Concerning the difference between the making of laws and the execution of them, or (as they are termed) the legislative and executive functions of government, see LEGISLATION.
Law is sometimes opposed to fact ; that is to say, the rule of law is distinguished 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.' 22. 6.) The distinction between law and fact is important in our system of juris.. prudence, with reference to trial by jury ; for, according to the theory of our law, the judge decides concerning the law, and the jury con cerning 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. (JURY.] (See Best on 'Evidence,' 3rd edit. p. 103.) Laws, considered singly, have been divided into numerous species, as declaratory, remedial, penal, repealing, &c., laws. Concerning these see Austin's Province of Jurisprudence; p. 22, and Dwarris on Statutes,' ch. 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 supreme political power in an independent society. Con sequently 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." (L 2.) " Finis et scopus (says Lord Bacon) quern leges intueri atque ad quern jussiones et sanctioner sues dirigere debent, non aline est quam ut elves feliciter degant." (` De Augm., lib.
viii., sph. 5.) The meaning of Aristotle and Bacon, in the passages just cited, was no other than that expressed 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 temporal happiness of the community. ,The end of the political union is the promotion 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 existence which commences after death is the end of the religious or ecclesiastical union. (See Warburton's Divine Legation,' 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 laws ought to conform. In the vast countries where the Mohammedan.
and Brahminical religions prevail, a great proportion of the positive law is supposed to be derived from the direct revelation of a supernatural 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 derived from immediate reve lation : 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 inferwate from the phenomena of human society.