We have defined law by reference to the administration of justice. It is needful, therefore, to obtain here some understanding of the essential nature of that function of the state, though a complete analysis of it must be deferred to a later period of our inquiry. That some form of compulsion and control is essential for the realization in human conduct of the idea of justice, experience has made sufficiently manifest. Unfortunately for the welfare of the world, men are not so constituted that to know the right is to do it. In the nature of things there is a conflict, partly real, partly only apparent, between the interests of man and man, and between those of individuals and those of society at large; and to leave every man free to do that which is right in his own eyes, would fill the world with fraud and violence. “We have seen,” says Spinoza, at the commencement of his Treatise on Politics,[[9]] “that the way pointed out by Reason herself is exceeding difficult, insomuch so that they who persuade themselves that a multitude of men ... can be induced to live by the rule of Reason alone, are dreamers of dreams and of the golden age of the poets.” If, therefore, we would maintain justice, it is necessary to add compulsion to instruction. It is not enough to point out the way; it is needful to compel men to walk in it. Hence the existence of various regulative or coercive systems, the purpose of which is the upholding and enforcement of right and justice by some instrument of external constraint. One of the most important of these systems is the administration of justice by the state. Another is the control exercised over men by the opinion of the society in which they live. A third is that scheme of coercion established within the society of states for the enforcement of the principles of international justice.
The administration of justice may therefore be defined as the maintenance of right within a political community by means of the physical force of the state.
The instrument of coercion employed by any regulative system is called a sanction, and any rule of right supported by such means is said to be sanctioned. Thus physical force, in the various methods of its application, is the sanction applied by the state in the administration of justice. Censure, ridicule, contempt, are the sanctions by which society (as opposed to the state) enforces the rules of morality. War is the last and the most formidable of the sanctions which in the society of nations maintain the law of nations. Threatenings of evils to flow here or hereafter from divine anger are the sanctions of religion, so far as religion assumes the form of a regulative or coercive system.[[10]]
A sanction is not necessarily a punishment or penalty. To punish wrongdoers is a very effectual way of maintaining the right, but it is not the only way. We enforce the rule of right, not only by imprisoning the thief, but by depriving him of his plunder, and restoring it to its true owner; and each of these applications of the physical force of the state is equally a sanction. The examination and classification of the different forms of sanction made use of by the state will claim our attention in a later chapter on the administration of justice.
§ 7. Law Logically Subsequent to the Administration of Justice.
We have defined law as the body of principles observed and acted on by the state in the administration of justice. To this definition the following objection may be made. It may be said: “In defining law by reference to the administration of justice, you have reversed the proper order of ideas, for law is the first in logical order, and the administration of justice second. The latter, therefore, must be defined by reference to the former, and not vice versa. Courts of justice are essentially courts of law, justice in this usage being merely another name for law. The administration of justice is essentially the enforcement of the law. The laws are the commands laid by the state upon its subjects, and the law courts are the organs through which these commands are enforced. Legislation, direct or indirect, must precede adjudication. Your definition of law is therefore inadequate, for it runs in a circle. It is not permissible to say that the law is the body of rules observed in the administration of justice, since this function of the state must itself be defined as the application and enforcement of the law.”
This objection is based on an erroneous conception of the essential nature of the administration of justice. The primary purpose of this function of the state is that which its name implies—to maintain right, to uphold justice, to protect rights, to redress wrongs. Law is secondary and unessential. It consists of the fixed principles in accordance with which this function is exercised. It consists of the pre-established and authoritative rules which judges apply in the administration of justice, to the exclusion of their own free will and discretion. For good and sufficient reasons the courts which administer justice are constrained to walk in predetermined paths. They are not at liberty to do that which seems right and just in their own eyes. They are bound hand and foot in the bonds of an authoritative creed which they must accept and act on without demur. This creed of the courts of justice constitutes the law, and so far as it extends, it excludes all right of private judgment. The law is the wisdom and justice of the organized commonwealth, formulated for the authoritative direction of those to whom the commonwealth has delegated its judicial functions. What a litigant obtains in the tribunals of a modern and civilized state is doubtless justice according to law, but it is essentially and primarily justice and not law. Judges are appointed, in the words of the judicial oath, “to do right to all manner of people, after the laws and usages of this realm.” Justice is the end, law is merely the instrument and the means; and the instrument must be defined by reference to its end.
It is essential to a clear understanding of this matter to remember that the administration of justice is perfectly possible without law at all. Howsoever expedient it may be, howsoever usual it may be, it is not necessary that the courts of the state should, in maintaining right and redressing wrong, act according to those fixed and predetermined principles which are called the law. A tribunal in which right is done to all manner of people in such fashion as commends itself to the unfettered discretion of the judge, in which equity and good conscience and natural justice are excluded by no rigid and artificial rules, in which the judge does that which he deems just in the particular case, regardless of general principles, may not be an efficient or trustworthy tribunal, but is a perfectly possible one. It is a court of justice, which is not also a court of law.
Moreover, even when a system of law exists, the extent of it may vary indefinitely. The degree in which the free discretion of a judge in doing right is excluded by predetermined rules of law, is capable of indefinite increase or diminution. The total exclusion of judicial discretion by legal principle is impossible in any system. However great is the encroachment of the law, there must remain some residuum of justice which is not according to law—some activities in respect of which the administration of justice cannot be defined or regarded as the enforcement of the law. Law is a gradual growth from small beginnings. The development of a legal system consists in the progressive substitution of rigid pre-established principles for individual judgment, and to a very large extent these principles grow up spontaneously within the tribunals themselves. That great aggregate of rules which constitutes a developed legal system is not a condition precedent of the administration of justice, but a product of it. Gradually from various sources—precedent, custom, statute—there is collected a body of fixed principles which the courts apply to the exclusion of their private judgment. The question at issue in the administration of justice more and more ceases to be, “What is the right and justice of this case?” and more and more assumes the alternative form, “What is the general principle already established and accepted, as applicable to such a case as this?” Justice becomes increasingly justice according to law, and courts of justice become increasingly courts of law.