Higher law

“ These are the general characteristics of that incomparable monument of jurisprudence whose noble conceptions of the ends of legislation are best expressed in its own concise and energetic language:
“The law is the rival of divinity, the messenger of justice, and the guide of life. It dominates all classes of the state, and all ages of humanity, male and female, the young and the old, the wise and the ignorant, the noble and the peasant. It is not designed for the promotion of private aims, but to shelter and [189] protect the general interests of all. ”

“ 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. ”

“ Moreover, these statutes, which at any moment may revolutionize a man's liberty or his property, are not as they were in old times—a mere codification, or attempt at the best expression of a law already existing and well "understanded of the people" ”

“ 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! ”

“ But the essential questions are: (1) whether we are entitled to distinguish the rights and obligations which are anywhere actually enforced by law from rights and obligations which really exist though not enforced; and (2) , if we are entitled to do so, what is to be our criterion of rights and obligations which are really valid, in distinction from those that are actually enforced.
9. No one would seriously maintain that the system of rights and obligations, as it is anywhere enforced by law,—the 'jus' or 'Recht' of any nation—is all that it ought to be. ”

“ In conformity with these principles, an ample jurisdiction has been established, under which, among other things, the powers of ordinary courts are supplemented by more flexile methods, the rules of law are prevented from becoming instruments of injustice, persons are restrained from asserting doubtful rights in a manner productive of irreparable damage, and, in the absence of positive law, universal justice is maintained. It has been a constant aspiration to bring Law and Equity into harmony. ”

“ 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. ”

“ The nervous language of the Common Law, the impressive forms of our courts and the precision and substantial truth of the legal distinctions, are the contribution of all the sharp-sighted, strong-minded men who have lived in the countries where these laws govern. ”

“ Consider this one phase of jurisprudence for only a moment, young man, just to see what a world of thought it opens to the mind. Institutional law is older, deeper, and even more vital than constitutional law. Our Constitution is one of the concrete manifestations of our institutions; our statutes are another; the decisions of our courts are another; our habits, methods, and customs as a people and a race are still another. ”

“ 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. ”

“ 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. ”

“ So great is the superiority of legislation over all other methods of legal evolution, that the tendency of advancing civilisation is to acknowledge its exclusive claim, and to discard the other instruments as relics of the infancy of law. The expressed will of the state tends to obtain recognition not only as the sole formal source of law, but as its exclusive material source also. Statute law has already become the type or standard, from which the other forms are more or less abnormal variations. ”

“ But where a constitution asserts a certain right, or lays down a certain principle of law or procedure, it speaks for the entire people as their supreme law, and is full authority for all that is done in pursuance of its provision. ”

“ All laws, whether emanating from an absolute monarch or from the representatives of the majority of a state, are mere expressions of the will of the sovereign power, which may be exacted by force. The second use of the word LAW is a record of our experience—e.g., we see the tides ebb and flow, and conclude it is done in obedience to the will of a sovereign power ”

“ But, good or bad, as laws in this country are merely the expression of the people’s will, they should be respected as long as they remain laws. For law is just as necessary to the human race as is the air we breathe or the food we eat. ”

“ Legislation, therefore, is the indispensable instrument, not indeed of legal growth, but of legal reform. As a destructive and reformative agent it has no equivalent, and without it all law is as that of the Medes and Persians. ”

“ It is needless to state that many modern statutes—like prohibition laws, for instance—are passed for that very reason. Yet whatever the fact may have been in the past, there is no doubt that for the future, legislation by the people, constructive law-making at the popular behest, is the great new fact of Anglo-American civilization. ”

“ What the difference may be, and what the consequences of such difference, between this lucrative function, and the true duty of Civil Law,—namely, to fulfil and continue in all the world the first mission of the mightiest Lawgiver, and declare that on such and such conditions, written in eternal letters by the finger of God, every man’s house, or piece of Holy land, is his own,—there does not, it appears, exist at present wit enough under all the weight of curled and powdered horsehair in England, either to reflect, or to define. ”

“ It would require the making of a new rule in analogy to existing ones. The unwritten law possesses capacity for growth; and has often satisfied new demands for justice by invoking analogies or by expanding a rule or principle. ”

“ It is a rule founded upon the first principles of natural justice, older than written constitutions, that a citizen shall not be deprived of his life, liberty, or property, without an opportunity to be heard in defense of his rights, and the constitutional provision that no person shall be deprived of these 'without due process of law' has its foundation in this rule. ”

“ The whole future will of each individual is concentrated into the one moment when he declares his willingness to participate in the commonwealth; and this extending the present will so as to embrace the whole future, changes the expressed common will into LAW. In so far as the common will determines how far the rights of each person shall extend, the law is called Civil Law; and in so far as it determines the punishment which shall follow a violation of the law, it is called Penal or Criminal Law. ”

“ Making or finding law, call it which you will, presupposes a mental picture of what one is doing and of why he is doing it. Hence the nature of law has been the chief battleground of jurisprudence since the Greek philosophers began to argue as to the basis of the law's authority. But the end of law has been debated more in politics than in jurisprudence. In the stage of equity and natural law the prevailing theory of the nature of law seemed to answer the question as to its end. ”

“ Legislation, the enactments of a legislature which, whether it take the form of an autocratic prince or of a parliamentary assembly, is the assumed organ of the entire society, is the last of the ameliorating instrumentalities. It differs from Legal Fictions just as Equity differs from them, and it is also distinguished from Equity, as deriving its authority from an external body or person. Its obligatory force is independent of its principles. ”

“ 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. ”

“ We may come indefinitely near to the closing of the gap between them, but it has a perpetual tendency to reopen. Law is stable; the societies we are speaking of are progressive. The greater or less happiness of a people depends on the degree of promptitude with which the gulf is narrowed.
A general proposition of some value may be advanced with respect to the agencies by which Law is brought into harmony with society. These instrumentalities seem to me to be three in number, Legal Fictions, Equity, and Legislation. ”

“ The common law by its own principles adapted itself to varying conditions and modified its own rules so as to serve the ends of justice as prompted by a course of reasoning which was guided by these generally accepted truths. ”

“ Speaking of the origin of civil power and the objects of law, he lays down these principles: "The law, strictly speaking, is directed primarily and principally to the common good; and to decree anything for the common benefit belongs either to the whole body of the people, or to some one acting in their place." ”

“ But law, strictly speaking, is simply the rule of action itself, as for instance, an Act of Parliament; but as in practice all such rules are enforced by a sanction of some kind, our conception of a law is also united with that of a lawgiver, who has both the right and the power to enforce it. ”

“ But since the days of the Ten Commandments it has been recognised that statute law, carefully considered and simply expressed and written down on tables of stone or otherwise, is a better-class article for ordering the affairs of a modern community. ”

“ If it be such an exercise of power 'as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the classes to which the one in question belongs,' it is due process of law. ”

“ 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. ”

“ I reckon they was afraid some man would go home some evening after work and light up and get an education and go to work and make laws to repeal aforesaid laws. Me, I’m for the old days when law and order meant what they said. A law was a law, and a order was a order.”
“But—” I began.
“I was going on,” continued Bud, “while this coffee is boiling, to describe to you a case of genuine law and order that I knew of once in the times when cases was decided in the chambers of a six-shooter instead of a supreme court. ”

“ 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. ”

“ In the course of time, the interests of thousands of individuals, and of whole classes, have become bound up with the existing principles of law in such a manner that these cannot be done away with, without doing the greatest injury to the former. ”

“ The philosophical habit of the day, the frequency of legislation, and the ease with which the law may be changed to meet the opinions and wishes of the public, all make it natural and unavoidable that judges as well as others should openly discuss the legislative principles upon which their decisions must always rest in the end, and should base their judgments upon broad considerations of policy to which the traditions of the bench would hardly have tolerated a reference fifty years ago. ”

“ Visigothic Theory Of Law.
Legislation is almost always imperative; it prescribes or interdicts; each legal provision usually corresponds to some fact which it either ordains or prohibits. Rarely does it happen that a law, or code of laws, are preceded by a theory on the origin and nature of power, the object and philosophic character of law, and the right and duty of the legislator. ”

“ 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. ”