Fundamental law

“ Every time they interpret contract, property, vested rights, due process of law, liberty, they necessarily enact into law parts of a system of social philosophy, and as such interpretation is fundamental, they give direction to all law-making. ”

“ Proof.—A person has rights only on condition that he proves himself fit for a community of free beings, that is, that he makes the fundamental principle of law his constant rule of action; and is also able to actually determine his free acts by the representation of that principle. ”

“ As I have deprived the will of every impulse which could arise to it from obedience to any law, there remains nothing but the universal conformity of its actions to law in general, which alone is to serve the will as a principle, i.e., I am never to act otherwise than so that I could also will that my maxim should become a universal law. ”

“ A true theory of 'jus naturae,' a rationale of law or ideal of what it should be, is not to be had by inquiring how far actual law corresponds to, and is derived from, the exercise of certain original or natural rights, if that is taken to mean that we know, or can ascertain, what rights are natural on grounds distinct from those on which we determine what laws are justifiable, and that then we can proceed to ascertain what laws are justifiable by deduction from such rights. ”

“ Positive law floats in the midst between the Conception of Rights and the Decision of Law In positive law, the rule of Rights is applied to particular objects; in the decisions of law, the positive law is applied to particular persons. ”

“ Rules, that is, definite, detailed provisions for definite, detailed states of fact, are the main reliance of the beginnings of law. In the maturity of law they are employed chiefly in situations where there is exceptional need of certainty in order to uphold the economic order. With the advent of legal writing and juristic theory in the transition from the strict law to equity and natural law, a second [Pg 116] element develops and becomes a controlling factor in the administration of justice. ”

“ How striking and instructive to observe the abstract rules of justice brought to bear, with equal readiness and precision, upon ordinary and extraordinary combinations of circumstances!—to witness the dead letter of the law become animated with potent vitality for the regulation of human affairs! ”

“ We have now run over the three fundamental laws of nature, that of the stability of possession, of its transference by consent, and of the performance of promises. ”

“ Those who see in the history of law the formal expression of the development of society will be apt to think that the proximate ground of law must be empirical, even when that ground is the fact that a certain ideal or theory of government is generally entertained. Law, being a practical thing, must found itself on actual forces. ”

“ There is a system of rights and obligations which should be maintained by law, whether it is so or not, and which may properly be called 'natural'; not in the sense in which the term 'natural' would imply that such a system ever did exist or could exist independently of force exercised by society over individuals, but 'natural' because necessary to the end which it is the vocation of human society to realise. ”

“ Thus, when the law has been growing through juristic activity, a philosophical theory of law, as declaratory of philosophically ascertainable principles, has obtained. When and where the growing point of law has been in legislation, a political theory of law as the command of the sovereign has prevailed. When the law has been assimilating the results of a prior period of growth, a historical theory of [Pg 69] law as something found by experience, or a metaphysical theory of law as an idea of right or of liberty realizing in social and legal development, has tended to be dominant. ”

“ Again, tenth, men have thought of law as a [Pg 66] system of principles, discovered philosophically and developed in detail by juristic writing and judicial decision, whereby the external life of man is measured by reason, or in another phase, whereby the will of the individual in action is harmonized with those of his fellow men. ”

“ Every citizen may assert: “This is true; that is just;” but his opinion controls no one but himself. That the truth which he proclaims may become a law, it must be recognized. Now, what is it to recognize a law? It is to verify a mathematical or a metaphysical calculation; it is to repeat an experiment, to observe a phenomenon, to establish a fact. Only the nation has the right to say, “Be it known and decreed.” ”

“ Our theory of law, it is only too easy to perceive, is busied much more with the scales than with the sword of Justice. The one-sidedness of the purely scientific standpoint from which it considers the law, looking at it not so much as it really is, as an idea of force, but as it is logically, a system of abstract legal principles, has, in my opinion, impressed on its whole way of viewing the law, a character not in harmony with the bitter reality. ”

“ In saying this, I mean only to designate the general spirit of human law. Every principle, on its application to practice, must be limited and modified by circumstances; our reason by our common sense. ”

“ Some are a little lurid, and some a little blue, but always the same in tempest or calm. The law, as you have doubtless discovered, is founded in a few principles of obvious right. Their application to cases is artificial. The law, for its own wise purposes, takes care of itself; of its own force, it embraces everything, investigates everything, construes itself, and enforces itself, as the sole power in the premises. ”

“ We see, then, that in all its provisions the civil law presupposes the natural law, of which it is but the complement and final determination. The rights which it establishes are real rights beyond doubt ”

“ We can see the policeman on his beat, or the judge in court, or the members of the legislature—the men who, respectively, maintain, administer, and make the laws; and we can see the record of the laws in books. But the idea or principle of Law which has caused men to construct all this machinery for the making and enforcing of the laws, exists only in the mind. ”

“ It has served its purpose best if it has left the very distinct impression that the law is a vital, living, growing thing. True, its roots are in the dim past, but it lives, and moves, and has its being in the problems of today. ”

“ I believe in law and order; but I believe, as a condition precedent, that law and order should be predicated upon right and justice, pure and simple. Law is, intrinsically, a written expression of justice; if, on the contrary, it becomes instead written injustice, men are not, strictly speaking, bound to yield it obedience. ”

“ The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. ”

“ No less service will be rendered by the twentieth-century philosophical theory, whatever it is, which puts the jural postulate of civilized society in our day and place with respect to good faith, and its corollary as to promises, in acceptable form, and furnishes jurist and judge and lawmaker with a logical critique, a workable measure of decision and an ideal of what the law seeks to do, whereby to carry forward the process of enlarging the domain of legally enforceable promises and thus enlarging on this side the domain of legal satisfaction of human claims. ”

“ For there is one truth of which I am profoundly convinced,—nations live by absolute ideas, not by approximate and partial conceptions; therefore, men are needed who define principles, or at least test them in the fire of controversy. Such is the law,—the idea first, the pure idea, the understanding of the laws of God, the theory: practice follows with slow steps, cautious, attentive to the succession of events ”

“ Now laws are said to be just, both from the end, when, to wit, they are ordained to the common good---and from their author, that is to say, when the law that is made does not exceed the power of the lawgiver---and from their form, when, to wit, burdens are laid on the subjects, according to an equality of proportion and with a view to the common good. ”

“ The need was to rationalize men's desire to be governed by fixed rules and to reconcile, in appearance at least, the change and growth which are inevitable in all law with the need men felt of having a fixed, unchangeable, authoritative rule. The scholastic philosophy did notable service in these respects and, I venture to think, left as a permanent contribution to legal science the method of insuring certainty by logical development of the content of authoritatively defined conceptions. ”

“ In short, the law must be a power. The Conception of Law, which we obtained from the last part of our investigation, and the conception of a supreme power, which we had obtained previously, must be synthetically united. The law itself must be the supreme power, and the supreme power must be the law. ”

“ A definition, to be of any practical value, must be broad enough to include every feature common to all the rules of all the laws and systems of law that have been, are, or ever will be in force, and narrow enough to exclude all features peculiar to particular laws and systems of law. ”

“ And if we also see that these most general laws hold not only of the inorganic but of the organic worlds—if we see that the phenomena of Life, of Mind, of Society, whose special laws are yet unestablished, nevertheless conform to these most general laws; the proof of the universality of Law amounts to demonstration. ”

“ Ordinary law-givers offer us laws to regulate society--laws, subject to change like the minds of those who make them, and of the people who obey them: those talk only of general, immutable, and eternal laws, which, without exception, are obeyed with order, regularity, and absolute exactness in the immensity of space. ”

“ That the law may be a rule of action, it is necessary that it be known; it is necessary that it be permanent and stable. The law is the measure of civil right; but, if the measure be changeable, the extent of the thing measured never can be settled. ”

“ The State has the power to make concrete and to determine the provisions of the natural law that are abstract or general. Example: The natural law decrees that some form of government be set up, that the people contribute to the support of the government, that crimes be punished, that the general welfare be served, etc.; the civil law determines the special form of government, the manner in which the revenues are to be obtained, the specific penalties for each crime, the public measures that are best suited to the circumstances, etc. ”

“ The answer to this question arises out of the above consideration of the means which law employs to obtain the fulfilment of obligations, combined with the view of law as relative to a moral end, i.e. the formation of a society of persons, acting from a certain disposition, from interest in the society as such. ”

“ Whether these principles of natural justice are rightly entitled to the name of law—whether natural law, so called, can be rightly classed along with civil and international law as a species of the same genus—is a question which it is not needful for us here to discuss. ”

“ If such a natural law exists, our intelligence is capable of understanding it; for, if not, it would be useless, and the sagacity of the Creator would be at fault. As, therefore, these laws are instituted by the Supreme Being, all men and all states ought to be governed by them. ”

“ By the concepts of law, State, and property one may understand, first, the concepts of law, State, and property in the science of a particular legal system.
These concepts of law, State, and property contain all the characteristics that belong to the substance of a particular legal system. They embrace only the substance of this system. They may, therefore, be called concepts of the science of this system. For we may designate as the science of a particular legal system that part of jurisprudence which concerns itself exclusively with the norms of a particular legal system. ”

“ Attempts to understand and to expound legal phenomena lead to generalizations which profoundly affect those phenomena, and criticism of those generalizations, in the light of the phenomena they seek to explain and to which they give rise, enables us to replace them or modify them or supplement them and thus to keep the law a growing instrument for achieving expanding human desires. ”

“ We may well think of this time, as it thought of itself, as a period of maturity of law. The law was taken to be complete and self-sufficient, without antinomies and without gaps, wanting only arrangement, logical development of the implications of its several rules and conceptions, and systematic exposition of its several parts. Legislation might be needed on occasion in order to get rid of archaisms which had survived the purgation of the two prior centuries. ”

“ This ideal conception of the law is not a privilege of characters highly endowed by nature; but it is as accessible to the coarsest as to the most cultured, to the richest as to the poorest, to savage and to civilized nations; and, just here, we discover so clearly how firmly rooted in the innermost nature of the law this idealism is—it is nothing but the healthfulness of the feeling of legal right. ”