Νόμος.—As δίκη corresponds to jus and θέμις to fas, so νόμος is the Greek equivalent of lex. We have to distinguish two uses of the term, one earlier and general, the other later and specialised.
1. Νόμος is used in a very wide sense to include any human institution, anything established or received among men, whether by way of custom, opinion, convention, law or otherwise. It was contrasted, at least in the language of the philosophers, with φύσις, or nature. That which is natural is το φυσικόν; that which is artificial, owing its origin to the art and invention of mankind, is τὸ νομικόν. It is often said that the earliest meaning of νόμος is custom. The original conception, however, seems to include not merely that which is established by long usage, but that which is established, received, ordained, or appointed in whatever fashion. Νόμος is institutum, rather than consuetudo.
Νόμος in a later, secondary, and specialised application, means a statute, ordinance, or law. So prominent among human institutions are the laws by which men are governed, so greatly with increasing political development do the spheres and influence of legislation extend themselves, that the νόμοι became in a special and pre-eminent sense the laws of the state. Νόμος was a word unknown to Homer, but it became in later times the leading juridical term of the Greek language. The Greeks spoke and wrote of the laws (νόμοι), while the Romans, perhaps with a truer legal insight, concerned themselves with the law (jus). When, like Cicero, they write de legibus, it is in imitation of Greek usage.
LAW.—Law is by no means the earliest legal term acquired by the English language. Curiously enough, indeed, it would seem not even to be indigenous, but to be one of those additions to Anglo-Saxon speech which are due to the Danish invasions and settlements. Of the earlier terms the commonest, and the most significant for our present purpose, is dom, the ancestor of our modern doom.[[501]] A dom or doom is either (1) a law, ordinance, or statute, or (2) a judgment. It does not seem possible to attribute with any confidence historical priority to either of these senses. In modern English the idea of judgment has completely prevailed over and excluded that of ordinance, but we find no such predominance of either meaning in Anglo-Saxon usage. The word has its source in the Aryan root DHA, to place, set, establish, appoint, and it is therefore equally applicable to the decree of the judge and to that of the lawgiver. In the laws of King Alfred we find the term in both its senses. “These are the dooms which Almighty God himself spake unto Moses and commanded him to keep.”[[502]] “Judge then not one doom to the rich and another to the poor.”[[503]] In the following passage of the laws of Edgar the laws of the Danes are plainly equivalent to the dooms of the English: “I will that secular right stand among the Danes with as good laws as they best may choose. But with the English let that stand which I and my Witan have added to the dooms of my forefathers.”[[504]]
Doom is plainly cognate to θέμις. The religious implication, however, which, in the Greek term, is general and essential, is, in the English term, special and accidental. In modern English doom is, like θέμις, the will, decree and judgment of Heaven—fate or destiny; but the Anglo-Saxon dom included the ordinances and judgments of mortal men, no less than those of the gods. Θέμις, therefore, acquired the sense of human law only derivatively through the sense of right, and so belongs to the class of jus, not of lex; while doom, like θεσμός, acquired juridical applications directly, and so stands besides lex and νόμος.
Dom, together with all the other Anglo-Saxon legal terms, including, strangely enough, right itself, was rapidly superseded by lagu, which is the modern law. The new term makes its appearance in the tenth century, and the passage cited above from the laws of King Edgar is one of the earliest instances of its use. Lagu and law are derived from the root LAGH, to lay, settle, or place. Law is that which is laid down. There is a considerable conflict of opinion as to whether it is identical in origin with the Latin lex (leg-). Schmidt and others decide in the affirmative,[[505]] and the probabilities of the case seem to favour this opinion. The resemblance between law and lex seems too close to be accidental. If this is so, the origin of lex is to be found in the Latin lego, not in its later sense of reading, but in its original sense of laying down or setting (as in the derivative lectus), which is also the primary signification of the Greek λέγῳ, the German legen, and the English lay.[[506]] If this is so, then law and lex are alike that which is laid down, just as Gesetz is that which is set (setzen). This interpretation is quite consistent with the original possession by lex of a wider meaning than statute, as already explained. We still speak of laying down terms, conditions, and propositions, no less than of laying down commands, rules, and laws. Lex, however, is otherwise and variously derived from or connected with, ligare, to bind,[[507]] legere, to read,[[508]] and λέγειν, to say or speak.[[509]]
It is true indeed that by several good authorities it is held that the original meaning of lagu and law is that which lies, not that which has been laid or settled—that which is customary, not that which is established by authority.[[510]] The root LAGH, however, must contain both the transitive and intransitive senses, and I do not know what evidence there is for the exclusion of the former from the signification of the derivative law. Moreover, there seems no ground for attributing to lagu the meaning of custom. It seems from the first to have meant the product of authority, not that of use and wont. It is statutum, not consuetudo. As soon as we meet with it, it is equivalent to dom. The analogy also of lex, gesetz, dom, θεσμός, and other similar terms is in favour of the interpretation here preferred.[[511]]
APPENDIX II.
THE THEORY OF SOVEREIGNTY.
In discussing the theory of the state, we noticed the distinction between sovereign and subordinate power.[[512]] The former is that which, within its own sphere, is absolute and uncontrolled, while the latter is that which is subject to the control of some power superior and external to itself. We have now to consider in relation to this distinction a celebrated doctrine which we may term Hobbes’s theory of sovereignty. It was not, indeed, originated by the English philosopher, but is due rather to the celebrated French publicist Bodin, from whom it first received definite recognition as a central element of political doctrine. In the writings of Hobbes, however, it assumes greater prominence and receives more vigorous and clear-cut expression, and it is to his advocacy and to that of his modern followers that its reception in England must be chiefly attributed.
The theory in question may be reduced to three fundamental propositions:—