If we choose to class the laws of precept and distribution under the general head of "statutes," all law is simply either of statute or judgment; that is, first, the establishment of ordinance, and, secondly, the assignment of the reward or penalty due to its observance or violation.
To some extent these two forms of law must be associated, and, with every ordinance, the penalty of disobedience to it be also determined. But since the degrees and guilt of disobedience vary, the determination of due reward and punishment must be modified by discernment of special fact, which is peculiarly the office of the judge, as distinguished from that of the lawgiver and lawsustainer, or king; not but that the two offices are always theoretically and, in early stages, or limited numbers, of society, are often practically, united in the same person or persons.
Also, it is necessary to keep clearly in view the distinction between these two kinds of law, because the possible range of law is wider in proportion to their separation. There are many points of conduct respecting which the nation may wisely express its will by a written precept or resolve; yet not enforce it by penalty; and the expedient degree of penalty is always quite a separate consideration from the expedience of the statute, for the statute may often be better enforced by mercy than severity, and is also easier in bearing, and less likely to be abrogated. Farther, laws of precept have reference especially to youth, and concern themselves with training; but laws of judgment to manhood, and concern themselves with remedy and reward. There is a highly curious feeling in the English mind against educational law; we think no man's liberty should be interfered with till he has done irrevocable wrong; whereas it is then just too late for the only gracious and kingly interference, which is to hinder him from doing it. Make your educational laws strict, and your criminal ones may be gentle; but, leave youth its liberty, and you will have to dig dungeons for age. And it is good for a man that he wear the yoke in his youth; for the yoke of youth, if you know how to hold it, may be of silken thread; and there is sweet chime of silver bells at that bridle rein; but, for the captivity of age, you must forge the iron fetter, and cast the passing bell.
Since no law can be in a final or true sense established, but by right (all unjust laws involving the ultimate necessity of their own abrogation), the law-sustaining power in so far as it is Royal, or "right doing";—in so far, that is, as it rules, not mis-rules, and orders, not dis-orders, the things submitted to it. Throned on this rock of justice, the kingly power becomes established and establishing, "θεῖος," or divine, and, therefore, it is literally true that no ruler can err, so long as he is a ruler, or ἄρχων οὐδεὶς ἁμαρτάνει τότε ὅταν ἄρχων ᾖ (perverted by careless thought, which has cost the world somewhat, into "the king can do no wrong"). Which is a divine right of kings indeed, and quite unassailable, so long as the terms of it are "God and my Right," and not "Satan and my Wrong," which is apt, in some coinages, to appear on the reverse of the die, under a good lens.
Meristic law, or that of tenure of property, first determines what every individual possesses by right, and secures it to him; and what he possesses by wrong, and deprives him of it. But it has a far higher provisory function: it determines what every man should possess, and puts it within his reach on due conditions; and what he should not possess, and puts this out of his reach conclusively.
Every article of human wealth has certain conditions attached to its merited possession, which, when they are unobserved, possession becomes rapine. The object of meristic law is not only to secure every man his rightful share (the share, that is, which he has worked for, produced, or received by gift from a rightful owner), but to enforce the due conditions of possession, as far as law may conveniently reach; for instance, that land shall not be wantonly allowed to run to waste, that streams shall not be poisoned by the persons through whose properties they pass, nor air be rendered unwholesome beyond given limits. Laws of this kind exist already in rudimentary degree, but needing large development; the just laws respecting the possession of works of art have not hitherto been so much as conceived, and the daily loss of national wealth, and of its use, in this respect, is quite incalculable.[108] While, finally, in certain conditions of a nation's progress, laws limiting accumulation of property may be found expedient.
Critic law determines questions of injury, and assigns due rewards and punishments to conduct.[109]
Therefore, in order to true analysis of it, we must understand the real meaning of this word "injury."
We commonly understand by it any kind of harm done by one man to another; but we do not define the idea of harm; sometimes we limit it to the harm which the sufferer is conscious of, whereas much the worst injuries are those he is unconscious of; and, at other times, we limit the idea to violence, or restraint, whereas much the worse forms of injury are to be accomplished by carelessness, and the withdrawal of restraint.
"Injury" is, then, simply the refusal, or violation of any man's right or claim upon his fellows: which claim, much talked of in modern times, under the term "right," is mainly resolvable into two branches: a man's claim not to be hindered from doing what he should; and his claim to be hindered from doing what he should not; these two forms of hindrance being intensified by reward, or help and fortune, or Fors on one side, and punishment, impediment, and even final arrest, or Mors, on the other.