Page:Harvard Law Review Volume 5.djvu/189

JUDICIAL LEGISLATION. 173 present time we must look to the so-called " Analytical Jurists," of whom Bentham and Austin are the most distinguished. A law, according to Austin, is a general command issued by the sovereign power in any state to political inferiors, and enforced by a sanc- tion. No rule, whatever its nature, is properly called a law if it lacks any of these essential features. The type of law in this sense is written statute law, the express command of the sovereign. A body of customary rules, such as the common law, is brought within the definition by the maxim that what the sovereign per- mits he commands. The judge who administers the common law is regarded as the sovereign's agent, with a delegated power of oblique legislation. He has authority to legislate " as properly judging," and thus to convert into law the custom, which until so recognized is, in the disrespectful language of a critic of Austin, relegated " to the limbo of positive morality." * This analysis of law, the corner-stone of Austin's system of jurisprudence, has recently met with a vigorous attack from learned writers. Mr. James C. Carter, in his oration on the " Ideal and the Actual in the Law," 2 has flatly denied that law is in any true sense a command, and maintained that it is really custom. Law, as he defines it, " consists of rules springing from the social standard of justice; " it is a " department of sociology," " one of the great facts of society itself. " The necessary result of this view is that there is properly no such thing as judicial legislation. 3 By the very definition of law as something which is created by and exists in society, it cannot be made by the judge ; he is merely the expert appointed to " search for " the law, and to affix to it, when discovered, his official stamp. Even the legislature does not make law in a strict sense. Its function, which is properly secondary and auxiliary to that of the judge, is to assist society in getting rid of its old customs and forming new ones. Similar ideas have been expressed 4 by Professor Hammond, of St. Louis, who rejects Austin's conception of sovereignty, and defines law as a " principle of order existing in society." The view that the judges have a 1 Professor Hammond, notes to Blackstone, 1. 1 19. Mr. Holland, a follower of Aus- tin, corrects in his Elements of Jurisprudence (3d ed.), 51, what appears to be a slip in Austin's reasoning as to the point of time at which the custom must, according to his theory, become law. • 2 Delivered before the American Bar Association, August 21, 1890. 8 The Ideal and the Actual in the Law, 7, 17. 4 Notes to Blackstone, Vol. I. s. 2.