第2章

I do not say that there is not a wider point of view from which the distinction between law and morals becomes of secondary or no importance, as all mathematical distinctions vanish in presence of the infinite.But I do say that that distinction is of the first importance for the object which we are here to consider--a right study and mastery of the law as a business with well understood limits, a body of dogma enclosed within definite lines.I have just shown the practical reason for saying so.If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.The theoretical importance of the distinction is no less, if you would reason on your subject aright.

The law is full of phraseology drawn from morals, and by the mere force of language continually invites us to pass from one domain to the other without perceiving it, as we are sure to do unless we have the boundary constantly before our minds.The law talks about rights, and duties, and malice, and intent, and negligence, and so forth, and nothing is easier, or, I may say, more common in legal reasoning, than to take these words in their moral sense, at some state of the argument, and so to drop into fallacy.For instance, when we speak of the rights of man in a moral sense, we mean to mark the limits of interference with individual freedom which we think are prescribed by conscience, or by our ideal, however reached.Yet it is certain that many laws have been enforced in the past, and it is likely that some are enforced now, which are condemned by the most enlightened opinion of the time, or which at all events pass the limit of interference, as many consciences would draw it.Manifestly, therefore, nothing but confusion of thought can result from assuming that the rights of man in a moral sense are equally rights in the sense of the Constitution and the law.No doubt simple and extreme cases can be put of imaginable laws which the statute-making power would not dare to enact, even in the absence of written constitutional prohibitions, because the community would rise in rebellion and fight; and this gives some plausibility to the proposition that the law, if not a part of morality, is limited by it.But this limit of power is not coextensive with any system of morals.For the most part it falls far within the lines of any such system, and in some cases may extend beyond them, for reasons drawn from the habits of a particular people at a particular time.I once heard the late Professor Agassiz say that a German population would rise if you added two cents to the price of a glass of beer.A statute in such a case would be empty words, not because it was wrong, but because it could not be enforced.No one will deny that wrong statutes can be and are enforced, and we would not all agree as to which were the wrong ones.

The confusion with which I am dealing besets confessedly legal conceptions.Take the fundamental question, What constitutes the law?

You will find some text writers telling you that it is something different from what is decided by the courts of Massachusetts or England, that it is a system of reason, that it is a deduction from principles of ethics or admitted axioms or what not, which may or may not coincide with the decisions.But if we take the view of our friend the bad man we shall find that he does not care two straws for the axioms or deductions, but that he does want to know what the Massachusetts or English courts are likely to do in fact.I am much of this mind.The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.

Take again a notion which as popularly understood is the widest conception which the law contains--the notion of legal duty, to which already I have referred.We fill the word with all the content which we draw from morals.But what does it mean to a bad man? Mainly, and in the first place, a prophecy that if he does certain things he will be subjected to disagreeable consequences by way of imprisonment or compulsory payment of money.But from his point of view, what is the difference between being fined and taxed a certain sum for doing a certain thing? That his point of view is the test of legal principles is proven by the many discussions which have arisen in the courts on the very question whether a given statutory liability is a penalty or a tax.

On the answer to this question depends the decision whether conduct is legally wrong or right, and also whether a man is under compulsion or free.Leaving the criminal law on one side, what is the difference between the liability under the mill acts or statutes authorizing a taking by eminent domain and the liability for what we call a wrongful conversion of property where restoration is out of the question.In both cases the party taking another man's property has to pay its fair value as assessed by a jury, and no more.What significance is there in calling one taking right and another wrong from the point of view of the law? It does not matter, so far as the given consequence, the compulsory payment, is concerned, whether the act to which it is attached is described in terms of praise or in terms of blame, or whether the law purports to prohibit it or to allow it.If it matters at all, still speaking from the bad man's point of view, it must be because in one case and not in the other some further disadvantages, or at least some further consequences, are attached to the act by law.The only other disadvantages thus attached to it which I ever have been able to think of are to be found in two somewhat insignificant legal doctrines, both of which might be abolished without much disturbance.