金融英语保险与证卷业务相关辅导18

会计考友

　　The next instrumentality by which the adaptation of law to social wants is carried on I call Equity， meaning by that word any body of rules existing by the side of the original civil law， founded on distinct principles and claiming incidentally to supersede the civil law in virtue of a superior sanctity inherent in those principles. The Equity whether of the Roman Praetors or of the English Chancellors， differs from the Fictions which in each case preceded it， in that the interference with law is open and avowed. On the other hand， it differs from Legislation， the agent of legal improvement which comes after it， in that its claim to authority is grounded， not on the prerogative of any external person or body， not even on that of the magistrate who enunciates it， but on the special nature of its principles， to which it is alleged that all law ought to conform. The very conception of a set of principles， invested with a higher sacredness than those of the original law and demanding application independently of the consent of any external body belongs to a much more advanced stage of thought than that to which legal fictions originally suggested themselves.
7 k9 d! h: [! N; c# E2 T* N　　Legislation， the enactments of a legislature which， whether it take the form of an autocratic prince or of a parliamentary assembly， is the assumed organ of the entire society， is the last of the ameliorating instrumentalities. It differs from Legal Fictions just as Equity differs from them， and it is also distinguished from Equity， as deriving its authority from an external body or person. Its obligatory force is independent of its principles. The legislature， whatever be the actual restraints imposed on it by public opinion， is in theory empowered to impose what obligations it pleases on the members of the community. There is nothing to prevent its legislating in the wantonness of caprice. Legislation may be dictated by equity， if that last word be used to indicate some standard of right and wrong to which its enactments happen to be adjusted； but then these enactments are indebted for their binding force to the authority of the legislature and not to that of the principles on which the legislature acted； and thus they differ from rules of Equity， in the technical sense of the word， which pretend to a paramount sacredness entitling them at once to the recognition of the courts even without the concurrence of prince or parliamentary assembly. It is the more necessary to note these differences， because a student of Bentham would be apt to confound Fictions， Equity， and Statute law under the single head of legislation. They all， he would say， involve law-making； they differ only in respect of the machinery by which the new law is produced. That is perfectly true， and we must never forget it； but it furnishes no reason why we should deprive ourselves of so convenient a term as Legislation in the special sense. Legislation and Equity are disjoined in the popular mind and in the minds of most lawyers； and it will never do to neglect the distinction between them， however conventional， when important practical consequences follow from it.
　　It would be easy to select from almost any regularly developed body of rules examples of legal fictions， which at once betray their true character to the modern observer. In the two instances which I proceed to consider， the nature of the expedient employed is not so readily detected. The first authors of these fictions did not perhaps intend to innovate， certainly did not wish to be suspected of innovating. There are， moreover， and always have been， persons who refuse to see any fiction in the process， and conventional language bear out their refusal. No examples， therefore， can be better calculated to illustrate the wide diffusion of legal fictions， and the efficiency with which they perform their two-fold office of transforming a system of laws and of concealing the transformation.
- Q6 y& M! X/ ~, H1 c2 G　　We in England are well accustomed to the extension， modification， and improvement of law by a machinery which， in theory， is incapable of altering one jot or one line of existing jurisprudence. The process by which this virtual legislation is effected is not so much insensible as unacknowledged. With respect to that great portion of our legal system which is enshrined in cases and recorded in law reports， we habitually employ a double language and entertain， as it would appear， a double and inconsistent set of ideas. When a group of facts come before an English Court for adjudication， the whole course of the discussion between the judge and the advocate assumes that no question is， or can be， raised which will call for the application of any principles but old ones， or any distinctions but such as have long since been allowed. It is taken absolutely for granted that there is somewhere a rule of known law which will cover the facts of the dispute now litigated， and that， if such a rule be not discovered， it is only that the necessary patience， knowledge， or acumen is not forthcoming to detect it. Yet the moment the judgment has been rendered and reported， we slide unconsciously or unavowedly into a new language and a new train of thought. We now admit that the new decision has modified the law. The rules applicable have， to use the very inaccurate expression sometimes employed， become more elastic. In fact they have been changed. A clear addition has been made to the precedents， and the canon of law elicited by comparing the precedents is not the same with that which would have been obtained if the series of cases had been curtailed by a single example. The fact that the old rule has been repealed， and that a new one has replaced it， eludes us， because we are not in the habit of throwing into precise language the legal formulas which we derive from the precedents， so that a change in their tenor is not easily detected unless it is violent and glaring. I shall not now pause to consider at length the causes which have led English lawyers to acquiesce in these curious anomalies. Probably it will be found that originally it was the received doctrine that somewhere， in nubibus or in gremio magistratuum， there existed a complete， coherent， symmetrical body of English law， of an amplitude sufficient to furnish principles which would apply to any conceivable combination of circumstances. The theory was at first much more thoroughly believed in than it is now， and indeed it may have had a better foundation. The judges of the thirteenth century may have really had at their command a mine of law unrevealed to the bar and to the lay-public， for there is some reason for suspecting that in secret they borrowed freely， though not always wisely， from current compendia of the Roman and Canon laws. But that storehouse was closed so soon as the points decided at Westminster Hall became numerous enough to supply a basis for a substantive system of jurisprudence； and now for centuries English practitioner have so expressed themselves as to convey the paradoxical proposition that， except by Equity and Statute law， nothing has been added to the basis since it was first constituted. We do not admit that our tribunals legislate； we imply that they have never legislated； and yet we maintain that the rules of the English common law， with some assistance from the Court of Chancery and from Parliament， are coextensive with the complicated interests of modern society.