After reading this article you will learn about the relation between the state and law.
The State, on the conception here adopted, is a legal association: a ‘juridically organized nation, or a nation organized for action under legal rules’. It exists for law: it exists in and through law: we may even say that it exists as law, if by law we mean not only a sum of legal rules, but also, and in addition, an operative system of effective rules which are actually valid and regularly enforced. The essence of the State is a living body of effective rules; and in that sense the State is law.
The English word ‘State’ comes from the Latin status, which has had a curious and chequered history during the centuries of its development. (Words too have their growth and their evolution; and they too may go through curious mutations.)
In classical Latin, the word status meant generally the ‘standing’—that is to say, the position—of a person or body of persons: but by Cicero’s time it had come to be specially applied to the ‘standing’ or position of the whole community, and Cicero accordingly speaks of the status civitatis, or the status reipublicae, in the general sense of the constitution and institutions by which, and in which, the civitas or respublica stands.
Travelling through late Latin (in which, like many other words beginning with similar double consonants, it acquired an initial i and became i-status), and then through the Romance languages, the Latin status gave us eventually three English words—
(1) ‘Estate’, in the sense of a standing or position in regard to some form of property (a ‘real estate’ in land, or a ‘personal estate’ in movables);
(2) ‘Estate’, as when we speak of the three Estates of the realm, using the word in the primary sense of a grade or rank in the system of social standing or position, and thence in the derivative sense of the body of persons belonging to such grade or rank; and, finally,
This last derivative, it is important to notice, was not originally used in the Ciceronian sense of status civitatis or status reipublicae; nor did it mean, as those phrases had meant, the general standing, position, or ‘polity’ of the whole community and all its members. It had another and different connotation, which long persisted and may still be traced in modern usage.
The word ‘State’, when it came into use in England during the sixteenth century, brought with it from Italy the idea of a high ‘State’ or stateliness (state) vested in some one person or someone body of persons.
It meant primarily a peculiar standing, of a kind which was political, and of a degree in that kind which was superior or supreme; and thence, by an easy extension, it came to be used derivatively of the person or body of persons invested with such standing.
This was the usage down to 1789, and even later: the ‘State’ meant primarily the position of being the superior or supreme political authority, and thence it came to be applied derivatively to the person or body enjoying that position.
It was thus a term very similar to, and practically identical with, the terms ‘sovereignty’ and ‘sovereign’, similarly derived from the Latin (in the late Latin form superanus) and similarly transmitted to England through Romance derivatives from the Latin (and especially through the Italian sovrano).
Bacon, in the beginning of the seventeenth century, uses ‘State’ as a term synonymous with or parallel to ‘King’, as when he speaks of ‘Kings and States’ consulting judges. Louis XIV, in the middle of the seventeenth century, must have thought that he was stating a truism, and not attempting a paradox, when he exclaimed L’Etat, c’est moi! Was he not in his own view, as in that of his subjects, the person who enjoyed the ‘state’ and position of being the supreme political authority, and was he not therefore ‘the State’?
So far, and so long as these views prevailed, the notion of authority, of a position or ‘standing’ of supreme authority, and of the person or body placed in that position and having that ‘standing’—this was what formed the connotation of the word ‘State’.
Such a connotation belongs to a graded and hierarchical society, in which there are different states or ‘Estates’ (or sorts and conditions of men) arranged in ascending degrees, and one of these states or ‘Estates’ is the State par excellence.
But this connotation begins to disappear—or rather to be overlaid—when a graded and hierarchical society yields to a society of equals. After the end of the eighteenth century it may be said, L’Etat, c’est nous! The State is now the whole community: the whole legal association; the whole of the juridical organization.
This is democracy, or a result of democracy: we must henceforth think of the State as ourselves (or as the juridical organization which we have given to ourselves, or the legal association into which we have formed ourselves); and we must henceforth give the name of ‘Government’ to the authority—before called ‘State’—which is now seen as exercising on our behalf the powers which it had hitherto claimed as its own.
But language is slow in adapting itself to changes of thought; and words may long continue to carry the associations of a vanished past. We still use the term ‘State’ with the connotation—only overlaid, and not yet erased—of earlier centuries.
We regard the State still as some sort of being, somehow distinct from ourselves, which still interferes with us (thus we speak of ‘State-interference’), and against which we still must defend the cause of individualism in the war (as Spencer called it) of ‘The Man versus the State’. It is a sad complication of thinking that we so often think with obsolete words, or rather with words whose connotation, in the sense in which we still use them, is obsolete or obsolescent.
From the etymology and history of the term ‘State’ we may now turn to those of the term ‘law’. The term appears to have been borrowed by the English, about the year 1000, from their Scandinavian invaders: it came to them not from the Latin (the Latin terms lex and legalis are not cognate in origin or connotation), but from a Teutonic root meaning to ‘lay’, to place, or to set.
Law is thus etymologically something positum, or, as we should say, ‘imposed’: it is something laid down or set, as one sets a task or lays down a rule; and it is accordingly defined in the Oxford English Dictionary as ‘a rule of conduct imposed by authority’.
If this definition be accepted, we are carried back to the notion of the State as being, in its nature, a superior or supreme authority: we are led to regard law as a rule, or a body of rules, imposed by that authority; and we are driven in the issue to conclude that the command of the State, regarded as a supreme authority, is ipso facto the law for its members, regarded as the ‘subjects’ of that authority. This indeed is a view which long prevailed. It may be called the Austinian view of law.
It is expressed by Austin in the propositions that ‘law is a command which obliges a person or persons’; that ‘the term “superiority” … is implied by the term “command”, and that accordingly ‘every law simply and strictly so called is set by a sovereign person or . . . body of persons to a member or members of the independent political society wherein that person or body is superior or supreme’.
Upon this view, then, the State is regarded as being in its nature authority—the superior or supreme authority—and law as being a body of commands set by that authority to all the persons who are its subjects.
The view has some historical justification, or at any rate explanation; but it does not square with the facts and ideas of contemporary life. The word ‘State’ no longer suggests to our minds the idea of authority, or presents them with a picture of the high ‘state’ and the sovereign status of a person or body of persons enjoying and exercising a right of command over subjects.
It rather suggests to our minds the idea of association; it presents them with the image of an associated group, as wide and as multitudinous as the whole of a nation, which lives together by virtue of a constitution which it has made, and lives by the rules of law made for it and on its behalf by a law-making agency which acts as its organ under that constitution.
The State is now—though that was not the sense of the word when it was adopted into our language—the status reipublicae, the standing or condition of the whole of the legally organized community. It is, in its primary and abstract sense, the status or position, common to us all, of being the members of a legal association: it is, in its derivative and concrete sense, the members themselves—the whole of the members—when regarded as holding, and holding in common, such status or position.
Upon this conception of the State there follows a correlative conception of law. Law ceases to be the product of the authority of a person or body of persons conceived as being superior or supreme in the political society in which they act. It becomes the product of the whole of the association, primarily in the form of the constitutive memorandum of association (or, as it is generally termed, the ‘constitution’) made, or at any rate ratified, in the general usage of modern States, by the action of the members themselves, and secondarily in the form of a current system of legal rules made by a body, or bodies (for, as we shall see, there may be more than one body concerned), representative of the members and acting on their behalf under the constitution and in virtue of the authority conferred by the constitution.
That is the line we may follow if we think in terms of the present. But even if we go back to the past, and consider the source and the growth of law in terms of the past, we may find that we are driven to the conclusion that law has always been something more than the simple command of a single person or body of persons possessing authority over all others. That conclusion emerges when we ask and endeavour to answer two questions.
The first concerns the way in which the general body of law has been imposed and made binding on a political society. Has it been the way of command, or the way of something other than command? The second question concerns the origin of the various branches of law which go to form the general body. Have they all proceeded from a single source; or have some come from one source and some from another, and are there thus several sources of law?
The development of Roman law will help us to answer these questions. The Latin word for the general body of law is jus, which is something broader and more comprehensive than lex, though lex is one of its elements. How is this jus imposed? Before we return an answer, we shall do well to study the etymology of the word. Jus is not connected with the verb jubeo: it does not mean what is commanded by authority, or quod jussum est.
That may be true of lex, which has some connotation of command, and which is defined by the Roman jurists as ‘quod populus jubet et constituit’. But jus has a different connotation, and is associated with different ideas. It seems to be connected with the Latin word jungere: it means primarily a joining or fitting, a bond or tie; and it readily glides into the sense of binding or obliging.
We may define jus, in its original form, as ‘what is fitting’ and therefore also ‘binding’; or in more detail, we may say that ‘it conveys . . . the idea of valid custom [i.e. the deposited common tradition of the ‘fitting’], to which any citizen can appeal, and which is recognized and can be enforced by a human authority’. We may then go on to think of jus, in its developed form, as a body of binding or obliging rules which—however they have been made, whether by the growth of valid custom or by legislative enactment or otherwise—the courts recognize as binding, and not only recognize but also enforce.
We must notice here the importance of the courts. The Romans—at any rate in the period of the Republic—thought-less of State-authority, making law by command, than they did of the authority of the courts, giving effect to law (however made) by recognition and enforcement of its rules and remedies. It is significant that the same word jus is used to denote both the body of law and the courts which enforce that body.
We may therefore say that what imposed the whole body of law and made it binding on the members of the Roman community, was not the command of a law-giver: it was rather the recognition given, and the enforcement applied, by a law-court.
It is the law-court, and not the law-giver, which is summoned to the mind by the notion of jus; and we may say of the Roman people, what a modern writer has said of the English-speaking peoples, that ‘to them, whether lawyers or not, law means a body of rules enforced by the courts’.
That, for the Romans, was the criterion of law, and that is an answer which may be given to the question, ‘How and in what way has the general body of law been imposed and made binding on a political society?’ We now come to the other question, ‘What is the origin of the various elements or branches of law which go to form the general body?’
Here we have to inquire into the various sources of jus, and to consider how its different elements emerged and acquired definition. Custom, or unwritten law, or the jus consensu receptum, was one of the sources, and it is still mentioned as such in the Institutes of Justinian after a thousand years of legal development. (The Digest of Justinian has even preserved a passage of the jurist Julianus, approved and translated by Blackstone in the Introduction to his Commentaries, which puts custom on a level with, and bases it on the same foundation as, the declared rules of the written law. ‘For since the written law binds us for no other reason but because it is approved by the judgment of the people, therefore those laws which the people have approved without writing ought also to bind everybody. For where is the difference whether the people declare their assent to a law by suffrage, or by a uniform course of acting accordingly?’)
Apart from custom, the two main sources of jus (the two sources which formed the jus scriptum) were legislative declaration and legal formulation. Legislative declaration itself in turn flowed from a number of different springs: one spring, the original, was the Roman people, from which proceeded leges; another spring, of a later date, was the Roman Senate, from which proceeded ‘senatusconsults’—or senatorial decrees and ordinances hardly to be distinguished from leges; still a third, of a still later date, was the Roman princeps or emperor, from whom proceeded ‘constitutions’, in a variety of forms (decrees, rescripts, and the like), all possessing legis vigorem.
If legislative declaration was thus triple, legal formulation was double: it consisted partly of the edicts of the magistrates who sat in the courts (edicts at first issued annually, as each new magistrate took office, but becoming in process of time continuous and traditional), and partly of the ‘responses’ of private persons ‘skilled in the laws’ (jurisconsulti or jurisprudentes) who gave their opinion as it were ‘in chambers’ when they were consulted, and to some extent represented the view of the legal profession.
The whole of this process of legal formulation was a great source of Roman law. The judges, and the legal profession behind them, played no small part in the making of jus. We may thus conclude that the sources of Roman law were multiple, and not single.
We may also conclude that the judges not only imposed the whole body of law, in the sense that gave it legal effect by recognizing its validity. They, and the jurisconsults behind them, were also the makers, or at any rate the original declarers, of much of the law they imposed.
Two results emerge from this summary review of the development of Roman law. In the first place, the ‘imposing’ of law by the State is seen to be, in effect, the recognizing and enforcing of it by the courts. In the second place, the source of the law thus recognized and enforced is seen to be at least twofold, even apart from custom, and to consist not only of legislative declaration, but also of legal formulation by the double agency of the courts and the jurisconsults.
The same, or very similar, results emerge from a consideration of the development of English law. In England, too, as well as in Rome, law is the general body of rules recognized and enforced, and in that sense imposed, by the courts.
In England, too, as well as in Rome, the sources of law are twofold: in part the judges, with the members of the legal profession behind them, who have made, and continue to make, the ‘common law’; in part the legislature, which enacts statutes and is thus the maker of statute law, and which, being the immediate sovereign and sitting in constant session, can at any time alter or annul the rules of the ‘common law’ in virtue of such sovereignty.
From England, therefore, as well as Rome, we may learn the lessons (1) that the action of making law may proceed from more than one agent, and may involve a number of forces or sources, and (2) that over and above the action of making, and at least as important as that action, there is also the action of imposing the whole of the system of law (however its different parts may be made) by a continuous process of recognition and enforcement applied in and by the courts.
But when once it is made, by whatever bodies, and when in addition it is steadily imposed by the recognition and enforcement of the courts, law possesses the attribute of validity and produces the effect of obligation. Valet—its injunction avails and prevails: obligat—it binds men to an engagement of performing what is enjoined.