EARLY CUSTOM AND LAw. The beginnings of law are found in social habit or custom. Custom is simply observance of precedents. Precedents are made by acts and forbearances. Whenever a power is exercised or a state of things is main tained by the community itself, or by individuals with the acquiescence of the community, a prece dent is established. ln early custom, religion. morals, and law are blended or imperfectly dif ferentiated. Some of the rule: of early custom. however, deal with matters which are regarded in modern times as legal. and of these quasi-legal rules sonic are enforced by physical coercion, the transgressor hieing lynched or sacrificed to the gods or expelled from the community (outlawry). tither violations of custom, which are not felt to Ire injurious to the whole eommunity, a re punished by the injured kinship-group or by the injured individual with the aid of his kinsmen (self-help, vengeance. fend). So long as such acts of re dress or vengeance, although regarded as right ful, may lead to further retaliation, the sanction behind the rules of custom is still purely moral: lint when the community begins to protect the persons who, in its opinion. have obtained due redress or taken rightful vengeance, these persons become in reality agents of the community, and the sanction behind the rules which they enforce may fairly be called legal. Self-help, thus or dered, mods the needs of early society in all cases in which the right to be enforced is clear. and its violation apparent, but it does not furnish any mode of settling controversies. This open place is filled by callus, by ordeals, by arbitrations, and at last by authoritative judgments. (For the be ginnings of jurisdiction, see Corwrs.) When courts are once established, custom gains not only an authoritative interpretation, but a de velopment which, however slew, is far more rapid was previously posqilde. Within the field
fuer which the court: have jurisdiction. the growth of customary law is heneeforth aecom 'dished by decisions; its rules are found in the tradition or in the recollection or in the written record of judicial precedents. Popular custom is thus supplanted by judicial custom. In legal theory, however. precedents or decisions are not law. but only evidences of the law; and even when they are written, the law which is found in them is said to be 'unwritten.' This is still the theory of the courts as regards English common although it is well recognized that the common law is judge-made law.
Early legislation among many peoples is close ly associated with jurisdiction; the law-finders are also the law-givers; and the down' or 'set' (b.r, Sat:ong, (;esetz, statute) is either a were declaration of established custom or a judgment in advance on a question not yet set tled by the decision of any actual ease. There is, however, another root of early legislation, viz. the agreement of the community that it will in future observe a proposed rule. In both cases, however, the forms of law-giving and those of law-tinding are frequently almost- identical.
At what point of development early custom shall be regarded as law is substantially a dis pute over The decision depends upon the definition of law. The Austinian definition of a law as a command emanating from a definite sov ereign would include few rules of early eustom; but those who find the essential element of law in the ::auction will recognize in the most primitive custom a eore of law.