Law book

“ It is well known that public statutes require no proof besides the printed statute-book. [326] This was an original principle of English law, which has been adopted and fortified among us. Professor Greenleaf, who is such authority on the Law of Evidence, thus exhibits the value of the printed copy:—
“It is the invariable course of the Legislatures of the several States, as well as of the United States, to have the laws and resolutions of each session printed by authority. ”

“ In this situation they are frequently to decide, and that upon their oaths, questions of nice importance, in the solution of which some legal skill is requisite; especially where the law and the fact, as it often happens, are intimately blended together. ”

“ Antithesis.—The only object of the erection of a state government is to secure to each the full possession of his rights; and the state has only to discover and apply the means which will secure this object. ”

“ DEDUCTION OF AN EQUILIBRIUM OF RIGHTS.—All law relations are determined by this principle: each one must restrict his freedom by the possibility of the freedom of the other. ”

“ When, therefore, in an ordinary trial in an action at law we speak of the common law we refer to the law of the state as it has been adopted by statute or recognized by the courts as the foundation of legal rights. It is in regard to decisions made by the state courts in reference to this law, and defining what is the law of the state as modified by the opinions of its own courts, by the statutes of the state, and the customs and habits of the people, that the trouble arises. ”

“ 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. ”

“ 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 his 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. ”

“ The two are, in fact, only earlier and later developments of the same social fact, depending for their evolution upon the play of human qualities in the necessary relations of society.
The second great practical lesson which will be taught by comparative jurisprudence is, as I have said, the knowledge of the true relations of custom and law to legislation. Law is the statical, legislation the dynamical side of the same fact. The lawyer studies what is, the legislator what ought to be. The jurist is he who studies what has been, what is, and what ought to be. ”

“ To solve this contradiction we must discover its ground.
The state takes possession of the remainder, not in respect to its form, as remainder and as property, but in respect to its substance, as something which is necessary to sustain life.
In order to solve the contradiction thoroughly, form and substance must, therefore, be separated. The state must have the power of taking the substance without touching the form.
Without exhibiting here unnecessary profundity, I shall solve the problem at once. ”

“ 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. ”

“ Each society has its own system of laws, and all the systems, so far as they are known, constitute the appropriate subject matter of jurisprudence. The jurist may deal with it in the following ways. He may first of all examine the leading conceptions common to all the systems, or in other words define the leading terms common to them all. Such are the terms law itself, right, duty, property, crime, and so forth, which, or their equivalents, may, notwithstanding delicate differences of connotation, be regarded as common terms in all systems. ”

“ Conceding, or better realizing, this inherently fluctuating character or quality of public policy, we see that the enactment of statutes to declare or define it must of necessity be a dangerous business, because such statutes, however accurately they reflect the public policy of the moment of their enactment, must almost immediately begin to be wrong. The Common Law, reposing, according to the legal fiction, in the bosom of the court, is flexible, and can change or be changed, as we have seen, with the change of condition ”

“ Based on the notion that the law is definite and knowable, the common law presumed that every person knew the law. This common-law rule has been applied by the Court in numerous cases construing criminal statutes. ”

“ 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. ”

“ In reading the Laws of Plato, or any other ancient writing about Laws, we should consider how gradual the process is by which not only a legal system, but the administration of a court of law, becomes perfected. ”

“ Finally, statute law is greatly superior to case-law in point of form. The product of legislation assumes the form of abstract propositions, but that of precedent is merged in the concrete details of the actual cases to which it owes its origin. Statute law, therefore is brief, clear, easily accessible and knowable, while case-law is buried from sight and knowledge in the huge and daily growing mass of the records of bygone litigation. Case-law is gold in the mine—a few grains of the precious metal to the ton of useless matter—while statute law is coin of the realm ready for immediate use. ”

“ There is no such difference except in the case of what is properly called “judicial legislation”—wherein an absolutely new rule is added for the first time to the law. The recognition of a custom or law is not necessarily the beginning of the custom or law. Where a custom possesses the marks by which its legality is determined according to well understood principles, the courts pronounce it to have been law at the time of the happening of the facts as to which their jurisdiction is invoked. ”

“ 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 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. ”

“ 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 elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, and if the law is within the constitutional authority of the lawmaking body which passed it, the sole function of the courts is to enforce it according to its terms. ”

“ His idea and purpose are to establish a positive science of jurisprudence in the widest and most comprehensive sense of the word, on the basis of an investigation of all the forms of law, available to research, that have ever appeared. A universal science of jurisprudence, according to this conception, would have for its subject-matter the contents of the jural sense or consciousness of the entire human race,—the jural facts of the totality of human society. ”

“ Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are―
‘39. (1) When interpreting the Bill of Rights, a court, tribunal or forum―
(2) When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.’ ”

“ But here a very natural, and very material, question arises: how are these customs or maxims to be known, and by whom is their validity to be determined? The answer is, by the judges in the several courts of justice. They are the depositary of the laws; the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land. Their knowlege of that law is derived from experience and study ”

“ Common law, as it styles itself in England, judiciary law as it might aptly be styled every where, that fictitious composition which has no known person for its author, no known assemblage of words for its substance, forms every where the main body of the legal fabric: like that fancied ether, which, in default of sensible matter, fills up the measure of the universe. ”

“ Codes, laws, and ordinances of other States, says a learned writer, whether ancient or modern, are received by the courts with great respect, not as containing any authority in themselves, but as evidence of the general law merchant. ”

“ The reader must bear in mind that the law herein dealt with is the law as it is administered in the legal forms of his country, in no degree changed and in no degree colored by the imagination of the author. Every legal statement represents an established principle, thoroughly analyzed by the courts of last resort. There can be no question as to the probable truth of these legal conclusions. They are as certainly established as it is possible for the decisions of courts to establish any principle of law. ”

“ Whatever might be the answer of a moralist to this question, a jurist must search for its legal solution, in those principles of action which are sanctioned by the usages, the national acts, and the general assent, of that portion of the world of which he considers himself as a part, and to whose law the appeal is made. ”

“ The reform of law by judicial construction, however forced and illogical, being a much more familiar and agreeable process than amendment by legislation, the art of quibbling, of drawing distinctions where there was really no difference, and of detecting resemblance though there was no essential similitude, was employed with no inconsiderable effect in contracting or enlarging the operation of legal principles ”

“ Under the first judiciary act this court had power 'to make and establish all necessary rules for the orderly conducting of business,' in all the courts of the United States. Act Sept. 24, 1789, c. 20, § 17 (1 Stat. 83) . And successive statutes recognized its power to make rules, not inconsistent with the laws of the United States, prescribing the forms of writs and other process at common lawAs writs and other process at common law, as courts. ”

“ The most important point of all is the proper choice of subject titles. Laws should be indexed under the general subject or branch of the science of jurisprudence, or the subject-matter to which they belong, not too technically and not too much according to mere logic. ”

“ 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. ”

“ Legislation is a formal expression of the agreement of the community upon the definition of crimes, and common law has been produced by the decisions of the courts in actions between man and man. Every case tried in a civil court is a conflict between two parties, a struggle for justice, the judgment being justice applied to the particular case. The growth of English law has been through an endless series of conflicts, and the law of to-day may be described as a line passing through a series of points representing an infinite number of judgments, each the decision of a conflict in court. ”

“ For although courts sometimes have been slow to extend the effect of statutes modifying the common law beyond the direct operation of the words, it is obvious that a statute may indicate a change in the policy of the law, although it expresses that change only in the specific cases most likely to occur to the mind. ”

“ 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. ”