SUMMARY.
| Legislation—Its three senses: | |||
| 1. All forms of law-making | Direct legislation. | ||
| Indirect legislation. | |||
| 2. All expression of the will of the legislature. | |||
| 3. The creation of law by way of authoritative declaration. | |||
| Law | Enacted—Statute—Written. | ||
| Unenacted—Common—Unwritten. | |||
| Legislation | Supreme—by the Imperial Parliament. | ||
| Subordinate | 1. Colonial. | ||
| 2. Executive. | |||
| 3. Judicial. | |||
| 4. Municipal. | |||
| 5. Autonomous. | |||
| Historical relation of legislation to other sources of law. | |||
| Superiority of legislation over other sources of law. | |||
| Codification. | |||
| Interpretation | Grammatical—based on the litera legis exclusively. | ||
| Logical | Litera legis logically defective. | Ambiguous. | |
| Inconsistent. | |||
| Incomplete. | |||
| Litera legis containing self-evident error. | |||
| Strict and equitable interpretation. | |||
| Extensive and restrictive interpretation. | |||
CHAPTER VIII.
CUSTOM.
§ 55. The Early Importance of Customary Law.
The importance of custom as a source of law continuously diminishes as the legal system grows. As an instrument of the development of English law in particular, it has now almost ceased to operate, partly because it has to a large extent been superseded by legislation and precedent, and partly because of the very stringent limitations imposed upon its law-creating efficacy, the legal requirements of a valid custom being such as few customs can at the present day conform to. In earlier times, however, it was otherwise. It was long the received and official theory of English law that whatever was not the product of legislation had its source in custom. Law was either the written statute law, or the unwritten, common, or customary law. Precedent was not conceived as being itself a legal source at all, for it was held to operate only as evidence of those customs from which the common law proceeded. Lex et consuetudo Angliae was the familiar title of our legal system. The common law of the realm and the common custom of the realm were synonymous expressions. It may be gravely doubted whether at any time this doctrine expressed the truth of the matter, but it is clear that it was much truer in the early days of our legal history, than it subsequently became; and it remained the accepted theory long after it had ceased to retain any semblance of the truth. For some centuries past, the true sources of the great bulk of our law have been statute and precedent, not statute and custom, and the common law is essentially case-law, not customary law. Yet we find Hale[[121]] in the seventeenth century, and Blackstone in the eighteenth, laying down the older doctrine as still valid. In the words of Blackstone:[[122]] “The municipal law of England ... may with sufficient propriety be divided into two kinds; the lex non scripta, the unwritten, or common law; and the lex scripta, the written, or statute law. The lex non scripta, or unwritten law, includes not only general customs, or the common law properly so called; but also the particular customs of certain parts of the kingdom; and likewise those particular laws that are by custom observed only in certain courts and jurisdictions.” Such language is an echo of the past, not an accurate account of the facts of the present day. Nevertheless even now custom has not wholly lost its efficacy. It is still one of the legal sources of the law of England, and an examination of its nature and operation pertains to modern juridical theory, and not merely to legal history or antiquities.
§ 56. Reasons for the Reception of Customary Law.
The reasons for attributing to custom the force of law have been already briefly indicated in relation to legal sources in general. We have seen that, in the first place, custom is the embodiment of those principles which have commended themselves to the national conscience as principles of truth, justice and public utility. The fact that any rule has already the sanction of custom raises a presumption that it deserves to obtain the sanction of law also. Via trita via tuta. Speaking generally, it is well that the courts of justice, in seeking for those principles of right which it is their duty to administer, should be content to accept those which have already in their favour the prestige and authority of long acceptance, rather than attempt the more dangerous task of fashioning a set of principles for themselves by the light of nature. The national conscience may well be accepted by the courts as an authoritative guide; and of this conscience national custom is the external and visible sign.
Custom is to society what law is to the state. Each is the expression and realisation, to the measure of men’s insight and ability, of the principles of right and justice. The law embodies those principles as they commend themselves to the incorporate community in the exercise of its sovereign power. Custom embodies them as acknowledged and approved not by the power of the state, but by the public opinion of the society at large. Nothing, therefore, is more natural than that, when the state begins to evolve out of the society, the law of the state should in respect of its material contents be in great part modelled upon and coincident with the customs of the society. When the state takes up its function of administering justice, it accepts as true and valid the rules of right already accepted by the society of which it is itself a product, and it finds those principles already realised in the customs of the realm. As those customs develop and alter with change of circumstance and the growth of public enlightenment, the state is wisely content to allow such development and modification to reflect themselves in the law which it administers. This influence of custom upon law, however, is characteristic rather of the beginnings of the legal system than of its mature growth. When the state has grown to its full strength and stature, it acquires more self-confidence, and seeks to conform national usage to the law, rather than the law to national usage. Its ambition is then to be the source not merely of the form, but of the matter of the law also. But in earlier times it has perforce to content itself with conferring the form and nature of law upon the material contents supplied to it by custom.
A second ground of the law-creative efficacy of custom is to be found in the fact that the existence of an established usage is the basis of a rational expectation of its continuance in the future. Justice demands that, unless there is good reason to the contrary, men’s rational expectations shall, so far as possible, be fulfilled rather than frustrated. Even if customs are not ideally just and reasonable, even if it can be shown that the national conscience has gone astray in establishing them, even if better rules might be formulated and enforced by the wisdom of the judicature, it may yet be wise to accept them as they are, rather than to overturn all those expectations which are based upon established practice.
§ 57. The Requisites of a Valid Custom.
In order that a custom may be valid and operative as a source of law, it must conform to certain requirements laid down by law. The chief of these are the following:—
1. Reasonableness.—A custom must be reasonable. Malus usus abolendus est.[[123]] The authority of usage is not absolute, but conditional on a certain measure of conformity with justice and public utility. It is not meant by this that the courts are at liberty to disregard a custom whenever they are not satisfied as to its absolute rectitude and wisdom, or whenever they think that a better rule could be formulated in the exercise of their own judgment. This would be to deprive custom of all authority, either absolute or conditional. The true rule is that a custom, in order to be deprived of legal efficacy, must be so obviously and seriously repugnant to right and reason, that to enforce it as law would do more mischief than that which would result from the overturning of the expectations and arrangements based on its presumed continuance and legal validity. We shall see, when we come to discuss the theory of precedent, how the authority of judicial decisions is, in general, similarly conditional rather than absolute; a precedent which is plainly and seriously unreasonable may be overruled instead of followed. We are told in the old books that a similar rule obtains in respect of the authority of acts of Parliament themselves. It was once held to be good law, that an unreasonable act of Parliament was void.[[124]] This, indeed, is no longer so; for the law-creating authority of Parliament is absolute. Certain forms of subordinate legislation, however, are still subject to the rule in question; an unreasonable by-law, for example, is as void and unauthoritative as an unreasonable custom or precedent.
2. Opinio necessitatis.—The second requisite of a valid custom is that which commentators on the civil law term opinio necessitatis.[[125]] By this is meant the conviction on the part of those who use a custom that it is obligatory, and not merely optional.[[126]] Custom, merely as such, has no legal authority at all; it is legally effective only because and in so far as it is the expression of an underlying principle of right approved by those who use it. When it is based on no such ethical conviction or opinio necessitatis—when those who use it hold themselves free to depart from it if they will—it is of no legal significance. The only customs which are a source of law are those which are observed by the community as determining the rights and duties of its members.
3. Conformity with statute law.—The third condition of legal validity is that a custom must not be contrary to an act of Parliament. We shall see that certain forms of custom possess not merely constitutive, but also limited abrogative power, being capable of derogating from the old law, as well as of creating new. But no custom of any sort is of any validity as against statute law. The authority of legislation is in English law higher than that of custom. By no length of desuetude can a statute become invalid, and by no length of contrary usage can its provisions be modified in the smallest particular. The common law will yield to immemorial usage, but the enacted law stands for ever.[[127]]
It must not be supposed that this rule is one of necessity, derived by logical inference from the nature of things. It is nothing more than a positive principle of the law of England, and a very different rule was adopted by Roman law,[[128]] and by the various Continental systems derived from it. There the recognised maxim is Lex posterior derogat priori. The later rule prevails over the earlier, regardless of their respective origins. Legislation has no inherent superiority in this respect over custom. If the enacted law comes first, it can be repealed or modified by later custom; if the customary law is the earlier, it can be similarly dealt with by later enacted law. “If,” says Savigny,[[129]] “we consider customs and statutes with respect to their legal efficacy, we must put them on the same level. Customary law may complete, modify, or repeal a statute; it may create a new rule, and substitute it for the statutory rule which it has abolished.” So Windscheid:[[130]] “The power of customary law is equal to that of statutory law. It may, therefore, not merely supplement, but also derogate from the existing law. And this is true not merely of rules of customary law inter se, but also of the relations of customary to statute law.”[[131]]
4. Immemorial antiquity.—The fourth requisite of the validity of a custom relates to the length of time during which it has been established. Here it is necessary to distinguish between two kinds of customs, namely, those which are general—the customs of the realm, prevailing throughout the whole territory governed by the legal system—and those which are local, being limited to some special part of the realm.[[132]] The rule of English law with respect to the necessary duration of a custom is that one which is merely local must have existed from time immemorial. In the case of other customs, however, there is no such requirement. It is there sufficient that the usage should be definitely established, and its duration is immaterial. A local custom must make up for the limited extent of its application by the long duration of its existence, but other customs derive from their generality such a measure of authority as does not require to be supplemented by length of days.
We shall see later, how the idea of immemorial custom was derived by the law of England from the canon law, and by the canon from the civil law. Time immemorial, or time whereof the memory of man runs not, means in the civil and canon law, and in the systems derived therefrom, and originally meant in England also, time so remote that no living man can remember it, or give evidence respecting it. Custom was immemorial, when its origin was so ancient that the beginning of it was beyond human memory, so that no testimony was available as to a time when it did not as yet exist.[[133]] In the thirteenth century, however, a very singular change took place in the meaning of the term. The limit of human memory ceased to be a question of fact, and was determined by a very unreasonable rule of law which still remains in force. In consequence of the interpretation put by the judges upon the Statute of Westminster I., passed in the year 1275, it became an established legal principle that the time of memory reached back as far as the commencement of the reign of Richard I. and no further. From that day to this the law has remained unaltered. The discordance between the memory of man as it is in fact, and as it is in law, has been steadily growing with the lapse of years, so that at the present day the law of England imputes to living men a faculty of remembrance extending back for seven centuries. There is perhaps no more curious example of the conservatism of our law.[[134]]
The rule, therefore, that a particular custom is invalid unless immemorial means in practice this: that if he who disputes its validity can prove its non-existence at any time between the present day and the twelfth century, it will not receive legal recognition. It is not necessary for the upholder of it to prove affirmatively its existence during the whole of that period. If he can prove that it has existed for a moderate period, say twenty years, from the present day, this will raise a presumption of its immemorial antiquity, which must be rebutted by him who disputes it.[[135]]
It is not difficult to understand the reason which induced the law to impose this stringent limitation upon the efficacy of local customs. It was designed in the interests of a uniform system of common law for the whole realm. Had all manner of usages been recognised without any such limitation, as having the force of special law, the establishment and maintenance of a system of common law would have been rendered all but impossible. Customary laws and customary rights, infinitely various and divergent, would have grown up so luxuriantly, as to have choked that uniform system of law and rights which it was the purpose of the royal courts of justice to establish throughout the realm.[[136]]
Origin of the rule as to time of memory.—The requirement of immemorial antiquity was introduced into the English law courts of the twelfth or thirteenth century from the canon law. In two respects the Canonists developed and rendered more definite the somewhat vague and indeterminate theory of customary law which we find in the writings of the Roman lawyers. In the first place, clear recognition was accorded to the distinction between jus commune and consuetudines, the former being the common, general, or written law of the whole Church, while the latter consisted of the divergent local and personal customs which were added to, or substituted for the jus commune in particular places or in respect of particular persons. This nomenclature, with the conceptions expressed by it, passed from the canon law to the law of England.
In the second place the Canonists attempted to supply a defect of the civil law by laying down a fixed rule as to the necessary duration of customs. They determined that no consuetudo was to be held valid, so as to derogate from the jus commune, unless it was praescripta, that is to say, unless it had endured during the legal period of prescription. Consuetudo praescripta praejudicat juri communi.[[137]]
What, then, was the period of prescription thus required? On this point we find no agreement among the doctors, for there were several different forms of prescription known to Roman law, and there was no unanimity among the Canonists in the selection of any one of them as a test of the validity of custom. Many favoured the adoption of the ordinary decennial prescription of Roman land law, and held that a custom must have endured for ten years at least, but need have lasted no longer.[[138]] Others demanded forty years, since this is the prescription required as against the Church by the legislation of Justinian.[[139]] At one time, however, there was a widely held opinion that the true time of prescription required to enable a custom to derogate from the common law of the Church was time immemorial. Illa consuetudo praejudicat juri, cuius non exstat memoria hominum.[[140]]
This conception of time of memory as a period of prescription was derived from the civil law. Immemorial prescription was there a mode of acquiring servitudes. Ductus aquae cuius origo memoriam excessit, jure constituti loco habetur.[[141]] The Canon law adopted this rule, and made a more extensive use of it. Immemorial prescription became a supplementary mode of acquisition, available in all cases in which there was no shorter period of prescription to which a claimant might have recourse. From the canon law it passed into the laws of France, Germany, and England.[[142]]
As already stated, then, many Canonists recognised time immemorial not merely as a period of prescription, but as a condition of the validity of customary law. Suarez, writing at the end of the sixteenth century, tells us, indeed, in the course of an exhaustive examination of the theory of customary law, that in his day this doctrine was no longer received.[[143]] Long before Suarez, however, it had established for itself a secure place in the law of England. The canonical principles of consuetudo rationabilis et praescripta and of tempus immemoriale were in the thirteenth century at the latest incorporated in our legal system by those ecclesiastical lawyers who laid the foundations of it. This, indeed, was the only form of prescription which obtained recognition from the common law. We find the rule settled with perfect definiteness in the earliest Year Books of Edward I.[[144]]
5. Conformity with the common law.—The fifth and last requirement of a valid custom is that, unless immemorial, it must be consistent with the common law. That it must be consistent with statute law is, as we have already seen, a rule applicable to all customs whatever, whether immemorial or not. That it must be consistent with the common law is a rule applicable only to recent customs, and not to those which have the prestige and authority of immemorial antiquity. Modern custom possesses constitutive, but no abrogative power; it must operate in the spaces left vacant by the law already established; it may supplement the law, but cannot derogate from it. Immemorial custom, on the other hand, can destroy as well as create, so far as the common law is concerned; though as against the statute law it is as powerless as the most ephemeral usage.[[145]]
The combined effect of the various rules which we have considered is to render custom less and less important as a source of new law. As the legal system develops, the sphere within which custom is operative grows gradually smaller. For, in the first place, custom cannot derogate from statute law, and this latter tends progressively to absorb into itself the whole of the common law. In the second place, the requirement of immemorial antiquity precludes local custom from operating as an instrument of fresh legal growth. Such customs may now be proved and applied for the first time, but they cannot now for the first time come into existence. In the third place, all recent custom must be consistent with the law as already established, whether common or statutory. As the law develops and completes itself, therefore, there is less and less room left for the constitutive operation of custom. There are fewer vacancies within which customary law may grow. It is for this reason that the growth of general customary law has already all but ceased. Until a comparatively recent date, a great part of mercantile law was so imperfectly developed as to leave very considerable scope for the operation of mercantile custom. The law as to negotiable instruments, for example, was chiefly customary law. But at the present day our mercantile law is so complete that it is only in comparatively rare cases that the custom of merchants has any opportunity of serving as the ground of new principles.
§ 58. Conventional Custom.
Custom which does not fulfil all the requirements hitherto considered by us does not necessarily fail of all legal effect. It cannot, indeed, operate as a source of law by virtue of its own inherent authority. Yet it may nevertheless become legally operative by being incorporated into agreements, through the tacit consent of those who make them. Customs so operative may be distinguished as conventional. It is a rule of English law, as well as of other systems, that where a contract is made in any matter in respect of which an established custom exists, it must be interpreted by reference to that custom, and the parties must be deemed to have intended (in the absence of any expression of contrary intent) to adopt it as one of the terms of their agreement. In contractibus tacite veniunt ea quae sunt moris et consuetudinis.[[146]]
For example, if a lease of agricultural land is made in any district in which there are established usages as to the mode of agriculture and as to the relative rights and liabilities of landlord and tenant, the parties must be taken to have agreed to those usages as terms of the bargain, unless they have expressly or implicitly shown an intention to the contrary. In the same way, a mercantile contract must be taken to incorporate any usages of trade which are relevant to its subject-matter. In this manner customs which are not in themselves authoritative as sources of law or rights may become indirectly operative through the added authority of agreement. But the law and rights so produced are in reality conventional and not customary. It is sometimes not easy to determine whether a custom is operative directly and as such, or only indirectly as accessory to a contract, and the distinction has not always been sufficiently adverted to.
§ 59. Theories of Customary Law.
So far we have been concerned rather with those positive rules of English law which determine the validity and effect of custom, than with the abstract theory of the matter. This portion of juridical theory, however, has been the subject of considerable discussion and difference of opinion, and it is not free from apparent difficulties. We have to consider two opinions which differ materially from that which is here accepted as correct. The first of these is a characteristic feature of foreign and more especially of German jurisprudence, its reception being chiefly due to the influence of Puchta and Savigny. It essentially consists in this, that custom is rightly to be considered as a formal, and not merely as a material source of law. According to this doctrine, custom does itself confer the force and validity of law upon the principles embodied in it. It does not merely provide the material contents which derive their validity as law from the will of the state. It operates directly through its own inherent force and authority; not indirectly by reason of its recognition and allowance by the supreme authority and force of the state. The will of the state is not admitted to be the exclusive source of legal validity. It has no pre-eminence in this respect above the will of the people, as manifested in national usage. Custom is regarded as the expression of the national will and conscience, and as such it confers immediately the authority of law upon all principles approved by it. The will of the state is simply a special form of the popular will, and these are of equal authority. Customary law, therefore, has an existence independent of the state. It will be enforced by the state through its courts of justice because it is already law; it is not because it will be so enforced, that it is law.
Thus it is said by Arndts,[[147]] a German jurist of repute: “Customary law contains the ground of its validity in itself. It is law by virtue of its own nature, as an expression of the general consciousness of right, not by virtue of the sanction, express or tacit, of any legislature.” So Windscheid:[[148]] “In custom is manifested the conviction of those who use it that such custom is law (Recht), and this conviction is the source of the authority and validity of customary law. For the ultimate source of all positive law is national reason.... And this national reason can establish law in two different ways, namely, mediately and immediately. Mediately, through representation, it creates law by means of legislation. Immediately, it creates law by means of custom.”
Notwithstanding the credit of the great names by which this theory is sanctioned, it is rightly and all but unanimously rejected by English jurists. Custom is a material, not a formal source of law. Its only function is to supply the principles to which the will of the state gives legal force. Law is law only because it is applied and enforced by the state, and where there is no state there can be no law. The popular conscience is in itself as powerless to establish or alter the law of the land, as it is to deal in like fashion with the laws of nature. From custom, as from any other source, the state may draw the material contents of the rules to which it gives the form and nature of law, but from no other source than the will of the state itself can this form or nature be itself derived.
A second theory of customary law is that which we may term the Austinian, as having been advanced by Austin, and generally received by his followers. Austin rightly repudiates the German theory on the ground, already indicated, that custom is not a formal but merely a material source of law. The rejection of this and other allied confusions of thought is, indeed, one of the great services which he and his school have rendered to legal science. Nevertheless his own theory cannot be regarded as wholly satisfactory. For he in his turn confounds the legal and the historical sources of the law, and erroneously regards custom as one of the latter, rather than as one of the former. He considers that the true legal source of customary law is to be found in the precedents in which customs receive for the first time judicial recognition and enforcement. Customary law is for him simply a variety of case-law. It is case-law in which pre-existing customs have served as the historical sources from which the courts have drawn the matter of their decisions. The judges are conceived as basing their judgments upon custom, just as, on other occasions, they may base them on Justinian’s Digest or on the law of nature. It follows from this that a custom does not acquire the force of law until it has actually come to the notice of the courts and received judicial approval and application. If it is never disputed, and therefore never requires enforcement, it never acquires the force of law at all. “Law styled customary,” says Austin,[[149]] “is not to be considered a distinct kind of law. It is nothing but judiciary law, founded on an anterior custom.”
This opinion, however, seems inconsistent with the established doctrines of English law as to this matter. Custom is law not because it has been recognised by the courts, but because it will be so recognised, in accordance with fixed rules of law, if the occasion arises. Its legal validity is not dependent on the accidents of litigation. A custom does not wait to put on the nature of law until it has been actually enforced by the courts, any more than an Act of Parliament or an agreement is destitute of legal efficacy until it has required and received judicial recognition. This recognition may make a custom part of the common law, as being thereafter entitled to judicial notice, but it was part of the law already. The Austinian theory forgets that the operation of custom is determined by fixed legal principles, just as much as the operation of precedent itself. These two are co-ordinate legal sources, and each operates independently of the other. Custom does not enter the law through precedent, any more than precedent through custom. A custom is taken as the ground of a judicial decision, just as an Act of Parliament is so taken. In each case the law has been already made, and the judicial decision merely applies it.
§ 60. Custom and Prescription.
The relation between custom and prescription is such as to demand attention here, although the theory of the latter will receive further consideration in another place. Custom is long usage operating as a source of law; prescription is long usage operating as a source of rights. That all the lands in a certain borough have from time immemorial, on the death of an owner intestate, descended to his youngest son, is a custom, and is the source of a rule of special and customary law excluding in that borough the common law of primogeniture. But that John Styles, the owner of a certain farm, and all his predecessors in title, from time immemorial have used a way over the adjoining farm is a prescription, and is the source of a prescriptive right of way vested in John Styles.
Regarded historically, the law of prescription is merely a branch of the law of custom. A prescription was originally conceived as a personal custom, that is to say, a custom limited to a particular person and his ancestors or predecessors in title. It was distinguished from a local custom, which was limited to an individual place, not to an individual person. Local and personal customs were classed as the two species of particular customs, and as together opposed to the general customs of the realm. Coke distinguishes as follows between custom (i.e. local custom) and prescription.[[150]] “In the common law, a prescription which is personal is for the most part applied to persons, being made in the name of a certain person and of his ancestors, or those whose estate he hath; or in bodies politique or corporate and their predecessors.... And a custome, which is local, is alleged in no person, but layd within some mannor or other place.”
Since prescription and custom were thus regarded as two species of the same thing, we find, as might be expected, that they are originally governed by essentially similar rules of law. The requisites of a valid prescription were in essence the same as those of a valid custom. Both must be reasonable, both must be immemorial, both must be consistent with statute law, and so on. It was only by a process of gradual differentiation, and by the later recognition of other forms of prescription not known to the early law, that the difference between the creation of customary law and the creation of prescriptive rights has been brought clearly into view. In the case of custom, for example, the old rule as to time immemorial still subsists, but in the case of prescription it has been superseded by the statutory rules contained in that most unfortunate specimen of legislative skill, the Prescription Act. A prescriptive right to light, for instance, is now finally acquired by enjoyment for twenty years. Usage during this period is now an absolute title, instead of, as at common law, merely evidence of usage during time of memory.