APPENDIX I.
THE NAMES OF THE LAW.
The purpose of the following pages is to consider, in respect of their origin and relations, the various names and titles which have been borne by the law in different languages. This seems an inquiry fit to be undertaken in the hope that judicial terms may be found to throw some light upon the juridical ideas of which they are the manifestation. A comparison of diverse usages of speech may serve to correct misleading associations, or to suggest relations that may be easily overlooked by any one confining his attention to a single language.
The first fact which an examination of juridical nomenclature reveals, is that all names for law are divisible into two classes, and that almost every language possesses one or more specimens of each. To the first class belong such terms as jus, droit, recht, diritto, equity. To the second belong lex, loi, gesetz, legge, law, and many others. It is a striking peculiarity of the English language that it does not possess any generic term falling within the first of these groups; for equity, in the technical juridical sense, means only a special department of civil law, not the whole of it, and therefore is not co-extensive with jus, droit, and the other foreign terms with which it is classed. Since, therefore, we have in English no pair of contrasted terms adequate for the expression of the distinction between these two groups of names, we are constrained to have recourse to a foreign language, and we shall employ for this purpose the terms jus and lex, using each as typical of and representing all other terms which belong to the same group as itself.
What, then, are the points of difference between jus and lex; what is the importance and the significance of the distinction between the two classes of terms? In the first place jus has an ethical as well as a juridical application, while lex is purely juridical. Jus means not only law but also right. Lex means law and not also right. Thus our own equity has clearly the double meaning; it means either the rules of natural justice, or that special department of the civil law which was developed and administered in the Court of Chancery. The English law, on the other hand, has a purely juridical application; justice in itself, and as such, has no claim to the name of law. So also with droit as opposed to loi, with recht as opposed to gesetz, with diritto as opposed to legge.
If we inquire after the cause of this duplication of terms we find it in the double aspect of the complete juridical conception of law. Law arises from the union of justice and force, of right and might. It is justice recognised and established by authority. It is right realised through power. Since, therefore, it has two sides and aspects, it may be looked at from two different points of view, and we may expect to find, as we find in fact, that it acquires two different names. Jus is law looked at from the point of view of right and justice; lex is law looked at from the point of view of authority and force. Jus is the rule of right which becomes law by its authoritative establishment; lex is the authority by virtue of which the rule of right becomes law. Law is jus in respect of its contents, namely the rule of right; it is lex in respect of its source, namely, its recognition and enforcement by the state. We see, then, how it is that so many words for law mean justice also; since justice is the content or subject-matter of law, and from this subject-matter law derives its title. We understand also how it is that so many words for law do not also mean justice; law has another side and aspect from which it appears, not as justice realised and established, but as the instrument through which its realisation and establishment are effected.
A priori we may presume that in the case of those terms which possess a double application, both ethical and legal, the ethical is historically prior, and the legal later and derivative. We may assume that justice comes to mean law, not that law comes to mean justice. This is the logical order, and is presumably the historical order also. As a matter of fact this presumption is, as we shall see, correct in the case of all modern terms possessing the double signification. In the case of recht, droit, diritto, equity, the ethical sense is undoubtedly primary, and the legal secondary. In respect of the corresponding Greek and Latin terms (jus, δίκαιον) the data would seem insufficient for any confident conclusion. The reverse order of development is perfectly possible; there is no reason why lawful should not come to mean in a secondary sense rightful, though a transition in the opposite direction is more common and more natural. The significant fact is the union of the two meanings in the same word, not the order of development.
A second distinction between jus and lex is that the former is usually abstract, the second concrete.[[481]] The English term law indeed combines both these uses in itself. In its abstract application we speak of the law of England, criminal law, courts of law. In its concrete sense, we say that Parliament has enacted or repealed a law. In foreign languages, on the other hand, this union of the two significations is unusual. Jus, droit, recht mean law in the abstract, not in the concrete. Lex, loi, gesetz signify, at least primarily and normally, a legal enactment, or a rule established by way of enactment, not law in the abstract. This, however, is not invariably the case. Lex, loi, and some other terms belonging to the same group have undoubtedly acquired a secondary and abstract signification in addition to their primary and concrete one. In medieval usage the law of the land is lex terrae, and the law of England is lex et consuetudo Angliae. So in modern French loi is often merely an equivalent for droit. We cannot therefore regard the second distinction between jus and lex as essential. It is closely connected with the first, but, though natural and normal, it is not invariable. The characteristic difference between English and foreign usage is not that our law combines the abstract and concrete significations (for so also do certain Continental terms), but that the English language contains no generic term which combines ethical and legal meanings as do jus, droit, and recht.
RECHT, DROIT, DIRITTO.—These three terms are all closely connected with each other and with the English right. The French and Italian words are derivatives of the Latin directus and rectus, these being cognate with recht and right. We may with some confidence assume the following order of development among the various ideas represented by this group of expressions:—
1. The original meaning was in all probability physical straightness. This use is still retained in our right angle and direct. The root is RAG, to stretch or straighten. The group of connected terms ruler, rex, rajah, regulate, and others, would seem to be independently derived from the same root, but not to be in the same line of development as right and its synonyms. The ruler or regulator is he who keeps things straight or keeps order, not he who establishes the right. Nor is the right that which is established by a ruler.
2. In a second and derivative sense the terms are used metaphorically to indicate moral approval—ethical rightness, not physical. Moral disapproval is similarly expressed by the metaphorical expressions wrong and tort, that is to say, crooked or twisted. These are metaphors that still commend themselves; for the honest man is still the straight and upright man, and the ways of wickedness are still crooked. In this sense, therefore, recht, droit, and diritto signify justice and right.