makes law consciously and in accordance with a plan. The former, the law of custom, appears partly in facts, proverbs, or rules handed down by word of mouth or in writing; partly in the practice of judges, in judicial custom, i.e., in judgments which are passed invariably, or only once, in a given typical case. The latter, legislation—i.e., the social force which is capable of carrying out its will,—attempts to think of all possible cases beforehand, and after consideration of their appropriateness for definite ends, to establish rules according to which judgments and sentences must be passed.
35. In its great variety and numerous contradictions customary law frequently leaves the “spheres of right” of persons confused, crossing one another, and having common elements which are difficult to deal with; legislative law, on the other hand, endeavours to draw sharp divisions and limits between the particular spheres, to leave nothing in common which is not derived, or at any rate derivable, from individual property or right. Legislative law, when moving freely on its own lines, is as far as possible rational. In so far as customary law is contained in propositions or judgments its language follows general usage, and shares therefore in the indefiniteness and uncertainty of usage.
36. Customary law always involves a certain usage of language, in which it makes itself explicit. It is the affair of the judicial judgment to know whether a thing is so and so, i.e., whether a certain name belongs to it, e.g., the name “wine” to a drink, the name “poison” to an addition to it. It is ascertained whether the thing has the qualities which customary language intends to denote by the name, which it takes to be its characteristics.
37. Legislation must concern itself directly with the determination of the meanings of words. In the penal code not everything which is called deception or theft by the people and in ordinary use, is recognised as a crime of this type and threatened with penalties; what happens is that definitions of these concepts are laid down, and prescribed as standards of meaning. Modern socio-political legislation and the regulations depending upon it, cannot avoid stamping as concepts expressions of daily life such as workshop, labourer, manual worker; i.e., it gives them fixed and easily recognised limits, and indeed different laws, different regulations, determine these limits in different ways, and it is then said (e.g.) “manual worker in the sense of this law means . . ., a labourer in the sense of this regulation,” etc.
