Positive law

“ 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. ”

“ The obligation of every contract, then, will consist of that right, or power over my will or actions, which I, by my contract, confer on another. And that right and power will be found to be measured, neither by moral law alone, nor by universal law alone, nor by the laws of society alone; but by a combination of the three; an operation, in which the moral law is explained, and applied by the law of nature, and both modified and adapted to the exigencies of society by positive law. In an advanced state of society, all contracts of men receive a relative, and not a positive interpretation. ”

“ In no country do the decisions of positive 304 law coincide exactly, in every case, with the rules which the natural sense of justice would dictate. Systems of positive law, therefore, though they deserve the greatest authority, as the records of the sentiments of mankind in different ages and nations, yet can never be regarded as accurate systems of the rules of natural justice. ”

“ More and more we take over into the field of positive law that sphere of human action which has been hitherto untrammeled by legal restrictions, without thought of the extent to which a wise policy may leave some phases of human activity to the control of moral sanctions or to the restraints of the community sense of what is right conduct. ”

“ We are so little affected by things which are habitual, that we consider this idea of the decision of a majority as if it were a law of our original nature. But such constructive whole, residing in a part only, is one of the most violent fictions of positive law that ever has been or can be made on the principles of artificial incorporation. Out of civil society Nature knows nothing of it; nor are men, even when arranged according to civil order, otherwise than by very long training, brought at all to submit to it. ”

“ The ultimate thing was not natural law as before, not merely principles of eternal validity, but natural rights, certain qualities inherent in man and demonstrated by reason, which natural law exists to secure and to which positive law ought to give effect. Later these natural rights came to be the bane of juristic thinking. ”

“ In relation to positive law, that principle implies the necessity of its being made known, before it can impose any obligation. Positive law is a manifestation of the legislative will; and although there may be a legislative will, it does not become a law, where it is not manifested.
There was no argument on the part of the United States. ”

“ The sixteenth-century jurists of the Counter-Reformation held that men's activities were naturally limited, and hence that positive law might [Pg 82] and should limit them in the interest of other men's activities, because all men have freedom of will and ability to direct themselves to conscious ends. ”

“ Law was a realization of the idea of liberty, and existed to bring about the widest possible individual liberty. Liberty was the free will in action. Hence it was the business of the legal order to give the widest effect to the declared will and to impose no duties except in order to effectuate the will or to reconcile the will of one with the will of others by a universal law. What had been a positive, creative theory of developing liability on the basis of intention, became a negative, restraining, one might say pruning, theory of no liability except on the basis of intention. ”

“ To preserve in our system the principles of individual liberty and to accommodate to them the requirements of an efficient administrative system, to ascertain the principles which govern the relationship of positive law to the machinery and processes of law enforcement, are problems which cannot be solved wholly in the field of politics and of government. ”

“ But as regards Positive Morality, or moral rules, some have so far the essentials of an imperative law or rule, that they are rules set by men to men. But they are not set by men as political superiors, nor by men as private persons, in pursuance of legal rights ”

“ A period of legal development resulted which is strikingly analogous to the classical period of Roman law. Once more philosophy took the helm. Once more there was an infusion into law of ideas from without the law. Once more law and morals were identified in juristic thinking. Once more men held as a living tenet that all positive law was declaratory of natural law and got its real authority from the rules of natural law which it declared. ”

“ Thus each national jurist might work out his own interpretation of natural law by dint of his own reason, as each Christian might interpret the word of God for himself as his own reason and conscience showed the way. On the other hand, the Catholic jurists of the Counter-Reformation found a philosophical basis for satisfying these same desires in a conception of natural law as a sys [Pg 40] tem of limitations on human action expressing the nature of man, that is, the ideal of man as a rational creature, and of positive law as an ideal system expressing the nature of a unified state. ”

“ To the _jus gentium_ belong those laws which are derived from the Natural Law as conclusions from premises, e.g., the right to private property without which men cannot live peacefully in society. To civil law belongs whatever is derived from Natural Law by way of positive determination by a legislator; e.g., Natural Law dictates that the evil-doer be punished ”

“ They are immutable and irrefragible, and the best possible laws: therefore necessarily the basis of the most perfect government, and the fundamental rule of all positive laws, which are only for the purpose of upholding natural order, evidently the most advantageous for the human race. ”

“ The result of law inviolate is perfection—right—negative happiness. The result of law violate is imperfection, wrong, positive pain. ”

“ It is necessary to examine in an abstract and general manner what is required by justice in such or such a case, to the end that this case being presented may be judged according to the rule laid down, without regard to circumstances, place, time, or person.
The collection of those rules or laws that govern the social relations of individuals is called positive right. Positive right rests wholly on natural right, which at once serves as its foundation, measure, and limit. ”

“ 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. ”

“ Hence the product of legislation is the law-abiding man, of public opinion the well-conducted man, of personal conviction the conscientious man; each good in his own degree — the first as he is kept from harm, the second as he is pliant to the prevailing custom, the third as he honours his conscience as his king. Thus judged, there is a distinct scale of values — a vital difference of moral worth — in the hierarchy of rights and duties, on account of the sanction they appeal to. ”

“ 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. ”

“ 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. ”

“ And I ask what is the law, a conformity with which is equivalent to good, is equivalent to happiness, is equivalent to virtue? The answer, so far as man is concerned, seems to be this: To be virtuous and happy, man must conform first to the law of his own nature; secondly, he must conform to the law by which society is held together; thirdly, he must conform to the law of Providence. A life in conformity with these three laws, or rather three classes of laws, is, and must be, a life of virtue and happiness. But here it has to be asked, By means of what principle is man to find out these laws? ”

“ 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! ”

“ The intense intellectual and emotional life, and the heightening of sensations which came with the advance of civilization, made it clear to men that only a part of the pain, pleasure, and profit of life lay in physical things. Thoughts, emotions, and sensations demanded legal recognition, and the beautiful capacity for growth which characterizes the common law enabled the judges to afford the requisite protection, without the interposition of the legislature. ”

“ And it will be long before social discipline has so far modified human character that reverence for law, as rooted in the moral order of things, will serve in place of reverence for the power which enforces 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. ”

“ Of course we admit that good people intend to make good laws, and that good laws faithfully and honestly executed, tend to the preservation of human rights and to the elevation of the race, but the enactment of a law not in accordance with a sentiment already existing in the minds and hearts of the people—the very people who are depended upon to enforce this law—is not a help, but a hindrance. A real law is but the expression, in an authoritative and accurate form, of the judgment and desire of the majority. ”

“ We have, that is, two different, though not altogether distinct, provinces of what I may, perhaps, call organic and functional morality. We may take the existing order for granted, and ask what is then our duty; or we may ask how far the structure itself requires modification, and, if so, what kind of modification. A man who assumes the existence of the present structure may act justly or unjustly within the limits so prescribed. He must generally be guided in a number of cases by some principle of equality. The judge should endeavour to give the same law to rich and poor ”

“ We should realize early in life that law is absolutely necessary to guide human conduct, to restrain wrongful conduct, to punish wrong doing, and thus to aid in protecting us in our right to life, liberty, and property. ”

“ In the complicated relations of human life, various rules for the moral conduct of men have been devised, some of them in the form of statute laws, some in the form of customs, and, in virtue of these rules, certain artificial demands are made of men, which have no foundation in the moral nature of man; these demands are thought to represent duties. We have the same word to describe what I ought to do as subject to the law of God, and what is demanded of me by custom, or the statute. We call each a duty. ”

“ The great principle of the common law, which is equally the teaching of Christian morality, so to use one's property as not to injure others, forbids any other application or use of the rights and powers conferred. ”

“ It may, no doubt, be useful to point out that those who have the necessary disposition should obey these rules; and it would, in many cases, be desirable that everybody should have this disposition. But it should be recognised that, when we regard a thing as a moral rule or law, we mean that it is one which almost everybody can observe by an effort of volition, in that state of society to which the rule is supposed to apply. ”

“ When law is used in the sense of the standard of justice, it is said that it “is the standard of conduct which in consequence of the inner impulse that urges men toward a reasonable form of life, emanates from the whole, and is forced upon the individual”; [3] or that it is “the objective co-ordination of possible acts among men, according to an ethical principle which determines them and prevents their interference.” ”

“ Hence the rule by which men commonly judge of external actions, is taken from the supposed influence of such actions on the general good. To abstain from harm, is the great law of natural justice; to diffuse happiness, is the law of morality; and when we censure the conferring a favour on one or a few at the expense of many, we refer to public utility, as the great object at which the actions of men should be aimed. ”

“ But I do wish to make this intimation, that in this time of world change, in this time when we are going to find out just how, in what particulars, and to what extent the real facts of human life and the real moral judgments of mankind prevail, it is worth while looking inside our municipal law and seeing whether the judgments of the law are made square with the moral judgments of mankind. ”