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A first book of jurisprudence for students of the common law online

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it can have a scope much wider than the limits of
the State. The Church, which of course is not
bounded by any State, and in the medieval view


could not be, had her own customs and refused to
let any secular power pass judgment on their
validity. No constant relation to law or judicial
authority can be predicated of custom. It may or
may not be treated as part of the law. Much law
purports to be founded upon custom, and much
custom has certainly become law. The extent to
which this has happened, and the manner in which
it has been brought about, are matters of history in
the legal system which each particular State has
developed or adopted. We shall have to returii to
this when we consider the sources and forms of the
law of England. So far the word " custom " may
be said to suggest the notion of potential or in-
cipient legality. But on the other hand much
custom is quite outside the usual sphere of law.
Still the word has a certain ethical force tending to
coufiue its use to those habits whicli the persons
practising them recognise as in some way binding.
Such are, to take a conspicuous example, customs
of tribes and castes which have a religious character.
" Customary " carries more weight, though it may
be only a little more, than " usual." ^ In the
weakest case we mean by custom a little more than

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


habit, for one may have habits of an automatic or
mechanical kind of which one is barely or not at
all conscious. It is hardly needful to add that a
great deal of law, at any rate of modern law, has
not any visible relation to pre-existing custom.

" Practice," in the modern usage of the legal

' •■ profession, signifies a particular kind of custom,

namely, that by which a court of justice regulates

the course of its own proceedings.

iioiai law, We have used the word Law, so far, without

natural law

or law of any epithet, the sense in which we have used it


being that which is commonly understood where
nothing in the context requires a different one.
But the word has other usages more or less analo-
gous to the principal meaning. Moral law is the
1 1 sum of the rules of conduct which we conceive to

be binding on human beings, generally or with
regard to the circumstances of a particular society,
so far forth as they are capable of discerning
between right and wrong ; but it may also mean
the rules to which the members of a particular
society are actually expected, by the feelings and
opinions prevalent in that society, to conform.
Sometimes the distinction between actual and ideal
rules of conduct is marked by speaking of moral
rules, or of " positive morality," when we mean the


rules accepted in fact at given times and places,
but of "natural law," "law of nature" or "natural
justice," when we mean such rules as are universally
accepted, or in our opinion ought so to be. The
term " law of nature " has a long history, beginning
with the distinction made by Greek ethical philo-
sophy from Aristotle downwards between natural
and conventional justice. It came to mean so much
of the rules of justice as can be discovered by man's
reason apart from either specific revelation or local
or temporary ordinances ; it was identified with the
law of God ; and it followed, in the medieval view,
that the law of nature, once being ascertained, was
of universal and paramount obligation. It never
meant (as some later writers have assumed) the
arbitrary speculative opinion of an individual as to
what is right and wrong. ^ Positive morality may
be, and in many times and places is known to have
been or still to be, contrary to universal morality or
natural law. The supposed duty of a Hindu widow
to burn herself with her husband's corpse is a
striking example.

The rules observed, or generally expected so to Law of

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


\ be, by the governments of civilised independent
States in their dealings with one another and with
one another's subjects are called the Law of Nations,
or International Law. We are not called upon to
consider here whether they are more nearly analo-
gous to the law administered by courts of justice
within a State, or to purely moral rules, or to those
customs and observances in an imperfectly organised
society which have not fully acquired the character
of law, but are on the way to become law. This
last-mentioned opinion is my own ; but I do not
deem this a fit place for dwelling upon it. The
whole matter is much disputed, and cannot be
effectually discussed without assuming a good deal
both of law and of the history of law to be known.
Extended Bodics of rule or custom existing in a limited :

use of . j

"law" for section of a community, and enforced by the i

particular .. ni • • ^ • • ^n

social opinion 01 that section withiii itself, are often

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


cannot be justified even as a metaphorical license :
a code, as we shall see later, being essentially a ^ \
collection of articulate and definite rules or state-
ments, and generally purporting to proceed from
a definite authority.^

In English we use the word Law in a con- 'Law "in
Crete sense to mean any particular rule, having crete as
the nature of law in the abstract sense, which is rule,
expressly prescribed by the supreme power in the i
State, or by some person or body having authority
for that purpose, though not generally supreme.
A law, in this sense, is the exercise of a creative
or at least formative authority and discretion ; the
power that made it might conceivably have chosen
to make it otherwise. The rule is_such because
a definite authority has made it so ; it lay in the
lawgiver's hand what it should be. There is an
element, at least, of origination. Application of
existing principles, however carefully worked out,

^ There have been various modern codifications of the "laws of
honour," enjoying more or less conventional and local authority.
Such were the "thirty-six commandments" promulgated in 1777
by the southern Irish " Fire-eaters," which maj' be seen near the
beginning of the second volume of Sir Jonah Barrington's Personal
Sketches. In fact there were only twenty-four rules and two
additional " Galway articles." The rules were effective enough
within their jurisdiction. Barrington himself relates that he
obeyed them by lighting a duel with a man he hardly knew for a
cause which (also in punctilious accordance with the rules) was
never explained, but w-hich apparently was a pure mistake.


and however important it may be in its results, is
not within the meanin". Therefore, although declara-
tions of legal principles, or interpretations of express
laws, by courts of justice ma}'- well be said to form
part of the law, and so to be law in the abstract
sense, we cannot say of any such declaration or
interpretation that it is " a law." ^ When we are
using the term in this concrete sense it is not only
correct enough for ordinary political purposes, but
correct without qualification, to say that " Laws
are general rules made by the State for its sub-
jects." " The plural " laws " is ambiguous, and the
context must determine in which sense it is used.
It may cover both meanings, as when we speak of
" the laws of England " as including the whole
body of English law, both what has been enacted
by Parliament and what is derived from other
sources. It is qviite possible for the administration
and development of " law " and the production of
concrete " laws " to be in the same hands to a
greater or less extent. Thus a decision of an
English Superior Court is law unless and until

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

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


reversed or overruled by a higher Court ; a rule
of procedure made by the Judges under the powers
conferred on them by the Judicature Acts is a
law, though English-speaking lawyers do not com-
monly call it so, because it is more convenient
to use the appropriate term " Eule of Court." In .
like manner an Act of the Imperial Parliament, ;
or an Order in Council, or an Ordinance made by
the Legislature of a Crown Colony, is a law, though
almost always called by the more specific name.

This concrete usage is extended to all sorts of "Laws "in


express rules made and recorded for the guidance of sense of

• • 11 f IT- particnLir

human action in all sorts of matters, both serious rules in
and otherwise. Clubs and societies have their laws ; judicial
there are laws of cricket and laws of whist. As
might be expected, the distinction between the
concrete and the abstract sense is not always exactly
observed in popular usage. One might say without
impropriety : " It is a law of journalism that an
editor shall not disclose the authorship of an un-
signed article without the writer's consent," although
" rule " or " custom " would be more accurate.

It is proper to note that the ambiguity of the KngHsii

" law "

word law seems peculiar to English among the includes

- " ■ ^ ^ "ius"and

chief Western languages. Law in the abstract, the "kx."
sum of rules of justice administered in a State and

' """" c


by its authority, is itcs in Latin, droit in French,
diritto in Italian, Recht in German. For the ex-
press rule laid down by an originating authority
these languages have respectively the quite distinct
words, lex, loi} legge (the French and Italian words
being modern forms of the Latin one), Gesetz.
Thus an Englishman tends, consciously or not,
to regard enacted law as the typical form ; it is
hard for him not to identify laws (as the plural of
" a law ") with Law. Frenchmen and Germans,
on the other hand, are more likely to regard hi
or Gesetz as merely a particular form of droit or
Becht, and not necessarily the most important
"ius,"etc. On the other hand, these Latin and other names ■

include - .

"law "and for law in the abstract (ms, droit, diritto, Becht)

"right." . ,

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


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


thought, which are perhaps not less inconvenient
than any consequences of law having _to stand for
both ius and lex in our language.

From the concrete use of the word laiv we have Exteuded

use of

by extension the term "law" or "laws of nature" "iaw"m


in the language of natural philosophy, or science termino-
as it is now commonly called, though in truth it
is but one kind of science. Here the word has a
wholly distinct meaning from those we have hitherto
mentioned. It signifies any verified uniformity of
phenomena which is capable of being expressed in
a definite statement, and by " the laws of nature "
we mean the sum of such uniformities known or
knowable — in other words, the uniformity of nature
as a whole. Doubtless this language originally
implied a belief that uniformity in nature, whether
general or particular, is due to will and design in
some way analogous to those of human princes and
rulers ; but it has long ceased to have any such
implication as a matter of necessity or even of
common understanding.^ No one tlimks of Grimm's
Law, or other "laws of phonetics," as anything but
compendious expressions of more or less generally
observed facts in human speech, or in particular
groups of languages. Further, this meaning has

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


been carried back into the region of moral and
political science, as when we speak of the laws of
political economy or history. We may even say,
if we please, though it would hardly be elegant,
that the laws of history are exemplified in the
history of law, thus using the word in the primary
and the derivative sense in the same sentence.
Here the term has quite lost its ethical associations ;
in fact those who insist most strongly upon the
ethical element of law in its primary sense are
perhaps those who are most likely to object to this
usage. Such a phrase as laws of political economy,
laws of history, laws of statistics, has no depend-
ence whatever on any conception of a tribunal or
a lawgiver, or of doing justice. It signifies only
the normal results, as collected by observation or
deduced by reasoning, of conditions, and (where
human action is concerned) habits and motives,
assumed to exist and to have effect. Whether we
like those results or not ; whether and to what
extent the conditions are within the control of
deliberate human action ; and in what direction, if
at all, we shall endeavour tu modify the conditions
or counteract the results, — may be matters deserving
to be most carefully weighed : but they belong to
a different order of considerations. Physicists have


studied what are called the laws of electricity till
it has become possible to light our houses with
electric lamps. The occupier of a house so lighted
can turn those laws to account whenever he pleases,
and for so long as he pleases, provided that every-
thing is in order, and in that sense he can control
them. But his reasons for wanting or not wanting
to light up a particular room at this or that hour
have nothing to do with electrical science. The
fact that a stone lies on the ground is an example
of the " law of gravity." My desire to pick it up,
followed by the act of picking it up, does not affect
the "law," — in other words, that particular aspect
of the uniformity of nature, — in any way : it only
varies the example. A well-to-do man going abroad
lets his house to a friend at a nominal rent: the
" laws of political economy '' have nothing to say to
this : the transaction is not such an one as economists
contemplate. In short, the " laws of nature " are,
for the lawyer and moralist, matters not of law at
all in their sense, but of pure fact. And this applies
equally to the so-called laws of human action in
so far as human action is a subject of scientific

We may now leave aside the secondary and
derivative meanings of " law " or " laws," and attend


Law in its ouly to sucli lules as are recognised and administered


sory in a commonwealth, and under its authority, as

Sanctions, binding on its members. Thus far we have said
nothing about the enforcement of the rules. In
a modern civilised State it is well understood that,
if resistance is made, the power of the State, or
such part thereof as may be needful for the pur-
pose, will be put forth to overcome it. Only the
commonest knowledge of affairs and events, as they
occur day by day, is required to assure us that the
commission of acts forbidden by law, or disobedience
to the orders of a court of justice, is likely to have
unpleasant consequences in various degrees and
kinds, according to the nature of the case and the
system of law and government existing at the time
and place, and that much work and thought are
spent on behalf of the State in making that like-
lihood approach as near as may be to certainty.
Common knowledge no less informs us, it is true,
that the public servants of even the most highly
organised State do not attain constant or uniform
success in this endeavour. Some offenders escape
and some laws are disregarded. But the State is,
on the whole, prepared to compel its members to
obey the law, and does, on the whole, exercise an
effective compulsion ; that is to say, it will and


can make compliance with the law preferable to
disobedience for most men on most occasions, by
the application of fitting means through its officers
appointed for that purpose. If this much cannot
be affirmed in a given society at a given time (say
a minor South American republic when a revolution
is at its height), that society is in a condition of
political anarchy for the time being, or at least the
functions of the State are suspended. In fact we
find the will and power to enforce the law by
public authority to be stronger in proportion asj
the commonwealth is more settled, more prosperous,'
and more refined. " The magistrate beareth not
the sword in vain." Hence it is natural for men
living in a civilised State to regard this public will
and power of causing the law to be observed as
belonging to the very essence of law. The appointed
consequences of disobedience, the sanctions of law
as they are commonly called, become inseparably
associated with the existence of a law - abiding
community ; so that they seem to be not only a
normal element of civilised law, but a necessary
constituent. Law without a sanction, and that
sanction in the hands of the State, can, in this
way of thinking, easily appear like a contradiction
in terms.


Enforce- Ally such view, however, will be found hard to

inent of

law by the recoucile with the witness of history. That im-

State is

relatively perative character of law which in our modern

modern. ... •^ ■ ,> t ^

experience is its constant attribute is found to be
wanting in societies which it would be rash to call
barbarous and false to call lawless. For, if we look
away from such elaborated systems as those of the
later Eoman empire and of modern Western govern-
ments, we see that not only law, but law with a
good deal of formality, has existed before the State
had any adequate means of compelling its observ-
ance, and indeed before tliere was any regular
process of enforcement at all. We have already
vouched the Icelandic Sagas to show that law can
do without a legal profession : we may vouch them
to sliow^ no less clearly that it can do without a
formal sanction. More than this, we find preserved
among the antiquities of legal systems, and notably
in archaic forms and solemnities, considerable traces
of a time when the jurisdiction of courts arose only
from the voluntary submission of the parties : and
this not only as between subject and subject, but
as between a subject and the State.^ Jhering tells
us that the early Eoman judge was a mere daysman,

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


or " speaker of the law " bet\v^n_the^ £arties.^ We
need not doubt that effectual motives for sub-
mission could be brought, sooner or later, to bear on
unwilling subjects. The man who did not submit
himself to law could not claim the benefit of the
law ; there was no reason why every man's hand
should not be against him. Outlawry, now all but
obsolete even in name, was the formal expression
of the archaic social rules by which law was
gradually made supreme. Again, archaic procedure
shows us a period in which a suitor may obtain
judgment, but must execute the judgment for him-
self. The most the State will do for him is to
come eventually to his aid if the adversary or the
adversary's friends continue to deny him right. In
the meantime private force holds the ground, but
the winning suitor's private force is lawful and the
loser's is unlawful.

At this stage the State can hardly be said to
provide any sanction of its own ; it only gives
moral support and coherence to sanctions already
existing in a vague form. Conversely, one of the
first signs of the; reviving power and solidity of the
State in the early Middle Ages was the jealous
restriction of private force, even when the claimant

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


who sought his ends by might had full right on his
side. Iniuste and sine iudicio became convertible
terms. It is wrong to do oneself right without
judgment and public authority.
Informal In oue sense we may well enough say that there

sanctions . "

common IS no law without a sanction. For a rule of law

to law and , . . , . , .

morality, must at ieast be a rule conceived as binding; and
a rule is not binding when any one to whom it
applies is free to observe it or not as he thinks
fit. To conceive of any part of human conduct as
subject to law is to conceive that the actor's freedom
has bounds which he oversteps at his peril. One
or more courses of action may be right or allowable ;
at least one must be wrong. Now what is felt to
be wrong is felt to call for redress. This may be
direct or indirect, swift or tardy ; but in the mere
sense and apprehension of redress to come, however
remote and improbable it may seem, and however
uncertain the manner of it may be, we have already
some kind of sanction, and not the less a sanction
because its effect may be precarious. All this
applies to moral no less than to legal rules.
Taken thus largely, there are sanctions of infinite
degrees from obscure monitions of conscience to
general and open reprobation, or even acts of
violence prompted by the indignation of one's


fellow-men ; ^ and, if we pass from the moral and
social to the legal sphere, from some small expense
or disadvantage in the conduct of a lawsuit, or
some small penalty for delay in performing a
puhlic duty, to the severest penalties of criminal
jurisdiction. But in a modern State the sanction
of law means botli for lawful men and for evil-
doers something much more definite. It means
nothing less than the constant willingness and
readiness of the State, in the persons of its magis- i
trates and officers, to use its power in causing
justice to be done ; and this in respect not only
of the main duties enforceable by law, but of an
immense number of incidental and at first sight
arbitrary rules and conditions.

In short the conception of law, many of its Law ami

r • I- • ■ ^^^^ " ^^^^

ideas, and much even of its form, are prior m of the

history to tlie oi!icial intervention of the State,

save in the last resort, to maintain law. True it

is that in modern States law tends more and more

to become identified with the will of the State as

expressed by the authorities intrusted with the

direction of the common power. But to regard

law as merely that which the State wills or com-

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


mands is eminently the mistake of a layman, as
one of the greatest modern jurists has hinted ; ^
and, we may add, of a layman who has not con-
sidered the difference between modern and archaic
societies, or the political and social foundations

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Online LibraryFrederick PollockA first book of jurisprudence for students of the common law → online text (page 2 of 22)