JUDICIAL LEGISLATION. 175 ceptions, while the notion of order gradually takes its place. In the ideal condition toward which civilized society is tending all men would obey the law without compulsion, and the element of force would thus disappear altogether. This development is especially brought out in a democracy, where the distinction be- tween sovereign and subject fades away, and the force behind the law comes from the very persons whose conduct it regulates. " When," says the writer, 1 " the hitherto neglected subject of the effect of forms of government on legal conceptions comes to be carefully studied ... it will ... be found that democracy en- genders views of law quite irreconcilable with those put forward by Austin," — a prediction which is verified in the writings of Mr. Carter and Professor Hammond. From these views the conclusion is drawn that in rewriting the philosophy of the law, the notion of order should be substituted for that of force as a basis of classification, law being defined as a " rule of conduct actually observed among men." The fact that the rules of the municipal law are always enforced by a political superior would then be regarded merely as one attri- bute of that law as distinguished from other species of the wider genus. This would include international law — the rules of conduct observed among nations — and other classes of rules which, though not commands of a sovereign, satisfy the definition suggested above. 2 The same idea has been suggested by a learned writer 3 who has said that Austin's definition is valua- ble u rather practically than philosophically," and has asked in what respect the rule that a dress suit must be worn to a dinner- party is less a law than the Statute of Usury in New York, which juries are never asked to enforce. It has been impossible here to do more than indicate, briefly and inadequately, the outlines of this theory. It is valuable, how- ever, for the cautions which it suggests against the unguarded application of the doctrines either of Mr. Carter or of Austin. 1 Essays in International Law (2d ed.), 16. 2 This conception of law is well illustrated by the body of customs which we call the " law merchant." Take, for example, the rule which makes the 17th section of the Statute of Frauds a dead letter in the Liverpool Exchange (1 Law Quart. Rev. 24). It is obvious enough that this is not a law in Austin's sense. Yet in the definiteness of its sanction, and in its binding force as a rule of conduct, no command of a sovereign could be more effectual. 8 5 American Law Review, I.
