Popular Science Monthly/Volume 5/September 1874/Materials of the Science of Law

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IN order to ascertain what are the materials of the Science of Law, it will be well to cast a glance at the subject-matter, in its rudest and most inartificial shape, to which the science relates. For this purpose the case may be taken of a nation in what may be called the early manhood of its life, after all the early struggles for its self-conscious existence, or for its independence, are over; and yet, before it has developed within itself all the complicated machinery of a highly-organized commercial and social life. In such a state there must, by the very hypothesis, be a more or less steadily fixed government, whether that government approach more to a monarchical, or an aristocratical, or a democratical type. The stability of the state, and its self-dependence, imply agriculture, and agriculture implies property or ownership. The division of labor, again, which this economical condition presupposes, involves the habit of making contracts, even though they be of the most elementary form. The social condition cannot but rest upon a previously-developed, though now strongly-fortified, domestic condition, and this implies the fact of marriage, and the relations of husband and wife, parent and child, brother, sister, uncle, aunt, nephew, niece, and the like. The still remaining anarchical tendencies of certain individual members of the state, lagging behind the rest, will generate occasional acts of violence, threatening, directly or indirectly, the very life and existence of the state. These acts will excite the horror of all the more orderly members of the community, and will be denominated by some such term as crimes.

It is obvious that the characteristic classes of facts, which have just been alluded to, are so general and simple, that their necessary occurrence at a certain epoch, in the progress of every state, may be predicted as a certainty. These facts, however, in themselves, are of the utmost possible moment, and involve, by their permanence and universality, the elementary ingredients of a science of law.

It will be seen that these facts, looked upon as a whole, imply, first, a certain number of definite relations of persons to one another, whether as governors or governed, husbands or wives, parents or children, or as otherwise allied by blood or marriage. Secondly, these facts involve certain determinate relations between the persons in the community, in respect of the things (or physical substances) appertaining to the community as a whole. These things, severally, are owned by one or another, and not by the rest. The ownership of these things is the subject-matter of private arrangements and contracts between different members of the community. The violent or fraudulent abstraction of a thing owned from the owner may be one of the acts on the general prevention of which the very life of the community is held to depend, and as such is denominated a crime.

Again, the classes of facts already enumerated have two distinct sides to them, one touching the outward lives of members of the community, that is, their acts; the other touching their inward lives, that is, their thoughts and feelings. Over the former of these sides the whole of the community can, by its aggregate pressure, exert a considerable amount of force, of a specifically ascertained quantity and quality. Over the latter side, that touching the thoughts and feelings of individual members, the utmost direct pressure, consciously exerted by the community, is of the feeblest efficacy, and, at the best, indefinite and precarious in the highest degree. The sphere of action of the community, with respect to the former, or the acts of men, is that of law. The sphere of action with respect to the latter, that is, the thoughts and feelings, though not exclusive of acts, is morality. The relations of these two spheres to each other will be investigated in the next chapter.

In the mean time, the following conclusions have been reached: It appears that the characteristic energy of every state consists in the reciprocal influence upon each other of the corporate whole, and the constituent elements, in respect of certain definitely assignable classes of human action. These classes of action will either have reference to things or physical substances, as objects of ownership or use, or have no such reference. The actually subsisting relationship to each other of the corporate whole, and the constituent personal elements, depends upon the form of government which casually happens to prevail.

The influence of the constituent personal elements of the state upon its governing authority, as representing, at any epoch, the corporate whole, is exhibited, first, in the selection (whether conscious or unconscious) of that governing authority according to its specific modifications; and, secondly, in the incessant control (conscious or unconscious) of that authority, by which the limits of its free action are, at every moment, defined. The influence of the governing authority, on the other hand, on the constituent personal elements of the state—that is, upon its so-called "subjects"—is exerted through two separate channels: one that of administration; the other that of law. In other words, the purposes of government are effected either through the medium of occasional and, as it were, spasmodic injunctions, or through general rules.

The limits, within which any given governing authority can venture to issue occasional injunctions, must be determined, as has already been seen, by its actual relations to all the constituent personal elements of the state. These limits will never be precisely determined in language, though they will be marked with tolerable exactness in fact, and instinctively appreciated by all persons concerned in either enlarging or protecting them.

The determination of these limits of administrative authority might be looked upon as forming one great branch of the general rules which constitute the other field of the appropriate activity of the government. It composes a large portion of what is called "constitutional law." The anomaly, however, attaching to this extension of the term "law" is obvious, inasmuch as, if the name "law" be given to the body of general rules through which a government exerts its appropriate activity, the same term "law" cannot be simultaneously applied to the limits affixed to its freedom of action. But this objection, when once understood, is of little practical importance. It is sufficient to establish that there are certain definite limits which circumscribe the free action of every governing authority, and that these limitations admit of being formulated into more or less precisely articulated propositions. Such propositions, capable as they are of being handled, interpreted, and enforced, in courts of justice, have all the essential qualities that belong to the general rules framed by the governing authority itself, for the guidance of the conduct of all persons submitted to its dominion.

The topics of these general rules or laws will be those matters which have already been described as essentially inviting the direction of the corporate strength of the community. Such matters are the relations of family life, so far as outward actions and public decorum are involved, the security of property, the protection of individual liberty, the enforcement of contracts, and the prevention of those violent and exceptional excesses denominated crimes.

At a very early period in the history of the community, the interest that each citizen has in the wise and effectual regulation of such matters as these becomes conspicuous to all, and more especially to those usually, or, on the average, more advanced and intelligent members of the community who find themselves charged, through, it may be, a series of political vicissitudes, with the duties of government. It is probable that these several and various objects will attach to themselves, at different epochs, a very unequal and disproportionate share of attention.

The security of property may alternate with security of the person as an object of governmental care; and the classification of crimes and civil injuries, or even of crimes and religious offenses or sins, may be, in the highest degree, irregular and unsystematic. The vices, the selfishness, the ignorance of individual rulers, will, from time to time, bring into relief some classes of laws to the disparagement or neglect of others. At one epoch a state will suffer from having too few laws, at another from having too many. Particular classes of persons may lose or gain at one period of legislation, and other classes may lose or gain at another. These eras and disasters are of none the lighter consequence that they have been universal. It is in spite of them, and not by means of them, that states have finally endured and fought their way to a climax of intelligent legislation and conscious political life. In the case of such states, the heart of the people, as estimated from generation to generation, has been sound, and the heads of their rulers wise. The laws have gradually been adapted to promote individual liberty, and not to impair it; and the province of government has been so mapped out as to make the government an institution conducive to the good of the people, and not a mere organ for the sacrifice of a nation to a class.

It will have been seen, in the above description of universal phenomena, that a purely abstract mode of treatment has been adopted. So far as universally confessed historical facts are presupposed, the truth of such facts is boldly assumed. But the main basis of the arguments are the elements of human nature itself, as they are written, not only in the venerable documents of ancient history, but on the face of every traveler's narrative, of every ancient body of laws, of every honored institution subsisting in the midst of the national life of the most advanced countries of Europe. It is obvious, then, that the generality and permanence of the momentous facts above described afford the groundwork of a great science, the Science of Law.

This science is distinguishable from the Science of Ethics, to which it may be coördinated, as well as from the Science of Politics, to which it is subordinated. The materials of the science are: a description of—1. The essential institutions of human society, by the use of which the objects of that society are carried out through the medium of government; 2. The nature, conditions, and limits of law as an expression of that side of governmental action which consists in the enumeration of general rules of action; 3. The accidents of law, such as language and interpretation, terminology, and devices for legislation.

When these materials are carefully scrutinized, it will be found that they are composed of elements as permanent and universal as the elements of human nature itself. All that is arbitrary and idiosyncratic for any particular state is banished from the inquiry. The surplus is as applicable to one state as to another; to the most immature system of law as to the most advanced; to an Eastern as to a Western community; to the modern as to the ancient world.

It is curious that this universality and permanence have been generally conceded to ethical truths, and have latterly been more and more freely conceded even to political phenomena, modified indefinitely, as these must needs be, by the excessive complexity of the conditions which constitute them. But the region of law has, up to a recent time, been held to be the natural home of caprice and irregularity. Some writers, indeed, such as Montesquieu and M. Charles Comte, have quoted the varying laws in the different countries of the world with almost an ironical gladness at their bizarre and party-colored appearance. It has been very generally held that governments have been created by violence or accident, and have reflected the vices of their origin in the reckless selfishness of their legislation. It has been said again and again that force is the origin of all social institutions, and that the modes of directing that force have been determined in every state by the chance breath of political caprice or passion. It has been forgotten, or has escaped notice, that the caprice has been accidental and the order is essential.

It will be noticed that there are two distinct conceptions of human society which are both possible, if not both true, and that the existence of a Science of Law follows as a necessary consequence of the adoption of one conception, but does not follow from the adoption of the other. It may be said, on one theory, that the composition and action of human society, as exhibited in the state, are due to nothing else than the aggregation and mutual repulsion of a number of independent and self-conscious atoms which, by a gradual process of experience, have discovered that the largest measure of individual well-being is solely attainable through certain special modes of coöperation. These modes of coöperation take a variety of forms, but the most signal and important are those implied in the facts of government, ownership, the composition of the family, and contract.

According to the theory now under review, every one of these facts is merely a device for carrying out ends believed to be beneficial. The facts might be made to vary indefinitely, and it is alleged to be conceivable that any one of them, and perhaps every one, might be absent altogether and a new set of devices take their place. It is held to be possible that the devices themselves will, at no remote period, be discovered to be rude and insufficient, and that many superior substitutes could be found for them, even if they do not already exist in certain societies, the constitution of which is as yet unexplored. The machinery by which each one of these classes of facts is called into being, and made to subserve its end, is physical force, taking the form of what is called law. The physically stronger part of the community compels the weaker to obey a certain form of governing authority, to recognize certain descriptions of ownership, to conform their lives to certain canons of domestic life, and to observe certain regulations of the market and the exchange. The rules, indeed, enforced by law are, for the most part, so transparently beneficial to all concerned that the pressure of law becomes very slightly felt, and the physical force which supports it is comparatively seldom called into play. Nevertheless, in the theory now being enunciated, force is not only present, but the main originator and upholder of every portion of the fabric of social order. It is obvious that, according to this view, there can only be a Science of Law in a very restricted sense. In the largest sense of the expression there can be none. Instead of law having any precise and determined character impressed upon it and upon its operation, through the existence of a certain number of immovable social institutions, which react back as effectually upon law as law acts upon them, these institutions are nothing more than the creations of law itself, or rather the accidental shadows which law happens to cast.

The opposite theory of society starts with the conception that society is not developed through the conflicting passions of individual atoms striving to organize themselves after a fashion which shall best promote their own well-being, but is from first to last a subsisting organization made up of constituent groups reciprocally acting and reacting upon one another. The elemental forms and tokens of this organism are family life, ownership, and government. Each of these presupposes coöperation and contribution at all stages in the history of society, though under different forms; each of them implies the distribution of mankind into small groups rather than into large masses of individual atoms. It is difficult to say that any one of these original elements has precedence in point of time over any one of the others. It is more true to say that, when once they are all found to be in existence, the state has then and there come into being. A very short time passes before another element—that of contract—implied in all progressive industrial coöperation, also comes to the surface.

There are thus formed in the primitive state a certain number of elemental institutions which may be looked upon, not in any sense as the creation of law, but as existing independently of law; for the spontaneous arbitrary action of a primitive government resembles what is now called "administration" rather than law. It is true, however, that law, in the immature form of regulated usage, will be found to be one of the earliest of all the ingredients of the state. It will be, indeed, even from the first, the regulator and the guide of the other institutions with which it is contemporary, but is in no sense their parent or solitary guardian. Nevertheless, as time goes on, the support that law gives to the integrity of family life, to property, to industrial and commercial relations, and to government, becomes important in the highest degree. Indeed, the prominence of the legal supervision exercised in a highly-developed state over all these departments, affords an apology for the familiar notion that they are all the arbitrary creation of law and depend for their continued subsistence upon no greater or deeper sanction than that of physical force.

If it be true, then, as this last theory asserts, that in every state there are a limited number of great pivots, or turning-points, round which human society revolves, and the law only plays a subordinate part in regulating and protecting the grand mechanism, it is obvious that a permanent and universal body of facts relative to law may be at once anticipated to result from the permanence and universality of the great groups of facts with which it happens to be mainly conversant. Experience and observation confirm this anticipation. Every known system of law, both of ancient and modern times, in all parts of the world, and in all stages of national development, distributes itself into the main divisions of laws determining—1. The nature, functions, and limitations of the governing authority; 2. The forms and conditions of ownership, whether of land or other things; 3. The relations of family life; and 4. The binding force of voluntary promises or contracts. These several topics afford a natural method of distribution applicable to every legal system whatever; and each several topic, according to its peculiar nature and to the incidents by which it is internally characterized, affords a distinct congeries of logical subdivisions which is invariably reproduced over and over again.

It is, then, in this identity of structure of human society in every state, that law discovers for itself the basis of its constantly-recurrent methods of classification and its unchangeable conceptions. There are, however, certain other more obvious grounds for the permanence and invariability of legal ideas and methods which follow from the identity of man's physical, logical, and ethical structure in all times and in all parts of the world, within the limits to which observation has hitherto extended.

Law in its outward character consists of a body of commands addressed to individual members of the human race forming the component elements of a state. The issuing of commands involves the possibility of obedience or of disobedience, and therein supposes the presence of will, of liberty of action, and of the amount of intelligence needed to understand the purport of the commands. Attention is thereby compelled to the exceptional cases in which the terms of the command cannot be understood, whether through temporary incapacity, as infancy, error, or passing disease; or through permanent incapacity, as life-long insanity; or in which the terms cannot be complied with, through the pressure of external force, the interference of persons actuated by fraudulent motives, or the obstruction of physical facts creating the condition of impossibility.

Supposing, however, that the command can be understood and can be obeyed, there will be nevertheless cases presented in which the question has to be decided whether, as a matter of fact, the command, in a given case, was obeyed or not. Here are let in all the obstacles inherent in human nature itself to acquiring a correct knowledge of facts. All the current imperfections of human observation, all the insufficiency of language and expression, all the chicanery and double-mindedness, all the dullness of intellect, by which it becomes so hard to pass truth on unimpaired from hand to hand, are present to hamper the effort to apply and execute a single law. The several forms of these obstacles, however, are not peculiar to any one state nor to any one period, however their magnitude may vary. They are universally present, and can be classified under a comprehensive scheme.

But another and universal class of difficulties in executing a law has yet to be mentioned. It may be uncertain what are the form and intent of the law itself. If the law is written, the terms of the language in which it is written may admit of all sorts of ambiguity or vacillation in meaning, or, however certain the terms themselves, the opposed disputants may insist on different senses being put upon the whole text of the command.

If the law is unwritten, and has to be gathered either from traditional report or by reference to the rules which have been laid down on previous occasions in cases resembling the one now calling for decision, opportunity is presented for all sorts of logical conflict as to the import of the previous cases cited in illustration, or as to the value of the analogies insisted upon.

In other words, a series of logical processes is involved in the interpretation of every law, whether written or unwritten, and the correctness of these processes may furnish ground for indefinite doubt and argument. But these logical processes are permanent and universal, and the application of them to the interpretation of law imparts their own permanence and universality to the Science of Law.

It has thus been seen that the intellectual and the ethical nature of man in all nations tends to impart a scientific character to the study of the laws by which his social actions are regulated. The physical facts of his life and bodily constitution tend to the same end. His birth, his death, his age, his liability to diseases and accidents of all sorts, his capacity of locomotion, and his several relations to time, space, quantity, measurement, and the like, further discover fresh categories into which portions of the laws which regulate his conduct, and describe his situation, under varying circumstances, in relation to his fellows, necessarily fall.

Besides the elements of the Science of Law which are discoverable within the limits of a single state, and even of the most miniature one, there are others which are. developed only in the course of time, as states multiply in number, and as their relations to one another become strictly defined.

The relations of states to one another are twofold in character. Either the governments of the different states have relations to each other, or the individual citizens of the different states have relations to each other.

The first class of relations gives occasion to what is called Public International Law, and the latter to what is sometimes called, with less precision. Private International Law.

It is plain that, if the rules regulating the relations of states are true law in any sense, they are identical for all the states subject to them. The same ought to be the case with respect to the rules regulating the recognition of the laws of foreign states. But there are certain obstacles which have, in fact, prevented the uniformity of substance which might have been anticipated in this region of law.

The rules of the species of law last indicated come into being through the moral claim that is presented either by persons who, not being citizens of a given country, come to the courts of justice of that country, while sojourning there, to have rights recognized and protected which they have acquired in their own country; or by those who, being citizens of one country, but having acquired rights while sojourning in other countries, come to the courts of their own country to have those rights recognized and protected.

On every occasion for inventing rules applicable to these cases, the question is presented whether the courts of justice of a country shall recognize rights acquired either by their own citizens or by foreigners in other countries; or, in other words, whether the laws of other countries giving validity to those rights shall or shall not be held to be effectual in the courts of justice which are invited to interfere. The cases are generally further complicated by the nature of the processes and transactions out of which the asserted rights spring. Part of the transactions may have taken place in one country, and part in another, and the remedy may be sought for in a third. Or the person seeking the remedy, or against whom the remedy is sought, may be the citizen of one country, have his permanent residence or domicile in another country, and be temporarily sojourning in the country in which the remedy is sought.

It is obvious, from a mere enumeration and description of the cases which give rise to rules, that the purpose of the existence of these rules is always the facilitation of intercourse between the citizens of different states, and the prevention of practical injustice. These objects must be served in the highest degree, if the greatest possible uniformity of principle obtain in the courts of all nations in creating and applying the rules. In this way reasonable expectations are likely to be best satisfied, and fraudulent evasions of the law of any particular country are likely most effectually to be prevented. It happens, however, that, owing to the political jealousies that have have hitherto kept apart the most considerable nations of Europe, and to the foolish prejudice with which individual nations have fostered principles of law familiar in their own courts, however alien to the practice of all other countries, there have hitherto been made only very imperfect attempts at uniformity either of principle or practice in this respect.

It is probable that an increasingly clear apprehension of the logical relations of the different branches of law, whether as touching upon ownership, contract, family life, or crime, will produce the effect of assimilating the substance as well as the form of the rules of law forming the so-called Private International Law of different countries. This end is perhaps one of the most practical and desirable that the Science of Law could set before itself, though it will need at every point the aid of the Science of Legislation. This subject will be recurred to again in the chapter on Laws of Procedure.

It appears, then, from the above investigation, that there is a true Science of Law based upon the irrefragable, permanent, and invariable facts of the constitution of human society, as exhibited in the state of the physical, logical, and ethical constitution of man. The objects of the cultivation of this science are, first, the ready understanding of every system of national law, through a firm hold being obtained upon its technical structure, its topics, its logical subdivisions, and the methods of its application; secondly, an orderly view of the whole system of law of any one country in order to its comprehensive amendment, reform, and intelligent reconstruction in obedience to the needs of a new political and social era; thirdly, the attainment of a clearly expressed, rational, and well-developed system of Public International Law; and, fourthly, the reduction of the irregular, and sometimes chaotic, or arbitrary, rules of so-called Private International Law, as adopted in different states, to a uniform system, the same for all states.

  1. From advance sheets of "The Science of Law," forming Vol. X. of the "International Scientific Series."