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CHAPTER VII

THE NATURE OF LAW

THE State has been defined as a society viewed from its organized side, that is, considered in its aspect as a political organization for the attainment of an orderly existence and a possible development. In the effectuation of these purposes its activities are largely manifested in the utterance and enforcement of commands addressed to its citizens. Such commands we designate laws, and in the aggregate they constitute what is known as "the law of the land."

It is recognized, however, that in any given community this body of legal principles is by no means a homogeneous whole, but composed of elements that vary not only as to their manner of statement, but especially as to their source.

First of all, there are those principles which are to be found embodied in the formal legislative acts of the State, and termed Statutes. Secondly, there is that large body of legal principles that are enforced by the judicial tribunals of a country, but whose origin it is impossible to discover in any formal declarations of the will of the State, and whose validity is commonly considered to rest upon custom. Thirdly, there is in every State that body of fundamental prin

ciples, written or unwritten, that controls the organization of the State itself and the scope and manner of exercise of its governmental powers. These principles are termed constitutional laws, and though not, as a rule, when written, enunciated through the ordinary legislative mouthpiece of the State, are considered as expressing the highest will of the State. They differ from statutory and customary law, not only as to their formal source, but also as to their prevailing power when in apparent contradiction to them. Fourthly, and finally, there is that aggregate of rules that control the relations of a State to other States, commonly known as International Law. These last differ from the three preceding classes of principles not only as to their source, but as to their manner of enforcement. It will be necessary, indeed, to consider whether they may be properly termed laws at all.

It is the purpose of this chapter to consider in a general way these various jural elements; to investigate their origin and legal validity, and thus, finally, to discover, so far as it is possible, the part played by the State in their creation. There are of course other questions of a theoretical importance that arise in connection with an analysis of the legal ideas of a community; as, for example, the distinctions between law and ordinance, between laws general and particular, public and private law, civil and criminal, permanent and temporary laws, laws passed by bodies of unlimited or original competence, and those enacted by bodies of limited or delegated authority,

etc., etc.

All these questions, and many others,

have to be considered in a general treatise upon the nature of law, but for the purpose of this essay it is necessary to consider only the nature of law in general, and to determine the part played by the State in its creation. Especially in connection with this last inquiry it will be important to consider whether it is enforcement by the State that elevates certain principles of conduct to the title of law, or whether the distinguishing characteristic is to be elsewhere discovered.

There are two ways in which we may approach this examination.

First, by a historical inquiry into the manner in which these principles have arisen; and,

Secondly, by an analysis of these rules as they now exist, and a classification of them according to their form of expression, their comparative validity and their method of ascertainment.

From both of these methods we can obtain information that will assist us in our inquiry, but neither alone is sufficient. The results obtained by the first will afford the substantial grounds upon which to proceed to the analysis demanded by the second.

The Growth of Law. The early history of societies. and of the ideals and rules according to which their interests were regulated, demonstrates that custom has been, the world over, the earliest means of social regulation. The rules of conduct thus provided were not consciously created, but came into existence by

an imperceptible process of growth as a reflex from the feelings of order, justice, and utility that existed in the minds of the people. So far then as the creation of first legal principles is concerned, no direct action of the State is to be discovered.

Now it may be conceived that with the earliest stages of social evolution, regulation of private conduct such as is afforded by custom alone is of sufficient force to produce results, if not satisfactory, at least endurable. In such primitive stages of social development common interests are few, and of the simplest character, and the utility and the justice of the customary rules that control them, are clearly apparent to all. Furthermore, the disorder that arises from their occasional violation, and the personal retaliation that usually follows, is not seriously grievous to a community in which the sense of order has been but slightly cultivated, and whose political organization is of the crudest and most unsensitive character.

But such conditions can be maintained only as long as social relations remain comparatively simple, and while their development is gradual and uninterrupted by sudden or violent changes, such as are introduced by migration, by conquest, or by a transition from a hunting and fishing stage of life to an agricultural one, or from a previously peaceful to a warlike mode of existence.

With the very first steps in social development, then, custom, from its inherent nature, must prove inadequate for the regulation of social interests.

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This in two ways. In the first place, regulation of conduct by customary law wholly, is suited only to a community whose interests are not only simple, but homogeneous and apparent. When either conflicting interests arise, or controversies spring up in which there is doubt concerning the usual mode of conduct, the force of custom, such as it has, is lost. There are then required the services of the judge who shall decide as to the comparative merits of the interests that conflict, and determine what customary principle is applicable. Secondly, as social relations become complex, custom fails to satisfy the demands laid upon it, because of its inability to provide with sufficient promptness new rules for the regulation of new interests as they arise. The growth of customary rules is necessarily very slow, their age giving to them an essential credential for recognition; and where, as civilization advances, new interests are arising in increasing number, it necessarily results that conditions arise with greater frequency in which some regulation is necessary, and yet which are so suddenly born, so novel, or so intricate, that custom has not provided or cannot provide rules for their regulation. Thus custom early fails as a creator of law.

Thus the very first appearance of social complexity makes apparent the indefiniteness of customary law, and at the same time the increasing sense of order and justice that attends increasing civilization, makes consciously felt the evils and injustice resulting from the uncertain and the irregular sanc

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