widowto burn herself with her husband's corpse is astriking example.

The rules observed, or generally expected so to Law ofnations.

' See for details "Tlie History of the Law of Nature," by thepresent writer, in the Journal of the Society of ComparativeLegislation, 1900, p. 418 ; 1901, p. 204 ; Bryce, Studies in Historyand Jurisprudence , Essay xi. vol, ii. p. 11 -J sqq.


38/403

14 FIRST BOOK OF JURISPRUDENCE chap.\ be, by the governments of civilised independentStates in their dealings with one another and withone another's subjects are called the Law of Nations,or International Law. We are not called upon toconsider here whether they are more nearly analo-gous to the law administered by courts of justicewithin a State, or to purely moral rules, or to thosecustoms and observances in an imperfectly organisedsociety which have not fully acquired the characterof law, but are on the way to become law. Thislast-mentioned opinion is my own ; but I do notdeem this a fit place for dwelling upon it. Thewhole matter is much disputed, and cannot beeffectually discussed without assuming a good dealboth of law and of the history of law to be known.

Extended Bodics of rule or custom existing in a limited :use of .

j"law" for section of a community, and enforced by the iparticular .. ni ^ ^nsocial opinion 01 that section withiii itself, are often

called laws : as when we speak of the laws of \honour, or the laws of etiquette. It is to be 'remembered that in medieval Europe the " lawof arms " was for the persons affected by it atrue and perfect law, having its courts, judges,and compulsory sentences. In modern times thisuse of the word seems to be avowedly metaphorical.Sometimes we hear of " the code of honour," which


39/403

I THE NATURE AND MEANING OF LAW 15cannot be justified even as a metaphorical license :a code, as we shall see later, being essentially a

^ \

collection of articulate and definite rules or state-ments, and generally purporting to proceed froma definite authority.^

In English we use the word Law in a con- 'Law "inCrete sense to mean any particular rule, having crete asthe nature of law in the abstract sense, which is rule,expressly prescribed by the supreme power in the iState, or by some person or body having authorityfor that purpose, though not generally supreme.A law, in this sense, is the exercise of a creativeor at least formative authority and discretion ; thepower that made it might conceivably have chosento make it otherwise. The rule is_such becausea definite authority has made it so ; it lay in thelawgiver's hand what it should be. There is anelement, at least, of origination. Application ofexisting principles, however carefully worked out,

^ There have been various modern codifications of the "laws ofhonour," enjoying more or less conventional and local authority.Such were the "thirty-six commandments" promulgated in 1777by the southern Irish " Fire-eaters," which maj' be seen near thebeginning of the second volume of Sir Jonah Barrington's PersonalSketches. In fact there were only twenty-four rules and twoadditional " Galway articles." The rules were effective enoughwithin their jurisdiction. Barrington himself relates that heobeyed them by lighting a duel with a man he hardly knew for acause which (also in punctilious accordance with the rules) wasnever explained, but w-hich apparently was a pure mistake.


40/403

16 FIRST BOOK OF JURISPRUDENCE chap.and however important it may be in its results, isnot within the meanin". Therefore, although declara-tions of legal principles, or interpretations of expresslaws, by courts of justice ma}'- well be said to formpart of the law, and so to be law in the abstractsense, we cannot say of any such declaration orinterpretation that it is " a law." ^ When we areusing the term in this concrete sense it is not onlycorrect enough for ordinary political purposes, butcorrect without qualification, to say that " Lawsare general rules made by the State for its sub-jects." " The plural " laws " is ambiguous, and thecontext must determine in which sense it is used.It may cover both meanings, as when we speak of" the laws of England " as including the wholebody of English law, both what has been enactedby Parliament and what is derived from othersources. It is qviite possible for the administrationand development of " law " and the production ofconcrete " laws " to be in the same hands to agreater or less extent. Thus a decision of anEnglish Superior Court is law unless and until

' When some part of the general law has been designated bythe context, it may afterwards be referred to as "a law," i.e. aportion of law, without reference to its being an express enactmentor not, as if we say, "The law of slander by spoken words is nota reasonable law."

^ Raleigh, Elementarn Politics, cli. v. inil.


41/403

I THE NATURE AND MEANING OF LAW 17reversed or overruled by a higher Court ; a ruleof procedure made by the Judges under the powersconferred on them by the Judicature Acts is alaw, though English-speaking lawyers do not com-monly call it so, because it is more convenientto use the appropriate term " Eule of Court." In .like manner an Act of the Imperial Parliament, ;or an Order in Council, or an Ordinance made bythe Legislature of a Crown Colony, is a law, thoughalmost always called by the more specific name.

This concrete usage is extended to all sorts of "Laws "inextendedexpress rules made and recorded for the guidance of sense of

11 f IT- particnLirhuman action in all sorts of matters, both serious rules inand otherwise. Clubs and societies have their laws ; judicialthere are laws of cricket and laws of whist. Asmight be expected, the distinction between theconcrete and the abstract sense is not always exactlyobserved in popular usage. One might say withoutimpropriety : " It is a law of journalism that aneditor shall not disclose the authorship of an un-signed article without the writer's consent," although" rule " or " custom " would be more accurate.

It is proper to note that the ambiguity of the KngHsii" law "word law seems peculiar to English among the includes

- "^ ^ "ius"andchief Western languages. Law in the abstract, the "kx."

sum of rules of justice administered in a State and' """" c


42/403

18 FIRST BOOK OF JURISPRUDENCE chap.by its authority, is itcs in Latin, droit in French,diritto in Italian, Recht in German. For the ex-press rule laid down by an originating authoritythese languages have respectively the quite distinctwords, lex, loi} legge (the French and Italian wordsbeing modern forms of the Latin one), Gesetz.Thus an Englishman tends, consciously or not,to regard enacted law as the typical form ; it ishard for him not to identify laws (as the plural of" a law ") with Law. Frenchmen and Germans,on the other hand, are more likely to regard hior Gesetz as merely a particular form of droit orBecht, and not necessarily the most importantform.

"ius,"etc. On the other hand, these Latin and other namesinclude - ."law "and for law in the abstract (ms, droit, diritto, Becht)"right." . ,

I correspond also to our distinct English word right iI in its substantive use. This leads to verbal ani-{ biguities, and gives occasion for confusions of

I ^ In some French phrases droit and loi run into one another,e.g. " homme de loi." "Droit natiirel " and "loi n.iturelle,""droit des gens " and "loi des nations," are convertible terms.The like laxity as between lex, leges, and ius is common inmedieval Latin ; and in classical Latin lex naturalis or naturaeoccurs from Cicero downwards, which seems to involve the affirma-tion not merely of order but of designed order. In German, sofar as I know, Reclit and Gesetz are never interchangeable. Gesetzmeans a rule which is in fact, not only l)y right or wrong philo-sophic construction, "set" by a definite authority, and even infigurative uses this primary meaning is not lost sight of.


43/403

I THE NATURE AND MEANING OF LAW 19thought, which are perhaps not less inconvenientthan any consequences of law having _to stand forboth ius and lex in our language.

From the concrete use of the word laiv we have Exteudeduse ofby extension the term "law" or "laws of nature" "iaw"msciGutific

in the language of natural philosophy, or science termino-as it is now commonly called, though in truth itis but one kind of science. Here the word has awholly distinct meaning from those we have hithertomentioned. It signifies any verified uniformity ofphenomena which is capable of being expressed ina definite statement, and by " the laws of nature "we mean the sum of such uniformities known orknowablein other words, the uniformity of natureas a whole. Doubtless this language originallyimplied a belief that uniformity in nature, whethergeneral or particular, is due to will and design insome way analogous to those of human princes andrulers ; but it has long ceased to have any suchimplication as a matter of necessity or even ofcommon understanding.^ No one tlimks of Grimm'sLaw, or other "laws of phonetics," as anything butcompendious expressions of more or less generallyobserved facts in human speech, or in particulargroups of languages. Further, this meaning has

' Cp. Salmond, Jurisprudence, 5th ed. pp. 40-42.


44/403

20 FIRST BOOK OF JURISPRUDENCE chap.been carried back into the region of moral andpolitical science, as when we speak of the laws ofpolitical economy or history. We may even say,if we please, though it would hardly be elegant,that the laws of history are exemplified in thehistory of law, thus using the word in the primaryand the derivative sense in the same sentence.Here the term has quite lost its ethical associations ;in fact those who insist most strongly upon theethical element of law in its primary sense areperhaps those who are most likely to object to thisusage. Such a phrase as laws of political economy,laws of history, laws of statistics, has no depend-ence whatever on any conception of a tribunal ora lawgiver, or of doing justice. It signifies onlythe normal results, as collected by observation ordeduced by reasoning, of conditions, and (wherehuman action is concerned) habits and motives,assumed to exist and to have effect. Whether welike those results or not ; whether and to whatextent the conditions are within the control ofdeliberate human action ; and in what direction, ifat all, we shall endeavour tu modify the conditionsor counteract the results,may be matters deservingto be most carefully weighed : but they belong toa different order of considerations. Physicists have


45/403

I THE NATURE AND MEANING OF LAW 21studied what are called the laws of electricity tillit has become possible to light our houses withelectric lamps. The occupier of a house so lightedcan turn those laws to account whenever he pleases,and for so long as he pleases, provided that every-thing is in order, and in that sense he can controlthem. But his reasons for wanting or not wantingto light up a particular room at this or that hourhave nothing to do with electrical science. Thefact that a stone lies on the ground is an exampleof the " law of gravity." My desire to pick it up,followed by the act of picking it up, does not affectthe "law,"in other words, that particular aspectof the uniformity of nature,in any way : it onlyvaries the example. A well-to-do man going abroadlets his house to a friend at a nominal rent: the" laws of political economy '' have nothing to say tothis : the transaction is not such an one as economistscontemplate. In short, the " laws of nature " are,for the lawyer and moralist, matters not of law atall in their sense, but of pure fact. And this appliesequally to the so-called laws of human action inso far as human action is a subject of scientificobservation.We may now leave aside the secondary and

derivative meanings of " law " or " laws," and attend


46/403

22 FIRST BOOK OF JURISPRUDENCE chap.Law in its ouly to sucli lules as are recognised and administeredcomijul-sory in a commonwealth, and under its authority, asSanctions, binding on its members. Thus far we have said

nothing about the enforcement of the rules. Ina modern civilised State it is well understood that,if resistance is made, the power of the State, orsuch part thereof as may be needful for the pur-pose, will be put forth to overcome it. Only thecommonest knowledge of affairs and events, as theyoccur day by day, is required to assure us that thecommission of acts forbidden by law, or disobedienceto the orders of a court of justice, is likely to haveunpleasant consequences in various degrees andkinds, according to the nature of the case and thesystem of law and government existing at the timeand place, and that much work and thought arespent on behalf of the State in making that like-lihood approach as near as may be to certainty.Common knowledge no less informs us, it is true,that the public servants of even the most highlyorganised State do not attain constant or uniformsuccess in this endeavour. Some offenders escapeand some laws are disregarded. But the State is,on the whole, prepared to compel its members toobey the law, and does, on the whole, exercise aneffective compulsion ; that is to say, it will and


47/403

I THE NATURE AND MEANING OF LAW '23can make compliance with the law preferable todisobedience for most men on most occasions, bythe application of fitting means through its officersappointed for that purpose. If this much cannotbe affirmed in a given society at a given time (saya minor South American republic when a revolutionis at its height), that society is in a condition ofpolitical anarchy for the time being, or at least thefunctions of the State are suspended. In fact wefind the will and power to enforce the law bypublic authority to be stronger in proportion asjthe commonwealth is more settled, more prosperous,'and more refined. " The magistrate beareth notthe sword in vain." Hence it is natural for menliving in a civilised State to regard this public willand power of causing the law to be observed asbelonging to the very essence of law. The appointedconsequences of disobedience, the sanctions of lawas they are commonly called, become inseparablyassociated with the existence of a law - abidingcommunity ; so that they seem to be not only anormal element of civilised law, but a necessaryconstituent. Law without a sanction, and thatsanction in the hands of the State, can, in thisway of thinking, easily appear like a contradictionin terms.


48/403

24 FIRST BOOK OF JURISPRUDENCE chap.Enforce- Ally such view, however, will be found hard toinent oflaw by the recoucile with the witness of history. That im-State isrelatively perative character of law which in our modernmodern. ... ^ ,> t ^experience is its constant attribute is found to be

wanting in societies which it would be rash to callbarbarous and false to call lawless. For, if we lookaway from such elaborated systems as those of thelater Eoman empire and of modern Western govern-ments, we see that not only law, but law with agood deal of formality, has existed before the Statehad any adequate means of compelling its observ-ance, and indeed before tliere was any regularprocess of enforcement at all. We have alreadyvouched the Icelandic Sagas to show that law cando without a legal profession : we may vouch themto sliow^ no less clearly that it can do without aformal sanction. More than this, we find preservedamong the antiquities of legal systems, and notablyin archaic forms and solemnities, considerable tracesof a time when the jurisdiction of courts arose onlyfrom the voluntary submission of the parties : andthis not only as between subject and subject, butas between a subject and the State.^ Jhering tellsus that the early Eoman judge was a mere daysman,

' Tlie ln^^tory of English criminal procedure affords at least onestriking illustration ; but I imrposely avoid a digression. I


49/403

I THE NATURE AND MEANING OF LAW 25or " speaker of the law " bet\v^n_the^ arties.^ Weneed not doubt that effectual motives for sub-mission could be brought, sooner or later, to bear onunwilling subjects. The man who did not submithimself to law could not claim the benefit of thelaw ; there was no reason why every man's handshould not be against him. Outlawry, now all butobsolete even in name, was the formal expressionof the archaic social rules by which law wasgradually made supreme. Again, archaic procedureshows us a period in which a suitor may obtainjudgment, but must execute the judgment for him-self. The most the State will do for him is tocome eventually to his aid if the adversary or theadversary's friends continue to deny him right. Inthe meantime private force holds the ground, butthe winning suitor's private force is lawful and theloser's is unlawful.

At this stage the State can hardly be said toprovide any sanction of its own ; it only givesmoral support and coherence to sanctions alreadyexisting in a vague form. Conversely, one of thefirst signs of the; reviving power and solidity of theState in the early Middle Ages was the jealousrestriction of private force, even when the claimant

' Geist des romischen Heclits,\. 174, ed. 1878.


50/403

26 FIRST BOOK OF JURISPRUDENCE chap-who sought his ends by might had full right on hisside. Iniuste and sine iudicio became convertibleterms. It is wrong to do oneself right withoutjudgment and public authority.

Informal In oue sense we may well enough say that theresanctions . "common IS no law without a sanction. For a rule of lawto law and , . . , . ,morality, must at ieast be a rule conceived as binding; and

a rule is not binding when any one to whom itapplies is free to observe it or not as he thinksfit. To conceive of any part of human conduct assubject to law is to conceive that the actor's freedomhas bounds which he oversteps at his peril. Oneor more courses of action may be right or allowableat least one must be wrong. Now what is felt tobe wrong is felt to call for redress. This may bedirect or indirect, swift or tardy ; but in the meresense and apprehension of redress to come, howeverremote and improbable it may seem, and howeveruncertain the manner of it may be, we have alreadysome kind of sanction, and not the less a sanctionbecause its effect may be precarious. All thisapplies to moral no less than to legal rules.Taken thus largely, there are sanctions of infinitedegrees from obscure monitions of conscience togeneral and open reprobation, or even acts ofviolence prompted by the indignation of one's


51/403

I THE NATURE AND MEANING OF LAW 27fellow-men ; ^ and, if we pass from the moral andsocial to the legal sphere, from some small expenseor disadvantage in the conduct of a lawsuit, orsome small penalty for delay in performing apuhlic duty, to the severest penalties of criminaljurisdiction. But in a modern State the sanctionof law means botli for lawful men and for evil-doers something much more definite. It meansnothing less than the constant willingness andreadiness of the State, in the persons of its magis- itrates and officers, to use its power in causingjustice to be done ; and this in respect not onlyof the main duties enforceable by law, but of animmense number of incidental and at first sightarbitrary rules and conditions.

In short the conception of law, many of its Law amir I- ^^^^ " ^^^^ideas, and much even of its form, are prior m of the

history to tlie oi!icial intervention of the State,save in the last resort, to maintain law. True itis that in modern States law tends more and moreto become identified with the will of the State asexpressed by the authorities intrusted with thedirection of the common power. But to regardlaw as merely that which the State wills or com-

* Such acts may or may not be justifiable, and the rule enforcedmay or may not be itself right from the point of viow of universalmorality. This does not concern us here.


52/403

28 FIRST BOOK OF JURISPRUDENCE crap.mands is eminently the mistake of a layman, asone of the greatest modern jurists has hinted ; ^and, we may add, of a layman who has not con-sidered the difference between modern and archaicsocieties, or the political and social foundationsof law. For most practical purposes the citizensof a State, and to a considerable extent, thoughnot altogether, lawyers and magistrates also, havenot to concern themselves with thinking what thosefoundations are. Their business is to learn andknow, so far as needful for their affairs, what rulesthe State does undertake to enforce and administer,whatever the real or professed reasons for thoserules may be. Moreover, criminal law, which iseminently imperative, is that branch of law whichappeals most to the popular imagination, and fillsthe largest place in popular notions of legal justice.Again, the unexampled activity of the legislativepower in modern States has largely increased thesphere of express enactment. All these causeshave made it possible and even plausible to regardlaw not only as being embodied in the commandsof a political sovereign, but as consisting of suchcommands and being nothing else. They have notaltered the fundamental facts of human society

' Jhering, Geist des rmiischen RecMs, i. 37.


53/403

I THE XATURE AND MEANING OF LAW 29and the merely imperative theory of legal institu-tions remains as one-sided and iinphilosophical asit was before. Law is enforced by the Statebecause it is law ; it is not law merely becausethe State enforces it. But the further pursuit of 'this subject seems to belong to the philosophy ofPolitics rather than of Law.

On the whole the safest definition of law in the DeBnition.i,,

lawyer's sense appears to be a rule of conduct j iI jbinding o^ members of a commonwealth as such. \ \It is hardly conceivable that any community shouldrecognise such rules, as distinct from rules bindingon mankind in general, without having some way ofadministering them ; but that is a secondary point.Whether there is a commonwealth, and who are itsmembers, are matters of fact according to time andplace. If it be asked Avhat is a commonwealth ingeneral, that is a question of political and not oflegal science. If it be asked whether the definitioncovers the law of nations, the answer is that it moreor less approximately does so just so far as therelations of sovereign States to one another can beregarded as analogous to those of citizens in a State.A definition has no business to prejudge thequestion how far that is the case.


54/403

CHAPTER IIJUSTICE ACCORDING TO LAW

Conditions The Only essential conditions for the existence offor .T" . . .existence law and legal institutions are the existence of aof law : Tj-1 , iji !possible political Community and the recognition by itscases.' members of settled rules binding upon them in

that capacity. Those conditions are present in allsocieties of men who are not mere savages. Evenamong civilised men, on the other hand, they maybe suspended in particular circumstances. Wecan get one example by supposing a boat's crewfrom a wrecked ship, made up of different nation-alities in about equal proportions, to land on anisland in the high seas which is neither occupiednor claimed by any civilised Power. Such a partywould, it is conceived, be remitted to what was oncecalled " the state of nature," aided by whateverconventions they might agree upon as appropriate

30


55/403

CHAP. II JUSTICE ACCORDING TO LAW 31to their situation. A lawyer would probablyadvise them to consider themselves as still underthe law of the ship's flag, but it is difficult to saythat this or any other law would have any realauthority apart from the agreement of the wholeparty. Practically the law of nature, or in lessambiguous terms the common rules of civilisedmorals and the dictates of obvious expediency,would have to suffice for the present need. Again,it is not very difficult for civilised men to findthemselves, without any violent accident, in placeswhere it is hard to say w^hether any and, if any,what law prevails in the ordinary sense. Take thecase of an English or American traveller, or anEnglishman and an American travelling together, inthe region of the Khaibar Pass beyond the Britishfrontier post at Fort Jamrud and before Afghanterritory is reached. Certainly they are not subjectto the law of British India ; still less, if possible,to the law of Islam as applied in Afghanistan.Yet the persons and property of those who goup the Pass on the appointed days and w^th theproper escort are really safer than they would bein some parts of almost any European or Americancity. But peculiar phenomena of this kind, whichare transitory accidents as compared with the


56/403

32 FIRST BOOK OF JURISPRUDENCE chap.ordinary course of civilised life, do not affect thenormal formation and effects of civilised law, northrow any light on its origin. If, on the otherhand, a new social combination which at first sightmay have been precarious becomes permanent, itsmembers acquire, either by convention or by sub-mission to an existing jurisdiction, some permanentform of government and law. The inchoate stagesof this process (which, in fact, has taken place invarious parts of the world, such as the extremeWestern States of America, within living memory)are interesting in their own way, but are hardlywithin the province of the lawyer. Settled rulesand recognised jurisdiction are the lawyer's tests.

Justice. Law presupposes ideas, however rudimentary, ofjustice. But, law being once established, just, in \matters of the law, denotes whatever is done in jexpress fulfilment of the rules of law, or is approved 'and allowed by law. Not everything which is notforbidden is just. Many things are left alone bythe State, as it were under protest, and onlybecause it is thought that interference would domore harm tlian gootl. Tn such things the notionof justice has no place : the mind of the State israther expressed by "Dante's "guarda e passa."Tiie words "just" and "justice," and corresponding


57/403

II JUSTICE ACCORDING TO LAW 33words in other tongues, have never quite lost ethicalsitfiiificance even in the most technical legal context.The reason of this (unduly neglected by somemoderns for the sake of a merely verbal and illusiveexactness) is that in the development of the lawboth by legislative and by judicial processes appealis constantly made to ethical reason and the moraljudgment of the community.^ Doubtless the servantsof the law must obey the law, whether specific rulesof law be morally just in their eyes or not : this,however, is only saying that the moral judgment weregard is the judgment of the community, andnot the particular opinion of this or that citizen.Further, some conflict between legal and moraljustice can hardly be avoided, for morality and lawcannot move at exactly the same rate. Still, in awell-ordered State such conflict is exceptional andseldom acute. Legal justice aims at realising moraljustice within its range, and its strength largely con-sists in the general feeling that this is so. Werethe legal formulation of right permanently estrangedfrom the moral judgment of good citizens, the Statewould be divided against itself.We may better realise the fundamental character

^ See as to the progressive improvement of the law with theadvance of the moral standard J. B. Ames, "Law and Morals,"Harv. Law Rev. xxii. 97.


58/403

34 FIRST BOOK OF JURISPRUDENCE

sion, thefunda-mentalcharacterof law.

Order, not of law by trying to conceive its negation or opposite.compiil- This will be found, it is submitted, in tlie absence

of order rather than in the absence of compulsion.An exercise of merely capricious power, howevergreat in relation to that which it acts upon, doesnot satisfy the general conception of law, whetherit does or does not fit the words of any artificialdefinition. A despotic chief who paid no attentionto anything but his own whim of the moment couldhardly be said to administer justice even if he pro-fessed to decide the disputes of his subjects. Thebest ideal picture I know in literature of whatmight be called natural injustice, the mere wanton-ness of power, is exhibited in the ways of Setebosas conceived by Robert Browning's Caliban} In the

Isame master's Fippa Passes, the song of the ancient

I king who judged sitting in the sun gives a morepleasing though not a more perfect image of naturalor rather patriarchal justice. Absence of definedrule, it must be remembered, is not the same thingas the negation of order. The patriarch may not dojustice according to any consciously realised rule,and yet his decrees are felt to be just, and will go tothe making of rules of justice for posterity.

It is true that even in highly civilised States we' "As it likes me each time I do ; so He."


59/403

II JUSTICE ACCORDING TO LAW 35meet with occasional or singular acts of sovereicjn Relation of

.Singular

power which are outside the regular course of justice acts of. . . . sovereignand administration, and which nevertheless must be jmwer to

counted as laws. In form they do not differ fromthe ordinary acts of the law-making authority;and in substance they are laws in so far as theyaffect in some way the standing of individual citizensbefore the law^ must be regarded and acted upon bythe judges and other public servants of the State,and will at need be put in force by the executive.In some of these cases there is really nothingabnormal except the form of the transaction. Whatbegan with being a special exercise of supremepower for a special occasion has settled into aroutine which, though in form legislative, is insubstance administrative or judicial, or partly theone and partly the other. Such is the case in thiscountry with the private Acts of Parliament bywhich railway and other companies are incorporatedand have powers of compulsory purchase and thelike conferred on them. So, before the establish-ment of the Divorce Court, the dissolution ofmarriages by a private Act of Parliament Avas acostly and cuml)rous proceeding, but still of ajudicial kind. In these and similar cases the formof legislation has been rendered necessary by


60/403

36 FIRST BOOK OF JURISPRUDENCE chap.historical or constitutional accident. Sometimes,again, the purpose of these extraordinary legislativeacts is to relieve innocent persons, and those whomay have to derive titles to property from them,from the consequences of some venial failure tocomply with the requirements of law. Marriagesbetween British subjects have often been celebratedin good faith, but in fact without authority, byBritish Consuls and other official persons in remoteparts of the world, and on the error being discoveredActs of Parliament have been passed to give validityto marriages so celebrated. Acts of indemnity havemuch the same nature, so far as they relate to theneglect or omission of requirements which havecome to be regarded as merely formal. When theTest Acts were in force there was an annual Act ofIndemnity for the relief of those public officers(being in fact the great majority) who .had notperformed and observed all the conditions which atone time had been supposed, and for a time possiblywere, needful precautions for securing the Protestantsuccession to the throne. Lastly, that which inform is an act of legislation may be a more or lessthinly disguised act of revolution, civil war, orreprisal against unsuccessful revolution. Acts ofattainder are the best English example in this


61/403

II JUSTICE ACCORDING TO LAW 37kind.^ All these matters have their own historical andpolitical interest : bnt we have nothing to learn fromthem about the normal contents and operation oflegal institutions. The Pioman name of lyrivilegiamarks them off as standing outside the province ofregular aad ordinary law.

Let us pass on, then, to consider what are the Xuiniuimarks ofnormal and necessary marks, in a civilised common- law .-

P , . . , , Generality.wealth, 01 justice admmistered according to law.They seem capable of being reduced to Generality,Equality, and Certainty. First, as to generality, therule of justice is a rule for citizens as such. Itcannot be a rule merely for the individual : as themedieval glossators put it, there cannot be one lawfor Peter and another for John. Xot that everyrule must or can apply to all citizens ; there aredivers rules for divers conditions and classes of men.An unmarried man is not under the duties of ahusband, nor a trader under those of a soldier. Butevery rule must at least have regard to a class ofmembers of the State, and be binding upon or inrespect of that class as determined by some definiteposition in the community. This will hold howeversmall the class may be, and even if it consists for

^ The}' must be carefully distiiigiiislicd from iinpeaehniont, which 'is a regular process known to the law, though au unusual one. /


62/403

38 FIRST BOOK OF JURISPRUDENCE chap.the time being of only one individual, as is the casewith offices held by only one person at a time.Certain rules of law will be found, in almost everycountry, to apply only to the prince or titular rulerof the State, or to qualify the application of thegeneral law to him. In England, again, the l*rinceof Wales, as Duke of Cornwall, is the subject ofrules forming a singular exception to the generallaw of property ; and the Lord Chancellor has manyduties and powers peculiar to his office. But theserules are not lacking in the quality of generality,for in every case they apply not to the individualperson as such, but to the holder of the office for thetime being. They may be anomalous with regard tothe legal system in which they occur ; and, like otherrules of law, they may or may not be expedient onthe particular merits of each case. They are not inany necessary conflict with the principles of legaljustice merely because they are of limited or uniqueapplication.

Equality. Next, the rule of generality cannot be fultilledunless it is aided by the principle of equality.Itules of law being once declared, the rule musthave the like application to all persons and factscoming within it. liespect of persons is incom-patible with justice. Law which is the same for


63/403

II JUSTICE ACCORDING TO LAW 39Peter and for John must be administered to Johnand to Peter evenly. The judge is not free to showfavour to Peter and disfavour to John. As themaxim has it, equality is equity.^ So much isobvious and needs no further exposition. But itmay be proper to point out that the rule of equalitydoes not exclude judicial discretion. Oftentimeslaws are purposely framed so as to give a consider-able range of choice to judicial or executive ofhcers asto the times, places, and manner of their application.It is quite commonly left to the judge to assign, upto a prescribed limit, the punishment of provedoffences : indeed, the cases in which the court isdeprived of discretion are exceptional in all modernsystems. Apart from capital offences, there are onlyone or two cases in English criminal law wherea minimum punishment is imposed, and none, itis believed, where there is no discretion at all.Certain remedies and forms of relief, in matters ofcivil jurisdiction, are said to be discretionary ascontrasted with those which parties can demand astheir right. Still, a judicial discretion, howeverwide, is to be exercised without favour andaccording to the best judgment whicli the personintrusted with the discretion can form on the merits

' The working use of the maxim is not quite so simple as tliis.


64/403

40 FIRST UOOK OF JURISPRUDENCE chap.of each case.^ Differences of personal characterand local circumstances are often quite properelements in the formation of such a judgment, butany introduction of mere personal favour is anabuse. We still aim at assigning equal results toequal conditions. Judicial discretion is not anexception to the principle of equality, but comes inaid of it where an inflexible rule, omitting to takeaccount of conditions that cannot be defined before-hand, would really work inequality. This impliesthat only such conditions are counted as are materialfor the purposes of the rule to be applied. Of courseno two persons or events can be fully alike. Whatrules of law have to do is to select those conditionswhich are to have consequences of certain kindswliich being done, it is the business of the courtsto attend to all those conditions, and, saving-judicial discretion where it exists, not to any others.A plaintiff who argues his case in person may betedious and offensive, but the judge must nevertlie-less do him justice as fully as if his argument were

' In various cases where the risk of discretion being pervertedby outside influence or pressure has seemed greater than that ofspontaneous partiality, the holders of discretionary power orauthority are deliberately exempted from being called on to givean account of their reasons. In such cases the discretion is saidto be not judicial, but absolute. Examples : the protector of asettlement, the governing bodies of schools under the PublicSchools Act.


65/403

u JUSTICE ACCORDING TO LAW 41excellent. This may seem too obvious for statementin England, but there are parts of the BritishEmpire where it is not, or within recent times was not,so. Suppose, on the other hand, it were a rule oflaw that no man who wore a white hat before May-day could take a legacy within the year. It would notbe competent to any court to say that, as betweenA and B, rival claimants for the same legacy, thelegacy should be paid to A, notwithstanding that hehad worn a white hat in April, because he was apoor man and more in want of money than B. Thelaw cannot make all men equal, but they are equalbefore the law in the sense that their rights areequally the subject of protection and their dutiesof enforcement.^

Further, as the requirement of generality leads to Certainty, , . n T scientificthat 01 equality, so does the requirement oi equality characttn-lead to that of certainty, which brings in its trainthe wliole scientific development of law. We mustadminister a general rule, and administer it equally.There can be no law without generality ; there can beno just operation of law without equality. But we .cannot be sure of a rule being equally administered

^ " Valeat aequitas quae paribus in causis paria iura desiderat "Cic. Top. 23, which became current in the ;\Iiddle Ages in theform "aequitas est rerum convenientia quae in paribus," etc.See Carlyle, Hist. Med. Polit. Theory, ii. S sqq.


66/403

42 FIRST BOOK OF JURISPRUDENCE chap.at different times and in the cases of differentpersons unless the rule is defined and recorded.Justice ought to be the same for all citizens, so faras the material conditions are the same. Now tocarry out this idea the dispenser of justice ought tobe adequately furnished with two kinds of infor-mation. He should know what is accustomed to bedone in like cases, and whenever new conditionsoccur he should know, or have the means of forminga judgment, which of them are material with a viewto legal justice, and which are not. Moreover, theremust be some means of securing an approximateuniformity of judgment ; otherwise judges andmagistrates of all degrees will make every one a lawof his own for himself, and the principle of equalitywill not be satisfied. Justice dealt out according tothe first impression of each particular case, the" natural justice " of an eastern king sitting in thegate, is tolerable only when the community is smallenough for this function to be in the hands of oneman, or very few, and its affairs are simple enoughfor offhand judgments not to produce results ofmanifest inequality. This is as much as to say thatin a civilised commonwealth law must inevitablybecome a science. The demand for certainty be-comes more exactinff as men's affairs become more


67/403

11 JUSTICE ACCORDING TO LAW 43complex, and the aid of the courts is more frequentlysought. Trade and traffic, in their increasingvolume, speed, and variety of movement, raise newquestions at every turn, and men expect not only toget their differences settled for the moment, but tohave solutions which will prevent the same diffi-culties from giving trouble again. How far wouldnatural justice carry us, for example, towards asettlement of the problems involved in making con-tracts by letter, telegraph, or telephone ? Hencelaw becomes an artificial system which is alwaysgathering new material. The controverted points ofone generation become the settled rules of the next,and fresh work is built up on them in turn. Thusthe law is in a constant process of approximationto an ideal certainty which, by the nature of thecase, can never be perfectly attained at any givenmoment. Every one who has studied the law knowsthat the approximation is apt to be a rough one, andis exposed to many disturbing causes. We shall seesomething, in the latter part of this work, of themethods by which it is effected in the system of theCommon Law. Meanwhile it is to be rememberedthat the political sciences do not claim to be exactin either a speculative or a practical point of view.For the practical purposes of a State governed


68/403

44 FIRST BOOK OF JURISPRUDENCE chap.according to law, that degree of certainty sufficeswhich will satisfy the citizens that the law works onthe whole justly and without favour ; and in archaicsocieties not only is a pretty rough kind of certaintysufficient, but no other is possible.

Certainty Rules of law have to be applied to the factsof lawlimited by ascertained by the tribunal. Now the facts are oftenattainable t t i ii fertainty in dispute ; indeed those cases are a small minority

where there is a real ditference between the parties,and that dilference turns merely upon the applica-tion of the law to undisputed facts.^ And theprocess of forming a judgment as to the truth of thefacts, where conflicting accounts are offered, is itselfan approximate one at best for human faculties. Inearly stages of legal institutions we find that there ishardly so much as a serious attempt in this direction ;the matters at issue are disposed of by methodswhich seem to us at this day not only artificial andinadequate, but out of all relation to any grounds ofreasonable conclusion. The task would indeed seemto have been thought above the power of mortals.Ordeal in its various forms is a direct appeal tosupernatural aid in the supposed incompetence of

' Much of the work done by the machinery of justice consistsin enforcing just claims to which there is no defence ; but mererefusal or neglect to pay one's debts without compulsion of lawdoes not constitute a real matter in dillereuce.


69/403

Ti JUSTICE ACCORDING TO LAW 45liuniaii luulerstandiiig. Proof by oath, where tlieoath is conclusive, a })rocedure of which tlie medieval" compurgation " is the best-known example, is thesame thing in a milder form. Wherever and solong as the facts cannot be ascertained with anyprecision, there is no occasion for precise or elaboraterules of law. The law cannot be more finelygraduated than the means of ascertaining facts ; andthe judicial investigation of facts with somethingapproaching completeness and exactness dates onlyfrom relatively modern times. Hence the develop-ment of law is largely bound up with the develop-ment of procedure. As improved procedure enablesthe law to grapple with complex facts, the aspirationsof lawyers and citizens are enlarged, and they areby no means content to aim at the minimum ofcertainty which will ensure public acquiescence inthe justice of the State, and a tolerable average ofobedience. On the contrary, they will aim (as mendo in every science and art, when once they becomeseriously interested in it) at an ideal maximum.But even in the most advanced polity we shall findnow and then that the subtilty of forensic andjudicial thought outruns the possibilities of effectualinquiry and administration. Questions are some-times put to juries which no man, or twelve men,


70/403

46 FIRST BOOK OF JURISPRUDENCE chap.not learned in the law, can reasonably be expected tounderstand.

Law a 111 assuming a scientific character, law becomes,science : ^^^ must needs become, a distinct science. Theextensive division of science or philosophy which comeswi e ncs. jjgr^pggj^ ^Q [^ jjj respect of the subject-matter dealt

with is Ethics. But, though much ground iscommon to both, the subject-matter of Law and ofEthics is not the same. The field of legal rules ofconduct does not coincide with that of moral rules,and is not included in it ; and the purposes forwhich they exist are distinct. Law does not aim atperfecting the individual character of men, but atresvilatinar the relations of citizens to the common-wealth and to one another. And, inasmuch ashuman beings can communicate with one anotheronly by words and acts, the office of law does notextend to that which lies in the thought andconscience of the individual.

The possible coincidence of law with morality islimited, at all events, hj the range of that whichtheologians have named external morality. Thecomnuindment, " Thou shalt not steal," may be, andin all civilised countries is, legal as well as moralthe commandment, " Thou shalt not covet," may beof even greater importance as a moral precept, but


71/403

II JUSTICE ACCORDING TO LAW 47it cannot be a legal oiie. Not that a legislator mightnot profess to make a law against covetousness, butit would be inoperative unless an external testof covetousness were assigned by a more or lessarbitrary definition ; and then the real subject-matter of the law would be not the passion of covet-ousness, but the behaviour defined as evincing it.^The judgment of law has to proceed upon what canbe made manifest, and it commonly has to estimatehuman conduct by its conformity or otherwise towhat has been called an external standard. Action,and intent shown in acts and words, not the secretsprings of conduct in desires and motives, are thenormal materials in which courts of justice areversed, and in the terms of which their conclusionsare worked out and delivered. With rare excep-tions," an act not otherwise unlawful in itself willnot become an offence or legal wrong because it isdone from a sinister motive, nor will it be anyexcuse for an act contrary to the general law, or in

' The saying ascribed (it seems apooryphally) to Dr. Keate ofEton : "Boys, if you're not pure in heart, I'll flog you," exempliiiesin a neat form the confusion of external and internal morality.

- Those exceptions are perhaps of an accidental and not verysubstantial kind ; but, after all corrections and allowances,"malice" does sometimes in English law mean evil motive, suchas personal enmity or vindictiveness. For further consideration ofintention and motive see ch. vi. p. 147 below,


72/403

48 FIRST BOOK OF JURISPRUDENCE chap.violation of any one's rights, to show that the motivefrom which it proceeded was good. If the attemptis made to deal with rules of the purely moral kindby judicial machinery, one of two things will happen.Either the tribunal will be guided by mere isolatedimpressions of each case, and therefore will notadminister justice at all ; or (which is more likely)precedent and usage will beget settled rule, andthe tribunal will find itself administering a formalsystem of law, which in time will be as technical,and appeal as openly to an external standard, as anyother system. This process took place on a greatscale in the formation of the Canon Law, and on aconsiderable scale in the early history of Englishequity jurisdiction.

Lawcau- Besidcs and beyond the limitation of the fieldaU morar*' ^^ ^^^ ^ external conduct, there are many actionsrules, but ^ kinds of conduct condemned by moralitymay some- ' ytimes react ^yhich for various reasons law can either not dealon themoral with at all or can deal with only in an inci-standard. ''

dental and indirect manner. It would be thevulgarest of errors (as we have already hinted) tosuppose that any kind of approval is implied inmany things being left to the moral judgment ofthe community and to such pressure as it canexercise. Law does not stand aside because law-


73/403

II JUSTICE ACCORDIXG TO LAW 49givers or judges think ligbtly of such things, butbecause, whether from permanent or from transitorycauses, the methods of legal justice are not appro-priate for dealing with them, and the attempt toapply those methods would, so far as it could beoperative at all, probably do more harm than good.At the same time rules of law may well have, inparticular circumstances, an effective influence inmaintaining, reinforcing, and even elevating thestandard of current morality. The moral idealpresent to lawgivers and judges, if it does not alwayscome up to the highest that has been conceived, willat least be, generally speaking, above the commonaverage- of practice ; it will represent the standardof the best sort of citizens. This is especially thecase in matters of good faith, whether we lookto commercial honesty or to relations of personalconfidence. With few exceptions, the law has,in such matters, been constantly ahead not onlyof the practice but of the ordinary professions ofbusiness men. We have similar results on amore striking scale when a law whicli is notindigenous brings in witli it the moral standardson which it is founded. Thus a good deal ofEuropean morality has been made current in Indiaby the Anglo-Indian codes ; the European morality

E


74/403

50 FIRST BOOK OF JURISPRUDENCE chap.itself has been largely moulded not only by theteaching of the Christian Church, but by the formalembodiment of that teaching in both ecclesiasticaland secular laws. The treatment of homicide byearly English criminal law was founded on theextremely strict view taken by the Church of theguilt of bloodshedding ; and the extinction ofduelling in this country seems to be due, in nosmall part, to the steady refusal of English lawto regard killing in a duel, even without anycircumstances of treachery or unfairness, as any-thing else than murder. AVe are not speakinghere of the mere fact that persons abstain fromunlawful conduct through dread of the legal con-sequences, a fact which, taken by itself, has nomoral significance at all.

Legal rules Again, rulcs of law differ from rules of moralitymorally in excess as well as in defect. It is needful for the

peace and order of society to have definite rules fora great many common occasions of life, although noguidance can be found in ethical reasoning foradopting one rule more than another. There is nolaw of nature tliat prescribes driving on either theright or the left-hand side of the road, as is plainlyshown by the fact that our English custom to takethe left-hand side is the reverse of that which is


75/403

II JUSTICE ACCORDING TO LAW 51observed in most other countries. But in a land offrequented roads there must be some fixed rule inorder that people who meet on tlie road may knowwhat to expect of one another. And, the rulebeing once fixed either way for the sake of generalconvenience, we are bound in moral as well as inlegal duty to observe the rule as we find it. Onmuch the same footing are the rules which requireparticular forms to be observed in particular trans-actions, for the purpose of making the proof ofthem authentic and easily found, or in the interestof the public revenue, or for other reasons. Thereare not many such cases in which the form actuallyimposed by the law can be said to be in itself theonly appropriate one, or obviously much better thanothers that micrht be thought of. But, since it hasbeen thought fit to require some form, it is necessarythat some one form should be authorised. Here,too, the choice between courses which in themselveswere morally indifferent is determined by the law,and thenceforth it is the moral as well as the legalduty of every one concerned, if he will act as a goodcitizen and a prudent man, to do things in theappointed manner and form.

But there is more than this. As in many casesacts and conduct that are morally blameworthy must


76/403

52 FIRST BOOK OF JURISPRUDENCE chap.Legal go quit of anything the law can do, so in many cases,biiity 0^ the other hand, persons are exposed, for reasonsmoraUauit ^^ public expediency, to legal responsibilities whichcaser*^^^"^ may or may not be associated with moral fault, and

which cannot be avoided even by the fullest proofthat in the particular case the person who is answer-able before the law was morally blameless. A manmay, of course, make himself answerable by his ownpromise for many things independent of his moraldeserts or even wholly beyond his control : but weare here speaking of liability not assumed by theparty's own act and consent, but imposed by a ruleof law which does not depend on any one's assentfor its operation. Thus a man is liable in mostcivilised countries for the wrongful acts and defaultsof his servants in the course of their employment,whatever pains he may have taken in choosingcompetent servants and giving them proper in-structions. Obviously this is a hard rule for theemployer in many cases ; but its existence in everysystem of law shows that in the main it is felt tobe just. Again, both Eoman and English law havemade owners of buildings ^ responsible, in variousdegrees, for their safe condition as regards passers-

' This is lij- no means the full measure of the rule in our law.For simplicity's sake only part of it is now stated.


77/403

11 JUSTICE ACCORDING TO LAW 53by in the highway, or persons entering them in thecourse of hiwful business ; and this without regardto the amount of the owner's personal diligence inthe matter. Again, questions often arise betweentwo innocent persons, of whom one or other mustbear the loss occasioned by the wrongful act of someone from whom redress cannot be obtained ; aswhen a man who has obtained goods by fraud fromtheir owner sells them to an unsuspecting thirdperson, and then absconds, leaving nothing behindhim. Here the original owner and the buyer maybe equally free from fault, but they cannot bothhave the goods, and the price cannot be recovered.Hardship to one or the other is inevitable.

In all these cases the loss or damage, as betweenthe two innocent parties who are left face to face,may be considered as accidental. The rule of lawhas to determine as best it can on which side theloss shall fall ; and, since by the hypothesis neitherparty has incurred moral blame, and this is thevery cause of the difficulty, it is plain that the rulesof ordinary social morality will afford no guidance.We have to resort either to considerations of generalpublic expediency, or, if no obvious balance ofconvenience appears either way, to the purelytechnical application of rules already settled in less


78/403

54 FIRST BOOK OF JURISPRUDENCE chap.obscure matters. And this last method is not amere evasion of the problem, but is a reasonablesolution so far as no stronger reason can be assignedto the contrary. For the principle of certaintyrequires that a rule once settled shall be carriedout to its consequences when no distinct cause isshown for making an exception or revising the rule

' itself. If any sense of hardship to the individualcitizen remains after these considerations have beenweighed, and it has also been observed that citizenshave an equal chance of benefit as well as burdenunder special rules of this kind, it may be saidthat exposure to this kind of liability is part, andnot a large part, of the price which the individualhas to pay the State for the general protectionafforded by its power, and the general benefit of itsinstitutions.

Develop- Thus neither the work nor the field of legallaw science can be said to coincide with those of anyartmcki! ^ other science. And the development of this, as of

all other distinct branches of science, can be carriedon only by the continuous effort of persons whomake it the chief object of their attention insuccessive generations. This has been recognisedin the institutions, both practical and academical,of all civilised nations. A civilised system of IsiW


79/403


80/403


81/403

CHAPTER IIITHE SUBJECT-MATTER OF LAW

KuLES of law being the rules which are deemed Contentsbinding on members of the State as such, and are .uities ofadministered, as and because thus binding, by '

courts of justice, we have next to see of what kindare the contents of those rules. It seems that wemay describe them, in the most general terms, asthe duties of subjects under the common authorityof the State, together with the conditions by whichthose duties are defined and made capable ofapplication. We speak here of subjects, not citizens.For there are members of the State who by reason ofnatural or conventional disability (which may betemporary or permanent) do not enjoy full politicalrights : and there are strangers who dwell for alonger or shorter time in the jurisdiction of theState without being or becoming members of it.Persons in either of these positions, as they are

57


82/403

8/8/2019 Pollock - First Book of Jurisprud

Date post:	10-Apr-2018
Category:	Documents
Upload:	sinead-ni-cheileachair
View:	222 times
Download:	0 times

Pollock - First Book of Jurisprudence

Documents