Jurisprudence

by Sir John W. Salmond

SUMMARY.

Sources of law	Formal—source of the authority of the law.
	Material—source of the contents of the law.
Material sources	Legal—immediate and legally recognised.
	Historical—remote and not legally recognised.
Legal sources	1. Legislation—enacted law.
	2. Custom—customary law.
	3. Precedent—case-law.
	4. Professional opinion—juristic law.
	5. Agreement—conventional law.
Grounds of the recognition of these sources.
Operation of sources	Constitutive—adding new law to old.
	Abrogative—substituting new law for old.
Extent of abrogative power possessed by the sources.
Relation between sources of law and sources of rights.
Legal principles	Ultimate—without legal sources.
	Derivative—drawn from legal sources.

CHAPTER VII.
LEGISLATION.

§ 50. The Nature of Legislation.

Legislation is that source of law which consists in the declaration of legal rules by a competent authority. It is such an enunciation or promulgation of principles as confers upon them the force of law. It is such a declaration of principles as constitutes a legal ground for their recognition as law for the future by the tribunals of the state.

Although this is the strict and most usual application of the term legislation, there are two other occasional uses of it which require to be distinguished. It is sometimes used in a wide sense to include all methods of law-making. To legislate is to make new law in any fashion. Any act done with the intent and the effect of adding to or altering the law is, in this wider sense, an act of legislative authority. As so used, legislation includes all the sources of law, and not merely one of them. “There can be no law,” says Austin,[^[111]] “without a legislative act.” Thus when judges establish a new principle by means of a judicial decision, they may be said to exercise legislative, and not merely judicial power. Yet this is clearly not legislation in the strict sense already defined. The law-creative efficacy of precedent is to be found not in the mere declaration of new principles but in the actual application of them. Judges have in certain cases true legislative power—as where they issue rules of court-but in ordinary cases the judicial declaration of the law, unaccompanied by the judicial application of it, has no legal authority whatever. So the act of the parties to a contract, in laying down rules of special law for themselves to the exclusion of the common law, may be regarded as an exercise of legislative power. But though they have made law, they have made it by way of mutual agreement for themselves, not by way of authoritative declaration for other persons.

The writers who make use of the term in this wide sense divide legislation into two kinds, which they distinguish as direct and indirect. The former is legislation in the narrow sense—the making of law by means of the declaration of it. Indirect legislation, on the other hand, includes all other modes in which the law is made.[^[112]]

In a third sense legislation includes every expression of the will of the legislature, whether directed to the making of law or not. In this use, every act of Parliament is an instance of legislation, irrespective altogether of its purpose and effect. The judicature, as we have seen, does many things which do not fall within the administration of justice in its strict sense; yet in a wider use the term is extended to include all the activities of the courts. So here, the legislature does not confine its action to the making of law, yet all its functions are included within the term legislation. An act of Parliament may do no more than ratify a treaty with a foreign state, or alter the calendar, or establish a uniform time throughout the realm, or make some change in the style and title of the reigning sovereign, or alter the coinage, or appropriate public money, or declare war or make peace, or grant a divorce, or annex or abandon territory. All this is legislation in a wide sense, but it is not that declaration of legal principles with which, as one of the sources of law, we are here alone concerned.

Law that has its source in legislation may be most accurately termed enacted law, all other forms being distinguished as unenacted. The more familiar term, however, is statute law as opposed to the common law; but this, though sufficiently correct for most purposes, is defective, inasmuch as the word statute does not extend to all modes of legislation, but is limited to acts of Parliament. Blackstone and other writers use the expressions written and unwritten law to indicate the distinction in question. Much law, however, is reduced to writing, even in its inception, besides that which originates in legislation. The terms are derived from the Romans, who meant by jus non scriptum customary law, all other, whether enacted or unenacted, being jus scriptum. We shall see later, that according to the older theory, as we find it in Blackstone and his predecessors, all English law proceeds either from legislation or from custom. The common law was customary, and therefore, adopting the Roman usage, unwritten law. All the residue was enacted, and therefore written law.[^[113]]

§ 51. Supreme and Subordinate Legislation.

Legislation is either supreme or subordinate. The former is that which proceeds from the supreme or sovereign power in the state, and which is therefore incapable of being repealed, annulled, or controlled by any other legislative authority. Subordinate legislation is that which proceeds from any authority other than the sovereign power, and is therefore dependent for its continued existence and validity on some superior or supreme authority. The legislation of the Imperial Parliament is supreme, for “what the parliament doth, no authority upon earth can undo.”[^[114]] All other forms of legislative activity recognised by the law of England are subordinate. They may be regarded as having their origin in a delegation of the power of Parliament to inferior authorities, which in the exercise of their delegated functions remain subject to the control of the sovereign legislature.

The chief forms of subordinate legislation are five in number.

(1) Colonial.—The powers of self-government entrusted to the colonies and other dependencies of the Crown are subject to the control of the Imperial legislature. The Parliament at Westminster may repeal, alter, or supersede any colonial enactment, and such enactments constitute, accordingly, the first and most important species of subordinate legislation.

(2) Executive.—The essential function of the executive is to conduct the administrative departments of the state, but it combines with this certain subordinate legislative powers which have been expressly delegated to it by Parliament, or pertain to it by the common law. A statute, for example, occasionally entrusts to some department of the executive government the duty of supplementing the statutory provisions by the issue of more detailed regulations bearing on the same matter. So it is part of the prerogative of the Crown at common law to make laws for the government of territories acquired by conquest, and not yet possessed of representative local legislatures.

(3) Judicial.—In the same way, certain delegated legislative powers are possessed by the judicature. The superior courts have the power of making rules for the regulation of their own procedure. This is judicial legislation in the true sense of the term, differing in this respect from the so-called legislative action of the courts in creating new law by way of precedent.

(4) Municipal.—Municipal authorities are entrusted by the law with limited and subordinate powers of establishing special law for the districts under their control. The enactments so authorised are termed by-laws, and this form of legislation may be distinguished as municipal.

(5) Autonomous.—All the kinds of legislation which we have hitherto considered proceed from the state itself, either in its supreme or in one or other of its many subordinate departments. But this is not necessarily the case, for legislation is not a function that is essentially limited to the state. The declaration of new principles amounts to legislation not because it is the voice of the state, but because it is accepted by the state as a sufficient legal ground for giving effect to those new principles in its courts of justice. The will of the state is, indeed, as we have already seen, the one and only formal source of law; but it does not follow from this that the word of the state is the sole form of that material source of the law which is called legislation. In the allowance of new law the state may hearken to other voices than its own. In general, indeed, the power of legislation is far too important to be committed to any person or body of persons save the incorporate community itself. The great bulk of enacted law is promulgated by the state in its own person. But in exceptional cases it has been found possible and expedient to entrust this power to private hands. The law gives to certain groups of private individuals limited legislative authority touching matters which concern themselves. A railway company, for example, is able to make by-laws for the regulation of its undertaking. A university may make statutes binding upon its members. A registered company may alter those articles of association by which its constitution and management are determined. Legislation thus effected by private persons, and the law so created, may be distinguished as autonomic.

There is a close resemblance between autonomic law and conventional law, but there is also a real distinction between them. The creation of each is a function entrusted by the state to private persons. But conventional law is the product of agreement, and therefore is law for none except those who have consented to its creation. Autonomic law, on the contrary, is the product of a true form of legislation, and is imposed by superior authority in invitos. The act of a general meeting of shareholders in altering the articles of association is an act of autonomous legislation, because the majority has the power of imposing its will in this respect upon a dissentient minority. All the shareholders may in fact agree, but the law-creating efficacy of their resolution is independent of any such accidental unanimity. We may say, if we please, that with respect to consenting shareholders the resolution is an agreement, while with respect to dissentients it is an act of legislative authority. The original articles of association, on the other hand, as they stand when the company is first formed, constitute a body of conventional, not autonomic law. They are law for all shareholders by virtue of their own agreement to become members of the company, and are not the outcome of any subsequent exercise of legislative authority vested in the majority.[^[115]]

§ 52. Relation of Legislation to other Sources.

So great is the superiority of legislation over all other methods of legal evolution, that the tendency of advancing civilisation is to acknowledge its exclusive claim, and to discard the other instruments as relics of the infancy of law. The expressed will of the state tends to obtain recognition not only as the sole formal source of law, but as its exclusive material source also. Statute law has already become the type or standard, from which the other forms are more or less abnormal variations. Nothing is more natural than this from our modern point of view, nothing less natural from that of primitive jurisprudence. Early law is conceived as jus (the principles of justice), rather than as lex (the will of the state). The function of the state in its earlier conception is to enforce the law, not to make it. The rules so to be enforced are those rules of right which are found realised in the immemorial customs of the nation, or which are sanctioned by religious faith and practice, or which have been divinely revealed to men. It is well known that the earliest codes were the work, not of mortal men, but of the gods.[^[116]] That the material contents of the law depend upon the express or tacit will of the state, that principles sanctioned by religion or immemorial usage are laws only so long as the prince chooses to retain them unaltered, that it is within the powders and functions of political rulers to change and subvert the laws at their own good pleasure, are beliefs which mark considerable progress along the road of political and legal development. Until such progress has been made, and until the petrifying influence of the primitive alliance of law with religion and immutable custom has been to some extent dissolved, the part played by human legislation in the development of the legal system is necessarily small, and may be even non-existent. As it is the most powerful, so it is the latest of the instruments of legal growth.

In considering the advantages of legislation, it will be convenient to contrast it specially with its most formidable rival, namely precedent. So considered, the first virtue of legislation lies in its abrogative power. It is not merely a source of new law, but is equally effective in abolishing that which already exists. But precedent possesses merely constitutive efficacy; it is capable of producing very good law—better in some respects than that which we obtain by way of legislation—but its defect is that, except in a very imperfect and indirect manner, its operation is irreversible. What it does, it does once for all. It cannot go back upon its footsteps, and do well what it has once done ill. Legislation, therefore, is the indispensable instrument, not indeed of legal growth, but of legal reform. As a destructive and reformative agent it has no equivalent, and without it all law is as that of the Medes and Persians.

The second respect in which legislation is superior to precedent is that it allows an advantageous division of labour, which here, as elsewhere, results in increased efficiency. The legislature becomes differentiated from the judicature, the duty of the former being to make law, while that of the latter is to interpret and apply it. Speaking generally, a legal system will be best administered, when those who administer it have this as their sole function. Precedent, on the contrary, unites in the same hands the business of making the law and that of enforcing it.

It is true, however, that legislation does not necessarily involve any such division of functions. It is not of the essence of this form of legal development that it should proceed from a distinct department of the state, whose business it is to give laws to the judicature. It is perfectly possible for the law to develop by a process of true legislation, in the absence of any legislative organ other than the courts of justice themselves. We have already noticed the existence of this judicial legislation, in considering the various forms of subordinate legislative power. The most celebrated instance of it is the case of the Roman praetor. In addition to his purely judicial functions, he possessed the jus edicendi, that is to say, legislative powers in respect of the matters pertaining to his office. It was customary for each praetor at the commencement of his term of office to publish an edictum containing a declaration of the principles which he intended to observe in the exercise of his judicial functions. Each such edict was naturally identical in its main outlines with that which preceded it, the alterations made in the old law by each successive praetor being for the most part accepted by his successors. By this exercise of legislative power on the part of judicial officers, a very considerable body of new law was in course of time established, distinguished as the jus praetorium from the older jus civile. Powers of judicial legislation, similar in kind, though less in extent, are at the present day very generally conferred upon the higher courts of justice. Yet though not theoretically necessary, it is certainly expedient, that at least in its higher forms the function of law-making should be vested in a department of the state superior to and independent of the judicature.

A third advantage of statute law is that the formal declaration of it is a condition precedent to its application in courts of justice. Case-law, on the contrary, is created and declared in the very act of applying and enforcing it. Legislation satisfies the requirement of natural justice that laws shall be known before they are enforced; but case-law operates retrospectively, being created pro re nata, and applied to facts which are prior in date to the law itself.[^[117]]

Fourthly, legislation can by way of anticipation make rules for cases that have not yet arisen, whereas precedent must needs wait until the actual concrete instance comes before the courts for decision. Precedent is dependent on, legislation independent of, the accidental course of litigation. So far as precedent is concerned, a point of law must remain unsettled, until by chance the very case arises. Legislation can fill up a vacancy, or settle a doubt in the legal system, as soon as the existence of this defect is called to the attention of the legislature. Case-law, therefore, is essentially incomplete, uncertain, and unsystematic; while if statute law shows the same defects, it is only through the lethargy or incapacity of the legislature. As a set-off against this demerit of precedent, it is to be observed that a rule formulated by the judicature in view of the actual case to which it is to be applied is not unlikely to be of better workmanship, and more carefully adapted to the ends to be served by it, than one laid down a priori by the legislature.

Finally, statute law is greatly superior to case-law in point of form. The product of legislation assumes the form of abstract propositions, but that of precedent is merged in the concrete details of the actual cases to which it owes its origin. Statute law, therefore is brief, clear, easily accessible and knowable, while case-law is buried from sight and knowledge in the huge and daily growing mass of the records of bygone litigation. Case-law is gold in the mine—a few grains of the precious metal to the ton of useless matter—while statute law is coin of the realm ready for immediate use.

This very perfection of form, however, brings with it a defect of substance from which case-law is free. Statute law is embodied in an authoritative form of written words, and this literary expression is an essential part of the law itself. It is the duty of the courts to apply the letter of the law. They are concerned with the spirit and reason of it only so far as the spirit and reason have succeeded in finding expression through the letter. Case-law, on the contrary, has no letter. It has no authoritative verbal expression, and there is no barrier between the courts of justice and the very spirit and purpose of the law which they are called on to administer. In interpreting and applying statute law, the courts are concerned with words and their true meaning; in interpreting and applying case-law, they are dealing with ideas and principles and their just and reasonable contents and operation. Statute law is rigid, straitly bound within the limits of authoritative formulae; case-law, with all its imperfections, has at least this merit, that it remains in living contact with the reason and justice of the matter, and draws from this source a flexibility and a power of growth and adaptation which are too much wanting in the litera scripta of enacted law.

§ 53. Codification.

The advantages of enacted law so greatly outweigh its defects that there can be no doubt as to the ultimate issue of its rivalry with the other forms of legal development and expression. The whole tendency in modern times is towards the process which, since the days of Bentham, has been known as codification, that is to say, the reduction of the whole corpus juris, so far as practicable, to the form of enacted law. In this respect England lags far behind the Continent. Since the middle of the eighteenth century the process has been going on in European countries, and is now all but complete. Nearly everywhere the old medley of civil, canon, customary, and enacted law has given place to codes constructed with more or less skill and success. Even in England, and the other countries to which English law has spread, tentative steps are being taken on the same road. Certain isolated and well-developed portions of the common law, such as the law of bills of exchange, of partnership, and of sale, have been selected for transformation into statutory form. The process is one of exceeding difficulty, owing to the complexity and elaboration of English legal doctrine. Many portions of the law are not yet ripe for it, and premature codification is worse than none at all. But the final result is not doubtful.

Codification must not be understood to involve the total abolition of precedent as a source of law. Case-law will continue to grow, even when the codes are complete. The old theory, now gradually disappearing, but still true in most departments of the law, is that the common law is the basis and groundwork of the legal system, legislation being nothing more than a special instrument for its occasional modification or development. Unenacted law is the principal, and enacted law is merely accessory. The activity of the legislature is called for only on special occasions to do that which lies beyond the constructive or remedial efficacy of the common law. Codification means not the total disappearance of case-law, but merely the reversal of this relation between it and statute law. It means that the substance and body of the law shall be enacted law, and that case-law shall be incidental and supplementary only. In the most carefully prepared of codes subtle ambiguities will come to light, real or apparent inconsistencies will become manifest, and omissions will reveal themselves. No legislative skill can effectually anticipate the complexity and variety of the facts. The function of precedent will be to supplement, to interpret, to reconcile, and to develop the principles which the code contains. Out of the code itself, therefore, a body of case-law will grow, as a judicial commentary and supplement. It will be expedient from time to time that this supplementary and explanatory case-law be itself codified and incorporated into successive editions of the code. But so often as this is done, the process of interpretation will begin again with the like results.

§ 54. The Interpretation of Enacted Law.

We have seen that one of the characteristics of enacted law is its embodiment in authoritative formulae. The very words in which it is expressed—the litera scripta—constitute a part of the law itself. Legal authority is possessed by the letter, no less than by the spirit of the enactment. Other forms of law (with the exception of written conventional law, which in this respect stands by the side of statutory) have no fixed and authoritative expression. There is in them no letter of the law, to stand between the spirit of the law and its judicial application. Hence it is that in the case of enacted law a process of judicial interpretation or construction is necessary, which is not called for in respect of customary or case-law. By interpretation or construction is meant the process by which the courts seek to ascertain the meaning of the legislature through the medium of the authoritative forms in which it is expressed.

Interpretation is of two kinds, which Continental lawyers distinguish as grammatical and logical. The former is that which regards exclusively the verbal expression of the law. It does not look beyond the litera legis. Logical interpretation, on the other hand, is that which departs from the letter of the law, and seeks elsewhere for some other and more satisfactory evidence of the true intention of the legislature. It is essential to determine with accuracy the relations which subsist between these two methods. It is necessary to know in what circumstances grammatical interpretation is alone legitimate, and when on the contrary it is allowable to accept, instead, the divergent results that may be attainable by way of logical interpretation. In other words, we have to determine the relative claims of the letter and the spirit of enacted law.

The true principles on this matter seem to be the following. The duty of the judicature is to discover and to act upon the true intention of the legislature—the mens or sententia legis. The essence of the law lies in its spirit, not in its letter, for the letter is significant only as being the external manifestation of the intention that underlies it. Nevertheless in all ordinary cases the courts must be content to accept the litera legis as the exclusive and conclusive evidence of the sententia legis. They must in general take it absolutely for granted that the legislature has said what it meant, and meant what it has said. Ita scriptum es is the first principle of interpretation. Judges are not at liberty to add to or take from or modify the letter of the law, simply because they have reason to believe that the true sententia legis is not completely or correctly expressed by it. That is to say, in all ordinary cases grammatical interpretation is the sole form allowable.

To this general principle there are two exceptions. There are two cases in which the litera legis need not be taken as conclusive, and in which the sententia legis may be sought from other indications. The first of these cases is that in which the letter of the law is logically defective, that is to say, when it fails to express some single, definite, coherent, and complete idea.

The logical defects by which the litera legis may be affected are three in number. The first is ambiguity; for a statute, instead of meaning one thing, may mean two or more different things. In such case it is the right and duty of the courts to go behind the letter of the law, and to ascertain from other sources, as best they can, the true intention which has thus failed to attain perfect expression.

When a statutory provision is capable of two meanings, it is commonly, though not invariably, the case that one of these is more natural, obvious, and consonant with the ordinary use of language than the other. The interpretation of an ambiguous law is therefore of two kinds, according as it accepts the more natural and obvious meaning, or rejects it in favour of another which conforms better to the intention of the legislature, though worse to the familiar usages of speech. The former mode of interpretation is termed literal or strict, and the latter may be distinguished as equitable. The general principle is that interpretation must be literal, unless there is some adequate reason to the contrary. In the absence of sufficient indications that the legislature has used words in some less natural and obvious sense, their literal and ordinary signification will be attributed to them. The maintenance of a just balance between the competing claims of these two forms of interpretation is one of the most important elements in the administration of statute law. On each side there are dangers to be avoided. Undue laxity, on the one hand, sacrifices the certainty and uniformity of the law to the arbitrary discretion of the judges who administer it; while undue strictness, on the other hand, sacrifices the true intent of the legislature and the rational development of the law to the tyranny of words. Scire leges, said the Romans,[^[118]] non hoc est verba earum tenere, sed vim ac potestatem.[^[119]]

A second logical defect of statutory expression is inconsistency. A law, instead of having more meanings than one, may have none at all, the different parts of it being repugnant, so as to destroy each other’s significance. In this case it is the duty of the judicature to ascertain in some other way the true sententia legis, and to correct the letter of the law accordingly.

Lastly, the law may be logically defective by reason of its incompleteness. The text, though neither ambiguous nor inconsistent, may contain some lacuna which prevents it from expressing any logically complete idea. For example, where there are two alternative cases, the law may make provision for one of them, and remain silent as to the other. Such omissions the courts may lawfully supply by way of logical interpretation. It is to be noted, however, that the omission must be such as to make the statute logically incomplete. It is not enough that the legislature meant more than it said, and failed to express its whole mind. If what it has said is logically complete—giving expression to a single, intelligible, and complete idea—the courts have no lawful concern with anything else that the legislature may have meant but not said. Their duty is to apply the letter of the law, therefore they may alter or add to it so far as is necessary to make its application possible, but they must do nothing more.

It has been already said that there are two cases in which logical interpretation is entitled to supersede grammatical. The first of these, namely that of some logical defect in the litera legis, has been considered. The second is that in which the text leads to a result so unreasonable that it is self-evident that the legislature could not have meant what it has said. For example, there may be some obvious clerical error in the text, such as a reference to a section by the wrong number, or the omission of a negative in some passage in which it is clearly required.

In considering the logical defects of the litera legis, we have tacitly assumed that by going behind the defective text it is always possible to discover a logically perfect sententia legis. We have assumed that the whole duty of the courts is to ascertain the true and perfect intention which has received imperfect expression. This is not so, however. In a great number of cases the defects of the litera legis are simply the manifestation of corresponding defects in the sententia. If the legislature speaks ambiguously, it is often because there is no single and definite meaning to be expressed. If the words of the legislature are self-contradictory, it is possibly due to some repugnancy and confusion in the intention itself. If the text contains omissions which make it logically imperfect, the reason is more often that the case in question has not occurred to the mind of the legislature, than that there exists with respect to it a real intention which by inadvertence has not been expressed.

What, then, is the rule of interpretation in such cases? May the courts correct and supplement the defective sententia legis, as well as the defective litera legis? The answer is that they may and must. If the letter of the law is logically defective, it must be made logically perfect, and it makes no difference in this respect whether the defect does or does not correspond to one in the sententia legis itself. Where there is a genuine and perfect intention lying behind the defective text, the courts must ascertain and give effect to it; where there is none, they must ascertain and give effect to the intention which the legislature presumably would have had, if the ambiguity, inconsistency, or omission had been called to mind. This may be regarded as the dormant or latent intention of the legislature, and it is this which must be sought for as a substitute in the absence of any real and conscious intention.[^[120]]

In the case of the sententia, as formerly in that of the litera legis, it is to be noticed that the only defects which the courts may remedy are logical defects. That the intention of the legislature is ethically defective, is not a fact with which the judicature has any concern. The sententia legis might have been wiser, juster, or more expedient, had it been wider, or narrower, or other than it actually is. But the courts have no authority to detract from it, add to it, or alter it, on that account. It may be that had a certain case been brought to the notice of the legislature, the statute would have been extended to cover it; but so long as it is logically complete and workable without the inclusion of this case, it must stand as it is. If a statute makes a provision as to sheep, which in common sense ought to have been extended to goats also, this is the affair of the legislature, not of the courts. To correct the sententia legis on logical grounds is a true process of interpretation; it fulfils the ultimate or dormant, if not the immediate or conscious intention of the legislature. But to correct it on ethical grounds is to assume and exercise legislative power.