Page:American Journal of Sociology Volume 5.djvu/368

 354 THE AMERICAN JOURNAL OF SOCIOLOGY

life of his subjects were derived from immemorial usages, and these rules were administered by domestic tribunals, in families

or village communities Customary law is not obeyed as

enacted law is obeyed. Where it obtains over small areas and in small national groups, the penal sanctions on which it depends are partly opinion, partly superstition, but to a far greater extent an instinct almost as blind and unconscious as that which produces some of the movements of our bodies. The actual constraint which is required to secure conformity with usage is inconceiv- ably small Nevertheless in the interior of the house- holds which together make up the village community the despotism of usage is replaced by the despotism of authority. Outside each household is immemorial custom blindly obeyed ; inside is the pafria potestas exercised by a half-civilized man over wife, child, and slave."'

The foregoing observations of Sir Henry Maine are, indeed, valid as against the literal statement of Austin's theory. Austin, of course, had in mind the sovereignty exercised through consti- tutional forms in the parliamentary system of Great Britain. Maine has in mind the dominion exercised prior to constitutional government. He rightly likens the operations of custom upon the family proprietor at this stage to the operations of inter- national law upon nations. Each despot is sovereign in his own family, but he submits to accepted customs, not because they have coercive sanctions against him, but out of mere habit. Custom is backed by religion, and together they form, not merely the "general will," or the "public opinion" of the time, as is often asserted, but the very constitution and structure of govern- ment itself. Within the framework thus provided the individual proprietors exercise their patria potestas. Custom is the only guaranty of order. Where it does not hold, there caprice governs. But in the constitutional form of government, upon which Austin's theory is tacitly based, order is in some way incorporated in the very exercise of coercion itself. It is not an outside custom holding despotic wills in check, but it is an inside balancing of wills holdini^;' each other in check. We are now to inquire

'P-39i-