CHAPTER X

LAW

I. NATURE OF LAW

132. The meaning of law. The following paragraph brings out the social origin of law and the transition from customary rule to politically enforced state will:

In any community there will develop set and customary ways of carrying on social activities. Persons soon realize that time is saved and friction avoided by conforming their actions to social standards and routine. Such customs develop in all ages and in all kinds of social life, whether economic, domestic, or religious. They form a sort of unwritten code, enforced by parental and ecclesiastical authority or by the pressure of public opinion. Some of these customs, however, may become so important for general welfare that stronger pressure than social authority or opinion must be brought to bear on those members of the community who incline to acts in violation of social standards. Whenever a community in its collective capacity, presumably acting through its body of elders, its government, undertakes to apply such pressure, by fixing penalty for violation, then such customs cease to be purely social and become political. In other words they become the law of the land. They are virtually commands, ordering or prohibiting certain actions, and disobedience is followed by the infliction of a penalty fixed by the governing body of the community. As the sphere of governmental activity widens, other social customs become of general importance, enforceable under penalty by the state. Throughout the entire history of the state, laws have developed in this manner from customs. These, arising from social intercourse, are at first largely personal and local; some in process of time develop general importance, and when really essential, are enforced through government for the sake of the general welfare. Law, therefore, may be defined as the formulated will of the state, enforced by the sovereign power of the state. This will may be formulated in customs having a legal sanction, or in commands written or unwritten.

133. The concept of law. Lee also emphasizes the essentially spontaneous origin and natural basis of law as follows: 1

What, then, is law? It may be considered either as it has become by the evolution of thought, or as it was when it first became differentiated from closely related elements of the primitive human consciousness. The definition of the analytic jurists according to the former method is as follows: According to Austin and Bentham, a law may be resolved into a general command, one emanating from a sovereign or lawgiver and imposing an obligation upon citizens, which obligation is enforced by a sanction or penalty, threatened in the case of disobedience. This definition, never quite true, never quite applicable, is for all that not to be wholly rejected in its political sense. Yet it is too unsatisfactory, too impracticable, to be recognized as a complete definition of even the most modern concrete law, though therein lies its chief claim to authority. And certainly such a definition does not apply to the early law, or that from which modern law has been evolved. In the early forms of society there was, in place of the skillfully defined modern law, a body of custom, not attributable to any sovereign authority or lawgiver. This custom was regarded as binding upon the whole body of persons forming the primitive social group in which such custom obtained. Furthermore, that custom was enforced in a rude manner, either by permitting the person injured by its violation to avenge himself as best he could, or by depriving the offender of certain rights, such as the aid and society of members of the group. In such a state, law would be best defined as that body of customs regarded as binding upon the members of a group or class, and enforced by their authority. This is law as first discerned in all nations; it is the form in which it constantly appears in the course of history. Only with the rise of the abundant modern legislation has it been seen that law might be conceived as the command of a sovereign body...

Possibly no great department of man's higher thought and activity is so closely connected with his actual life as is the law. Because law is that body of customs which are enforced by the community, it is that which regulates man's conduct toward his fellow men, which controls his gross passions and restrains his rude impulses. It renders possible common life. To a great degree, it takes its rise in the demands of trade, and it makes that trade practicable. Much of it arises spontaneously in connection with the possession of property, and it renders possession possible. In other words, it arises spontaneously in connection with man's social life, and its distinctiveness from custom lies only in the fact that law is

1 Copyright, 1900, by The Macmillan Company.

so necessary to the existence of society and the common activity that it is enforced by an authority.

134. The nature of law. Wilson makes law include custom as well as definite enactment, and considers recognition and enforcement by the state its essential attributes.

Law is the will of the State concerning the civic conduct of those under its authority. This will may be more or less formally expressed : it may speak either in custom or in specific enactment. Law may, moreover, be the will either of a primitive family community such as we see in the earliest periods of history, or of a highly organized, fully selfconscious State such as those of our own day. But for the existence of Law there is needed in all cases alike (1) an organic community capable of having a will of its own, and (2) some clearly recognized body of rules to which that community has, whether by custom or enactment, given life, character, and effectiveness. Law is that portion of the established thought and habit which has gained distinct and formal recognition in the shape of uniform rules backed by the authority and power of Government. The nature of each State, therefore, will be reflected in its law; in its law, too, will appear the functions with which it charges itself; and in its law will it be possible to read its history.

135. Law as custom. The following illustration, used by Maine, shows a type of society in which the idea of making law is as yet absent :

At first sight there could be no more perfect embodiment than Runjett Singh of sovereignty as conceived by Austin. He was absolutely despotic. Except occasionally on his wild frontier he kept the most perfect order. He could have commanded anything: the smallest disobedience to his command would have been followed by death or mutilation, and this was perfectly well known to the enormous majority of his subjects. Yet I doubt whether once in all his life he issued a command which Austin would call a law. . . . He had all material of power and he exercised it in various ways. But he never made law. The rules which regulated the lives of his subjects were derived from their immemorial usages, and these rules were administered by domestic tribunals. . . .

136. Positive law. In final analysis the essence of law, in its political sense, is found to be its enforcement by the state. This is clearly brought out in the following:

The most essential idea connoted by the term law is that of order or uniformity. A law, in other words, using it in its most general meaning, states a rule or principle in accordance with which certain classes of natural phenomena are conceived to occur, or in conformity to which it is desired or expected that men shall shape their conduct. Analyzing the idea further than this, it is found that laws may be sharply distinguished from each other according to: (1) the source whence their binding authority is conceived to come, (2) the means by which their contents are made known to or are discoverable by men, (3) the character of the facts or acts to which they apply. As regards the source whence their authority is conceived to be derived, this may be ascribed to a god or gods, to great Nature as creative or legislative, to the reason of each individual man, or to the fiat of some human authority. As regards the means by which the contents, i.e. the specific prescriptions, of laws, are made known to men, this may be either by way of direct divine revelation, by the individual reason, by custom and tradition, or by the published will of human legislators. As regards the character of the facts or acts to which they are to apply, laws may be either statements of sequences of causes and effects as observed in the phenomenal world, or they may express canons for the guidance of men's conduct. In the latter case, they may have reference solely to the internal acts of the will, and for this reason are termed moral, or they may be regulative of outward acts, in which case they may be social or political according as they refer to conduct socially or politically significant. In the one case the sanction or coercive power is supplied by social disapprobation in the event of their violation, in the other by penalties determined and applied by the politically governing power. In this last case, laws are described as political or positive. By political or positive law, then, we understand a command issued by a political superior to a political inferior, from a sovereign to a subject, ordering that something be done or not done, as the case may be, and threatening a penalty in case of disobedience. To use the language of John Austin, "Law is the aggregate of rules set by men as politically superior, or sovereign, to men as politically subject."

137. Definition of law. Holland, after a process of exclusion, arrives at the following definition of law:

Leaving therefore on one side those rules which are set by God, we come to those which are set by a definite human authority, and here we draw the final distinction between the case when such authority is, and the case when it is not, a sovereign political authority. Rules set by such an authority are alone properly called "laws."

By a successive narrowing of the rules for human action, we have at length arrived at such of those rules as are laws. A law, in the proper sense of the term, is therefore a general rule of human action, taking cognizance only of external acts, enforced by a determinate authority, which authority is human, and, among human authorities, is that which is paramount in a political society.

More briefly, a general rule of external human action enforced by a sovereign political authority.

All other rules for the guidance of human action are called laws merely by analogy; and any propositions which are not rules for human action are called laws by metaphor only.

138. Definition of law. Markby defines law as follows:

We thus arrive at a conception of the term law which may be summed up as follows. That it is the general body of rules which are addressed by the rulers of a political society to the members of that society and which are generally obeyed.

II. SOURCES AND DEVELOPMENT OF LAW

139. The sources of law. Holland, in his chapter on "The Sources of Law," states them as follows:

1. Custom or usage.

2. Religion.

3. Adjudication or judicial decision.

4. Scientific discussion.
5. Equity.

6. Legislation.

140. Present sources of law. The relative parts played by the various sources of law are stated by Willoughby as follows: 1

In a general way, the sources of Law have now been indicated. Defining the law of the land, as we have thus far used the term, as that body of principles applied by the courts in the exercise of their jurisdictions, we have seen its sources to be custom, judicial construction and precedent, scientific commentary, and legislative enactment. As we have seen, the recent tendency has been, and will undoubtedly continue to be, for the last source to become relatively more and more important. At the same time, it is to be remembered that the other agencies will be ever present. Custom with its slow tread will render obsolete laws that have become anachronistic, and will create new principles that will force their recognition upon the legislatures and courts. Scientific commentaries 1 Copyright, 1896, by The Macmillan Company.