(14) Commanding what is right and prohibiting what is wrong, page 44. Recent commentators have almost unanimously followed Christian in rejecting this part of Blackstone's definition as superfluous or defective. They do not see, or they disregard its importance as connecting this definition with his subsequent classification of the entire law. The main division of the Commentaries into Rights (books 1 and 2), and Wrongs (books 3 and 4), is based on this part of the definition, which Blackstone has taken from Bracton, as Bracton took it from the civilians, and they from Cicero. (See post, p. 287, and the references there given.) It certainly is not insignificant tautology, as Christian terms it, to point out the necessary effect of a law in dividing all actions governed by it into two great categories of rights and wrongs, acts conforming to the law and acts contravening the law and practically this division is of supreme importance in municipal law. All other classifications of the objects of law are but ancillary to this; for the final end and purpose of them all is to facilitate and insure the discrimination of rights and wrongs, of acts that a man may himself perform or require of others, with the approval and help of the state, and acts that he may not. Upon this Blackstone and his ablest critics are agreed; for example, Bentham, Works, 3, 159. : But, says Professor Christian, if right and wrong are to be referred to the law of nature, then the definition will become deficient or erroneous; for, although the municipal law may never or seldom command what is wrong, yet in ten thousand instances it forbids what is right. (Note to 1 Com. 44; printed, also, in Judge Cooley's editions, p. 44, marginal.) Blackstone's reply would be, that the municipal law can never command what is wrong, and that when it appears to forbid what is right, it either by such prohibition makes 1 BLACKST.-11. it wrong, or, if it be ethically right before, the prohibition itself is invalid and void; so that there is no error or deficiency in the division of all actions into rights and wrongs, as they are consistent with or opposed to that great system of municipal law of which ethics or natural law is the highest part, controlling all the rest. The difficulty found by Professor Christian and his followers is simply that, denying the legal force of ethics and regarding it as a separate system, they find an ambiguity between rights and wrongs under the municipal law, and that which is right or wrong by ethical law. There will always be error when, having classed acts as consistent or inconsistent with one rule, we assume that they are therefore consistent or inconsistent with another rule, forming other criteria of right or wrong. This is plain enough when thus stated. It seems to have been overlooked by Christian and his followers because of the ambiguity in the word "right" an ambiguity which is the result of a profound change of thought within the last century or two; and perhaps, also, of some discrepancy between the doctrine here laid down by Blackstone, following Puffendorf and the great jurists of the continent, and the practical doctrine which had always been accepted by the common-law courts of England. These courts usually held that the common or customary law did not embrace ethics or religion, though it might be subordinated to them; it would conform its rulings to their requirements, so far as human imperfection allowed, but would not enforce those requirements as necessarily a part of the law of the land. Individual writers, no doubt, such as the author of the Mirror and of Doctor and Student, went much further in the recognition of ethical rules as part of the law; and dicta to the same effect may doubtless be found from the mouths of eminent judges; but the established doctrine of the courts was that stated above. On the other hand, the teachings of the church, and consequently that of most speculative jurists in the middle ages, was that all law addressed to rational, responsible beings was a single system, embracing alike what we now call ethics and what we now distinguish as municipal law. It was given primarily by the Creator, and its main purpose was to direct the conduct of its subjects in the paths of virtue and of piety, securing peace and order upon the earth and happiness in heaven. Revelation and reason gave its fundamental rules, which every man was bound to know and to obey. Where this failed to give sufficient guidance, human rulers were divinely authorized to supplement them by positive laws, which bound men's consciences as well as acts, by virtue of the authority delegated to such rulers from the Ruler of all. This delegated authority of human sovereigns was the true sense of that "divine right of kings" so much caricatured alike by friends and foes in the controversies of the seventeenth and eighteenth centuries. All laws, whether of divine or human origin, were thus alike ethical and legal. They bound the conscience of those subject to them, and they were at once the source and the measure of all legal rights and duties to such subjects. The criterion of rights and wrongs was obedience or disobedience of the law. There could be no inconsistencies in it: for the divine laws could not contradict themselves; and those of human origin were void, if they contradicted the divine. The fullest and clearest statement of this theory accessible to American students is, perhaps, that in Domat's Treatise of Laws, prefixed to his great work, The Civil Law in its Natural Order, first published at the end of the seventeenth century; afterwards translated into English by Alexander Strahan, and edited in the United States by Luther S. Cushing. How far Blackstone really accepted this theory of the nature of law is not altogether clear. In the four books that constitute the body of his work there is rarely a reference to it or an inference from it. It is only in this introduction, prefixed to his system after it was completed, and evidently intended to bring English law as a science under the theories of the continental jurists, that we find any formal discussion of the origin of law. Unquestionably he accepts that theory without qualification, so far as the law of nature and of revelation is concerned. No statement of the legal and enforcible character of the rules of ethics can be stronger than that which he has given in this section. Whatever is right or wrong by the laws of God is ipso jure a right or a wrong under the municipal law. The whole force of Christian's criticism on this sentence, as already said, depends on the fact that to him a legal right might not be ethically right or a legal wrong ethically wrong. If the law of the state could not contravene the law of God, it could at least make rights and wrongs which had not that character before. His position, indeed, marks a profound change which had come over men's minds in the eighteenth century, more strongly than any express statement could. It was the beginning of that alienation between ethical and jural law which has since widened into an entire divorce, at least scientifically regarded. But Blackstone himself, as a disciple of the Revolution of '88, could not believe in the divine right of kings, and therefore could not accept that part of the older doctrine relating to human law. He clearly rejects the binding force of such law upon the conscience of the subjects. (See p. 55, as to mala prohibita.) It is less clear what he would put in its place; but from the casual allusions scattered through his work, even more than the statement here, he seems to have accepted the doctrine of a social compact, "not formally expressed at the first institution of a state, yet in nature and reason always understood and implied in the very act of associating together, ... that the community should guard the rights of each individual member, and that in return for this protection each member should submit to the laws of the community." (pp. 47, 48.) He thus recognizes rights as existing prior at least to human laws; as, indeed, he must do to be consistent with the entire plan and structure of his work. How the possible conflicts between such rights and the laws of the community are to be avoided or decided when they arise, he nowhere tells us. That the rights and the wrongs of municipal law must necessarily be consistent with the law of nature is merely a logical corollary to the doctrine of this section. Modern courts hold, on the other hand, that the rights and wrongs of municipal law (jus) are measured by that law alone, and not by ethics. They repudiate the notion of the enforcibility of moral rules, as moral, altogether. Law is enforcible, always implies the power and the right to compel obedience, while morality addresses its dictates only to the conscience. Any rule or right that cannot in its nature be enforced is not truly law. But this does not mean that there must be in every case a power of physical compulsion. Very many legal rules cannot be enforced directly, or in any way except by punishing the breach of them. One joint tenant of a chattel has at common law no means of compelling his fellow to admit him to his fair share of its enjoyment. One sovereign state has no means of enforcing upon another the rules of international law; yet we regard these rules as true law, and the rights given by them as true rights. In both cases the introduction of a new remedy would not change the character of the rule. Nor does the enforcement of a rule of morality convert it into law. A parent punishes his child for ingratitude, a master his slave for wastefulness or indolence, but these are not converted thereby into legal duties. Enforced |