Jurisprudence

The purpose of the following pages is to consider, in respect of their origin and relations, the various names and titles which have been borne by the law in different languages. This seems an inquiry fit to be undertaken in the hope that judicial terms may be found to throw some light upon the juridical ideas of which they are the manifestation. A comparison of diverse usages of speech may serve to correct misleading associations, or to suggest relations that may be easily overlooked by any one confining his attention to a single language.

The first fact which an examination of juridical nomenclature reveals, is that all names for law are divisible into two classes, and that almost every language possesses one or more specimens of each. To the first class belong such terms as jus, droit, recht, diritto, equity. To the second belong lex, loi, gesetz, legge, law, and many others. It is a striking peculiarity of the English language that it does not possess any generic term falling within the first of these groups; for equity, in the technical juridical sense, means only a special department of civil law, not the whole of it, and therefore is not co-extensive with jus, droit, and the other foreign terms with which it is classed. Since, therefore, we have in English no pair of contrasted terms adequate for the expression of the distinction between these two groups of names, we are constrained to have recourse to a foreign language, and we shall employ for this purpose the terms jus and lex, using each as typical of and representing all other terms which belong to the same group as itself.

What, then, are the points of difference between jus and lex; what is the importance and the significance of the distinction between the two classes of terms? In the first place jus has an ethical as well as a juridical application, while lex is purely juridical. Jus means not only law but also right. Lex means law and not also right. Thus our own equity has clearly the double meaning; it means either the rules of natural justice, or that special department of the civil law which was developed and administered in the Court of Chancery. The English law, on the other hand, has a purely juridical application; justice in itself, and as such, has no claim to the name of law. So also with droit as opposed to loi, with recht as opposed to gesetz, with diritto as opposed to legge.

If we inquire after the cause of this duplication of terms we find it in the double aspect of the complete juridical conception of law. Law arises from the union of justice and force, of right and might. It is justice recognised and established by authority. It is right realised through power. Since, therefore, it has two sides and aspects, it may be looked at from two different points of view, and we may expect to find, as we find in fact, that it acquires two different names. Jus is law looked at from the point of view of right and justice; lex is law looked at from the point of view of authority and force. Jus is the rule of right which becomes law by its authoritative establishment; lex is the authority by virtue of which the rule of right becomes law. Law is jus in respect of its contents, namely the rule of right; it is lex in respect of its source, namely, its recognition and enforcement by the state. We see, then, how it is that so many words for law mean justice also; since justice is the content or subject-matter of law, and from this subject-matter law derives its title. We understand also how it is that so many words for law do not also mean justice; law has another side and aspect from which it appears, not as justice realised and established, but as the instrument through which its realisation and establishment are effected.

A priori we may presume that in the case of those terms which possess a double application, both ethical and legal, the ethical is historically prior, and the legal later and derivative. We may assume that justice comes to mean law, not that law comes to mean justice. This is the logical order, and is presumably the historical order also. As a matter of fact this presumption is, as we shall see, correct in the case of all modern terms possessing the double signification. In the case of recht, droit, diritto, equity, the ethical sense is undoubtedly primary, and the legal secondary. In respect of the corresponding Greek and Latin terms (jus, δίκαιον) the data would seem insufficient for any confident conclusion. The reverse order of development is perfectly possible; there is no reason why lawful should not come to mean in a secondary sense rightful, though a transition in the opposite direction is more common and more natural. The significant fact is the union of the two meanings in the same word, not the order of development.

A second distinction between jus and lex is that the former is usually abstract, the second concrete.^[481] The English term law indeed combines both these uses in itself. In its abstract application we speak of the law of England, criminal law, courts of law. In its concrete sense, we say that Parliament has enacted or repealed a law. In foreign languages, on the other hand, this union of the two significations is unusual. Jus, droit, recht mean law in the abstract, not in the concrete. Lex, loi, gesetz signify, at least primarily and normally, a legal enactment, or a rule established by way of enactment, not law in the abstract. This, however, is not invariably the case. Lex, loi, and some other terms belonging to the same group have undoubtedly acquired a secondary and abstract signification in addition to their primary and concrete one. In medieval usage the law of the land is lex terrae, and the law of England is lex et consuetudo Angliae. So in modern French loi is often merely an equivalent for droit. We cannot therefore regard the second distinction between jus and lex as essential. It is closely connected with the first, but, though natural and normal, it is not invariable. The characteristic difference between English and foreign usage is not that our law combines the abstract and concrete significations (for so also do certain Continental terms), but that the English language contains no generic term which combines ethical and legal meanings as do jus, droit, and recht.

RECHT, DROIT, DIRITTO.—These three terms are all closely connected with each other and with the English right. The French and Italian words are derivatives of the Latin directus and rectus, these being cognate with recht and right. We may with some confidence assume the following order of development among the various ideas represented by this group of expressions:—

1. The original meaning was in all probability physical straightness. This use is still retained in our right angle and direct. The root is RAG, to stretch or straighten. The group of connected terms ruler, rex, rajah, regulate, and others, would seem to be independently derived from the same root, but not to be in the same line of development as right and its synonyms. The ruler or regulator is he who keeps things straight or keeps order, not he who establishes the right. Nor is the right that which is established by a ruler.

2. In a second and derivative sense the terms are used metaphorically to indicate moral approval—ethical rightness, not physical. Moral disapproval is similarly expressed by the metaphorical expressions wrong and tort, that is to say, crooked or twisted. These are metaphors that still commend themselves; for the honest man is still the straight and upright man, and the ways of wickedness are still crooked. In this sense, therefore, recht, droit, and diritto signify justice and right.

3. The first application being physical and the second ethical, the third is juridical. The transition from the second to the third is easy. Law is justice as recognised and protected by the state. The rules of law are the rules of right, as authoritatively established and enforced by tribunals appointed to that end. What more natural, therefore, than for the ethical terms to acquire derivatively a juridical application? At this point, however, our modern English right has parted company with its Continental relatives. It has remained physical and ethical, being excluded from the juridical sphere by the superior convenience of the English law.

4. The fourth and last use of the terms we are considering may be regarded as derivative of both the second and third. It is that in which we speak of rights, namely, claims, powers, or other advantages conferred or recognised by the rule of right or the rule of law. That a debtor should pay his debt to his creditor is not merely right, it is the right of the creditor. Right is his right for whose benefit it exists. So, also, wrong is the wrong of him who is injured by it. The Germans distinguish this use of the term by the expression subjectives Recht (right as vested in a subject) as opposed to objectives Recht, namely, the rule of justice or of law as it exists objectively. The English right has been extended to cover legal as well as ethical claims, though it has, as we have seen, been confined to ethical rules.

A.S. RIHT.—It is worthy of notice that the Anglo-Saxon riht, the progenitor of our modern right, possessed like its Continental relatives the legal in addition to the ethical meaning. The common law is folc-riht.^[482] The divine law is godes riht.^[483] A plaintiff claims property as “his by folc-riht,”^[484] even as a Roman would have claimed it as being dominus ex jure Quiritium. The usage, however, did not prosper. It had to face the formidable and ultimately successful rivalry of the English (originally Danish) law, and even Norman-French, on its introduction into England, fell under the same influence. For a time, indeed, in the earlier books we find both droit and ley as competing synonyms,^[485] but the issue was never doubtful. The archaism of “common right” as a synonym for “common law” is the sole relic left in England of a usage universal in Continental languages.

EQUITY.—The English term equity has pursued the same course of development as the German recht and the French droit.

1. Its primitive meaning, if we trace the word back to its Latin source, aequum, is physical equality or evenness, just as physical straightness is the earliest meaning of right and its analogues.

2. Its secondary sense is ethical. Just as rightness is straightness, so equity is equality. In each case there is an easy and obvious metaphorical transition from the physical to the moral idea. Equity therefore is justice.

3. In a third and later stage of its development the word takes on a juridical significance. It comes to mean a particular portion of the civil law—that part, namely, which was developed by and administered in the Court of Chancery. Like recht and droit it passed from the sense of justice in itself to that of the rules in accordance with which justice is administered.

4. Fourthly and lastly we have to notice a legal and technical use of the term equity, as meaning any claim or advantage recognised or conferred by a rule of equity, just as a right signifies any claim or advantage derived from a rule of right. An equity is an equitable, as opposed to a legal right. “When the equities are equal,” so runs the maxim of Chancery, “the law prevails.” So a debt is assignable “subject to equities.”

JUS.—We have to distinguish in the case of jus the same three uses that have already been noticed in the case of recht, droit, and equity.

1. Right or Justice. “Id quod semper aequum ac bonum est jus dicitur,” says Paulus.^[486] From jus in this sense are derived justitia and justum.

2. Law. This is the most usual application of the term, the juridical sense having a much greater predominance over the ethical in the case of jus, than in that of its modern representatives recht and droit. Jus, in its ethical signification, is distinguished as jus naturale, and in its legal sense as jus civile. It is often contrasted with fas, the one being human and the other divine law. Jus, however, is also used in a wider sense to include both of these—jus divinum et humanum.

3. A right, moral or legal: jus suum cuique tribuere.^[487]

The origin and primary signification of jus are uncertain. It is generally agreed, however, that the old derivation from jussum and jubere is not merely incorrect, but an actual reversal of the true order of terms and ideas. Jussum is a derivative of jus. Jubere is, in its proper and original sense, to declare, hold, or establish anything as jus. It was the recognised expression for the legislative action of the Roman people. Legem jubere is to give to a statute (lex) the force of law (jus). Only in a secondary and derivative sense is jubere equivalent to imperare.

The most probable opinion is that jus is derived from the Aryan root YU, to join together (a root which appears also in jugem, jungo, and in the English yoke). It has been suggested accordingly that jus in its original sense means that which is fitting, applicable, or suitable. If this is so, there is a striking correspondence between the history of the Latin term and that of the modern words already considered by us, the primary sense in all cases being physical, the ethical sense being a metaphorical derivative of this, and the legal application coming last. The transition from the physical to the ethical sense in the case of the English fit and fitting is instructive in this connexion. Another suggestion, however, is that jus means primarily that which is binding—the bond of moral and subsequently of legal obligation. But no definite conclusion on this matter is possible.^[488]

Δίκη. τό δίκαιον.—The Greek term which most nearly corresponds to the Latin jus is δίκη. These words cannot, however, be regarded as synonymous. The juridical use of jus is much more direct and predominant than the corresponding use of δίκη. Indeed, we may say of the Greek term that it possesses juridical implications, rather than applications. Its chief uses are the following, the connexion between them being obvious: (1) custom, usage, way; (2) right, justice; (3) law, or at least legal right; (4) judgment; (5) a lawsuit; (6) a penalty; (7) a court of law. The primary sense is said to be that first mentioned, viz. custom. The transition is easy from the idea of the customary to that of the right, and from the idea of the right to that of the lawful. In the case of the Latin mos we may trace an imperfect and tentative development in the same direction.^[489] Professor Clark, on the other hand, prefers to regard judgment as the earliest meaning of δίκη, the other ethical and legal applications being derivatives from this, and δίκη in the sense of custom being an independent formation from the original root.^[490] Such an order of development seems difficult and unnatural. Analogy and the connexion of ideas seem to render more probable the order previously suggested, viz. custom, right, law, and finally the remaining legal uses.^[491]

Θέμις Θέμιστες.—As δίκη corresponds to jus, so θέμις apparently corresponds to fas. While fas, however, preserved its original signification as that which is right by divine ordinance, and never acquired any secondary legal applications or implications, the Greek term proved more flexible, and consequently has to be reckoned with in the present connection. The matter is one of very considerable difficulty, and no certain conclusions seem possible, but the following order of development would seem to commend itself as the most probable:—

1. Θέμις, divine ordinance, the will of the gods. The term is derived from the Aryan root DHA, to set, place, appoint, or establish, which appears also in θεσμός, a statute or ordinance.^[492] This latter term, however, included human enactments, while θέμις was never so used. The Greek term is cognate with thesis and theme, and with our English doom, a word whose early legal uses we shall consider later.

2. Θέμις, right. The transition is easy from that which is decreed and willed by the gods, to that which it is right for mortal men to do.

3. Θέμιστες, the rules of right, whether moral or legal, so far as any such distinction was recognised in that early stage of thought to which these linguistic usages belong.

4. Θέμιστες, judgments, judicial declarations of the rules of right and law.^[493]

LEX.—So far we have dealt solely with those words which belong to the class of jus, namely, those which possess a double signification, ethical and legal. We proceed now to the consideration of the second class, represented by lex. And first of lex itself. The following are its various uses given in what is probably the historical order of their establishment.

1. Proposals, terms, conditions, offers made by one party and accepted by another.^[494] Thus, ea lege ut,^[495] on condition that; dicta tibi est lex,^[495] you know the conditions; his legibus,^[495] on these conditions. So legis pacis^[495] are the terms and conditions of peace: pax data Philippo in has leges est.^[495] Similarly in law, leges locationis are the terms and conditions agreed upon between lender and borrower. So we have the legal expressions lex mancipii, lex commissoria, and others.

2. A statute enacted by the populus Romanus in the comitia centuriata on the proposal of a magistrate. This would seem to be a specialised application of lex in the first-mentioned sense. Such a statute is conceived rather as an agreement than as a command. It is a proposal made by the consuls and accepted by the Roman people. It is therefore lex, even as a proposal of peace made and accepted between the victor and the vanquished is lex. “Lex,” says Justinian, “est quod populus Romanus senatorio magistratu interrogante, veluti consule, constituebat.”^[496]

3. Any statute howsoever made—whether by way of authoritative imposition, or by way of agreement with a self-governing people.

4. Any rule of action imposed or observed, e.g. lex loquendi, lex sermonis. This is simply an analogical extension similar to that which is familiar in respect of the corresponding terms in modern languages, law, loi, gesetz.

5. Law in the abstract sense. Lex, so used, cannot be regarded as classical Latin, although in certain instances, as in Cicero’s references to lex naturae, we find what seems a very close approximation to it. In medieval Latin, however, the abstract signification is quite common, as in the phrases lex Romana, lex terrae, lex communis, lex et consuetudo.^[497] Lex has become equivalent to jus in its legal applications. This use is still retained in certain technical expressions of private international law, such as lex fori, lex domicilii, and others.

It is possible that we have here an explanation of the very curious fact that so celebrated and important a word as jus failed to maintain itself in the Romance languages. Of the two terms jus and lex, bequeathed to later times by the Latin language, one was accepted (loi = lex) and the other rejected and supplanted by a modern substitute (droit, diritto). Why was this? May it not have been owing to that post-classical use of lex in the abstract sense, whereby it became synonymous and co-extensive with jus? If lex Romana was jus civile, why should the growing languages of modern Europe cumber themselves with both terms? The survivor of the two rivals was lex. At a later stage the natural evolution of thought and speech conferred juridical uses on the ethical terms droit and diritto and the ancient duality of legal nomenclature was restored.

6. Judgment. This, like the last and like the three following uses, is a medieval addition to the meanings of lex. We have already seen the transition from law to judgment in the case of jus, δίκη, and θέμις. Legem facere is to obey or fulfil the requirements of a judgment. Legem vadiare, the English wager of law, is to give security for such obedience and fulfilment.^[498]

7. The penalty, proof, or other matter imposed or required by a judgment: lex ignea, the ordeal of fire; lex duelli, trial by battle.^[499]

8. Legal rights, regarded collectively as constituting a man’s legal standing or status. Legem amittere (in English, to lose one’s law) was in early English law an event analogous to the capitis deminutio and infamia of the Romans. It was a loss of legal status, a partial deprivation of legal rights and capacities.^[500]

Νόμος.—As δίκη corresponds to jus and θέμις to fas, so νόμος is the Greek equivalent of lex. We have to distinguish two uses of the term, one earlier and general, the other later and specialised.

1. Νόμος is used in a very wide sense to include any human institution, anything established or received among men, whether by way of custom, opinion, convention, law or otherwise. It was contrasted, at least in the language of the philosophers, with φύσις, or nature. That which is natural is το φυσικόν; that which is artificial, owing its origin to the art and invention of mankind, is τὸ νομικόν. It is often said that the earliest meaning of νόμος is custom. The original conception, however, seems to include not merely that which is established by long usage, but that which is established, received, ordained, or appointed in whatever fashion. Νόμος is institutum, rather than consuetudo.

Νόμος in a later, secondary, and specialised application, means a statute, ordinance, or law. So prominent among human institutions are the laws by which men are governed, so greatly with increasing political development do the spheres and influence of legislation extend themselves, that the νόμοι became in a special and pre-eminent sense the laws of the state. Νόμος was a word unknown to Homer, but it became in later times the leading juridical term of the Greek language. The Greeks spoke and wrote of the laws (νόμοι), while the Romans, perhaps with a truer legal insight, concerned themselves with the law (jus). When, like Cicero, they write de legibus, it is in imitation of Greek usage.

LAW.—Law is by no means the earliest legal term acquired by the English language. Curiously enough, indeed, it would seem not even to be indigenous, but to be one of those additions to Anglo-Saxon speech which are due to the Danish invasions and settlements. Of the earlier terms the commonest, and the most significant for our present purpose, is dom, the ancestor of our modern doom.^[501] A dom or doom is either (1) a law, ordinance, or statute, or (2) a judgment. It does not seem possible to attribute with any confidence historical priority to either of these senses. In modern English the idea of judgment has completely prevailed over and excluded that of ordinance, but we find no such predominance of either meaning in Anglo-Saxon usage. The word has its source in the Aryan root DHA, to place, set, establish, appoint, and it is therefore equally applicable to the decree of the judge and to that of the lawgiver. In the laws of King Alfred we find the term in both its senses. “These are the dooms which Almighty God himself spake unto Moses and commanded him to keep.”^[502] “Judge then not one doom to the rich and another to the poor.”^[503] In the following passage of the laws of Edgar the laws of the Danes are plainly equivalent to the dooms of the English: “I will that secular right stand among the Danes with as good laws as they best may choose. But with the English let that stand which I and my Witan have added to the dooms of my forefathers.”^[504]

Doom is plainly cognate to θέμις. The religious implication, however, which, in the Greek term, is general and essential, is, in the English term, special and accidental. In modern English doom is, like θέμις, the will, decree and judgment of Heaven—fate or destiny; but the Anglo-Saxon dom included the ordinances and judgments of mortal men, no less than those of the gods. Θέμις, therefore, acquired the sense of human law only derivatively through the sense of right, and so belongs to the class of jus, not of lex; while doom, like θεσμός, acquired juridical applications directly, and so stands besides lex and νόμος.

Dom, together with all the other Anglo-Saxon legal terms, including, strangely enough, right itself, was rapidly superseded by lagu, which is the modern law. The new term makes its appearance in the tenth century, and the passage cited above from the laws of King Edgar is one of the earliest instances of its use. Lagu and law are derived from the root LAGH, to lay, settle, or place. Law is that which is laid down. There is a considerable conflict of opinion as to whether it is identical in origin with the Latin lex (leg-). Schmidt and others decide in the affirmative,^[505] and the probabilities of the case seem to favour this opinion. The resemblance between law and lex seems too close to be accidental. If this is so, the origin of lex is to be found in the Latin lego, not in its later sense of reading, but in its original sense of laying down or setting (as in the derivative lectus), which is also the primary signification of the Greek λέγῳ, the German legen, and the English lay.^[506] If this is so, then law and lex are alike that which is laid down, just as Gesetz is that which is set (setzen). This interpretation is quite consistent with the original possession by lex of a wider meaning than statute, as already explained. We still speak of laying down terms, conditions, and propositions, no less than of laying down commands, rules, and laws. Lex, however, is otherwise and variously derived from or connected with, ligare, to bind,^[507] legere, to read,^[508] and λέγειν, to say or speak.^[509]

It is true indeed that by several good authorities it is held that the original meaning of lagu and law is that which lies, not that which has been laid or settled—that which is customary, not that which is established by authority.^[510] The root LAGH, however, must contain both the transitive and intransitive senses, and I do not know what evidence there is for the exclusion of the former from the signification of the derivative law. Moreover, there seems no ground for attributing to lagu the meaning of custom. It seems from the first to have meant the product of authority, not that of use and wont. It is statutum, not consuetudo. As soon as we meet with it, it is equivalent to dom. The analogy also of lex, gesetz, dom, θεσμός, and other similar terms is in favour of the interpretation here preferred.^[511]