Legalism

“ 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. ”

“ It is a rule of law, in the construction of all statutes, contracts and legal instruments whatsoever—that is, those which courts design, not to invalidate, but to enforce—that where words are susceptible of two meanings, one consistent, and the other inconsistent, with liberty, justice and right, that sense is always to be adopted, which is consistent with right, unless there be something in other parts of the instrument sufficient to prove that the other is the true meaning. ”

“ 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. ”

“ Recognizing the difficulty in defining with exactness the phrase "due process of law," it is certain that these words imply a conformity with natural and inherent principles of justice, and forbid that one man's property, or right to property, shall be taken for the benefit of another, or for the benefit of the State, without compensation; and that [p391] no one shall be condemned in his person or property without an opportunity of being heard in his own defence. ”

“ Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. ”

“ 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. ”

“ 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. ”

“ 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 ”

“ 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 meaning is, that every citizen shall hold his life, liberty, property, and immunities under the protection of the general rules which govern society. Every thing which may pass under the form of an enactment is not therefore to be considered the law of the land. If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man's estate to another, legislative judgments, decrees, and forfeitures in all possible forms, would be the law of the land. ”

“ That court best serves the law which recognizes that the rules of law which grew up in a remote generation may, in the fullness of experience, be found to serve another generation badly, and which discards the old rule when it finds that another rule of law represents what should be according to the established and settled judgment of society, and no considerable property rights have become vested in reliance upon the old 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. ”

“ 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. ”

“ For the rights for the protection of which our authority is invoked are the rights of sovereignty, of political jurisdiction, of government, of corporate existence as a State, with all its constitutional powers and privileges. No case of private rights or private property infringed, or in danger of actual or threatened infringement, is presented by the bill, in a judicial form, for the judgment of the court. ”

“ Let me premise the statement that the protection of the rights of life, liberty, and property is peculiarly within the province of the criminal law. What constitutes the right of life, liberty, and property can not be defined or described, except negatively by a definition of what will be deemed its infringements. ”

“ Where the language of a statute is plain, unambiguous, and well understood according to its natural and ordinary sense and meaning, the statute itself furnishes a rule of construction beyond which the court cannot go. ”

“ Wherever an act undertakes to determine a question of right or obligation, or of property, as the foundation upon which it proceeds, such act is to that extent a judicial one, and not the proper exercise of legislative functions. ”

“ They know all the nice points and proud formalities on which legal justice rests, or by which it may be eluded. The conflicting cases and opposing opinions, which may be brought to bear on an unsound horse, or a contested footpath, are deeply pondered over, carefully investigated. But the great edifice of general jurisprudence, though standing on his wayside, is usually passed by the legal traveller with averted eyes: the antiquary and the philosopher, indeed, may linger there; but the plodding man of business scorns to arrest his steps. ”

“ The law lays down the only standard by which the acts of the citizen are to be governed. What the law permits is right, else it would prohibit it. What the law prohibits is wrong, because it punishes it. ”

“ 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. ”

“ 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. ”

“ As we have said on more than one occasion, it may be difficult, if not impossible, to give to the terms 'due process of law' a definition which will embrace every permissible exertion of power affecting private rights, and exclude such as are forbidden. ”

“ Among these he mentions a law which punishes a citizen for an innocent action; a law that destroys or impairs the lawful private contracts of citizens; a law that makes a man a judge in his own cause; and a law that takes the property from A. and gives it to B. 'It is against all reason and right,' says the learned justice, 'for a people to intrust a legislature with such powers ”

“ Although it is my will that complete justice be observed in each case, I charge you that, in so far as may be possible, and can be rightly done, you settle the differences and suits which arise, without having recourse to the technicalities of the law or proceeding by the ordinary methods, or condemning to pecuniary fines; but observing throughout the provisions of the decrees that shall be given you. ”

“ 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. ”

“ 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" ”

“ It is safe to presume that the apparently unreasonable position of the law was assumed with a good object in view, and it is probable that the object was the protection of the court from the swarm of so-called experts which might be hatched by a laxity in the wording of the law. ”

“ Surely it may be assumed as a postulate, that a court of justice, in adjudicating upon the rights of the citizen or of the State, should do, and can have power to do, nothing which is irregular, or vain, or useless. ”

“ But while the realization in practice of public law and of criminal law is assured, because it is imposed as a duty on public officials, the realization in practice of private law is presented to individuals under the form of their legal rights; that is, it is left exclusively to them to take the initiative in its realization, left exclusively to their action. ”

“ To that legal or artificial person, once created, the common law of every State, of itself, annexes all those incidents and attributes which are represented as a prostration of the main pillars of their jurisprudence. ”

“ The questions we have to consider and decide in these cases, therefore, are to be treated as invoking the rights of every citizen of the United States equally with those of the strangers and aliens who now invoke the jurisdiction of the court. ”

“ The Constitution guarantees the principle of legality, the hierarchy of legal provisions, the publicity of legal statutes, the non-retroactivity of punitive provisions that are not favourable to or restrictive of individual rights, the certainty that the rule of law shall prevail, the accountability of public authorities, and the prohibition of arbitrary action of public authorities. ”

“ Remedies of a statutory character, where the right to be enforced was unknown at the common law, are to be followed with strictness, both as to the methods to be pursued and the cases to which they are to be applied. ”

“ 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. ”

“ What was the common law before the making of the act ? (b) What was the mischief and defect against which the common law did not provide? (c) What remedy the parliament hath resolved and appointed to cure the disease of the Commonwealth? (d) The true reason of the remedy.” (3) Beneficial or remedial statutes are to be liberally, penal more strictly, construed. (4) Other statutes in pari materia are to be taken into consideration. (5) A statute which treats of persons of inferior rank cannot by general words be extended to those of superior rank. ”

“ Justice Field, in The Moses Taylor, said: 'That clause only saves to suitors 'the right of a common-law remedy, where the common law is competent to give it.' It is not a remedy in the common-law courts which is saved, but a common-law remedy. ”