the function of the judge is confined within ever-narrowing limits; the main source of modifications in legal relations comes to be more and more exclusively the Legislature. § 2. I have examined with some minuteness the process of development of law in a modern community, because it is due to the special characteristics of this process that the differences in such a community between Law and Positive Morality, when compared merely as intelligible systems of rules without regard to the motive for obeying them, are as striking and instructive as the differences in the sanctions attached to the two systems. We can see how Law must inevitably be greatly superior to Positive Morality in definiteness and consistency; since in the case of moral rules there is no judicial process by which doubts as to what the accepted rule is on any question can be authoritatively settled, and no legislative process by which any divergence from what, in the opinion of thoughtful persons, ought to be established morality, can be at once and decisively removed. And it may be observed that the differences between the two systems of rules, both in respect of sanction and in respect of systematic intelligibility, have tended to become more marked as modern civilisation has developed. In earlier stages of European civilisation, there has often been law in real operation, in the sense of a complicated system of precise rules applied to the guidance of men's conduct by experts whose authority is generally accepted, with little or no governmental force sustaining the acceptance of the rules. Under these circumstances, Law approaches to Positive Morality in respect of its sanction; and, on the other side, in periods when casuistry has really flourished,—as in the period of the later Middle Ages,-Positive Morality has 1 For instance, Maine, in his account of the ancient Irish Law developed by the Brehons (Early History of Institutions, chap. ii.), says that "the process of the Irish Courts, even if it was compulsory, was at the utmost extremely weak ;" and "that it is at least a tenable view that the institutions which stood in the place of Courts of Justice only exercised jurisdiction through the voluntary submission of intending litigants." Similarly-as I learn from Mr. Bryce-in Iceland in the latter part of the tenth and the eleventh centuries the so-called Courts of Law had no coercive force at all. shown an approximation to Law in the elaborateness and precision of its rules. From the fourteenth century onward, the acumen and industry of ecclesiastical writers were largely occupied in working out in a quasi-legal manner a body of rules, to be applied in the confessional to the practical guidance of ordinary private members of the medieval community while, before the Reformation, there was no disposition, at once strong, widespread, and unconcealed, to dispute the claim of these writers to authority in the matters with which they dealt. If we ask why this quasi-legal treatment of morality fell into the disrepute in which it now lies, there is a twofold answer to be given,-apart from the general indignation caused by Jesuitry, the effect of which taken alone would doubtless only have been transient. Partly the belief came to be widely held that in matters of morality, speaking broadly, any one honest man is as much an expert as any other, and that it is his duty to exercise his own judgment and follow the light of his own conscience. Partly-so far as some further enlightenment of a plain man's conscience was felt to be a desideratum-experience was thought to have shown the danger of trying to obtain this enlightenment from the industry and ingenuity of systematic moralists, exercised in formulating precisely the generally accepted rules: since the quasi-legal process of scrutinising closely the cases of difficulty and apparent conflict among such rules, in order to draw the lines of duty clear, must tend to bring into demoralising prominence the uncertainty and disagreement among experts on moral questions: while the lack of an authority to decide controversies rendered it impossible to reduce the element of doubt and discussion in the manner in which it is continually reduced in the development of law. And thus, as I have said, the moral code of a modern country has come to be necessarily inferior as an intelligible system to its law, because in the case of the former every man is encouraged to think himself a judge, there is no final court of appeal, and no one can admit any external legislation. The consequence of this is, not only that we find, in the generally accepted moral code of a modern society, an amount of conflict, vagueness, and uncertainty, that could not for a moment be tolerated in modern law: but also that, when we examine closely the aggregate of opinions and sentiments, the expression of which constitutes the effective sanction of positive morality, we find, along with the generally accepted code, a number of special codes, more or less divergent from it on important points. What is called the code of honour -the rules of behaviour maintained by the consensus of gentlemen in modern Europe-is a well-known instance of this but the same phenomenon is exhibited in some degree by various other divisions of society, based upon different grounds-by religious sects and parties, and the members of different trades and professions. And thus sometimes, owing to the prevalence of particular religious sects or industrial classes, or perhaps only of particular schools of thought or drifts of opinion, in different localities, we find important local variations in the popular judgment as to what is mischievous or the reverse in conduct. § 3. Let us now proceed to consider the practical relations between the two systems of rules that we have been comparing. Firstly, it is obviously of fundamental importance to Government that the rules it lays down and enforces should come as little as possible into conflict with positive morality. If Government invades popularly recognised rights, or maintains rights popularly regarded as wrongs; if it compels a man by legal penalties to do what he is commonly thought right in refusing to do, or to abstain from doing what is commonly thought innocent or even laudable, the conflict is dangerous in two ways: it renders it difficult to enforce the law in the particular case without an unusual exercise of force and consequent intense and diffused annoyance, and it has a serious tendency to weaken the habit of obedience to law and government in the citizens generally. Hence, when any new governmental interference of a coercive kind is required to repress practices dangerous to social wellbeing, or otherwise to attain some important public end, it is expedient, if possible, that it should only take place after public attention has been strongly called to the need which the new regulations are designed to meet.1 Further, owing to the divergences that we have noted in Positive Morality, it is always possible that even legislative measures that have the approval of the majority may come into conflict with the moral beliefs and sentiments of important portions of the community: and the prospect of this may be a decisive reason for deferring or modifying governmental interference that would be otherwise expedient. Even if the legislation in question is not exactly disapproved as immoral, it must always be a serious drawback to its expediency that it will have to contend with strong forces of desire, interest, and habit, without receiving effective support from Positive Morality. Thus the actual condition of the positive morality of the community-including under the term all opinions as to the bad and good effects of actions-confines within rather narrow limits the power of an enlightened Government to act upon the community governed in conformity to the conclusions of the highest political wisdom of the time. On the other hand, it is no less important to note that the legislator has within limits a valuable power of modifying positive morality. Through the general habit of law-observance and the general recognition of the duty of obeying rules laid down by a legitimate authority—which we may expect to find in any well-ordered community-the legislator may first obtain a general obedience to rules to which current morality is indifferent or even mildly averse; and then by the reaction of habitual conduct on opinion, a moral aversion to the opposite conduct may gradually grow up. In other cases, where Government interferes to prevent mischievous acts which are already regarded with some degree of moral disapprobation, though feeble and ineffective, the legislator or judge may produce a more sudden and impressive effect by giving sharpness and decision to this 1 In a state under popular government, it is of course impossible that any decided conflict between law and the moral opinion of a majority of the electorate should be more than very temporary. disapprobation. Especially we may say that the judicial organ of government is within certain limits accepted as a moral expert; if within these limits it classifies an act with crimes, the world is prepared so to regard it. § 4. But Positive Morality, in a well-ordered State, does not only support the action of Government: it has as I said at the outset the further important function of regulating conduct in matters beyond the range of governmental coercion. To consider in detail how this function ought to be performed would be to write a treatise on ethics: but we may briefly note certain parts of social conduct when for special reasons the influence of moral opinion is indispensable or preferable, as a means of producing the kind of effects at which Law aims. In this survey it is convenient to distinguish between the penalties of Positive Morality and its rewards-moral censure and moral approval or praise. It is to the operation of moral censure that our attention is naturally directed in studying the analogy between Law and Morality, and I shall accordingly begin by considering it: but, as we shall presently see, the respective functions of censure and praise cannot be sharply separated. Firstly, then, moral censure is the chief resource that remains available, when the means which the legislator employs fail to attain the end which he has in view, from accidental circumstances defeating their normal operation. For instance, we have seen that the legal validity of contracts is subjected to certain conditions, imposed to prevent coercion and deception, and to secure due deliberation on the part of the contractors: but granting that these conditions may be rightly imposed as generally suitable to the end in view, still particular cases may occur in which an engagement was clearly made with full deliberation and without any improper inducements being applied, although the legal conditions have not been fulfilled. In such cases it is generally desirable that the violation of the engagement should be censured, though reparation cannot be legally exacted. again, a testator may accidentally fail to make a valid will, though his intention may be expressed with sufficient clear So |