THE SOURCES OF LAW.
§ 44. =Formal and Material Sources.=
The expression source of law (_fons juris_) has several meanings which
it is necessary to distinguish clearly. We must distinguish in the first
place between the formal and the material sources of the law. A formal
source is that from which a rule of law derives its force and validity.
It is that from which the authority of the law proceeds. The material
sources, on the other hand, are those from which is derived the matter,
not the validity of the law. The material source supplies the substance
of the rule to which the formal source gives the force and nature of
law.
The formal source of the whole body of the civil law is one and the
same, namely, the will and power of the state as manifested in courts of
justice. Whatever rules have the sanction and authority of the body
politic in the administration of justice have thereby the force of law;
and in such force no other rules whatever have any share. The matter of
the law may be drawn from all kinds of material sources, but for its
legal validity it must look to the tribunals of the state and to them
alone. Customary law, for example, has its material source in the usages
of those who are subject to it; but it has its formal source in the will
of the state, no less than statutory law itself.
§ 45. =Legal and Historical Sources.=
Though the formal source of the law is one, its material sources are
many, and they are divisible into two classes which may be distinguished
as legal and historical. The former are those sources which are
recognised as such by the law itself. The latter are those sources which
are such in fact, but are nevertheless destitute of legal recognition.
This is an important distinction which calls for careful consideration.
In respect of its material origin a rule of law is often of long
descent. The immediate source of it may be the decision of an English
court of justice. But that court may have drawn the matter of its
decision from the writings of some lawyer, let us say the celebrated
Frenchman, Pothier; and Pothier in his turn may have taken it from the
compilations of the Emperor Justinian, who may have obtained it from the
praetorian edict. In such a case all these things—the decision, the
works of Pothier, the _corpus juris civilis_, and the _edictum
perpetuum_—are the successive material sources of the rule of English
law. But there is a difference between them, for the precedent is the
legal source of the rule, and the others are merely its historical
sources. The precedent is its source not merely in fact, but in law
also; the others are its sources in fact, but obtain no legal
recognition as such. Our law knows well the nature and effect of
precedents, but it knows nothing of Pothier, or of Tribonian, or of the
Urban Praetor. The proposition that every principle embodied in a
judicial decision has for the future the force of law is not merely a
statement of historical fact as to the growth of English law; it is
itself a rule of law. But the proposition that much of the law of Rome
has become incorporated into the law of England is simply a statement of
fact, which has in law no relevance or recognition.
The legal sources of law are authoritative, the historical are
unauthoritative. The former are allowed by the law courts as of right;
the latter have no such claim; they influence more or less extensively
the course of legal development, but they speak with no authority. No
rule of law demands their recognition. Thus both the statute-book and
the works of Jeremy Bentham are material sources of English law. The
historians of that system have to take account of both of them. Much
that is now established law has its source in the ponderous volumes of
the great law-reformer. Yet there is an essential difference between the
two cases. What the statute-book says becomes law forthwith and _ipso
jure_; but what Bentham says may or may not become law, and if it does,
it is by no claim of right but solely through the unconstrained good
pleasure of the legislature or the courts. So the decisions of English
courts are a legal and authoritative source of English law, but those of
American courts are in England merely an historical and unauthoritative
source. They are treated with respect by English judges, and are in fact
the ground and origin of an appreciable portion of English law, but
their operation is persuasive merely, not authoritative, and no rule of
English law extends recognition to them.
The legal sources are the only gates through which new principles can
find entrance into the law. Historical sources operate only mediately
and indirectly. They are merely the various precedent links in that
chain of which the ultimate link must be some legal source to which the
rule of law is directly attached.
We are here concerned solely with the legal sources of the law. Its
formal source is involved in the definition of the law itself, and has
been already sufficiently dealt with. Its historical sources pertain to
legal history, not to legal theory. Hereafter, when we speak of the
sources of law, we shall mean by that term the legal sources
exclusively.
It may help us to attain a clearer understanding of a somewhat difficult
matter if we attempt to reach a definition of these sources from another
standpoint. In every progressive community the law undergoes a
continuous process of growth and change. This process of legal evolution
does not proceed by haphazard. It is not left to the discretion of the
judges to apply one law to-day and another to-morrow, for the growth of
the law is itself a matter governed by the law. Every legal system
contains certain rules determining the establishment of new law and the
disappearance of old. That is to say, it contains certain rules to this
effect: that all new principles which conform to such and such
requirements are to be recognised as new principles of law, and applied
accordingly in substitution for, or as supplementary to the old. Thus it
is itself a principle of English law that any principle involved in a
judicial decision has the force of law. Similar legal recognition is
extended to the law-producing effect of statutes and immemorial customs.
Rules such as these establish the sources of the law. A source of law,
then, is any fact which in accordance with the law determines the
judicial recognition and acceptance of any new rule as having the force
of law. It is the legal cause of the admittance by the judicature of any
new principle as one which will be observed for the future in the
administration of justice.
§ 46. =A List of Legal Sources.=
We cannot deduce from the nature of law the nature of its sources, for
these are merely contingent, not necessary; they differ in different
systems and even in the same system at different periods of its growth.
It is possible, however, to distinguish five sources which in England or
elsewhere have possessed predominant influence. These are Legislation,
Custom, Precedent, Professional Opinion, and Agreement. Legislation is
the declaration or enunciation of a principle by some adequate authority
in the body politic; custom is the realisation or embodiment of a
principle in a uniformity of practice; precedent is the judicial
application of a principle to its appropriate facts; professional or
expert opinion is the approval or recognition of a principle by the
general voice of those whose business it is to know the law; agreement
is the adoption of a principle by the consent of those whose interests
are affected by it. Such declaration, realisation, application,
approval, and adoption determine in each case the judicial recognition
as law of the principle so dealt with, and therefore constitute the
sources of the law.
Law which has its source in legislation is called statute, enacted, or
written law. That which is based on custom is customary law. Precedent
produces case-law, and agreement conventional law. That which is created
by professional or expert opinion has no recognised title, but in
analogy to German usage we may call it juristic law (_Juristenrecht_).
There are two chief reasons for allowing law-creative operation to these
various sources. In the first place there is a presumption that
principles proceeding from them are principles of truth and justice,
worthy of adoption by the judicature. A statute is an attempt made by
the legislature to formulate the rules of right for the use and
direction of the judicature. This attempt is not always successful, for
law and justice are sometimes far apart; yet no better device has been
discovered, and the courts accept the rules so formulated as
authoritative and final. A similar presumption of truth and justice is
one of the grounds of the operation of precedent also. When one of the
superior courts of law has, after solemn argument and full
consideration, laid down a certain principle as one fit to be applied to
the case in hand, there is a reasonable presumption that this decision
is correct, and that the principle is a just one fit to be applied to
all similar cases in the future, that is to say, fit to receive
permanent recognition as a new rule of law. _Res judicata pro veritate
accipitur._[108] So also in the case of custom. Customary law has as one
of its foundations the presumption that whatever is customary is just
and expedient. The popular conscience embodies itself in popular usage,
and the law courts accept as authoritative the principles so sanctioned
and approved. Professional opinion—the opinion of lawyers—is merely an
historical, not a legal source of English law. In other systems,
however, and chiefly in that of Rome, it has shown itself capable of
serving as one of the most important of legal sources. Almost all that
is of special value in Roman law has this as its origin; the Digest of
Justinian consists wholly of extracts from the writings of Roman
lawyers. It is clear that one of the grounds for the allowance of such
opinion as a source of law is to be found in a reasonable confidence in
the skill and knowledge of the expert. _Cuique in sua arte credendum
est._ Finally we may see the same influence at work in the case of the
fifth and last source, namely agreement. Every man may be trusted to see
to his own interests and to claim his own rights. Whatever rule,
therefore, is freely agreed upon by two or more persons as defining
their mutual rights and obligations may be confidently accepted by the
law courts as a true and just rule between those who have so consented
to it. As to them, it is fit and proper to be applied as law.
There is, however, a second ground of not less importance on which the
efficacy of these legal sources rests. They are not merely presumptive
evidence of the justice and truth of the principles proceeding from
them, but they are the basis of a rational expectation on the part of
all persons concerned that these principles will be consistently acted
on in the future. Justice demands that such expectations shall be
fulfilled. Even when a rule does not accurately conform to the ideal
standard, it may be a right and reasonable thing to adhere to it, when
it has once been formulated. For men act on the faith of it; and to
overturn an imperfect rule with all the expectations built upon it will
often do more harm than can be counterbalanced by any benefits to be
derived from the substitution of a better principle. Thus legislation is
an announcement to all the world that in future certain principles will
be applied in the administration of justice. Forthwith the expectations,
dealings, and contracts of all men concerned are based upon the
principles so declared, and the disregard of them by the judicature
would be a breach of faith and an ill service to the cause of justice.
Similarly the decision of a court may not be perfectly wise or just; but
whether it is or not, all men expect that like decisions will for the
future be given in like cases. It is often more important that the
course of judicial decision should be uniform and within the limits of
human foresight, than that it should be ideally just. So with all the
other sources of law. That which has always been customary in the past
is entitled for this reason alone to a certain measure of allowance and
recognition in the future. That which is approved by the general opinion
of the legal profession serves so largely as the basis of the actions
and expectations of men, that the courts of law will not lightly depart
from it. That which all parties interested have agreed to, and which
they have declared as valid law to bind them, may not, for all that, be
absolutely just and reasonable; but they must be held bound by it none
the less, otherwise there will be no certainty of dealing among mankind.
§ 47. =The Sources of Law as Constitutive and Abrogative.=
The process of legal evolution is threefold. It comprises in the first
place the increase or growth of law—that is to say, the substitution of
legal principles for the discretion of courts, and the transformation of
fact into law. It involves in the second place the opposite process of
the decrease of law—the reconquest by the _arbitrium judicis_ of domains
formerly occupied by legal principle—the transformation of law into
fact. Finally it includes the alteration of law—that is to say, the
destruction of one legal principle and the substitution of another in
its stead.
To carry out this threefold process, it is clear that we require
instruments of legal development which are capable not merely of
creating new law, but of destroying old. It is not sufficient to obtain
new law which stands side by side with the old, as a supplement to it;
it is necessary to obtain new law which excludes the old, as a
substitute for it. We must possess instruments of abrogative, and not
merely instruments of constitutive power. So far we have considered the
sources of law only in respect of this latter operation. We have yet to
consider to what extent they possess the power of destroying law, as
well as of creating it. The conservative virtue of the law has at all
times been very great. We find, accordingly, that the constitutive
operation of the sources is much more general than the abrogative. It by
no means follows that, because a certain fact is capable of giving rise
to a new rule, it is equally capable of getting rid of an old one.
Legislation, indeed, is pre-eminent in this respect above all other
legal sources. Alone among the instruments of legal development, it
works with equal facility in both ways; and it is this peculiarity which
makes it so efficient a method of legal reform.
In the strict theory of the law, precedent is wholly constitutive, being
quite destitute of abrogative power. When the law is already settled,
the judges have no authority save to obey and administer it. Their power
of making new law by way of judicial decision is limited to those vacant
spaces where there is as yet no other law which they can apply.
Precedents make law, but cannot alter it.
Mercantile custom resembles precedent. So long as the ground is
vacant—so long as there is no rule of the common law _in pari
materia_—the proved custom of merchants will be allowed by the courts as
a source of new law. But so soon as from this or any other source
principles have been once established in the matter, there is no longer
any room for new rules thus arising. Immemorial custom, on the other
hand, has full power to derogate from the common law, though the statute
law is beyond its operation.
Agreement possesses considerable, though not complete, abrogative power.
A great part of the law is subject to supersession and modification by
the consent of all persons interested. _Modus et conventio vincunt
legem._ It is law only until and unless there is some agreement to the
contrary. The residue of the law, however, is peremptory, and not to be
thus excluded by consent. Agreements which attempt to derogate from it,
and to establish special law in place of it, are illegal and void.
§ 48. =Sources of Law and Sources of Rights.=
The sources of law may also serve as sources of rights. By a source or
title of rights is meant some fact which is legally constitutive of
rights. It is the _de facto_ antecedent of a legal right just as a
source of law is the _de facto_ antecedent of a legal principle. An
examination of any legal system will show that to a large extent the
same classes of facts which operate as sources of law operate as
sources of rights also. The two kinds of sources form intersecting
circles. Some facts create law but not rights; some create rights but
not law; some create both at once. An act of Parliament for example is
a typical source of law; but there are numerous private acts which are
clearly titles of legal rights. Such is an act of divorce, or an act
granting a pension for public services, or an act incorporating a
company. So in the case of precedent, the judicial decision is a
source of rights as between the parties to it, though a source of law
as regards the world at large. Regarded as creative of rights, it is
called a judgment; regarded as creative of law, it is called a
precedent. So also immemorial custom does upon occasion give rise to
rights as well as to law. In respect of the former operation, it is
specifically distinguished as prescription, while as a source of law
it retains the generic title of custom. That an agreement operates as
a source of rights is a fact too familiar to require illustration. The
proposition which really needs emphatic statement in this case is that
agreement is not exclusively a title of rights, but is also operative
as a source of law.
§ 49. =Ultimate Legal Principles.=
All rules of law have historical sources. As a matter of fact and
history they have their origin somewhere, though we may not know what it
is. But not all of them have legal sources. Were this so, it would be
necessary for the law to proceed _ad infinitum_ in tracing the descent
of its principles. It is requisite that the law should postulate one or
more first causes, whose operation is ultimate, and whose authority is
underived. In other words there must be found in every legal system
certain ultimate principles, from which all others are derived, but
which are themselves self-existent. Before there can be any talk of
legal sources, there must be already in existence some law which
establishes them and gives them their authority. The rule that a man may
not ride a bicycle on the footpath may have its source in the by-laws of
a municipal council; the rule that these by-laws have the force of law
has its source in an act of Parliament. But whence comes the rule that
acts of Parliament have the force of law? This is legally ultimate; its
source is historical only, not legal. The historians of the constitution
know its origin, but lawyers must accept it as self-existent. It is the
law because it is the law, and for no other reason that it is possible
for the law itself to take notice of. No statute can confer this power
upon Parliament, for this would be to assume and act on the very power
that is to be conferred. So also the rule that judicial decisions have
the force of law is legally ultimate and underived. No statute lays it
down. It is certainly recognised by many precedents, but no precedent
can confer authority upon precedent. It must first possess authority
before it can confer it.
If we inquire as to the number of these ultimate principles, the answer
is that a legal system is free to recognise any number of them, but is
not bound to recognise more than one. From any one ultimate legal source
it is possible for the whole law to be derived, but one such there must
be. A statute for example may at any time give statutory authority to
the operation of precedent,[109] and so reduce it from an ultimate to a
derivative source of law.[110]
SUMMARY.
Sources of law {Formal—source of the authority of the law.
{Material—source of the contents of the law.
Material sources {Legal—immediate and legally recognised.
{Historical—remote and not legally recognised.
{1. Legislation—enacted law.
{2. Custom—customary law.
Legal sources {3. Precedent—case-law.
{4. Professional opinion—juristic law.
{5. Agreement—conventional law.
Grounds of the recognition of these sources.
Operation of sources {Constitutive—adding new law to old.
{Abrogative—substituting new law for old.
Extent of abrogative power possessed by the sources.
Relation between sources of law and sources of rights.
Legal principles {Ultimate—without legal sources.
{Derivative—drawn from legal sources.