论习惯

On Custom

习惯本身不是法律,而是法律的一个渊源。如果法官发现某一规则在人类交往活动中被整个社会或社会的一部分普遍遵守,那么,法官就会把它作为一条规则确定下来。习惯不是意见,而是实践,是相同条件下人们行为的一律性。人们一般认为,习惯早于法官的判决,后者不过是表述前者而已,然而,这并没有多少依据。习惯经常产生于法官的判决。

Custom is not law, but one source of law. If they find that some rule is followed in society at large or in some parts of it, judges will adopt it. Custom is not opinion but practice, the uniformity of conduct of all persons under like circumstances. It has often been assumed that legal customs precede judicial decisions, and that the latter serve to give expression to the former. But there appears to be little proof. In fact, customs arise from judicial decisions.