Page:Halsbury Laws of England v1 1907.pdf/219

 Introduction.

ccxv

between the speculative Greek philosopher and the practical lawyer and

man

of the world,

but the controversy whether

the laws should incipere a jussione or whether they should

have an expository, though not perhaps a hortatory, preamble

At

is

not settled yet.

is

entitled to alter or

who

that of one

an index

to

it,

is

all

events, the function of one

make

the law

is very different

who from

only intrusted with the duty of making

however wide may be the system upon

which the index may be made. The various attempts what state laws to are have occasionally slipped into apparently authoritative expositions of law by the digestor

and that profound lawyer, Mr. Austin, points out what he describes as the enormous fault of Justinian's

himself;

Code, considered as a

and

statutes

code,

that

is

it

a compilation

of

mass

of

judicial decisions, a heterogeneous

subjects having no other relation than that they are all

them imperial

constitutions, that

say,

statutes

and other orders emanating from the emperors

directly,

of

is

to

and not emanating directly from subordinate legislatures tribunals.

or

While

may

it

be

true

to

that

say

no one case can necessarily decide another case under different circumstances

principle

of

and between

law or justice

may

different persons, the

severable from

be

the

difference of circumstances or persons,

and may establish

may

well be contended

a rule applicable to both, and

it

that a selection of cases in which

law

is

argued will

of a legal

illustrate

problem

than

some one

principle of

more cogently the real solution any amount of technical or

abstract reasoning.

The great

difficulty, of course, is to state

the law as

without giving such an authority to the mode of

its

it

is

state-

ment as to make itself equivalent to a statute. This is what Bentham apprehended. He says the legislator in the code which he is recommending should direct that the text of

the law should be the standard of the law.

Judging whether a given case

falls

within the

In

law, the