Page:The New International Encyclopædia 1st ed. v. 12.djvu/35

* LAW. 23 LAW. litical development, mainly customary. Acts and forbearances; the exercise of powers to whicii the community submits or limitations imposed upon power to which the government submits; contests between ditlerent branches of the gov- ernment which end in a one-sided triumph or in reciprocal concessions — these are the precedents which make constitutional custom. In these mat- ters the courts of justice have in most countries no jurisdiction: even in the United States they do not interfere in questions which they regard as political. At the present time nearly all civi- lized nations have written constitutions; but the development of these written constitutions is still carried on, as in former times, by the establish- ment of new customary law. The methods in which governmental power may be exercised, the rights and duties of govern- mental officers, the relations between government and private persons — these matters are regulated bj' administrative law. This branch of the law, originally developed by the constant practice or custom of the government, becomes at a compara- tively early period a subject of legislation; and in modern times controversies between the admin- istration and private persons are regularly with- in the jurisdiction of the ordinary courts or of special administrative courts. Administrative legislation is therefore supplemented by judicial custom, i.e. by the customary interpretation of the courts. The customary practice of adminis- trative agencies, however, has not ceased to be a source of administrative law. International law, even in its most modem developments, is almost wholly customary. The precedents on which it rests are the acts and for- bearances of independent governments in their relations with one another. It resembles na- tional custom in a very early stage of develop- ment; for behind many of its rules there is only a moral sanction, viz. the moral sense of the civilized world. It is true that international law is now generally recognized as a part of the law of each State, and that its rules are enforced by each State against individuals; but against an offending State the ultimate remedy is .still self-help and international feud. i.e. war; and it is not yet usual for neutral States to give more than moral support to the State that is waging a rightful war. The jurists who refuse to recog- nize earlj' national custom as law are therefore obliged to deny that international custom is law in the strict .sense of the word. Those, however, who find the essential characteristic of law in its sanction, point out (hat rules of international law may be. and sometimes are. enforced by the con- certed action of the powers (joint intervention I ; and that any State «hicli should persistently vio- late the rules of international law would as- suredly be excluded from its benefits, i.e. it would be outlawed. There is also, in international re- lations, the beginning of legislative action in the form of general compacts (declarations of con- gresses) ; and there is the beginning of judicial decision in the growing practice of arbitration, and in the recent establishment of a permanent triliunal at The Hague to which international dis- putes may be referred. Abrog.tion' and DE.srETUDE. That legislative rules are abrogated by repeal and by contrary legis- lation; that customary law is put out of force by contrary legislation, by change of custom, and by general non-observance (desuetude) — these facts are universally admitted. That legis- lation may lose its force and l)ecome 'a dead let- ter' by the development of contrary custom or by desuetude was aUirined by the Komans, but is generally denied by moderia jurists. The history of law, however, is full of examples of the dis- appearance of written law in consequence of persistent non-observance; and even in modern times it is not ditlicult to discover statutes that have never been repealed or superseded, and are yet never enforced. When the administrative branch of government is independent of the legis- lative, laws that can be enforced only on the initiative of the administration may easily be- come dead letters by persistent administrative inaction; and this is particularly likely to happen when the law is not supported by public opinion. Applications of Law: Persons and Places. Early law is tribal, i.e. the individual is subject to its authority and entitled to its benefits be- cause of his membership in a tribe. With the foimation of wider political associations, law becomes national. Under either .system the stranger or foreigner is out of the law, unless its protection be extended to him through a mem- ber of the tribe or nation, or by virtue of a treaty. Earljr law is also religious ; it applies only to the members of a particular cult. Where many tribes have a common religion, the religious law may give a certain protection, within each tribe, to strangers ot the same cult. Differences of religion are not found in early times among the members of a tribe ; but with the formation of wider political unions different cults maj' be brought under a common sovereignty, and differ- ent rules may be applied to the adherents of the various cults. This is the case to-day in British India. In some of the European States, as late as the nineteenth century, .Jews were allowed to live by their own law as far as their family re- lations were concerned; and in Austria, at the present time, divorce is refused to Catholics, al- though it is granted to non-Catholics. The law of the modern State (which is some- times, but not very appropriately, termed "mu- nicipal' law) is strictly national only as regards political rights and duties, which are confined to citizens or subjects (nationals). In all other respects it is territorial ; it governs all [jersons within the jurisdiction of the State, whether they are nationals or aliens. A few private rights are withheld in some countries from aliens, but in general the alien enjoys the same private rights as the national. An exception to the rule that law is territorial is found in the institution of exterritoriality (q.v.). In many cases, finally, the territorial law itself not only permits, but re- quires the application of foreign law by its own courts. See Conflict of L..w. Time. In general, of course, a rule of law which has ceased to exist ceases to be operative. Where, however, a legal relation has been estab- lished or a right vested, it would clearly be iinjust that the relation should be dissolved or the right impaired by a change in the law. When such a case comes before the courts, it is therefore usual- ly decided according to the provisions of the old law. This principle is usually stated differently: It is .said that laws (i.e. new laws) are not retro- active. In Europe, where the legislature is not subjected to constitutional restrictions, the pro- tection of vested rights is secured by a judicial