The judge is lost when he ceases to be _mechanical_, when he "is forsaken by the rules of evidence." Then he no longer has anything but an opinion like everybody else; and, if he decides according to this _opinion_, his action is _no longer an official action_. As judge he must decide only according to the law. Commend me rather to the old French parliaments, which wanted to examine for themselves what was to be matter of right, and to register it only after their own approval. They at least judged according to a right of their own, and were not willing to give themselves up to be machines of the lawgiver, although as judges they must, to be sure, become their own machines.
It is said that punishment is the criminal's right. But impunity is just as much his right. If his undertaking succeeds, it serves him right, and, if it does not succeed, it likewise serves him right. You make your bed and lie in it. If some one goes foolhardily into dangers and perishes in them, we are apt to say, "It serves him right; he would have it so." But, if he conquered the dangers, _i. e._ if his _might_ was victorious, then he would be in the _right_ too. If a child plays with the knife and gets cut, it is served right; but, if it doesn't get cut, it is served right too. Hence right befalls the criminal, doubtless, when he suffers what he risked; why, what did he risk it for, since he knew the possible consequences? But the punishment that we decree against him is only our right, not his. Our right reacts against his, and he is "in the wrong at last" because--we get the upper hand.
But what is right, what is matter of right in a society, is voiced too--in the _law_.[136]
Whatever the law may be, it must be respected by the--loyal citizen. Thus the law-abiding mind of Old England is eulogized. To this that Euripidean sentiment (Orestes, 418) entirely corresponds: "We serve the gods, whatever the gods are." _Law as such, God as such_, thus far we are to-day.
People are at pains to distinguish _law_ from arbitrary _orders_, from an ordinance: the former comes from a duly entitled authority. But a law over human action (ethical law, State law, etc.) is always a _declaration of will_, and so an order. Yes, even if I myself gave myself the law, it would yet be only my order, to which in the next moment I can refuse obedience. One may well enough declare what he will put up with, and so deprecate the opposite by a law, making known that in the contrary case he will treat the transgressor as his enemy; but no one has any business to command _my_ actions, to say what course I shall pursue and set up a code to govern it. I must put up with it that he treats me as his _enemy_, but never that he makes free with me as his _creature_, and that he makes _his_ reason, or even unreason, my plumb-line.
