Plainly we must ascribe this modified English doctrine to one of those rare traces of reaction from the canon law doctrine. Mention of divine law is proof enough. We rediscover here, between the lines, the classic theory that irrationality invalidates custom,-profoundly transformed, however. Blackstone's interpretation of this rule (the very validity of which on the Continent was doubtful) ends by paralyzing it. If Blackstone lingered over the examination of so theoretical a hypothesis, it was because he imagined it a favorable occasion to dissipate the confusion, which arises easily in every mind not trained to juridical subtlety, between custom and the judgment which declares it. Stephen, later, felt the necessity of strengthening Blackstone's attempted demonstration by a few observations of his own. Often, he said, questions arise concerning which the rules of the common law have not been fixed by judicial decisions. The judge will first turn to a process of analogy in order to come indirectly to a solution of these problems by means of cases handed down upon closely related facts. But sometimes even analogy will not serve to guide the judge. Then there falls upon him necessarily the duty to divine and reveal custom. His judgment will be "according to the natural reason of the thing."26 This part of the common law of England which, being undeclared by the courts, enjoys as yet a merely theoretical existence and remains unknown to the public, presents, therefore, features singularly resembling what M. Geny calls "la nature des choses positives." Even where the judge is in reality reduced to the promptings of his own reason, the principle must be maintained, says Stephen, that the magistrate does not create custom, but merely reveals it. Consequently his judgment always appears to declare what the custom is and not what it ought to be.27
24 Blackstone, vol. i, Introd., sec. 3, i, pp. 69-70; Stephen, vol. i, p. 54.
25 Blackstone, vol. i, Introd., sec. 3, i, p. 71; this passage is not reproduced by Stephen. In his chapter upon the science of case-law, Sir F. Pollock ("Essays in Jurisprudence and Ethics," chap, ix), does not even mention this theory of irrationality. It has penetrated but very superficially into English thought. He has, indeed, foreseen the possibility of mistakes by the judge and the influence which passion may work upon him, but he has regarded these as mere accidents, capable of leading the observation of the jurist astray in his effort to predict future judicial opinion. But the English doctrine does not admit that these grounds may be pleaded to shake the authority of cases. We might summarize with complete accuracy the observations of Sir F. Pollock by inverting Blackstone's maxim and declaring that the opinion of the judge and custom are synonymous terms.
26 Sir F. Pollock, "Essays in Jurisprudence," pp. 251, 255, prefers to emphasize another force, which under these circumstances influences the judge. He speaks of an "ideal standard of scientific fitness and harmony," similar, he says, to the "elegantia juris" of the Romans and closely akin to what is termed in France "l'esprit de la loi" or "l'esprit du systeme juridique." In the absence of precedent these guide the judge and exert their force upon him by reason of his legal training.
These expositions by Blackstone and Stephen furnish ample justification for our former statement that the system defended by Dahn and Stobbe, and before them by Puchta and Savigny, denying that usage ("Uebung") is a constituent factor in customary law, and reducing it to the role of a normal mode of revelation of preexisting custom, contains a far larger share of truth than the contrary opinion at present dominant among the "Pandektenrecht" school of writers. This system rests upon an accurate comprehension of the ideas current in the localities where custom is still strong; especially has it the merit of being in very close accord with the conception, held by English jurists, of the common law, which is the one type of custom remaining vital and active in England.