Page:Struggle for Law (1915).djvu/38

 law has been, the world over, the law of custom. This law has neither been created nor sought for. It came into existence of itself, just as language came, and developed internally, in the convictions of the people, externally in the order of life. This law of custom is the natural form of all law, in the presence of which legislation is something artificial, mechanical, an encroachment into the order of nature. The legislator is, so to speak, to the law of custom what the physician is to nature. Nature should help itself; the physician should interfere as seldom as possible; for his very presence shows that the normal condition is disturbed and that disease exists.

“Thus Savigny entirely reverses the true relation established by the old teaching between legislation and the law of custom. With him, the law of custom comes first, and legislation afterwards. Why?—we ask in wonder. The author gives us no reason but his preconceived opinion, according to which such was the primitive condition of things. As the ancient institutions of the Romans