Chapter I: Law-Making Authorities in General

First let us see what, speaking generally, are the authorities in a community that make the Law, and How—that is to say, by what modes or through what organs, they make it.

Broadly speaking, there are in every community two authorities which can make Law:—the State, _i.e._ the ruling and directing power, whatever it may be, in which the government of the Community resides, and the People, that is, the whole body of the community, regarded not as organized in a State, but as being merely so many persons who have commercial and social relations with one another. There is, to be sure, a school of juridical writers which does not admit that the people do or can thus make Law, insisting that Custom is not Law till the State has in some way expressly recognized it as such. But this view springs from a theory so incompatible with the facts in their natural sense, that a false and unreal colour must be put upon those facts in order to make them fall in with it. It is unnecessary to pursue a question which is apt to become merely a verbal one. Let it suffice to say that Law cannot be always and everywhere the creation of the State, because instances can be adduced where Law existed in a country before there was any State; and because the ancient doctrine, both of the Romans and of our own forefathers—a doctrine never, till recently, disputed—held the contrary. A great Roman jurist says, with that practical directness which characterizes his class, ‘Those rules, which the people without any writing has approved, bind all persons, for what difference does it make whether the people declare their Will by their votes or by things and acts[106]?’ This is the universal view of the Romans, and of those peoples among whom the Roman law, in its modern forms, still prevails. And such has been also the theory of the English law from the earliest times.

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Footnote 106:

Julian in _Dig._ i. 3. 32.

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Now the State has two instruments or organs by which it may legislate. One is the ruling Person or Body, in whom the constitution expressly vests legislative power. The other is the official (or officials), whether purely judicial, or partly judicial and partly executive, to whom the administration of the law is committed, and whom we call the Magistrate. This distinction does not refer to the instances in which legislative authority is, by an act of the Governing Power, specially delegated to some magisterial person or body. Those instances are really to be deemed cases of mediate or indirect legislation by the supreme Government (like the power given by statute to a railway company to make by-laws). The position of the Magistrate is different, because judicial administration, and not legislation in the proper sense, is the work he has been set to do.

Similarly the People have two modes of making Law. In the one they act directly by observing certain usages till these grow so constant, definite, and certain that everybody counts upon them, assumes their existence, and feels sure that they will be recognized and enforced. In the other they act indirectly through persons who have devoted themselves to legal study, and who set forth, either in writing or, in earlier times, by oral discourse, certain doctrines or rules which the community accepts on the authority of these specially qualified students and teachers. Such men have not necessarily either any public position or any direct commission from the State. Their views may rest on nothing but their own reputation for skill and learning. They do not purport to make law, but only to state what the law is, and to explain it; but they represent the finer and more highly trained intellect of the community at work upon legal subjects, just as its common and everyday understanding, moved by its sense of practical convenience, is at work in building up usages. So the maxims and rules these experts produce come to be, in course of time, recognized as being true law, that is to say, as binding on all citizens, and applicable to the decision of disputed questions.

Taking then these four Organs or Sources, we find that one Source—the People, as makers of Customary Law—is so vague and indeterminate that one can say little about it as an Organ, though the process by which Custom makes its way and is felt to be binding is a curious process, well deserving examination. Two remarks may however be made on it. The first is this, that it is essential to the validity of a rule claimed to have been made by Usage that it shall possess a certain extension in Time and a certain extension in Space. It must have prevailed and been observed for so long a period that no one can deny its existence. It must have prevailed over so wide an area, that is to say, have been used by so many persons, that it cannot be alleged to be a merely local usage, unknown outside the locality, and therefore not approved by the tacit consent of the community at large. (The size of the area is of course in each case proportioned to the size of the whole community. A custom observed by a population of a few thousand people in a canton of Switzerland may make the custom law for the canton, though observance by a similar number would not make a similar custom law for a large country like Bavaria.) The other remark is that sometimes the observance of a custom by a particular class of the community, as for instance by agriculturists or merchants, may suffice to establish the rule for the community at large[107]. This happens where the custom is by its nature such that only agriculturists or merchants (as the case may be) would need to have a custom on the matter at all. Universality of practice by them is then sufficient to make the custom one valid for the whole community, which may be taken to have tacitly approved it. Sometimes, however, the usage of a particular class is deemed to become law by its being imported as an implied condition into legal transactions, especially contracts, entered into by members of that class; and this view has been frequently taken by our English Courts of mercantile usages, which they have in the first instance enforced rather as unexpressed elements in a contract than as parts of the general law. It need hardly be added that the fact that the meaning and extent of a rule of Customary Law are often uncertain, and give rise to judicial controversy, does not prevent the rule itself from being valid previous to its determination in such controversy, for this is exactly analogous to a disputed question regarding the interpretation of a statute. Though the meaning of a statute may have been doubtful until determined by the Courts, the statute was operative from the first, and is rightly applied to ascertain the validity of rights which accrued before its meaning was determined.

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Footnote 107:

The ‘Ulster Custom’ is an interesting instance, but it never quite got
the length of becoming law.

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We have thus to examine three Sources of Law—the Governing Person or Body, the Magistrate, and the Jurists or Legal Profession. These are the three recognized and permanent legislative organs of a community. Every mode of creating law discoverable in any organized community may be reduced to one of these, and in most civilized communities all of these may be found co-existent. Sometimes, however, one or other is either absent or is present in a quite rudimentary condition. In the East, as for instance in such countries as Turkey or Persia, there is little that can be called general legislation. Hatts are no doubt occasionally promulgated by the Sultan, though they are sometimes not meant to be observed, and are frequently not in fact observed. So far as new law is made, it is made by the learned men who study and interpret the Koran and the vast mass of tradition which has grown up round the Koran. The existing body of Musulman law has been built up by these doctors of law during the last twelve centuries, but chiefly in the eighth and ninth centuries of our era: and a vast body it is. The Kadi or judge is himself a lawyer, and he might mould the system by his decisions, but decisions are not reported, and the authority of a Kadi is deemed lower than that of one of the more learned Muftis or doctors of the law. On the other hand there are countries, such as Russia for instance, where the direct promulgation of his will by the Sovereign is the only recognized form of legislation, the decisions of judges and the opinions of legal writers enjoying a much lower authority. In other countries, as in Germany, legal writers are numerous and influential, but the magistrates, their decisions having been but little reported, have, till our own time, held for the most part a subordinate place, and played a comparatively small part in the development of law. This was at one time the case in France also, where cases decided by the higher courts of law used to stand little, if at all, above treatises composed by legal writers of established reputation. Nowadays, however, cases are more fully reported, and an authority is accorded to decisions scarcely lower than that which they have long enjoyed in England and America.

At Rome, and also in England, all these three main Sources or Organs have existed in full force and efficiency, though not in equal efficiency at different periods in the history of either State. At Rome, as in England, we begin with customary law. The customary law of the Quirites is known to and administered by a small privileged class; and so far as there is any legislation at all, it is the work of members of this class who carry in their minds and expound and insensibly amplify the sacred traditional ordinances. Then direct legislation by the people in their assemblies, and afterwards (though in its germ perhaps almost concurrently) the law-making action of the magistrate begin to appear. They go on hand-in-hand for many centuries, seconded by the never intermitted labours of the jurists, until at last the magistrate’s work is over, the jurists have lost their impulse or their skill, and the direct activity of the Sovereign (who is by this time a monarch) becomes the chief surviving fountain of law. I propose to take these three sources and compare the way in which they acted in the Roman city and Empire with their action and development—in many respects parallel, in a few respects contrasted—in England, whose law has now spread over a large part of the British Empire.