Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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Editor/Trans.
First Pub. Date
1881
Publisher/Edition
New York: Maynard, Merrill, and Co.
Pub. Date
1899
Comments
Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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JUSTICE

II.224.1

JUSTICE. In the most general acceptation of the term, justice is a moral virtue which leads us to render to every one that which is his due, and to respect the rights of others. The term is sometimes used as synonymous with fullness of right and reason. It is used especially to designate the act of recognizing the rights of a person; and, more particularly, in the language of politics and administration, it is used to indicate the exercise of the power to declare the right, to pass sentence, and, if need be, to inflict punishment.

II.224.2

—The Roman law defined justice to be, the constant and perpetual disposition to render every man his due. This is the definition of justice which has been most generally accepted by jurisconsults and publicists.

II.224.3

—We may now inquire whether there is a natural justice anterior to all positive law, or whether express laws are necessary to create moral qualities. These questions which men have differed on, both in antiquity and in our own times, belong entirely, as d'Auguesseau rightly says, to the domain of the metaphysics of jurisprudence; and we need not concern ourselves with them when treating not of man in the savage state, but of man in society.

II.224.4

—It is certain that men can not live in society without their interests and their passions causing difficulties and differences between them, difficulties and differences which the parties interested can neither properly weigh nor settle. Hence the necessity that some power be instituted to solve these difficulties and settle these differences. This power may be exercised by the father of the family, by elders, by the chiefs of the tribe, by lords or princes, by peoples or kings; it may be exercised directly or by delegates for that purpose; but the power is necessarily found in every country.

II.224.5

—The right to administer justice is one of the attributes of sovereignty. It is both a right and a duty.

II.224.6

—Justice emanates from the people or the sovereign, according to the form of the government. Hence the old legal formula, de par le Roi, by order of the king, a formula which Bentham treated as insignificant, when he demanded that its place should be taken by the nobler form, de par justice, by the order of justice.

II.224.7

—There are political schools which distinguish the judicial power from the executive power and the legislative power. But if all are agreed in considering the distinction between the legislative power and the executive power, a distinction to be found in the constitutions of nearly all modern states,*43 as an advance made, there are, nevertheless, a great many writers who continue to place the judicial power within the domain of the executive power, which is charged with the carrying of the law into effect. According to these writers, justice and administration constitute the two chief attributes of the executive power in the state. It is necessary to form a clear idea of the bearing of these distinctions. The judicial power and administration are not connected in the same way with the executive power. When this power gives personal, direct, formal and unceasing direction to political and administrative affairs, it allows judicial action to move in a sphere of its own, in an independent sphere, the limits of which are determined by the laws; and although justice is usually rendered in the name of the chief executive, no one dreams of giving to the executive the right to modify the decisions of the courts or to substitute his will for the judgments or decrees of the courts, just as no one dreams or putting the executive on the bench.

II.224.8

—The essential conditions of justice are these: it should be equal; it should know no distinction of rank or class; it should be accessible to all; it should be gratuitous in this, that the parties to an action should not be obliged to remunerate the judge; it should be both prompt and sure; it should be surrounded by guarantees in the mode of procedure calculated to prevent error, and among these guarantees we must assign the first place to the liberty of defense and to the publicity of the proceedings; lastly, and above all, justice must rest on the faithful and rigorous application of the laws.

II.224.9

—Judges have sometimes been asked to temper the severity of the laws by appealing to a species of charity applied to matters of justice. But, in the end, want of respect for the rule has always been regretted. Dictated by a feeling of humanity, this charity too frequently serves as a cloak for the ignorance of the judge, or as a pretext for the exercise of arbitrary power. Absolute respect for the laws by the judge himself is the most serious and most efficacious guaranty of justice. With reason does Bacon say: Optimus judex qui minimum sibi * *, optima lex quœ minimum judici; and this saying of his is true in every age.

FÉRAUD-GIRAUD.


Notes for this chapter


43.
Notably is this the case in the constitution of the United States and the constitutions of the several states of the Union. Says Judge Cooley, the eminent American jurist (Constitutional Limitations, p. 34): "Certain things are to be looked for in all these instruments [the constitutions of the several states of the American Union]. We are to expect * * * that the usual checks and balances of republican government, in which consist its chief excellencies, will be retained. The most important of these are the separate departments for the exercise of legislative, executive and judicial power; and these are to be kept as distinct and separate as possible, except in so far as the action of one is made to constitute a restraint upon the action of the others, to keep them within proper bounds, and to prevent hasty and improvident action. Upon legislative action there is, first, the check of the executive, who will generally be clothed with a qualified veto power, and who may refuse to execute laws deemed unconstitutional: and second, the check of the judiciary, who may annul unconstitutional laws, and punish those concerned in enforcing them. Upon judicial action there is the legislative check, which consists in the power to proscribe rules for the courts, and perhaps to restrict their authority; and the executive check, of refusing aid in enforcing judgments which are believed to be in excess of jurisdiction. Upon executive action the legislature has a power of restraint, corresponding with that which it exercises upon judicial action; and the judiciary may punish executive agents for any action in excess of executive authority. And the legislative department has an important restraint upon both the executive and the judiciary, in the power of impeachment for illegal or oppressive action, or for any failure to perform official duty. The executive in refusing to execute a legislative enactment. will always do so with the peril of impeachment in view." (See CHECKS AND BALANCES.)

Footnotes for LAW

End of Notes


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