Classification of Legal rules: Sir Henry Sumner Maine


Almost the first thing which is learnt by the student of Roman law is, that the classical jurists of Rome divided the whole body of legal rules into the Law of Persons, the Law of Things, and the Law of Actions. Although, however, his studies, as law is now taught amongst us, may soon introduce him to some vehement disputes as to the meaning of this classification, he may belong in becoming alive to the extent and importance of the literature to which it has given birth. It would seem, in fact, that in the seventeenth century, which was a great juridical era, theories of legal classification took very much the place of those theories of law reform which so occupied the minds of the last generation of Englishmen. The continuous activity of legislatures is an altogether modern phenomenon; and, before it began, an intellect of the type of Bentham’s, instead of speculating on the possibility of transforming the law into conformity with the greatest happiness of the greatest number, or with any other principle, speculated rather [363] on the possibility of rearranging it in new and more philosophical order. The improvement in view was thus rather a reform of law-books than a reform of law. The most extreme example of such theories is, perhaps, to be found in the attempt of Domat to distribute all law under its two ‘great commandments’ as set forth in the twenty-second chapter of St. Matthew’s Gospel—love to God and love to one’s neighbour. But on the whole, the arrangement in which the compilers of Justinian’s ‘Institutes’ followed Gaius, distributing law in Law of Persons, Law of Things, and Law of Actions, became the point of departure for theories of legal classification. Its history has been not unlike that of several equally famous propositions. After long neglect, it came to be regarded as an expression of absolute truth, and an essential and fundamental distinction was assumed to exist between the three great departments into which the Romans divided law. English jurisprudence was, no doubt, very little affected by this assumption, but English lawyers occasionally come across the inferences from it when they have to deal with Private International law, or, in other words, with the conditions upon which one community will recognise and apply a portion of the jurisprudence of another. At a later date, certain difficulties were observed in the rigorous application of the Roman doctrine, and much ingenuity was expended in removing them or explaining them away. Finally, it was pronounced to be theoretically untenable, and only deserving of being retained on account of its historical importance. According to the general agreement of modern writers on jurisprudence, the Roman distribution of law into Law of Persons, Law of Things, and Law of Actions must be regarded as now exploded.

As a perfect classification of legal rules would distribute them according to their real relations with one another, and would therefore be founded on a complete analysis of all the legal conceptions, the subject has not lost its interest for very powerful minds in this century. The speculations of Austin on classification almost fill such writings of his as remain to us, and a valuable essay of John Stuart Mill on these speculations may be read in the third volume of his ‘Dissertations and Discussions.’ On the Continent of Europe a more practical interest has been given to such questions by the gradual codification of the law of the whole civilised world, except England and the countries under the influence of the English legal system; for a Code must be arranged somehow, and few would deny that the more philosophical the arrangement the better. But the great majority of writers on the subject, whatever their title to be heard, are agreed in depreciating the Roman classification and all classifications descended [365] from it, and sometimes their censure is surprisingly strong. This modern fashion of decrying, and even of reviling, the arrangement of the Roman Institutes threatens to produce some reaction, and I see that a manful attempt to rehabilitate it has been made in America. A book published at Chicago, and written by a Law Professor of the State University of Iowa, is not likely perhaps to come into the hands of many English readers, but Mr. Hammond’s Preface to the American issue of Mr. Sandars’s well-known edition of the ‘Institutes of Justinian’ contains much the best defence I have seen of the classical distribution of law. My own opinion is that the now common depreciation of this distribution is not so much mistaken as misplaced. The legal classifications proposed by the most modern thinkers on these subjects are classifications of legal Rights. Every one of such systems has legal Right for its centre and pivot. But, singular as the fact may appear to those unacquainted with it, the Romans had not attained, or had not fully attained, to the conception of a legal Right, which seems to us elementary. According to the general usage of the Roman lawyers Jus meant not ‘a right,’ but ‘law,’ and usually a particular branch of law. There are, undoubtedly, certain senses of Jus in which the meaning of ‘right’ is approached, and even closely approached; but, on the whole, the Romans must be considered to have constructed their memorable system without the help of the conception of legal Right. We have constantly to be on our guard against illusions produced by the undoubted stability of law as compared with other provinces of thought. Some modern writers speak of the Romans as if they were to blame for not having clearly conceived a legal Right; even Mill speaks of their language on the point as ‘unhappy;’ but the truth is, and it is very impressive, that the legal idea of a Right was very slowly evolved. In the minds of the Roman lawyers, it was entangled with other notions, and was therefore obscure. In the Middle Ages, it became clearer, doubtless through its examination by the scholastics. But, unquestionably, a clear and consistent meaning was, for the first time, given to the expression ‘a right’ by the searching analysis of Bentham and Austin. I object, therefore, to the contemptuous language sometimes applied to the Roman map of the provinces of law, as in effect taxing persons who had not yet attained to the conception of a legal Right, with not having anticipated methods of classification of which Rights are the basis. In order to give their due to the ancient lawyers who first divided law into Law of Persons, Law of Things, and Law of Actions, we must try to bring home to ourselves the view of the field of law which this division superseded; and then we shall see, I think, that the new arrangement may have been a great feat of abstraction. The object of this paper will be to show what was the original Roman notion of the contents of a legal system, but it will derive such interest as it possesses from the light which the inquiry throws on certain primitive ideas regarding law and justice which appear to have been once diffused over a great portion of mankind.

The respect, which once amounted to reverence, for the classification of law in the Roman Institutes, though it has had time to culminate and decline, is relatively modern. There is no reason to suppose that the Roman lawyers set any extraordinary value on it. It was confined to their Institutional treatises or primers of law, the educational manuals placed in the hands of beginners. The student was soon advanced to the Prætorian Edict, and the greatest part of his pupilage was passed in the close examination of it, and in reading the numerous commentaries of which it was the text. But the Edict of the Prætor, even when consolidated by Julianus, did not divide law into Law of Persons, Law of Things, and Law of Actions. The Twelve Tables, older than the Edict, have no trace of this classification; nor has any later compendium of Roman law. The Gregorian and Hermogenian Codes were arranged upon a different principle; so was the Code of Theodosius the Second; so, manifestly, are the Code and Digest of Justinian. When the study of Roman law revived in the Middle Ages, it was not the arrangement of the Institutes which regulated the course of legal study soon followed by thousands of students. As may be seen from Mr. Hammond’s Preface, the mediæval teachers followed the so-called ‘legal order,’ that is, the actual order of legal topics in the text of the book before the class. The ascendency of the classification of the Institutes, in fact, took its rise in dissatisfaction with this ‘legal order.’ It survived in the law-schools, says Mr. Hammond, to the end of the eighteenth century, consequently till after the time of Blackstone; ‘but the increased importance of the Institutes in the plan of study gradually made their arrangement to be regarded as the basis of all scientific systems of jurisprudence.’ It has now, however, become plain, and with regard to matters far more important than legal classification, that much which the eighteenth century abandoned in the name of science and in equally respectable names must be recovered and re-examined, if the thread of human thought is ever to be knitted anew. What then was the ‘legal order,’ which appears in the Roman Digest and Code, and which, when those bodies of law were put together, had already maintained its place for about ten centuries in the legal records of a society of pre-eminent legal genius? I think that the question will be found to have more than merely technical and more than merely antiquarian interest.

The arrangement of legal topics which can be shown to have been extraordinarily persistent in the Roman law is first discovered in the fragments of those Twelve Tables which to the last were its theoretical basis. The contents of all the Tables except the Eleventh and Twelfth have been known in a general way since the time of Gothofred, but we are now only under the necessity of attending to the subjects of the first three, and especially of the First. This First Table of the primitive Code contained a number of rules de in jus vocando, on the first steps in a judicial proceeding, on summons to the defendant, and on the excuses, or—to employ the later Teutonic word which found its way into our own early law—the ‘essoins,’ which he might make for not attending. The Second Table had to do, first, with the Procedure to be followed when the case was actually in Court, and next (so it is commonly believed) with theft; it went at once from legal procedure to the fraudulent subtraction of a movable. The Third Table contained rules as to Deposit. We need not go further, and all which must be recollected is that the earliest Roman Code treated first of legal procedure, and then, either at once or shortly afterwards, dealt with the subjects of Thefts and Deposits; all the other heads of law discussed in the remaining Tables followed the same apparently haphazard arrangement. Let us now turn to the Prætorian or Perpetual Edict, the body of Roman Equity jurisprudence as opposed to the Roman Common Law constructed out of the Twelve Tables and out of the accretion of legal rules which had them for a nucleus. The Edict had unquestionably an order of subjects of its own. I will not now discuss the time at which, or the mode in which, this order first appeared. It began with a title manifestly corresponding to the first Decemviral Table, though usually given in different words, de actione dandâ. The Second Title, like the Second Table, dealt with Procedure in Court. Deposit was treated of in the Third Title; but Theft, instead of taking the first place after Procedure, as it is thought to have done in the primitive Code, occupied the last part of the Fourth Title, in which it was preceded by Marriage Portions and Tutelage. There is a general but not exact correspondence with the Twelve Tables throughout the remaining Titles, and on the whole the classification of the Edict looks like a modernised form of the ancient order of the Twelve Tables. It is well established that the distribution of subjects of the Edict was observed in the great mass of Roman legal literature, and that it influenced the earlier attempts at codification, but it was long a matter of dispute whether it determined the order followed in the Code and Digest of Justinian. At first sight there is no trace of resemblance or correspondence, but the reason [371] is that a great quantity of prefatory matter introduces the true classification in both of these famous compilations. In the Code the preface is ecclesiastical; in the Digest, there are first some general propositions about law, and then an account of various Imperial officers connected with the administration of the law or having some sort of jurisdiction. The real body of the Digest commences at the Fourth Title of the Second Book, and begins with the very subject of the First Table of the Decemviral Law, de in jus vocando. A close correspondence between these earliest and latest monuments of Roman law may be discerned running through no less than nineteen books of the Digest; only Theft has dropped into an obscurity characteristic of modern as distinguished from ancient law.

From this brief summary of an inquiry which has occupied the minds of several generations of learned men, it would appear that the form of the Roman law throughout the whole course of its history was strongly influenced by the primitive arrangement of subjects in the Twelve Tables. Have we any clue to the meaning or principle of this ancient legal classification? At first sight it is simply disorderly, even less capable of being referred to any dominant notion than the arrangement of our classical English Digest, Bacon’s ‘Abridgment,’ which begins with ‘Plea in Abatement to the Jurisdiction of a Court,’ and goes  on to treat of Ambassadors and Attorneys, but which at all events may lay claim to the convenience of an alphabetical order. The suspicion, however, that some light might be thrown on the arrangement of the Twelve Tables by what has more recently been called Comparative Jurisprudence is not new. Ever since the earliest and purest of the Teutonic Codes, the Frankish ‘Lex Salica,’ has been examined, it has been seen that it exhibited some curious general resemblances to the course of legal topics followed in all the monuments of Roman law except the Institutes. The first title is de mannire, on Summons to a Court, thus exactly answering to the First of the Roman Tables, and to the First Title of the Edict. The next seven Titles are concerned with Thefts, just as was the second part of the Second Roman Table. The Salic titles on thefts of swine, thefts of kine, thefts of tame birds, and so forth, succeed one another down to the ninth Title, where the subject of Trespass is taken up; but the code-maker immediately returns to Theft, and though he interrupts himself to treat of Homicide and other serious crimes, he is constantly recurring to Theft throughout a great part of the Code. The title corresponding most nearly to the Roman Deposits does not present itself till the middle of the Salic Law is reached: it is numbered ‘fifty,’ and has the barbarous Latin heading de fides factas; but it is most elaborately framed, and has furnished [373] plentiful food to modern German erudition. The fact remains that the German Salic Law begins, as did the Roman Twelve Tables, with committing what to a modern legal eye is the paralogism of placing the Law of Action in front of the law; that, like the Twelve Tables, it gives a very high place to Theft—in modern law one of the most insignificant of subjects; and that it elaborately discusses contractual obligations, but that it puts them in no place in the smallest degree corresponding to that reserved in the Roman Institutes for the Law of Contract. These resemblances, as I stated, attracted notice some time ago; but it was matter of dispute whether they proved anything more than that the Frankish code-maker had heard something of the Roman ‘legal order.’ On the one side the strong probability might be urged that the Theodosian Code had something to do with the Frankish codification; on the other, it might be said that the substantive law of the Lex Salica shows no signs of derivation from the Roman jurisprudence. It is purely barbarous. Again, the order of topics in the Lex Salica is not that of the later Roman law, which the Frank might conceivably have followed, but that of the earliest Roman law, of which it is almost impossible that he can have known anything. After Procedure, the Salic Law deals with Theft. So, according to the better opinion, did the Twelve Tables; but in the later Roman law Theft had become a criminal offence, and not one of any importance. The fact is, the prominent place assigned to Theft is a distinctive mark of barbarous law. It belongs to the period when movables are of far higher value than immovables, personal property than land. No surer inference can be drawn from the insistence of a lawgiver on Theft than that the community for which he legislated had more land than sufficed for cultivation, and that the common prey of violence or fraud was the movable, the slave, the domestic animal, or the ornament or utensil which was the product of workmen making up for unskilfulness by laboriousness.

The arguments against the derivation of the Salic from the Roman arrangement have always seemed to me to preponderate, independently of new materials for an opinion. But these new materials place the matter beyond a doubt. By itself indeed the lately revealed Irish law would carry us a very little way. Its great peculiarity is the extraordinary prominence it gives to Procedure. The principal Irish law-book, pretending to be a Code and claiming in its preface to have been framed when ‘Theodosius was monarch of the world,’ is almost wholly taken up with the law of Distress. Undoubtedly we have here the Celtic counterpart of the First Roman Table, de in jus vocando. Distraint is the ancient Irish method, and probably it was once the Greek, the Roman, the  German, and the Hindu method, possibly it was the universal method, of vocatio in jus, of compelling a person complained against to come into Court and submit the quarrel to arbitration or adjudication. The state of things is that of which we have a bare trace in Roman and Hindu, but traces somewhat more abundant in Teutonic law; you, having received an injury, so far availed yourself of the primitive natural remedy of forcible reprisals that you used it, with the sufferance or under the control of the law, to compel your adversary to come into Court. But, though this amount of correspondence is manifest, no further resemblance to the Roman Twelve Tables can be discovered amid the singular confusions of the Irish jurisprudence. The subject discussed in the great Code, the Senchus Mor, next after Distress is the law of ‘Hostage-securities,’ and it may certainly be asserted that this must have been an important branch of law amid a community perpetually belligerent like the ancient Irish. But in fact a great part of law is incidentally discussed in the Senchus Mor under the head of Distress, and it must on the whole be admitted that neither in that nor in any other Irish law-book is there any clear sign of designed classification. All we can say with confidence is—and this is an important proposition—that the Irish Brehon lawyers regarded the mode of bringing of a defendant into Court as the legal topic which rightfully and naturally took precedence of all others.

It appears to me that the key to these mysteries may be found in those Hindu law-books which have been more or less known to us under the extremely inappropriate name of Codes. One of them has been long accessible to English students through the translation of Sir William Jones, and this so-called Code of Manu is believed by orthodox Hindus to be the very collection of ‘sacred laws’ which Manu, ‘whose powers were measureless,’ declared to the ‘divine sages’ who approached him as he ‘sat reclined with his attention fixed on one object.’ But the sacred laws thus promulgated in no way answer to the modern conception of a Code. They are contained in a book which, among other things, is a treatise on the seen and unseen worlds, on the art of government, and on the various classes of Hindu society. Similarly the Christian Brehon laws are found mixed up with discussions on cosmogony and logic; and the Roman Twelve Tables clearly consisted in some parts of ritual. The Code of Manu would in fact by itself suggest that Law, as a subject of conscious reflection, is the result of a gradual evolution. It was not at first dissociated from all sorts of propositions on matters which affect life in this world or the next. The Sanscritists of our day, as I have explained in the earlier chapters of this work, are not at all inclined  to concede to the later Hindu law-books that vast antiquity which was once claimed for them. Following a theory of Professor Max Müller, they trace the rhythmical texts of the so-called Codes to collections of maxims expressed in language so concise as to fasten themselves on the memory, and finally to their fountain-head in the oldest literature of the Aryan race. But the law-books once framed appear to have undergone a further specialisation. Ritual, of which there are plain traces in the Roman Twelve Tables, has a compendium of rules entirely appropriated to itself in that remarkable record of another Italian community, the Eugubine Tables, which till the other day no man could read; and in the book of Narada, now open to the English reader, he will find a version of the ‘sacred laws’ of Manu in which Law proper has been isolated from other subjects, and is regarded very much in the same light in which it would be viewed by the author of a modern Code.

In the mediæval Digests of Hindu law, which are the actual sources of the law now administered in India, Narada is sometimes quoted as of almost equal authority with Manu. In point of fact, both Manu and Narada are entirely mythical, and the books called after their names are nothing more than compendia of the teaching of particular Hindu law-schools formed more or less on the model of a gens or clan. Both these law-books pretend to an origin in  the sacred laws declared by that Manu who took part in the creation of the world; but the author of the extant book, which purports to contain the whole teaching of Manu, quotes ‘Manu’ as a personage distinct from himself; and the preface to the book of Narada describes at length the process by which a supposed original Code of Manu was gradually specialised until it became, at last, a treatise on civil law. Manu, says the writer, composed a work which, among other things, told of the creation of the world, spoke of the classification of beings in it, and gave the enumeration of the countries assigned to them, and it contained 100,000 slokas, legal texts or verses. Manu delivered it to Narada, who made the very reasonable remark, ‘This book cannot be easily studied by human beings on account of its length.’ He accordingly abridged it to 12,000 verses, and his disciple, Sumati, further abridged it to 4,000. It is only the gods, says the introduction, who read the original Code. Men read the second abridgment since human capacity has been brought to this through the lessening of life.

The chief interest of the book of Narada, which has recently been translated into English by Dr. Julius Jölly, of Wurzburg, is that its writer is much more of a pure lawyer than the writer of Manu, and his work is much more nearly a work on law. Both of them were certainly Brahmans. The writer of Manu is intensely sacerdotal, and like earlier authorities, still contemplates the civil and earthly sanction as a supplement and aid to the spiritual penalty. On the other hand, the author of Narada depends almost wholly on the civil sanction, and his religious character shows itself chiefly in earnest and often very impressive exhortations to observance of the law and of the moral duties implicated with legal obligations. For my present purpose, however, I have only to point out that these Brahmanical code-makers, differing sensibly in some respects from one another, and each probably reflecting the doctrine of some venerated school, agree essentially in their conception of the order and contents of a Code. The classification of subjects which they follow may be seen by examining the eighth chapter of the Code of Manu in Sir William Jones’s translation, and it is observed throughout the law-book of Narada. I will describe it from the last, since it is plainer in the more purely legal treatise. The following account of it will be found at page 6 of Dr. Jölly’s version in slokas 16 to 20:—

‘The eight constituent parts of a legal proceeding are the King, his Officer, the Assessors, the Law-book, the Accountant and Scribe, gold and fire for Ordeals, and water for refreshment.

‘Recovery of a Debt, Deposits, Concerns among Partners, Abstraction of Gift, Breach of promised  Obedience, Non-payment of Wages, Sale without Ownership, Non-delivery of a Commodity sold, Rescission of Purchase, Breach of Order, Contests about Boundaries, the Duties of Man and Wife, the Law of Inheritance, Violence, Abuse and Assault, Gambling, Miscellaneous Disputes.

‘These are the Eighteen Heads of Dispute.’

This distribution of subjects is, on the whole, rigorously observed throughout the treatise, except apparently in one particular. The mechanism of a Court of Justice and its procedure are first elaborately described. The King seats himself on the throne with the book of the law in his hands; but, though the justice described is throughout royal justice, the King is significantly directed to follow the opinion of his Chief Judge or Assessor. After a full account of judicature, the writer (subject to a remark which I will make presently) takes up the subject of Evidence, which, in his view, includes Ordeals; and then, having started with a summary of what we who live in the light of Bentham should call Adjective Law, he proceeds to divide the Substantive Law into eighteen branches, which he calls ‘heads of dispute.’ The order in which he discusses these is that in which he placed them in the passage which I quoted; with this exception, that the first head of dispute, Recovery of a Debt, is interpolated between Judicature and Evidence. This may be the result of a mere accidental disarrangement of the oldest compendia of Hindu law, but it is to be remarked that something like the same misplacing of ‘recovery of debts’ shows itself in the treatise of Manu, and it is conceivable that it may have been caused by the inherent difficulty of explaining adjective law without reference to substantive law, and that one ‘head of dispute’ may have been taken out of its place with the view of furnishing illustrations to the text-writer.

The principle and meaning of this ancient classification strike me as obvious. The compiler of Narada or his original makes the assumption that men do quarrel, and he sets forth the mode in which their quarrels may be adjudicated upon and settled without bloodshed or violence. The dominant notion present to his mind is not a Law, or a Right, or a Sanction, or the distinction between Positive and Natural Law, or between Persons and Things, but a Court of Justice. The great fact is that there now exists an alternative to private reprisals, a mode of stanching personal or hereditary blood-feuds other than slaughter or plunder. Hence in front of everything he places the description of a Court, of its mechanism, of its procedure, of its tests of alleged facts. Having thus begun with an account of the great institution which settles quarrels, he is led to distribute law according to the subject-matter of quarrels, according to the relations between human beings which do, as a fact, give rise to civil disputes. Thus Debt, Partnership, the Marital Relation, Inheritance, and Donation are considered as matters about which men at a certain point of civilisation do, as a fact, have differences, and the various rights and liabilities (as we should call them) to which they give rise, are set forth simply as guides towards determining the judgment which a Court of Justice should give when called upon to adjudicate on quarrels.

It appears to me that this explanation covers the whole of the problem suggested by the classification of subjects in the primitive Codes which I cited. They all seem to begin with Judicature, and to distribute substantive law into ‘heads of dispute.’ The Irish law never, indeed, gets farther than the initial steps of procedure. All the learning and ingenuity of the contributing Brehon lawyers are bestowed on defining the rules by which adversaries may be brought under the control of the institution, which the Roman and Hindu Codes assume to have been long since in existence and long since in active and regular operation. The testimony, however, to the early overshadowing importance of Judicature is all the more striking. As we have seen, the Roman, Frankish, and Hindu Codes also divide the subjects of the quarrels which are the materials for litigation into several branches; and, as to the order in which these ‘heads of dispute’ are taken up, it seems to me [383] that it depends on their relative importance at the time when that order was fixed. I do not at all doubt that the arrangement is in a certain degree at haphazard, but it seems to me that there must have been a meaning in the prominence given to Deposits in the Roman and Hindu law, and in the prominence assigned to Thefts in the law both of the Romans and of the Salian Franks. At the reasons of the special importance of Deposits we can only guess, but I have already stated my opinion that the importance of Thefts belongs to a particular stage of economical and social advance. We can see the signs in Roman law of their dwindling importance, which is exactly what we should expect from the growth of population, from the rising value of land, from the greater plentifulness of capital, and from the freer multiplication of movable articles of use or luxury, and from their consequent relative cheapness. It is curious that, though Theft is not a specific Head of Dispute in the book of Narada, casual allusions to Thefts occur during the discussion of Deposits, possibly derived from an older state of the law.

The suggestion, then, which I offer is that the authority of the Court of Justice overshadowed all other ideas and considerations in the minds of these early code-makers, belonging to societies of the Aryan race so remote from one another and so unlike to one another. The evidence of this position does not [384] solely arise from the probabilities or depend on inference from the construction of the ancient legal compendia. There is a whole literature, the Icelandic, which gives the most vivid impression of the power and majesty of Courts of Justice in an ancient society. It may almost be said that in the Iceland revealed to us by the labour and learning of Konrad Maurer there is no institution worth speaking of except the Court; all society is moulded round it and all ideas centre in it. It affects all literature, both poetry and prose. It is manifestly in the most intimate relation to every passage, incident, affection, and passion of life. And as the society depicted is in the highest degree bloody and violent, so long as it follows its natural bent, it becomes clear that it is not the Court as we understand it, but the Court standing before all men’s sight as the alternative to forcible reprisals, and as the avenger of their victim, which has attained to this commanding altitude. We need not, moreover, go to historical records for the proof that this is a natural condition of men’s minds. The phenomena can be reproduced, and are in fact not uncommonly reproduced in the country which has only lately emerged from the anarchy into which it fell long after the laws of Manu and Narada had ceased to be administered in it by tribunals which they describe. When a province hitherto specially ill-governed is annexed to British India, the first effect ordinarily is neither satisfaction nor discontent, neither the peaceable continuance of old usages nor the sudden adoption of new, but an extraordinary influx of litigation into the British Courts, which are always at once established. The fact occurs too uniformly, and at first sight is too inexplicable, not to have attracted notice, but it has generally been observed upon with regret, and, after a while, when there has been time to forget the original condition of the annexed territory, this new litigiousness is sometimes adduced to show that in exchanging native for British rule a community does not obtain an unmixed blessing. But the proper conclusion to draw is that already drawn in this paper, that Courts of Justice have an immense ascendency over men’s minds and a singular attraction for their tastes, when they are first presented as a means of settling disputes which were either violently adjusted or slumbered because they could only be settled at prodigious risk.

Another phase in the history of Courts of Justice is instructively illustrated in the more settled parts of British India. The commands of the British Indian Government and of the British Indian legislature are far more implicitly obeyed than the commands of any previously existing authority in India, far more implicitly than the orders of the most powerful Mogul Emperors. The law is obeyed in India as uniformly as in England, but then it is much more  consciously obeyed. At present (and for a long while to come it will probably be so) the fact of the existence of Courts of Justice regularly enforcing the law is constantly before the minds of the natives of India subject to their jurisdiction to a degree which we in this country can scarcely conceive. The law and the Court have an importance which may be measured by a circumstance related to me on good authority, that in many parts of India youths learn the texts of the Penal and Procedure Codes in daily lessons, as did the young Romans of Cicero’s day the cantilena of the Twelve Tables. But with us, I need scarcely say, there is little conscious observance of legal rules. The law has so formed our habits and ideas that Courts of Justice are rarely needed to compel obedience to it, and thus they have apparently fallen into the background. It is only when the law happens to be uncertain, or when facts with which we are concerned happen to get unusually entangled, that most of us, who are not lawyers, ever come into contact with the administration of the law. No doubt the force which arms the law is still there; but it lies in reserve, in (so to speak) a compact and concentrated form, which enables it to keep out of sight. On the whole the effect of peace and civilisation is to diminish the conscious reverence of mankind for Courts of Justice, and the abiding sense of their importance.

We may believe that the impressiveness of the early Courts of Justice was in part created by what to a modern eye were their infirmities. It would seem that by their side the very practices long survived which it was their object to suppress. The tenderness of early judicial procedure to immemorial barbarism is shown by its partial recognition of the remedy which we call Distraint and the Germans ‘self-help,’ the remedy of private reprisals on the property of an adversary; and there is much significant evidence that the early tribunals had no power of directly enforcing their own decrees. The man who disobeyed the order of Court went out of the law; his kinsmen ceased to be responsible for his acts, and the kinsmen of those who injured him became also irresponsible; and thus he carried his life in his hand. We cannot then doubt that the violence and bloodshed which the law licensed under certain circumstances were generally rife during the infancy of Courts of Justice, and that their earliest service to mankind was to furnish an alternative to savagery, not to suppress it wholly. Their value and beneficence were therefore probably all the more conspicuous while as yet their power was imperfect and their operation irregular. But gradually, as the sovereign power of the State developed itself, and was more and more placed at the disposal of the tribunals, their decrees became inflexibly effectual. Obedience to them came to be unhesitating and implicit, and a mass of habits and ideas were formed of which the centre and pivot is unquestioning observance of law. This formation of law-abiding habits, and the consequent banishment of the penal sanctions of law into the background, are the secret of many transformations of juridical theory. We have seen that the ‘legal order’ of the Roman Twelve Tables, testifying to the primitive importance of procedure, survived long after it had lost its meaning; but in the Roman State, always relatively well ordered and in the end the type of order and peace, the force which is the motive-power of law early retreated into the distance. The classification of the Roman Institutes, assigning the Law of Actions not to the first place but to the third and last, is one testimony to the formation of a habit of obedience to the law so confirmed as to be unconscious; but another and more striking piece of evidence is the rise of the conception of the Law of Nature, which is in truth law divorced from its penal sanctions. The retreat out of sight, if I may so speak, of the force which is the motive-power of law, has been even more complete in the modern than in the Roman world; partly because the decrees of Courts of Justice are everywhere inexorable, but also doubtless from the long ascendency of theories directly or indirectly descended from the Roman Jus Naturale. The great difficulty of the [389] modern Analytical Jurists, Bentham and Austin, has been to recover from its hiding-place the force which gives its sanction to law. They had to show that it had not disappeared and could not disappear; but that it was only latent because it had been transformed into law-abiding habit. Even now their assertion, that it is everywhere present where there are Courts of Justice administering law, has to many the idea of a paradox—which it loses, I think, when their analysis is aided by history.

The primary distinction between the early and rude, and the modern and refined, classifications of legal rules, is that the Rules relating to Actions, to pleading and procedure, fall into a subordinate place and become, as Bentham called them, Adjective Law. So far as this the Roman Institutional writers had advanced, since they put the Law of Actions into the third and last compartment of their system. Nobody should know better than an Englishman that this is not an arrangement which easily and spontaneously suggests itself to the mind. So great is the ascendency of the Law of Actions in the infancy of Courts of Justice, that substantive law has at first the look of being gradually secreted in the interstices of procedure; and the early lawyer can only see the law through the envelope of its technical forms. It would even seem that civilised societies experience reversions towards this condition of thought. There are men [390] still alive who recollect that the tendency towards active law-reform which was part of the great movement associated with the Reform Act of 1832, first showed itself in an energetic resuscitation of strictness in pleading, so that for many years the practical questions at issue were altogether thrown into obscurity by questions of the proper mode of stating them to the Courts. It was the very state of things which existed when the ancient Hundred Courts of the Germans were administering the rude Salic law. The effects of the ‘New Rules of Pleading’ wore away very slowly, and it was only the other day that the Judicature Acts, of which the full influence has not yet been felt, placed the Procedure of Courts of Justice on the footing which would naturally be given to it by a society which regards it only as Adjective Law.

The most modern classifiers, again, distribute law not with reference to the distinction between Persons and Things, but with reference to the differences between kinds of Rights. I stated before that the clear conception of a legal right is not ancient, or even Roman, but that it belongs distinctively to the modern world. Doubtless, before it can be realised, the sense of a Court of Justice as ever active, and as dominating the whole field of law, must have somewhat decayed. As regards one great class of Rights, those arising out of Contract and Delict, the Romans unquestionably [391] mixed together the notions of legal Right and legal Duty. They considered the parties as bound together by a vinculum juris, a bond or chain of law, and ‘Obligation,’ which is the name for this chain, signified rights as well as duties; the right, for example, to have a debt paid as well as the duty of paying it. As I have said elsewhere, ‘the Romans kept, in fact, the entire picture of the “legal chain” before their eyes, and regarded one end of it no more and no less than the other.’ But it was the Court of Justice which had welded this chain, and the explanation of this and other blended ideas which we can detect in Roman legal phraseology is, I presume, that the dominancy of the Court of Justice over all legal notions still continued to influence the Roman view of law. Although, however, the authors of the Roman Institutional manuals did not invent, and could not have invented, arrangements of law based on classification of Rights, they did, as we have seen, attain to the conception of law as something distinct from Procedure, and they did conceive it as distributable into the Law of Persons and the Law of Things. The exact relation of these two departments to one another has been keenly disputed by modern writers, and it cannot be conveniently considered here; but anybody who can bring home to himself the ancient ideas of law on which I have sought to throw light may, perhaps, convince himself that the conception of a Law of Things, at all events, was a great achievement in mental abstraction; and that it must have been a man of legal genius who first discerned that Law might be thought of and set forth apart from the Courts of Justice which administered it on the one hand, and apart from the classes of persons to whom they administered it on the other.

Source: Sir Henry Sumner Maine, Dissertations on Early Law and Custom [1883]

Categories: Jurisprudence

Tagged as: ,