Completeness Of A Law, Makalah Bahasa Inggris

Now completeness is a word of refer­ence: It supposes a standard of reference: This standard then may be either what actu­ally was the will entertained by the legislative­ or relative to the matters in question, or what on a certain contingency it is sup­posed, would have been his will his actual will as it may be styled, or his hypothetical will. . . .

Were a legislator to take a book of any size whatever, containing any quantity of imperative matter whatsoever, and exhibit it as comprehending a complete collection of all the laws he thinks proper should be looked upon as being in force, as many imperative provisions as it contained would, with the help of such qualifications as were to be found, be all and every of them com­plete laws: I mean always in point of expres­sion: in this point the laws in a complete code, such as they are, cannot be otherwise than complete. For from what other sources can his will be collected, than from the signs and those the only ones which he has made choice of to express it? In searching after his will there may be occasion indeed to travel from one passage of this instrument to an­other: but out of this instrument so long as the words of it are intelligible, there can be no pretense for traveling. If indeed there should be any words in it which notwith­standing everything that can be done in the view of collecting the import of them from the instrument itself still continue ambigu­ous or unintelligible, in such case, as a means of finding out the sense of them it may in­deed be necessary to have recourse to some other instrument. But such explanatory in­strument can not be said to detract from the completeness of the principal one consid­ered as a book of law. If it could, then a com­mon dictionary might be considered as a book of law. The evidence derived from any such foreign source being only presumptive evidence can never be considered as out­weighing any direct intrinsic evidence that may be to be had from the body of the code itself. To recur to the old instance of a law against the exportation of corn. A doubt arises what sort of articles are to be under­stood under the name of corn: whether maize, for example is to be looked upon as included in the number. The opinions of persons conversant in the trade being doubt­ful or divided, a dictionary of commerce or a dictionary of botany is recurred to; and it there appears that maize is looked upon as a species of the commodity in question. The law being totally silent, the interpretation thus obtained may be considered as conclu­sive, without any disparagement to the com­pleteness of the law. This however can never be the case if the contrary sense could justly be collected from any passage contained in the law itself. In such case to decide accord­ing to the dictionary would be to deny the completeness of the code, and recognizing the author of the dictionary as being pro tanto the superior legislator.

Secondly in regard to the completeness of a law in point of connection. A single law, even of the narrowest pattern, may con­sist . of a great multitude of provisions: a greater multitude by far than from anything that has hitherto been observed would easily be suspected. These provisions in order to have the effect they are designed to have, it is necessary that the influence they are meant to have on one another should by some means or other be made appear. This there are two ways of doing: the one is by making them follow one another in the same instru­ment without interruption: this may be styled connection by juxtaposition: the other is by sending the reader from the place at which the chain of provisions is broken off, to the place where it is resumed again: this may be styled connection by reference. . . .

Thirdly with regard to the completeness of the law in point of design: that is with reference to what would, it is supposed, have been the will of the legislator had such or such a case been present to his view. Every law that is made may be said to have been made upon the consideration of some mis­chief: of a sort of mischief regarded as being apt to ensue from the sort of act which the legislator is thereby inclined to prohibit: which general idea of mischief must origi­nally have been suggested by the idea of some particular mischief which appeared to result from some particular act of the sort in question. In as far then as the general idea which (to judge from the act as described in the prohibition) he appears to have formed to himself of the mischief of the case deviates from that which from the view of that case it is thought he should and might have formed to himself, in so far the law may be looked upon as incomplete in point of design. If then the law be considered as deviating from the standard thus assigned, it must be considered as deviating from it in one or other of two ways: as falling short of it, or as stretching beyond it: in the for­mer case it may be said to be deficient or in­complete in point of amplitude: in the lat­ter, in point of discrimination….

whoso draweth blood in the streets shall be severely punished.” This is a law that may serve at the same time as an example of every fault in point of extent of which a law is susceptible . . . 1. Want of original ampli­tude: For drawing blood is but one out of a great variety of ways in which a mischief the same in substance may be produced: a bruise, a scald, a burn, and so forth may be as hurtful as a wound. 2. Want o.’ proper discrimination. For how many disorders are there with which a man is as liable to be seized in the streets as anywhere else for which instant bleeding is the only remedy? And what if a man has no other way of de­fending or otherwise saving his life or limbs, or a woman her chastity. 3. Want of residu­ary amplitude through improper discrimi­nation. For why must the act be confined to the streets in order to come within the cen­sure of the law? Is it less mischievous if committed in the market-place, or in a church? . . . .

If the will which a legislator manifests with relation to a given act fails of being what it ought to be, such failure . . . must arise from one or other of two causes: the state of his understanding, or the state of his affections. In the former case it must be ow­ing either to inadvertency, or to wrong judgment: the facts which may go to consti­tute or those which may serve to control the mischief may not have been, all of them, present to his apprehension: or being pres­ent, the judgment formed by him concerning their existence or their tendency may have been a wrong one.

Interpretation may be distinguished into strict and liberal. It may be styled strict where you attribute to the legislator the will which at the time of making the law, as you suppose, he really entertained. It may be styled liberal where the will you attribute to him is not that which you suppose he really entertained, but a will which as you suppose he failed of entertaining only through inadvertency: insomuch that had the individual case which calls for interpre­tation been present to his view, he would have entertained that will, which by the in­terpretation put upon his law you act up to, as if it had been his in reality.

I say through inadvertency: for to attrib­ute to the legislator a will which you sup­pose him to have failed of entertaining through any other cause than inadvertency, that is from wrong judgment or perverse affections, and to act accordingly is not to interpret the law, but to act against it: which in a judge or other officer invested with powers of a public nature is as much as to over-rule it.

It appears then to interpret the law ac­cording to the liberal mode of interpretation is pro tanto to apply to the imperative provi­sion either an extensive or a qualificative clause.. . . The only circumstance that can serve to distinguish the alteration itself, when made in this way, from alteration at large is, that the alteration goes no farther from what it appears was the will to what, it is supposed, would have been his will had the case in question been present to his view: from his actual to his hypothetical will….