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community not possessed of a properly organized government, is as much law as the enactment of an American legislature or the acts of Parliament. Nor is there any greater difference in the character of the forces which in their operations upon the social life command the formulation and enforcement of the rules of conduct in the two cases. In both cases the average common-sense of propriety, which is uniformly obeyed by the vast majority of a people, constitutes in the main the standard after which rules of law are modelled. The morality commonly and uniformly practised by the masses lends its character to the rule of law when it is first enunciated. And even when the rule is first promulgated, its ethical character is much lower than the standard of morality set up by ethical teachers; for only that code of morality can be enforced against delinquents which the people generally obey. For if it were attempted to enforce a higher standard, for example, to compel every one to do unto others as he would have them do unto him, the sanction would be wanting, for no penalty is effective unless it is backed by the posse comitatus.
Municipal law is not intended to control the ac-t tions of the masses. The great majority of a peoplet are a law unto themselves. And wherever this fundamental thought is lost sight of, legislation results in nothing but the production of dead letters, still
born laws, that never did and never could have become a living rule of conduct. For the life of a rule of law is derived from its habitual and spontaneous observance by the mass of the people. It is only when its enactment is called for by a popular sense of necessity, in order to compel a rebellious minority to conform to the moral habits and customs of the people, that a rule of conduct can become a living law. Although a moment's reflection is sufficient to satisfy one of the correctness of this position, it is surprising what false notions of legislation do prevail, even among scientific men. The tenets of a large and influential school of economists are based, confessedly or otherwise, upon the notion that the living power of the law is from an extra-human source; for they are preaching the doctrine daily that the ills of life, which they admit to be the consequences of sin and ignorance, or, in other words, of the frailties of human nature, may be cured or, at least, lessened by legislation, even where the evil is not the result of a trespass. And the call is often made for fresh legislation, as a means of raising the standard of morality of the people. The stream can never rise higher than its source, nor can it be expected that legal rules, which are but a reflection of the moral habits of a people, can effect their moral elevation; least of all, the moral elevation of a people living under a government “of the people, for the people, and by the people.” One may just as well expect by taking thought to add one cubit unto his stature, as by legislative declaration to add one cubit to the moral stature of the people.
The legal rule is, therefore, fashioned after the prevalent sense of right. The Germans call it Rechtsgefuehl.
It is not so difficult for the novice to admit this doctrine in its application to judicial legislation, or judge-made law, as Bentham contemptuously calls it; but it is more difficult to believe that the legislative will is bound down by this prevalent sense of right to a fixed line of conduct, from which it cannot successfully swerve. I do not mean to say that the legislature cannot make an enactment, which does not reflect the prevalent sense of right; for there are too many deplorable instances of such misuse of power, to admit of denial. 1 But I do assert emphatically that the legislature cannot completely enslave the popular will by an enactment not endorsed by the prevalent sense of right. Popular opinion, for prudential reasons, requires of the individual obedience to the written word, until the power which enacted
· The expression “deplorable misuse of power" is used in this connection, because the writer is convinced that the multiplication of laws which cannot be enforced tends to lessen the popular reverence or respect for law, and habituates the people to the repeated violation, not only of those laws which do not reflect the prevalent sense of right, but also those which are so sanctioned.
it can be induced or forced to repeal it. To this extent can the legislative will, as a factor in the making of the law, influence its development in opposition to the popular desire. But when the law is brought before the courts for enforcement, its practical operation will be made by interpretation and construction to conform to the prevalent sense of right, as far as this is possible without nullifying the letter of the law. It frequently happens that the effect of the statute will in this manner be completely changed, and will, as it is enforced, produce an entirely different effect from what had been intended. A most notable example is the English Statute of Uses. This statute was enacted for the
of abolishing uses entirely, and preventing the creation of any equitable interest in lands, separate and apart from the legal title. But when this statute was brought before the courts, it met with the most determined opposition from the bench and bar. They reflected the prevalent sense of right in the middle English classes, and gave the statute a strict technical construction, thus limiting its operation to such an extent that, instead of being abolished by the statute, the law of uses became all the more firmly settled. Upon this distorting, technical construction of the English Statute of Uses rests the entire law of modern trusts, except so far as there have been modifications by American statutes. Instances of this kind may be multipled indefinitely.
It may, therefore, be laid down as a general proposition that a legal rule is the product of social forces, reflecting the prevalent sense of right. It is another question, what is the relative influence of individuals and of classes in moulding this popular sense of right. The state of the public mind may be such that it may be said of that people, quod principi placuit habet legis vigorem; and even in the land of democratic rule and of universal suffrage, only a few persons really mould and fashion public opinion. The great body of private law is, by common consent, usually left to be developed by the legal profession. Still, in every country, it matters not how or by whom it is created, whatever is the prevalent sense of right is the norm by which legal rules are formulated.
But the popular sense of right does not remain stationary. In its growth and evolution it follows an easily recognized law of development. The popular sense of right rises with the increasing enlightenment of the ethical teachers. Although the legal rule reflects the popular sense of right, prevalent when it was formulated, it may not, and usually does not, conform altogether to the popular sense of right in its later stages of development, and very frequently there is so great a variance between them as to cause serious popular dissatisfaction.
Philosophical enthusiasts sometimes claim that this variance is due to the imperfect formulation of the legal rule, and that but for this imperfect reflection