§ 3
Origin, Custom.
The late Mr Austin, in his Province of Jurisprudence, lays considerable stress upon the correct apprehension of the term customary law in its strict sense: in the sense, namely, of a rule which has at some time been set, either directly or indirectly, by a political superior, whatever be the anterior circumstances by which the rule has been suggested or its enactment rendered possible[1]. The soundness of this view is beyond question as far as regards the law proper of an established and regularly constituted state. It might, however, give rise to an error (from which the writer in question is doubtless free) as to the historical origin of the earliest laws in infant communities. In many cases these laws, improperly so called according to Mr Austin, appear to have existed as rules of conduct dependent upon custom, long prior to any official enactment[2]. Individual legislators have indeed been assigned or invented for the oldest rules which have descended to us, whether they have actually remained in the form of custom or been re-cast in the mould of law. Thus Dionysius makes Romulus institute the patria potestas, the relation of patron and client, &c.[3]: and the fragments which Verrius Flaccus has preserved are attributed by him, or his compiler, to Romulus and Tatius, to Numa, to Servius. But we have a surer guarantee than these venerable names, for the antiquity of a custom, in the evident deduction from it of historical constitutional usages, and for that of a fragment, in its own language, viewed by the light of comparative philology. For full information on the latter head, reference must
- ↑ Austin's Jurisprudence, Lect. 1. pp. 103-5, ed. 1869.
- ↑ See Maine's Ancient Law, ch. 1. pp. 7, 8.
- ↑ Antiqq. 2. 10. 26. 27.
