§2. So far I have said nothing of a Legislative organ, having the function of laying down the general rules of civic duty which the Judiciary has to apply to particular cases. But if the State requires laws, it seems an obvious inference that it needs a special organ for the supremely important work of laying down the laws required; and, as in fact such an organ exists in all modern States, I have not hesitated to assume its existence in previous chapters. Still, the obvious inference from law to a legislature is not quite so indisputable as it seems, if we suppose the action of government to be strictly confined to the ``individualistic minimum''. As has been before observed, a great part of the rules enforced by Government in our own society have not had their origin in express legislation; they have been gradually brought to the degree of precision and elaborateness which they have now attained, by a series of judicial decisions which ostensibly declared and applied rules or principles of right handed down from time immemorial. And it might be held that this judicial quasi-legislation is, even in a highly civilised society, the best machinery for introducing such improvements as may be required in the definition of these traditional rules.
The issue thus raised will be most conveniently discussed by distinguishing two questions; (1) whether it is expedient that legal duties should be capable of being known as exactly as possible by the persons who have to fulfil them; and (2) whether legislative enactments or judicial decisions afford the best means of attaining this end. In examining the first question---since there are some who are hardly able to conceive it answered otherwise than affirmatively,---it will be well to put the case as plausibly as we can on the opposite side. We may do this by laying stress on the analogy between law and morality. What is called the ``moral code'' is very unprecisely apprehended by ordinary persons: and it is not uncommonly held that attempts to formulate it precisely are mistaken, and liable to do harm rather than good by encouraging persons to conform to the letter of the rules laid down, while really disloyal to the underlying principles. Every one, it is often said, knows broadly what he ought to do; in difficult cases he had better trust to instinct; if he goes wrong and deserves condemnation, his ill desert will be easily apprehended---at any rate after the event---by an experienced and impartial spectator. It seems quite possible to treat the legal code similarly; indeed, it might be fairly urged that the legally obligatory part of our moral duty is generally the easiest to know. Every plain man is perfectly aware that he ought not to slay, or wantonly beat, or insult and defame his fellow-citizens, that he ought not to steal, cheat, break his promises, neglect his children, etc.: if he commits any of these offences he will almost always be conscious that he has done wrong; and if he should lack this consciousness, his judge at any rate will have no difficulty in coming to a decision which will be generally approved. Grant that there are cases ``on the line'', which even an expert would have some difficulty in deciding, and in which, therefore, a plain man cannot be expected to know his strictly legal duty; still, it may be urged, this ignorance has its advantages, as a plain man should keep aloof from this ambiguous margin; if you tell him the precise limits of his legal obligations, you hold out to him a dangerous temptation to go as close as possible to the limit, when interest or passion urge him in the direction opposed to duty.
These arguments seem to me not devoid of force. Indeed, it is because they contain an important element of truth that the legal maxim, ``ignorance of the law excuseth none'', is not in practice so oppressive as it at first sight appears. The ordinary citizen of a modern State certainly does not know the law of his State; but, if he acts on his common-sense view of social duty, the cases in which he is in danger of coming into collision with this law are comparatively few. And it is a matter of common experience that the more precise knowledge of particular rules of law, which a minority of persons attain by special study, is sometimes used for the purpose of evading social duties and taking an unfair advantage of the ignorance of others.
But such force as the arguments above given may be allowed to possess, seems to be decidedly outweighed by the consideration of the insecurity, inconsistency, and inequality that tend to result from imperfect definition of legal duties.
In considering the first evil---insecurity---we see that the analogy just suggested, between doubtful or marginal cases in morality and similar cases in law, is not a close one. When confronted with a problem of moral casuistry, where there is a prima facie conflict of duties, a man who means well may usually hope, even if he is severely condemned by some moral persons, to be acquitted or even praised by others. But in the case of legal penalties there can be no such mixture and balance; they must be either inflicted or not inflicted; and though punishment proper might sometimes be remitted or reduced where the absence of criminal intent was clear, such remission could not be counted on; since very mischievous acts, needing severe repression, may be done by thoroughly well-intentioned persons: and in any case damages due to private individuals wronged could not be remitted. And to the suggestion that the danger of having to suffer punishment or pay damages might be avoided by keeping well within the limits that separate allowed from forbidden conduct, it may be fairly replied that the most innocent persons are continually liable to be brought near these limits in certain directions by their social functions and relations. For example, an honest newspaper editor cannot be sure of giving the law of libel a ``wide berth'', a schoolmaster requires to know exactly what punishments he may inflict, a tradesman how far he is responsible for the quality of his goods, any owner of property how far he may use violence to ward off encroachments on his rights. Especially in the case of rights of property, the precisest possible definition is often needed to prevent litigation and ill-feeling even among persons sincerely anxious to act rightly; since it is often the imperative duty of such persons to enforce their pecuniary rights to the full, for thesake of others whose interests they have in charge.
Then we have to take into account the further evils that would result from inconsistency in the application of legal rules. The decisions of judges would inevitably differ widely---assuming that no one was bound by precedents---and the general respect for law would suffer in proportion: especially as the consequent inequality in the treatment of similar cases could not but be felt as injustice. For, however men may disagree in the application of the idea of justice, there is one point on which they agree---that similar cases should be treated similarly.
I conclude, then, that the utmost attainable definiteness in legal rules is on the whole to be regarded as a gain, subject to the condition,---which has been assumed throughout the preceding argument for definition,---that the defined law is capable of being known by the persons whose rights and duties it determines. For to lay down laws with extreme precision, but in such a manner as to render them practically unknowable by the persons who have to obey them, would obviously fail to give the desired security: hence effective publication of a new statute is always held to be essential to good government.
It may be replied, however, that this ``cognoscibility'',---to use Bentham's term---of law, is an unattainable ideal: since an ordinary member of a modern State could not possibly know the elaborate system of legal rules that has been gradually worked out to meet the requirements of the complex society to which he belongs, even if they were expressed and arranged in the clearest possible manner, and purged from all historical survivals and useless technicalities. This is certainly true, but no such extensive knowledge is practically needed by an ordinary citizen: it is only a minute fraction of the leoal code of his country, varying according to the nature of his calling and his social position, that it would practically profit an ordinary citizen to know for the ordinary business of his life; while for rare and important transactions it is no great burden that he should have to take legal advice. It seems, therefore, expedient to facilitate the acquirement by an ordinary citizen of such knowledge of the laws of his State as practically concerns him; while, in order that the work of giving legal advice and the administration of justice may be as economically and effectively performed as possible, and that changes in law may not be made ignorantly and unskilfully, it seems no less expedient to render a knowledge of law easily attainable by legal advisers, pleaders, judges, and legislators.[Back to:]