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 CHAPTER II.

THE LAW.

§5. The Definition of Law.

The law is the body of principles recognised and
applied by the state in the administration of justice.
Or, more shortly : The law consists of the rules re-
cognised 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 conve-
niently 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 defi-
nition 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hand, we say that Parliament has enacted or repealed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-exten-
give 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 prin-
ciples. That a will requires two witnesses is not rightly
spoken of as a law of England ; it is a rule of English
12 THE LAW.

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 Contitental languages possess distinct
expressions for the two meanings. Law in the concrete
is lex, loi, gesetz, legge. Law in the abstract is jusl
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 con-
crete 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 Conti-
nental 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 enquiry 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 objec-
tions. In the first place, it involves a useless and em-
barrassing 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
 THE LAW. 13

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 inqui-
rers 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.1

§ 6. The Administration of Justice.

We have defined the law by reference to the adminis-
tration of justice. It is needful, therefore, for the pur-
poses of such definition, to obtain here some under-
standing of the essential nature of this function of the
state, though a complete analysis of it must be deferred
to a later period of our enquiry. 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 wel-
fare 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 in-
dividuals 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

1 On the distinction between law in the concrete and law in the abstract
senses see Polloek's Jurisprudence, pp. 14-17, and Bentham's Principles, P.
.324, n. (Works I. 148, n.).
14 THE LAW.

Treatise on Politics, 1 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 re-
gulative or coercive systems, the purpose of which is
the upholding and enforcement of right and justice by
some instrument of exfernal constraint. One of the
most important of such systems is the administration
of justice by the state. Another is the control exerci-
sed over men by the opinion of the society in which
they live. A third is that scheme of coercion establi-
shed 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 regu-
lative 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 administra-
tion of justice. Censure, ridicule, contempt, are the
sanctions by which society (as opposed to the state) en-
forces 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
1. Tractatus Politicus, I. 5.
 THE LAW. 15

the sanctions of religion, so far as religion assumes the

form of a regulative or coercive system.
Sanctions derive distinctive titles from the systems
whose instruments they are. That employed by the
state in the administration of justice is termed the civil,
political, or legal sanction. The social sanction is that
of public opinion. The international and religious sanc-
tions require no definition. 2
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 restor-
ing 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 is logically subsequent to the Adminis-

tration of Justice.
We have defined the law as the body of principles
observed and acted on by the state in the administra-
tion of justice. To this definition the following objec-
tion 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 re-
ference to the former, and not vice versa. Courts of
2. The term sanction is derived from Roman Law. The sanctio was origin-
ally that part of a statute which established a penalty, or made other provision
in respect of the disregard of its injunctions. D. 48. 19. 41. By an easy
transition it has come to mean the penalty itself.
16 THE LAW.

justice are essentially courts of law, justice in this

usage being merely another name for law. The admin-
istration 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 such commands are enforced. Legislation, direct
or indirect, must precede adjudication. Your defini-
tion 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, accidental, unessential. It consists of the
fixed principles in accordance with which such func-
tion is exercised. It consists of the pre-established and
authoritative rules which judges apply in the adminis-
tration 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 au-
thoritative creed, which they must accept and act on
without demur. This creed of the courts of justice con-
stitutes 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, for-
mulated for the authoritative direction of those to
 THE LAW. 17

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, the 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 ex-
cluded 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 ex-

tent 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
B
18 THE LAW.

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 develop-
ment of a legal system consists in the progressive sub-
stitution of rigid pre-established principles for indivi-
dual judgment, and to a very large extent these prin-
ciples grow up spontaneously within the tribunals
themselves. That great aggregate of rules which con-
stitutes a developed legal system, is not a condition pre-
cedent of the administration of justice but a product of
it. Gradually from various sources-precedent, cus-
tom, statute-there is collected a body of fixed prin-
ciples which the courts apply to the exclusion of their
private judgment. The question at issue in the adminis-
tration 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 in-
creasingly justice according to law, and courts of
justice become increasingly courts of law.

§ 8. Law and Fact.

The existence of law is, as has been said, marked

and measured by the exclusion, in courts of justice, of
individual judgment by authority, of free discretion
by rule, of liberty of opinion by pre-established deter-
minations. The remarkable extent to which such ex-
 THE LAW. 19

clusion is permitted is a very characteristic feature of

the administration of justice ; but such exclusion 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 con-
sideration 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. The latter are those pertaining to the pro-
vince 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 ques-
tion 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 ques-
tion whatever except one of law, whether such ques-
tion 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 mat-
ters 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 fact must inevitably be
used, if the distinction between questions of fact and
questions of law is to be exhaustive and logical.

131
20 THE LAW.

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 abso-
lutely 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 maxi-
mum 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 f act, 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 such clause has already been the
subject of authoritative judicial interpretation. If not, it Is
one of faot 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 determina-
tion. The conclusion may seem paradoxical that a question of
statutory interpretation may be one of fact, but a little con-
sideration 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.
 THE LAW. 21

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 con-
victed 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 conse-
quence 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.
The distinction between matters of fact and matters
of law is thrown into great prominence by the compo-
site 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 excep-
tions. 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, ma.y be, and very often
 22 THE LAW.

is, a pure matter of fact, and nevertheless falls within

the province of the judge. So the question of reason-
able 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 prin-
ciples.1

The validity of a legal principle is entirely indepen-

dent 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 diver-
gence of law from truth and fact necessarily, and in
its full extent, inexpedient. The law, if it would be an
efficient and workable system, must needs be blind to
many things. The legal theory of things must be sim-

1. It is to be noted, therefore, that the distinction between law and fact

depends not on the person by whom, but on the manner in which, the matter
is determined. Yet, although this is so, an illogical and careless usage of
speech sometimes classes ad questions of law all those which are for the decision
of judges, irrespective of the existence or non-existence of legal principles for
their determination.
It is worth notice that questions of fact, left to the determination of judges,
tend to be transformed into questions of law, by the operation of judicial pre-
cedent. In the hands of judges decisions of fact beget principles of law, while
the decisions of juries have no such law creating efficacy. This is a matter
which we shall consider at length in connection with the theory of precedent.
The distinction between law and fact, with special reference to trial by jury,
is very fully considered by Professor Thayer in his Preliminary Treatise on the
Law of Evidence, pp. 183-262.
 THE LAW. 23

pler and less elaborate 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 com-
plete 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,
such principle may or may not be true. So far as it is
untrue, the truth of things is excluded by the legal
theory of things. In like manner, that which is con-
sidered right or reasonable by the law may be far from
possessing these qualities in truth and fact. Legal
justice may conflict with natural justice. A legal
wrong may not be also a moral wrong, nor a legal duty
a moral duty.

§ 9. The Justification of the Law.

We have seen that the existence of law is not essen-
tial to the administration of justice. Howsoever expe-
dient, it is not necessary, that this function of the state
should be exercised in accordance with those rigid prin-
ciples 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
24 THE LAW.

and justification of the law-to consider the advan-

tages and disadvantages of this substitution of fixed
principles for the arbitriun judicis in the administra-
tion of justice-in order that we may be enabled to
judge whether such 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. Too often in reality they
fall far short of this ideal. Too often they " turn judg-
ment 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 con-
flict between law and justice. Wherefore it is needful
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 impor-
tant not only that judicial decisions should be correct,
distinguishing accurately between right and wrong,
and appointing fitting remedies for injustice, but also
 THE LAW. 25

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. Such prevision is impos-
sible unless the course of jnstice 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 main-
tenance 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 re-
quires 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
26 THE LAW.

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 such
civilisation as we have now attained to, any such
attempt to substitute the deliverances of natural
reason for predetermined principles of law would lead
to chaos. "Reason," says Jeremy Taylor, ' "is such
a box of quicksilver that it abides nowhere ; 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 disturb-
ing influence of improper motives on the part of those
entrusted with judicial functions. The law is neces-
sarily 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 hairsbreadth is visible to all men ; but within
the sphere of individual judgment the differences of ho-
nest opinion are so manifold and serious that dishonest
opinion can pass in great part unchallenged and un-
detected. 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
1. Ductor Dubitantium (Works. XII. 209).
 THE LAW. 27

maintenance of those principles. But when courts of

justice are left to do that which is right in their own
eyes, such 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,1 "cannot assume to
itself a power to rule by extemporary decrees, but is
bound to dispense justice and decide the rights of the
subject by promulgated standing laws and known
authorized judges." So in the words of Cicero,2 "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 Hooker8 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 inter-
national disputes to arbitration, and the loyal submis-
sion of nations to awards so made, are possible only in
proportion to the development and recognition of a
definite and determinate body of international law.
The authority of the arbitrators is naught ; that of the
iaw 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
1. Treatise of Government, II. 11. 136.
2. Pro Cluentio, 58. 146.
8. Ecclesiastical Polity, I. 10. 7.
 28 THE LAW.

of justice into the spirit of law-abidingness, will the in-

fluence of the judicature rise to an efficient level, and
the purposes of civil government be adequately ful-
filled.

Finally, the law serves to protect the administra-

tion 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 expe-
rience 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,' " is the very thing which is by
good laws forbidden."

§ io. The Defects of the Law.

Such then are the chief advantages to be de
rived 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 with-
out doubt a remedy for greater evils, yet it brings with
it evils of its own. Some of these are inherent in its
very nature, others are the outcome of tendencies
1. Rhetoric, I. 15. 12. See also Bacon, De Augmentis, Lib. 8. Aph. 58
Neminem oportere legibus esse sapientiorem.
 THE LAW. 29

-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 con-
centration of attention upon the more essential
elements which these cases have in common. We can-
not 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, with-
out first taking account of the possibly disturbing
influences of the eliminated elements. In law it
is otherwise. 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 cun-
ningly a legal rule may be framed, there will in all pro-
bability be some special instances in which it will work
hardship and injustice, and prove a source of error in-
stead 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 tree and just in every case.
30 THE LAW.

If we are to have general rules at all, we must be con-

tent to pay this price.
The time-honoured maxim, Summum jus est summas
injuria, is an expression of the fact that few legal prin-
ciples 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. 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
the greater is the difficulty and the 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 conser-

vatism. The former is the failure of the law to con-
form 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. 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 cir-
cumstances, and that which is taken to-day for wisdom
 THE LAW. 31

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, which for better or worse are in process of
constant change. 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. 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 counter-
acting 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 im-
material 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. When-
ever the importance of a thing in law is greater than
its importance in fact, we have a legal formality. The
32 THE LAW.

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 mini-
mis non curat lem 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 civilized existence, a
very considerable degree of elaboration is inevitable.
Nevertheless the gigantic bulk and bewildering diffi-
culties 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 develop-
ment, 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 sub-
tilty and elaboration is one which specially affects a
system which, like our own, has been largely developed
by way of judicial decisions. It is not, however, an
essential defect of the law ; 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 be-
 THE LAW. 33

comes 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 legal 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 con-
trol, and in course of time the domain of legal principle
comes to include much that would be better left to the
arbitrium of the courts of justice. At a certain stage
of legal development, varying according to the particu-
lar subject-matter, the benefits of the law begin to be
outweighed by those elements of evil which are in-
herent in it.

Bacon has said, after Aristotle :1 Optima est lex

quae minimum relinquit arbitrio judicis. However
true this may be in general, there are many depart-
ments 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 depart-
ments judicial discretion has been freed from the bonds
of legal principles. Forms of action have been aboli-
shed ; rules of pleading have been relaxed ; the credi--
bility 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

1. Bacon, De Augmentis, LAb. 8, Aphorism 46 ; Aristotle's Rhetoric, I. 1. 8.

C
34 THE LAW.

uniformity which once disgraced our criminal law ; and

the future will see further reforms in the same direc-
tion.

We have hitherto taken it for granted that legal

principles are necessarily inflexible-that they are
essentially peremptory rules excluding judicial discre-
tion 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, how-
ever 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 circumstan-
ces the courts of justice should deem reasonable or re-
quisite. 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 other-
wise." 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 suffi-
cient 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
 THE LAW. 35

most part guide judicial discretion, instead of exclud-

ing 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.

01