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
