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Legislation

law, government, legislative, laws, executive, distinction, science, functions, sovereign and judicial

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LEGISLATION. In treating of legis lation, we will explain, 1st, the mean ing and etymology of the word ; 2nd, the distinction between the legislative and executive powers of government; and 3rd, the difference between jurispru dential and legislative science—under which head we will make some remarks respecting the most convenient form for the composition of laws.

1. Meaning and etymology of the word Legisl ation. —A magistrate who proposed a law in Rome for the adoption of the as sembly of citizens was said legemferre (as we say, to bring a bill into parliament); and the law, if carried, was said to be perlata, or simply iota. Hence the term legum lator, or legislator, was used, as synonymous with the Greek soueeirnr, in the sense of a lawgiver. From legis lator have been formed legislation, legis lative. and legislature (the last signifying a person or body of persons exercising legislative power).

Legislation means the making of posi tive law. Positive law, as explained in the article [LAW], is made by the person or persons exercising the sovereign power in a community. The end of positive law, as explained in the same article, is the temporal happiness of the comihu nity.

2. Distinction between the legislative and executive powers of ,qovernment.—A general command, or law, issued by a sovereign government would be nugatory, if it was not applied in practice to the cases falling within its scope, and if the pains denounced for the violation of it were not inflicted on transgressors. The execution of the general commands, or laws, of a sovereign government is there fore an essential part of the business of a government. Accordingly the ordinary functions of a government may be divided into the two classes of legislative gull executive.

An executive command, or act, of A sovereign government, is a special com mand issued, or act done, in the execution of a law previously established by the go vernment. Executive commands or acts are of two sorts, viz. administrative and judicial. The distinction between these two sorts of executive commands or acts may (in conformity with modern phrase ology) be stated as follows. A judicial proceeding is a declaration, by a compe tent authority, that a person has (or has not) brought himself within the terms of a certain penal provision, or that he has (or has not) a certain legal right or ob ligation which another disputes with him. An administrative proceeding is for the sake of carrying a rule of law into effect, where there is no question about the legal culpability, or dispute about a legal right or obligation of a per son. In an administrative proceeding the government functionary acts, or may act, spontaneously and from his own informa tion ; in a judicial proceeding he does not act until he is set in motion by others; and he can only take notice of the facts which the litigant parties bring before him. A judge cannot act until his court is (to use the French phrase) seized, or saisi, with the question ; or (to use the language of our ecclesiastical courts) it is necessary "to promote (or set in motion) the office of judge." (De prando, Institutes du Droit administratif Francais, Paris, 1829.) It should be observed, that the division of the functions of government into legis lative and executive is not exhaustive, inasmuch as neither class comprehends acts or special commands not founded on a previous general command or law, in other words, privilegia, concerning which see the article LAW ; as well as treaties and other compacts of a sovereign govern ment ; as to which see SOVEREIGNTY.

The distinction between the making of laws and their execution is too obvious to have been overlooked by the ancient writers on government. The latter sub ject was treated by them under the head of magistrates. (See for example, Aristot., Pol., vi. 8.) The distinction has how ever attracted peculiar attention from both speculative and practical politicians since the beginning of the last century, in consequence of the great importance attributed by Locke and Montesquieu to the separation of the legislative, adminis trative, and judicial powers of govern i.e. the exercise of the adminis trative and judicial functions by officers distinct from the supreme legislative body, and from each other. (Essay on Civil

Government, Part ii. § 143-4 ; Esprit des Lois, xi. 6.) The importance of the separation in question has however been overrated by these and other writers ; and it has never existed, and indeed can scarcely exist, to the extent which they suppose. The legislative functions of a government can be distinguished, lo gically, from its executive functions ; but these functions cannot, in every case, be severally vested in different per sons. In every free government (or go vernment of more than one) the legisla tive bodies exercise some executive func tions : thus, in England, the House of Lords is an appellate court in civil cases, and the House of Commons decides in cases of contested elections of its own members. In every form of government the public functionaries, whose primary business is the execution of the laws, ex ercise a considerable portion of (dele gated) legislative power. It is scarcely possible to conceive a body of law so com plete as not to require subsidiary laws for carrying the principal laws into ex ecution ; and a power of making these subsidiary laws must, to a greater or less extent, be vested in the executive ffinc tionaries. In the article LAW we have distinguished laws made by supreme from laws made by subordinate legislatures. The latter class of laws usually emanate from executive functionaries, especially judges. (See this subject further ex amined in the Preliminary Inquiry to Mr. Lewis's Essay on Dependencies, p.37.) 3. Difference between jurisprudential and legislative law may be viewed from the two following aspects. First, it may oe considered as an organic system. consisting of coherent rules, ex pressed in a technical vocabulary. Se condly, its rules may be considered singly, with reference to their tendency to pro mote the happiness of the community ; in other words, their expediency or utility. Law viewed from the former aspect is properly the subject of the science of jurisprudence. [JURISPRUDENCE. Law viewed from the latter aspect is the sub ject of a department of political science which is generally termed legislative science. in strictness, is concerned about the technical form, as well as the utility, of a law ; but the term legislative science, as just defined, is sut ficiently accurate for oar present pur pose.) It is important to bear in mind the distinction, just pointed out, between the scientific or technical excellency of a sys tem of law, and the expediency or utility of the rules of which it is composed. The distinction, however manifest, has been frequently overlooked, even by lawyers. For example, the excellence of a system of law, considered in a scientific point of view, has no connexion with the goodness of the government by which the laws were established. Law may be, and has been, cultivated as a science with admirable success under very bad governments. The scientific cultivation of law in Rome scarcely began until the Empire ; and the great legal writers of France lived in times of political anarchy or despotism. A system of law of which the practical tendency may be most pernicious, may have the highest scientific or technical excellence. A code of laws establishing slavery, and defining the respective rights and duties of master and slave, might be constructed with the utmost juristical skill ; but might, on that very account, be the more mischievous as a work of legislation. On the other hand, a sys tem of law may be composed of rules having a generally beneficial tendency, but may want the coherency and preci sion which constitute technical excel lence. The English system of law af fords an example of the latter case. Owing to the popular character of the le gislature by which its rules were enacted or sanctioned, it has a generally bene ficial tendency ; but considered in a scientific point of view, it deserves little commendation. The writings of Mr. Bentham, in like manner, are far more valuable contributions to legislative than to jurisprudential science. The remains of the writings of the Roman lawyers, on the other hand, are of little assistance to the modern legislator, but they abound with instruction to the jurist.

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