THE LIMITS OF JURISPRUDENCE DEFINED

THE LIMITS OF JURISPRUDENCE DEFINED

CHAPTER 1: We come now to speak of what is called civil law or jurisprudence on the one hand and penal law or jurisprudence on the other . . . They are inextricably interwoven. . . . in every law must be comprised two things:

a specification of the cases in which the punishment is to attach;

a specification of the punishment itself . . . .

That book belongs to the subject of penal jurisprudence which has most in it about punishment: that book belongs to the civil branch which has least in it about punishment itself, and most about the cases in which punishment is or is not to be ap­plied.

The book indeed may be a large book; it may indeed be of any size, and yet be a book of law, and yet not say a syllable in any part. of it about punishment still however it has a tacit reference to punishment: else the law which it delivers or professes to deliver would be nugatory, and the book useless.

A great book for example is written about Wills . . . It says a great deal about the na­ture of a Will: about the sort of persons who are empowered to make them: about the cases in which these persons may and those in which they may not exercise that power: about the different sorts of Wills when made: about the number of witnesses which must attest them: about the places where they must be registered: about the construc­tion that is to be given them, and so on for evermore: all this while without intimating a syllable about punishment.

Has punish­ment however no concern in this? If that were the case the whole affair would amount to nothing. In fact all this is of no further use than as it serves to fix the application of punishment: distinguishing, the one person who would not be punished in case of his meddling with and using that thing in ques­tion, from the multitude of other persons (amounting in fact to no fewer than all the rest of mankind) who would.

You claim to be the sole proprietor of yonder house . . . You maintain that you are the person named ... by the will of your deceased friend: who possessed the house: who was of the num­ber of those persons who are allowed to make a will: who was so circumstanced as to have a right to dispose of this house by his will: who made such and such a will accord­ingly in your favor; took care to have it at­tested by so many witnesses, etc. All this is only to give other persons to understand that were they to offer to meddle with the house they would be punished, and that you alone are left free to deal with it as you please....

CHAPTER 2

Analysis and Exposition

Analysis

Power, right, prohibition, duty, obliga­tion, burthen, immunity, exemption, privi­lege, property, security, liberty-all these with a multitude of others that might be named are so many fictitious entities which the law upon one occasion or another is spoken of in common speech as creating or disposing of ... Would a man know what it is that the law really does in any case, and in what condition it leaves the parties that are concerned? He must know in such case the acts which it takes into contemplation, and the aspect which it bears to them. He must know who the persons, and what the things, if any, which are in question: what the acts are of those persons, whether for their termination they look to other persons or to things: and in what circumstances if in any the act is prohibited or permitted, commanded or left un commanded. Knowing this much, we shall have ideas to our words: not knowing it, we shall have none....

Exposition

Now there can be no such thing as an act which is not the act of some person or of some sentient thing: nor can there be any act of law which is not either a command or a prohibition, or the reverse of the one or the other of those operations: nor lastly, can there be any command or prohibition which has not for its object some sort of act . . . By this means alone can the import of such words as duty, obligation, power, right and other names of fictitious moral entities be laid open: by these means alone can a regu­lar analysis of the contents of a body of laws be exhibited ....

It follows that whatever number of these fictitious entities may be created or brought into play, it must all be done in the course of some or other of those opera­tions by which the several sorts of offences are created. They are a sort of vapours which during the course of the legislative process are as it were generated and sublimed ....

As yet there is no law in the land.... This is the first day of the political creation: the state is without form and void. As yet then you and I and everyone are at liberty. Un­derstand always, as against the law: for as against one another this may be far from being the case.... You and your neighbour, suppose, are at variance: he has bound you hand and foot, or has fastened you to a tree: in this case you are certainly not at liberty as against him ... Since the legislator then takes an active part, how is it that he must demean himself? He must either command or prohibit: for there is nothing else that he can do . . . Liberty then is of two or even more sorts, according to the number of quar­ters from whence coercion, which it is the absence of, may come: liberty as against the law, and liberty as against those who first in consideration of the effect of their conduct upon the happiness of society, and after­wards in consideration of the course taken against them by . the law, may be styled wrong-doers. These two sorts of liberty are directly opposed to one another: and in as far as it is in favour of an individual, that the law exercises its authority over another, the generation of the one sort is, as far as it extends, the destruction of the other. . . .

The law, after certain exceptions made, prohibits in one and in others all such acts as it thinks advisable to prevent . . . What then is the result? To me and the rest of the community, restraint: to you, personal se­curity and protection. . . .

Now property before it can be of­fended against must be created: and the creation of it is the work of law . . . Conceive any material thing at pleasure: a piece of land for instance. The law issues no mandate at all to me or anyone with respect to that piece of land . . .What is the result? on all sides liberty as before. Moreover, considering that it might have commanded us all, you and me and others, not to exercise any act upon that land, and that such are the com­mands which to you to me and to everybody but one or a few it actually does give with respect to by far the greatest part of the land under its dominion, it is on that account frequently spoken of as if it had done some­thing in favour of those whom it has left thus at liberty: it is spoken of as having given them or rather left them a power over the land: it may also be said to have left them a property in the land. As this same sort of property is given not to you only, but to me and everybody else, no restraint with respect to the use of the land being laid on anybody, that which is given to you may on that account be styled inexclusive: an inex­clusive power over the land: an inexclusive property in the land. The land in this case is said to be the common property of us all: and each of us is said to have a property in it in common with the rest: and each man may even be said to have the property of it, so as this phrase be added "in common with the rest.". . . .

The law forbids everybody but you from exercisina any act upon the land. In this case it gives you alone a power over the land: it makes the land your property, your estate: it makes you sole owner, the proprie­tor of the land: it gives you not only an estate, an interest, in the land in severalty, but the property of the land, the estate of the land, both also in severalty.

As to this case it may be proper to ob. serve that in reality it is never completely verified. Under any system of law some oc­casions there are in which for the carrying on of government it is necessary that any man's ownership over any object of prop­erty would be liable to be suspended: as if for instance there were need to make use of the land in question for the encampment of an army. But when these periods are not long, and the commencement of them is cas­ual only and contingent, as in the case just stated, such slight exceptions are not in com­mon speech considered as derogating from the general rule....

The error against which these observa­tions are leveled is at least a general one among jurists, not to say a universal one. It is by no means an innocent one: from specu­lation it creeps into practice, producing ob­stinacy, ill humor, blindness, turbulence, and in the end disobedience to law. The right 1 have to my property, to my posses­sions is derived from physical, from natural acts: being derived from natural acts it is a natural right: being derived from nature it is not derived from law: its origin, its exist­ence was antecedent to law: for nature existed before law. Being antecedent to law, it was not created by law: not being created by law it cannot be taken away by law. Law was instituted to protect a man in the en­joyment of such his rights, not to deprive him of them, or of any part of them: these rights like all other natural rights are sacred and indefeasible. So far as it protects him accordingly, it is conform able to natural justice: so far as it deprives him of such his rights or any part of them it is repugnant to natural justice. Laws conformable to nat­ural justice are valid, and ought to be ob­served: laws repugnant to natural justice are ipso facto void, and instead of being ob­served ought to be resisted. Those who make them are tyrants, those who attempt to en­force them are the tools of tyrants: both the one and the other ought to be resisted, made war upon, and destroyed. . . .

Of rights thus self-evident the existence requires not to be proved but only to be de­clared: to prove it is impossible because the demonstration of that which is self-evident is impossible: to doubt of it argues of want of sense: to express a doubt of it argues not only a want of sense but a want of honesty.

All this talk about nature, natural rights, natural justice and injustice proves two things and two things only, the heat of the passions, and the darkness of the under­standing....

Property the creature of law?-Oh, no­ Why not? because if it were the law that gave everything, the law might take away every thing....

The case is that in a society in any de­gree civilized, all the rights a man can have, all the expectation he can entertain of en­joying any thing that is said to be his is de­rived solely from the law. Even the expecta­tion which a thief may entertain of enjoying the thing which he has stolen forms no ex­ception: for till it is known to have been stolen the law will as fully protect him in the enjoyment of it, as much as if he had bought or made it.

But what it may be said was the ground the law went upon at first in choosing whom it should take for the object of its protec­tion, and for what things? a time there must always have been in which men were enter­taining a natural expectation of enjoying certain things, an expectation derived from sources anterior to law. Certainly occasions there must have originally been, and will have been still in which one man must have found a greater facility in securing to him­self the enjoyment of certain things than any other man: but how narrow and how fleeting the security Without the aid of law a savage, it is true, who has hid in a cave some fruits he has gathered or some animals which he has killed may keep them to him­self so long as the cave remains undiscov­ered, without the aid of law ... An expec­tation in any degree strong and permanent can only be derived from law. Till law existed, property could scarcely be said to exist.

CHAPTER 3.

Of a Lam and its Parts

A Law may be defined as an assemblage of signs declarative of a volition conceived or adopted by the sovereign in a state, con­cerning the conduct to be observed in a cer­tain case by a certain person or class of per­sons, who in the case in question are or are supposed to be subject to his power: such volition trusting for its accomplishment to the expectation of certain events which it is intended such declaration should upon oc­casion be a means of bringing to pass, and the prospect of which it is intended should act as a motive upon those whose conduct is in question . . . .

The latitude here given to the import of the word law is it must be confessed rather greater than what seems to be given to it in common: the definition being such as is ap­plicable to various objects which are not commonly characterized by that name. Tak­ing this definition for the standard it mat­ters not whether the expression of will in question, so as it have but the authority of the sovereign to back it, were his by imme­diate conception or only by adoption: whether it be of the most public or of the most private or even domestic nature: whether the sovereign from whom it derives its force be an individual or a body: whether it be issued . . . on account of some positive act or event which is understood to warrant it (as is the case with an order of the judicial kind made in the course of a cause); or without the assignment of any such special ground: or whether it be susceptible of an indefinite duration or whether it be sua na­tura temporary and undurable: as is most commonly the case with such expressions of will the uttering of which is looked upon as a measure of administration: whether it be a command or a countermand: whether it be expressed in the way of statute, or of cus­tomary law. Under the term law then if this definition be admitted of, we must include a judicial order, a military or any other kind of executive order, or even the most trivial and momentary order of the domestic kind, so it be pot illegal: that is, so as the issuing of it be not forbidden by some other law....

CHAPTER 4

Source of a Law

The will of which it is the expression must, as the definition intimates, be the will of the sovereign in a state. Now by a sov­ereign I mean any person or assemblage of persons to whose will a whole political com­munity are (no matter on what account) supposed to be in a disposition to pay obedi­ence: and that in preference to the will of any other person. Suppose the will in ques­tion not to be the will of a sovereign, that is of some sovereign or other; in such case, if it come backed with motives of a coercive nature, it is not a law, but an illegal man­date: and the act of issuing it is an of­fence. . . .

Now a given will or mandate may be the will or mandate of a given person in either of two ways: in the way of conception . . . (that is of original conception) or 2. in the way of adoption. A will or mandate may be said to belong to a sovereign in the way of conception when it was he himself ... who first issued it, in the words or other signs in which it stands expressed: it may be said to belong to him by adoption when the person from whom it immediately comes is not the sovereign himself ... but some other person: insomuch that all the concern which he to whom it belongs by adoption has in the mat­ter is the being known to entertain a will that in case such or such another person should have expressed . . . a will concerning the act or sort of act in question, such will should be observed and looked upon as his....

The mandates of the master, the fa­ther, the husband, the guardian, are all of them the mandates of the sovereign: if not, then neither are those of the general nor of the judge. Not a cook is bid to dress a din­ner, a nurse to feed a child, an usher to whip a school boy, an executioner to hang a thief, an officer to drive the enemy from a post, but it is by his orders. If anyone should find a difficulty in conceiving this, he has only to suppose the several mandates in question to meet with resistance: in one case as well as in another the business of enforcing them must rest ultimately with the sovereign. To deny it is as much as to say that it is God Almighty indeed that keeps up the race of elephants, but it is somebody else that keeps up the race of mites. Nor is there anything of fiction in all this: if there were, this is the last place in which it should he found.

Fiction, the bane of science, which is fre­quently wickedness and which is at best but nonsense, can never be requisite for explana­tion. . . .

It is in this very way that conveyances and covenants acquire all the validity they can possess, all the connection they have with the System of the laws: adopted by the sov­ereign, they are converted into mandates. If you give your coat to a man, and the gift is valid, and nobody else has a right to meddle with your coat, it is because a mandate sub­sists on the part of the sovereign, command­ing all persons whatever to refrain from meddling with it, he to whom you gave it alone excepted, upon the event of your de­claring such to be your pleasure. If a man engages or covenants to mend your coat for you, and such an engagement is valid, it is because on the part of the sovereign a man­date hath been issued, commanding any per­son upon the event of his entering into any engagement, (exceptions excepted) and thereby that particular person in conse­quence of his having entered into that par­ticular engagement, (it not being within the exceptions) to perform it: in other words to render you that particular service which is rendered to you by performance of the act which he has engaged for....

CHAPTER 5

Ends which a Law May Have in View

As to the general and ultimate end, this upon the principle of utility can be no other than the greatest good of the whole community. But the good of the community is the sum of the several particular goods (if the term may be employed) of the several in­dividuals of which it is composed: so that to augment the good of any one such individ­ual is pro tanto to augment the good of the whole community. A law therefore of which the immediate end is no other than the good or benefit of the person whose law it is does not on that account cease to be such a law as is capable of being warranted by the princi­ple of utility: much less does it cease to be entitled to the appellation of a law. Now by end is here meant not the eventual end, which is a matter of chance, but the intend­ed end, which is a matter of design....

It is to be remembered that law may be­long to the sovereign either in the way of conception or in the way of adoption: in the latter case there are necessarily two persons whose law in these two different senses it may be said to be. These two persons it may happen may in regard to the parts they have necessarily taken in the establishment of the law, have been actuated by two different mo­tives: they may have had in view two different ends.

As to the sovereign, the end or external motive he can have had in view in adopting the law, can upon the principle of utility, have been no other than the greatest good of the community: which end we suppose his measures to be directed to of course: since it is only in as far as that is the case that these enquiries are calculated or designed to be of any use to him. But with regard to the party to whom the law appertains in the way of conception and from whom it immediately ensues, the case is different. In many in­stances it may happen, and that properly enough, that the end which he has in view is no other than his own particular benefit or satisfaction: . . . in this case are all the mandates for instance of the master acting as such, as also those of the parent and of the husband in as far as the parent and the hus­band are allowed to act in the capacity of a master. . . .

But the more conspicuous case and the more common with such mandates as in con­sideration of their generality and their per­mancy are usually distinguished by the name of laws is that in which the proper end of the sovereign who adopts, and that of the subordinate magistrate who issues the man­date, coincide: being each of them not the particular good of the author of the mandate but the general good of the community at large. . . .

Where in then consists the good of the community? A question this which is to be answered not by vague declamation, not by point and metaphor, but by minute analysis and sober estimation ....

Those who cry out against pleasure,. as such, know not what it is they say. They swerve manifestly from the principle of util­ity .

For matter of censure or approbation I appeal solely to this principle. The prin­ciple such as it is, is not of my own inven­tion. The merit of discovering it is none of mine. The legitimate consequences of it, should any of them prove obnoxious are not chargeable upon me. I had it from Epicurus, from Carneades, from Horace, from Hel­vetius, from Beccaria. All that remains for me is only to apply it to particular cases as they come under review.

The learned Grotius ... bethinks himself of the line of Horace, in which the heathen poet, adopting . . . the doctrine of the Greek philosopher Carneades, expressly places the whole fabric of moral science on the founda­tion of this principle. "Utility" says that philosopher in the figurative language given him by his poetical commentator, "is the mother of justice and Equity." This geneal­ogy Grotius positively objects to: whereupon he enters into an investigation which is not altogether of the clearest, but the result of which is that utility, though not the parent of natural Law, is however a distant relation to it, being first cousin to its Great-Grand­mother.

After this he assures us that although no utility were to be looked for from the ob­servance of the Law, it would be the part of a wise man, not of a fool to be led by it, as being prompted thereto by nature....

Our own Lord Coke in his Commentary on Littleton in the course of the Chapter on Fee Simple bethinks himself of giving a cat­alogue of the several principles or "foun­tains" from whence his Author (in whose works are the very sum and substance of the Law) may be observed to draw his argu­ments. There are twenty of them in all. In the tenth place after a variety of arguments of very different complexion, comes in the argumentum ab inconvenienti; and in the fifteenth place with a variety of arguments of a nature still more disparate, between them enters in the guise of a different sort of argument, the argument ab utili et in­utili.. . .