The whole body of legal rules is divisible into two parts, which may be conveniently distinguished as General law and Special law. The former includes those legal rules of which the courts will take judicial notice, and which will therefore be applied as a matter of course in any case in which the appropriate subject-matter is present. Special law, on the other hand, consists of those rules which, although they are true rules of law, the courts will not recognise and apply as a matter of course, but which must be specially proved and brought to the notice of the courts by the parties interested in their recognition. In other words, the general law is that which is generally applicable; it is that which will be applied in all cases in which it is not specially excluded by proof that some other set of principles has a better claim to recognition in the particular instance. Special law, on the contrary, is that which has only a special or particular application, excluding and superseding the general law in those exceptional cases in which the courts are informed of its existence by evidence produced for that purpose.
The test of the distinction is judicial notice. By this is meant the knowledge which any court, ex officio, possesses and acts on, as contrasted with the knowledge which a court is bound to acquire through the appointed channel of evidence formally produced by the parties. A judge may know much in fact of which in law he is deemed ignorant, and of which, therefore, he must be informed by evidence legally produced. Conversely he may be ignorant in fact of much that by law he is entitled judicially to notice, and in such a case it is his right and duty to inform himself by such means as seem good to him. The general rule on the matter is that courts of justice know the law, but are ignorant of the facts. The former may and must be judicially noticed, while the latter must be proved. To each branch of this rule there are, however, important exceptions. There are certain exceptional classes of facts, of which, because of their notoriety, the law imputes a knowledge to the courts. Similarly there are certain classes of legal rules of which the courts may, and indeed must, hold themselves ignorant, until due proof of their existence has been produced before them. These, as we have said, constitute special, as opposed to the general law.
By far the larger and more important part of the legal system is general law. Judicial notice—recognition and application as a matter of course—is the ordinary rule. As to this branch of the law we need say nothing more in this place, but the rules of special law call for further consideration. They fall for the most part into five distinct classes. A full account of these must wait until we come to deal with the sources of law in a subsequent chapter, but in the meantime it is necessary to mention them as illustrating the distinction with which we are here concerned.
1. Local customs.—Immemorial custom in a particular locality has there the force of law. Within its own territorial limits it prevails over, and derogates from, the general law of the land. But the courts are judicially ignorant of its existence. If any litigant will take advantage of it, he must specially plead and prove it; otherwise the general law will be applied.
2. Mercantile customs.—The second kind of special law consists of that body of mercantile usage which is known as the law merchant. The general custom of merchants in the realm of England has in mercantile affairs the force of law. It may make, for example, an instrument negotiable, which by the general law of the land is not so. This customary law merchant is, like local customary law, special and not general; but, unlike local customary law, it has the capacity of being absorbed by, or taken up into the general law itself. When a mercantile usage has been sufficiently established by evidence and acknowledged as law by judicial decision, it is thereafter entitled to judicial notice. The process of proof need not be repeated from time to time.[[18]] The result of this doctrine is a progressive transformation of the rules of the special law merchant into rules of the general law. The law of bills of exchange, for example, was formerly part of the special law merchant, requiring to be pleaded and proved as a condition precedent to its recognition and application; but successive judicial decisions, based upon evidence of this special law, have progressively transmuted it into general law, entitled to judicial notice and to application as a matter of course.
3. Private legislation.—Statutes are of two kinds, distinguishable as public and private. The distinguishing characteristic of a public Act is that judicial notice is taken of its existence, and it is therefore one of the sources of the general law. A private Act, on the other hand, is one which, owing to its limited scope, does not fall within the ordinary cognisance of the courts of justice, and will not be applied by them unless specially called to their notice by the parties interested. Examples of private legislation are acts incorporating individual companies and laying down the principles on which they are to be administered, acts regulating the navigation of some river, or the construction and management of some harbour, or any other enactments concerned, not with the interests of the realm or the public at large, but with those of private individuals or particular localities.[[19]]
Private legislation is not limited to acts of Parliament. In most cases, though not in all, the delegated legislation of bodies subordinate to Parliament is private, and is therefore a source, not of general, but of special law. The by-laws of a railway company, for example, or of a borough council, are not entitled to judicial notice, and form no part of the general law of the land. Rules of court, on the other hand, established by the judges under statutory authority for the regulation of the procedure of the courts, are constituent parts of the ordinary law.
4. Foreign law.—The fourth kind of special law consists of those rules of foreign law, which upon occasion are applied even in English courts to the exclusion of English law. Experience has shown that justice cannot be efficiently administered by tribunals which refuse on all occasions to recognise any law but their own. It is essential in many cases to take account of some system of foreign law, and to measure the rights and liabilities of litigants by it, rather than by the indigenous or territorial law of the tribunal itself. If, for example, two men make a contract in France, which they intend to be governed by the law of France, and one of them sues on it in an English court, justice demands that the validity and effect of the contract shall be determined by French, rather than by English law. French, rather than English law will therefore be applied in such a case even by English judges. The principles which determine and regulate this exclusion of local by foreign law constitute the body of legal doctrine known as private international law.
Foreign law, so far as it is thus recognised in English courts, becomes, by virtue of this recognition, in a certain sense English law. French law is French as being applied in France, but English as being applied in England. Yet though it is then part of English law, as being administered in English courts, it is not part of the general law, for English courts have no official knowledge of any law save their own.
5. Conventional law.—The fifth and last form of special law is that which has its source in the agreement of those who are subject to it. Agreement is a juridical fact having two aspects, and capable of being looked at from two points of view. It is both a source of legal rights and a source of law. The former of these two aspects is the more familiar and in ordinary cases the more convenient, but in numerous instances the latter is profitable and instructive. The rules laid down in a contract, for the determination of the rights, duties, and liabilities of the parties, may rightly be regarded as rules of law which these parties have agreed to substitute for, or add to the rules of the general law. Agreement is a law for those who make it, which supersedes, supplements, or derogates from the ordinary law of the land. Modus et conventio vincunt legem. To a very large extent, though not completely, the general law is not peremptory and absolute, but consists of rules whose force is conditional on the absence of any other rules agreed upon by the parties interested. The articles of association of a company, for example, are just as much true rules of law, as are the provisions of the Companies Acts, or those statutory regulations which apply in the absence of any articles specially agreed upon. So articles of partnership fall within the definition of law, no less than the provisions of the Partnership Act which they are intended to supplement or modify, for both sets of rules are authoritative principles which the courts will apply in all litigation affecting the affairs of the partnership.