We have defined the law as consisting of the rules in accordance with which justice is administered by the judicial tribunals of the state. In a previous note we adverted to and partially considered a different doctrine which has received widespread acceptance, and which may be termed the imperative or purely imperative theory of law. According to this theory the civil law is essentially and throughout its whole compass nothing more than a particular variety of imperative law, and consists of the general commands issued by the state to its subjects and enforced through the agency of courts of law by the sanction of physical force. It is now necessary to consider this theory more fully.
We have already seen that it contains an important element of truth. It rightly recognises the essential fact that civil law is the product of the state and depends for its existence on the physical force of the state exercised through the agency of judicial tribunals. Where there is no state which governs a community by the use of physical force, there can be no such thing as civil law. It is only if and so far as any rules are recognised by the state in the exercise of this function that these rules possess the essential nature of civil law.
This being so, there is no weight to be attributed to what may be termed the historical argument against the imperative theory of law. This argument may be formulated as follows. Although the definition of law as the command of the state is plausible, and is at first sight sufficient, as applied to the developed political societies of modern times, it is inapplicable to more primitive communities. Early law is not the command of the state; it has its source in custom, religion, ' or public opinion, and not in any authority vested in a political superior. It is not until a comparatively late stage of social evolution that law assumes its modern form and is recognised as a product of supreme power governing a body politic. Law is prior to, and independent of, political authority and enforcement. It is enforced by the state because it is already law, and not vice versa.
To this argument the advocates of the imperative theory can give a valid reply. If there are any rules prior to, and independent of the state, they may greatly resemble law; they may be the primeval substitutes for law; they may be the historical source from which law is developed and proceeds; but they are not themselves law. There may have been a time in the far past when a man was not distinguishable from the anthropoid ape, but that is no reason for now defining a man in such manner as to include an ape. To trace two different things to a common origin in the beginnings of their historical evolution is not to disprove the existence or the importance of an essential difference between them as they now stand. This is to confuse all boundary lines, to substitute the history of the past for the logic of the present, and to render all distinction and definition vain. The historical point of view is valuable as a supplement to the logical and analytical, but not as a substitute for it. It must be borne in mind that in the beginning the whole earth was without form and void, and that science is concerned not with chaos but with cosmos.
The plausibility of the historical argument proceeds from the failure adequately to comprehend the distinction, hereafter to be noticed by us, between the formal and the material sources of law. Its formal source is that from which it obtains the nature and force of law. This is essentially and exclusively the power and will of the state. Its material sources, on the other band, are those from which it derives its material contents. Custom and religion may be the material sources of a legal system no less than that express declaration of new legal principles by the state which we term legislation. In early times, indeed, legislation may be unknown. No rule of law may as yet have been formulated in any declaration of the state. It may not yet have occurred to any man that such a process as legislation is possible, and no ruler may ever yet have made a law. Custom and religion may be all-powerful and exclusive. Nevertheless if any rule of conduct has already put on the true nature, form, and essence of the civil law, it is because it has already at its back the power of the organise commonwealth for the maintenance and enforcement of it.
Yet, although the imperative theory contains this element of the truth, it is not the whole truth. It is one-sided and inadequate; the product of an incomplete analysis of juridical conceptions. In the first place it is defective inasmuch as it disregards that ethical element which is an essential constituent of the complete conception. As to any special relation between law and justice, this theory is silent and ignorant. It eliminates from the implication of the term law all elements save that of force. This is an illegitimate simplification, for the complete idea contains at least one other element which is equally essential and permanent. This is, right or justice If rules of law are from one point of view commands issued by the state to its subjects, from another standpoint they appear as the principles of right and wrong so far as recognised and enforced by the state in the exercise of its essential function of administering justice. Law is not right alone, or might alone, but the perfect union of the two. It is justice speaking to men by the voice of the state. The established law, indeed, may be far from corresponding accurately with the true rule or right, nor is its legal validity in any way affected by any such imperfection. Nevertheless in idea law and justice are coincident. It is for the expression and realisation of justice that the law has been created, and, like every other work of men's hands, it must be defined by reference to its end and purpose. A purely imperative theory, therefore, is as one-sided as a purely ethical or non-imperative theory would be. It mistakes a part of the connotation of the term defined for the whole of it.
We should be sufficiently reminded of this ethical element by the usages of popular speech. The terms law and justice are familiar associates Courts of law are also courts of justice, and the administration of justice is also the enforcement of law. Right, wrong, and duty are leading terms of law, as well as of morals. If we turn from our own to foreign languages, we find that law and right are usually called by the very same name. Jus, droit, Recht, dirtto, have all a double meaning, they are all ethical, as well as juridical; they all include the rules of justice, as well as those of law. Are these facts, then, of no significance? Are we to look on them as nothing more than accidental and meaningless coincidences of speech? It is this that the advocates of the theory in question would have us believe. We may, on the contrary, assume with confidence that these relations between the names of things are but the outward manifestation of very real and intimate relations between the things named. A theory which regards the law as the command of the state and nothing more, and which entirely ignores the aspect of law as a public declaration of the principles of justice, would lose all its plausibility if expressed in a language in which the term for law signifies justice also.
Even if we incorporate the missing ethical element in the definition, even if we define the law as the sum of the principles of justice recognised and enforced by the state, even if we say with Blackstone that law is “a rule of civil conduct, prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong,” we shall not reach the whole truth. For although the idea of command or enforcement is an essential implication of the law, in the sense that there can be no law where there is no coercive administration of justice by the state, it is not true that every legal principle assumes, or can be made to assume, the form of a command. Although the imperative rules of right and wrong, as recognised by the state, constitute a part, and, indeed, the most important part, of the law, they do not constitute the whole of it. The law includes the whole of the principles accepted and applied in the administration of justice, whether they are imperative principles or not. The only legal rules which conform to the imperative definition are those which create legal obligations, and no legal system consists exclusively of rules of this description. All well developed bodies of law contain innumerable principles which have some other purpose and content than this, and so fall outside the scope of the imperative definition. These non-imperative legal principles are of various kinds. There are, for example, permissive rules of law; namely, those which declare certain acts not to be obligatory or not to be wrongful; a rule, for instance, declaring that witchcraft or heresy is no crime, or that damage done by competition in trade is no cause of action. It cannot be denied that these are rules of law as that term is ordinarily used, and it is plain that they fall within the definition of the law as the principles acted on by courts of justice. But in what sense are they enforced by the state? They are not commands, but permissions; they create liberties, not obligations. So, also, the innumerable rules of judicial procedure are largely non-imperative. They are in no proper sense rules of conduct enforced by the state. Let us take, for example, the principles that hearsay is no evidence; that written evidence is superior to verbal, that a contract for the sale of land cannot be proved except by writing ; that judicial notice will be taken of such and such facts; that matters once decided are decided once for all as between the same parties; that the interpretation of written documents is the office of the judge and not of the jury, that witnesses must be examined on oath or affirmation, that the verdict of a jury must be unanimous. Is it not plain that these are in their true nature rules in accordance with which judges administer justice to the exclusion of their personal judgment, and not rules of action appointed by the state for observance by its subjects and enforced by legal sanctions?
There are various other forms of non-imperative law, notably those which relate to the existence, application, and interpretation of other rules. The illustrations already given, however, should be sufficient to render evident the fact that the purely imperative theory not merely neglects an essential element in the idea of law, but also falls far short of the full application or denotation of the term. All legal principles are not commands of the state; and those which are such commands are at the same time, and in their essential nature, something more, of which the imperative theory takes no account.