§ 9 The Justification of the Law
We have seen that the existence of law is not essential to the administration of justice. Howsoever expedient, it is not necessary that this function of the state should be exercised in accordance with those rigid principles which constitute a legal system. The primary purpose of the judicature is not to enforce law, but to maintain justice, and this latter purpose is in its nature separable from the former and independent of it. Even when justice is administered according to law, the proportion between the sphere of legal principle and that of judicial discretion is different in different systems, and varies from time to time. This being so, it is well to make inquiry into the uses and justification of the law—to consider the advantages and disadvantages of this substitution of fixed principles for the arbitrium judicis in the administration of justice—in order that we may be enabled to judge whether this substitution be good or evil, and if good within what limits it should be confined.
That it is on the whole expedient that courts of justice should become courts of law, no one can seriously doubt. Yet the elements of evil involved in the transformation are too obvious and serious ever to have escaped recognition. Laws are in theory, as Hooker says, “the voices of right reason”; they are in theory the utterances of Justice speaking to men by the mouth of the state; but too often in reality they fall far short of this ideal. Too often they “turn judgment to wormwood,” and make the administration of justice a reproach. Nor is this true merely of the earlier and ruder stages of legal development. At the present day our law has learnt, in a measure never before attained, to speak the language of sound reason and good sense; but it still retains in no slight degree the vices of its youth, nor is it to be expected that at any time we shall altogether escape from the perennial conflict between law and justice. It is needful, therefore, that the law should plead and prove the ground and justification of its existence.
The chief uses of the law are three in number. The first of these is that it imparts uniformity and certainty to the administration of justice. It is vitally important not only that judicial decisions should be correct, distinguishing accurately between right and wrong, and appointing fitting remedies for injustice, but also that the subjects of the state should be able to know beforehand the decision to which on any matter the courts of justice will come. This prevision is impossible unless the course of justice is uniform, and the only effectual method of procuring uniformity is the observance of those fixed principles which constitute the law. It would be well, were it possible, for the tribunals of the state to recognise and enforce the rules of absolute justice; but it is better to have defective rules than to have none at all. For we expect from the coercive action of the state not merely the maintenance of abstract justice, but the establishment within the body politic of some measure of system, order, and harmony, in the actions and relations of its members. It is often more important that a rule should be definite, certain, known, and permanent, than that it should be ideally just. Sometimes, indeed, the element of order and certainty is the only one which requires consideration, it being entirely indifferent what the rule is, so long as it exists and is adhered to. The rule of the road is the best and most familiar example of this, but there are many other instances in which justice seems dumb, and yet it is needful that a definite rule of some sort should be adopted and maintained.
For this reason we require in great part to exclude judicial discretion by a body of inflexible law. For this reason it is, that in no civilised community do the judges and magistrates to whom is entrusted the duty of maintaining justice, exercise with a free hand the viri boni arbitrium. The more complex our civilisation becomes, the more needful is its regulation by law, and the less practicable the alternative method of judicial procedure. In simple and primitive communities it is doubtless possible, and may even be expedient, that rulers and magistrates should execute judgment in such manner as best commends itself to them. But in the civilisation to which we have now attained, any such attempt to substitute the deliverances of natural reason for predetermined principles of law would lead to chaos. “Reason,” says Jeremy Taylor,12 “is such a box of quicksilver that it abides no where; it dwells in no settled mansion; it is like a dove’s neck;... and if we inquire after the law of nature” (that is to say, the principles of justice) “by the rules of our reason, we shall be as uncertain as the discourses of the people or the dreams of disturbed fancies.”
It is to be observed in the second place that the necessity of conforming to publicly declared principles protects the administration of justice from the disturbing influence of improper motives on the part of those entrusted with judicial functions. The law is necessarily impartial. It is made for no particular person, and for no individual case, and so admits of no respect of persons, and is deflected from the straight course by no irrelevant considerations peculiar to the special instance. Given a definite rule of law, a departure from it by a hair’s-breadth is visible to all men; but within the sphere of individual judgment the differences of honest opinion are so manifold and serious that dishonest opinion can pass in great part unchallenged and undetected. Where the duty of the judicature is to execute justice in accordance with fixed and known principles, the whole force of the public conscience can be brought to the enforcement of that duty and the maintenance of those principles. But when courts of justice are left to do that which is right in their own eyes, this control becomes to a great extent impossible, public opinion being left without that definite guidance which is essential to its force and influence. So much is this so, that the administration of justice according to law is rightly to be regarded as one of the first principles of political liberty. “The legislative or supreme authority,” says Locke,13 “cannot assume to itself a power to rule by extemporary, arbitrary decrees, but is bound to dispense justice, and to decide the rights of the subject by promulgated, standing laws, and known, authorized judges.” So in the words of Cicero,14 “We are the slaves of the law that we may be free.”
It is to its impartiality far more than to its wisdom (for this latter virtue it too often lacks) that are due the influence and reputation which the law has possessed at all times. Wise or foolish, it is the same for all, and to it, therefore, men have ever been willing to submit their quarrels, knowing, as Hooker15 says, that “the law doth speak with all indifferency; that the law hath no side-respect to their persons.” Hence the authority of a judgment according to law. The reference of international disputes to arbitration, and the loyal submission of nations to awards so made, are possible only in proportion to the development and recognition of a definite body of international law. The authority of the arbitrators is naught; that of the law is already sufficient to maintain in great part the peace of the world. So in the case of the civil law, only so far as justice is transformed into law, and the love of justice into the spirit of law-abidingness, will the influence of the judicature rise to an efficient level, and the purposes of civil government be adequately fulfilled.
Finally, the law serves to protect the administration of justice from the errors of individual judgment. The establishment of the law is the substitution of the opinion and conscience of the community at large for those of the individuals to whom judicial functions are entrusted. The principles of justice are not always clearly legible by the light of nature. The problems offered for judicial solution are often dark and difficult, and there is great need of guidance from that experience and wisdom of the world at large, of which the law is the record. The law is not always wise, but on the whole and in the long run it is wiser than those who administer it. It expresses the will and reason of the body politic, and claims by that title to overrule the will and reason of judges and magistrates, no less than those of private men. “To seek to be wiser than the laws,” says Aristotle,16 “is the very thing which is by good laws forbidden.”