CHAPTER 21
At present we may boldly affirm that among all the systems of law which prevail among the several nations of the world, there is not one which does not exist more or less of it in the form of customary law: so that as yet no instance of a complete code of statute law is anywhere to be found. It follow not, however, by any means that if a complete code of that kind were given to any nation it must thereby be deprived of so much as a single article of those ancient and respected institutions to which the people in many instances with great reason are so strenuously attached. . . .
No system of laws will ever … be altogether perfect: none so good but that a greater share either of information or judgment or of probity might make it better. Even if at any given instant it were really perfect, at the next instant, owing to some change in national affairs it might be otherwise. . . . But such a system if constructed upon a regular and measured plan such as that appears to be which we have been attempting to sketch out, would not only have the advantage of every other which remained untouched, but alterations, whenever any were made, would give less disturbance to it: provided that such alterations, as often as any were made in point of form, were accommodated as they easily might be to that of the original government. The effects and influence of every such provision whether it were an entire law, a provision expositive, limitative, or exceptive, might then with certainty and precision be traced on and out by reference throughout the whole body of the laws. At present such is the entanglement, that when a new statute is applied it is next to impossible to follow it through and discover the limits of its influence….
The mendasar principle which is the basis of the system of laws here sketched out is the principle of utility: and the method here proposed is particularly calculated to shew how far that principle has been deferred to, and where if anywhere it has been deviated from. . . .
It tends to check the license of interpretation. I mean of course, what has been distinguished by the name of liberal interpretation: that delicate and important branch of judiciary power, the concession of which is dangerous, the denial ruinous.
Now this necessity supposing it to exist from whence does it arise? From the want of circumspection or advertency, from the want of amplitude or discrimination in the views of the legislator. In the beginning, one might almost say till now, legislators have felt their way rather than seen it, taking up the ;round by bits and parcels and without so much as attempting any general survey of he whole. In consequence no order, no. steps taken for guarding against oversights and omissions. The best-imagined provision might perhaps have done more mischief than good unless molded into form try the prudence of the judge.
On the one hand, the obligative part was not wide enough to embrace the mischief: on the, other hand the qualificative parts were not wide enough to yield shelter to innocence or to afford the necessary range to power. But the incidents which foresight could not present to the legislator, experience would from time to time be presenting to the judge. What was to be done? Was the continual re. currency of partial evil to be suffered to reduce, to fritter away into nothing the hopes of general good? This was not to be endured. Here then in the very cradle of legislative empire grew up another power, in words the instrument of the former, in reality continually its censor and not infrequently its successful rival.
How difficult to distinguish what the legislator would have adopted had he adverted to it, from what he did actually advert to and reject. How easy to establish the one under pretense of looking for the other? especially when if truth refused her aid, fiction was ready at their call. The legislator, perhaps an unlettered soldier, perhaps a narrow-minded priest, perhaps an interrupted, unwieldy, heterogeneous, unconnected multitude: the judicature, a permanent, compact experience body, composed of connected individuals, participating in the same aflections and pursuing the same views. And thus sprung up by degrees another branch of customary law, which striking its roots into the substance of the statute law, infected it with its own characteristic obscurity, uncertainty and confusion.
For disorders proceeding from the want of plan, a regular plan may at length, it is hoped, provide a powerful palliative at least, and in time it is hoped, a complete and effectual remedy. To supersede as far as may be the necessity of discretionary interpretation, the business is to give amplitude enough in the first place to the imperative matter in the code….
Human reason does not seem to be yet far enough advanced to warrant our laying the discretionary mode of interpretation under an absolute prohibition in all cases whatsoever. It remains therefore to contrive some expedient for guarding that power from abuses during the exercise of it, from the inconveniences it is attended with, and confining it within its proper limits. For these purposes a plan is contrived, which will be developed at length in a subsequent part of the work. Let the judge be required where so ever he determines in the way of liberal interpretation, to declare openly his having done so: at the same time drawing up in terminis a general provision expressive of the attention he thinks the case requires, which let him certify to the legislator and let the alteration so made if not negative ; by the legislator within such a time have the force of law. By this means the legislator would see what the judge was doing: the judge would be a counsel to him, not a control, the sceptre would remain unshaken in his hands. The experiments of the one would be corrected by the experience of the other: the simplicity of the legislative plan would be preserved from violation: the corrective applied would be applied, not in the obscure, voluminous and unsteady form of customary jurisprudence, but in the concise and perspicuous form of statute law….
Legislation is a state of warfare: political mischief is the enemy: the legislator is the commander: the sopan santun and religious sanctions his allies: punishments and rewards (raised some of them out of his own resources, others borrowed from those allies) the forces he has under his command: punishments his regular standing force; rewards an occasional subsidiary force too weak to act alone: the mechanical branch of legislation, the branch we have been treating of in the present chapter, the art of tactics: direct legislation a formal attack made with the main body of his forces in the open field: indirect legislation a secret plan of connected and long-concerted operations to be executed in the way of stratagem or petite guerre. All these heads except this last have been discussed already. It remains that we should say something of this irregular system of warfare. . . .
But to love power is one thing: and to love the labour which alone can qualify a man to exercise it as he should do, is another.
Laws that are hasty have often been cited in proof of the necessity of interpretation: but methinks it might also have been well at the same time to have observed that they are indications equally strong of imbecility and short sightedness on the part of the legislator: that they bespeak the infancy of the science: and that when once it shall have been brought to a state of tolerable maturity the demand for interpretation will have been in great measure if not altogether taken away.
Now the mischief in cases of this sort being manifest, it was necessary to apply a remedy. Such a remedy if applied by the legislature itself would at any rate be attended with some of the inconveniences of an ex post facto law if extensive of the obligation, none if limitative of it. But perhaps the legislative power is vested in a body: and that body is not or cannot be assembled: or it is so constituted that it is next to impossible to consult it: or cases which call for an interpretation of this sort are so frequent and many of them so trifling that there would be no end of consultations: for these reasons or for others not so good, properly or improperly this power has always been assumed and exercised by the judge. As fast as it has been exercised the cases in which it has been exercised have been noted down: general rules have been formed from the observation of those cases: and thus the customary law breaking through its original barriers has spread itself like a plague over the surface of the statute law, infecting it with its own characteristic obscurity, uncertainty and confusion.
To a mischief thus flagrant it is impossible to turn our thoughts without looking eagerly after a remedy. Let us not despair…. Let the legislator have carried his views over the whole field of human action, let him have given a certain degree of perfection to his method, of regularity and consistency to his laws, he may bring them to such a degree of perfection, that they shall need no more interpretation than he himself is equal to supply.
In a system thus constructed upon this plan, a man need but open the book in order to inform himself what the aspect borne by the law bears to every imaginable
Kata yang hendak menjadi tanda yang faktual entitas. Untuk mengetahui apa yang dimaksudkan oleh jurisprudensi, kita harus tahu, contohnya, apa yang dimaksudkan oleh sebuah buku yurisprudensi. buku yurisprudensi namun dapat memiliki salah satu dari dua benda:
- Untuk memastikan apa aturan yakni
- Untuk memastikan apa yang harus dilaksanakan. Pada masalah mantan dapat ditata suatu buku yg menjelaskan Yurisprudensi; di kemudian, suatu buku yang berhubung dgn pekerjaan sensor Yurisprudensi: atau, dengan kata lain, sebuah buku ihwal seni undang-undang ….
- Sekarang hukum, atau hukum, diambil selamanya, adalah abstrak dan perumpamaan panggilan aktif, yang kalau hal itu berarti apapun, dapat memiliki arti tidak lebih dan tidak kurang dari jumlah total dari jumlah masing-masing undang-undang yang diambil bareng .
- Sekarang tak terbatas dari berbagai negara ada di atas bumi, tidak ada dua yang persis mereka oke aturan: tentunya tidak di seluruh: bahkan mustahil dalam satu artikel dan! Et mereka setuju ke hari, mereka akan tidak baiklah besok … Namun di antara kata-kata yang appropriated terhadap subjek hukum, ada beberapa yang dalam semua bahasa yang elok koresponden persis satu sama lain: yang datang ke nyaris sama seperti mereka yang sama. Cap ini, contohnya, ialah mereka yang sesuai dengan kata-kata kuasa, hak, keharusan, keleluasaan, dan sebagainya.
Berikut ini, bahwa jika ada buku yang mampu mengatakan dengan benar, ditata buku yurisprudensi universal, mereka harus mencari dalam batas sungguh sempit. Dalam sebagian besar bahasa Eropa terdapat dua kata yang berbeda untuk membedakan absurd dan ia beton indera dari kata hukum yang ada kata-kata atau lebar remuk bahkan tidak memiliki berhubung dgn asal kata. Latin, contohnya, ada undang-undang untuk onerete rasa, jus untuk absurd: di Italia, legge dan diritto: di Perancis, dan loi Droit: di Spanyol, dan ley derecho: di Jerman, dan gesetz Recht. Bahasa Inggris ketika ini ialah kekurangan dari keuntungan ini.
Dalam Anglo-Saxon, selain lage, dan beberapa lainnya ords, untuk beton rasa, ada kata light, answering ke Jerman Recht, untuk abstrak mampu dilihat di kompleks folc kanan, dan dalam masalah. Tetapi kata kanan memiliki panjang kemudian ini, Inggris modern ini tidak lagi possses laba.
Seperti berada di antara yg menerangkan, dilarang tidak ada yang berwibawa. Menjadi rentan dari suatu aplikasi universal, semua yang dari suatu buku yg menjelaskan jenis mampu harus memperlakukan yang merupakan impor dari kata: dapat, bergotong-royong, universal, dia harus menahan diri untuk terminologi.
Hal ini berhubung dgn pekerjaan sensor di baris yang ada adalah ruang untuk disquisitions yang berlaku untuk keadaan semua bangsa sama dan dalam hal ini sesuai apa substansi undang-undang tersebut ialah sebagai rentan aplikasi yang universal, mirip apa kata regards . Bahwa hukum dari semua bangsa, atau bahkan dari setiap dua negara, mesti setuju dalam semua poin, akan seperti yg tdk dpt diseleksi sebagai adalah mustahil: beberapa poin yang Namun, tampaknya akan ada, terhadap undang-undang yang semua bangsa beradab mungkin, tanpa kendala, sama.