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法律的定义 THE DEFINITION OF LAW by Will G

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发表于 5/18/2017 16:26:34 | 显示全部楼层 |阅读模式
本帖最后由 郭国汀 于 5/18/2017 16:39 编辑

法律的定义  THE DEFINITION OF LAW.
By Wille, G.* [1]
   大多数法学家们均同意实在法或国家的法律包括那些由一国政府制定和强制执行的人的行为规则。但是此种定义仅告诉我们谁是人类行为规则的制定者及谁是执行该规则的代理机构,但未能提供更多的信息。Most jurists are agreed that positive, or national law consists, of rules of human conduct made and enforced by the government of a State. This is, indeed, the usually accepted definition of positive' law (Holland, Jurisprudence, p. 4; Odgers, Common Law of England, pp. 3, 44; Hibbert, Jurisprudence, pp. 28, 58; cf. Rex v. Christian, 1924,. A.D. 111). It will be noticed that this definition tells us who is the author of the rules of human conduct, and also what is the agency that enforces them, but it gives us no further information. Surely we might be told something about the rules themselves? For example, what is their nature, or scope?
   不少其他法学家则提出了众多有关法律的定义,但它们传达的信息相当含糊并不能令人信服。Many other jurists have formulated definitions of positive law, but the information they convey seems rather vague and unsatisfying. For example, Del Vecchio, who has devoted a whole volume to the topic (Formal Bases of Law, p. 218), says: " Law is the objective co-ordination of possible acts among men, according to an ethical principle which determines them and prevents their interference". Garies (Introduction to the Science of Law, p. 20) says: " Positive law is one proceeding from an outwardly sustained authority, suited to the time, the place, the people, and the state of culture ". Ihering, in his famous work (Der Zweck im Recht, p: 499), says: " Law is the complex of the conditions of society guaranteed by the external power of the State ". Many other attempts might be quoted, but they shed no definite light on the subject.
  亦有些法学家宣称不可能成功地定义法律。因为首先法律涉及面太广,其次,法律事实上经常改变。 It has, indeed, been asserted by many jurists, that it is impossible to define law successfully. Two reasons are generally advanced for this alleged impossibility; firstly, the large. number of elements involved in the law, and secondly, the fact that the law is ever changing. We must accordingly consider these reasons very closely.
   In' support of the first objection, Bergbohm (Jurisprudenz und Philosophie, I, p. 544) says the content of law is determined by so many forces that it cannot be condensed in an exhaustive universal category., Kokurek (ad Garies, Introduction to the Science of Law, p. 11), who examines the problem in more detail, came to the conclusion that law cannot be defined because there are too many elements to be, taken into account, namely, the basis of the law, its causes, its sources, its effects, its purposes, or the method of its formal expression. This reminds one of the reluctance of economists to 'define the term " money " owing to the number of its objects or uses. " It is therefore best," says the Encyclopcedia Britannica (vol. 18, p. 695), " to avoid a formal definition; and, instead, to bring out the character of money by describing the functions that it performs in the social system." The answer to this objection is, as we have seen in the article on definitions, that a serviceable definition of a fundamental or original conception can, as a rule, be constructed-by directing attention to the two essential elements, namely, formation and effect. Oifr definition already contains the-necessary information as to the formation of law, and the power which enforces it. It follows that now we merely require information as to the effect, or legal consequence, of the law.
   The second objection,. namely, that the law is ever changing, is more serious and requires detailed consideration. Almost every jurist and philosopher has drawn attention to the constant changes in, or evolution of, the law. Voet (1.1.8) three centuries ago said: " The public laws are daily changing; they are framed according to the time and the people ". The Courts and a host of writers have since then laid emphasis on the perpetual variation and progression of law (Rex v. Christian, 1924, A.D. 129; Pearl Assurance Corporation v. Union Government, 1934, A.D. 563; Del Vecchio, Formal Bases of Law, p. 32; Roscoe Pound, Science of Legal Method, at p. 207; Lambert, ibid, p. 253; Garies, ibid., p. 20; Wurzel, ibid., p. 404; Alvarez, ibid., p. 437; Berolzheimer, World's Legal Philosoph'ies, p. 285). This undoubted fact, however, it is submitted, forms no obstacles in defining law, for the changes which occur take place only in subsidiary rules, and not in fundamental principles. The fundamental principles regulating human conduct remain the same forever; in the language of modern philosophers there is no change in human values.  If, then, we can discover what these unchanging principles are, and if we can set them out in a few words, we will be able to supplement our brief definition with useful and necessary information.
   The principles regulating human conduct can be discovered, it is suggested, by considering the main or ultimate object of the law. The ultimate object or purpose of the law is to ensure the peace and order of the community (South Africa Act, section 59; Rex v. Mehlery, 1912, A.D. 220; St. Augustine, Pax; Keith, Constitutional Law, p. 2; Vinogradoff, Conwnon Sense in Law, p. 16); that is, to avoid conflicts between persons (Wurzel, Science of Legal Method, at p. 290) by peacefully adjusting and settling the differences between them (Ihering, Der Zweck im Recht, p. 343; Garies, Introduction to the Science of Law, at p. 10). In order to achieve this object, the law has from the earliest times been made to conform with the three precepts of justice: honeste vivere, alteram  non laedare, suum cuique tribuere (Digest 1A1.10 pr.; Institutes of Justinian, 1.1.3). These precepts are the foundation of our law (Grotius, de Jure Bell. ac Pacis, 1.1.9; Inleiding, 1.2.6; Voef, 1.1.11; van Leeuwen, C.F., 1.1.1; Huber, H.R.G., 1.1.2.8) and, in fact, that of all civilised nations. These three precepts might, indeed, be incorporated in a definition of law, but it-is submitted that more precise principles can be deduced from the various branches of the substantive law.
    The law of procedure sets out the rules concerning legal remedies; this aspect of positive law has already been referred to in the definition, for it points out that the rules are protected and enforced. It is the substantive law which contains the actual rules of human conduct. The substantive law consists of several branches, each of which regulates 1 different type or class of human action; this will be seen from an analysis of the various branches.
The substantive law is divided into two branches, the criminal law and the civil law., The criminal law deals with crimes. A crime is an act committed by a person with the intention of doing harm (Rex v. Waltendorj, A920, A.D. 394; Pittman, Criminal Law, p. 19), and the guilty person is punished by the State. The essence of a crime is nens rea or evil intention, which we may describe as dishonesty: or wickedness; consequently the object of the criminal law is to prevent dishonesty.
    The civil law deals with the legal rights of persons, and is consequently divided into two branches, the law of legal rights and the law of persons. Legal rights are either personal or real. Personal rights and their converse, obligations, arise almost entirely from contracts or delicts. A  contract is a serious agreement to give a thing to other person or to tender him, some service.. The law of contracts obliges a person to carry out his promise, and if he does not do so, compels him to pay damages in money to make amends. It follows that the law of contracts is designed to make people faithful or trustworthy.
    A  d'elict, again, is an act committed by a -person which causes damage to another person or to his property without any lawful excuse, that is, either intentionally or negligently. The law, in such an event, compels the offender to make compensation to the injured person. So the law of delicts condemns negligent or careless acts. (We have just seen that intentionally wrongful acts come within the scope of the criminal law.)
    The law of real rights deals with the rights of persons in  land and in movable things, and is often referred to as the law of property.   These rights, of which ownership is the chief, are nearly -always obtained by taking possession of, or otherwise acquiring, the thing in question. It is difficult to assign any particular quality of human -behaviour to the acquisition of property, and probably the necessary, quality may be-described as " industry " or " thrift ". So the law of real rights-may be said to encourage industry.
    Lastly, we have the law of persons. This branch deals with the various classes of persons who are incompetent to carry out all the affairs of life themselves, 'owing either to youth, or insanity, or marriage, in the case of certain women. The law of persons makes provision for the affairs of these incapacitated persons to be carried on by competent persons, and it follows that the law of' person safeguards incapacitated persons.
From the above considerations we are now able to deduce that the law condemns the following typical classes of human conduct: dishonesty, carelessness, faithlessness and indolence, and encourages the opposite qualities: honesty, carefulikess, trustworthiness and industry. In addition the law safeguards incapacitated persons.
    It is submitted that a statement as to these objects of the law may profitably be added to the brief definition of the law Whether the statement should be worded positively or negatively depends greatly on the definer's own nature, and the Writer would prefer the positive statement. It must, however, be remembered that the law is largely negative, because it cannot compel people to do virtuous actions, but it can discourage them from committing vicious ones by punishing them for infractions, or by nullifying the act and so debarring them from reaping any benefit (Digest, 1.3.7; Grotius, 1.2.2; Voet, 1.3.14; Pothier, ad Pand. III, p. 616; Austin, p. 161; Salmond, sec. 27; Hibbert, pp. 54-57).
    We must now return to the objection founded on the fact that the law is always changing. We shall endeavour to show that the changes do not affect the conceptions of the various qualities we have mentioned, but merely the acts which are regarded from time to time as coming within the ambit of these qualities. Justice never changes; it is perpetual and everlasting (Justinian, Institutes, 1.1. pr.; Voet, 1.1.7; V.L., C.F., 1.1.1.1; Huber, H.R.G., 1.1.2.7).  Just as accuracy and truth never vary, so the conception of honesty and of the other attributes are ever the same.
    The chief changes in the rules of law that have taken, and are taking, place will be found in the realm of morals and of the means of subsistence. We have seen that the ultimate object of the law is to ensure the peace and order of the community. This object is attained by means of laws which Will secure a condition of the community which in the past was described as the welfare (Socrates, Xenephon; Rousseau,  Contrat Social, 2.11; Locke, Two Treatises .on Government, Bk. 11, Ch. 2; Austin, 123; Roscoe Pound, Spirit of the Common. Law, p. 109; Hibbert, p. 87) or happiness of mankind (Aristotle, Eth. Nicom., 1ý Epicurus, b. 7; Spinoza, Tractatus Politicus, Ch. II, sec. 4; Bentham, Works, ii, p. 6; Sedgwick, Principles of Politics, pp. 34, 36; Markby, Elements of Law, Ch. I, sec. 49). In more modern times it has been realised that this ideal of welfare or happiness for all persons is obtainable, not merely by protecting the rights of the people, but by guaranteeing them a fair share of minimum  rights, in future (Hobbes, Leviathan, p. 138; Holland, Jurisprudence, p. 81; Markby, sec. 57; Puffendorf, Jure Nature, I, VII, see. 7). So the conception of security for life -and health, tame into being, or social security, as it is universally termed today.      President Roosevelt, in a recent speech in Congress (7th January, 1943), put the matter very clearly and definitely: " Our young men and women want an assurance against the hazards of life from the cradle to the grave. Social security is a guarantee to each person in the community of enough food, clothing and good housing to provide what is necessary for good health, and a, reasonable standard of comfort."
   A multitude of authorities have pointed out that the truths of economics have necessarily had an increasing influence on the law so as to ameliorate the conditions of the poorer or labouring classes and to lead to their emancipation and freedom (Sir John Macdonell, Preface to Formal Bases of Law, xxxlv; Del Vecchio, Formal Bases oj Law, p. 32; Berolzheimer, World's Legal Philosophies, pp. 285, 6; Science of Legal Method, p. 179; Garies, ibid., p. .20; Ehrlich, ibid., p. 83; Gmellin, ibid., p. 126; Kokurek, ibid., p. 203; Wurzel, ibid., pp. 288, 309; cf. Pearl Assurance Co. v. Union Government, 1934, A.D. 563). Roscoe Pound sums up the matter in' the following words: " There is a world-wide movement for the socialisation of the law, shifting from the abstract individualistic justice of the past to the newer ideal of justice'" (Spirit of the Common Law, p. 7).
   Let us now analyse each of the branches of the law in turn in order to note the effect of the more recent opinions as to morals and social security. As regards the criminal, law, the conception of dishonesty never varies, but only its application. That is, what one generation considers evil may be forgiven by a later. This is well illustrated by the often "quoted example of adultery, which was a crime in earlier ages, but is today considered to be merely a moral offence. The essence of carelessness, as applied in the law of delict, remains the same,namely the standard of the average person; it is true that the average person must be more careful in this mechanical age than he was in primitive times, but that is simply because the average standard has gone up. The trustworthines enjoined by the law of contract remains the same, despite the fact that the changed ideas of Immoral actions have made some classes-of agreements illegal which were not so formerly, and-vice versa.
    It is in the sphere of the law of property that the greatest changes have taken place, and probably will take place. It' has been suggested that industry and thrift are, or should be, the keynote to the acquisition of property. This has not always been the case, but rather the reverse. It is merely necessary to instance the case of slavery; the very persons who did nearly all the work, received no property in return, but were themselves owned by other persons. The ownership of property, and particularly of land, has been acquired in the past mainly -by inheritance or greed, and 'not by merit.
   There are, however, indications of a contrary policy throughout, the world, supported by significant statements in authoritative quarters, to the effect that land and other natural resources should be devoted to the welfare of the whole community. "The Atlantic Charter contains the sketch for our future blueprint of security ", said Gbneral Smuts in his memorable world broadcast from London (October 19th, 1943).
    In the law of persons the prevailing theme is that incapacitated persons should be safeguarded; this principle does not change. Variations may, however, occur in the classes which are regarded as incapable of protecting themselves, as in the case of women who, in recent times, have been granted almost complete emancipation.
    我们可以给法律下个较理想的定义:为了确保社会成员之间的和平与秩序,防止他们做不诚信或漫不经心的行为,促进诚信和勤勉,保护弱势群体,由国家制定和执行的人的行为规则。These considerations, it is submitted, justify the conclusion that the inherent nature of the typical qualities, required of human beings in their actions, do not vary. This conclusion gives us a constant factor concerning the rules of human conduct, which imparts useful and necessary information. We may therefore advantageously add to the meagre definition of law, " Rules of human conduct made-and enforced by the state ", the following: " For the purpose of assuring peace and order among the inhabitants, by preventing them from committing dishonest or careless acts, by promoting trustworthiness and industry, and by safeguarding incompetent, persons."


[1]  G. Wille, The Definition of Law, 61 S. African L.J. 174 (1944)p, 174 to 180 .G. WILLE. K.C., LL.D., Professor of Law in University of Cape Town.



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