340 HISTORY OF COMMON LAW 



though quite as much against it. It is, however, not easy to under 

 stand how Austin's general views have been received with so much 

 favor by English jurists. He refuses to see that the soul of law is not 

 force, but right. He roundly asserts that "in truth, law is itself the 

 standard of justice," though admitting that it is a standard subject 

 to correction by some higher standard, if there be such, set up by the 

 sovereign elsewhere. 1 



Law in human society is made for men. It is made for beings having 

 considered as a mass certain general notions of moral justice. 

 These notions are the unwritten constitutions, no positive law 

 violating which can long endure. 



The same thing is true of custom and of judicial decisions support- 

 ing custom. If they are contrary to moral justice, the day will come 

 when they will be abrogated, if neither by legislation nor by disuse, 

 then by the courts themselves. 



That customs may have received judicial sanction is but uncertain 

 evidence that they deserved it. Bentham, not wholly without cause, 

 said of the English common law that it based men's dearest interests 

 "on some random decision, or string of frequently contradictory 

 decisions, pronounced in this or that barbarous age. almost always 

 without any intelligible reason, under the impulse of some private and 

 sinister interest, perceptible or not perceptible, without thought or 

 possibility of thought, of any such circumstances or exigencies, as 

 those of the people, by whom the country here in question is inhab- 

 ited at the present time: pronounced by men, who, if disposition and 

 inclination depend in any degree on private interest, were as far from 

 being willing, as from being, in respect of intelligence, able, to render 

 their decisions conformable to the interests, even of the people by 

 whose disputes those decisions were called for, and whose situation 

 alone it was possible that, in the framing of those decisions, they 

 should have in view: even of the people of those several past ages, 

 not to speak of those of the present age, or of ages yet to come." 2 

 If antiquated morality and antiquated law do not disappear 

 together, one does not long survive the other. As Sir Frederick 

 Pollock has remarked, " Legal justice aims at realizing moral justice 

 within its range, and its strength largely consists in the general feeling 

 that this is so. Were the legal formulation of right permanently 

 estranged from the moral judgment of good citizens, the state would 

 be divided against itself." 3 



No people can adhere to a common law which is not in the habit 

 of bowing to judicial precedent. And on the other hand, no people 

 can adhere to a code without putting it above the reach of inter- 

 pretation by precedent. Interpreted it often must be, but the courts 



1 Lectures on Jurisprudence, I, 223. 



2 Papers on Codification, 14, 31. 3 First Book of Jurisprudence, 31. 



