 section 4 of Juris Prudence. 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. Juris Prudence by John Salmond. Chapter 3, Other Kinds of Law Part 1. Section 14, Law in General, A Rule of Action. Having considered in the foregoing chapter the nature of civil law exclusively, we now proceed to examine certain other kinds of law which need to be distinguished from this and from each other. In its widest and vaguest sense the term law includes any rule of action. That is to say any standard or pattern to which actions, whether the acts of rational agents or the operations of nature, are ought to be conformed. In the words of Hooker, we term any kind of rule or canon whereby actions are framed a law. So Blackstone says, law in its most general and comprehensive sense signifies a rule of action and is applied indiscriminately to all kinds of action whether animate or inanimate, rational or irrational. Thus we say the laws of motion of gravitation of optics or mechanics as well as the laws of nature and of nations. Of law in this sense there are many kinds and the following are sufficiently important and distinct to deserve separate mention and examination. 1. Physical or scientific law. 2. Natural or moral law. 3. Imperative law. 4. Conventional law. 5. Customary law. 6. Practical law. 7. International law. 8. Civil law. Before proceeding to analyze and distinguish these there are the following introductory observations to be made. 1. This list is not based on any logical scheme of division and classification, but is a mere simplex enumeratio of the chief forms of law. 2. There is nothing to prevent the same rule from belonging to more than one of these classes. 3. Any discussion as to the rightful claims of any of these classes of rules to be called law, any attempt to distinguish law properly so-called from law improperly so-called would seem to be nothing more than a purposeless dispute about words. Our business is to recognize the fact that they are called law and to distinguish accurately between the different classes of rules that are thus known by the same name. Section 15. Physical or scientific law. Physical laws of the laws of science are expressions of the uniformities of nature. General principles expressing the regularity and harmony observable in the activities and operations of the universe. It is in this sense that we speak of the law of gravitation, the laws of the tides, or the laws of chemical combination. Even the actions of human beings, as far as they are uniform, are the subject of law of this description. As, for example, when we speak of the laws of political economy or of Grimm's law of phonetics, these are rules expressing not what men ought to do, but what they do. Physical laws are also and more commonly called natural laws or the laws of nature. But these latter terms are ambiguous, for they signify also the moral law, that is to say the principles of natural right and wrong. This use of the term law to connote nothing more than uniformity of action is derived from law in the sense of an imperative rule of action. By way of the theological conception of the universe as governed in all its operations, animate and inanimate. Rational and irrational by the will and command of God. The primary source of this conception is to be found in the Hebrew Scriptures, and its secondary and immediate source and the scholasticism of the Middle Ages. A system of thought which was formed by a combination of the theology of the Hebrews with the philosophy of the Greeks. The Bible constantly speaks to the deity as governing the universe, animate and inanimate, just as a ruler governs a society of men. And the order of the world is conceived as due to the obedience of all created things to the will and commands of their Creator. He gave to the sea his decree, that the waters should not pass his commandment. He made a decree for the rain and a way for the lightning of the thunder. The schoolmen made this same conception one of the first principles of their philosophic system. The Lex Eterna, according to Saint Thomas Aquinas, is the ordinance of the divine wisdom by which all things in heaven and earth are governed. There is a certain eternal law to which reason, existing in the mind of God and governing the whole universe. For law is nothing else than the dictate of the practical reason in the ruler who governs a perfect community. Just as the reason of the divine wisdom, inasmuch as by it all things were created, has the nature of a type or idea. So also, inasmuch as by this reason all things are directed to their proper ends, it may be said to have the nature of an eternal law. And accordingly, the law eternal is nothing else than the reason of the divine wisdom regarded as regulative and directive of all actions and emotions. This Lex Eterna was divided by the schoolmen into two parts. One of these is that which governs the actions of men. This is the moral law, the law of nature or of reason. The other is that which governs the actions of all other created things. This is that which we now term physical law or natural law in the modern and prevalent sense of that ambiguous term. This latter branch of the eternal law is perfectly and uniformly obeyed for the irrational agents on which it is imposed can do no otherwise than obey the dictates of the divine will. But the former branch, the moral law of reason, is obeyed only partially and imperfectly for man by reason of his prerogative of freedom may turn aside from that will to follow his own desires. Physical law therefore is an expression of actions as they actually are. Moral law or the law of reason is an expression of actions as they ought to be. This scholastic theory of law finds eloquent expression in the writings of Hooker in the 16th century. He is commanding those things to be which are and to be in such sort as they are to keep that tenure and course which they do importeth the establishment of nature's law. Since the time that God did first proclaim the edicts of his law upon it, heaven and earth have hearkened unto his voice, and their labor hath been to do his will. See we not plainly that the obedience of creatures unto the law of nature is the stay of the whole world. Of law there can be no less acknowledged than that her seat is the bosom of God, her voice the harmony of the world, all things in heaven and earth do her homage. The modern use of the term law in the sense of physical or natural law to indicate the uniformities of nature is directly derived from this scholastic theory of the lexaterna, but the theological conception of divine legislation on which it was originally based is no eliminated or disregarded. The relation between the physical law of inanimate nature and the moral or civil laws by which men are ruled has been reduced accordingly to one of remote analogy. Section 16, Natural or Moral Law. By natural or moral law is meant the principles of natural right and wrong, principles of natural justice if we use the term justice in its widest sense to include all forms of rightful action. Right or justice is of two kinds, distinguished as natural and positive. Natural justice is justice as it is indeed and in truth in its perfect idea. Positive justice is justice as it is conceived, recognized and expressed, more or less incompletely and inaccurately, by the civil or some other form of human and positive law. Just as positive law, therefore, is the expression of positive justice, so philosophers have recognized a natural law, which is the expression of natural justice. This distinction between natural and positive justice, together with the corresponding and derivative distinction between natural and positive law, comes to us from Greek philosophy. Natural justice is phinesicom oequion. Positive justice is nomicon oequion and the natural law, which expresses the principles of natural justice, is phinesicos nomos. When Greek philosophy passed from Athens to Rome, phinesicom oequion appeared there as justicia naturalis and phinesicom nomos as lex naturae oeus naturalae. This natural law was conceived by the Greeks as a body of imperative rules imposed upon mankind by nature, the personified universe. The Stoics, more particularly, thought of nature or the universe as a living organism, of which the material world was the body and of which the deity or the universal reason was the pervading, animating and the governing soul. And natural law was the rule of conduct laid down by this universal reason for the direction of mankind. Natural law has received many other names expressive of its divers, qualities and aspects. It is divine law, yus divinum, the command of God imposed upon men. This aspect of it being recognized in the pantheism of the Stoics and coming into the forefront of the conception. So soon as natural law obtained a place in the philosophical system of Christian writers. Natural law is also the law of reason, as being established by that reason by which the world is governed, and also as being addressed to and perceived by the rational nature of man. It is also the unwritten law, yus nonscriptum, as being written not on brazen tablets or on pillars of stone but solely by the finger of nature in the hearts of men. It is also the universal or common law, goinnos nomos, yus communae, yus gentium, as being of universal validity. The same in all places and binding on all peoples, and not one thing at Athens and another at Rome, as are the civil laws of states. Yonnos nomos, yus civila. It is also the eternal law, Lex Aetana, as having existed from the commencement of the world uncreated and immutable. Lastly in modern times we find it termed the moral law, as being the expression of the principles of morality. The term natural law in the sense with which we are here concerned is now for an almost completely out of use. We speak of the principles of natural justice, or of the rules of natural morality, but seldom of the law of nature, and for this departure from the established usage of ancient and medieval speech there are at least two reasons. The first is that the term natural law has become equivocal, for it is now used to signify physical law, the expression of the uniformities of nature. The second is that the term law, as applied to the principles of natural justice, brings with it certain misleading associations, suggestions of command, imposition, external authority, legislation, which are not in harmony with the moral philosophy of the present day. The following quotations illustrate sufficiently the ancient and medieval conceptions of the law of nature. Aristotle, law is either universal, co-inos, nomos, or special, aunos, nomos. Special law consists of the written enactments by which men are governed. The universal law consists of those unwritten rules which are recognized among all men. Right and wrong have been defined by reference to two kinds of law. Special law is that which is established by each people for itself. The universal law is that which is conformable merely to nature. Cicero, there is indeed a true law, lex, right reason, agreeing with nature, diffused among all men, unchanging, everlasting. It is not allowable to alter this law, nor to derogate from it, nor can it be repealed. We cannot be released from this law, either by the praetor or by the people, nor is any person required to explain or interpret it. Nor is it one law at Rome and another at Athens, one law today and another hereafter. But the same law, everlasting and unchangeable, will bind all nations at all times. And there will be one common law and ruler of all, even God, the framer and proposer of this law. Philo Eudacus The unerring law is right reason, not an ordinance made by this or that mortal. A corruptable and perishable law, a lifeless law written on lifeless parchment, or engraved on lifeless columns, but one imperishable and impressed by immortal nature on the immortal mind. Gaius, All peoples that are ruled by laws and customs observe partly law peculiar to themselves, and partly law common to all mankind. That which any people has established for itself is called Yus Sevillea, as being law peculiar to that state, Yus Propreum Civitatus. But that law, which natural reason establishes among all mankind, is observed equally by all peoples, and is for that reason called Yus Gentium, Justinian. Natural law, Euronaturalea, which is observed equally in all nations being established by divine providence, remains forever settled and immutable, but that law which each state has established for itself is often changed either by legislation or by the tacit consent of the people. Hooper. The law of reason or human nature is that which men by discourse of natural reason have rightly found out themselves to be all forever bound unto in their actions. Christian Tomasius. Natural law is a divine law written in the hearts of all men, obliging them to do those things which are necessarily consonant to the rational nature of mankind, and to refrain from those things which are repugnant to it. The Yus Gentium of the Roman lawyers. It is a commonly received opinion that Yus Gentium, although identified as early as the time of Cicero with the Yus natural of the Greeks, was in its origin and primary signification something quite distinct, a product not of Greek philosophy but of Roman law. It is alleged that Yus Gentium meant originally that system of civil and positive law which was administered in Rome to aliens. Peregrini, as opposed to the system which was the exclusive birthright and privilege of Roman citizens, Yus Sevele or Yus Curitium, that this Yus Gentium being later in date and the Yus Sevele was so much more reasonable and perfect that it came to be identified with the law of reason itself, the Yus Naturala of the Greeks, and so acquired a double meaning. One, Yus Gentium vis Yus Naturala, and two, Yus Gentium vis that part of the positive law of Rome which was applicable to aliens and not merely to citizens. That the term Yus Gentium did possess this double meaning cannot be doubted, but it may be gravely doubted whether the true explanation of the fact is that which has just been set forth. It would seem more probable that Yus Gentium was in its very origin synonymous with Yus Naturala, a philosophical or ethical and not a technical legal term. The Roman equivalent of the Coenos Nomos of Aristotle and the Greeks and that the technical significance of the term is secondary and derivative. Yus Gentium came to mean not only the law of nature, principles of natural justice, but also a particular part of the positive law of Rome, namely that part which was derived from and in harmony with those principles of natural justice and which therefore was applicable in Roman law courts to all men equally, whether Syvese or Peregrini. In the same way in England the term equity, although originally purely ethical and the mere equivalent of natural justice or Yus Naturala, acquired a secondary derivative and technical use to signify a particular portion of the civil law of England, namely that portion which was administered in the court of chancellery and which was called equity because derived from equity in the original ethical sense. This however is not the place in which to enter into any detailed examination of this very interesting and difficult problem in the history of human ideas. Section 17 Imperative Law Imperative law means any rule of action imposed upon men by some authority which enforces obedience to it. In other words an imperative law is a command which prescribes some general course of action and which is imposed and enforced by superior power. The instrument of such enforcement, the sanction of the law, is not necessarily physical force, but may consist in any other form of constraint or compulsion by which the actions of men may be determined. Lex, says Pufendorf, est decoratum quo superior cb subjectum obligat ought istius prescriptum actione suas component. A law, says Ostern, is a command which obliges a person or persons to a course of conduct. Laws of this kind are to be classified by reference to the authority from which they proceed. They are in the first place either divine or human. Divine laws consist of the commands imposed by God upon men and enforced by threats of punishment in this world or in the next. For example, the Ten Commandments. Human laws consist of imperative rules imposed by men upon men and they are of three chief kinds, namely civil law, the law of positive morality and the law of nations. Civil law consists, in part at least and in one of its aspects, of commands issued by the state to its subjects and enforced by its physical power. Positive morality, the law of opinion or of reputation, as Locke calls it, consists of the rules imposed by society upon its members and enforced by public censure or disapprobation. The law of nations or international law consists, in part at least and in one aspect, of rules imposed upon states by the society of states and enforced partly by international opinion and partly by the threat of war. Many writers are content to classify the civil law as being essentially and throughout its whole compass nothing more than a particular form of imperative law. They consider that it is a sufficient analysis and definition of civil law to say that it consists of the commands issued by the state to its subjects and enforced if necessary by the physical power of the state. This may be termed the imperative or more accurately the purely imperative theory of the civil law. The civil law, says Hobbes, are the command of him who is endued with supreme power in the city, that is the state, civitas, concerning the future actions of his subjects. Similar opinions are expressed by Bentham and Austin and have in consequence been widely, though by no means universally, accepted by English writers. This imperative theory, though it falls short of an adequate analysis, does undoubtedly express a very important aspect of the truth. It rightly emphasizes the central fact that law is based on physical force, for law exists only as an incident of the administration of justice by the state, and this consists essentially in the imperative and coercive action of the state in imposing its will by force if need be upon the members of the body politic. It is men and arms, says Hobbes, that make the force and power of the laws. Law has its sole source, not in custom, not in consent, not in the spirit of the people, as some would have us believe, but in the will and the power of him who in a commonwealth beareth not the sword in vain. This then may be accepted as the central truth contained in the imperative theory of law, and if this is so, there is no weight to be attributed to that which may be termed the historical argument against this theory. It is objected by some, that though the definition of law as the command of the state is plausible, and at first sight sufficient, as applied to the developed political societies of modern times, it is quite inapplicable to more primitive communities. Early law, it is said, is not the command of the state. It has its source in custom, religion, opinion, not in any authority vested in a political superior. It is not till a comparatively late stage of social evolution that law assumes its modern form, and is recognized as a product of supreme power. Law, therefore, is prior to and independent of political authority and enforcement. It is enforced by the state because it is already law, not vice versa. To this argument, the advocates of the imperative theory can give a valid reply. If there are any rules prior to and independent of the state, they may greatly resemble law. They may be the primeval substitutes for law. They may be the historical source from which law is developed and proceeds, but they are not themselves law. There may have been a time in the far past when a man was not indistinguishable from an anthropoid ape, but that is no reason for now defining a man in such wise as to include an ape. To trace two different things to a common origin in the beginnings of their historical evolution is not to disprove the existence or the importance of an essential difference between them as they now stand. This is to confuse all boundary lines, to substitute the history of the past for the logic of the present, and to render all distinction and definition vain. The historical point of view is valuable as a supplement to the logical and analytical, but not as a substitute for it. It must be borne in mind that in the beginning the whole earth was without form and void, and that science is concerned not with chaos, but with cosmos. The plausibility of the historical argument proceeds from the failure adequately to comprehend the distinction hereafter to be noticed by us between the formal and the material sources of law. Its formal source is that from which it obtains the nature and force of law. This is essentially and exclusively the power and will of the state. Its material sources on the other hand are those from which it derives its material contents. Custom and religion may be the material sources of a legal system no less than that expressed declaration of new and legal principles by the state which we term legislation. In early times indeed legislation may be unknown. No rule of law may as yet have been formulated in any declaration of the state. It may not have yet occurred to any man at such a process as legislation is possible, and no ruler may ever yet have made a law. Custom and religion may be all powerful and exclusive. Nevertheless if any rule of conduct has already put on the true nature form and essence of the civil law it is because it has already at its back the power of the organized common wealth for the maintenance and enforcement of it. Yet although the imperative theory contains this element of the truth it is not the whole truth. It is one sided and inadequate the product of an incomplete analysis of juridical conceptions. In the first place it is defective in as much as it disregards that ethical element which is an essential constituent of the complete conception. As to any special relation between law and justice this theory is silent and ignorant. It eliminates from the implication of the term law all elements save that of force. This is an illegitimate simplification for the complete idea contains at least one other element which is equally essential and permanent. This is right or justice. If rules of law are from one point of view commands issued by the state to its subjects from another standpoint they appear as the principles of right and wrong so far as recognized and enforced by the state and the exercise of its essential function of administering justice. Law is not right alone or might alone but the perfect union of the two. It is justice speaking to men by the voice of the state. The established law indeed may be far from corresponding accurately with the true rule of right nor is its legal validity in any way affected by any such imperfection. Nevertheless in idea law and justice are coincident. It is for the expression and realization of justice that the law has been created and like every other work of men's hands it must be defined by reference to its end and purpose. A purely imperative theory therefore is as one sided as a purely ethical or non-imparative theory would be. It mistakes a part of the connotation of the term defined for the whole of it. We should be sufficiently reminded of this ethical element by the usages of popular speech. The terms law and justice are familiar associates. Courts of law are also courts of justice and the administration of justice is also the enforcement of law. Right, wrong and duty are leading terms of law as well as of morals. If we turn from our own to foreign languages we find that law and right are usually called by the very same name. Yos, Dwa, Recht, Dritto have all a double meaning. They are all ethical as well as juridical. They all include the rules of justice as well as those of law. Are these facts then of no significance? Are we to look on them as nothing more than accidental and meaningless coincidences of speech? It is this that the advocates of the theory in question would have us believe. We may, on the contrary, assume with confidence that these relations between the names of things are but the outward manifestation of very real and intimate relations between the things named. A theory which regards the law as the command of the state and nothing more, in which entirely ignores the aspect of law as a public declaration of the principles of justice would lose all its plausibility if expressed in a language in which the term for law signifies justice also. Even if we incorporate the missing ethical element in the definition even if we define the law as the sum of the principles of justice recognized and enforced by the state even if we say with Blackstone that law is a rule of civil conduct prescribed by the supreme power in a state commanding what is right and prohibiting what is wrong we shall not reach the whole truth. For though the idea of command or enforcement is an essential implication of the law in the sense that there can be no law where there is no coercive administration of justice by the state it is not true that every legal principle assumes or can be made to assume the form of a command. Although the imperative rules of right and wrong as recognized by the state constitute a part and indeed the most important part of the law they do not constitute the whole of it. The law includes the whole of the principles accepted and applied in the administration of justice whether they are imperative principles or not the only legal rules which conform to the imperative definition are those which create legal obligations and no legal system consists exclusively of rules of this description. All well-developed bodies of law contain innumerable principles which have some other purpose and content than this and so while outside the scope of the imperative definition these non-imperative legal principles are of various kinds there are for example permissive rules of law namely those which declare certain acts not to be obligatory or not to be wrongful a rule for instance declaring that witchcraft or heresy is no crime or that damage done by competition in trade is no cause of action it cannot be denied that these are rules of law as that term is ordinarily used and it is plain that they fall within the definition of the law as the principles acted on by courts of justice but in what sense are they enforced by the state they are not commands but permissions they create liberties not obligations so also the innumerable rules of judicial procedure are largely non-imperative they are in no proper sense rules of conduct enforced by the state let us take for example the principles that hearsay is no evidence that written evidence is superior to verbal that a contract for the sale of land cannot be proved except by writing that judicial notice will be taken of such and such facts that matters once decided or decided once for all as between the same parties that the interpretation of written documents is the office of the judge and not of the jury that witnesses must be examined on oath or affirmation that the verdict of a jury must be unanimous is it not plain that all these are in their true nature rules in accordance with which judges administer justice to the exclusion of their personal judgment and not rules of action appointed by the state for observance by its subjects and enforced by legal sanctions there are various other forms of non-imperative law notably those which relate to the existence application and interpretation of other rules the illustrations already given however should be sufficient to render evidence the fact that the purely imperative theory not merely neglects an essential element in the idea of law that also falls far short of the full application or denotation of the term all legal principles are not commands of the state and those which are such commands are at the same time and in their essential nature something more of which the imperative theory takes no account some writers have endeavored to evade the foregoing objection by regarding rules of procedure and all other non-imperative principles as being in reality commands addressed not to the ordinary subject to the state but to the judges the rule they say that murder is a crime is a command addressed to all persons not to commit murder and the rule that the punishment of murder is hanging is a command to the judges to inflict that punishment with respect to this contention it is to be observed in the first place that no delegation of its judicial functions by the supreme authority of the state is essential there is no reason of necessity why a despotic monarch or even a supreme legislature should not personally exercise judicial functions in such a case the rules of procedure could not be enforced upon the judicature yet it could scarcely be contended that they would for that reason cease to be true rules of law and in the second place even when the judicial functions of the state are delegated to subordinate judges it is in no way necessary that they should be amenable to the law for the due performance of their duties other rules of evidence for example entitled to the name of law only because of the fact if fact it be that the judges who administer them may be legally punished for their disregard of them it is surely sufficiently obvious that the legal character of all such rules is a consequence of the fact that they are actually observed in the administration of justice not of the fact if it is a fact that the judicature is bound by legal sanctions to observe them end of chapter 3 part 1 recording by Ian Stewart Rosanna Victoria Australia section 5 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 other kinds of law part 2 section 18 conventional law by conventional law is meant any rule or system of rules agreed upon by persons for the regulation of their conduct towards each other agreement is a law for the parties to it examples are the rules and regulations of a club or other society and the laws of wist, cricket or any other game what are the laws of wist except the rules which the players expressly or tacitly agree to observe in their conduct of the game in many cases conventional law is also civil law for the rules which persons by mutual agreement lay down for themselves are often enforced by the state but whether or not these conventional rules thus receive recognition and enforcement as part of the law of the land they constitute law in the wide sense of a rule of human action the most important branch of conventional law is the law of nations which as we shall see later consists essentially of the rules which have been agreed upon by states as governing their conduct and relations to each other section 19 customary law by customary law is here meant any rule of action which is actually observed by men any rule which is the expression of some actual uniformity of voluntary action custom is a law for those who observe it a law or rule which they have set for themselves and to which they voluntarily conform their actions it is true that custom is very often obligatory that is to say it is very often enforced by some form of imperative law whether the civil law or the law of positive morality but irrespective of any such enforcement and by reason solely of its de facto observance it is itself a law in that wide sense in which law means a rule of action some writers regard international law as a form of customary law they define it as consisting of the rules actually observed by states in their conduct towards each other we shall consider this opinion in the later section of the present chapter civil law as we have defined it is a form of customary law in as much as it consists of the rules actually observed by the state in the administration of justice it is the custom of the judicature the relation between popular custom and the civil law is an important matter which will be considered in a later chapter it is sufficient here to make the following remarks with regard to it one popular custom has not in itself the nature of civil law for the essence of civil law lies in its recognition by the state in the administration of justice two popular custom is one of the primitive substitutes for civil law men being governed by custom before the state has been established or has undertaken the function of making and administering law three popular custom is one of the sources of the civil law for that law when it comes into existence is largely modeled on the pre-existing customs of the community civil law which is the customer of the state is based to a large extent on that precedent customary law which is merely the custom of the society section 20 practical law yet another kind of law is that which consists of rules with the attainment of some practical end and which for want of a better name we may term practical law these laws are the rules which guide us to the fulfillment of our purposes which inform us as to what we ought to do or must do in order to attain a certain end examples of such are the laws of health the laws of musical and poetical composition the laws of style the laws of architecture the rules for the efficient conduct of any art or business the laws of a game such as whist are of two kinds some are conventional being the rules agreed upon by the players others are practical being the rules for the successful playing of the game section 21 international law international law or the law of nations consists of those rules which govern sovereign states in their relations and conduct towards each other all men agree that such a body of law exists and that states do in fact act in obedience to it but when we come to inquire what is the essential nature and source of this law we find in the writings of those who deal with it a very curious absence of deafness and unanimity the opinion which we shall here adopt as correct is that the law of nations is essentially a species of conventional law that it has its source in international agreement that it consists of the rules which sovereign states have agreed to observe in their dealings with each other this law has been defined by Lord Russell of Killowan as the aggregate of the rules to which nations have agreed to conform in their conduct towards one another the law of nations said Lord Chief Justice Colleridge is that collection of usages which civilized states have agreed to observe in their dealings with each other the authorities seem to me says Lord Esher to make it clear that the consent of nations is requisite to make any proposition part of the law of nations to be binding says Lord Cockburn the law must have received the assent of the nations who are to be bound by it this assent may be expressed as by treaty or the acknowledged concurrence of governments or may be implied from established usage the international agreement which thus makes international law is of two kinds being either express or implied express agreement is contained in treaties and international conventions such as the declaration of paris or the convention of the Hague implied agreement is evidenced chiefly by the custom or practice of states by observing certain rules of conduct in the past states have impliedly agreed to abide by them in the future by claiming the observance of such customs from other states they have impliedly agreed to be bound by them themselves international law derived from express agreement is called in a narrow sense the conventional law of nations although in a wider sense the whole of that law is conventional that part which is based on implied agreement is called the customary law of nations the tendency of historical development is for the whole body of the law to be reduced to the first of these two forms to be codified and expressed in the form of an international convention to which all civilized states have given their express consent just as customary civil law tends to be absorbed in enacted law so customary international law tends to be merged in treaty law international law is further divisible into two kinds which may be distinguished as the common law of nations and the particular law of nations the common law is that which prevails universally or at least generally among all civilized states being based on their unanimous or general agreement express or implied the particular law is that which is enforced solely between two or more states by virtue of an agreement made between them alone and derogating from the common law international law exists only between those states which have expressly or impliedly agreed to observe it those states which now include all civilized communities and some which are as yet only imperfectly civilized are said to constitute the family or society of nations an international society governed by the law of nations just as each national society is governed by its own civil law new states are received into this society by mutual agreement and thereby obtain the rights and become subject to the duties created and imposed by international law writers are however as we have already indicated far from being unanimous in their analysis of the essential nature of the law of nations and the various competing theories may be classified as follows one that the law of nations is or at least includes a branch of natural law namely the rules of natural justice as applicable to the relations of states into say two that it is a kind of customary law namely the rules actually observed by states and their relations to each other three that it is a kind of imperative law namely the rules enforced upon states by international opinion or by the threat or fear of war four that it is a kind of conventional law as already explained having accepted the last of these theories as correct let us shortly consider the nature and claims of the three others section 22 the law of nations as natural law all writers on international law may be divided into three classes by reference to their opinions as to the relation between this law and the principles of natural justice the first class consists of those who hold that the law of nations is wholly included within the law of nature that it consists merely of the principles of natural justice so far as applicable to sovereign states in the relations and conduct towards each other at the study of international law is simply a branch of moral philosophy and that there is no such thing as a positive law of nations consisting of a body of artificial rules established by states themselves thus Hobbes says as for the law of nations it is the same with the law of nature for that which is the law of nature between man and man before the constitution of commonwealth is the law of nations between sovereign and sovereign after the same opinion is expressed by Christian Tomasius, Pufendorf, Bola Makhwe and others but is now generally discredited though it is not destitute of support even yet the second opinion is that international law is both natural and positive that it is divisible into two parts distinguished as the natural law of nations which consists of the rules of natural justice as between states and the positive law of nations consisting of rules established by states by agreement custom or in some other manner for the government of their contact towards each other the natural law of nations is supplementary or subsidiary to the positive law being applicable only when no positive rule has been established on the point representatives of this opinion are Grotius, Wolf, Patel, Blackstone, Halleck, Wheaton, Fillymore, Fiore, Twiss and others the third opinion is that international law is wholly positive that it consists exclusively of a set of rules actually established in some way by the action of sovereign states themselves and that the rules of natural justice are not in themselves rules of international law at all but pertain to that law only if and only so far as they have been actually incorporated into the established system of positive law this is now the prevalent opinion and we have here accepted it as the correct one by those who maintain it the rules of natural justice as between states are called international morality and are distinguished by this name from international law these two bodies of rules are partly coincident and partly discordant the conduct of a state may be a breach of international morality but not of international law or a breach of law though in accordance with morality or it may be both immoral and illegal the question where the rules of natural justice are to be included as a part of international law is indeed in one aspect a mere question of words for these rules exist and states are in honor bound by them and the question is merely asked to the name to be given to them nevertheless questions of words are often questions of practical importance and it is of undoubted importance to emphasize by a difference of nomenclature the difference between rules of international morality by which indeed states are bound whether they have agreed to them or not but which are uncertain and subject to endless dispute and those rules of international law which by means of international agreement have been defined and established and removed from the sphere of the discussions and insoluble doubts of moral casuistry section 23 the law of nations has customary law even those writers who agree in the opinion that international law is or at least include a system of positive law differ among themselves as to the essential nature and source of these rules and we proceed to consider the various answers that have been given to this question some writers consider that international law has its source in international custom that it consists essentially and exclusively of the rules which are actually observed by sovereign states in their dealings with one another this view however is not prevalent and is it is believed unsound international custom is not in itself international law it is nothing more than one kind of evidence of the international agreement in which all such law has its source there are many customs which because they are based on no such underlying agreement have not the force of law states being at liberty to depart from them when they please conversely there is much law which is not based on custom at all but on express international conventions these conventions if observed will of course create a custom in conformity with the law but they constitute law themselves from the time of their first making and do not wait to become law until they have been embodied in actual practice new rules of warfare established by convention in time of peace are law already in time of peace section 24 the law of nations as imperative law by some writers international law is regarded as a form of imperative law it consists they say of rules enforced upon states by the general opinion of the society of states and also in extreme cases by war wages against the offender by the state injured or by its allies thus Austin says laws or rules of this species which are imposed upon nations or sovereigns by opinions current among nations are usually styled the law of nations or international law in considering this view it is to be admitted that in many cases the rules of the law of nations are thus sanctioned and enforced by international opinion and force but the question to be answered is whether this sanction is of the essence of the matter because if it is so all rules so sanctioned must be and no others can be rules of international law it is clear however that the sanction of war cannot be the essential test for in the first place this sanction is but seldom applied even to undoubted violations of international law and in the second place it is at least as often resorted to when there is no violation of such law at all what then shall be said of the alternative sanction of international opinion is this the test and essence of a rule of international law for the following reasons it is submitted that it is not 1. Many forms of state action are censured by public opinion which are admittedly no violation of the law of nations a state may act within its legal rights and yet so oppressively or unjustly as to excite the adverse opinion of other nations 2. There may be violations of international law which are in the particular circumstances regarded as excusable and approved by international opinion 3. Public opinion is variable from day to day dependent on the special circumstances of the individual case not uniform as we pass from state to state not uniform even throughout the population of the same state international law on the other hand is a permanent uniform system of settled rules independent of the fickle breath of public approbation or censure made and unmade by the express or implied agreements of sovereign governments and not by the mere opinions and prejudices which for the moment are in public favor international law is one thing international positive morality is another thing but the doctrine here criticized identifies and confounds them as one international law is made as has been said by the acts and contracts of governments international opinion is made chiefly by journalists and the writers of books opinion if sufficiently uniform and sufficiently permanent will doubtless in time constrain the law into conformity with it but it is not the same thing 4. Public opinion cannot be made the basis of any rational or scientific body of rules or legal doctrines for such opinion is simply the belief of the public that certain forms of conduct are in conformity with natural justice so far as this belief is well founded the law based upon it is simply the law of nature so far as it is erroneous the law based on it is simply a mistake which disappears ipso facto on being recognized as such it is impossible to recognize as a subject of scientific interpretation and investigation any international law based on erroneous public opinion and if based on true opinion it is nothing save the principles of natural justice certain writers seek to avoid the first of these objections by so defining international law is to include only one portion of the body of rules approved and sanctioned by international opinion the remaining portion constituting international positive morality according to this opinion international law consists of those rules which international opinion not merely approves and also regards as rightly enforceable by way of war international positive morality on the other hand consists of those rules of which opinion approves but of the enforcement of which by way of war it would not approve that is to say international law is distinguished from international morality by an application of the distinction familiar to the older moralists between duties of perfect and duties of imperfect obligation this view would seem to be exposed to all the objections already made to the cruder theory which we have just considered with the exception of the first and it is also exposed to this further criticism that it is impossible thus to divide public opinion sharply into two parts by reference to the justification of war or any other kind of forcible compulsion whether such compulsion is right is a matter to be determined not by the application of any fixed or predetermined rules but by consideration of all the circumstances of the individual instance and even then opinion will in most cases be hopelessly discordant moreover there are forms of state action which are not the violation of any established rule of international law in which nevertheless are so contrary to the rightful interests of another state that they would be held to be rightly prevented or addressed by way of war conversely there are rules of undoubted law which are of such minor importance that a war for the vindication of them would be viewed by international opinion as a folly and a crime End of Chapter 3 Part 2 Recording by Ian Stewart Rosanna Victoria Australia Section 6 of Jurisprudence This is a LibriVox recording While LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org Jurisprudence by John Salmond Chapter 4 The Administration of Justice Part 1 Section 25 Necessity of the Administration of Justice A herd of wolves, it has been said, is quieter and more at one than so many men unless they all had one reason in them or have one power over them Unfortunately they have not one reason in them each being moved by his own interests and passions therefore the other alternative is the sole resource For the cynical emphasis with which he insists upon this truth the name and reputation of the philosopher Hobbes have suffered much yet his doctrine however hyperbolically expressed is true in substance Man is by nature a fighting animal and force is the ultimate ratio not of kings alone but of all mankind without a common power to keep them all in awe it is possible for men to cohere in any but the most primitive forms of society without it civilization is unattainable injustice is unchecked and triumphant and the life of man is as the author of Leviathan tells us solitary poor nasty brutish and short however orderly a society may be and to whatever extent men may appear to obey the law of reason rather than that of force and to be bound together by the bonds of sympathy rather than by those of physical constraint the element of force is nonetheless present and operative it has become partly or wholly latent but it still exists a society in which the power of the state is never called into actual exercise marks not the disappearance of governmental control but the final triumph and supremacy of it it has been thought and said by men of optimistic temper that force as an instrument for the coercion of mankind is merely a temporary and provisional incident in the development of a perfect civilization we may well believe indeed that with the progress of civilization we shall see the gradual cessation of the actual exercise of force whether by way of administration of justice or by way of war to a large extent already in all orderly societies this element in the administration of justice has become merely latent it is now for the most part sufficient for the state to declare the rights and duties of its subjects without going beyond declaration to enforcement in like manner the future may see a similar destiny overtake that international litigation which now so often proceeds to the extremity of war the overwhelming power of the state or of the international society of states may be such as to render its mere existence a sufficient substitute for its exercise but this is already said would be the perfection not the disappearance of the rule of force the administration of justice by the state must be regarded as a permanent an essential element of civilization and as a device that admits of no substitute men being what they are their conflicting interests real or apparent draw them in diverse ways and their passions prompt them to the maintenance of these interests by all methods possible notably by that method of private force to which the public force is the only adequate reply the constraint of public opinion is a valuable and indeed indispensable supplement to that of law but an entirely insufficient substitute for it the relation between these two is one of mutual dependence if the administration of justice requires for its efficiency the support of a healthy national conscience that conscience is in its turn equally dependent on the protection of the law and the public force a coercive system based on public opinion alone no less than one based on force alone contains within itself elements of weakness that would be speedily fatal to efficiency and permanence the influence of the public censure is least felt by those who need it most the law of force is appointed as all law should be not for the just but for the unjust while the law of opinion is set rather for the former than for the latter and may be defied with a large measure of impunity by determined evildoers the rewards of successful iniquity are upon occasion very great so much so that any law which would prevail against it must have sterner sanctions at its back than any known to the public censure it is also to be observed that the influence of the national conscience unsupported by that of national force would be counteracted in any but the smallest and most homogenous societies by the internal growth of smaller societies or associations possessing separate interests and separate antagonistic consciences of their own it is certain that a man cares more for the opinion of his friends and immediate associates than for that of all the world besides the censure of ten thousand may be outweighed by the approval of ten the honor of thieves finds its sanction and support in a law of professional opinion which is opposed to and prevails over that of national opinion the social sanction therefore is an efficient instrument only so far as it is associated with and supplemented by the concentrated and irresistible force of the incorporate community men being what they are each keen to see his own interest and passionate to follow it society can exist only under the shelter of the state and the law and justice of the state is a permanent and necessary condition of peace order and civilization section 26 origin of the administration of justice the administration of justice is the modern and civilized substitute for the primitive practices of private vengeance and violent self-help in the beginning a man redressed his wrongs and avenged himself upon his enemies by his own hand aided if need be by the hands of his friends and kinsmen but at the present day he is defended by the sword of the state for the expression of this and other elements involved in the establishment of political government we may make use of the contrast familiar to the philosophy of the 17th and 18th centuries between the civil state and the state of nature this state of nature is now commonly rejected as one of the fictions which flourished in the era of the social contract but such treatment is needlessly severe the term certainly became associated with much false or exaggerated doctrine touching the golden age on the one hand and the bellum omnium contra omnis of Hobbes on the other but in itself it nevertheless affords a convenient mode for the expression of an undoubted truth as long as there have been men there had probably been some form of human society state of nature therefore is not the absence of society but the absence of a society so organized on the basis of physical force as to constitute a state the human society is co-eval with mankind the rise of political society properly so called is an event in human history one of the most important elements then in the transition from the natural to the civil state is the substitution of the force of the incorporate community for the force of individuals as the instrument of the redress and punishment of injuries private vengeance is transmuted into the administration of criminal justice while civil justice takes the place of violent self-help as Locke says in the state of nature the law of nature is alone in force and every man in his own case charged with the execution of it in the civil state on the other hand the law of nature is supplemented by the civil law and the maintenance of the latter by the force of the organized community renders unnecessary and unpermissible the maintenance of the former by the forces of private man the evils of the earlier system were too great and obvious to escape recognition even in the most primitive communities every man was constituted by a judge in his own cause and might was made the sole measure of right nevertheless the substitution was affected only with difficulty and by slow degrees the turbulent spirits of early society did not readily abandon the liberty of fighting out their quarrels or submit with good grace to the arbitration of the tribunals of the state there is much evidence that the administration of justice was in the earlier stages of its development merely a choice of peaceable arbitration offered for the voluntary acceptance of the parties rather than a compulsory substitute for self-help and private war only later with the gradual growth of the power of government did the state venture to suppress with the strong hand the ancient and barbarous system and to lay down the preemptory principle that all quarrels shall be brought for settlement to the courts of law all early codes show us traces of the hesitating and gradual method in which the voice and force of the state became the exclusive instruments of the declaration and enforcement of justice trial by battle which endured in the law of england until the beginning of the 19th century is doubtless a relic of the days when fighting was the approved method of settling a dispute in the right and power of the state went merely to the regulation not to the suppression of this right and duty of every man to help and guard himself by his own hand footnote in the year 1818 in a private prosecution for murder an appeal of murder the accused demanded to be tried by battle and the claim was allowed by the court of king's bench the prosecutor was not prepared to face the risks of this mode of litigation and the accused was discharged the case led to the abolition of appeals of felony and of trial by battle by the statute 59 george the third chapter 46 in footnote in later theory indeed this mode of trial was classed with the ordeal as judicium day the judgment of heaven is to the merits of the case made manifest by the victory of the right but this explanation was an afterthought it was applied to public war as the litigation of nations no less than to the judicial duel and it is not the root of either practice among the laws of the sacks and kings we find no absolute prohibition of private vengeance but merely its regulation and restriction in due measure and in fitting manner it was the right of every man to do for himself that which in modern times is done for him by the state as royal justice grows and strength however the law begins to speak in another tone and we see the establishment of the modern theory of the exclusive administration of justice by the tribunals of the state section 27 civil and criminal justice the administration of justice has been already defined as the maintenance of right within a political community by means of the physical force of the state it is the application by the state of the sanction of force to the rule of right we have now to notice that it is divisible into two parts which are distinguished as the administration of civil and that of criminal justice in applying the sanction of physical force to the rules of right the tribunals of the state may act in one or other of two different ways they may either enforce rights or punish wrongs in other words they may either compel a man to perform the duty which he owes or they may punish him for having failed to perform it hence the distinction between civil and criminal justice the former consists in the enforcement of rights the latter in the punishment of wrongs in a civil proceeding the plaintiff claims a right and the court secures it for him by putting pressure upon the defendant to that end as when one claims a debt that is due to him or the restoration of property wrongfully detained from him or damages payable to him by way of compensation for wrongful harm or the prevention of a threatened injury by way of injunction in a criminal proceeding on the other hand the prosecutor claims no right but accuses the defendant of a wrong he is not a claimant but an accuser the court makes no attempt to constrain the defendant to perform any duty or to respect any right it visits him instead with a penalty for the duty already disregarded and for the right already violated as where he is hanged for murder or imprisoned for theft both in civil and in criminal proceedings there is a wrong actual or threatened complained of for the law will not enforce a right except as against the person who has already violated it or who has at least already shown an intention of doing so justice is administered only against wrongdoers in act or in intent yet the complaint is of an essentially different character in civil and in criminal cases in civil justice it amounts to a claim of right in criminal justice it amounts to merely an accusation of wrong civil justice is concerned primarily with the plaintiff and his rights criminal justice with the defendant and his offenses the former gives to the plaintiff the latter to the defendant that which he deserves a wrong regarded as the subject matter of civil proceedings is called a civil wrong one regarded as the subject matter of criminal proceedings is termed a criminal wrong or a crime the position of a person who has by actual or threatened wrongdoing exposed himself to legal proceedings is termed liability or responsibility and it is either civil or criminal according to the nature of the proceedings to which the wrongdoer is exposed the same act may be both a civil injury and a crime both forms of legal remedy being available reason demands that in general these two remedies shall be concurrent and not merely alternative if possible the law should not only compel men to perform their disregarded duties but should by means of punishment guard against the repetition of such wrongdoing in the future the thief should not only be compelled to restore his plunder but should also be imprisoned for having taken it lest he and others steal again to this duplication of remedies however there are numerous exceptions punishment is the sole resource in cases where enforcement is from the nature of things impossible and enforcement is the sole remedy in those cases in which it is itself a sufficient precautionary measure for the future not to speak of the defendant's liability for the costs of the proceedings the civil remedy of enforcement very commonly contains as we shall see later a penal element which is sufficient to render unnecessary or unjustifiable any cumulative criminal responsibility we have to find a criminal proceeding as one designed for the punishment of a wrong done by the defendant and a civil proceeding as one designed for the enforcement of a right vested in the plaintiff we have now to consider a very different explanation which has been widely accepted by many persons the distinction between crimes and civil injuries is identified with that between public and private wrongs by a public wrong is meant in offense committed against the state or the community at large and dealt with in a proceeding to which the state is itself a party a private wrong is one committed against a private person and dealt with at the suit of the individual so injured the thief is criminally prosecuted by the crown but the trespasser is civilly sued by him whose right he has violated criminal libel it is said is a public wrong and is dealt with as such at the suit of the crown civil libel is a private wrong and is dealt with accordingly by way of an action for damages by the person libeled black stones statement of this view may be taken as representative wrongs he says are divisible into two sorts or species private wrongs and public wrongs the former are an infringement or privation of the private or civil rights belonging to individuals considered as individuals and are there upon frequently termed civil injuries the latter are a breach and violation of public rights and duties which affect the whole community considered as a community and are distinguished by the harsher appellation of crimes and misdemeanors but this explanation is insufficient in the first place all public wrongs are not crimes a refusal to pay taxes is an offense against the state and is dealt with at the suit of the state but it is a civil wrong for all that just as a refusal to repay money lent by a private person is a civil wrong the breach of a contract made with the state is no more a criminal offense than is the breach of a contract made with a subject an action by the state for the recovery of a debt or for damages or for the restoration of public property or for the enforcement of a public trust is purely civil although in each case the person injured and suing is the state itself conversely and in the second place all crimes are not public wrongs most of the very numerous offenses that are now punishable on summary conviction may be prosecuted at the suit of a private person yet the proceedings are undoubtedly criminal nonetheless we must conclude therefore that the divisions between public and private wrongs and between crimes and civil injuries are not coincident but cross divisions public rights are often enforced and private wrongs are often punished the distinction between criminal and civil wrongs is based not on any difference in the nature of the right infringed but on a difference in the nature of the remedy applied the plausibility of the theory in question is chiefly attributable to a certain peculiarity in the historical development of the administration of justice where the criminal remedy of punishment is left in the hands of the individuals injured to be claimed or not as they think fit it invariably tends to degenerate into the civil remedy of pecuniary compensation men barter their barren rights of vengeance for the more substantial solatium of coin of the realm offenders find no difficulty in buying off the vengeance of those they have offended and a system of money payments by way of composition takes the place of a system of true punishments hence it is that in primitive codes true criminal law is almost unknown its place is taken by that portion of civil law which is concerned with pecuniary redress murder theft and violence are not crimes to be punished by loss of life limb or liberty but civil injuries to be paid for this is a well recognized characteristic of the early law both of Rome and England in the Jewish law we notice an attempt to check this process of substitution and to maintain the law of homicide at least as truly criminal ye shall take no satisfaction for the life of a murderer which is guilty of death but he shall be surely put to death such attempt however will be for the most part vain until the state picks upon itself the office of prosecutor and until offenses worthy of punishment cease to be matters between private persons and become matters between the wrongdoer and the community at large only when the criminal has to answer for his deed to the state itself will true criminal law be successfully established and maintained thus at Rome the more important forms of criminal justice pertain to the sovereign assemblies of the people while civil justice was done in the courts of the praetor and other magistrates so in England indictable crimes are in legal theory offenses against the peace of our lord the king his crown and dignity it was only under the rule of royal justice that the true criminal law was super added to the more primitive system of pecuniary compensation even at the present day for the protection of the law of crime it is necessary to prohibit as itself a crime the compounding of a felony and to prevent in courts of summary jurisdiction the settlement of criminal proceedings by the parties without the leave of the court itself such is the historical justification of the doctrine which identifies the distinction between civil injuries and crimes with that between public and private wrongs the considerations already adduced should be sufficient to satisfy us that the justification is inadequate section 28 the purposes of criminal justice deterrent punishment the ends of criminal justice are four in number and in respect of the purposes so served by it punishment may be distinguished as one deterrent two preventative three reformative and four retributive of these aspects the first is the essential and all important one the others being merely accessory punishment is before all things deterrent and the chief end of the law of crime is to make the evil doer an example and a warning to all that are like-minded with him offenses are committed by reason of a conflict between the interests real or apparent of the wrong doer and those of society at large punishment prevents offenses by destroying this conflict of interest to which they owe their origin by making all deeds which are injurious to others injurious also to the doers of them by making every offense in the words of lock an ill bargain to the offender men do injustice because they have no sufficient motive to seek justice which is the good of others rather than that of the doer of it the purpose of the criminal law is to supply by art the motives which are thus wanting in the nature of things section 29 preventive punishment punishment is in the second place preventive or disabling its primary and general purpose being to deter by fear its secondary and special purpose is wherever possible and expedient to prevent a repetition of wrongdoing by the disablement of the offender we hang murderers not merely that we may put into the hearts of others like them the fear of a like fate but for the same reason for which we kill snakes namely because it is better for us that they should be out of the world than in it a similar secondary purpose exists in such penalties as imprisonment exile and forfeiture of office section 30 reformative punishment punishment is in the third place reformative offenses are committed through the influence of motives upon character and may be prevented either by a change of motives or by a change of character punishment as deterrent acts in the former method punishment as reformative in the latter this curative or medicinal function is practically limited to a particular species of penalty namely imprisonment even in this case pertains to the ideal rather than to the actual it would seem however that this aspect of the criminal law is destined to increasing prominence the new science of criminal anthropology would feign identify crime with disease and would willingly deliver the criminal out of the hands of the men of law into those of the men of medicine the feud between the two professions touching questions of insanity threatens to extend itself throughout the whole domain of crime it is plain that there is a necessary conflict between the deterrent and the reformative theories of punishment and that the system of criminal justice will vary in important respects according as the former or the latter principle prevails in it the purely reformative theory admits only such forms of punishment as are subservient to the education and discipline of the criminal and rejects all those which are profitable only as a deterrent or disabling death is in this view no fitting penalty we must cure our criminals not kill them flogging in other corporal inflections are condemned as relics of barbarism by the advocates of the new doctrine such penalties are said to be degrading and brutalizing both to those who suffer and to those who inflict them and so fail in the central purpose of criminal justice imprisonment indeed as already indicated is the only important instrument available for the purpose of a purely reformative system even this however to be fitted for such a purpose requires alleviation to a degree quite inadmissible to the alternative system if criminals are sent to prison in order to be there transformed into good citizens by physical intellectual and moral training prisons must be turned into dwelling places far too comfortable to serve as any effectual deterrent to those classes from which criminals are chiefly drawn a further illustration of the divergence between the deterrent and the reformative theories is supplied by the case of incorrigible offenders the most sanguine advocate of the curative treatment of criminals must admit that there are in the world men who are incurably bad men who by some vice of nature are even in their youth beyond the reach of reformative influences and with whom crime is not so much a bad habit as an ineradicable instinct what shall be done with these the only logical inference from the reformative theory is that they should be abandoned in despair as no fit subjects for penal discipline the deterrent and disabling theories on the other hand regard such offenders as being preeminently those with whom the criminal law is called upon to deal that they may be precluded from further mischief and at the same time serve as a warning to others they are justly deprived of their liberty and in extreme cases of life itself the application of the purely reformative theory therefore would lead to astonishing and inadmissible results the perfect system of criminal justice is based on neither the reformative nor the deterrent principle exclusively but is the result of a compromise between them in this compromise it is the deterrent principle which possesses predominant influence and its advocates who have the last word this is the primary and essential end of punishment and all others are merely secondary and accidental the present tendency to attribute exaggerated importance to the reformative element is a reaction against the former tendency to neglect it altogether and like most reactions it falls into the falsehood of extremes it is an important truth unduly neglected in times past that to a very large extent criminals are not normal and healthy human beings and that crime is in great measure the product of physical and mental abnormality and degeneracy it has been too much the practice to deal with offenders on the assumption that they are ordinary types of humanity too much attention has been paid to the crime and too little to the criminal yet we must be careful not to fall into the opposite extreme if crime has become the monopoly of the abnormal and the degenerate or even the mentally unsound the fact must be ascribed to the selective influence of a system of criminal justice based on a sterner principle than that of reformation the more efficient the coercive action of the state becomes the more successful it is in restraining all normal human beings from the dangerous paths of crime and the higher becomes the proportion of degeneracy among those who break the law even with our present imperfect methods the proportion of insane persons among murderers is very high but if the state could succeed in making it impossible to commit murder in a sound mind without being indubitably hanged for it afterwards murder would become with scarcely an exception limited to the insane if after the consummation had been reached the opinion were advanced that in as much as all murderers are insane murder is not a crime which needs to be suppressed by the strong arm of the penal law and pertains to the sphere of medicine rather than to that of jurisprudence the fallacy of the argument would be obvious were the state to act on any such principle the proposition that all murderers are insane would very rapidly cease to be true the same fallacy though in a less obvious form is present in the more general argument that since the proportion of disease and degeneracy among criminals is so great the reformative function of punishment should prevail over and in a great measure exclude its deterrent and coercive functions for it is chiefly through the permanent influence and operation of these latter functions partly direct in producing a fear of evil doing partly indirect in establishing and maintaining those moral habits and sentiments which are possible only under the shelter of coercive law that crime has become limited in such measure as it has to the degenerate the abnormal and the insane given an efficient penal system crime is too poor a bargain to commend itself save an exceptional circumstances to any except those who lack the self control the intelligence the prudence or the moral sentiments of the normal man but apart from criminal law in its sterner aspects and apart from that positive morality which is largely the product of it crime is a profitable industry which will flourish exceedingly and be by no means left as a monopoly to the feebler and less efficient members of society although the general substitution of the reformative for the deterrent principle would lead to disaster it may be argued that the substitution is possible and desirable in the special case of the abnormal and degenerate purely reformative treatment is now limited to the insane and the very young should it not be extended to include all those who fall into crime through their failure to attain to the standard of normal humanity no such scheme however seems practicable in the first place it is not possible to draw any sharp line of distinction between the normal and the degenerate human being it is difficult enough in the only case of degeneracy now recognized by the law namely insanity but the difficulty would be a thousandfold increased had we to take into account every lapse from the average type the law is necessarily a rough and ready instrument and men must be content in general to be judged and dealt with by it on the basis of their common humanity and not on that of their special idiosyncrasies in the second place even in the case of those who are distinctly abnormal it does not appear except in the special instance of mental unsoundness that the purely deterrent influences of punishment are not effective and urgently required if a man is destitute of the affections and social instincts of humanity the judgment of common sense upon him is not that he should be treated more leniently than the normal evil doer not that society should cherish him in the hope of making him a good citizen but that by the rigor of penal discipline his fate should be made a terror and a warning to himself and others and in this matter sound science approves the judgment of common sense even in the case of the abnormal is easier and more profitable to prevent crime by the fear of punishment than to procure by reformative treatment the repentance and amendment of the criminal it is needful then in view of modern theories and tendencies to insist on the primary importance of the deterrent element in criminal justice the reformative element must not be overlooked but neither must it be allowed to assume undue prominence to what extent it may be permitted in particular instances to overrule the requirements of a strictly deterrent theory is a question of time place and circumstance in the case of youthful criminals the chances of effective reformation are greater than that of adults and the rightful importance of the reformative principle is therefore greater also in orderly and law-abiding communities concessions may be safely made in the interests of reformation which in more turbulent societies would be fable to the public welfare end of section six