§1. In an earlier chapter I incidentally noticed the distinction between Ideal Morality or the true moral code---by many conceived and spoken of as the ``Law of God''---and Positive Morality, or the rules of duty supported by the sanctions of public opinion in any given age and country. It does not fall within the plan of this treatise to discuss the principles of the true moral code,---except so far as this relates to the conduct of Governments, or of private persons in their relations to Government. But the moral opinions and sentiments prevalent in any community form so important a consideration in practically determining how its government ought to act, that it is desirable to survey briefly the general relations of Positive Morality to Positive Law in a modern State.
I must begin by making more complete the general conception of ``legal'' in contrast to ``moral'' rules which was introduced in Chap. II. I there, following Bentham and Austin, regarded as ``legal'' those rules of which the violation is repressed, directly or indirectly, by the action of Government or its subordinates; whereas the violation of a rule of positive morality is only punished by general disapprobation and its social consequences. This definition corresponds approximately to the usage of the term ``law'' in a well-ordered society, and lays stress on a characteristic of fundamental importance. But this difference in the sanctions attached to legal and moral rules respectively is not the only general and important distinction that a comparison of the two systems of rules shows; there is a difference of another kind in the comparative definiteness and systematic coherence of the two codes, to which I wish now to draw attention.
Let us first observe that it would not be quite exact to define a law as a rule actually enforced by governmental penalties; since judges and magistrates are admittedly liable to err, and when they err, it would be correct to say that they have ``mistaken the law'', and applied a rule that is not really a part of the law of the land. What, then, precisely is the intellectual process by which a right judicial decision may be reached? The answers to this question are somewhat different in different countries and at different times. In such a community as we have throughout contemplated, I have assumed the existence of some established organ of legislation, some body or combination of bodies, whose general commands relative to the social conduct of members of the community will be unquestioningly applied by judges and, generally speaking, obeyed by the bulk of private members of the community. As we saw, it does not follow that the rules which it is the practice of Courts to apply have been all derived from this source: but in some countries they have in the main been formally so derived; that is, codes have been framed intended to cover the whole or chief part of the field with which judicial decisions have to deal. So far, then, as this is the case the judge's function is merely to interpret the code; if it is clear and complete, the process is easy and straightforward: but if any of the terms used in it are vague, he has to give them a precise meaning; if they are distinctly ambiguous in ordinary use, he has to infer from the rest of the code which meanings are intended; if two rules in the same code are apparently inconsistent, he has to find out some means of reconciling them, or to decide which is to give way to the other. It will easily be understood that this function requires care and subtlety and trained skill, even in the simplest case of a code recently framed: but it becomes more complex and usually more difficult when some time has elapsed, in which the code has been importantly modified by fresh legislation; since this not only increases the aggregate of rules that have to be interpreted, but also still more the danger of inconsistency in them, from the new matter introduced at different times by legislatures differently composed.
And the complexity is greater still in such a case as our own, where, as we saw, a great part of the Law has had an origin independent of the action of the Legislature; being composed partly of old customary rules gradually made more definite by judicial interpretation, partly of rules introduced by judges at an earlier stage of our history, from Roman law or other foreign sources, or from their own moral consciousness. In this case Law presents itself as a system of rules, heterogeneous both in their intellectual origin and in the source of their obligation regarded from the judges' point of view,---some are binding because the Legislature has laid them down, others because previous judges have agreed in accepting them. But, whatever their origin, there are two conditions to which in their application as law they are universally subject: they must be interpreted so as to be mutually consistent, and cogent reasons for a decision in every case that presents itself must, if possible, be somehow extracted from them. It is in the fulfilment of these conditions that judicial skill is shown, and in the endeavour to fulfil them under difficulties a certain amount of judicial law-making inevitably occurs from time to time; for if two rules as previously defined are found to collide, or if there are two competing analogies equally applicable to a case that is not clearly included under any pre-existing rule, the judge is forced to give a fresh determination to the law that it is his aim merely to interpret. It should be observed, however, that the limited legislative power thus placed in the hands of a judge in a modern civilised community, is not placed there because he is selected or qualified for the purpose of exercising it; rather, we may say that he is selected and qualified for the purpose of keeping it as much as possible unexercised. His primary duty is to apply the law as it is, not to make it what he thinks it ought to be; and the more conscientiously and skilfully he fulfils his primary duty, the more will his power of determining law be limited to cases that are really unprovided for or ambiguously provided for in the law as already determined. Sometimes, in such innovations the judge is doubtless influenced by considerations of abstract equity or utility, but only within the strict limits above explained; since, where the decision clearly most in harmony with the analogies of established law is plainly inexpedient, it would now be generally recognised as a case for the intervention of the Legislature. In any case, the result is that in one way or another, either by the authority of the judge or by that of the Legislature, divisions of opinion as to the right application of received legal rules---and also any marked divergences between such rules and what is generally regarded as expedient---tend to be continually removed. And as the development of Law goes on, the function of the judge is confined within ever narrowing limits; the main source of modifications in legal relations comes to be more and more exclusively the Legislature.[Back to:] [Elempol, Chapter 12, Section 4] Governmental Encroachments and Compensation