CIVIL LAW.
§ 5. =The Definition of Law.=
The law is the body of principles recognised and applied by the state in
the administration of justice. Or, more shortly: The law consists of the
rules recognised 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Parliament has enacted or repealed a law.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 corn laws or the
navigation laws. The distinction demands attention for this reason, that
the concrete term is not co-extensive 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 will 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, decree, 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.
This ambiguity is a peculiarity of English speech. All the chief
Continental languages possess distinct expressions for the two meanings.
Law in the concrete is _lex_, _loi_, _gesetz_, _legge_. Law in the
abstract is _jus_, _droit_, _recht_, _diritto_. It is not the case,
indeed, that the distinction between these two sets of terms is always
rigidly maintained, for we occasionally find the concrete word used in
the abstract sense. Medieval Latin, for example, constantly uses _lex_
as equivalent to _jus_, and the same usage is not uncommon in the case
of the French _loi_. The fact remains, however, that the Continental
languages possess, and in general make use of, a method of avoiding the
ambiguity inherent in the single English term.
Most English writers have, in defining law, defined it in the concrete,
instead of in the abstract sense. They have attempted to answer the
question: “What is a law?” while the true inquiry is: “What is law?” The
central idea of juridical theory is not _lex_ but _jus_, not _gesetz_
but _recht_. To this inverted and unnatural method of procedure there
are two objections. In the first place it involves a useless and
embarrassing conflict with legal usage. In the mouths of lawyers the
concrete signification is quite unusual. They speak habitually of law,
of the law, of rules of law, of legal principles, but rarely of a law or
of the laws. When they have occasion to express the concrete idea, they
avoid the vague generic expression, and speak of some particular species
of law—a statute, Act of Parliament, by-law, or rule of Court. In the
second place, this consideration of laws instead of law tends almost
necessarily to the conclusion that statute law is the type of all law
and the form to which all of it is reducible in the last analysis. It
misleads inquirers by sending them to the legislature to discover the
true nature and origin of law, instead of to the courts of justice. It
is consequently responsible for much that is inadequate and untrue in
the juridical theory of English writers.[8]
§ 6. =The Administration of Justice.=
We have defined law by reference to the administration of justice. It is
needful, therefore, to obtain here some understanding of the essential
nature of that function of the state, though a complete analysis of it
must be deferred to a later period of our inquiry. That some form of
compulsion and control is essential for the realization in human conduct
of the idea of justice, experience has made sufficiently manifest.
Unfortunately for the welfare of the world, men are not so constituted
that to know the right is to do it. In the nature of things there is a
conflict, partly real, partly only apparent, between the interests of
man and man, and between those of individuals and those of society at
large; and to leave every man free to do that which is right in his own
eyes, would fill the world with fraud and violence. “We have seen,” says
Spinoza, at the commencement of his Treatise on Politics,[9] “that the
way pointed out by Reason herself is exceeding difficult, insomuch so
that they who persuade themselves that a multitude of men ... can be
induced to live by the rule of Reason alone, are dreamers of dreams and
of the golden age of the poets.” If, therefore, we would maintain
justice, it is necessary to add compulsion to instruction. It is not
enough to point out the way; it is needful to compel men to walk in it.
Hence the existence of various regulative or coercive systems, the
purpose of which is the upholding and enforcement of right and justice
by some instrument of external constraint. One of the most important of
these systems is the administration of justice by the state. Another is
the control exercised over men by the opinion of the society in which
they live. A third is that scheme of coercion established within the
society of states for the enforcement of the principles of international
justice.
The administration of justice may therefore be defined as the
maintenance of right within a political community by means of the
physical force of the state.
The instrument of coercion employed by any regulative system is called a
sanction, and any rule of right supported by such means 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, contempt, are the sanctions by which
society (as opposed to the state) enforces the rules of morality. War is
the last and the most formidable of the sanctions which in the society
of nations maintain 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.[10]
A sanction is not necessarily a punishment or penalty. To punish
wrongdoers is a very effectual way of maintaining the right, but it is
not the only way. We enforce the rule of right, not only by imprisoning
the thief, but by depriving him of his plunder, and restoring it to its
true owner; and each of these applications of the physical force of the
state is equally a sanction. The examination and classification of the
different forms of sanction made use of by the state will claim our
attention in a later chapter on the administration of justice.
§ 7. =Law Logically Subsequent to the Administration of Justice.=
We have defined law as the body of principles observed and acted on by
the state in the administration of justice. To this definition the
following objection may be made. It may be said: “In defining law by
reference to the administration of justice, you have reversed the proper
order of ideas, for law is the first in logical order, and the
administration of justice second. The latter, therefore, must be defined
by reference to the former, and not _vice versa_. Courts of justice are
essentially courts of law, justice in this usage being merely another
name for law. The administration of justice is essentially the
enforcement of the law. The laws are the commands laid by the state upon
its subjects, and the law courts are the organs through which these
commands are enforced. Legislation, direct or indirect, must precede
adjudication. Your 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.”
This objection is based on an erroneous conception of the essential
nature of the administration of justice. The primary purpose of this
function of the state is that which its name implies—to maintain right,
to uphold justice, to protect rights, to redress wrongs. Law is
secondary and unessential. It consists of the fixed principles in
accordance with which this function is exercised. It consists of the
pre-established and authoritative rules which judges apply in the
administration of justice, to the exclusion of their own free will and
discretion. For good and sufficient reasons the courts which administer
justice are constrained to walk in predetermined paths. They 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 an authoritative creed which
they must accept and act on without demur. This creed of the courts of
justice constitutes the law, and so far as it extends, it excludes all
right of private judgment. The law is the wisdom and justice of the
organized commonwealth, formulated for the authoritative direction of
those to whom the commonwealth has delegated its judicial functions.
What a litigant obtains in the tribunals of a modern and civilized state
is doubtless justice according to law, but it is essentially and
primarily justice and not law. Judges are appointed, in the words of the
judicial oath, “to do right to all manner of people, after the laws and
usages of this realm.” Justice is the end, law is merely the instrument
and the means; and the instrument must be defined by reference to its
end.
It is essential to a clear understanding of this matter to remember that
the administration of justice is perfectly possible without law at all.
Howsoever expedient it may be, 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. A tribunal in which right is done
to all manner of people in such fashion as commends itself to the
unfettered discretion of the judge, in which equity and good 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. It is a court of justice,
which is not also a court of law.
Moreover, even when a system of law exists, the extent of it may vary
indefinitely. The degree in which the free discretion of a judge in
doing right is excluded by predetermined rules of law, is capable of
indefinite increase or diminution. The total exclusion of judicial
discretion by legal principle is impossible in any system. However great
is the 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 defined or regarded as the
enforcement of the law. Law is a 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 to be, “What is the right
and justice of this case?” and more and more assumes the alternative
form, “What is the general principle already established and accepted,
as applicable to such a case as this?” Justice becomes increasingly
justice according to law, and courts of justice become increasingly
courts of law.
§ 8. =Law and Fact.=
The existence of law is, as has been said, marked and measured by the
exclusion, in courts of justice, of individual judgment by authority, of
free discretion by rule, of liberty of opinion by pre-established
determinations. The remarkable extent to which this exclusion is
permitted is a very characteristic feature of the administration of
justice; but it is not and cannot be complete. Judicial action is
accordingly divisible into two provinces; one being that of law, and the
other that of fact. All matters that come for consideration before
courts of justice are either matters of law or matters of fact. The
former are those falling within the sphere of pre-established and
authoritative principle, while the latter are those pertaining to the
province of unfettered judicial discretion. In other words, every
question which requires an answer in a court of justice is either one of
law or one of fact. The former is one to be answered in accordance with
established principles—one which has been already authoritatively
answered, explicitly or implicitly, by the law. A question of fact, on
the other hand, is one which has not been thus predetermined—one on
which authority is silent—one which the court may and must answer and
determine in accordance with its own individual judgment.
It must be clearly understood that by a question of fact, as we have
used the expression, is meant any question whatever except one of law,
whether that question is, or is not, one of fact in the other senses of
this equivocal term. We are not concerned, for example, with the
distinction between matters of fact and matters of _right_, or with that
between matters of fact and matters of _opinion_. Everything is fact for
us which is not predetermined by legal principles. It is clear that this
is the sense in which this term must inevitably be used, if the
distinction between questions of fact and questions of law is to be
exhaustive and logical.
The distinction may be illustrated by the following examples:—
Whether a contractor has been guilty of unreasonable delay in building
a house is a question of fact; the law contains no rules for its
determination. But whether the holder of a bill of exchange has been
guilty of unreasonable delay in giving notice of dishonour, is a
question of law to be determined in accordance with certain fixed
principles laid down in the Bills of Exchange Act.
Whether verbal or written evidence of a contract is the better, is a
question of law, the superiority of the latter being the subject of a
pre-existing and authoritative generalisation. But whether the oral
testimony of A. or that of B. is the better evidence, is a question of
fact, left entirely to the untrammelled judgment of the court.
What is the proper and reasonable punishment for murder is a question
of law, individual judicial opinion being absolutely excluded by a
fixed rule. What is the proper and reasonable punishment for theft is
(save so far as judicial discretion is limited by the statutory
appointment of a maximum limit) a question of fact, on which the law
has nothing to say.
The question whether a child accused of crime has sufficient mental
capacity to be criminally responsible for his acts, is one of fact, if
the accused is over the age of seven years, but one of law (to be
answered in the negative) if he is under that age.
The point in issue is the meaning of a particular clause in an Act of
Parliament. Whether this is a question of fact or of law, depends on
whether the clause has already been the subject of authoritative
judicial interpretation. If not, it is one of fact for the opinion of
the court. If, however, there has already been a decision on the
point, the question is one of law to be decided in accordance with the
previous determination. The conclusion may seem paradoxical that a
question of statutory interpretation may be one of fact, but a little
consideration will show that the statement is correct. It is true,
indeed, that the question is one as to what the law is, but a question
of law does not mean one as to what the law is, but one to be
determined in accordance with a rule of law.
A question is very often both one of fact and one of law, and is then
said to be a mixed question of law and of fact. It is to be answered
partly in accordance with fixed legal principles, and as to the residue
in accordance with free judicial opinion. That is to say, it is not a
simple, but a composite question, resolvable into a greater or less
number of simple factors, some of which pertain to the sphere of the law
and the others to that of fact. Let us take, for example, the question
as to the proper term of imprisonment for a certain convicted criminal.
This may, according to circumstances, be a pure question of fact, a pure
question of law, or a mixed question of law and of fact. It belongs to
the first of these classes, if the law contains no provision whatever on
the matter, the court having in consequence a perfectly free hand. It
belongs to the second class, if the matter is definitely predetermined
by a fixed rule, appointing the exact length of imprisonment to be
awarded. It belongs to the third class, if the law has fixed a minimum
or maximum term, but has left the court with full liberty within the
appointed limits. Similarly, whether the defendant has been guilty of
fraud is a mixed question of law and of fact, because it is resolvable
into two elements, one of law and the other of fact; what acts the
defendant has done, and with what intent he did them, are pure questions
of fact; but whether such acts, done with such an intent, amount to
fraud is a pure question of law. So the question whether a partnership
exists between A. and B. is partly one of fact (viz., what agreement has
been made between these persons), and partly one of law (viz., whether
such an agreement constitutes the relation of partnership). Similar
composite questions are innumerable.
The distinction between matters of fact and matters of law is thrown
into great prominence by the composite character of the typical English
tribunal and the resulting division of functions between judge and jury.
The general rule is that questions of law are for the judge and
questions of fact for the jury. This rule is subject, however, to
numerous and important exceptions. Though there are no cases in which
the law is left to the jury, there are many questions of fact which are
withdrawn from the cognisance of the jury and answered by the judge. The
interpretation of a written document, for example, may be, and very
often is, a pure matter of fact, and nevertheless falls within the
province of the judge. So the question of reasonable and probable cause
for prosecution—which arises in actions for malicious prosecution—is one
of fact and yet one for the judge himself. So it is the duty of the
judge to decide 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 in the majority of cases this
is a mere matter of fact, undetermined by any authoritative
principles.[11]
The validity of a legal principle is entirely independent of its truth.
It is a valid principle of law, not because it is true, but because it
is accepted and acted on by the tribunals of the state. The law is the
theory of things, as received and acted on within the courts of justice,
and this theory may or may not conform to the reality of things outside.
The eye of the law does not infallibly see things as they are. Nor is
this divergence of law from truth and fact necessarily, and in its full
extent, inexpedient. The law, if it is to be an efficient and workable
system, must needs be blind to many things, and the legal theory of
things must be simpler than the reality. Partly by deliberate design,
therefore, and partly by the errors and accidents of historical
development, law and fact, legal theory and the truth of things, are far
from complete coincidence. We have ever to distinguish that which exists
in deed and in truth, from that which exists in law. Fraud in law, for
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 shall not, this principle may or
may not be true, and so far as it is untrue, the truth of things is
excluded by the legal theory of things. In like manner, that which is
considered right or reasonable by the law may be far from possessing
these qualities in truth and fact. Legal justice may conflict with
natural justice; a legal wrong may not be also a moral wrong, nor a
legal duty a moral duty.
§ 9. =The Justification of the Law.=
We have seen that the existence of law is not essential to the
administration of justice. Howsoever expedient, it is not necessary that
this function of the state should be exercised in accordance with those
rigid principles which constitute a legal system. The primary purpose of
the judicature is not to enforce law, but to maintain justice, and this
latter purpose is in its nature separable from the former and
independent of it. Even when justice is administered according to law,
the proportion between the sphere of legal principle and that of
judicial discretion is different in different systems, and varies from
time to time. This being so, it is well to make inquiry into the uses
and justification of the law—to consider the advantages and
disadvantages of this substitution of fixed principles for the
_arbitrium judicis_ in the administration of justice—in order that we
may be enabled to judge whether this substitution be good or evil, and
if good within what limits it should be confined.
That it is on the whole expedient that courts of justice should become
courts of law, no one can seriously doubt. Yet the elements of evil
involved in the transformation are too obvious and serious ever to have
escaped recognition. Laws are in theory, as Hooker says, “the voices of
right reason”; they are in theory the utterances of Justice speaking to
men by the mouth of the state; but too often in reality they fall far
short of this ideal. Too often they “turn judgment to wormwood,” and
make the administration of justice a reproach. Nor is this true merely
of the earlier and ruder stages of legal development. At the present day
our law has learnt, in a measure never before attained, to speak the
language of sound reason and good sense; but it still 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 conflict between
law and justice. It is needful, therefore, that the law should plead and
prove the ground and justification of its existence.
The chief uses of the law are three in number. The first of these is
that it imparts uniformity and certainty to the administration of
justice. It is vitally important not only that judicial decisions should
be correct, distinguishing accurately between right and wrong, and
appointing fitting remedies for injustice, but also that the subjects of
the state should be able to know beforehand the decision to which on any
matter the courts of justice will come. This prevision is impossible
unless the course of justice is uniform, and the 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 just. Sometimes, indeed, the element of order and certainty
is the only one which requires consideration, it being entirely
indifferent what the rule is, so long as it exists and is adhered to.
The rule of the road is the best and most familiar 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 entrusted the duty of
maintaining justice, exercise with a free hand the _viri boni
arbitrium_. The more complex our civilisation becomes, the more needful
is its regulation by law, and the less practicable the alternative
method of judicial procedure. In simple and primitive communities it is
doubtless possible, and may even be expedient, that rulers and
magistrates should execute judgment in such manner as best commends
itself to them. But in the civilisation to which we have now attained,
any such attempt to substitute the deliverances of natural reason for
predetermined principles of law would lead to chaos. “Reason,” says
Jeremy Taylor,[12] “is such a box of quicksilver that it abides no
where; it dwells in no settled mansion; it is like a dove’s neck; ...
and if we inquire after the law of nature” (that 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 dreams of disturbed
fancies.”
It is to be observed in the second place that the necessity of
conforming to publicly declared principles protects the administration
of justice from the disturbing influence of 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 by a
hair’s-breadth is visible to all men; but within the sphere of
individual judgment the differences of honest opinion are so manifold
and serious that dishonest opinion can pass in great part unchallenged
and undetected. Where the duty of 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, public 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 to be
regarded as one of the first principles of political liberty. “The
legislative or supreme authority,” says Locke,[13] “cannot assume to
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, authorized judges.” So in the
words of Cicero,[14] “We are the slaves of the law that we may be free.”
It is to its impartiality far 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[15] says, that “the law doth speak
with all indifferency; that the law hath no side-respect to their
persons.” Hence the authority of a judgment according to law. 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_ is naught; that of the _law_ is
already sufficient to 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, will
the influence of the judicature rise to an efficient level, and the
purposes of civil government be adequately fulfilled.
Finally, the law serves to protect the administration of justice from
the errors of individual judgment. The establishment of the law is the
substitution of the opinion and conscience of the community at large for
those of the individuals to whom 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
difficult, 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. It expresses the will and reason of the body
politic, and claims by that title to overrule the will and reason of
judges and magistrates, no less than those of private men. “To seek to
be wiser than the laws,” says Aristotle,[16] “is the very thing which is
by good laws forbidden.”
§ 10. =The Defects of the Law.=
These then are the chief advantages to be derived from the exclusion of
individual judgment by fixed principles of law. Nevertheless these
benefits are not obtained save at a heavy cost. The law is without doubt
a remedy for greater evils, yet it brings with it evils of its own. Some
of them are inherent in its very nature, others are the outcome of
tendencies which, however natural, are not beyond the reach of effective
control.
The first defect of a legal system is its rigidity. A general principle
of law is the product of a process of abstraction. It results from the
elimination and disregard of the less material circumstances in the
particular cases falling within its scope, and the concentration of
attention upon the more essential elements which these cases have in
common. We cannot be sure that in 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 them, the result is
error and injustice. This possibility is fully recognised in departments
of practice other than the law. The principles of political economy are
obtained by the elimination of every motive save the desire for wealth;
but we do not apply them blindfold to individual cases, without first
taking account of the possibly disturbing influence of the eliminated
elements. In law it is otherwise, for here a principle is not a mere
guide to the due exercise of a rational discretion, but a substitute for
it. It is to be applied without any allowance for special circumstances,
and without turning to the right hand or to the left. The result of this
inflexibility is that, however carefully and cunningly a legal rule may
be framed, there will in all probability be some special instances in
which it will work hardship and injustice, and prove a source of error
instead of a guide to truth. So infinitely 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 injuria_, is 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. The more general the principle, the greater is
that elimination of immaterial elements of which it is the result, and
the greater therefore is the chance that in its rigid application it may
be found false. On the other hand, the more carefully the rule is
qualified and limited, and the greater the number of exceptions and
distinctions to which it is subject, the greater is the difficulty and
uncertainty of its application. In attempting to escape from the evils
which flow from the rigidity of the law, we incur those due to its
complexity, and we do wisely if we discover the golden mean between the
two extremes.
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 in circumstances and in men’s views of
truth and justice, which are inevitably brought about by the lapse of
time. 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 justice do the bidding,
not of the present, but of the times past in which those rules were
fashioned. That which is true to-day may become false to-morrow by
change of circumstances, and that which is taken to-day for wisdom may
to-morrow be recognised as folly by the advance of knowledge. This being
so, some method is requisite whereby the law, which is by nature
stationary, may be kept in harmony with the circumstances and opinions
of the time. If the law is to be a living organism, and not a mere
petrification, it is necessary 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 to 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 progressive races, none other
having been found comparable to this in point of efficiency. Even this,
however, is incapable of completely counteracting the evil of legal
conservatism. However perfect we may make our legislative machinery, the
law will lag behind public opinion, and public opinion behind the truth.
Another vice of the law is formalism. By this is meant the tendency to
attribute undue importance to form as opposed to substance, and to exalt
the immaterial to the level of the material. 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 system
is infected with formalism in so far as it fails to meet this
requirement, and raises to the rank of the material and essential that
which is in truth unessential and accidental. Whenever the importance of
a thing in law is greater than its 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 curat lex_ is to be accounted anything but irony.
The last defect that we shall consider is undue and needless complexity.
It is not possible, indeed, for any fully 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 facts of civilised existence, a
very considerable degree of elaboration is inevitable. Nevertheless the
gigantic bulk and bewildering difficulties of our own labyrinthine
system are far 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 to its bulk and nothing to
its value, while they render great part of it unintelligible to any but
the expert. This tendency to excessive subtilty and elaboration is one
that specially affects a 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 modern times been
enacted in European countries prove the possibility of reducing the law
to a system of moderate size and intelligible simplicity.
From the foregoing considerations as to the advantages and disadvantages
which are inherent in the administration of justice according to law, it
becomes clear that we must guard against the excessive development of
the legal system. If the benefits of law are great, the evils of too
much law are not small. The growth of a legal system consists in the
progressive encroachment of the sphere of law upon that of fact, the
gradual exclusion of judicial discretion by predetermined legal
principles. All systems do to some extent, and those which recognise
precedent as a chief source of law do more especially, show a tendency
to carry this process of development too far. Under the influence of the
spirit of authority the growth of law goes on unchecked by any effective
control, and in course of time the domain of legal principle comes to
include much that would be better left to the _arbitrium_ of courts of
justice. At a certain stage of legal development, varying according to
the particular subject-matter, the benefits of law begin to be
outweighed by those elements of evil which are inherent in it.
Bacon has said, after Aristotle:[17] _Optima est lex quae minimum
relinquit arbitrio judicis_. However true this may be 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.
We 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 they must of
necessity be followed blindly by courts of justice even against their
better judgment. There seems no reason, however, in the nature of things
why the law should not, to a considerable extent, be flexible instead of
rigid—should not aid, guide, and inform judicial discretion, instead of
excluding it—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 special reasons for doing otherwise.” Such flexible
principles 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 category of the
conditional. It will always, indeed, be found needful to maintain great
part of it on the higher level, but we have not yet realised to what an
extent flexible principles are sufficient to attain all the good
purposes of the law, while avoiding much of its 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
judicial discretion, instead of excluding it. In the former capacity,
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.
§ 11. =General and Special Law.=
The whole body of legal rules is divisible into two parts, which may be
conveniently distinguished as General law and Special law. The former
includes those legal rules of which the courts will take judicial
notice, and which will therefore be applied as a matter of course in any
case in which the appropriate subject-matter is present. Special law, on
the other hand, consists of those rules which, although they are true
rules of law, the courts will not recognise and apply as a matter of
course, but which must be specially proved and brought to the notice of
the courts by the parties interested in their recognition. In other
words, the general law is that which is generally applicable; it is that
which will be applied in all cases in which it is not specially excluded
by proof that some other set of principles has a better claim to
recognition in the particular instance. Special law, on the contrary, is
that which has only a special or particular application, excluding and
superseding the general law in those exceptional cases in which the
courts are informed of its existence by evidence produced for that
purpose.
The test of the distinction is judicial notice. By this is meant the
knowledge which any court, _ex officio_, possesses and acts on, as
contrasted with the knowledge which a court is bound to acquire through
the appointed channel of evidence formally produced by the parties. A
judge may know much in fact of which in law he is deemed ignorant, and
of which, therefore, he must be informed by evidence legally produced.
Conversely he may be ignorant in fact of much that by law he is entitled
judicially to notice, and in such a case it is his right and duty to
inform himself by such means as seem good to him. The general rule on
the matter is that courts of justice know the law, but are ignorant of
the facts. The former may and must be judicially noticed, while the
latter must be proved. To each branch of this rule there are, however,
important exceptions. There are certain exceptional classes of facts, of
which, because of their notoriety, the law imputes a knowledge to the
courts. Similarly there are certain classes of legal rules of which the
courts may, and indeed must, hold themselves ignorant, until due proof
of their existence has been produced before them. These, as we have
said, constitute special, as opposed to the general law.
By far the larger and more important part of the legal system is general
law. Judicial notice—recognition and application as a matter of
course—is the ordinary rule. As to this branch of the law we need say
nothing more in this place, but the rules of special law call for
further consideration. They fall for the most part into five distinct
classes. A full account of these must wait until we come to deal with
the sources of law in a subsequent chapter, but in the meantime it is
necessary to mention them as illustrating the distinction with which we
are here concerned.
1. _Local customs._—Immemorial custom in a particular locality has there
the force of law. Within its own territorial limits it prevails over,
and derogates from, the general law of the land. But the courts are
judicially ignorant of its existence. If any litigant will take
advantage of it, he must specially plead and prove it; otherwise the
general law will be applied.
2. _Mercantile customs._—The second kind of special law consists of that
body of mercantile usage which is known as the law merchant. The general
custom of merchants in the realm of England has in mercantile affairs
the force of law. It may make, for example, an instrument negotiable,
which by the general law of the land is not so. This customary law
merchant is, like local customary law, special and not general; but,
unlike local customary law, it has the capacity of being absorbed by, or
taken up into the general law itself. When a mercantile usage has been
sufficiently established by evidence and acknowledged as law by judicial
decision, it is thereafter entitled to judicial notice. The process of
proof need not be repeated from time to time.[18] The result of this
doctrine is a progressive transformation of the rules of the special law
merchant into rules of the general law. The law of bills of exchange,
for example, was formerly part of the special law merchant, requiring to
be pleaded and proved as a condition precedent to its recognition and
application; but successive judicial decisions, based upon evidence of
this special law, have progressively transmuted it into general law,
entitled to judicial notice and to application as a matter of course.
3. _Private legislation._—Statutes are of two kinds, distinguishable as
public and private. The distinguishing characteristic of a public Act is
that judicial notice is taken of its existence, and it is therefore one
of the sources of the general law. A private Act, on the other hand, is
one which, owing to its limited scope, does not fall within the ordinary
cognisance of the courts of justice, and will not be applied by them
unless specially called to their notice by the parties interested.
Examples of private legislation are acts incorporating individual
companies and laying down the principles on which they are to be
administered, acts regulating the navigation of some river, or the
construction and management of some harbour, or any other enactments
concerned, not with the interests of the realm or the public at large,
but with those of private individuals or particular localities.[19]
Private legislation is not limited to acts of Parliament. In most cases,
though not in all, the delegated legislation of bodies subordinate to
Parliament is private, and is therefore a source, not of general, but of
special law. The by-laws of a railway company, for example, or of a
borough council, are not entitled to judicial notice, and form no part
of the general law of the land. Rules of court, on the other hand,
established by the judges under statutory authority for the regulation
of the procedure of the courts, are constituent parts of the ordinary
law.
4. _Foreign law._—The fourth kind of special law consists of those rules
of foreign law, which upon occasion are applied even in English courts
to the exclusion of English law. Experience has shown that justice
cannot be efficiently administered by tribunals which refuse on all
occasions to recognise any law but their own. It is essential in many
cases to take account of some system of foreign law, and to measure the
rights and liabilities of litigants by it, rather than by the indigenous
or territorial law of the tribunal itself. If, for example, two men make
a contract in France, which they intend to be governed by the law of
France, and one of them sues on it in an English court, justice demands
that the validity and effect of the contract shall be determined by
French, rather than by English law. French, rather than English law will
therefore be applied in such a case even by English judges. The
principles which determine and regulate this exclusion of local by
foreign law constitute the body of legal doctrine known as private
international law.
Foreign law, so far as it is thus recognised in English courts, becomes,
by virtue of this recognition, in a certain sense English law. French
law is French as being applied in France, but English as being applied
in England. Yet though it is then part of English law, as being
administered in English courts, it is not part of the general law, for
English courts have no official knowledge of any law save their own.
5. _Conventional law._—The fifth and last form of special law is that
which has its source in the agreement of those who are subject to it.
Agreement is a juridical fact having two aspects, and capable of being
looked at from two points of view. It is both a source of legal rights
and a source of law. The former of these two aspects is the more
familiar and in ordinary cases the more convenient, but in numerous
instances the latter is profitable and instructive. The rules laid down
in a contract, for the determination of the rights, duties, and
liabilities of the parties, may rightly be regarded as rules of law
which these parties have agreed to substitute for, or add to the rules
of the general law. Agreement is a law for those who make it, which
supersedes, supplements, or derogates from the ordinary law of the land.
_Modus et conventio vincunt legem._ To a very large extent, though not
completely, the general law is not peremptory and absolute, but consists
of rules whose force is conditional on the absence of any other rules
agreed upon by the parties interested. The articles of association of a
company, for example, are just as much true rules of law, as are the
provisions of the Companies Acts, or those statutory regulations which
apply in the absence of any articles specially agreed upon. So articles
of partnership fall within the definition of law, no less than the
provisions of the Partnership Act which they are intended to supplement
or modify, for both sets of rules are authoritative principles which the
courts will apply in all litigation affecting the affairs of the
partnership.
We have made the distinction between general and special law turn
wholly upon the fact that judicial notice is taken of the former but
not of the latter. It may be objected that this is a merely external
and superficial view of the matter. General law, it may be argued, is
so called because it is common to the whole realm and to all persons
in it, while special law is that which has a special and limited
application to particular places or classes of persons. In this
contention there is an element of truth, but it falls short of a
logical analysis of the distinction in question. It is true that the
general law is usually wider in its application than special law. It
is chiefly for this reason, indeed, that the former is, while the
latter is not, deemed worthy of judicial notice. But we have here no
logical basis for a division of the legal system into two parts. Much
of the general law itself applies to particular classes of persons
only. The law of solicitors, of auctioneers, or of pawnbrokers, is of
very restricted application; yet it is just as truly part of the
ordinary law of the land as is the law of theft, homicide, or libel,
which applies to all mankind. The law of the royal prerogative is not
special law, by reason of the fact that it applies only to a single
individual; it is a constituent part of the general law. On the other
hand, mercantile usage is dependent for its legal validity on its
generality; it must be the custom of the realm, not that of any
particular part of it; yet until, by judicial proof and recognition,
it becomes entitled for the future to judicial notice, it is the
special law merchant, standing outside the ordinary law of the land.
The law of bills of exchange is no more general in its application
now, than it ever was; yet it has now ceased to be special, and has
become incorporated into the general law. The element of truth
involved in the argument now under consideration is no more than this,
that the comparative generality of their application is one of the
most important matters to be taken into consideration in determining
whether judicial notice shall or shall not be granted to rules of law.
§ 12. =Common Law.=
The term common law is used by English lawyers with unfortunate
diversities of meaning. It is one of the contrasted terms in at least
three different divisions of the legal system:
1. _Common law and statute law._—By the common law is sometimes meant
the whole of the law except that which has its origin in statutes or
some other form of legislation. It is the unenacted law that is produced
by custom or precedent, as opposed to the enacted law made by Parliament
or subordinate legislative authorities.
2. _Common law and equity._—In another sense common law means the whole
of the law (enacted or unenacted) except that portion which was
developed and administered exclusively by the old Court of Chancery, and
which is distinguished as equity.[20] It is in this sense, for example,
that we speak of the Court of King’s Bench or Exchequer as being a court
of common law.
3. _Common law and special law._—In yet a third sense common law is a
synonym of what we have already called general law, the ordinary law of
the land, as opposed to the various forms of special law, such as local
customs, which will not be applied as a matter of course in the
administration of justice, but only when specially pleaded and proved.
The expression common law (_jus commune_) was adopted by English
lawyers from the canonists, who used it to denote the general law of
the Church as opposed to those divergent usages (_consuetudines_)
which prevailed in different local jurisdictions, and superseded or
modified within their own territorial limits the common law of
Christendom.[21] This canonical usage must have been familiar to the
ecclesiastical judges of the English law courts of the twelfth and
thirteenth centuries, and was adopted by them. We find the distinction
between common law and special law (_commune ley_ and _especial ley_)
well established in the earliest Year Books.[22] The common law is the
ordinary system administered by the ordinary royal courts, and is
contrasted with two other forms of law. It is opposed, in the first
place, to that which is not administered in the ordinary royal courts
at all, but by special tribunals governed by different systems. Thus
we have the common law in the Court of King’s Bench, but the canon law
in the Ecclesiastical Courts, the civil law in the Court of Admiralty,
and, at a later date, the law which was called equity in the Court of
Chancery.
In the second place the common law was contrasted with those various
forms of special law which were recognised even in the King’s ordinary
courts in derogation of the general law of the land. Thus it is
opposed to local custom (_la commune ley_ and _le usage del
pays_);[23] to the law merchant (_la commune ley_ and _la ley
merchaunde_);[24] to statute law;[25] and to conventional law
(_specialis conventio contra jus commune_).[26] The opposition of
common and statute law is noteworthy. Statute law is conceived
originally as special law, derogating from the ordinary law of the
King’s courts. It was _contra jus commune_, just as contracts and
local customs and the law merchant were _contra jus commune_. Such a
point of view, indeed, is not logically defensible. A public and
general statute does not bear the same relation to the rest of the law
as a local or mercantile custom bears to it. Logically or not,
however, statutes were classed side by side with the various forms of
special law which derogated from the _jus commune_. Hence the modern
usage by which the common law in one of its senses means unwritten or
unenacted law, as opposed to all law which has its origin in
legislation.
§ 13. =Law and Equity.=
Until the year 1873 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 merely as law and equity (using the term law in a narrow
sense as including one only of the two systems). The common law was the
older, being coeval with the rise of royal justice in 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 modern body of
legal doctrine, developed and administered by the Chancellor in the
Court of Chancery as supplementary to, and corrective of, the older law.
To a large extent the two systems were identical and harmonious, for it
was a maxim of the Chancery that 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
rejection or modification. 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 way, if brought before the Court
of King’s Bench, and in another, 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, and by the consequent fusion of the two systems into a single
and self-consistent body of law.
The distinction between law and equity has thus become historical
merely, but it has not for that reason ceased to demand attention. It is
not only a matter of considerable theoretical interest, but it has so
left its mark upon our legal system, that its comprehension is still
essential even in the practical study of the law.
1. The term equity possesses at least three distinct though related
senses. In the first of these, it is nothing more than a synonym for
natural justice. _Aequitas_ is _aequalitas_—the fair impartial, or equal
allotment of good and evil—the virtue which gives to every man his own.
This is the popular application of the term, and possesses no special
juridical significance.
2. 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 generality may work injustice. So
also, the law may with defective foresight have omitted to provide at
all for the case in hand, and therefore supplies no remedy for the
aggrieved suitor. In all such cases in order to avoid injustice, it is
needful to go beyond the law, or even contrary to the law, and to
administer justice in accordance with the dictates of natural reason.
This it is that is meant by administering equity as opposed to law; and
so far as any tribunal possesses the power of thus supplementing or
rejecting the rules of law in special cases, it is, in this sense of the
term, a court of equity, as opposed to a court of law.
The distinction thus indicated was received in the juridical theory both
of the Greeks and the Romans. Aristotle defines equity as the correction
of the law where it is defective on account of its generality,[27] and
the definition is constantly repeated by later writers. Elsewhere he
says:[28] “An arbitrator decides in accordance with equity, a judge in
accordance with law: and it was for this purpose that arbitration was
introduced, namely, that equity might prevail.” In the writings of
Cicero we find frequent reference to the distinction between _aequitas_
and _jus_. He quotes as already proverbial the saying, _Summum jus summa
injuria_,[29] meaning by _summum jus_ the rigour of the law untempered
by equity. Numerous indications of the same conception are to be met
with in the writings of the Roman jurists.[30]
The doctrine passed from Greek and Latin literature into the traditional
jurisprudence of the Middle Ages. We may see, for example, a discussion
of the matter in the _Tractatus de Legibus_ of Aquinas.[31] 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 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.[32] 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, an offshoot from the King’s Council, was
established to administer the equity which the common law had rejected,
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 himself,
speaking by the mouth of his Chancellor. The King was the source and
fountain of justice. The administration of justice was part of the royal
prerogative, and the exercise of it had been delegated by the King to
his servants, the judges. These judges held themselves bound by the
inflexible rules established in their courts, but not so the King. A
subject might have recourse, therefore, to the natural justice of the
King, if distrustful of the legal justice of the King’s courts. Here he
could obtain _aequitas_, if the _strictum jus_ of the law courts was
insufficient for his necessities. This equitable jurisdiction of the
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 keeper of the royal conscience.
3. 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 law. It is that body of law which is
administered in the 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 to set up and administer a new form of
law, standing side 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 any rules whatever. His
duty was to do that “which justice, and reason, and good faith, and good
conscience require in the case.”[33] And of such requirements he was in
each particular case to judge at his own good pleasure. In due time,
however, there commenced that process of the encroachment of established
principle upon judicial discretion, which marks the growth of all legal
systems. By degrees the Chancellor suffered himself to be restricted by
rule and precedent in his interpretation and execution of the dictates
of the royal conscience. Just in so far as this change proceeded, the
system administered in Chancery ceased to be a system of equity in the
original sense, and became the same in essence as the common law itself.
The final result was the establishment in England of a second system of
law, standing over against the older law, in many respects an
improvement on it, yet no less than it, a 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 Chancellor is the
_jus praetorium_ of the Roman praetor. The praetor, the supreme judicial
magistrate of the Roman 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, standing by the
side of the common law, so in Rome a _jus praetorium_ grew up distinct
from the older _jus civile_. “Jus praetorium,” says Papinian,[34] “est
quod praetores introduxerunt, adjuvandi vel supplendi vel corrigendi
juris civilis gratia, propter utilitatem publicam.” The chief
distinction between the Roman and the English cases is that at Rome the
two systems of law coexisted in the same court, the _jus praetorium_
practically superseding the _jus civile_ so far as inconsistent with it;
whereas in England, as we have seen, law and equity 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_. This transference of meaning
is peculiar to English usage.[35]