Notwithstanding the fact that the grounds of legal liability are
moral to the extent above explained, it must be borne in mind
that law only works within the sphere of the senses. If the
external phenomena, the manifest acts and omissions, are such as
it requires, it is wholly indifferent to the internal phenomena
of conscience. A man may have as bad a heart as he chooses, if
his conduct is within the rules. In other words, the standards of
the law are external standards, and, however much it may take
moral considerations into account, it does so only for the
purpose of drawing a line between such bodily motions and rests
as it permits, and such as it does not. What the law really
forbids, and the only thing it forbids, is the act on the wrong
side of the line, be that act blameworthy or otherwise.
Again, any legal standard must, in theory, be one which would
apply to all men, not specially excepted, under the same
circumstances. It is not intended that the public force should
fall upon an individual accidentally, or at the whim of any body
of men. The standard, that is, [111] must be fixed. In practice,
no doubt, one man may have to pay and another may escape,
according to the different feelings of different juries. But this
merely shows that the law does not perfectly accomplish its ends.
The theory or intention of the law is not that the feeling of
approbation or blame which a particular twelve may entertain
should be the criterion. They are supposed to leave their
idiosyncrasies on one side, and to represent the feeling of the
community. The ideal average prudent man, whose equivalent the
jury is taken to be in many cases, and whose culpability or
innocence is the supposed test, is a constant, and his conduct
under given circumstances is theoretically always the same.
Finally, any legal standard must, in theory, be capable of being
known. When a man has to pay damages, he is supposed to have
broken the law, and he is further supposed to have known what the
law was.
Public-domain text, read in full here on John Shaqi.
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