An Enquiry Concerning Political Justice

By William Godwin

CHAPTER VIII

OF LAW

Arguments by which it is recommended. -- Answer. -- Law is, 1. Endless -- Particularly in a free state. -- Causes of this disadvantage. -- 2. Uncertain -- Instanced in questions of property. -- Mode in which it must be studied. -- 3. Pretends to foretel future events. -- Laws are a species of promises -- Check the freedom of opinion -- Are destructive of the principles of reason. -- Dishonesty of lawyers. -- An honest lawyer mischievous. -- Abolition of law vindicated on the score of wisdom -- Of candour -- From the nature of man. -- Future history of political justice. -- Errors that might arise in the commencement. -- Its gradual progress. -- Its effects on criminal law -- On property.

The comparison which has presented itself to those by whom the topic has been investigated, has hitherto been between law on one side, and the arbitrary will of a despot on the other. But, if we would fairly estimate the merits of law, we should first consider it as it is in itself, and then, if necessary, search for the most eligible principle that may be substituted in its place.

It has been recommended as 'affording information to the different members of the community respecting the principles which will be adopted in deciding upon their actions.' It has been represented as the highest degree of iniquity, 'to try men by an ex post facto law, or indeed in any other manner than by the letter of a law, formally made, and sufficiently promulgated.'

How far it will be safe altogether to annihilate this principle we shall presently have occasion to enquire. It is obvious at first sight to remark, that it is of most importance in a country where the system of jurisprudence is most capricious and absurd. {766} If it be deemed criminal in any society to wear clothes of a particular texture, or buttons of a particular composition, it is natural to exclaim, that it is high time the jurisprudence of that society should inform its members what are the fantastic rules by which they mean to proceed. But, if society be contented with the rules of justice, and do not assume to itself the right of distorting or adding to those rules, there law is evidently a less necessary institution. The rules of justice would be more clearly and effectually taught by an actual intercourse with human society unrestrained by the fetters of prepossession, than they can be by catechisms and codes.¹

One result of the institution of law is, that the institution once begun, can never be brought to a close. Edict is heaped upon edict, and volume upon volume. This will be most the case, where the government is most popular, and its proceedings have most in them of the nature of deliberation. Surely this is no slight indication that the principle is wrong, and that of consequence, the farther we proceed in the path it marks out to us, the more shall we be bewildered. No task can be more hopeless than that of effecting a coalition between a right principle and a wrong. He that seriously and sincerely attempts it, will perhaps expose himself to more palpable ridicule, than he who, instead of professing two opposite systems, should adhere to the worst.

There is no maxim more clear than this, Every case is a rule {767} to itself. No action of any man was ever the same as any other action, had ever the same degree of utility or injury. It should seem to be the business of justice, to distinguish the qualities of men, and not, which has hitherto been the practice to confound them. But what has been the result of an attempt to do this in relation to law? As new cases occur, the law is perpetually found deficient. How should it be otherwise? Lawgivers have not the faculty of unlimited prescience, and cannot define that which is infinite. The alternative that remains, is either to wrest the law to include a case which was never in the contemplation of the author, or to make a new law to provide for this particular case. Much has been done in the first of these modes. The quibbles of lawyers and the arts by which they refine and distort the sense of the law, are proverbial. But, though much is done, every thing cannot be thus done. The abuse would sometimes be too palpable. Not to say, that the very education that enables the lawyer, when he is employed for the prosecutor, to find out offences the lawgiver never meant, enables him, where he is employed for the defendant, to find out subterfuges that reduce the law to a nullity. It is therefore perpetually necessary to make new laws. These laws, in order to escape evasion, are frequently tedious, minute and circumlocutory. The volume in which justice records her prescriptions is for ever increasing, and the world would not contain the books that might be written.

{768} The consequence of the infinitude of law is its uncertainty. This strikes directly at the principle upon which law is founded. Laws were made to put an end to ambiguity, and that each man might know what he had to depend upon. How well have they answered this purpose? Let us instance in the article of property. Two men go to law for a certain estate. They would not go to law, if they had not both of them an opinion of their success. But we may suppose them partial in their own case. They would not continue to go to law, if they were not both promised success by their lawyers. Law was made that a plain man might know what he had to depend upon, and yet the most skilful practitioners differ about the event of my suit. It will sometimes happen that the most celebrated pleader in the kingdom, or the first counsel in the service of the crown, shall assure me of infallible success, five minutes before another law officer, styled the keeper of the king's conscience, by some unexpected juggle decides it against me. Would the issue have been equally uncertain, if I had had nothing to trust to but the plain unperverted sense of a jury of my neighbours, founded in the ideas they entertained of general justice? Lawyers have absurdly maintained, that the expensiveness of law is necessary to prevent the unbounded multiplication of suits; but the true source of this multiplication is uncertainty. Men do not quarrel about that which is evident, but that which is obscure.

He that would study the laws of a country accustomed to {769} legal security, must begin with the volumes of the statutes. He must add a strict enquiry into the common or unwritten law; and he ought to digress into the civil, the ecclesiastical and canon law. To understand the intention of the authors of a law, he must be acquainted with their characters and views, and with the various circumstances, to which it owed its rise, and by which it was modified while under deliberation. To understand the weight and interpretation that will be allowed to it in a court of justice, he must have studied the whole collection of records, decisions and precedents. Law was originally devised that ordinary men might know what they had to depend upon, and there is not at this day a lawyer existing in Great Britain, presumptuous and vain-glorious enough to pretend that he has mastered the code. Nor must it be forgotten that time and industry, even were they infinite, would not suffice. It is a labyrinth without end; it is a mass of contradictions that cannot be extricated. Study will enable the lawyer to find in it plausible, perhaps unanswerable, arguments for any side of almost any question; but it would argue the utmost folly to suppose that the study of law can lead to knowledge and certainty.

A farther consideration that will demonstrate the absurdity of law in its most general acceptation is, that it is of the nature of prophecy. Its task is to describe what will be the actions of mankind, and to dictate decisions respecting them. Its merits in this respect have already been decided under the head of {770} promises². The language of such a procedure is, 'We are so wise, that we can draw no additional knowledge from circumstances as they occur; and we pledge ourselves that, if it be otherwise, the additional knowledge we acquire shall produce no effect upon our conduct.' It is proper to observe, that this subject of law may be considered in some respects as more properly belonging to the topic of the preceding book. Law tends no less than creeds, catechisms and tests, to fix the human mind in a stagnant condition, and to substitute a principle of permanence, in the room of that unceasing perfectibility which is the only salubrious element of mind. All the arguments therefore which were employed upon that occasion may be applied to the subject now under consideration.

The fable of Procrustes presents us with a faint shadow of the perpetual effort of law. In defiance of the great principle of natural philosophy, that there are not so much as two atoms of matter in the same form through the whole universe, it endeavours to reduce the actions of men, which are composed of a thousand evanescent elements, to one standard. We have already seen the tendency of this endeavour in the article of murder³. It was in the contemplation of this system of jurisprudence, that the strange maxim was invented, that 'strict {771} justice would often prove the highest injustice⁴.' There is no more real justice in endeavouring to reduce the actions of men into classes than there was in the scheme to which we have just alluded, of reducing all men to the same stature. If on the contrary justice be a result flowing from the contemplation of all the circumstances of each individual case, if the only criterion of justice be general utility, the inevitable consequence is that, the more we have of justice, the more we shall have of truth, virtue and happiness.

From all these considerations we cannot hesitate to conclude universally that law is an institution of the most pernicious tendency.

The subject will receive some additional elucidation, if we consider the perniciousness of law in its immediate relation to those who practice it. If there ought to be no such thing as law, the profession of a lawyer is no doubt entitled to our disapprobation. A lawyer can scarcely fail to be a dishonest man. This is less a subject for censure than for regret. Men are the creatures of the necessities under which they are placed. He that is habitually goaded by the incentives of vice, will not fail to be vicious. He that is perpetually conversant in quibbles, false colours and sophistry, cannot equally cultivate the generous {772} emotions of the soul and the nice discernment of rectitude. If a single individual can be found who is but superficially tainted with the contagion, how many men on the other hand, in whom we saw the promise of the sublimest virtues, have by is trade been rendered indifferent to consistency or accessible to a bribe? Be it observed, that these remarks apply principally to men eminent or successful in their profession. He that enters into an employment carelessly and by the way of amusement, is much less under its influence (though he will not escape), than he that enters into it with ardour and devotion.

Let us however suppose, a circumstance which is perhaps altogether impossible, that a man shall be a perfectly honest lawyer. He is determined to plead no cause that he does not believe to be just, and to employ no argument that he does not apprehend to be solid. He designs, as far as his sphere extends, to strip law of its ambiguities, and to speak the manly language of reason. This man is no doubt highly respectable so far as relates to himself, but it may be questioned whether he be not a more pernicious member of society than the dishonest lawyer. The hopes of mankind in relation to their future progress, depend upon their observing the genuine effects of erroneous institutions. But this man is employed in softening and masking these effects. His conduct has a direct tendency to postpone the reign of sound policy, and to render mankind tranquil in the midst of imperfection and ignorance. It may appear indeed {773} a paradox to affirm that virtue can be more pernicious than vice. But the true solution of this difficulty lies in the remark, that virtue, such as is here described, is impossible. We may amuse ourselves with enquiring in such instances as this whether theory could not afford us a better system of intellectual progress than the mixed system which takes place in the world. But the true answer probably is, that what we call vice is mere error of the understanding, a necessary part of the graduation that leads to good, and in a word that the course of nature and the course of a perfect theory are in all cases the same.

The true principle which ought to be substituted in the room of law, is that of reason exercising an uncontroled jurisdiction upon the circumstances of the case. To this principle no objection can arise on the score of wisdom. It is not to be supposed that there are not men now existing, whose intellectual accomplishments rise to the level of law. Law we sometimes call the wisdom of our ancestors. But this is a strange imposition. It was as frequently the dictate of their passion, of timidity, jealousy, a monopolising spirit, and a lust of power that knew no bounds. Are we not obliged perpetually to revise and remodel this misnamed wisdom of our ancestors? to correct it by a detection of their ignorance and a condemnation of their intolerance? But, if men can be found among us whose wisdom is equal to the wisdom of law, it will scarcely be maintained, that the truths they have to communicate will be the worse for {774} having no authority, but that which they derive from the reasons that support them.

It may however be alledged that, 'if there be little difficulty in securing a current portion of wisdom, there may nevertheless be something to be feared from the passions of men. Law may be supposed to have been constructed in the tranquil serenity of the soul, a suitable monitor to check the inflamed mind with which the recent memory of ills might induce us to proceed to the exercise of coercion.' This is the most considerable argument that can he adduced in favour of the prevailing system, and therefore deserves a mature examination.

The true answer to this objection is that nothing can be improved but in conformity to its nature. If we consult for the welfare of man, we must bear perpetually in mind the structure of man. It must be admitted that we are imperfect, ignorant, the slaves of appearances. These defects can be removed by no indirect method, but only by the introduction of knowledge. A specimen of the indirect method we have in the doctrine of spiritual infallibility. It was observed that men were liable to error, to dispute for ever without coming to a decision, to mistake in their most important interests. What was wanting, was supposed to be a criterion and a judge of controversies. What was attempted was to endue truth with a visible form, and then repair to the oracle we have erected. {775}

The case respecting law is exactly parallel to this. Men were aware of the deceitfulness of appearances, and they sought a talisman to guard them from imposition. Suppose I were to determine at the commencement of every day upon a certain code of principles to which I would conform the conduct of the day, and at the commencement of every year the conduct of the year. Suppose I were to determine that no circumstances should be allowed by the light they afforded to modify my conduct, lest I should become the dupe of appearance and the slave of passion. This is a just and accurate image of every system of permanence. Such systems are formed upon the idea of stopping the perpetual motion of the machine, lest it should sometimes fall into disorder.

This consideration must sufficiently persuade an impartial mind that, whatever inconveniences may arise from the passions of men, the introduction of fixed laws cannot be the genuine remedy. Let us consider what would be the operation and progressive state of these passions, provided men were trusted to the guidance of their own discretion. Such is the discipline that a reasonable state of society employs with respect to man in his individual capacity⁵: why should it not be equally valid with respect to men acting in a collective capacity? Inexperience and zeal would prompt me to restrain my neighbour whenever he is acting wrong, and, by penalties and inconveniences {776} designedly interposed, to cure him of his errors. But reason evinces the folly of this proceeding, and teaches me that, if he be not accustomed to depend upon the energies of intellect, he will never rise to the dignity of a rational being. As long as a man is held in the trammels of obedience, and habituated to look to some foreign guidance for the direction of his conduct, his understanding and the vigour of his mind will sleep. Do I desire to raise him to the energy of which he is capable? I must teach him to feel himself, to bow to no authority, to examine the principles he entertains, and render to his mind the reason of his conduct.

The habits which are thus salutary to the individual will be equally salutary in the transactions of communities. Men are weak at present, because they have always been told they are weak, and must not be trusted with themselves. Take them out of their shackles; bid them enquire, reason and judge; and you will soon find them very different beings. Tell them that they have passions, are occasionally hasty, intemperate and injurious, but they must be trusted with themselves. Tell them that the mountains of parchment in which they have been hitherto intrenched, are fit only to impose upon ages of superstition and ignorance; that henceforth we will have no dependence but upon their spontaneous justice; that, if their passions be gigantic, they must rise with gigantic energy to subdue them; that, if their decrees be iniquitous, the iniquity shall be all their {777} own. The effect of this disposition of things will soon be visible; mind will rise to the level of the situation; juries and umpires will be penetrated with the magnitude of the trust reposed in them.

It may be no uninstructive spectacle to survey the progressive establishment of justice in the state of things which is here recommended. At first it may be a few decisions will be made uncommonly absurd or atrocious. But the authors of these decisions will be confounded with the unpopularity and disgrace in which they have involved themselves. In reality, whatever were the original source of law, it soon became cherished as a cloak for oppression. Its obscurity was of use to mislead the inquisitive eye of the sufferer. Its antiquity served to divert a considerable part of the odium from the perpetrator of the injustice to the author of the law, and still more to disarm that odium by the influence of superstitious awe. It was well known that unvarnished, barefaced oppression could not fail to be the victim of its own operation.

To this statement it may indeed be objected, 'that the bodies of men have often been found callous to censure, and that the disgrace, being amicably divided among them all, is intolerable to none.' In this observation there is considerable force, but it is inapplicable to the present argument. To this species of abuse one of two things is indispensibly necessary, either numbers {778} or secrecy. To this abuse therefore it will be a sufficient remedy, that each jurisdiction be considerably limited, and all transactions conducted in an open and explicit manner. To proceed.

The juridical decisions that were made immediately after the abolition of law, would differ little from those during its empire. They would be the decisions of prejudice and habit. But habit, having lost the centre about which it revolved, would diminish in the regularity of its operations. Those to whom the arbitration of any question was intrusted, would frequently recollect that the whole case was committed to their deliberation, and they could not fail occasionally to examine themselves respecting the reason of those principles which had hitherto passed uncontroverted. Their understandings would grow enlarged, in proportion as they felt the importance of their trust and the unbounded freedom of their investigation. Here then would commence an auspicious order of things, of which no understanding of man at present in existence can foretel the result, the dethronement of implicit faith and the inauguration of unclouded justice.

Some of the conclusions of which this state of things would be the harbinger have already been seen in the judgment that would be made of offences against the community⁶. Offences {779} arguing infinite variety in the depravity from which they sprung, would no longer be confounded under some general name. Juries would grow as perspicacious in distinguishing, as they are now indiscriminate in confounding the merit of actions and characters.

Let us consider the effects of the abolition of law as it respects the article of property. As soon as the minds of men become somewhat weaned from the unfeeling uniformity of the present system, they would begin to enquire after equity. In this situation let us suppose a litigated succession brought before them, to which there were five heirs, and that the sentence of their old legislation had directed the division of this property into five equal shares. They would begin to enquire into the wants and situation of the claimants. The first we will suppose to have a fair character and be prosperous in the world: he is a respectable member of society, but farther wealth would add little either to his usefulness or his enjoyment. The second is a miserable object, perishing with want, and overwhelmed with calamity. The third, though poor, is yet tranquil; but there is a situation to which his virtue leads him to aspire, and in which he may be of uncommon service, but which he cannot with propriety accept without a capital equal to two fifths of the whole succession. One of the claimants is an unmarried woman past the age of childbearing. Another is a widow, unprovided, and with a numerous family depending on her {780} succour. The first question that would suggest itself to unprejudiced persons, having the allotment of this succession referred to their unlimited decision, would be what justice is there in the indiscriminate partition which has hitherto prevailed? This would be one of the early suggestions that would produce a shock in the prevailing system of property. To enquire into the general issue of these suggestions is the principal object of the following book.

An observation which cannot have escaped the reader in the perusal of this chapter, is, that law is merely relative to the exercise of political force, and must perish when the necessity for that force ceases, if the influence of truth do not still sooner extirpate it from the practice of mankind.

Notes

2. Book III, Chap. III.

3. Book II, Chap. VI, p. 131. Book VII, Chap VII, Chap. IV, p. 718.

4. Summum jus summa injuria.

5. Book V, Chap. XX, p. 548.

6. Book II, Chap. VI, p. 131. Book VII, Chap IV, p. 718.