The second problem is of a different order. In social theory law is used in a wider sense than by the practitioner. All social regulatives go to the making of the comprehensive idea to which social science gives the name of law. The jurist finds no diffi culty in according the title to the selfsame thing. When Pindar sings of law that is king of all, he understands; when the national anthem swells to the refrain le Roi, la Loi, la Liberte, the jurist recognizes that law from observation of the courts and the work ing of the constitution. His difficulty arises when he tries to un derstand the relation between law in the practitioner's sense and this larger social meaning. Social science for its part has realized the difficulty; the interrelation of law and custom, or law and morality, has long been pondered and skilfully dealt with (see L. T. Hobhouse's Morals in Evolution). It is peculiarly a socio logical problem, yet social science calls for the jurist's aid.
Apart from extraneous considerations the jurist seeks a sig nificant characteristic to distinguish the two meanings. No merely formal distinction can satisfy. "In tota jurisprudentia," Winkler profoundly observes, "nihil est quod minus legaliter tractari possit quam ipsa principia." The jurist is also precluded from re sorting to an a priori test. He is an observer of a particular group of social phenomena and he must explain them. Should he light upon emerging values so much the better. Primarily however he is an observer. Many consequences flow from this. For one thing he is concerned with the law as it is administered in the courts, not merely the rules found in practice books. Among the merits of Dicey's studies in the law not the least was this. He never for a moment forgot that the law is some thing more than the sum of the practitioner's rules. He had the jury constantly in mind, even in describing the rules themselves. Now what happens when a jury comes to the decision of a particu lar case, an issue of murder, a breach of promise action? Is their verdict an expression of twelve men's "reason"; do they merely apply a general rule to a particular instance? Psychologists look rather to all that animates men acting singly and in a group. Many random influences they say are there ; group loyalties and social sentiments, vocational habits of mind and the shock of ideas, repressions and all the factors of the unconscious life called into being by the staging of the trial. The psychologist can be left to study this. What concerns the jurist is that the jury's verdict, however arrived at, is an expression of the law in the wider social sense. In so far as it is arrived at by reference to a rule or standard, that rule or standard is the law as the lay man understands it. The principle involved in the jury's decision
is often that of the lawyer's practice-book; sometimes it is a qualification of it (as where a jury declares to be manslaughter what counsel must advise is murder) ; or a complete reversal (as when the jury vindicates "the unwritten law"). In Continental Europe, where the jury is less in evidence, the same larger influ ences make themselves felt. The law then is essentially an elastic conception.
(I) The definition holds of all rules, of every kind and form of law the jurist is called upon to consider. The term Influence is preferable to Rule, which Salmond employs, because it avoids the strong intellectualist bias inseparable from Rule. Not every ingredient in a judicial decision is intellectual. "Only the trivial elements of the process are controlled by the abstract laws of logic." It is a more appropriate term for many of the factors contributing to the decision. (See further 31 H.L.R. 1060-62.) There is no legitimate consideration which enters into a judgment which is not covered by the definition.
(2) It makes no impossible demands upon social theory as to the way law is to be there defined. Nor does it prejudice any of the contending theories as to the metaphysical, moral or other basis of law.
(3) It enables the anthropologist's problem to be answered without recourse to artificial distinctions. The ordinary regula tives of life in a savage community may be baffling; Totem and Taboo for example are two of the problems of the hour in anthropology and psychology alike. But the jurist, however, may see the rudiments of justice wherever somethini in the nature of a trial takes place. Trial by ordeal is practically universal among the simpler peoples. Matters for the ordeal then are mat ters of law. Trial by ordeal survived the beginnings of the com mon law; the law of the king's courts was expounded by the aid of the ordeal until the jury took its place. Apparently a similar process occurred in the case of the civil law. Legis actio replaced the ordeal, only this was before the beginning of the historical period. Historically then there is warrant for the definition cover ing the "law" of the simpler peoples.