Page:Harvard Law Review Volume 9.djvu/324

296 296 HARVARD LAW REVIEW, whether any, and, if any, what law prevails in the ordinary sense. Take the case of an English or American traveller, or an English- man and an American travelling together, in the region of the Khaibar Pass beyond the British frontier post at Fort Jamrud and before Afghan territory is reached. Certainly they are not subject to the law of British India, still less, if possible, to the law of Islam as applied in Afghanistan. Yet the persons and property of those who go up the Pass on the appointed days and with the proper escort are really safer than they would be in some parts of almost any European or American city. But peculiar phenomena of this kind, which are transitory accidents as compared with the ordinary course of civilized life, do not affect the normal operation and effects of civilized law, nor throw any light on its origin. If, on the other hand, a new social combination, which at first sight may have been precarious, becomes permanent, its members ac- quire, by convention or by submission to an existing jurisdic- tion, some permanent form of government and law. The inchoate stages of this process — which in fact has taken place in various parts of the world, such as the extreme Western States of Amer- ica, within living memory — are interesting in their own way, but are hardly within the province of the lawyer. Settled rules and recognized jurisdiction are the lawyer's tests. Law presupposes ideas, however rudimentary, of justice. But, law being once established, just, in matters of the law, denotes whatever is done in express fulfilment of the rules of law, or is approved and allowed by law. Not everything which is not for- bidden is just. Many things are left alone by the State as it were under protest, and only because it is thought that interference would do more harm than good. In such things the notion of justice has no place: the mind of the State is rather expressed by Dante's " guarda e passa." The words **just" and "justice," and corresponding words in other tongues, have never quite lost ethical significance even in the most technical legal context. The reason of this — unduly neglected by some moderns for the sake of a merely verbal and illusive exactness — is that in the development of the law both by legislative and by judicial processes appeal is constantly made to ethical reason and the moral judgment of the community. Doubtless the servants of the law must obey the law, whether specific rules of law be morally just in their eyes or not; this, however, is only saying that the moral judgment we regard is the judgment of the community, and not the particular opinion of