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Relation between the State and Law
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After reading this article you will learn about the relation
between the state and law.
The State, on the conception here adopted, is a legal association: a
‘juridically organized nation, or a nation organized for action under
legal rules’. It exists for law: it exists in and through law: we may
even say that it exists as law, if by law we mean not only a sum of
legal rules, but also, and in addition, an operative system of
effective rules which are actually valid and regularly enforced. The
essence of the State is a living body of effective rules; and in that
sense the State is law.
The English word ‘State’ comes from the Latin status, which has
had a curious and chequered history during the centuries of its
development. (Words too have their growth and their evolution; and
they too may go through curious mutations.)
In classical Latin, the word status meant generally the ‘standing’—
that is to say, the position—of a person or body of persons: but by
Cicero’s time it had come to be specially applied to the ‘standing’ or
position of the whole community, and Cicero accordingly speaks of
the status civitatis, or the status reipublicae, in the general sense of
the constitution and institutions by which, and in which, the civitas
or respublica stands.
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Travelling through late Latin (in which, like many other words
beginning with similar double consonants, it acquired an initial i and
became i-status), and then through the Romance languages, the
Latin status gave us eventually three English words—
(1) ‘Estate’, in the sense of a standing or position in regard to some
form of property (a ‘real estate’ in land, or a ‘personal estate’ in
movables);
(2) ‘Estate’, as when we speak of the three Estates of the realm,
using the word in the primary sense of a grade or rank in the
system of social standing or position, and thence in the derivative
sense of the body of persons belonging to such grade or rank; and,
finally,
(3) ‘State’.
This last derivative, it is important to notice, was not originally used
in the Ciceronian sense of status civitatis or status reipublicae; nor
did it mean, as those phrases had meant, the general standing,
position, or ‘polity’ of the whole community and all its members. It
had another and different connotation, which long persisted and
may still be traced in modern usage.
The word ‘State’, when it came into use in England during the
sixteenth century, brought with it from Italy the idea of a high ‘State’
or stateliness (state) vested in some one person or someone body
of persons.
It meant primarily a peculiar standing, of a kind which was political,
and of a degree in that kind which was superior or supreme; and
thence, by an easy extension, it came to be used derivatively of the
person or body of persons invested with such standing.
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This was the usage down to 1789, and even later: the ‘State’ meant
primarily the position of being the superior or supreme political
authority, and thence it came to be applied derivatively to the
person or body enjoying that position.
It was thus a term very similar to, and practically identical with, the
terms ‘sovereignty’ and ‘sovereign’, similarly derived from the Latin
(in the late Latin form superanus) and similarly transmitted to
England through Romance derivatives from the Latin (and
especially through the Italian sovrano).
Bacon, in the beginning of the seventeenth century, uses ‘State’ as
a term synonymous with or parallel to ‘King’, as when he speaks of
‘Kings and States’ consulting judges. Louis XIV, in the middle of the
seventeenth century, must have thought that he was stating a
truism, and not attempting a paradox, when he exclaimed L’Etat,
c’est moi! Was he not in his own view, as in that of his subjects, the
person who enjoyed the ‘state’ and position of being the supreme
political authority, and was he not therefore ‘the State’?
So far, and so long as these views prevailed, the notion of authority,
of a position or ‘standing’ of supreme authority, and of the person or
body placed in that position and having that ‘standing’—this was
what formed the connotation of the word ‘State’.
Such a connotation belongs to a graded and hierarchical society, in
which there are different states or ‘Estates’ (or sorts and conditions
of men) arranged in ascending degrees, and one of these states or
‘Estates’ is the State par excellence.
But this connotation begins to disappear—or rather to be overlaid—
when a graded and hierarchical society yields to a society of
equals. After the end of the eighteenth century it may be said,
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L’Etat, c’est nous! The State is now the whole community: the
whole legal association; the whole of the juridical organization.
This is democracy, or a result of democracy: we must henceforth
think of the State as ourselves (or as the juridical organization
which we have given to ourselves, or the legal association into
which we have formed ourselves); and we must henceforth give the
name of ‘Government’ to the authority—before called ‘State’
—which is now seen as exercising on our behalf the powers which
it had hitherto claimed as its own.
But language is slow in adapting itself to changes of thought; and
words may long continue to carry the associations of a vanished
past. We still use the term ‘State’ with the connotation—only
overlaid, and not yet erased—of earlier centuries.
We regard the State still as some sort of being, somehow distinct
from ourselves, which still interferes with us (thus we speak of
‘State-interference’), and against which we still must defend the
cause of individualism in the war (as Spencer called it) of ‘The Man
versus the State’. It is a sad complication of thinking that we so
often think with obsolete words, or rather with words whose
connotation, in the sense in which we still use them, is obsolete or
obsolescent.
From the etymology and history of the term ‘State’ we may now turn
to those of the term ‘law’. The term appears to have been borrowed
by the English, about the year 1000, from their Scandinavian
invaders: it came to them not from the Latin (the Latin terms lex and
legalis are not cognate in origin or connotation), but from a Teutonic
root meaning to ‘lay’, to place, or to set.
Law is thus etymologically something positum, or, as we should
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say, ‘imposed’: it is something laid down or set, as one sets a task
or lays down a rule; and it is accordingly defined in the Oxford
English Dictionary as ‘a rule of conduct imposed by authority’.
If this definition be accepted, we are carried back to the notion of
the State as being, in its nature, a superior or supreme authority:
we are led to regard law as a rule, or a body of rules, imposed by
that authority; and we are driven in the issue to conclude that the
command of the State, regarded as a supreme authority, is ipso
facto the law for its members, regarded as the ‘subjects’ of that
authority. This indeed is a view which long prevailed. It may be
called the Austinian view of law.
It is expressed by Austin in the propositions that ‘law is a command
which obliges a person or persons’; that ‘the term “superiority” … is
implied by the term “command”, and that accordingly ‘every law
simply and strictly so called is set by a sovereign person or . . .
body of persons to a member or members of the independent
political society wherein that person or body is superior or
supreme’.
Upon this view, then, the State is regarded as being in its nature
authority—the superior or supreme authority—and law as being a
body of commands set by that authority to all the persons who are
its subjects.
The view has some historical justification, or at any rate
explanation; but it does not square with the facts and ideas of
contemporary life. The word ‘State’ no longer suggests to our minds
the idea of authority, or presents them with a picture of the high
‘state’ and the sovereign status of a person or body of persons
enjoying and exercising a right of command over subjects.
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It rather suggests to our minds the idea of association; it presents
them with the image of an associated group, as wide and as
multitudinous as the whole of a nation, which lives together by
virtue of a constitution which it has made, and lives by the rules of
law made for it and on its behalf by a law-making agency which
acts as its organ under that constitution.
The State is now—though that was not the sense of the word when
it was adopted into our language—the status reipublicae, the
standing or condition of the whole of the legally organized
community. It is, in its primary and abstract sense, the status or
position, common to us all, of being the members of a legal
association: it is, in its derivative and concrete sense, the members
themselves—the whole of the members—when regarded as
holding, and holding in common, such status or position.
Upon this conception of the State there follows a correlative
conception of law. Law ceases to be the product of the authority of
a person or body of persons conceived as being superior or
supreme in the political society in which they act. It becomes the
product of the whole of the association, primarily in the form of the
constitutive memorandum of association (or, as it is generally
termed, the ‘constitution’) made, or at any rate ratified, in the
general usage of modern States, by the action of the members
themselves, and secondarily in the form of a current system of legal
rules made by a body, or bodies (for, as we shall see, there may be
more than one body concerned), representative of the members
and acting on their behalf under the constitution and in virtue of the
authority conferred by the constitution.
That is the line we may follow if we think in terms of the present.
But even if we go back to the past, and consider the source and the
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growth of law in terms of the past, we may find that we are driven to
the conclusion that law has always been something more than the
simple command of a single person or body of persons possessing
authority over all others. That conclusion emerges when we ask
and endeavour to answer two questions.
The first concerns the way in which the general body of law has
been imposed and made binding on a political society. Has it been
the way of command, or the way of something other than
command? The second question concerns the origin of the various
branches of law which go to form the general body. Have they all
proceeded from a single source; or have some come from one
source and some from another, and are there thus several sources
of law?
The development of Roman law will help us to answer these
questions. The Latin word for the general body of law is jus, which
is something broader and more comprehensive than lex, though lex
is one of its elements. How is this jus imposed? Before we return
an answer, we shall do well to study the etymology of the word. Jus
is not connected with the verb jubeo: it does not mean what is
commanded by authority, or quod jussum est.
That may be true of lex, which has some connotation of command,
and which is defined by the Roman jurists as ‘quod populus jubet et
constituit’. But jus has a different connotation, and is associated
with different ideas. It seems to be connected with the Latin word
jungere: it means primarily a joining or fitting, a bond or tie; and it
readily glides into the sense of binding or obliging.
We may define jus, in its original form, as ‘what is fitting’ and
therefore also ‘binding’; or in more detail, we may say that ‘it
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conveys . . . the idea of valid custom [i.e. the deposited common
tradition of the ‘fitting’], to which any citizen can appeal, and which
is recognized and can be enforced by a human authority’. We may
then go on to think of jus, in its developed form, as a body of
binding or obliging rules which—however they have been made,
whether by the growth of valid custom or by legislative enactment
or otherwise—the courts recognize as binding, and not only
recognize but also enforce.
We must notice here the importance of the courts. The Romans—at
any rate in the period of the Republic—thought-less of Stateauthority, making law by command, than they did of the authority of
the courts, giving effect to law (however made) by recognition and
enforcement of its rules and remedies. It is significant that the same
word jus is used to denote both the body of law and the courts
which enforce that body.
We may therefore say that what imposed the whole body of law and
made it binding on the members of the Roman community, was not
the command of a law-giver: it was rather the recognition given,
and the enforcement applied, by a law-court.
It is the law-court, and not the law-giver, which is summoned to the
mind by the notion of jus; and we may say of the Roman people,
what a modern writer has said of the English-speaking peoples,
that ‘to them, whether lawyers or not, law means a body of rules
enforced by the courts’.
That, for the Romans, was the criterion of law, and that is an
answer which may be given to the question, ‘How and in what way
has the general body of law been imposed and made binding on a
political society?’ We now come to the other question, ‘What is the
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origin of the various elements or branches of law which go to form
the general body?’
Here we have to inquire into the various sources of jus, and to
consider how its different elements emerged and acquired
definition. Custom, or unwritten law, or the jus consensu receptum,
was one of the sources, and it is still mentioned as such in the
Institutes of Justinian after a thousand years of legal development.
(The Digest of Justinian has even preserved a passage of the jurist
Julianus, approved and translated by Blackstone in the Introduction
to his Commentaries, which puts custom on a level with, and bases
it on the same foundation as, the declared rules of the written law.
‘For since the written law binds us for no other reason but because
it is approved by the judgment of the people, therefore those laws
which the people have approved without writing ought also to bind
everybody. For where is the difference whether the people declare
their assent to a law by suffrage, or by a uniform course of acting
accordingly?’)
Apart from custom, the two main sources of jus (the two sources
which formed the jus scriptum) were legislative declaration and
legal formulation. Legislative declaration itself in turn flowed from a
number of different springs: one spring, the original, was the
Roman people, from which proceeded leges; another spring, of a
later date, was the Roman Senate, from which proceeded
‘senatusconsults’—or senatorial decrees and ordinances hardly to
be distinguished from leges; still a third, of a still later date, was the
Roman princeps or emperor, from whom proceeded ‘constitutions’,
in a variety of forms (decrees, rescripts, and the like), all
possessing legis vigorem.
If legislative declaration was thus triple, legal formulation was
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double: it consisted partly of the edicts of the magistrates who sat in
the courts (edicts at first issued annually, as each new magistrate
took office, but becoming in process of time continuous and
traditional), and partly of the ‘responses’ of private persons ‘skilled
in the laws’ (jurisconsulti or jurisprudentes) who gave their opinion
as it were ‘in chambers’ when they were consulted, and to some
extent represented the view of the legal profession.
The whole of this process of legal formulation was a great source of
Roman law. The judges, and the legal profession behind them,
played no small part in the making of jus. We may thus conclude
that the sources of Roman law were multiple, and not single.
We may also conclude that the judges not only imposed the whole
body of law, in the sense that gave it legal effect by recognizing its
validity. They, and the jurisconsults behind them, were also the
makers, or at any rate the original declarers, of much of the law
they imposed.
Two results emerge from this summary review of the development
of Roman law. In the first place, the ‘imposing’ of law by the State is
seen to be, in effect, the recognizing and enforcing of it by the
courts. In the second place, the source of the law thus recognized
and enforced is seen to be at least twofold, even apart from
custom, and to consist not only of legislative declaration, but also of
legal formulation by the double agency of the courts and the
jurisconsults.
The same, or very similar, results emerge from a consideration of
the development of English law. In England, too, as well as in
Rome, law is the general body of rules recognized and enforced,
and in that sense imposed, by the courts.
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In England, too, as well as in Rome, the sources of law are twofold:
in part the judges, with the members of the legal profession behind
them, who have made, and continue to make, the ‘common law’; in
part the legislature, which enacts statutes and is thus the maker of
statute law, and which, being the immediate sovereign and sitting in
constant session, can at any time alter or annul the rules of the
‘common law’ in virtue of such sovereignty.
From England, therefore, as well as Rome, we may learn the
lessons (1) that the action of making law may proceed from more
than one agent, and may involve a number of forces or sources,
and (2) that over and above the action of making, and at least as
important as that action, there is also the action of imposing the
whole of the system of law (however its different parts may be
made) by a continuous process of recognition and enforcement
applied in and by the courts.
But when once it is made, by whatever bodies, and when in
addition it is steadily imposed by the recognition and enforcement
of the courts, law possesses the attribute of validity and produces
the effect of obligation. Valet—its injunction avails and prevails:
obligat—it binds men to an engagement of performing what is
enjoined.
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