Concerning the difference between the making of laws and the execution of them, or as they are termed) the legis lative and executive functions of govern ment, see LEGISLATION.
Law is sometimes opposed to fact; that is to say, the rule of law is distin !wished from the facts or events to which it is applied in practice. In this sense it is said that every one is presumed to know the law ; whereas ignorance of the fact is an excuse. For the doctrines of the Roman law on this subject, see Dig., lib. xxii. t. 6.) The distinction between law and fact is important in our system of jurisprudence, with reference to trial by jury ; for, according to the theory of our law, the judge decides concerning the law, and the jury concerning the fact. This maxim is however little more than theory ; for in practice the jury, by its power of returning a general verdict, is judge both of the law and the fact. [Ram ] On certain questions which necessarily arise in the administration of justice, and which are questions neither of law nor of fact (sucbt as " due dili gence," " reasonable notice," " probable cause," &c.) see an article in the Law Magazine, vol. xii. pp. Laws, considered singly, have been iivided into numerous species, as decla ratory, remedial, penal, repealing, &c. laws. Concerning these see Austin's Province of Jurisprudence, p. 22, and Dwarris On Statutes, c. 10.
4. Origin and End of Positive Law.— It has been above stated that all positive laws are commands, direct or indirect, of the person or persons exercising su preme political power in an independent society. Consequently the notion that positive laws are derived from a compact between sovereign and subjects (styled the original or social contract) is a delusion.
The proper end of positive law is the promotion of the temporal happiness, or well being, of the community over which the law extends. Thus Aristotle, in his ' Politics,' says that "political society was formed in order to enable men to live, and it continues to exist in order that they may live happily " (1. 2.). " Finis
et scopus (says Lord Bacon) quem leges intueri atque ad quem jussiones et sano tiones suits dirigere debent, non alias est quam ut dyes feliciter decant " (.1.)e Augm., lib. viii. Aph. 5.) The meaning of Aristotle and Bacon, in the passages just cited, was no other than that ex pressed by Mr. Bentham in his well known formula, that the end of political government is " the greatest happiness of the greatest number." We have stated that the proper end of positive law is the promotion of the tem poral happiness of the community. The end of the political-union is the promo tion of the happiness of its members in the present state of existence; that is to say, in the existence which is compre hended between birth and death. The promotion of men's happiness in the ex istence which commences after death is the end of the religious or ecclesiastical union. (See Warburton's Divine Lega tion, b. 1, s. 2, vol. i. p. 215, 8vo. ed.) From the benevolence of the Deity, it is presumed that those rules which tend the most to produce the happiness of his creatures are most agreeable to him ; and consequently the term "Divine law" (also called natural law) is used to signify those maxims to which human law ought to conform. In the vast countries where the Mohammedan and Brabminical religions prevail, a great proportion of the positive law is supposed to be derived from the direct revelation of a superna tural being ; and therefore the Divine law and the positive laws of the state in great measure coincide. The Christian dispensation however does not (like the Jewish) contain any system of rules out of which a body of positive law can be formed, or which can be enforced by a civil government. Consequently, in Christian countries a very small part of positive law is founded upon precepts de rived from immediate revelation : the far greater part of positive law is or ought to be fashioned upon rules of Divine law, which are only discoverable by a process of inference from the phenomena of hu man society.