JB/028/131/004

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4)

Common Law – Division of it into Customs and Maxims.

The idea that belongs to Custom in the sense in
which the word is used in Law, to a legal Custom, is
much more complex. It involves in it, as a necessary
constituent part, the idea of Punishment.

Tis this last idea that we must carry have borne in mind, if we
know understand perfectly what we mean when we
speak of a custom as being obligatory. A custom
becomes in this way obligatory, and in this way only, namely, by
men's being exposed liable to punishment for not observing
it. Now Moreover this and this only is the sense in which it can be applied
without impropriety to acts supposed to be future.
It has been the custom of the Judges to go in term
time to Westminster Hall. In saying thus, I
have used the word Custom in its ordinary sense.
In the same sense I might even say, it is the custom
for the Judges to go to Westminster Hall in term time.
⊞ ⊞ I now change the expression, and say But "It is the custom that the Judges shall to to Westminster
Hall in Term-time". Here I have used
the word Custom in it's legal sense. Why? because
I have intimated an obligation in the assemblage
of persons in question to perform the assemblage
of acts in question in time future, such as, according
to the former proposition, they have actually
performed in time past. And whence comes that
obligation? What is it that constitutes it? What, but Their
being exposed to punishment if they do not maintain
that custom? Tis then by in virtue of [the circumstance of] their being exposed to punishment

Identifier: | JB/028/131/004 "JB/" can not be assigned to a declared number type with value 28.
Date_1		Marginal Summary Numbering	not numbered
Box	028	Main Headings	comment on the commentaries
Folio number	131	Info in main headings field	common law division of it into customs and maxims
Image	004	Titles
Category	text sheet	Number of Pages	4
Recto/Verso	recto	Page Numbering	b1 / e2 / b3 / e4
Penner	jeremy bentham	Watermarks	[[watermarks::[monogram] [britannia emblem]]]
Marginals	jeremy bentham	Paper Producer
Corrections		Paper Produced in Year
Notes public		ID Number	9396
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