Juss

“ The Queen said, "Remember: when thou shalt see the lord thy brother in his own shape, that is no illusion. Mistrust all else. And the almighty Gods preserve and comfort thee."
Therewith the hippogriff, as if maddened with the day-beams, plunged like a wild horse, spread wide its rainbow pinions, reared, and took wing. But the Lord Juss was sprung astride of it, and the grip of his knees on the ribs of it was like brazen clamps. ”

“ Surely Juss caught his breath in that moment, to see those deathless ones where they shone pavilioned in the pellucid air, far, vast, and lonely, most like to creatures of unascended heaven, of wind and of fire all compact, too pure to have aught of the gross elements of earth or water. It was as if the rose-red light of sun-down had been frozen to crystal and these hewn from it to abide to everlasting, strong and unchangeable amid the welter of earthborn mists below and tumultuous sky above them. The rift ran wider, eastward and westward, opening on more peaks and sunset-kindled snows. ”

“ Decisions given upon such principles do not alarm the public so much as they ought, because the consequence and tendency of each particular instance, is not observed or regarded. In the mean time, the practice gains ground; the court of King's Bench becomes a court of equity, and the judge, instead of consulting strictly the law of the land, refers only to the wisdom of the court, and to the purity of his own conscience. The name of Mr. Justice Yates, will naturally revive in your mind some of those emotions of fear and detestation, with which you always beheld him. ”

“ My illustration, indeed, has brought me ahead of my story. The judicial process is there in microcosm. We go forward with our logic, with our analogies, with our philosophies, till we reach a certain point. At first, we have no trouble with the paths; they follow the same lines. Then they begin to diverge, and we must make a choice between them. History or custom or social utility or some compelling sentiment of justice or sometimes perhaps a semi-intuitive apprehension of the pervading spirit of our law, must come to therescue of the anxious judge, and tell him where to go. ”

“ But, whatever its extent, it necessitated the grant by the magistrate to his delegate of a formula or lex, which was the expression of jus. This jus, “that which is right or fitting,” expressed the order of society, as realised through human agency, not directly through the divine will. [250] It is possible that even in early Rome it was treated as a right, a faculty of action (facultas agendi) or liberty enjoyed by one man against another, by individuals against corporations or by corporations against individuals. ”

“ Some say that according to this law that son ought to be put to death. The matter is referred to a court of justice. Now in a case of this kind the same topics and the same rules will suit each side of the question; because each party is bound to establish his own law, and to invalidate the one contrary to it. First of all, therefore, it is requisite to show the nature of the laws, by considering which law has reference to more important, that is to say, to more honourable and more necessary matters. ”

“ An action for criminal conversation being brought by a peer against a prince of the blood, you were daring enough to tell the jury that, in fixing the damages, they were to pay no regard to the quality or fortune of the parties;—that it was a trial between A. and B.—that they were to consider the offence in a moral light only, and give no greater damages to a peer of the realm, than to the meanest mechanic. I shall not attempt to refute a doctrine, which, if it was meant for law, carries falsehood and absurdity upon the face of it ”

“ No learned man, even among your own tribe, thinks you qualified to preside in a court of common law: yet it is confessed that, under Justinian, you might have made an incomparable Prætor.—It is remarkable enough, but I hope not ominous, that the laws you understand best, and the judges you affect to admire most, flourished in the decline of a great empire, and are supposed to have contributed to its fall. ”

“ Law arises from the union of justice and force, of right and might. It is justice recognised and established by authority. It is right realised through power. Since, therefore, it has two sides and aspects, it may be looked at from two different points of view, and we may expect to find, as we find in fact, that it acquires two different names. Jus is law looked at from the point of view of right and justice; lex is law looked at from the point of view of authority and force. Jus is the rule of right which becomes law by its authoritative establishment ”

“ But if we take the view of our friend the bad man we shall find that he does not care two straws for the axioms or deductions, but that he does want to know what the Massachusetts or English courts are likely to do in fact. I am much of this mind. The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.
Take again a notion which as popularly understood is the widest conception which the law contains—the notion of legal duty, to which already I have referred. We fill the word with all the content which we draw from morals. ”

“ Properly speaking, I submit that there is no such thing as jurisdiction in any private association of men, or anywhere else than under the authority of the State. Jus is the scheme of rights subsisting between men in the relations, not of all, but of civil society; and jurisdicto is the authority to determine and enunciate those rights from time to time. Church authority, therefore, so long as it stands alone, is not in strictness of speech, or according to history, jurisdiction, because it is not essentially bound up with civil law. ”

“ And the judicial kind is itself also distributed under two divisions,—one absolute, and one which takes in something besides as an addition, and which may be called assumptive. The absolute division is that which of itself contains in itself an inquiry into right and wrong. The assumptive one is that which of itself supplies no firm ground for objection, but which takes to itself some topics for defence derived from extraneous circumstances. And its divisions are four,—concession, removal of the accusation from oneself, a retorting of the accusation, and comparison. ”

“ The mind, and spirit, and wisdom, and intentions of the city are all situated in the laws. As our bodies cannot, if deprived of the mind, so the state, if deprived of law, cannot use its separate parts, which are to it as its sinews, its blood, and its limbs. The ministers of the law are the magistrates; the interpreters of the law are the judges; lastly, we are all servants of the laws, for the very purpose of being able to be freemen. What is the reason, O Naso, why you sit in that place? 147What is the power by which those judges, invested with such dignity, are separated from you? ”

“ If now, of all these forms, I choose the least violent, the legal struggle for individual rights in the form of an action at law, it is not because it has for jurists a higher interest than any other, but because, in a trial at law, the real nature of the case is most subject to the danger of being ignored both by jurists and the laity. ”

“ I here refer to the shameful paralyzing of the right of self-defense, that original right of man, which, as Cicero says, is a law enacted by nature itself, and which the Roman jurists were ingenuous enough to believe could not be ignored in any body of laws in the world. ”

“ It is no wonder that the man who became the central source of law should also become the universal authority for its interpretation in detail.
When we turn to criminal jurisdiction, we find that here too there are three sources of jus. The Republic is represented by the quaestiones perpetuae with their praetors and equestrian judices, and also by the new criminal jurisdiction which has been attached to the consuls and the Senate; the Principate is represented by the jurisdiction of the Princeps and his delegates. ”

“ So jurisprudence is compelled to regard something more than law simply, if it is to comprehend law. It has for its subject-matter the study of the relation of the fact law to all of the other facts of society, and so it goes back of positive law and seeks its springs and motives in systems like the early Roman and the Hindoo, where rites, liturgies, prayers, moral ordinances, and what we know distinctively as civil laws, appear to be mingled in mere senseless confusion. ”

“ We look beyond the particular to the universal, and shape our judgment in obedience to the fundamental interest of society that contracts shall be fulfilled. There is a wide gap between the use of the individual sentiment of justice as a substitute for law, and its use as one of the tests and touchstones in construing or extending law. I think the tone and temper in which the modern judge should set about his task are well expressed in the first article of the Swiss Civil Code of 1907, an article around which there has grown up a large body of juristic commentary. ”

“ Lastly, let that definition of impartial tribunals which has been handed down to us from our ancestors be still retained; that in them crimes are punished without any regard being had to the popularity or unpopularity of the accused party; and unpopularity is got rid of without any crime being supposed to have been ever attached to it. 6And, therefore, O judges, I beg this of you before I begin to speak of the cause itself; in the first place, as is most reasonable, that you will bring no prejudice into court with you. ”

“ He says we may agitate as much as we have a mind to; may not only speak against a law, but may declaim against it, which is to speak strongly. I thank the judge for this respect for the Constitution. But with regard to the higher and lower law, he has some peculiar opinions. He supposes a case: that the people ask him, "Which shall we obey, the law of man or the law of God?" He says, "I answer, obey both. The incompatibility which the question assumes does not exist." ”

“ Now the argumentation which is divided into five divisions is of this sort:—It is desirable, O judges, to refer all laws to the advantage of the republic, and to interpret them with reference to the general advantage, and according to the strict wording according to which they are drawn up. For our ancestors were men of such virtue and such wisdom, that when they were drawing up laws, they proposed to themselves no other object than the safety and advantage of the republic; for they were neither willing themselves to draw up any law which could be injurious ”

“ We are thinking of the end which the law serves, and fitting its rules to the task of service.
⁠This conception of the end of the law as determining the direction of its growth, which was Jhering's great contribution to the theory of jurisprudence, [9] finds its organon, its instrument, in the method of sociology. Not the origin, but the goal, is the main thing. There can be no wisdom in the choice of a path unless we know where it will lead. The teleological conception of his function must be ever in the judge's mind. ”

“ Back of precedents are the basic juridical conceptions which are postulates of judicial reasoning, and farther back are the habits of life, the institutions of society, in which those conceptions had their origin, and which, by a process of interaction, they have modified in turn. [12] None the less, in a system so highly developed as our own, precedents have so covered the ground that they fix the point of departure from which the labor of the judge begins. ”

“ Those who write upon the principles of jurisprudence, consider only what the person to whom the obligation is due, ought to think himself entitled to exact by force; what every impartial spectator would approve of him for exacting, or what a judge or arbiter, to whom he had submitted his case, and who had undertaken to do him justice, ought to oblige the other person to suffer or to perform. ”

“ The degree of energy with which the feeling of legal right reacts against an infringement of legal right is, in my eyes, a sure measure of the importance which individuals, a class or people, really attach, both to the law in general and to a special branch of it, for themselves and their special aim in life. ”

“ They always recognized the distinction between jus civile, or the law of the State, and the jus naturale, or the law of Nature. They nobly conceived that human society was a single unit and that it was governed by a law that was both antecedent and paramount to the law of Rome. ”

“ For, under the American system, the Constitution, or fundamental law, is expounded by judges, and this function, which, in essence, is political, has brought precisely that quality of pressure on the bench which it has been the labor of a hundred generations of our ancestors to remove. ”

“ In proceeding to the establishment of laws, you wish to adopt them from ours, and such only for the present as suit your present condition; chiefly, indeed, those for the punishment of crimes, and the protection of property. But who is to determine which of our laws suit your condition, and shall be in force with you? All of you being equally free, no one has a right to say what shall be law for the others. ”

“ The form of this jurisdiction varied. Sometimes, when the dispute lay between the state and an individual, as in the controversies about the ultro tributa, the sentence was the result of a purely magisterial cognisance, although we may suppose that the censor could, if he pleased, give a judex in such a case. Where the dispute lay between two privati, even though one of them had the quasi-official position of a publicanus, the granting of a judex or recuperatores was, at least in the later Republic, usual. ”