Signs of a Law, Makalah Bahasa Inggris
CHAPTER 15
Signs of a Law
Signs of a Law
A law is an expression of will: that is an assemblage of signs expressive of an act of the will. These signs then may by possibility be any signs whatever which are capable of expressing such a will: the behaviour of him who instead of saying, put to death the chief leaders of the people, smote off the tallest heads among a parcel of poppies, might instead of being an advice, have been a command. But the only signs which can answer this purpose in a manner tolerably commodious are those conventional signs the assemblage of which forms what is called discourse.
Now the signs of which discourse is composed may either be of the transient kind, of which those most in use are articulate sounds: or they may be a sort of secondary symbols, permanent signs of the before mentioned transient ones, composing what is commonly called written, and what by a more comprehensive mode of appellation might be styled graphical discourse. Of the last description of all are what are commonly called statute or written laws. Of the first kind, are what in the English language are usually styled common or unwritten, but which might more aptly be styled customary laws. For the second, it being for so many ages out of date among civilized nations, no distinct denomination seems to ever have been in common use: they might be styled traditional statute laws: or more shortly traditional laws.
When the nature of those laws which are here called customary comes to be precisely understood, which it seems hardly to have been hitherto, the doubt above expressed will not be wondered at. These laws are nothing but so many autocratic acts or orders, which in virtue of the more extensive interpretation which the people are disposed to put upon them, have somewhat of the effect of general laws. Here it is to be observed that all verbal discourse is out of the question.
Perhaps there shall have been no verbal discourse made use of on the occasion: but if there be, it is not this verbal discourse that makes the law. For the verbal discourse containing the mandate of the judge is in point of extent particular, being confined to the assignable individuals to whom it is addressed: whereas what there is of law in the case must be general, applicable to an indefinite multitude of individuals not then assignable. A magistrate exercises some act of power over a particular individual: the assemblage of acts by which this is done serves as a sign to the people at large expressing that the like act of power will probably be exercised in future in a like case.
A Cadi comes by a Baker shop, and finds the bread short of weight: the baker is hanged in consequence. This, if it be part of the design that other bakers should take notice of it, is a sort of law forbidding the selling of bread short of weight under the pain of hanging. Whether the Cadi makes a record in writing attesting that the baker has sold bread short of weight, and issues an order to a public executioner to strangle him, or whether the Cadi himself without saying a word strangles him on the spot, is what to this purpose makes no difference.
The silent act of hanging when thus made a consequence of the offence has as good a title in point of extent to the appellation of a law as anything that could be made out of a whole shelf full of pleadings put together. Written law then is the law of those who can both speak and write: -traditional law, of those who can speak but can not write: customary law, of those who neither know how to write, nor how to speak. Written law is the law for civilized nations: traditionary law, for barbarians: customary law, for brutes.
Not but that there are plenty of books purporting to be books of customary or as it is more frequently called unwritten law: for if the written law is written, so is the unwritten too. But what are they? Books written not by the legislator but by private individuals: Books not of authoritative but of unauthoritative jurisprudence. In none of all these books is there so much as a single article which can with propriety receive the appellation of a law. It is owing rather to an imperfection which as we have seen is peculiar to the English tongue, if in that language they can with any degree of propriety be termed books of law: They contain jus indeed but not leges: Le droit, but not des loix.
If in all that has been ever written of this nature there be a single paragraph which (not being a passage copied from some statute) is seriously meant to pass for a paragraph of a law, I mean in the sense in which the word law is used in contradistinction to the word order, it is a forgery. Whether there be anything in it or not that has been marked with the stamp of authority, makes no difference: if authoritative, it is particular; and therefore no law: if general, it is unauthoritative: and therefore again no law. But of this a little farther on.