This is not the time to work out a theory in detail, or to answer many
obvious doubts and questions which are suggested by these general views.
I know of none which are not easy to answer, but what I am trying to do
now is only by a series of hints to throw some light on the narrow path
of legal doctrine, and upon two pitfalls which, as it seems to me, lie
perilously near to it. Of the first of these I have said enough. I hope
that my illustrations have shown the danger, both to speculation and
to practice, of confounding morality with law, and the trap which legal
language lays for us on that side of our way. For my own part, I often
doubt whether it would not be a gain if every word of moral significance
could be banished from the law altogether, and other words adopted which
should convey legal ideas uncolored by anything outside the law. We
should lose the fossil records of a good deal of history and the
majesty got from ethical associations, but by ridding ourselves of an
unnecessary confusion we should gain very much in the clearness of our
thought.
So much for the limits of the law. The next thing which I wish to
consider is what are the forces which determine its content and its
growth. You may assume, with Hobbes and Bentham and Austin, that all
law emanates from the sovereign, even when the first human beings to
enunciate it are the judges, or you may think that law is the voice of
the Zeitgeist, or what you like. It is all one to my present purpose.
Even if every decision required the sanction of an emperor with despotic
power and a whimsical turn of mind, we should be interested none the
less, still with a view to prediction, in discovering some order, some
rational explanation, and some principle of growth for the rules which
he laid down. In every system there are such explanations and principles
to be found. It is with regard to them that a second fallacy comes in,
which I think it important to expose.
Public-domain text, read in full here on John Shaqi.
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