In considering the logical defects of the litera legis, we have tacitly assumed that by going behind the defective text it is always possible to discover a logically perfect sententia legis. We have assumed that the whole duty of the courts is to ascertain the true and perfect intention which has received imperfect expression. This is not so, however. In a great number of cases the defects of the litera legis are simply the manifestation of corresponding defects in the sententia. If the legislature speaks ambiguously, it is often because there is no single and definite meaning to be expressed. If the words of the legislature are self-contradictory, it is possibly due to some repugnancy and confusion in the intention itself. If the text contains omissions which make it logically imperfect, the reason is more often that the case in question has not occurred to the mind of the legislature, than that there exists with respect to it a real intention which by inadvertence has not been expressed.
What, then, is the rule of interpretation in such cases? May the courts correct and supplement the defective sententia legis, as well as the defective litera legis? The answer is that they may and must. If the letter of the law is logically defective, it must be made logically perfect, and it makes no difference in this respect whether the defect does or does not correspond to one in the sententia legis itself. Where there is a genuine and perfect intention lying behind the defective text, the courts must ascertain and give effect to it; where there is none, they must ascertain and give effect to the intention which the legislature presumably would have had, if the ambiguity, inconsistency, or omission had been called to mind. This may be regarded as the dormant or latent intention of the legislature, and it is this which must be sought for as a substitute in the absence of any real and conscious intention.[[120]]
In the case of the sententia, as formerly in that of the litera legis, it is to be noticed that the only defects which the courts may remedy are logical defects. That the intention of the legislature is ethically defective, is not a fact with which the judicature has any concern. The sententia legis might have been wiser, juster, or more expedient, had it been wider, or narrower, or other than it actually is. But the courts have no authority to detract from it, add to it, or alter it, on that account. It may be that had a certain case been brought to the notice of the legislature, the statute would have been extended to cover it; but so long as it is logically complete and workable without the inclusion of this case, it must stand as it is. If a statute makes a provision as to sheep, which in common sense ought to have been extended to goats also, this is the affair of the legislature, not of the courts. To correct the sententia legis on logical grounds is a true process of interpretation; it fulfils the ultimate or dormant, if not the immediate or conscious intention of the legislature. But to correct it on ethical grounds is to assume and exercise legislative power.
SUMMARY.
| Legislation—Its three senses: | |||
| 1. All forms of law-making | Direct legislation. | ||
| Indirect legislation. | |||
| 2. All expression of the will of the legislature. | |||
| 3. The creation of law by way of authoritative declaration. | |||
| Law | Enacted—Statute—Written. | ||
| Unenacted—Common—Unwritten. | |||
| Legislation | Supreme—by the Imperial Parliament. | ||
| Subordinate | 1. Colonial. | ||
| 2. Executive. | |||
| 3. Judicial. | |||
| 4. Municipal. | |||
| 5. Autonomous. | |||
| Historical relation of legislation to other sources of law. | |||
| Superiority of legislation over other sources of law. | |||
| Codification. | |||
| Interpretation | Grammatical—based on the litera legis exclusively. | ||
| Logical | Litera legis logically defective. | Ambiguous. | |
| Inconsistent. | |||
| Incomplete. | |||
| Litera legis containing self-evident error. | |||
| Strict and equitable interpretation. | |||
| Extensive and restrictive interpretation. | |||
CHAPTER VIII.
CUSTOM.
§ 55. The Early Importance of Customary Law.
The importance of custom as a source of law continuously diminishes as the legal system grows. As an instrument of the development of English law in particular, it has now almost ceased to operate, partly because it has to a large extent been superseded by legislation and precedent, and partly because of the very stringent limitations imposed upon its law-creating efficacy, the legal requirements of a valid custom being such as few customs can at the present day conform to. In earlier times, however, it was otherwise. It was long the received and official theory of English law that whatever was not the product of legislation had its source in custom. Law was either the written statute law, or the unwritten, common, or customary law. Precedent was not conceived as being itself a legal source at all, for it was held to operate only as evidence of those customs from which the common law proceeded. Lex et consuetudo Angliae was the familiar title of our legal system. The common law of the realm and the common custom of the realm were synonymous expressions. It may be gravely doubted whether at any time this doctrine expressed the truth of the matter, but it is clear that it was much truer in the early days of our legal history, than it subsequently became; and it remained the accepted theory long after it had ceased to retain any semblance of the truth. For some centuries past, the true sources of the great bulk of our law have been statute and precedent, not statute and custom, and the common law is essentially case-law, not customary law. Yet we find Hale[[121]] in the seventeenth century, and Blackstone in the eighteenth, laying down the older doctrine as still valid. In the words of Blackstone:[[122]] “The municipal law of England ... may with sufficient propriety be divided into two kinds; the lex non scripta, the unwritten, or common law; and the lex scripta, the written, or statute law. The lex non scripta, or unwritten law, includes not only general customs, or the common law properly so called; but also the particular customs of certain parts of the kingdom; and likewise those particular laws that are by custom observed only in certain courts and jurisdictions.” Such language is an echo of the past, not an accurate account of the facts of the present day. Nevertheless even now custom has not wholly lost its efficacy. It is still one of the legal sources of the law of England, and an examination of its nature and operation pertains to modern juridical theory, and not merely to legal history or antiquities.
§ 56. Reasons for the Reception of Customary Law.
The reasons for attributing to custom the force of law have been already briefly indicated in relation to legal sources in general. We have seen that, in the first place, custom is the embodiment of those principles which have commended themselves to the national conscience as principles of truth, justice and public utility. The fact that any rule has already the sanction of custom raises a presumption that it deserves to obtain the sanction of law also. Via trita via tuta. Speaking generally, it is well that the courts of justice, in seeking for those principles of right which it is their duty to administer, should be content to accept those which have already in their favour the prestige and authority of long acceptance, rather than attempt the more dangerous task of fashioning a set of principles for themselves by the light of nature. The national conscience may well be accepted by the courts as an authoritative guide; and of this conscience national custom is the external and visible sign.