THE THEORY OF JURISPRUDENCE. 



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private acts, derive their jural validity wholly from the right 

 or power vested in their authors. If within the power or right 

 of the officer, the act is jiirally valid ; otherwise not. 



This is obviously true with regard to administrative acts, 

 which therefore need not be further considered. It is equally 

 true of judicial, and legislative acts. But it is to be observed 

 that the distinction between these two classes of acts, as 

 commonly received,' does not conform to the nature of things. 

 For, in fact, the courts commonly exercise the function of 

 legislation, and the Legislature, the function of jurisdiction. 

 Thus the judgments of the courts operate, not only as res 

 jiidicatct in the suit or proceeding before the court, but also, 

 under our system, as precedents to be followed in the future, 

 thus establishing rules of law. On the other hand, statutes 

 intended to serve as rules for the decision of questions of right, 

 are enacted by the legislature, and thus the judicial function, or 

 function of jurisdiction, is exercised. For the judicial function 

 of the state is simply that of justly determining controversies 

 between men as to their rights ; and the case is essentially the 

 same, whether these be determined, either by the courts or by 

 the legislature, in particular controversies, or by classes by 

 means of rules previously established by either. In either case 

 the function of the state is essentially that of judge or umpire, 

 and, whether with regard to particular cases or classes of 

 cases, justice constitutes the only admissible rule of decision. 



Accordingly, with regard to the subject under discussion, a 

 more appropriate classification of political acts other than 

 administrative, would be to divide them into : Judicial or 

 Juridical Acts, or Acts of Jurisdiction ; and acts of Policy or 

 Police. With regard to acts of the latter class, the maxim 

 applies : Voluntas stet pro ratione. But to judicial acts, whether 

 exercised by the courts or by the legislature, the maxim is : 

 Judicis est jus dicere non dare. 



Of the Rule or Standard of Eight {Norma Agendi). 



To complete our view of the nature of rights, some reference 

 must be made to the standard or rule of right {norma agendi), 

 connoted in the term. In this, however, it will be unnecessary 

 to enter upon the metaphysical aspects of the subject ; between 

 which, and the science of Morality, as pointed out by Whewell, 

 there exists the same distinction as between Geometry and the 

 Metaphysics or Philosophy of Geometry. As in the case of 

 Geometry, so in Morality, there is practically no difficulty in 

 determining our first principles, and in deducing from them the 



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