Slike strani

in the construction of any instrument, absurd consequences are to be rejected. This is the doctrine of Grotius, (o) followed and enforced by Puffendorf(") and Vatel. (12) Even the English law, which holds that where the words of a statute are plain, the courts are bound to enforce them, without regard to consequences, yet admits important limitations to this general rule. Wherever the meaning is doubtful, or there is a conflict of provisions, or the consequence is indirect, the argumentum ab inconvenienti is allowed to have great weight.(18) Various technical contrivances, and forced constructions, are likewise resorted to by courts of justice, for the purpose of eluding the absurdities and inconveniences which would arise from an enforcement of the plain meaning of statutes.(4) Whenever a discretionary power is vested in the executive authorities, the administration of a law is so conducted as to avoid any obviously mischievous consequences, and the expression of popular opinion with respect to its anticipated operation restrains the action of the government. Hence, the supposition of extreme cases does not furnish a fair practical test of the probable working of a legislative enactment. It is quite conceivable that a law, which is on the whole likely to be attended with a great preponderance of beneficial consequences, might lead, in certain imaginary cases, to absurd results, provided that it were enforced with a blind and mechanical rigour. It has been shown above, that the argument upon the probable effects of a proposed law has two stages—1, How would it operate in a given case ? 2, Would that operation be beneficial, or otherwise ? Now the second stage of this argument becomes unnecessary, if it appears that the supposed case is so unlikely to occur, or, if it were to occur, so unimportant, that the operation of the pro

(10) J. B. et P. ii. 16, § 6.

(11) L. v. c. 12, § 8. (12) ï. § 282. Compare Cic. de Invent. i. c. 38. (13) Dwarris, ib. p. 755.

(14) On the subject of forced constructions of statutes, see the first Report of the Criminal Law Commissioners.

posed law with respect to it is not worthy of consideration. De minimis non curat lex is a maxim applicable to the making, as well as to the execution of laws. Extreme cases, however, are not only improbable as to their event, but also limited in their application. Nevertheless (as has been already stated) an extreme case may, in arguing upon the effects of laws, be properly used for the purpose of illustrating the objector's meaning; and although it does not, as in mathematics, effectually bring about a reductio ad absurdum, yet it shows clearly the character and scope of the objection, by raising it to its highest power.

The same method as that employed for investigating the probable effects of laws, is also applicable to treaties and other international agreements. Thus, if an alliance for mutual defence with a foreign state is proposed for discussion, the various contingencies under which the treaty would be called into action, the casus fæderis, would have to be considered, and, according to the probable results of the treaty in the supposed circumstances, would a judgment as to its expediency or inexpediency be formed. So, if it were proposed to consider what would be the effect of a clause in a treaty, by which two nations agreed to refer all differences to arbitration, various hypotheses might be made as to the probable effects of such a clause under different contingencies. What (it might be said) would be the event, if one party refused to submit to the arbitration before it was made, or, when it was made, objected to it as unjust and unreasonable ; if the arbitrators appointed could not agree, or were corrupted or intimidated, or exceeded their powers; if the terms of reference were improperly framed? (15)

§ 3 Having described the process by which the probable effects of a legislative scheme are calculated, and having illustrated the method of putting hypothetical cases to try its operation in various contingencies, we have next to inquire how far the future operation of a proposed law can be ascertained by


(15) See Vatel, b. 2, § 329.

| 1.

these means, and how far the predictions thus made are likely to accord with the event when it actually occurs.

In assigning the effects of a past and historical cause, our attention is mainly directed to that aggregate of positive conditions which determined their occurrence; we take little note of the negative conditions, of the absence of those circumstances which, if they had been present, would have counteracted the operation of the composite cause. When one event has been produced by other antecedent events, we usually describe the sequence absolutely, without suggesting all the hypothetical cases which, if they had occurred, would have prevented the sequence. When such hypothetical cases are suggested (for example, when it is said that if such and such steps had been taken, a battle which was lost might have been won, a town which was taken might have been defended), they are in general made the subjects of separate consideration. But in anticipating the probable effect of a hypothetical cause in politics, we are unable to follow so direct a road. It is necessary to take account, not only of the positive, but also of the negative conditions for the operation of the cause in question.

In physics, the negative as well as positive conditions for the operation of a cause can sometimes be predetermined ; and the future effect can then be anticipated with certainty. We expect, for example, without any doubt, that the sun will appear to-morrow above the horizon at the customary time, and change night into day. If no solar eclipse has been calculated for that period, we anticipate confidently, (from our experience of the past,'and our confidence in the stability of nature, that no opaque body intervening between the sun and the earth, nor any other impediment, will prevent the illumination of our planet by his rays. Again, in the experimental physical sciences, all negative conditions counteracting the operation of a given cause can be artificially removed ; so that in this department of

l physics the effects of a given cause can be known beforehand. But in politics, we can neither enumerate all the negative conditions requisite for the operation of a given cause, and the production of a hypothetical effect, nor can we control the influence of those conditions, as in the experimental sciences. In politics, therefore, we can only say, with reference to the

, future, that a specified cause will produce a certain effect, in case not only the conditions requisite for its production are present, but the circumstances adverse to its production are absent. The circumstances which may, by possibility, impede the operation of a political cause are so numerous, that they may be considered as infinite; they defy enumeration, and cannot be exhausted by any preliminary view. This multiplicity of possible impediments to the action of a cause is not peculiar to politics ; it is common to all human affairs, and is, indeed, shared by a large number of physical causes. (16) Thus, when we put a letter into the post, or charter a ship for a voyage, we know that, if certain obstacles do not occur, the letter or the ship will reach its destination ; but the existence of possible impediments is a matter of uncertain conjecture. So, in mechanics, when a body is set in motion, it will advance until its motion is arrested by counteracting causes. In the operations of animated nature, the action of numerous causes can be anticipated, subject to the uncertainty which attends their repression by adverse influences. Again, the action of any political cause may be accelerated by concurrent causes, tending in the same direction. In this manner, the operation of a law may be carried beyond the intention of its authors; it may produce effects deeper, wider, and more acutely felt, than they anticipated. By the addition of such unforeseen forces, a pressure which was intended merely to support, may be sufficient to overthrow-a remedy which

(16) See Mill's Logic, vol. i p. 523: 'All laws of causation, in consequence of their tendency to be counteracted, require to be stated in words affirmative of tendencies only, and not of actual results. In those sciences of causation which have an accurate nomenclature, there are special words which signify a tendency to the particular effect with which the science conversant; thus, pressure, in mechanics, is synonymous with tendency to motion; and forces are not reasoned upon as causing actual motion, but as exerting pressure. A similar improvement in terminology would be very salutary in many other branches of science.'

[ocr errors]

was intended to act as a medicine, may be converted into a poison.

§ 4 In speaking, therefore, of the probable or hypothetical operation of a specific political cause, we can only say that, if it be neither wholly impeded and overborne, nor partially repressed and retarded, nor unduly accelerated in practice, it will produce a given effect; in other words that it tends, in the particular instance, to produce a given effect. Now, in anticipating the probable effects of a law or other political measure, proposed for adoption, we can, in general, by the methods of reasoning explained above, form a well-grounded judgment as to its tendency; that is to say, we can predict its effects, upon the assumption that its operation is left to its natural course. We can, however, do more than this : although the number of conceivable impediments to the operation of a political cause may be considered as unlimited, yet the number of probable impediments is often susceptible of previous calculation. When a law is under consideration, it can be perceived that its tendency, or intended operation, is likely to be impeded by various counteracting forces, the direction and intensity of which can, within certain limits of error, be measured beforehand. Hence the promoters of the law, foreseeing the impediments which it is likely to encounter, are able to devise and prepare means for overcoming these impediments.

A simple illustration of this anticipation of consequences is afforded by the case of a tax, imposed with the view of raising a revenue for the government. If resistance to the collection of the tax is expected, the government may provide a sufficient force of police and military to assist the collectors in levying the impost. In this manner, it may be expected that the causes likely to counteract the intended operation of the law will themselves be effectually counteracted.

Not unfrequently, however, it is necessary to advance, in the anticipation of consequences, one or more steps beyond this point. It may be foreseen that the defences provided against the adverse influences will themselves be attacked : that an attempt will be

« PrejšnjaNaprej »