2. Law is a general expression of will.
The characteristic of law is generality. It is addressed to substances or persons in classes. Special legislation is contrary to the true theory of law.
When the Sultan of Zanzibar orders his barber to be beheaded because the latter has cut his master, this order is not properly a law. To be a law it must read: “Every barber who cuts his majesty shall thereupon be decapitated.” Einmal ist keinmal = “Once is no custom.” Dr. Schurman suggests that the word meal (Mahl) means originally time (mal in einmal). The measurement of time among ourselves is astronomical; among our earliest ancestors it was gastronomical, and the reduplication mealtime = the ding-dong of the dinner bell. The Shah of Persia once asked the Prince of Wales to have a man put to death in order that he might see the English method of execution. When the Prince told him that this was beyond his power, the Shah wished to know what was the use of being a king if he could not kill people at his pleasure. Peter the Great suggested a way out of the difficulty. He desired to see keelhauling. When informed that there was no sailor liable to that penalty, he replied: “That does not matter,—take one of my suite.” Amos, Science of Law, 33, 34—“Law eminently deals in general rules.” It knows not persons or personality. It must apply to more than one case. “The characteristic of law is generality, as that of morality is individual application.” Special legislation is the bane of good government; it does not properly fall within the province of the law-making power; it savors of the caprice of despotism, which gives commands to each subject at will. Hence our more advanced political constitutions check lobby influence and bribery, by prohibiting special legislation in all cases where general laws already exist.
3. Law implies power to enforce.
It is essential to the existence of law, that there be power to enforce. Otherwise law becomes the expression of mere wish or advice. Since physical substances and forces have no intelligence and no power to resist, [pg 535] the four elements already mentioned exhaust the implications of the term “law” as applied to nature. In the case of rational and free agents, however, law implies in addition: (e) Duty or obligation to obey; and (f) Sanctions, or pains and penalties for disobedience.
“Law that has no penalty is not law but advice, and the government in which infliction does not follow transgression is the reign of rogues or demons.” On the question whether any of the punishments of civil law are legal sanctions, except the punishment of death, see N. W. Taylor, Moral Govt., 2:367-387. Rewards are motives, but they are not sanctions. Since public opinion may be conceived of as inflicting penalties for violation of her will, we speak figuratively of the laws of society, of fashion, of etiquette, of honor. Only so far as the community of nations can and does by sanctions compel obedience, can we with propriety assert the existence of international law. Even among nations, however, there may be moral as well as physical sanctions. The decision of an international tribunal has the same sanction as a treaty, and if the former is impotent, the latter also is. Fines and imprisonment do not deter decent people from violations of law half so effectively as do the social penalties of ostracism and disgrace, and it will be the same with the findings of an international tribunal. Diplomacy without ships and armies has been said to be law without penalty. But exclusion from civilized society is penalty. “In the unquestioning obedience to fashion's decrees, to which we all quietly submit, we are simply yielding to the pressure of the persons about us. No one adopts a style of dress because it is reasonable, for the styles are often most unreasonable; but we meekly yield to the most absurd of them rather than resist this force and be called eccentric. So what we call public opinion is the most mighty power to-day known, whether in society or in politics.”
4. Law expresses and demands nature.
The will which thus binds its subjects by commands and penalties is an expression of the nature of the governing power, and reveals the normal relations of the subjects to that power. Finally, therefore, law (g) Is an expression of the nature of the lawgiver; and (h) Sets forth the condition or conduct in the subjects which is requisite for harmony with that nature. Any so-called law which fails to represent the nature of the governing power soon becomes obsolete. All law that is permanent is a transcript of the facts of being, a discovery of what is and must be, in order to harmony between the governing and the governed; in short, positive law is just and lasting only as it is an expression and republication of the law of nature.
Diman, Theistic Argument, 106, 107: John Austin, although he “rigorously limited the term law to the commands of a superior,” yet “rejected Ulpian's explanation of the law of nature, and ridiculed as fustian the celebrated description in Hooker.” This we conceive to be the radical defect of Austin's conception. The Will from which natural law proceeds is conceived of after a deistic fashion, instead of being immanent in the universe. Lightwood, in his Nature of Positive Law, 78-90, criticizes Austin's definition of law as command, and substitutes the idea of law as custom. Sir Henry Maine's Ancient Law has shown us that the early village communities had customs which only gradually took form as definite laws. But we reply that custom is not the ultimate source of anything. Repeated acts of will are necessary to constitute custom. The first customs are due to the commanding will of the father in the patriarchal family. So Austin's definition is justified. Collective morals (mores) come from individual duty (due); law originates in will; Martineau, Types, 2:18, 19. Behind this will, however, is something which Austin does not take account of, namely, the nature of things as constituted by God, as revealing the universal Reason, and as furnishing the standard to which all positive law, if it would be permanent, must conform.
See Montesquieu, Spirit of Laws, book 1, sec. 14—“Laws are the necessary relations arising from the nature of things.... There is a primitive Reason, and laws are the relations subsisting between it and different beings, and the relations of these to one another.... These rules are a fixed and invariable relation.... Particular intelligent beings may have laws of their own making, but they have some likewise that they [pg 536]never made.... To say that there is nothing just or unjust but what is commanded or forbidden by positive laws, is the same as saying that before the describing of a circle all the radii were not equal. We must therefore acknowledge relations antecedent to the positive law by which they were established.” Kant, Metaphysic of Ethics, 169-172—“By the science of law is meant systematic knowledge of the principles of the law of nature—from which positive law takes its rise—which is forever the same, and carries its sure and unchanging obligations over all nations and throughout all ages.”