高考英語(yǔ) 可能考的名著《Ancient Law》02素材

1、Ancient LawAncient Lawby Henry MaineChapter 2Legal Fictions When primitive law has once been embodied in a Code, there isan end to what may be called its spontaneous development.Henceforward the changes effected in it, if effected at all, areeffected deliberately and from without. It is impossible t

2、osuppose that the customs of any race or tribe remained unalteredduring the whole of the long - in some instances the immense -interval between their declaration by a patriarchal monarch andtheir publication in writing. It would be unsafe too to affirmthat no part of the alteration was effected deli

3、berately. Butfrom the little we know of the progress of law during thisperiod, we are justified in assuming that set purpose had thevery smallest share in producing change. Such innovations on theearliest usages as disclose themselves appear to have beendictated by feelings and modes of thought whic

4、h, under ourpresent mental conditions, we are unable to comprehend. A new erabegins, however, with the Codes. Wherever, after this epoch, wetrace the course of legal modification we are able to attributeit to the conscious desire of improvement, or at all events ofcompassing objects other than those

5、 which were aimed at in theprimitive times. It may seem at first sight that no general propositions worthtrusting can be elicited from the history of legal systemssubsequent to the codes. The field is too vast. We cannot be surethat we have included a sufficient number of phenomena in ourobservation

6、s, or that we accurately understand those which wehave observed. But the undertaking will be seen to be morefeasible, if we consider that after the epoch of codes thedistinction between stationary and progressive societies beginsto make itself felt. It is only with the progressive that we areconcern

7、ed, and nothing is more remarkable than their extremefewness. In spite of overwhelming evidence, it is most difficultfor a citizen of western Europe to bring thoroughly home tohimself the truth that the civilisation which surrounds him is arare exception in the history of the world. The tone of thou

8、ghtcommon among us, all our hopes, fears, and speculations, would bematerially affected, if we had vividly before us the relation ofthe progressive races to the totality of human life. It isindisputable that much the greatest part of mankind has nevershown a particle of desire that its civil institu

9、tions should beimproved since the moment when external completeness was firstgiven to them by their embodiment in some permanent record. Oneset of usages has occasionally been violently overthrown andsuperseded by another; here and there a primitive code,pretending to a supernatural origin, has been

10、 greatly extended,and distorted into the most surprising forms, by the perversityof sacerdotal commentators; but, except in a small section of theworld, there has been nothing like the gradual amelioration of alegal system. There has been material civilisation, but, insteadof the civilisation expand

11、ing the law, the law has limited thecivilisation. The study of races in their primitive conditionaffords us some clue to the point at which the development ofcertain societies has stopped. We can see that Brahminical Indiahas not passed beyond a stage which occurs in the history of allthe families o

12、f mankind, the stage at which a rule of law is notyet discriminated from a rule of religion. The members of such asociety consider that the transgression of a religious ordinanceshould be punished by civil penalties, and that the violation ofa civil duty exposes the delinquent to divine correction.

13、InChina this point has been passed, but progress seems to have beenthere arrested, because the civil laws are coextensive with allthe ideas of which the race is capable. The difference betweenthe stationary and progressive societies is, however, one of thegreat secrets which inquiry has yet to penet

14、rate. Among partialexplanations of it I venture to place the considerations urged atthe end of the last chapter. It may further be remarked that noone is likely to succeed in the investigation who does notclearly realise that the stationary condition of the human raceis the rule, the progressive the

15、 exception. And anotherindispensable condition of success is an accurate knowledge ofRoman law in all its principal stages. The Roman jurisprudencehas the longest known history of any set of human institutions.The character of all the changes which it underwent is tolerablywell ascertained. From its

16、 commencement to its close, it wasprogressively modified for the better, or for what the author ofthe modification conceived to be the better, and the course ofimprovement was continued through periods at which all the restof human thought and action materially slackened its pace, andrepeatedly thre

17、atened to settle down into stagnation. I confine myself in what follows to the progressivesocieties. With respect to them it may be laid down that socialnecessities and social opinion are always more or less in advanceof Law. We may come indefinitely near to the closing of the gapbetween them, but i

18、t has a perpetual tendency to reopen. Law isstable; the societies we are speaking of are progressive. Thegreater or less happiness of a people depends on the degree ofpromptitude with which the gulf is narrowed. A general proposition of some value may be advanced withrespect to the agencies by which

19、 Law is brought into harmony withsociety These instrumentalities seem to me to be three in number,Legal Fictions, Equity, and Legislation. Their historical orderis that in which I have placed them. Sometimes two of them willbe seen operating together, and there are legal systems whichhave escaped th

20、e influence of one or other of them. But I know ofno instance in which the order of their appearance has beenchanged or inverted. The early history of one of them, Equity, isuniversally obscure, and hence it may be thought by some thatcertain isolated statutes, reformatory of the civil law, areolder

21、 than any equitable jurisdiction. My own belief is thatremedial Equity is everywhere older than remedial Legislation;but, should this be not strictly true, it would only be necessaryto limit the proposition respecting their order of sequence tothe periods at which they exercise a sustained and subst

22、antialinfluence in trans forming the original law. I employ the word "fiction" in a sense considerably widerthan that in which English lawyer are accustomed to use it, andwith a meaning much more extensive than that which belonged tothe Roman "fictiones." Fictio, in old Roman law

23、, is properly aterm of pleading, and signifies a false averment on the part ofthe plaintiff which the defendant was not allowed to traverse;such, for example, as an averment that the plaintiff was a Romancitizen, when in truth he was a foreigner. The object of these"fictiones" was, of cour

24、se, to give jurisdiction, and theytherefore strongly resembled the allegations in the writs of theEnglish Queen's Bench, and Exchequer, by which those Courtscontrived to usurp the jurisdiction of the Common Pleas: - theallegation that the defendant was in custody of the king'smarshal, or tha

25、t the plaintiff was the king's debtor, and couldnot pay his debt by reason of the defendant's default. But I nowemploy the expression "Legal Fiction" to signify any assumptionwhich conceals, or affects to conceal, the fact that a rule oflaw has undergone alteration, its letter rema

26、ining unchanged, itsoperation being modified. The words, therefore, include theinstances of fictions which I have cited from the English andRoman law, but they embrace much more, for I should speak both ofthe English Case-law and of the Roman Responsa Prudentum asresting on fictions. Both these exam

27、ples will be examinedpresently. The fact is in both cases that the law has been whollychanged; the fiction is that it remains what it always was. It isnot difficult to understand why fictions in all their forms areparticularly congenial to the infancy of society. They satisfythe desire for improveme

28、nt, which is not quite wanting, at thesame time that they do not offend the superstitious disrelish forchange which is always present. At a particular stage of socialprogress they are invaluable expedients for overcoming therigidity of law, and, indeed, without one of them, the Fiction ofAdoption wh

29、ich permits the family tie to be artificially created,it is difficult to understand how society would ever have escapedfrom its swaddling clothes, and taken its first steps towardscivilisation. We must, therefore, not suffer ourselves to beaffected by the ridicule which Bentham pours on legal fictio

30、nswherever he meets them. To revile them as merely fraudulent is tobetray ignorance of their peculiar office in the historicaldevelopment of law. But at the same time it would be equallyfoolish to agree with those theorists, who, discerning thatfictions have had their uses, argue that they ought to

31、bestereotyped in our system. They have had their day, but it haslong since gone by. It is unworthy of us to effect an admittedlybeneficial object by so rude a device as a legal fiction. Icannot admit any anomaly to be innocent, which makes the laweither more difficult to understand or harder to arra

32、nge inharmonious order. Now legal fictions are the greatest ofobstacles to symmetrical classification. The rule of law remainssticking in the system, but it is a mere shell. It has been longago undermined, and a new rule hides itself under its cover.Hence there is at once a difficulty in knowing whe

33、ther the rulewhich is actually operative should be classed in its true or inits apparent place, and minds of different casts will differ asto the branch of the alternative which ought to be selected. Ifthe English law is ever to assume an orderly distribution, itwill be necessary to prune away the l

34、egal fictions which, inspite of some recent legislative improvements, are still abundantin it. The next instrumentality by which the adaptation of law tosocial wants is carried on I call Equity, meaning by that wordany body of rules existing by the side of the original civil law,founded on distinct

35、principles and claiming incidentally tosupersede the civil law in virtue of a superior sanctity inherentin those principles. The Equity whether of the Roman Praetors orof the English Chancellors, differs from the Fictions which ineach case preceded it, in that the interference with law is openand av

36、owed. On the other hand, it differs from Legislation, theagent of legal improvement which comes after it, in that itsclaim to authority is grounded, not on the prerogative of anyexternal person or body, not even on that of the magistrate whoenunciates it, but on the special nature of its principles,

37、 towhich it is alleged that all law ought to conform. The veryconception of a set of principles, invested with a highersacredness than those of the original law and demandingapplication independently of the consent of any external bodybelongs to a much more advanced stage of thought than that towhic

38、h legal fictions originally suggested themselves. Legislation, the enactments of a legislature which, whetherit take the form of an autocratic prince or of a parliamentaryassembly, is the assumed organ of the entire society, is the lastof the ameliorating instrumentalities. It differs from LegalFict

39、ions just as Equity differs from them, and it is alsodistinguished from Equity, as deriving its authority from anexternal body or person. Its obligatory force is independent ofits principles. The legislature, whatever be the actualrestraints imposed on it by public opinion, is in theoryempowered to

40、impose what obligations it pleases on the members ofthe community. There is nothing to prevent its legislating in thewantonness of caprice. Legislation may be dictated by equity, ifthat last word be used to indicate some standard of right andwrong to which its enactments happen to be adjusted; but t

41、henthese enactments are indebted for their binding force to theauthority of the legislature and not to that of the principles onwhich the legislature acted; and thus they differ from rules ofEquity, in the technical sense of the word, which pretend to aparamount sacredness entitling them at once to

42、the recognition ofthe courts even without the concurrence of prince orparliamentary assembly. It is the more necessary to note thesedifferences, because a student of Bentham would be apt toconfound Fictions, Equity, and Statute law under the single headof legislation. They all, he would say, involve

43、 law-making; theydiffer only in respect of the machinery by which the new law isproduced. That is perfectly true, and we must never forget it;but it furnishes no reason why we should deprive ourselves of soconvenient a term as Legislation in the special sense.Legislation and Equity are disjoined in

44、the popular mind and inthe minds of most lawyers; and it will never do to neglect thedistinction between them, however conventional, when importantpractical consequences follow from it. It would be easy to select from almost any regularlydeveloped body of rules examples of legal fictions, which at o

45、ncebetray their true character to the modern observer. In the twoinstances which I proceed to consider, the nature of theexpedient employed is not so readily detected. The first authorsof these fictions did not perhaps intend to innovate, certainlydid not wish to be suspected of innovating. There ar

46、e, moreover,and always have been, persons who refuse to see any fiction inthe process, and conventional language bear out their refusal. Noexamples, therefore, can be better calculated to illustrate thewide diffusion of legal fictions, and the efficiency with whichthey perform their two-fold office

47、of transforming a system oflaws and of concealing the transformation. We in England are well accustomed to the extension,modification, and improvement of law by a machinery which, intheory, is incapable of altering one jot or one line of existingjurisprudence. The process by which this virtual legis

48、lation iseffected is not so much insensible as unacknowledged. Withrespect to that great portion of our legal system which isenshrined in cases and recorded in law reports, we habituallyemploy a double language and entertain, as it would appear, adouble and inconsistent set of ideas. When a group of

49、 facts comebefore an English Court for adjudication, the whole course of thediscussion between the judge and the advocate assumes that noquestion is, or can be, raised which will call for theapplication of any principles but old ones, or any distinctionsbut such as have long since been allowed. It i

50、s taken absolutelyfor granted that there is somewhere a rule of known law whichwill cover the facts of the dispute now litigated, and that, ifsuch a rule be not discovered, it is only that the necessarypatience, knowledge, or acumen is not forthcoming to detect it.Yet the moment the judgment has bee

51、n rendered and reported, weslide unconsciously or unavowedly into a new language and a newtrain of thought. We now admit that the new decision has modifiedthe law. The rules applicable have, to use the very inaccurateexpression sometimes employed, become more elastic. In fact theyhave been changed.

52、A clear addition has been made to theprecedents, and the canon of law elicited by comparing theprecedents is not the same with that which would have beenobtained if the series of cases had been curtailed by a singleexample. The fact that the old rule has been repealed, and that anew one has replaced

53、 it, eludes us, because we are not in thehabit of throwing into precise language the legal formulas whichwe derive from the precedents, so that a change in their tenor isnot easily detected unless it is violent and glaring. I shall notnow pause to consider at length the causes which have led English

54、lawyers to acquiesce in these curious anomalies. Probably it willbe found that originally it was the received doctrine thatsomewhere, in nubibus or in gremio magistratuum, there existed acomplete, coherent, symmetrical body of English law, of anamplitude sufficient to furnish principles which would

55、apply toany conceivable combination of circumstances. The theory was atfirst much more thoroughly believed in than it is now, and indeedit may have had a better foundation. The judges of the thirteenthcentury may have really had at their command a mine of lawunrevealed to the bar and to the lay-publ

56、ic, for there is somereason for suspecting that in secret they borrowed freely, thoughnot always wisely, from current compendia of the Roman and Canonlaws. But that storehouse was closed so soon as the pointsdecided at Westminster Hall became numerous enough to supply abasis for a substantive system

57、 of jurisprudence; and now forcenturies English practitioner have so expressed themselves as toconvey the paradoxical proposition that, except by Equity andStatute law, nothing has been added to the basis since it wasfirst constituted. We do not admit that our tribunals legislate;we imply that they have never legislated; and yet we maintainthat the rule