I. The Historical Objection. Custom precedes Law, and the Judge the Law-Giver. Historical The first main objection to Austin's analysis of "Law I. The Proper" rests for its justification upon the hard facts of Objection History. to the Analysis mand. Austin's definition, however apt it be to the circum- of Law as stances of modern state life, has no universal application. ComFor albeit in the present days laws may be, and laws All Law is commonly are, the declaration of the will of determinate not Comauthors, determinate lawgivers, such lawgivers commonly passing under the style of sovereigns, it has been, and is, by no means possible at all times to point out any such determinate lawgiver. mand. Patri hold we If we turn to Ancient Society, to that Society wherein In the was quickened the germ of the Aryan State, we discover archal Societies independent and under the undisputed govern- Houseance of determinate Rulers; but these Societies approach have Comnot to the proportions of a State, nor these Rulers to the mand, style of Sovereigns. Probably the Family is nomadic : probably its numbers are but few. Here then there is no field for "Positive Law." But in such an association have we Proper Law?" Theoretically indeed we might in the government of the Household discover rules of conduct answering to Austin's definition. We have Command, and that Command imposed by a Determinate Human Superior upon an Inferior formerly obliged to obey, and we have Determinate Eventual Evil attached to noncompliance on the part of the determinate individual who is obliged to, or under the Duty of obedience. But, in but it is actual fact, the government of the Paterfamilias partakes not of the character of regular law, but of particular mand.” Command. And not unworthy of note is it that, when, after the lapse of centuries, the tyranny of the One has given way to the despotism of the Few, the first cry of the Many, rising against their oppressors, takes form in "Particu is Custom. the demand for a Code, a demand which reveals at all events the suspicion of arbitrary rule'. When we pass beyond the Family it would seem essential that the conduct of the members of the community should be regulated by something more than mere arbitrary command: when we pass beyond the Family we, in fact, enter naturally upon the sphere of political Early Law organisation and of Law. Yet when we examine primitive associations larger than the Family, and popular society as advanced in political life as were the Germans of Tacitus, we find nothing of the character of Austinian "Law:" we find rulers, but these rulers are not legislators but judges: we find Councils of Elders, but these again are not lawmakers, but assessors, advisers of the Headman or the Monarch: we find popular assemblies, but these are not legislative Parliaments, but the meetings of the Host, the meetings of the whole free people in arms for deliberation as to some external movement, or for the supervision of the Customary land distribution. When we look to the Germania depicted by Tacitus, we stand in the presence of a race of free warriors, men who wield the spear and the shield, but at no master's beck and call; men who come together in folkmeeting non simul nec ut jussi;" whose orators are heard “auc"toritate suadendi magis quam jubendi potestate;" whose magistrates are merely elective principes" qui jura per "pagos vicosque reddunt," while "centeni singulis ex "plebe comites consilium simul et auctoritas adsunt:" men who defy the lash and the fetter and submit to correction "non quasi in poenam nec ducis jussu set velut deo imperante;" yet withal the historian can testify "Plusque ibi boni mores valent quam alibi bonae leges"." The rules of conduct operating amongst primitive peoples are not commands issued, or set, by a Sovereign One or Body, and sanctioned by a definite penalty to pro 1 Maine, A. L. p. 14 seqq. 2 Germania, VII. and xi. Such a Society Austin terms a "Natural Society." ceed from the One or Body, and to be incurred by the offender. Primitive Law is Custom, Custom observed on account of its antiquity or on account of its supposed Divine origin. Custom is a Law in itself: its own legislator and its own sanction. Law of Oriental And, turning to certain of the empires of the hide- So too the bound East, the late Sir Henry Sumner Maine has shown certain that there, too, while there exists a certain well-recognised modern head, which head sends his emissaries or rulers into various States. portions of his vast territories, the subjects of these territories are in no way indebted to that head, nor yet to his delegates, for anything in the nature of fixed rules or ordinances. Arbitrary command there is, indeed, on occasion, command of Xerxes or of Runjeet, but, so long as the imperial and vice-regal demands for tribute are met with reasonable acquiescence, the regular life of the people is limited, not by any general command of the Emperor, or his delegates, but by mere Custom1. "Without the most violent forcing of language," says Maine, "it is impossible to apply these terms Command, Sovereign, Obligation, Sanction, Right to the Customary Law under which the Indian village communities have lived for centuries, practically knowing no other "Law" civilly obligatory. It would be altogether inappropriate to speak of a political superior commanding a particular course of action to the villagers. The council of village elders does not command anything: it merely declares what has always been, nor does it generally declare that which it believes some higher power has commanded. Those most entitled to speak on the subject deny that the natives of India necessarily require Divine or Political authority as the basis of their usages. Their antiquity is by itself assumed to be a sufficient reason for obeying them. Nor in the sense of the analytical jurists is there Right or Duty in an Indian village community. A person aggrieved complains not of an individual wrong, but of the disturbance of the order of the entire little society. 1 Maine, Early Hist. of Institutions, Lects. XII, and XIII. Professor upon Sir Henry More than all Customary Law is not enforced by a sanction. In the almost inconceivable case of disobedience to the award of the Village Council the sole punishment, or sole certain punishment, would appear to be universal disapprobation'. On this Professor Holland observes: "With reference to the relation of a great Oriental criticisms taxgathering empire to the village customs of its subjects, or to the more distinctly formulated laws of a conquered province, it is necessary to draw a distinction. Disobedience to the village custom or the provincial law may either be forcibly repressed, or it may be acquiesced in, by the local authority. If it be habitually repressed by such local force as may be necessary, it follows that the local force must, if only for the preservation of the peace, be supported, in the last resort, by the whole strength of the empire. In this case the humblest village custom is a law which complies with the requirement of being enforced by the sovereign. If, on the other hand, disobedience be habitually acquiesced in, the rules which may thus be broken with impunity are no laws; and, so far as such rules are concerned, the taxgathering empire is lawless, its organisation consisting merely of an arbitrary force, acting upon a subject-mass which is but imperfectly bound together by a network of religious and moral scruples." The answer. 3 But the very gist of Maine's argument is that dis 1 Maine, Vill. Comm. pp. 67, 68. 2 Holland, Jurisprudence, pp. 42–43. 3 Compare with the legal condition of the communities pointed out by Sir Henry Maine the position of Custom in a society so distinct as that of the Shire Highlanders described by a member of the Blantyre mission: "Native customs are many and varied, and it is long before one gets at the root of one-half of them. It is wonderful how they do things according to custom, and are not slow in many cases at being able to give you a reason for them. Of course they follow customs in many cases that have been derived from their forefathers, until they have literally become part of their existence, and because their forefathers did a certain thing, they also must do the same. But it is going too far obedience to village custom is repressed by "local force," and by local force only. Little it profits to know that such and such "must be " if such and such in actual fact is not. Respect for Village Custom is maintained by local force, but it is the force not of arms but of opinion, a force practically sufficient for the purpose, and a force which binds together village society more perfectly than would the fear of interference on the part of "the whole strength of the empire." To one to whom the notion of absolute recalcitrance would be inconceivable, the idea of applying for the support of "the whole strength of the empire" to punish the refractory would be foreign indeed. To appeal from village social opinion to "the whole strength of the empire" represented by the Central Head would be in effect to appeal from a stronger to a weaker power. It may be that "local force must...be supported, in the last resort" by such whole strength, but the peculiarity of the case is that the villagers themselves, the persons, presumably, chiefly interested in the discovery of their powers, appear to have dwelt, and still to dwell, in blissful ignorance of the sweets of their position. For them "the whole strength of the empire" speaks in the Custom itself, and not by the bared sword of the absent and distant ruler. Were any radically minded villager in the dominions of some Eastern tyrant daring enough to anticipate advancing civilisation, and outrage the legacy of hoar antiquity, would his fellows in any case invite the attention of their sovereign lord? And would the absence of such application constitute acquiescence in disobedience and expose the community to the epithet "lawless?" A law observed must be in some way enforced, and, if The observance cease in any community, that community is opinion of to say that they have not improved on their forefathers, or that they will not reject customs handed down for centuries, and adopt new and better To introduce a new custom, and especially a good one, is by no means easy, but it is not insuperable." ones. The Shire Highlands. John Buchanan, pp. 136-7. an indeter |