This emphatic statement gathers added force when the thoroughness of the author's research, as shown by his notes, is consider ed. Among them is found a reference to the elaborate and learned examination of the subject by Professor Clark, who devotes six teen chapters each to "The Definition and Origin of Law" and "The Form of Law" in his "Practical Jurisprudence: A Comment on Austin." See, as to a definition of law, 10 L. Q. R. 228.
This criticism of the most frequently quot ed definitions leads naturally up to a refer ence to the clear and forcible views of James C. Carter in his address upon The Ideal and The Actual in the Law (Amer. Bar Ass'n, 1890). Reference has already been made to another address of Mr. Carter in the title In ternational Law (q. v.), to which subject much of what is here said is applica ble. Concluding his discussion of the sources of law gemsrally, he thus states the result of his argument against the conception of Aus tin: "Law is not a body of commands impos ed upon society from without, either by an individual sovereign or superior, or by a sov ereign body constituted by representatives of society itself. It exists at all times as one of the elements of society springing directly from habit and custom. is, therefore, the unconscious creation of society or a growth.
For the most part It needs no interpreter or vindicator. The members of society are fa miliar with its customs and follow them, and in following custom they follow the law. It is only for the exceptional Instances that ju dicial tribunals or legislative enactments are needed. In those cases where the customs are doubtful or conflicting, the expert is needed to ascertain or reconcile them, and hence the origin of the judicial establish ment. . . . New customs, new modes of dealing, must be contrived to meet new ex igencies, and society by the unconscious ex ercise of its ordinary forces proceeds to fur nish itself with, them. But this is a grad ual and slow process attended with difficulty and loss. Another agency is needed to sup plement and assist the work of society, and legislation springs into existence to supply the want." Rep. Am. Bar Ass'n (1890) 217.
Referring to the customs of the community as the sole basis of law, James C. Carter says: "The judge permits no witness to be called to enlighten him as to what custom is (I do not speak of particular customs). He is required to take judicial notice of it ; but the word judicial might be omitted; for ev ery one in the ordinary business of life is required to take the same notice at his per il." Law, Its Origin, etc., 79.
It has been very truly said that much of the obscurity involving the origin of law and the mutual relations and proportions of cus tomary, statute, and case law is caused by ambiguous uses of the term source. It is employed (1) to indicate whence we obtain our knowledge of the law ; (2) the mode in which or the person through whom have been formulated rules which have acquired the force of law ; (3) the authority which gives them that force. The last two uses are most frequently confused. Recognition by the state is the sole source of laws in the sense of that which impresses upon them their legal character. Their sources, in the sense of the causes to which they owe their existence as rules, are thus classified: (1) usage which becomes law at the moment at which it receives the imprimatur of the state ; (2) religion, the influence of which cannot be left out of account in studying the development of any secular system of law ; (3) adjudication, whatever theory be accept ed as to its nature as a source of law ; (4) scientific discussion ; (5) equity, as particu larly exemplified in the administrations of law by the Roman prator and the English chancellor ; (6) legislation, whether by the supreme power of the state or by subordinate authorities exercising a delegated function. Holland, Jur. ch. 5.
When used in the concrete, the term law usually has reference to statutes or expres sions of the legislative will. "The laws of a state," observes Mr. Justice Story, "are more usually understood to mean the rules and enactments promulgated by the legisla tive authority thereof, or long-established lo cal customs having the force of laws." Swift v. Tyson, 16 Pet. (U. S.) 18, 10 L. Ed. 865. Hence, he argues, "in the ordinary use of language it will hardly be contended that the decisions of courts constitute laws." In the Civil Code of Louisiana they are defined tp be "a solemn expression of legislative will. It orders, permits and forbids. It announces rewards and punishments." • The constitution of a state is a law of the state, within the meaning of the United States constitution ; Bier v. McGehee, 148 U. S. 137, 13 Sup. Ct. 580, 37 L. Ed. 397; but a municipal ordinance is not ; Hamilton Gas Light & Coke Co. v. Hamilton, 146 U. S. 258, 13 Sup. Ct. 90, 36 L. Ed. 963.