A prime example is custom where the standard theory is that customary behavior becomes law when people so act because (or when) they believe they so act because it is law. An examination of history shows this approach is inexact. People in a small community behave, let us say, in different ways. An issue arises and the judge must decide. He cannot refuse on the ground that there is no custom. So often he invents or, more obviously, borrows it. The judicial decision then comes to be regarded as the best evidence of the custom.74 But the technique cannot be locally admitted. Again, a disaster for an understanding of law has been committed by legal philosophers who insist that the only law is that of the state. But legislation of lesser bodies, such as trade unions or angling clubs, are equally binding as law on their members.75 I insist on this here because in small communities within a state village elders may issue decrees that for me would be legislation. Again, when acting as judges, they may give no arguments for their decision. Here there is a commingling of legislation and juristic decision. The elders’ view may be on a particular case, but it is treated like legislation. But I write this appendix because of the belief of many, such as orthodox Jews or Muslims, that law comes from God. I would reply for the present context that, on that view, for the Ten Commandments God is the legislator and Moses is his mouthpiece. The core of law is still authority. And Moses is then to be seen as not the legislator but the transmitter of legislation from the supreme authority.76 74 For this see, e.g. Watson, Evolution, pp. 91ff. 75 See, e.g. Alan Watson, The Nature of Law(Edinburgh, 1977), pp. 49ff. 76 For this appendix I am much indebted to the friendly criticisms of Frank Stewart, who would have wished me to go much further.
RkJQdWJsaXNoZXIy MjYyNDk=