Frederick Pollock.

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

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tliere was in taking fornial criminal proceedings against animals,
of which there are many medieval examples.



Ill THE SUBJECT-iMATTER OF LAW 65

the State acts in the manner of a creditor and
for the direct benefit of the public revenue, as in
collecting taxes, still more, where it acquires and
deals with specific property in the way of buying,
holding, and selling, it seems that the State has rights
in the fullest sense. But this cannot be adequately
considered without reference to the doctrine of legal
personality.

Whether the State can have duties has been Can the

state have

a point fruitful of discussion, though the point duties?
is perhaps of no great practical importance. It
is clear that the person or body holding supreme
political power in a commonwealth (assuming
that there is such a person or body) has only
to use that power to be legally free. No less
clear is it by experience that while claims against
the State are made in various ways more difficult
to maintain than claims against private members
of the State, yet in the practice of civilised nations
claims which are in substance against the State
are dealt with by courts of justice, and lead, if the
claim is made good, to redress being granted out
of public funds. But this is compatible with the
view that the State submits these questions to
its own tribunals only as a matter of grace and
favour, though the grace may be so customary that

F



66 FIRST BOOK OF JURISPRUDENCE chap.

citizens look on it as a political and moral right.
And that is certainly the view which the forms
and rules of our own law have embodied. More-
over, we said that the primary mark of rules of
law is to be binding on citizens as such. The State
is not a citizen nor an aggregation of citizens,
and a system of law can quite well exist without
the State ever being considered to be legally bound
towards a citizen. All jurisdiction, nevertheless,
appears to have begun in consent, and all govern-
ment ultimately rests on consent ; not in the
sense that it was ever founded by express con-
vention, but that no government can in the long
run be carried on against the dissent of an effective
majority. Therefore it seems hard to say that the
State cannot by its own consent be really subject
to rules of law so long as that consent is in force.
In practice individual citizens may count on the
submission of the State to its own tribunals
(whatever the extent of it may be) not being
arbitrarily revoked. The security is the same, in
the last resort, that we have for the due administra-
tion and enforcement of the ordinary law binding
on subjects. Moreover, persons and bodies repre-
senting the State in various departments of its
functions may well come before the law in a



Ill THE SUBJECT-MATTER OF LAW 67

position not necessarily distinguishable from that of
ordinary citizens.^ But this again brings us to the
question of legal personality which still lies ahead.

According to that view of the nature of law
which regards it as the command of a supreme
political authority and nothing else, it is difficult
to ascribe rights, and barely possible to ascribe
duties, to the State. But as we do not consider
such a view to rest on any sound foundation, we
are not concerned here with its consequences. If
we accept Hobbes's derivation of the State and
all civil order from an original covenant by which
every man surrendered his natural right or power
into the hands of a sovereign person or body from 1 |
whom all law thenceforth proceeds, we must accept
likewise the consequences which Hobbes deduced
and set forth once for all : ^ otherwise not.

It seems at first sight a paradox to say that Cau a man

a man can have rights against himself The moral against"

duties which are called self-regarding are so far

recognised by criminal law that some of the grosser

breaches are punishable ; but one cannot claim

redress from oneself, in other words a right of

action against oneself is not possible. Again, a

1 ^ Advanced students may consult "VV. Harrison Moore,
; "Liability for Acts of Public Servants," L.Q.R. xxiii. 12.

- Leviathan, ch. xxvi., cp. ch. xxix. *



68 FIRST BOOK OF JURISPRUDENCE chap.

man may in the exercise of his lawful freedom
confer many rights on others which limit that
exercise in various ways and for periods of varying
duration; but the duties are binding on him just
because the rights are not in his own control but
belong to the other parties. Yet it is conceivable
and possible that a man should initiate compulsory
proceedings against himself : as when, as the law
of some countries now allows, a drunkard enters
of his free will a licensed institution for the
treatment of dipsomania, and, having so entered
it, may lawfully be detained for a certain time
notwithstanding any attempted revocation of his
consent. In such a case the patient is after a
sort his own accuser and judge ; and as this
power of self-restraint is conferred for his own
benefit, we cannot but allow that he exercises a
right. Both the right and the corresponding duty
of submitting to the self-imposed restraint are
called into existence by the party's own option.
From the moral point of view we should say
that a man in this condition is really divided
against himself, and that the law, taking notice
of this abnormal fact, enables him to strengthen
his better against his worser self. In ethics all
duties have regard to oneself in some sense. As



Ill THE SUBJECT-MATTER OF LAW 69

there is no necessary question of an external
tribunal, even the most informal, or of external
acts or consequences, there is no real difficulty
about this. If we speak of "duty towards God,"
we introduce an approach to the legal conception
of duty ; the Supreme Being (or, in polytheistic
religions, a superior being determined as appropriate
to the occasion by particular functions or attributes)
taking the place of an external human lawgiver,
or of the State. And in fact it may be observed
that moral rules which belong exclusively or
eminently to definite religious systems have ever
tended to assume a formal and legal character.
Ethical feeling (where it survives this treatment)
has to be satisfied and reinforced by counsels of
perfection and other forms of aspiration to an
ideal beyond and outside the rules.

Wrong is in morals the contrary of right. Wrong.
Eight action is that which moral rules prescribe
or commend, wrong action is that which they
forbid. For legal purposes anything is wrong
which is forbidden by law ; there is wrong done
whenever a legal duty is broken. A wrong may
be described, in the largest sense, as anything
done or omitted contrary to legal duty, considered
jl| in so far as it gives rise to liability. Hence the



70 FIRST BOOK OF JURISPRUDENCE chap.

existence of duty, as it involves riglit, involves
also the possibility of wrong; logically no more
than the possibility, though we know too well that
all rules are in fact sometimes broken. Duty,
riglit, and wrong are not separate or divisible
heads of legal rules or of their subject - matter,
but different legal aspects of the same rules and
Qvents. There may be duties and rights without
any wrong ; this happens whenever legal duties
are justly and truly fulfilled. There cannot, of
course, be a wrong without a duty already existing,
but wrongs also create new duties and liabilities.
Strictly speaking, therefore, there can be no such
thing as a distinct law of wrongs. By the law of
wrongs we can mean only the law of duties, or
some class of duties, considered as exposed to in-
fraction, and the special rules for awarding redress
or punishment which come into play when infrac-
tion has taken place. There is not one law of
rights or duties and another law of wrongs. Never-
theless there are some kinds of duties which are
more conspicuous in the breach than in the ob-
servance. The natural end of a positive duty is
performance. A thing has to be done, and when
it is duly done the duty is, as we say, discharged ;
the man who was lawfully bound is lawfully free.



Ill THE SUBJECT-MATTER OF LAW 71

We contemplate performance, not breach. Appoint-
ments to offices are made, or ought to be, in
the expectation that the persons appointed will
adequately fulfil their official duties. AVhen I take
a ticket from London to Oxford, I hope and expect
that the railway company will convey me safely and
punctually to Oxford. The same may be said of
negative duties which are annexed to positive
ones, or have been assumed by the party's own
undertaking. But when we come to negative
duties imposed by the general law, we find our
attention directed to the event of their violation.
For the elementary duties we owe to all men
have no natural end short of life's end itself.
An honest man is always observing the duty of
not stealing, and has never done observing it so
long as he lives honestly. There is nothing to
fix the mind's eye to one moment of negative
observance more than another. Dramatic incidents
of resistance to temptation make no difference in
the legal view. A man can do no more than
observe the rule, and ought to do no less, whatever
the additional moral merit of resisting temptation
may be. Therefore it is the breach of such duties
that gives us a defined point of concentration, and
in practice we approach the conception of the duty



72



FIRST BOOK OF JURISPRUDENCE



Arrange-
ment by
duties or
rights. I



through the fact of the wrong done. Again, the
term wrong suggests not only a right violated, but
some one's right, in the full and determinate sense
of that word, to redress ; although what is really
correlated to the injured person's right to redress
is not the wrong itself, but the new duty and
liability arising from it. Thus we have in English
usage a tendency, first to limit the word vjrong, in
legal speech, to cases where a general duty is
broken, and, further, to use it by preference in
cases where the enforcement of the law rests with
the injured person in the first instance, or alto-
gether, and not with the officers of the State.
Great authors in our law, Hale and Blackstone,
have spoken of " Public Wrongs," but it is more
usual to speak of crimes or offences.

We may shortly sum up the result of the pre-
ceding discussion by saying that there is no harm
in taking the conception of Duty for our clue or
basis of classification in dealing with some groups
of legal rules, that of Eight in dealing with others,
and for others again that of Wrong, determined by
reference either to the duty disregarded or to the
right violated. The matter is essentially one of
convenience. Only we must remember that in this
we are not dividing the actual contents of legal



Ill THE SUBJECT-MATTER OF LAW 73

rules, but distinguishing aspects, and making
sometimes one and sometimes another prominent as
it suits us. Duty and Eight are not really more
divisible in law than action and reaction in
mechanics. Hence it would seem that such topics
of discussion as whether a system of law should
be arranged under heads of duties or heads of rights
are at best of secondary importance, and cannot lead
to conclusions of any universal validity. The
practical lawyer's instinct is to regard anxious
dwelling on these topics with a certain impatience,
an impatience that may be said to border on
contempt. If he is pressed for reasons, and
ventures to give them offhand, his reasons" are
perhaps more likely to be bad than good. Yet
reflection appears to show that in this as in many
other cases the practical instinct is in the main
justified, although it may be long before the
justification is made explicit in a form that will
satisfy philosophers. Experience builds better than
it knows.

So far as it is worth while to indicate any general Au.xiiiary

rules of

preference in classification, and other thmgs being law.
equal, duties appear to come in the natural and
logical order before rights , for it is of the essence_of
law to assign rules of conduct, and a rule of conduct



74 FIRST BOOK OF JURISPRUDENCE chap.

which did not affirm some kind of duty would not
be a rule. This is more clearly seen in the case
of moral rules. No one would think of treating
morality as a system of rights. However that may
be, there is more than duties and rights to be taken
into account before we have covered the subject-
matter of jurisprudence : and this to such an extent
that we should still be left very far from a com-
plete system of law if we were furnished with an
exhaustive list of all the legal rules which can be
said in any natural sense to declare duties or affiirm
rights. Duties and rights are mere disjointed parts
of an organism, so to speak, until we know how they
are connected with the acts and events of human
life. They are attached to certain persons ; they
have their modes of beginning and of continuance
assigned by rules of law, and there are other rules
according to which they cease. A mere detached
knowledge of the contents of le^al rules would be
of little use without knowing the conditions which
determine their application. In order to have any
real working acquaintance with a system of law we
must inquire, not only what duties and rights are
recognised, but how rights are acquired and lost;
what rights are capable of transfer, and how; by
what acts and events duties are imposed; how far



Ill THE SUBJECT-MATTER OF LAW 75

and ill what ways duties can be transmitted ; and

how they are discharged. The conditions defining

these things are therefore, as mentioned at the

beginning of this chapter, an integral part of the

subject-matter of law, and the rules which declare

them are among the most important. Some branches

of the law may be said, indeed, almost to consist of

rules of this kind.^ They set forth the conditions on

which rights and duties depend, but they do not for

the most part declare any right or duty in the first

instance. When a man attains full age is a very

practical question, and the statement that in

England every one under the age of twenty-one

years is an infant is certainly a proposition of law ;

but it does not state any duty or right. Legal

capacity is not a right, still less is the want of it a

wrong. Persons dealing with infants are subject to

risks and duties which may be learnt from other

sources ; the rule only tells us Mdio is an infant.

Again, we are all bound to respect the rights of

ownership ; owners are also subject to a variety of

special duties. To bring the legal rules of conduct

into relation with actual facts we have to know how

people become owners, and how ownership and other

1 Bentham would class all rules of this kind^s." expository
matter " : Principles of Morals and Legislation, c. xvii. note
ad fin. par. xii.



76 FIRST BOOK OF JURISPRUDENCE chap.

interests in property are transferred. It is often
much easier to know what are the owner's rights,
whoever he may be, than to know who the owner is.
Again, every man is bound to pay his debts, and
this, viewed from the other side, is the creditor's
right to be paid. But what is to happen if the
debtor dies, or the creditor ? What becomes of the
duty and the claim ? In the literature of English
law the exposition of this and other incidental
matters fills two large but by no means diffuse
volumes, well known to lawyers as " Williams on
Executors." Without a body of rules to determine title
and succession the law of property would be in the
air. Especially does this hold in that most import-
ant and difficult part of the law of property which
deals with Possession. In almost every branch of the
law Possession may have far-reaching and decisive
consequences. The legal idea of Possession, though
based on elementary facts of human nature and
society (or rather, perhaps, because so based), is
among the highest and hardest we have to grapple
with. But the practical consequences in a given
system of law depend largely on the rules that
determine how possession is acquired, transferred,
and lost. Ultimately rules of this kind enable us to
fix the duties and rights of parties in the particular



Ill THE SUBJECT-MATTER OF LAW 77

cases. They exist for the sake of ascertaining rights
and duties. But they do not, in the first instance,
affirm any specific right or duty. We may con-
veniently call them " determining " rules when we
desire to speak of them by a compendious name.

Further, rules of law are rules in and for a living Rules of
commonwealth, active and operative precepts, not and pro-
merely contemplative propositions. In Professor
Holland's happy phrase, law has to deal with rights
in motion as well as at rest. Duties have to be



enforced and rights have to be vindicated. Beyond
this, modern courts of justice devote much of their
best labour and skill to quiet non-contentious or not
fully contentious work of which the public at large,
with its dramatic and criminalist view of legal pro-
ceedings, is almost unaware. The administrative
business of courts of equity and probate jurisdiction
is of this kind. Such work is directed to defining
and preserving the rights of parties rather than
enforcing them. In many cases there is no hostile
contention at all; the parties only want to be
certified what their rights are. In these processes,
as well as in the coarser and more conspicuous ones
of litigation between adversaries, duties and rights
are constantly modified and transfoi-med. One duty
or set of duties is discharged or extinguished and



78 FIRST BOOK OF JURISPRUDENCE chap.

another arises. After judgment given the duties
and claims are not the same as before. There is a
new duty, that of satisfying the judgment. And
herein the State, through its judicial and executive
officers, has its own active and more or less in-
dependent part, at least in all modern systems.

Thus we need a whole machinery of auxiliary
rules ^ to guide the citizen in seeking the aid of
courts of justice, and to regulate the powers and
discretion of the court itself. In criminal affairs the
need is no less. The commonwealth is supreme and
can punish offenders, but it must punish according
to law. Nay, we require security that penal law
shall be abundantly just. It is better that some
offenders should go scot-free than that condemnation
and punishment should seem arbitrary. When we
consider a system of law from the citizen's point of
view rather than the lawyer's, as a material element
in the political stability of the commonwealth, we
may almost say that certainty in procedure is more
important than certainty in the substance of law.

We see then that the mere sum of existing duties

^ Procedure has been judicially described as ''the mode of pro-
ceeding by which a legal right is enforced, as distinguished from
the law which gives or defines the right, and which by means of
the proceeding the Court is to administer — the machinery ^s
distinguished from its product" : Lush, L.J., in Poyser v. Minors ;
(1881) 7 Q.B. Div. 329, 333. \\



Ill THE SUBJECT-MATTER OF LAW 79

and rights is not the hiw, nor even a separable or
working portion of the law. It is but one element,
the positive or static element as one might call it
In order to build up the organic life of law we have
need of the genetic element, the principles which
determine the positive rules in their concrete applica-
tion to persons, acts, and events ; and of the dynamic
element, the rules whereby legal consequences are
made manifest and worked out. Positive rules of
law tell us what is just ; determining rules (which
we might also call the law of Title, using that word
in the largest sense) point out what is the justice of
the case in hand ; the rules of procedure show us
how justice is to be done.

The most important branches of the law of Pro- Pleading

- _ aud evi-

cedure are the rules of pleading and the rules of deuce,
evidence. It is obvious that, if litigation is to be
concluded at all, a court of justice must have some
kind of rule or usage for bringing the dispute to one
point or some certain points, and for keeping the
discussion of contested matters of fact within reason-
able bounds. Eules of pleading are those which the
parties must follow in informing the court of the
question before it for decision, and in any case of
difficulty enabling the court to define the question
or questions. Kules of evidence are those by which



80 FIRST BOOK OF JURISPRUDENCE chap.

the proof of disputed facts is governed and limited.
In English practice the sharp distinction between the
office of the court as judge of the law and the jury
as judge of the facts has had a profound effect in
shaping and elaborating both classes of rules. Indeed
it may be said to have created our peculiar law of
evidence, for where a judge deals freely with both
law and facts, as in the old Court of Chancery and
its successor the Chancery Division, no need is felt,
except as to definite requirements of form, for laying
down hard and fast rules outside the general tradition
of judicial discretion. Pleading, down to our own
days, was a highly artificial system of which one
object, sought by advocates for both good and bad
reasons, was to obtain clear decisions of the court on
points of law disengaged from contest on the facts.
In the matter of evidence it was the interest of the
court, the profession and the public alike to keep the
jury within the bounds of the law as laid down to
them by the judge, to prevent them from being in-
fluenced by mere gossip, and to guard the independ-
ence of witnesses while providing effectual means for
testing their credibility. These objects were not
attained in either case without drawbacks. Eules
intended only for guidance were handled as if they
were ends in themselves, and used as mere counters



Ill THE SUBJECT-MATTER OF LAW 81

in the game of skill between advocates. The in-
tricacies of pleading became a scandal, and mischief
of the like sort, though comparatively slight, left its
mark on the rules of evidence also. Pleadincr has
now been reduced to the simplest forms — yet not
always to very siinple practice — in England and
many other English-speaking jurisdictions ; but our
law of evidence, in the opinion of those who have
studied it most, is still too complicated.

It is a rather significant fact that the English
writers who first asserted the superiority of their
own system over the continental did not rest their
claim on the results being more just in themselves,
but on the expedition of English courts as against
the interminable delays of the written civilian pro-
cedure. Practical justice, in our ancestors' mind,
was the art " how to abridge process and to find how
that long suits in law might be made shorter." ^ In
our modern zeal for complete and elaborate investiga-
tion we are perhaps too apt to forget their wisdom.

Finally, a summary warning may be given against
the error, believed to be rather common, of supposing /
that lawyers command any peculiar means of discover-

^ Sir T. Smith, De Repuhl. Anglomm, ii. 14. This does not \
apply to the Court of Chancery or the ecclesiastical courts, nor do
the more part of the general statements about English procedure
to be found in our authors.

G



82 FIRST BOOK OF JURISPRUDENCE chap.

ing the truth. The one real advantao-e of courts of



justice over private inquir^s^ is that thej can compel
witnesses to attend and answer questions, and persons
. in possession of documents to produce them. Other-
wise the science of law does not profess to furnish
us with any special instrument of research or with
scales for weighing the grounds of probability. In a
question outside the courts a lawyer's judgment may
be sharpened, and his liability to deception and mis-
take diminished, by frequent and critical familiarity
with disputed facts and human testimony ; but that
is all. In fact, good or successful lawyers have often
been poor and inaccurate historians, or have shown
a plentiful lack of critical discernment on other
subjects. Technical rules and apparatus of all kinds
are only aids, in the last resort, to the decisive
exercise of common sense.
Substan- What wc have spoken of as the positive law of

Adjective dutics aud rights is commonly called Substantive
Law. The law of " determining " rules, which has
not in English any technical or generally accepted
name, is usually and conveniently treated as
auxiliary to the substantive law, and attached, for
purposes of exposition and reference, to its various


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Online LibraryFrederick PollockA first book of jurisprudence for students of the common law → online text (page 5 of 22)