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HARVARD

LAW REVIEW.

VOL. IX.

DECEMBER, 26, 1895.

No. 5.

THE

JUSTICE ACCORDING TO LAW.1

HE only essential conditions for the existence of law and legal institutions are the existence of a political community, and the recognition by its members of settled rules binding upon them in that capacity. Those conditions are present in all societies of men who are not mere savages. Even among civilized men, on the other hand, they may be suspended in particular circumstances.

We can get one example by supposing a boat's crew from a wrecked ship, made up of different nationalities in about equal proportions, to land on an island in the high seas which is neither occupied nor claimed by any civilized power. Such a party would, it is conceived, be remitted to what was once called "the state of nature," aided by whatever conventions they might agree upon as appropriate to their situation. A lawyer would probably advise them to consider themselves as still under the law of the ship's flag; but it is difficult to say that this or any other law would have any real authority apart from the agreement of the whole party.

Practically, the law of nature, or, in less ambiguous terms, the common rules of civilized morals and the dictates of obvious expediency, would have to suffice for the present need.

Again, it is not very difficult for civilized men to find themselves, without any violent accident, in places where it is hard to say

1 A public Lecture delivered in the University of Oxford, 1895.

whether any, and, if any, what law prevails in the ordinary sense. Take the case of an English or American traveller, or an Englishman and an American travelling together, in the region of the Khaibar Pass beyond the British frontier post at Fort Jamrud and before Afghan territory is reached. Certainly they are not subject to the law of British India, still less, if possible, to the law of Islam as applied in Afghanistan. Yet the persons and property of those who go up the Pass on the appointed days and with the proper escort are really safer than they would be in some parts of almost any European or American city. But peculiar phenomena of this kind, which are transitory accidents as compared with the ordinary course of civilized life, do not affect the normal operation and effects of civilized law, nor throw any light on its origin. on the other hand, a new social combination, which at first sight may have been precarious, becomes permanent, its members acquire, by convention or by submission to an existing jurisdiction, some permanent form of government and law. The inchoate stages of this process which in fact has taken place in various parts of the world, such as the extreme Western States of America, within living memory- are interesting in their own way, but are hardly within the province of the lawyer. Settled rules and recognized jurisdiction are the lawyer's tests.

If,

Law presupposes ideas, however rudimentary, of justice. But, law being once established, just, in matters of the law, denotes whatever is done in express fulfilment of the rules of law, or is approved and allowed by law. Not everything which is not forbidden is just. Many things are left alone by the State as it were under protest, and only because it is thought that interference would do more harm than good. In such things the notion of justice has no place: the mind of the State is rather expressed by Dante's "guarda e passa." The words "just" and "justice," and corresponding words in other tongues, have never quite lost ethical significance even in the most technical legal context. The reason of this unduly neglected by some moderns for the sake of a merely verbal and illusive exactness is that in the development of the law both by legislative and by judicial processes appeal is constantly made to ethical reason and the moral judgment of the community. Doubtless the servants of the law must obey the law, whether specific rules of law be morally just in their eyes or not; this, however, is only saying that the moral judgment we regard is the judgment of the community, and not the particular opinion of

this or that citizen. Further, some conflict between legal and moral justice can hardly be avoided, for morality and law cannot move at exactly the same rate. Still in a well ordered State such conflict is exceptional, and seldom acute. Legal justice aims at realizing moral justice within its range, and its strength largely consists in the general feeling that this is so. Were the legal formulation of right permanently estranged from the moral judgment of good citizens, the State would be divided against itself.

We may better realize the fundamental character of law by trying to conceive its negation or opposite. This will be found, it is submitted, in the absence of order rather than in the absence of compulsion. An exercise of merely capricious power, however great in relation to that which it acts upon, does not satisfy the general conception of law, whether it does or does not fit the words of any artificial definition. A despotic chief who paid no attention to anything but his own whim of the moment could hardly be said to administer justice, even if he professed to decide the disputes of his subjects. The best ideal picture I know in literature of what might be called natural injustice, the mere wantonness of power, is exhibited in the ways of Setebos as conceived by Robert Browning's "Caliban": "As it likes me each time I do: so He." In the same master's "Pippa Passes," the song of the ancient king, who judged sitting in the sun, gives a more pleasing, though not a more perfect, image of natural or rather patriarchal justice. Absence of defined rule, it must be remembered, is not the same thing as the negation of order. The patriarch may not do justice according to any consciously realized rule, and yet his decrees are felt to be just, and will go to the making of rules of justice for posterity.

It is true that even in highly civilized States we meet with occasional or singular acts of sovereign power which are outside the regular course of justice and administration, and which nevertheless must be counted as laws. In form they do not differ from the ordinary acts of the law-making authority, and in substance they are laws in so far as they affect in some way the standing of individual citizens before the law, must be regarded and acted upon by the judges and other public servants of the State, and will at need be put in force by the executive. In some of these cases there is really nothing abnormal except the form of the transaction. What began with being a special exercise of supreme power for a special occasion has settled into a routine which, though in form

legislative, is in substance administrative or judicial, or partly the one and partly the other. Such is the case in this country with the private Acts of Parliament by which railway and other companies are incorporated, and have powers of compulsory purchase and the like conferred on them. So before the establishment of the Divorce Court the dissolution of marriages by a private Act of Parliament was a costly and cumbrous proceeding, but still of a judicial kind. In these and similar cases the form of legislation has been rendered necessary by historical or constitutional accident. Sometimes, again, the purpose of these extraordinary legislative acts is to relieve innocent persons, and those who may have to derive titles to property from them, from the consequences of some venial failure to comply with the requirements of law. Marriages between British subjects have often been celebrated in good faith, but in fact without authority, by British consuls and other official persons in remote parts of the world, and on the error being discovered Acts of Parliament have been passed to give validity to the marriages so celebrated. Acts of indemnity have much the same nature, so far as they relate to the neglect or omission of requirements which have come to be regarded as merely formal. When the Test Acts were in force there was an annual Act of Indemnity for the relief of those public officers (being in fact the great majority) who had not performed and observed all the conditions which at one time had been supposed, and for a time possibly were, needful precautions for securing the Protestant succession to the throne. Lastly, that which in form is an act of legislation may be a more or less thinly disguised act of revolution, civil war, or reprisal against unsuccessful revolution. Acts of Attainder are the best English example in this kind: they must be carefully distinguished from impeachment, which is a regular process known to the law, though an unusual one. All these matters have their own historical and political interest; but we have nothing to learn from them about the normal contents and operation of legal institutions. The Roman name of privilegia marks them off as standing outside the province of regular and ordinary law.

Let us pass on, then, to consider what are the normal and necessary marks, in a civilized commonwealth, of justice administered according to law. They seem capable of being reduced to generality, equality, and certainty. First, as to generality, the rule of justice is a rule for citizens as such. It cannot be a rule merely for the individual; as the mediæval glossators put it, there cannot

be one law for Peter and another for John. Not that every rule must or can apply to all citizens; there are divers rules for divers conditions and classes of men. An unmarried man is not subject to the duties of a husband, nor a trader to those of a soldier. But every rule must at least have regard to a class of members of the State, and be binding upon or in respect of that class as determined by some definite position in the community. This will hold however small the class may be, and even if it consists for the time being of only one individual, as is the case with offices held by only one person at a time. Certain rules of law will be found in almost every country to apply only to the prince or titular ruler of the State, or to qualify the application of the general law to him. In England, again, the Prince of Wales, as Duke of Cornwall, is the subject of rules forming a singular exception to the general law of property; and the Lord Chancellor has many duties and powers peculiar to his office. But these rules are not lacking in the quality of generality, for in every case they apply not to the individual person as such, but to the holder of the office for the time being. They may be anomalous with regard to the legal system in which they occur; and, like other rules of law, they may or may not be expedient on the particular merits of each case. They are not in any necessary conflict with the principles of legal justice merely because they are of limited or unique application.

Next, the rule of generality cannot be fulfilled unless it is aided by the principle of equality. Rules of law being once declared, the rule must have the like application to all persons and facts coming within it. Respect of persons is incompatible with justice. Law which is the same for Peter and for John must be administered to John and to Peter evenly. The judge is not free to show favor to Peter and disfavor to John. As the maxim has it, equality is equity, though the working use of the maxim is not quite so simple as this. So much is obvious, and needs no further exposition. But it may be proper to point out that the rule of equality does not exclude judicial discretion. Oftentimes laws are purposely framed so as to give a considerable range of choice to judicial or executive officers as to the times, places, and manner of their application. It is quite commonly left to the judge to assign, up to a prescribed limit, the punishment of proved offences; indeed, the cases in which the court is deprived of discretion are exceptional in all modern systems. Apart from capital offences, there are only one or two cases in English criminal law where a minimum punishment is im

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