JUDICIAL LEGISLATION. 1 77 but is only " temporarily and provisionally accurate." 2 Sir Henry Maine has shown, with the genius which has done so much to illuminate the history of the law, that there are times and condi- tions of society to which the Austinian analysis is utterly inappli- cable. In such communities custom is blindly followed without a thought of discussing the reasons for so doing or the conse- quences of disobedience. The obligation of the custom proceeds from itself, and is wholly independent of any human superior. The ruler, though often so absolute as to fill to the letter the requirements of Austin's sovereign, has no thought of changing the customs ; indeed, he may never once make a law in Austin's sense. 2 Such are the village communities of the East to-day, and such, so far as observation has shown, has been the condition of primitive societies generally at one stage of their growth. In this growth the conception of the judge, as expounding the customs, preceded that of the legislator, — a circumstance which shows plainly enough the historical inaccuracy of the theory by which the judge is regarded as exercising a delegated power of legislation. It was long before the two notions of judging and legislating were clearly separated. When the ruler was appealed to in early times as a law-giver it was not to make laws, but to declare them; not to change the existing customs, but to guar- antee their enforcement. The notion of legislation in our sense is essentially a modern growth, among progressive Western societies. This inadequacy of the Austinian theory as applied to custom- ary law has a special significance for us ; for we live under a' body of customary law which has come down in a stream compara- tively unbroken from remote times. Modern study is revealing every day more plainly the permanence of our legal conceptions, and the great importance, so often underrated, of the Germanic basis of our law. It will not do, then, to forget that there was a period in its growth when it would have been a mere figure of speech to deal with it as the command of a sovereign. The condi- tions of the present time are of course very different. But even if the provisional accuracy of Austin's theory of law be conceded, the abstraction of which it is the result discards one element which must never be forgotten ; i.e., " the entire history of each 1 Lawrence, 6. 2 Such a ruler is described by Sir Henry Maine in his Early History of Institutions (3d ed.), 3 8 °- 23
