ON

THE METHODS OF OBSERVATION AND

REASONING IN POLITICS.

CHAPTER XIII.

ON THE DETERMINATION OF THE HYPOTHETICAL EFFECTS OF A POLITICAL CAUSE.

§ 1

A

FTER the examination in the preceding chapter, it remains for us to inquire into the method of determining the hypothetical effects of a given political cause, either generally, or in some supposed special case. The previous inquiry concerns effects as they have actually occurred; that on which we are about to enter concerns only supposed or calculated effects.

The general case of this problem is similar to the corresponding case in the determination of causes from effects, already adverted to.(') It requires, for example, that an answer be given to such questions as the following: 'What effects does a monarchical, an aristocratic, or a democratic government produce? What are the consequences of capital punishment, of transportation, of imprisonment? What are the effects of direct, and what of indirect taxation? What are the effects of universal suffrage, of a censorship of the press, of liberty of the press, of a military conscription?" If an answer can be given to each of these questions, it must be general in its terms-it must be devoid of any limitation as to time, but must apply equally to the past and the future. For the present, we must be contented

VOL. II.

(1) Above, ch. xi.

B

with indicating the nature of the general problem of hypothetical effects, and must reserve the investigation of its solution until we arrive at the subject of political theory.(")

§ 2 The special case of the hypothetical problem in question is, when it is proposed to determine the effects which a certain supposed political measure would probably hereafter produce in a certain country, and with reference to a defined set of circumstances.

This problem may relate to the probable future operation, either of a law already in force, or of a mere legislative scheme, to which it is proposed to give the force of law.

The first of these cases is in general so much easier of solution than the second, that it need not be considered separately. When a law has been for some time in force, we are assisted by the light of experience in estimating its future effects. If the medium in which it operates is likely to remain unchanged, the effects of the law may be expected to remain unchanged likewise. If, on the other hand, that medium is about to undergo a change, the probable effects of the law, in the midst of a new set of circumstances, must be determined by a process similar to that adopted for determining the probable effects of a proposed law, except so far as the analogy of its prior effects, as they have actually occurred, may facilitate the process of reasoning, and afford firmer resting-places for conjecture. A law which is in force in one country, and which it is proposed to extend to another country, properly belongs to the second case of the problem. With respect to the country into which it is to be introduced, it is altogether a new and untried law. (3)

Confining our attention, therefore, to a new legislative plan proposed for adoption, let us first consider the process by which the draft of a law is framed. The end in view, positive or negative, being given, the framer of the law sets about considering what are the proper means within the reach of the legislature

(2) Below, ch. xv.

(3) See Bentham, Traités de Legislation, tom. iii. p. 356: Maximes relatives à la Manière de transplanter les Lois.'

for its attainment. Having devised these means, he adapts them to his purpose, by imagining all the different contingencies which are likely to arise, and by providing against these contingencies by suitable regulations. For example, if the draftsman is framing a law for the prevention of theft, he will provide for theft within a house, and in the open air; if within a house, whether by breaking into the house or not, and whether by day or by night. He will provide for theft from the person with violence, and for theft from the person without violence; for theft involving a breach of trust, and so on.

All written instruments intended to have a binding force, whether public, such as laws and treaties, or private, such as deeds and wills, are framed in this manner. Thus, in a settlement of property, all possible contingencies which can befal a certain family are provided for, as that A survives B; that B survives A; that A dies leaving male issue; that he dies leaving only female issue; that he dies without issue, &c.

Now, in seeking to predict the effects of a proposed law, we put a certain construction upon its provisions, and thus determine the classes of persons or acts which will fall within them. The rules for the interpretation of written laws, which properly belong to the science of jurisprudence, and to the positive law of each country, are thus called in aid for the purpose of legislative prediction.

The rules according to which the written laws are interpreted by the tribunals of the country-whatever they may be-are the rules which should be applied to the construction of projects of law, and to the determination of their probable effects when enforced in practice. Accordingly, the attempt to anticipate the future effects of a legislative proposal, assumes the existence of fixed rules of interpretation for written laws, and of regular judicatories and other executive officers for their enforcement. A similar remark applies to treaties and other compacts between nations. Unless some customary rules of interpretation, as sanctioned by international law, are recognised by each of the

contracting parties, discussion of the terms to be agreed upon between them would be a mere waste of words. When, however, the meaning of those terms in an existing treaty is disputed, there is no authoritative tribunal by which the controversy can be decided.(*)

Taking, then, as our basis, the existence of a fixed system of interpretation for written laws, the method which is adopted for arguing upon the probable effects of a proposed legislative measure is to imagine hypothetical cases, in order to try its provisions, by considering how they would bear upon such a case if it actually occurred. This is generally expressed by the phrase, 'putting a case.' The problem is stated in this form: What would be the operation of the proposed law in such or such a case ?' In fact, the discussion of a proposed law is a development of the process adopted by the draftsman in its preparation. In the attempts which are made to solve this problem, questions usually arise as to the manner in which a certain hypothetical case would be affected by the proposed law. These questions (as we have already explained) can only be determined by applying to the proposed law the received rules of judicial interpretation; by treating the proposed law as if it were already in force, and the hypothetical case as if it had actually occurred, and by reasoning accordingly. When this question has been settled, it remains to be decided whether the law producing such an effect, in such a case, is expedient or inexpedient. The argument has, therefore, two stages: 1, How would the law under discussion bear upon the given case? 2, Assuming its operation in that case to be determined, would that operation be beneficial or otherwise?(5)

(4) The interpretation of laws generally is treated by writers on general jurisprudence (as by Savigny, System des heut. Röm. Rechts, b. i. c. 4), and specially by the writers on each national system of law. See Dwarris on Statutes, c. 12, 13, 14. The interpretation of treaties is discussed by the writers on international law.-See, e. g., Vatel, b. 2, c. 17.

Concerning the hermeneutic art, or the method of interpreting ancient authors, sacred and profane, see Bernhardy, Grundlinien zur Encyclopädie der Philologie, p. 59-111. This department of philology is of great extent and importance,

(5) Casus, for a case falling under a rule of law, is used occasionally