The consequence of the infinitude of law is its uncertainty. This strikes at the principle upon which law is founded. Laws were made to put an end to ambiguity , and that each man might know what he had to expect. How well have they answered this purpose? Let us instance in the article of property. Two men go to law for a certain estate. They would not go to law if they had not both of them an opinion of the success. But we may suppose them partial in their own case. They would not continue to go to law if they were not both promised success by their lawyers. Law was made that a plain man might know what he had to expect; and yet the most skilful practitioners differ about the event of my suit. It will sometimes happen that the most celebrated pleader in the kingdom, or the first counsel in the service of the crown, shall assure me of infallible success, five minutes before another law-officer, styled the keeper of the king's conscience, by some unexpected juggle decides it against me. Would the issue have been equally uncertain if I had had nothing to trust to but the plain unperverted sense of a jury of my neighbours, founded in the ideas they entertained of general justice? Lawyers have absurdly maintained that the expensiveness of law is necessary to prevent the unbounded multiplication of suits; but the true source of this multiplication is uncertainty. Men do not quarrel about that which is evident, but that which is obscure.
He that would study the laws of a country accustomed to legal security must begin with the volumes of the statutes. He must add a strict enquiry into the common or unwritten law; and he ought to digress into the civil, the ecclesiastical and canon law. To understand the intention of the authors of a law, he must be acquainted with their characters and views, and with the various circumstances to which it owed its rise, and by which it was modified while under deliberation. To understand the weight and interpretation that will be allowed to it in a court of justice, he must have studied the whole collection of records, decisions and precedents. Law was originally devised that ordinary men might know what they had to expect; and there is not, at this day, a lawyer existing in Great Britain vain-glorious enough to pretend that he has mastered the code. Nor must it be forgotten that time and industry, even were they infinite, would not suffice. It is a labyrinth without end ; it is a mass of contradictions that cannot be disentangled.
Study will enable the lawyer to find in it plausible, perhaps unanswerable, arguments for any side of almost any question; but it would argue the utmost folly to suppose that the study of law can lead to knowledge and certainty.
A further consideration that will demonstrate the absurdity of law in its most general acceptation is that it is of the nature of prophecy .
Its task is to describe what will be the actions of mankind, and to dictate decisions respecting them. Its merits, in this respect, have already been decided under the head of promises. The language of such a procedure is 'We are so wise that we can draw no additional knowledge from circumstances as they occur; and we pledge ourselves that, if it be otherwise, the additional knowledge we acquire shall produce no effect upon our conduct.' It is proper to observe that this subject of law may be considered, in some respects, as more properly belonging to the topic of the preceding book. Law tends, no less than creeds, catechisms and tests, to fix the human mind in a stagnant condition, and to substitute a principle of permanence in the room of that unceasing progress which is the only salubrious element of mind. All the arguments therefore which were employed upon that occasion may be applied to the subject now under consideration.
The fable of Procrustes presents us with a faint shadow of the perpetual effort of law. In defiance of the great principle of natural philosophy, that there are not so much as two atoms of matter of the same form through the whole universe, it endeavours to reduce the actions of men, which are composed of a thousand evanescent elements, to one standard. We have already seen the tendency of this endeavour in the article of murder. It was in the contemplation of this system of jurisprudence that the strange maxim was invented that 'strict justice would often prove the highest injustice.'
There is no more real justice in endeavouring to reduce the actions of men into classes than there was in the scheme to which we have just alluded, of reducing all men to the same stature. If, on the contrary, justice be a result flowing from the contemplation of all the circumstances of each individual case, if only the criterion of justice be general utility, the inevitable consequence is that the more we have of justice, the more we shall have of truth, virtue and happiness.
From all these considerations we can scarcely hesitate to conclude universally that law is an institution of the most pernicious tendency.
The subject will receive some additional elucidation if we consider the perniciousness of law in its immediate relation to those who practise it. If there ought to be no such thing as law, the profession of lawyer is no doubt entitled to our disapprobation. A lawyer can scarcely fail to be a dishonest man. This is less a subject for censure than for regret.