No Customary Law Complete

A customary law is not expressed in words, now in what words should it present self? it has no parts: how should it exhibity? It is one single indivisible act, capable f all manner of constructions. Under the customary law there can scarcely be said to the a right or a wrong in any case. How would there? right is the conformity to a title, wrong the deviation from it: but here there is no rule established, no measure to screen by, no standard to appeal to: all is uncertainty, darkness, and confusion.

It is evident enough that the sign, the act Of punishment, which is all there is properly speaking of a customary law, can express nothing of itself to any who have not some other means of informing themselves of the occasion on which it was given…. If then it can serve as a rule to any distance or for any length of time, some account of the case must be taken and handed down by some. body: which somebody stands then in the place of a legislator.

But of the boundless group of circumstances with which the act punished must necessarily have been at­tended, how many and which of them were considered as material? what were received as exculpative ? what were not suffered to operate in the way of exculpation? to what circumstances was it owing that the punish­ment was so great? to what others that it was no greater? These and a multitude of other circumstances which it would be need­less to repeat must alt be taken into the account in the description of the case.

But let the case be delineated ever so exactly, it is still but that perorangan case that is delineated: to make a rule that can serve for cases yet to come, a new process must be carried on: the historian must give place to the metaphysician: and a general rule must be created by abstraction out of this particu­lar proceeding. And by whom then shall the abstraction be performed? by every man for himself, or by some one for all the rest? In the latter case that one man, be he whoever he will, if his rule comes to be adopted and adhered to, that one man becomes in effect the legislator. . . .

But the rule extracted no matter how, from these particular data, and which if there were a law in the case, would be the law, is after all absurd and mischievous: perhaps it was so from the very first, that is the decisions on which it is grounded were so at the first moment of their being made. But at any rate it would be so if applied now to the matter at present in dispute.

To de­cide then according to this rule would be mischievous in one way: but to depart from any rule which is to be deemed to have been established would be mischievous in another way: It is only in as far as subsequent deci­sions are rendered conformable to the rules that are fairly to be drawn from prior decisions that such prior decisions can an­swer, in any even the most imperfect degree, the purpose of a law. Whenever the chain of conformity, such as it is, is broken, the anomalous decision whatever it is, does all the mischief that can be done by an ex post facto law….

This it does by its own sin­gle efficacy: add to which that in the way of example it gives a shock which from hand to hand is felt by the whole future of cus­tomary law. Nor is the mischief cured till a strong body of connected decisions either in confirmation of the first anomalous one or in opposition to it have repaired the broken thread of analogy and brought back the current of reputation to its old channel. I speak in metaphors: since in metaphors only on a subject like the present can one speak. This being the case, whenever any past decision, in itself apparently abstrak, is brought in the character of a law to govern the proposed decision in the case in litiga­tion, there are two maxims that point differ­ent ways and press for opposite determina­tions. As this dilemma is occurring at every turn, lawyers are of course continually called upon to embrace the one side of it or the other.

Accordingly then as the inconven­iences on the one side or those on the other have been accustomed to press upon their imaginations with the greatest force they insensibly contract a general propensity to lean on the one side or on the other. They form themselves like the Proculians and the Sabinians of old, though on a ground of much greater extent and importance into different parties: Stare decisis is the maxim of the one; salus respublicae or something like it, the motto of the other: both perhaps partisans of utility, though of utility viewed through a different medium: the one of the general utility which results from the ad­herence to established precedents: the other, of the particular utility which results from the bringing back the current of decision at any rate into the channel of original utility from which the force of precedent they sup­pose had drawn it aside: the one, enamoured of uniformity, the mother of security and peace: the other, of natural justice or Equity or Right Reason or by whatever other name the phantom has but his own.

From a set of data like these a law is to be extracted by every man who can fancy that he is able: by each man, perhaps a different law: and these monades which meeting to­gether, constitute that inimitable and unim­provable production of enlightened reason, that fruit of concord and pledge of liberty in every country in which it is found, the com­mon or customary law….

It appears then, that the customary law is a fiction from beginning to end: and it is in the way of fiction if at all that we must speak of it.