Skip to main content

Full text of "Political Science Of The State"

See other formats


The Judicial Department.
The judge's proper office is retrospective and looks at a
particular fact or omission in the past, although
Office of a judge.               .                        .        .
a judge may also interpose to prevent an appre-
hended injury. We have seen already how it differs from
the law-making function, which properly relates to determina-
tion, binding in the future, and from the executive which ap-
plies those laws in particular cases. In the case of the indi-
vidual man, to lay down rules of conduct for himself answers
to the legislative function of society ; to act on those rules
or carry them out in the conduct of life is his executive power ;
to sit in judgment on his conduct and on his rules is his judi-
cial faculty. If society were at a standstill and no new re-
lations were to arise, there would be no need of a law-making
power, but rules or customs would endure from age to age.
In the simpler forms of society there is comparatively little
need of what we call an executive ; but then, as much as in
more advanced stages of political life, men will steal, commit
acts of violence, injure their fellows in property and in other
rights. The office of a judge, then, is always necessary, in
the infancy and in the manhood of the world ; it was a pri-
meval institution before any of the other institutions of tribes
or cities were much developed ; it will continue to be equally
important until men become perfectly just. If such a time
shoulc} dawn on the world the criminal side of judicial busi-
ness would cease, and the civil greatly diminish or turn into
At first, it is probable that the functions of the judge, mili-
tary chieftain, and priest were united in one and the same
person.* In patriarchal life the head of the clan, or some one
acting under him, decided cases submitted to him between
man and man, not according to strict law, which did not exist,
* Aristot, Pol., in., 9,  7, 8,