We may, then, accept as valid the reasoning of Austin when he says: 16

"At its origin, a custom is a rule of conduct which the governed observe spontaneously or not in pursuance of a law set by a political superior. The custom is transmuted into positive law when it is adopted as such, either by being expressly embodied in statutes promulgated by the sovereign authority, or implicitly by decisions of the courts of justice which are enforced by the power of the State.

"For a legal rule introduced by a judicial decision (whether suggested by custom or not) is in effect legislation by the sovereign. A subordinate or subject judge is merely a minister. The rules which he makes derive their legal force from authority given by the State; an authority which the State may confer expressly, but which it commonly imparts by way of acquiescence. For, since the State may reverse the rules which he makes, and yet permits him to enforce them by the power of the political community, its sovereign will that the rules shall obtain as law, is clearly evinced by its conduct though not by its express declaration. Like other significations of desire, a command is express or tacit. If the desire be signified by words (written or spoken) the command is express. If the desire is signified by conduct (or by any signs of desire which are not words) the command is tacit. Now when customs are turned into legal rules by decisions of subject judges, the legal rules which emerge from the customs are tacit commands of the sovereign legislature. The State which is able to abolish, permits its members to express them; and it therefore signifies its pleasure by its voluntary acquiescence, that they shall serve as a law to the governed."

Province of Jurisprudence Determined, Lecture I.

A little reflection shows how indefinite would be the term “law” if applied to custom and civil rules alike. So long as customary rules retain their purely customary form, that which gives to them force and efficiency for regulation is not the threat of coercion, or the imposition of penalties by a superior power in case of their violation. Their force is solely derived from the pressure of public opinion, of religious sanction, of individual sense of right, or the possibility of personal retaliation on the part of those persons injured by such violation. Such influences as these are of the most variable character, and personal in the highest degree. Their force depends almost wholly upon the subjective condition of the individual, upon his own peculiar temperament of mind, his sense of justice, his religious reverence, his regard for the traditional, his power of self-restraint, and his sensitiveness to the goodwill of the community. Such principles, then, possess no force of their own, no compelling power; obedience to them is secured only by the voluntary consent of the individual, such consent being based upon the dictates of reason, expediency, and right that dwell within his own breast.

When, therefore, it is asked so to broaden the connotation of the term "law" as to include such elements as these, it may be answered that logical exactness and scientific accuracy demand that a more definite meaning be given to this word. Definitions are valuable only insofar as they give a precision of meaning to words and expressions. Their sole utility consists in the demarcation of a definite field within which the word or phrase is applicable, and it will be apparent that to include within the meaning of law elements that differ so widely as the purely customary principles of which we have been speaking, and the rigid rules of conduct, formally enunciated by the State and enforcible by its sovereign right, is to

create a signification for the word that cannot be sufficiently definite to serve as a basis upon which to found a formal science of jurisprudence and politics. What decisive and universally applicable definition shall we give to law, if custom is to share with the State the power of its creation? When shall we know at any one time what is and what is not the law? What but confusion must necessarily result from conceiving two co-ordinate lawmaking authorities, each having the right to create law independently of the other, or to abrogate and overrule each other's creations?

In result, then, we are justified in defining law, in the strict positive or juristic sense, as those rules of conduct that courts of justice apply in the exercise of their jurisdictions. As distinguished from all other rules of conduct that obtain more or less general recognition in a community of men, they are such as have for their validity the sanction of the State. The scientific value of such a definite connotation of the term "law" is obviously great. By it alone is rendered possible a definite and exact knowledge of the facts to which this department of knowledge relates, and a sound basis afforded upon which to rest the conception of the Sovereignty of the State.17

The sense in which the courts rather than the formal law-making or legislative branches of a government may be said to be organs through which the State creates its law has been examined in the preceding chapter in which the location of sovereignty in the body-politic was considered. The matter of the recognition and application of

17

Regarding the value of Austin's conception of law and Sovereignty, Mr. Justice Markby (Elements of Law, 2d ed., p. 4) speaks as follows: "Austin, by establishing the distinction between law and morals, not only laid the foundation for a science of law, but cleared the conception of law and of sovereignty of a number of pernicious consequences to which, in the hands of his predecessors, it had been supposed to lead. Laws, as Austin has shown, must be legally binding; and yet a law may be unjust. Resistance to authority cannot be a legal right, and yet it may be a virtue."

international law principles by municipal courts is discussed in the chapter entitled "International Law." 18 The argument there stated applies as well to the recognition and enforcement by one State of the municipal law of another State.

Permissive Laws. The objection to viewing laws as "commands" of the State, based upon the fact that many laws are permissive rather than mandatory or declaratory in character, is sufficiently answered by pointing out that in all cases where this is so there are created or recognized rights which have a legal force and which are protected by laws which are mandatory in character. permissive and merely declaratory laws, it can always be claimed that they are to be considered not as complete legal provisions but as integral parts of the mandatory laws which support them.

Of

Considerable discussion has centered around the point whether the term law, in a positive or any other sense, should be limited in its application to those expressions of the States' will which state a general rule. To the writer, however, it seems clear that any order, or decree, or administrative ordinance, even though it relate to the performance of but a single act by a particular individual, is a law; that is, it expresses the sovereign will of the State if it is one which has the support of some more general law or is declared in pursuance of a legally delegated governmental power.19

Actual Enforcement Not an Essential Element in the Concept of Positive Law. A more difficult question is whether it is necessary that a rule should be actually en

18 See chap. XVI.

19

A by-law of a corporation, or a rule established by any other society or body which has not a public character, that is, which is not a part of the governmental organization of the State, is a fact rather than a law a fact to which, as in the case of other facts, the courts will attach significance in determining the law to be applied in controversies involving such fact or facts.

forced in order that it may properly be termed a law in a strictly positive sense.

It is the opinion of the writer that this is not necessary. In discussing the nature of the State's sovereignty it was pointed out that the ascription to the State of legal omnicompetence carries with it no implication that the States, or rather those who control their governmental agencies, have the actual power to carry into effect any policies that they may desire or see fit to adopt. So, in determining what is positive law, the only criterion is whether the rules or act commanded by it is an authentic expression of the State's will as determined by existing constitutional law,-is, in other words, a rule of conduct or a command which the constituted courts will, if resorted to, order obeyed.

Such a court order may, in fact, be not obeyed either because the executive branch of the government refuses to lend its assistance, or because there is such popular resistance that the executive, though willing, finds itself unable to enforce it, or deems it inexpedient to do so. In such cases all that can be said is that there has been a violation of law which, however, no more destroys the law, as law, than is the criminal law destroyed when crime is committed.20

Cf. Gray, Nature and Sources of Law, sec. 234 ff. Gray, discussing the situation presented when juries fail to convict persons violating an established law, as for example, a law forbidding the sale of wine, says: "This statute, being followed by the courts is an element of the law in the State, but it is not the whole law. It is also doubtless law in the State that no one shall be punished for crime except after being found guilty by a jury. The whole law must be taken together. We say the law is that a man selling wine shall be punished, but in truth the law is, that a man selling wine and convicted thereof by a jury shall be punished. If there has been no conviction by a jury, one of the elements which the law declares necessary for the infliction of punishment does not exist."

In a later section (§260) Gray discusses the situation presented when two or more courts of coördinate power render divergent decisions as to what is the law, and says that it must then be said that, as to the matter involved, there is no established law. This conclusion is not wholly satisfactory. For the judgments or decrees of the courts in each case con