But does that conception, which is almost universally accepted in populations exclusively or principally subject to customary law, and especially in England, conform to the reality? Does it faithfully describe the true genesis, the real operation of custom? Certainly it does not. Sir Henry Maine demonstrated this with remarkable clearness in the eloquent pages of his "Ancient Law." He was not led, it is true, to deal with the common law except incidentally, in the course of his examination of legal fictions and of the role which they have played in the juridical evolution of many societies. He points to two examples, the one borrowed from Roman law, the other from English law, which, he says, are well calculated to illustrate "the efficiency with which they perform their twofold office of transforming a system of laws and of concealing the transformation."28 It is the second of these examples, that of English law, in which we are interested. The traditional conception of the nature and origin of the English common law as presented in the commentaries of Blackstone and Stephen, appears, under the light of Maine's analysis and criticism, as the product of a curious combination of reality and fiction.
27 Stephen, i, p. 55.
The truth is that for many centuries the customary law of England has developed only by the deliberate activity of judges, and that its changes and progress, so slow and so notoriously inadequate, are the exclusive work of judicial legislation. The decisions of the courts, which have been recorded in innumerable volumes of "reports," occupy in the English customary system a place comparable to that of legislative enactments in the French system of codification. It was this consideration which urged Maine, in another part of his book, to protest against a terminology, certainly incorrect, yet definitely accepted in the juridical language of France, which admitted of the expression "unwritten law" to denote "customary law." English common law, says Maine, is certainly a customary law, but it is not an unwritten law. The term written law, if we take it in its first and natural meaning, is as suitable to English customary law as to the parliamentary law of the continent. It is written like the latter, only in reports of decisions and not in codes.29
The English and the French judge alike must fulfill a twofold mission, and in accomplishing them each has recourse to methods which are, it is true, far from identical yet between which there exists a certain kinship.
28 Sir Henry Sumner Maine, "Ancient Law" (London, 1906), with an Introduction and Notes by Sir F. Pollock, chap, ii, p. 35. 29 Sir Henry Sumner Maine, ibid. pp. 11 and 12.
(a) His first duty is to impose respect for existing law. To this end, his main effort is to reach a decision of the question litigated before him, either directly from the text of the law in France, and from judicial precedent in England; or indirectly by analogy and by synthesis and deduction. Only when he succeeds by the first method, can he be said to limit his activity to declaring and applying existing law. (b) But legislation in France and judicial decisions in England are inevitably deficient. The court is necessarily called upon to cure little by little the deficiencies of the law, since it is bound to decide any and all juridical questions submitted to it, whether or not law or precedent has answered them by anticipation; whether they have arisen suddenly out of a change of social and economic conditions, or whether they are due to causes already old. In regulating the new legal relationships which the incessant movement of civilization engenders, the court cannot, unless it is to run into the most patent absurdities and iniquities, turn blindly to the mere machinery of interpretation. Consciously or not, the judge in these cases inevitably has recourse to guides and reasons,-external to the texts of legislation in France and to the judicial precedents in England; he must search for a solution which accords not only with the general spirit of the law, but also with that sort of contingent and natural law which varies with time and place, which Stephen calls the "natural reason of the thing," and which M. Geny calls "la nature des choses positives." Even then, although his decisions always appear and must appear, as Stephen says, to be a declaration and a recognition of existing law, it is none the less true, as Maine so well demonstrated, that they essentially form, instantly in England, or through repetition and uniformity in France, additions and even corrections of prior existing law. In England, as also in France, the court has, therefore, a second function, that of creating law, of participating in the indispensable work of juridical evolution and progress.
The fiction which has slipped into the traditional doctrine of the common law has a double purpose: to conceal this second function of the court, and to conceal the source of the materials used by the judge in fulfilling his first function. The fiction lies in attributing the whole production of judge-made law to an obscure and mysterious power, the impersonal and superhuman nature of which gives it a prestige to which judgments could not pretend, so long as they were recognized as the work of officials, mere individuals, known to be subject to prejudice, preconception and every other human weakness. This element of Reason, which clothes itself in the speech of the magistrate and controls it - not unlike the god of antiquity stirring within the spirit of the oracle, speaking as by his own voice, dictating his judgments and cloaking them with his own authority, -is "immemorial custom," sanctified by the supposition of a universal recognition, of a universal acceptance through many generations. Thus its decisions, by the antiquity attributed to them, escape the suspicion and opposition that would be provoked by any avowed legislative innovation of parliament or courts. Whereas the individual opinions of judges are subject to error and variation, this element of Reason is blessed with infallibility and consistency. Though the rules established by judicial decisions are limited, it has anticipated the solution of all legal difficulties, including those which will arise only in a far distant future.