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After reading this article you will learn about the translation of justice into law.
Justitia must become jus: the idea of a right ordering of human relations, a due ‘joining’ of the positions of persons and of the principles on which such positions are assigned, must be translated into the fact of recognized and enforced law. Logically—but not chronologically—we may distinguish three stages in that translation.
First, there is the idea and ideal of a system of justice for the right ordering of the relations of persons who are brought into contact with one another by the facts of neighbourhood and social intercourse. Next, there is the creation, by a constituent act, of a legal association, within which the ideal can be realized, and which is the prior condition of its realization. Finally, there is the formulation, in and by that association, of concrete rules of law intended to make the ideal, so far as is possible, a fact.
In connexion with the last of these stages we naturally speak of an act of law-making. We easily go even farther. We begin to think and to speak as if law-making created, and brought into existence, something which never existed before; and we continue what we have thus begun by thinking and speaking as if law-making were the same as commanding, and as if law proceeded, in the form of an act of commanding, from the will of a person or body of persons entitled to issue commands which are simply and solely commands. But these prima facie notions are open to a double challenge.
The first challenge is that law does not emerge from a vacuum by an act of sudden creation. The second challenge is that, when it emerges from its previous background, it does not emerge as a command or indeterminate act of legislative will which can be this or that at pleasure.
In support of the first challenge it may be argued that the idea and ideal of a proper order of human relations were already present in social thought, as the inevitable result of men’s thinking about the problems of social intercourse, and that what we call law-making is therefore only the declaration or manifestation of the result of that thought.
We may thus say that law emerges from social thought about justice, and not from a vacuum, and that when it emerges it does so as a manifestation, and not as a creation. In support of the second challenge it may be argued that a conviction of the imperative character of the idea and ideal of justice, and of their implications, is an attribute and property of the whole association and all its members (otherwise the association would not exist), and is not confined to any particular person or body of persons; and therefore law-making, even if it is immediately the act of a particular person or body of persons, is ultimately, and in the last resort, the general expression of a general conviction made through that person or body.
If these arguments—and especially the latter—are accepted, it follows that law-making is not a matter of commands, addressed by a superior having power to inferiors who are under power, and ordering that this or that rule shall be henceforth obligatory upon them: it is a matter of declarations, issued by some agent or organ acting on behalf of a legal association of free and equal members, and stating that, in the general opinion of that association, this or that rule is now regarded as obligatory on all and will continue to be so regarded.
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We may even add that there is a form of law—the form termed ‘customary’— which need not be declared at all by an agent or organ, because it is already apparent in common usage and is thus declared, immediately and directly, by the association itself.
In this way we reach the definition of law suggested by Gierke: ‘Law is the conviction of a human community—either manifested directly by usage or declared by a common organ appointed for that purpose—that there exist in that community external standards of will: in other words, limitations of liberty which are externally obligatory, and therefore, by their very nature, enforceable.’
When, on this basis, We turn to consider the agents and organs of the declaration of common conviction. Both in the past, and still today, the judges first spring to the mind as the agents declaring, from day to day, the rules of law which ultimately proceed from common conviction.
They not only declare them in the sense that they re-enunciate old rules in deciding upon new cases: they also declare them in the sense that from time to time they enunciate new rules, to meet new cases of peculiar novelty, by giving decisions upon such cases which afterwards come to be accepted as not merely decisions for the case in question, but as general rules for all similar cases.
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It is such enunciation which is judicial declaration par excellence. Here there is obviously no question of will: the action of the judge is rather that of collecting and distilling opinion—immediately, we may allow, that of the legal profession; but ultimately that of the public at large, whose sense of justice is always there, if it is only there in the background.
But if the judges first spring to the mind as the agents declaring the rules of law, there is also the great and massive organ which is called the legislature. This, by its very name, may seem to be not only a declarer, but also a maker, of law, and indeed of the great bulk of law. What, then, is to be said of the function and power of the legislature in regard to the issue of law?
There is one thing to be said of its history, or at any rate of its history in England. The English legislature, or Parliament, would seem to have been in its origins, as the style of ‘High Court of Parliament’ still indicates, a judicial body which declared the law, in the last resort, in particular cases.
In a word it was a part, if a very high part, of the judiciary, rather than a legislature separate from it. But at an early date it added to this original function, by a natural and easy development, the further function of declaring the law not by a particular decision in a particular case before it, but by a general decision applicable to all cases that might afterwards come before any tribunal.
For a long time, however, such general decisions, couched in the form of statutes, were comparatively infrequent; and indeed the conception and practice of a specifically legislative organ, regularly and annually producing a crop of statutes, is little more than a century old, and may be dated from the era of reform after the passage of the ‘Reform Bill’ in 1832.
Today we are familiar with the action of a sovereign legislature, exercising its power of sovereignty (or final decision in the last resort) by a continual process of legislation which seems, prima facie, to proceed from its own original will.
But even the modern legislature is a common organ appointed for the purpose of declaring common conviction: and it confesses its nature when, as is generally the case with a new declaration on a matter of more than ordinary importance, it uses the argument that the matter has been considered by the community, in and during a general election, and that the declaration now made is based on the conviction then expressed by the community.
If, therefore, the legislature is sovereign, it is sovereign only in the sense that it possesses the final power of declaring common conviction, and that, possessing such power, it can amend or abrogate such declarations as are issued by the judges (otherwise its colleagues) when they too use their declaratory power in the enunciation of ‘case law’.
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The action of the legislature is not creation, but declaration; and its essential function is to declare the implications of the idea and ideal of justice, or the right ordering of human relations in an organized society, and to declare them as they are generally felt by the members of that society and as they are expressed in the form of its common conviction.
It has been said that the State is both the child and the parent of law; at once its creature and its creator. It is the child and creature of law in so far as it is begotten by an idea of justice; is brought to birth by the primary law which constitutes it as a legal association and gives it a constitution; and is henceforth bound by its nature to act in accordance with that primary law.
It is the parent and creator of law in the sense that, acting through the agents and organs commissioned for that purpose under the primary law of the constitution, it declares the rules of ordinary or secondary law which ultimately spring from the common conviction of all its members, and stamps and seals them, by such declaration, with a validity which they would not otherwise possess.
This secondary law is not valid law unless and until it is declared by the State through its legislative and judicial organs; but when once it is so declared it is valid, and continues to be valid, even if it conflicts with the ideal of justice and the common conviction about the implications of that ideal.
On the other hand, a rule of law which is in such a state of conflict, though still retaining validity, loses the value which depends on conformity with the ideal of justice and the consequent support of common conviction; and a valid law which has lost that value gradually loses also validity, because citizens cease to obey it, juries cease to give verdicts in accordance with it, and the courts are thus unable to enforce it. This was the case with many of the provisions of English criminal law at the turn of the eighteenth century.