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jurisprudence:necessity-and-origin-administration-of-justice [2021/06/22 00:11]
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 +====== Necessity and Origin of the Administration of Justice ======
 +“ A herd of wolves,”  it has been said, “ is quieter and more at one than so many men, unless they all had one reason in them, or have one power over them.” Unfortunately they have not one reason in them, each being moved by his own interests and passions; therefore the other alternative is the sole resource. For the cynical emphasis with which he insists upon this truth, the name and reputation of the philosopher Hobbes have suffered much. Yet his doctrine, however hyperbolically expressed, is true in substance. Man is by nature a fighting animal, and force is the //ultima ratio//, not of kings alone, but of all mankind. Without ” a common power to keep them all in awe,” it is impossible for men to cohere in any but the most primitive forms of society. Without it, civilisation is unattainable, injustice is unchecked and triumphant, and the life of man is, as the author of Leviathan tells us, “ solitary, poor, nasty, brutish, and short. ”  However orderly a society may be, and to whatever extent men may appear to obey the law of reason rather than that of force, and to be bound together by the bonds of sympathy rather than by those of physical constraint, the element of force is none the less present and operative. 
  
 +It has become partly or wholly latent, but it still exists. A society in which the power of the state is never called into actual exercise marks, not the disappearance of governmental control, but the final triumph and supremacy of it. It has been thought and said by men of optimistic temper, that force as an instrument for the coercion of mankind is merely a temporary and provisional incident in the development of a perfect civilisation. We may well believe, indeed, that with the progress of civilisation we shall see the gradual cessation of the actual exercise of force, whether by way of the [[jurisprudence:administration-of-justice|administration of justice]] or by way of war. To a large extent already, in all orderly societies, this element in the administration of justice has become merely latent, it is now for the most part sufficient for the state to declare the rights and duties of its subjects, without going beyond declaration to enforcement. In like manner the future may see a similar destiny overtake that international litigation which now so often proceeds to the extremity of war. The overwhelming power of the state, or of the international society of states, may be such as to render its mere existence a sufficient substitute for its exercise But this, as already said, would be the perfection, not the disappearance, of the rule of force. The administration of justice by the state must be regarded as a permanent and essential element of civilisation, and as a device that admits of no substitute. Men being what they are, their conflicting interests, real or apparent, draw them in diverse ways; and their passions prompt them to the maintenance of these interests by all methods possible, notably by that method of private force to which the public force is the only adequate reply. 
 +
 +The constraint of public opinion is a valuable and, indeed, indispensable supplement to that of law, but an entirely insufficient substitute for it. The relation between these two is one of mutual dependence. If the administration of justice requires for its efficiency the support of a healthy national conscience, that conscience is in its turn equally dependent the protection of the law and the public force. A coercive system based on public opinion alone, no less than one based on force alone, contains within itself elements of weakness that would be speedily fatal to efficiency and permanence. The influence of the public censure is least felt by those who need it most. The law of force is appointed, as all law should be, not for the just but for the unjust; while the law of opinion is set rather for the former than for the latter, and may be defied with a large measure of impunity by determined evildoers. The rewards of successful iniquity are upon occasion very great, so much so that any law which would prevail against it, must have sterner sanctions at its back than any known to the public censure. It is also to be observed that the influence of the national conscience, unsupported by that of the national force, would be counteracted in any but the smallest and most homogeneous societies by the internal growth of smaller societies or associations possessing separate interests and separate antagonistic consciences of their own. It is certain that a man cares more for the opinion of his friends and immediate associates, than for that of all the world besides. The censure of ten thousand may be outweighed by the approval of ten. The honour of thieves finds its sanction and support in a law of professional opinion, which is opposed to, and prevails over, that of national opinion. The social sanction, therefore, is an efficient instrument only so far as it is associated with, and supplemented by, the concentrated and irresistible force of the incorporate community. Men being what they are; each keen to see his own interest and passionate to follow it; society can exist only under the shelter of the state, and the law and justice of the state is a permanent and necessary condition of peace, order, and civilisation.
 +
 +===== Origin of the Administration of Justice =====
 +The administration of justice is the modern and civilised substitute for the primitive practices of private vengeance and violent self-help. In the beginning a man redressed his wrongs and avenged himself upon his enemies by his own hand, aided, if need be, by the hands of his friends and kinsmen; but at the present day he is defended by the sword of the state. For the expression of this and other elements involved in the establishment of political government, we may make use of the contrast, familiar to the philosophy of the seventeenth and eighteenth centuries, between the civil state and the state of nature. This state of nature is now commonly rejected as one of the fictions which flourished in the era of the social contract, but such treatment is needlessly severe. The term certainly became associated with much false or exaggerated doctrine touching the golden age, on the one hand, and the //bellum omnium contra omnes// of Hobbes, on the other, but in itself it nevertheless affords a convenient mode for the expression of an undoubted truth. As long as there have been men, there has probably been some form of human society. The state of nature, therefore, is not the absence of society, but the absence of a society so organised on the basis of physical force, as to constitute a state. Though human society is coeval with mankind, the rise of political society, properly so called, is an event in human history.
 +
 +One of the most important elements, then, in the transition from the natural to the civil state is the substitution of, the force of the incorporate community for the force of individuals, as the instrument of the redress and punishment of injuries. Private vengeance is transmuted into the administration of criminal justice, while civil justice takes the place of violent self-help As Locke says, in the state of nature the law of nature is alone in force, and every man is in his own case charged with the execution of it. In the civil state, on the other hand, the law of nature is supplemented by the [[jurisprudence:term-law|civil law]], and the maintenance of the latter by the force of the organised community renders unnecessary and impermissible the maintenance of the former by the forces of private men. The evils of the earlier system were too great and obvious to escape recognition even in the most primitive communities. Every man was constituted by it a judge in his own cause, and might was made the sole measure of right. Nevertheless the substitution was effected only with difficulty and by slow degrees. The turbulent spirits of early society did not readily abandon the liberty of fighting out their quarrels, or submit with good grace to the arbitrament of the tribunals of the state. There is much evidence that the administration of justice was in the earlier stages of its development merely a choice of peaceable arbitration, offered for the voluntary acceptance of the parties, rather than a compulsory substitute for self-help and private war. Only later, with the gradual growth of the power of government, did the state venture to suppress with the strong hand the ancient and barbarous system, and to lay down the peremptory principle that all quarrels shall be brought for settlement to the courts of law.
 +
 +All early codes show us traces of the hesitating and gradual method in which the voice and force of the state became the exclusive instruments of the declaration and enforcement of justice. Trial by battle, which endured in the law of England until the beginning of the nineteenth century, is doubtless a relic of the days when fighting was the approved method of settling a dispute, and the right and power of the state went merely to the regulation, not to the suppression, of this right and duty of every man to help and guard himself by his own hand. In later theory, indeed, this mode of trial was classed with the ordeal as //judicium Dei//; the judgment of Heaven as to the merits of the case, made manifest by the victory of the right. But this explanation was an afterthought; it was applied to public war, as the litigation of nations, no less than to the judicial duel, and it is not the root of either practice. Among the laws of the Saxon kings we find no absolute prohibition of private vengeance, but merely its regulation and restriction. In due measure and in fitting manner it was the right of every man to do for himself that which in modem times is done for him by the state. As royal justice grows in strength, however, the law begins to speak in another tone, and we see the establishment of the modern theory of the exclusive administration of justice by the tribunals of the state.

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