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with indicating the nature of the general problem of hypothetical effects, and must reserve the investigation of its solution until we arrive at the subject of political theory. (*)
§ 2 The special case of the hypothetical problem in question is, when it is proposed to determine the effects which a certain supposed political measure would probably hereafter produce in a certain country, and with reference to a defined set of circumstances.
This problem may relate to the probable future operation, either of a law already in force, or of a mere legislative scheme, to which it is proposed to give the force of law.
The first of these cases is in general so much easier of solution than the second, that it need not be considered separately. When a law has been for some time in force, we are assisted by the light of experience in estimating its future effects. If the medium in which it operates is likely to remain unchanged, the effects of the law may be expected to remain unchanged likewise. If, on the other hand, that medium is about to undergo a change, the probable effects of the law, in the midst of a new set of circumstances, must be determined by a process similar to that adopted for determining the probable effects of a proposed law, except so far as the analogy of its prior effects, as they have actually occurred, may facilitate the process of reasoning, and afford firmer resting-places for conjecture. A law which is in force in one country, and which it is proposed to extend to another country, properly belongs to the second case of the problem. With respect to the country into which it is to be introduced, it is altogether a new and untried law. (3)
Confining our attention, therefore, to a new legislative plan proposed for adoption, let us first consider the process by which the draft of a law is framed. The end in view, positive or negative, being given, the framer of the law sets about considering what are the proper means within the reach of the legislature
(2) Belove, ch. xv.
(3) See Bentham, Traités de Legislation, tom. iii. p. 356: · Maximes relatives à la Manière de transplanter les Lois.'
for its attainment. Having devised these means, he adapts them to his purpose, by imagining all the different contingencies which are likely to arise, and by providing against these contingencies by suitable regulations. For example, if the draftsman is framing a law for the prevention of theft, he will provide for theft within a house, and in the open air; if within a house, whether by breaking into the house or not, and whether by day or by night. He will provide for theft from the person with violence, and for theft from the person without violence; for theft involving a breach of trust, and so on.
All written instruments intended to have a binding force, whether public, such as laws and treaties, or private, such as deeds and wills, are framed in this manner. Thus, in a settlement of property, all possible contingencies which can befal a certain family are provided for, as that A survives B; that B survives A ; that A dies leaving male issue; that he dies leaving only female issue; that he dies without issue, &c.
Now, in seeking to predict the effects of a proposed law, we put a certain construction upon its provisions, and thus determine the classes of persons or acts which will fall within them. The rules for the interpretation of written laws, which properly belong to the science of jurisprudence, and to the positive law of each country, are thus called in aid for the purpose of legislative prediction.
The rules according to which the written laws are interpreted by the tribunals of the country—whatever they may be-are the rules which should be applied to the construction of projects of law, and to the determination of their probable effects when enforced in practice. Accordingly, the attempt to anticipate the future effects of a legislative proposal, assumes the existence of fixed rules of interpretation for written laws, and of regular judicatories and other executive officers for their enforcement. A similar remark applies to treaties and other compacts between nations. Unless some customary rules of interpretation, as sanctioned by international law, are recognised by each of the
contracting parties, discussion of the terms to be agreed upon between them would be a mere waste of words. When, however, the meaning of those terms in an existing treaty is disputed, there is no authoritative tribunal by which the controversy can be decided. (0)
Taking, then, as our basis, the existence of a fixed system of interpretation for written laws, the method which is adopted for arguing upon the probable effects of a proposed legislative measure is to imagine hypothetical cases, in order to try its provisions, by considering how they would bear upon such a case if it actually occurred. This is generally expressed by the phrase, putting a case.' The problem is stated in this form : 'What would be the operation of the proposed law in such or such a
In fact, the discussion of a proposed law is a development of the process adopted by the draftsman in its preparation.
In the attempts which are made to solve this problem, questions usually arise as to the manner in which a certain hypothetical case would be affected by the proposed law. These questions (as we have already explained) can only be determined by applying to the proposed law the received rules of judicial interpretation; by treating the proposed law as if it were already in force, and the hypothetical case as if it had actually occurred, and by reasoning accordingly. When this question has been settled, it remains to be decided whether the law producing such an effect, in such a case, is expedient or inexpedient. The argument has, therefore, two stages: 1, How would the law under discussion bear upon the given case ? 2, Assuming its operation in that case to be determined, would that operation be beneficial or otherwise? (0)
(4). The interpretation of laws generally is treated by writers on general jurisprudence (as by Savigny, System des heut. Röm. Rechts, b. i. c. 4),and specially by the writers on each national system of law.-See Dwar. ris on Statutes, c. 12, 13, 14. The interpretation of treaties is discussed by the writers on international law.-See, e.g., Vatel, b. 2, c. 17.
Concerning the hermeneutic art, or the method of interpreting ancient authors, sacred and profane, see Bernhardy, Grundlinien zur Encyclopädie der Philologie, p. 59-111. This department of philology is of great extent and importance,
(5) Casus, for a case falling under a rule of law, is used occasionally
Thus, if a measure, changing the law of marriage, the law of debtor and creditor, or the law of landlord or tenant, in any country, were brought forward, various cases would be suggested with respect to existing rights, to inchoate rights, and to future rights, for the purpose of trying the proposed enactment, and of determining its probable operation. In some cases, perhaps, it would appear upon examination that the existing law met the alleged evil, and, therefore, that the proposed change was superfluous : in others, that it would aggravate the evil, and would, therefore, be mischievous : in others, that it would remove or mitigate the evil, and ought therefore to be adopted : as in the construction of a statute, the old law, the mischief, and the remedy,(() would be the points for consideration. A similar mode of reasoning would be applicable to a proposition for a new tax, for new regulations respecting the army and navy, or for a new measure respecting the maintenance of the clergy, the repair of roads, or the carriage of letters : various suppositions would be made, some having reference to a particular state of facts, some having reference to various legal rules, for the purpose of testing the probable operation of the new scheme, and of considering it under a variety of aspects.
The imaginary cases which are supposed in legislative debate, for the purpose of trying the probable influence of a proposed law, are therefore analogous to the actual cases which come before a court, and to which a judge is required to apply the existing law. Such hypothetical cases bear the same relation to real cases, as fictitious narrative bears to history. Opinions of counsel upon actual cases are exactly similar to the decisions of a court upon judicial questions, and are given upon similar grounds. The problem of the judge or legal practitioner, how
by the classical Roman jurists.-See Dirksen, Man. Jur. Civ. Rom. in v. Species is likewise used in the same sense; and ponere, for putting a case. -See Dig. iii. 5, § 34.
A case is an aggregate of circumstances, considered with reference to the manner in which they are affected by some legal rule or enactment, The same expression is used with respect to a treaty-casus fæderis.
(6) Above, ch. xii. $ 6.
ever, is simply to apply the words of an existing law to the facts of an actual case: () the problem of the legislator is to apply the words of a proposed law to a hypothetical case, and then to determine if the operation of the law, in such a case, would be beneficial. It may be remarked, that the complexity of actual cases is, in general, far greater than that of hypothetical cases. Practice spontaneously turns up difficulties far harder of solution than any which the most fertile imagination, or the most hostile criticism, can devise beforehand.(0) This arises in part from the unforeseen combination of the new enactment with other preexisting rules of law. If every case fell under only one legal rule, the application of law to facts would be a comparatively
It is sometimes said, that the probable operation of a proposed law is best tried by supposing an extreme case. But this argumentative artifice must be employed with great reserve. Extreme cases, although they serve to make the arguer's meaning clear, do not in general try a law fairly, or lead to a safe practical inference.(") Rare and improbable cases may be suggested, which would undoubtedly lead to absurd consequences, provided that the law is to be enforced with inflexible rigour, and that no discretion is to be exercised in its administration. We know, however, from experience, that laws are not administered in this manner. In the first place, it is laid down by the text-writers, both of international and national law, that,
(7) Hypothetical cases, with respect to the application of a rule of law, may likewise be put by lawyers, for the sake of argument.
(8) 'Sapientissima res tempus (ut ab antiquis dictum est), et novorum casuum quotidie auctor et inventor.'--Bacon, De Augm. Sci. viii. aph. 32. The saying as to the wisdom of Time, as being the great discoverer, is attributed to Thales.- Plutarch, Sept. Sap. Conv. c. 9. Time was proverbially said to be the wisest of counsellors, Plutarch, Pericl. 18.
(9) It is a maxim in Westminster Hall, that hard cases make bad law. The meaning of the maxim is, that when an extreme case occurs in practice, for which the law has not provided, the court is disposed to strain the legal rule beyond its proper extent, in order to give relief in the case before them. In thus stretching the rule to meet an extraordinary case, they are likely to render it applicable to some ordinary cases, to which it ought not to apply.