285 



stone, •with the existing law, it will be found to have become almost 

 altogether obsolete, and the instrumentality by which the change has 

 been efiected is almost exclusively custom. So true is the observation 

 of Coke that "Leges humanw nascuntur vivunt et moriuntur." Hence, the 

 assertion of Mr. Austin and his followers that custom becomes operative 

 only when adopted by the government, cannot be maintained, but it 

 will be nearer the truth to say that laws become operative only when 

 they become custom, and for so long only as they continue to be so. 



But custom is not conclusive in the determination of rights ; for it is 

 an obvious principle of jurisprudence that it is not to be observed 

 unless reasonable. And hence, customs enter into the determination of 

 rights only as an element in the problem, and their effect is to be deter- 

 mined by independent principles of right. 



In this way custom is constantly rectified by reason, and the positive 

 law by means of custom undergoes a rational development. Hence, the 

 development of the law proceeds, not from the arbitrary and accidental 

 elements in which it seems, and is commonly supposed to originate, but 

 from justice, or reason, by which the arbitrary and accidental part of the 

 law is slowly but surely eradicated. 



(4) Another obvious principle is that of contract, which is usually 

 expressed in the maxim pacta qwelibet servancld sunt, "compacts are to 

 be observed." This principle is one very generally received, and it has 

 been thought by Hobbes, Locke, Kousseau and others, to constitute a 

 suflacienl basis for the theory of the State. But a very little consideration 

 will be sufficient to show that the principle thus generally stated cannot 

 be admitted. For there is no system of jurisprudence, positive or natural, 

 that has affirmed, as a universal proposition, that contracts should be 

 enforced. Thus, in our own law, contracts without consideration are not 

 enforced, and in courts of equity inadequacy of consideration is regarded 

 as sufficient reason for refusing specific performance ; and in the Roman 

 law a certain degree of inadequacy is sufficient to avoid the contract. So 

 both in our own and in the Roman law contracts for penalties and for- 

 feitures are not enforced. And many other instances might be cited in 

 which the principle is not observed, (e) 



The true principle as to the obligation of contracts would seem to be 

 the same as that applying to the case of delict, namely, that no man should 

 be permitted to be injured, or placed in a worse position by the act of 

 another without compensation. For the same rule that would forbid any 

 one to deprive another of his property, or liberty, by force or fraud, equally 

 forbids him to do it by a promise, even honestly made ; and the same 

 rule of compensation would seem to apply, namely, that the injured party 

 shall be restored by the other to his original position. 



(5) There is another important element in the determination of rights, 

 to which we will briefly refer, namely, that of laws or statutes. These are 

 mere acts of men who are distinguished from other men only in being 

 vested with the right of legislation, and they belong, therefore, to the 



FROC. AMER. PHILOS. SOC. XXXIV. 148. 2 K. PRINTED NOV. 1, 1895. 



