CUSTOM AND LEGISLATION IN TIIE FIELD OF I.Aw. Not only the relations of individ uals and of private associations to each other, hut also the organization of the State and of govern ment, and the relations of the different branches of government to each other. are governed by law. This part of the law—constitutional. law—is usually, until a comparatively late stage of po litical development, mainly customary. Acts and forbearances; the exercise of powers to which the community submits or limitations imposed upon power to which the government submits: contests between different branches of the gov ernment which end in a one-sided triumph or in reciprocal concessions—these are the precedents which make constitutional custom. In these mat ters the courts of justice have in most countries no jurisdiction; even in the United States they do not interfere in questions which they regard as political. At the present time nearly all civi lized nations have written constitutions; but the development of these written constitutions is still carried on, as in former times, by the establish ment of new customary law.
The methods in which governmental power may be exercised, the rights and duties of govern mental officers, the relations between government and private persuns—these matters are regulated by administrative law. This branch of the law. originally developed by the constant practice or custom of the government, becomes at a compara tively early period a subject of legislation; and in modern times controversies between the admin istration and private persons are regularly with in the jurisdiction of the ordinary courts or of special administrative courts. Administrative legislation is therefore supplemented by judicial custom, i.e. by the customary interpretation of the courts. The customary practice of adminis trative agencies, however, has not ceased to be a source of administrative law.
International law, even in its most modern developments, is almost wholly customary. The precedents on which it rests are the acts and for bearances of independent governments in their relations with one another. It resembles na tional custom in a very early stage of develop ment; for behind many of its rules there is only a moral sanction, viz. the moral sense of the civilized world. It is true that international law is now generally recognized as a part of the law of each State, and that its rules are enforced by each State against individuals; but against an offending State the ultimate remedy is still self-help and international feud. i.e. war; and it is not yet usual for neutral States to give more than moral support to the State that is waging a rightful war. The jurists who refuse to recog nize early national custom as law are therefore obliged to deny that international custom is law in the strict sense of the word. Those, however, who find the essential characteristic of law in its sanction. point out that rules of international law may be. and sometimes are, enforced by the con certed action of the powers (joint intervention) ; and that any State which should persistently vio late the rules of international law would as suredly he excluded from its benefits, i.e. it would be outlawed. There is also, in international re lations, the beginning of legislative action in the form of general compacts (declarations of con gresses) ; and there is the beginning of judicial decision in the growing practice of arbitration. and in the recent establishment of a permanent tribunal at The Hague to which international dis putes may he referred.