There are various other forms of non-imperative law, notably those which relate to the existence, application, and interpretation of other rules. The illustrations already given, however, should be sufficient to render evident the fact that the purely imperative theory not merely neglects an essential element in the idea of law, but also falls far short of the full application or denotation of the term. All legal principles are not commands of the state, and those which are such commands, are at the same time and in their essential nature something more, of which the imperative theory takes no account.
Some writers have endeavoured to evade the foregoing objection by regarding rules of procedure and all other non-imperative principles as being in reality commands addressed, not to the ordinary subjects of the state, but to the judges. The rule, they say, that murder is a crime, is a command addressed to all persons not to commit murder; and the rule that the punishment of murder is hanging, is a command to the judges to inflict that punishment.[[64]] With respect to this contention, it is to be observed in the first place, that no delegation of its judicial functions by the supreme authority of the state is essential. There is no reason of necessity, why a despotic monarch or even a supreme legislature should not personally exercise judicial functions. In such a case the rules of procedure could not be enforced upon the judicature, yet it could scarcely be contended that they would for that reason cease to be true rules of law. And in the second place, even when the judicial functions of the state are delegated to subordinate judges, it is in no way necessary that they should be amenable to the law for the due performance of their duties. Are the rules of evidence, for example, entitled to the name of law, only because of the fact, if fact it be, that the judges who administer them may be legally punished for their disregard of them? It is surely sufficiently obvious that the legal character of all such rules is a consequence of the fact that they are actually observed in the administration of justice, not of the fact, if it is a fact, that the judicature is bound by legal sanctions to observe them.
§ 18. Conventional Law.
By conventional law is meant any rule or system of rules agreed upon by persons for the regulation of their conduct towards each other. Agreement is a law for the parties to it. Examples are the rules and regulations of a club or other society, and the laws of whist, cricket, or any other game. What are the laws of whist, except the rules which the players expressly or tacitly agree to observe in their conduct of the game?
In many cases conventional law is also civil law; for the rules which persons by mutual agreement lay down for themselves are often enforced by the state. But whether or not these conventional rules thus receive recognition and enforcement as part of the law of the land, they constitute law in the wide sense of a rule of human action.[[65]]
The most important branch of conventional law is the law of nations, which, as we shall see later, consists essentially of the rules which have been agreed upon by states, as governing their conduct and relations to each other.
§ 19. Customary Law.
By customary law is here meant any rule of action which is actually observed by men—any rule which is the expression of some actual uniformity of voluntary action. Custom is a law for those who observe it—a law or rule which they have set for themselves, and to which they voluntarily conform their actions. It is true that custom is very often obligatory; that is to say, it is very often enforced by some form of imperative law, whether the civil law or the law of positive morality; but, irrespective of any such enforcement, and by reason solely of its de facto observance, it is itself a law in that wide sense in which law means a rule of action.[[66]]
Some writers regard international law as a form of customary law. They define it as consisting of the rules actually observed by states in their conduct towards each other. We shall consider this opinion in a later section of the present chapter. Civil law, as we have defined it, is a form of customary law, inasmuch as it consists of the rules actually observed by the state in the administration of justice. It is the custom of the judicature. The relation between popular custom and the civil law is an important matter which will be considered in a later chapter. It is sufficient here to make the following remarks with regard to it:—
(1) Popular custom has not in itself the nature of civil law; for the essence of civil law lies in its recognition by the state in the administration of justice.