“Therefore, a particular act of the legislature to confiscate the goods of Titus, or to attaint him of high treason does not enter into the idea of a municipal law: for the operation of this act is spent upon Titus only and has no relation to the community in general: it is rather a sentence than a law.' This passage was cited with approval by the Privy Council in Liyanage v. The Queen, (1967) 1 AC 259 at p. 291 to show that the end product of the exercise of judicial power is a judgment or sentence and not a law. 286. St. Thomas Aquinas (after considering the views of Aristotle, St. Augustine and the opinions of jurists in pandects) has said that since the end of law is common good the law should, be framed not for private benefit but for the common good of all citizens, see “The Treatise on Law” Gateway Ed. (1970) p. 87. 287. Rousseau wrote: Contract Social Bk II, Chap. VI. “When I say that the object of laws is always general, I mean that the law considers subjects collectively and actions as abstract; never a man as an individual, nor an action as particular.... neither is what the sovereign himself orders about a particular object a law but a decree; not an act of sovereignty, but of magistracy.” 288. Austin draws an explicit distinction between 'laws' and 'particular commands'. Where a command, he says, obliges generally to acts or forbearance of a class a command is a law of rule but where it obliges to a specific act or forbearance, a command is occasional or particular. See Austin's Jurisprudence, 2nd Ed., Vol. 1, p. 18. 289. Kelsen, after noting the distinction made by Austin has observed: “We can of course recognize as law only general norms. But there is no doubt that law does not consist of general norms only. Law includes individual norms, i.e., norms which determine the behaviour of one individual in one non-recurring situation and which therefore are valid only for one particular case and may be obeyed or applied only once.” According to him, such norms are valid law because they are parts of the legal order as a whole in exactly the same sense as those general norms on the basis of which they have been created. He said that particular norms are the decisions of courts as far as their binding force is limited to the particular case at hand and that a Judge who orders a debtor A to return $ 1000 to his creditor B was passing a law: Kelsen: General Theory of Law and State 1961, p. 38. 290. It may be noted that Kelsen made no distinction between law-cretion and law-application. According to him, every act of applying the law involved the creation of norms. In his view, there was no distinction between creation and application of law, a view I find difficult to accept in the light of clear distinction made by the decisions of this Court between legislative and judicial functions. 291. a statute is a general rule. A resolution by the legislature that a town shall pay one hundred dollars to Timothy Coggan is not a statute, John Chipman Gray: Nature and Source of Law, p. 161.

Select target paragraph3

Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents