Chapter II — Civil Law
§ 5 The Definition of Law
The law is the body of principles recognised and applied by the state in the administration of justice. Or, more shortly: The law consists of the rules recognised and acted on in courts of justice.
It will be noticed that this is a definition, not of a law, but of the law, and our first concern is to examine the significance of this distinction. The term law is used in two senses, which may be conveniently distinguished as the abstract and the concrete. In its abstract application we speak of the law of England, the law of libel, criminal law, and so forth. Similarly we use the phrases law and order, law and justice, courts of law. It is to this usage that our definition is applicable. In its concrete sense, on the other hand, we say that Parliament has enacted or repealed a law. We speak of the by-laws of a railway company or municipal council. We hear of the corn laws or the navigation laws. The distinction demands attention for this reason, that the concrete term is not co-extensive with the abstract in its application. Law or the law does not consist of the total number of laws in force. The constituent elements of which the law is made up are not laws but rules of law or legal principles. That a will requires two witnesses is not rightly spoken of as a law of England; it is a rule of English law. A law means a statute, enactment, ordinance, decree, or any other exercise of legislative authority. It is one of the sources of law in the abstract sense. A law produces statute law, just as custom produces customary law, or as a precedent produces case-law.
This ambiguity is a peculiarity of English speech. All the chief Continental languages possess distinct expressions for the two meanings. Law in the concrete is lex, loi, gesetz, legge. Law in the abstract is jus, droit, recht, diritto. It is not the case, indeed, that the distinction between these two sets of terms is always rigidly maintained, for we occasionally find the concrete word used in the abstract sense. Medieval Latin, for example, constantly uses lex as equivalent to jus, and the same usage is not uncommon in the case of the French loi. The fact remains, however, that the Continental languages possess, and in general make use of, a method of avoiding the ambiguity inherent in the single English term.
Most English writers have, in defining law, defined it in the concrete, instead of in the abstract sense. They have attempted to answer the question: “What is a law?” while the true inquiry is: “What is law?” The central idea of juridical theory is not lex but jus, not gesetz but recht. To this inverted and unnatural method of procedure there are two objections. In the first place it involves a useless and embarrassing conflict with legal usage. In the mouths of lawyers the concrete signification is quite unusual. They speak habitually of law, of the law, of rules of law, of legal principles, but rarely of a law or of the laws. When they have occasion to express the concrete idea, they avoid the vague generic expression, and speak of some particular species of law—a statute, Act of Parliament, by-law, or rule of Court. In the second place, this consideration of laws instead of law tends almost necessarily to the conclusion that statute law is the type of all law and the form to which all of it is reducible in the last analysis. It misleads inquirers by sending them to the legislature to discover the true nature and origin of law, instead of to the courts of justice. It is consequently responsible for much that is inadequate and untrue in the juridical theory of English writers.8