CHAPTER XV.

THE SOURCES OF LAW.

THE next point, then, is to discover how this general assent as to Law, of which I have just spoken, can be ascertained, and here we at once come upon what seems to German Jurists the original, and in the last resource the only proper source of Law. The general assent of the people cannot be better ascertained than by their common adoption of the same practices; hence the first object of Law is to observe these common practices and express them in rules; in other words, Custom is the original source of Law. We cannot, however, adopt this position without accounting for the special reasons which led Austin so decidedly to reject it. These may be seen partly in the idea upon which he founds all Law, and partly on the special circumstances attending English Customary Law. Thus, if every law is to issue from the Sovereign, it is clear that a custom cannot be law until it has obtained the Sovereign's express sanction, either by way of statute or of judicial decision. Again, the actual decisions of English judges, although they pretended to be founded on custom, yet were, as a rule, made in a very different way. We need

only point to the complete disturbance of ancient custom which was effected by the Norman Conquest.1 Custom, after this, was not adopted by the judges as law merely as being custom, but in those cases only where they saw no reason to refuse validity to it. It must be remembered that custom can only be a source of law when it affects a homogeneous community, or portion of a community; as soon as conflicting interests arise its power is gone. But the Norman Conquest broke up what homogeneity prevailed among the Saxons. A judge had now to consider whether the custom by which he was asked to decide conflicted with the interests of the conquerors, and if so, he probably replaced it by a rule of Norman law. Only in the case of its affecting the subject race merely was there any chance of its being adopted. So great, nevertheless, was the respect paid to custom as a source of Law, that it was long held to be the only source from which judge-made law was taken, and a rule of Roman law, taken secretly from the Digest, was only held valid on the supposition that it embodied ancient custom. The real objection to custom as a source of law need not, then, go the length of abolishing it altogether, although, as a matter of fact, it has never been properly a source of law in England. But this is merely due to the fact that Law in England has so nearly approximated to Austin's idea of it; it has really been the Command of a Sovereign supported by a Sanction, or rather it

1 Perhaps, however, this was not so great as I have assumed. See Pollock's Essays in Jurisprudence and Ethics, p. 215.

was so at the time when Customary Law would have been chiefly useful; for it must be remembered that this is only a possible source of Law under certain conditions, and in modern communities these conditions are almost entirely wanting. We may, indeed, still discover customs affecting particular places or particular classes, but it is quite impossible for a customary law now to grow up throughout a nation. Finally, we may say that if we allow Law to be a rule made by competent authority, and resting upon the assent of the people, nothing can be clearer than that the most competent authority is the people themselves, and hence Custom is the original and at certain times the best source of Law. It may be hard, perhaps, to shake off the idea of Austin that a custom cannot be law till expressed to be so by a tribunal, but when we remember that it proceeds not from the Sovereign but from the people, we see that the tribunal has no other means of knowing the law than any one else. We must, indeed, have some marks by which to distinguish custom; it must be observed with a certain amount of universality and for a certain time, but when these are determined, it can be a rule to guide the conduct of men just as much before it has been acted on by a tribunal as afterwards.

The fact, then, is, not that custom is no source of Law, for where the history of a race has not been disturbed by conquest it is its original and proper source; but that, as the people increase in numbers, it becomes an inconvenient source of Law from the

difficulty of determining it, and, as they become more separated in interest, it becomes, in general, an impossible one from the difficulty of a spontaneous reconciliation of these interests. We have, therefore, to enquire in what other way rules of law can arise which shall rest upon the assent of the people, and, following Savigny, we find that we must have recourse to Legislation or to Science. Let us enquire, then, what these mean. It will be convenient to consider law-making as of two kinds, each of which has its origin in the failure of customary law on different grounds.

1. Custom may fail to establish a law on account of the conflict of interests. Here the most natural course is to allow to all interests due weight in a common assembly, and to decide after a consideration of the balance of advantages.

2. Custom may fail to establish law on account of the complication of interests. Here the most natural course is to entrust the making of law to persons possessing the following qualifications :—

i. An exact knowledge of the interests involved.
ii. A practical acquaintance with the wants of the
people.

Rules of Law made in the former manner are made directly by the Sovereign. Rules of law of the latter kind are made directly by Jurists.

As soon, however, as we take the making of law out of the hands of the people themselves, there is a possibility that the result may not obtain their general assent. For it will be seen that law-making,

whether by the Sovereign or by Jurists, will now have one of the following objects:

1. It may be merely an attempt to express clearly the actual practices of the people. Here it only pretends to declare custom.

2. It may be an attempt to effect changes which are indeed desired by the people, but the details of which have to be discovered. Here the object will be to divine as correctly as possible those rules which, when put into practice, will win the assent of the people.

In this latter case there must be some principle upon which the making of new laws is to proceed; but this can only be derived from a consideration of what is that quality in old laws which has won for them general assent. Ancient jurists, if the question had been put to them in this form, would have replied that it was their conformity with the Law of Nature; of the real meaning of this as a principle I have already stated my opinion. Modern enquirers, on the other hand, will say that it is in virtue of the fact that they have apparently secured the greatest happiness for the greatest number. It is upon this principle, then, that Law must be made when we have to divine beforehand how to win for it the assent of the community.

Before carrying these ideas any further it will be well to consider two disturbing influences in connection with law-making. We have seen that all actions are either governed by moral rules or left to the discretion of the individual; and, moreover, that