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it were, in one and the same moment, conceived, formulated, and applied. But no one is ignorant that the coming into force of any rule whatever pre-supposes a very complicated process and often a very long one.
There are, among all Peoples, some fundamental convictions regarding modes and aims of conduct, which represent the common exigencies of human nature, displayed according to the degree of their development, and in relation to certain elements of outward fact. Such convictions determine generally all the forms under which life shews itself, and accordingly the juridical system among others, although they are not found written in the provisions of any code. Subordinate to these fundamental determinations, which have as their distinguishing characteristic a minimum of liability to change, juridical rules come to be elaborated and modified, together with the other rules of conduct. This process of elaboration is of its nature continuous, and takes place as much by collective and anonymous action as by specially constituted organs, which are of use only in so far as they are recognized and accepted by the preponderant social will (principle of “historical sufficient reason ''). Sometimes the formulation of the rule precedes and determines its observance; at other times the contrary happens, and the rule is first observed and applied before it is expressed. In every case, the will which formulates itself in imperative terms represents the result and synthesis of many wills: the historical establishment of Right has always had root in the exigencies and aspirations of individual consciences. Not that these are constantly in unison with each other, as if simultaneously inspired by a transcendent existence, as the historical school supposed. The truth is rather that every subject helps in a certain manner, even though it may be in a minimum degree, in the production of Right, bringing his juridical appraisements to intervene in the social fabric along with those of others. That which we call the positive Right of a people is accurately the average expression of these evaluations, their equation in historical fact, always approximate, and therefore constantly in process of renewal.
If by positive Right we understand that which, at a given moment, effectively governs the life of a people, it is clear that we should understand it to include also that part which was never the object of any express establishment; whence it would be absurd to restrict, for example, the qualification of “positive ’’ to such Right only as is established by statute. Rather it may well be asked if all that which is established by statute is really positive Right. As regards which, it is as well to remember, in the first place, that in many statutes there are found elements which are not juridical; for example, historical narrations, affirmations of faith, financial calculations; and the distinction between “formal laws” and “material laws ' based precisely on the recognized want, in some statutes, of a truly and specifically juridical content. More. over, even if we take statutes containing rules of Right, it cannot really be said that they are always “positive,” through the mere fact of their promulgation. They may have the extrinsic marks of validity; but we are obliged to have regard, according to the above criterion, to their effective application and applicability. Cases of statutes which have not been expressly abrogated, and have nevertheless remained and be: come a dead letter, occur frequently in the judicial history, even of highly advanced peoples; whether on account of the fact that contingencies of events prevent the possibility of putting certain rules into practice, or whether on account of the acceptance of new judicial principles in their place. Not, therefore, all statutes—as, on the other hand, not only statutes —really constitute the positive Right of a people.
Neither can the “positive ’’ quality be made to depend on practice alone, even if constantly followed. The repetition of uniform acts is not enough in itself to produce a custom in the juridical sense. There are rules generally observed, often from time immemorial, and founded on an idea of utility and convenience, which nevertheless do not imply any obligation so far as the relations between individuals are concerned. There are also rules, which are reputed obligatory in the sense that their infraction would justify public blame, but which are all the same without any objective exigibility; whence the character of Right is denied them, and with IreaSOIl.
In order that a positive Right may really exist it is not enough, therefore, to have the abstract expression of a juridical precept, nor, on the other hand, the observance of any usage whatsoever; but it is necessary that a criterion of a juridical nature—that is, one which establishes an obligation and a correlative claim—be inserted in the system regulating the conduct of a certain people, so that its observance does not depend on the mere will of him who is obliged, nor on the mere force of him who may be interested. It is necessary, in other words, that a social organization should exist, capable of confirming the will of each, so far as it aims at the fulfilling of a rule of Right.
The critical moment at which the existence of a juridical positive rule—whether introduced by enactment or usage— is revealed and demonstrated in an obvious manner, is that of judicial application. This application gives in reality to the rule an actual and concrete efficiency; it takes it from its state of generic power and brings it in contact with living reality, which receives from it the definite imprint. One would be tempted—following a facile but superficial “realism *— to consider Right “positive’ only at this its particular moment. But the truth is, that Right exists and works, of itself informing social relations, even before the judicial sentence and independently of it; the possibility of having a rule made effective by means of the organs of the State renders the rule itself “positive,” even if that possibility is not effectuated, and thus remains virtual only; as it must indeed remain in most cases, for it is beyond doubt that every rule would in fact be invalid, if it were not in most cases observed spontaneously.
An admission that the “positive character of a rule consists only in the act of its judicial application, would amount to confounding the function of the Judge with that of the legislator—practically annulling the latter, and taking away from the former its proper basis. The intrinsic logic of the judicial function in truth obliges us to conceive of Right as objectively anterior, that is as already declared to the Judge, we ought not to create it, but to recover it and declare its application in respect of each case. If the law does not yet exist (as, for instance, in the first stages of judicial evolution), or cannot be applied to the case in question, the Judge should refer himself to the logical organism of the system in vigour, regarding it as a single and comprehensive unit, at least virtually, of the entire scheme of things. Historical and psychological observation confirms the necessity of such reference to an universal maxim, which, even if discovered and formulated on the occasion of a particular judgment, does not, because of that, derive from it, but on the contrary ought to precede it, to invest it with intelligibility and authority. That tendency is, therefore, to be combatted, which today manifests itself in the school of so-called “free Right;” in accordance with the dictates of which it is thought proper to leave to the will of the Judge, not only the decision of each case, but also the determination of the rule to be followed in it. In such a system the essentials and the logical limits of the judicial function are entirely misconceived; limits which in the modern State perform also the function of a fundamental guarantee of liberty. The improper use of words should not lead one into error; the pretence of “liberty in the application of Right” would effectively constitute, besides a theoretical paralogism, a permanent danger to the legal liberty of the citizen, which has as one of its principal conditions the certainty of Right, and especially, the unshaken sovereignty of the law.
This, of course, is not equivalent to saying that the Judge
ought to turn himself into a blind instrument for the mechanical application of Right. In so far as he should oppose himself to such a conception the freirechtliche Bewe. gung would be fully justified. Nobody can be ignorant that the interpretation of Right, and especially that which is required of the Judge, is a genuine and original consideration of it, that supposes a deep aptitude for it, while it profits by all suggestions evoked by the ever new relations which arise. This judicial interpretation is a subordinate element, but a necessary one for the full development of the system in force; it excites, like heaven, its ideal and hidden powers, and discovers often in ancient laws meanings which their authors could not have explored. But though the logical foundations of the system and the organic unity of its struc. ture remain unchanged by the interpreter, still within these limits the system receives new and fruitful increases in the course of its application.
Thus by degrees the natural human vocation for Right becomes historically determined and verified; the common necessities, sunk so to speak in our spirit, are translated, in the words of Vico, into “maxims witnessed by Justice.” and the maxims formulated in universal categories descend to an infinite series of contingencies, they submit and adhere to the particular cases. The whole system regarded in its entirety does not admit of any sharp divisions, nor does it undergo change er abrupto; but a continual organic process of elaboration permits of its progressive renewal, which can never be interrupted, unless by an interruption of life itself. It so happens that a juridical idea may have to be defended for centuries, before finding its place among positive ordinances; whether that event happens by express determination, when the idea has acquired sufficient historical force, or whether it begins by informing, perhaps unnoticed, the practice through separate cases of its application.
Now, if the process which leads to the imparting of a “positive ’’ quality to Right on the stage of historic fact is of this nature; if, dealing with such a thing as a process or an empirical turning point, it is not possible to establish a priori the moment at which a legal idea becomes positive, nor that in which it ceases to be such ; to us it seems clear that the quality of “positiveness” cannot possibly be regarded as essential to or immanent in the idea itself, but should rather be regarded as an extrinsic and accidental element. The facts or the series of facts that render a juridical determination “positive,” do not make it at the same time juridical; since this latter property is not historical, but purely logical, and in this sense is above the changes and lapse of time. What ever may be the degree of social force which sustains it—whether or no enduring for a cre. tain predominant time, whether affirmed by some individual only or by many, a legal proposition retains its own characteristic meaning; that is, it remains a legal proposition; if not, then in order to discover in it such a character it is necessary first to make sure of the application which it may have had at some particular moment or other of history !
What are the logical elements that properly constitute the juridical character, has been incidentally mentioned already, and may here be briefly summed up.
Among the forms of evaluation and determination of conduct, there must necessarily be one which concerns the actions of a multiplicity of persons so far as they meet and intermingle with each other. In other words, a criterion must be established, according to which an objective scheme may be deduced—some system of reciprocal compatibility and accommodation between the persons concerned; without which no ethic would be possible, or at least satisfactory, since human conduct would remain undefined and amorphous in one of its most fundamental aspects. Right is precisely this criterion, which values and defines in an objective or correlative sense the conduct of several persons. It does not take into consideration the activities of anyone except in