Jurisprudence

§ 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 In its concrete sense, on the other hand, we say that Parliament has enacted or repealed a law.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.

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.

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.

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]