 Section 31 Retributive Punishment We have considered criminal justice in three of its aspects, namely as deterrent, disabling, and reformative, and we have now to deal with it under its fourth and last aspect as retributive. Retributive punishment, in the only sense in which it is admissible in any rational system of administering justice, is that which serves for the satisfaction of that emotion of retributive indignation, which in all healthy communities is stirred up by injustice. It gratifies the instinct of revenge or retaliation, which exists not merely in the individual wronged, but also by way of sympathetic extension in the society at large. Although the system of private revenge has been suppressed, the emotions and instincts that lay at the root of it are still extant in human nature, and it is a distinct though subordinate function of criminal justice to afford them their legitimate satisfaction. For although in their lawless and unregulated exercise and expression they are full of evil, there is in them, nonetheless, an element of good. The emotion of retributive indignation, both in its self-regarding and its sympathetic forms, is even yet the mainspring of the criminal law. It is to the fact that the punishment of the wronged doer is at the same time the vengeance of the wronged, that the administration of justice owes a great part of its strength and effectiveness. Did we punish criminals merely from an intellectual appreciation of the expediency of doing so, and not because their crimes arousing us the emotion of anger and the instinct of retribution? The criminal law would be but a feeble instrument. Indignation against injustice is, moreover, one of the chief constituents of the moral sense of the community, and positive morality is no less dependent on it than is the law itself. It is good, therefore, that such instincts and emotions should be encouraged and strengthened by their satisfaction, and in civilized societies this satisfaction is possible in any adequate degree only through the criminal justice of the state. There can be little question that at the present day the sentiment of retributive indignation is deficient rather than excessive, and requires stimulation rather than restraint. Unquestionable has have been the benefits of that growth of altruistic sentiment which characterizes modern society. It cannot be denied that in some respects it has taken a perverted course and has interfered unduly with the sterner virtues. A morbid sentimentality has made of the criminal an object of sympathetic interest rather than of healthy indignation, and Cain occupies in our regards a place that is better deserved by Abel. We have too much forgotten that the mental attitude which best becomes us when fitting justice is done upon the evildoer is not pity but solemn exaltation. The foregoing explanation of retributive punishment, as essentially an instrument of vindictive satisfaction, is by no means that which receives universal acceptance. It is a very widely held opinion that retribution is in itself a part altogether from any deterrent or reformative influences exercised by it, a right and reasonable thing, and the just reward of iniquity. According to this view it is right and proper, without regard to ulterior consequences, that evil should be returned for evil, and that, as a man deals with others, so should he himself be dealt with. An eye for an eye and a tooth for a tooth is deemed a plain and self-sufficient rule of natural justice. Punishment as so regarded is no longer a mere instrument for the attainment of the public welfare, but has become an end in itself. The purpose of vindictive satisfaction has been eliminated, without any substitute having been provided. Those who accept this view commonly advance retribution to the first place among the various aspects of punishment, the others being relegated to subordinate positions. This conception of retributive justice still retains a prominent place in popular thought. It flourishes also in the writings of theologians and of those imbued with theological modes of thought, and even among the philosophers it does not lack advocates. Kant, for example, expresses the opinion that punishment cannot rightly be inflicted for the sake of any benefit to be derived from it, either by the criminal himself or by society, and that the sole and sufficient reason and justification of it lies in the fact that evil has been done by him who suffers it. Consistently with this view he derives the measure of punishment not from any elaborate considerations as to the amount needed for the repression of crime, but from the simple principle of the Lex talionis, thine eye shall not pity, but life shall go for life, eye for eye, tooth for tooth, hand for hand, foot for foot. No such principle indeed is capable of literal interpretation, but subject to metaphorical and symbolical applications it is in Kant's view the guiding rule of the ideal scheme of criminal justice. It is scarcely needful to observe that from the utilitarian point of view, hitherto taken up by us, such a conception of retribute of punishment is totally inadmissible. Punishment is in itself an evil, and can be justified only as the means of attaining a greater good. Punishment is in itself not a remedy for the mischief of the offense, but an aggravation of it. The opposite opinion may be regarded as a product of the incomplete transmutation of the conception of revenge into that of punishment. It results from a failure to appreciate the rational basis of the instinct of retribution, a failure to refer the emotion of retributive indignation to the true source of its rational justification, so that retaliation is deemed an end in itself, and is regarded as the essential element in the conception of penal justice. A more definite form of the idea of purely retributive punishment is that of expiation. In this view, crime is done away with, cancelled, blotted out, or expiated, by the suffering of its appointed penalty. To suffer punishment is to pay a debt due to the law that has been violated. Guilt plus punishment is equal to innocence. The wrong, it has been said, whereby he has transgressed the law of right, has incurred a debt. Justice requires that the debt be paid, that the wrong be expiated. This is the first object of punishment, to make satisfaction to outraged law. This conception, like the proceeding, marks a stage in the transformation of revenge into criminal justice, until this transformation is complete the remedy of punishment is more or less assimilated to that of redress. Revenge is the right of the injured person. The penalty of wrongdoing is a debt which the offender owes to his victim, and when punishment has been endured, the debt is paid. The liability is extinguished. Innocence is substituted for guilt, and the vinculum, juris, forged by crime, is dissolved. The object of true redress is to restore the position demanded by the rule of right, to substitute justice for injustice, to compel the wrongdoer to restore to the injured person that which is his own. A like purpose is assigned to punishment, so long as it is imperfectly differentiated from that retributive vengeance, which is in some sort of reparation for wrongdoing. The fact that, in the expiatory theory, satisfaction is conceived as due rather to the outraged majesty of the law than to the victim of the offense, merely marks a further stage in the refinement and purification of the primitive conception. Section 32. Civil Justice, Primary and Sanctioning Rights. We proceed now to the consideration of civil justice and to the analysis of the various forms assumed by it. It consists, as we have seen, in the enforcement of rights as opposed to the punishment of wrongs. The first distinction to be noticed is that the right so enforced is either a primary or a sanctioning right. A sanctioning right is one which arises out of the violation of another right. All others are primary. They are rights which have some other source than wrongs. Thus my right not to be libeled or assaulted is primary, but my right to obtain pecuniary compensation for one who has libeled or assaulted me is sanctioning. My right to the fulfillment of a contract made with me is primary, but my right to damages for its breach is sanctioning. The administration of civil justice therefore falls into two parts, according as the right enforced belongs to the one or the other of these two classes. Sometimes it is impossible for the law to enforce the primary right. Sometimes it is possible, but not expedient. If by negligence I destroy another man's property, his right to this property is necessarily extinct and no longer enforceable. The law therefore gives him, in substitution for it, a new and sanctioning right to receive from me the pecuniary value of the property that he has lost. If on the other hand I break a promise of marriage, it is still possible, but it is certainly not expedient that the law should specifically enforce the right and compel me to enter into that marriage, and it enforces instead a sanctioning right of pecuniary satisfaction. A sanctioning right almost invariably consists of a claim to receive money from the wrongdoer, and we shall here disregard any other forms as being quite exceptional. The enforcement of a primary right may be conveniently termed specific enforcement. For the enforcement of a sanctioning right, there is no very suitable generic term, but we may venture to call it sanctioning enforcement. Examples of specific enforcement are proceedings whereby a defendant is compelled to pay a debt, to perform a contract, to restore land or chattels wrongfully taken or detained, to refrain from committing or continuing a trespass or nuisance, or to repay money received by mistake or obtained by fraud. In all these cases, the right enforced is the primary right itself, not a substituted sanctioning right. What the law does is to insist on the specific establishment or re-establishment of the actual state of things required by the rule of right, not of another state of things which may be regarded as its equivalent or substitute. Sanctioning rights may be divided into two kinds, by reference to the purpose of the law in creating them. This purpose is either, one, the imposition of a pecuniary penalty upon the defendant for the wrong which he has committed, or two, the provision of a pecuniary compensation for the plaintiff in respect of the damage which he has suffered from the defendant's wrongdoing. Sanctioning rights, therefore, are either, one, rights to exact and receive a pecuniary penalty, or two, rights to exact and receive damages or other pecuniary compensation. The first of these kinds is rare in modern English law, though it was at one time of considerable importance both in our own and in other legal systems, but it is sometimes the case, even yet, that the law creates and enforces a sanctioning right which has in it no element of compensation to the person injured, but is appointed solely as a punishment for the wrongdoer. For example, a statute might make provision for a pecuniary penalty payable to a common informer, that is to say, to anyone who shall first sue the offender for it. Suction action is called a penal action, as being brought for the recovery of a penalty, but it is nonetheless a purely civil and in no respect a criminal proceeding. Primarily and immediately, it is an action for the enforcement of a right, not for the punishment of a wrong. It pertains, therefore, to the civil administration of justice, no less than an ordinary action for the recovery of a debt. The mere fact that the sanctioning right, thus enforced, is created by the law for the purpose of punishment, does not bring the action within the sphere of criminal justice. In order that a proceeding should be criminal, it is necessary that its direct and immediate purpose should be punishment. It is not enough that its purpose should be the enforcement of a right, which has been created by way of a punishment. A proceeding is civil, if it is one for the enforcement of a right, and the source, nature, and purpose of the right, so enforced, are irrelevant. Footnote. It is worth notice that an action may be purely penal, even though the penalty is payable to the person injured. It is enough in such a case that the receipt of the penalty should not be reckoned as or towards the compensation of the recipient. A good example of this is the Roman Actio Ferti, by which the owner of stolen goods could recover twice their value from the thief by way of penalty, without prejudice, nevertheless, to a further action for the recovery of the goods themselves or their value. End of footnote. The second form of sanctioning right. The right to pecuniary compensation or damages is, in modern law, by far the more important. It may be stated as a general rule that the violation of a private right gives rise, in him whose right it is, to a sanctioning right to receive compensation for the injury so done to him. Such compensation must itself be divided into two kinds, which may be distinguished as restitution and penal redress. In respect of the person injured, indeed, these two are the same in their nature and operation, but in respect of the wrongdoer, they are different. In restitution, the defendant is compelled to give up the pecuniary value of some benefit which he has wrongfully obtained at the expense of the plaintiff, as when he who has wrongfully taken or detained another's goods is made to pay him the pecuniary value of them, or when he who has wrongfully enriched himself at another's expense is compelled to account to him for all money so obtained. Legal redress, on the other hand, is a much more common and important form of legal remedy than mere restitution. The law is seldom content to deal with a wrongdoer, by merely compelling him to restore all benefits which he has derived from his wrong. It commonly goes further and compels him to pay the amount of the plaintiff's loss, and this may far exceed the profit, if any, which he has himself received. It is clear that compensation of this kind has a double aspect in nature. From the point of view of the plaintiff, it is compensation and nothing more, but from that of the defendant, it is a penalty imposed upon him for his wrongdoing. The compensation of the plaintiff is in such cases the instrument which the law uses for the punishment of the defendant, and because of this double aspect we call it penal redress. Thus, if I burn down my neighbor's house by negligence, I must pay him the value of it. The wrong is then undone, with respect to him indeed, for he is put in as good a position as if it had not been committed. Formerly he had a house, and now he has the worth of it. But the wrong is not undone with respect to me, for I am the poorer by the value of the house, and to this extent I have been punished for my negligence. Section 33 A Table of Legal Remedies The result of the foregoing analysis of the various forms assumed by the Administration of Justice, civil and criminal, may be exhibited in a tabular form as follows. Legal proceedings branch off into criminal proceedings or the punishment of wrongs, for example imprisonment for theft, and civil proceedings or the enforcement of rights. The enforcement of rights branches off into specific and sanctional. Specific number one is enforcement of a primary right, for example payment of a debt will return of property detained. Sanctional enforcement is divided into compensation and penalty. Penalty number four is for example action by informer for statutory penalty. Payment is divided into restitution, number two, for example return of profit unlawfully made, and penal address, number three, is payment for loss unlawfully inflicted. Section 34 Penal and Remedial Proceedings It will be noticed that in the foregoing table legal proceedings have been divided into five distinct classes, namely one, actions for specific enforcement, two, actions for restitution, three, actions for penal redress, four, penal actions, and five, criminal prosecutions. It must now be observed that the last three of these contain a common element, which is absent from the others, namely the idea of punishment. In all these three forms of procedure the ultimate purpose of the law is in whole or in part the punishment of the defendant. This is equally so whether he is imprisoned or compelled to pay a pecuniary penalty to a common informer, or is held liable in damages to the person injured by him. All these proceedings therefore may be classed together as penal, and as the sources of penal liability. The other forms, namely specific enforcement and restitution, contain no such penal element. The idea of punishment is entirely foreign to them, and they may be classed together as remedial, and as the sources of remedial liability. From the point of view of legal theory, this distinction between penal and remedial liability is as we shall see of even greater importance than that between criminal and civil liability. It will be noted that all criminal proceedings are at the same time penal, but that the converse is not true, some civil proceedings being penal, while others are merely remedial. It may be objected that this explanation fails to distinguish between penal liability and criminal, in as much as punishment is stated to be the essential element in each. The answer to this objection is that we must distinguish between the ulterior and the immediate purposes of the law. Proceedings are classed as criminal or civil in respect of their immediate aim. They are distinguished as penal or remedial in respect of their entire purpose, remote as well as immediate. One way of punishing a wrongdoer is to impose some new obligation upon him, and to enforce the fulfillment of it. He may be compelled to pay a penalty or damages. Whenever this course is adopted, the immediate design of the law is the enforcement of the right to the penalty or damage. But its ulterior design is the punishment of the wrong out of which this right arose. In respect of the former, the proceedings are civil, not criminal, while in respect of the latter they are penal, not remedial. Penal proceedings, therefore, may be defined as those in which the object of the law, immediate or ulterior, is or includes the punishment of the defendant. All others are remedial, the purpose of the law being nothing more than the enforcement of the plaintiff's right, and the idea of punishment being irrelevant and inapplicable. Section 35 Secondary Functions of Courts of Law Hitherto we have confined our attention to the administration of justice, in the narrowest and most proper sense of the term. In this sense it means, as we have seen, the application by the state of the sanction of physical force to the rules of justice. It is the forcible defense of rights and suppression of wrongs. The administration of justice, properly so called, therefore, involves in every case two parties, the plaintiff and the defendant, a right claimed or a wrong complained of by the former as against the latter, a judgment in favor of the one or the other, and execution of this judgment by the power of the state, if need be. We have now to notice that the administration of justice, in a wider sense, includes all the functions of courts of justice, whether they conform to the foregoing type or not. It is to administer justice in the strict sense that the tribunals of the state are established and it is by reference to this essential purpose that they must be defined. But when once established they are found to be useful instruments by virtue of their constitution, procedure, authority, or special knowledge for the fulfillment of other, more or less, analogous functions. To these secondary and non-essential activities of the courts, no less than to their primary and essential functions, the term administration of justice has been extended. They are miscellaneous and indeterminate in character and number, and tend to increase with the advancing complexity of modern civilization. They fall chiefly into four groups, one, petitions of right. The courts of law exercise in the first place the function of adjudicating upon claims made by subjects against the state itself. If a subject claims that a debt is due to him from the crown, or that the crown has broken a contract with him, or wrongfully detains his property, he is at liberty to take proceedings by way of petition of right in a court of law for the determination of his rights in the matter. The petition is addressed to the crown itself, but is referred for consideration to the courts of justice, and these courts will investigate the claim in due form of law, and pronounce in favor of the petitioner or of the crown, just as in an action between two private persons. But this is not the administration of justice properly so-called for the essential element of coercive force is lacking. The state is the judge in its own cause, and cannot exercise constraint against itself. Nevertheless, in the wider sense the administration of justice includes the proceedings in a petition of right, no less than a criminal prosecution, or in action for debt or damages against a private individual. 2. Declarations of right. The second form of judicial action which does not conform to the essential type is that which results not in any kind of coercive judgment, but merely in a declaration of right. Elitigant may claim the assistance of a court of law not because his rights have been violated, but because they are uncertain. What he desires may not need any remedy against an adversary for the violation of a right, but an authoritative declaration that the right exists. Such a declaration may be the ground of subsequent proceedings in which the right having been violated receives enforcement, but in the meantime there is no enforcement more any claim to it. Declarations of declaratory proceedings are declarations of legitimacy, declarations of nullity of marriage, advice to trustees or executors as to their legal powers and duties, and the authoritative interpretation of wills. 3. Administrations. A third form of secondary judicial action includes all those cases in which courts of justice undertake the management and distribution of property. Examples are the administration of a trust, the liquidation of a company by the court, and the realization and distribution of an insolvent estate. 4. Titles of right. The fourth and last form include all those cases in which judicial decree are employed is the means of creating, transferring, or extinguishing rights. Instances are a decree of divorce or judicial separation, an adjudication of bankruptcy, an order of discharge and bankruptcy, a decree of foreclosure against the mortgager, an order appointing or removing trustees, a grant of letters of administration, and vesting or charging orders. In all these cases the judgment or decree operates not as the remedy of a wrong but as the title of a right. These secondary forms of judicial action are to be classed under the head of the civil administration of justice. Here, as in its other uses, the term civil is merely residuary. Civil justice is all that is not criminal. We have defined the law as consisting of the rules observed in the administration of justice. We have now seen that the latter term is used in a double sense, and the question therefore arises whether it is the strict or the wide sense that is to be adopted in our definition of the law. There can be no doubt, however, that logic admits, and convenience requires, the adoption of the wider application. We must recognize as law the sum total of the rules that are applied by courts of justice in the exercise of any of their functions, whether these are primary and essential, or secondary and accidental. The principles in accordance with which the courts determine a petition of right, decree a divorce, or grant letters of administration are as truly legal principles as those which govern in action of debt or a suit for specific performance. Summary The administration of justice by the state A permanent necessity The origin of the administration of justice Justice is criminal, the punishment of wrongs. Justice is civil, the enforcement of rights. Crimes are not necessarily public wrongs. Purposes of punishment, deterrent, preventive, reformative, retributive. Civil justice branches into enforcement of primary rights, a specific enforcement, and into enforcement of sanctioning rights, sanctional enforcement. Sanctional enforcement branches into penalty and compensation. Compensation can be either restitution or penal redress. Justice can be either remedial, which is independent of the idea of punishment and always civil, or justice can be penal, involving the idea of punishment and can be either civil or criminal. Subsidiary functions of courts of justice. Petitions of right, declarations of right, section of property, creation, transfer, and extinction of rights. Section 8 of Jurisprudence, by John Salmond, Chapter 5, The State, Part 1. Section 36, The Nature and Essential Functions of the State A complete analysis of the nature of law involves an inquiry into the nature of the state, for it is in and through the state alone that law exists. Jurisprudence is concerned, however, only with the elements and first principles of this matter. An exhaustive theory of political government pertains not to Jurisprudence, but to the allied science of politics. From the lawyer nothing more is required than such an understanding of the essential nature of the state, as is sufficient and necessary for the establishment of sound judicial theory. A state, or political society, is an association of human beings, established for the attainment of certain ends by certain means. It is the most important of all the various kinds of society in which men unite, being indeed the necessary basis and condition of peace, order, and civilization. What then is the essential difference between this and other forms of association? In what does the state essentially differ from such other societies as a church, a university, a joint stock company, or a trade union? The difference is clearly one of function. This state must be defined by reference to such of its activities and purposes as are essential and characteristic. But the modern state does many things, and different things at different times and places. It is a common carrier of letters and parcels, it builds ships, it owns and manages railways, and conducts savings banks, it teaches children, and feeds the poor. All these cannot be of its essence. It is possible, however, to distinguish among the multitudinous operations of government, two which are set apart as primary and essential. These two are war and the administration of justice. The fundamental purpose and end of political society is defense against external enemies, and the maintenance of peaceable and orderly relations within the community itself. It would be easy to show, by a long succession of authorities, that these two have always been recognized as the essential duties of governments. The Israelites demanded a king that he, quote, may judge us and go out before us and fight our battles, unquote. And this conception of the primary end and aim of sovereignty obtains recognition still as true and etiquette. Leviathan, as Hobbes tells us, carries two swords, the sword of war and that of justice. This is the irreducible minimum of government action. Every society which performs these two functions is a political society or state, and none is such which does not perform them. How much activity in other directions may be profitably combined with them is a question with which we are not here concerned. We are dealing with the definition and therefore with the essence, not with the accidents of political society. It is not difficult to show that war and the administration of justice, however diverse in appearance, are merely two different species of a single genus. The essential purpose of each is the same, though the methods are different. Each consists in the exercise of the organized physical force of the community, and in each case this force is made use of to the same end, namely the maintenance of the just rights of the community and its members. We have already seen that in administering justice, the state uses its physical power to enforce rights and to suppress and punish wrongs. Its purpose in waging war, that is to say, just war, which is the only kind which can be regarded as an essential form of state activity, is the same. These two primary functions are simply the two different ways in which a political society uses its power in the defense of itself and its members against external and internal enemies. They are the two methods in which a state fulfills its appointed purpose of establishing right and justice by physical force. What then is the essential difference between these two functions? It lies apparently in this, that the administration of justice is the judicial, while the war is the extrajudicial use of the force of the state in the maintenance of right. Force is judicial when it is applied by or through a tribunal, whose business it is to judge your arbitrate between the parties who are at issue. It is extrajudicial when it is applied by the state directly, without the aid or intervention of any such judge or arbitrator. Judicial force involves trial and adjudication as a conditioned precedent to its application. Extrajudicial force does not. Judicial force does not move to the maintenance of rights or the suppression of wrongs until these rights and wrongs have been authoritatively declared and ascertained by the formal judgment of a court. The primary purpose of judicial force is to execute judgment against those who would not voluntarily yield obedience to it. Only indirectly and through such judgment does it enforce rights and punish wrongs. But extrajudicial force strikes directly at the offender. It recognizes no trial or adjudication as a condition of its exercise. It requires no authoritative judicial declaration of the rights protected or of the wrongs punished by it. When rebellion or a riot is suppressed by troops, this is the extrajudicial use of force. But when, after its suppression, the rebels or rioters are tried, sentenced, and punished by the criminal courts, the force so used is judicial. To shoot a man on the field of battle or at a barricade is war. To shoot him after capture and condemnation by a court-martial is the administration of justice. In addition to the essential differences which we have just noticed, there are several minor and unessential differences which are commonly, though not invariably, present. The chief of these are the following. 1. Judicial force is regulated by law, while the force of arms is usually exempt from such control. Justice is according to law. War is according to the good pleasure of those by whom it is carried on. After armor ledges silent is a maxim which is substantially, though not wholly, true. The civil law has little to say as to the exercise by the state of its military functions. As between the state and its external enemies, it is absolutely silent. And even as to the use of extrajudicial force within the body politic itself, as in the suppression of riots, insurrections, or forcible crimes, the law lays down no principles save this, that such force is allowable when, and only when, it is necessary. 2. Necessitas non-habit legum. Within the community, the law insists that all force shall be judicial, if possible. This protection against extrajudicial force, this freedom from all constraints save that which operates through the courts of law and justice, is one of the chief privileges of the members of the body politic. We accept it now as a matter of course, but in older and more turbulent days it was recognized as a benefit to be striven for and maintained with anxious vigilance. 2. In the second place, judicial force is commonly exercised against private persons, extrajudicial force against states. It is clear, however, that this is not necessarily or invariably the case. It is not impossible that one state should administer justice between two others, or between another state and itself. And on the other hand, it may wage war with its own subjects, or with pirates or other persons who do not constitute a political society. 3. Thirdly, the administration of justice is generally the internal, while war is generally the external exercise of the power of the state. In other words, the state commonly proceeds against internal enemies by way of judicial and against external enemies by way of extrajudicial force. The administration of justice is the right and privilege of the members of the body politic itself. Those who stand outside the community, whether they are individuals or states, have no claim to the impartial arbitrement of judicial tribunals and may be struck at directly by the armed and heavy hand of the state. Yet, this also is merely a general and not an invariable rule. 4. Fourthly and lastly, in the administration of justice, the element of force is commonly latent or dormant, whereas in war it is seen in actual exercise. Those persons against whom the state administers justice are commonly so completely within its power that they have no choice, say, voluntary submission and obedience. It is enough that the state possesses irresistible force and threatens to use it. This actual use is seldom called for. In war, on the other hand, there is commonly no such overwhelming disparity of power, and a state which in this fashion seeks to impose its will on others must usually go beyond threats to their actual execution. Hence it is that in the administration of justice, the element of trial and adjudication is in appearance far more predominant and important than that of force. Viewed externally and superficially, this function of the state looks like the elimination of force as a method of the settlement of controversies and the substitution of peaceful arbitration. But it is not so. Force is the essence of the administration of justice, no less than of war, but for the most part it lies latent and concealed. The establishment of courts of justice marks not the substitution of arbitration or force, but the substitution of one kind of force for another, of public force for private, of judicial force for extrajudicial, of latent and threatened force for that which is actually exercised. As states increase in power, this difference between their two essential functions is intensified. In feeble, turbulent, and ill-governed states, the element of force in the administration of justice tends to come to the surface. The will of the state no longer receives implicit obedience from those who are subject to its jurisdiction. It may be necessary to execute the judgment of the courts by military force, and there may be a little difference of external aspect between the use of judicial force in the execution of a judgment, and the use of extrajudicial force in the suppression of riot, rebellion, or civil war. Section 37. Secondary functions of the state. The secondary functions of the state may be divided into two classes. The first consists of those which serve to secure the efficient fulfillment of the primary functions, and the chief of these are two in number, namely legislation and taxation. Legislation is the formulation of the principles in accordance with which the state intends to fulfill its function of administering justice. Taxation is the instrument by which the state obtains that revenue, which is the essential condition of all its activities. The remaining class of secondary functions comprises all other forms of activity which are for any reason deemed specially fit to be undertaken by the state. This special fitness may proceed from various sources. It is derived partly from the fact that the state represents the whole population of an extensive territory, partly from the fact that it possesses through the organized physical force at its command powers of coercion which are non-existent elsewhere, and partly from the fact that its financial resources due to the exercise of its course of powers by way of taxation are immensely beyond those of all other persons and societies. Considerations such as these have, especially in modern times, induced the state to assume a great number of secondary and unessential functions which, in a peaceful and law-abiding community, tend even to overshadow and conceal from view those primary functions in which the essential nature of the state is to be found. The territory of the state The territory of the state is that portion of the earth's surface which is in its exclusive possession and control. It is that religion throughout which the state makes its will permanently supreme and from which it permanently excludes all alien interference. This exclusive possession of a defined territory is a characteristic feature of all civilized and normal states. It is found to be a necessary condition of the efficient exercise of governmental functions. But we cannot say that it is essential to the existence of a state. A state without a fixed territory, a nomadic tribe for example, is perfectly possible. A non-territorial society may be organized for the fulfillment of the essential functions of government and if so, it will be a true state. Such a position of things is, however, so rare and unimportant that it is permissible to disregard it as abnormal. It is with the territorial state that we are alone concerned and with reference to it we may accordingly define a state as a society of men established for the maintenance of peace and justice within a determined territory by way of force. Section 39 The membership of the state Who then are the members of the society and by what title do men obtain entrance into it? In all civilized communities, the title of state membership is twofold and the members of the body politic are of two classes accordingly. These two titles are citizenship and residence. The former is a personal, the latter merely a territorial bond between the state and the individual. The former is a title of permanent, the latter one of temporary membership of the political community. The state, therefore, consists in the first place of all those who by virtue of this personal and permanent relationship are its citizens or subjects and in the second place of all those who for the time being reside within its territory and so possess a temporary and territorial title to state membership. Both classes are equally members of the body politic so long as their title lasts. For both have claims to the protection of the laws and government of the state and to such laws and government both alike o-obedience and fidelity. They are alike subject to the dominion of the state and it is in the interest of both that the state exists and fulfills its functions. These two titles of state membership are to a great extent united in the same persons. Most British subjects inhabit British territory and most inhabitants of that territory are British subjects. Yet the coincidence is far from complete. For many men belong to the state by one title only. They are British subjects but not resident within the dominions of the crown or they are resident within those dominions but are not British subjects. In other words, they are either non-resident subjects or resident aliens. Non-resident aliens, on the other hand, possess no title of membership and stand altogether outside the body politic. They are not within the power and jurisdiction of the state. They owe no obedience to the laws nor fidelity to the government. It is not for them or in their interests that the state exists. The practical importance of the distinction between the two forms of state membership lies chiefly in the superior privileges possessed by citizens or subjects. Citizenship is a title to rights which are not available for aliens. Citizens are members optimojure while aliens stand on a lower level in the scale of legal right. Thus, British subjects alone possess political as opposed to merely civil rights. Until a few years ago, they alone were capable of inheriting or holding land in England. To this day, they alone can own a British ship or any share in one. They alone are entitled when abroad to the protection of their government against other states or to the protection of English courts of law against illegal acts of the English executive. They alone can enter British territory as of right. They alone are entitled to the benefit of certain statutes from the operation of which aliens are expressly or by implication excluded. It is true indeed that we must set off against these special privileges, certain corresponding burdens and liabilities. Subjects alone remain within the power and jurisdiction of the crown even when they are outside its dominions. Wheresoever they are, they owe fidelity and obedience to the laws and government of their own state while an alien may release himself at will from all such ties of subjection. Nevertheless, the status of a subject is a privilege and not a disability, a benefit and not a burden. Citizenship is the superior, residence the inferior title of state membership. Viewing the matter historically, we may say that citizenship is a legal conception, the importance of which is continuously diminishing. The consistent tendency of legal development is to minimize the peculiar rights and liabilities of subjects and to make residents, rather than citizenship, the essential and sufficient title of state membership. The acquisition and loss of citizenship are being gradually made easier, while the legal effects of its acquisition and loss are being gradually made less. The present state of things is indeed a compromise between two fundamentally different ideas as to the constitution of a political society. Citizenship and its remaining privileges are the outcome of the primitive conception of the state as a personal and permanent union of determinate individuals, for whose exclusive benefit the laws and government of the state exist. Residence, regarded as a title of membership and protection, is the product of the more modern conception of the state, as consisting merely of the inhabitants for the time being of a certain territory. The personal idea is gradually giving place to the territorial and the present twofold title of membership is the outcome of a compromise between these two co-existent and competing principles. It is not suggested indeed that the final issue of legal development will be the total disappearance of personal in favor of territorial membership. A compromise between the two extreme principles in some such form as that which has now been attained to may well prove permanent. In the present condition of international relations, it is clearly necessary. We have seen that citizens are those members of a state whose relation to it is personal and permanent, and who by virtue of this relation receive from the state's special rights, powers, and privileges. If we ask further what is the title of citizenship or how this special bond of union is constituted, no general answer is possible. This is a matter of law, varying in different systems and from time to time in the same system. English law claims as subjects all who are born within the dominions of the crown regardless of their descent, while French law on the contrary attaches French citizenship to French blood and descent regardless in general of the place of birth. Viewed however in respect of its historical origin and primitive form, we may say that citizenship has its source in nationality. Fellow citizens are those who belong not merely to the same state but also to the same nation. It is quite common to use the term citizenship and nationality as synonymous, and this usage, though incorrect, is significant of a very real connection between the two ideas. Nationality is membership of a nation. Citizenship is one kind of membership of a state. A nation is a society of men united by common blood and descent and by the various subsidiary bonds incident there too, such as common speech, religion, and manners. A state, on the other hand, is a society of men united under one government. These two forms of society are not necessarily consonant. A single nation may be divided into several states, and conversely, a single state may comprise several nations or parts of nations. The Hellenys were of one blood but formed many states, while the Roman Empire included many nations but was one state. Nevertheless, nations and states tend mutually to coincidence. The ethnic and the political unity tend to coalesce. In every nation there is an impulse, more or less powerful, to develop into a state, to add to the subsisting community of descent a corresponding community of government and political existence. Conversely, every state tends to become a nation. That is to say, the unity of political organization eliminates in course of time the national diversities within its borders, infusing throughout all its population a new and common nationality, to the exclusion of all remembered relationship with those beyond the limits of the state. The historical origin of the conception of citizenship is to be found in the fact that the state has grown out of the nation. Speaking generally, we may say that the state is in its origin a nation politically organized. It is the nation incorporated for the purposes of government and self-defense. The citizens are the members of a nation which has thus developed into a state. Citizenship is nationality that has become political. Men become united as fellow citizens because they are or are deemed to be already united by the bond of common kinship. It is for the benefit and protection that the body politic has been established, and they are its only members. Their citizenship is simply a legal and artificial bond of union superimposed upon the pre-existing bond of a common nationality. With aliens this national state has no concern. It was not created on their behalf and they have no part or law to it, for its law and government are the exclusive birthright of its citizens. Only by slow degrees does the notion of territorial membership arise and make good its claim to legal recognition. Gradually the government and the laws cease to be exclusively national and personal, and become in part territorial also. The new principle makes its way that the state exists for the benefit and protection of the whole population of a certain territory, and not merely on behalf of a certain nationality. The law becomes more and more that of a country, rather than that of a people. State membership becomes twofold, residents standing side by side with citizenship. It becomes possible to belong to the Roman state without being a Roman. The citizens consent to share their rights with outsiders, but the two classes never reach equality, and the personal union stands permanently on a higher level than the territorial. The special privileges retained by citizens at the present day are the scanty relics of the once exclusive claims of the nation to the protection activities of the state. The relation between a state and its members is one of reciprocal obligation. The state owes protection to its members, while they in turn owe obedience and fidelity to it. Men belong to a state in order that they may be defended by it against each other and against external enemies. But this defense is not a privilege to be had for nothing, and in return for its protection the state exacts from its members' services and sacrifices to which outsiders are not constrained. From its members it collects revenue. From them it requires the performance of public duties. From them it demands an habitual submission to its will, as the price of the benefits of its guardianship. Its members therefore are not merely in a special manner under the protection of the state, but are also in a special manner under its coercion. This special duty of assistance, fidelity, and obedience is called allegiance, and it is of two kinds, corresponding to the two classes of members from whom it is required. Subjects owe permanent allegiance to the state, just as they are entitled to its permanent protection. Resident aliens owe temporary allegiance during the period of their residence, just as their title to state protection is similarly limited. An alien, when in England, must be faithful to the state, must submit to its will and obey its laws, even as an Englishman. But when he leaves English shores he leaves behind him his obligation of allegiance, together with his title to protection. A British subject, on the other hand, takes both of these things with him on his travels. The hand of the state is still upon him for good and evil. If he commits treason abroad he will answer for it in England. The courts of justice will grant him redress even against the agents of the Crown itself, while the executive will see that no harm befalls him at the hands of foreign governments. End of Section 8. Section 9 of Jurisprudence. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer please visit LibriVox.org. Recording by Ian Stewart, Rosanna, Victoria, Australia. Jurisprudence by John Salmond. Chapter 5. The State, Part 2. Section 40, The Constitution of the State. In the definition of a state as a society with a special end and function, there is implied a permanent and definite organization, a determinate and systematic form, structure and operation. A body politic is not constituted by a temporary and casual union of individuals for the purpose of repelling an external enemy or of executing judgment on some domestic evildoer. The transition from natural to political society is affected only when the union of individuals has assumed a certain measure of permanence and organization, and when the combined operations in pursuit of their common end have become in a certain degree systematic and definite. It is only when a society has acquired such an organization, whether by way of agreement, custom, forcible imposition or otherwise, that it takes on the nature of a body politic or state. It is only then that there comes into existence the organ which is essential to the performance of those functions which constitute political government. The organization of a modern state is of extraordinary complexity, and it is usual to regard it as divisible into two distinct parts. The first consists of its fundamental or essential elements. The second consists of its secondary elements, the details of state, structure and state action. The first, essential and basal portion, is known as the constitution of the state. The second has no generic title. Constitutional law is, as its name implies, the body of those legal rules which determine the constitution of the state. It is not possible to draw any hard and fast line between the constitution and the remaining portions of the state's organization. Neither, therefore, is it possible to draw any such line between constitutional law and other branches of the legal system. The distinction is one of degree, rather than one of kind, and is drawn for purposes of practical convenience, rather than in obedience to any logical requirement. The more important, fundamental and far-reaching any principle or practice is, the more likely it is to be classed as constitutional. Conversely, the more special, detailed and limited in its application, the less likely it is to find a place in any exposition of the law and practice of the constitution. The structure of the supreme legislature and the methods of its action pertain to constitutional law. The structure and operations of subordinate legislatures, such as those possessed by the colonies, are justly entitled to the same position. But those of such subordinate legislatures, as a borough council would by general consent be treated as not sufficiently important and fundamental to be deemed part of the constitution. So the organization and powers of the Supreme Court of Judicature, treated in outline and not in detail, pertain to constitutional law, while it is otherwise with courts of inferior jurisdiction, and with the detailed structure and practice of the Supreme Court itself. In some states, though not in England, the distinction between constitutional law and the remaining portions of the legal system is accentuated and made definite by the embodiment of the former in a special and distinct enactment, the terms of which cannot be altered by the ordinary forms of legislation. Such constitutions are said to be rigid, as opposed to those which are flexible. That of the United States of America, for example, is set forth in a document agreed upon by the founders of the Commonwealth, as containing all those principles of state structure and action sufficiently important to be deemed fundamental and therefore constitutional. The provisions of this document cannot be altered without the consent of three-fourths of the legislatures of the different states. The English Constitution, on the other hand, is flexible. It is defined and set apart in no distinct document, and is not distinguishable from the residue of the law and in respect of the methods of its alteration. We have defined constitutional law as the body of those legal principles which determine the constitution of a state, which determine, that is to say, the essential and fundamental portions of the state's organization. We have here to face an apparent difficulty and a possible objection. How, it may be asked, can the constitution of a state be determined by law at all? There can be no law unless there is already a state whose law it is, and there can be no state without a constitution. The state and its constitution are therefore necessarily prior to the law. How then does the law determine the constitution? Is constitutional law in reality law at all? Is not the constitution a pure matter of fact with which the law has no concern? The answer is that the constitution is both a matter of fact and a matter of law. The constitution as it exists de facto underlies of necessity the constitution as it exists de jour. Constitutional law involves concurrent constitutional practice. It is merely the reflection within courts of law of the external objective reality of the de facto organization of the state. It is the theory of the constitution as received by courts of justice. It is the constitution not as it is in itself but as it appears when looked at through the eye of the law. The constitution as a matter of fact is logically prior to the constitution as a matter of law. In other words, constitutional practice is logically prior to constitutional law. There may be a state and a constitution without any law, but there can be no law without a state and the constitution. No constitution therefore can have its source and basis in the law. It has of necessity an extra legal origin, for there can be no talk of law until some form of constitution has already obtained de facto establishment by way of actual usage and operation. When it is once established but not before, the law can and will take notice of it. Constitutional facts will be reflected with more or less accuracy in courts of justice as constitutional law. The law will develop for itself a theory of the constitution as it develops a theory of most other things which may come in question in the administration of justice. As an illustration of the proposition that every constitution has an extra legal origin, we may take the United States of America. The original constituent states achieved their independence by way of rebellion against the lawful authority of the English crown. Each of these communities therefore established a constitution for itself by way of popular consent expressed directly or through representatives. By virtue of what legal power or authority was this done? Before these constitutions were actually established, there was no law in these colonies saved that of England. And it was not by the authority of this law but in open and forcible defiance of it that these colonial communities set up new states and new constitutions. Their origin was not merely extra legal, it was illegal. Yet, so soon as these constitutions succeeded in obtaining de facto establishment in the rebellious colonies, they received recognition as legally valid from the courts of those colonies. Constitutional law followed hard upon the heels of constitutional fact. Courts, legislatures and law had alike their origin in the constitution, therefore the constitution could not derive its origin from them. So also with every constitution that is altered by way of illegal revolution. By what legal authority was the Bill of Rights passed? And by what legal title did William the Third assume the crown? Yet the Bill of Rights is now good law, and the successes of King William have held the crown by valid titles. Quad-fairy, non-debit, factum valet. Constitutional law therefore is the judicial theory, reflection or image of the constitution de facto. That is to say of constitutional practice. Here as elsewhere, law and fact may be more or less discordant. The constitution as seen by the eye of the law may not agree in all points with the objective reality. Much constitutional doctrine may be true in law, but not in fact, or true in fact, but not in law. Power may exist de jure, but not de facto, or de facto, but not de jure. In law, for example, the consent of the crown is no less necessary to legislation than is that of the two houses of parliament. Yet in fact, the crown has no longer any power of refusing its consent. Conversely, the whole system of cabinet government, together with the conferral exercised by the House of Commons over the executive, is as unknown in law as it is well established in fact. Even in respect of the boundaries of the state's territories, the law and the fact may not agree. A rebellious province may have achieved its de facto independence. That is to say, it may have ceased to be in the de facto possession and control of the state long before this fact receives de jure recognition. Nowhere is this discordance between the constitution in fact and in law more serious and obvious than in England. A statement of the strict legal theory of the British constitution would differ curiously from a statement of the actual facts. Similar discrepancies exist, however, in most other states. A complete account of a constitution, therefore, involves a statement of constitutional custom, as well as of constitutional law. It involves an account of the organised state as it exists in practice and in fact. As well as of the reflected image of this organisation as it appears in legal theory. Although the constitution de jure and the constitution de facto are not necessarily the same, they nevertheless tend towards coincidence. Constitutional law and practice react upon each other, each striving to assimilate the other to itself. The objective facts of state organisation tend to mould legal theory into conformity with themselves. They seek expression and recognition through legislation or through the law creating functions of the courts. Conversely, the accepted legal theory endeavours to realise itself in the facts. The law, although it necessarily involves a pre-existing constitution, may nevertheless react upon and influence the constitution from which it springs. It cannot create a constitution ex nihilo, but it may modify to any extent one which already exists. Constitutional practice may alter, while constitutional law remains the same and vice versa. But the most familiar and effective way of altering the practice is to alter the law. The will of the body politic, as expressed through the legislature and the courts, will commonly realise itself in constitutional fact, no less than in constitutional theory. Political or civil power is the power vested in any person or body of persons of exercising any function of the state. It is the capacity of evoking and directing the activities of the body politic. It is the ability to make one's will effective in any department of governmental action. The aggregate of all the persons or groups of persons who possess any share of this civil power constitutes the government of the state. They are the agents through whom the state as a corporate unity acts and moves and fulfills its end. Legislative, judicial and executive power. In respect of its subject matter, civil power is of three kinds, distinguished as legislative, judicial and executive. And the government is similarly divisible into three great departments, namely the legislature, the judicature and the executive. The functions which pertain to the first and second of these departments have been already sufficiently explained. The executive is simply the residue of the government after deducting the legislature and the judicature. Sovereign and subordinate power. In respect of its extent, civil power, whether legislative, judicial or executive, is of two kinds, being either sovereign or subordinate. Sovereign or supreme power is that which is absolute and uncontrolled within its own sphere. Within its appointed limits, if any, its exercise and effective operation are not dependent on or subject to the power of any other person. An act of sovereign power is one which cannot be prevented or annulled by any other power recognized by the constitution of the state. Subordinate power on the other hand is that which, even in its own sphere of operation, is in some degree subject to external control. There exists some other constitutional power which is superior to it and which can prevent, restrict or direct its exercise or annull its operation. Section 42, independent and dependent states. States may be classified in two different ways. One, with respect to their external relations to other states and two, with respect to their internal composition. The former mode has regard to their international, the latter to their constitutional position and structure. Classified internationally or externally, all states are of two kinds, being either independent or dependent. Classified constitutionally or internally, they are also of two kinds, being either unitary or composite. An independent or sovereign state is one which possesses a separate existence, being complete in itself and not merely a part of a larger whole to whose government it is subject. A dependent or non-sovereign state, on the other hand, is one which is not thus complete and self-existent but is merely a constituent portion of a greater state which includes both it and others and to whose government it is subject. The British Empire, the United States of America and the Kingdom of Italy are independent states. But the Commonwealth of Australia, the Dominion of Canada and the States of California and New York are dependent, for they are not self-existent but merely parts of the British Empire and of the United States of America respectively and subject to their control and government. It is maintained by some writers that a dependent state is not, properly speaking, a state at all. That the constituent and dependent parts of an independent state may be termed colonies, provinces, territories and so on, but have no valid claim to the name of state. This objection, however, seems unfounded. It is contrary to the received usage of speech, and that usage seems capable of logical justification. Whether a part of a thing is entitled to the same name as the whole depends on whether the whole and the part possess the same essential nature. A part of a rope is itself a rope, if long enough to serve the ordinary purposes of one. But part of a shilling is not itself a shilling. Whether, therefore, any territorial division of a state is to be classed as itself a state depends on whether in itself and in isolation it possesses and fulfills the essential functions of one. This in turn depends on the extent of the autonomy or independent activity which is permitted to it by the Constitution. Speaking generally, we may say that any such division which possesses a separate legislature, judicature and executive, and is thus separately organised for the maintenance of peace and justice, is entitled to be regarded as itself a state. The Commonwealth of Australia is a true state, the millier part of the larger state of the British Empire, for it conforms to the definition of a state as a society established and organised for the administration of justice and for external defence. Were it to become independent it could, without altering its constitution or taking upon itself any further function than those which it now possesses, stand alone as a distinct and self-sufficient political community. But a municipal corporation or a district council has not in itself the nature of a political society, for it does not in itself fulfil the essential ends of one. International law takes account only of independent or sovereign states, for it consists of the rules which regulate the relations of such states to one another. A dependent state is not an international unit and possesses no international personality. Internationally regarded, its existence is simply a detail of the internal constitution of the larger and independent state of which it forms a part. This internal structure pertains exclusively to the constitutional law of the state itself, and the law of nations is not concerned with it. The existence of the Dominion of Canada or of the State of Victoria is a constitutional, not an international fact. From the eye of the law of nations, the whole British Empire is a single, undivided unit. Independent states are themselves of two kinds, distinguished as fully sovereign and semi-sovereign. A fully sovereign state is, as its name imports, one whose sovereignty is in no way derogated from by any control exercised over it by another state. It is possessed of absolute and complete autonomy. A semi-sovereign state, on the other hand, is one which is to a greater or less extent subordinate to some other, its sovereignty or autonomy being imperfect by reason of external control. The authority so exercised over it is termed a protectorate or sometimes suzerainty. Most independent states are fully sovereign, the others being few in number and anomalous in character. An example is Zanzibar, which stands in this relation to the British Empire. It is carefully to be noticed that semi-sovereign states are independent, in the sense already explained. They are self-existent international units and not merely parts of the state under whose control they are. Zanzibar is not part of the British Empire. These are two distinct states bearing towards each other a relation which is international and external and not merely constitutional and internal. In order that a state should be dependent or non-sovereign, it is not enough that it should be under the control of another state. It must also be a constituent part of the state under whose control it is. The mere exercise of a partial dominion by one state over another does not of necessity incorporate the two into a higher unity. The establishment of a protectorate is not equivalent to annexation. The acts of the one state are not imputed to the other. The property and territory of the one are not those of the other also. The subjects of the one are not those of the other. One may be at peace while the other is at war. The Ionian Islands were formally a protected state under the control of Great Britain, but during the Crimean War they remained neutral and at peace. A semi-sovereign state is in a position of unstable equilibrium. It is the outcome of a compromise between dependents and independents, which, save in exceptional circumstances, is not likely to be permanent. The controlled exercise by one independent state over another is in most cases destined either to disappear altogether so that the semi-sovereign state becomes fully sovereign or to develop until the separate international existence of the inferior is merged in that of the superior, the semi-sovereign state descending to the lower level of dependency and becoming merely a constitutional subdivision of the state to which it is subordinate. Section 43, Unitary and Composite States. Classified constitutionally in respect of their internal structure, instead of internationally in respect of their external relations, states are of two kinds, being either unitary or composite. A unitary or simple state is one which is not made up of territorial divisions which are states themselves. A composite state, on the other hand, is one which is itself an aggregate or group of constituent states. The British Empire is composite because many of its territorial divisions are possessed of such autonomy as to be states themselves. Some of these constituent states are also composite in their turn. Australia and Canada, for example, are being composed of unitary states such as Queensland and Quebec. Composite states, whether dependent or independent, are of two kinds, which may be distinguished as imperial and federal. The difference is to be found in the nature of that common government which is the essential bond of union between the constituent states. In an imperial state the government of one of the parts is at the same time the common government of the whole. In a federal state, on the contrary, the common government is not that of one of the parts, but a central government in which all the constituent states participate. The constitution of the British Empire is imperial. That of the United States of America is federal. In the former, one of the parts, namely Great Britain and Ireland, is preferred before the others as supplying the authority which binds all of them into a single whole. The government of the United Kingdom possesses a double capacity, local and imperial. In its local capacity it administers the affairs of England, Scotland and Ireland, just as the government at Cape Town administers the affairs of Cape Colony. But in another capacity it is the government of the whole empire and provides the bond of common authority which unites all the constituent states of the empire into a single body politic. In a federal, as contrasted with an imperial constitution, there is no such predominance of one of the constituent states. The government of the whole is one in which all the parts have their allotted shares. The unity of an imperial state is a relation of all the other parts to one of them. The unity of a federal state is a relation of all the parts to a central and common authority. Summary. Definition of the state. Functions of the state divided into essential and secondary. Essential is further divided into administration of justice and war. Relations between the two essential functions. The judicial and extra judicial use of force, minor differences. The territory of the states. The members of the state divided into citizens or subjects and resident aliens. Citizenship in its historical aspect. Citizenship and nationality. Allegiance divided into personal and permanent and local and temporary. The constitution of the state. Constitutional law. Its nature. Its relation to constitutional fact. The government of the state. Civil power. Legislative, judicial and executive power. Sovereign and subordinate power. The classification of states. States are divided into two externally or internationally and internally or constitutionally. External or internationally is divided into two parts. Independent and dependent. Independent is further divided into fully sovereign and semi-sovereign. Internally or constitutionally is divided into unitary and composite. And composite is further divided into imperial and federal. End of section nine. Recording by Ian Stewart, Rosanna, Victoria, Australia. Section 10 of Jurisprudence. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Recording by Ian Stewart, Rosanna, Victoria, Australia. Jurisprudence by John Salmond. Chapter 6. The Sources of Law. Chapter 6. The Sources of Law. Section 44. Formal and material sources. The expression source of law, funds Juris, has several meanings which it is necessary to distinguish clearly. We must distinguish in the first place between the formal and the material sources of the law. A formal source is that from which a rule of law derives its force and validity. It is that from which the authority of the law proceeds. Material sources, on the other hand, are those from which is derived the matter, not the validity of the law. Material source applies the substance of the rule to which the formal source gives the force and nature of law. The formal source of the whole body of the civil law is one and the same. Namely, the will and power of the state has manifested in courts of justice. Whatever rules have the sanction and authority of the body politic in the administration of justice have thereby the force of law, and in such force no other rules whatever have any share. The matter of the law may be drawn from all kinds of material sources, but for its legal validity it must look to the tribunals of the state and to them alone. Customary law, for example, has its material source and the usages of those who are subject to it, but it has its formal source in the will of the state, no less than statutory law itself. Section 45, Legal and Historical Sources Though the formal source of the law is one, its material sources are many, and they are divisible into two classes which may be distinguished as legal and historical. The former are those sources which are recognised as such by the law itself. The latter are those sources which are such, in fact, but are nevertheless destitute of legal recognition. This is an important distinction which calls for careful consideration. In respect of its material origin, a rule of law is often of long descent. The immediate source of it may be the decision of an English court of justice, but that court may have drawn the matter of its decision from the writings of some lawyer. Let us say the celebrated Frenchman, Potier, and Potier, in his turn, may have taken it from the compilations of the Emperor Justinian, who may have obtained it from the Praetorian Edict. In such a case all these things, the decision, the works of Potier, the Corpus Eurus Sevilus, and the Addictum Perpetuum are the successive material sources of the rule of English law, but there is a difference between them. For the precedent is the legal source of the rule, and the others are merely its historical sources. The precedent is its source not merely in fact, but in law also. The others are its sources in fact, but obtain no legal recognition as such. Our law knows well the nature and effect of precedence, but it knows nothing of Potier or of Trebonian or of the urban Praetor. The proposition that every principle embodied in a judicial decision has for the future the force of law is not merely a statement of historical fact as to the growth of English law. It is itself a rule of law, but the proposition that much of the law of Rome has become incorporated into the law of England is simply a statement of fact, which has in law no relevance or recognition. The legal sources of law are authoritative. The historical are unauthoritative. The former are allowed by the law courts as of right. The latter have no such claim. They influence more or less extensively the course of legal development, but they speak with no authority. No rule of law demands their recognition. Thus both the statute book and the works of Jeremy Bentham are material sources of English law. The historians of that system have to take account of both of them. Much that is now established law has its source in the ponderous volumes of the great law reformer, if there is an essential difference between the two cases. What the statute book says becomes law forthwith, and if so, ure. But what Bentham says may or may not become law, and if it does, it is by no claim of right, but solely through the unconstrained good pleasure of the legislature or the courts. So the decisions of English courts are a legal and authoritative source of English law, but those of American courts are in England merely an historical and unauthoritative source. They are treated with respect by English judges, and are in fact the ground and origin of an appreciable portion of English law, but their operation is persuasive merely, not authoritative, and no rule of English law extends recognition to them. The legal sources are the only gates through which new principles can find entrance into the law. Historical sources operate only immediately and indirectly. They are merely the various precedent links in that chain of which the ultimate link must be some legal source to which the rule of law is directly attached. We are here concerned solely with the legal sources of the law. Its formal source is involved in the definition of the law itself, and has been already sufficiently dealt with. Its historical sources pertain to legal history, not to legal theory. Hereafter, when we speak of the sources of law, we shall mean by that term the legal sources exclusively. It may help us to attain a clearer understanding of a somewhat difficult matter if we attempt to reach a definition of these sources from another standpoint. In every progressive community the law undergoes a continuous process of growth and change. This process of legal evolution does not proceed by haphazard. It is not left to the discretion of the judges to apply one law today and another tomorrow. For the growth of the law is itself a matter governed by the law. Every legal system contains certain rules determining the establishment of new law and the disappearance of old. That is to say it contains certain rules to this effect. That all new principles which conform to such and such requirements are to be recognized as new principles of law, and applied accordingly in substitution for or a supplementary to the old. Thus it is itself a principle of English law that any principle involved in a judicial decision has the force of law. Similar legal recognition is extended to the law producing effective statutes and immemorial customs. Rules such as these establish the sources of the law. A source of law then is any fact which in accordance with the law determines the judicial recognition and acceptance of any new rule as having the force of law. It is the legal cause of the admittance by the judicature of any new principle as one which will be observed for the future in the Administration of Justice. Section 46, a list of legal sources. We cannot deduce from the nature of law the nature of its sources, for these are merely contingent, not necessary. They differ in different systems and even in the same system at different periods of its growth. It is possible however to distinguish five sources which in England or elsewhere have possessed predominant influence. These are legislation, custom, precedent, professional opinion and agreement. Legislation is the declaration or enunciation of a principle by some adequate authority in the body politic. Custom is the realization or embodiment of a principle in the uniformity of practice. Precedent is the judicial application of a principle to its appropriate facts. Professional or expert opinion is the approval or recognition of a principle by the general voice of those whose business it is to know the law. Agreement is the adoption of a principle by the consent of those whose interests are affected by it. Such declaration, realization, application, approval and adoption determine in each case the judicial recognition as law of the principle so dealt with, and therefore constitute the sources of the law. Law which has its source in legislation is called statute, an acted or written law. That which is based on custom is customary law. Precedent produces case law and agreement conventional law. That which is created by professional or expert opinion has no recognized title. But in analogy to German usage we may call it juristic law, jurist and recht. There are two chief reasons for allowing law creative operation to these various sources. In the first place there is a presumption that principles proceeding from them are principles of truth and justice, worthy of adoption by the Judicature. A statute is an attempt made by the Legislature to formulate the rules of right for the use and direction of the Judicature. This attempt is not always successful, for law and justice are sometimes far apart. Yet no better device has been discovered and the courts accept the rules so formulated as authoritative and final. A similar presumption of truth and justice is one of the grounds of the operation of precedent also. When one of the superior courts of law has after a solemn argument and full consideration laid down a certain principle as one fit to be applied to the case in hand, there is a reasonable presumption that this decision is correct, and that the principle is a just one fit to be applied to all similar cases in the future. That is to say fit to receive permanent recognition as a new rule of law. Res Judicata Proveritate Asipiture So also in the case of custom. Customary law has as one of its foundations the presumption that whatever is customary is just and expedient. The popular conscience embodies itself in popular usage, and the law courts accept as authoritative the principles so sanctioned and approved. Professional opinion, the opinion of lawyers, is merely an historical, not a legal source of English law. In other systems however, and chiefly in that of Rome, it has shown itself capable of serving as one of the most important of legal sources. Almost all that is of special value in Roman law has this as its origin. The digest of Justinian consists wholly of extracts from the writing of Roman lawyers. It is clear that one of the grounds for the allowance of such opinion as a source of law is to be found in a reasonable confidence in the skill and knowledge of the expert. Cuque Insua Arte Credentum Est Finally, we may see the same influence at work in the case of the fifth and last source, namely agreement. Every man may be trusted to cede his own interests and to claim his own rights. Whatever rule therefore is freely agreed upon by two or more persons as defining their mutual rights and obligations may be confidently accepted by the law courts as a true and just rule between those who have so consented to it. As to them it is fit and proper to be applied as law. There is however a second ground of not less importance on which the efficacy of these legal sources rests. They are not merely presumptive evidence of the justice and truth of the principles proceeding from them, but they are the basis of a rational expectation on the part of all persons concerned that these principles will be consistently acted on in the future. Justice demands that such expectations shall be fulfilled. Even when a rule does not accurately conform to the ideal standard, it may be a right and reasonable thing to adhere to it, when it has once been formulated, for men act on the faith of it, and to overturn an imperfect rule with all the expectations built upon it will often do more harm than can be counterbalanced by any benefits to be derived from the substitution of a better principle. Thus legislation is an announcement to all the world that in future certain principles will be applied in the administration of justice. Fourth, with the expectations, dealings and contracts of all men concerned are based upon the principles so declared, and the disregard of them by the Judicature would be a breach of faith and an ill service to the course of justice. Similarly, the decision of a court may not be perfectly wise or just, but whether it is or not all men expect that like decisions will for the future be given in like cases. It is often more important that the course of judicial decisions should be uniform and within the limits of human foresight than that it should be ideally just, so with all the other sources of law. That which has always been customary in the past is entitled for this reason alone to a certain measure of allowance and recognition in the future. That which is approved by the general opinion of the legal profession serves so largely as the basis of the actions and expectations of men that the courts of law will not lightly depart from it. That which all parties interested have agreed to and which they have declared as valid law to bind them may not for all that be absolutely just and reasonable, but they must be held bound by it nonetheless, otherwise there will be no certainty of dealing among mankind. 47. The sources of law is constitutive and abrogative. The process of legal evolution is threefold. It comprises in the first place the increase or growth of law, that is to say the substitution of legal principles for the discretion of courts and the transformation of fact into law. It involves in the second place the opposite process of the decrease of law, the reconquest by the arbitrium eudicious of domains formally occupied by legal principle, the transformation of law into fact. Finally it includes the alteration of law, that is to say the destruction of one legal principle and the substitution of another in its stead. To carry out this threefold process it is clear that we require instruments of legal development which are capable not merely of creating new law, but of destroying old. It is not sufficient to obtain new law which stands side by side with the old as a supplement to it. It is necessary to obtain new law which excludes the old as a substitute for it. We must possess instruments of abrogative and not merely instruments of constitutive power. So far we have considered the sources of law only in respect of this latter operation. We have yet to consider to what extent they possess the power of destroying law as well as of creating it. The conservative virtue of the law has at all times been very great. We find accordingly that the constitutive operation of the sources is much more general and the abrogative. It by no means follows that because a certain fact is capable of giving rise to a new rule it is equally capable of getting rid of an old one. Legislation indeed is preeminent in this respect above all other legal sources. Alone among the instruments of legal development it works with equal facility in both ways and it is this peculiarity which makes it so efficient a method of legal reform. In the strict theory of the law precedent is wholly constitutive being quite destitute of abrogative power. When the law is already settled the judges have no authority safe to obey and administer it. Their power of making new law by way of judicial decision is limited to those vacant spaces where there is as yet no other law which they can apply. Presidents make law but cannot alter it. Mercantile custom resembles precedent. So long as the ground is vacant, so long as there is no rule of the common law in pari materia, the proved custom of merchants will be allowed by the courts as a source of new law. But so soon as from this or any other source principles have been once established in the matter there is no longer any room for new rules thus arising. Immemorial custom on the other hand has full power to derogate from the common law, though the statute law is beyond its operation. Agreement possesses considerable though not complete abrogative power. A great part of the law is subject to supercession and modification by the consent of all persons interested. Modus, it, conventio, vincaunt, legum. It is law only until and unless there is some agreement to the contrary. The residue of the law however is peremptory and not to be thus excluded by consent. Agreements which attempt to derogate from it and to establish special law in place of it are illegal and void. Section 48. Sources of law and sources of rights. The sources of law may also serve as sources of rights. By a source or title of rights is meant some fact which is legally constitutive of rights. It is the de facto antecedent of illegal right. Just as a source of law is the de facto antecedent of illegal principle. An examination of any legal system will show that to a large extent the same classes of facts which operate as sources of law operate as sources of rights also. The two kinds of sources form intersecting circles. Some facts create law but not rights. Some create rights but not law. Some create both at once. An act of parliament for example is a typical source of law but there are numerous private acts which are clearly titles of legal rights such as an act of divorce or an act granting a pension for public services or an act incorporating a company. So in the case of precedent the judicial decision is a source of rights as between the parties to it. Though a source of law as regards the world at large. Regarded as creative of rights it is called a judgment. Regarded as creative of law it is called a precedent. So also immemorial custom does upon occasion give rise to rights as well as to law. In respect to the former operation it is specifically distinguished as prescription while as a source of law it retains the generic title of custom. That an agreement operates as a source of rights as a fact too familiar to require illustration. The proposition which really needs emphatic statement in this case is that agreement is not exclusively a title of rights but is also operative as a source of law. Section 49 Ultimate Legal Principles All rules of law have historical sources. As a matter of fact and history they have their origins somewhere though we may not know what it is. But not all of them have legal sources. Were this so it would be necessary for the law to proceed ad infinitum in tracing the descent of its principles. It is requisite that the law should postulate one or more first causes whose operation is ultimate and whose authority is undurived. In other words there must be found in every legal system certain ultimate principles from which all others are derived but which are themselves self-existent. Before there can be any talk of legal sources there must be already in existence some law which establishes them and gives them their authority. The rule that a man may not ride a bicycle on the footpath may have its source in the bylaws of a municipal council. The rule that these bylaws have the force of law has its source in an act of parliament. But whence comes the rule that acts of parliament have the force of law? This is legally ultimate. Its source is historical only, not legal. The historians of the Constitution know its origin but lawyers must accept it as self-existent. It is the law because it is the law and for no other reason that it is possible for the law itself to take notice of. No statute can confer this power upon parliament. For this would be to assume and act on the very power that is to be conferred. So also the rule that judicial decisions have the force of law is legally ultimate and undurived. No statute lays it down. It is certainly recognized by many precedents. But no precedent can confer authority upon precedent. It must first possess authority before it can confer it. If we inquire as to the number of these ultimate principles, the answer is that a legal system is free to recognize any number of them, but is not bound to recognize more than one. From any one ultimate legal source it is possible for the whole law to be derived. But one such there must be. A statute, for example, may at any time give statutory authority to the operation of precedent and so reduce it from an ultimate to a derivative source of law. Summary. Sources of law divided into formal, source of the authority of the law and material, source of the contents of the law. Material sources divided into legal, immediate and legally recognized and historical, remote and not legally recognized. Legal sources divided into one, legislation enacted law, two, custom, customary law, three, precedent, case law, four, professional opinion, juristic law, five, agreement, conventional law. Grounds of the recognition of these sources. Operation of sources divided into constitutive, adding new law to old and abrogative substituting new law for old. Extent of abrogative power possessed by the sources. Relation between sources of law and sources of rights. Legal principles divided into ultimate without legal sources and derivative drawn from legal sources. End of section 10, reading by Ian Stewart, Rosanna, Victoria, Australia.