An Essay on Professional Ethics: Second EditionSharswood, George
Philosophy
An Essay on Professional Ethics: Second Edition
Sharswood, George
Legal ethics -- United States
There can be no merely arbitrary laws. It is necessary to bear in mind
that we are now considering the province of the legislator, who ought to
enact no law without an end. "Civil legislative power," says Rutherforth
(B. II, c. vi, s. 10), "is not in the strict sense of the word an
absolute power of restraining or altering the rights of the subjects: it
is limited in its own nature to its proper objects, to those rights only
in which the common good of the society or of its several parts requires
some restraint or alteration. So that whenever we call the civil
legislative power, either of society in general or of a particular
legislative body within any society, an absolute legislative power, we
can only mean that it has no external check upon it in fact; for all
civil legislative power is in its own nature under an internal check of
right: it is a power of restraining or altering the rights of the
subjects for the purpose of advancing or securing the general good, and
not of restraining or altering them for any purpose whatever, and much
less for no purpose at all." There are, therefore, no arbitrary laws
which fulfil the end of law. Doubtless the true objects of society and
government may be mistaken by him who sets up to be law-maker, or if
those objects are properly appreciated, the means for advancing them may
be mistaken. It is not wonderful that in a matter which demands the
highest wisdom, many should try and fail.
It becomes important to inquire what are the true ends of society and
government? Man is a gregarious animal--a social being. He may exist in
solitude, but he cannot enjoy life: he cannot perfect his nature. Those
who have watched and studied closely the habits of those irrational
animals, who live in communities, as the ant, the bee, and the beaver,
have observed not only a settled system and subordination, but the
existence of some wonderful faculty, like articulate speech, by which
communication takes place from one to another; a power essential to
order. Man, the highest social animal in the scale of earthly being,
has also the noblest faculty of communication.
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