Page:Harvard Law Review Volume 5.djvu/194

178 178 HARVARD LAW REVIEW. community," the " mass of historical antecedents which deter- mines how the sovereign shall exercise or forbear from exercising his irresistible coercive power." 1 This divorce from history is a circumstance of the highest importance. It means nothing less than rejecting the element most essential to a correct understand- ing of such a subject as the English law. That the Austinian identification of law with legislation should lead, among other things, to a slighting of the common law is almost inevitable. One must indeed be constantly on his guard against too literal an application of the doctrine that a law is a command. It has often been used in connection with the common law in such a way as to turn the mind from the true function of the judge, that of deciding controversies, and to confuse the process with that of issuing general commands. Much that has been written on the subject of judicial legislation really turns on these questions of the nature of law, and is made clear by an understanding of the different theories on the latter subject. When Professor Hammond, for example, maintains that the judges merely declare the law, and denies that they have the delegated authority to make it which Austin attributes to them, he is only restating in another form his proposition that law is not a command, but a principle of order. He expressly admits the growth of law by judicial decision when he says that in a historical, as distinguished from a scientific, sense the judges do legislate. On the subject of judicial legislation in our sense the difference of opinion between him and Austin is thus more ap- parent than real. They give the process different names, but they agree as to its existence. Turning from these questions of the nature of law in its broadest sense, certain points in regard to law in our more re- stricted sense may now be assumed. It is a body of rules of some kind ; those rules which are enforced by the sovereign power in a state, and those only. The source and support of these rules, in a civilized and self-governing community, must be justice; that is to say, the opinion of the community as to what is right and expedient. They are the medium by which the moral sense of society finds expression, the conservative force by which the majority registers its conclusions and enforces them upon a recalcitrant minority. Since we deal with those rules only which 1 Maine, Early Hist. Inst. (3d ed.) 1 '