istration of justice will be made predictable and uniform.

Again, the natural tendency of the court itself is to follow, where the cases are substantially similar, the lines it has laid down in earlier decisions, and thus to impart uniformity to its practice. The reasons which prevailed with it in the former case are likely to be cogent still; and moreover, to adopt the decision as a rule in the subsequent case saves the time and mental effort involved in retracing the process by which the former was arrived at.

In response to these contributing causes-the tendency to repetition by the courts, the demand for uniformity and certainty by the community—the course of justice becomes in the main and characteristically justice according to law, that is, according to predetermined and definitely formulated rules and principles which more and more restrain and bind the once unfettered discretion of the judges. The administration of justice becomes administration according to law when judicial action becomes uniform because governed by general and formulated rules and principles.

No system of administering justice can be entirely reduced to rule. The variety of possible cases calling for adjudication is practically limitless, and all attempts to provide for a complete covering of the field of human action by predetermined detailed rules have proved, and must prove, futile. Nor would a complete reduction of the administration of justice to procedure under definite rules be desirable even if possible. Some questions can far better be

settled by allowing a trained judge to exercise his discretion freely upon the facts of the particular case. But in these cases such uniformity of decision as is desirable may be expected to result from the training of the judiciary in legal reasoning and the application of legal rules, and from the influence of the criticism of the legal profession upon the course of their decisions. Both bench and bar are by education and habit inclined to refer action to definite principles and to seek to base their decision on rea

son.

5. The sanction of law.-Historical investigation seems to establish that obedience to the decrees of the tribunals which administered justice in primitive societies was secured by the forces of public opinion and religion prior to its systematic enforcement by the state. Today, however, a characteristic mark of the law is that its sanction, the coercive force which lies back of it to compel obedience from a recalcitrant, is the physical power of the state. By this physical character of its sanction the law is distinguishable from other instruments of social control. Conformity to social ends is secured now, as it always has been, not only by law but by the forces of religion, morality, and public opinion. Most men are good citizens not because of the coercive force lying back of law, but because of the persuasions of their own conscience, their unwillingness to incur the divine displeasure, or their reluctance to defy the force of public opinion. But powerful as are the sanctions of these forces, they are essentially psychical. They react primarily on the mind of the per

son influenced by them. Defiance of them does not directly affect a man's physical person or property. Moreover, in case of conduct inconsistent with their precepts no definite human authority can be appealed to. The sanction of law, on the other hand, is primarily physical. Disobedience to the rules laid down by its tribunals is today the ground for the official intervention of the state to enforce these rules by seizure of the disobedient party's property or imprisonment of his person, or in extreme cases by the infliction of death itself as a penalty for violation of the rule of law.

And yet, while law is thus directly dependent for enforcement against the disobedient upon the physical force of the state, in the long run its effective sanction is still the moral sentiment of the community. A law, however established, to which the community is hostile or even indifferent soon becomes a law in name only. In the Anglo-American legal system this is particularly true, because of the large element of popular participation in its enforcement as well as in its creation. The jury of the vicinage and the elected executive officers of the law often nullify both the legislatively expressed will of the state and the judicially formulated rules which are the product of legal reasoning and experience.

CHAPTER II.

THE SOURCES OF LAW.

6. The sources of law-In general.-If law is the system of rules and principles used by the courts in administering justice, the inquiry is natural: Whence do the judges obtain these rules by which their discretion is controlled? The law derives its sanction and authority from the state, but not necessarily nor wholly its content. The state enforces laws which it did not itself make. The sources from which the rules of law are ultimately derived are incapable of exhaustive enumeration, but those of the greatest importance and influence are custom, judicial precedent, legislation, judicial reasoning, professional opinion, and juristic writings; and the current political, economic, and ethical ideas which are loosely grouped in legal phraseology now as public policy, and again, when the ethical element is predominant, as natural law. It is, however, important to note that all legal systems recognize a certain order of precedence among these sources. The direct formulation of the will of the state in legislation is everywhere given primacy. If the state has laid down a rule covering the case at bar, the court has no discretion but to apply the legislatively provided rule. To legislation as a source having this imperative character, Anglo-American law adds two others of authority inferior only to legislation.

These are judicial precedent and custom. Only in the absence, then, of a rule derivable from legislation, precedent, or custom, may a court seek guidance for its decision in other sources of law. These latter may, by way of contrast with those having a legally recognized imperative authority, be spoken of as persuasive sources.

7. Custom.-Historically the first of the sources of law is custom. In the earliest times the principles guiding the judges to their decisions were probably, even by the judges themselves, without conscious formulation. But the basis of their decisions was, nevertheless, doubtless the implicit notion that conduct which was customary was just, and that which departed from the recognized and popularly approved practice of the clan or other group was unjust and hence to be disapproved. The body of popular custom known to the judges was thus in this sense the first source of law. But in another sense, also, custom is a source of law, resorted to occasionally even in a well-developed legal system. Where judges have found that the members of society in general or some particular part of it have been following in their relations with each other a particular mode of action, they will adopt this custom as the rule of right action under the circumstances. Thus, the custom of allowing three days of grace after the expiration of the time for payment of a bill of exchange-a custom existing among merchants-was adopted by the English judges as a part of the common law. Even in recent times the mining law of California was constituted in large part