§ 6 The Administration of Justice
We have defined law by reference to the administration of justice. It is needful, therefore, to obtain here some understanding of the essential nature of that function of the state, though a complete analysis of it must be deferred to a later period of our inquiry. That some form of compulsion and control is essential for the realization in human conduct of the idea of justice, experience has made sufficiently manifest. Unfortunately for the welfare of the world, men are not so constituted that to know the right is to do it. In the nature of things there is a conflict, partly real, partly only apparent, between the interests of man and man, and between those of individuals and those of society at large; and to leave every man free to do that which is right in his own eyes, would fill the world with fraud and violence. “We have seen,” says Spinoza, at the commencement of his Treatise on Politics,9 “that the way pointed out by Reason herself is exceeding difficult, insomuch so that they who persuade themselves that a multitude of men... can be induced to live by the rule of Reason alone, are dreamers of dreams and of the golden age of the poets.” If, therefore, we would maintain justice, it is necessary to add compulsion to instruction. It is not enough to point out the way; it is needful to compel men to walk in it. Hence the existence of various regulative or coercive systems, the purpose of which is the upholding and enforcement of right and justice by some instrument of external constraint. One of the most important of these systems is the administration of justice by the state. Another is the control exercised over men by the opinion of the society in which they live. A third is that scheme of coercion established within the society of states for the enforcement of the principles of international justice.
The administration of justice may therefore be defined as the maintenance of right within a political community by means of the physical force of the state.
The instrument of coercion employed by any regulative system is called a sanction, and any rule of right supported by such means is said to be sanctioned. Thus physical force, in the various methods of its application, is the sanction applied by the state in the administration of justice. Censure, ridicule, contempt, are the sanctions by which society (as opposed to the state) enforces the rules of morality. War is the last and the most formidable of the sanctions which in the society of nations maintain the law of nations. Threatenings of evils to flow here or hereafter from divine anger are the sanctions of religion, so far as religion assumes the form of a regulative or coercive system.10
A sanction is not necessarily a punishment or penalty. To punish wrongdoers is a very effectual way of maintaining the right, but it is not the only way. We enforce the rule of right, not only by imprisoning the thief, but by depriving him of his plunder, and restoring it to its true owner; and each of these applications of the physical force of the state is equally a sanction. The examination and classification of the different forms of sanction made use of by the state will claim our attention in a later chapter on the administration of justice.