Austin, Lectures on Jurisprudence, 5th ed., vol. 2, lecture 29

Laws are distinguishable not only by the difference of their sources, or immediate authors: They also originate in different ways, or wear different forms at their origin. Laws emanating from a common source, may originate in different modes; and laws which originate in the same mode, may emanate immediately from different authors or sources. For example, a law, whether established immediately by a monarch or sovereign number, or immediately by a subject individual or body, may either be established directly, that is, in the way of proper legislation, or else obliquely, that is, in the judicial mode, by a particular decision on a special point or case. And if established in the way of proper legislation, it may be promulged either in writing or orally; whether its immediate author be sovereign or subordinate.

Having premised these remarks, I shall now re-state the distinction, or rather the disparate distinctions, between written and unwritten law. In one of these distinctions the terms are taken in the meaning which I have styled their juridical sense; in the other, they are taken in the meaning which may be styled their grammatical or literal sense. The two distinctions, being founded on different properties of the subject to be distinguished, cross at innumerable points.

The distinction between written and unwritten law (sensu juridico) arose with the modem Civilians, by reasons which it would be too long to state, from a grass misconstruction of the meaning of certain passages in the Digest. In this sense, law established immediately by the sovereign is jus scriptum or written law; and law not so established is jus non scriptum or unwritten law; whether established directly, that is in the legislative mode; or established obliquely, that is in the judicial mode; whether promulged by writing or published orally. Whatever be its origin, it is written law if it emanate from the sovereign immediately, and if it do not, it is unwritten.

This distinction, therefore, is founded exclusively on difference of source. In spite of the terms written and unwritten, the 526writing or not writing is accidental or immaterial, as will abundantly appear on consideration of the examples already given in the foregoing Lecture.

The same distinction sometimes improperly expressed by the terms promulged and unpromulged.

The distinction between written and unwritten law, in the juridical meaning of the terms, is also denoted in the writings of the same Civilians, by the opposed epithets promulged and unpromulged. Law made by the supreme legislature is called promulged law, and law emanating immediately from a subordinate source is called unpromulged law.

But the terms promulged and unpromulged, as thus applied, are not less misexpressive than written and unwritten (sensu juridico).

For, first, laws established immediately by sovereign authors are not necessarily promulged: that is, published, or made known, orally or in writing, for the information and guidance of those who are bound to obey them.

In this country, a Bill, which has passed the two Houses, is a statute, or becomes obligatory, from the moment at which it receives the Royal Assent. The concurrence of the various members which compose the supreme legislature (as that concurrence is completed by the royal assent) is the only sign given to the subject community. No promulgation is requisite. ‘Because’ (as Blackstone remarks) ‘every man in England is, in judgment of Law, party to the making of an Act of Parliament, being present thereat by his representatives.’

It is true, that Acts of Parliament are printed, and may be had by those who choose to buy them; but this is not promulgation; for, before an Act is printed, and whether it is printed or not, it is a statute, and is legally binding. If the printing were a promulgation, in the proper sense of the term, it would be a necessary consideration precedent to the existence of the law as binding on those whom it concerns. The printing is, in this case, merely intended to refresh the memory of the parties whom it concerns; who, being all of them present at the enactment of the law, were then and there sufficiently informed of its existence and purport. Presence by ourselves and presence by our representatives are manifestly the same thing; and the knowledge so obtained is the more satisfactory because five-sixths or nine-tenths of us have no representatives whatever.³³

³³ The above paragraph is here restored from J. S. M.’s Notes. The reference to Blackstone’s reason which, as the passage stood in the last edition, seemed to be treated with an unusual respect, is thus shown to be ironical. For although it is possible that the irony was partially directed against the system which existed in lieu of representation (before the Reform Act of 1832), I think it is rather directed against the reasoning of Blackstone in defence of a legal fiction.—R. C.

527According to the practice which obtained under the Roman Emperors, their general or edictal Constitutions were not binding until they were published. And, hence, it probably has happened, that modern Civilians have applied the term ‘promulged’ to Laws proceeding immediately from sovereign authors. But the rescripts of the Emperors, with others of their special constitutions, were exclusively addressed (for the most part) to the particular or determinate persons whom they specifically regarded. And yet, through these special constitutions, Law was established, immediately by those sovereign princes, in their judicial (or legislative) capacity.

And (secondly), as Law made immediately by a sovereign author is not necessarily promulged, so Law may be promulged though it emanates from a subordinate source. Such, for example, was the case with the Law or Equity of the Prætors; whose Edicts were published carefully and conspicuously, in order that all, whose interests they might touch, might know their provisions and regulate their conduct accordingly.

And here I may remark that the expression promulgare legem had not originally its present import.

According to the meaning now annexed to the expression, ‘to promulge a law,’ is to publish a law already made, in order that those whom it binds may know its existence and purport. According to the meaning originally annexed to the expression, ‘to promulge a law,’ was to submit a proposed law to the members of the Legislature, in order that they might know its contents and consider the expediency of passing it.

Such was the meaning of the expression, in the language of Roman Jurisprudence, during the Commonwealth. Under the Emperors, the expression acquired the sense which is now universally attached to it.

Written and unwritten law sensu grammatico, disparate from the distinction sensu juridico.

The distinction between written and unwritten law, in the improper or juridical sense, or between promulged and unpromulged law in the same improper sense, is founded on difference of source. For written or promulged law in this sense is law emanating directly from the supreme legislator: unwritten or unpromulged law in the same sense is law made immediately by a subordinate authority. But the distinction between written and unwritten law, taking the terms in their grammatical meaning, is built exclusively upon a difference in the mode in which they originate. Written law is law which exists in writing at or before its origin; unwritten law is law which neither exists in a written state previously, nor is committed to writing at its 528origin. The distinction between written and unwritten law (in the juridical sense of the terms), and the distinction between written and unwritten law (in the grammatical sense of the terms), are therefore disparate and cross distinctions.

According to the distinction in the grammatical sense of the terms, any law (whether it be statute or judiciary, or whether it emanate from a sovereign or a subordinate source) is writtten law, or (jus quod scripto venit) if it be written, at the time of its origin, by the authority of its immediate maker. If it be not so written, it is unwritten law, or jus quod sine scripto venit.

Such, at least, is the only distinction between written and unwritten law, that appears to be known to the Roman lawyers. Lex, Plebiscita, Senatus-consulta, Principum Placita, are ranked by Justinian with jus scriptum, not because they emanated directly from the sovereign authority, but because they existed in a written form at their origin. That this was the ground manifestly appears, because the Prætorian edicts and the responsa prudentium are entitled by Justinian, jus scriptum. But the Prætorian edicts are clearly unwritten law in the juridical sense of the term; and the responsa prudentium, assuming that those private jurisconsults were properly authors of law, are necessarily unwritten law, in the juridical meaning of the expression.

Customary Law is, according to Justinian, jus non scriptum. And so it is in the grammatical sense; for, assuming that customary law obtains as positive law by virtue of the consensus utentium, it naturally originates sine scripto.

Law originating in the usus fori, or made by subordinate tribunals through judicial decisions, is not referred by Justinian to either class.

But I would remark, that it may belong to either class (taking the opposed terms in their grammatical sense). If the decisions of the tribunals were committed to writing by authority (in the manner proposed by Lord Bacon),³⁴ law established by such decisions would be written law. If they are not committed to writing (or are committed to writing by private and unauthorised reporters) the law established by them is unwritten.

³⁴ Or as now practised by the Judicial Committee by of the Privy Council; where the judgment, in cases of importance, is jointly considered and committed to writing before being delivered; an admirable method, considering the quasi-legislative character attaching to judgments by an appellate tribunal of the last resort.—R. C.

Our old Year-books, if they had been regularly kept and preserved, would belong to the class of unwritten law, since 529they would be received as evidence of previously existing law.

In modern Europe, or in some countries of modern Europe, the so-called jus receptum³⁵ is deemed written Law, if it existed in writing before and at its adoption. It is called written law, though not written as received, if written when adopted.

³⁵ Jus receptum: With respect to this Law has sometimes been supposed to obtain independently of sovereign authority.

It may be fashioned on

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Foreign positive Law,

International Morality.

The term ‘jus receptum’ has even been extended to customary law.

An example is afforded by those phrases in the old French law: Pays de droit écrit and Pays de coutumes. Pays de droit écrit meant those parts of France where the Roman law prevailed. It was written law in the literal or grammatical sense, but not in the other sense. It was not law made and published by the supreme legislator: for it obtained not by his direct enactment, but by his tacit consent, having been established in those countries before they were conquered by the Franks. But it was written law in the sense which I have called the grammatical sense, for it already existed in writing when it was adopted by the French Courts.

The distinction between written and unwritten Law (as drawn by modern Civilians) has been adopted by Sir Matthew Hale in his history of the Common Law, and imported by Sir William Blackstone into his Commentaries. By these writers on English Law, the terms ‘written law’ and ‘unwritten law’ are apparently taken in their juridical meanings. They both of them restrict the expression leges scriptæ, or the written laws of this kingdom, to ‘statutes, acts, or edicts, made by the King’s majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in parliament assembled.’ General and particular customs, together with laws established by the practice or usage of Courts, they refer to the leges non scriptæ, or unwritten law.

It must, however, be remarked that they seem to confound the distinction sensu juridico and the distinction sensu grammatico; and, by consequence, to arrive at a division of law which is incomplete and perplexed.

Speaking of the unwritten Law, Blackstone says, ‘I style these parts of our Law leges non scriptæ, because their original institution and authority are not set down in writing, as Acts of Parliament are, but they receive their binding power, and the 530force of laws, by long and immemorial use, and by their universal reception throughout the kingdom.’

Acts of the supreme Legislature are leges scriptæ: (Whether as made immediately by the supreme Legislature, or as set down in writing by the authority of the makers, does not distinctly appear).

But any law (not created immediately by the supreme Legislature) is non scriptum: Provided, that is, that its original

Now (according to this division in which the two distinctions are manifestly confounded) what becomes of laws made immediately by subordinate Legislatures? as, for instance, by the Irish or Colonial Legislatures, or by Courts of Justice (making rules of practice)? These are set down in writing by their immediate authors, and are not created immediately by the supreme Legislature. Consequently, they cannot be brought under either member of the division as it has been conceived by Blackstone and Hale.

And what would be the class of the judiciary law recorded in the Year-books? Or what would be the class of the law recorded in any of the reports, in case Lord Bacon’s suggestion had met with the attention due to it; and the decisions of every tribunal had been recorded by authorised reporters?

It may be here observed that the terms themselves, written and unwritten law, are foreign to the language of English law, though found in Bracton (who evidently borrowed them from the Roman lawyers), and in Hale and Blackstone subsequently. The terms proper to the English law are not written and unwritten law, but statute law and common law; a classification which also seems to exclude the laws made in the direct or legislative mode by subordinate legislation.³⁶

³⁶ The following passage in Glanville’s Preface is worth citing here, both for his use of the term scriptum as applied to law, and also for the light which it throws upon the early growth of the common law of England. He says: ‘Leges namque Anglicanas, licet non scriptas, leges appellari non videtur absurdum (cum hoc ipsum lex sit, quod principi placet, et legis habet vigorem), eas scilicet, quas super dubiis in consilio definiendis, procerum quidem consilio, et principis accedente authoritate constat esse promulgatis. Si enim ob scripture solummodo defectum leges minime censerentur, majoris (procul dubio) anthoritatis robur ipsis legibus videretur accommodare scriptura, quam vel decernentis equitas, vel ratio statuentis. Leges autem et jura regni scripto universaliter concludi nostris temporibus omnino quidem impossibile est: cum propter scribentium ignorantiam, tum propter earum multitudinem confusam: verum sunt quedam in Curiâ generalia, et frequentius usitata, que scripto commendare non mihi videtur presumptuosum, sed et plerisque perutile, et ad adjuvandam memoriam admodum necessarium. Harum itaque particulam quandam in scripta redigere decrevi, stilo vulgari et verbis curialibus utens ex industria ad notitiam comparandam eis qui hujusmodi vulgaritate minus sunt exercitati.

Bracton borrows part of this passage, but, missing the fine irony of the reference to the doctrine of the Roman lawyers and the elegance of the argument à fortiori, has reduced it to what our anthor might well call ‘jargon.’ Bracton says: ‘Sed absurdum non erit leges Anglicanas (licet non scriptas) leges appellare, cum legis vigorem habeat quicquid de consilio et de consensu magatum, et reipublicæ communi sponsione, authoritate regissive principis precedente, justè fuerit definitum et approbatum.’

By Glanville following the Roman lawyers, scriptum as applied to jus is understood in its literal sense. His argument is, ‘If under the Roman system the pleasure of the Princeps was law, much more rationally may we call that law which though unwritten is known to have been the sentence of the Great Council, with the authority of the King to boot, given after solemn deliberation upon doubtful questions referred to their determination.’ To reduce into writing the laws thus floating in the cognisance and memory of those conversant with the practice of the Curia is the task humbly undertaken by that great lawyer.—R. C.

Distinction between law established in the direct or legislative mode and law obtaining obliquely.

531The distinction between law established directly and law obtaining obliquely, depends not on a difference in the sources from whence the law emanates, but on a difference in the modes in which it originates. When the law or rule is established directly, the proper purpose of its immediate author or authors is the establishment of a law or rule. When the law or rule is introduced obliquely, the proper purpose of its immediate author or authors is the decision of a specific case or of a specific point or question. Although this specific case is decided by a new rule, the proper purpose of the judge is not the introduction of that rule, but the decision of the specific case to which the rule is applied, and so, speaking generally, the show of legislation is avoided. Generally the new rule is not introduced professedly, but the existing law is professedly ascertained by interpretation or construction, or by a process which I shall hereafter describe analogous to interpretation or construction; and is then professedly applied to the case or question which awaits decision. If the new rule obtains as law thereafter, it does not obtain directly, but because the decision passes into a precedent: that is to say, is considered as evidence of the previous state of the law; and the new rule, thus disguised under the garb of an old one, is applied as law to new cases.

Now, whether established directly or obliquely, a law or rule may emanate either from the sovereign or from an inferior or subordinate source. The judicial power, like all other power, resides in the sovereign, although in most of the governments of modern Europe it is committed by the sovereign to subject or subordinate tribunals. In the Roman Empire, where judicial powers were occasionally exercised by the sovereign in person, the sovereign might legislate either directly or obliquely. According to the expression of Thibaut, in his 532admirable work on interpretation, he either legislated gesetzgebend; that is, professedly legislating; or richtend, professedly judging. The same observation applies to the subordinate judge. When he is expressly or tacitly entrusted with powers of direct legislation, his laws are established in the legislative manner: otherwise they are established in the way of judicial decisions on specific questions or cases. This distinction therefore is founded on a difference in the mode in which laws originate, not in the source from which they flow.

As no short names are afforded by established language, I shall indicate the distinction in question by periphrasis or circumlocution.

For example: Law belonging to one of the kinds in question, I shall style, ‘Law established directly;’ ‘Law established in the legislative manner;’ or, ‘Law established in the way of proper legislation:’ That is to say, established immediately by the sovereign, or by any subordinate author, as properly exercising legislative, and not judicial functions (As gesetzgebend, and not as richtend).

Laws belonging to the opposite kind, I shall style, ‘Law introduced and obtaining obliquely;’ ‘Law established or introduced in the judicial mode;’ or ‘Law established or introduced in the way of judicial legislation:’ That is to say, introduced immediately by the sovereign, or by any subordinate author, as properly exercising judicial, and not legislative functions (As richtend, and not as gesetzgebend).

Law of this latter kind (or rather, perhaps, a certain sort of it) has been styled by Mr. Bentham ‘Judge-made law:’—a term pithy and homely, and which I therefore love, but which nevertheless I am constrained to reject.

For, first, it does, in some sort, smack or savour of disrespect. And, as I cannot concur with Mr. Bentham, in his sweeping dislike of law made by judges, I cannot consent to mark or brand it with a name importing irreverence.

Secondly, it tends to confound the sources, from which law immediately proceeds, with the modes in which it originates. The term ‘Judge-made law’ would seem to denote law made by subject judges, as opposed to law made by the sovereign Legislature. At least, it would seem to denote law made by subject judges as exercising their judicial functions: which (I believe) is the sense annexed to the expression by Mr. Bentham.

Now (as I shall endeavour to shew in a future Lecture) the important difference is the difference of modes, and not the 533difference of sources. Provided it be made in the direct or in the legislative manner, law, established immediately by subject judges, is just as good as law emanating immediately from the sovereign.

Nay, judges legislating avowedly in the manner of the Roman Prætors, might do the business better than any of the sovereign Legislatures which have yet existed in the world.

I would briefly remark, in conclusion, that every possible law, or rule of law, is, on the one hand, statute or judiciary law, and, on the other hand, written or unwritten law (in the juridical meanings of the terms): Or, in other words, that it emanates, in the way of direct, or of judicial legislation, from a sovereign or subordinate source.