Page:The New International Encyclopædia 1st ed. v. 12.djvu/34

* LAW. law (a very full coUfftion is ;,'ivcn by Holland, Jurisprudciicc, chs. ii. and iv.) one group em- phasizes tile dose connection between law and morals (or right or justice, q.v.) ; a second group views law as a system of order, which assigns to each member of the community his jdace. liis duties, and the limits of his free action; a tliird group notes especially the ])rotcction given to the individual by the limitations ])la(ed upon others, and describes the law as a system of lib- erty (i.e. of rights). A fourth group of detini- tions lays stress on the source of law, which is said by some to be the social will — a source from which other than legal rules i)roceed ; and, by others, to be the .State or the sovereign — a source from which only a part of the law proceeds, even in modern limes. A lifth group finds the essen- tial element of law in its sanction: either in the fact that the physical force of the community stands in the last instance behind the rules of the law, or in tlio fact that its rules are enforced by governmental agencies. Early Custom and Law. The beginnings of law arc found in social habit or custom. Custom is simply observance of precedents. Precedents are made by acts and forbearances. Whenever a power is exercised or a state of things is main- tained by the comnuinity itself, or by individuals with tile :u(|iii'scencc of the coiiiinunily, a ]irece- dent is established. In early custom, religion. morals, and law are blended or imperfectly dif- ferentiated, borne of the rules of early custom, however, deal with matters which are regarded in modern times as legal, and of these ipiasi legal rules some arc enforced by physical coercion, the transjtressor being lynched or sacrificed to the gods or expelleil from the community (outl.nwry ) . Other violations of custom, which are not felt to bo injurious to the whole wnnmunity.are punislud V)v the injured kinshiji-group or by the injured individual with the aid of his kinsmen (self-help, vengeance, feud). So long as such acts of re- dress or vengeance, although regarded as right- ful, may lead to further retaliation, the sanction iH'hind the rules of custom is still purely moral: but when the community begins to jirotect the persons who. in its o|iiiii(in. have obtained due redress or taken rightful vengeance, these persons become in renlify agents of the connnunily, and the sanction Ixhiiid the rules which they enforce may fairly be called legal. Self-help, thus or- dered, meets the needs of early society in all cases in wiiiih the right to be enforced is clear, and its viol.nlion apiiarent, but it does not furnisli any mode of settling controversies. This open place is filled by oaths, by ordeals, by arbitrations, and at last by authoritative judgments. (For the be- ginnings of jurisdiction, see CofRTS. ) When courts are once established, custom gains not only an authoritative interpretation, but a de- velopment which, however slow, is far more rapid than was previously possible, ^'lthin the field over which the courts have jurisdiction, the growth of customary law is henceforth accom- plished by decisions: its rules are found in the tradition or in the recollection or in the written record of judicial precedents. Popular custom is thus supplanted by judicial custom. In legal theory, however, precedents or decisions are not law. but only evidences of the law ; and even when they are written, the law which is found in them is said to he 'unwritten.' This is still the theory of the courts as regards Knglish common law. 22 LAW. although it is well recognized that the common law is judge-made law. Karly legislation among many peoples is close- ly associated with jurisdiction; the law-finders are also the law-givers: and the law 'laid down' or 'set' (lex, tiat-iiti;/, (jesctz. statute) is citlicr a mere declaration of established custom or a judgment in advance on a question not yet set- tled by the decision of any actual case. There is, however, another root of early legislation, viz. the agreement of the community that it will in future observe a jiroposed rule. In both cases, however, the forms of law-giving and those of law-finding are frequently almost identical. At what point of development early custom shall be regarded as law is sulistantially a dis- pute over words. The decision dciionds upon the definition of law. The Austininn iletiiiition of a law as a command emanating from a definite sov- ereign would include few rules of early custom; but those wiio find the essential element of law in the sanction will recognize in the most primitive custom a core of law. Equity. With the establishment of judicial and legislative authorities, the factors that pro- duce law in modern times are already operative. There is, however, an intermediate .stage of de- velopment, noticeable botli in Koman and in Eiig- lisli legal history, which is known as equity. Xeither the Roman pra'tors nor the English chancellors in develo))ing new law laid down hard and fast rules, like legislators; they found law in the decision of single cases, like judges; but they did not regard themselves as bound by the ]irecedents by which the administration of justice iiad previously been controlled. The new rules that were ai)plied were not at first regarded as law. but rather as arbitrary assertions of govern- mental power. When, however, as happened both at P.ome and in England, equity, following its own precedents, developed a new body of judicial custom, it was recognized that this custom was law. In England and in the United States equity is recognized as judge-made law. and it is often incluilcd in the term 'common law.' Modern Legi.slation. In an advanced stage of social progress, legislation tends to become an increasingly imjiortant agency of legal develop- ment. . large part of the Roman Imperial law, however, even in its latest development, was still judge-made law or case-law; and in modern Eng- lish-s))eaking countries not only does much of the law still rest tipon judicial precedent (com- mon law), but its development is still in the hands of the judiciary. The attempt in modern Euro])ean States to put all the law into legisla- tive or statutory form seems to be due to excep- tional circumstances (see Civil L.wv and Code) ; and even in modern European law. although it is comnionlv denied that decisions make law, the persistent judicial practice (jurixiiniflrnce, Ge- richtsijebrauch )hy which open places in the writ- ten law are tilled and new rules found to govern eases which the legislator could not, or at least did not, foresee, is jiractically treated as law. Custom and Legislation in the Field of PUHLIU T.aw. Xot only the relations of individ- uals and of private associations to each other, but also the ru'ganiziition of the State and of govern- ment, and the relations of the difTcrent branches of government to each other, are governed by law. This part of the law — constitutional law — is usually, until a comparatively late stage of po-