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JURISPRUDENCE,
SALMOND

BY
Sir

JOHN SALMOND

THE LAW OF TORTS

A
Treatise on

the

English Law of Liability for

CrVXL
L< JURIES.

SEVENTH EDITION

(1928;.

BY Sir

JOHN SALMOND
AND

P.

H.

WINFIELD,

LL.D.

PEINCIPLES OF THE

LAW

OF CONTEACT
(1927).

JURISPRUDENCE
BY

SIR

JOHN SALMOND,

A JUDGE OF THE SUPBEME COURT OF NEW ZEAIiAND.

EIGHTH EDITION.

M.A., B.C.L.,

OF THE MIDDLE TEMPLE, BABRISTER-AT-LAW, LATE FELLOW, TUTOR AND LECTURER IN LAW OF NEW COLLEGE, OXFORD; CASSEL PROFESSOR OF INTERNATIONAL RELATIONS IN THE UNIVERSITY OF LONDON.

LONDON
2

SWEET & MAXWELL,

&
3

LIMITED, CHANCEEY LANE, W.C. 2.

1930.
(Printed in England.)

PRIKTED IN GREAT BRITAIN BY

THE EASTERN PRESS, LTD., LONDON AND READING.

DeMcation of Seventb BDition

To THE Memory of
MY Son,

WILLIAM GUTHRIE SALMOND, A Captain in the New Zealand Army, Who

in

France on the 9th day of July, 1918,

gave up his life

IN THE twenty-sixth YEAR OF HIS AGE.

vii

PREFACE
TO THE EIGHTH EDITION.
Anybody who undertakes
else's

the

editing

of
first

someone
with a
un-

legal

treatise is faced

from the
to

nice

question of method,
is

on which the room for

difference of opinion
likely that
to use his
it

wide enough

make

it

he will

satisfy every taste.

He

will

have

own discretion, explain to what conclusions has led him and hope to find sympathy somewhere. No one at any rate will doubt that the method
to

must vary according

itself.

the character of the

work

Suppose, for instance, the

to

expound a particular body of English law of libel, in its newest phase, the editor's task would seem to be mainly that of bringing its Where on the other hand it propositions up to date. is a statement of the considered opinion of someone no longer living, on a subject for which there seem
to
:

book only sets out law, such as the

be no universally accepted criteria of orthodoxy, the matter is otherwise there are more possibilities than one.
ceased to

Should the author's central thesis have find favour, and should the editor happen

himself to carry big enough guns, he may use it as a target for some constructive shooting of his own.

In the present instance of a book which in its existing form remains almost without a rival in public

viii

Preface to Eighth Edition.

estimation

the

editor
in

though delicate
result.

detail,

has judged that his work, should be slight in total

to

His plan, in the main, has been simply

though for the late author's consideration, those amendments, many of them purely verbal, to which he likes to believe that the author's approval,
been possible to ask for it, would have been In those rare cases where he lets in a reflecgiven.
it

draft, as

had

tion of his

own,

it

is

so

worded

as not to leave its

source in doubt.

In deciding as to the utility of particular changes he has been guided by his notion of the needs of
"

the average student."

is

It

is

also

by his sense

of

those needs that he

prompted

to interpose at this

point a word in regard to the type of argument that It may gives its general character to the book.
easily

happen that a passage

will

so written as not too

violently to disturb the

thinking habits of the normal

mind

by that very fact lose something of value

to those readers

whose goal it is, even at the cost of some mental discomfort, to arrive at a deeper understanding of the law. That which Lord Coke described " " as the artificial reason and judgment of the law is what the serious student must learn to exercise in his own behalf and one of the functions of elementary
;

jurisprudence
Sir

is

to drive this

primary lesson home.

differentiating

John Salmond, however, though

the
analytical

neatly at the outset

from the other

modes

of approach to the study of law, gives express reasons for not choosing himself to present an exclusively analytical treatment. Furthermore, though

Preface to Eighth Edition.

ix

noticing here and there an illustration of the law's " relative unconcern for the truth of things," he seems in some other contexts implicitly to assume a
necessaril}'

close

correspondence of each with the

other.

A
for a

text re-written in a

more pedantic
It

spirit

would
be

not, therefore,

have been a due answer

"

to the

demand

new
if

edition of

Salmond."
is

may however
;

useful

himseK

What
it

the student
is it

advised fairly often to ask

legal theory of

we now are discussing is it the modern England, or that of ancient

Rome, or is

rather a point of general, or of universal,

jurisprudence ? Or are we now afloat upon the wide waters of the extra-legal and, if yes, then in whose

company

that

of

the

legislator,

or

of

the

moral

philosopher, or of the political scientist, or of the mere politician ? The answers to these questions, when

once they have been asked, ought as a rule to be perfectly plain and of an importance to justify their
asking.
is a purely personal view. verbal slight changes, already referred to, are without scattered, distinguishing mark, throughout

All this, of course,

The

the

book.

For

this

policy

the

editor

alone

is

responsible.

The reader who

:

notices

faults in

the

present edition will therefore do justly if he presumes them to be new and the seventh edition will perhaps

be

at

hand

if

he wants

to

make

sure.

C. A.
London,
October, 1930.

W. M.

(^i)

CONTENTS.
I>s^TEOUUCTlON.

THE SCIENCE OF JUBISPBUDENCE.

SECTION.
1.

2.
3.
4.

Jurisprudenc-e as the Science of Civil Law ... Theoretical or General Jurisprudence ... Analytical, Historical, and Ethical Jurisprudence

PAGE 1

2
.,

English and Foreign Jurisprudence

BOOK

I.

THE NATUBE AND SOUBCES OF LAW.

xii

Contents.

CHAPTER
S8CTI0^

III.

CIVIL LAW (continued).

Contents.

Xlll

CHAPTER
8BCTI0N.

VI.

THE SOUECES OF LAW. l/

PAOB

44.

45. 45.
47.

Formal and Material Sources Legal and Historical Sources The Legal Souroee of English Law Sources of Law and Sources of Rights
Ultimate Legal Principles

48.

164 164 167 168 169

CHAPTER
49.

VII.

LEGISLATION.

The Nature

of Legislation

171

50.
51.

Supreme and Subordinate Legislation ... Relation of Legislation to other Sources

Codification

52.
53.

The Interpretation

of

Enacted

Law

173 176 180 181

CHAPTER
54.

VIII.
\

PBECEDENT.

55. 56.
57.

58.
59. 60. 61.

The Authority of Precedents ... ... Declaratory and Original Precedents ... Authoritative and Persuasive Precedents ... ... The Absolute and Conditional Authority of Precedents The Disregard of Precedent
Precedents Constitutive, not Abrogative Grounds of the Authority of Precedents The Sources of Judicial Precedents Respective Functions of Judges and Juries

... ... ...

62.

187 188 191 192 193 197 198 202 204

CHAPTER
CUSTOM.
63. 64. 65.

IX.

The Early Importance of Customary Law Reasons for the Reception of Customary Law
Kinds
of

Custom

66.
67.
68.

Conventional Custom Local Custom ...

69.

Custom and Prescription ... The Greneral Custom of the Realm

207 208 210 211 216 221 224

xiv

Contents.

BOOK

II.

THE ELEMENTS OF THE LAW

CHAPTER
BBCTION.

X.

LEGAL RIGHTS.
PAGE

70.
71.

Wrongs
Duties

72.
73.

74.
75. 76.
77.

Rights The Elements of a Legal Right Legal Rights in a Wider Sense of the Term
Liberties

Powers
Duties, Disabilities, and Liabilities

235 236 237 241 246 246 248 250

CHAPTER

XI.

THE KINDS OF LEGAL EIGHTS.

78.
79.

80.
81.

Perfect and Imperfect Rights The Legal Nature of Rights against the State Positive and Negative Rights Real and Personal Rights

82. 83. 84.

85.

Proprietary and Pei-sonal Rights Rights in re propria and Rights in re aliena Principal and Accessory Rights Legal and Equitable Rights

253 255 257 258 264 268 272 274

CHAPTER

XII.

OWNEBSHIP.
86. 87.
88.

89. 90. 91.

92.

The Definition of Ownership Corporeal and Incorporeal Ownership Corporeal and Incorporeal Things Sole Ownership and Co-ownership Trust and Beneficial Ownership Legal and Equitable Ownership Vested and Contingent Ownership

277 278 281

...
...
... ...

283 284 288 289

Contents.

xv

CHAPTER
6ECTI0N.

XIII.

POSSESSION.
93. 94. 95. 96. 97.
98. 99.

^
PAGE

Introduction Possession in Fact and in

Law

...

293 294
296

100.

Corporeal and Incorporeal Possession Corporeal Possession The Animus Possidendi The Corpus of Possession Relation of the Possessor to Other Persons Relation of the Possessor to the Thing Possessed

297 299 301 301

307

CHAPTER

XIV.

POSSESSION (continued).
101.

Immediate and Mediate Possession

Concurrent Possession
...

... ...
...

... ... ...

...
... ...

... ... ...

309 313 314 316 319 322

324

102.
103.

... ...

The Acquisition

of Possession

104.
105. 106. 107.

Possession not Essentially the Physical Power Incorporeal Possession Relation between Possession and Ownership

of Exclusion

Possessory

Remedies

...

...

...

...

...

...

CHAPTER XV
PEKSONS.
108.

109.
110.

111.

112.
113.

Nature of Personality Legal Status of the Lower Animals Legal Status of Dead Men ... Legal Status of Unborn Persons Double Personality Legal Persons
Corporations
...

The The The The

114.
115.
116.

329 330 332 334 335 336 339

117. 118.

119.

The The The The The

Agents, Beneficiaries, and Members of a Corporation Acts and Liabilities of a Corporation

343 344 347

351
351

Uses and Purposes of Incorporation Creation and Extinction of Corporations State as a Corporation

XVI

Contents.

CHAPTER
TITLES.
SECTION.

XVI.

PA08

120. 121. 122. 123. 124.

Veetitive

Facts

Acts in the

Law

Agieements

The Classes of Agreements Void and Voidable Agreements

357 359 363 365 367

CHAPTER XVI]
LIABILITY.
125.
126.

127.
128. 129. 130.

The Nature and Kinds of Liability The Theory of Remedial Liability The Theory of Penal Liability
Acts

Two

Classes of

Wrongful Acts
of

Damnum

Sine Injuria

131.
132.

The Place and Time

an Act

Mens Bea

377 378 379 381 385 387 388 390

CHAPTER

XVIIl.

INTENTION AND NEGLIGENCE.

133. 134. 135. 136.

137.
138.
139.

The Nature of Intention Intention and Motive Malice ... Relevance and Irrelevance of Motives Criminal Attempts ... Other Exceptions to the Irrelevance of Jus Necessitatis
... Negligence Objection Considered

>

>

140.
141.

142.

The Standard

of

Care

143.
144.

Degrees of Negligence Other Theories of Negligence

Contents.

xvii

CHAPTER
SECTION.

XIX.

LIABILITY (continued)
PAGE

145. 146.

Wrongs

147.
148.

149.
150.
151.

Mistake Mistake of Fact Accident Vicarious Responsibility The Measure of Criminal Liability

of Absolute Liability of Law

424 426 428 429

The Measure

of Civil Liability

...

432 435 441

CHAPTER XX.
THE LAW OF PROPERTY.
152.
153. 154. 155. 156.
157.

Meanings of the Term Property ... Kinds of Property ... The Ownei-ship of Material Things Movable and Immovable Property Real and Personal Property
Rights in re Leases ... Servitudes
Securities

proprm

in Immaterial Things

158. 159.
160.

161.
162.
163. 164.

Modes of Acquisition Prescription ...

Agreement
Inheritance

Possession

443 445 446 448 452 453 456 458 460 465 466 471 474

CHAPTER

XXI.

THE LAW OF OBLIGATIONS.

165. 166. 167.
168. 169.

The Nature

Obligations Solidary Obligations The Sources of Obligations Obligations Arising from Contracts Obligations Arising from Torts ...
Obligations Arising from Quasi-Contracts Innominate Obligations

of

170.
171.

480 482 485 486 486 490 493

S.J.

XVlll

Contents

CHAPTER
SRCTION.

XXII.

THE LAW OF PROCEDURE.

PAOB

172.
173.

Substantive Evidence
Tlie

Law and

the

Law

of Procedure

174. 175.

The Valuation

of Evidence Production of Evidence

495 498 501 506

APPENDICES.
I.

II.

III.

IV. V. VI. VII.

The The The The The

Names

of the

Law

...

Theory of Sovereignty

of the Law ... Divisions of the Law Territory of the State International Law ...

Maxims

Authorities

513 524 532 539 545 556 561

INDEX

567

JUEISPEUDENCE.
INTRODUCTION.
THE SCIENCE OF JUEISPRUDENCE.

1.

Jurisprudence as the Science of Civil Law.

In a generic and primary sense jurisprudence includes

the entire body of learning in regard to law. It is jurisprndentia- the knowledge of law^and in this sense all law books are books of jurisprudence. By law in this connec-

tion

is

meant exclusively the

civil law, the

as opposed to those other bodies of rules to of law has been extended by analogy. If

law of the land, which the name we use the term

"science" in its widest permissible sense, as including the systematised knowledge of any subject of intellectual inquiry, we may define jurisprudence as the science of
civil law.

Of jurisprudence
namely,

in this sense there are three kinds

(3) (1) legal exposition, (2) science of legislation. The purpose of the first is to set forth the contents of an actual legal system as existing The purpose of the at any time, whether past or present.

legal histon^, and

the

second

is

to set forth the historical process

whereby any

legal system of the third

came
is

to

be what

it

to set forth not

The purpose what the law is or has

is

or was.

It deals not with the past been, but what it ought to be. or present of any legal system, but with its ideal future, and with the purposes for which it exists. The complete scientific treatment of any body of law involves the adoption
H3.J.

The Science of Jurisprudence.

The law must be

[ 1

of each of these three methods.

dealt

dogmatically in respect of its contents, historically in respect of the process of its development, and critically in respect of its conformity with justice
systematically
or

with

and the public interest. The first of these methods is that of expository or systematic jurisprudence; the second is that of legal history; while the third pertains to that branch of legal science which, for want of a better name,
is

commonly termed the

2.

science of legislation.

Theoretical or General Jurisprudence.

jurisprudence in its generic sense, as including the entire body of learning in regard to law, it is necessary to distinguish jurisprudence in a more specific sense, in

From

which

it means a particular department of such learning In this limited significance it may be termed exclusively. theoretical or general jurisprudence to distinguish it from

the more practical and special departments of legal study. It is with this only that the present treatise is concerned.

How, then, shall we define it; and how distinguish it from the residue of legal science? It is the science of civil law in general and of the first principles of the civil law. It is not possible, indeed, to draw any hard line of logical division between those first principles and the remaining The distinction is one of degree rather portions of the law. than of kind. Nevertheless, it is expedient to set apart, as
the subject-matter of a special department of study, those more fundamental conceptions which serve as the essential

raw material and those broad principles which serve as the basis and steel framework for the concrete details of the law. This introductory and general portion of legal
doctrine, cut
off

the special portions which come after

for reasons of practical convenience from it, constitutes the

subject-matter of this treatise. The fact that its boundaries are not capable of being traced with logical precision

2]

The Science

of Jurisprudence.
to

detracts in no degree

from the advantages

be derived

from

recognition and separate treatment as a distinct department of scientific inquiry. Practical legal exposition
its

acknowledges no

call

to

rise

to

first

proceed to ultimate analysis.

It

takes

principles, or for granted,

it is

to as

postulates and data, many things which of theoretical jurisprudence to inquire

the business

into.

From

the

point of view of the application of law as an art, the importance of conceptions and principles varies Theoreinversely with their abstractness and generality.
tical
to

jurisprudence, on the contrary, attributes value the abstract and the general rather than to the concrete

and the particular. Even when these two departments of knowledge are coincident in their subject-matter, they are far apart in their standpoints, methods, and purposes. The aim of the abstract study is to supply that theoretical foundation which the science of law demands, but of which the art of law is careless. It must not be supposed that the object of this branch of legal science is an elementary outline of the concrete
legal
It deals not with the outlines of the system. law, but with its social context and its ultimate conceptions. Theoretical jurisprudence is not elementary law, any more

than metaphysics is elementary science. This introductory portion of legal doctrine goes by divers names. It is called theoretical jurisprudence, as being concerned with the theory of the law that is to say, its fundamental principles and conceptions rather than its

practical

and concrete

details.

It

is

also,

and for the

same reason, known

as general jurisprudence (juris prudentia It is also called the philosophy generalis or universalis).

of law (Rechtsphilosophie ; philosophie du droit), the term " " philosophy being here used, not in the sense of metaphysics though it is true that much of the Continental

literature of jurisprudence has a metaphysical aspect very alien to English modes of legal thought but in the sense

The Science of Jurisprudence.

[ 2

of an inquiry into tlie first principles of any department of thought. It is also known as jurisprudence simpliciter, without any qualifying adjective to distinguish it from the

residue

of

legal

doctrine.

This

specialised

use

of

the

generic term cannot be justified from the point of view of philology; but it is of practical convenience, and may

be regarded as well established in modern English speech. Indeed, it would be an improvement in legal nomenclature
the term "jurisprudence were used exclusively in this specific sense as meaning the theory or philosophy of law, the use of the term in its original and generic sense, as
if

"

meaning

legal learning in general, being discontinued {a).

3.

Analytical, Historical

and Ethical Jurisprudence.

sense as theoretical jurisis divisible into three

Jurisprudence, in
branches,

its specific

prudence or philosophy of law,

historical,

which may be distinguished as analj^tical, and ethical. This distinction corresponds to that which has been already indicated as existing within the
sphere of legal science in general
"

namely,

the distinction

(o) The term general jurisprudence" involves the misleading suggestion that this branch of legal science is that which relates not to any single

system of law, but

to those conceptions

and principles that are

to be found

in all developed legal systems, and which are therefore in this sense general. It is true that a great part of the matter with which it is concerned is

common

All of these have the same essential to all mature systems of law. nature and purposes, and therefore agree to a large extent in their first But it is not because of universal reception that any principles principles. For this purpose such reception pertain to the theory or philosophy of law. Even if no system in the world save that is neither sufficient nor necessary.
of

England recognised the legislative efficacy of judicial precedents, the theory of case-law would none the less be a fit and proper subject of general jurisprudence. JuHsprudentia generalis is not the study of legal systems in general, but the study of the general or fundamental elements of a
particular legal system. At the same time, however,

" " in the further sense it is also general that it ordinarily opens with some more or less dogmatic assertions on the nature of civil law in general as a normal feature of organised human
society.

3]

The Science of Jurisprudence.

between legal exposition, legal history, and tlie science of The philosophy of law, being the introductory legislation.
portion
of

legal

science

in

general,

involves
is

the

same

tripartite division.

Analytical jurisprudence

the general

or philosophical part of systematic legal exposition, historical jurisprudence is the general or philosophical part of legal history, and ethical jurisprudence is the general

part of the science of legislation.

ethical

These three aspects of the law dogmatic, historical, and are so involved with each other that the isolated

is A necessarily inadequate. complete treatise of jurisprudence would deal fully with all three branches of the subject. In fact, however, most

treatment of any one of them

treatises relate primarily

of them,

only so

and essentially to one or other and deal with the others only incidentally, and far as may be necessary to render adequate and
It is not

intelligible the treatment of the central theme.

difficult, therefore, to classify

most books of jurisprudence

or legal philosophy as pertaining primarily either to the analytical, or to the historical, or to the ethical branch
of the subject.

jurisprudence
as as

Analytical Jurisprudence. The purpose of analytical is to exhibit civil law in its environment

an institution of organised human society, as well to their either to without reference analyse,

historical

origin or development or to their ethical significance or validity, the first principles of the law. Since the distinction between jurisprudence and the

practical exposition of a concrete legal system is merely one of degree, opinions may well differ to some extent
as
to

the matters which deserve a place in the former

department of legal science. Speaking generally, however, a book of analytical jurisprudence will deal appropriately
with such subjects as the following:
(1)

An

analysis of the conception of civil law;

The Science of Jurisprudence.

(2)

[ 3
civil

An

and other forms

(3)

examination of the relations between of law

;

law

An

analj^sis of the various companion ideas with which the complex idea of law is intimately bound up for example, those of the state, of sovereignty, and of the administration of justice;

(4)

An

historical)

account of the legal (as opposed to the merely sources from which the law proceeds,

together with

legislation, judicial precedents,

(5)

an investigation of the theory of and customary law;

An
law

inquiry that

is

into the scientific arrangement of the to say, the logical division of the

corpus juris into distinct departments, together with an analysis of the distinctions on which this
division
(6)
is

based.

An

analysis of the conception of legal rights, together with the division of rights into various classes, and

the general theory of the creation, transfer, and extinction of rights.

(7)

An
An

investigation of the theory of legal liability, civil

and criminal.
(8)

examination

of

any other

legal

conceptions
signifi-

which, by reason of their theoretical interest,

philosophical point of view
session,
:

cance, or difficulty, deserve special attention from the

such as property, postrusts,

obligations,
acts,

contracts,

personality,

incorporation,

causation,
others.

intention,

motive,

negligence, and

many

Historical Jurisprudence

That

branch of legal philoIt bears

sophy which

is

termed

historical

general portion of legal history.

jurisprudence is the much the same

relation to legal history at large as analytical jurisprudence bears to the systematic exposition of the legal system. It deals in the first place with the general tendencies manifested in the origin

and development

of law.

It deals in

3]

The Science

of Jurisprudence.

the same conceptions and principles, that

are dealt with in another

second place with the origin and development of those legal conceptions and principles which are so essential in their nature as to deserve a place in the philosophy of law
tlie
is

to say,

which
of

manner and from another point

view by analytical jurisprudence.

is

the history of the

first

Historical jurisprudence principles and conceptions of the

legal system.
.

Ethical jurisprudence deals with Ethical J urisfrudence the law from the point of view of its ethical significance and adequacy. It is concerned not with the intellectual
content of the legal system or with its historical development, but with the purpose for which it exists and the measure and manner in which that purpose is fulfilled. Now the purpose and end of the law may be said generally to be the maintenance of justice within a political com-

munity by means
Ethical

of

jurisprudence
its

theory of justice in

physical force of the State. concerned, therefore, with the It is the meetingrelation to law.

the

is

point and common ground of moral and legal philosophy Justice in its general aspect of ethics and jurisprudence. and relations pertains to ethics or moral philosophy. Justice in its special aspect, as the final cause of civil law,

pertains to that branch of legal philosophy which distinguished as ethical jurisprudence.

we have

A
itself
(1)

book of ethical jurisprudence, therefore, may concern with all or any of the following matters
:

(2)
(3)

The conception of justice. The relation between law and justice. The manner in which law fulfils its purpose
taining justice.

of

main-

(4)

The

distinction, if

any such there

be,

between the

of law, and sphere of justice as the subject-matter those other branches of right with which the law is not concerned and which pertain to morals exclusively.

8
(5)

The Science of Jurisprudence.

The
ethical significance

[ 3

conceptions

and validity of those legal and principles which are so funda-

mental in their nature as to be the proper subjectmatter of analytical jurisprudence. Further than this the proper scope of ethical jurisprudence does not extend.
this

So far as any book goes beyond

general theory of justice in its relation to law, it passes over either into the sphere of moral philosophy itself,

or else into the sphere of that detailed criticism of the actual legal system, or that detailed construction of an ideal
legal system,

which pertains not to jurisprudence or legal philosophy but to the science of legislation. The present treatise is primarily and essentially a book
In this respect
it

of analytical jurisprudence.
to

endeavours

main current of English legal philosophy rather than that which prevails upon the Continent of
follow the

Europe, and which, to a large extent, is primarily ethical its scope and method. But although the essential purpose of this book is an analysis of the first principles of the
in

actual legal system, this purpose is not pursued to the total exclusion and neglect of the ethical and historical aspects of the matter. These are treated, however, as subsidiary,

and are dealt with only so far as is thought necessary for the adequate treatment of the central subject-matter. A different method is doubtless possible. The writer of a
book of analytical jurisprudence may say that the ethical and historical points of view are no concern of his. He

may
tual

say that he content of

its

is

the

concerned exclusively with the intelleclaw as it actually exists, without

signifi-

reference to

end or purpose, the ethical quality or

or

cance of

its

doctrines,

the

historical
is

He may say that he history of law to the historian, and

development.

process of its content to leave the

its

moral

philosopher.

There

are,

indeed,

ethical aspect to the some books of

English jurisprudence which approach closely to this type, if they do not No adequate exposition, actually reach it.

3]

The Science

of Jurisprudence.

however, can so completely ignore the other branches of

the subject. The total disregard of the ethical implications of the law tends to reduce analytical jurisprudence to a system of rather arid formalism and the total disregard of historical origins and development is inconsistent with
;

the adequate explanation of those principles and conceptions with which it is the business of this science to deal (6).

4.

English and Foreign Jurisprudence.

When an English lawyer with any knowledge of the terminology of Roman law comes to the study of a practical law-book of France or Germany he finds himself on ground
not wholly unfamiliar. If, however, he ventures into the region of Continental legal philosophy, he finds himself a stranger in a strange land where men speak to him in an

unknown tongue.

For

this divergence

between the

juristic

thought and literature of England and that of the Continent there is more than one reason, but the most farreaching cause of it legal nomenclature.
is

to

be found in a certain difference in

"

The English word

law " means law

and nothing

but the corresponding terms in Continental languages are ambiguous, and mean not only law but also right or justice. Recht, droit, and diritto all have An English lawyer is helped to this double signification.
else;

an understanding of this ambiguity,

similar double
(b)

if

he

reflects that a

meaning
as

is

possessed in

England by the term

What

is

known

connparative jurisprudence

namely,

the

of the resemblances

and differences between

different legal

systems

study not
is

a separate branch of jurisprudence co-ordinate with the analytical, historical, and ethical, but is merely a particular method of that science in all its

branches.

We

compare English law with Eoman law

;

either for the purpose

of analytical jurisprudence, in order the better to comprehend the conceptions and principles of each of those systems or for the purpose of historical jurisprudence, in order that we may better understand the course of develop-

each system or for the purpose of ethical jurisprudence, in order that we may better judge the practical merite and demerits of each of them. Apart from such purposes the comparative study of law would be merely
of
;

ment

futile.

10
"

The Science

of Jurisprudence.

[ 4

equity," whicli means either natural justice or that particular branch of English law which was developed and The union of these two applied by the Court of Chancery.
distinct

though related meanings in the same words in

Continental speech, while there is in general no such union in English speech, has produced important divergences between the juristic thought and literature of England and
that of the Continent.

place any translation of Continental juristhe English language becomes largely unintelligible if, as is usually the case, the rough-and-ready device is adopted of translating as a matter of course the
first

In the

prudence

into

terms Recht, droit, and diritto into the term "law." Such a version makes no distinction between those propositions
to justice, and those by reference to some common element possessed or supposed to be possessed by

which which

relate to law, those

which relate
to justice

relate both to

law and

each.

In the second place, the fact that in Continental languages law and justice are called by the same name serves on the one hand as a constant reminder of the real relation

which
to

exists

to create oblivion of the real distinction

between them, but tends on the other hand between them and

identification of distinct things.

effect is

induce accordingly a certain confusion of thought by the In England the opposite

produced.

On

the one

hand the

fact that

we have

justice, and cannot use the same word for both purposes, is a constant reminder that these are two different things and not the same thing.

different

words for law and

On

the other

hand the

fact that they are never called

by

the same

hide from view the real and In other intimate relation which exists between them. words, Continental speech conceals the difference between
tends to

name

law and right, whereas English speech conceals the connection between them. In the third place, and for the same reason, English

4]

The Science

of Jurisprudence.

11

jurisprudence tends naturally to assume tlie analytical and historical form to the exclusion of the ethical. Continental
jurisprudence, on the contrary, tends naturally to assume the ethical form. In England there is readily and naturally

concern

evolved a theory of law which does not at the same time itself with justice. But on the Continent the

theory of Recht and droit almost necessarily concerns itself with both senses of those terms and with the relation

between the things

so signified. The resulting predominance of the analytical method in England and of the ethical method on the Continent is a characteristic distinction

between English and Continental jurisprudence in their

typical forms.

Lastly, it is to be observed that Continental jurisprudence distinguished from English not merely by its ethical, but also by its metaphysical, character. The latter quality
is

has

its

source in the former, for ethics tends naturally to

run into metaphysics, whereas the science of law itself is ready and willing to walk in lowlier paths. " to denote excluThe use of the term "
jurisprudence
special branch of learning which we have termed theoretical or general jurisprudence is a peculiarity of English nomenclature. In foreign literature jurisprudence
sively

that

and

its synonyms include the whole of legal knowledge, and are not used in this specific and limited signification.

The foreign works which correspond most accurately to the English literature of this subject are of the following kinds
:

known as legal encyclothe general introductory treatment of the legal system, preparatory to the practical study of A good example is the Juristische the corpus juris itself.
1.

pedia

that

Works devoted
is

to the subject

to say,

EncyMopadie of Arndts, who defines this department of " a scientific and systematic legal literature as comprising outline or general view of the whole province of jurisprudence (Rechtswissenschaft), together with the general

12

The Science

of Jurisprudence.

[ 4

data of that science."

"Its purpose," lie adds, "is to determine tLe compass and limits of jurisprudence, its

mutual

relation to other sciences, its internal divisions, " relations of its constituent parts (c).

and the Another

is Puchta's Encyklopddie, being the introductory portion of his Cursus der Institutionen, and translated by Hastie under the title of Outlines of Jurisprvdence (1887). The Rechts-EncyHopddie of Gareis has been translated by

example

Kocourek under the

title of

The Science
"

of

Law

(1911) (d).

The name
slehre) is

"

general jurisprudence

[allgemeine

Recht-

sometimes given to this form of legal literature, as in the case of Merkel's Elementre der allgemeinen Rechtslehre (e).
of

The introductory and more general portions of books that is to say, modern Roman law. German lawyers have devoted great acumen to the analysis and exposition of the law of the Pandects in that modern
2.

Pandehtenrecht

form in which it was received in Germany until superseded by recent legislation. Much of the work so done bears too
special a reference to the details of the Roman system to be in point with respect to the theory of English law. The more general portions, however, are admirable examples of

the scientific analysis of fundamental legal conceptions. Special mention may be made of the unfinished System of

Modern Roman Law by Savigny, and

of "Windscheid

of the similar

works

and Dernburg (/). 3. The introductory and general portions of the systematic treatises devoted to those codes of law which in modern times have superseded Roman law throughout the
Continent of Europe.

The

better sort of such treatises are

(c)

{d)
(e)
(/)

Juristische Encyklopadie und Methodologie, p. 5 (9th ed.), 1895. See also Bierling's Juristische Principienlehre (1894). Holtzendorff's Encyklopadie der Eechtswissenschaft (5th ed.), 1890.

In 1855 Lord Lindley published, under the title of An Introduction Science of Jurisprudence, an annotated translation of the General Part of Thibaut's Pandektenrecht.
to the

4]

The Science

of Jurisprudence.

13

distinguislied from tlie ordinary type of English law-book by a careful analysis of first principles, such as is commonly left in England to the labours of writers on theoretical

jurisprudence
4.

(g).

Books of RechtspJiilosophie or philosophie du droit. All of these, however divergent inter se in their philosophic
of one

standpoints or their methods, are essentially and generically and the same nature, as contrasted with the normal

of English analytical jurisprudence. They are primarily books of ethical jurisprudence. Their central subject-matter is not, as with English jurisprudence, the

type

theory of civil law in

itself,

but the theory of justice

treated with special reference to the civil law. They deal primarily with droit or Recht in the sense of right {droit natural, Naturrecht), and only in a secondary manner with

Recht in the sense of positive or civil law (h). history of this Continental literature of RechtspJiilosophie may be regarded as divided into two distinct
droit or

The

periods.

The earlier period is that of the juris prudentia naturalis of the seventeenth and eighteenth centuries. The

under the influence of Kant, jurisprudence and ethics were annexed as part of the domain of metaphysics. The earlier period is represented by such
later is that in which,

writers

as

Grotius,
(i).

Burlamaqui

Pufendorf, Wolff, Thomasius, and This celebrated and influential litera-

(g) See, for example, Gierke's Deutsches Privatrecht (1895), which coatains an admirable exposition of the first principles of legal theory.

[h)

ethical

ou

droit (Ist ed.), 1837, (8th ed.), 1892, vol. I., p. 1), La philosophie le droit naturel, est la science qui expose les premiers principes

In the words of Ahrens, a noted representative of this school of and legal speculation (Cours de droit naturel ou de philosophie du "

du droit, du droit

con9us par la raison et fondes dans la nature de I'homme, consid^ree en elle-meme et dans ses rapports avec I'ordre universel des choses." (i) Grotius, De Jure Belli ac Pacis, 1625; Pufendorf, De Jure Naturae et Gentium, 1672; De Officiis Hominis et Civis, 1673; Elementa Juris Universalis, 1660; Thomasius, Fundamenta Juris Naturae et Gentium, 1705; Institutiones Jurisprudentiae Divinae, 1702; Wolff, Jus Naturae, 1740-1748, 8 vols. Burlamaqui, Principes du droit de la Nature et des
;

Gens, 1766.

14

The Sciexce of Jurisprudence.

[ 4

ture was devoted to the theory and principles of natural justice conceived as a body of rules authoritatively laid

down as natural law [lex naturae), just as civil justice consists of the rules authoritatively imposed through civil law. The commencement of the second and metaof law

physical period in the history of the Continental philosophy may be regarded with sufficient accuracy as com-

mencing with the publication in 1796 of Kant's MetaSince that physical First Principles of Jurisprudence [Jc). date there has developed on the Continent a literature of
this subject, formidable both in bulk

and character.

It is

represented by typical examples translated and published in America by the Association of American Law Schools
title of The Modern Legal Philosophy Series. An and critical account of it is to be found in one of the volumes of that series, being a translation of a work of Berolzheimer under the title of The World's Legal PhiloNotable examples, contained in the same series, sophies. of this type of ethical-juristic speculation are The General Theory of Law, by Korkunov, and The Philosophy of Law, by Kohler. Most of this literature is remote from the main current of English legal thought. It is for the most part so far devoted to metaphysics rather than to science, and to ethics rather than to law, and condescends so little to the facts of the concrete legal system, as to have little direct bearing on the task and problems to which the traditional

under the

historical

jurisprudence of England has been devoted. Rechtsphilosophie of this type, however, is not wholly unrepresented even in English literature. A notable example is the work
Institutes of Law a Treatise of the Principles of Junsprudence as determined hy Nature, of which a second edition was published in 1880 (/).

of Lorimer called

The

translated by Hastie fk) Metaphysische Anf angsgrunde der Rechtslelire onder the title of The Philosophy of Law, 1887. il) Other English Lectures on the Philosophy of Law, examples are by Miller, 1884; An Outline of Legal Philosophy, by Watt, 1893; Lectures
; :

4]

The Science

of Jueisprudence.

15

On

the other hand, the earlier Continental literature of

natural law in the seventeenth and eighteenth centuries may fairly be regarded as one of the sources from which, in
the nineteenth century, English analytical jurisprudence was derived. The theory of natural law and natural justice, as
is so

developed by Pufendorf and others of that school, connected with the theory of civil law and civil justice
is

that jurisprudentia naturalis of this type

readily trans-

into jurisprudentia civilis. Indeed the very term juris prxidentia generalis or universalis, by which English

muted

analytical jurisprudence is distinguished, was originally a synonym of jurisprudentia naturalis itself (w.).

The main current

prudence

of

may

be said to have

modern English analytical jurisits source in the work of

of Jurisprudence in the then recently established University of London, and

John Austin, who occupied the chair

in 1832 a

who published
incorporated in

Jurisprudence Determined.

work entitled The Province of After his death this book was a larger work including his unpublished

Philosophy of Positive
definitely

manuscripts, and entitled Lectures on Jurisprudence, or the Law (1863). In this work Austin
departs

from the

earlier

tradition

of

juris-

prudentia naturalis and accepts the first principles of the civil law itself as the proper subject of scientific or
philosophical investigation {n),
(o),

[p).

on the Philosophy of Law, by Stirling, 1873; The Theory of Law and Civil Society, by Pulszky, 1888. (m) One of the last examples in England of the literature of natural jurisprudence, in order that we may better understand the course of developof Universal Jurisprudence, by John Penford Thomas, of Queens' College, Cambridge, of which a second edition appeared in 1829. It expounds the first principles of the law of nature, the civil law, and the law of nations. The traditional doctrine of natural law in the form received from Aquinas and the Schoolmen is still the subject of modern literature within the Eoman Catholic Church. An excellent example is the work entitled Moral Philosophy or Ethics and Natural Law, by Joseph Eickaby (3rd ed.), 1892. (n) The doctrine so established by Austin of a science of analytical
See notes
id)

(o)

(p)

(p), p.

16.

16

The Science of Jurisprudence.

[ 4

jurisprudence distinct from historical or ethical jurisprudence has been followed since his day by a series of English writers, including the following Markby, Elements of Law (6th ed.), 1905; Holland, Elements of Jurisprudence (12th ed.), 1916; Hearn, The Theory of Legal Duties and Eights, 1883; Amos, The Science of Jurisprudence, 1872; Lightwood, The Nature of Positive Law, 1883; Kattigan, The Science of Jurisprudence (2nd ed.), 1891; Sir Frederick Pollock, First Book of Jurisprudence (5th ed.), 1923; Gray, The Nature and Sources of the Law, 1909; Terry, Leading Principles of Anglo-American Law, 1884; Goadby, Introduction to the Study of Law (3rd ed.), 1921; Brown, The Austinian Theory of
:

Law,
(o)

1906.

good account of the various schools of jurisprudence is to be found articles by Professor Eoscoe Pound in the Harvard Law Eeview The Scope and Purpose of Sociological Jurisprudence, H. L. E., vol. 24, p. 591; vol. 25, p. 140 and p. 489. See also the same writer'a Introduction to the Philosophy of Law (1922), and Sir Paul Vinogradoff's
in

A
:

a series of

Outlines of Historical Jurisprudence (1920), vol. I., Introduction. (p) In the text I have dealt with jurisprudence as the science of civil " " law has been extended by analogy law exclusively. But just as the term " to include other bodies of rules than the civil law, so the term jurispru-

has suffered a similar analogical extension, though in a smaller degree. dence Being jurisprudentia the knowledge of jus it may be regarded as including any form of law in the sense of jus. Thus, we may speak of international

"

jurisprudence dealing with the ju^ gentium, as well as of civil jurisprudence It is more usual, however, and more dealing with the jus civile. conducive to acxiuracy of thought and speech, to disregard all such analogical extensions of this term, and to confine jurisprudence to the science or
doctrine of the civil law alone.

BOOK

I.

THE NATURE AND SOURCES OF LAW.

S.J.

19

CHAPTER

I.

THE KINDS OF LAW.

5.

Law

in General.

Ix

its

widest
that
is

sense
to

the

term law

includes

any rule

of

say, any standard or pattern to which actions (whether the acts of rational agents or the operations In the words of of nature) are or ought to be conformed.

action;

Hooker
in its

"

(a)

We

actions are framed a law."

term any kind of rule or canon whereby So Blackstone says (b) "Law
:

most general and comprehensive sense

signifies

a rule

of action,

and is applied indiscriminately to all kinds of actionwhether animate or inanimate, rational or irrational. Thus

we

say, the laws of motion, of gravitation, of optics or mechanics, as well as the laws of nature and of nations." Of law in this sense there are many kinds, and the following

sufficiently important and distinct to deserve separate mention and examination (2) Physical (1) Imperative law or Scientific law; (3) Natural or Moral law; (4) Conventional

are

law; (5) Customary law; (6) Practical or Technical law; (7) International law or the law of Nations; (8) Civil law or the

law

of the state. Before proceeding to analyse and distinguish these, there are the following introductory observations to be made:

not based on any logical scheme of division or classification, but is a mere simpiex enumeraiio of the chief forms of law in the widest sense of that term.
(1)

This

list is

to

same rule from belonging (2) There is nothing to prevent the more than one of those classes. The same rule may possess more than one aspect or quality, by virtue of which it may belong concurrently to more than one species of law.
(a)

Ecclesiastical Polity, I, 3, 1.

(6)

Comm.

I.

38.

20

The Kinds of Law.

[ 5

(3) It may be that some of those classes are mierely subIt is, for example, a widely species of some other class. received opinion that civil law is merely a particular kind of international law is regarded So, also, imperative law.

variously by different authorities as a kind of conventional law However this may be, it is or as a kind of customary law.

convenient to classify those forms of law as co-ordinate with the others, partly on account of their special importance, and partly because of the fact that opinions differ as to the generic

form

to

which they

(4)

Any

really belong. discussion as to the rightful claims of any of those

classes of rules to be called laws

any attempt to distinguish laws properly so called from laws improperly so called would seem to be nothing more than a purposeless dispute about

words.

Our business
and

is

to recognise

that they

are

in

fact

called laws,

classes of

between the different rules that are thus known by the same name.
to distinguish accurately

We

proceed, accordingly, to deal briefly with each class in

its order.

6.

Imperative Law.

Imperative law means a rule of action imposed upon men by some authority which enforces obedience to it. In other words, an imperative law is a command which prescribes

some general course of action, and which is imposed and The instrument of such enforced by some superior power. enforcement is not necessarily physical force, but may consist

any other form

(c)
:

of constraint or

actions of
dorf

men mav
Lex
ad
est
istius

be determined.

compulsion by which the In the words of Pufen-

quo superior sibi subjectum praescriptum actiones suas componat. " A law," says Austin (d), "is a command which obliges a person or persons to a course of conduct." A law in this
obligat,

decretum

ut

The first sense therefore possesses two essential attributes. of these is generality. A command, in order to amount to a
law,

must assume the form

(c)

of

general rule; a particular

et Civis, I, 2, 2.

De

Officiis

Hominis

(d)

Jurisprudence,

I, 96.

6]

The Kinds of Law.

21

command,

requiring obedience in the individual instance merely, does not possess the essential characteristic of a law. The second requisite is enforcement by authority. A rule the

observance of which

is is

left to

whom

it is

laid

down,

the good pleasure of those for not a law in this sense.

Every organised community or society of men tends to develop imperative laws formulated by the governing authority of that community or society for the control of its members
with intent to secure the purposes for which it exists. The state makes laws of this kind for its citizens for the purpose of securing peace, order, and good government within its

In the same way other forms of imperative law are developed within a church, an army, a school, a family, a ship's company, a social club, and any other institution so
territories.

organised as to possess a governing body capable of imposing its will upon the members. Even in the absence of such a
definite organisation, rules of

conduct which are approved byis

the public opinion of the society, and the breach of which

visited

by public censure, are regarded and spoken of as imperative laws imposed by the unorganised society upon its members. In this sense and in this aspect the rules of
morality recognised by public opinion in any imperative laws standing side by side with the
state

community
civil

are

law

of the

and

fulfilling

the

same purposes.
as

Law
Locke

of this kind
(e)

law of opinion or of reputation,

commonly known

as

positive

morality

being used to distinguish morahty and enforced by the public opinion of the community, from those ideal or absolute rules of right and wrong which are
derived

epithet positive of this kind, so recognised

the

calls

the
it

is

from

reason

and

nature

and

are

independent

of

recognition and acceptance by any the latter kind constitute natural

positive morality.
"

human

Rules of society. morality, as opposed to

The

positive morality of a particular

com-

The laws that men generally refer their actions to, to judge of their (e) 1. The Divine Law; rectitude or obliquity, seem to me to be these three 2. The civil law; 3. The law of opinion or reputation, if I may so call it. the first of men relation bear to the these, By judge whether their they actions are sins or duties; by the second, whether they be criminal or virtues or and be vices." Locke on the the whether innocent; third, they by Human Understanding, Bk. II. ch. 28, 7.
:

22

The Kinds
of

of

Law.

[ 6

munity may approve

polygamy or

infanticide, while natural

or ideal morality may disapprove of both. Just as an individual state develops within itself a system of imperative law imposed by it upon its members, so the
society of states develops a system of imperative law for the regulation of the conduct of those states towards each other. The law of nations or international law consists, in part at least and in one aspect, of rules imposed upon states by the society
of
states, and enforced partly by international opinion and partly by the threat of war. Many writers are content to classify the civil law the law

being essentially, and throughout its whole compass, nothing more than a particular form of imperative law. They consider it a sufficient analysis and definition of
of the state

as

law to say that it consists of the general commands issued by the state to its subjects, and enforced, if necessary, by the This may be termed the imperaphysical power of the state.
civil

tive, or,

law.
of

"

more accurately, the purely imperative, theory of civil " The civil laws," says Hobbes (/), are the command
is

him who

endued with supreme power

"

in the city

"

(that

is

to say, the state, civitas)

concerning the future actions of his

subjects."

Similar opinions are expressed by

(h),

Bentham

(g),

and have been widely, though by no means We shall have universally, accepted by English writers. occasion later to consider fully this view as to the nature of

and by Austin

civil

law.

It is sufficient to indicate here that

though

it falls

short of an adequate analysis, it undoubtedly expresses a very important aspect of the truth. It rightly emphasises the central fact that the civil law is based on the will and physical
force of the organised political community. Such law exists only as an incident of the administration of justice by the state, and this consists essentially in the imperative and

coercive action of the state in imposing its will, by force if need be, upon the members of the body politic. "It is men and arms," says Hobbes (i), " that make the force and power
if)

(g) Principles of

English Works, II. 185. Morals and Legislation,

I.

p.

330, Clarendon Press Ed.

Works,
(h)

151.

Jurisprudence, Lecture 1

(0 Leviathan, ch. 46.

6]

The Kinds of Law.

23

The civil law has its sole source, not in consent, of the laws." or in custom, or in reason, but in the will and the power of him who in a commonwealth beareth not the sword in vain. In
what respects
this doctrine represents not the
it,

whole truth but

merely one part and aspect of

shall consider at large and more appropriately at a later stage of this inquiry. The instrument of coercion by which any system of

we

imperative law is enforced is called a sanction, and any rule so enforced is said to be sanctioned. Thus physical force in the various methods of its application is the sanction applied

by

the

state

in

the

administration

of

justice.

Censure,

ridicule,

and contempt are the sanctions by which society (as distinguished from the state) enforces the rules of positive War is the last and most formidable of the sanctions morality. which in the society of nations maintains the law of nations. Threatenings of evils to flow here or hereafter from Divine anger are the sanctions of religion, so far as religion assumes
the form of a regulative or coercive system of imperative

law

(fe).

sanction

is

not necessarily a punishment or penalty.

To

punish law-breakers is an effective way of maintaining the law, but it is not the only way. The state enforces the law not only by imprisoning the thief, but by depriving him of his plunder

and restoring it to the true owner; and each of these applications of the physical force of the state is equally a sanction. An examination and classification of the different forms of
sanction by which the attention later.
civil

law

is

maintained

will

claim our

7.

Physical or Scientific Law.

Physical laws or the laws of science are expressions of the uniformities of nature- general principles expressing the

regularity

and harmony observable

" "

in the activities

and opera-

The sanctio was sanction is derived from E-oman law. (k) The term originally that part of a statute which established a penalty or made other provisions for its enforcement. Legum eas partes, quibus poenas, constituimus adversus eos qui contra leges fecerint, sanctiones vocamue,
Just.
Inst.
2. 1.

10.

Sanctum

est,

atque munitum est. D. 1. 8. 8. has come to denote the penalty

By an

defensum quod ab injuria hominum " " sanction easy transition the term

itself.

24

The Kinds of Law.

It is

[ 7

tions of the universe.

in tbis sense that

we speak

of

the law of gravitation, the laws of the tides, or the laws of chemical combination. Even the actions of human beings,
so far as they

are uniform,
for

are the subject of law of this

description

as,

political economy. ought to do, but what they do. Physical laws are also, and more commonly, called natural laws, or the laws of nature; but these latter terms are

example, when we speak of the laws of These are rules expressing not what men

ambiguous, for they signify also the moral law; that

is

to say,

the principles of natural right and wrong. " " This use of the term law to connote nothing more than uniformity of action is derived from law in the sense of an

imperative rule of action, by

of the universe as

way

of the theological conception

operations (animate and inanimate, rational and irrational) by the will and command The primary source of this conception is to be found of God.

governed in

all its

in the

Hebrew

scriptures,

and

its

secondary and immediate

source in the scholasticism of the Middle Ages a system of thought which was formed by a combination of the theology

Hebrews with the philosophy of the Greeks. The Bible constantly speaks of the Deity as governing the universe, animate and inanimate, just as a ruler governs a society of men; and the order of the world is conceived as due to the obediof the

created things to the will and commands of their He gave to the sea his decree, that the waters " " He made a decree should not pass his commandment (I). " for the rain, and a way for the lightning of the thunder (m).

ence of

all

Creator.

"

The Schoolmen made

cording to St.

this

principles of their philosophic system.

same conception one The lex

is

of

the

jSrst

aeterna, ac-

Thomas Aquinas,

the ordinance of the Divine

wisdom, by which all things in heaven and earth are governed. " There is a certain eternal law, to wit, reason, existing in the For mind of God and governing the whole universe. law is nothing else than the dictate of the practical reason in
. .
.

the ruler

who governs
(I)

a perfect
8.

"

"

community
29.
q. 91. art. 1.

(n).

Just as

Proverbs,

(m)Job, 28.
(n)

26.
1. 2.

Summa,

7]

The Kinds of Law.

all

25
things
also,

the reason of the Divine wisdom, inasmuch as by it were created, has the nature of a type or idea;

so

inasmuch as by
proper ends,
law.
. .
.

this reason

it

may

things are directed to their be said to have the nature of an eternal

all

accordingly the law eternal is nothing else than the reason of the Divine msdom regarded as regulative and " directive of all actions and motions (o).

And

parts.

This lex aeterna was divided by the Schoolmen into two One of these was that which governed the actions of
:

men

this is the
is

moral law, the law

governs

of nature, or of reason.

The other
created

that which
:

the

actions

of

all

other

this is that which we now term physical things law, or natural law in the modern and prevalent sense of that ambiguous term (p). This latter branch of the eternal

law

is

perfectly

and uniformly obeyed;

for

the

irrational

agents on which it is imposed can do no otherwise than obey the dictates of the Divine will. But the former branch^
is obeyed only partially and imperfectly; for man by reason of his prerogative of freedom may turn aside from that will to follow his own desires.

the moral law of reason

is an expression of actions as they actually are; moral law, or the law of reason, is an expression of actions as thev ought to be.

Physical law, therefore,

the

This scholastic theory of law finds eloquent expression in " His writing of Hooker in the sixteenth century.
things to be which are, and to be in such keep that tenure and course which they
.
. .

commanding those
do,

sort as they are, to

importeth the establishment of nature's law.

Since

proclaim the edicts of his law upon it, heaven and earth have hearkened unto his voice, and See we not plainly their labour hath been to do his will.
the time that
did
first
.
. .

God

that the obedience of creatures unto the law of nature is the " "Of law there can be no stay of the whole world (g).
less

acknowledged, than that her seat

is

the

bosom

of

God,

(o)

Summa,

1.

2.

q. 93. art. 1.
i.e.,
i.e.,

(p) Natural law, lex naturae, is either (1) the law of human nature, the moral law, or (2) the law of nature in the sense of the universe, physical law. "(q) Ecc. Pol. I. 3. 2.

26

The Kinds of Law.

all

[ 7

her voice the harmony of the world, " earth do her homage (r).

things in heaven and

The
or

modem
law,

natural

use of the term law, in the sense of physical to indicate the uniformities of nature, is

from this scholastic theory of the lex aetema; but the theological conception of Divine legislation on which it was originally based is now eliminated or disregarded. The relation between the physical law of inanimate nature
directly derived

and the moral or civil laws by which men are ruled has been reduced accordingly to one of remote analogy.

8.

Natural or Moral Law.

is

By
right

natural or moral law

and wTong the principles of natural justice, if we use the term justice in its widest sense to include all forms of rightful action. Eight or justice is of two kinds, distinguished as natural and positive. Natural justice is justice as it is in Positive justice is deed and in truth in its perfect idea. justice as it is conceived, recognised, and expressed, more or

meant the

principles of natural

less incompletely and inaccurately, by the civil or some other form of human and positive law. Just as positive law, therefore, is the expression of positive justice, so philosophers

have

recognised a natural law, which

justice
(s).

is

the expression of natural

and positive justice, and derivative distinction between natural and positive law, comes to us from Greek
This
distinction

between

natural

together

with

the

corresponding
is

philosophy.
is

Natural justice

^vctikov StKatov; positive justice

Ukulov; and the natural law which expresses the When Greek principles of natural justice is (pvcrLK6<; v6/xo9.
vo/xiKov

passed from Athens to Kome, (pvcnKov StKatov appeared there as jiistitia naturalis and ^uctiko? v6fio<; as lex naturae or jus naturale.
philosophy

This natural law was conceived by the Greeks as a body of

imperative rules imposed upon mankind by Nature, the per" " in this usage means established (positum) by (s) The term positive some form of human authority. As to the term positive law see section 14,
inira.
(r)

Ecc. Pol.

I.

16. 8.

8]

The Kinds

of Law.

27

The Stoics, more particularly, thought of Nature or the Universe as a living organism, of which the material world was the body, and of which the Deity or the Universal Keason was the pervading, animating, and governsonified universe.

ing soul; and natural law

was the

rule of conduct laid

down

by
its

this Universal

Reason
and

for the direction of

mankind.
expressive of
,

Natural law has received

divers

many

other
It

names
is

divinum)

the

qualities

aspects.
of

Divine

command

God imposed

Law {jus upon men this

aspect of it being recognised in the pantheism of the Stoics, and coming into the forefront of the conception so soon as natural law obtained a place in the philosophical system of Christian
writers.

Natural law

is

also the

Law

of Reason,
is

as being

established by that Reason by which the world

governed, and also as being addressed to and perceived by the rational It is also the Unwritten Law (jus non nature of man.
scriptuvi), as being written not on brazen tablets or on pillars of stone, but solely by the finger of nature in the hearts of men. It is also the Universal or Common Law (/cotvog vo/zoc, jus

commune, same in all

states

jus gentium), as being of universal validity, the places and binding on all peoples, and not one thing at Athens and another at Rome, as are the civil laws of

It is also the Eternal Law (lex {lSo(; v6fxo<;, jus civile). aetema), as having existed from the commencement of the world, uncreated and immutable. Lastly, in modern times we find it termed the Moral Law, as being the expression of the

principles of morality.

The term natural law, in the sense with which we are here concerned, is now fallen almost wholly out of use. We speak of the principles of natural justice, or of the rules of natural
but seldom of the law of nature, and for this medieval departure from the established usage of ancient and the speech there are at least two reasons. The first is that
morality,

term natural law has become equivocal; for it is now used the expression of the uniformities of to signify physical law nature. The second is that the term law, as apphed to the

principles of natural justice, brings with it certain misleading associations suggestions of command, imposition, external

28

The Kinds of Law.

[ 8

which are not in harmony with the authority, legislation moral philosophy of the present day.

The following quotations

illustrate sufficiently the ancient

of nature:

and medieval conceptions of the law

Aristotle.
(TS109

" Law

is

either

universal

(koivo?

v6iJio<;)

or

special

v6,uo9).

which men law consists of those unwritten rules which are recognised among all men "(f) " Right and wrong have been defined by reference to two kinds of law. Special law is that which is established by each people for itself. The universal law is that which is conformable merely to " Nature (u). " Cicero. There is indeed a true law (lex), right reason, agreeing with nature, diffused among all men, unchanging, everlasting. ... It is not allowable to alter this law, nor to derogate from it, nor can it be repealed. We cannot be released from this law, either by the praetor or by the people, nor is any person required to explain or interpret it. Nor is it one law at Rome and another at Athens, one law to-day and another hereafter but the same law, everlasting and unchangeable, will bind all nations at all times and there will be one common lord and ruler of all, even God the framer and " proposer of this law (x). " Philo Judaeus. The unerring law is right reason not an ordinance made by this or that mortal, a corruptible and perishable law, a lifeless law written on lifeless parchment, or engraved on lifeless columns but one imperishable, and impressed by immortal Nature on the immortal mind " (y). Gains. "All peoples that are ruled by laws and customs observe partly law peculiar to themselves and partly law common to all mankind. That which any people has established for itself is called jus civile, as being law peculiar to that State {jus proprium civitatis). But that law which natural reason establishes among all mankind
. .

Special law consists of the are governed. The universal

written

enactments

by

is

gentium
equally

observed equally by all peoples, and "

(2).

is

for that reason called jus

Natural law (jura naturalia), which is observed being established by divine providence, remains for ever settled and immutable but that law which each State has established for itself is often changed, either by legislation
Justinian.
in
all

"

nations,

or by the tacit consent of the people

(t)

"

(a).

(u) (i) (y)

Rhet. Rhet.

I. 10.
I.

13.

De Rep.
Works,

III. 22. 23. III. 516 (Bohn's Ecc. Library).

On

the Virtuoua being also

Free.
(z)

Institutes, I. 1.

(0) Institutes, I. 2. 11.

8]

The Kinds

of Law.

29

Hooker. The law of reason or human nature is that which men by discourse of natural reason have rightly found out themselves " to be all for ever bound unto in their actions {b). " Christian Thomasius. Natural law is a divine law, written in the hearts of all men, obliging them to do those things which are necessarily consonant to the rational nature of mankind, and to refrain from those things which are repugnant to it " (c).

"

The Jus Gentium of the Roman Lawyers.

It is a

commonly

received opinion, that jus gentium,

although

identified as early as the time of Cicero with the jus naturale of the Greeks, was in its origin and primary signification something quite distinct a product not of Greek philosophy but of Roman law. It

gentium meant originally that system of civil and positive law which was administered in Rome to aliens (peregrini), as opposed to the system which was the exclusive birthright and priviis

alleged that jus

Roman citizens (jus civile or jus quiritium) that this jus gentium, being later in date than the jus civile, was so much more reasonable and perfect that it came to be identified with the law of reason itself, the jus naturale of the Greeks, and so acquired a double meaning, (1) jus gentium, viz. jus naturale, and (2) jus gentium, viz. that part of the positive law of Rome which was applicable to That the term jus gentium did aliens, and not merely to citizens. possess this double meaning cannot be doubted but it may be gravely doubted whether the true explanation of the fact is that which has It would seem more probable that jus gentium just been set forth. was in its very origin synonymous with jus naturale a philosophical or ethical, and not a technical legal term the Roman equivalent of the /C01V05 v6/i05 of Aristotle and the Greeks and that the technical Jus gentium significance of the term is secondary and derivative. came to mean not only the law of nature the principles of natural justice but also a particular part of the positive law of Rome, namely, that part which was derived from and in harmony with
lege of
;

those principles of natural justice, and w'hich therefore was applicable in Roman law courts to all men equally, whether cives or

In the same way in England, the term equity, although originally purely ethical and the mere equivalent of natural justice or jus naturae, acquired a secondary, derivative, and technical use to signify a particular portion of the civil law of England, namely,
peregrini.

that portion which was administered in the Court of Chancery, and which was called equity because derived from equity in the original
ethical sense.

(b)
(c)

Ecc. Pol.

I.

1.

10.

1.

Inst. Jurisp. Div. I. 2. 97.

30
This, however,
is

The Kinds

of Law.

[ 8

examination
history of

of

this very

not the place in which to enter into any detailed interesting and difficult problem in the

human

ideas (d).

9.

Conventional Law.
is

By

conventional law

meant any

rule or

system of rules

agreed upon by persons for the regulation of their conduct towards each other. Agreement is a law for the parties to it.

Examples are the rules and regulations of a club or other voluntary society, and the laws of cricket, golf, or any other game. The laws of chess, for example, are the rules which the players
have expressly or
the game.
tacitly agreed to observe in their

conduct of

In
rules

many

cases conventional law

is

also civil law; for the

which persons by mutual agreement lay down for themselves are often enforced by the courts of justice of a state. But whether or not these conventional rules thus receive recognition and enforcement as part of the civil law, they constitute law in the generic sense of a rule of human action. That part of civil law which has its source in agreement may itself be termed conventional law for example the regulations of an incorporated company but such a use of the term must be distinguished from that which is here under consideration.

Conventional law in the present sense law, but a different kind of law.
of nations, which, as

is

not a part of the

civil

The most important branch of conventional law is the law we shall see later, consists essentially, and in its most important aspect, of the rules which have been

expressly or impliedly agreed upon by states as governing their

conduct and relations to each other.

is

Customary Law. meant any rule of action which any rule which is the expression actually observed by men

10.
is

By customary

law

here

See Nettleship, ContribiitionB to Latin Lexicofjraphy, sub. roc. jus Burle, Essai historique siir le developpeiiieiit de la notion du droit dans I'antiquit^ grecqiie Pliillipson, The International Law and Custom of Ancient Greece and Rome, vol. 1. ch. 3; Bryre, Studies in History and Jurisprudence I. pp. 112-171; Pollock, Journ. Compar. Legisl. 1900, p. 418; 1901, p. 204; Clark, Practical Jurisprudence, ch. 13.
(d)

gentium

nalurel

10]

The Kinds of Law.

31

of

some actual uniformity

for those

law
for

who observe

it

avoluntary law or rule which they have

of

action.

Custom

is

set

actions.

themselves and to which they voluntarily conform their Of this nature are the laws of di-ess, deportment, and
It
is

that

is very often obligatory very often enforced by some form of imperative law, whether the civil law or the law of positive morality; but irrespective of any such enforcement,

etiquette.
is

true that custom

to say, its

observance

is

and by reason solely of its de facto observance, it is itself a law in that generic sense in which law includes any rule of action. The operation of custom as one of the sources of civil law
will

be considered
its

has
is

source in custom

not in this

That portion of the civil law which called customary law, but it sense that the term is here used. Customary law
later.
is itself

in the present sense is not a part of civil law, but a different kind of law in the generic sense.
11. Practical
is

or Technical

Law.

Yet another kind of law

that which consists of rules for

the attainment of some practical end, and which, for want of a better name, we may term practical or technical law. These

laws are the rules which guide us to the fulfilment of our purposes which inform us as to what we ought to do, or must
;

do, in order to attain a certain end.

Examples

of such are

the laws of health, the laws of musical and poetical composition, the laws of style, the laws of architecture, and the rules for the efficient conduct of any art or business. The laws of a game are of two kinds some are conventional, being the rules agreed upon by the players; others are practical or technical,

being the rules for the successful playing of the game.

12. International

Law.

International law, or the law of nations, consists of those rules which govern, or are officially discussed as governing,
other.

sovereign states in their relations and conduct towards each All men agree that such a body of law exists, and that
states do in fact act in obedience to it; but

when we come

to

inquire

what

is

the essential nature and soiirce of this law,

32

The Kinds of Law.

[ 12

find in the writings of those who deal with it a very curious The opinion which absence of definiteness and unanimity. we shall here adopt as correct, is that the law of nations is

we

essentially a species of conventioyial law; that it has its source in international agreement that it consists of the rules which
;

sovereign states have agreed to observ^e in their dealings with

each other.
This law has been defined by Lord Eussell of Killowen (e) the aggregate of the rules to which nations have agreed to " The law of conform in their conduct towards one another." " is that nations," says Lord Chief Justice Coleridge (/),
as

"

of usages which civilised states have agreed to " observe in their dealings with each other." The authorities " to make it clear that the seem to me," says Lord Esher (g), consent of nations is requisite to make any proposition part of the law of nations." "To be binding," says Lord Cock" the law must have received the assent of the nations burn (h),

collection

who are to be bound by it. This assent may be express, as by treaty or the acknowledged concurrence of Governments, or may be implied from established usage."
The
law
is of

international agreement which thus makes international two kinds, being either express or implied. Express

tions,

agreement is contained in treaties and international convensuch as the Declaration of Paris or the Covenant of the

League of Nations. Implied agreement is evidenced chiefly by the custom or practice of states. By observing certain rules
conduct in the past, states have impliedly agreed to abide by them in the future. By claiming the observance of such customs from other states, they have impliedly agreed to be International law derived from bound by them themselves. express agreement is called in a narrow sense the conventional law of nations, although in a wider sense the whole of that law
of
is
is

conventional
called

that part which is based on implied agreement The tendency of the customary law of nations.
;

(e)

L. Q. R. 12,

Rand Gold Mining

(/)

(g)

ih)

p. 313. Adopted by Lord Alverstone, C.J., in Co. v. Rex, [1905] 2 K. B., at p. 407. Reg. v. Keyn, 2 Ex. D. p. C3. Reg. v. Keyn, 2 Ex. D. p. 131. Reg. v. Keyn, 2 Ex. D. p. 202.

West

12]

The Kinds
development
is for

of Law.

33

historical

the whole body of the law to be

reduced to the first of these two forms to be codified and expressed in the form of an international convention, to which Just as all civihsed states have given their express consent. customary civil law tends to be absorbed in enacted law, so

customary international law tends to be merged in treaty law. International law is further divisible into two kinds, which mav be distinguished as the common law of nations and the The common law is that which particular law of nations.
all civilised prevails universally, or at least generally, among states, being based on their unanimous or general agreement, The particular law is that which is in force or implied.

express

solely

between two or more

alone,

made between them

law.

states, by virtue of an agi-eement and derogating from the common

International law exists only between those states which have expressly or impliedly agreed to observ^e it. Those states which (which now include all civihsed communities, and some are as yet only imperfectly civilised) are said to constitute the

family or society of nations an international society governed by the law of nations, just as each national society is governed

bv its own civil law. New states are received into this society by mutual agreement, and thereby obtain the rights and become international subject to the duties created and imposed by
law
(f).

13. Civil

Law.
is

Finally,

we come

to the consideration of that kind of law

This the special subject-matter of this treatise. law, the law of the state or of the land, the law of lawyers and the law courts. This is law in the strictest and original sense of the term, all other applications of the term

which
the

is

civil

In the being derived from this by analogical extension. absence of any indication in the context of a different intention,

the term law, when used simpUciter, means civil law and nothing: else, and in this sense the term is used in future

throughout this book.

(i)

The nature
S.J.

of international

law

is

more

fully discussed in

Appendix VI.

34 The question

The Kinds of Law.

of the true nature of civil law
is

[ 13

one

of so

much

difficulty

and importance that

it

must be reserved

for

detailed consideration in the following chapter.

SUMMARY.
Law
in its most general sense Kinds of law in this sense
:

any rule of action.

of

1.

Imperative
authority.

law.

Rules

action

imposed

on

men by
true but

The imperative theory of civil law incomplete and one-ided. The sanctions of imperative law.
2.

partially

Physical or scientific law. Rules formulating the uniformities of nature. This conception of law derived from scholastic philosophy.

The
3.

lex aeterna.

Natural or moral law. Rules formulating the principles of natural justice. This conception of law derived from Greek philosophy and

Roman law. Two meanings

of

natural law

(a) Scientific or physical law.

(b) Moral law. The jus gentium
4.

5. 6.

agreed upon by persons for the regulation of their conduct towards each other. Customary law rules of action embodied in custom. Practical or technical law rules of action for the attain-

Conventional law

rules

of the

Romans.

ment
7.

of practical ends.

International law
Civil

the

rules which govern sovereign states

in their relations towards each other.

8.

law

the

law of the state as applied in the state's

courts of justice.

35

CHAPTER

II.

CIVIL LAW.

a. The Term Law.

though now fallen somewhat out of and though possessing certain other meanings, is the most proper and convenient title by which to distinguish the law of the land from other forms of law.

The name
in

civil

law,

use

this

sense,

Such law is termed civil, as being that of the civitas or state. The name is derived from the jus civile of the Romans.
"

Quod quisque populus

civitatis est,

ipse

sibi

jus

constituit,

id

ipsius

proprium

ipsius civitatis

"
(a).

vocaturque jus

civile,

quasi jus proprium

The other meanings

to create confusion.
juris civilis) as

of civil law are not such as to be likely

It often

means

the law of

Rome

(corpus

opposed to the canon law (corpus juris canonici) these being the two systems by which, in the Middle Ages, the state and the Church were respectively governed or as opposed to the law of England, inasmuch as England, unUke the rest of Europe, refused to receive the Roman law and

developed a system of its own. The term civil law is also used to signify, not the whole law of the land, but only the
residue of
it

after deducting

some

particular portion having a

law is opposed to criminal law or to military law. The term civil law, as indicating the law of the land, has been partially superseded in recent times by the improper Jus positivum was a title invented substitute, positive law. by medieval jurists to denote law made or established
special title of its

own.

Thus,

civil

(positum) by human authority, as opposed to the jus nafurale, which was uncreated and immutable. It is from this contrast that the term positive derives all its point and significance.
It is

not permissible, therefore, to confine positive law to the

(a) Just.

Inst. I. 2. 1

36
law of the land.
All

Civil Law.
law
is

[ 14
that
is

positive

not natural.

International law, for example, if assumed to rest upon human authority, is a kind of jus positivum, no less than the civil

law

itself (b).

Where

the stress

is

on the distinction between the law of

is

the land and international law, the former of as municipal, rather than as civil, law
course,
is

commonly spoken
This usage, of to the modem

(c).

somewhat inconvenient, having regard

connotation of the adjective municipal as relating to a Its use as a synonym of civil is municipality or borough. derived from viunicipium in the sense of a self-governing Civitas and political community within the Roman Empire.

municiphim were closely related in meaning and use. Both terms denoted a body pohtic or state. The name civil law is derived from one of them, and the name municipal law from
the other.

The term law

is

used in two senses, which

may

be con-

In veniently distinguished as the abstract and the concrete. its abstract application we speak of the law of England, the

law

of libel,

criminal law,

and so

forth.

Similarly,

we use

the phrases law and order, law and justice, courts of law. In its concrete application, on the other hand, we say that

Parliament has enacted or repealed a law; we speak of the

by-laws of a railway company or municipality we hear of In the abstract sense we the corn laws or the navigation laws. speak of law, or of the law; in the concrete sense we speak The distinction demands attention for of a law, or of laws.
;

this reason,

that the concrete term

its

is

not co-extensive and

coincident with the abstract in

law

Law or the application. does not consist of the total number of laws in force.
which the law
is

Tlie constituent elements of

made up

are

not laws, but rules of law or legal principles. That a will requires two witnesses is not rightly spoken of as a law of

A law means a statute, it is a rule of English law. enactment, ordinance, decree or other exercise of legislative
England
;

Utrum jus Art. 2 (b) See Aquinas, Summa, 2. 2. q. 57 (De Jure). See also Suarez, convenienter dividatur in jus naturale et jus positivum. De Legibus, I. 3. 13. (Lex) positiva dicta est, quasi addita naturali legi. (c) See, for example, Biackstone I. 63; The Zamora, [1916] 2 A. C. p. 91, per Lord Parker.
:

14]
It is

Civil Law.

37

authority.
sense.

one of the sources of law in the abstract

law produces statute law or some other form of

enacted law, just as a judicial precedent produces case law. There is much law recognised, applied and enforced in the
courts of justice which has not been enacted by any law.

Conversely, although laws commonly produce law, this is not invariably the case. Every Act of Parliament is called a law, but not all Acts of Parliament have as their purpose or effect
the formulation of rules of law.

Statutes are essentially the

formulation of the will of the sovereign legislature, and this may be directed to other purposes than the alteration of the
legal

system.

judicial divorce,
of

Before the establishment of the system of a divorce could only be obtained by means

a private Act of Parliament. But such a statute or law (sensu concreto) was no more a source of law {sensu abstracto) than is a judicial decree of divorce at the present day.
Similarly,

an Act

of

attainder,

whereby an offender was

to

declared a traitor and

condemned

death,

did not

create

law any more than does the sentence of a criminal court. the It must be borne in mind, therefore, that law and laws law and a law are not identical in nature or scope. All law is not produced by laws, and all laws do not produce

law.

This ambiguity is a peculiarity of English speech. All the chief Continental languages possess distinct words for the two meanings thus inherent in the English term law. Law in the
concrete
jus,
is

lex,

loi,

Gesetz, legge.

Law
of

in the

abstract

is

droit,

Recht,

diritto.

The law

Eome was

not lex

civilis,

of jus.

but jus civile. Lex, a statute, was one of the sources So in French with droit and loi, and in German with

Recht and Gesetz. It is not the case, indeed, that the distincbetween these two sets of terms is always rigidly maintained, for we occasionally find the concrete word used in
tion

Medieval Latin, for example, frequently uses lex as equivalent to jus we read of lex naturalis no less than of jus naturale and the same usage is not uncommon
the abstract sense.
; ;

in the

case of the French

loi.

The

fact

remains that the

Continental languages possess, and in general

make

use

of,

38

Civil Law.
of

[ 14

method

avoiding

the

ambiguity

inherent

in

the

single

EngUsh

tei'm.

It is to be observed, hovi'ever, that this advantage has been obtained by these languages at a considerable cost, for the terms jus, droit, Recht, diritto, are themselves ambiguous

in

another

manner.

They

mean

not

only

law

{sensu

abatracto), but also right or justice (d).

In Continental speech

and thought, therefore, it is alwaj-s necessary to bear in distinction between jus, droit, or Recht in their ethical and in their legal signification. A similar double meaning was in earlier usage possessed by the English term Common law and common right, for example, were right. synonymous. The same ambiguity is still possessed by the term equity, which means either natural justice, or that form of law which was developed and administered by the Court

mind the

of

Chancery.

Most EngHsh writers have, in defining law, defined it in the concrete instead of in the abstract sense. They have
attempted
to

true enquiry

is

answer the question: What is a law? while the What is law ? The central idea of juridical
:

theory is not lex, but jus, not Gesetz, but Recht. inverted and unnatural method of enquiry there
objections.

To
are

this

two

In the

first place, it

involves a useless and embar-

the

In the mouths of lawyers rassing conflict with legal usage. concrete signification is quite unusual. They speak
of law, of legal principles, but rarely of a

habitually of law, of the law, of rules of law, of questions law or of the laws.

they have occasion to express the concrete idea, they avoid the generic expression, and speak of some particular a statute, an Act of Parliament, a by-law, species of laws or a rule of court. In the second place, this consideration of

When

laws instead of law, of leges instead of jus, tends almost necessarily to the conclusion that statute law is the type of all
law, and the form to which
analysis.
(d) 1.
1.

all

of

it

is

reducible in the last

to the legisest

It misleads inquirers
1.

by sending them
bonum
atque

D.
1.

1.

11.

D
D.

Id quod semper aequum ac

. .
.

jus dicitur.

10.
1.
:

1. 1.

Jus

Juris prudentia est est ars boni et aequi.

justi

Grotius,

De Jure

injusti scieDtia. Belli ac Pacis,

1. 1.

Jus bic

nihil aliud

quam quod justum

est significat.

14]

Civil Law.

39

and origin of law, instead of courts of justice. It is consequently responsible for much that is inadequate and untrue in the juridical theory of English writers (e).
lature to discover the true nature
to the

15.

The

Definition of

Law.
In England most more law to be

All law
of
it

is

not

made by

the legislature.

is

made by

the law courts.

There

is

found in the law reports than in the Statute book. But all law, however made, is recognised and administered by the courts, and no rules are recognised and administered by the It is therefore to the courts courts which are not rules of law. and not to the legislature that we must go in order to
ascertain the true nature of the law.

The law may be defined

as the

body

of principles recog-'
|

nised and applied by the state in the administration of justice. In other words, the law consists of the rules recognised and acted on by courts of justice.

To
It

this

definition the

following objection

may

be made.

thus defining law by reference to the administration of justice, you have reversed the proper order of ideas, for law is first in logical order and the administration

may

be said:

"In

of justice second.

The

latter,

therefore,

must be defined by

Courts of justice reference to the former, and not vice versa. are essentially courts of law, justice in this usage of speech

The administration of being merely another name for law. The laws are the justice means the enforcement of the law. commands laid by the state upon its subjects, and the law
courts
are

the organs through

which these commands are

enforced.
cation.

Legislation, direct or indirect, must precede adjudiYour definition of law is therefore inadequate, for it

runs in a circle. It is not permissible to say that the law is the body of rules observed in the administration of justice, since this function of the state must itself be defined as the
application and enforcement of the law."
(e) The plural term laws is sometimes used in a collective sense to mean as in the case of the the entire corpus juris the law in its entirety do not speak, encyclopaedia known as Halsbury's Laws of England. however, of the laws of contract or of torts.

We

40
This objection
is

Civil Law.

[ 15

based on an erroneous conception of the

The primary purpose of this function of the state is that which its name implies to maintain right, to uphold justice, to protect rights,
essential nature of the administration of justice.

wrongs. The administration of justice may be defined as the maintenance of right or justice within a political community by means of the physical force of the state, and
to

redress

Law

through the instrumentality of the state's judicial tribunals. It consists of the authois secondary and unessential.
rules

ritative

justice, to the exclusion of their

which judges apply in the administration of own free will and discretion.
sufficient reasons the courts

For good and

which administer

They justice are constrained to walk in predetermined paths. are not at liberty to do that which seems right and just in their own eyes. They are bound hand and foot in the bonds
of

without demur.

an authoritative creed which they must accept and act on This creed of the courts of justice constitutes
it

the law; and so far as

private judgment.

The law

extends, it excludes all right of is the wisdom and justice of the

organised

commonwealth,

formulated

for

the

authoritative

direction of those to

its judicial functions. of a modern and civilised state

whom the commonwealth has delegated What a litigant obtains in the tribunals

is doubtless justice according essentially and primai-ily justice and not law. " to Judges are appointed, in the words of the judicial oath, do right to all manner of people, after the laws and usages

to law, but

it is

Justice is the end, law is merely the instruthe means, and the instrimnent must be defined by reference to its end.
of this

realm."

ment and

It is essential to a clear

understanding of this matter to

remember that the administration of justice is perfectly Howsoever expedient it may be, possible without law at all.
howsoever usual
it

may

be, it is not necessary that the courts

of the state should, in maintaining right and redressing wrong, act according to those fixed and predetermined principles which

are called the law.

tribunal in which right

is

done to
itself to

all

of people in such fashion as unfettered discretion of the judge, in

manner

commends

the

which equity and good

15]

Civil Law.

41

conscience and natural justice are excluded by no rigid and artificial rules, in which the judge does that which he deems
just in the particular case, regardless of general principles, may not be an efficient or trustworthy tribunal, but is a

perfectly possible one. also a court of law.

It is a court of justice

which

is

not

Moreover, even when a system of law

of
it

exists,

the extent
free

may

vary indefinitely.
of

The degree
is

in

which the

discretion

judge
of

in
is

doing right

excluded

by pre-

determined rules
diminution.
principle
is

law

capable of indefinite increase or

The

total exclusion of judicial discretion

by

legal

However great is the impossible in any system. encroachment of the law, there must remain some residuum
of justice which is not according to law some activities in respect of which the administration of justice cannot be Law is a defined or regarded as the enforcement of the law. gradual growth from small beginnings. The development of

a legal system consists in the progressive substitution of rigid pre-established principles for individual judgment, and to a very large extent these principles grow up spontaneously within

the tribunals themselves.

That great aggregate of rules which constitutes a developed legal system is not a condition precedent of the administration of justice, but a product of it.

Gradually, from various sources precedent, custom, statute there is collected a body of fixed principles which the courts

apply to the exclusion of their private judgment. The question at issue in the administration of justice more and more ceases " " and to be What is the right and justice of this case? " is the What more and more assumes the alternative form:
:

general principle already established and accepted, as appliJustice becomes increasingly cable to such a case as this?"
justice

according

to

law,

and

courts

of

justice

become

increasingly courts of law.

16. Justice

According to Law.

on the whole expedient that courts of justice should thus become courts of law, no one can seriously doubt. Yet the elements of evil involved in the transformation are
it is

That

42
too

Civil Law.
obvious
are

[ 16

to have escaped recognition. " the voices of right theory, as Hooker says, reason "; they are in theory the utterances of Justice speaking but too often in reality to men by the mouth of the state " turn judgthey fall far short of this ideal. Too often they

and serious ever

Laws

in

ment

to

wormwood," and make the administration

Nor
is

of justice

a reproach.

this true

merely of the

earlier

and ruder

At the present day our law stages of legal development. has learnt, in a measure never before attained, to speak the language of sound reason and good sense, but it stiU. retains in
no slight degree the vices of its youth nor is it to be expected that at any time we shall altogether escape from the perennial It is needful, therefore, that conflict between law and justice.
;

the law should plead and prove the ground and justification
of its existence.

The

chief uses of the law are three in

it

number.

The

first

of these is that

imparts uniformity and certainty to the It is vitally important not only administration of justice.

decisions should be correct, judicial distinguishing accurately between right and wrong, and appointing fitting remedies for injustice, but also that the subjects of the state

that

know beforehand the decision to which, on any matter, the courts of justice will come. This provision is impossible unless the course of justice is uniform, and the
should be able to
only effectual method of procuring uniformity is the observance of those fixed principles which constitute the law. It would

be well, were

it

possible,

for the

tribunals of the state

to

recognise and enforce the rules of absolute justice, but it is better to have defective rules than to have none at all.

For we expect from the coercive action of the state, not merely the maintenance of abstract justice, but the establishment within the body politic of some measure of system, order and harmony in the actions and relations of its members.
It
is

often

more important that a

rule

should be definite,

certain,

known, and permanent, than that it should be ideally Sometimes, indeed, the element of order and certainty just. is the only one which requires consideration, it being entirely indifferent what tlie rule is, so long as it exists and is adhered

16]

Civil Law.

43

The rule of the road is the best and most famiHar to. example of this, but there are many other instances in which justice seems dumb, and yet it is needful that a definite rule of some sort should be adopted and maintained. For this reason we require in great part to exclude judicial discretion by a body of inflexible law. For this reason it is that in no civilised community do the judges and magistrates,
to

whom

is

with a free hand the

entrusted the duty of maintaining justice, exercise viri boni arbitrium. The more complex
is its

our civilisation becomes, the more needful

law, and the less practicable the alternative

regulation by
of judicial
it

method

In simple procedure. doubtless possible, and

and

primitive

communities

is

even be expedient, that rulers and magistrates should execute judgment in such manner But in the civilisation to as best commends itself to them.

may

which we have now attained, any such attempt

the
deliverances
of

to substitute

natural reason for predetermined prin" Eeason," says Jeremy ciples of law would lead to chaos. " is a box of such Taylor (/), quicksilver that it abides no where; it dwells in no settled mansion; it is like a dove's
(that inquire after the law of natinre " is to say, the principles of justice) by the rules of our reason, we shall be as uncertain as the discourses of the people or the

neck;

and

if

we

"

dreams
of

of disturbed fancies."

It is to be observed, in the

conforming to
of

publicly
justice

declared

second place, that the necessity principles protects the

disturbing
influence
of

administration

from the

improper motives on the part of those entrusted with judicial functions. The law is necessarily impartial. It is made for no particular person, and for no individual case, and so admits
of

no respect of persons, and is deflected from the straight course by no irrelevant considerations peculiar to the special instance. Given a definite rule of law, a departure from it
is visible to all men, but within the sphere judgment, the differences of honest opinion are so manifold and serious that dishonest opinion can pass in Where the duty of great part unchallenged and undetected.

by a hairsbreadth

of individual

(/)

Ductor Dubitantium (Works XII. 209, Heber's

ed.).

44

Civil Law.

[ 16

the judicature is to execute justice in accordance with fixed and known principles, the whole force of the public conscience can be brought to the enforcement of that duty and the maintenance of those principles. But when courts of justice are left to do that which is right in their own eyes, this control becomes to a great extent impossible, pubhc opinion being left without that definite guidance which is essential to its force and influence. So much is this so, that the administration of justice according to law is rightly regarded as one
of

or

The legislative liberty. " cannot assume to supreme authority," says Locke (g), itself a power to rule by extemporary', arbitrary decrees, but is bound to dispense justice, and to decide the rights of the subject by promulgated, standing laws, and known, authothe
first

principles

of

"

political

rised judges." So, in the words of Cicero slaves of the law that we may be free."
It is to its impartiality, far

"

(/i)

We

are the

more than

to its

wisdom

(for

this latter virtue it too often lacks), that are

due the influence

and reputation which the law has possessed at all times. Wise or foolish, it is the same for all, and to it, therefore, men have ever been willing to submit their quarrels, knowing, " as Hooker says ({), that the law doth speak with all that the law hath no side-respect to their indiSerency;
persons."
law.

Hence the authority of a judgment according to The reference of international disputes to arbitration,

and the loyal submission of nations to awards so made, are possible only in proportion to the development and recognition of a definite body of international law. The authority of
the arbitrators
to
is naught; that of the laiu is already sufficient maintain in great part the peace of the world. So in the case of the civil law, only so far as justice is transformed into

law, and the love of justice into the spirit of law-abidingness,

an efficient level, and the purposes of civil government be adequately fulfilled. Finally, the law serves to protect the administration of The establishjustice from the errors of individual judgment.
will the influence of the judicature rise to
{7) Treatise of Government, IT. 11. 136. (h) Pro Cluentio, 53. 146. (0 Ecclesiastical Polity, I. 10. 7.

16]
of the

Civil Law.
law
is

46

ment
to

science of the

community

the substitution of the opinion and conat large for those of the individuals

"uhom judicial functions are entrusted. The principles of justice are not always clearly legible by the light of nature. The problems offered for judicial solution are often dark and
and there is great need of guidance from that experience and wisdom of the world at large of which the law is the record. The law is not always wise, but on the whole, and in the long run, it is wiser than those who administer it.
difl&cult,

It expresses the will

and reason

by that

title

to overrule the will

magistrates, no less than the laws," says Aristotle thing which is by good laws forbidden."
to be wiser

body politic, and claims and reason of judges and " To seek than those of private men.
of the

"

(fc),

is

the very

These, then, are the chief advantages to be derived from the exclusion of individual judgment by fixed principles of
law.

heavy
evils,

Nevertheless, these benefits are not obtained save at. a The law is without doubt a remedy for great-er cost.

Some of them yet it brings with it evils of its own. are inherent in its very nature, others are the outcome of
effective

tendencies which, however natural, are not beyond the reach

of

control.

The

first

principle of law It results from

A general defect of a legal system is its rigidity. is the product of a process of abstraction. the elimination and disregard of the less

its

material circumstances in the particular cases falling within scope, and the concentration of attention upon the more
essential elements

which these cases have

in

in

common.

We

applying a rule so obtained, the elements so disregarded may not be material in the particular instance and if they are so, and we make no allowance for

cannot be

sure

that,

This possibiUty is error and injustice. departments of practice other than the law. The principles of political economy are obtained by the eUmination of everv' motive save the desire for wealth, but we do not apply them blindfold to individual cases without first

them, the result

is

fully recognised in

(fe)

Neminem

See also Bacon, De Augmentis, Lib. 8, Aph. 58; Ehetoric, I. 15. oportere legibus esse sapientiorem.

46

Civil Law.
disturbing
is

[ 16
influence
of

taking account of the possibly eliminated elements. In law it

the

otherwise, for here a principle is not a mere guide to the due exercise of a rational It is to be applied without discretion, but a substitute for it.

any allowance for special circumstances, and without turning hand or to the left. The result of this inflexibility is that, however carefully and cunningly a legal rule may be
to the right

framed, there
in

will in all probability

be some special instances

injustice,

which

it

will

work hardship and

and

prove

So infinitely a source of error instead of a guide to truth. various are the affairs of men, that it is impossible to lay down
general principles which will be true and just in every case. If we are to have general rules at all, we must be content to

pay

this price.

The

time-honoured

maxim,

Summum

jus

est

summa

an expression of the fact that few legal principles are so founded in truth that they can be pushed to their extremest logical conclusions without leading to injustice.
injuria, is

The more general the

of immaterial

principle, the greater is that elimination

it

elements of which
is

is

the result,

and the

greater therefore
it

may

the chance that, in its rigid application, be found false. On the other hand, the more carefully

of

is qualified and limited, and the greater the number exceptions and distinctions to which it is subject, the In greater is the diSiculty and uncertainty of its application. attempting to escape from the evils which flow from the

the rule

rigidity of the law,

we

incur those due to

its

wisely extremes.

we do

if

we

discover the golden

mean between

complexity, and the two

Analogous to the vice

of rigidity is that of conservatism.

The former

is

the failure of the law to conform itself to the

requirements of special instances and unforeseen classes of cases. The latter is its failure to conform itself to those

changes
justice

time.

in circumstances and in men's views of truth and which are inevitably brought about by the lapse of In the absence of law, the administration of justice

would automatically adapt itself to the circumstances and opinions of the time, but fettered by rules of law, courts of

16]

Civil Law.

47

justice do the bidding,

not of the present, but of the times

past in which those rules were fashioned.

to-day

may become

false

That which is true to-morrow by change of circum-

stances, and that which is taken to-day for wisdom may to-morrow be recognised as folly by the advance of knowledge.
so, some method is requisite whereby the law, by nature stationary, may be kept in harmony with the circumstances and opinions of the time. If the law is to

This being

which

is

be a living organism, and not a mere petrification,

it is

neces-

sary to adopt and to use with vigilance some effective instrument of legal development, and the quality of any legal system will depend on the efficiency of the means so taken

secure it against a fatal conservatism. Legislation the substitution of new principles for old by the express declaration of the state is the instrument approved by all civilised and
to

progressive races, none other having been found comparable

to this in point of efficiency. of completely counteracting

Even
the

this,

evil

of

however, is incapable legal conservatism.

However
law
the truth.

perfect

will lag

we may make our legislative machinery, the behind public opinion, and public opinion behind
of the

Another vice

law

is

formalism.

By

this is

meant

the tendency to attribute undue importance to forna as opposed to substance, and to exalt the immaterial to the level of the
It is incumbent on a perfect legal system to exercise a sound judgment as to the relative importance of the matters which come within its cognisance and a sj'stem is infected

material.

with formalism in so far as

it

fails

to

and
is in

raises to the rank of the material

meet this requirement and essential that which

truth unessential and accidental.

is

Whenever the importits

ance of a thing in law

greater than

importance in

fact,

we have

a legal formality. The formalism of ancient law is too notorious to require illustration, but we are scarcely yet in a position to boast ourselves as above reproach in this matter.

Much

legal

reform

is

requisite

if

the

maxim De minimis non

is

curat lex

is to

The

last

be accounted anything but irony. defect that we shall consider

It
is

undue and

needless complexity.

not possible, indeed, for any fully

48

Civil Law.

[ 16

developed body of law to be such that he who runs may read it. Being, as it is, the reflection within courts of justice of the

complex

of elaboration

facts of civilised existence, a very considerable degree Nevertheless the gigantic bulk is inevitable.

and bewildering difficulties of our own labyrinthine system are beyond anything that is called for by the necessities of the case. Partly through the methods of its historical development, and partly through the influence of that love of subtilty which has always been the besetting sin of the legal mind, our law is filled with needless distinctions, which add enormously
far

to its bulk

and nothing to

its

value, while they render a great

part of it unintelligible to any but the expert. to excessive subtilty and elaboration is one
affects

This tendency
that
specially

system

which,

like

our

own,

has

been

largely

developed by way of judicial decisions. It is not, however, an unavoidable, defect, and the codes which have in modem times

been enacted in European countries prove the possibility of reducing the law to a system of moderate size and intelligible
simplicity.

From

disadvantages which

the foregoing considerations as to the advantages and are inherent in the administration of
it

justice according to law,

becomes

clear that

we must guard

If the against the excessive development of the legal system. benefits of law are great, the evils of too much law are not

small. Bacon has said, after Aristotle (I) Optima niinimum rclinquit arhitrio judicis. However true
:

est lex

quae
be

this

may

in general, there are

many departments

of judicial practice to

which no such principle is applicable. Much has been done in recent times to prune the law of morbid growths. In many departments judicial discretion has been freed from the bonds of legal principle. Forms of action have been abolished rules of pleading have been relaxed; the credibility of witnesses has become a matter of fact, instead of as formerly one of law; a
;

discretionary power of punishment has been substituted for the terrible legal uniformity which once disgraced the administration
of

criminal justice

and the future

will

see

further

reforms

in the

same

direction.
Lib. 8, Aph. 46; Aristotle's Rhetoric,
I.

(0 Bacon.

De Augmentis,

1.

16]

Civil Law.

40

have hitherto taken it for granted that legal principles are necessarily inflexible that they are essentially peremptory rules excluding judicial discretion so far as they extend that

We

they must of necessity be followed blindly by courts of justice even against their better judgment. There seems no reason, however, in the natiire of things why the law should not, to a
considerable extent, be flexible instead of rigid

should not

aid,
it

guide, and inform judicial discretion, instead of excluding

should not be subject to such exceptions and qualifications as in special circumstances the courts of justice shall deem
reasonable or requisite. There is no apparent reason why the law should say to the judicature: "Do this in all cases, " whether you consider it reasonable or not," instead of Do this

except in those cases in which you consider that there are Such flexible principles special reasons for doing otherwise."
are not unknown even at the present day, and it seems probable that in the more perfect system of the future much law that is now rigid and peremptory will lapse into the
It will always, indeed, be found category of the conditional. needful to maintain great part of it on the higher level, but we

have not yet realised to what an extent

suflficient

flexible principles are

to

attain
of

all

avoiding

much

its

the good purposes of the law, while attendant evil. It is probable, for

instance, that the great bulk of the law of evidence should be of this nature. These rules should for the most part guide

In the former instead of excluding it. being in general founded on experience and good sense, they would be valuable aids to the discovery of truth; in the latter, they are too often the instruments of error.
judicial

discretion,

capacity,

17.

The Imperative Theory

of

Law.

have defined the law as consisting of the rules in accordance with which justice is administered by the judicial
tribunals of the state.

We

and

partially considered a different doctrine

In a previous chapter we adverted to which has received

widespread acceptance, and which may be termed the imperative or purely imperative theory of law. According to this theory the civil law is essentially and throughout its whole
S.J.

50

Civil Law.

[ ^^
of imperative

compass nothing more than a particular variety

law, and consists of the general

issued by the state to its subjects and enforced through the agency of courts of law by the sanction of physical force. It is now necessary to

commands

consider this theory more fully. have already seen that it contains an important element It rightly recognises the essential fact that civil law of truth.

We

is

the product of the state and depends for

its

existence on the

physical force of the state exercised through the agency of Where there is no state which governs a judicial tribunals.
of physical force, there can be no such It is only if and so far as any rules are thing as civil law. recognised by the state in the exercise of this function that

community by the use

these rules possess the essential nature of civil law. This being so, there is no weight to be attributed to

what
:

be termed the historical argument against the imperative This argument may be formulated as follows theory of law. " Although the definition of law as the command of the state

may

is

plausible,

and

is

at first sight sufficient, as applied to the

developed political societies of modern times, it is inapplicable to more primitive communities. Early law is not the

command
or

of the state; it

public

opinion,

has its source in custom, religion, and not in any authority vested in a

political superior.

It is not until a comparatively late stage

of social evolution that

law assumes

its

modern form and

is

recognised as a product of supreme power governing a body

Law is prior to, and independent of, political authority and enforcement. It is enforced by the state because it is already law, and not vice versa (m)."
politic.

(m) See, for example, Bryce's Studies in History and Jurisprudence, " Vol. II., pp. 44 and 249 Broadly speaking, there are in every community two authorities which can make law the State, i.e., the ruling and directing power, whatever it may be, in which the government of the comand the People, that is, the whole body of the community, munity resides,
: :

regarded not as incorporated in the state, but as being merely so many persons who have commercial and social relations with one another. Law cannot be always and everywhere the creation of the state, because instances can be adduced where law existed in a community before there was any state." See also Pollock's First Book of Jurisprudence, p. 24, " 2nd ed. That imperative character of law, which in our modern experience it its constant attribute, is found to be wanting in societies which it would be rash to call barbarous, and false to call lawless. Not only law, but
.

17]

Civil Law.
this

51
of the imperative theory

To

argument the advocates

state,

can give a valid reply.

If there are

any rules
;

prior to,

and

independent of the

may

greatly resemble law; they be the primeval substitutes for law they may be the

they

may

from vs^hich law is developed and proceeds but they are not themselves law. There may have been a
historical source
;

time in the far past when a man was not distinguishable from the anthropoid ape, but that is no reason for now defining
a

man

in such

manner
is

different things to a
historical evolution

common

an ape. To trace two origin in the beginnings of their not to disprove the existence or the
as to include

importance of an essential difference betw-een them as they now stand. This is to confuse all boundary lines, to substitute
the history of the past for the logic of the present, and to

render

all

distinction

and definition vain.

supplement
it.

The
It

historical point

of view is valuable as a
lytical,

to the logical

and ana-

but not as a substitute for

mind that

in the beginning the whole earth and void, and that science is concerned not with chaos but with cosmos.

must be borne in was without form

The plausibility of the historical argument proceeds from the failure adequately to comprehend the distinction, hereafter to be noticed by us, between the formal and the material
sources of law.
Its

formal source
This

is
is

that from which

essentially

it

obtains

the nature and force of law.

other

the power and will of the state. Its hand, are those from which

and exclusively material sources, on the

it

derives

its

material

contents.

Custom and

religion

may

be the material sources of

legal principles

a legal system no less than that express declaration of by the state which we term legislation.

new
In

No rule of early times, indeed, legislation may be unknown. law may as yet have been formulated in any declaration of the state. It may not yet have occurred to any man that such a
process as legislation
is

possible,

and no ruler
religion

may

ever yet

have made a law.

Custom and

may

be all-powerful

law with a good deal of formality, has existed before the State had any adequate means of compelling its observance, and indeed before there was any regular process of enforcement at all." See also Maine's Early History of Institutions, Lect. 12, p. 364, and Lect. 13, p. 380.

52
and exclusive.

Civil Law.
Nevertheless
if

[ 17
of

any rule

conduct has already

put on the true nature, form, and essence of the civil law, it is because it has already at its back the power of the organised

commonwealth

for the

maintenance and enforcement

of

it.

Yet, although the imperative theory contains this element of the truth, it is not the whole truth. It is one-sided and

inadequate the product of an incomplete analysis of juridical In the first place it is defective inasmuch as it conceptions. disregards that ethical element which is an essential con-

As to any special relation between law and justice, this theory is silent and ignorant. It eliminates from the implication of the term law all elements save that of force. This is an illegitimate simplification, for the complete idea contains at least one other element which is
stituent of the complete conception.

equally essential and permanent.

rules of

This

is,

right or justice.

Il

law are from one point of view commands issued by the state to its subjects, from another standpoint they appear as the principles of right and wrong so far as recognised and
enforced by the state in the exercise of its essential function of administering justice. Law is not right alone, or might
to
It is justice speaking alone, but the perfect union of the two. men by the voice of the state. The established law, indeed,

may

be far from corresponding accurately with the true rule

is

or right; nor

its legal validity in

any way affected by any

such imperfection.
coincident.
It
is

Nevertheless in idea law and justice are for the expression and realisation of justice

that the law has been created, and, like every other work of men's hands, it must be defined by reference to its end and

purpose. A purely imperative theory, therefore, is as one-sided as a purely ethical or non-imperative theory would be. It

mistakes a part of the connotation of the term defined for the whole of it.

"We should be sufficiently reminded of this ethical element by the usages of popular speech. The terms law and justice are familiar associates. Courts of law are also courts of justice, and the administration of justice is also the enforcement of
law.
as of morals.

Right, wrong, and duty are leading terms of law, as well If we turn from our own to foreign languages,

17]
find that

Civil Law.

53

law and right are usually called by the very same Jus, droit, Recht, diritto, have all a double meaning; they are all ethical, as well as juridical they all include the Are these facts, then, rules of justice, as well as those of law.

we

name.

of

no significance? Are we to look on them as nothing more than accidental and meaningless coincidences of speech ? It is this that the advocates of the theory in question would have us We may, on the contrary, assume with confidence believe.
that these relations between the

names

of things are but the

outward manifestation of very real and intimate relations between the things named. A theory which regards the law as the command of the state and nothing more, and which of the entirely ignores the aspect of law as a public declaration principles of justice, would lose all its plausibihty if expressed in a language in which the term for law signifies justice also. Even if we incorporate the missing ethical element in
the definition, even
of
if

we

define the law as the

sum

of the

justice recognised and enforced by the state, principles " a rule of even if we say with Blackstone (n) that law is
civil

conduct, prescribed by the supreme power in a state,

commanding what we shall not reach

is right and prohibiting what is wrong," For although the idea of the whole truth. command or enforcement is an essential implication of the is no law, in the sense that there can be no law where there

coercive administration of justice by the state, it is not true that every legal principle assumes, or can be made to assume, the form of a command. Although the imperative rules of
right

and wrong, as recognised by the state, constitute a part, and, indeed, the most important part, of the law, they do not The law includes the whole of the constitute the whole of it.
principles accepted
tice,

and applied

in the administration of jus-

whether they are imperative principles or not. The only definition are legal rules which conform to the imperative those which create legal obligations, and no legal system
consists

exclusively

of

rules

of

this

description.

All

well-

developed bodies of law contain innumerable principles which have some other purpose and content than this, and so fall
(n)

CJommentaries,

I.

44.

64

Civil Law.

[ 17

These nonoutside the scope of the imperative definition. imperative legal principles are of various kinds. There are, for example, permissive rules of law namely, those which

declare certain acts not to be obligatory or not to be wrongful a rule, for instance, declaring that witchcraft or heresy is no

crime,

or that

damage done by competition

It

in

trade

is

no

cause of action.

cannot be denied that these are rules of

law as that term

fall

is ordinarily used, and it is plain that they within the definition of the law as the principles acted on

by courts
the state?

of justice.

But

in

They

are not

what sense are they enforced by commands, but permissions; they

So,
also,

create liberties,

not obligations.

the innumerable

rules of judicial procedure are largely non-imperative.

They

are in no proper sense rules of conduct enforced by the state. Let us take, for example, the principles that hearsay is no evidence; that written evidence is superior to verbal; that a

contract for the sale of land cannot be proved except by writing that judicial notice will be taken of such and such facts; that matters once decided are decided once for all as between the
;

same
the

office

must
their

parties; that the interpretation of written documents is that witnesses of the judge and not of the jury be examined on oath or affirmation that the verdict of
;
;

a jury

must be unanimous.
true

Is

it

nature

rules

in

accordance

not plain that these are in with which judges

administer justice to the exclusion of their personal judgment, and not rules of action appointed by the state for observance by its subjects and enforced by legal sanctions?

There are various other forms of non-imperative law, notably those which relate to the existence, application, and The illustrations already given, interpretation of other rules. however, should be sufficient to render evident the fact that
the purely imperative theory not merely neglects an essential element in the idea of law, but also falls far short of the full
application or denotation of the term.
All legal principles are

not

commands of the state; and those which are such commands are at the same time, and in their essential nature,
something more, of which the imperative theory takes no
account.

18]

Civil Law.

55

18.

The Authority

of

Law.

have endeavoured to avoid the foregoing Dbjections to the purely imperative theory of lavs^ by regarding rules of procedure, and all other non-imperative principles,
writers
as being in reality the commands of the state addressed, not The rule, they say, to the public at large, but to the judges. that murder is a crime is a command addressed to all persons

Some

not to commit murder, and the rule that the punishment for murder is death is a command to the judges to inflict that punishment. Similarly, the rule that hearsay is not admissible

command of the state to the judges not to admit evidence of that kind. By taking this view of the matter, it is endeavoured to bring the whole body of legal principles within the scope of the definition of law as the
in evidence is a

general

commands

of the state (o).

This contention brings us to the consideration of the true nature of the obligation of courts of justice to recognise and

we have spoken

apply those fixed principles which constitute the law. Hitherto of the law as being authoritative within the
;

we have spoken of those courts as being under an obligation to observe the law in the exercise of their
courts of justice

function of administering justice, instead of acting in accordance with their own views of right and wrong. It is now necessary to consider the nature of this authority and of this
obligation.

In what sense and by what means is a judge bound, for example, in deciding a case to follow the precedents set in former cases, instead of following the dictates of his own
?

reason

It is clear, in the first place, that judges are

under a moral

obligation to observe the law.

This

is

the business for which

they were appointed.

This

is

by their

judicial oaths,

when they swore

the duty which they undertook to administer justice

The observance of this moral obligation is according to law. secured and enforced by the pressure of public opinion, and more especially of that professional opinion of the bar which
(o)

p. 330,

See for example Bentham's Principles of Morals and Legislation, Works, I. 151; Ihering, Zweck ira Recht, I. p. 334 (3rd ed.).

56

Civil Law.

[ 18

would be quick to notice and to censure any departure by the bench from the established principles of law. Moreover, the wilful refusal of a judge to apply the established law would amount to misconduct in his office, for which he could rightly
be removed by the proper executive authority.
is there superadded any legal duty of a court to administer justice according to law a legal obligation enforceable as such by any form of judicial proceeding, and, if so, in what cases and in

To

this

moral obligation,
Is

obligation?

the

what manner?
to

In the case of inferior courts which are subject

superior court by way of appellate or superintending jurisdiction, the duty of the inferior court to observe the law
is

enforced as a legal obligation by the superior court.

If

the

lower court goes wrong in law, its judgment will be reversed and a correct judgment in accordance with law will be substituted.
If

the lower court refuses to exercise

its

lawful

jurisdiction, or claims to

exercise a jurisdiction beyond that

it, the superintending jurisdiction be used to compel observance of the law. Legal control of an inferior court may go even further, for a system is readily conceivable in which a judicial officer who

which the law confers on

of a higher court

may

disregards the law may, in a higher court, be subject to criminal proceedings, or to actions for damages at the suit of So far as inferior courts of justice persons so injured by him.
are concerned, therefore, there is no difficulty in recognising, not merely a moral, but also a legal obligation to administer But in the case of a superior court justice according to law.
of judicature to

(meaning thereby a court which is not subject appellate or superintending authority of any other There is no other court), such a legal obligation is impossible. court in which any such obligation could be recognised or
the
enforced.

some

of

Moreover, the system of a hierarchy of courts, which possess jiirisdiction over others, is not an

A system is part of the constitution of a state. possible in which the public justice of a state is administered by a single court, or by a series of co-ordinate courts, without the existence of any appellate or other controUing jurisdiction.
essential

18]

Civil Law.

57

In such cases there can be no legal obligation imposed on the

courts to observe the law.
rule of law,

legal obligation is
of

and there can be no rule

imposed by a law unless there is a

To suppose,
of

court having jurisdiction to declare, apply, and enforce it. therefore, that every court is bound by a rule
law, and by a resulting legal obligation to observe the system of law in force in that court, is clearly a fallacy. Observance of the law may be enforced on an inferior court by

to

a superior, and upon that superior court by another superior The world, as it, but the process must stop somewhere.

has been determined by Eastern philosophy, may stand on an elephant, and the elephant on a tortoise, but the tortoise must be self-supporting. The High Court may enforce the law

upon the County Courts; the Court of Appeal may enforce it upon the High Court and the House of Lords upon the Court of Appeal. But this process cannot be endless. The duty
;

of

wilfully to misconstrue an Act of Parhament, the interpretation so placed on that Act would ipso facto be the law of England, for there is no other judicial tribunal with jurisdiction and authority to decide the contrary.

must be recognised House of Lords were

the final tribunal to administer justice according to law as a moral obligation merely. If the

Since, therefore, the courts of justice cannot be universally under a legal obligation to observe and apply the law, no such legal obligation can be regarded as forming a part of the definition of law. Such a definition would amount to reasonLaw is law, not because the courts are under ing in a circle.

any legal obligation

fact

to

observe

it,

but because they do in

is

observe

it.

No

rule that is not thus in fact observed

in accordance with the established practice of the courts

and, conversely, every rule that is thus in fact observed amounts to a rule of law. It is to the courts of
rule of law,
justice,

and

to

we wish
not.

to find out

them alone, that we must have recourse if what rules are rules of law and what are

In the last resort the authority of the law over the its source merely in the moral obligation of the judges to observe their judicial oaths, and fulfil their
courts themselves has

appointed functions, by administering justice according to law.

58

Civil Law.

[ 19

19. Justice.

right or justice. rules recognised

"We have defined the civil law by reference to the idea of We have said that the law consists of the

of their function of enforcing

and applied by the courts in the exercise and maintaining right or justice

by means
and
of

right or justice

If this is so, of the physical force of the state. comes first in the order of logical conceptions, law comes second and is derivative. A complete analysis

the idea of law involves,

therefore,
it.

an analysis of the

This task pertains in its full compass to the science of ethics rather than to that of jurisprudence, but a partial examination of the question is
ethical

element so involved in

necessary here in view of the intimate relation which exists between the theory of law and the theory of justice. We have used the terms right and justice as being synonymous. The question whether this is correct, or whether, on the contrary, justice is only one form or species of right,

what is the nature of the specific difference between and other forms of right, must be reserved for later consideration. In the meantime the possibility of any such difference will be ignored, and we shall regard the sphere of justice and the sphere of right as coincident and co-extensive.
and,
if

so,

justice

Natural and legal justice. Justice is of two kinds, being The either (1) natural or moral justice, or (2) legal justice. in deed and in truth; the first of these is justice in itself

second
civil
is

is

law

justice as actually declared and recognised by the and enforced in the courts of law. Natural justice
is

the ideal and the truth, of which legal justice

the more

or less imperfect realisation and expression. Legal justice is the authoritative formulation of natural justice by the civil law for the direction of the courts by which justice is

administered.
fit

Such portions

of natural justice as are

deemed

maintenance and enforcement by the state are formulated by the law in rules which must be accepted by the courts as the authoritative expression of such Natural justice.
for
justice,

justice of the

as so authoritatively formulated, constitutes the legal state. Natural justice bears to legal justice

19]

Civil Law.

59

the same relation that the truth bears to an authoritative creed

which precludes inquiry. Natural and legal duties.

Involved in the conception of

justice are the derivative conceptions of duties and rights, and just as there are two kinds of justice so there are two kinds
of duties

an act the contrary of which would be an act of of justice Duties, accordingly, are either (1) natural injustice or wrong. or moral duties or (2) legal duties. A duty of the first kind is
an act is required by a rule of natural justice the contrary of which would be an act of moral injustice. A legal duty, on the other hand, is one which is required by a

and

of rights.

duty

is

an act required by a rule

one which

rule

of

amount

an act the contrary of which would legal justice to a violation of the law and a legal wrong or injury.

A moral or natural duty becomes also a legal duty when the rule of natural justice, to which it owes its origin, is recognised also by the law as a rule of legal justice.
is

Natural and legal rights. So, also, with rights. A right an interest recognised and protected by a rule of right or
All rules of right or justice exist for the protection men against the acts of other men. But

justice.

of the interests of
all

Those which the interests of men are not so protected. All right is the right of are so protected are called rights. the person for whose sake it exists, and who is interested in
the observance of
that
it is
it.

That I have a

right to anything

means

This being so, right that I should have that thing. rights must be of two kinds, just as the justice in which they have their source is of two kinds. They are either (1) natural

A right of the first kind or moral rights, or (2) legal rights. is one which is conferred by a rule of natural or moral justice.

by a rule
it

legal right, on the other hand, is one which is conferred A natural or moral right becomes of legal justice. also a legal right when the rule of natural justice, in which

has

its

origin,

is

recognised also by the law as a rule of

legal justice.

Legal justice
circles.

Justice

not

legal,

and natural justice represent intersecting be legal but not natural, or natural but For the law is necessarily or both legal and natural.

may

60

Civil Law.

[ 19

incomplete in the sense that it does not seek to cover the whole sphere of natural or moral justice or duty; and it is also necessarily to some extent imperfect and erroneous,
recognising and enforcing as justice what is not justice in deed and in truth, and therefore creating rights and enforcing duties which are legal rights and duties only, and not also natural
rights

and

duties.

What, then, is the true nature of this natural or moral justice which is thus distinguished from legal justice, and what is the true nature of these natural or moral rights and
duties?
are

three

Before attempting an answer to this question there possible misconceptions which should be cleared

away. Natural justice and ideal law. In the first place, natural justice does not mean an ideal or perfect form of legal justice. A moral right cannot be defined as one which ought to be recognised as a legal right, nor a moral duty as one which ought to be enforced as a legal duty.
there
is

For, in the first place, a large portion of the sphere of natural or moral right and justice which is not fit for enforcement by the state at
all;
is
fit

thus

and, in the second place, even within that portion which fit for enforcement, there is a large part which is not for reduction to rigid rules of civil law, but is rightly left

to the discretion of the courts to do that

which is thought by them to be required by natural justice; and, in the third

place,

in a circle when we try to define natural " ought," or by justice by the use of the term reference to the ideal or the perfect fonn of civil law. The " " t^rm involves in itself the conception of right, and ought therefore cannot be used for the purpose of defining it. So

we reason

right

or

the ideal or perfect form of law can only be defined as that

which most completely maintains right or justice. Natural justice and positive morality. In the second place, natural or moral justice is not to be identified with
the rules of positive morality. Positive morality means the rules of conduct approved by the public opinion of any community the rules which are maintained and enforced in that

community, not by the

civil

law,

but by the sanction of

19]

Civil Law.

61

Positive morality bears public disapprobation and censure. the same relation to natural right or justice that legal right or Positive morality is a more or less incomplete justice does.

and imperfect attempt by the public opinion of a community and enforce the rules of natural right and justice, even as legal justice is the attempt of the state, by its legislature and courts of justice, to do the same. The rights and duties prescribed and enforced by the social law of public opinion, no less than those prescribed and enforced by the civil law of the state, may be far from complete coincidence
to formulate

or identity with those recognised by the rule of natural right

and

justice.

Natural law.

In the third place, natural or moral right or

justice is not to be conceived as a

system of authoritative and

binding rules imposed upon mankind by some form of imperative law, just as legal justice consists of rules imposed upon citizens by the imperative law of the state to which they The idea of a law of nature or a moral law lex belong.

as a form of imperative law in which naturae, lex naturalis natural justice has its source, just as legal justice has its source in the imperative law of the state, has played a notable

part in the history of

theology,
politics,

human thought

in the realms of ethics,

It was long the jurisprudence. accepted tradition of those sciences, but it has now fallen on evil days, and it can no longer be accepted as in harmony

and

with

modem

thought on those matters.

This imperative theory of natural right and justice has, in the course of its history, assumed two forms and passed through two stages, which may be conveniently distinguished
the theological and the secular. In the first of these, is conceived as imposed upon men by the command of God. In a passage which has been already
as

natural or moral law

"Natural law is a quoted from Thomasius, it is said (p) Divine law, written in the hearts of all men, obliging them to do those things M'hich are necessarily consonant to the
:

rational nature of

mankind."

So we read in the Catechism

(p) Inst. Jurisp.

Div.

I.

2.

97.

62
of the

Civil Law.

[ 19 "

Church of Scotland that

declaration of the will of

God

to

The moral law is the {q) mankind directing and binding

:

everj'one to obedience thereunto ... in performance of all those duties of hohness and righteousness which he oweth to

God and man promising

; :

life

upon the

fulfilling

and threaten-

So in later days Blackstone ing death upon the breach of it." " The law of nature, being coeval with mankind and says (r) dictated by God himself, is of course superior in obligation
to any other. It is binding over all the globe, in all countries and at all times no human laws are of any validity, if contrary to this and such of them as are valid derive all their .force and all their authority, mediately or immediately, from
; ;

this original."

is

alternative and secular form, natural or moral law conceived as in some sort imperative, but the idea of Divine imposition and command has disappeared or receded

In

its

still

background of thought, and this law is vaguely and metaphorically regarded and spoken of as imposed authoritatively on mankind by Nature or by Reason or by the
into the

no longer the command of God, but the retained, and the moral law, the rule of right and wrong, is conceived as the product of some form of as by legislative authority possessed by man over himself his reason over his passions, or by his higher nature over his
Conscience.
It is

imperative idea

is

lower. The idea of moral duty or obligation is still vaguely conceived as based on some form of imperative imposition, although no longer explicitly on Divine imposition. But this

secular form of natural or moral law

is

merely the frustrate

ghost of the natural or moral law of the theologians. Regarded as a form of imperative law, whether from the religious or

from the secular point

the present day.

of view, natural or

moral law no longer

finds a recognised place in the ethical or juristic speculation of

Indeed, the terms themselves, which have had so long and influential a history in law and morals, have all but fallen out of use. We still speak of natural justice, rights, and duties, but rarely of that natural law by which
(q)
(r)

Larger CatechiBtn

of the

Westminster Assembly

of Divines,

Quest

93 (1648).

Commentaries

I.

41.

19]

Civil Law.
Nevertheless, the term natural law,
its

63
if

they are recognised.

definitely freed

from

early

and misleading associations

is

of

command and
service.

authoritative imposition,

capable of useful

So long as we do not suppose that natural law is the source of natural justice, in the sense of an imperative law by which it is established and from which it derives
authority, we may usefully continue to employ the term as meaning nothing more than the aggregate of the rules of The elimination of the illegitimate imperanatural justice. tive idea reduces natural law from a system of authoritative

imposition to a system of doctrine.

declares,

system

of natural

law

formulates, or expresses the principles of natural right and justice, but it does not add compulsion to instruc-

Natural justice becomes imperative only when its principles are recognised as fit for compulsory enforcement by some form of human authority notably by the state through
tion.

the instrumentality of courts of justice and the The essential purpose and business of those courts
to natural justice that lacks, and to maintain

civil
is

law.

to give
it

coercive
it

authority which in itself

by the physical force of the incor-

porate
justice

community
of

Similarly, natural law and justice become, by another road, a system of imperative imposition and control, so far as recognised
by,

the

state

against all who disregard it. is natural justice armed.

The

legal

and incorporated
its

in,

public opinion penalties of public censure.

has

source

in

that law of positive morality which and its sanction in the

So long as natural or moral law is conceived as being a form of imperative law analogous to civil law, the same imperative element is carried into the derivative conceptions Moral duties, like of natural or moral duties and rights. legal duties, are thought of as imposed and enforced by some

form

of

authoritative
are

constraint.
as

Natural rights,
capable of

like

legal

rights,

conceived

claims
of

some form

of

exaction.

The

elixnination
it

natural law eliminates

the imperative element from at the same time from the concep-

tion of natural or moral rights

and duties.

The element

of

coercion

is

left

to

be superadded ab extra by some form of

64
positive

Civil Law.

[ 19

and imperative law, and is no longer conceived as inherent in the natural or moral rights and duties themselves.

A natural duty becomes merely an act the omission of which would be inconsistent with the rules of natural justice; and a natural right becomes merely an interest the disregard of which would be a breach of natural justice an interest, that is to say, which is protected by natural duties imposed on

other persons. The nature of justice. If natural law and justice is not a system of command, authority or government, but is merely a system of doctrine, what is the subject-matter of this

The significance of all doctrine, and what does it teach ? human action depends, in law and morals, on its effect on human welfare. Acts that have no effect, whether for good
or evil,
for ethics or for jurisprudence (s).

the good of mankind consist? On this question philosophers have disputed in all ages, and with respect to it there are two predominant types of ethical theory. According the summuvi bonum to one of these human well-being
welfare

on the interests of mankind have no significance either In what then does human

consists
it

in

consists

human perfection, and according to the other in human happiness. Philosophers who hold the

first of

these opinions teach us that

to attain the ideal form and nature of a to seek perfection man and so to fulfil Nature's purposes in making him. They

it is

the business of a

man

hold,

accordingly,

that everything

is

good which makes for

such

and everything evil which hinders it. perfection, Philosophers of the other school teach us that the business of
is to be happy that everything is good so far as it produces happiness, and everything evil so far as it produces
;

men

and sorrow, and that nothing is either good or evil any other reason. Rightly understood, however, these two different theories lead us to the same results. Men have no means of knowing the purpose for which Nature created them
suffering
for

if any such purpose there be except by taking as their In guide the instincts with which Nature has endowed them.

() For the sake of simplicity of statement we leave out of account for the present the welfare and interests of the lower animals.

19]

Civil Law.

65

seek

accordance with these instincts they desire certain things and them. In the satisfaction of these desires and the

of these endeavours they find life In the frustration of these desires and the failure of these endeavours they find pain, sorrow, and death.

successful

accomphshment

and happiness.

The only

perfection which

man

is

capable of knowing

lies

in his capacity thus to do Nature's bidding and to attain the reward of his activities and the satisfaction of his desires.

The only test of perfection, and the only indicia of conformity to the ideal type and final cause of human nature, are to be foimd in the conditions of human happiness. Let us say,
therefore,

that himian

well-being

the

sumiwum honum

consists in the abolition, so far as

sorrow and the increase, so far

desirable consciousness,
so

that

may be, of suffering and as may be, of all forms of men may lead happy lives
welfare,
as so conceived,
-

enduring to length of days. It is from its effect on

that
all

human
its
it

human

action derives
this effect that

practical significance,

and
this

by reference to
its effect

must be judged.

Now

effect is twofold.

An

action

may

be considered either as to

effect

on the well-being of the actor himself, or as to its on the well-being of mankind at large. Viewed solely

in regard to the a<2tor himself, his act is to be judged as being wise if it promotes his well-being, either wise or foolish foolish if it diminishes it. Viewed, not merely in regard to

the actor himself, but in regard to the general well-being, his act is to be judged as right or wrong, just or unjust. It is right and just if it promotes the public welfare; wrong and

unjust

if

it

diminishes

it.

The

rule of

wisdom

that

is

say, self -regarding wisdom, the prudence of self-interest instructs a man how he must act in order thereby to secure and promote his own welfare. The rule of justice instructs

to

him how he must

If

act in order to

secure and promote the

general welfare of mankind.

the interests of each

individual

were

in

all
if

respects
it

coincident with the interests of

mankind

at large;

were

possible for every man to pursue his otmi desires and purposes and to seek his own good without thereby interfering with the
S.J.

66

Civil Law.

[ 19

similar activities of other

all purposes. But this is not that the good things in it are There is not enough and to like bread in a besieged city.

place for the rule of justice. of self-interest would serve

80.

men, there would be no need or The rule of practical wisdom and

The world

is

so

made

The good which is available must therefore spare for all. be so apportioned among those who seek it as to be put to To allow every man to take as much of it as the best use.
he can get
this
is

to

waste
is

much

of

what there

is.

The

rule of

apportionment

the rule of justice.

Justice consists in

The rule of justice determines giving to every man his own. the sphere of individual liberty in the pursuit of individual welfare, so as to confine that liberty within the limits which
are consistent with the general welfare of mankind. "Within the sphere of liberty so delimited for every man by the rule
of justice,

he

is left

free to seek his

own

interest in accordance

with the rule of wisdom.

no question of compulsion, command, or Neither the law of self -regarding wisdom nor the law of natural justice belongs to the class of laws imperative.
far there is

So

authoritv.

They

are practical laws in the sense in

in

which that term has

been defined

the preceding chapter of this book. They assume or presuppose a certain end or purpose, and lay down the rules of action by which that end or purpose is to be

The formula of every such law is not that of command, but that of advice to reach that end, this is the way which you must take. The law of justice is in this If respect of the same nature as the law of self-interest.
reached.
:

command

is

to be

added

to advice,

and authority to doctrine,

in

the additional element

coercive system
of justice of

must be foimd

some

regulative or

government, such as the administration

by the state or the control exercised by the pressure

of public opinion in support of those rules which are recognised within any society as being the rules of right.

Both within the sphere of justice and within the sphere wisdom of self-interest, the conception involved in the " " word is of the same nature. The statement that ought
of the

man

ought to do a certain act presupposes some appointed

19]

Civil Law.

67

end, and indicates that the act in question is the proper means That he ought to take care of his health and to to that end.
practise welfare.

temperance means that this is the way to his own That he ought to keep his promises and abstain from violence and fraud means that this is the way to the But the conception of "ought" has no general welfare.
application to the end
in the
itself.

The question why

man

ought

way

meaning,
his

of justice to seek the general welfare has no and therefore no more admits of an answer,

more
than
seek

the question

why

he ought in the

way

of

wisdom

to

own.

We
if

welfare, to
it

have, for the sake of simphcity, spoken of that general which the rule of right and justice is directed, as
to

was confined
evil

the welfare of mankind.

we

a-ccept the utilitarian

If, however, view that the good means happiness

it

and that
of the

means

pain,

becomes
differ

clear that the welfare

save in degree from the welfare of mankind, and must be counted as part of that of the rule general welfare which is under the guardianship We owe moral duties to beasts as well as to men, of risht.

lower animals does not

and
also.

in

the

civil

law of modern and civiHsed communities

this part of natural justice has

become a part of legal justice of capacities and needs of beasts, in respect their sentient and emotional life, are so immeasurably below

But the

those of

men that the interests of beasts, as so recognised by the rules of natural and legal justice, are of little more than the elements of human negligible importance as compared with
welfare.

Indeed, the civil law, while punishing unjustifiable not so far recognise cruelty to beasts as a criminal offence, does All legal their interests as to treat them as legal rights.
rights
It is practically sufficient, are the rights of men. therefore, while recognising the subordinate claims of the lower animals, to deal with the theory of right and law as if it

related to the general welfare of with the Roman lawyers (t)

mankind

alone.

We may
omne

say
jus

Hominum

causa

constitutum.

5. 2. The legal status of the lower animals (t) D. I. Ch. 15, sect. 109. sidered in a later chapter of this work.

is

further con-

68

Civil Law.

[ 19

In the general Justice conceived as one portion of right. we have hitherto used the term, justice is The rule of justice and the rule of synonymous with right.
sense in which
right are the
right
is

same thing and co-extensive

in their scope.

All

It is now to be justice and all wrong is injustice. observed that a narrower meaning is often given to the term Justice is conceived as being merely one part of right, justice.

and not the whole of it. Similarly, duties are recognised as of two kinds, only one of which consists of duties of justice. So wrong is divided into two kinds, and only one of them amounts
to injustice.

What
It is

then

is

the nature of the distinction thus

based on the distinction between rights and duties. Justice, it is said, means specifically the observance of rights, and injustice the violation of rights. But all duties,
indicated?
it is

said, do not correspond to rights vested in other persons. Every breach of duty, therefore, does not amount to injustice;

it

may

breach

be a breach of the rule of right in general, but not a of the rule of justice in particular. A man acts
it

unjustly,

is

said,

if

breaks his contracts, or

he refuses to pay his debts, or if he if he takes away or injures another

if he obtains money by fraud, for in all such cases he violates a right vested in someone else. But no one would accuse him of injustice because he is drunk and

man's property, or

disorderly, or carries on a noxious trade to the annoyance of the public, or obstructs the public highway; for in such cases,
it is said,

any correspondent right vested

the

although he disregards his duty, he does not violate in another person. Justice, as
lawyers said, consists in giving to every man his et perpetua voluntas jus suuni
(u).

Roman
:

rights

Justitia est constans

cuique tribuens

justice

so dravni between right in general and particular does not seem capable, however, of standing the test of logical analysis. The truth of the matter would seem rather to be this, that the distinction is one of

The

distinction

in

aspect and point of view rather than one of nature or subjectmatter. All right or wrong conduct has two aspects, and is

capable of being looked at from two

(u) Just.

dififerent points of

view.

Inst. I.

i.

pr.

19]
of

Civil Law.
view

69

rights.

may be either that of duties or that of view and judge an action with reference either to the duty fulfilled or broken by the actor, or, alternatively, with reference to the right which is thereby preserved From the point of view of duties, the act belongs or violated.

The point

We may

to the sphere of right or wrong; from the point of view of But rights, it belongs to the sphere of justice or injustice. There are no this double aspect exists in truth in all cases.

duties without rights, any

duties.

more than there

no rule

are rights without

There

is,

therefore,

of right

which

is

not at

the same time in truth a rule of justice, and there is no wrong which is not also in truth an injustice. But the one aspect or point of view is sometimes more natural or more illuminating

than the other.

Sometimes, therefore, rights come into the

foreground of thought and speech, and sometimes duties. We may test the matter by considering the nature of those
alleged duties of right which are not also duties of justice. They are of three classes (1) self-regarding duties as opposed to duties towards others; (2) duties to the public as opposed to duties to individuals; (3) imperfect duties as opposed to
:

perfect duties.

As to the first of these, if the foreSelf -regarding duties. rule of going attempt to explain the essential nature of the it follows that a man right is accepted as substantially correct, owes no duties to himself. Self-interest falls within the rule

The rule of right wisdom, not within the rule of right. man's actions, not upon himself, but from upon others. For Eobinson Crusoe on his island, remote nor mankind, his acts were neither right nor wrong, just to his own as wise were conducing merely unjust; they
of

relates to the effects of a

interest, or foohsh as being contrary to

it.

The conception

of

has its soiirce in the right and wrong, justice and injustice, conflict between the interests and desires of the individual and those of other men, and the sole business of the rule of these conflicting right or justice is to adjudicate between interests and to allot to every man his own. Temperance, a man's own health, so far frugality, industry, the care of as they are duties, are duties which he owes not to himself,

70

Civil Law.

[ 19

but to those dependent on him or to the community at large. Quoad se ipsuin they are not duties at all, but counsels of

The rule of wisdom may, no less than the practical wisdom. rule of right, form the subject of ethics or moral philosophy as the science of human conduct and character, but it is not
itself

a part of the rule of right.

The

so-called self-regarding

duties, therefore, cannot be

made
.

the ground of any distinction

between
tinction

justice

Duties to the coynmunity

is

and the residue of right properly so called. In the second place, a disdrawn between duties to specified individuals and
Duties of the
first

duties to the public at large.

said,

kind,

it

is

correspond to rights vested in those individuals; but duties of the second kind correspond to no rights at all. Duties
of the first kind, therefore, are duties of justice; but those of

the second kind are merely duties of right in general. There is no doubt that this distinction conforms with substantial

accuracy to the usages of speech.

ever,
it

expresses
of

difference
directly to

As already explained, howa difference of point of view and not a When a duty is owing not subject-matter.

large, the corresponding right is vested in the

any individual, but merely to the community at community. A

public nuisance is in truth a violation of the rights of the public, just as a private nuisance is a violation of the right of a private individual. The circumstance, however, that the
right is not that of any single or ascertained person, but is merely that of the public at large, tends to concentrate attention on the duty broken rather than on the right violated.
into the foreground of thought,
falls exclusively.

Conversely, in the other class of case, the right violated comes inasmuch as it is the right of

a single person, on whom the mischief of the breach of duty In popular thought and speech, therefore,

we
of

naturally think and speak of breaches of duty in one class But in case and of violations of rights in the other.

less a

substance and essence a duty to the community at large is no duty of justice than is a duty to an individual person.
In the third place, a disPerfect and imperfect duties. is often drawn between perfect and imperfect duties the former alone falling within the sphere of justice. By a

tinction

perfect duty

is

meant one which

is

rightly enforceable

one

19]

Civil Law.

71

which is fit to be maintained by physical force, and therefore would be so maintained by a perfect system of civil law and An imperfect duty, on the other hand, is an legal justice. act which ought to be done in observance of the rule of right, but the doing of which should nevertheless be left to the free
it is not of such a nature as fits it for compulsory exaction by way of physical force. Such duties stand outside the scope of an ideal system of civil law. They are natural or moral duties which are not fit to be transformed

will of the uctoT, since

into legal duties.

Thus the duty

to

pay one's debts or to keep

a perfect duty; for it is the business of any properly governed state and of any competent body of civil law to enforce such duties. They pertain, therefore, to the
is

one's contracts

But sphere of justice. gratitude are imperfect. the state or proper to

duties of

They
be

charity, benevolence, are not fit for enforcement

legal

or

by

transformed into

duties.

Imperfect duties, it is said, have no rights corresponding to them, or, at all events, no perfect rights, or rights properly
so called
rightful

for the

possibility

essence of a right consists, it is said, in the of exaction by force. Therefore justice

includes the sphere of perfect duties only. Imperfect duties pertain not to justice but to the domain of voluntary virtue.
duties

drawn between perfect and imperfect doubtless, one which possesses both logical validity and practical importance. It is certain that one part of the
distinction so
is,

The

rule of natural right should be taken

legal right,
civil

up into the sphere of and that the residue should remain outside. The law and the administration of public justice are not

the proper guardians of the entire body of morality. The In the first distinction, however, is subject to two criticisms.
place
it is to be observed that the specific use of the term justice as denoting exclusively the sphere of perfect duties is Justice does not not in conformity with established usage.

connote enforceability or consonance with an ideal system of civil law. It means, as already indicated, the due observance
of rights,

whether such rights are of a nature

to be properly

speak of a father's treatment of his children as being unjust, without any thought of enforceNatural ability or of the civil law, whether actual or ideal.
enforced by law or not.

We

72
or moral justice
is

Civil Law.
natural or moral right in
its

[ 19

whole compass,

regarded from the point of view of the interests protected by and this it, rather than from that of the duties imposed by it

is

so

whether those rights and duties are regarded as properly

criticism relates to the use

enforceable or not.

which is sometimes between justice and other forms of Attempts have been made so to define justice in this right. sense that, by a process of deductive reasoning, conclusions

The second

made

of this distinction

may

of justice in the state's courts,

be reached as to the proper limits of the administration and of the interference of the

legislature with private liberty. of these attempts is that made

One

of the most noteworthy by Herbert Spencer in his

first

He divides the sphere of ethics in the Principles of Ethics. place into two parts, dealing respectively with the so-called
and with duties towards others.

self-regarding duties
first

The

part he calls the Ethics of Individual Life, and the second He then proceeds to divide the the Ethics of Social Life.
latter into

two

Beneficence.
able duties.

parts, dealing respectively with Justice and Justice includes the perfect and rightly enforceThis alone is the proper sphere of the law courts

Beneficence, on the other hand, includes legislature. imperfect and unenforceable duties. This is the domain of voluntary virtue, into which the civil law must not trespass.

and the

all

him between justice and It purports to be a scientific boundary-, and the scope of justice is to be deductively ascertained by reference to the definition of that form of right. His
The
distinction
is

so

drawn

by

beneficence

not empirical.

definition is essentially the that scheme of limitation

same
of

as that of Kant.

Justice

is

whereby
"

the liberty of the individual " the liberty of each is Hmited only by the Uke

liberties of all."

The all-embracing formula

free to

of justice is (z)

do that which he wills, provided he All that infringes not the equal freedom of any other man." goes beyond this in the operations of the legislature or of the law courts is trespass and usurpation an unjustifiable transformation into legal justice of rules which pertain, not to

Every

man

is

(.r)

Principles of Ethics, II. p. 46.

19]

Civil Law.

73

all, but to the definitely contrasted sphere of voluntary well-doing. This is not the place for any critical examination of this or any other attempt so to limit

the sphere of justice at

deductively and scientifically It territory of the civil law.

the

may

proper boundaries and be permissible, however,

to express the opinion that neither by way of this principle of equal liberty, nor by way of any other substitute for it, is it possible to find a royal road by which we can attain deductively

any sound distinction between those duties which are fit and enforcement, and those which must The most properly be left within the domain of civil liberty. that can be hoped for is the formulation of principles as to the relative advantages and disadvantages of legal restraint on the one hand and natural liberty on the other, in order that
to

for legal recognition

the issue

may

be better judged in each individual instance in

which

it

arises for decision.

Private and Public Justice. There remains for examination one further question. When we consider justice, not merely in its general aspect, but in its special aspect as administered and maintained by the tribunals of the state, it becomes

manifest that
public.

it is

between man

The former

Justice is either private or a relation between individual persons and man while the latter is a relation between
of
is

two kinds.

individual persons and a court of justice. The rule of private justice is concerned with the dealings of men with each other;

the rule of public justice is concerned with the dealings of a judicial tribunal with those who come before it as subject to its jurisdiction. Private justice is that which the courts are

appointed to maintain or enforce; public justice is that which they are appointed to administer or dispense. The former is maintained by the courts in the same sense in which the pohce force maintains the public peace; while the latter is administered by the courts in the

same sense
is

administers drugs.

Public justice

in which a physician that which a plaintiff

demands and receives from a judicial tribunal, because he has failed to obtain private justice from his antagonist; it is that which a criminal is brought before the tribunal to receive and
suffer,

crime.

because he has already violated private justice by his Private justice is the end for whose sake the courts

74

Civil Law.

[ 19

exist; public justice is the instrument by which they fulfil their functions. Where in Magna Carta it is provided that

right and justice (rectum et justitia) shall not be sold, denied, or delayed, the right and justice intended is the public justice of the courts, not that private justice w^hich determines the

The rights of the King's subjects as between themselves. business of the courts is so to dispense public justice as to
give to every
of private justice already
scales.

he deserves by reason of some violation done or suffered by him. It is public justice, not private justice, that carries the sword and the
Public justice is of two kinds, being either criminal or The nature of this distinction will be more fully con-

man what

civil.

sidered at a later stage of this inquiry. It is sufl&cient here to say that criminal justice is retributive, whereas civil justice is remedial. Criminal or retributive justice gives to a wrongdoer what he deserves, in the way of punishment, for his
infraction of the rule of private justice.
Civil

or remedial

justice gives to a person who has been injured by a violation of private justice what he deserves by way of restitution or

redress from

him who has

so injured him.

legal justice, which has been already considered by us, exists both within the sphere of public and within that of private justice. Rules of civil law exclude, so far as thev extend, the liberum arhitrium. of

The

distinction

between natural and

the courts both in [Link] the principles of that private justice which they are appointed to maintain, and in determining the principles of that retributive or remedial justice

which they are appointed to administer. So far as the law so extends, both private and public justice fall within the domain of legal justice; so far as the law does not extend, the justice maintained and administered by the tribunals of the state is natural or moral justice.

SUMMARY.
Origin of the

term Civil Law. Various meanings of the term 1. The law of the land.
2.

Roman

law.

19]
3.

Civil Law.
The residue
special part law.
:

75

of

the

e.g., civil

law of the land after excepting a and criminal law, civil and military
term
civil

Improper substitutes
1.
2.

for the

law

Positive law.

The

Municipal law. and abstract senses of the term law Law and a law Jus and lex.
concrete

Droit and loi. Legal and ethical senses of jus and droit. Law defined as the rules applied by the courts in the administra-

Nature

tion of justice. of the administration of justice.

Discretionary justice. Justice according to law. Advantages of justice according to law.

Its defects.

The imperative theory

of law.
of the state.

Law

as the

command

The partial truth

Its defects
1.
2.
:

of this theory.

No No

recognition of the relation between law and justice. recognition of non-imperative rules of law.
sources of the authority of law over the law courts

The nature and

themselves.
1.
2.

Its legal authority. Its ethical authority.

:

Justice

Natural or moral
:

justice.

Legal justice. Rights and duties Natural or moral rights and duties. Legal rights and duties.

Law

Natural or moral law.

Civil law.

The imperative theory

Theological. Secular.

of natural

law and

ustiee

Natural justice defined:

The rule of justice directed to the general good. The rule of self -regarding wisdom directed to one's own good. Whether natural justice the whole of natural right or one part of

it only.

The

alleged distinction between duties of justice

and other

duties.

76

Civil Law.
Duties said not to be duties of justice:
1. 2. 3.

[ 19

Self-regarding duties. Duties to the community at large.

Imperfect duties.

Justice the whole of right in one aspect

of rights.
:

i.e.,

as the due observance

Public and Private Justice Retributive Criminal. ( Public Justice Remedial Civil.

(77)

CHAPTER
CIVIL

III.

LAW

(continued).

20.

Law and

Fact.

commonly said that all questions which arise for consideration and determination in a court of justice are of two
It is

kmds, being either questions of law or questions of fact. In a sense this proposition is true, but it is one which requires careful examination, because both the term question of law and the term question of fact are ambiguous and possess more than one meaning. The term question of law is used in three distinct though
related senses.
It

the court

is

bound

established rule of

means, in the first place, a question which to answer in accordance with an already law a question which the law itself can

be shown to have authoritatively answered, to the exclusion of the right of the court to answer the question as it thinks
fit

in

accordance with what

is

considered to be the truth

All other questions are questions justice of the matter. of fact using the term fact in its widest possible sense to

and

In this sense, is not purely law. every question which has not been predetermined and authowhether ritatively answered by the law is a question of fact it is, or is not, one of fact in any narrower sense which may
include evei*ything that

be possessed by that term. Thus the question as to what is the reasonable and proper punishment for murder is a question of law, individual judicial opinion being absolutely excluded by a fixed rule of law. But what is the proper and reasonable

punishment for theft is (save so far as judicial discretion is limited by the statutory appointment of a fixed maximiim) a question of fact on which the law has nothing to say. Whether
a contractor has been guilty of unreasonable delay in building a house is a question of fact; the law contains no rule for its

determination.

But whether the holder of a bill of exchange has been guilty of imreasonable delay in giving notice of dis-

78

Civil Law.

[ 20

is a question of law to be determined in accordance with certain fixed principles laid down in the Bills of Exchange Act. The question whether a child accused of crime has

honour

sufficient

mental capacity
of fact,
if

acts

is

one

to be criminally responsible for his the accused is over the age of seven
if

years, but one of law (to be answered in the negative)

is

he

under that age. The Sale of Goods Act provides that " where by this Act any reference is made to a reasonable time, the question what is a reasonable time is a question of fact." This means that there is no rule of law laid down for
its

determination.
a question as to

In a second and more usual signification, a question of law what the law is. Thus, an appeal on a question of law means an appeal in which the question for
is

argument and determination is what the true rule of law is on a certain matter. Questions of law in this sense arise, not
out of the existence of law, but out of its uncertainty. If the whole law was definitely ascertained, there would be no
in accordance in the

questions of law in this sense but all questions to be answered with that law would still be questions of law
;

former sense.
as

When

a question first arises in a court

of

of

justice

to

the

meaning

an ambiguous statutory

provision, the question is one of law in this second sense; for, in being answered, it will dispose of an uncertainty as But it is not a question of law in the to what the law is.
first

sense, but a question of fact.

The immediate business

of the court is to

determine what, in its own judgment and in fact, is the true meaning of the words used by the legislature. But when this question has once been judicially determined,
the authoritative answer to

it becomes a judicial precedent other cases in which the same statutory The question as to the meaning provision comes in question. of the enactment has been transformed from one of fact into

which

is

law for

all

one of law in the

first

sense

for

it

has in

all

future cases to

be answered in accordance with the authoritative interpretation so judicially placed upon the enactment. The judicial
interpretation of a statute, therefore, represents a progressive transformation of the various questions of fact as to the

meaning

of

that statute into questions of law (in the

first

20]

Civil Law.
answered
in

79

sense) to be

conformity with the body of inter-

pretative case-law so developed. There is still another and third sense in which the expression question of law is used. This arises from the composite

character of the typical English tribunal and the resulting division of judicial functions between a judge and a jury. The general rule is that questions of law (in both of the fore-

going senses) are for the judge, but that questions of fact This (that is to say, all other questions) are for the jury.
rule, tions.

however,

is

Though there

subject to numerous and important excepare no cases in which the law (in the

sense,

jury, there are

at least, of the general law of the land) is left to a many questions of fact that are withdrawn from

the cognisance of a jury and answered by the judge.

The

interpretation of a document, for example, may be, and very often is, a pure question of fact, and nevertheless falls within

the province of a judge. So the question of reasonable and probable cause for a prosecution which arises in actions for malicious prosecution is one of fact and yet one for the

So it is the duty of the judge to decide judge himself. whether there is any sufficient evidence to justify a verdict for the plaintiff; and if he decides that there is not, the case is

withdrawn from the jury altogether; yet this is mere matter undetermined by any authoritative rule of law. By an illogical though convenient usage of speech, any question which is thus within the province of the judge instead of the jury is called a question of law, even though it may be in the
of fact,

proper sense a piire question of fact.

It is called a question of

law because

and ansv/ered by the authority which normally answers questions of law only. We proceed now to consider more particularly the nature
it is

committed

to

already incidentally dealt with in connection with questions of law. The term question of fact has more than one meaning. In its most general sense it includes
of questions of fact,
all

matter of fact which

questions which are not questions of law. is not matter of law.

Everything is And, as the

expression question of law has three distinct applications, it follows that a corresponding diversity exists in the application A question of fact, therefore, as of the contrasted term.

80

Civil Law.
to a question of law,

[ 20

either (1) any question opposed which is not predetermined by an established rule of law; or (2) any question except a question as to what the law is; or
(3)

means

any question that

is

to be

answered by the jury as opposed

in
all

to the judge.

There is, however, a narrower and more specific sense, which the expression question of fact does not include questions that are not questions of law, but only some

of

them.

In this

sense

question

of

fact

is

opposed to a

The sphere of judicial discrequestion of judicial discretion. tion includes all questions as to what is right, just, equitable,
or reasonable

so

far as not

predetermined by authoritative
to the liberuvi arbitrium of the

rules of law but

committed

A question of judicial discretion courts. sphere of right, as opposed to that of fact in

It is

pertains
its stricter

to

the
a

sense.

a question

as

to

what ought

to

be,

as opposed to

Matters of fact are capable of proof, and question of what is. Matters are the subject of evidence adduced for that puipose. of right and judicial discretion are not the subject of evidence

and demonstration, but of argument, and are submitted to the reason and conscience of the court. In determining questions of fact the court is seeking to ascertain the truth of the
matter; in determining questions of judicial discretion it seeks Whether the to discover the right or justice of the matter. accused has committed the criminal act with which he is
charged, is a question of fact; but whether, if guilty, he should be punished by way of imprisonment or only by way The of fine, is a question of judicial discretion or of right.

Companies Act empowers the court

to

make an

order for the

winding-up of a company if {inter alia) the company is unable to pay its debts or the court is of opinion that it is just and The first equitable that the company should be wound up. of these questions is one of pure fact, whereas the second
is

empowered

The Divorce Court is question of judicial discretion. to grant divorce for adultery, and to make such

it may deem just and proper with respect to the The question of custody of the children of the marriage. adiiltery is one of fact; but the question of custody is one of

provision as

right

and

judicial discretion.

20]

Civil Law.

81

whether an act
done.

Doubtless, in the wider sense of the terra fact, a question is right or just or reasonable is no less a

Question of fact than the question whether that act has been But it is not a question of demonstrable fact to be
dealt with by a purely intellectual process; it involves an exercise of the moral judgment, and it is therefore differentiated

from questions

of

Having regard to this distinction, which come before a court of justice

(1)

pure fact and separately classified (a). all matters and questions

Matters and questions of law that is to say, all that are to be determined by the application of legal principles
;

are of three classes

Matters and questions of judicial discretion that is to say, all matters and questions as to what is right, just, equitable, or reasonable, except so far as determined by law; that is to say, all other (3) Matters and questions of fact
(2)

matters and questions whatever. In matters of the first kind, the duty of the court is to ascertain the rule of law and to decide in accordance with it. In matters of the second kind, its duty is to exercise its moral

judgment, in order to ascertain the right and justice of the In matters of the third kind, its duty is to exercise case. its intellectual judgment on the evidence submitted to it in On the trial of a person accused order to ascertain the truth.
of theft, for

example, the question whether the act alleged to have been done by him amounts to the. criminal offence of theft is a question of law, to be answered by the application of the rules which determine the scope and nature of the oSence

of the (a) It is worthy of observation that there is yet a third meaning with a expression question or matter of fact, in -which it is contrasted is one capable of being fact of A or matter of question question opinion. answered by way of demonstration a question of opinion is one that cannot be so answered one the answer to which is a matter of speculation which cannot be proved by any available evidence to be right or wrong. The its prospects past history of a company's business is a matter of fact but A prospectus of successful business in the future is a matter of opinion. which erroneously sets out the former, contains misrepresentations of fact; a prospectus which merely contains prophecies of future prosperity does not, This distinction is doubtless in for this is a matter of opinion, not of fact. the ultimate analysis merely one of degree, but it is one of practical distinction between matters The for some in the law purposes. importance of fact and matters of right, on the other hand, is a logical distinction of

kind.

S.J.

82
of theft

Civil Law. and distinguish

it

[ 20

from other offences, such as that of

obtaining goods by false pretences; the question whether he has done the act so alleged against him is a question of fact, to be determined in accordance with the evidence and the
;

question as to what is the just and reasonable punishment to be imposed upon him for his offence is a question of right or
judicial discretion, to be determined in accordance with the moral judgment of the court.

The existence and development of a legal system represents the transformation, to a greater or less extent, of questions of fact and of judicial discretion into questions of law in the
first

tive

sense explained above, by the establishment of authoritaand predetermined answers to these questions. This

process of transformation proceeds chiefly within the sphere of judicial discretion, and only to a smaller extent within the

sphere of pure fact.

right,

In respect of questions as to what

is just,

and reasonable, the purpose and effect of a system of law is to exclude and supersede to a very large extent the individual moral judgment of the courts, and to compel them to determine these questions in accordance with fixed and authoritative principles which express the established and permanent moral judgment of the community at large. Natural or moral justice is to a very large extent transmuted into legal justice; jus naturale becomes jus positivum. The justice which courts of
justice are appointed to administer becomes for the most part such justice as is recognised and approved by the law, and not

such justice as commends

itself to

the courts themselves.

The

sphere of judicial discretion is merely such portion of the sphere of right as has not been thus encroached upon by the sphere of
law.

To a lesser extent, even questions of pure fact are similarly transformed into questions of law. Even to such questions the law will, on occasion, supply predetermined and authoritative answers.

that the fact

it

be so in

The law does not scruple, if need be, to say must be deemed to be such and such, whether truth or not. The law is the theory of things, as
or

received and acted

theory

may

may

upon within the courts of justice, and this not conform to the reality of things out-

20]

Civil Law.

83

The eye of the law does not infallibly see things as they Partly by deliberate design and partly by the errors and accidents of historical development, law and fact, legal theory
side.

are.

and the truth of things, may fail in complete coincidence. have ever to distinguish that which exists in deed and in Fraud in law, for truth from that which exists in law. example, may not be fraud in fact, and vice versa. That is to say, when the law lays down a principle determining, in any class of cases, what shall be deemed fraud and what shaU not, this principle may or may not reflect the truth, and so far as

We

it is

untrue the truth of things

is

excluded by the legal theory

of things.

This discordance between law and fact

may come

about in

most frequent cause is the establishment of legal presumptions, whereby one fact is recognised by law as sufficient proof of another fact, whether it is in truth Such legal presumptions sufficient for that purpose or not. presumptiones juris are of two kinds, being either conclusive

more ways than

one.

Its

or rebuttable.

presumption

of the first kind constrains the

courts to infer the existence of one fact from the existence of

even though this inference could be proved to be presumption of the second kind requires the courts to draw such an inference even though there is no sufficient evidence to support it, provided only that there is no sufficient
another,
false.

tiable

Thus a negoevidence to establish the contrary inference. instrument is presumed to be given for value, a person not heard of for seven years is presumed to be dead, and an
accused person
virtue
of
is

presimaed to be innocent.

fact

which by

a legal presumption is deemed by law to exist, whether it exists or not, is said in the technical language of the Conlaw to exist constructively or by construction of law.
structive

fraud or constructive notice,

is

for

fraud or notice which

deemed

to
it

exist

example, means by virtue of an

authoritative rule of law, whether

exists in truth or not.

Another method by which the law on occasion deliberately departs from the truth of things for sufficient or insufficient
reasons,
fictio
is

the use of the device

known

as a legal fiction

juris.

This was

device

famihar to primitive legal

84

Civil Law.

[ 20

systems, though mostly fallen out of use in modem law (b). most important legal fiction recognised by modem law is that of incorporation the fiction by which a body of individual
1 he

persons, such as a trading company, a university, or the population of a city, is regarded by law as being in itself a

person, distinct from the individuals of which that body is composed, and capable as such of owning property, making contracts, incurring obligations, and otherwise doing and The nature and suffering what real persons can do and suffer.

purpose of such

fictitious legal personality will

fuUy at a

later stage of this inquiry.

be considered Another important legal

of children

systems is that of the adoption which played a great part in the law of An adoptive child is a child who is primitive communities.
fiction recognised

by

modem

fiction

not in fact the child of

its

be such by a legal

fiction,

adopting parent, but is deemed to with the same results in law as if

was real (c). and important part of the legal system consists of that case-law which arises from the authoritative The whole of interpretation of statutes by the law courts. this law represents the transformation of questions of fact as to the meaning of statutes into questions of law to be answered
this fictitious parentage

very

large

for the future in accordance with the judicial precedents

by which that meaning has been already authoritatively declared.

(b)
(c)

See Maine's Ancient Law, ch. 2. In early law the purpose of most legal fictions was to alter indirectly legal system so rigid that it could not be effectively altered The practical in this respect by the direct and open process of legislation. effect of any rule of law depends on the nature of the rule and on the nature of the facts to which it is applied. If the rule cannot itself be altered, its effect may be altered by establishing a legal fiction as to the nature of the facts. This device was familiar both to the law of Rome and It usually assumed the form of in older days to the law of England. fictitious allegations made in the pleadings in an action and not suffered to be contradicted. In Roman law foreigners were admitted to certain of the exclusive legal rights of Roman citizens by a fictitious allegation of citizenship, and in English law the old rule that the jurisdiction of English courts was limited to causes of action which arose in ]i^ngland was evaded

and covertly a

fictitious and non -traversable allegations that the foreign place in which the cause of action arose was situated in England. He who desired to enforce in the English courts a bond executed in France was permitted " in his pleadings to allege a bond executed at a certain place called " Bordeaux in France in Islington in the County of Middlesex." Wliether there be such a place in Islington or no, is not traversable in that case." Co. Litt. 2G1. b.

by

20]

Civil Law.

85

This process of interpretation

the fiction, that is to say, that the questions legal fiction which arise in the apphcation of a statute were actually present

is

to a large extent based on a

mind of the legislature when the statute was passed, that the legislature really possessed an intention with respect to them, and that this intention is expressed in the words of
to the

the enactment.
to

In most cases in which a statute gives

diffic\ilties

rise

any doubts or

requiring judicial solution by

is

way

of interpretation, this

assumption

unfounded.

The

difl&culty

has arisen because the legislature had not in truth any coherent and complete intention at all. What the courts in reality do
in

interpreting

an

ambiguous,
is

inconsistent,

or

otherwise

and determine what the legislative intention would have been had the particular point been presented to the mind and attention of the legislature. But this presumed and constructive intention of the legislature can only be gathered from judicial consideration as to what is
imperfect enactment,
to consider

Under the guise of determining what just and reasonable. a statute does in fact say and mean, the courts, in all matters in which the statute is put to silence by its ambiguities,
omissions, or inconsistencies, supplement the expressed intention of the legislature by reading into the statute the rules of justice, reason, and public policy, so far as consistent with

that expressed intention.

of statutory interpretation

The case-law created by the process must to a large extent, therefore,

rules of justice, reason,

of the legislature.

be regarded as an authoritative judicial expression of those and pubho policy, rather than as an
authentic ascertainment of the actual facts as to the intention

The same question may be partly one of law and partly one of fact or judicial discretion. This is so in two senses. In the first place, the question may be in reahty composite, the several consisting of two or more questions combined, and components may be of different natures in this respect. The exists between question, for example, whether a partnership

A and B

is

partly one of fact {viz.,

is

what agreement has been

such

made between them) and

an agreement
partnership).

partly one of law (viz., whether sufficient to constitute the legal relation of

Similar composite questions are innumerable.

86

Civil Law.

[ 20

In the second place, there are many cases in which the freedom of judicial discretion on any point is not wholly taken away by a fixed rule of law, but is merely restrained and limited by such a rule, and is left to operate within the In such a case the question restricted sphere so allowed to it. to be determined by the court is one of law so far as the law
goes,

and one

of fact or judicial discretion as to the rest.

The

proper penalty for an offence is usually a question of this The law imposes a fixed maximum, but leaves the nature.
discretion
of

the

court

to

operate

within

the

limits

so

appointed.

So, in
is

being excluded,

cases, judicial discretion, instead of merely limited and controlled by rules of

many

law which determine the general considerations which are to be taken into account as relevant and material in the exercise The discretion of the court has not been of this discretion.
taken away, but it must be exercised within the limits, in the manner, and upon the considerations thus authoritatively
indicated by law.
21.

The

Territorial

Nature

of

Law.

have defined the law as consisting of the rules recognised and acted upon by the courts in administering justice.
It is to the courts,

We

therefore,
is,

that

we must

go in order to

ascertain

what the law

body of

same court
were

legal in the exercise of its judicial functions. If this all if this were a complete account of the matter each

and a system of law is the whole doctrine recognised and applied by one and the

of

system

law would be regarded and known as the law of the We should speak of particular court to which it so belongs. the law of the Court of King's Bench or of Chancery in London, and of the law of the Court of Session in Edinburgh.
In fact, however, this is neither the legal nor the popular usage of speech, save where it is rendered necessary by special considerations arising from the concurrent existence of different systems of law administered by the same courts within the

same

territory.

Commonly we speak

not of the law of a

court but of the law of a country. of the Court of King's Bench or

We

Common

speak not of the law Pleas but of the

21]

Civil Law.

87

law

of England; and not of the law of the Court of Session but of the law of Scotland. We speak of a system of law as belonging to and in force in some defined territory, and not

as belonging to
justice.
is

and being in force in some particular court The law is conceived and spoken of as territorial.

of

It

necessary, therefore, to consider the true significance of this territorial aspect and nature of a legal system. What is

meant by saying that the system of law recognised and administered by the High Court of Justice in London is the law of England and is in force in England, and that the law
in

exercises its judicial functions in force in Scotland?

accordance with which the Court of Session in Edinburgh is the law of Scotland and is

The

teiTitory to

which a system of law

is

so attributed is

not necessarily coincident with the territory of the State whose No law is courts administer it or whose legislature makes it.

system of territorial law, outside the territory whose law it is; but it is not necessarily in force The territory of a throughout the whole of that territory. legal system may be, and very often is, only a portion of the The law of England and the law of territory of the state. Scotland are both the law of the same state, and are both in
in force,

as a

of the state

force in the territory of that state but they are in force in different parts of it. The same state may possess different
;

bodies of law in force as the territorial law of different portions

of the state's territory, and concurrently therewith there may exist a body of common territorial law in force equally through-

out all of those portions. The territorial nature and aspect of the law therefore, cannot be explained by saying that each system of law is attributed to the territory of that state by

whose courts the law is recognised and administered. The proposition that a system of law is in force in or belongs
to of

a defined territory
special

means that normally,

in

the absence

circumstances, it appHes to all persons, things, acts, and events within that territory, and does not apply to The criminal law persons, things, acts, or events elsewhere.

of the English courts is said to be the criminal law of England, because normally it applies to all offences committed in

England, and does not apply to offences elsewhere.

It is true

88

Civil Law.

[ 21

There that to this general rule there are many exceptions. are many offences with which English courts will deal and to

which they where than

will

apply English law, though committed else:

offences, for example, committed on board British ships on the high seas, and treason, murder or
in

England

bigamy committed by British subjects in any part of the world. These exceptions, however, do not essentially affect the general principle that the criminal law is territorial in its nature and
application. Similarly, the land-law of English courts applies only to land situated in England, and is not a universal nonterritorial doctrine applied by those courts in suits relating to

land situated elsewhere.

to

Substantially this is so with respect other forms of property also. So the law of marriage, divorce, succession, and domestic relations is not applied by English courts to all the world, but only to those persons who

by residence, domicile, or otherwise, are sufi&ciently connected with the territory of England. The law of contracts and of torts, on the other hand, knows comparatively little of any
territorial limitation.

or other wrongful injury

an action for damages for negligence committed abroad is brought in an English court, it will in general be deteiTnined in accordance with English law and not otherwise. Finally, the English law It is the law of procedure is in hardly any respect territorial.
If

of English courts rather

than the law

of

England.

It is the

same

may
cause

before those courts, whatever be the territorial connections of the litigants or of their
for all litigants

who come

of Yet notwithstanding the existence of action. numerous and important exceptions to the general rule, the law of English courts is essentially and in the main territorial
in its application, in the sense that it is appointed only for such persons, property, acts, and events as possess the requisite connection with the realm of England. In this sense the law

of the English courts is the

law of England, and is in force in England and not elsewhere. It is the law of the land lex

terrae (d).
(d)

An

expression

as old

as

Magna

Carta

Nisi per legale judicium

parium rel per legem terrae. There has been some learned discussion as to the meaning of "lex terrae" as so used, but there seems no real doubt that it is merely a synonym for "lex regni Angliae." See Holdsworth'a History of English law, vol. I. p. GO (3rd ed.).

21]

Civil Law.

89

or universal.

This territorial quality of a system of law is not necessary It is not part of the essence or definition of a

A system of law is readily conceivable which legal system. is not in this sense the law of the land. It may be personal
rather than territorial in
its

application.

Its application

may

be limited and determined not by reference to territorial considerations, but by reference to the personal qualifications of
the individuals over

whom jurisdiction is exercised qualifications such as nationality, race or religion. The law of English
:

of British subjects

courts might conceivably be the personal law of Englishmen rather than the territorial law of England.

The

history of early law shows us such systems of personal

existing.

law actually
courts of

The

early law

administered by the

Rome,

was, in the main, not the territorial law of but the personal law of the Eomans. Foreigners had

Eome

no part in it. It was the jus civile, the law of the cives. It was only by a process of historical development that the jus gentium was superadded to the jus civile as applicable to cives

and peregrini equally. In Eiu'ope, after the dissolution of the Western Roman Empire, the laws were to a large extent conceived as personal rather than territorial, the members of each

A or nationality living by their own national laws. similar process of thought and practice is observable even at the present day in the ex-territorial administration of the
race national laws of European States in the consular courts of the The law administered by an English consular court East.
to be regarded rather as the personal law of Englishor intelligible sense the

abroad

is

men, than as being in any proper territorial law of England (e).

22.

Law and

Equity.

England presented the extremely curious spectacle of two distinct and rival systems of law, administered at the same time by different tribunals. These systems were distinguished as common law and equity, or
Until
the

year 1873,

(e) It is one of the misfortunes of legal nomenclature that there is no suitable and recognised term by which to denote the territorial area within which any system of territorial law is in force. Dicey in his Conflict of Laws uses the term country for this purpose.

90

Civil Law.

[ 22

merely as law and equity (using the ternri law in a narrow The common sense as including only one of the two systems). law was the older, being coeval with the rise of royal justice England, and it was administered in the older courts,

namely, the King's Bench, the Court of Common Pleas, and the Exchequer. Equity was the more modem body of legal doctrine, developed and administered by the Chancellor in the
Court of Chancery as supplementary
older law.
to,

and corrective

of,

the

large extent the two systems were identical and harmonious, for it was a maxim of the Chancery that
;

To a

equity follows the law (Aequitas sequitur legem) that is to say, the rules already established in the older courts were adopted by the Chancellors and incorporated into the system
of equity,

unless there was

some

sufficient reason

for their

In no small measure, however, law and equity were discordant, applying different rules to the same subject-matter. The same case would be decided in one
rejection or modification.

brought before the Court of King's Bench, and in if adjudged in Chancery. The Judicature Act, 1873, put an end to this anomalous state of things, by the abolition of all portions of the common law which conflicted with equity,

way,

if

another,

and by the consequent fusion of the two systems into a single and self-consistent body of law administered in a single court called the High Court of Justice and substituted for the old courts of common law and the Court of Chancery (/). Although the distinction between common law and equity has thus become to a large extent historical merely, it has not ceased to demand attention, for it is still valid and operative for many purposes. The so-called fusion of law and equity effected by the Judicature Act has abolished only such rules of the common law as were in conflict with the rules of equity, in the sense that both rules could not be recognised and So far as apphed in one and the same court of justice. common law and equity are consistent with each other and so
capable of being administered concurrently in a single court,
Judicature Act, 1873,
25

(/)

"In

all

matters not hereinbefore par-

ticularly mentioned, in which there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity shall prevail."

22]
still

Civil Law.
subsist,

91

these two systems

and the distinction between

them

Thus the distinction between legal and equitable ownership, legal and equitable rights, legal and
is still

in force.

equitable remedies, remains an essential part of the modem system. It is still the case that one person may be the legal

owner

property,

of property and another the equitable owner of the same as in the case of a trustee nnd his beneficiary.' Similarly, a mortgage or charge may still be either legal

or equitable. These distinctions between law and equity are not conflicts between two irreconcilable systems of law, but are such as to be capable of recognition as part of one and the

same system. A legal right and an equitable right, legal ownership and equitable ownership, although as a matter of history they originated in different courts and in different legal systems, are now two different kinds of rights and of ownership recognised in the

same court administering

a single and

harmonious legal system. The term equity possesses at least three distinct though related senses. In the first of these, it is nothing more than
for natural justice. Aequitas is aequalitas the impartial, or equal allotment of good and evil the virtue This is the popular which gives to every man his own.

synonym

fair,

application
significance.

of

the

term,

and possesses no special

juridical

In a second and legal sense equity means natural justice, not simply, but in a special aspect; that is to say, as opposed to the rigour of inflexible rules of law. Aequitas is contrasted with summum jus, or strictum jus, or the rigor juris. For the

law lays down general

principles, taking of necessity no account of the special circumstances of individual cases in which such

So, also, the law may with generality may work injustice. defective foresight have omitted to provide at all for the case in hand, and therefore supplies no remedy for the aggrieved

In all such cases, in order to avoid injustice, it may be considered needful to go beyond the law, or even contrary to the law, and to administer justice in accordance with the This it is, that is meant by dictates of natural reason.
suitor.

administering equity as opposed to law; and so far as any tribunal possesses the power of thus supplementing or reject-

92

Civil Law.

[ 22

in this sense of the ing the rules of law in special cases, it is, term, a court of equity, as opposed to a court of law.

The

distinction thus indicated

was received

theory both of the Greeks and the Romans. equity as the coiTsction of the law where

in the juridical Aristotle defines

account of
repeated
arbitrator

its

generality

(g),

by later writers. decides in accordance

it

it is defective on and the definition is constantly " Elsewhere he says (h) An

:

with

equity,

judge

in

purpose that arbitraIn tion was introduced, namely, that equity might prevail."
for this

accordance with law; and

was

the writings of Cicero we find frequent references to the distinction between aequitas and jus. He quotes as already
jus sumrna injuria (i), meaning proverbial the saying, by suvimum jus the rigour of the law untempered by equity. Numerous indications of the same conception are to be met

Summum

with in the writings of the

Roman

jurists {k).

The doctrine passed from Greek and Latin

literature into

the traditional jurisprudence of the Middle Ages. may see, for example, a discussion of the matter in the Tractatus

We

de Legihus of Aquinas {I). It was well known, therefore, to the lawyers who laid the foundations of our own legal system, and like other portions of scholastic doctrine, it passed into
the English law courts of the thirteenth century. There is good reason for concluding that the King's courts of that day
Nic. Ethics V.
10.

{g)

3.

The Greeks knew

equity under the

name

epieikeia.
(h)

Rhet.

I.

13. 19.
:

Ex aequo et 10. 33. See also Pro Caecina 23, 65 (t) De Officiis I. bono, non ex callido versutoque jure rem judicari oportere. De Oratore 1. 6fi. 240 Multa pro aequitate contra jus dicere. De Officiis III. 16. 67. (k) In omnibus quidem, maxime tameu in jure, aequitas spectanda est. D 50. 17. 90. Placuit in omnibus rebus praecipuam esse justitiae aequitaC. 3. 1. 8. Haec aequitas suggerit, tisque, quam stricti juris rationem. ets: jure deficiamur. D. 39. 3. 2. 5. A constitution of Constantine inserted in Justinian's Code, however, prohibits all inferior courts from substituting equity for strict law, and claims for the emperor alone the right of thus Inter aequitatem jusque departing from the rigour of the jus scriptmn interpositam interpretationem nobis solis et oportet et licet inspicere.
:

C.
in

i.

14.

1.
:

De epieikeia seu aequitate (/) Summa Theoiogiae 2. 2. q. 120. art. 1. his ergo et eimilibus casibus malum est sequi legem positam bonum est praetermissis verbis legis, sequi id quod poscit justitiae ratio et communis utilitas. Et ad hoc ordinatur epieikeia, quae apud nos dicitur aequitas.
;

autem

22]

Civil Law.

93

did not consider themselves so straitly bound by statute, custom, or precedent, as to be incapable upon occasion of doing justice that went beyond the law (m). It was not until later that the common law so hardened into an inflexible and

inexpansive system of strictum jus, that aequitas fled from the older courts to the newly-established tribunal of the Chancellor.

The Court

of

Chancery,
rejected,

an

oflshoot

from

the

King's

Council, was established to administer the equity which the

common law had

and of which the

common law

courts had declared themselves incapable. It provided an appeal from the rigid, narrow, and technical rules of the King's
courts of law, to the conscience and equity of the King The King himself, speaking by the mouth of his Chancellor. was the source and fountain of justice. The administration

was part of the royal prerogative, and the exercise of had been delegated by the King to his servants, the judges. These judges held themselves bound by the inflexible rules
of justice
it

might have recourse, therefore,

King,
if

A subject established in their courts, but not so the King. to the natural justice of the
distrustful of the legal justice of the King's courts.

Here he could obtain aequitas, if the strictum jus of the law This equitable courts was insufiicient for his necessities.
Crown, after having been exercised for a time by the King's Council, was subsequently delegated to the Chancellor, who, as exercising it, was deemed to be the
jurisdiction of the

keeper of the royal conscience. We have now reached a position from which

we can

see

how

the term equity acquired

its

third

and

last signification.

In this sense, which is peculiar to English nomenclature, it is no longer opposed to law, but is itself a particular kind of It is that body of law which is administered in the law.
(to) Pollock and Maitland, History of English Law, I. 168 (1st ed.) Glanville VII. 1 Aliquando tanien super hoc ultimo casu in curia domini Eegis de consilio curiae ita ex aequitate consideratum est. Bracton, in
;
;

Quandoque pro rigore discussing the various meanings of jus, says (f 3. a.) juris, ut cum dividitur inter jus et aequitatem. Following Azo, who follows Cicero (Topica IV. 23), he says Aequitas autem est rerum convenientia, quae in paribus causis paria desiderat jura (f. 3. a.). See also f. 12 b. and f. 23. b. Aequitas tamen sibi locum vindicat in hac parte. See also Y. B. 30 and 31 Ed. I. 121 Et hoc plus de rigore quam de aequitate.
.

94

Civil Law.

[ 22

Court of Chancery, as contrasted with the other and rival system administered in the common law courts. Equity is Chancery law as opposed to the common law. The equity of
the Chancery has changed its nature and meaning. It was not originally law at all, but natural justice. The Chancellor,
in the first

days of his equitable jurisdiction, did not go about

of law, standing side

to set

up and administer a new form

by

side with that already recognised in the Court of Common Pleas. His purpose was to administer justice without law,

and

this

purpose he in fact

fulfilled for

many

a day.

In

its

origin the jurisdiction of the Chancellor was unfettered by " which justice, any rules whatever. His duty was to do that and reason, and good faith, and good conscience require in the

case

"

(n).

And

of such requirements

he was in each parti-

cular case to judge at his own good pleasure. In due time, however, there commenced that px'ocess of the encroach-

ment

of

established principle
all legal

upon

judicial discretion

which

.marks the growth of

'in

systems.

By

degrees the Chan-

^cellor suffered himself to be restricted

his

by rule and precedent

interpretation and execution of the dictates of the Just in so far as this change proceeded, royal conscience. the system administered in Chancery ceased to be a system

of

equity in the original sense, and became the same in The final result was the essence as the common law itself.

ing over against the older law, in

establishment in England of a second system of law, standmany respects an improveit,

ment on

yet,

no

less

than

it,

scheme

of rigid, technical,

predetermined principles. And the law thus developed was called equity, because it was in equity that it had its source.
Closely analogous to this equity-law of the English ChanThe is the jus pTaetoriu7n of the Roman praetor. praetor, the supreme judicial magistrate of the Roman
cellor

republic,

had much the same power as the Chancellor of

supplying and correcting the deficiencies and errors of the older law, by recourse to aequitas. Just as the exercise of
this

power gave

rise in

England

to a

body

of

Chancery law,

(n)
I.

408,

Cited in Spence's Equitable Jurisdiction of the Court of Chancery, note (a).

22]

Civil Law.

95
law, so in

standing by the side of the

common

Rome

Jus praetorium grew up distinct from the older just civile. praetorium," says Papinian (o), "est quod praetores introduxerunt, adjuvandi vel supplendi vel corrigendi juris civilis The chief distinction gratia, propter utihtatem publicam." between the Roman and the Enghsh cases is that at Rome
the two systems of law co-existed in the same court, the jus -praetorium practically superseding the jus civile so far as

a jus "

whereas in England, as we have seen, were administered by distinct tribunals. Moreover, although the jus praetorium had its source in the aequitas of the praetor, it does not seem that this body of law was ever itself called aequitas. Ttiis transference of
inconsistent with
it;

law

and

equity

meaning

is

peculiar to English usage

(p).

23.

General
of

Law and
law

Special

Law.

corpus juris be conveniently regarded as divided into two parts which be suitably distinguished as general law and special law. The former consists of the general or ordinary law of the land. The latter consists of certain other bodies of legal

The whole body

the

the

entire

may may

rules

which are so special and exceptional in their natiire, sources, or application that it is convenient to treat them as standing outside the general and ordinary law, as derogating
it

from or supplementing

in special cases but not

forming a

constituent part of it. The distinction so drawn is probably not one which will stand the test of minute logical analysis,

and its apphcation has been to some extent perverted by the accidents of legal history and has varied from time to time in the course of legal development. It is to some extent a matter
of merely arbitrary classification whether we regard certain rules as falling within the scope of the general law of
(o)

D.

1. 1. 7. 1.

special application by English lawyers of the term equity in its original sense, as opposed to strictum jus, is to be seen in the phrase, the equity of a statute. By this is meant the spirit of a law as opposed to its letter. A matter is said to fall within the equity of a statute when it is covered by the reason of the statute, although through defective draftsman" Valeat aequitas," says Cicero. ship it is not within its actual terms. " quae paribus in causis paria jura desiderat." Topica IV. 23.
(p)

96

Civil Law.

[23

cation,

the land, though exceptional in their nature, source, or applior whether on the contrary we classify them as

forming a special body of law having an independent existence, and operating within its own sphere of application as derogating from or supplementing the general law. Considerations of practical convenience,

however,

in

respect of

legal classification, exposition, and nomenclature justify the recognition of this distinction between the central or principal

portion of the corpus juris, and the various bodies of legal doctrine that are merely subsidiary and accessory to it.

The chief forms of special law which may be thus recognised as standing outside the general law of the land are the following, which we shall consider in their order: 1. Local law;
2.
5.

Foreign law Martial law;

1.

3.
6.

Conventional law

4.

Autonomic law

International law as administered in prize

first place,

courts.

Local law.

law

of the

In the whole realm.

It

is

in force

the general law is the throughout the entire

of the English courts. Standing apart from this system of general temtorial application are divers bodies of local law in force in particular portions of the realm only. Such local law is of two kinds, being either local customary law or local enacted law. Local customary law has its source in those immemorial customs which prevail in particular parts of England and have there the force of law in derogation of the general law of the land. Local enacted law, on the other
territory

hand,

has

its

source

in

the

local

legislative

authority

of

boroughs and other self-governing communities empowered to govern their own districts by by-laws supplementary to the All such local customs and local laws are part general law.
of

English law, since they are recognised and enforced in English courts but they are not part of the general terri;

law of England. 2. Foreign law. Another form of special law consists of those rules of foreign law which are on occasion applied, even
torial
in

English courts, to the exclusion of the general law of Justice cannot be efficiently administered by England. tribunals which refuse on all occasions to recognise any law but their own. It is essential in manv cases to take account

23]

Civil Law.
of foreign

97

law and to measure the rights and liabilities of litigants by it, rather than by the indigenous and territorial law of the tribunal itself. If, for example, two men make a contract in France and one of them sues on it in an English court, justice demands that in many respects
of

some system

the validity and effect of the contract shall be determined by French rather than by English law. French, instead of English, law will therefore be applied in such a case in English

The principles which courts, in derogation of the