It is well enough to call such lawyers' law 3 "customary law," as is done in the books; only, one should not forget that this expression covers several very different things. The lawyers' law of commerce is almost entirely the custom of merchants. The lawyers' law of damages and procedure arises from the gradual mitigation of arbitrary self-help, especially after the custom of calling on the judge to settle quarrels has become obligatory. The lawyers' law of primitive associations, both local ones like the commune, and social ones like clan and family, is based on primitive social inclinations of mankind; with these, all such associations appear, and when they decay the associations also fall into irremediable decline. From such tendencies also the law of succession takes its origin almost entirely. In the lawyers' law growing out of the distribution of property can be found the rigid expression of social relations of power; for upon these depends the regulation of such matters as the services to be rendered by the
3 [The word "Juristenrecht," used in the original text, comprises first of all those Roman law rules based on the "auctoritas prudentium"; next also any law developed by a special class of lawyers, like the common law as found in the decisions of our courts. - TRANSL.] villein to the lord of the manor, or the question whether after the decease of the feoffee the land shall return to the feoffor or go to the heirs of the feoffee's body.
It is clear that lawyers' law could not, indeed, create social institutions, but it could delimit them firmly and give them a theoretical definition. It could do this especially where, as among the Romans, it had a direct effect upon actual life by means of the practice of following the opinions of consulting lawyers. Nobody is likely to imagine that the lawyers could have established, for example, a legal institution like usufruct (or life estate in land); but it was they who made the form of usufruct in Rome serviceable for that purpose, and it was also their business to find a rule for the division of profits between the owner and the beneficiary. In all such cases the rules of decision are derived from the nature of the social institutions and processes with which the lawyers had to deal, and in the same way the practice of the lawyers adapts itself to the tendencies already noticeable in business and, so to speak, formulates the wishes of business men.