Изображения страниц

and legislature are indeed convertible terms; one can not subsist without the other.

The term civil law is strictly and etymologically applicable to the special or peculiar system or body of laws of any particular state or people, for which we commonly employ the term municipal law. But the jus civile Romanorum, or legal system of the Romans, was long preeminently the civil law. Hence the term came to mean Roman law; and it is too well fixed in that meaning to render restoration of the true sense easy or perhaps advisable. Municipal law, the term generally made use of to denote the system or body of law of a particular state, is unfortunately chosen, but well settled in good usage.

Three common uses of the term law require to be distinguished: These are (1) Law as used in the natural and physical sciences, (2) Natural law, or law of nature, as the term is used by writers on the philosophy of law, (3) Law in the juridical sense.) In the natural sciences, law is used to mean deductions from human experience of the course of events. Thus, the "law of gravitation" is a record of human observation and experience of the manner in which bodies which are free to move do, in fact, move toward one another. By natural law or the law of nature, writers 'upon legal subjects mean the principles which philosophy and ethics discover as those which should govern human actions and relations. Laws of nature, in this sense, might be defined thus: "Natural and necessary inferences from the facts of nature, with respect to which obligatory rules of human conduct ought to be framed. (Law in the juridical sense is: The body of rules recognized or enforced by public or regular tribunals in the administration of justice.) The idea which the three have in common is order or regularity-the idea of a rule or principle underlying a sequence of events, whether natural or moral or judicial. It is usual to distinguish law in the juridical sense from so-called natural law under the name of positive law. The following extracts deal with law in the juridical



A law, in the proper sense of the term, is therefore a general rule of human action, taking cognisance only of external acts, enforced by a determinate authority, which authority is human, and, among human authorities, is that which is paramount in a political society. More briefly, a general rule of external human action enforced by a sovereign political authority.

All other rules for the guidance of human action are called laws merely by analogy; and any propositions which are not rules for human action are called laws by metaphor only.


The law is the body of principles recognized and applied by the state in the administration of justice.

Or, more shortly: The law consists of the rules recognized and acted on in courts of justice.

It will be noticed that this is a definition, not of a law, but of the law, and our first concern is to examine the significance of this distinction. The term law is used in two senses, which may be conveniently distinguished as the abstract and the concrete. In 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. It is to this usage that our definition is applicable. In its concrete sense, 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 municipal council. We hear of the commerce laws or the navigation laws. The distinction demands attention for this reason, that the concrete term is not coextensive with the abstract in its application. Law or the law does not consist of the total number of laws in force. The constituent elements of which the law is made up are not laws but rules of law or legal principles. That a wil! requires two witnesses is not rightly spoken of as a law of England; it is a rule of English law. (A law means a statute, enactment, ordinance, decrce, or any other exercise of legislative authority.) It is one of the sources of law in the abstract sense. A law produces statute law, just as custom produces customary law, or as a precedent produces case-law.


What, then, is law? It may be considered either as it has become by the evolution of thought, or as it was when it first became differentiated from closely related elements of the primitive human consciousness. The definition of the analytic jurists according to the former method is as follows: According to Austin and Bentham, a law may be resolved into a general command, one emanating from a sovereign or law-giver and imposing an obligation upon citizens, which obligation is enforced by a sanction or penalty, threatened in the case of disobedience. This definition, never quite true, never quite applicable, is for all that not to be wholly rejected in its political sense. Yet it is too unsatisfactory, too impracticable, to be recognized as a complete definition of even the most modern concrete law, though therein lies its chief claim to authority. And

certainly such a definition does not apply to the early law, or that from which modern law has been evolved. In the early forms of society there was, in place of the skilfully defined modern law, a body of custom, not attributable to any sovereign authority or lawgiver. This custom was regarded as binding upon the whole body of persons forming the primitive social group in which such custom obtained. Furthermore, that custom was enforced in a rude manner, either by permitting the person injured by its violation to avenge himself as best he could, or by depriving the offender of certain rights, such as the aid and society of members of the group. In such a state, law would be best defined as that body of customs regarded as binding upon the members of a group or class, and enforced by their authority. This is law as first discerned in all nations; it is the form in which it constantly appears in the course of history. Only with the rise of the abundant modern legislation has it been seen that law might be conceived as the command of a sovereign body.



This law of nature, being coeval with mankind, and dictated by God himself, is of course superior in obligation to every 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.

LOAN ASSOCIATION V. TOPEKA, 2 Wall. (U. S.), 655, 662.

Miller, J. It must be conceded that there are such rights in every free government beyond the control of the State. A government which recognized no such rights, which held the lives, the liberty, and the property of its citizens subject at all times to the absolute disposition and unlimited control of even the most democratic repository of power, is after all but a despotism. It is true it is a despotism of the many, of the majority, if you choose to call it so, but it is none the less a despotism. It may well be doubted if a man is to hold all that he is accustomed to call his own, all in which he has placed his happiness, and the security of which is essential to that happiness, under the unlimited dominion of others, whether it is not wiser that this power should be exercised by one man than by many. The theory of our governments, State and National, is

opposed to the deposit of unlimited power anywhere. The executive, the legislative, and the judicial branches of the governments, are all of limited and defined powers. There are limitations on such power which grow out of the essential nature of all free governments. Implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name. No court, for instance, would hesitate to declare void a statute which enacted that A. and B. who were husband and wife to each other should be so no longer, but that A. should thereafter be the husband of C. and B. the wife of D. Or which should enact that the homestead now owned by A. should no longer be his, but should henceforth be the property of B.

BONHAM'S CASE, 8 Rep. 118a.

Lord Coke: And it appears in our books, that in many cases, the common law will control acts of parliament, and sometimes adjudge them to be utterly void; for when an act of parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such act to be void. . (So if an act of parliament gives to any to hold, or to have conusance of, all manner of pleas arising before him within the manor of D., yet shall he hold no plea, to which he himself is a party) for, as hath been said, iniquum est aliquem suae rei esse judicem.

[ocr errors]

This notion that there is an appeal from legislation to common right and reason or to the law of nature, and that courts are bound to give effect to the latter as against positive law in conflict therewith, formerly had no little vogue and still reappears in occasional dicta, sometimes as an absolute dogma, sometimes as a mere rule of moral obligation, and sometimes in its true place of a rule of interpretation.

In practice we may admit two propositions only:

(A. As between a man and his conscience, he may under some circumstances be justified morally in disobeying a law.

appeal to his reason and conscience for internal justification; but the courts can and will look only to the law.

UNITED STATES V. HARMON, 45 Fed. Rep. 414, 422.

Philips, J. The proposition is that a man can do no public wrong who believes that what he does is for the ultimate public good. The underlying vice of all this character of argument is that it leaves out of view the existence of the social compact, and the idea.



of government by law. If the end sought justifies the means, and there were no arbiter but the individual conscience of the actor to determine the fact whether the means are justifiable, homicide, infanticide, pillage and incontinence might run riot. Society is organized on the theory, born of the necessities of human wellbeing, that each member yields up something of his natural privileges, predilections, and indulgences for the good of the composite community; and he consents to all the motto implies, salus populi suprema est lex; and, as no government can exist without law, the law-making power within the limits of constitutional authority, must be recognized as the body to prescribe what is right and prohibit what is wrong. It is the very incarnation of the spirit of anarchy for a citizen to proclaim that like the heathen he is a law unto himself.


Andrews, J.: If an Act can stand when brought to the test of the Constitution, the question of its validity is at an end, and neither the executive nor the judicial department of the government can refuse to recognize or enforce it. The theory that laws may be declared void when deemed to be opposed to natural justice and equity, although they do not violate any constitutional provision, has some support in the dicta of learned judges, but has not been approved, so far as we know, by any authoritative adjudication, and is repudiated by numerous authorities. No law can be pronounced invalid, for the reason simply that it violates our notions of justice, is oppressive and unfair in its operation, or because, in the opinion of some or all of the citizens of the State, it is not justified by public necessity, or designed to promote the public welfare. (We repeat, if it violates no constitutional provision, it is valid and must be obeyed.

[ocr errors]

B. There are certain points of contact between law and morals, where the courts look primarily to general principles of right and justice for guidance. These are three: discretion, judicial legislation, and interpretation.


Discretion-The power exercised by courts to determine questions to which no strict rule of law is applicable but which, from their nature, and the circumstances of the case, are controlled by the personal judgment of the court.

« ПредыдущаяПродолжить »