M2 
 
Cornell University Library 
 JC327 .A93 
 
 The Austinian theory of law 
 
 olin 
 
 3 1924 030 439 602 
 
The original of tliis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924030439602 
 
THE AUSTINIAN 
 THEORY OF LAW 
 
First Edition • . • . June,jlQp6.' 
 Rifrintcd .... Octobtr, igia 
 Reprinted Nmember, igio 
 
THE AUSTINIAN 
 THEORY OF LAW 
 
 BEING AN EDITION OF LECTURES I, V, AND VI 
 OF AUSTIN'S "JURISPRUDENCE," AND OF AUSTIN'S 
 "ESSAY ON THE USES OF THE STUDY OF 
 JURISPRUDENCE" WITH CRITICAL' NOTES "AND 
 EXCURSUS 
 
 BY W. JETHRO BROWN 
 
 LL.D. (Camb.), LiTT.D. (Dubl.) 
 
 OF THE MIDDLE TEKPLE, BAHBISTEB-AT^LAW ; SOMETIME MACMATIOM 
 
 srruDENT OF ST. John's college, Cambridge ; pkofessob of 
 
 COMPARATIVE LAW IN THE UNIVERSITY COLLEGE OF WALES 
 AUTHOR OF "THE NEW DIMOCHACT," ETC. 
 
 \ 
 
 LONDON 
 JOHN MURRAY, ALBEMARLE STREET, W. 
 
 1920 
 
i\-S^b^\'^ :v 
 
 T 
 
 By W. JETHRO BROWN, LL.D., Litt.D. 
 
 THE PREVENTION AND CONTROL 
 OF MONOPOLIES 
 
 THE UNDERLYING PRINCIPLES OF 
 
 MODERN LEGISLATION 
 
 Third Edition, Revised and Enlarged. 
 
 By JOHN AUSTIN 
 
 LECTURES ON JURISPRUDENCE 
 
 Or, The Philosophy of Positive Law 
 
 Edited by Robert Campbell. Two volumes. 
 
 STUDENT'S EDITION OF AUSTIN'S 
 JURISPRUDENCE. Compiled from 
 the above work by Robert Campbell. 
 
 ANALYSIS OF AUSTIN'S JURISPRU- 
 DENCE. By Gordon Campbell. 
 
 LONDON: JOHN MURRAY 
 
"John Austiu ^tait un dee hommes les plus distingu^s, ub des 
 eBprita les plus rares, et un des coeurs les plus nobles que j'ai connus." 
 
 QoizOT. 
 
 " Though the merit and work of Austin's writings as a contribution 
 to the philosophy of Jurisprudence are conspicuous, their educational 
 value as a training school for the higher class of intellects will be 
 found, we think, to be still greater. Considered in that aspect there 
 is not extant any other book which can do for the thinker exactly 
 what this does. ... As a mere organon for certain faculties of 
 the intellect, a practical logic for some of the higher departments 
 . of thought, these volumes have a claim to a place in the education of 
 statesmen, publicists, and students of the human mind." 
 
 John Stuart Mill. 
 
 " To Bentham, and even in a higher degree to Austin, the world is 
 indebted for the only existing attempt to construct a system of juris- 
 prudence by strict scientific process, and to found it, not on a 'priori 
 assumption, but on the observation, comparison, and analysis of the 
 various legal conceptions. There is not the smallest necessity for 
 accepting all the conclusions of these great writers with implicit 
 deference, but there is the strongest necessity for knowing what those 
 conclusions are. They are indispensable, if for no other object, for 
 the purpose of clearing the head." — Sir Henry Maink. 
 
 " I seem still to see his (Austin's) erect figure, his white hair, and 
 his large dark eyes, as, in his musical, rich voice, he told me it was 
 most important to think distinctly, and to speak my thoughts with 
 meaning." — Janet Ross. 
 
PREFACE 
 
 T WISH to acknowledge my indebtedness to the 
 Editors of the " Law Quarterly Eeview," the 
 "Columbia Law Review," and the "Juridical Re- 
 view " for permission to make use of certain articles 
 which have previously appeared in one or other of 
 the Reviews mentioned. I have also to acknow- 
 ledge my great indebtedness to Dr. J. M. Gover 
 for consenting, at a time of stress, to undertake 
 the work of revising the proofs. 
 
 W. J. B. 
 
CONTENTS 
 
 PART II 
 
 EXCUESUS A 
 / The Statb . . ^ ... 254 
 
 PAQB 
 
 EXCURSUS B 
 Sovereignty . . . ... 271 
 
 EXCUESUS C 
 The English Judge as Law-makbe . . . 288 
 
 EXCUESUS D 
 J CusTOMABT Law in Modern England . , . 303 
 
 EXCUESUS E 
 
 A CONSIDKEATION OP SOME OBJECTIONS TO THE CONCEPTION 
 
 OF Positive Law as State Command . . .331 
 
 EXCUESUS F 
 The Sciences of State Law . ... 355 
 
 Index . , ... 379 
 
INTRODUCTION 
 
 THE chief object of the present work is to present, for 
 the use of students of legal science, a statement and a 
 critical interpretation of the theory of sovereignty and law 
 which has been traditionally associated with the name of 
 John Austin. In several respects I endeavour to defend 
 that theory against the attacks of more recent writers ] 
 where I feel impelled to differ from Austin, I venture to 
 suggest the lines along which a reconstruction of his doctrine 
 appears to me possible. 
 
 THE STATEMENT OF AUSTINIAN DOCTRINE 
 
 The statement of the Austinian doctrine is taken from 
 the text of the fifth edition of Austin's " J urisp rudence," 
 which was edited by Mr. Eobert Campbell in 1^5. But I 
 have made use of no more than a small fragment of this 
 original ; and with the text of that fragment I have taken 
 many liberties. My action in both respects calls for a word 
 of explanation and apology. 
 
 The number of students who wish to cover the whole 
 ground of Austin's work, even in the abbreviated edition 
 known as " The Student's Austin," has naturally diminished 
 with the publication of more recent manuals. Yet, so 
 stimulating is Austin as an author, so rare is his power of 
 analysis, and so far-reaching has been his influence upon 
 later thought, that no student of legal science in the Anglo- 
 Saxon world, who is in earnest about his subject, can afford 
 to remain wholly unacquainted with the Austinian text. 
 
xii INTRODUCTION 
 
 The present work includes just so much of that text as 
 appears to me indispensable. The task of selection has not 
 been difficult. The most characteristic and valuable part of 
 Austin's work is undoubtedly to be found in the earlier 
 lectures which were published in his lifetime under the 
 title of "The Province of Jurisprudence Determined." 
 Lectures I, V, and VI of that part, in an abbreviated form, 
 almost constitute the present text. "We feel certain," 
 wrote John Stuart Mill, in speaking of Lectures V and VI, 
 ' that any competent student of the subject who reads thoes, 
 lectures once will read them repeatedly, and that each read- 
 ing will raise higher his estimate of their substance." 
 
 The liberties taken with Austin's text will be excused 
 by all who have any acquaintance with the original. 
 Although Austin's style has been subjected at times to an 
 exaggerated censure, no one can doubt that he repeated him- 
 self beyond all reasonable limits, or that his employment 
 of the superlative of invective at times bordered on the 
 truculent. In preparing this edition, I have not hesitated 
 to delete a word, a phrase, or even a paragraph, where no 
 real sacrifice of meaning was involved. The text has been 
 thereby reduced by at least one-third. In the great majority 
 of the occasions on which Austin employed italics, I have 
 ventured to substitute ordinary type. Substantially, such 
 changes are no more than a necessary consequence of the 
 endeavour to adapt oral lectures for publication in book, 
 form. It is greatly to be regretted that Austin, or a 
 courageous secretary under his direction, did not make them 
 in the course of preparing the first edition. 
 
 AN INTEEPEETATION AND A CRITICISM 
 
 The need for an interpretation of Austin may be disputed 
 by those students who, imagining censure to be criticism, 
 are more eager to abuse Austin than to understand him. But 
 
INTKODUCTION xiii 
 
 the need will be admitted without hesitation by all who, 
 as teachers or examiners in Jurisprudence at our Universities, 
 have been in a position to realize with what facility the 
 student may swallow both Austinian dogma and later criti- 
 cism without understanding either. With the object of 
 helping the student to a more profitable employment of his 
 time, I have added to Austin's text a series of Questions and 
 Notes. 
 
 The inclusion of Questions may raise, in the minds of 
 some, false hopes of a vade mecum for examination purposes. 
 My real aims have been very different, and find their 
 justification in the belief that our receptive faculties to-day 
 grow at the expense of the original or initiative. The bulk 
 and accessibility of modern literature threaten to become a 
 snare to the unwary student, who is led away from the 
 practice of thinking for himself. To have his thinking done 
 for him by another is so easy and so inviting, and the 
 temptation waylays him at every turn. Books there are of 
 all kinds, and at all prices, wherein he may find knowledge 
 codified, and little left for him to do but passively accept 
 the conclusions which others have won. Surrounded by 
 temptation, pressed too by the prospective struggle for 
 livelihood, the student is very apt to yield himself to a 
 soul-destroying despotism. He becomes a mere receptacle 
 for the views of others. Such a fate were a calamity for 
 any student, but must seem peculiarly abhorrent when it be- 
 falls one who has undergone the discipline of an Academy. 
 In truth, it is relatively unimportant how much a student 
 knows when he leaves the University. It is of incalculable 
 importance that he should have schooled himself in right 
 methods of thinking, that he should have learnt to give a 
 reason for the faith that is in him, that he should have won 
 his way to freedom of thought. "Students," as a great 
 thinker has warned us, " should be told as little as possible. 
 
xiv INTRODUCTION 
 
 J and induced to discover as much as possible." The Questions 
 in the present work are designed to assist the student in the 
 work of achieving for himself an independent interpretation 
 and criticism of Austin, They assume that the student has 
 read so much of Austin's text as is included in the present 
 volume ; and that he is endeavouring on a second reading of 
 that text to deal with it in a more reflective and critical 
 manner. He will, of course, give his own answer before 
 seeking for hints in the Notes. Some of the Questions he 
 will find very elementary. Others may seem difficult. If he 
 can answer all of them to his satisfaction, he is more 
 fortunate than the present author. Tor I have never re- 
 frained from asking a Question because I have thought it 
 might be unsatisfactorily answered, if in point of fact it 
 seemed calculated to set the student a-thinking. 
 
 If the Questions achieve the objects just suggested, the 
 student may find my Notes superfluous. Though I shall be 
 well contend if this prove to be the case, I do not allow my- 
 
 ( self to entertain extravagant hopes in this direction. In the 
 
 presence of the prevailing fetichism of mere information, 
 
 , weighable out for examination purposes by the pound avoir- 
 
 , dupois, the student is too prone to act upon the assumption 
 that hie who stops to think is lost. But even if the student 
 can rise above the temptation to sacrifice the discipline and 
 spirit of true culture to quantitative conceptions of knowledge, 
 he may not always have the imagination to see the real 
 difficulties in a text, or to appreciate those difficulties when 
 formally stated in the interrogative form. Austin's work, 
 particularly, calls for some guidance in these respects. It is 
 apt to create in the student's mind a quite illusory sense of 
 comprehension and mastery. The first object of the Notes 
 has been to draw attention to'the meaning and difficulties of 
 the text; the second, to make some suggestions towards a 
 serviceable criticism of it. I venture to hope that a student 
 
rNTRaDHCTICTN XV 
 
 of the present work, in addition to understanding Austin ^ 
 better, will have made some not insignificant progress in that ; 
 art of reading in which our time is sadly deficient. i 
 
 The programme just sketched may tell for intellectual 
 unrest. But intellectual unrest is preferable to unreasoning 
 acquiescence. Moreover, I do not for a moment design this 
 work as a substitute for tuition. On the contrary, I rather 
 hope that the student will gain a clearer perception of the 
 high purposes which tuition may serve. 
 
 A RECONSTRUCTION ^ 
 
 What is the most serious criticism that can be urged 
 against Austin's .theory of^ siffifiifiigpty and law ? Not, I 
 think, its positive errors ; but its inadequacy. Austin 
 possessed extraordinary powers of analysis, but his analysis 
 was apt to stop short at a point where the requirements of 
 logical definition seemed to be satisfied. He clearly dis- 
 tinguished between Positive Law and Morality, yet his 
 definition of the former omits elements which must be 
 deemed essential. So in distinguishing the sovereign from 
 the subject he made no attempt to view these as parts of 
 that larger whole without which they cannot be adequately, 
 understood. In so far as such deficiencies prejudiced Aus- 
 tin's discussion of particular problems, I have endeavoured 
 to. deal with them in the Notes. In the Excursus, I have 
 given a more complete and formal exposition of certain topics 
 which seemed to call for fuller discussion. Two of the 
 Excursus, I ought to add, deal with Judiciary and Customary 
 Law, and are essentially an endeavour to justify conclu- 
 sions which Austin adopted, but later critics have called in 
 question. , 
 
PART I 
 
 CHAPTER I 
 THE DEFINITION OF A LAW 
 
 1. The matter of jurisprudence is positive ja^: law, simply The 
 
 and strictly so called : or law set by political superiors to ™*' ^'^ ° 
 •' . junspru- 
 
 political inferiors. But positive law (or law, simply and dence. 
 strictly so called) is often confounded with objects to which 
 it is related by resemblance, and with objects to which it is 
 related in the way of analogy : with objects which are also 
 signified, properly and improperly, by the large and vague 
 expression law. 
 
 2. A law, in the most general and comprehensive accepta- Law : in 
 tion in which the term, in its literal meaning, is employed, ™°?* '"'.™" 
 may be said to be a rule laid down for the guidance of literal 
 an intelligent being by an intelligent being having power *^°'*- 
 over him. In this the largest meaning which it has, without 
 extension by metaphor or analogy, the term law embraces 
 
 the following objects: — Laws set by ^tgd to his human • 
 creatures, and laws set by men to men. 
 
 3. The whole or a portion of the laws set by God to men L»w of 
 is frequently styled the law of nature, or natural law: being, ° " 
 in truth, the only natural law of which it is possible to speak 
 without a metaphor, or without a blending of objects which 
 ought to be distinguished. But, rejecting the appellation 
 
2 THE DEFINITION OF A LAW 
 
 Law of Nature as ambiguous and misleading, I name those 
 laws or rules, as considered collectively or in a mass, the 
 Divine law, or the law of God. 
 Human 4 j^g^^g ggt \)j men to men are of two leading or principal 
 T^o classes. Some are established by political superiors, sover- 
 
 tlasses. eign and subject: by persons exercising supreme and 
 I^L^sVet subordinate government, in independent nations, or inde- 
 ! bjpoiaicai pendent political societies, the aggregate of the rules 
 1 gupenors. ^^^ established, or some aggregate forming a portion 
 of that aggregate, is the appropriate matter of juris- 
 prudence, general or particular. To the aggregate of the 
 rules thus established, or to some aggregate forming a 
 portion of that aggregate, the term law, as used simply and 
 strictly, is exclusively applied. But, as contradistinguished 
 to natural law, or to the law of nature (meaning, by those 
 expressions, the law of God), the aggregate of the rules, 
 established by political superiors, is frequently styled 
 positive law, or law existing 6y position. As contradistin- 
 guished to the rules which I style positive morality, and on 
 which I shall touch immiediately, the aggregate of the rules, 
 established by political superiors, may also be marked com- 
 modiously with the name of positive law. For the sake, then, 
 of getting a name brief and distinctive at once, and agreeably 
 to frequent usage, I style that aggregate of rules, or any 
 portion of that aggregate, £ositiveJ.aw : though rules, which ^ 
 are not established by political superiors, are also positive, or 
 exist by position, if they be rules or laws, in the proper 
 signification of the tetm. 
 2nd class. 5. Though some of the laws or rules, which are set by 
 
 Laws set •. 1 • , i 
 
 I by men not ^^^ ''° ^^^' ^^^ established by political superiors, others are 
 political not established by political superiors, or are not established 
 superiors. ^^ political Superiors in that capacity or character. 
 Objectsim. g. Closely analogous to human laws of this second class, 
 
 properly £ i.* 
 
 are a set of objects frequently but improperly termed laws, 
 
THE DEFINITION OF A LAW 3 
 
 being rules set and enforced by mere qjainion, that is, by the but by 
 opinions or sentiments held or felt by an indeterminate "'"'" ""^ 
 body of men in regard to human conduct. Instances of such termed 
 a use of the term law are the expressions — ' The law of ^"'* 
 honour ' ; ' The law set by fashion ' ; and rules of this 
 species constitute much of what is usually termed ' Inter- 
 national law.' 
 
 7. The aggregate of human laws properly so called Tbe two 
 
 l&sti 'd1&C6q 
 
 belonging to the second of the classes above mentioned, ino^eolass 
 with the aggregate of objects improperly but by close under the 
 analogy termed laws, I place together in a common class, ^^^^^^^ 
 and denote them by the term positi ve morality . The name ity. 
 morality severs them from positive law, while the epithet 
 positive disjoins them from the law of God. And to the end 
 of obviating confusion, it is necessary or expedient that they 
 should be disjoined from the latter by that distinguishing 
 epithet. For the name morality (or morals), when standing 
 unqualified or alone, denotes indifferently either -e|;- the 
 following objects: namely, positive morality as it is, or 
 without regard to its merits; and positive morality, as it 
 would he, if it conformed to the law of God, and werei 
 therefore, deserving of approbation. 
 
 8. Besides the various sorts of rules which are included Objects 
 in the literal acceptation of the term law, and those which ™***P ^°^ 
 are by a close and striking analogy, though, improperly, termed 
 termed laws, there are numerous applications of the term ''''''• 
 law, which rest upon a slender analogy and are merely 
 metaphorical or_figurative. Such is the case when we talk 
 
 of laws observed by the lower animals ; of laws regu- 
 lating the growth or decay of vegetables ; of laws de- 
 termining the movements of inanimate bodies or masses. 
 For where intelligence is not, or where it is too bounded 
 to take the name of reason, and, therefore, is too bounded 
 to conceive the purpose of a law, there is not the will 
 
4 THE DEFINITION OF A LAW 
 
 which law can work on, or which duty can incite or 
 
 restrain.* 
 
 9. Having suggested the purpose of my attempt to deter- 
 mine the province of jurisprudence ; to distinguish positive 
 law, the appropriate matter of jurisprudence, from the various 
 objects to which it is related by resemblance, and to which 
 it is related, nearly or remotely, by a strong or slender 
 analogy : I shall now state the essentials of a law or rule 
 (taken with the largest signification which can be given 
 to the term ■properly). 
 
 Laws or 10- Every law or rule (taken with the largest signification 
 
 rules ;)ro- which can be given to the term properly) is a command. 
 
 S'fd^°are 0^> rather, laws or rules, properly so called, are a species 
 
 a^ecies of commands.* 
 
 J " 11. Now, since the term command comprises the term 
 law, the first is the simpler as well as the larger of the two. 
 But, simple as it is, it admits of explanation. And, since 
 it is the key to the sciences of jurisprudence and morals, its 
 meaning should be analysed with precision. 
 
 12. Accordingly, I shall endeavour, in the first instance, 
 to analyse the meaning of ' command ' : an analysis which, 
 I fear, will task the patience of my hearers, but which they 
 
 8. The classification suggested in the text may be arranged in 
 tabular form : 
 
 Laws propsrly so called Laws improperly so called 
 
 I 1 I— -' 1 
 
 Laws of God Human Laws Laws by analogy Laws by metaphon 
 
 .. r ' 1 
 
 Po£ittve Laws or Laws set by men, not as 
 
 Laws strictly political superiors (nor in 
 
 so called.: pursuance of legal right.\ 
 
 Positive Morality 
 
 Q. In what senses of the term law may it be applied to the 
 rules which are imposed on lunatics living within the walls of aa 
 asylum 1 
 
 10. Q. Austin makes this statement as if it were a self-evident 
 truth. Has he good reason for doing so ? If not self-evident, is 
 it true ? Cf . Hobbes : Leviathan, xxv.-vi. 
 
THE DEFINITION OF A LAW 5 
 
 will bear with cheerfulness, or, at least, with resignation, 
 if they consider the difficulty of performing it. The elements 
 of a science are precisely the parts of it which are explained 
 least easily. Terms that are the largest, and, therefore, the 
 simplest of a series, are without equivalent expressions into 
 which we can resolve them concisely. And when we 
 endeavour to define them, or to translate them into terms 
 which we suppose are better understood, we are forced upon 
 tedious circumlocutions. 
 
 13. If you express or intimate a wish that I shall do The meao- 
 or forbear from some act, and if you will visit me with '"£°^ * * 
 
 ' •' term com- 
 
 an evil in case I comply not with your wish, the espres- mand. 
 sion or intimation of your wish is a command. A com- 
 mand is distinguished from other significations of desire, not 
 by the style in which the desire is signified, but by the 
 ,power and the purpose of the party commanding to inflict 
 an evil or pain in case the desire be disregarded. If you 
 cannot or will not harm me in case I comply not with 
 your wish, the expression of your wish is not a command, 
 although you utter your wish in imperative phrase. If you 
 are able and willing to harm me in case I comply not with ' 
 your wish, the expression of your wish amounts to a com- 
 mand, although you are prompted by a spirit of courtesy to 
 utter it. in the shape of a request. ' Preces erant, sed quibus 
 contradici non posset.' Such is the language of Tacitus, 
 when speaking of a petition by the soldiery to a son and 
 lieutenant of Vespasian. 
 
 14. A command, then, is a signification of desire. But a 
 command is distinguished from other significations of desire by 
 this peculiarity: that the party to whom it is directed is liable 
 to evil from the other, in case he comply not with the desire, 
 
 15. Being liable to evil from you if I comply not with aThemeai*- 
 wish which you signify, I am louTid or obliged by your ^^^ °^^ 
 command, or I lie under a^tt^ to obey it. If, in spite of 
 
6 THE DEFINITION OF A LAW 
 
 that evil in prospect, I comply not with the wish which you 
 
 signify, I am said to disobey your command, or to violate 
 
 the duty which it imposes. 
 
 The terms 16. Command and duty are, therefore, correlative terms: 
 
 mMmtU jj^g meaning denoted by each being implied or supposed by 
 and duty " •' • n i j i. 
 
 are corre- the other. Or (changing the expression) wherever a duty 
 
 ladve. jjgg^ ^ command has been signified; and whenever a com- 
 mand is signified, a duty is imposed. 
 The mean- 17. The evil which will probably be incurred in case a 
 ingofthe command be disobeyed or (to use an equivalent expression) 
 tion. in case a duty be broken, is frequently called a sanction, or 
 an enforcement of obedience. Or (varying the phrase) the 
 command or the duty is said to be sanctioned or enforced by 
 the chance of incurring the evil. 
 
 18. Considered as thus abstracted from the command and 
 the duty which it enforces, the evil to be incurred by dis- 
 obedience is frequently styled a punishment. But, as 
 punishments, strictly so called, are only a class of sfinctions, 
 the term is too narrow to express the meaning adequately. 
 To the ex- 19. I observe that Dr. Paley, in his analysis of the term 
 
 iatenoeofa oUiqation, lays much stress upon the violence of the motive 
 
 command, 
 
 aduty.and to Compliance. In so far as I can gather a meaning fromhis 
 
 • sanction, loose and inconsistent statement, his meaning appears to be 
 
 motive to this: that unless the motive to compliance be violent or 
 
 compli- intense, the expression or intimation of a wish is not a com- 
 
 reciuisite. ™aiid, nor does the party to whom it is directed lie under a 
 
 duty to regard it. 
 
 20. The truth is, that the magnitude of the eventual evil, 
 
 and the magnitude of the chance of incurring it, are foreign 
 
 to the matter in question. The greater the eventual evil, 
 
 and the greater the chance of incurring it, the greater is the 
 
 efficacy of the command, and the greater is the strength of 
 
 the obligation. But where there is the smallest chance of 
 
 incurring the smallest evil, the expression of a wish amounts 
 
 a 
 
THE DEFINITION OP A LAW 7 
 
 to a command, and, therefore, imposes a duty. The sanction, 
 if 70U will, is feeble or insufficient; but still there is a 
 sanction, and, therefore, a duty and a command.* 
 
 21. By some celebrated writers (by Locke, Bentham, and, Kewarda 
 I think, Paley), the term sanction is applied to conditional j(„^^„^ 
 good as well as to conditional evil: to reward as well 
 
 as to punishment. But, with all my habitual veneration 
 for the names of Locke and Bentham, I think that this 
 extension of the term is pregnant with confusion and per- 
 plexity. 
 
 22. Bewards are, indisputably, motives to comply with the 
 wishes of others. But to talk of commands and duties as 
 sanctioned or enforced by rewards, or to talk of rewards as 
 obliging or constraining to obedience, is surely a wide de- 
 parture from the established meaning of the terms. 
 
 23. If you expressed a desire that I should reader a 
 sorvice, and if you proffered a reward as the motive or 
 inducement to render it, you would scarcely be said to 
 
 20. Q. (1) Austin's statement is open to objection on the 
 ground that the phiase, "the smallest chance of incurring the 
 smallest evil," reduces the definition of command to an absurdity. 
 It would be more consistent with Austin's general analysis to require 
 a real chance of a real evU. But assuming this to be the case, 
 who is to decide whether such a chance exists t The person who 
 is commanded ? The person who commands ? Or a third party t 
 Give reasons in either case. 
 
 S2) Is a command issued to B in the following cases 1 
 a) B dreads A's displeasure. A,^who is ignorant of the fact, 
 asks B to lend him £5, adding, " If you deny me this kindness, I 
 shall think you very mean." 
 
 (b) B is ordered by G* his medical adviser, to take a tour 
 round the world. C adds, " If you do not go, I will not answer 
 for the consequences." 
 
 (c) B is requested by D to marry D's daughter. D threatens B, 
 in case of non-compliance, with a punishment which he doea not 
 expect to be able to inflict, but intends to inflict if he can. 
 
 (d) B is ordered by E to do something under threat of a 
 thrashing. E has not the slightest intention to carry out the 
 threat. 
 
8 THE DEFINITION OF A LAW 
 
 command the service, nor should I, in ordinary language, be 
 obliged to render it. In ordinary language, you would 
 promise me a reward, on condition of my rendering the 
 service, whilst I might be incited or persuaded to render it 
 by the hope of obtaining the reward. 
 
 24. Again : If a law hold out a reward as an inducement 
 to do some act, an eventual right is conferred, and not an 
 obligation imposed, upon those who shall act accordingly: 
 The imperative part of the law being addressed or directed 
 to the party whom it requires to render the reward. 
 
 25. In short, I am inclined to comply with the wish of 
 another, by the fear of disadvantage or evil. I am also 
 inclined to comply with the wish of another, by. the hope 
 of advantage or good. \But it is only by the chance of in- 
 curring evU, that I am boun d or obliged to complianca It is 
 only by conditional evil, that duties are sanctioned or en- 
 forced. It is the power and the purpose of inflicting 
 eventual evil, and not the power ^and the purpose of impart- 
 ing eventual good, which gives to the expression of a wish 
 the name of a command. 
 
 26. If we put reward into the import of the term 
 sanction, we must engage in a toilsome struggle with the 
 current of ordinary speech; and shall often slide uncon- 
 sciously, notwithstanding our efforts to the contrary, into 
 the narrower and customary meaning.* 
 
 26. Q. (1) A says to B, " Do this and I •will give you the £5 
 I owe you. If you do not do it, I will certainly give you 
 nothing." Does A command B ? (2) What have been the reasons 
 ■which have determined the State to rely upon penalties rather 
 than rewards ? 
 
 Note. — The consideration of such questions as those suggested 
 may lead the student to doubt the propriety of Austin's refusal 
 to admit the possibihty of a sanction of reward. TJlpian declared 
 the purpose of law to consist in securing good conduct, " not only 
 by the fear of punishment, but also by the hope of reward."* 
 
 ' Digest I. i. 1. 
 
THE DEFINITION OF A LAW 9 
 
 27. It appears, then, from what has been premised, that The 
 the ideas or notions comprehended by the term command are "°*'°"' 
 
 As Ihering has remarked, although the public recompense has a 
 purely social expression in modern society, it had at Home a legal 
 expression. The general of the army had a right to the triumph, 
 a soldier a right to one or other of the Boman military orders, and 
 in either case the right was one of which the tribunals would take 
 cognizance.^ The modem titles of nobility, on the other hand, 
 whoUy depend upon the grace of the sovereign. 
 
 It would be possible to go further than Locke, and claim 
 that a command may be sanctioned by the reverence for an 
 authority as well as the fear of punishment or the hope of 
 recompense. Thus some chivalrously-minded people might say 
 that the invitation of the King or the request of a fair lady is 
 per se a command. The matter is not purely one of courtesy. 
 " He alone lives by the Divine Law," said Spinoza, " who lovesC 
 God not from fear of punishment, or from love of any other { 
 object, such as sensual pleasure, fame, or the like ; but solely ' 
 because he has knowledge of God or is convinced that the know- ' 
 ledge and love of God is the highest good." Divine law so 
 regarded is a command, not through fear of punishment, but for 
 love and reverence of the Divine Being. 
 
 Such differences of opinion with respect to the definition of 
 sanction and the essence of command are referred to, not to 
 confute Austin, but to bring out the meaning and significance 
 of his position It is not until we have dealt with objections 
 to a position that we understand what that position really is. 
 I have discussed the general question in Excursus E. If , as I 
 have there argued, positive law is something more than command, 
 it is at least command, and is sanctioned typically by penalties. 
 In this connection a very practical question may be asked : Does 
 the Austinian conception of sanction cover the cases described 
 as sanctions of nullity? The question is illustrated by the case 
 of Cowan v. Milhoum.^ In that case the defendant agreed to 
 let rooms to the plaintiff, but after discovering that the rooms 
 were intended to be used for the purpose of delivering lectures 
 of a blasphemous character, he refused to stand by the agreement. 
 It was held by the court that, since the object of the contract 
 was illegal, the contract could not be enforced at law. Baron 
 Bramwell, in his judgment, said : "It is strange there should be 
 so much difficulty in making it understood that a thing might 
 be unlawful, in the sense that the law will not aid it, and yet that 
 
 1 " L'Evolution du Droit," pp. 324-6. « L. R. 2 Exch. 230. 
 
, 10 THE DEFINITION OF A LATV- 
 
 oompre- the foUowing. 1. A wish or desire conceived hj a rational 
 
 hended by ^^^j^g^ ^Yi&t another rational being shall do or forbear. 2. An 
 
 Mml™ . evU to proceed from the former, and to be incurred by the 
 
 latter, in case the latter comply not with the wish. 3. An 
 
 expression or intimation of the wish by words or other 
 
 signs. 
 
 Theinse- 28. It also appears from what has been premised, that 
 
 P*™''^*. command, duty, and sanction are inseparably connected 
 
 orth*e ""^ terms : that each embraces the same ideas as the others, 
 
 **"* though each denotes those ideas in a peculiar order or 
 
 terms, 
 
 eommand, series. 
 
 duty, and 29. ' A wish conceived by one, and expressed or intimated 
 
 tanclion. 
 
 the law will not immediately punish it. If that only were un- 
 lawful to which a penalty is attached the consequence would 
 be that, inasmuijh as no penalty is provided by the law for 
 prostitution, a contract having prostitution for its object would be 
 valid in a court of law." The command of the State implied 
 in the judgment of Baron Bramwell may be expressed as a 
 prohibition of the making of certain kinds of contract — prohibition 
 sanctioned, not by a positive penalty, but by a mere refusal to 
 enforce the contract. Can we regard this negative punishment as 
 included within the Austinian conception of sanction 1 "I agree," 
 wrote Sidgwick, "with critics of Austin in thinking that the 
 conception of ' command ' — ^implying announcement of wish, 
 together with power and purpose of punishing its violation — can 
 only be applied in an indirect way, and by a process of inference 
 sometimes rather complicated, to many of the rules that make up' 
 the aggregate of civil law. Still I think that Austin's conception 
 is always applicable, if it is interpreted as rueaning only that the 
 expectation of some penalty, to result from the action or inaction 
 of government or its subordinates, constitutes a motive for 
 conforming to the rules we call 'laws,' and supplies a broadly 
 distinctive characteristic of such rules ; though the penalty (1) 
 may consist only in the enforced payment of damages to a private 
 individual injured by the violation of the rule, or (2) may be 
 merely negative, and consist in the withdrawal from the law- 
 breaker of some governmental protection of his interests to which 
 he would otherwise have been entitled." ^ 
 
 ' "Elements of Politics," p. 22 n.; cf. Heam, "Legal Duties and 
 Rights," pp. 83-8. 
 
ner of thi 
 connec- - 
 
 THE DEFINITIOlT OF A LAW 11 
 
 to another, with an evil to be inflicted and incurred in case 
 the wish be disregarded,' are signified directly and indirectly 
 by each of the three expressions. Each is the name of the 
 same complex notion. 
 
 30. But when I am talking directly of the .expression or The mm 
 intimation of the wish, I employ the term command: The 
 expression or intimation of the wish being presented promi- tion. 
 nently to my hearer ; whilst the evil to be incurred, with the • 
 chance of incurring it, are kept (if I may so express myself) 3 '■' ' 
 in the background of my picture. 
 
 31. When I am tol king direc tly of the chance of incur ring -^ 
 the eyij^ or (changing the expression) of the liability or 
 obnoxiousness to the evil, I employ the term duty, or the 
 term obligation: The liability or obnoxiousness to the evil 
 being put foremost, and the rest of the complex notion being 
 signified implicitly. 
 
 32. When I am talking immediately of the evil itself, I 
 employ the term sanction, or a term of the like import : The 
 evil to be incurred being signified directly; whilst the 
 obnoxiousness to that evil, with the expression or intimation 
 of the wish, are indicated indirectly or obliquely. 
 
 33. To those who are familiar with the language of 
 logicians (lai^age unrivalled for brevity, distinctness, and 
 precision), I can express my meaning accurately in a breath. 
 — ^Each of the three terms signifies the same notion; but 
 each denotes a different part of that notion, and connotes the 
 residue. ^ 
 
 34. Commands are of two species. Some are laws or Laws or 
 rules. The others have not acquired an appropriate name, '7*'" •'"" 
 nor does language afford an expression which will mark f^J^ ^^^ 
 them briefly and precisely. I mtist, therefore, note them as mands 
 well as I can by the ambiguous and inexpressive name of J '"• "^ 
 'occasional or particular comma.nds.' or particu^ 
 
 35. The term laws or rules being not unfrequently applied 
 
12 THE DEFINITION OF A LAW 
 
 to occasional or particular commands, it is hardly possible 
 to describe a line of separation which shall consist in every 
 respect with established forms of speech. But the distinction 
 between laws and particular commands may, I think, be 
 stated in the following manner. 
 
 36. By eYerY ^ommand , the party to whom it is directed 
 is obliged to do or to forbear. 
 
 37. Now where it obliges geiierally to acts or forbearances 
 of a class, a command is akw or,rjile. But where it obliges 
 to a specific act or forbearance, or to acts or forbearances 
 which it determines specifically or individually, a command 
 is occasional or particular. In other words, a class or de- 
 scription of acts is determined by a law or rule, and acts of 
 that class or description are enjoined or forbidden generally. 
 But where a command is occasional or particular, the act or 
 acts, which the command enjoins or forbids, are assigned or 
 determined by their specific or individual natures as well as 
 by the class or description to which they belong. 
 
 38. The statement which I have given in abstract expres- 
 sions I will now endeavour to illustrate by apt examples. 
 
 39. If you command your servant to go on a given errand, 
 or not to leave your house on a given evening, or to rise at 
 such an hour on such a morning, or to rise at that hour 
 during the next week or month, the command is occasional 
 or particular. For the act or acts enjoined or forbidden are 
 specially determined or assigned. 
 
 40. But if you command him simply to rise at that hour, 
 or to rise at that hour always, or to rise at that hour till 
 further orders, it may be said, with propriety, that you lay 
 down a rule for the guidance of your servant's conduct. For 
 no specific act is assigned by the command, but the command 
 obliges him generally to acts of a determined class. 
 
 41. If a regiment be ordered to attack or defend a post, 
 or to quell a riot, or to march from their present quarters, 
 
THE DEFINITION OF A LAW 13 
 
 the command is occasional or particular. But an order to 
 exercise daily till further orders shall be given would be 
 called a general order, and might be called a rule. 
 
 42. If Parliament prohibited simply the exportation of 
 corn, either for a given period or indefinitely, it would 
 establish a law or rule : a kind or sort of acts being deter- 
 mined by the command, and acts of that kind or sort being 
 generally forbidden. But an order issued by Parliament to 
 meet an impending scarcity, and stopping the exportation of 
 corn then shipped and in port, would not be a law or rule, 
 though issued by the sovereign legislature. The order re- 
 garding exclusively a specified quantity of corn, the negative 
 acts or forbearances, enjoined by the command, would be 
 determined specifically or individually by the determinate 
 nature of their subject. 
 
 43. As issued by a sovereign legislature, and as wearing 
 the form of a law, the order which I have now imagined 
 would probably be called ^ law ;. And hence the difficulty of 
 drawing a distinct boundary between laws and occasional 
 command^ 
 
 44. Again: An act which is not an offence, according to 
 the existing law, moves the sovereign to displeasure: and, 
 though the authors of the act are legally innocent or un- 
 offending, the sovereign commands that they shall be pun- 
 ished. As enjoining a specific punishment in that specific 
 case, and as not enjoining generally acts or forbearances of a 
 class, the order uttered by the sovereign is not a law or rule. 
 
 45. Whether such an order would be called a law, seems 
 to depend upon circumstances which are purely immaterial : 
 immaterial, that is, with reference to the present purpose, 
 though material with reference to others. If made by a 
 sovereign assembly deliberately, and with the forms of legis- 
 lation, it would probably be called a law. If uttered by an 
 absolute monarch, without deliberation or ceremony, it would 
 
14 THE DEFINITION OF A LAW 
 
 scarcely be confounded with acts of legislation, and would 
 be styled an arbitrary command. Yet, on either of these 
 suppositions, its nature would be the same. It would not be 
 a law or rule, but an occasional or particular command of 
 the sovereign One or Number. 
 
 46. To conclude with an example which best illustrates 
 the distinction, and which shows the importance of the dis- 
 tinction most conspicuously, judicial commands are com- 
 monly occasional or particular, although the commands 
 which they are calculated to enforce are commonly laws or 
 rules. 
 
 47. For instance, the lawgiver commands that thieves 
 shall be hanged. A specific theft and a specified thief being 
 given, the judge commands that the thief shall be hanged, 
 agreeably to the command of the lawgiver. 
 
 48. Now the lawgiver determines a class or description of 
 acts ; prohibits acts of the class generally and indefinitely ; 
 and commands, with the like generality, that punishment 
 shall follow transgression. The command of the lawgiver is, 
 therefore, a law or rule. But the command of the judge 
 is occasional or particular. For he orders a specific punish- 
 ment, as the consequence of a specific offence. 
 
 49. According to the line of separation which I have now 
 attempted to describe, a law and a particular command are 
 
 ' distinguished thus. — Acts or forbearances of a class are en- 
 
 ^ joined generally by the former. Acts determined specifically, 
 
 are enjoined or forbidden by the latter. 
 
 Black- 50. A different line of separation has been drawn by 
 
 stone's ae- Blackstone and others. According to Blackstone and others, 
 
 thedis- a law and a particular command are distinguished in the 
 
 tinetion. following manner.— A law obliges generally the members of 
 
 the given community, or a law obliges generally persons of a 
 
 given class. A particular command obliges a single person, 
 
 or persons whom it determines individually. 
 
THE DEFINITION OF A LAW 15 
 
 51. That laws and particular commands are not to be 
 distinguished thus, will appear on a moment's reflection. 
 
 52. For, first, commands which oblige generally the 
 members of the given community, or commands which 
 oblige generally persons of given classes, are not always 
 laws or rules. 
 
 53. Thus, in the case already supposed ; that in which the 
 sovereign commands that all corn actually shipped for 
 exportation be stopped and detained; the command is 
 obligatory upon the whole community, but as it obliges 
 them only to a set of acts individually assigned, it is not 
 a law. Again, suppose the sovereign to issue an order, 
 enforced by penalties, for a general mourning, on occasion 
 of a public calamity. Now, though it is addressed to the 
 community at large, the order is scarcely a rule, in the 
 usual acceptation of the term. For, though it obliges 
 generally the members of the entire community, it obliges 
 to acts which it assigns specifically, instead of obliging 
 generally to acts or forbearances of a class. If the sover- 
 eign commanded his subjects to wear black, his command 
 would amount to a law. But if he commanded them to 
 wear black on a specified occasion, his command would be 
 merely particular. 
 
 54. And, secondly, a command which obliges exclusively 
 persons individually determined, may amount, notwith- 
 standing, to a law or a rule. 
 
 55. For example, a father may set a rule to his child 
 or children : a guardian, to his ward : a master, to his slave 
 or servant. And certain of God's laws were as binding on 
 the first man, as they are binding at this hour on the 
 millions who have sprung from his loins. 
 
 56. Most, indeed, of the laws which are established by Privjlegi* 
 political superiors, or most of the laws which are simply and 
 strictly so called, oblige generally the members of the 
 
16 THE DEFINITION OF A LAW 
 
 political community, or oblige generally persons of a class. 
 To frame a system of duties for every individual of the 
 community, were simply impossible ; and if it were possible, 
 it were utterly useless. Most of the laws established by 
 political superiors are, therefore, general in a twofold 
 manner : as enjoining or forbidding generally acts of kinds 
 or sorts: and as binding the whole community, or, at 
 least, whole classes of its members. Laws established by 
 political superiors, and exclusively binding specified or 
 determinate persons, are styled in the language of the 
 Eoman jurists, privilegia. Though that, indeed, is a name 
 which will hardly denote them distinctly: for, like most 
 of the leading terms in actual systems of law, it is not 
 the name of a definite class of objects, but of a heap 
 of heterogeneous objects. Tit may be noted that where a 
 privilegium merely imposes a duty, it exclusively obliges 
 a determinate person or persons. But where a privilegium 
 confers a right, and the right conferred avails against the 
 world at large, the law is primlegiy,m, as viewed from a 
 certain aspect, but is also a general law as viewed from 
 another aspect. In respect of the right conferred, the law 
 exclusively regards a determinate person, and, therefore, is 
 privilegium. In respect of the duty imposed, and corre- 
 sponding to the right conferred, the law regards generally 
 the members of the entire community. 
 
 Thedefi- 57. It appears from what has been premised, that a 
 
 nitionofajaw, properly so called, may be defined in the following 
 
 properly 'manner. Jf 
 
 so called./ 58. A law is a command which obliges a person or 
 
 persons. ' "=; > ^^ ^ ' """" 
 
 ^ b9rEul, as contradistinguished or opposed to an occa- 
 sional or particular command, a law is a command which 
 obliges a person or persons, and obliges generally to acts or 
 forbearances of a class. 
 
THE DEFINITION OF A LAW 17 
 
 60. In language more popular but less distinct and pre- 
 cise, a law is a command which obliges a person or persons 
 to a course of conduct.' 
 
 60. Q. (1) Most laws have a general application, but it is one 
 thing to say generality is a normal element of law, and quite 
 another to say that it is an essential element. What reasons can 
 be assigned for insisting on generality as an essential element ? 
 
 2. Apply Austin's test of generality of command to the foUow- 
 ng cases : — 
 
 (a) A prohibition from fishing for salmon in a particular stream 
 during a particular season. 
 
 (b) The orders of an officer to a particular sentinel 
 
 (a) to shoot all trespassers, 
 
 (b) in no case to leave his post until so directed. 
 
 (c) A special proclamation by the sovereign calling upon all 
 subjects to refrain from molesting an ambassador then passing 
 through the country. 
 
 (d) An Act of Parliament, passed in the first instance for ten 
 years only, but periodically re-enacted, requiring all who wish to 
 sell alcoholic drinks to take out a license annually. - 
 
 Note. — The student who has dealt conscientiously with the 
 above questions will perhaps pardon a few suggestions with 
 respect to the following topics : (1) the meaning of the Austinian 
 test of generality; (2) the tests proposed by other writers; (3) the 
 grounds for excluding particular commands from the province of 
 jurisprudence; (4) the general argument of the present chapter. 
 
 (T) The meaning of the Austinian test of general commands. 
 
 Austin's attempt to establish a test is not free from ambiguity. 
 This is particularly apparent with regard to forbearances. B 
 orders A to call him at eight each morning for the next three 
 weeks. Clearly a particular command. The case would not be so 
 simple if the order had been " not to leave the house this or any 
 other evening for the next three weeks." Such a command might 
 involve an indefinite number of forbearances if the temptation to 
 leave the house were constantly present to B's mind. I take 
 Austin's general idea to be that a law aims at determining a course 
 of conduct. The test which he proposes for determining in a given 
 case whether or not a course of conduct is prescribed, implies the 
 consideration of questions which might be expressed as follows : 
 What is the reasonable construction to be put upon the mental 
 attitude of the person who commands ? Does he, or does he not, 
 contemplate a definitely limited number of acts or forbearances on 
 the part of the person commanded 1 In dealing with such ques- 
 tions all the circumstances of the case must be taken into con- 
 
18 THE DEFINITION OF A LAW 
 
 The mean- 61. Laws and other commands are said to proceed from 
 "8°"!''' mperiors, and to bind or oblige inferiors. I will, therefore, 
 tennsjM- analyse the meaning of those correlative expressions; and 
 perier and 
 
 inferior, sideration, and among such circumstances a time limit would 
 be of some, though not conclusive value. If on January 1, a 
 master issues an order to his servant which is to be carried out 
 once each morning for the whole year, it would be surely pedantry 
 to describe the command as particular. Logically, three hundred 
 and sixty-five acts are enjoined; practically, the attitude of the 
 person commanding may be more justly expressed by saying that 
 he wishes to enjoin a rule of conduct, the limitation of the 
 command to a certain period of time being in. all probability 
 an irrelevant detail. 
 
 (2) Some tests proposed by other toriters. The Eoman jurist 
 Ateius Capito opposed Lex, "generale jussum popnli aut plebis, 
 rogante magistratu," to Privilegia, "jussa de singulis concepta."' 
 Similarly Ulpian : " Jura non in singulas personas, sed generaUter 
 
 1 constituunter."^ Austin's account of Blackstone's conception of 
 
 generality is criticized by Professor Clark, who contends that 
 Blackstone really meant a standing order as distinguished from an 
 occasional one.* Some writers have combined both tests of 
 generality, requiring that the command must apply to an indefinite 
 number of persons as well as enjoin an indefinite number of acts. 
 Sheldon Amos, on the other hand, repudiated both tests as value- 
 less and misleading. "The most apparently isolated decree, if 
 imperative and peremptory, is addressed to all the members of the 
 Executive needed to carry it into effect,* and to all persons in the 
 "community capable of interfering with its being carried into 
 effect." M. Esmein proposes the test of perpetuity. If an Act 
 of the sovereign legislature is to be regarded as a law, it must 
 be passed for an indefinite period.^ " On reconnalt," writes M. 
 Duguit, "qu'une disposition est une regie g^ndrale et abstraite, 
 quand elle ne s'dpuise pas par son application dans un cas prdvu et 
 d^termin^ d'avance, quand elle survit k cette application, alors 
 meme qu'en fait elle ne s'appUque qu'k un seul cas, ou mime qu'k 
 un seul individu."^ 
 
 (3) The real grounds for insisting upon generality as an essential 
 element in law. A prima facie case is made out for insisting upon 
 generality from the mere fact that so many jurists, though perhaps 
 
 1 Willems, "Le Droit Public romain," p. 178. 
 
 ' Digest 1, 3, 8. ^ ^. « Practical Jurisprudence," p. 112. 
 
 * " Science of Jurisprudence," p. 74. 
 
 ' " Elements de Droit constitutionnel," 1899, p. 9. 
 
 * "Le Droit objectif et la Loi positive," 1901, p. 503. 
 
THE DEFINITION OF A LAW 19 
 
 will try to strip them of a certain mystery, by which that 
 simple meaning appears to be obscured. 
 
 differing as to the precise test of generality, agree in demanding 
 tome test. The Roman tradition on this point is sufficiently 
 indicated by the quotations already cited. Bacon affirms in his 
 collection of juristic aphorisms, " Law is nothing else than a com- 
 manding nde."^ Boueseau, though less influenced by scientific 
 considerations, elaborates the position that Law considers subjects 
 in a body and actions as abstract, never a man as an individual 
 nor an action as singular.* "The French doctrine of to-day," 
 writes M. Duguit, " holds almost unanimously that generality is an 
 essential element of law (la loi)."* The author gives a very 
 practical significance to the question by contending that the Act 
 of 1886, which exiled from French territory the heads of families 
 which had reigned in France, together with their direct heirs, was 
 arbitrary and illegal. 
 
 A very brief reflection is sufficient to convince us that juristic 
 opinion in this matter rests upon the firm foundation of the very 
 nature of society. Aristotle, in discussing the question whether 
 it is better to be subject to the best man or to the best laws, 
 refers to the argument that laws are general in their terms and 
 therefore cannot meet particular cases. " Even in Egypt, a doctoi 
 can alter the prescribed course of treatment after three days." 
 Hence he concludes that a polity which rests upon writtrai 
 formulae or laws is not the best. On the other hand, he is careful 
 to point out that officers of State should proceed according to 
 general principles. He concludes in favour of having a code of 
 laws, while at the same time allowing officers of State to act 
 independently wherever the needs of the particular case may 
 demand it.* Although throughout the argument he assumes that 
 laws mtist be general, his statement discloses some of the reasons 
 why generality is desirable. The reasons have also been stated by 
 Sir Henry Maine, who points out that the distance of the 
 sovereign from the bulk of the subjects compels him to.deal with 
 great classes of acts and with great classes of persons, rather than 
 with isolated acts and with particular individuals.^ This has not 
 always been the case, and the author jnst quoted remarks that, in 
 the small family groups of early society, laws as commands would 
 have been less associated with invariable order than with inscrut- 
 
 1 "De Augmentis," Lib. VIII. 
 
 2 "Le Contrat Social," II, chap.vi. 
 
 3 " Le Droit objectif et la Loi positive," 1901, p. 509. 
 
 4 " Politics," Book III, chap. xv. 
 
 s " Early History of Institutions," p. 393. 
 
20 THE DEFINITION OF A LAW 
 
 62. Swperiority is often .synonymous with precedence or 
 excellence. We talk of superiors in rank ; of superiors in 
 wealth ; of superiors in virtue : comparing certain persons 
 with certain other persons; and meaning that the former 
 precede or excel the latter in rank, in wealth, or in virtue. 
 
 63. But, taken with the meaning wherein I here under- 
 stand it, the term sv feriority signifies migh t: the power 
 of affecting others with evil or pain, and of forcing them, 
 through fear of that evil, to fashion their conduct to one's 
 wishes. 
 
 able caprice. In the modern state, however, the State neces- 
 sarily governs by the general way. True, cases may arise for 
 ])artictilar action, but such action, even though it may assume the 
 form of law, must be carefully distinguished from that law which 
 is the subject-matter of legal science. For the purposes of such a 
 science, the particular commands of a sovereign are des quantites 
 nigligeables. 
 
 (4) Review of Austin's general argument. The steps in Austin's 
 general argument may be expressed as follows '. Law is a 
 command' (§ 10). It therefore involves the elements of duty 
 and sanction (§17). It also involves the elements of superiority 
 (§ 70) and of generality (^ 34-60). In a word, Law implies not 
 merely Power controlling human action, but also Power con- 
 trolling courses of human action. There seems no adequate 
 reason for failing to insist upon generality of persons as well 
 as of acts. , The grounds which apply in one case apply also in 
 the other. Austin'i^ failure in this respect may be attributed 
 perhaps to an oversight of the fact that a command, apparently 
 to an individual, is often really addressed to a class. An Act 
 of Parliament applying to the Lord Chancellor, applies to him 
 not as a particular person, but as holder for the time being of a 
 certain office.^ On the other hand, an Act of Parliament which 
 applies to a particular individual or enjoins a definitely limited 
 number of acts is to be described as an act of administration 
 rather than of legislation. It assumes the form, though not the 
 nature, of law. The distinction between legislative and adminis- 
 trative functions, however, has difficulties of its own, to which 
 I shall return in the note on § 289. 
 
 1 Cf. also Pollock, "Jurisprudence," p. 34 ; Markby, "Elements of 
 Law," p. 2 ; Clark, "Practical Jurisprudence," pp. 112-13. 
 
THE DEFINITION OF A LAW 21 
 
 64. For example, God is emphatically the superior of Man. 
 For his power of affecting us with pain, and of forcing us to 
 comply with his will is unbounded and resistless. 
 
 65. To a limited extent, the sovereign One or Number ia 
 the superior of the subject or citizen: the master, of the 
 slave or servant : the father, of the child. 
 
 66. In short, whoever can oblige another to comply with 
 his wishes, is the superior of that other, so far as the ability 
 reaches : the party who is obnoxious to the impending evil, 
 being, to that same extent, the inferior. 
 
 67. The might or superiority of God, is simple or absolute. , 
 But in all or most cases of human superiority, the relation 
 of superior and inferior, and the relation of inferior and 
 superior, are reciprocal. Or (changing the expression) the 
 party who is the superior as viewed from one aspect, is the 
 inferior as viewed from another. 
 
 68. For example, to an indefinite, though limited extent, 
 the monarch is the superior of the governed: his power 
 being commonly sufficient to enforce compliance with his 
 wilL But the governed, collectively or in mass, are also 
 the superior of the monarch : who is checked in the abuse 
 of his might by his fear of exciting their anger; and of 
 rousing to active resistance the might which slumbers in the 
 multitude. 
 
 69. A member of a sovereign assembly is the superior of 
 the judge : the judge being bound by the law which proceeds 
 from that sovereign body. But, in his character of citizen 
 or subject, he is the inferior of the judge : the judge being 
 the minister of the law, and armed with the power of en- 
 forcing it. 
 
 70. It appears, then, that the term superiority (like the 
 terms duty and sa7ud;ion) is implied by the term com/mand. 
 For superiority is the power of enforcing compliance with a 
 wish: and the expression or intimation of a wish, with the 
 
22 THE DEFINITION OF A LAW 
 
 power and the purpose of enforcing it, are the constituent 
 elements of a command. 
 
 71. 'That laws emanate from superiors' is, therefore, an 
 / identical proposition. For the meaning which it affects to 
 
 impart is contained in its subject. 
 
 72. If I mark the peculiar source of a given law, or if I 
 mark the peculiar source of laws of a given class, it is 
 possible that I am saying something which may instruct the 
 hearer. But to affirm of laws universally 'that they flow 
 from superiors,' or to affirm of laws universally 'that in- 
 feriors are bound to obey them,' is the merest tautology. 
 
 Laws (m- 73. Like most of the leading terms in the sciences of 
 
 ^^'r'^'° jurisprudence and morals, the term laws is extremely ambig- 
 
 which are uous. Taken with the largest signification which can be 
 
 not com- given to the term properly, laws are a species of commands. 
 
 xnands, 
 
 and yet are But the term is improperly applied to various objects which 
 
 within the have nothing of the imperative character : to objects which 
 
 of°juri3- ^^^ °°* commands ; and which, therefore, are not laws, pro- 
 
 prudence^ perly so called. 
 
 74. Accordingly, the proposition 'that laws are com- 
 mands' must be taken with limitations. Or, rather, we 
 must distinguish the various meanings of the term laws; 
 and must restrict the proposition to that class of objects 
 which is embraced by the largest signification that can be 
 given to the term properlyy- 
 
 75. I have already indicated, and shall hereafter more 
 fully describe, the objects improperly termed laws, which 
 are not within the province of jurisprudence (being either 
 rules enforced by opinion and closely analogous to laws 
 properly so called, or being laws so called by a metaphorical 
 application of the term merely). There are other objects 
 improperly termed laws (not being commands) which yet 
 may properly be included within the province of jurispru- 
 dence. These I shall endeavour to particularize : 
 
THE DEFINITION OF A LAW 23 
 
 76. (1) Acts on the part of legislatures to explain positive i. Acts to 
 law, can scarcely be called laws, in the proper signification ^^v}^ 
 of the term. Working no change in the actual duties of the Uwa. 
 governed, hut simply declaring what those duties are, they 
 properly are acts of interpretation by legislative authority. 
 
 Or, to borrow an e:cpression from the writers on the Boman 
 Law, they are acts of authentic interpretation. 
 
 77. But, this notwithstanding, they are frequently styled 
 laws ; declaratory laws, or declaratory statutes. They must, 
 therefore, be noted as forming an exception to the proposi- 
 tion ' that laws are a species of commands.' 
 
 78. It often, indeed, happens (as I shall show in the 
 proper place), that laws declaratory in name are imperative 
 in effect : Legislative, like judicial interpretation, being fre- 
 quently deceptive ; and establishing new law, under guise of 
 expounding the old.* 
 
 79. (2) Laws to repeal laws, and to release from existing 2. Laws 
 duties, must also be excepted from the proposition 'that*°"P^ 
 
 laws. 
 
 laws are a species of commands.' In io far as they release 
 from duties imposed by existing laws, they are not com- 
 mands, but revocations of commands. They authorize or 
 permit the parties to whom the repeal extends, to do or to 
 forbear from acts which they were commanded to forbear 
 from or to do. And, considered with regard to this, their 
 immediate or direct purpose, they are often named permis- 
 sive laws, or, more briefly and more properly, permissions. 
 
 78. In Great Britain the operation of Declaratory Acts is not 
 retrospective to the extent of depriving a party of a vested right 
 unless such effect is explicitly demanded by the language of the 
 Act. But if such explicit demand is made, the courts are bound 
 by it. In the United States, however, such an attempt on the 
 part of the legislature would be held invalid by the courts as an 
 unlawful assumption of judicial power.* 
 
 V. Black, " Interpretation of Laws,* p. 371. 
 
24 THE DEFINITION OF A LAW 
 
 80. Eemotely and indirectly, indeed, permissive laws are 
 often or always imperative. For the parties released from 
 duties are restored to liberties or rights : and duties answer- 
 ing those rights are, therefore, created or revived. 
 
 81. But this is a matter which I shall examine with 
 exactness, when I analyse the expressions 'legal right,' 
 ' permission by the sovereign or state,' and ' civil or political 
 liberty.' 
 
 8. Laws of 82. (3) Imperfect laws, or laws of imperfect obligation, 
 
 imperfect ^^^gj. ^-^^ ^le excepted from the proposition ' that laws are 
 obligation. ^ 
 
 a species of commands.' 
 
 83. An imperfect law (with the sense wherein the term 
 is used by the Eoman jurists) is a law which wants a 
 sanction, ancf which, therefore, is not binding. A law 
 declaring that certain acts are crimes, but annexing no 
 punishment to the commission of acts of the class, is the 
 simplest and most obvious example. 
 
 84. Though the author of an imperfect law signifies a 
 desire, he manifests no purpose of enforcing compliance with 
 the desire. But where Ihere is not a purpose of enforcing 
 compliance with the desire, the expression of a desire is 
 not a command. Consequently, an imperfect law is not 
 so much a law, as counsel, or exhortation, addressed by a 
 superior to inferiors. 
 
 85. Examples of imperfect laws are cited by the Boman 
 jurists. But with us in England, lawe professedly impera- 
 tive are always (I believe) perfect or obligatory. Where the 
 EngHsh legislature affects to command, the English tribunals 
 not unreasonably presume that the legislature exacts obedi- 
 ence. And, if no specific sanction be annexed to a given 
 law, a sanction is supplied by the courts of justice, agreeably 
 to a general maxim which obtains in cases of the kind. 
 
 86. The imperfect laws, of which I am now speaking, are 
 laws which are imperfect, in the sense of the Boman jurists • 
 
THE DEFINITION OF A LAW 25 
 
 that is to say, laws which speak the desires of political 
 superiors, but which their authors (by oversight or design) 
 have not provided with sanctions. Many of the writers on 
 morals, and on the so-called law of nature, have annexed 
 a different meaning to the term imperfect. Speaking of im- 
 perfect obligations, they commonly mean duties which are 
 not legal: duties imposed by commands of God, or duties 
 imposed by positive morality, as contradistinguished to duties 
 imposed by positive law.* 
 
 86. "Lex aut perfecta est, aut imperfecta, aut minus quam 
 perfecta" (Ulpian). The full passage, as restored by Cujas and 
 Schilling, is translated in Abdy and Walker's "Gaius and Ul- 
 pian," p. 371. 
 
 " A law is either perfect, or imperfect, or short of perfect. 
 
 " A perfect law is one which forbids something to be done, and 
 rescinds it if it be done, of which kind is the Lex Aelia Sentia. 
 An imperfect law is one which forbids something to be done, and 
 yet, if it be done, neither rescinds it nor imposes a penalty on 
 him who has acted contrary to the law : of which character is the 
 Lex Gincia, prohibiting donations beyond a specified amount, 
 except those to certain persons, relations for instance ; and yet not 
 revoking a gift in excess. A law short of perfect is one which 
 forbids something to be done, and if it be done does not rescind it, 
 but imposes a penalty on him who has acted contrary to the law ; 
 of which character is the Lex Furia Testamentaria, prohibiting all 
 persons, save those specially exempted, froui taking more than 
 a thousand asses as a legacy or gift in prospect of death, and 
 appointing a fourfold penalty against anyone who has taken a 
 larger sum." 
 
 Ashby V. White ^ is the leading authority in English law for 
 the maxim uhijvs ibi remedium. The judgment of Lord Holt in 
 that case declared that an injury imports a damage, and sustains 
 an action, even if no pecuniary damage is shown. The franchise, 
 it was asserted, is a right for the vindication of which there must 
 be a legal remedy; if a man were to have no remedy, it would 
 be equivalent to denying the existence of the right. 
 
 Q. (1) Might a royal proclamation prescribing a period of 
 national mourning be regarded as a lex imperfecta i • 
 
 (2) Has a judge, who delivers a judgment which is c(jntrary to 
 law, violated a lex imp^feeta f 
 
 » Lord Eaymond, 938 ; Smith, L. C, 10th ed., 231. 
 
26 THE DEFINITION OF A LAW 
 
 Laws (pro- 87. I believe that I have now reviewed all the classes 
 P^rhjo of objects to which the term laws is improperly applied, 
 whichmay The laws (improperly so called) which I have here lastly 
 semnot enumerated, are (I think) the only laws which are not 
 tive!" commands, and which yet may be properly included within 
 the province of jurisprudence. But though these, with the 
 so-called laws set by opinion and the objects metaphorically 
 termed laws, are the only laws which really are not com- 
 mands, there are certain laws (properly so ca:lled) which may 
 seem, not imperative. Accordingly, I will subjoin a few 
 remarks upon laws of this dubious character. 
 Twhioh 88. (1) There are laws, it may be said, which merely 
 merely create rights. And, seeing that every command imposes 
 rights. a duty, laws of this nature are not imperative. 
 
 89. But, as I have intimated already, and shall show 
 completely hereafter, there are no laws merely creating 
 rights. There are laws, it is true, which merely create 
 duties: duties not correlating with correlating rights, and 
 which, therefore, may be styled absolute. But every law, 
 really conferring a right, imposes expressly or tacitly a 
 relative duty, or a duty correlating with the right. If it 
 specify the remedy to be given, in case the right shall 
 be infringed, it imposes the relative duty expressly. If the 
 remedy to be given be not specified, it refers tacitly to pre- 
 existing law, and clothes the right which it purports to 
 create with a remedy provided by that law. Every law, 
 really conferring a right, is, therefore, imperative : as impera- 
 tive, as if its only purpose were the creation of a duty, or as 
 if the relative duty, which it inevitably imposes, were merely 
 absolute.* 
 
 89. To the difficult cases discussed by Austin Mr. Frederic 
 Harrison adds others, e.g. the rules relating to judicial procedure.* 
 
 » " Fortnightly Review," No. 143 (n.a.), p. 684. 
 
THE DEFINITION OF A LAW 27 -^ 
 
 90. (2) According to an opinion which I must notice 2. Cnstom- 
 incidentally here, though the subject to which it relates "^ ^^'' 
 will be treated directly hereafter, customary laws must be i 
 excepted from the proposition 'that laws are a species of/ 
 commands.' ' 
 
 91. By many of the admirers of customary laws (and, 
 especially, of their German admirers), they are thought to 
 oblige legally (independently of the sovereign or state), 
 because the citizens or subjects have observed or kept them. 
 Agreeably to this opinion, they are not the creatures of the 
 sovereign or state, although the sovereign or state may 
 
 With regard to such cases, three attitudes are possible : (1) "We 
 may accept the Austinian analysis as it stands. (2) We may accept 
 Austin's description of law as a command, and contend that the 
 examples are really not inconsistent wifch the definition. This 
 position is forcibly stated and defended in the article on " Law " 
 in the " EncyclopaBdia Britannica." "If we avoid the error of 
 treating each separate proposition enunciated by the lawgiver as a 
 law, the cases in question^need give us no trouble. Bead the 
 declaratory and repealing statutes along with the principal laws 
 which they affect, and the result is perfectly consistent with the 
 proposition that all law is to be resolved into a species of command. 
 . . . Rules of procedure again have been alleged to constitute 
 another exception. They cannot, it is said, be regarded as 
 commands involving punishment if they be disobeyed. Nor is 
 anything gained by considering them as commands addressed to 
 the judge and other ministers of the law. There may be, no 
 doubt, in the law of procedure a great deal which is resolvable 
 into law in this sense, but the great bulk of it is to be regarded, 
 like the rules of interpretation, as entering into the substantive 
 commands which are laws. They are descriptions of the sanction 
 and its mode of working."^ (3) We may modify or vary Austin's 
 definition of law. This is the course adopted by Professor 
 Holland : " Such cases will cease to be anomalous if we recognize 
 that every law is a proposition announcing the will of the State, 
 and implying, if not expressing, that the State wiU give effect 
 only to acts which are in accordance with its will, so announced, ' 
 while it will punish, or at least visit with nullity, any acts of a 
 contrary character." ^ 
 
 1 XrV, p. 358; cf. Markby, "Elements of Law," § 6, and infra, 
 Excursus E. * " Jurisprudence," 9th ed., pp. 82-4. 
 
28 THE DEFINITION OF A LAW 
 
 abolish them at pleasure. Agreeably to this opinion, they 
 are positive law (or law, strictly so called), inasmjich as 
 they are enforced by the courts of justice : But, that notwith- 
 standing, they exist as positive law by the spontaneous adop- 
 tion of the governed, and not by position or establishment 
 on the part of political superiors. Consequently, customary 
 laws, considered as positive law, are not commands. And, 
 consequently, customary laws, considered as positive law 
 are not laws or rules properly so called. 
 
 92. An opinion less mysterious, but somewhat allied to 
 this, is not uncommonly held by the adverse party : by the 
 party which is strongly opposed to customary law ; and to 
 all law made judicially, or in the way of judicial legislation. 
 According to the latter opinion, all judge-made law, or all 
 judge-made law established by subject judges, is purely the 
 creature of the judges by whom it is established immedi- 
 ately. To impute it to the sovereign legislature, or to sup- 
 pose that it speaks the will of the sovereign legislature, is 
 one of the foolish or knavish fictions with which lawyers, in 
 every age and nation, have perplexed and darkened the 
 simplest and clearest truths. 
 
 93. I think it will appear, on a moment's reflection, that 
 each of these opinions is groundless : that customary law is 
 imperative, in the proper signification of the term ; and that 
 all judge-made law is the creature of the sovereign or state. 
 
 94. At its origin, a custom is a rule of conduct which the 
 governed observe spontaneously, or not in pursuance of a 
 law set by a political superior. The custom is transmuted 
 into positive law, when it is adopted as such by the courtst)f 
 justice, and when the judicial decisions fashioned upon it 
 are enforced by the power of the state. But before it is 
 adopted by the courts, and clothed with the legal sanction, 
 it is merely a rule of p ositive morality : a rule generally 
 observed by the citizens or subjects ; but deriving the only 
 
THE DEFINITION OF A LAW 29 
 
 force, which it can be said to possess, from the gftnaral d^g- ^ 
 , approbation falling on those who transgress it. 
 
 95. Now when judges transmute a custom into a legal 
 rule (or make a legal rule not suggested by a custom), the 
 legal rule which they establish is established by the sovereign 
 legislature. Asubordinate or subject judge is merely a minister. 
 The portion of the sovereign power which lies at his disposi- 
 tion is merely delegated. The rules which he makes derive 
 their legal force from authority given by the state : an auth- 
 ority which the state may confer expressly, but which it com- 
 monly imparts in the way of acquiescence. For, since the state 
 may reverse the rules which he makes, and yet permits him 
 to enforce them by the power of the political community, its 
 sovereign will ' that his rules shall obtain as law ' is clearly 
 evinced by its conduc t, though not by its express declaration. 
 
 96. The admirers of customary law love to trick out their 
 idol with mysterious and imposing attributes. But to those 
 who can see the difference between positive law and morality, 
 there is nothing of mystery about it. Considered as rules of 
 positive morality, customary laws arise from the consent of 
 the governed, and not from the position or establishment of 
 political superiors. But, considered as moral rules turned 
 into positive laws, customary laws are established by the 
 
 ^7 state : established by the state directly, when the customs 
 are promulged in its statutes ; established by the state jcizr 
 .cuitously, when the customs are adopted by its tribunals. 
 
 97. The opinion of the party which abhors judge-made 
 laws, springs from their inadequate conception of the nature 
 of commands. 
 
 98. Like other significations of desire, a command is 
 express or tacit. If the desire be signified by words (written 
 or spoken), the command is express. If the desire be signi- 
 fied by conduct (or by any signs of desire which are not 
 words), the command is tacit. 
 
y 
 
 30 THE DEFINITION OF A LAW 
 
 99. Now when customs are turned into legal rules by 
 decisions of subject judges, the legal rules which emerge 
 from the customs are tacit command s of the sovereign legis- 
 lature. The state, which is able to abolish, permits its 
 ministers to enforce them : and it, therefore, signifies its 
 pleasure, by that its voluntary acquiescence, ' that they shall 
 serve as a law to the governed.' 
 I 100. My present purpose is merejly this : to prove that the 
 positive law styled customary (and all positive law made 
 judicially) is established by the state directly or circuitously, 
 and, therefore, is imperatwe. I am far from disputing, that 
 law made judicially (or in the way of improper legislation) 
 and law made by statute (or in the properly legislative 
 manner) are distinguished by weighty differences. I shall 
 inquire, in future lectures, what those differences are; and 
 why subject judges, who are properly ministers of the law, 
 have commonly shared with the sovereign in the business of 
 making it. 
 Laws 101. I assume, then, that the only laws which are not 
 
 not oom-^ imperative, and which belong to the subject-matter of juris- 
 mands, prudence, are the following: — 1. Declaratory laws, or laws 
 explaining the import of existing positive law. 2. Laws 
 abrogating or repealing existing positive law. 3. Imperfect 
 laws, or laws of imperfect obligation (with the sense wherein 
 the expression is used by the Eoman jurists). 
 
 102. But the space occupied in the science by these im- 
 proper laws is comparatively narrow and insignificant. Ac- 
 cordingly, although I shall take them into account so often as 
 I refer to them directly, I shall throw them out of account 
 on other occasions. Or (changing the expression) I shall 
 limit the term law to laws which are imperative, unless I 
 extend it expressly to laws which are not.* j. 
 
 * The subject of Customary Law is discussed mfra Excursus D. 
 
 enumer- 
 ated. 
 
CHAPTER II 
 
 THE DIFFERENT KINDS OF LAWS 
 
 103. The term law, or the term laws, is applied to the Laws pro- 
 following objects : — to laws proper or properly so called, and ^^J?^'" 
 to laws improper or improperly so called : to objects which laws im- 
 
 have all the essentials of an imperative law or rule, and P'^°P^'^^y 
 
 so called, 
 to objects which are wanting in some of those essentials, 
 
 but to which the term is unduly extended either by reason 
 
 of analogy or in the way of metaphor. 
 
 104. Strictly speaking, all improper laws are analogous 
 to laws proper : and the term law, as applied to any of them, 
 is' a metaphorical or figurative expression. For every meta- 
 phor springs from an analogy : and every analogical extension 
 given to a term is a metaphor or figure of speech. The term 
 is extended from the objects which it properly signifies to 
 objects of another nature; to objects not of the class wherein 
 the former are contained, although they are allied to the 
 former by that more distant resemblance which is usually 
 styled analogy. 
 
 105. But, taking the expressions with the meanings which Analogy 
 
 custom or usage has established, there is a difference between *" ™***' 
 ° pnor as 
 
 an employment of a term analogically and a metaphor, used in 
 By a metaphorical or figurative application, we usually ooni™°" 
 mean one in which the analogy is faint, the alliance between defined, 
 the primitive and the derivative signification remote. When 
 the analogy is clear, strong, and close; when the subjects 
 to which the term is deflected lie on the confines of the 
 class properly denoted by it, and have many of the properties 
 
 3X 
 
32 THE DIFFERENT KINDS OF LAWS 
 
 common to the class, we hardly say that the name is 
 employed figuratively or metaphorically. The difference 
 between metaphor and analogy is hence a difference of degree, 
 and not to be settled precisely by drawing a strict line 
 between them. 
 Lawsim- 106. Now a broad distinction obtains between laws im- 
 proper are properly so called. Some are closely, others are remotely 
 kinds— analogous to laws proper. The term law is extended td 
 1. Laws by some by a decision of the reason or understanding. The 
 2°Lawsb ^^'^"^ ^"''"' ^^ extended to others by a turn or caprice of the 
 metaphor, fancy. 
 
 107. In order that I may mark this distinction briefly 
 and commodiously, I avail myself of the difference, es- 
 tablished by custom or usage, between the meanings of the 
 expressions analogical and figurative. — ^I style laws of the 
 first kind laws closely analogous to laws proper. I say that 
 they are called laws by an analogical extension of the term. 
 I style laws of the second kind laws metaphorical or figur- 
 ative. I say that they are called laws by a metaphor or 
 figure of speech. 
 Diviaionof 108. Now laws proper, with such improper laws as are 
 laws pro- closely analogous to the proper, are divisible thiis :*— 
 laws by 109- Of laws properly so called, some are set by God to 
 
 analogy, ijjg human creatures, others are set by men to men. 
 
 110. Of the laws properly so called which are set by men 
 to men, some are set by men as political superiors, or by 
 men, as private persons, in pursuance of legal rights. Others 
 may be described in the foUowmg negative manner. They 
 are not set by men as political superiors, nor are they set 
 by men, as private persons, in pursuance of legal rights. 
 Laws by 111. The laws improperly so called which are closely 
 ana "gy- analogous to the proper, are merely opinions or sentiments 
 held or felt by men in regard to human conduct. As I 
 shall show hereafter, these opinions and sentiments are 
 
THE DIFFERENT KINDS OF LAWS 33 
 
 styled laws, because they are analogous to laws properly 
 80 called : because they resemble laws properly so called in 
 some of their properties or some of their effects or con- 
 sequences. 
 
 112. Accordingly, I distribute laws proper, with such Diatribu- 
 improper laws as are closely analogous to the proper, under !^™ °^ 
 three capital classes. per, and 
 
 113. The first comprises the laws (properly so called) ^^''^ ^^ 
 
 uialogYi 
 which are set by God to his human creatures. under 
 
 114. The second comprises the laws (properly so called) tl»ree 
 which are set by men as political superiors, or by men, as daases. 
 private persons, in pursuance of legal rights. 
 
 115. The third comprises laws of the two following species : 
 1. The laws (properly so called) which are set by men to 
 men but not by men as political superiors, nor by men, as 
 private persons, in pursuance of legal rights : 2. The laws, 
 which are closely analogous to laws proper, but are merely 
 opinions or sentiments held or felt by men in regard to 
 human conduct. — I put laws of these species into a common 
 class, and I mark them with the common name of positiv^e 
 morality or positive moral rules. 
 
 116. My reasons for using the twa expressions 'positive The ex- 
 law' and 'posiiiw morality,' are the following: — ' presaion* 
 
 posUiw 
 
 117. There are two capital classes of human laws. The ?ato and 
 
 first comprises the laws (properly so called) which are set^"**'*'* 
 , ,., . ... , . . , morality. 
 
 by men as political superiors, or by men, as private persons, 
 
 in pursuance of legal rights. The second comprises ^he 
 
 laws (proper and improper) which belong to the two species 
 
 above mentioned. 
 
 118. As' merely distinguished from the second, the, first 
 of those capital classes might be named simply^ law. As 
 merely distinguished from the first, the seconc}. of those 
 capital classes mi|;ht be named simply morality. But both 
 must be distinguished from the law of God: and, for the 
 
34 THE DIFFERENT KINDS OF LAWS 
 
 purpose of distinguishing both from the law of God, we 
 must qualify the names law and morality. Accjordingly, I 
 style the first of those capital classes ' positive law : ' and I 
 style the second of those capital classes ' positive morality.' 
 By the common epithet positive, I denote that both classes 
 flow from human sources. By the distinctive names law 
 and morality, I denote the difference between the human 
 sources from which the two classes respectively emanate. 
 
 119. Strictly speaking, every law properly so called is a 
 positive law. For it is put or setby its individual or collec- 
 tive author, or it exists by the position or institution of its 
 individual or collective author. 
 
 120. But, as opposed to the law of nature (meaning the 
 law of God), human law of the first of those capital classes 
 is styled by writers on jurisprudence 'positive law.' This 
 application of the expression ' positive law ' was manifestly 
 made for the purpose of obviating confusion ; confusion of 
 human law of the first of those capital classes with that 
 Divine law which is the measure or test of human. - 
 
 121. And, in order to obviate similar confusiorl, I apply 
 the expression 'positive morality' to human law of the 
 second capital class. For the name morality, when standing 
 unqualified or alone, may signify the law set by God, or 
 human law of that second capital class. If you say that an 
 act or omission violates morality, you speak ambiguously. 
 You may mean that it violates the law which I style 'posi- 
 tive morality,' or that it violates the Divine law which is 
 the measure or test of the former.* 
 
 121. Professor Claik, in discussing Austin's use of the three 
 expressions, proper, positive, and strictly so called, writes, "Proper 
 signifies that the law emanates from a determinate author; 
 positive that such author is human; strictly so called, that the 
 human author is sovereign."^ The statement is scarcely justified 
 
 1 " Practical Jurisprudence," p. 136. 
 
THE DIFFERENT KINDS OF LAWS 35 
 
 122. From the expression positive law and the expression ExpUna- 
 positive morality, I pass to certain expressions with which fj^^j^g 
 they are closely connected. ~^ - — . - - expiea- 
 
 123. The science of jurisprudence (or, simply and briefly, *'°°s="^> 
 jurisprudefice) is concernfed with positive laws, or with laws jurispru- 
 strictly so called, as cofisidered without regard to their good- "^'""^ '""^ 
 
 seienee of 
 ness or badness. positive 
 
 124. Positive morality, as considered without regard to '""'"'»'*!'»■ 
 its goodness or badness, might be the subject of a science ^^}^^|^ ^^ 
 closely analogous to jurisprudence. I say ' migM be : ' since deontologt/, 
 it is only in one of its branches (namely, the law of nations J^!^^^, 
 or international law) that positive morality, as considered and jciejie* 
 without regard to its goodness or badness, has been treated "/""^"^ 
 by writers in a scientific or systematic manner. — For the 
 science of positive morality, as considered without regard to 
 
 its goodness or badness, current or established language will 
 hardly afiford us a name. The name morals, or science of 
 morals, would denote it ambiguously : the name morals, or 
 science of morals, being commonly applied (as I shall show 
 immediately) to a department of ethics or deontology. But, 
 since the science of jurisprudence is not unfrequently styled 
 ' the science of positive law,' the science in question might 
 be styled analogically 'the science of positive morality.* 
 The department of the science in question which relates 
 to international law, has actually been styled by Yon 
 Martens, a recent writer of celebrity, 'positives oder prac- 
 tisches Volkerrecht : ' that is to say, ' positive international 
 law,' or 'practical international law.' Had he named that 
 department of the science 'positive international moral- 
 
 by Austin's language. Proper undoubtedly indicates that the law 
 has a determinate author. Positive, on the other hand, although 
 it always means human, carries the further implication of political 
 ■when used with law simply. Positive Law and Law strictly so 
 called are identical expressions. 
 
36 THE DIFFERENT KINDS OF LAWS 
 
 ity' the name would have hit its import with perfect 
 precision.* 
 
 125. The science of ethics (or, in the language of Mr, 
 Bentham, the science of deontology) may be defined in the 
 following manner. — It affects to determine the test of posi- 
 tive law and morality. In other words, it affects to expound 
 them as they should be ; as they would be if they were good 
 or worthy of praise ; or as they would be if they conformed 
 to an assumed measure. 
 
 126. The science of ethics (or, simply and briefly, ethics) 
 consists of two departments : one relating specially to posi- 
 tive law, the other relating specially to positive morality. 
 The department which relates specially to positive law is 
 commonly styled the science of legislation, or, briefly, legislation. 
 The department which relates specially to positive morality, 
 is commonly styled the science of morals, or, briefly, morals. 
 
 Metning 127. The foregoing attempt to define the science of ethics 
 ft *t^ T ^^*^^*% l®^<is ™6 *o offsr the following explanatory re- 
 ar bad as mark. When we say that a human law is good or bad, or is 
 
 applied to v^hat it ought to be, or what it ought not to be, we mean 
 a human . . . ■. , , 
 
 law. (unless we intimate our mere likmg or aversion) that the 
 
 law agrees with or differs from a something to which we 
 
 124. As will be seen later, Austin defines Jurisprudence as the 
 science of the notions, principles, and distinctions common to 
 various legal systems. The heterogeneous nature of the elements 
 grouped by Austin as positive morality precludes the possibility 
 of a corresponding science in that subject. But portions might 
 be so treated. Austin quotes the case of International Law. 
 Conceivably, there might also be a science haying for its object 
 the statement of the unities which underlie the popular moralities 
 of civilized nations. Attempts have been made by various 
 authors to apply a similar method in Theology, and to derive a 
 science of Religion from the study and comparison of different 
 religious systems; by some such process of comparative analysis 
 Seeley arrived at his definition of Eeligion as habitual admiration. 
 The value of comparative methods in Jurisprudence is discussed 
 in Excursus F. 
 
THE DIFFERENT KINDS OF LAW^S 37 
 
 tacitly refer it as to a measure or test. For example, to the 
 adherent of the theory of utility, a human law is good if it 
 he generally useful, and a human law is bad if it be gene- 
 rally pernicious. For, in Ms opinion, it is consonant or not 
 with the law of God, inasmuch as it is consonant or not with 
 the principle of general utility. To the adherent of the 
 hypothesis of a moral sense, a human law is good if he likes 
 it he knows not why, and a human law is bad if he hates it 
 he knows not wherefore. For, in his opinion, that his inex-/ 
 plicable feeling of liking or aversion shows that the human: 
 law pleases or offends the Deity. 
 
 128. To the atheist a human law is good if it be generally 
 useful, and a human law is bad if it be generally pernicious. 
 For the principle of general utility would serve as a measure 
 or test, although it were not an index to an ulterior measure 
 or test. But if he call the law a good one without believing 
 it useful, or if he call the law a bad one without believing it 
 pernicious, the atheist simply intimates his mere liking or 
 aversion. For, unless it be thought an index to the law set j 
 by the Deity, an inexplicable feeling of approbation or dis- 
 approbation can hardly be considered a measure or test. 
 And, in the opinion of the atheist, there is no law of Godj 
 which his inexplicable feeling can point at. 
 
 129. To the believer in a supposed revelation, a human 
 law is good or bad as it agrees with or differs from the terms 
 wherein the revelation is expressed. 
 
 130. In short, the goodness or badness of a human law is 
 a phrase of relative and varying import . A law which is 
 good to one man is bad to another, in case they tacitly refer 
 it to different and a dverse tests. 
 
 131. The Divine laws may be styled good, in the sense j*j|^"'^._ 
 in which the atheist may apply the epithet to human, thet good 
 We may style them good, or worthy of praise, inasmuch as f ' 'P, 
 they agree with utility considered as an ultimate test. And of God, 
 
38 THE DIFFEEENT KINDS OF LAWS 
 
 this is the only meaning with which we can apply the 
 
 epithet to the laws of God. Unless we refer them to utility 
 
 considered as an ultimate test, we have no test hj which we 
 
 can try them. To say that they are good because they are 
 
 set by the Deity, is to say that they are good as measured or 
 
 tried by themselves. But to say this is to talk absurdly: 
 
 for every object which is measured, or every object which is 
 
 brought to a test, is compared with a given object other 
 
 tiian itself. — ^If the laws set by the tkitj were not generally 
 
 useful, or if they did not promote the general happiness of 
 
 his creatures, or if their great Author were not wise and 
 
 benevolent, they would not be good or worthy of praise, but 
 
 were devilish and worthy of execration^ 
 
 Posritive 132. Positive laws, the appropriate matter of jurispru- 
 
 laws, m (jeQce, are related in the way of resemblance, or by a close 
 their rela- 
 
 tions. 
 
 131. Q. Is the language of this section consistent (1) with 
 Austin's general analysis of law 1 (2) with, popular theology 1 (Are 
 the divine commands held to be binding because commanded, or 
 because they are presumed to promote certain ends 1) 
 
 Note. — ^The language of § 131 is interesting and significant. It 
 suggests that Austin regarded moral rules as binding, not because 
 they are divinely commanded, but because they tend to promote 
 human happiness; if they chance to be divinely commanded, so 
 much the better. Emerson has remarked that the Englishman 
 would not tolerate a Providence that thought light of a pound 
 sterling. Austin would not tolerate a God who slighted utility. 
 But in taking up this attitude he bears witness to the possibility 
 of another conception of law than that of command. Great 
 scholastic controversies have turned on the question whether law 
 is primarily and essentially the dictate of right reason or is the 
 expression of a sovereign will. Austin's reference to a non- 
 utilitarian Deity recalls a passage from Dr. Gierke : " Mediseval 
 schoolmen had hazarded the saying, usually referred to Grotius, 
 that there would be a Law of Nature, discoveiahie by human 
 reason and absolutely binding, even if there were no God, or the 
 Deity were unreasonable or unrighteous."^ 
 
 1 "Political Theories of the Middle Ages," p. 174; cf. in/ra 
 Excursus E ; " The Conception of Law as Commani" 
 
THE DIPFERKST KESKS OF LAWS 39 
 
 or remote anakgj. to die foUowiiig objects. — ^L La tbe vaj 
 of igBemHance, fchey are idafeed to tdie lavs of God. 2. In 
 tfie wajot resMnMance^tbey are idated to tihose rales of poai- 
 tivemonlil^ vhidh aie laws prepay sc calkd. 3. By a doee 
 « alnaig analogy, they are related to those rales of positrTe 
 ■ntaKty whidi are merety qpmioiis or aealdniaita held or 
 Mt by men in Rgud to human coDdnei. 4. By a remote or 
 aieDdez' analogy, they are idaled to lava merely radti^hoii- 
 cal, cr laws merely figaiatiT& 
 
 13S. To distinguish positiTe laws from the ol^ecta nowPaipnaaf 
 ennmented. is die purpose of the preseat attranpt to ddtar- ™*~'' ' 
 mine the fioTince of jiinspxude»c& 
 
 1S4 In my preeent kctnre, I aliall examine or diaenaB Of t^ 
 eflpedally the {aDowing principal topics: nam^, the db-f^T™^ 
 tingoiBhiiig mai^ of those pGfid~e moxal rales which are 
 laws propeily so caUed : die distingnishii^ maiks of those 
 poBiti*e moral raks which are styled hies or rules by an 
 anakigical extension of the term: die distii^niEfaiiig niailES 
 of the laws which are staled janes by a meta^MfE. 
 
 1S5. I shall complete, in my next lecture; the paiposeOTtte 
 mfendoned abore^ by explaining the mai^ or **"**^*°*^ u^,^ 
 whidk distingaish podtiTe laws, or laws stiiedy so caUed: 
 an ex^anadfiA involnng an analysis of die coital exprea- 
 i jBOTTf jgrijf. die correlative expression mig^tm^ and 
 
 epaiafaty connected expression imi^paieUnt foblkml saeutg. 
 Fiv the easKitialdifieRnce of a positiTe law (or the dififeroice 
 diat seTefs it from a law wlueh is not a positiTe law) may be 
 stated dras^ Eray positire law, or eveiy law simply 
 fltrictly so called, is set by a aorereagn petaon, or %ao' 
 
 ply andJ 
 fvraagBl 
 
 \[l< ^ nt |M»rann3. to a manbw or memheis of tlminAyf«Mfait 
 pditiol soei^y wh erein that pasom <ir bo^ is aovere^n or 
 snpnane. ''XR~(char^;ing the e^Hession) it is ae^ by a 
 w ff^vr-it^ m soToeign nnmba, to a person or pastms in 
 a ^ate of subjection to its andmr. 
 
v/ 
 
 40 THE DIFFERENT KINDS OF LAWS 
 
 136. Having shown the connection of my present dis- 
 course with foregoing and following lectures, I proceed to 
 examine or discuss its appropriate topics or subjects. 
 The essen- 137. In my first lecture, I endeavoured to resolve a law 
 f^^ °^ * (taken with the largest signification which can be given to 
 perly so the term properly) into the necessary or essential elements 
 called, to- ^j vrhich it is composed. Now those essentials of a law 
 
 gether 
 
 withcer- proper, together with certain consequences which those 
 teincon- essentials import, may be stated briefly in the following 
 manner. — 1. Laws properly so called are a species of j^m- 
 \ mands . But, being a commavd, every law properly so called 
 I flows from a determinate sourc e, or emanates from a deter- 
 l m mate author . In other words, the author from whom it 
 proceeds is a determinate ra tional b eing, or a determinate 
 body or aggregate of rational beings. For whenever a com- 
 mand is expressed or intimated, one party signifies a wish 
 that another shall (io or forbear : and the latter is obnoxious 
 to an evil which the former intends to inflict in case the 
 wish be disregarded. But every signification of a wish made 
 by a single individual, or made by a body of individuals as a 
 j dody or collective whole, supposes that the, individ ual or bod y 
 I ift certain or determinate. .^ And every intention or purpose 
 held by a single individual, or held by a body of individuals 
 as a body or collective whole, involves the same supposition. 
 
 12. Every sanction properly so called is an^evgaJaaLpvU 
 ajgaexfid tQ.a.fiomjaiaad. Any eventual evil may operate as 
 a motive to conduct : but unless the conduct be commanded 
 and the evil be annexed to the command purposely to en- 
 force obedience, the evil is not a sanction in the proper ac- 
 ceptation of the term. 3. Every duty properly so called 
 supposes a command by which it is created. 
 The l»ws 138. Now it follows from these premises, that the laws of 
 ofGod,and Qq^^ g^^^ positive laws, are laws proper, or laws properly so 
 UwB, are Called. The laws of God are laws proper, inasmuch as they 
 
THE DIFFERENT KINDS OF LAWS 41 
 
 fl.rftj'. (>TnTna n(lR express or tac it, and therefore emanate from laws pro- 
 
 a certain source. Positive laws, or laws strictly so called, ^^}yj° 
 
 <~-^ — .^ ' •' ' called. 
 
 are established directly or immediately by authors of three 
 kinds : — by monarchs, or sovereign^ bodies, as supreme politi- 
 cal superiors : by men in a state of subjection, as gubprdinate 
 political superiors: by subjects, as private- persons, in pur- 
 suance of legal rights. But every positive law, or every law 
 strictly so called, is a direct or circuitous command of a 
 monarch or sovereign number in the character of political 
 superior: that is to say, a direct or circuitous command 
 of a monarch or sovereign number to a person or persons in 
 a state of subjection to its author. And being a command 
 (and therefore flowing from a determinate source), every 
 positive law is a law proper or a law properly so called. 
 
 139. Besides the human laws which I style positive law, The gen- 
 there are human laws which I style positive morality, rules ""* "''"* 
 of positive morality, or positive moral rules. The generic positire 
 character of laws of the class may be stated briefly in the ™°''*^ 
 following negative manner. No law belonging to the class 
 
 is a direct or circuitous command of a monarch or sovereign 
 number in the character of political superior. 
 
 140. But of positive moral rules, some are lawp proper, or Of positive 
 laws properly so called : others are laws improper, or laws ™°"^ 
 improperly so called. some'are 
 
 141. The positive moral rules which are laws properly so ^'■^^ P"- 
 called, are distinguished from other laws by the union of 0^5,3°^^, 
 two marks. — 1. They are imperative laws or rules set by laws im- 
 men to men. 2. They are not set by men as political P™P*'- 
 superiors, nor are they set by men as private persons, in y^' ^^n\ 
 pursuance of lega,l rights. Inasmuch as they bear the latter rules 
 
 of these two marks, they are not commands of sovereigns J^^°^ "• 
 in the character of political superiors. Consequently, they perly so 
 are not positive laws : they are not clothed with legal °^^^^> 
 
 -,,,.,„., , sue com- 
 
 sanctions, nor do they oblige legally the persons to whom mand$. 
 
42 THE DIFFERENT, KINDS OF LAWS 
 
 they are set. But being^Mmgian^ (and therefore being 
 established by determinate individuals or bodi^), they are 
 laws properly so called - they are armed with sanctions, and 
 impose duties, in the proper acceptation of the terms. 
 
 142. Of positive moral rules which are laws properly so 
 called, some are established by men who are not subjects, 
 or are not in a state of subjection to a monarch or sovereign 
 number. Of these some are established by men living in 
 the negative state which is styled a state of Jiature or a 
 state of anarchy : that is to say, by men who are 7wt members, 
 sovereign or subject, of any political society: others are 
 established by sovereign individuals or bodies, but not in 
 the character of political superiors. 
 
 143. Of laws properly so called which are set by subjects, 
 some are set by subjects as subordinate political superiors ; 
 others are set by subjects as private persons : Meaning by 
 'private persons,' subjects not in the class of subordinate 
 political superiors, or subordinate political superiors not 
 considered as such.— 4liaws set by subjects as subordinate 
 political superiors, are positive laws : they are clothed with 
 legal sanctions, and impose legal duties.^ They are set by 
 sovereigns or states in the character of political superiors, 
 although they are set by sovereigns circuitously or remotely. 
 Although they are made directly by subject or subordinate 
 authors, they are made through legal rights granted by 
 sovereigns or states, and held by those subject authors as 
 mere trustees for the granters. Of laws set by subjects as 
 private persons, some are not established by sovereign or 
 supreme authority. And these are rules of positive morality : 
 they are not clothed with legal sanctions, nor do they oblige 
 legally the parties to whom they are set.— But of laws set 
 by subjects as private persons, others are set or established" 
 in pursuance of legal rights residing in the subject authors. 
 And these are positive laws or laws strictly so called. 
 
THE DIFFERENT KINDS OF LAWS 43 
 
 Although they are made directly by subject authors, they 
 are made in pursuance of rights granted or conferred by 
 sovereigns^ in the character of political superiors : they 
 legally oblige the parties to whom they are set, or are clothed 
 with legal sanctions. They are commands of sovereigns as 
 political superiors, although they are set by sovereigns cir- 
 cuitously or remotely. 
 
 144. A law set by a subject as a private person, but in pur- Laws set 
 suance of a legal right residing in the subject author, is either ^.™^' ** 
 a positive law purely or simply, or it is a positive law as persons, in 
 viewed from one aspect, and a rule of positive morality as P^"u»nce 
 viewed from another. The person who makes the law in rights, 
 pursuance of the legal right, is either legally bound to make 
 
 the law, or he is not. In the first case, the law is a positive 
 law purely or simply. In the second case, the law is com- 
 pounded of a positive law and a positive moral rule. 
 
 145. For example, A guardian may have a right over his 
 pupil or ward, which he is legally bound to exercise, for the 
 benefit of the pupil or ward, in a given or specified manner. 
 Now if, in pursuance of his right, and agreealjly to his duty or 
 trust, he sets a law or rule to the pupil or ward, the law is a 
 positive law purely or simply. It is properly a law which the 
 state sets to the ward through its minister or instrument 
 the guardian. It is not made by the guardian of his own 
 spontaneous movement, or is made in pursuance of a duty 
 which the state has imposed upon him. The position of the 
 guardian is closely analogous to the position of subordinate 
 political superiors ; who hold their delegated powers of direct 
 or judicial legislation as mere trustees for the sovereign 
 granters. 
 
 146. Again : the master has legal rights, over or against 
 his slave, which are conferred by the state upon the master 
 for his own benefit. And, since they are conferred upon him 
 for his own benefit, he is not legally bound to exercise or use 
 
44 THE DIFFERENT KINDS OF LAWS 
 
 them. Now if, in pursuance of these rights, he sets a law to 
 his slave, the law is compounded of a positive law and a 
 positive moral rule. Being made by sovereign authority, and 
 clothed by the sovereign with sanctions, the law made by 
 the master is properly a positive law. But, since it is made 
 by the master of his own spontaneous movement, or is not 
 made by the master ia pursuance of a legal duty, it is 
 properly a rule of positive morality, as well as a positive 
 law. I'hough the law set by the master is set circuitously 
 by the sovereign, it is set or established by the sovereign at 
 the pleasure of the subject author. The master is not the 
 instrument of the sovereign or state, but the sovereign or 
 state is rather the instrument of the master. 
 
 147. Laws which are positive law as viewed from one 
 aspect, but which are positive morality as viewed from 
 another, I place simply or absolutely in the first of those 
 capital classes. If, affecting exquisite precision, I placed 
 them in each of those classes, I could hardly indicate the 
 boundary by which those classes are severed without resort- 
 ing to expressions of repulsive complexity and length, 
 caaasifioa-, 148. It appears from the foregoing distinctions, that 
 
 tion of I positive moral rules which are laws properly so called are 
 
 positive I , . 
 
 moral / of three kinds. — 1. Those which are set by men living in a 
 
 rules I state of nature. 2. Those which are set by sovereigns, but 
 
 which are . , . - . . , . ^^ , 
 
 j^^g ] not by sovereigns as political superiors. 3. Those which are 
 
 proper. I set by Subjects as private persons, and are not set by the 
 subject authors in pursuance of legal rights. 
 
 Examples. 149. To cite an example of rules of the first kind were 
 superfluous labour. A man living in a state of natui'e may 
 impose an imperative law : though, since the man *s in a 
 state of nature, he cannot impose the law in the character of 
 sovereign, and cannot impose the law in pursuance of a legal 
 right. And the law being imperative (and therefore proceed- 
 ing from a determinate source) is a law properly so called: 
 
THE DIFFERENT KINDS OF LAWS 45 
 
 though, for want of a sovereign author proximate or remote, 
 it is not a positive law but a rule of positive morality. 
 
 150. An imperative law set by a sovereign to a sovereign, 
 or by one supreme government to another supreme govern- 
 ment, is an example of rules of the second kind. Since no 
 supreme government is in a state of subjection to another, an 
 imperative law set by a sovereign to a sovereign is not set 
 by its author in the character of political superior. Nor is 
 it set by its author in pursuance of a legal right : for every 
 legal right is conferred by a supreme government, and is 
 conferred on a person or persons in a state of subjection to 
 the granter. Consequently, an imperative law set by a 
 sovereign to a sovereign is not a positive law or a law 
 strictly so called. But being imperative (and therefore pro- 
 ceeding from a determinate source), it amounts to a law in 
 the proper signification of the term, although it is purely or 
 simply a rule of positive morality. 
 
 151. If they be set by subjects as private persons, and 
 not in pursuance of legal rights, the laws following are 
 examples of rules of the third kind: namely, imperative laws 
 set by parents to children ; imperative laws set by masters 
 to servants; imperative laws set by lenders to borrowers; 
 imperative laws set by patrons to parasites. Being im- 
 perative (and therefore proceeding from determinate sources), 
 the laws foregoing are laws properly so called : though, if 
 [ihey be set by subjects as private persons, and be not set by 
 
 eir authors in pursuance of legal rights, they are not posi- 
 
 ^e laws but rules of positive morality. 
 
 •152. Again: a club or society of men, signifying its 
 collective pleasure by a vote of its assembled members, 
 passes or makes a law to be kept by its members severally 
 under pain of exclusion from its meetings. Now if it be 
 made by subjects as private persons, and be not made 
 by its authors in pursuance of a legal right, the law voted 
 
46 THE DIFFERENT KINDS OF LAWS 
 
 and passed by the assembled members of the club is a 
 
 further example of rules of the third kind.* 
 
 152. Q. (I) Austin divides commands set by subjects into foui 
 classes : — 
 
 (a) Those set by subjects as political subordinates. 
 
 (b) Those set by subjects as private persons in pursuance of 
 legal rights, but not as subject to a legal duty ; 
 
 (c) Those set by subjects as private persons in pursuance of 
 legal rights, and also as subject to a duty. 
 
 (d) Those set by subjects as private persons and ■ not in 
 pursuance of legal right. 
 
 Suggest concrete examples of these different classes. 
 
 (2) Which of the above-mentioned classes are positive laws? 
 
 (3) Into which of the classes should the following be placed : 
 (i) The order of a guardian to his ward 
 
 (a) to marry X, 
 
 (b) not to marry Y, 
 
 (c) to abstain from smoking, 
 
 (d) to take lessons in music, 
 
 (ii) The command of a husband to his wife not to contract debts 
 in his name. 
 
 (iii) A resolution of a boating club increasing 
 (a) the entrance fee 
 (6) the annual subscription^ 
 
 Note. — Autonomic Laws. — In the complete edition of his 
 Lectures, Austin says: "Another species of law not made by 
 the supreme legislature are laws (if such they can be called) 
 which are established by private persons, and to which the 
 supreme legislature lends its sanction. These (in truth) are 
 nothing but obligations imposed by virtue of rights which the 
 legislator has conferred. For example, by my will, I may impose 
 certain conditions on my devisees or legatees. By virtue of a 
 contract, the contracting parties impose upon one another certain 
 obligations." i This language should be carefully compared with 
 sections 144-7, which appear as a note in the complete edition 
 and raise several difficulties. Private persons are said to impose 
 rules in pursuance of legal rights. These rules are said to be 
 positive laws. But no adequate guidance is suggested for de- 
 termining the precise conditions under which a rule may be 
 said to be set in pursuance of a legal right. Had this diffi- 
 culty been duly considered by Austin, he would not have failed 
 to recognize that a legal right to set rules of conduct must be 
 carefuUy distinguished from a legal right to set positive laws. 
 
 ' II, 524. 
 
THE DIFFERENT KINDS OF LAWS 47' — 
 
 t 153. The positive moral rules which are laws improperly The posi- 
 Iso called, are laws set or imposed Jyy general opinion : that is f ^® "*"* 
 
 Many general commands of subjects to subjects, though set in ^^^ ^^_ 
 pursuance of a legal right and directly or indirectly enforced properly 
 by the State, establish no new law, but only bring into oper- go called, 
 ation some existing law. Austin appears to be conscious of the 
 fact in the second volume of his work, but to have overlooked 
 it in his first volume. X enters into a contract with Y, and 
 subsequently gives to T an order within a reasonable interpreta- 
 tion of the original contract. A rule of conduct is imposed on Y; 
 if Y refuses to observe this rule he may be sued for a breach of 
 contract. In such a case there is of course no new law ; the real 
 law applicable to the case is the very important one that agree- 
 ments which fulfil certain conditions shall bind the parties. Again, 
 Austin speaks of the commands of a guardian to his ward as 
 positive laws, but it is not easy to find examples which justify this 
 statement. In the case of Hall v. Hall, an application was made 
 to compel a boy of fifteen to return to Eton, where he had been 
 placed by his guardian. Lord Chancellor Hardwicke said that the 
 guardian was the proper judge of the school to which the youth 
 was to be sent, that the school was of very great reputation, and 
 that if he refused to go he would be compelled. The Lord 
 Chancellor quoted an instance in Lord Macclesfield's time of an 
 undergraduate who, on the application of his guardian, was sent 
 back to Cambridge in the custody of Lord Macclesfield's tipstafi^.^ 
 This is very far from saying that a general command of a 
 guardian, in fulfilment of his responsibilities as guardian, is a posi- 
 tive law. Where the State enforces a command of the guardian, 
 it does so merely in fulfilment of the general law that a ward 
 shall render reasonable obedience. 
 
 On the other hand, if B, for his own amusement, touches the 
 alarm signal of a railway train when half-way between two 
 stations, he breaks a by-law of the railway company and becomes 
 liable to a fine of £5. It is clear that a positive law has been 
 set to individuals by an authority which legislates in virtue of 
 a delegation from the sovereign power. A very obvious differ- 
 ence exists between this case and that of a guardian ordering 
 his ward to rise each morning at a certain hour. In the case 
 of the railway by-law, a power of imposing rules and of attaching 
 to them a definite sanction is expressly granted by the State. 
 The State will enforce the sanction through the courts ; whereas, 
 in the case of the guardian and ward, the State will upliold 
 generally the authority of the guardian without necessarily taking 
 
 > 3 Atk. 721. 
 
48 THE DIFFERENT KINDS OF LAWS 
 
 j to say, by the general opuiion of any class or any society of 
 I persons. For example, some are set or imposed by the 
 
 into consideration any particular sanction which the guardian 
 may have attached to his command. 
 
 The case of club rules, referred to by Austin, also deserves con- 
 sideration, A man who joins a social club brings himself within the 
 operation of its rules, including the rule as to payment of subscrip- 
 tion. He may be sued for the subscription. If he violates the 
 general rules, he may be expelled from the club. His expulsion, if 
 carried out in a proper and formal manner, will be upheld by the 
 courts. According to the constitution of most clubs, a member is 
 bound by new rules which have been passed by the majority in 
 ■ opposition to his wishes. He may be compelled to observe these new 
 rules under penalty of expulsion. On a superficial view, the club 
 may seem to be a number of private persons who set positive laws 
 in pursuance of a legal right. Bules of conduct are imposed, and 
 somewhere or other behind them is the force of the State. On 
 a second view of the matter, however, I think it will be clear that 
 the court does not enforce club rules as such, but only as being 
 the terms of a contract. "The plaintiflF," said Vice-Chancellor 
 Bacon, in a leading case on club law, "has made the law for 
 himself, in this case, by becoming a member, and thereby sub- 
 mitting to the rules, and he must be bound by it. . . . The case 
 is governed by a written agreement to which the plaintiff has 
 given his assent, and I base my decision on the clear-writtea 
 contract between the parties." ^ Where the constitution of a club 
 does not provide for the revision of the rules, a new rule requires 
 the assent of all the members.^ 
 
 Apart from the objection just considered, that many general 
 commands, though enforced by the State, merely bring some 
 existing law into operation, difficulties of another kind arise in 
 connection with the distinction between legislative and executive 
 functions. As Professor Gray remarks, if jurisprudence, defined 
 as the science of the commands of the sovereign, is to be extended 
 to include judge-made law, it ought to be extended to in- 
 clude colonel-made and postmaster-made law. Jurisprudence, 
 he urges, should include those commands of the sovereign, the 
 main object of which is to define and enforce rights, as opposed to 
 furnishing machinery for other ends, e.g. building of roads, distri- 
 bution of letters, and the maintenance of army discipline.* The 
 difficulty which exists with regard to such cases is discussed 
 
 ^ Lyttelton v. Blackburne, 45 L. J. Ch. 223. 
 
 ' DoAiMns V. Antrobus, 17 Ch. D. 620. 
 
 ' " Harvard Law Review," April, 1892, p. 25. 
 
THE DIFFERENT KINDS OF LAWS 49 
 
 general opinion of persons who are members of a profession 
 or calling : others, by that of persons who inhabit a town or 
 province : others, by that of a nation or independent political 
 society : others, by that of a larger society formed of various 
 nations. 
 
 154. A few species of the laws which are set by general 
 opinion have received appropriate names. — For example. 
 There are laws or rules imposed upon gentlemen by opinions 
 current amongst gentlemen. And these are usually styled 
 the rules of honour, or the laws or law of honour. — There are 
 
 by Mr. Etederic Harrison. As this learned ciitic lemaiks, it is 
 necessary to distinguish, the sanctions of administrative and 
 executive discipline from the sanctions of the law courts. " He 
 [Austin] should have pointed out the difference between the rules 
 enforced by the courts, which are laws, and rules enforced by 
 executive powers, which are regulations with which the lawyer 
 has nothing to do." i The difficulty is more easy to illustrate than 
 surmount. Some writers appear to assume that generality is a 
 sufficient test of the distinction between legislative and adminis- 
 trative action. Thus Hearn remarks that the order of a general 
 to his soldiers is not a law, because not framed "with intent 
 to establish a rule of conduct." ^ Obviously, such an order might 
 be designed expressly to establish a rule of conduct. 
 
 By whatever precise test we distinguish such rules, the im- 
 portant fact is that they must be distinguished. Positive Law as 
 the subject-matter of Jurisprudence ought not to be held to 
 include any of the following classes : — 
 
 (a) The particular commands of political superiors. 
 
 (6) The general commands of private individuals which merely 
 bring some existing law into operation. 
 
 (c) The general commands of executive discipline, with the 
 enforcement of which the courts are not directly con 
 cerned. 
 
 Differences of opinion are certain to arise with respect to the 
 precise definition of each of these classes. It is probably sufficient 
 for the student of Jurisprudence to recognize their general 
 character, and to remember that they do not properly come 
 within the sphere of his science.^ 
 
 * " Fortn^htly Review," pp. 24, 689. 
 ' " Legal Duties and Rights," p. 9. 
 s Cf. infra note on § 289. 
 
•^0 THE DIFFERENT KINDS OF LAWS 
 
 laws or rules imposed upon people of fashion by opinions 
 current in the fashionable world. And these are usually ' 
 styled the law set hy fashion. — There are laws which regardl 
 the conduct of independent political societies in their vari-l 
 ous relations to one another: Or, rather, there are laws 
 which regard the conduct of sovereigns or supreme govern-, 
 ments in their various relations to one another. And laws 
 or rules of this species, which are imposed upon nations orl 
 sovereigns by opinions current amongst nations, are usually | 
 
 styled 'i/nfe.fl^ftnnnnl Inni!^. < 
 
 A law set 155. Now a law set or imposed by general opinion is a 
 
 by general jg^^ improperly so called. It is styled a law or rule by an 
 
 opinion, is . 
 
 merely tii n analogical extension of the ter m. When we speak of a law 
 
 opinion ggt; ^y general opinion, we denote, by that expression, the 
 
 terminate following fact. — Some intermediate body or uncertain aggre-.j 
 
 body of gate of persons regards a kind of conduct with a sentime nt' 
 
 regard to" °^ aversion or liking. In consequence of that sentiment or 
 
 kind of opinion, it is likely that they or some of them will be dis- 
 
 con no . pigage(j yiHii a party who shall pursue or not pursue conduct 
 
 of that kind. And, in consequence of that displeasure, it is 
 
 likely that some party (what party being undetermined) wHl 
 
 visit the party provoking it with some evil or another. 
 
 156. The body by whose opinion the law is said to be set, 
 does not command, expressly or tacitly, that conduct of the 
 given kind shall be forborne or pursued. For, since it^is not 
 a body precisely determined or certain, it cannot, as a body, 
 express or intimate a wish. As a body, it cannot signify a 
 wish by oral or written words, or by positive or negative 
 deportment. The so-called law or rule which its opinion is 
 said to impose, is merely the sentiment which it feels, or the 
 opinion which it holds, in regard to a kind of conduct. 
 
 157. A determinate member of the body, who opines or 
 feels with the body, may doubtless be moved or impelled, by 
 that very opinion or sentiment, to command that conduct of 
 
 I 
 
THE DIFFERENT KINDS OF LAWS 
 
 the kind shall be forborne or pursued. But the command 
 expressed or intimated by that determinate party is not a 
 law or rule imposed by general opinion. It is a law pro- 
 perly so called, set by a determinate author. — For example, 
 JThe so-called law of nations consists of opinions or senti- 
 ments current among nations generally. It therefore is nol| 
 law properly so called. But one supreme government may 
 doubtless command another to forbear from a kind of con- 
 duct which the law of nations condemns. And, though it is 
 fashioned on law which is law improperly so called, this 
 conmiand is a law in the proper signification of the term 
 Speaking precisely, the command is a rule of positive 
 morality set by a determinate author. For, as no supreme 
 government is in a state of subjection to another, the govern- 
 ment commanding does not command in its character of 
 political superior. /If t he government receiving the com- 
 mand were in a state of subjection to the other, the com- 
 mand, though fashioned on the law of nations, would amount 
 to a positive law.* 
 
 /'. 
 
 157. International Law. The propriety of clescribing Inter- 
 national Law as morality has been severely criticized by many 
 ■writers.^ Austin, in view of his recognition of a fundamental 
 distinction between a definitely organized society with determinate 
 organs for making and enforcing law, and a society which lacks 
 such organs, naturally held Positive Law and International Law 
 to belong to different categories. To do justice to his position we 
 must remember that he denies neither the analogy between Inter- 
 national and Positive Law nor the existence and practical efficiency 
 of international penalties. 
 
 Professor Westlake, on the other hand, holds that we ought not 
 to make the classification of law depend on a verbal definition aa 
 if it were an exact science, but should follow the practice approved 
 
 Science of International Law," pp, 
 Droit," 217-19 ; " L'Esprit du Droit remain," t.~I, § 11 ; Holland, 
 "Jurisprudence," 9th ed., p. 125 : Willoughby, "Nature of the State," 
 pp. 19&-200. 
 
52 THE DIFFERENT KINDS OF LAWS 
 
 158. The foregoing description of a law set by general 
 opinion imports the following consequences : — that the party 
 who will enforce it against any future transgressor is never 
 determinate and assignable. The party who actually en- 
 
 in natural history, where the classifications are founded on likeness 
 
 I to types. The leading idea which determines the use of the 
 English word law, he contends, is enforcement through action, 
 regular or irregular, of a society. Kules of International Law 
 he regards as rules approvedJbY the general op inipn of an inter- 
 national society, not as expressing conduct to he recommended 
 without heing enforced, like telling the truth or being charitable, 
 but as expressing conduct to be enforced bv aucli means as exist . 
 States do not act upon the rules as freely choosing to do so 
 in each instance, but obey them from a ggiguasion that the rules 
 are law. This mental attitude towards theruTes is considered 
 by the learned author a sufficient justification for calling them 
 law.i f 
 
 If one may venture to hold an opinion where the prophets 
 differ, I should incline to agree with the conclusion, if not with 
 all the arguments, of Professor Westlake. As a matter of fact, 
 the term International Law is at present too generally adopted 
 to admit of questioning its propriety. But apart from this, the 
 I severest accusation that can be urged against the term is simply 
 Jthat it is a trifle previou s. Just as in the history of particular 
 so'cieties there are periods when the differentiation between law 
 and morality is in the process of becoming rather than actually 
 realized — periods when a something which is to become positive 
 law is being sldwly differentiated from positive morality — so in 
 relation to the society of nations to-day there is a body of rules 
 in which a distinction is being established and developed between 
 rules which must be obeyed, if nertaiTi penalties are not in h n 
 incurred , and rules which are merely the expression of inter- 
 national comity and goodwill. Kul«s of the former class, by virtue 
 both of the popular conception of their obligatory character, and 
 of the type of organisation implied in their formulation and inter- 
 pretation, are more nearly allied to positive law than, to positive 
 niorality,and are therefore less inaccurately described as International 
 Law than as International Morality. They are law in becoming- 
 law struggling for existence, struggling to make itself good in con- 
 tradistinction from International Morality, and, Hke the customary 
 law of undeveloped societies, entitled to be called law in virtue of 
 
 1 " International Law," I. pp. 6-7. 
 
THE DIFFERENT KINDS OF LAWS 53 
 
 forces it against an actual transgressor is of necessity cer- 
 tain. But that certain party is not the executor of a 
 command proceeding from the uncertain body. He has not 
 been authorized by that uncertain body to enforce that so- 
 called law which its opinion is said to establish. He is not 
 in the position of a minister of justice appointed by the 
 sovereign or state to execute commands which it issues. He 
 harms the actual offender against the so-called law or (tu 
 speak in analogical language) he applies the sanction annexed 
 to it, of his own spontaneous movement. Consequently, 
 though a party who actually enforces it is, of necessity, 
 certain, the party who will enforce it against any future 
 offender is never determinate and assignable. 
 
 159. It follows from the foregoing reasons, that a so- A brief 
 called law set by general opinion is not a law in the proper s^^™'"* 
 signification of the term. It also follows from the sameianalogy 
 
 I reasons, that if-, ia nnh a,rmfid wi't.b a. Ra.np.hinn and does notJj'^*^*"'' » 
 T , ■ , 1 . . ■ 1. , 1 • \l*w proper 
 
 impose a duty, m the proper acceptation of the expressions.|an,i a law 
 Por a sanction, properly an called , is an evil annexed to a set by 
 command. And duty properly so called is an obnoxious- ^^0™^ 
 ness to evils of the kind. But a so-called law set by general 
 opinion is closely analogous to a law in the proper significa- 
 tion of the term. And, by consequence, the so-called sanc- 
 tion with which the former is armed, and the so-called duty 
 which the former imposes, are closely analogous to a sanction 
 and a duty in the proper acceptation of the expressions.* 
 
 160. The analogy between a law in the proper signi- 
 
 their likeness to law strictly so called — the Positive Law, which is 
 the subject-matter of Jurisprudence. 
 
 The conditions under which municipal courts will enforce rules 
 of International Law are considered in Excursus C. In the 
 present note, I have discussed the status of International rule 
 apart from such enforcement. 
 
 159. That obedience to laws set by opinion is encouraged by 
 rewards as well as by penalties is a further and important 
 difference between this class and laws strictly so called. Sidgwick, 
 
54 THE DIFFERENT KIA'DW OF LAWS 
 
 fication of the term and a so-called law set by general 
 opinion, may be stated briefly in the following manner.— 
 1., In the case of a law properly so called, the determinate 
 individual or body by whom the law is established wishes 
 that conduct of a kind shall be forborne or pursued. In 
 the case of a law imposed by general opinion, a wish that 
 conduct of a kind shall be forborne or pursued is felt by 
 the uncertain body whose general opinion imposes it. 
 2. If a party obliged by the law proper shall not comply 
 with the wish of the determinate individual or body, he 
 probably will suffer, in consequence of his not complying, 
 the evil or inconvenience annexed to the law as a sanction. 
 If a party obnoxious to their displeasure shall not comply 
 with the wish of the uncertain body of persons, he probably 
 will suffer, in consequence of his not complying, some evil 
 or inconvenience from some party or another. 3. By the 
 sanction annexed to the law proper, the parties obliged are 
 inclined to act or forbear agreeably to its injunctions or 
 prohibitions. By the evil which probably will follow the 
 displeasure of the uncertain body, the parties obnoxious are 
 inclined to act or forbear agreeably to the sentiment or 
 opinion which is styled analogically a law. 4. In conse- 
 quence of the law properly so called, the conduct of the 
 parties obliged has a steadiness, constancy, or uniformity, 
 which, without the existence of the law, their conduct 
 
 in discussing the relations of the two classes, remarks : "Positive 
 Law and Positive Morality may be distinguished by their respective 
 sanctions. But they also differ importantly, regarded merely as 
 intelligible systems ; since in the former case doubts as to what is 
 law may be authoritatively removed by judicial interpretation, and 
 divergences between what is and what oughi to be law may be 
 removed by legislation. But with morality it is otherwise ; hence 
 there is much greater conflict, vagueness, and uncertainty in the 
 established moral code than in the established law.''^ 
 
 ' Elements of Politics," Ist ed., pp. 191- 
 
THE DIFFERENT KllSUS OF LAWS 55 
 
 would probably want. In consequence of the sentiment or 
 opinion which is styled analogically a law, the conduct of 
 the parties obnoxious has a steadiness, constancy, or uni- 
 formity, which, without the existence of that sentiment in 
 the uncertain body of persons, their conduct would hardly 
 present.* "^ 
 
 161. In the foregoing analysis of a law set by general Distinc- 
 opinion, the meaning of the expression ' indeterminate body . "j 
 of persons ' is indicated rather than explained. To complete terminate, 
 my analysis of a law set by general opinion, I will here insert *"^ ^^ 
 a concise exposition of the following pregnant distinction : 
 namely, the distinction between a determinate and an in- 
 determinate body of single or individual persons. 
 
 162. I will first describe the distinction in general or 
 abstract terms, and will then exemplify and illustrate the 
 general or abstract description. 
 
 163. If a body of persons be determinatej all the persons 
 who compose it are determined and assignable. 
 
 164. But determinate bodies are of two kinds. Either, 
 1. The body is composed of persons determined specifically 
 or individually. Or, 2. It is composed of all the persons , 
 who belong to a given class, or who belong respectively to 
 two or more of such classes. 
 
 165. If a body be indeterminate, all the persons who com- 
 pose it are not determined and assignable. Or (changing 
 the expression) every person who belongs to 'it is not de- 
 termined, and, therefore, cannot be indicated. — For an 
 indeterminate body consists of some of the persons who 
 belong to another and larger aggregate. But how many of 
 those persons are members of the indeterminate body, or 
 
 160. Q. Admitting that in the expression laws of honour, the 
 term law is used analogically, are we also compelled to admit 
 that in the expression rules of honour the term rule is used 
 analogically 1 
 
66 THE DIFFERENT KINDS OF LAWS 
 
 which of those persons in particular are members of the 
 indeterminate body, is not and cannot be known completely 
 and exactly. 
 
 166. For example, the trading firm or partnership of A 
 B and C is a determinate body of the kind first described 
 above. Every member of the firm is determined specifically, 
 or by a character or description peculiar or appropriate to 
 himself. And every member of the firm belongs to the 
 determinate body, not by reason of his answering to any 
 generic description, but by reason of his bearing his specific 
 or appropriate character. It is as being that very individual 
 person that A B or C is a limb of the partnership. 
 
 167. The British Parliament for the time being, is a de- 
 terminate body of the second kind above "described. It 
 comprises the only person who answers for the time being 
 to the generic description of king. It comprises every person 
 belonging to the class of peers who are entitled for the 
 time being to vote in the upper house. It comprises 
 every person belonging to the class of commoners who 
 for the time being represent the commons in parliament. 
 And, though every member of the British Parliament is of 
 necessity determined by a specific or appropriate character 
 he is not a member of the parliament by reason of his 
 bearing that character, but by reason of his answering 
 to the given generic description. It is not as being the 
 individual George, but as being the individual who answers 
 to the generic description of king, that George is king 
 of Britain and Ireland, and a limb of the determinate 
 body which is sovereign or supreme therein. It is not as 
 being the individual Grey, or as being the individual Peel, 
 that Grey is a member of the upper house, or Peel a 
 member of the lower. Grey is a member of the upper 
 house, as belonging to the class of peers entitled to vote 
 therein. Peel is a member of the lower house, as answer- 
 
THE DIFFERENT KINDS OF LAWS 57 
 
 ing the generic description ' representative of the commons 
 in parliament.' 
 
 168. To exemplify the foregoing description of an inde- 
 terminate body, I will revert to the nature of a law set by 
 general opinion. Where a so-called law is set by general 
 opinion, most of the persons who belong to a determinate 
 body or class opine or feel alike in regard to a kind 
 of conduct. But the number of that majority, or the 
 several individuals who compose it, cannot be fixed or 
 assigned with perfect fulness or accuracy. For example, 
 A law set or imposed by the general opinion of a nation, by 
 the general opinion of a legislative assembly, by the general 
 opinion of a profession, or by the general opinion of a club, is 
 an opinion or sentiment, relating to conduct of a kind, 
 which is held or felt by most of those who belong to that 
 certain body. But how many of that body, or which of that 
 body in particular, hold or feel that given opinion or senti- 
 ment, is not and cannot be known completely and correctly. 
 Consequently, that majority of the certain body forms a body 
 uncertain. Or (changing the expression) the body which is 
 formed by that majority is an indeterminate portion of a 
 determinate body or aggregate. -HGenerally speaking, there- 
 fore, an indeternainate body is an indeterminate portion of a 
 body determinate or certain.) But a body or class of persons 
 may also be indeterminate, because it consists of persons of 
 a vague generic character. For example. The body or class 
 of gentlemen consists of individual persons whose generic 
 character of gentleman cannot be described precisely. 
 Whether a given man were a genuine gentleman or not, is a 
 question which different men might answer in different 
 ways. — An indeterminate body may therefore be indetermi- 
 nate after a twofold manner, v It may consist of an uncertain 
 portion of an uncertain body or class.] 
 
 169. (a determinate body of persons is capable of corporate 
 
58 THE DIFFERENT KINDS OF LAWS 
 
 conduct)| Whether it consist of persons determined hy 
 specific characters, or of persons determined or defined by 
 a character or characters generic, every person who belongs 
 to it is determined and may be indicated. In the first case, 
 every person who belongs to it may be indicated by his 
 specific character. In the second case, every person who 
 belongs to it is also knowable : For every person who answers 
 to the given generic description, or who answers to any of 
 the given generic descriptions, is therefore a member of the 
 body. Consequently, the entire body, or any proportion of 
 its members, is capable, as a body, of positive or negative 
 conduct : As, for example, of meeting at determinate times 
 and places ; of issuing expressly or tacitly a law or other 
 command ; of choosing and deputing representatives to per- 
 form its intentions or wishes; of receiving obedience from 
 others, or from any of its own members. 
 
 170. An indeterminate body is incapable of corporate con- 
 duct, inasmuch as the several persons of whom it consists 
 cannot be known and indicated completely and correctly. 
 In case a portion of its members act or forbear in concert, 
 that given portion of its members is, by that very concert, a 
 determinate or certain body. Tor example, A law set or 
 imposed by the general opinion of barristers condemns the 
 sordid practice of hugging or caressing attorneys. And'as 
 those whose opinion or sentiment sets the so-called law are 
 an indeterminate part of the determinate body of barristers, 
 they form a body uncertain and incapable of corporate con- 
 duct. But in case a number or portion of that uncertain 
 body assembled and passed a resolution to check the prac- 
 tice of hugging, that number or portion of that uncertain 
 body would be, by the very act, a certain body or aggre- 
 gate. It would form a determinate body consisting of the 
 determined individuals who assembled and passed the reso- 
 lution. — A law imposed by general opinion may be the cause 
 
THE DIFFERENT KINDS OF LAWS 59 
 
 of a law in the proper acceptation of the term. But the 
 law properly so called, which is the consequent or effect, 
 utterly differs from the so-called law which is the ante- 
 cedent or cause. The one is an opinion or sentiment of an 
 uncertain body of persons ; of a body essentially incapable of 
 joint or corporate conduct. The other is set or established 
 by the positive or negative deportment of a certain indi- 
 vidual or aggregate. 
 
 171. For the purpose of rendering my exposition as little 
 intricate as possible, I have supposed(that a body of persons, 
 forming a body determinate, either consists of persons deter- 
 mined by specific characters, or of persons determined or 
 defined by a generic description or descriptions j— But a body 
 of persons, forming a body determinate, may consist of 
 persons determined by specific or appropriate characters, and 
 also of persons determined by a character or characters 
 generic. Let us suppose, for example, that the individual 
 Oliver Cromwell was sovereign or supreme in England : or 
 that the individual Cromwell, and the individuals Ireton 
 and Fleetwood, formed a triumvirate which was sovereign 
 in that country. Let us suppose, moreover, that Cromwell 
 or the triumvirs convened a. House of Commons elected in 
 the ancient manner : and that Cromwell, or the triumvirs 
 yielded a part in the sovereignty to this representative 
 body. Now the sovereign or supreme body formed by 
 Cromwell and the house, or the sovereign and supreme body 
 formed by the triumvirs and the house, would have con- 
 sisted of a person or persons determined or defined specifi- 
 cally, and of persons determined or defined by a generic 
 character or description. A body of persons, forming a body 
 determinate, may also consist of persons determined or 
 defined specifically,^hd determined or defined moreover by 
 a character or characters generic. / A select committee of a 
 body representing a people or nation, consists of individual 
 
60 THE DIFFEBENT KINDS OF LAWS 
 
 persons named or appointed specifically to sit on that given ' 
 committee. But those specific individuals could not be 
 members of the committee, unless they answered the generic 
 description ' representative of the people or nation.' 
 
 172. It follows from the exposition immediately preced- 
 "ing'that the one or the number which is sovereign in an 
 
 independent political society is a determinate individual 
 person or a determinate body of persons^ If the sovereign 
 one or number were not determinate or certain, it could not 
 command expressly or tacitly, and could not be an object of 
 obedience to the subject members of the community.- 
 
 173. As closely connected with the matter of the exposi- 
 tion immediately preceding, the following remark concern- 
 ing supreme government may be put coihmodiously in the 
 present place.— ^In order that a supreme government may 
 possess much stability, and that the society wherein it is 
 supreme may enjoy much tranquillity, the persons who take 
 the sovereignty in the way of succession, must take or 
 acquire by a given generic mode, or by given generic modesi 
 Or (changing the expression) they must take by reason of 
 their answering to a given generic description, or by reason 
 of their respectively answering to given generic descrip- 
 tions. — For example, the Eoman Emperors or Princes did 
 not succeed to the sovereignty of the Eoman Empire or 
 World by a given generic title: by a mode of acquisition 
 given or preordained, and susceptible of generic description. 
 It was neither as lineal descendant of Julius Caesar or 
 Augustus, nor by the testament or other disposition of the 
 last possessor of the throne, nor by the appointment or 
 nomination of the Eoman people or senate, nor by the elec- 
 tion of a determinate body formed of the military class, nor 
 by any mode of acquisition generic and preordained, that 
 every successive Emperor, or every successive Prince, ac- 
 quired the virtual sovereignty of the Eoman Empire or 
 
THE DIFFERENT KINDS OF LAWS 61 
 
 World Every successive Emperor acquired by a mode of 
 acquisition which was purely anomalous or accidental : which 
 nad not been predetermined by any law or custom, or by 
 any positive law or rule of positive morality. Every actual 
 Occupant of the Imperial office or dignity (whatever may 
 have been the manner wherein he had gotten possession) 
 was obeyed, for the time, by the bulk of the military class ; 
 was acknowledged, of course, by the impotent and trembling 
 senate ; and received submission, of course, from the inert 
 and helpless mass which inhabited the city and provinces. 
 By reason of this irregularity in the succession to the virtual 
 sovereignty, the demise of an Emperor was not uncommonly 
 followed by a shorter or longer dissolution of the general 
 supreme government. Since no one could claim to succeed 
 by a given generic title, or as answering for the time being 
 to a given generic description, a contest for the prostrate 
 sovereignty almost inevitably arose between the more influ- 
 ential of the actual military chiefs^ 
 
 173. Q. Discuss the propriety of the expression, imperative, and 
 therefore proceeding from a determinate source. Examine the 
 following criticism : " To Austin the statement that a body 
 uncertain as to number cannot act as a body, and cannot, there- 
 fore, issue commands, seems so self-evident as to need no further 
 argument. To one surrounded with institutions of a ' popular ' 
 character, and accustomed, almost every day, to see goyernment 
 affected and controlled by various agencies of clamour, mass meet- 
 ing, petition, and newspaper writing, this inability of a body 
 numerically uncertain to express itself, as a body, in ways having 
 the force of command, will, I think, seem less axiomatic." ^ 
 
 Note. — The author from whom the criticism in the above 
 question is quoted, while objecting to Austin's theory of sover- 
 eignty as inhering in a specific number of individuals, admits 
 that Austin is quite right in laying emphasis upon the idea 
 of determinateness, since the idea suggests the existence of definite 
 organs. "Except as sovereignty secures for itself definite and 
 
 ' Professor Dewey, "Political Science Quarterly," March, 1894, 
 pp. 37-8. 
 
62 THE DIFFERENT KINDS OF LAWS 
 
 Laws set l74. Before I close my analysis of those laws improperly 
 
 hj general ^^ galled which are closely analogous to laws in the proper 
 opinion, . . . 
 
 the only acceptation of the term, I must advert to a seeming caprice 
 
 opinions ^f current language. A law set or imposed by general 
 or senti- ' a o ^ j ■ j , 
 
 mentsthat opinion, is an opmion or sentiment,\ regarding conduct of a 
 
 have got- kind, which is held or felt by an indeterminate body : that ie 
 name of ^^ ^^7' ^^ indeterminate portion of a certain or uncertain 
 laws. aggregate. Now a like opinion or sentiment held or felt by 
 an individual, or held or felt universally by the members of 
 a body determinate, may be as closdy analogous to a law 
 proper as a so-called law set by general opinion. It may 
 bear an analogy to a law in the proper acceptation of the 
 term, exactly or nearly resembling the analogy to a law 
 proper which is borne by an opinion or sentiment of an 
 indeterminMe body. An opinion, for example, of a patron, in 
 regard to conduct of a kind, may be a law or rule to his own 
 dependant or dependants, just as a like opinion of an in- 
 determinate body is a law or rule to all who might sufifer by 
 provoking its displeasure. And whether a like opinion be 
 held by an uncertain aggregate, or be held by every member 
 of a precisely determined body, its analogy to a law proper is 
 exactly or nearly the same. 
 
 175. Deferring to this seeming caprice of current or es- 
 tablished language, I have forborne from ranking sentiments 
 of precisely determined parties with the laws improperly so 
 
 definable modes of expiession, sovereignty is unrealized and 
 I inchoate." 1 The remark rer.alla Thp^inp's definition of the Rtata ag 
 I the re gulated and assured exercise of social compulsio n. It , 
 I suggests, moreover, the possibility of distinguishing beiween legal 
 and moral rules by reference to a difference in the ^£giee_af 
 organization which may exist for the purposes of their expression, 
 interpretation, and enforcement. The whole question is involved 
 with certain theories of sovereignty which I discuss in Ex- 
 cursus A and B. 
 
 ' Ibid., pp. 51-2. 
 
THE DIFFERENT KINDS OF LAWS 63 
 
 called which are closely analogous to the proper. Yet with 
 a few slight and obvious changes, my analysis of a law set 
 by general opinion will serve as an analysis of a law set by 
 any opinion. For between the opinion or sentiment of the v_^ 
 indeterminate body, and the opinion or sentiment of the / 
 precisely determined party, there is merely the following | 
 difference. — The precisely determined party is capable of 
 issuing a command in pursuance of the opinion or sentiment. 
 But the uncertain body is' not. For, being essentially in- 
 capable of joint or corporate conduct, it cannot, as a body, 
 signify a wish or desire, and cannot, as a body, hold an 
 intention or purpose.* 
 
 176. It appears from the expositions in the preceding The fore- 
 portion of my discourse, that laws properly so called, with f^'^^^.*^ 
 such improper laws as are closely analogous to the proper, of laws 
 are of three capital classes. — 1. The law of God. 2. Positive ^^^7 
 law. 3. Positive morality. lated. 
 
 177. It also appears from the same expositions, that posi- 
 tive mOTal rules are of two species. — 1. Those positive moral 
 rules which are express or tacit commands, and which are 
 therefore laws in the proper acceptation of the term. 
 2. Those laws improperly so called (but closely analogous to 
 laws in the proper acceptation of the term) which are set by 
 general opinion, or are set by opinion: which are set by 
 opinions of uncertain bodies; or by opinions of uncertain 
 bodies, and opinions of determinate parties. 
 
 175. Q. (1) What is the precise character of the relation 
 between " the opinions of precisely determined parties " and " the 
 implied commands of a determinate superior " f 
 
 (2) Apply Austin's test of the distinction between determinate 
 and indeterminate bodies to the following : — 
 
 (a) The colliers of Wales. 
 
 (b) The lunatics of the United Kingdom. 
 
 (c) Nonconformists. 
 
 (d) Non-Freemasons. 
 
64 THE DIFFERENT KINDS OF LAWS 
 
 The 178. The sanctions annexed to the laws of God, may be 
 
 oorreB- styled religious. — The sanctions annexed to positive laws, 
 sanctions, may be styled, emphatically, legal: for the laws to which 
 duties and ^.j^gy. ^j,g annexed, are styled, simply and emphatically, laws 
 or Idw. Or, as every positive law supposes a TroXty or civitas, 
 or supposes a society political and independent, the epithet 
 political may be applied to the sanctions by which such laws 
 are enforced. — Of the sanctions which enforce compliance 
 with positive moral rules, some are sanctions properly so 
 called, and others are styled sanctions by an analogical ex- 
 tension of the term: that is to say, some are annexed to 
 rules which are laws imperative and proper, and others en- 
 force the rule which are laws set by opinion. Since rules of 
 either species may be styled positive morality, the sanctions 
 which enforce compliance with rules of either species may be 
 styled moral sanctions. Or (changing the expression) we 
 may say of rules of either species, that they are sanctioned 
 or enforced morally. 
 
 179. The duties imposed by the laws of God may be 
 styled religious. — The duties imposed by positive laws, may 
 be styled, emphatically, legal. — Of the duties imposed by 
 positive moral rules, some are duties properly so called, and 
 others are styled duties by an analogical extension of the 
 term : that is to say, some are creatures of rules which are 
 laws imperative and proper, and others are creatures of the 
 rules which are laws set by opinion. Like the sanctions 
 proper and improper by which they are respectively en- 
 forced, these duties proper and improper may be styled 
 TnoraV 
 
 180. Every right supposes a duty incumbent on a party 
 or parties other thah the party entitled. Through the im- 
 
 179. Q. X has committed a theft. Is he under a legal duty 
 
 (a) to surrender to justice ? 
 
 {h) to submit to the punishment which the judge imposes 1 
 
THE DIFFERENT KINDS OF LAWS 65 
 
 position of that corresponding duty, the right was conferred. 
 Through the continuance of that correspondii^ duty, the 
 right continues to exist. If that corresponding duty be the 
 creature of a law imperative, the right is a right properly 
 so called. If that corresponding duty be the creature of a 
 law improper, the right is styled a right by an analogical ex- » 
 tension of the term. Eights conferred by the law of God, or 
 rights existing through duties imposed by the law of God, 
 may be styled IHvine. — Eights conferred by positive law, or 
 rights existing through duties imposed by positive law, may 
 be styled, emphatically, legal. Or it may be said of r^hts 
 conferred by positive law, that they are sanctioned or pro- 
 tected legally. — The rights proper and improper which are 
 conferred by positive morality, may be styled moral. Or it 
 may be said of rights conferred by positive morality, that 
 they are sanctioned or protected morally.' 
 
 181. The body of laws which may be styled the law of The coin- 
 God, the body of laws which may be styled positive law, ""^^"^ 
 and the body of laws which may be styled positive morality, flict of 
 sometimes coincide, sometimes do not coincide, and some- ^*''*- 
 times conflict. 
 
 182. One of these bodies of laws coincides with another, 
 when acts, which are enjoined or forbidden by the former, 
 are also enjoined, or are also forbidden by the latter. For 
 example. The killing which is styled murder is forbidden 
 by the positive law of every political society; it is also 
 forbidden \(j a so-called law which the general opinion of the 
 society has set or imposed ; it is also forbidden by the law 
 of God as known through the principle of utility. 
 
 183. One of these bodies of laws does rwt coincide with 
 
 180. Austin defines a legal right as follows: "A party has 
 a right, when another or others are bound or obliged by the 
 law, to do or to forbear towards or in regard of him." * 
 
 "Jurisprudence," I, p. 393. 
 
66 THE DIFFERENT KINDS OF LAWS 
 
 another, when acts, which are enjoined or forbidden by the 
 former, are not enjoined, or are not forbidden by the latter. 
 For example, Though smuggling is forbidden by positive 
 law, and (speaking generally) is not less pernicious than 
 theft, it is not forbidden by the opinions or sentiments 
 of the ignorant or unreflecting. Where the impost or tai 
 is itself of pernicious tendency, smuggling is hardly forbidden 
 by the opinions or sentiments of any : And it is therefore 
 practised by any without the slightest shame, or without 
 the slightest fear of incurring general censure. Such, for 
 instance, is the case where the impost or tax is laid upon 
 the foreign commodity, not for the useful purpose of raising 
 a public revenue, but for the absurd and mischievous 
 purpose of protecting a domestic manufacture. Offences 
 against the game laws are also in point : for they are not 
 offences against positive morality, although they are forbidden 
 by positive law. A gentleman is not dishonoured, or generally 
 shunned by gentlemen, though he shoots without a qualifi- 
 cation. A peasant who wires hares escapes the censure 
 of peasants, though the squires, as doing justiceship, send 
 him to the prison and the tread-mill. 
 
 184. One of these bodies of laws conflicts vnth another, 
 when acts, which are enjoined or forbidden by the former, 
 are forbidden or enjoined by the latter. For example. In 
 most of the nations of modern Europe, the practice ol 
 duelling is forbidden by positive law. It is also at variance 
 with the law which is received in most of those nations 
 as having been set by the Deity in the way of express 
 revelation. But in spite of positive law, and in spite of his 
 religious convictions, a man of the class of gentlemen may 
 be forced by the law of honour to give or to take a challenge. 
 If he forbore from giving, or if he declined a challenge, he 
 might incur the general contempt of gentlemen or men 
 of honour, and might meet with slights and insults sufficient j 
 
THE DIFFERENT KINDS OF LAWS 67 
 
 to embitter his existence. The negative legal duty which 
 certainly is inciunbent upon him, and the negative religious 
 duty to which he believes himself subject, are therefore 
 mastered and controlled by that positive moral duty which 
 arises from the so-called law set by the opinion of his class. 
 185. The simple and obvious considerations to which I 
 have now adverted, are often overlooked by legislators. If 
 they fancy a practice pernicious, or hate it they know not why, 
 they proceed, without further thought, to forbid it by positive 
 law. They forget that positive law may be superfluous or 
 impotent, and therefore may lead to nothing but purely gra- 
 tuitous vexation. They forget that the moral or the religious 
 sentiments of the community may already suppress the prac 
 tice as completely as it can be suppressed; or that, if the practice 
 is favoured by those moral or religious sentiments, the strongest 
 possible fear which legal pains can inspire may be mastered 
 by a stronger fear of other and conflicting sanctions.* 
 
 185. Q. Is the phrase "frequent coincidence of positive law 
 and positive morality " consistent with Austin's definition of law-i 
 by analogy as rules set and enforced by mere opinion f ^ 
 
 Note. — CotTicidenee and conflict of laws. — Austin's account of 
 the coincidence and conflict of laws suggests the following diagram 
 of three circles representing respectively the Law of God, Positive 
 law, and Positive MoraUty : — 
 
 \PosHive Law 
 Law of God 
 
 /Positive Vorality 
 
 Rules which come under classes a, c, and g are readily 
 
 » Cf. §§ 6, 111, 163, 182, 187. 
 
68 THE DIFFERENT KINDS OF LAWS 
 
 186. In consequence of the frequent coincidence of positive 
 Jaw and morality, and of positive law and the law of God, the 
 true nature and fountain of positive law is often absurdly 
 mistaken by writers upon jurisprudence. Where positive 
 
 suggested. Thus " Be ye perfect " illustrates class a. It is a Law 
 of God which is neither a Positive Law nor a rule of Positive 
 Morahty. An Act of Parliament popularly regarded as immoral 
 would illustrate class c. The rule that a man must avenge an 
 insult may be quoted as an example of g. When, however, 
 we attempt to give examples of rules coming under the re- 
 maining classes, we are confronted by a difficulty of which 
 the existence is suggested in the question preceding the present 
 note. If a law by analogy be defined as a law set and enforced 
 by mere opinion, then a rule of conduct which, in addition to being 
 enforced by popular sentiment, is also enforced by the State, might 
 seem to be taken ipso facto out of the sphere of Positive Morality. 
 This however is not Austin's meaning. Eeflection upon the fact 
 serves to emphasize his general point of view of laws as rules set 
 by superiors to inferiors. Homicide, in so far as it is prohibited 
 by popular sentiment, is prohibited by a rule set by mere opinion 
 and accordingly by a rule of positive morality. The rule is quite 
 distinct from the corresponding Positive Law, if not as to scope, at 
 least as to source and sanction. Strictly speaking, the phrase 
 coincidence of Positive Morality and Law is not a happy one, 
 since the coincidence is less one of rules than of the acts and for- 
 bearances which rules are designed to regulate. 
 
 If, however, we regard the above diagram as referring to acts 
 or forbearances, we have to face another difficulty. The act of 
 killing a man from trifling motives may be quoted as illus- 
 trating class e, since it is an ait condemned by all three systems. 
 But let us suppose that Parliament passes a Bill imposing a 
 tax on bachelors, which is to be paid annually. Would a refusal 
 to pay this tax be at once a violation of the Law of God and of 
 Positive Lawl If we answer this question in the negative we 
 seem to overlook the fact that divine law ordains loyalty to the 
 State and to the law of the State in all things " lawful" If we 
 answer in the affirmative we make nearly all disobedience to 
 Positive Law disobedience to divine law. Popular usage limits the 
 conception of an act in conflict with the Law of God to acts which 
 immediately contravene, either a special divine precept, or one 
 of the fundamental rules of morality. A similar reflection is 
 suggested in considering the relation of Positive Law to Positive 
 Morality. We speak of an act as being in contravention of 
 Positive Morality when it directly and immediately contravenes 
 
THE DIFFERENT KINDS OF LAWS 69 
 
 law has been fashioned on positive morality, or where 
 positive law has been fashioned on the law of God, they 
 forget that the copy is the creature of the sovereign, and 
 impute it to the author of the model. 
 
 187. For example: Customary laws are positive laws 
 fashioned by judicial legislation upon pre-existing customs. 
 Now, till they become the grounds of judicial decisions 
 upon cases, and are clothed with legal sanctions by the 
 sovereign one or number, the customs are merely rules 
 set by opinions of the governed, and sanctioned or enforced 
 morally : Though, when they become the reasons of judicial 
 decisions upon cases, and are clothed with legal sanctions 
 by the sovereign one or number, the customs are rules of 
 positive law as well as of positive morality. But, because 
 the customs were observed by. the governed before they 
 were clothed with sanctions by the sovereign one or number, 
 it is fancied that customary laws exist as positive laws by 
 the institution of the private persons with whom the customs 
 originated. 
 
 some popularly accepted principle of conduct. If, in the case just 
 suggested, a bachelor refuses to pay his tax, we do not think of his 
 act as being contrary to Positive Morality, save in so far as we con- 
 sciously refer to the generally accepted rule that a citizen should 
 abide by the laws, and so regard the act as a sort of rebellion. 
 
 The above considerations must be borne in mind if we are 
 to make any use of the suggested diagram. If we regard the 
 several circles as referring to rules, not to acts, we must remember 
 that rule in such a case is considered in detachment from the 
 source from which it draws its authority, and the sanction by 
 which it is enforced. "Thou shalt not steal," from this point 
 of view, may be regarded as at once a Law of God, a Positive 
 Law, and a rule of Positive MoraUty. If, on the other hand, we 
 regard the circles as referring to acts, not to rules, we must 
 remember that an act is not in contravention of a system of rules 
 unless it is directly and immediately prohibited by that system. 
 
 Q. Illustrate each of the classes in the above diagram, regard- 
 ing the circles as referring 
 
 (a) to rules, 
 
 (b) to acts and forbearances. 
 
70 THE DIFFERENT KINDS OF LAWS 
 
 188. Again: The portion of positive law which is parcel of 
 the law of nature (or, in the language of the classical jurists, 
 which is parcel of the jus gentium) is often supposed to 
 emanate, even as positive law, from a Divine or Natural source. 
 But (admitting the distinction of positive law into law natural 
 and law positive) it is manifest that law natural, considered 
 as a portion of positive, is the creature of human sovereigns, 
 and not of the Divine monarch. To say that it emanates, as 
 positive law, from a Divine or Natural source, is to confound 
 positive law with law whereon it is fashioned, or with law 
 whereunto it conforms.* 
 
 188. The Law of Nature. — The term Law of Nature is used in 
 several distinct senses, of which the following are the moat 
 important : — 
 
 (1) The whole code of moiH duty as determined by Eeason 
 as distinct from Revelation. 
 
 (2) The ideal totality of the rules of conduct thought fit for 
 political enforcement. 
 
 (3) The statement of the sequences of natural or social pheno- 
 mena. In this sense the term law could only be applied, accord- 
 ing to Austin, by metaphor. Moreover, it is used concretely to 
 indicate a particular instance, not a class. To indicate the class, 
 the plural must be employed. So it has been remarked of 
 yavigny that he substituted natural laws for Natural Law. The 
 subject will receive further consideration in discussing laws by 
 metaphor. 
 
 Austin's remark on the relation of the Law of Nature to 
 Positive Law may seem obvious. That it was not always so 
 may be illustrated by the following dictum from the argument 
 in Calvin's case : " The legeance or faith of the subject is due 
 to the king by the law of nature, which is part of the law 
 of England; existed before any judicial or municipal law, and 
 is immutable." 1 "The mediaeval notion of sovereignty," writes 
 Dr. Gierke, "always differed from that exalted notion which 
 prevailed in after times. For one thing, there was unanimous 
 agreement that the Sovereign Power, though raised above all 
 Positive, is limited by Natural Law." ^ 
 
 ' Broom, " Constitutional Law," p. 17. 
 
 ' Gierke, " Political Theories of fixe Middle Age," p. 95. 
 
THE DIFFERENT KINDS OF LAWS 71 
 
 189. I may here note a prevailing tendency to confound 
 what is with what ought to be law or morality, that is, 
 1st, to confound positive law with the science of legislation, 
 and positive morality with deontology; and 2ndly, to con- 
 found positive law with positive morality, and both with 
 legislation and deontology.* 
 
 190. The existence of law is one thing ; its merit or 1st. Ten- 
 demerit is another. Whether it be or be not is one inquiry ; '^*°?^ *°, 
 
 ^ •' ' confound 
 
 whether it be or be not conformable to an assumed standard, positive 
 
 is a different inquiry. This truth, when formally announced ^*^ '?*'' 
 
 the science 
 as an abstract proposition, is so simple and glaring that it of legisla- 
 
 seems idle to insist upon it. But simple and glaring as *^<"^ f"** 
 
 it is, when enunciated in abstract expressions, the enumera- morality 
 
 tion of the instances in which it has been forgotten would ^'t^ <!«<>"• 
 
 fill a volume. ° °^' 
 
 191. Sir William Blackstone, for example, says in his 
 " Commentaries," that the laws of God are superior in obli- 
 gation to all other laws; that no human laws should be 
 Buffered to contradict them ; that human laws are of no 
 validity if contrary to them ; and that all valid laws derive 
 their force from that Divine original. 
 
 192. Now, he may mean that all human laws ought to 
 conform to the Divine laws. If this be his meaning, I 
 
 189. §§ 189-204 were incorporated by Mr. Bobert Campbell in 
 his edition of Austin's work, and appended at the end of the 
 present lecture.^ They are taken from certain notes made by 
 John Stuart Mill of Austin's lectures as originally delivered. 
 Mr. Campbell remarks : " I think it of some value to preserve 
 this passage, both as calculated to aid the student in applying the 
 principles stated in the text, and also as illustrative of the author's 
 mode, when orally amplifying in presence of his class the lecture 
 which in substance he always had committed to writing." I have 
 ventured to include the passages in the body of the lecture instead 
 of at the end, as they are closely connected with the subject- 
 matter of §§ 178-188. 
 
 ' I., 214-19. 
 
72 THE DIFFERENT KINDS OF LAWS 
 
 assent to it without hesitation. The evils which we are 
 exposed to suffer from the hands of God as a consequence of 
 disoheying His commands are the greatest evils to which we 
 are obnoxious; the obligations which they impose are con- 
 sequently paramount to those imposed by any other laws, 
 and if human commands conflict with the Divine law, we 
 ought to disobey the command which is enforced by the less 
 powerful sanction; this is implied in the term ought: the 
 proposition is identical, and therefore perfectly indisputable. 
 
 193. Perhaps, agaio, he means that human lawgivers are 
 themselves obliged by the Divine laws to fashion the laws 
 which they impose by that ultimate standard, because if 
 they do not, God will punish them. To this also I entirely 
 assent : for if the index to the law of God be the principle 
 of utility, that law embraces the whole of our voluntary 
 actions ih so far as motives applied from without are re- 
 quired to give them a direction conformable to the general 
 happiness. 
 
 194. But the meaning of this passage of Blackstone, if it 
 has a meaning, seems rather to be this : that no human law 
 which conflicts with the Divine law is obligatory or binding; 
 in other words, that no human law which conflicts with the 
 Divine law is a law, for a law without an obligation is a 
 contradiction in terms. I suppose this to be his meaning, 
 because when we say of any transaction that it is invalid or 
 void, we mean that it is not binding : as, for example, if it be 
 a contract, we mean that the political law will not lend its 
 sanction to enforce the contract, 
 
 195. Now, to say that human laws which conflict with 
 the Divine law are not binding, that is to say, are not laws, 
 is to talk nonsense. The most pernicious laws, and there- 
 fore those which are most opposed to the wiU of God, have 
 been and are continually enforced as laws by judicial tribu- 
 nals. Suppose an act innocuous, or positively beneficial, be 
 
THE DIFFERENT KINDS OF LAWS 73 
 
 prohibited by the sovereign under the penalty of death ; if 
 I commit this act, I shall be tried and condemned, and if I 
 object to the sentence that it is contrary to the law of God, 
 who has comnumded that human lawgivers shall not pro- 
 hibit acts which have no evil consequences, the Court of 
 Justice will demonstrate the inconclusiveness of my reason- 
 ing by hanging me up, in pursuance of the law of which I 
 have impugned the validity. An exception, demurrer, or 
 plea, founded on the law of God, was never heard in a Court 
 of Justice, from the creation of the world down to the 
 present moment. 
 
 196. But this abuse of language is not merely puerile, it 
 is mischievous. When it is said that a law ought to be dis- 
 obeyed, what is ineant is that we are urged to disobey it by 
 motives more cogent and compulsory than those by which it 
 is itself sanctioned. If the laws of God are certain, the 
 motives which they hold out to disobey any human com- 
 mand which is at variance with them are paramount to all 
 others. But the laws of God are not always certain. All 
 divines, at least all reasonable divines, admit that no scheme 
 of duties perfectly complete and unambiguous was ever 
 imparted to us by revelation. As an index to the Divine 
 will, utility is obviously insufficient. What appears per- 
 nicioi^s to one person may appear beneficial to another. 
 And as for the moral sense, innate practical principles, 
 conscience, they are merely convenient cloaks for ignorance 
 or sinister interest : they mean either that I hate the law to 
 which I object and cannot tell why, or that I hate the law, 
 and that the cause of my hatred is one which I find it 
 incommodious to avow. If I say openly, I hate the law, 
 ergo, it is not binding and ought to be disobeyed, no one will 
 listen to me : but by calling my hate my conscience or my 
 moral sense, I urge the same argument in another and a 
 more plausible form : I seem to assign a reason for my dis- 
 
74 V' THE DIFFERENT KINDS OF LAWS 
 
 like, when in truth I have only given it a sounding and 
 specious name. In times of ciAol discord the mischief of 
 this abuse of language is apparent. In quiet times the 
 dictates of utility are fortunately so obvious that the anar- 
 chical doctrine sleeps, and men habitually admit the validity 
 of laws which they dislike. To prove by pertinent reasons 
 that a law is pernicious is highly useful, because such pro- 
 cess may lead to the abrogation of the pernicious law. To 
 incite the public to resistance by determinate views of 
 utility may be useful, for resistance, grounded on clear and 
 definite prospects of good, is sometimes beneficial. But to 
 proclaim generally that all laws which are pernicious or 
 contrary to the will of God are void and not to be tolerated, 
 is to preach anarchy, hostile and perilous as much to wise 
 and benign rule as to stupid and galling tyranny. 
 Another 197. In another passage of his "Commentaries," Blackstone 
 examp e gjj^gjg ^^^q ^^ argument to prove that a master cannot have 
 a right to the labour of his slave. Had he contented him- 
 self with expressing his disapprobation, a Very well-grounded 
 one certainly, of the institution of slavery, no objection could 
 have been made to his so expressing himself. But to dis- 
 pute the existence or the possibility of the right is to talk 
 absurdly. For in every age, and in almost every nation, 
 the right has been given by positive law, whilst that per- 
 nicious disposition of positive law has been backed by the 
 positive morality of the free or master classes.* 
 
 198. Grotius, PuffendorfF, and the other writers on the 
 so-called law of nations, have fallen into a similar con- 
 
 interna- fusion of ideas : they have confounded positive international 
 tional law. 
 
 197. On the general subject of this section Sommersett'a case 
 (1771-2) and the case of Stanley v. Harvey (1762) deserve 
 attention.^ 
 
 > Broom, "Constitutional Law,'' pp. 59, 114 ; 2 Eden, p. 126. 
 
 Black- 
 Btone. 
 
 Example 
 from the 
 ■writers on 
 
THE DIFFERENT KINDS OF LAWS 75^ 
 
 morality, or the rules which actually obtain among civilized 
 nations in their mutual intercourse, with their own vague 
 conceptions of international morality as it ought to he, with 
 that indeterminate something which they conceived it would 
 be, if it conformed to that indeterminate something which 
 they call the law of nature. Professor Von Martens, of 
 Gottingen, is actually the first of the writers on the law of 
 nations who has seized this distinction with a firm grasp. 
 He distinguished the rules which ought to be received in 
 the intercourse of nations from those which are so received, 
 endeavoured to collect from the practice of civilized com- 
 munities what are the rules actually recognized and acted 
 upon by them, and gave to these rules the name of positive 
 international law. 
 
 199. I have given several instances in which law and 2nd. Ten- 
 
 morality as they ought to be are confounded with the law "^^^y *" 
 
 , confound 
 and morality which actually exist. I shall next mention positive 
 
 some examples in which positive law is confounded with '** with 
 
 positive morality, and both with the science of legislation morality 
 
 and deontology. and both 
 
 200. Those who know the writings of the Eoman lawyers ^l^^^^l 
 only by hearsay are accustomed to admire their philosophy, deonto- 
 Now this, in my estimation, is the only part of their writings ^^^' 
 which deserves contempt. Their extraordinary merit is 
 evinced not in general speculation, but as expositors of the 
 Eoman law. They have seized its general principles with 
 
 great clearness and penetration, have applied these principles 
 with admirable logic to the explanation of details, and have 
 thus reduced this positive system of law to a compact and 
 coherent whole. But the philosophy which they borrowed 
 from the Greeks, or which, after the examples of the Greeks, 
 they themselves fashioned, is naught. Their attempts to 
 define jurisprudence and to determine the province of the 
 jurisconsult are pitiable. 
 
76 THE DIFPEBENT KINDS OF LAWS 
 
 201. At the commencement of the Digest is a passage 
 attempting to define jurisprudence. I shall first present 
 you with this passage in a free translation, and afterwards 
 in the original. ' Jurisprudence,' says this definition, ' is the 
 knowledge of things divine and human ; the science which 
 teaches men to discern the just from the unjust.' 'Juris- 
 prudentia est divinarum atque humanarum rerum notitia, 
 justi atque injusti scientia.' In the excerpt from Ulpian, 
 which is placed at the beginning of the Digest, it ia 
 attempted to define the office or province of the jurisconsult 
 'Law,' says the passage, 'derives its name from justice, 
 jmtitia, and is the science or skill in the good and the 
 equitable. Law being the creature of justice, we the juris- 
 consults may be considered as her priests, for justice is the 
 goddess whom we worship, and to whose service we are 
 devoted. Justice and equity are our vocation; we teach 
 men to know the difference between the just and the unjiist, 
 the lawful and the unlawful ; we strive to reclaim them from 
 vice, not only by the terrors of punishment, but also by the 
 blandishment of rewards ; herein, unless we flatter ourselves, 
 aspiring to sound and real philosophy, and not like some 
 whom we could mention, contenting ourselves with vain and 
 empty pretension.' 'Juri operam daturum prius nosse 
 oportet, unde nomen juris descendat. Est autem a justitia 
 appellatum; nam, ut eleganter Celsus definit, jus est ars 
 boni et sequi. Cujus merito quis nos sacerdotes appeUet; 
 justitiam namque colimus, et boni et sequi notitiam profite- 
 mur, sequum ab iniquo separantes, licitum ab iUicito dis- 
 cernentes, bonos non solum metu pcenarum verum etiam 
 prsemiorum quoque exhortatione efficere cupientes, veram, 
 nisi fallor, philosophiam, non simulatam affeotantes.' 
 
 202. Were I to present you with all the criticisms which 
 these two passages suggest, I should detain you a full hour. 
 I shall content myself with one. Jurisprudence, if it is 
 
THE DIFFERENT KINDS OF LAWS 77 
 
 anjthing, is the science of law, or at most the science of law 
 combined with the art of applying it; but what is here 
 given as a definition of it, embraces not only law, but 
 positive morality, and even the test to which both these are 
 to be referred. It therefore comprises the science of legisla- 
 tion and deontology. Further, it affirms that law is the 
 creature of justice, which is as much as to say that it is 
 the child of its own offspring. For when hy just we mean 
 anything but to express our own approbation we mean some- 
 thing which accords with some given law. True, we speak 
 of law and justice, or of law and equity, as opposed to each 
 other, but when we do so, we mean to express mere dislike 
 of the law, or to intimate that it conflicts with another law, 
 the law of God, which is its standard. According to this, 
 every pernicious law is unjust. But, in truth, law is itself 
 the standard of justice." What deviates from any law is 
 unjust with reference to that law, though it may be just 
 with reference to another law of superior authority. The 
 veriest dolt who is placed in a jury box, the merest old 
 woman who happens to be raised to the bench, will talk 
 finely of equity or justice — the justice of the case, the 
 equity of the case, the imperious demands of justice, the 
 plain dictates of equity. He forgets that he is there to 
 enforce the law of the land, else he does not administer that 
 justice or that equity with which alone he is immediately 
 concerned.* 
 
 203. This is well known to have been a strong tendency Example 
 
 of Lord Mansfield — a strange obliquity in so great a man. ^''°™ ^°^^ 
 
 ° ^ •' ^ Mansfield. 
 
 202. Mr. Leslie defends Ulpian's idealism. "The greatest 
 iaiiryer — be he judge or jurist — is he who combines a firm grasp 
 of the material realities of life with a clear vision of the ideal 
 .beyond." ^ < 
 
 • "Journal of Comparative Legislation," XI, pp. 23-4, article on 
 Uljpian. 
 
78 THE iJiFFERENT KINDS OF LAWS 
 
 I will give an instance. By the English law, a promise 
 to give something or to do something for the benefit of 
 another is not binding without what is called a considera- 
 tion, that is, a motive assigned for the promise, which motive 
 must be of a particular kind. Lord Mansfield, however, 
 overruled the distinct provisions of the law by ruling that 
 moral obligation was a sufficient consideration. ISow, moral 
 obligation is an obligation imposed by opinion, or an obliga- 
 tion imposed by God : that is, moral obligation is anything 
 which we choose to call so, for the precepts of positive 
 morality are infinitely varying, and the will of God, whether 
 indicated by utility or by a moral sense, is equally matter 
 of dispute. This decision of Lord Mansfield, which assumes 
 that the judge is to enforce morality, enables the judge to 
 enforce just whatever he pleases.* 
 Judicial 204. I must here observe that I am not objecting to Lord 
 legisla- Mansfield for assuming the office of a legislator. I by no 
 means disapprove of what Mr. Bentham has chosen to call 
 by the disrespectful name of judge-made law. I cannot 
 understand how any person who has considered the subject 
 can suppose that society could possibly have gone on if 
 judges had not legislated, or that there is any danger what- 
 ever in allowing them that power which they have in fact 
 
 203. The doctrine attributed by Austin to Lord Mansfield was 
 upheld by Sir James Mansfield in Lee v. Muggeridge.^ l£ was 
 definitely overruled by Lord Denman in Eastwood v. Kenyon,'' 
 the learned judge remarking that the doctrine would annihilate 
 the necessity for any consideration at all, inasmuch as the mere 
 fact of giving a promise creates a moral obligation to support 
 it. The subject is discussed by Sir William Markby, who 
 contends that an express undertaking of a liability ought to 
 be held binding, "not upon the stupid ground that a moral 
 3onsideration supports a promise, b^t upon the ground that a 
 liability was intended and ought to be enforced." * 
 
 1 Taunton, V, p. 36. " A. and E. XI, p. 446. 
 
 3 "Elements of Law," 5th ed., pp. 317-18. 
 
THE DIFFERENT KINDS OF LAWS 79 
 
 exercised, to make up for the negligence or the incapacity 
 of the avowed legislator. That part oi the law of every 
 country which was made by judges has been far better made 
 than that part which consists of statutes enacted by the 
 legislature. Notwithstanding my great admiration for Mr. 
 Bentham, I cannot but think that, instead of blaming judges 
 for having legislated, he should blame them for the timid, 
 narrow, and piecemeal manner in which they have legislated, 
 and for legislating under cover of vague and indeterminate 
 phrases, such as llbrd Mansfield employed in the above 
 example, and which would be censurable in any legislator.* 
 
 205. The foregoing distribution of laws proper, and of The fore- 
 such improper laws as are closely analogous to the proper, S°}^S dis- 
 tallies, in the main, with a division of laws which is given of i^^s 
 incidentally by Locke in his Essay on Human Understanding, tallies, in 
 And since this division of laws, or of the source of duties or ^^^^^ ^ 
 obligations, is recommended by the great authority which division of 
 the writer has justly acquired, I gladly append it to my own ^^e''^ 
 division or analysis. The passage of his essay in which the 
 division occurs, is part of an inquiry into the nature of 
 relation, and is therefore concerned indirectly with the nature 
 and kinds of law. With the exclusion of all that is foreign 
 to the nature and kinds of law, with the exclusion of a few 
 expressions which are obviously redundant, and with the 
 
 204. §§ 202 and 204 should be carefully compared. In the 
 earlier section, the judge held up for admiration is the judge who 
 abides by the law ; in the later section, the judge held up for 
 admiration is the judge who adds to the law. 
 
 Q. (1) How are these apparently inconsistent sections to be 
 reconciled 1 ^ 
 
 (2) Examine the statement that the subject-matter of Juris- 
 prudence consists of " the principles on which the courts ought to 
 decide cases." * 
 
 1 Cf. Excursus G, infra. 
 
 » Professor Gray, " Harvard Law Review," April, 1892, p. 27. 
 
80 THE DIFFEEENT KINDS OF LAWS 
 
 correction of a few expressions which are somewhat obscure, 
 the passage containing the divisions may be rendered in the 
 words following : 
 
 'Good or evil is nothing but pleasure or pain, or that 
 which occasions or procures pleasure or pain to us. Mard 
 good or evil, then, is only the conformity or disagreement of 
 our voluntary actions to some law, whereby good or evil is 
 drawn on us by the will and power of the law-maker : which 
 good or evil, pleasure or pain, attending our observance or 
 breach of the law, by the decree of the law-maker, is that we 
 call reward or punishment. 
 
 'Of these moral rules or laws, to which men generally 
 refer, and by which they judge of the rectitude or pravity of 
 their actions, there seem to me to be three sorts, with their 
 three different enforcements, or rewards and punishments. 
 For since it would be utterly in vain to suppose a rule set to 
 the free actions of man, without annexing to it some en- 
 forcement of good and evil to determine his will, we must, 
 wherever we suppose a law, suppose also some reward or 
 punishment annexed to that law. It would be in vain for 
 one intelligent being to set a rule to the actions of another, 
 if he had it not in his power to reward the compliance with, 
 and punish deviation from his rule, by some good and evil 
 that is not the natural product and consequence of the 
 action itself : for that being a natural convenience or incon- 
 venience,, would operate of itself without a law. This, if 
 I mistake not, is the true nature of all law properly so 
 called. 
 
 'The laws that men generally refer their actions to, to 
 judge of their rectitude or obliquity, seem to me to be these 
 three: 1. The Bivim law. 2. The civU law. 3. The law 
 of opinion or reputation, if I may so call it. — By the relation 
 they bear to the first of these, men judge whether their 
 actions are sins or duties : by the second, whether they be 
 
THE DIFFERENT KINDS OF LAWS 81 
 
 criminal or innocent : and by the third, whether they be 
 virtues or vices. 
 
 ' By the Divine law, I mean that law which God hath set 
 to the actions of men, whether promulgated to them by the 
 light of nature, or the voice of revelation. This is the only 
 true touchstone of rhoral rectitude. 
 
 ' Virtue and vice are names pretended, and supposed every- 
 where to stand for actions in their own nature right or 
 wrong : and as far as they really are so applied, they so far 
 are coincident with the Divine law above mentioned. 'But 
 yet, whatever is pretended, this is visible, that these names 
 virtue and vice, in the particular instances of their applica- 
 tion through the several nations and societies of men in the 
 world, are constantly attributed to such actions only as in 
 each country and society are in reputation or discredit. Nor 
 is it to be thought strange, that men everywhere should give 
 the name of virtue to those actions which amongst them are 
 judged praiseworthy, and call that vice which they account 
 blameable; since they would condemn themselves, if they 
 should think anything right, to which they allowed not 
 commendation ; anything wrong, which they let pass with- 
 out blame. 
 
 ' Thus the measure of what is everywhere called and es- 
 teemed virtue and vice, is this approbation or dislike, praise 
 or blame, which by a secret and tacit consent establishes 
 itself in the several societies, tribes, and clubs of men in the 
 world whereby several actions come to find credit or dis- 
 grace amongst them, according to the judgment, maxims, or 
 fashions of that place. 
 
 'But though, by the different temper, education, fashion, 
 maxims, or interest of different sorts of men, it fell out, that 
 what was thought praiseworthy in one place, escaped not 
 censure in another, and so in different societies virtues and 
 vices were changed, yet, as to the main, they for the most 
 
 Q 
 
82 THE DIFFERENT KINDS OF LAWS 
 
 part kept the same everywhere. For since nothing can be 
 more natural, than to encourage with esteem and reputation 
 that wherein everyone finds his advantage, and to blame and 
 discountenance the contrary, it is no wonder that esteem and 
 discredit, virtue and vice, should in a great measure every- 
 where correspond with the unchangeable rule of right and 
 wrong which the law of God hath established : there being 
 nothing that so directly and visibly secures and advances the 
 general good of mankind in this world as obedience to the 
 law He has set them, and nothing that breeds such mis- 
 chiefs and confusion as the neglect of it. And therefore 
 men, without renouncing all sense and reason, and their own 
 interest, could not generally mistake in placing their com- 
 mendation or blame on that side which really deserved it 
 not. Nay, even those men, whose practice was otherwise, 
 failed not to give their approbation right: few being de- 
 praved to that degree, as not to condemn, at least in others, 
 the faults they themselves were guilty of. Whereby, even 
 in the corruption of manners, the law of God, which ought 
 to be the rule of virtue and vice, was pretty well observed. 
 
 ' If any. one shall imagine that I have forgotten my own 
 notion of a law, when I make the law, whereby men judge of 
 virtue and vice, to be nothing but the consent of private men 
 who have not authority to make a law ; especially wanting 
 that which is so necessary and essential to a law, a power to 
 enforce it : I think, I may say, that he who imagines /Com- 
 mendation and disgrace not to be strong motives on men to 
 accommodate themselves to the opinions and rules of those 
 with whom they converse, seems little skilled in the nature 
 or history of mankind : The greatest part whereof he shall 
 find to govern themselves chiefly, if not solely, by this law of 
 fashion : and so they do that which keeps them in reputa- 
 tion with their company, little regard the law of God or the 
 magistrate. The penalties that attend the breach of God's 
 
THE DIFFERENT KINDS OF LAWS 83 
 
 law, some, nay, perhaps, most men seldom seriously reflect 
 on ; and amongst those that do, many, whilst they hreak the 
 law, entertain thoughts of future reconciliation, and making 
 their peace for such breaches. And as to the punishments 
 due from the law of the commonwealth, they frequently 
 flatter themselves with the hope of impunity. But no man 
 escapes the punishment of their censure and dislike, who 
 offends against the fashion and opinion of the company he 
 keeps, and would recommend himself to. Nor is there one 
 of ten thousand, who is stiff and insensible enough to bear 
 up under the constant dislike and condemnation of his own 
 club. He must be of a strange and unusual constitution, 
 who can content himself to live in constant disgrace and dis- 
 repute with his own particular society. Solitude many men 
 have sought and been reconciled to : but nobody that has 
 the least thought or sense of a man about him, can live in 
 society under the constant dislike and ill opinion of his 
 familiars, and those he converses with. This is a burthen 
 too heavy for human sufferance : and he must be made up 
 of irreconcileable contradictions, who can take pleasure in 
 company, and yet be insensible of contempt and disgrace 
 from his companions.' — Essay concerning Human Understand- 
 ing. Book II. Chap. XXVIII. 
 
 206. The analogy borne to a law proper by a law which Laws 
 opinion imposes, lies mainly in the following point of resem- ™®**P'"'" 
 blance. In the case of a law set by opinion, as well as in figuratiT*. 
 
 the case of a law properly so called, a rational being or —Their 
 1 • 1 • • -1 • 1 o 1 common 
 
 beings are subject to contmgent evil, in the event of their and neg»- 
 
 not complying with a known or presumed desire of another t'^* °a- 
 being or beings of a like nature. The analogy between a 
 law in the proper acceptation of the term, and a law im- 
 properly so called which opinion sets or imposes, is, there- 
 fore, strong. The defect which excludes the latter from the 
 rank of a law proper, merely consists in this : that the wish 
 
84 THE DIFFERENT KINDS OF LAWS 
 
 or desire of its authors has not been duly signified^ and that 
 they have no formed intention of inflicting evil or pain upon 
 those who may break or transgress it. 
 
 207. But, beside the laws improper which are set or 
 imposed by opinion, there are laws improperly so called 
 which are related to laws proper by remote analogies. I 
 style these laws metaphorical, or laws merely metaphorical. 
 The analogies by which they are suggested will hardly admit 
 of a common and positive description ; but laws metaphori- 
 cal have the following common and negative nature. — No 
 property or character of any metaphorical law can be 
 likened to a sanction or a duty. Consequently, every meta- 
 phorical law wants that point of resemblance which mainly 
 constitutes the analogy between a law proper and a law set 
 by opinion. 
 Examples. 208. The most frequent and remarkable of those meta- 
 phorical applications is suggested by that uniformity, or that 
 stability of conduct, which is one of the ordinary con- 
 sequences of a law proper. We say, for instance, that the 
 movements of lifeless bodies are determined by certain laws: 
 though, since the bodies are lifeless and have no desires 
 or aversions, they cannot be touched by aught which in 
 the least resembles a sanction, and cannot be subject to 
 aught which in the least resembles an obligaton. We mean 
 that they move in certain uniform modes, and that they 
 move in those uniform modes through the pleasure and 
 appointment of God : just as parties obliged behave in a 
 uniform manner through the pleasure and appointment of 
 the party who imposes the law and the duty. — Again : We 
 say that certain actions of the lower and irrational animals 
 are determined by certain laws: though, since they cannot 
 understand the purpose and provisions of a law, it is impos- 
 sible that sanctions should efifectually move them to obedi- 
 ence, or that their conduct should be guided by a regard to 
 
THE DIFPEEENT KINDS OF LAWS 85 
 
 duties or obligations. We mean that they act in certain 
 uniform modes, either in consequence of instincts (or causes 
 which we cannot explain), or else in consequence of hints 
 which they catch from experience and observation : and that, 
 since their uniformity of action is an effect of the Divine 
 pleasure, it closely resembles the uniformity of conduct 
 which is wrought by the authors of laws in those who are 
 obnoxious to the sanctions. — In short, whenever we talk of 
 laws governing the irrational world, the metaphorical appli- 
 cation of the term law is suggested by this double analogy. 
 1. The successive and synchronous phsenomena composing 
 the irrational world, happen and exist, for the most part, in 
 uniform series: which uniformity of succession and co- 
 existence resembles the uniformity of conduct produced by 
 an imperative law. 2. That uniformity of succession and 
 coexistence, like the uniformity of conduct produced by an 
 imperative law, springs from the will and intention of an 
 intelligent and rational author. — When an atheist speaks of 
 laws governing the irrational world, the metaphorical appli- 
 cation is suggested by an^ analogy still more slender and 
 remote than that which I have now analysed. He means 
 that the uniformity of succession and coexistence resembles 
 the uniformity of conduct produced by an imperative rule. 
 If, to draw the analogy closer, he ascribes those laws to an 
 author, he personifies a verbal abstraction, and makes it play 
 the legislator. He attributes the uniformity of succession 
 and coexistence to laws set by nature : meaning, by nature, 
 the world itself ; or, perhaps, that very uniformity which he 
 imputes to nature's commands.* 
 
 208. Q. " You say the laws of mattei are inevitable ; but in what 
 sense — potentially or actually 1 Cannot each law be interfered 
 with at any moment by some other law, so that the first law, though 
 it may struggle for the mastery, shall be for an indefinite time 
 utterly defeated ! The law of gravity is immutable enough. But 
 do all stones veritably fall to the ground? Certainly not, if I 
 
86 THE DIFFERENT KINDS OF LAWS 
 
 209. Many metaphorical applications of the term law or 
 rule are suggested by the analogy following. — An imperative 
 
 choose to catch one and keep it in my hand. It remains there by 
 laws ; and the law of gravity is there too, making it feel heavy 
 in my hand ; but it has not fallen to the ground, and v^ill not, till 
 I let it. So much for the inevitable action of the laws of gravity, 
 as of others. Potentially, it is immutable ; but actually, it can be 
 conquered by other laws." Criticize the conception of a natural 
 law implied in this passage. 
 
 Note. — Natural laws. — The fallacy into which Kingsley falls 
 in the above-quoted passage is by no means uncommon. In many 
 minds, a disposition exists to personify nature and to regard it as 
 issuing orders to which matter must conform ; for example, 
 commanding all stones to fall to the ground. According to this 
 view, all stones do their best to get to ground, impelled thereto by 
 the law which nature has set. In reality, natural laws are not 
 impelling forces, but abstract formulae. 'Thus with regard to the 
 law of gravitation we have to distinguish : 
 
 (1) Gravity, i.e. the attraction which one body has for another. 
 
 (2) The law of gravity, viz. that the attraction of one body for 
 another varies directly as the mass and inversely as the square 
 of the distance. 
 
 (3) The immediate consequence in any particular case resulting 
 from the combined action of gravity and of other forces. 
 
 The conception of a natural law is applicable to society as well 
 as to external nature. It is in the former connection that most 
 difficulty is likely to be felt iu distinguishing the law metaphorical 
 from other laws. "Moral principles, when they are true," 
 affirms Mr. John Morley, " are at bottom only registered general- 
 izations from experience. They record certain uniformities of 
 antecedence and consequence in the region of human conduct."* 
 While a difference of opinion may exist as to whether moral 
 principles are not something more than this, no one will doubt 
 that most moral principles can be expressed in the form suggested 
 by Mr. Morley, and that when so expressed they belong to the 
 class of laws by metaphor. "Speak the Truth" is a law by 
 analogy, whilst the statement of Whately — "It makes all the 
 difference in the world whether we put truth in the first or 
 the second place" — may be described as a law by metaphor. 
 That one implies the other may be admitted. The expression 
 of a moral principle, however, may easily take such a form that 
 it is open to doubt whether we are, or are not, thinking in 
 the realm of law by metaphor. 
 
 ' " On Compromise.'' 
 
THE DIFFERENT KINDS OF LAWS 7i 
 
 law or rule guides the conduct of the obliged, or is a norma, 
 model, or pattern, to which their conduct conforms. A pro- 
 posed guide of human conduct, or a model or pattern offered 
 to human imitation, is, therefore, frequently styled a law or 
 rule of conduct, although there be not in the case a shadow 
 of a sanction or a duty. 
 
 210. For example : To every law properly so called there 
 are two distinct parties : a party by whom it is established, 
 and a party to whom it is set. But, this notwithstanding, 
 we often speak of a law set by a man to himself : meaning 
 that he intends to pursue some given course of conduct as 
 exactly as he would pursue it if he were bound to pursue ib 
 by a law. An intention of pursuing exactly some given 
 course of conduct, is the only law or rule which a man can 
 set to himself. The binding virtue of a law lies in the sanc- 
 tion annexed to it. But in the case of a so-called law set by 
 a man to himself, he is not constrained to observe it by 
 aught that resembles a sanction. For though he may fairly 
 purpose to inflict a pain on himself, if his conduct shall 
 depart from the guide which he intends it shall follow, the 
 infliction of the conditional pain depends upon his own 
 will. — Again : When we talk of rules of art, the meta- 
 phorical application of the term rules is suggested by the 
 analogy in question. By a rule of art, we mean a prescrip- 
 tion or pattern which is offered to practitioners of an art, and 
 which they are advised to observe when performing some 
 given process. There is not the semblance of a sanction, nor 
 is there the shadow of a duty. But the offered prescription 
 or pattern may guide the conduct of practitioners, as a rule 
 imperative and proper guides the conduct of the obliged.* 
 
 210. Q. (1) Would it be any answer to Austin's argument 
 with respect to self-imposed law to plead that legal sanctions are 
 almost invariably conditional upon the will of the offender, since 
 he may commit suicide ? 
 
 (2) Ought not the class of laws by analogy to have been 
 
88 THE DIFFERENT KINDS OF LAWS 
 
 Laws 211. The preceding disquisition on figurative laws is not 
 
 metaphor- g^ superfluous as some of my hearers may deem it. Figura- 
 
 ical or ^ i , • ■, n i • 
 
 figurative tive laws are not unfrequently mistaken tor laws mipera- 
 
 are often t^yg ^nd proper. Nay, attempts have actually been made, 
 
 and con- and by writers of the highest celebrity, to explain and 
 
 founded illustrate the nature of laws imperative and proper, by 
 
 Operative illusions to so-called laws which are merely such through a 
 
 and metaphor. For instance, in an excerpt from Ulpian placed 
 
 proper. ^^ ^^^ beginning of the Pandects, and also inserted by 
 
 Justinian in the second title of his Institutes, a fancied /ms 
 
 naiv/rale, common to all animals, is thus distinguished from 
 
 the yws naturale or gentium to which I have adverted above. 
 
 Jus naturale est, quod natura omnia animalia doeuit : nam jus 
 
 istud non humani generis proprium, sed omnium animalium 
 
 quae in terra, quae in mari nascuntur, avium quoque 
 
 commune est. Hinc descendit maris atque feminae conjunctio, 
 
 quam nos matrimonium appellamus ; hinc liberorum pro- 
 
 creatio, hinc educatio: videmus etenim cetera quoque animalia, 
 
 feras etiam, istius juris peritia censeri. Jus gentium est, quo 
 
 gentes humanse utuntur. Quod a naturali recedere, inde 
 
 facile intelligere licet; quia illud omnibus animalibus, hoc 
 
 solis hominibus inter se commune est.' The Jus naturale 
 
 widened bo as to include self-imposed laws in preference to 
 grouping such laws with statements of sequence 1 
 
 (3) Compare Austin's point of view with that expressed by 
 T. H. Green in the following passage : "It is the very essence 
 of moral duty to he imposed by a man on himself. The moral 
 duty to obey a positive law, whether a la'w of the State or of the 
 Church, is imposed not by the author or enforcer of the Positive 
 Law, but by that spirit of man, which sets before him the ideal 
 of a perfect life." ^ 
 
 (4) May we not say of the rules of literary art that they 
 represent certain opinions of educated men to which literary 
 artists must conform under pain of censure and neglect? And 
 that in consequence they are laws by analogy ? 
 
 ' Prolegomena to Ethics," p. 402. 
 
THE DIFFERENT KINDS OF LAWS 89 
 
 which Ulpian here describes, and which he here distinguishes 
 from the jus naturale or gentiv/m, is a name for the instincts 
 of animals. More especially, it denotes that instinctive 
 appetite which leads them to propagate their kinds, with 
 that instinctive sympathy which inclines parent animals 
 to nourish and educate their young. Now, the instincts of 
 animals are related to laws by the slender or remote 
 analogy which I have already endeavoured to explain. 
 They incline the animals to act in certain uniform modes, 
 and they are given to the animals for that purpose by 
 an intelligent and rational Author. But these meta- 
 phorical laws which govern the lower animals and which 
 govern (though less despotically) the human species itself, 
 should not have been blended and confounded, by a grave 
 writer upon jurisprudence, with laws properly so called. 
 It is true that the instincts of the animal man, like many 
 of his affections which are not instinctive, are amongst the 
 causes of laws in the proper acceptation of the term. More 
 especially, the laws regarding the relation of husband and 
 wife, and the laws regarding the relation of parent and 
 child, are mainly caused by the instincts which Ulpian par- 
 ticularly points at. And that, it is likely, was the reason 
 which determined this legal oracle to class the instincts of 
 animals with laws imperative and proper. But nothing can 
 be more absurd than the ranking with laws themselves the 
 causes which lead to their existence. . And. if human instincts 
 are laws because they are causes of laws, there is scarcely a 
 faculty or affection belonging to the human mind, and 
 scarcely a class of objects presented by the outward world, 
 that must not be esteemed a law and an appropriate subject of 
 jurisprudence. — I must, however, remark, that the jus quod 
 natv/ra omnia animalia docuit is a conceit peculiar to Ulpian : 
 and that this most foolish conceit, though inserted in 
 Justinian's compilations, has no perceptible influence on 
 
90 THE DIFFERENT KINDS OF LAT^S 
 
 the detail of the Eoman law. The jvs naturaU of the 
 classical jurists generally, and the jus naturale occurring 
 generally in the Pandects, is equivalent to the natural law 
 of modern writers upon jurisprudence, and is synonymous 
 with the jus gentiv/m, or the jus naturale et gentium,. It 
 means those positive laws and those rules of positive moral- 
 ity, which are not peculiar or appropriate to any nation 
 or age, but obtain, or are thought to obtain, in all nations 
 and ages : and which, by reason of their obtaining in all 
 nations and ages, are supposed to be formed or fashioned on 
 the law of God or Nature as known by the moral sense. 
 'Omnes populi ' (says Gains),' qui legibus et moribus reguntur, 
 partim suo proprio, partim communi omnium hominum jure 
 utuntur. Nam quod quisque populus ipse sibi jus constituit, 
 id ipsius proprium est, vocaturque jus civile; quasi jus 
 proprium ipsius civitatis. Quod vero naturalis ratio inter 
 omnes homines constituit, id aput omnes populos perseque 
 custoditur, vocaturque jus gentium ; quasi quo jure omnes 
 gentes utuntur.' The universal leges et mores here described 
 by Gaius, and distinguished from the leges et mores peculiar 
 to a particular nation, are styled indifferently, by most of the 
 classical jurists, jus gentium, jus natu/rale, or jus naturale et 
 gentium. And the law of nature, as thus understood, is not 
 intrinsically absurd. For as some of the dictates of utility 
 are always and everywhere the same, and are also so plain 
 and glaring that they hardly admit of mistake, there are 
 legal and moral rules which are nearly or quite universal, 
 and the expediency of which must be seen by merely natural 
 reason, or by reason without Jhe lights of extensive experience 
 and observation. The distinction of law and morality into 
 natural and positive, is a needless and futile subtilty : but 
 still the distinction is founded on a real and manifest 
 difference. The ju,s naturale or gentium would be liable to 
 'ittle objection, if it were not supposed to be the offspring of 
 
THE DIFFERENT KINDS OF LAWS 91 
 
 a moral instinct or sense, or of innate practical principles. 
 But, since it is closely allied to that misleading and per- 
 nicious jargon, it ought to be expelled, with the natural 
 law of the moderns, from the sciences of jurisprudence and 
 morality.* 
 
 212. The following passage is the first sentence in Montes- 
 quieu's Spirit of Laws: 'Les lois, dans la signification la 
 plus ^tendue, sont les rapports nfoessaires qui d^rivent de 
 la nature des choses : et dans ce sens tous les Stres ont leurs 
 lois : la Divinity a ees lois ; le monde materiel a ses lois ; les 
 intelligences superieures ^ I'homme ont leurs lois ; les bStes 
 ont leurs lois; I'homme a ses lois.' Now objects widely 
 different, though bearing a common name, are here blended 
 and confounded. Of the laws which govern the conduct 
 of intelligent and rational creatures, some are laws impera- 
 tive and proper, and others are closely analogous to laws 
 of that description. But the so-called laws which govern 
 the material world, with the so-called laws which govern the 
 
 211. Savigny makes the following interesting apology for 
 Ulpian's text : " The first thing which astonishes in this text, 
 and by reason of which it has often been severely blamed, is 
 the law and consciousness of law ascribed to beasts. When, 
 however, the certainly ill-chosen expression is abandoned, the 
 view itself admits of easy defence against that censure. Each 
 jural relation has for its foundation matter of some kind, to 
 which the form of law is applied and which therefore can also 
 be conceived abstracted from this form. This material is, in 
 most of the jural relations, so far of an arbitrary kind that 
 a continuous existence of the human race can also be conceived 
 without it ; thus in property and obligations. Not so with the 
 two relations above named, which are rather universal natural 
 relations common to men and beasts and without which the 
 human race could have no enduring existence. In fact, therefore, 
 it is not the law (right), but the material of the law (right), the 
 natural relation lying at its base, which is ascribed to beasts. 
 This view now is not merely true, but also important and worthy 
 of notice."^ 
 
 ' Savigny's " Roman Law," translated by HoUoway, pp. 338-9. 
 
92 THE DIFFERENT KINDS OF LAWS 
 
 lower animals, are merely laws by a metaphor. And the so- 
 called laws which govern or determine the Deity are clearly 
 in the same predicament. If his actions were governed 
 or determined by laws imperative and proper, he would be 
 in a state of 'dependence on another and superior being. 
 When we say that the actions of the Deity are governed 
 or determined by laws, we mean that they conform to 
 intentions which the Deity himself has conceived, and 
 which he pursues or observes with inflexible steadiness 
 or constancy. To mix these figurative laws with laws 
 imperative and proper, is to obscure, and not to elucidate, 
 the nature or essence of the latter. The beginning of the 
 passage is worthy of the sequel. We are told that laws are 
 the necessary relations which flow from the nature of things. 
 But what, I would crave, are relations ? What, I would 
 also crave, is the nature of things? And how do the 
 necessary relations which flow from the nature of things 
 differ from those relations which originate in other sources ? 
 The terms of the definition are incomparably more obscure 
 than the term which it affects to expound. 
 
 213. If you read the disquisition in Blackstone on the 
 nature of laws in general, or the description of law in 
 Hooker's Ecclesiastical Polity, you will find the same con- 
 fusion of laws imperative and proper with laws which are 
 merely such by a glaring perversion of the term. The 
 cases of this confusion are, indeed, so numerous, that they 
 would fill a considerable volume.* 
 
 213, Blackstone's definition of Positive Law runs: "A rule 
 of civil conduct prescribed by the supreme power in a state 
 commanding what is right and prohibiting what is wrong." ^ 
 " Of law," declared Hooker, "there can be no lesse acknowledged, 
 than that her seate is in the bosome of God, her voyce the 
 harmony of the world." ^ 
 
 1 " Commentaries," I, p. 44. ^ " Ecclesiastical Polity," I, c. 18. 
 
THE DIFFERENT KINDS OF LAWS 93 
 
 214. From the confusion of laws metaphorical with laws Physical 
 
 imperative and proper, I turn to a mistake, somewhat similar, °^ o***"^ 
 '^ '^ '^ ' sanctions. 
 
 which, 1 presume to think, has been committed by Mr. Ben- 
 tham. Sanctions proper and improper are of three capital 
 classes : the sanctions properly so called which are annexed 
 to the laws of God ; the sanctions properly so called which 
 are annexed to positive laws; the sanctions properly so 
 called, and the sanctions closely analogous to sanctions 
 properly so called, which respectively enforce compliance 
 with positive moral rules. But to sanction religious, legal, 
 and moral, this great philosopher and jurist adds a class 
 of sanctions which he styles physical or natural. '' 
 
 215. When he styles these sanctions physical, he does not 
 intend to intimate that they are distinguished from other 
 sanctions by the mode wherein they operate; he does not 
 intend to intimate that these are the only sanctions which 
 affect the suffering parties through physical or material 
 means. His meaning may, I believe, be rendered in the 
 following manner. — A physical sanction is an evil brought 
 upon the suffering party by an act or omission of his own. 
 But, though it is brought upon the sufferer by an act or 
 omission of his own, it is not brought upon the sufferer 
 through any Divine law, or through any positive law, or 
 rule of positive morality. For example: if your house be 
 destroyed by fire through your neglecting to put out a light, 
 you bring upon yourself, by your negligent omission, a 
 physical or natural sanction : supposing, I mean, that your 
 omission is not to be deemed a sin, and that the consequent 
 destruction of your house is not to be deemed a punishment, 
 inflicted by the hand of the Deity. 
 
 216. Such physical or natural evils are related by the 
 following analogy to sanctions properly so called. 1. When 
 they are actually suffered, they are suffered by rational 
 beings through acts or omissions of their own. 2. Before 
 
94 THE DIFFERENT KINDS OF LAWS 
 
 they are actually suffered, or whilst they exist in prospect 
 they affect the wills or desires of the parties obnoxious 
 to them as sanctions properly so called affect the wills of the 
 obliged. The parties are urged to the acts which may avert 
 the evils from their heads, or the parties are deterred from 
 the acts which may bring the evils upon them. 
 
 217. But in spite of the specious analogy at which I have 
 now pointed, I dislike, for various reasons, the application 
 of the term sanction to these physical or natural evils. 
 Of those reasons I will briefly mention the following. — 
 1. Although these evils are suffered by intelligent rational 
 beings through acts or omissions of their own, they are not 
 suffered as consequences of their not complying with desires 
 of intelligent rational beings. The analogy borne by these 
 evils to sanctions properly so called, is nearly as remote as 
 the analogy borne by laws metaphorical to laws imperative 
 and proper. 2. By the term sanction, as it is now restricted, 
 the evils enforcing compliance with laws imperative and 
 proper, or with the closely analogous laws which opinion 
 sets or imposes, are distinguished from other evils briefly 
 and commodiously. If the term were commonly extended 
 to these physical or natural evils, this advantage would be 
 lost. The term would then comprehend every possible evil 
 which a man may bring upon himself by his own voluntary 
 conduct.* 
 
 217. Q. (I) Where would the following examples be placed by 
 Austin in his classification of the different kinds of laws ? 
 (1) The rule that in English the aspirate must be sounded. 
 (2^ The rules as to the employment of the subjunctive. 
 
 (3) The rule that a sentence should not be prolonged beyond 
 
 what appears to be its natural close. 
 
 (4) A decision of the French Academy establishing a new 
 
 grammatical rule. 
 
 (5) A statement of the conditions of success in the art of writing 
 
 popular editorials. 
 
 (6) "He who would avoid burning his fingers ought not to 
 
 play with the fire." 
 
THE DIFFERENT KINDS OF LAWS 95 
 
 218. I close my disquisitions on figurative laws, and on In strict- 
 
 ihose metaphorical sanctions which Mr. Bentham denominates ^^' 
 
 claratory 
 
 -physical, with the following connected remark. Declaratory laws, laws 
 
 laws, and laws repealing laws, ought in strictness to be repealing 
 
 . . laws, and 
 
 classed with laws metaphorical or figurative : for the analogy laws of im- 
 
 by which they are related to laws imperative and proper perfect 
 is extremely slender or remote. Laws of imperfect obliga- ,j„ ^j^g 
 tion (in the sense of the Eoman jurists) are laws set or sense of 
 imposed by the opinions of the law-makers, and ought in :^^^^^ ' 
 strictness to be classed with rules of positive morality. But ought to be 
 though laws of these three species are merely analogous "^^^^ "■ 
 to laws in the proper acceptation of the term, they are with laws 
 closely connected with positive laws, and are appropriate metaphor- 
 subjects of jurisprudence. Consequently I treat them as figurative, 
 improper laws of anomalous or eccentric sorts, and exclude and rules 
 them from the classes of laws to which in strictness they ^ojaHty. 
 belong. 
 
 (7) The directions of an art master to his pupils 
 
 (a) on the subject of harmony in colour, 
 
 (b) as to hours of attendance. 
 
 (8) The suggestions in a work on chemistry as to the beet 
 
 of several ways of conducting a certain experiment. 
 
 (9) The laws of legal development. 
 
 (10) "The King must assent to Acts passed by both Houses 
 
 of Parliament." 
 
 (11) Moral laws conceived — 
 
 (a) As imposed by the conscience. 
 
 (b) As conclusions concerning what conduceth to the 
 conservation and defence of Mankind (Hobbes, "Leviathan," 
 Cap. XV). 
 
 (c) As precepts based upon practical utility. 
 
 (12) "To thine ownself be true, and it must follow as the night 
 
 the day, thou canst not then be false to any man." 
 (II) X orders a suit of clothes to be made by his tailor. 
 "When the suit arrives, X finds that the tailor has followed the 
 fashions of the early Victorian period. What kinds of law, if any, 
 have Oeen violated (a) by the tailor, (6) by X in wearing the 
 «.uit? 
 
CHAPTER III . 
 
 THE DEFINITION OF SOVEEEIGNTY 
 
 Purpose of 219. In the present lecture I explain the\ marks or . 
 Tto'* characters which distinguish positive laws, or laws strictly.' 
 so called. And, in order to, an explanation of the marks 
 which distinguish positive laws, I shall analyse the ex- 
 pression sovereicirUy, the correlative expression subiectior^ . and • 
 the inseparably connected expression indepen dent politica l' 
 society. For the essential difiference of a positive law (or the . 
 jlifiference that severs it from a law which is not a positive, 
 law) may be stated thus; Every positive law, or every law. 
 I simply and strictly so called, is set by a sovereign person, or; 
 • la sovereign body of persons, to a member or members of ths' 
 independent political society wherein that person or body is • 
 Sovereign or supreme. Or (changing the expression) it is set 
 by a monarch, or sovereign number, to a person or persons in ' 
 % a state of subjection to its author. Even though it sprang,- 
 
 directly from another fountain or source, it is a positive law,, 
 or a law strictly so called, by the institution of that present ■ 
 '■ sovereign in the character of political superior. Or (borrow-" 
 ji^g the language of Hobbes) 'the legislator is he, not by. 
 I whose authority the law was first made, ^at-by,, .yhose'l 
 I authoii^i-it.£ontuiues to bea law.' ! 
 
 The dis- 220. The superiority which is styled sovereignty, and th«l 
 ing^marka independent political society which sovereignty implies, is 
 of sover- distinguished from other superiority, apd from other society, 
 a^mde- ^^ *^® following marks or characters.-^l^The MlHf of thei 
 pendent given society are in a haint of obedience or submiBBionJ 
 
THE DEFINITION OF SOVEEEIGNTY 97 
 
 fto a idermina ie and cw samon superior : let that common political 
 ! superior be a certain individual person, or a certain body '°^^^ 
 , or aggregate of individual persons. / 2. Th at certain in- i 
 dividual, or that certain body of individuals, is not in a i 
 habit of obedience to a determinate human superior. Laws ' 
 (improperly so called) which opinion sets or imposes, 
 may permanently affect the conduct of that certain in- 
 dividual or body. To express or tacit commands of other 
 determinate parties, that certain individual or body may 
 yield occasional submission. But there is no determinate 
 person, or determinate aggregate of persons, to whose com- 
 mands, express or tacit, that certain individual or body 
 renders habitual obedience. 
 
 221. Or the notions of sovereignty and independent 
 political society may be expressed concisely thus.-^If a 
 determinate human superior, not in a habit of obedience 
 to a like superior, receive habitual obedience from the bulk 
 of a given society, that determinate superior is sovereign in 
 that society, and the society (including the superior) is a 
 society political and independent. / 
 
 222. To that determinate superior, the other members of The rela- 
 the society are subject : or on that determinate superior, the *'"" °f 
 other members of the society are depevderd. The position of eignty ' 
 its other members towards that determinate superior, is »"<! sub- 
 
 a state of suhjection, or a state of dependence. The mutual ^^'^ '°°' 
 relation which subsists between that superior and them, may 
 be styled the relation of sovereign and svibject, or the relation 
 of sovereignty and subjection. 
 
 223. Hence it follows, t^hat it is only through an ellipsis, strictly 
 or an abridged form of expression, that the society is styled speaking, 
 independent. Ihs„.pa.E^. .truly independent ( independen t. li^°^' 
 thatjs tQ.8ayj.i)f. a determinate human supCTior),, is not the ti6n of the' 
 80det£^.Vlt.-tiie.- sovereign portbn^ of Jhe^ society. By ' aruf°^|Jfnl 
 independent political society,' or ' an . independent and ent. , 
 
98 l/" THE DEFINITION OF SOVEREIGNTY 
 
 sovereign nation,' we mean a political society consisting of 
 
 a sovereign and subjects, as opposed to a political society 
 
 which is merely subordinate : that is to say, which is merely 
 
 a limb or member of another political society, and which 
 
 therefore consists entirely of persons in a state of subjection. 
 
 Union of 224. In order that a given society may form a society 
 
 positive political and independent, the two distinguishing marks 
 and nega- 
 tive marks which I have mentioned above must unite. The generality 
 
 necessary. Qf ^jjg given sooiety must be in the habit of obedience to 
 a determinate and common superior: whilst that determinate 
 person, or determmate body of persons must not be habitually 
 obedient to a determinate person or body. It is the union 
 of that positive, with this negative mark, which renders that 
 certain superior sovereign or supreme, and which renders 
 that given society (including that certain superior) a society 
 political and independent. I proceed to illustrate these 
 marks. 
 (1) Habit .225. (I) In order that a given society may form a society 
 of obedi- political, the generality or bulk of its members must be in 
 a hahit of obedience to a determinate and common superior. 
 , 226. In case the generality of its members obey a deter- 
 minate superior, but the obedience be rare or transient and 
 not habitual or permanent, the rela,tion of sovereignty and 
 subjection is not created thereby between that certain 
 superior and the members of that given society. 
 
 227. For example: In 1815 the allied armies occupied 
 France; and so long as the allied armies occupied France, 
 the commands of the allied sovereigns were obeyed by the 
 French government, and, through the French government, 
 by the French people generally. But since the commands 
 and the obedience were comparatively rare and transient, 
 they were not sufficient to constitute the relation of 
 sovereignty and subjection between the allied sovereigns and 
 the members of the invaded nation. In spite of those 
 
THE DEFINITION OF SOVEREIGNTY 99 
 
 commands, and in apite of that obedience, the French 
 government was sovereign or independent. And if the 
 French nation, before the obedience to those sovereigns, had 
 been an independent society in a state of nature or anarchy, 
 it would not have been changed by the obedience into a 
 society political 
 
 228. Again: A feeble state holds its independence pre- 
 cariously, or at the will of the powerful states ; it and the 
 bulk of its subjects render obedience to commands which 
 they occasionally express or intimate. Such, for instance, is 
 the position of the Saxon government and its subjects in 
 respect of the conspiring sovereigns who form the Holy 
 Alliance. But since the commands and the obedience are 
 comparatively few and rare, they are not sufficient to con- 
 stitute the relation of sovereignty and subjection between 
 the powerful states and the feeble state with its subjects. 
 In spite of those commands, and in spite of that obedience, 
 the feeble state is sovereign or independent.* ' 
 
 229. (2) In order that a given society may form a society (2) By the 
 political, habitual obedience must be rendered, by the geiur- ^"Ik, to a 
 ality or hulk of its members, to a determinate and common superior, 
 superior. In other words, habitual obedience must be ren- 
 dered, by the generality or bulk of its members, to one and 
 
 the same determinate person, or determinate body of persons. 
 
 230. For example: In case a given society be torn by 
 intestine war, and in case the conflicting parties be nearly 
 balanced, the given society is in one of two positions. If 
 
 228. Q. (1) Does a habit of obedience to laws imply a know- 
 ledge of what those laws are? Consider in this connection the 
 position of aliens, lunatics, and children. 
 
 (2) Does a habit of obedience to laws imply a conscious 
 reference to the sanctions by which they are enforced ? Consider 
 in this connection the case of a recluse who never ventures 
 beyond the walls of a monastery. 
 
 (3) What proportion of the actions of an ordinary citizen may 
 be said to be regulated by positive law t 
 
I deter- 
 minate. 
 
 100 THE DEFINITION OF SOVEREIGNTY 
 
 the bulk of each of the parties be in a habit of obedience t 
 its head, the given society is broken into two or mori 
 societies, which, perhaps, may be styled independent politica 
 societies. — If the bulk of each of the parties be not in tha 
 habit of obedience, the given society is simply or absolutelj 
 in a state of nature or anarchy. It is either resolved int( 
 its individual elements, or into numerous societies of ar 
 extremely limited size: of a size so extremely limited, thai 
 they could hardly be styled societies independent and 
 political. For, as I shall show hereafter, a given inde- 
 pendent society would hardly be styled political, in case it 
 fell short of a number which cannot be fixed with precision, 
 but which may be called considerable, or not extremely 
 minute. 
 
 (8) Who 231. (3) In order that a given society may form a society 
 political, the generality or bulk of its members must habitu- 
 ally obey a superior determinate as well as common. 
 
 232. On this position I shall not insist here. Por I have 
 shown sufficiently in my fifth lecture, that no indeterminate 
 party can command expressly or tacitly, or can receive obedi- 
 ence or submission: that no indeterminate body is capable 
 of corporate conduct, or is capable, as a body, of positive or 
 negative deportment. 
 
 (4) And 233. (4) It appears from what has preceded, that, in order 
 that a given society may form a society political, the bulk of 
 its members must be in a habit of obedience to a certain and 
 common superior. But, in order that the given society may 
 form a society political and independent, that certain 
 superior must not be habitually obedient to a determinate 
 human superior. He may render occasional submission to 
 commands of determinate parties. But the society is not 
 independent, although it may be political, in case that 
 certain superior habitually obey the commands of a certain 
 person or body. 
 
 not sub 
 jeot. 
 
THE DEFINITION OF SOVEREIGNTY 101 
 
 234 Let US suppose, for example, that a viceroy obeys 
 habitually the author of his delegated powers. And, to 
 render the example complete, let us suppose that the viceroy 
 receives habitual obedience from the generality or bulk of 
 the persons who inhabit his province. The viceroy is not 
 sovereign within the limits of his province, nor are he and 
 its inhabitants an independent political society. The vice- 
 roy, and (through the viceroy) the generality or bulk of its 
 inhabitants, are habitually obedient or submissive to the 
 Bovereign of a larger society. He and the inhabitants of his 
 province are therefore in a state of subjection to the sover- 
 eign of that larger society. He and the inhabitants of his 
 province are a society political but subordinate. 
 
 235. A natural society, or a society in a state of nature, is A society 
 
 composed of persons who are connected by mutual inter- ™depeiid- 
 
 .... ent but 
 
 course, but are not members, sovereign or subject, of any nafcraL 
 
 society political. None of the persons who compose it lives 
 
 in the positive state which is styled a state of subjection : or 
 
 all the persons who compose it live in the negative state 
 
 which is styled a state of independence. 
 
 236. Considered as entire communities, and considered in gooiety^ 
 respect of one another, independent political societies live, it fonned^y 
 is commonly said, in a state of nature. The expression, oourae of 
 however, is not perfectly apposite. Since all the members independ- 
 of each of the related societies are members of a society ^ f° '" 
 political, none of the related societies is strictly in a state of societies, 
 nature : nor can the larger society formed by their mutuaj 
 intercourse be styled strictly a natural society. Speaking 
 strictly, the sovereign and subject members of each of the 
 related societies form a society political : but the sovereign' 
 portion of each of the related societies lives in the negative 
 condition which is styled a state of independence. 
 
 237. Society formed by the intercourse of independent 
 political societies, is the province of international law, or of 
 
102 THE DEFINITION OF SOVEREIGNTY 
 
 the law obtaining between nations. For (adopting a curreni 
 expression) international law is conversant about the con 
 duct of independent political societies considered as entin 
 communities : circa negotia et causas gentium integrarum 
 
 ) Speaking with greater precision, international law, or th« 
 law obtaining between nations, regards the conduct of sover- 
 eigns considered as related to one another. 
 
 238. And hence it inevitably follows, that the law obtain- 
 \ ing between nations is not positive law : for every positive 
 I law is set by a given sovereign to a person or persons in 
 a state of subjection to its author. As I have already in- 
 ! timated, the law obtaining between nations is law (improperly 
 so called) set by general opinion. The duties which it im- 
 poses are enforced by moral sanctions : by fear on the part 
 \ of nations, or by fear on the part of sovereigns, of provoking 
 Igeneral hostility, and incurring its probable evils, in case 
 they shall violate maxims generally received and respected. 
 A society 239. A Society political but subordinate is merely a hmb 
 political Qj member of a society political and independent. All the 
 dinate. persons who compose it, including the person or body which 
 is its immediate chief, live in a state of subjection to one 
 and the same sovereigtu*' 
 A society 240. Besides societies political and independent, societies 
 notpoUti- independent but natural, society formed by the intercourse 
 member of of independent political societies, and societies political but 
 
 a society subordinate, there are societies whieh will not quadrate with 
 
 political (. 1 -1 • . 
 
 and inde- ^^7 of those descriptions. Though, like a society political 
 
 pendent, but subordinate, it forms a limb or member of a society 
 political and independent, a society of the class in question 
 is not a political society. Although it consists of members 
 living in a state of subjection, it consists of subjects con- 
 sidered as private persons. — A society consisting of parents 
 and children, living in a state of subjection, and considered 
 in those characters, may serve as an example. ' 
 
THE DEFINITION OF SOVEREIGNTY 103 
 
 241. To distinguish societies political but subordinate 
 from societies not political but consisting of subject mem- 
 bers, is to distinguish the rights and duties of subordinate 
 political superiors from the rights and duties of subjects 
 considered as private persons. And before I can draw that 
 distinction, I must analyse many expressions of large and 
 intricate meaning which belong to the detail of jurispru- 
 dence. But an explanation of that distinction is not 
 required by my present purpose. To the accomplishment 
 of my present purpose, it is merely incumbent upon me to 
 determine the notion of sovereignty, with the inseparably 
 connected notion of independent political society. For every 
 positive law, or every law simply and strictly so called, is set 
 directly or circuitously by a monarch or sovereign number 
 to a person or persons in a state of subjection to its author. 
 
 242. The definition of the abstract term independent The de&ni- 
 political society (including the definition of the correlative *""' "^ ^^^ 
 term sovereignty) cannot be rendered in expressions of per- term inde- 
 fectly precise import, and is therefore a fallible test ofP"^f^ 
 specific or particular cases. The least imperfect definition, j^^^^ 
 which the abstract term will take, would hardly enable usjeannotbe 
 to fix the class of every possible society. It would hardlyi""®" ?^^. 
 enable us to determine of every independent society whether! 
 
 it were political or natural. It would hardly enable us toi 
 determine of every political society whether it were indepen- 
 dent or subordinate. 
 
 243. In order that a given society may form a society 
 political and independent, the positive and negative marks 
 which I have mentioned above must unite. The generality 
 or bulk of its members must be in a habit of obedience to 
 a certain and common superior : whilst that certain person, 
 or certain body of persons, must not be habitually obedient 
 to a certain person or body. 
 
 244. But, in order that the bulk of its members may 
 
104 THE DEFINITION OF SOVEREKJNTY 
 
 render obedience to a common superior, how many of its 
 members, or what proporiion of its members, must render 
 obedience to one and the same superior? And, assuming 
 that the bulk of its members render obedience to a common 
 superior, how often must they render it, and how long must 
 they render it, in order that that obedience may be habitual? — 
 Now since these questions cannot be answered precisely, the 
 positive mark of sovereignty and independent political society 
 
 Iis a fallible test of specific or particular cases. It would not 
 enable us to determine of every independent society, whether 
 it were political or natural. 
 245. In the cases of independent society which lie at the 
 extremes, we should apply that positive test without a 
 moment's difficulty, and should fix the class of the society 
 without a moment's hesitation. — In some of those cases, so 
 large a proportion of the members obey the same superior, 
 and the obedience of that proportion is so frequent and 
 continued, that, without a moment's difficulty and without 
 a moment's hesitation, we should pronounce the society 
 political. Such, for example, is the ordinary state of England, 
 and of every independent society somewhat advanced in 
 civilization. — In other of those cases, obedience to the same 
 superior is rendered by so few of the members, or general 
 obedience to the same is so unfrequent and broken, that, 
 without a moment's difficulty and without a moment's 
 hesitation, we should pronounce the society natural. Such, 
 for example, is the state of the independent and savage 
 societies which subsist by hunting or fishing in the woods or 
 on the coasts of New Holland. 
 
 246. But in the cases of independent society which he 
 between the extremes, we should hardly find it possible to 
 fix with absolute certainty the class of the given community. 
 For example: During the height of the conflict between 
 Charles the First and the Parliament, the English nation 
 
THE DEFINITION OF SOVEREIGNTY 105 
 
 was broken into two distinct societies: each of which 
 societies may perhaps be styled political, and may certainly 
 be styled independent. After the conflict had subsided, 
 those distinct societies were in their turn dissolved ; and the 
 nation was reunited, under the common government of the 
 Parliament, into one independent and political community. 
 But at what juncture precisely after the conflict had sub- 
 sided, was a common government completely re-established ? 
 When had so many of the nation rendered obedience to the 
 Parliament, and when had the general obedience become so 
 frequent and lasting, that the bulk of the nation were 
 habitually obedient to the body which affected sovereignty ? 
 And after the conflict had subsided, and until that juncture 
 had arrived, what was the class of the society which was 
 formed by the English people ? — These are questions which it 
 were impossible to answer with certainty, although the facts 
 of the case were precisely known. 
 
 247. The negative mark of sovereignty and independent FaUibaity 
 political society is also an uncertain measure. Given aof°eg»tive 
 determinate and common superior, and also that the bulk 
 
 of the society habitually obey that superior, is that common 
 superior free from a habit of obedience to a determinate 
 person or body ? Is that common superior sovereign and 
 independent, or is that common superior a superior in a state 
 of subjection? 
 
 248. In numerous cases of political society, it were im- 
 possible to answer this question with absolute certainty. 
 For example: Although the Holy Alliance dictates to the 
 Saxon government, the commands which it gives, and the 
 submission which it receives, are comparatively few and 
 rare. Consequently, the Saxon government is sovereign or 
 supreme. But, in case the commands and submission were 
 somewhat more numerous and frequent, we might find it im- 
 possible to determine where the sovereignty resided: whether ' 
 
106 ''^ THE DEFINITION OF SOVEREIGNTY 
 
 the Saxon government were a government supreme and 
 independent; or were in a habit of obedience, and there- 
 fore in a state of subjection, to the allied or conspiring 
 monarchs. 
 [llustra- 249. The difficulties which I have laboured to explain, 
 
 tions in ^j ^.g^ embarrass the application of those positive moral rules 
 
 [nter- . ,„,--"-'"•—• — 
 
 national which are styled international law. 
 
 t'*"- I 250. For example : When did the revolted colony, which 
 
 j is now the Mexican nation, ascend from the condition of an 
 
 ; insurgent province to that of an independent community? 
 
 j When did the body of colonists, who affected sovereignty in 
 
 i Mexico, change the character of rebel leaders for that of 
 
 a supreme government ? Or (adopting the current language 
 
 about governments de jure and de facto) when did the body 
 
 of colonists, who affected sovereignty in Mexico, become 
 
 sovereign in fact ? — ^And (applying international law to the 
 
 specific or particular case) when did international law 
 
 authorize neutral nations to admit the independence of 
 
 Mexico with the sovereignty of the Mexican government ? 
 
 251. Now the questions suggested above are equivalent to 
 
 j this: When had the inhabitants of Mexicb obeyed that 
 
 body so generally, and when had that general obedience 
 
 become so frequent and lasting, that the inhabitants of 
 
 Mexico were independent of Spain in practice, and were 
 
 likely to remain permanently in that state of practical 
 
 j independence? At that juncture exactly (let it have arrived 
 
 I when it may), neutral nations were authorized, by the 
 
 morality which obtains between nations, to admit the inde- 
 
 ' pendence of Mexico with the sovereignty of the Metican 
 
 government. But, by reason of the perplexing difficulties 
 
 which I have laboured to explain, it was impossible for 
 
 neutral nations to hit that juncture with precision, and to 
 
 hold the balance of justice between Spain and her revolted 
 
 colony with a perfectly even hand. 
 
THE DEFINITION OF SOVEREIGNTY 107 
 
 252. This difficulty presents itself under numerous forms CompaTa^ 
 
 in international law : indeed almost the only difficulty and ^'® "fss^- 
 
 •' ■' ness in 
 
 embarrassing questions in that science arise out of it. And Positive 
 
 as I shall often have occasion to show, law strictly so called ^^• 
 is not free from like difficulties. What can be more in- 
 definite, for instance, than the expressions, reasonable time, 
 reasonable notice, reasonable diligence? Than the line of 
 demarcation which distinguishes libel and fair criticism; than 
 that which constitutes a violation of copyright; than that 
 degree of mental aberration which constitutes idiocy or, 
 lunacy? In all these cases, the difficulty is of the samej 
 nature with that which adheres to the phrases sovereignty 
 and independent society ; it arises from the vagueness or 
 indefiniteness of the terms in which the definition or rule 
 is inevitably conceived. 
 
 253. I have tacitly supposed during the preceding analysis, T^e nu- 
 
 that every independent society forming a society political 5?'^"^ 
 
 1 • 1 T -n n -1 question, 
 
 possesses the essential property which i will now describe. — ? 
 
 254. In order that an independent society may form 
 a society political, it must not fall short of a number which 
 cannot be fixed with precision, but which may be called 
 considerable, or not extremely minute. A given independent 
 society, whose number may be called inconsiderable, is 
 commonly esteemed a natural, and not a political society, 
 although the generality of its members be habitually obedient 
 or submissive to a certain and common superior. 
 
 255. Let us suppose, for example, that a single family of 
 savages lives in absolute estrangement from every other 
 community. And let us suppose that the father, the chief 
 of this insulated family, receives habitual obedience from the 
 mother and children. — ITow, since it is not a limb of anothpr 
 and larger community, the society formed by the parents and 
 children is clearly an independent society. And, since the 
 rest of its members habitually obey Us chief, this independent 
 
108 THE DEFINITION OF SOVEBEIGNTY 
 
 society would form a society political, in case the number of 
 its members were not extremely minute. But, since the 
 number of its members is extremely minute, it would 
 (I believe) be esteemed a society in a state of nature : that 
 is to say, a society consisting of persons not in a state of 
 subjection. 'La puissance politique' (says Montesquieu) 
 ' comprend n&essairement I'union de plusieurs families.' 
 The state 256. Again : Let us suppose a society which may be styled 
 o a ure. independent, or which is not a limb of another and larger 
 community. Let us suppose that the number of its members 
 is not extremely minute. And let us suppose it in the 
 savage condition, or in the extremely barbarous condition 
 which closely approaches the savage. Inasmuch as the given 
 society lives in the savage condition, or in the extremely 
 barbarous condition which closely approaches the savage, the 
 generality or bulk of its members is not in a habit of 
 obedience to one and the same superior. For the purpose 
 , of attacking an external enemy, or for the purpose of repelling 
 an attack made by an external enemy, the generality or bulk 
 of its members, who are capable of bearing arms, submits to 
 one leader, or to one body of leaders. But so soon as that 
 exigency passes, this transient submission ceases; and the 
 society reverts to the state which may be deemed its ordinary 
 state. The bulk of each of the families which compose the 
 given society, renders habitual obedience to its own peculiar 
 chief: but those domestic societies are themselves inde- 
 pendent societies, or are not united or compacted into one 
 political society by general and habitual obedience to a 
 certain and common superior. And, as the bulk of the 
 given society is not in a habit of obedience to one and the 
 same superior, there is no law (simply or strictly so styled) 
 which can be called the law of that given socielty or com- 
 • munity. The so-called laws which are common to the bulk 
 of the community, are purely and properly customary laws : 
 
THE DEFINITION OF SOVEREIGNTY 109 
 
 that is to say, laws which are set or imposed by the general 
 opinion of the community, but which are not enforced by 
 legal or political sanctions. — The state which I have briefly 
 delineated, is the ordinary state of the savage and inde- 
 pendent societies which live by hunting or fishing in the 
 woods or on the coasts of New Holland. It is also the 
 ordinary state of the savage and independent societies which 
 range in the forests or plains of the North American conti- 
 nent. It was also the ordinary state of many of the German 
 nations whose manners are described by Tacitus. 
 
 257. Now, since the bulk of its members is not in a habit 
 of obedience to one and the same superior, the given inde- 
 pendent society would (I believe) be esteemed a society in 
 a state of nature: that is to say, a society consisting of 
 persons not in a state of subjection. But such it could not 
 be esteemed, unless the term political were restricted to 
 independent societies whose numbers are not inconsiderable. 
 Supposing that the term political applied to independent 
 societies whose numbers are extremely minute, each of the 
 independent families which constitute the given society 
 would form of itself a political community : for the bulk of 
 each of those families renders habitual obedience to its own 
 peculiar chief. And, seeing that each of those families would 
 form of itself an independent political community, the given 
 independent society could hardly be styled with strictness 
 a natural society. Speaking strictly, that given society 
 would form a congeries of independent political communi- 
 ties. Unless the term political were' restricted to inde- 
 pendent societies whose numbers are not inconsiderable, 
 few of the many societies which are commonly esteemed 
 natural could be styled natural societies with perfect 
 precision. 
 
 258. For the reasons which I have now produced, and for 
 reasons which I pass in silence, we must, I believe, arrive at 
 
no THE DEFINITION OF SOVEREIGNTY 
 
 the following conclusion. — A given independent society, 
 whose number may be called inconsiderable, is commonly 
 esteemed a natural, and not a political' society, although the 
 generality of its members be habitually obedient or sub- 
 missive to a certain an'd common superior. And arriving at 
 that conclusion, we must proceed to tiiis further conclusion. 
 — In order that an independent society may form a society 
 political, it must not fall short of a number which may be 
 called considerable. 
 
 259. The lowest possible number which will satisfy that 
 vague edndition cannot be fixed precisely. But, looking at 
 many of the communities which commonly are considered 
 and treated as independent political societies, we must infer 
 tihat an independent society may form a society political, 
 although the number of its members exceed not a few 
 thousands, or exceed not a few hundreds. The ancient 
 Grison Confederacy (like the ancient Swiss Confederacy 
 with which the Grison was connected) was rather an 
 alliance or union of independent political societies, than 
 one independent community under a common sovereign. 
 Now the number of the largest of the societies which were 
 independent members of the ancient Grison Confederacy 
 hardly exceeded a few thousands. And the number of the 
 smallest of those numerous confederated nations hardly 
 exceeded a few hundreds. 
 
 260. Here I must briefly remark, that, though the 
 essential property which I have now described is an 
 essential or necessary property of independent political 
 society, it is not an essential property of subordinate 
 political society. If the independent society, of which it is 
 a limb or member, be a political and not a natural society, a 
 subordinate society may form a society political, although 
 the number of its members might be called extremely 
 minute. For example : A society incorporated by the state 
 
THE DEFINITION OF SOVEREIGNTY 111 
 
 for political or public purposes is a society or body politic : 
 and it continues to bear the character of a society or body 
 politic, although its number be reduced, by deaths or other 
 causes, to that of a small family or small domestic com- 
 munity.' 
 
 2j51. Having tried to determine the notion of sovereignty, Defini- 
 with the implied or correlative notion of independent ^^^.j^^^^^^, 
 
 eignty by 
 260. Q. (1) Define political society. Apply the definition to writers of 
 the following : — celebrity. 
 
 (a) The inhabitants of a borough. 
 (6) The shareholders of a railway company empowered to make 
 
 by-laws, 
 (c) The members of the House of Commons. 
 
 (2) Give illustrations of each of the following classes of 
 Societies : — 
 
 (a) Independent and Political. 
 /(6) PoUtical, but not independent. 
 \ (c) Independent, but not political. 
 \d) Neither independent nor political. 
 
 (3) Are any of the following societies " natural " t — 
 
 (a} An International Society of Anarchists. 
 (6) A crew of mutineers. 
 
 (c) The members of an Arctic expedition. 
 
 (d) Christendom. 
 
 (4) When temporal sovereignty was in the hands of the 
 papacy, the Pope, in addition to having subjects in the Austinian 
 sense, directed a large army of priests, who were living all over l- 
 the world, subjects of other sovereigns, yet forming a society, the 
 bulk of whose members professed obedience to himself. Where 
 should this society be placed in the Austinian scheme f 
 
 Note. — The importance of insisting upon numbers as an element 
 in the conception of an independent political society is greater 
 than may appear on a first view. Small groups of men may live 
 according to one law without much organization. Larger groups 
 almost necessarily imply a high degree of organization, the exist- 
 ence of a type of society with more or less distinct organs for the 
 various purposes of government. Most modern publicists would | 
 insist upon a still further element — the possession of a fixed! 
 territory. In future notes, the expression State will be generally 
 used in preference to the expression independent political society. 
 For the purposes of Jurisprudence the two expressions may be , 
 regarded as identical ; and the shorter is the more in accord with | 
 usage and convenience. 
 
112 THE DEFINITION OP SOVEREIGNTY 
 
 political society, I will produce and briefly examine a few 
 of the definitions of those notions which have been given by 
 writers of celebrity. 
 Bentham. 262. Distinguishing political from TUitural society, Mr. 
 Bentham, in his Fragment on Government, thus defines 
 the former: 'When a number of persons (whom we may 
 style subjects) are supposed to be in the habit of paying 
 obedience to a person, or an assemblage of persons, of a 
 \ known and certain description (whom we may call governor 
 I or governors), such persons altogether (subjects and 
 I governors) are said to be in a state of political society.' 
 And in order to exclude from his definition such a society 
 as the single family conceived of above, he adds a second 
 essential of political society, namely that the society should 
 be capable of indefinite duration.-i-Considered as a definition 
 of independent political society, this definition is defective. 
 In order that a given society may form a society political 
 and independent, the superior habitually obeyed by the bulk 
 or generality of its members must not be habitually obedient 
 to a certain individual or body : which negative character or 
 essential of independent political society Mr. Bentham has 
 forgotten to notice. And, since the definition in question is 
 a defective definition of independent political society, it is 
 also a defective definition of political society in general 
 Before we can define political society, or can distinguish 
 political society from society not political, we must determine 
 the nature of those societies which are at once political 
 and independent. For a political society which is not inde- 
 pendent is a member or constituent parcel of a political 
 society which is. Or (changing the expression) the powers 
 or rights of subordinate political superiors are merely 
 emanations of sovereignty. They are merely particles of 
 sovereignty committed by sovereigns to subjects.* 
 
 262. Q. It might seem not illogical to say that an independent 
 political society is a species of which political society is the 
 
THE DEf INITION OF SOVEREIGNTY 113 
 
 263. According to the definition of independent political Hobbes. 
 society which is stated or supposed by Hobbes in his excel- 
 lent treatises on government, a society is not a society 
 political and independent, unless it can maintain its inde- 
 pendence, against attacks from without, by its own intrinsic 
 or unaided strength. But if power to maintain its inde- 
 pendence by its own intrinsic strength be a character or 
 essential property of an independent political society, the 
 name will scarcely apply to any existing society, or to any 
 of the past societies which occur in the history of mankind. ( 
 fThe weaker of such actual societies as are deemed political 
 f and independent, owe their precarious independence to 
 j positive international morality, and to t} ]^. Tnnt.iia l fp^ pf^ nr 
 1 jealousies of stronger communi ties. The most powerful of 
 such actual societies as are deemed political and independent, 
 could hardly maintain its independence, by its own intrinsic 
 strength, against an extensive conspiracy of other inde- 
 pendent nations. — Any political society is (I conceive) 
 independent, if it be not dependent in fact or practice: 
 if the party habitually obeyed by the bulk or generality of 
 its members be not in a habit of obedience to a determinate 
 individual or body. 
 
 264 In his great treatise on international law, Grotius Grotina. 
 defines sovereignty in the following manner. 'Summa 
 potestas civilis ilia dicitur, cujus actus alterius juri non 
 subsunt, ita ut alterius voluntatis humanse arbitrio irriti 
 possint reddi. Alterius cum dico, ipsum exclude, qui summa 
 potestate utitur; cui voluntatem mutare licet.' Which 
 definition is thus rendered by his translator and com- 
 mentator Barbeyrac. 'La puissance souveraine est celle 
 
 genus ; and that having once defined the latter it is easy to define 
 the former by the addition of some such test as Austin's negative 
 maik of sovereignty. What is the ground of Austin's insistence 
 upon the contrary 1 
 
114 THE DEFINITION OF SOVEREIGNTY 
 
 dont les actes sont ind^pendans de tout autre pouvoir 
 sup^rieur, en sorte qu'ils ne peuvent Stre annulMs par 
 aucune autre volont6 humaine. Je dis, par aucune autre 
 volonU humaine ; car il f aut excepter ici le souverain lui- 
 mSme, k qui il est libre de changer de volonte.' — Now in 
 order that an individual or body may be sovereign in a 
 given society, two essentials must unite. The generality 
 of the given society must render habitual obedience to that 
 certain individual or body: whilst that individual or body 
 must not be habitually obedient to a determinate human 
 superior. But the former and positive essential of sovereign 
 or supreme power is not inserted by Grotius in his formal 
 definition. And the latter and negative essential is stated in- 
 accurately. Sovereign power (according to Grotius) is com- 
 pletely independent of other human power ; inasmuch that 
 its acts cannot be annulled by any human will other thau 
 its own. But if complete independence be of the essence 
 of sovereign power, there is not in fact the human power 
 to which the epithet sovereign will apply with propriety. 
 Every government, let it be never so powerful, renders 
 occasional obedience to commands of other governments. 
 Every government defers frequently to those opinions and 
 sentiments which are styled international law. And every 
 government defers habitually to the opinions and sentiments 
 of its own subjects.. If it were not in a habit of obedience 
 to the commands of a determinate party, a government bas 
 all the independence which a government can possibly enjoy.* 
 
 264. Q. When Grotius postulates of Sovereignty that its acts 
 cannot be rendered void by the act of any other human will, 
 does he mean void in fact or void in law ? Does he mean anything 
 more than that a political authority is supreme when its acts 
 can only be rendered void in law by its own authority % ^ 
 
 Note. — Political and Legal Sovereignty. — The consideration 
 
 ' Of. Grotius, " De jure belli ac pacis," Lib. I, Cap. viii, 7. 
 
THE DEFINITION" OF SOVEREIGNTY 115 
 
 265. According to Von Martens of Gottingen, 'a sovereign Von 
 government is a government which ought not to receive com- *^*''*^^"*- 
 mands from any external or foreign government.' — Of the 
 conclusive and obvious objections to this definition of 
 sovereignty the following are only a few. — 1. If the defini- 
 tion in question will apply to sovereign governments, it will 
 also apply to subordinate. If a sovereign ought to be free 
 from the commands of foreign governments, so ought every 
 government which is merely the creature of a sovereign, and 
 which holds its powers or rights as a mere trustee for its 
 authtor. 2. Whether a given government be or be not 
 supreme, is rather a question of fact than a question of 
 international law. A government reduced to subjection is 
 actually a subordinate government, although the state of 
 subjection wherein it is actually held be repugnant to the 
 positive morality which obtains between nations or sover- 
 eigns. 3. It cannot be affirmed absolutely of a sovereign 
 or independent government, that it cmght not to receive 
 commands from foreign or external governments. The in- 
 termeddling of independent governments with other inde- 
 pendent governments is often repugnant to the morality 
 which actually obtains between nations. But according to 
 
 of the foregoing question may serve to reveal a Berious flaw in the 
 Austinian theory of sovereignty. As Professor Dicey has re- 
 marked, sometimes Austin means by sovereign the legal sovereign, 
 sometimes the political sovereign — the former being determined 
 by reference to law, the latter by reference to fact. " That body 
 is politically sovereign the wUl of which is ultimately obeyed 
 by the citizens of the State. . . . That body is legal sovereign, in 
 which resides the power of law-making unrestricted by any legal 
 limit." 1 Although practical difficulties may exist in applying 
 this distinction to actual constitutions, the distinction is one 
 of great importance. Austin's failure to grasp it must be remem- 
 bered. In a treatise on Jurisprudence the term sovereign without 
 qualifying epithet should indicate exclusively the legal sovereign. 
 
 1 " Law of the Constitution," 5th ed., p. 358. 
 
116 THE DEFINITION OF SOVEREIGNTY 
 
 I that morality which actually obtains between nations (and 
 to that international morality which general utility com- 
 mends), no independent government ought to be freed 
 completely from the supervision and control of its fellows. 
 4. In this definition by Von Martens (as in that which is 
 given by Grotius) there is not the shadow of an allusion to 
 the positive character of sovereignty. The definition points 
 at the relations which are borne by sovereigns to sovereigns: 
 but it omits the relations, not less essential, which are borne 
 by sovereigns to their own subjects^ | 
 
CHAPTER IV 
 FORMS OF GOVERNMENT 
 
 266. I have now endeavoured to determine the general Purpose of 
 notion of sovereignty, including the general notion of inde- ly^y " , 
 pendent political society. But in order that I may further VI. 
 elucidate the nature or essence of sovereignty, and of the 
 independent political society which sovereignty implies, I 
 
 will call the attention of my hearers to a few concise remarks 
 upon the following subjects or topics.- |fr. The various shapes 
 which sovereignty may assume, or the various possible forms 
 of supreme government. / 2. The real and imaginary limits 
 which bound the power of sovereigns, and by which the 
 power of sovereigns is supposed to be bounded, 1 3. The 
 origin of government, with the origin of political society: or 
 the causes of the habitual obedience which is rendered by 
 the bulk of subjects, and from which the power of sovereigns 
 to compel and restrain the refractory is entirely or^ mainly 
 derived. 
 
 267. An independent political society is divisible into two The forms 
 portions : namely, the portion of its members which is ^^^ipreme 
 sovereign or supreme, and the portion of its members which ment. 
 
 is merely subject. The sovereignty can hardly reside in aM| 
 the members of a society: for it can hardly happen that 
 some of those members shall not be naturally incompetent 
 to exercise sovereign powers. In most actual societies, the 
 sovereign powers are engrossed by a single member of the 
 whole, or are shared exclusively by a very few of its 
 members: and even in the actual societies whose govern- 
 
 117 
 
118 FORMS OF GOVERNMENT 
 
 ments are esteemed popular, the sovereign number is a 
 
 slender portion of the entire political community. An 
 
 independent political society governed by itself, or governed 
 
 by a sovereign body consisting of the whole community, is 
 
 not impossible; but the existence of such societies is so 
 
 extremely improbable, that, with this pa^fiingnotice, I throw 
 
 them out of my account.* 
 
 Every 268. Every society political and independent is therefore 
 
 supreme divisible into t wo g ortjjimg: namely, the portion of its 
 
 mentis a members which is sovereign or supreme, and the portion 
 
 mmarchy ^^ j^g members which is merely subiect. In case that 
 
 or an ana- _ "' ■" 
 
 tocracy (in Sovereign portion consists of a single member, the supreme 
 
 the generic government is properly a mona rchy, or the sovereign is 
 J properly a monarch. In case that sovereign portion consists 
 of a number of members, the supreme government may be 
 styled an aristocracy (in the generic meaning of the ex- 
 pression). — And here I may briefly remark, that a monarchy 
 or government of one, and an aristocracy or government of 
 a number, are essentially and broadly distinguished by the 
 
 1 following important difference. In the case of a monarchy, 
 the sovereign portion of the community is simply or purely 
 sovereign. In the case of an aristocracy, that sovereign 
 I portion is sovereign as viewed from one aspect, but is also 
 (subject as viewed from another. In the case of an aris- 
 tocracy, the sovereign number is an aggregate of individuals, 
 and, commonly, of smaller aggregates composed by those 
 individuals. Now, considered collectively, or considered in 
 its corporate character, that sovereign number is sovereigij 
 and independent. But, considered severally, the individuals 
 and smaller aggregates composing that sovereign number are 
 
 267. The population of the United Kingdom, according to the 
 census of 1901, was 41,454,621. The number of electors upon 
 the register in 1901 was 6,517,719. 
 
FORMS OF GOVERNMENT 119 
 
 subject to the supreme body of which they are component - 
 parts. 
 
 269. In every monarchy, the monarch renders habitual 
 Beference to the opinions and sentiments held and felt by llis 
 Subjects. But in almost every monarchy, heuJ^lgrs especially - 
 to the opinions and sentiments, or he consults especially 
 the interests and prejudices, of some especially influential 
 though narrow portion of the community. Hence it has 
 been concluded, that there are no monarchies properly so 
 called: that every supreme government is a government 
 of a number. This, though plausible, is an error. If he 
 habitually obeyed the r.om,m.ands nf a determinate portion of 
 the community, either the sovereignty would reside in the 
 miscalled monarch, with that determinate body of his mis- 
 called subjects : or the sovereignty would reside exclusively 
 in that determinate bbdy, whilst he would be merely a 
 minister of the supreme government. Por example : In 
 case the corps of Janizaries, acting as an organized body, 
 habitually addressed commands to the Turkish sultan, the 
 Turkish sultan, if he habitually obeyed those commands, 
 would not be sovereign in the Turkish empire. The 
 sovereignty would reside in the corps of Janizaries, with 
 the miscalled sultan or monarch : or the sovereignty would 
 reside exclusively in the corps of Janizaries, whilst he would 
 be merely their vizier or prime minister. But habitual defer- 
 ence to opinions of the community, or to opinions of a portion 
 of the community, consists with that independence which is 
 one of the essentials of sovereignty. If it did not, none of 
 the governments deemed supreme would be truly sovereign ; 
 for habitual deference to opinions of the community, or 
 habitual and especial deference to opinions of a portion 
 of the community, is rendered by every aristocracy, or by j 
 every gpvernment of a number, as well as by every monarch. 
 The habitual independence which is one of the essentials of 
 
120 FORMS OF GOVERNMENT 
 
 sovereignty, is merely habitual independence of laws im- 
 perative and proper. By laws which opinion imposes, every 
 member of every society is habitually determined. 
 Classifica- 270. Governments which may be styled aristocracies (in 
 tion of ^jjg generic meaning of the expression) are not unfrequently 
 cies (a) by distinguished into the three following forms : namely, o%- 
 referenoe \ archies, aristocracies (in the specific meaning of the name), 
 merioal (and democracies. If the proportion of the sovereign number 
 ratio. to the number of the entire community be deemed extremely 
 small, the supreme government is styled an oligarchy. If 
 the proportion be deemed small, but not extremely small, 
 the supreme government is styled an aristocracy (in the 
 specific meaning of the name). If the proportion be deemed 
 large, the supreme government is styled popular, or is styled 
 ! a"Hemocracy. But these three forms of aristocracy (in the 
 generic meaning of the expression) can hardly be dis- 
 tinguished with precision, or even with a distant approach 
 to it. A government which one man shall deem an oligarchy, 
 will appear to another a liberal aristocracy : whilst a govern- 
 ment which one man shall deem an aristocracy, will appear 
 to another a narrow oligarchy. The proportion, moreover, of 
 the sovereign number to the number of the entire com- 
 munity, may stand, it is manifest, at any point in a long 
 series of minute degrees.* 
 
 270. Q. Is Austin thinking in this section of the political or 
 legal sovereign 1 
 
 Note. — If by sovereign number the legal sovereign be meant, 
 Austin's statement of the classification is defective. In modern 
 politics, it is not the numerical ratio which the legal sovereign 
 bears to the whole community that determines whether the com- 
 munity be democratic, but rather the numerical ratio of the- 
 electoral body to the whole community. Moreover, democracy aa- 
 ordinarily understood implies an active popular interest in govem- 
 nient, as well as the existence of such machinery as popular 
 assemblies and the franchise. In other words, usage imposes 
 a material as well as a formal test. It implies, in addition to 
 
FORMS OF GOVERNMENT 121 
 
 271. The distinctions between aristocracies to which I (J) By re- 
 have now adverted, are founded on differences between the ^"■™'=® 
 
 ' to the 
 
 proportions which the number of the sovereign body may modes in 
 
 bear to the number of the community. Other distinctions ^^^'^^_ 
 
 sovereign 
 
 between aristocracies are founded on differences between the power is 
 podes wherein the sovereign number may share the sovereign sliared. 
 powers. 
 
 272. For though the sovereign number may be a homo- 
 geneous body, or a body of individual persons whose political 
 characters are similar, it is commonly a mixed or hetero- 
 geneous body, or a body of individual persons whose political 
 characters are different. The sovereign number, for example, 
 may consist of an oligarchical or narrower, and a democrati- 
 cal or larger body: of a single individual person styled an 
 emperor or king, and a body oligarchical, or a body demo- 
 cratical; or of a single individual person bearing one of 
 those names, and a body of the former description, with 
 another of the last-mentioned kind. And in any of these 
 cases, or of numberless similar cases, the various constituent 
 members of the heterogeneous and sovereign body may share 
 the sovereign powers in any of infinite modes. 
 
 273. The infinite forms of aristocracy which result from Of snch 
 those infinite modes, have not been divided systematically *"s*°°™- 
 
 " •' oies as are 
 
 into kinds and sorts, or have not been distinguished sys- styled 
 
 limited 
 
 manhood suffrage, the existence of a strong public opinion con- , . 
 earning itself with political questions and controlling the course 
 of legislation. Democracy, for the purposes of modern politicsj 
 is a political system under which the people rule through chosen! <^ 
 representatives, over whom they exercise a real and constantj 
 control.'- 
 
 " Cf . Jethro Brown, " The New Democracy," p. 15. For a useful 
 criticism of the Aristotelian classification of governments into one, 
 few, and many, v. Seeley, " Introduction to Political Science," pp. 293- 
 360. On the general question of the classification of governments, an 
 excellent account is given by Professor Burgess, " Political Science and 
 Constitutional Law," II, 1-40. 
 
122 FORMS OP GOVERNMENT 
 
 tematically by generic and specific names. But some of those 
 infinite forms have been distinguished broadly from the rest, 
 and have been marked with the common name of limited 
 monarchies. 
 
 274. In all or most of the governments which are styled 
 limited monarchies, a single individual shares the sovereign 
 powers with an aggregate or aggregates of individuals : the 
 share of that single individual, be it greater or less, surpass- 
 ing or exceeding the share of any of the other individuals who 
 are also constituent members of the supreme and hetero- 
 geneous body. And by that pre-eminence of share in the 
 sovereign or supreme powers, and (perhaps) by precedence 
 in rank or other honorary marks, that single individual is 
 distinguished, more or less conspicuously, from any of the 
 other individuals with whom he partakes in the sovereignty. 
 But he is not a monarch in the proper acceptation of the 
 term : nor is the mixed aristocracy of which he is the fore- 
 most member, a monarchy properly so called. Unlike a 
 monarch in the proper acceptation of the term, that single 
 individual is not a sovereign, but is one of a sovereign 
 number, and lives in a state of subjection. 
 
 275. Limited monarchy, therefore, is not monarchy. It 
 is one or another of those infinite forms of aristocracy which 
 result from the infinite modes wherein the sovereign number 
 may share the sovereign powers. And, like any other of 
 those infinite forms, it belongs to one or another of those 
 three forms of aristocracy which I have noticed in a preced- 
 ing paragraph. 
 
 276. As meaning monarchical power limited by positive 
 law, the name limited monarchy involves a contradiction in 
 terms. For a monarch properly so called is sovereign or 
 supreme; and, as I shall show hereafter, sovereign or 
 supreme power is incanable of legal limitation, whether it 
 reside in an individual, or in a number of individuals. It is 
 
FORMS OF GOVERNMENT 123 
 
 true that the power of an aristocracy, styled a limited mon- 
 archy, is limited by positive morality, and also by the law of 
 God. But, the power of every government being limited by 
 those restraints, the name limited monarchy, as pointing to 
 those restraints, is not a whit more applicable to such aris- 
 tocracies as are marked with it, than to monarchies properly 
 so called. — ^And as the name is absurd or inappropriate, so is 
 its application capricious. Its application, indeed, is com- 
 monly determined by a purely immaterial circumstance : by 
 the nature of the title, or the nature of the name of office, 
 which that foremost member of the mixed aristocracy hap- 
 pens to bear. If he happen to bear a title which commonly 
 is borne by monarohs in the proper acceptation of the term, 
 the supreme government whereof he is a member is usually 
 styled a limited monarchy. Otherwise, the supreme govern- 
 ment whereof he is a member is usually marked with a 
 different name. For example : The title of /3aa-i\evi, rex, or 
 king, is commonly borne by monarchs in the proper accepta- 
 tion of the term : and since our own king huppens to bear 
 that title, our own mixed aristocracy of king, lords, and 
 commons is usually styled a limited monarchy. If his 
 share in the sovereign powers were exactly what it is now, 
 but he were called protector, president, or stadtholder, the 
 mixed aristocracy of which he is a member would probably 
 be styled a republic. And for such verbal differences 
 between forms of supreme government has the peace of 
 mankind been frequently troubled by ignorant and head- 
 long fanatics. 
 
 277. To the foregoing brief analysis of the forms of incidental 
 supreme government, I append a short examination of the ^"^^'^• 
 four following topics : for they are far more intimately 
 connected with the subject of that analysis than with any 
 of the other subjects which the scope of my lecture em- 
 braces, yi. The exercise of sovereign powers, by a monarch or 
 
124 FORMS OF GOVERNMENT . 
 
 sovereign body, through political subordinates or delegates 
 representing their sovereign author. , '2. The distinction of 
 sovereign and other political powers, into such as are legis- 
 lative, and such as are executive or administrative. jS. The 
 true natures of the communities or governments whlcS^iuFe 
 styled by writers on positive international law half-sovereign 
 states. |4jThg, nature of a composite state or a supreme 
 federal government: with the nature of a system of con- 
 federated states, or a permanent confederacy of supreme 
 governments. 
 
 (1) Dele- 278. In an independent political society of the smallest 
 gation. possible magnitude, inhabiting a territory of the smallest 
 possible extent, and living under a monarchy or an extremely 
 narrow oligarchy, all the supreme powers brought into exer- 
 cise (save those committed to subjects as private persons) 
 might possibly be exercised directly by the monarch or 
 supreme body. But by every actual sovereign (whether the 
 sovereign be one individual, or a number or aggregate of 
 individuals), some of those powers are exercised through 
 
 (political subordinates or delegates representing their sover- 
 eign author. This is rendered absolutely necessary by 
 innumerable causes. For example, if the number of the 
 society be large, or if its territory be large, the quantity of 
 work to be done in the way of political government is more 
 than can be done by the sovereig n wit hout the assistance of 
 ministers. If the society be g^vernm by a popular body, 
 there is some of the business oTgovernment which cannot 
 ir I be done by the sovereign without the intervention of repre- 
 sentatives ; for there is some of the business of government 
 to which the body is incompetent by reason of its own bulk; 
 and some of the business of government the body is pre- 
 vented from performing by the private avocations of its 
 members. 
 
 279. In most or many of the societies whose supreme 
 
FORMS OF GOVERNMENT 125 
 
 governments are monarchical, oligarchical, or aristocratical 
 (in the specific meaning of the name), many of the sovereign 
 powers are exercised by the sovereign directly. This is also 
 the case even in some of the societies whose supreme govern- 
 ments are popular. For example : In all or most of the 
 democracies of ancient Greece and Italy, the sovereign 
 people or number, formally assembled, exercised directly 
 many of its sovereign powers. And in some of the Swiss 
 Cantons whose supreme governments are popular, the sover- 
 eign portion of the citizens, regularly convened, performs 
 directly much of the business of government. 
 
 280. But in many of the societies whose supreme govern- 
 ments are popular, the sovereign or supreme body (or any 
 numerous body forming a component part of it) exercises 
 through representatives, whom it elects and appoints, the 
 whole, or nearly the whole, of its sovereign or supreme 
 powers. In our own country, for example, one component 
 part of the sovereign or supreme body is the numerous body 
 of the commons, who share the sovereignty with the king 
 and the peers, and elect the members of the commons' house. 
 Now the commons exercise through representatives the 
 whole of their sovereign powers, except their sovereign 
 power of electing and appointing representatives to repre- 
 sent them in the British Parliament. 
 
 281. Where a sovereign body (or any smaller body form- Delega- 
 ing a component part of it) exercises through representatives ^°^ ^"^" 
 the whole of its sovereign powers, it may delegate those its trust, 
 powers to those its representatives, in either of two modes. 
 
 ' Lit may delegate those its powers to those its representa- 
 tives, subject to a trust or trusts. /2. It may delegate those 
 its powers to those its representatives, absolutely or un- 
 conditionally: insomuch that the representative body, during i 
 the period for which it is elected and appointed, is invested I 
 completely with the sovereign character of the latter. | 
 
126 FORMS OP GOVERNMENT 
 
 282. For example : The commons delegate their powers to 
 the members of the commons' house, in the second of the 
 above-mentioned modes. During the period for which those 
 members are elected, or during the parliament of which 
 those members are a limb, the sovereignty is possessed by 
 the king and the peers, with the members of the commons' 
 house, and not by the king and the peers, with the delegating 
 body of the commons. The powers of the commons are 
 delegated so absolutely to the members of the commons' 
 house, that this representative assembly might concur with 
 the king and the peers in defeating the principal ends for 
 which it is elected and appointed. It might concur, for 
 instance, in making a statute which would lengthen its own 
 duration from seven to twenty years; or which would 
 annihilate completely the actual constitution of the govern- 
 ment, by transferring the sovereignty to the king or the 
 peers from the tripartite body wherein it resides at present, 
 
 283. But though the commons delegate their powers in the 
 second of the above-mentioned modes, it is clear that they 
 might delegate them subject to a trus t or trusts. The 
 representative body, for instance, might be bound to use 
 those powers consistently with specific ends pointed out by 
 the electoral: or it might be bound, more generally and 
 vaguely, not to annihilate, or alter essentially, the actual 
 constitution of the supreme government. Where such a trust 
 is imposed by a sovereign or supreme body (or by a smaller 
 body forming a component part of it), the trust is enforced 
 
 j by legal, or by merely moral sanctions. The representative 
 
 j body is_baundby_ajgo§ilixaJaw sv laws : gnt is merely bound 
 
 by a fear that it may offend the bulk of the community, in 
 
 case it shall break the engagement which it has contracted 
 
 with the .electoral. 
 
 284. And here I may briefly remark, that this last is 
 the position which really is occupied by the members of 
 
FORMS OF GOVERNMENT 127 
 
 the commons' house. Adopting the language of most of the 
 writers who have treated of the British Constitution, I 
 commonly suppose that the king and the lords, with the 
 members of the commons' house, form a tripartite body 
 which is sovereign or supreme. But, speaking accurately, 
 the members of the commons' house are merely trustees for 
 the body by which they are elected and appointed: and, 
 consequently, the sovereignty always resides in the king and 
 the peers, with the electoral body of the commons. That 
 a trust is imposed by the party delegating, and that the 
 party representing engages to discharge the trust, seems to 
 be imported by the correlative expressions delegation and 
 represeriiation. It were absurd to suppose that the delegating 
 empowers the representative party to defeat or abandon any 
 of the purposes for which the latter is appointed: to suppose, 
 for example, that the commons empower their representatives 
 in parliament to relinquish their share in the sovereignty to 
 the king and the lords. — The supposition that the powers of 
 the commons are delegated absolutely to the members of the 
 commons' house probably arose from the following causes: 
 1. The trust imposed by the electoral body upon the body ' 
 representing them in parliament, is tg,ci t rather than express: 
 it arises from the relation between the bodies as delegating 
 and representative parties, rather than from oral or written 
 instructions given by the former to the latter. But since 
 it arises from that relation, the trust is general and vague. 
 The representatives are merely bound, generally and vaguely^ 
 to abstain from any such exercise of the delegated sovereign 
 powers as would tend to defeat the purposes for which they- 
 are elected and appointed. 2. The trust is simply enforced 
 by moral sanctions. In other words, that portion of con- 
 stitutional law which regards the duties of the representative 
 towards the electoral body, is positive moraUty merely. Nor 
 is this extraordinary. For (as I shall show hereafter) all 
 
128 
 
 FORMS OF GOVERNMENT 
 
 (2) Legis- 
 lative V. 
 executive 
 Powers. 
 
 constitutional law, in every country whatever, is, as against 
 the sovereign, in that predicament: and much of it, in 
 every country, is also in that predicament, even as against 
 parties who are subject or subordinate to the sovereign, and 
 who therefore might be held from infringing it by legal or 
 political sanctions.* 
 
 285. From the exercise of sovereign powers by the 
 sovereign directly, and also by the sovereign through politi- 
 cal subordinates or delegates, I pass to the distinction of 
 sovereign, and other political powers, into such as are legisla- 
 tive, and such as are executive or administrative. 
 
 286. It seems to be supposed by many writers, that 
 legislative political powers, and executive political powers, 
 may be distinguished precisely, or, at least, with an approach 
 to precision : and that in every society whose government is 
 a government of a number, or, at least, in every society 
 
 HI 
 
 284. Sections 278-84 raise several difficulties with respect to 
 sovereignty in Great Britain. First we are told that the sovereign 
 is the King, Lords, and the electorate of the Commons. After- 
 wards we are told that, during the continuance of Parliament, the 
 King and Parliament are sovereign. Again, after having been told 
 that the electorate delegates its powers unconditionally, we are 
 informed subsequently that the delegation is subject to a trust. 
 The explanatidn of these contradictions may be found, partly in 
 •the confusioq of political and leg al soveireigntv. and partly in 
 a reluctance on Austin's part to adrniflnat sovereignty, the 
 possession of which he regards as an essential characteristic of an 
 independent political society, could ever be in abeyance. To-day 
 it will be generally conceded that, whilst political sovereignty may 
 be an abiding fact, its organization in the form of the legal sover- 
 eign may be in abeyance. According to the existing theory of 
 the British Constitution, true or legal sovereignty undoubtedly 
 resides in the King and Parliament.^ The only way in which the 
 abeyance of sovereignty can be avoided is to attribute sovereignty 
 to the State itself, an attribution towards which legal theory is 
 slowly tending, but which is in advance of existing orthodoxy.* 
 
 ' Cf. Professor Dicey, " Law of the Constitution," 5th ed., pp. 37-81. 
 ^ Of. infra Excursus A and B. 
 
FORMS OF GOVERNMENT 129 
 
 whose government is a limited monarchy, the legislative 
 sovereign powers, and the executive sovereign powers, belong 
 to distinct parties. For example, according to Sir William 
 Blackstone, the legislative sovereign powers reside in the 
 parliament : that is to say, in the tripartite sovereign body 
 formed by the king, the members of the house of lords, and 
 the members of the house of commons. But, according to 
 the same writer, the executive sovereign powers reside in the 
 king alone. 
 
 » 287. Now the distinction of political powers into such asi 
 jare legislative, and such as are executive, scarcely coincidesj 
 /with the distinction of those powers into such as are supreme J 
 I and such as are subordinate : for it is stated or assumed by 
 the writers who make the former distinction, that sovereign 
 political powers (and, indeed, subordinate also) are divisible 
 into such as are legislative and such as are executive. If the 
 distinction of political powers into legislative and executive 
 have any determinate meaning, it must be this : The former 
 are powers of establishing laws, and of issuing other com- 
 mands : whilst the latter are powers of administering, or of 
 carrying into operation, laws or other commands already 
 established or issued. But the distinction, as thus under- 
 stood, is far from approaching to precision. For of all the 
 instruments or means by which laws and other commands 
 are administered or executed, laws and other commands are 
 incomparably the most frequent : insomuch that most of the 
 powers deented executive or administrative are themselves 
 legislative powers, or involve powers which are legislative \ 
 For example: Laws are mainly administered by courts of 
 justice through judgments or decrees which are often them- 
 selves laws proper. 
 
 288.! That the legislative sovereign powers, and the 
 executive sovereign powers, bftlnnpr jp any annip.t.y to dis- ^ 
 tinct parties, is a supposition too palpably false to endure 
 
 K 
 
130 FORMS OF GOVERNMENT 
 
 a moment's examination. Of the numerous proofs of its 
 falsity which it were easy to produce the following will 
 more than suffice.- f-l. Of the laws or rules made by the 
 _„ British parliament, or by any supreme legislatur e, many are 
 subsidiary, and are intended to be subsidiary, to the due 
 execution of others. And as making laws or rules sub- 
 servient to that purpose, it is not less executive than courts 
 of justice as making regulations of procedure.- i-2. In almost 
 
 I every society, judicial powers, commonly esteemed executiv e 
 °' administrativ e, are exercisec^ directly by the supre me 
 legislature. For example : The Eoman emperors or princes, 
 who were virtually sovereign in the Eoman empire or world, 
 not only issued the edictal constitutions which were general 
 rules or laws, but, as forming the highest or ultimate 
 tribunal of appeal, they also issued the particular constitu- 
 tions which were styled decretes or judgments. In libera 
 repuhlica, or before the virtual dissolution of the free or 
 popular government, the sovereign Eoman people, then the 
 supreme legislature, was a high court of justice for the trial 
 of criminal causes. The powers of supreme judicature in- 
 hering in the modern parliament, or the body formed by the 
 king and the upper and lower houses, have ever (I believe) 
 been dormant, or have never been brought into exercise: 
 for, as making the particular but ex post facto statutes which 
 are styled acts of attainder, it is not properly a court of 
 , justice. But the ancient parliament, formed by the king 
 : and the barons, of which the modern is the offspring, was 
 J the ultimate court of appeal as well as the sovereign legisla- 
 \ ture.— i3. The present British constitution aiibrds not the 
 slightest "countenance to the supposition which I am now 
 examining. It is absurd to say that the parliament has the 
 legislative sovereign powers, but that the executive sovereign 
 powers belong to the king alone. If the parliamgpt (as 
 Blackstone affirms) be sovereign or absolute, every sovereign 
 
FORMS OF GOVERNMENT 131 
 
 power must belong to that sovereign body, or to one or more 
 of its members as forming a part or parts of it. The powers 
 of the king considered as detached from the body, or the 
 powers of any of its members considered in the same light, 
 are not sovereign powers, but are simply or purely sub- 
 ordinate, or (changing the phrase) if the king or any of its 
 members, considered as detached from the body, be invested 
 with political powers, that member as so detached is merely 
 a minister of the body, or those political powers are merely 
 emanations of jta. sovereignty. Besides, political powers 
 which surely may be deemed executive are exercised by each 
 of the houses. For example, in civil causes, the house of 
 lords is the ultimate court of appeal. And the political 
 powers exercised by the king which surely may be deemed 
 legislative, are of vast extent and importance. As captain 
 general, for example, he makes articles of war: that is to 
 say, laws which regard especially the discipline or govern- 
 ment of the soldiery. As adm jfliatering t^ j^ e law , through 
 subordinate courts of justice, he is the author of the rules of 
 procedure which they have established avowedly, or in the 
 properly legislative mode : and (what is of greater import- 
 ance) he is the author of that measureless system of judge- 
 made rules of law, or rules of law made in the judicial 
 manner, which has been established covertly by those subor- 
 dinate tribunals as directly exercising their judicial func- 
 tions.* 
 
 288. Austin's treatment of the division of governmental powers 
 into legislative, executive, and judicial, has been subjected to 
 severe criticism. The subject is closely related to some topics 
 already discussed. In the note to Section 60, reference was made to 
 the distinction between general and particular commands — a dis- 
 tinction suggesting, though not identical with, that between legis- 
 lative and executive action. In the note to Section 157, 1 referred 
 to the distinction between positive laws and the general commands 
 which are enforced by the State merely as incidental to the 
 practical application of positive laws. In the present place the 
 
132 FOEMS OF GOVERNMENT 
 
 I 289. Of all the larger divisions * of political powers, the 
 
 /division of those powers into swpreme and subordinate is 
 
 j perhaps the only precigp. one. The former are the political 
 
 powers, infinite in number and kind, which, partly brought 
 
 into exercise, and partly lying dormant, belong to ajfljgjeigp 
 
 following topics deserve consideration : the differentiation between 
 legislative, executive, and judicial functions ; the need for a corres- 
 ponding differentiation between governmental organs ; the imper- 
 fections of the latter differentiation in existing constitutions; 
 and the relation of the legislature to the executive in the British 
 Constitution. 
 
 (1) The differentiation between legislative, executive, and judicial 
 functions. — The differentiation was developed by Aristotle, from 
 whose remarks upon the subject several interesting passages may 
 still be quoted with advantage : " Every polity consists of three 
 departments, and a good legislator is bound to consider what is 
 expedient to particular politics in respect of each. . . . The first 
 of the three points is the nature of the body which deliberates on 
 affairs of State ; secondly, the nature of the Executive, i.e. the 
 offices to be created, the extent of their jurisdiction, and the right 
 system of election; and thirdly, the nature of the judicial body. 
 . . . The deliberative body is supreme in all questions of war and 
 peace, the formation and dissolution of alliances, the enactment of 
 laws, sentences of death, exile, and confiscation ; to it belongs the 
 election of the officers of State, and to it they are responsible 
 at the expiration of their term of office. ... It is not an easy 
 matter at the outset to determine the character of 'the positions 
 which are described as offices of State. For there are many mere 
 superintendents necessary to the political association, and, as these 
 are certainly not officers of State, it is not correct to regard all 
 functionaries appointed either by suffrage or lot as officers. . . . 
 Some offices of superintendence are poUtical, whether the super- 
 intendence is over all the citizens in respect of a particular 
 function, as, e.g. the superintendence of a general in the field 
 of battle, or departmental, like that of a censor of women or boys. 
 Others again are economic — it is a common thing, e.g. to elect 
 inspectors of weights and measures — and others again simply 
 menial, to which people, if they are wealthy, appoint slaves. . . • 
 In large States it is equally possible and right to have a single 
 office appointed to a single work. . , , In small States on the 
 other hand . , . there is no reason why several functions should 
 not be assigned to the same persons, for they will not be any 
 impediment to one another, and in view of the scanty population 
 
FORMS OF GOVERNMENT 133 
 
 '^ (Mj H|-.atP!. The latter are those portions of the supreme powers 
 which are delegated to political subordinates : such political 
 subordinates being subordinate merely, or also immediate 
 partakers in the supreme powers. 
 
 it is necessary to constitute the offices on the principle of spit- 
 candlesticks." 1 
 
 Suggestive discussions of the division of governmental functions 
 will be found in the works of Locke, Rousseau, and Montesquieu. 
 Eousseau contended that the State contains two powers — the will 
 or legislative power, and physical force or executive power. " La 
 loi veut, le roi fait." ^ Montesquieu developed the position that 
 the differentiation of function demanded, in the interests of 
 security and freedom, a corresponding differentiation of organ.' 
 Among modern definitions, the most famous is that of the great 
 American, Marshall, C. J. : "The distinction between the depart- 
 ments undoubtedly is, that the legislature makes, the executive 
 executes, and the judiciary construes, the law."* 
 
 (2) 2%e need for a corresponding differentiation of organs. — 
 Austin, while not denying the distinction between legislative, 
 executive, and judicial functions, criticizes the view that the dis- 
 tinction involves a corresponding distinction of State organs. 
 The sovereign, he holds, is one and undivided. Had he grasped 
 the distinction between the State (with its organization as the 
 ' legal sovereign) and the Government, he, would have realized 
 the possibility of constitutions wherein an almost complete division 
 of governmental powers might co-exist witJjuaajiadixiiifii.sojpr- 
 ^ ^ei^ty . Even with regard to constitutions in which the dis- 
 tmction between the legal sovereign and the government is not 
 apparent, some differentiation of governmental organs has been 
 invariably realized. The reason for the differentiation has been 
 stated to be the prevention of tyranny — an explanation not 
 without historical basis. But apart from the danger of tyranny, 
 the differentiation of organs is justified by considerations of 
 governmental efficiency. It is an application of the great principle 
 of the division of labour. The functions of the legislator, govern- 
 mental official, and judge are so distinct that success in one 
 department is no proof of capacity in another. The work in each 
 department will be the better done if undertaken by distinct 
 
 / 
 
 ' Weldon, "The Politics of Aristotle," pp. 293-300. 
 ' " Le Contrat Social," III, 1., cf. Locke, " Second Treatise on 
 Govemiuent," §§ 143-8. 
 
 3 " L'esprit dea Lois " (" La Constitution d'Angleterre »), XI, 6. 
 * Cooley's " Constitutional Limitations," 6th ed., p. 109, 
 
134 FORMS OF GOVERNMENT 
 
 (3) Half 290. There were formerly in Europe many of the com- 
 Sovereign umnitiga or governments which are styled by writers on 
 positive international law half sovereign states. In conse- 
 quence of the mighty changes wrought by the Prench revo- 
 
 persons. The increasing complexity of modern States, while it 
 makes the fact more ohvious, also serves to create a demand for 
 hitherto unrecognized forms of differentiation. Thus MiU ad- 
 vocated the creation of a small and select body which should 
 form a sort of Legislative Commission empowered to make laws 
 under Parliamentary control. The importance of at least main- 
 taining the existing degree of differentiation is attested by the fact 
 that modern politics everywhere accept it. It is made the basis 
 of the Constitution of the Australian Commonwealth — a Constitu- 
 tion which expresses the ideals of a Constitutional Assembly 
 convened in the closing years of the nineteenth century under 
 conditions which afforded a unique opportunity for the achieve- 
 ment of great constitutional results. The Constitution distributes 
 the powers of the Commonwealth government in a manner suffi- 
 ciently indicated by the following sections : — 
 
 1. The legislative power of the Commonwealth shall be vested 
 in a Federal Parliament, which shall consist of the Queen, a 
 Senate, and a House of Eepresentatives. 
 
 51. The Parliament shall, subject to this Constitution, have 
 power to make laws for the peace, order, and good government 
 of the Commonwealth. 
 
 61. The executive power of the Commonwealth is vested in the 
 Queen, and is exercisable by the Governor-General as the Queen's 
 representative, and extends to the execution and maintenance 
 of this Constitution, and of the laws of the Commonwealth. 
 
 62. There shall be a Federal Executive Council to advise the 
 Governor-General in the government of the Commonwealth, and 
 the members of the Council shall be chosen and summoned by the 
 Governor-General and sworn as Executive Councillors, and shall 
 hold office during his pleasure. 
 
 71. The judicial power of the Commonwealth shall be vested 
 in a Federal Supreme Court, to be called the High Court of 
 Australia, and in such other federal courts as the Parliament 
 creates, and in such other courts as it invests with federal 
 jurisdiction. 1 
 
 (3) The differentiation of organs incompletely recdized in exist- 
 ing constitutions. — Even if it were possible to draw a hard and 
 
 * Of. Moore, " The Commonwealth of Australia," chap, v ; Jethro 
 Brown, " The New Democracy," Appendix A. 
 
FORMS OF GOVERNMENT 135 
 
 lution, such communities or governments have wholly or 
 nearly disappeared: and I advert to the true natures of 
 such communities or governments, not because they are 
 intrinsically of any importance, but because the incongruous 
 
 fast line between legislative, executive, and judicial functions, it 
 would be folly to expect the differentiation of organs to be corre- 
 spondingly precise. Government is a highly practical matter, and 
 the distribution of governmental functions must be determined by 
 practical considerations. If an organ, adapted to fulfil functions 
 of a particular kind, can discharge certain other functions inci- 
 dental to the former more advantageously than any other organ in 
 the community, there is no reason why it should not be permitted 
 to do so. Even when, as in the case of the Australian Con- 
 stitution, men start with a clean slate, they know from experience 
 that it is wise to proceed cautiously, and often to accept a somewhat 
 illogical arrangement which has stood the test of time rather than 
 gratify a passion for symmetry. If the Anglo-Saxon has carried 
 his timidity in this respect to excess, he need not be wholly 
 ashamed of the results. "On juristic elegance," as Professor 
 Maitland has remarked, " we do not pride ourselves, but we know 
 how to keep the roof weather-tight." In all constitutions, how- 
 ever, the differentiation of governmental organs is far from being 
 clearly marked. The doctrine of the separation of powers implies 
 the exercise of governmental functions by different persons who 
 are mutually independent. In the first place, we do not find 
 a clear and precise distinction of personnel. Under the British 
 Constitution, for example, judges make laws directly by laying 
 down rules for the conduct of judicial business, and indirectly by 
 establishing precedents from which rules of law are inferred ; the 
 Legislature exercises judicial functions where its own privileges 
 are in question ; the Executive exercises certain powers of subor- 
 dinate legislation incidental to the conduct of administration, not 
 merely with respect to the public service, but also in special cases 
 with respect to the community generally. None of these cases 
 may be inevitable ; most of them, or something like them, will 
 be found to be actual in modern constitutions. In the second 
 place, not only is there no clear and precise distinction of personnel, 
 but there is nowhere realized that entire mutual independence 
 as between the different organs of government which may be 
 characterized as predominaiitly legislative, executive, or judicial. 
 Such independence might well be construed as a denial of the 
 unity of the State. Even where there exists behind the various 
 governmental powers a true sovereign distinct from them and 
 capable of settling their differences by revision of the constitu- 
 
136 FOEMS OF GOVERNMENT 
 
 epithet half or vm/perfeetly sovereign obscures the essence of 
 sovereignty and independent political society. It seems to 
 import that the governments marked with it are sovereign 
 and subject at once. 
 
 291. According to writers on positive international law, 
 a government half or imperfectly sovereign occupies the 
 following position. — In spite of its half or imperfect depend- 
 ence, it has most of the political and sovereign powers which 
 belong to a government wholly or perfectly supreme. More 
 
 tion, a complete mutual independence is lacking for the reason 
 that the sovereign behind the governments is simply an extra- 
 ordinary legislature. The United States approaches most nearly 
 to complete mutual independence. The executive and judicial 
 powers, equally with the (normal) legislative powers, are there 
 derived from the Constitution and claim to be on a similar 
 footing with regard to it. Although all three are subject to 
 the sovereign or extraordinary legislature provided by the fifth 
 section of the Constitution, the mutual independence of gov- 
 ernmental powers is realized more nearly than elsewhere, and 
 perhaps more nearly than can be justified by expediency. An 
 interesting illustration of the extent to which the doctrine of 
 separation is carried, may be found in the fact that a declaratory 
 statute, in so far as it may be intended to have a retrospective 
 effect upon vested rights, is held to be invalid as an unlawful 
 assumption of judicial power.^ 
 
 (4) The If elation of the Executive to the legislature in the British 
 Constitution,. — Sir W. E. Anson comments adversely upon Austin's 
 criticism of Blackstone, and contends that there is a dualism in 
 the British Constitution. " The Crown,' through its ministers, 
 does the acts of State ; the Crown, in Parliament, enacts laws. . . . 
 The picture which Austin presents of a legislature issuing com- 
 mands which alone inspire the action of the executive is remot* 
 from fact." * It appears to me that an executive may be subor- 
 dinate to the legislature, though, possessed of important powers 
 of initiative, and that the theory of the British Constitution 
 requires us to differentiate between the king in his two capacities 
 — to hold that the king as head of the executive is subordinate to 
 the king as a member of the supreme legislature. My reasons 
 for preferring this view will be stated in the note to Section 333. 
 
 1 Of. Black, " Interpretation of Law," pp. 371-2. 
 ^ " Law of the Constitution," 3rd ed., I, 39-41. 
 
FORMS OF GOVERNMENT 137 
 
 especially, in aU or most of its foreign relations, it acts and 
 \ is treated as a perfectly sovereign government, and not as a 
 I government in a state of subjection to another: insomuch 
 I that it makes and breaks alUances, and makes war or peace, 
 / of its own discretion. But, this notwithstanding, the govern- 
 ment, or a member of the government, of another political 
 society, has political powers over the society deemed imper- 
 fectly independent. For example : In the Germanico-Eoman 
 or Eomano-Germanic empire, the particular German govern- 
 ments depending on the empire immediately, or holding of 
 the emperor by tenure in eapite, were deemed imperfectly 
 sovereign in regard to that general government which con- 
 sisted of the emperor and themselves as forming the Imperial 
 Diet. For though in their foreign relations they were wholly 
 or nearly independent, they were bound (in reality or show) 
 by laws of that general government : and its tribunals had 
 appellate judicature (substantially or to appearance) over the 
 political and half independent communities wherein they 
 were half supreme. Most, indeed, of the governments 
 deemed imperfectly supreme, are governments which in 
 their origin had been substantially vassal: but which had 
 insensibly escaped from most of their feudal bonds, though 
 they still continued apparently in their primitive state of 
 subjection. 
 
 292. Now I think it will appear on analysis, that every 
 governmenjj^jdeemed imperfectly supreme is really in one or 
 another of the three following predicaments. It is perfectly 
 subject : Or it is perfectly independent : Or in its own com- 
 munity it is jointly sovereign with another government, and 
 is therefore a constituent member of a government supreme 
 and independent.- f 1. Th e political powers of the govern- 
 ment deemed imperfectly supreme, may be exercised entirely 
 and habitually at the pleasure and bidding of the other. 
 On which supposition its so-called half sovereignty is merely 
 
138 FORMS OF GOVEENMENT 
 
 nominal and illusive.— i-2. The political powers exefcised 
 over the society deemed imperfectly independent, may be 
 exercised through its own permission. On which supposi- 
 tion, the government deemed imperfectly supreme is of 
 itself a truly sovereign government: those powers being 
 legal rights over its own subjects, which it grants expressly 
 or tacitly to another sovereign government. For example : 
 The great Frederic of Prussia, as prince-elector of Branden- 
 burg, was deemed half or imperfectly sovereign in respect of 
 his feudal connection with the German empire. Potentially 
 and in practice, he was thoroughly independent of the 
 Imperial government : and, supposing it exercised p6litical 
 powers over his subjects of the electorate, it virtually exer- 
 cised them through his authority, and not through his obedi- 
 ence to its commands. Being in a habit of thrashing its 
 armies, he was not in a habit of submission to his seeming 
 feudal superior. — 3. The political powers of the government 
 deemed imperfectly supreme, may not be exercised entirely 
 and habitually at the pleasure and bidding of the other: 
 but yet its independence of the other may not be so com- 
 plete, that the political powers exercised by the other over 
 the political society deemed imperfectly independent, are 
 merely exercised through its permission or authority. For 
 example : We may suppose that the elector of Bavaria was 
 independent of the Imperial government, in all or most of 
 his foreign, and in most of his domestic relations : but that, 
 this his independence notwithstanding, he could not have 
 abolished completely, without incurring considerable danger, 
 the appellate judicature of the Imperial tribunals over the 
 Bavarian community. But on the supposition which I have 
 now stated and exemplified, the sovereignty of the society 
 deemed imperfectly independent resides in the government 
 deemed imperfectly supreme together with the other govern- 
 ment: and, consequently, the government deemed imper- 
 
FORMS OF GOVERNMENT 139 
 
 fectlj supreme is properly a constituent member of a 
 government supreme and independent. 
 
 293. For the reasons produced and suggested in the 
 course of the foregoing analysis, I believe that no govern- 
 ment is sovereign and subject at once : that no government 
 can be styled with propriety Jwlf dr imperfectly supreme. 
 
 294. Before I dismiss the riddle which I have now en- 
 deavoured to resolve, I must state or suggest the following 
 difference. — In numberless cases, political powers are exer- 
 cised over a political community, by the government, or 
 a member of the government, of an external political 
 community. But the government of the former community 
 is scarcely denominated half or imperfectly sovereign, unless 
 the government of the latter, or the member of the govern- 
 ment of the latter, possess those political powers as being 
 the government of the latter, or as being a member of its 
 government. For example : Though the king of the British 
 Islands is also king of Hanover, he is not king in either 
 country as being king in the other. The powers which he 
 exercises there, have no dependence whatever on his share 
 in the sovereignty here : ' nor have the powers which he 
 exercises here, any dependence on his sovereignty (or his 
 share in the sovereignty) there.' 
 
 294. Q. (1) Is Austin thinking of political or legal sovereignty 
 in sections 291-4? 
 
 (2) Suggest examples of joint sovereignty (Case 3). 
 
 (3) Is the admission of the possibility of a joint sovereign 
 consistent with the doctrine that sovereignty is one and in- 
 divisible 1 
 
 Note. — A casual reader may not realize at a first glance the 
 precise meaning of Austin's criticism of the term semi-sovereign. 
 I propose (1) to develop and illustrate the criticism, (2) to examine 
 its value. 
 
 (I) Austin held that sovereignty implies supremacy, and that 
 we can no more speak of half-sovereignty than we can speak 
 of half-supremacy. The expression involves a eontradictio in 
 adjecto ; a government of a particular political community may be 
 
140 FORMS OF GOVERNMENT 
 
 (4) Sn- 295. It frequently happens that one government political 
 
 preme fed- ^^^ sovereign arises from a federal union of several political 
 era! gov- . ... 
 
 ermnent, governments. By some of the writers on positive inter- 
 
 \ Mi "^ '•■^'? sovereign, bll,):i„itL cannot, Tib half-anverfligrn : soveieignty 
 j is an attribute of the whole, not of the parts. The most difficult 
 of the three cases suggested by Austin is the case of joint posses- 
 sion of sovereign powers. Here the so-called semi-sovereign state 
 is one of which a part of the sovereign body is external, not, 
 in the Austinian view, to the State itself, for then the State would 
 be no true State, but to the local government. The State in such 
 a case is composed of the subjects who are local, and a sovereign 
 body which is partly local and partly foreign. Two examples 
 may be suggested. 
 
 By the Treaty of Berlin, 1878, Bulgaria was placed under the 
 suzerainty of Turkey. As regards domestic affairs, its powers 
 were almost unlimited, except that the Prince chosen by the 
 Bulgarian people must be also accepted by Turkey and approved 
 by the powers signatory to the Treaty. As regards external 
 relations, the limitations were more serious. Bulgaria might 
 receive, but could not accredit, diplomatic and consular agents. 
 It could not make a treaty or declare war save through the 
 mediation of Turkey. 
 
 According to the constitution of the United Republic of the 
 
 Ionian Islands, established in 1815 under the protectorate of Great 
 
 Britain, " the head of the Government was appointed by 
 
 England, the whole of the executive authority was practically in 
 
 the hands of the protecting power, and the State was represented 
 
 by it in its external relations. In making treaties, however. Great 
 
 Britain did not affect the Ionian Islands unless it expressly 
 
 , stipulated in its capacity of protecting power ; the vessels of the 
 
 republic carried a separate trading flag ; the State received consuls, 
 
 though it could not accredit them ; and during the Crimean War 
 
 it maintained a neutrality, thp .•yaliiditY of „;irj)irh y^ns iialf nowlrili^ptl 
 
 ^ in the English court s." ^ 
 
 / , i'he case last mentioned is extremely interesting. How would 
 
 . / Austin have dealt with it ? Although the Ionian Republic was 
 
 ' I not a part of the British Empire, its local government was not 
 
 ' \ independent. It might be contended that the powers of the 
 
 \ British Government were exercised Jhrouph permissioa-of_the 
 
 Vk jlepubli c, and that the Republic was therefore a sovereign state. 
 
 More probably Austin would have considered the case to be one 
 
 of joint-sovereignty. 
 
 Mr. Robert Campbell quotes as an illustration of jointsover- 
 
 > Hall, " International Law," 2nd ed., pp. 28-9. 
 
FOKMS OF GOVERNMENT 141 
 
 national law, the sovereign government of such a society is and a 
 styled a composite date. But it might be styled more aptly 'y^'^™ "' 
 a supreme federal governmerU. rated 
 
 states. 
 
 eignty the British colonies " which possess independent legis- 
 latures."^ The illustration is not a happy one. British colonies 
 are not included by writers of International Law under the head 
 of semi-sovereign states ; they are integral parts of the British 
 Empire ; and the complete legal sovereignty of the British Par- 
 liament is attested inter alia by the fact that an Imperial Act 
 intended to apply to a colony will be held to apply to it not- 
 withstanding anything to the contrary in the local law. In | 
 the recent Constitution for the Australian Commonwealth, the/ 
 legislative supremacy of the Imperial Parliament remains with! 
 slight alterations, which may affect the occasions on which tha^ 
 supremacy is displayed, but leave its existence unchallenged.^ 
 
 (2) I turn from illustrating Austin's criticism to examine its 
 value. Austin denies the possibility of an imperfectly sovereign 
 state on the ground that in every political community unlimited ' ■ 
 control must exist somewhere. I hold, on the contrary, that even 
 if it be true- that such a control always exists, the epithet im- 
 perfectly sovereign would not be applied inappropriately where_ 
 the control is partly external to the State. If, in support of the* 
 Austinian view, it be urged that the control is not external to 
 the State since in such cases the State consists of the political 
 community together with the external authority, I reply that this 
 is to give an artificial and improper meaning to the term State. , 
 In the case of a State like the Ionian Kepublic, it is within the' 
 State itself that we must look for the organic element implied in 
 the very idea of the State. The protected State is, unlike sub- 
 ordinate political communities, no part of a larger whole. It is 
 a real unit ; it is a person in International Law ; it enjoys an 
 imperfect independence ; and as a consequence it is styled not 
 inappropriately an imperfectly sovereign state. Its real position 
 is analogous to the position assigned by positive law to the ward. 
 We regard the ward as a person of imperfect independence ; we 
 do not affirm the existence of a perfectly independent person 
 by including within the conception of the personality of the ward 
 some share of the personality of the guardian. 
 
 In taking a different view, Aus tin sacri fices essentials to verbal .« 
 precision. In reality. States are the creation, not of logic, but 
 of history. We find them in every stage of being, becoming and 
 
 > " The Student's Austin," p. 101. 
 
 " Cf. Moore, " The Commonwealth of Australia," p. 167. 
 
142 FORMS OF GOVERNMENT 
 
 296. It also frequently happens, that several political 
 societies which are severally independent, or several political 
 governments which are severally sovereign, are compacted 
 by a permanent alliance. By some of the writers on positive 
 
 ceasing to be. Whatever tests we may apply, we must always 
 remeiMer that the first function of a classification is to represent 
 facts; that if facts are infinitely varying, the dassification must 
 not be inflexible. If we find that between the political com- 
 munity which is an independent State, and the pohtical community 
 which is only a part of an independent State, there are other 
 political communities more nearly allied to the former than to the 
 latter, I do not see why we should allow any abstract doctrine 
 of sovereignty to prevent us from applying to such states the 
 obvious epithet of imperfectly independent, or even imperfectly 
 sovereign. Ajs Pradier-Fod^r^ remarked, metaphysically there 
 ought not to be half-sovereign States, but historically there have 
 
 (been, and there may be again.^ In refusing to recognize the fact 
 Austin is unhistorical. Further, he endeavours to force upon the 
 very diverse material with which the International lawyer it 
 called upon to deal, a generalization suggested by a science avow- 
 edly limited to highly developed States. The actual facts as they 
 appear in International Law are wed summarized by Dr. Merriam : 
 " When a State asks for admission to the circle of so vp™gTis, the 
 International lawyer inquires first of all into the political powers 
 j which the applicant possesses. In other words, sovereignty is 
 i really regarded as a sum of - powers, a collection or aggregate 
 
 !of governmental faculties, the possession of which will entitle the 
 bearer to recognition in a sovereign capacity. These powers are 
 of such a nature as that of making war and concluding peace, 
 of negotiating treaties with other powers, of regulating the internal 
 administration, and of independent legislation. For the purposes 
 of International Law, sovereignty is regarded as the aggregate 
 of these powers, rather than as an indivisible principle out of 
 which they all emanate. Hence, being a sum or mass of rights, 
 a part may be taken away without wholly destroying the 
 sovereignty. The sovereignty may be less perfect, but it is still 
 sovereignty." ^ 
 
 , In venturing to differ from Austin as to the propriety of the 
 expression imperfectly sovereign State, I may remind the reader 
 that my criticism involves no attack upon the general question 
 
 1 " Traitd de droit international public," I, 159 ; cited Merriam, 
 " History of the Theory of Sovereignty," p. 22. 
 ° " History of Theory of Sovereignty," p. 213. 
 
tORMS OF GOVERNMENT 143 
 
 international law, the several societies or governments are 
 styled a system of confederated states. But the several 
 governments, considered as thus compacted, might be styled 
 more aptly Ajpermanent confederacy of supreme governments. 
 
 297. I advert to the nature of a composite state, and to 
 that of a system of confederated states, for the following 
 purposes. In a political society styled a composite state, the 
 sovereignty is so shared by various individuals or bodies, 
 that the one sovereign body whereof they are the constituent 
 members, is. not conspicuous and easily pfiiseiyed. Accord- 
 ingly, I advert to the nature of a supreme federal govern- 
 ment, to show that the society which it rules is ruled by one 
 sovereign. And adverting to the nature of a composite state, 
 I also advert to the nature of a system of confederated 
 states. For the fallacious resemblance of those widely 
 
 of the tenability of the Austinian doctrine of sovereignty for the 
 purposes of a jurisprudence exclusively concerned with fuUy 
 developed states.^ I ought also to add that Austin might have 
 quoted high authorities on International Law in his favour, and 
 that even to-day eminent writers are apparently prepared to defend 
 his terminology from the point of view of Political Science. . The 
 sections from Austin, at present under discussion, are quoted almost 
 verbatim, and with apparent approval, by Professor Willoughby.^ 
 Professor Burgess, having defined Sovereignty as original, absolute, 
 unhmited, universal power over the individual subject and over all 
 associations of subjects, says that Sovereignty is absolutely es- 
 sential to the State, and is either entire or not at all.^ The 
 position is not apparently distinguishable from Austin's so far 
 as relates to the subject immediately under consideration. With 
 both, the State subject to a joint-sovereignty must either not 
 be called a State at all, or else be included within the circle 
 of States by means of an artificial extension of its borders so as to 
 include an external government. My own reasons for dissenting 
 from this view will appear more fully in the discussion oa 
 Sovereignty in Excursus B. 
 
 ' Cf. Excursus A. 
 
 " " Nature of the State," pp. 256-7. 
 
 ' " Political Science and Constitutional Law," I, 52-5 ; II, 7. 
 
144 FORMS OF GOVERNMENT 
 
 different objects, tends to produce a confusion which I think 
 it expedient to obviate. 
 
 298. (1) In the case of a convposite state, or a supreme 
 federal government, the several united governments of the 
 several united societies, together with a government common 
 to those several societies, are jointly sovereign in each oii 
 
 ' those several societies, and also in the larger society arising 
 from the federal union. Or, since the political powers of the 
 common or general government were relinquished and con- 
 ferred upon it by those several united governments, the 
 nature of a composite state may be described more accurately 
 thus. As compacted by the common government which 
 they have concurred in creating, and to which they have 
 severally delegated portions of their several sovereignties, 
 
 I the several governments of the several united societies are 
 jointly sovereign in each and all. 
 
 299. It will appear on a moment's reflection, that the 
 common or general government is not sovereign or supreme. 
 A government supreme and federal, and a government 
 supreme but not federal, are merely distinguished by the 
 following difference. Where the supreme government is not 
 federal, each of the several governments, considered in that 
 character, is purely _suboEdiiiatfi : or none of the. several 
 governments, considered in that character, partakes of the 
 sovereignty. But where the supreme government is properly 
 federal, each of the several governments, which were im- 
 \mediate parties to the federal compact, is, in that character, 
 j&Jixsihjoi the sovereign body. Consequently, although they 
 
 are subject to the sovereign body of which they are con- 
 stituent members, those several governments, even considered 
 as such, are not purely in a state of subjection. — But since 
 those several governments, even considered a^ such, are not 
 purely in a state of subjection, the common or general 
 government which they have concurred in creating is not 
 sovereign or supreme. 
 
FORMS OF GOVERNMENT 146 
 
 301. Nor is any of those several governments sovereign or 
 supreme, even in the society of which it is the immediate 
 chief. If those several governments were severally sever- f 
 eign, they would not he members of a composite state:} 
 though, if they were severally sovereign, and yet were per- 
 manently compacted, they would form (as I shall show 
 immediately) a system of confederated states. 
 
 302. To illustrate the nature of a composite state, I will 
 add the following remark to the foregoing general descrip- 
 tion. — Neither the immediate tribunals of the common or 
 general government, nor the immediate tribunals of the 
 several united governments, are bound, or empowered, to 
 administer or execute ev&ry command that the general 
 government may issue. The political powers of the common 
 or general government, are merely those portions of their 
 several sovereignties, which the several united governments, 
 as parties to the federal compact, have relinquished and con- 
 ferred upon it. Consequently, its competence to make laws 
 and to issue other commands, may and ought to be examined 
 by its own immediate tribunals, and also by the immediate 
 tribunals of the several united governments. And if, in 
 making a law qrjss uing a particular comman dfit exceed 
 the limited powers which it derives from the federal cbiii-^ 
 pact,,fllLthose various t ribun als are empowered and bound 
 to msobe^^iSnd since each of the united governments, as a 
 party to the federal compact, has relinquished a portion of 
 its sovereignty, its competence to make laws and to issue 
 other commands, may and ought to be examined by all 
 those tribunals. And if it enact a law or issue a particular 
 command, as exercising the sovereign powers \sMphj.t has 
 rglinqaialied by the compact, all those tribunals are em- 
 powered and bound to disobey. 
 
 303. If, then, the general government were of itself 
 sovereign, or if the united governments were severally 
 
 L 
 
146 FORMS OF GOVERNMENT 
 
 sovereign, the united societies would not constitute one 
 composite state. The united societies would constitute one 
 independent society, with a government supreme but not 
 federal; or a knot of societies severally independent, with 
 governments severally supreme. Consequently, the several 
 united governments as forming one aggregate body, or they 
 and the general government as forming a similar body, are 
 Vjointly„sovgrfiigp in each of the united societies, and also in 
 the larger society arising from the union of all. 
 
 304. Now since the political powers of the common or 
 general government are merely delegated tojt by the several 
 united governments, it is not a constituent member of the 
 sovereign body, but is merely its subject minister. Conse- 
 quently, the sovereignty of each of the united societies, and 
 also of the larger society arising from the union of all, 
 resides in the united governments as forming one aggregate 
 body : that is to say, as signifying their joint pleasure, or the 
 joint pleasure of a majority of their number, agreeably to 
 the modes or forms determined by their federal compact. 
 By that aggregate body, the powers of the general govern- 
 ment were conferred and determined : and by that aggregate 
 body, its powers may be revoked, abridged, or enlarged. — To 
 that aggregate body, the several united governments, though 
 not merely subordinate, are truly in a state of subjection. 
 
 305. The supreme government of the United States of 
 America, agrees (I believe) with the foregoing general de- 
 scription of a supreme federal government. I believe that 
 the common government, or the government consisting of 
 the congress and the president of the United States, is 
 merely a subject minister of the United Stat^S^overnments. 
 I believe that none of the latter is properly sovereign or 
 supreme, even in the state or political society of which it 
 is the immediate chief. And, lastly, I believe that the 
 sovereignty of each of the states, and also of the larger 
 
/ 
 
 FORMS OF GOVERNMENT 147 
 
 state arising from the federal union, resides in the states, 
 governments as fortning one aggregate hody: meaning by a 
 state's government, not its ordinary legislature, but the body 
 of its citizens vyhich appoints its ordinary legislature, and 
 which, the union apart, is properly sovereign therein. 
 
 306. {2)Acomposite state, and a system of confederated states, 
 are broadly distinguished by the following essential differ- 
 ence. In the case of a composite state, the several united 
 societies ar e one independ ent^ society, or are severally subject 
 to one sovereign body: which, through its minister the 
 general government, and through its members and ministers 
 the several united governments, is habitually and gener- 
 ally obeyed in each of the united societies, and also in the 
 larger society arising from the union of all. In the case 
 of a system of confederated states, the several compacted 
 societies are not one society, and are not subject to a 
 common sovereign. Though the aggregate of the several 
 governments was the framer of the federal compact, and 
 may subsequently pass resolutions concerning the entire 
 confederacy, neither the terms of that compact, nor such 
 subsequent resolutions, are enforced in any of the societies 
 by the authority of that aggregate body. To each of the i 
 confederated governments, those terms and resolutions arc J 
 merely articles of agreement which it spontaneously adopts : 
 and they owe their legal effect, in its own political society, 1 
 to laws and other commands which it makes or fashions upon 
 them, and which, of its own authority, it addresses to its, 
 own subjects. In short, a system of confederated states is'""-) 
 not essentially different from a number of independent r" 
 governments connected by an ordinary alliance. So long^ 
 as we abide in general expressions, we can only affirm 
 generally and vaguely, that the compact of the former is 
 intended to be permanent, whilst the alliance of the latter is 
 commonly intended to be temporary : and that the ends or 
 
148 FORMS OP GOVERNMENT 
 
 purposes which are embraced by the compact, are com- 
 monly more numerous, and are commonly more complicated, 
 than those which the alliance contemplates. 
 
 307. I believe that the German Confederation, which has 
 succeeded to the ancient Empire, is merely a system of con- 
 federated states. I believe that the present Diet is merely 
 an assembly of ambassadors from several confederated but 
 severally independent governments: that the resolutions of 
 the Diet are merely articles of agreement which each of the 
 conlederated governments spontaneously adopts: and that 
 they owe their legal effect, in each of the compacted com- 
 munities, to laws and commands which are fashioned upon 
 them by its own immediate chief. 
 
 308. I also believe that the Swiss Confederation was and 
 is of the same nature. If, in the case of the German, or of 
 the Swiss Confederation, the body of confederated govern- 
 ments enforces its own resolutions, those confederated 
 governments are one composite state, rather than a system 
 of confederated states. The body of confederated govern- 
 ments is properly sovereign: and to that aggregate and 
 sovereign body, each of its constituent members is properly 
 in a state of subjection.* 
 
 308. Q. (1) Distinguish the "state" which is member of » 
 Federation from — 
 
 (a) The State called imperfectly sovereign, e.g. the Ionian 
 Eepublic. 
 ' (b) The Colonial dependency, e.g. Canada. 
 
 (c) An English borough. 
 (2) Austin makes the distinction between the "State,'' which 
 is a member of a Federal State, and the State, which is member 
 of a Confederation, turn upon the possession of sovereignty. 
 Members of a Confederation, however, may lose by insensible 
 degrees their sovereignty, and so become a Federation ; and vice 
 versa. Can any practical tests be suggested for deciding in such 
 cases at what moment sovereignty by the member of the union is 
 lost or acquired ? 
 
 Note. — In view of the controversies which have raged round the 
 
PORMS OF GOVERNMENT 149 
 
 fascinating question of the location of the sovereignty in the 
 Ameiican Constitution since Austin wrote, it is no small evidence 
 of the acuteness of his powers of analysis that his remarks on this 
 subject sl^ould he still quoted with approval by American authors.^ 
 Those remarks, however, need a more detailed illustration. In 
 some respects they even require qualification. In the present note 
 I discuss briefly the following topics : (1) The distinction between 
 a Federal State and a Unitary State ; (2) the distinction between a 
 Federal State and a Confederation ; (3) the location of the sover- 
 eignty in a Federal State. 
 
 (1) The distinction between a Federal State and a Unitary 
 State. — The fundamental characteristic of the Federal State con- 
 sists in a ji'Plism fi^ g"Yernme ntal organization s. A close parallel 
 to such a dualism may be seen in the medieval scheme of society. 
 According to medieval theory, the Holy Boman Empire was 
 an organization of Christendom on its ecclesiastical and temporal 
 sides. The medieval subject owed allegiance to two distinct and 
 mutually independent authorities which were yet regarded as 
 parts of one organized whole. Civil allegiance was due to the 
 Emperor ; spiritual allegiance, to the Pope. In a Federal State, on 
 the other hand, both allegiances are political ; one is to the 
 National government, and the other is to one of a number of Pro- , 
 vincial governments. These Provincial governments are dis- 
 tinguished from the local governments of a Unitary State in two 
 respects — the Provincial government of a Federal State is very' 
 highly organized in its constitution, and is, in fact, capable 
 of exercising all the necessary legislative, executive, and judicial 
 functions of a National government ; and as a consequence of the 
 dualism to which reference has just "been made, the relation which 
 a Provincial government in a Federal State bears to the National 
 is one o f co-ordination, not of subordinatio n. Of the two marks, 
 the latter is the more distinctive. H'ational and Provincial 
 governments ar e mutua,Uy independent within their several spheres . 
 In Unitary States witk a fundamental constitution wliicii cannot 
 be altered by ordinary legislative process, the local government 
 may chance to possess a certain degree of independence in its 
 relation to the National government ; but such independence will 
 be found to be very inferior in degree to that which is characteris- 
 tic of the Provincial government in a Federal State. The essence 
 of a Federal State, as distinct from a Unitary State, is therefore a 
 governmental dualism at a highly developed stage of government. 
 A Federal State is one of which the governmental powers are 
 divided between a ^National government and several Provincial 
 governments, which, as regards internal structure, are for practical 
 
 » Cf. WiUoughby, "Nature of the State," pp. 258-9. 
 
150 FORMS OF GOVERNMENT 
 
 purposes as highly organized as the National government, and as 
 regards authority are co-ordinalte with, not subordinate to, that 
 government. 
 
 The foregoing definition may serve to decide whether, in any 
 particular case, a State is Unitary or Federal. In practice, the 
 realization and successful working of the dual dispositiofl of 
 governmental powers will be found to involve the following: 
 — *(a) Some organization of the State distinct from, and superior to, 
 the National and Provincial governments ; (b) a written con8tit,u- 
 Jion in which the several spheres of the various governmental 
 organizations are clearly defined; (c) some representation of the 
 composite character of the union in the organization of the 
 National government. Such a representation may take the form 
 of rules relating to the constitution and functions of the National 
 judicature. It may be effected by the equal representation of all 
 the " States " in one of the legislative Chambers of the National 
 government. It was effected in the Achsean League by the proviso 
 according to which votes in the Central Assembly of the League 
 were counted upon a civic basis as distinct from an individuahstic. 
 In the constitution of the Australian Commonwealth, the federal 
 principle invades every department of the Commonwealth govern- 
 ment, and even appears in the clauses which constitute the 
 authority, behind the central and local governments. An amend- 
 ment of the constitution requires the support of an absolute 
 majority of both, or of either, of the Houses of the Commonwealth 
 Government, sanctioned by the direct popular approval of a majority 
 of the electors in the Commonwealth, and also by majorities of the 
 electors in a majority of the States. 
 
 The reference to the constitution of the Australian Commoa- 
 wealth suggests the reflection that the Commonwealth is a Federa- 
 tion though it is not a Federal State. The dualism which is the 
 most important mark of the Federal State is a dualism of govern- 
 ments, not in strictness a duality of the State. Hence some 
 publicists have objected to the expression Federal State. But the 
 term is convenient, and has been adopted by usage. Govern- 
 mental dualism, it may be added, may exist not only in a sub- 
 ordinate political community, but even in a community composed 
 of sovereign states. This is likely to happen where several states 
 unite in a permanent alliance and a"ppoint a common government 
 for special purposes. While, however, usage admits the expres- 
 sion Federal government in the former case, it does not do so in 
 the latter. A Federal government is either the government of 
 a Federal state, or else the government of a subordinate political 
 community modelled upon the government of a Federal State. 
 Where the leading principle of Federal government is adopted 
 ■•.xternally to the organization of the State the term Confederation 
 IS employed. 
 
FORMS OF GOVERNMENT 151 
 
 Whether in a particular case a Constitution is Federal or Unitary 
 is a question often difficult to answer. Governmental systems 
 exist in every degree of complexity. One governmental type 
 passes into another by insensible degrees. The difficulties are I 
 increased by the fact that legal theory and constitutional organiza-| 
 tions are often very imperfect representations of the real facts off 
 social and political life. The British Empire affords an interesting 
 illustration. In legal theory, the Colonial governments are sub- 
 ordinate to, not co-ordinate with, the Imperial government ; in 
 practice, those governments exercise wider powers and enjoy a 
 greater independence than the Provincial governments in most 
 Federations. Although the British Empire is not a Federal State, 
 the facts of social and political life appear to suggest that it is on 
 the way to become so, if not already entitled to be called "a 
 Federal State in the making." 
 
 (2) The Federal State and the Confederaiion. — The Federal State, 
 as we have seen, is simply a single State with federa 1 government. 
 The Confederation is a group of States which are in more or less' 
 permanent alliance and possess a common central government fori 
 certain limited purposes. The dual government, which is essential 
 to the Federal State, may exist in the Confederation if the several 
 States have sovereign" organizations from which the government 
 of the Confederation, and the governments of the States, derive 
 their authority. Obviously, cases may occur in which it is difficult 
 to determine whether a union of political communities is a Con- 
 federation or a Federal State, i.e., whether the several communities 
 have, or have not, retained their sovereignty. By the Act consti- 
 tuting the "Germanic Confederation" of 1820 — 
 
 (a) A common central government or Diet was constituted 
 
 composed of the plenipotentiaries of the several States 
 and empowered 
 
 (1) To receive and accredit envoys and conclude treaties 
 on behalf of the Confederation : 
 
 (2) To declare war against foreign States in case the terri- 
 tory of the Confederation should be threatened. 
 
 (b) The governments of the contracting States retained an 
 
 independent jurisdiction over their own subjects. 
 
 (c) The States had no formally recognized right of withdrawal 
 
 from the Confederation, and could not make war on one 
 another. 
 
 The conclusion is suggested that the union formed a Federal 
 State. That conclusion is refuted, however, by the following 
 facts : — 
 
 (a) The maintenance of the independence and inviolability of the 
 Confederated States was an avowed object of the union. 
 
 {h) Each of the States could receive and accredit envoys, make 
 
152 FORMS OF GOVERNMENT 
 
 treaties, and form any alliance of which the terms should 
 not be prejudicial to the union. 
 (c) If, in a case of alleged danger, the majority of the Diet 
 refused to call out the united forces of the union, the 
 minority was authorized to concert measures of self- 
 defence. 
 {d) The Diet could not constrain a recalcitrant State save by 
 the power of other States who consented to place their 
 military forces at his disposal. 
 (e) No trace of over-soveieignty appears to have existed on the 
 part of the Diet with regard to the citizens of the sever»l 
 States. The citizen owed allegiance to his State govern- 
 ment alone.^ 
 Under these circumstances, no doubt can exist that the union 
 was a Confederation. The highly important question remains, 
 however, as to which, if any, of the characteristics (a)-(e) are 
 essential to this conclusion. Is there any single conclusive test for 
 deciding such cases? Probably not, though one test of considerable 
 value may be suggested : if, having regard to aU the facts of the 
 ' case, it is possible to regard the several members of the union as 
 contracting parties who expressly or implicitly reserve to themselves 
 the right of withdrawing from the union, the union is merely 
 a Confederation. No such right was expressly reserved in the 
 case of the Germanic Confederation, but its implication appears to 
 be clear. A confederation, however, is apt to be a Federal State 
 in the making. Both of the Confederations mentioned by Austin 
 have long since become Federal States. Here as elsewhere, 
 particular oases must be decided by relative degrees of likeness or 
 unlikeness to type rather than by verbal definitions. 
 
 (3) The location of the sovereignty in a Federal State. — Al- 
 though this subject is a highly controversial one, it deserves 
 a careful consideration if we desire to understand the nature 
 either of a Federal State or of sovereign,ty. I propose to deal 
 solely with the case of the Constitution of the United States. 
 In this Constitution there are : (a) A National government; 
 (b) Provincial governments, which, as regards internal structure, 
 are for practical purposes as highly organized as the National 
 government, and as regards authority are co-ordinate with that 
 government ; (c) an organization of the State distinguishable from 
 the National aiid Provincial governments and capable of re- 
 adjusting their relations by amending the written constitution in 
 which their several spheres are defined. This last-mentioned 
 organization is provided by the fifth article of the Constitution, 
 which leads as follows : — 
 
 ' Hall, " International Law," p. 27. 
 
FORMS OF GOVERNMENT 153 
 
 " The Congress, whenever two-thirds of both houses shall deem 
 it necessary, shall propose amendments to this constitution, or, on 
 the application of the Legislatures of two-thirds of the several 
 States, shall call a convention for proposing amendments, which, 
 in either case, shall be valid to all intents and purposes, as part 
 of this constitution, when ratified by the Legislatures of three- 
 fourths of the several States, or by conventions in three-fourths 
 thereof, as the one or the other mode of ratification may be 
 proposed by the Congress; provided that no amendment which 
 may be made prior to the year one thousand eight hundred and 
 eight shall in any manner affect the first and fourth clauses in the 
 ninth section of the first article, and that no State, without its 
 consent, shall be deprived of its equal suffrage in the Senate." 
 
 The significance of the provisos which conclude this section will 
 be discussed in a later note on the limits of sovereign power. 
 Apart from these provisos, the authorities to which reference is 
 made in the section need to be distinguished according as they 
 are initiative or sanctioning : — 
 
 (0) Authorities of Initiation. These are either — 
 (1^ Two-thirds of both Houses of Congress, or 
 
 (2) Conventions summoned on the application of two-thirds 
 of the States' legislatures. 
 (4) Authorities of Eatification. These are either — 
 
 (1) The legislatures of three-fourths of the several States, 
 or 
 
 (2) Conventions in three-fourths of the several States. 
 
 Can the sovereignty be located under conditions so complex) 
 In answer to this question I will venture to state two conclusions 
 which are suggested by the letter of the section without reference 
 to the history of its interpretation by American practice and 
 American judges. 
 
 (1) We are not entitled to say that the sovereign is con- 
 stituted of the National and Provincial governments together 
 with the organization of the Bepublic behind them. On the one 
 hand, an amendment of the Constitution proposed by Conventions 
 summoned on the application of two-thirds of the States legis- 
 latures and ratified by the legislatures of ' three-fourths of the 
 States, might limit the power of the Congress, though never 
 assented to by that body. On the other hand, an amendment 
 of the Constitution proposed by two-thirds of both Houses of the 
 Congress and ratified by Conventions in three-fourths of the 
 States, might limit the power of the State Legislatures, though 
 never assented to by them. The ^National and Provincial govern- 
 ments are accordingly subordinate to the sovereign. The fact 
 that in a given case they may chance to form part of it, only 
 involves the consequence that they are capable of appearing in 
 another than their normal capacity. 
 
154 FORMS OF GOVERNMENT 
 
 (2) The sovereignty, then, must be looked for in the organi- 
 zation of the Kepublic behind the National and Provincial govern- 
 ments. That organization is varying in constitution, and difficult 
 to arouse to action. Though when once aroused its positively 
 declared will may be omnipotent, the complications of procedure 
 and the exacting requirements as to majorities have the practical 
 result of almost ensuring its eternal .slumber. In a word, al- 
 though sovereignty exists within the State, and although there 
 are means provided for the actualization of that sovereignty in 
 authoritative organizations known to the law, those means can 
 scarcely be deemed adequate to the needs of a great and rapidly 
 developing Nationality. 
 
CHAPTER V 
 
 THE LIMITS OF SOVEREIGN. POWER 
 
 309. From the various shapes which sovereignty may 
 assume or from the various possible forms of supreme 
 government, I proceed to the limits, real and imaginary, of 
 sovereign or supreme? power. 
 
 310. Every positive law, or every law simply and strictly The easen- 
 so called, is set, directly or circuitously, b y a sovereign !^°''" 
 person or body , to a member or members of the independent positive 
 political society wherein that person or body is sovereign or ^*^' *°^ 
 supreme. It follows that the power of a monarch properly quenoe 
 so called, or the power of a sovereign number in its col- thereof, 
 legiate and sovereign capacity, is incapable of legal limit a- ^ 
 tion. A monarch or sovereign number bound by a legal 
 
 duty, were subject to a higher or superior sovereign : that is 
 to say, a monarch or sovereign number bound by a legal 
 duty, were sovereign and not sovereign, ^u preme power \ 
 limite d bypositive la w, is a flat contra dip.f.inn in tfirr^s. I S 
 
 311. ISqt: would a political society escape from legal 
 despotism, although the power of the sovereign were 
 bounded by legal restraints. The power of the superior ji 
 sovereign immediately imposing the restraints, or the power |i 
 of some other sovereign superior to that superior, would still 
 be absolutely free from the fetters of positive law. For | ^ 
 unless the imagined restraints were ultimately imposed by a 
 sovereign not in a state of subjection to a higher or superior 
 sovereign, a series of sovereigns ascending to infinity would 
 
 155 
 
 < 
 
156 THE LIMITS OF SOVEREIGN POWER 
 
 govern the imagined community. Which is impossible and 
 
 absurd. 
 
 Attempts 312. Monarchs and sovereign bodies hav€J attempted to 
 
 of sover- oblige themselves, or to oblige the successors to their sover- 
 eigns to 
 oblige eign powers. But m spite of such attempts the position 
 
 them- that ' sovereign power is incapable of legal limitation ' will 
 sucoea'sors, ^°^<^ JiBiKfilsany or without exception. The immediate 
 author of a law of the kind, or any of the sovereign succes- 
 sors to that immediate author, may abrogate the law at 
 pleasure. And though the law be not abrogated, the sover- 
 eign for the time being is not constrained to observe it by a 
 legal or political sanction. For if the sovereign for the time 
 being were legally bound to observe it, that present sover- 
 eign would be in a state of subjection to a higher or 
 superior sovereign. As it regards the successors to the sover- 
 eign or supreme powers, a law of the kind amounts, at the 
 most, to a rule of positive morality. As it regards its im- 
 mediate author, it is merely a law by a metaphor. For if 
 we would speak with propriety, we cannot speak of a law 
 set by a man to himself : though a man may adopt a prin- 
 ciple as a guide to his own conduct, and may observe it as 
 he would observe it if he were bound to observe it by a 
 sanction. 
 
 313. For example : The sovereign Roman people solemnly 
 voted or resolved, that they would never pass, or even take 
 into consideration, what X will venture to denominate a biU 
 of pains and penalties. This solemn resolution or vote was 
 passed with the forms of legislation, and was inserted in the 
 twelve tables in the following imperative terms : privilegia 
 ne irroganto. By that resolution or vote, the sovereign 
 people adopted, and commended to their successors in the 
 sovereignty, an ethical principle or maxim. The present 
 and future sovereign which the resolution affected to obligei 
 was not bound 6r estopped by it. Privileges enacted in spite 
 
THE LIMITS OF SOVEREIGN POWER 157 
 
 of it by the sovereign Boman people, were not illegal. The 
 Roman tribunals might not have treated them as legally 
 invalid acts, although they conflicted with the maxim, wear- 
 ing the guise of a law, privilegia ne irroganto. 
 
 314. Again: By the authors of the union between Eng- 
 land and Scotland, an attempt was made to oblige the legis- 
 lature, which, in consequence of that union, is sovereign in 
 both countries. It is declared in the Articles and Acts, that 
 the preservation of the Church of England, and of the Kirk 
 of Scotland, is a fundamental condition of the union : or, in 
 other words, that the Parliament of Great Britain shall not 
 abolish those churches, or make an essential change in their 
 structures or constitutions. Now, so long as the bulk of 
 either nation shall regard its established church with love 
 and respect, the abolition of the church by the British Par- 
 liament would be an immoral act ; for it would violate posi- 
 tive morality which obtains with the bulk of the nation. 
 Assuming that the church establishment is commended by 
 the revealed law, the abolition would be irreligious : or, 
 assuming that the continuance of the establishment were 
 commended by general utility, the abolition, as generally 
 pernicious, would also amount to a sin. But no man, talk- 
 ing with a meaning, would call a parliamentary abolition of 
 either or both of the churches an illegal act. Por if the 
 parliament for the time being be sovereign in England and 
 Scotland, itcannot be bo und legall y by that condition of the 
 union which affects to confer immortality upon those ecclesi- 
 astical institutions. That condition of the union is not a 
 positive law, but is counsel or advice offered by the authors 
 of the union to future supreme legislatures.* 
 
 314. Q. (1) That a legal sovereign cannot be subject to legal 
 limitation follows from the very definition of the term. But may 
 there not be a state without a legal sovereign? Examine 
 especially the case of a Federal State with a written constitution 
 containing no provision for its amendment. 
 
 Note. — The limits of sovereign potoer. — I propose to examine 
 
158 
 
 THE LIMITS OF SOVEEEIGN POWER 
 
 The 
 epithet 
 imconati- 
 tutional. 
 
 315. By the two examples which I have now adduced, I 
 am led to consider the meanings of the epithet uncondUu- 
 tional, as it is distinguished from the epithet illegal, and as 
 it is applied to conduct of a monarch, or a sovereign number 
 
 in the present place the more important of the limitations which 
 are alleged to exist upon the supreme organized power in states, 
 and to consider to what extent these limitations invalidate the 
 Austinian doctrine. They may be classified for purposes of 
 convenience under one or other of the following heads : 
 
 , (1) Limitations in. fact, arising from — 
 
 i (a) The character of the rulers. 
 
 ! \h) The resistance of the governed. 
 
 (c ) International relations. 
 
 (d) Physical impossibilities. 
 
 :" (2) Limitations in law, arisi^ig from — 
 
 (a) Conflict with the prevailing doctrine of the sphere 
 of State action. 
 
 (6) Conflict with ordinary positive law. 
 
 (c) Conflict with a superior law — Divine, Natural, 
 Customary, or Constitution al. 
 (1) Limitations in'fact. — The existence of these is fully admitted 
 by Austin. A few illustrations will suffice, (a) The rulers are 
 human, and therefore subject to the weaknesses, the ambitions, the 
 desires, the limitations of other men. A great statesman is reported 
 to have said that the average intelligence of the members of his 
 Cabinet was probably not higher than the intelligence of the 
 humbler tradesman. But, whether rulers be wise or not, their aims 
 and policy are largely the product of their day and generation. 
 They cannot do what they desire, and even what they desire 
 is largely predetermined. "People," observes Professor Dicey, 
 "sometimes ask the idle question why the Pope does not introduce 
 this or that reform. The true answer is that a Revolutionist is 
 not the kind of man who becomes a Pppe."^ (6) Rulers are certain 
 to provoke the resistance of the governed if they do not keep 
 within 6ertain limits. However wise and however noble they may 
 be, they cannot force their views on a reluctant people, (c) Apart 
 froin the humanity alike of the rulers and of the subjects, the 
 will of the rulers is limited by the fact that a State is not aJoiie 
 in the world. Other States exist, and have aspirations which are 
 not always friendly. , A State possessed of a consuming desire foi 
 moral and intellectual elevation may find itself exterminated by ■» 
 neighbouring state which has set its heart upon the humbler 
 
 ' " Law of the Constitution," 5th ed., p. 77. 
 
THE LIMITS OF SOVEREIGN POWER 159 
 
 in its collegiate and sovereign capacity. The epithet uncon- 
 stitutional, as thus opposed and applied, is sometimes used 
 with a meaning which is more general and vague, and is 
 sometimes used with a meaning which is more special and 
 definite. I will begin with the former. 
 
 object of military efficiency, (d) Finally, many things which 
 from some points of view might be very desirable, may be physi- 
 cally impossible. Montesquieu admitted that even the British 
 Parliament could not make a man a woman. The great American 
 Bepublic cannot change the hue of the negro. 
 
 (2) Limitations in law. — "We are here in more debatable terri- 
 tory. Three cases deserve consideration, according as the alleged 
 limitations arise from (a) conflict with the prevailing doctrine as 
 to the State's sphere of action, (6) conflict with positive law, 
 " (c) conflict with a law alleged to be superior to positive law. 
 
 (a) lAmitations arising from conflict with the prevailing doctrine 
 of the State's spliere of action. — The power of the Legislature, 
 contended Locke, is to preserve and not to destroy ; it cannot 
 possibly be absolutely arbitrary over the lives and fortunes of the 
 people. 1 What a people could not (rightly) ordain over itself, 
 ought not to be ordained by the Legislator over the People, declared 
 Kaht.^ In the medieval State, the sphere of State action was 
 limited by much narrower considerations. The Church in parti- ( 
 cular occupied a privileged position; the clergy enjoyed manyi 
 immunities, the inviolability of which was accepted at times asi 
 completely as the order of nature. Under such conditions the ' 
 Austinian doctrine was not tenable. The modern state, however, 
 has taken a broader view of its function, and has affected to 
 concern itself with the moral and intellectual elevation of the 
 people. It has abolished the privileges of the clergy, and ex- 
 
 ,^ tended the authority of law over all subjects. Modern theory, 
 
 1 differentiating between Politics and Law, relegates to the former 
 the analysis and discussion of such doctrines as those suggested by 
 Locke and Kant, and attributes to the supreme State organization 
 a legally absolute power of defining its own sphere of action. 
 What that organization ordains will not be questioned by the law 
 courts on the ground of incompatibility with the State's purpose. 
 Such questioning as may arise will be referred t6 other hmitations 
 which have yet to be considered. 
 
 (b) Limitations alleged to exist as a result of positive law. — 
 Ihering, in his work on the Evolution of Law, affirms the existence 
 
 ' Of. " Second Treatise on Government," § 142. 
 2 " PrincipleB of Politics," p. 58. 
 
160 THE LIMITS OF SOVEREIGN POWER 
 
 316. (1) In every independent political society, there are 
 principles or maxims which the sovereign habitually ob- 
 serves, and which the bulk of the society, or the bulk of its 
 
 of three distinct phases of legal development. In the first phase, 
 law is no more than unilaterally binding particular command ; in 
 the second phase, it is unilaterally binding general command; 
 in the third phase, it is bilaterally binding general command. 
 In the second phase, the lawgiver may intend to respect the hv, 
 but he does not wish to assure it against the fluctuations of his 
 own caprice. In the third phase, the lawgiver holds himself 
 "■ bound by the law so long as it exists. " Only in the third phase 
 can the people feel that invincible confidence which is essential 
 to the building up of character. ... If Eeligion may be defined 
 as faith in God, Law may be defined as faith in the State. "^ The 
 argument appears to me to be unanswerable. As I shall endeavoiit 
 to show later on, the fact that a sovereign makes a law does not 
 prevent him from being bound by it so long as it exists, if he 
 elects to be bound by it, invariably respects it, and permits its 
 enforcement even as against himself. In the modem state such 
 conditions are taken for granted. Nevertheless, positive law must 
 not be regarded as a limitation upon the sovereign in the sense 
 of the term limitation which is at present under discussion. The 
 sovereign can change a law at will, and is only bound by it, so 
 long as he does not choose to amend or repeal it. 
 
 (c) Limitations alleged to exist as a result of conflict with 
 superior law. — These involve a more serious qualification of the 
 Austinian doctrine. They allege that the highest organization 
 known to law may be bound absolutely by virtue of some law declared 
 to be superior to its will — Law Divine, Natural, Customary, or 
 Constitutional. Divine and Natural Law are more important as 
 limitations in medieval than in modern times. Speaking of the 
 State and Law in the Middle Ages, Dr. Gierke writes: "Men 
 taught that the highest power on earth was subject to the rules 
 of Natural Law. They stood above the Pope and above the 
 Kaiser, above the Kuler and above the Sovereign People, nay, 
 above the whole Community of Mortals. Neither statute nor act 
 of government, neither resolution of the People, nor custom, 
 could break the bonds that thus were set." ^ A like doctrine has 
 been affirmed by the courts in times comparatively modern.' 
 The fact that it is no longer maintained is due partly to the 
 
 > " L'Evolution du droit," §§ 152-69. 
 2 "Political Theories of the Middle Age," p. 75. 
 s Of. Bonhams Case, 8 Rep. 118. Day and Savadge, Hob. 85-7 ant! 
 supra §§ 191-7 
 
THE LIMITS OF SOVEREIGN POWER 161 
 
 influential members, regard with feelings of approbation. 
 Not unfrequently, such maxims are expressly adopted by 
 the sovereign or state. More commonly, they are not ex- 
 
 growth of doctrines jof _aljgsl3Jtfi_Jgveigignty, and partly to an 
 increased confidence in the rulers arising from the publicity of 
 modem life and the growth of pohtical liberty. Customary Law, 
 also, as a legal limitation upon the supreme power, may be 
 regarded as belonging to a past order of things. Constitutional 
 Law, on the other hand, cannot be dismissed so briefly. Two 
 cases in particular have given rise to practical difficulties in apply- 
 ing the doctrine of legislative omnipotence — the attempts of 
 sovereigns to bind their successors, and the rules of fundamental 
 Constitutional Law. 
 
 The attempts of sovereigns to bind their successors have been 
 generally held invalid. Legal interpretation in this case appears 
 to have a sound basis in both utility and logic. Let us suppose 
 that the British Parliament passes a Statute which purports to be 
 unrepealable. At least three distinct interpretations are possible. 
 The Courts might hold (a) that the Statute was binding until 
 directly or indirectly repealed ; (b) that the Statute was binding 
 until expressly repealed; (c) that the Statute was wholly unre- 
 pealable. The course of legal interpretation in England suggests 
 the probability of the first -mentioned solution. The Act of 
 Union with Scotland provided that the Presbyterian Church 
 should remain for ever established in Scotland. Within four years 
 after the Union, an Act was passed which involved a violation of 
 this provision. The validity of the later Act has been upheld by 
 the House of Lords. But even if the Courts declared that a 
 Statute purporting to be unrepealable was binding until expressly 
 repealed, the declaration would involve no absolute limitation 
 upon Parliament, since Parliament could at any moment effect 
 such a repeal. It is just conceivable, however, that a Statute of 
 the kind supposed might be held to be absolutely unrepealable. 
 If such an interpretation were made, and acquiesced in, then it 
 would have to be admitted that Parliament was no longer sover- 
 eign. The interpretation would be contrary to utility. In my 
 opinion, it would also be logically unsound, for the reason that an 
 authority conferred upon a Statute by Parliament cannot be greater 
 than Parliament, and ought to be held withdrawable by Parliament. 
 
 Kules of fundamental constitutional law stand on a different 
 footing. They appear at times to impose an absolute limitation 
 upon the supreme organization. Bodin, though a strong advocate 
 of absolutist doctrines of sovereignty, admitted the existence of 
 kge$ imperii like the Salic Law, which no sovereign could trana- 
 
162 THE LIMITS OF SOVEREIGN POWER 
 
 pressly adopted, but are simply imposed by opinions preva- 
 V lent in the community. In either case the sovereign or 
 l^te is bound to observe them by merely moral sanctions. 
 ' Or (changing the phrase) in case it ventured to deviate from 
 
 gresB.^ In more modern times, the division between laws which 
 the ordinary Legislature could amend and the laws which it could 
 not, has given rise to difficulties in applying the doctrine of 
 sovereignity. Such difficulties are now generally overcome by 
 regarding sovereignity ois vested in the power which can amend 
 the Constitution. But what if there be no such power? Where 
 a limitation is imposed by a supreme organization it ought to be 
 held removable by that organization. Where, however, it is 
 imposed by some power superior to that organization, as by a 
 Eevolutionary Assembly, the logical result appears to be that the 
 limitation can only be removed by appeal to that Assembly. la 
 all probability, however, an attempt would be made to evade such 
 a consequence. Italian jurists, when called upon to interpret the 
 Italian Constitution which made no provision for its amendment, 
 held that the power of amending must be assumed to have been 
 implicity conferred on the legislative body. It would have been 
 more logical, perhaps, to have attributed it to the monarch. 
 " Where the origin of the Constitution is due to a grant from the 
 ruler, it would seem that the same competence that enables him to 
 make such a grant would enable him to alter its provisions at 
 will." 2 
 
 An interesting illustration of the difficulties of the kind under 
 consideration is offered by the American Constitution. The fiftl 
 section of that Constitution, after defining the organization beliind 
 Federal and states' governments, proceeds to impose a limitation 
 upon this organization by requiring that no state shall be deprived, 
 save by its own consent, of its privilege to equal representation 
 in the Federal Senate^ An amendment of the Constitution intro- 
 ducing the principle of representation in the Federal Senate on « 
 basis of population, if not accepted by all the states, would be 
 invalid, though approved by the powers which for every other 
 purpose answer the description of a legal sovereign. But what 
 would happen if the powers last referred to, approved of an 
 amendment of the fifth section which omitted' the proviso as to 
 the conditions under which the states might be deprived of n 
 equal representation in the Senate ? It appears to me that tll« 
 — Courts would be compelled to hold such an amendment invalid 
 
 » "DeRepublica,"!. VIII. 
 
 > Willoughby, " Nature of the State," p. 215. 
 
THE LIMITS OP SOVEREIGN POWER 163 
 
 a maxim of the kind in question, it would not and could not 
 incur a legal pain or penalty, but it probably would incur 
 censure, and might chance to meet with resistance. 
 
 until it had received the assent of all the Btates. The fifth sec- 
 tion as it stands is evidently framed with the object of prescribing 
 a sovereign organization which shall vary in constitution, not 
 merely according to the will of certain parties, but also according 
 to the nature of the proposed change. In other words, the famous 
 proviso implies, not a limitation upon the sovereign power, but a 
 special organization of the sovereign power for a special purpose. 
 But whether this logical interpretation would be adopted to-day is 
 apparently doubtful. Professor Burgess, in his chapter on the 
 Sovereignty in the Constitution of the United States, writes : 
 "From the standpoint of political science I regard this legal 
 power of the legislature of a single commonwealth to resist suc- 
 cessfully the will of the sovereign as unnatural and erroneous. It 
 furnishes the temptation for the powers back of the Constitution 
 to reappear in revolutionary organization and solve the question by 
 power, which bids defiance to a solution according to law. There 
 is a growing feeling among our jurists and publicists that, in the 
 interpretation of the Constitution we are not to be strictly held 
 by the intentions of the framers, especially since the whole fabric 
 of our State has been so changed by the results of rebellion and 
 civil war. They are beginning to feel, and rightly so, that present 
 conditions, relations, and requirements should be the chief con- 
 sideration, and that when the language of the Constitution will bear 
 it, these should determine the interpretations. From this point of 
 view all the great reasons of political science and of jurisprudence 
 would justify the adoption of a new law of amendment by the 
 general course of amendment now existing, without the attach- 
 ment of the exception ; and in dealing with the great questions of 
 public law, we must not, as Mirabeau finely expressed it, lose the 
 grande morale in the petite morale."^ 
 
 Summary. — If the foregoing observations be sound, it must be 
 admitted that, apart from the de facto limitations whose existence 
 Austin admits, other limitations upon a power claiming to be 
 supreme have been recognized from time to time by legal theory. 
 Limitations alleged to exist as a result of conflict with ordinary 
 positive law may be placed on one side, since such law may be 
 changed by the lawmaker, and may therefore be said to bind 
 him, but not to limit his legislative power. Limitations alleged 
 to exist as a result of conflict with a doctrine of the sphere of 
 State action, or with Divine, Natural, or Customary law, belong 
 
 » "Political Science and Constitutional Law," 1, 152, 153. 
 
164 THE LIMITS OP SOVEREIGN POWER 
 
 - 317. Now, if a law or other act of a monarch or sovereigi 
 number conflict with a maxim of the kind to which I havi 
 adverted above, the law or 6ther act may be called un 
 constitutional (in that more general meaning which is some 
 times given to the epithet). For example: The expodfacti 
 statutes which are styled acts of attainder, may be callet 
 unconstitutional, though they cannot be called illegal. Foi 
 they conflict with a Drinciplfl . of legislation which parliamenl 
 has habitually observed, and which is regarded with appro- 
 bation by the bulk of the British community. 
 
 318j In short, when we style an act of a sovereign an 
 unconstitutional act (with that more general import which 
 is sometimes given to the epithet), we mean, I believe, this ; 
 That the act, is inconsistent with some given principle oi 
 maxim: that the given supreme government has expressly 
 adopted the principle, or, at least, has habitually observed 
 it: that the bulk of the given society, or the bulk of its 
 influential members, regard the principle with approbation: 
 and that, since the supreme government has habitually 
 observed the principle, and since the bulk of the society 
 
 to medieval lather than modern legal thought. Limitations al- 
 leged to exist as a result of conflict with the declared will of 
 a sovereign predecessor seem to me also irrelevant, since the 
 authority conferred by a power on a law cannot be greater than 
 the power itself, and can therefore be withdrawn by that power. 
 Where, however, the limitations are alleged to exist as a result of 
 conflict with fundamental constitutional law, a case of which a 
 Federal Constitution without an authority for amending i;he Con- 
 stitution would be a good example, the defender of the Austinisn 
 doctrine is driven into a corner from which he cannot- easily 
 escape. In such a case he may urge that the power of amending 
 the Constitution must be assumed to have devolved on the Federal 
 legislative body. But this is to beg the question at issue ; the 
 assumption is a legal fiction which can only be justified on the 
 plea of practical needs. In a word, the Austinian position that a 
 
 (supreme legislature is incapable of legal limitation, is a position 
 which does not rest, as Austin supposes, upon logicaL necessitieSi 
 but upon the humbler ground of expediency. ^ I 
 
THE LIMITS OF SOVEREIGN POWER 166 
 
 regard it with approbation, the act in question must thwart 
 the expectations of the latter, and must shock their opinions 
 and sentiments. Unless we mean this, we merely mean that 
 we deem the act in question generally pernicious : or that, 
 without a definite reason for the disapprobation which we 
 feel, we regard the act with dislike. 
 
 319. (2) The epithet unconstitutional as applied to con- 
 duct of a sovereign, and as used with the meaning which 
 is more special and definite, imports that the conduct in 
 question conflicts with constitutional law. And by the 
 expression constitutional law, I mean the positive morality, or 
 the compound of positive morality and positive law, which 
 figeguthft. -Constitution^ jr^ttufiture of the given supreme 
 government. I mean the positive morality, or the compound 
 of positive morality and positive law, which deterpaines the 
 bharacter of the person, or the respective characters of 
 the persons, in whom, for the time being, the sovereignty 
 shall reside : and, supposing the government in question an 
 aristocracy or government of a number, which determines 
 moreover the mode wherein the sovereign powers shall be 
 shared by the constituent members of the sovereign numbei- 
 or body. 
 
 320. N"ow, against a monarch properly so called, or against 
 a sovereign body in its collegiate and sovereign capacity, 
 constitutional law is positive morality merely, or is enforced 
 merely by moral sanctions: though, as I shall show hereafter, 
 it may amount to positive law, or may be enforced by legal 
 sanctions, against the members of the body considered 
 severally. The sovereign for the time being, or the pre- 
 decessors of the sovereign, may have expressly adopted, and 
 expressly promised to observe it. But whether constitutional 
 law has thus been expressly adopted, or simply consists of 
 principles current in the political community, it is merely 
 guarded, against the sovereign, by sentim pi^tiji nr fpplings 
 
166 THE LIMITS OF SOVEBEIGN POWER 
 
 ^ of the governed. Consequently, although an act of the 
 sovereign which violates constitutional law, may be styled 
 with propriety unconstitutional, it is not an infringement of 
 law simply and strictly so called, and cannot be styled with 
 propriety illegal. 
 
 321. For example : From the ministry of Cardinal 
 Bichelieu down to the great revolution, the king for the 
 time being was virtually sovereign in France. But, in the 
 same country, and during the same period, a traditional 
 maxim cherished by the courts of justice, and rooted in the 
 affections of the bulk of the people, determined the succes- 
 sion to the throne : It determined that the throne, on the 
 demise of an actual occupant, should invariably be taken by 
 the person who then might happen to be heir to it agreeably 
 to the canon of inheritance which was named the SaUc Law. 
 Now, in case an actual king, by a royal ordinance or law, had 
 attempted to divert the throne to his only daughter and 
 child, that royal ordinance or law might have been styled 
 with perfect propriety an unconstitutional act. But.yiegal 
 
 \it could not have been called : for, inasmuch as the actual 
 Iking was virtually sovereign, he was inevitably independent 
 I of legal obligation. Nay, if the governed had resisted 
 the unconstitutional ordinance, their resistance would have 
 been illegal or a breach of positive law, though consonant 
 to the positive morality which is styled constitutional law, 
 and perhaps to that principle of utility which is the test of 
 positive rules. 
 
 322. Again : An act of the British parliament vesting the 
 sovereignty in the king, or vesting the sovereignty in the 
 king and the upper or lower house, would essentially alter 
 the structure of our present supreme government, and might 
 therefore be styled with propriety an unconstitutional law. 
 In case the imagined statute were also generally pernicious, 
 and in case it offended moreover the generality or bulk of I 
 
THE LIMITS OP SOVEREIGN POWER 167 
 
 the nation, it might be styled irreligious and immoral as well 
 as unconstitutional. But to call it illegal were absurd : for 
 if the parliament for the time being be sovereign in the 
 united kingdom, it is the author, directly or oircuitously, ot 
 all our positive law, and exclusively sets the measure of legal 
 justice and injustice.* 
 
 322. Q. (1) Draw a list of acts illustrating the use of the 
 expression " unconstitutional " in both of the senses indicated by 
 Austin. 
 
 (2) Would the following be unconstitutional in either of the 
 senses indicated by Austin : 
 
 (a) An Act of Parliament passed with the object of making 
 
 the King liable to criminal process 1 
 
 (b) An Act of Parliament introducing Protection, 
 
 (1) Before consulting the constituencies; (2) After? 
 
 (3) Austin speaks of Constitutional Law as a compound of 
 positive law and positive morality. What is the test for deter- 
 mining to which of these two classes a rule of Constitutional law 
 belongs ? Apply your answer to the rule regulating the succession 
 to the throne in an absolute monarchy. / 
 
 Note. — Austin discusses the epithet unconstitutional, as it is 
 oppoted to illegal, and as it is applied to the conduct of the 
 sovereign — meaning by the term, I take it, legal sovereign. The 
 fact has been overlooked by some of his critics, who accuse Austin 
 of refusing to admit that any rule of Constitutional Law can 
 be a rule of positive law. Such a statement is sufficiently refuted 
 by sections 324-30, which affirm the legal liabilities of the several 
 members of a sovereign body. In sections 315-22 Austin is dis- 
 cussing, not the question whether Constitutional Law is law or not, 
 but the question whether any rule of Constitutional Law can 
 impose legal limits upon the sovereign. 
 
 Austin's description of Constitutional Law as a compound of 
 positive law and positive morality recalls the distinction, which 
 Professor Dicey has developed with so much skill, between Con- 
 stitutional Law proper and the Convention of the Constitution — 
 the former being a body of rules recognized by the Courts, as, 
 for example, the rule that the King can do no wrong : the latter 
 being a body of maxims or practices which, though they regulate 
 tha ordinary conduct of the crown, of ministers, and of other 
 persons under the Constitution, are not in strictness laws at all, 
 e.g. the rule that the King must assent to any Bill which has been 
 passed by both Houses of Parliament. 
 
 Austin's statement that an Act of the Imperial Parliament 
 
168 THE LIMITS OF SOVEREIGN POWER 
 
 The mean- 323. It is affirmed by Hobbes, in his masterly treatises on 
 H^if ■ go"^emmeiit, that ' no law can be unjust : ' which proposition 
 proposi- has been deemed by many, an immoral or pernicious paradox, 
 tion that jf ^g JqqJj a,t the scope of the treatises in which it occurs, 
 i*n be °^ ^^^^ S't the passages by which it is immediately followed, 
 anjnst.' we shall find that the proposition is neither pernicious nor 
 paradoxical; but is merely a truism put in unguarded terms. 
 His meaning is obviously this : that 'no positive law is legally 
 unjust.' And the decried proposition, as thus imderstood, 
 is indisputably true. For positive law is the measure or test 
 — . of legal justice and injustice : and, consequently, if positive 
 law might be legally unjust, positive law might be unjust as 
 measured or tried by itself. For just or unjust, justice or 
 injustice, is a term of relative and varying import. By the 
 epithet just, we mean that a given object, to which we apply 
 ■ the epithet, accords with a given law to which we refer it as 
 I to a test. And as that which is just conforms to a deter- 
 minate law, justice is the conformity of a given object to the 
 
 vesting the sovereign power in the King or either of the Houses 
 would be perfectly valid has been challenged by Professor Clark, 
 who remarks : " I apprehend the conduct of the Parliament would 
 be called, and reasonably called by all people, illegal." ^ ■ The time 
 for defending such a view is now past. The British Parliament 
 is a legal sovereign; and one of the great advantages of having 
 a legal sovereign is to make a revolution under the forms of law 
 '. possible. While supporting Austin on this point, I am not 
 prepared to subscribe to the position that, as against the Parlia- 
 ment, Constitntional Law is positive morality. The fact that 
 Parliament can change law at will does not entitle it to regard 
 that law as positive morality against itself. So long as the law 
 exists. Parliament is capable of being bound by it. The contrary 
 view belongs, in my opinion, to a very undeveloped or transitional 
 order of legal ideas. Constitutional Law .is no legal Umit upon 
 the British ParHament, not because the Parliament cannot be 
 bound by it, but because the Parliament can repeal or amend it.' 
 
 ' "PracticalJurisprudence," p. I7fcv JXt 
 » Cf. notes to § 314 and § 357. C. a, ^j^ 
 
THE LIMITS OF SOVEREIGN POWER 169 
 
 same or a similar measure : for justice is the abstract term 
 which corresponds to the epithet just. By the epithet i 
 unjust, we mean that the given object conforms not to the 1 
 given law. And since the term injustice is merely the 
 corresponding abstract, it signifies the nonconformity of 
 the given and compared object to that determinate law 
 which is assumed as the standard of comparison. — ^And 
 since such is the relative nature of justice and injustice, 
 one and the same act may be just and unjust as tried by 
 different measures. Without doubt, the term justice or in- 
 justice sometimes denotes emphatically, conformity or non- 
 conformity to the ultimate measure or test : namely, the law 
 of God. This is the meaning annexed to justice, when law 
 and justice are opposed: when a positive human rule is 
 styled unjust.* 
 
 324. When I affirm that the power of a sovereign is The legal 
 
 incapable of legal limitation, I always mean by a ' sove- U»^>li*y "' 
 
 members 
 reign,' a monarch properly so called, or a sovereign number of ^ 
 
 in its coUegate and sovereign capacity. Considered coUec- Bovereigu 
 tively, or considered in its corporate character, a sovereign ° ^' 
 number is sovereign and independent : but, considered sever- 
 ally, the individuals and smaller aggregates composing that 
 sovereign number are subject to the supreme body of which 
 they are component parts. Consequently, though the body 
 is inevitably independent of legal or political duty, any of 
 the individuals or aggregates whereof the body is composed 
 
 323. Q. (1) Illustrate the Austinian point of view by dis- 
 cussing the justice of the following : 
 
 (a) A decision of the House of Lords which overrules an 
 
 earlier decision of an inferior tribunal. 
 
 (b) A decision of the House of Lords which establishes a new 
 
 rule of law. 
 
 (c) An Act of ParHament which involves an admitted departure 
 
 from the spirit of our constitution. 
 (2) Is it permissible to describe every act not forbidden by law 
 as just ? 
 
170 THE LIMITS OF SOVEREIGN POWER 
 
 may be legally bound by laWs of which the body is the 
 author. For example : A member of the house of lords or a 
 member of/' the house of commons may be legally bound by 
 an act of parliament, which, as one of the sovereign legis- 
 lature, he has concurred with others in making. Nay, he 
 may be legally bound by statutes, or by rules njiade judicially, 
 which have immediately proceeded from subject or sub- 
 ordinate legislatures : for a law which proceeds immediately 
 from a subject or subordinate legislature is set by the author- 
 ity of the supreme. 
 
 325. And hence an important difference between mon- 
 archies or governments of one, and aristocracies or govern- 
 ments of a number. 
 
 326. Considered severally, the members of a sovereign 
 body, even as members of the body, may be legally bound 
 by laws of which the body is the author, and which regard 
 the constitution of the given supreme government. — In case 
 it be clothed with a legal sanction, or the means of enforcing 
 it judicially be provided by its author, a law set by the body 
 to any of its own members is properly a positive law : It is 
 properly a positive law, or a law strictly so called, although 
 it be imposed upon the obliged party as a member of the/' 
 body which sets it. — In case the law be invested with a' 
 legal or political sanction, and regard the constitution or 
 structure of the given supreme government, a breach of the j 
 law, by the party to whom it is set, is not only wnconstitu- 
 tional, but is also illegal. The breach of the law is imcon- 
 stitutional, inasmuch as the violated law regards the consti- 
 tution of the state. The breach of the law is also illegal, 
 inasmuch as the violated law may be enforced by judicial 
 procedure. 
 
 327. For example : The king, as a limb of the parliament, 
 might be punishable by act of parliament, in the event of 
 his transgressing the limits which the constitution has set 
 
THE LIMITS OF SOVEREIGN POWER 171 
 
 to his authority: in the event, for instance, of his pretend- 
 ing to give to a proclamation of his own the legal effect of a 
 statute emanating from the sovereign legislature. Or the 
 members of either house might be punishable by act of 
 parliament, if, as forming a limb of the parliament, they 
 exceeded their constitutional powers : if, for instance, they 
 pretended to give that legal effect to an ordinance or resolu- 
 tion of their body. 
 
 328. Where, then, the supreme government is a monarchy 
 or government of one, constitutional law, as against that 
 government, is inevitably nothing more than positive moral- 
 ity. Where the supreme government is an aristocracy or 
 government of a number, constitutional law, as against the 
 members of that government, may either consist of positive 
 morality, or of a compound of positive morality and positive 
 law. Against the sovereign body in its corporate and sover-| 
 eign character, it is inevitably nothing more than positive} 
 morality. But against the members considered severally, be 
 they individuals or be they aggregates of individuals, it may 
 be guarded by legal or political, as well as by moral sanctions. 
 
 329. In fact or practice, the members considered sever- 
 ally, but considered as members of the body, are commonly 
 free, wholly or partially, from legal or political restraints. 
 For example : The king, as a limb of the parliament, is not 
 responsible legally, or cannot commit a legal injury : and, as 
 partaking in conduct of the assembly to which he immedi- 
 ately belongs, a member of the house of lords, or a member 
 of the house of commons, is not amenable to positive law. 
 But though this freedom from legal restraints may be highly 
 useful or expedient, it is not necessary or inevitable. Con- 
 sidered severally, the members of a sovereign body, be they 
 individuals or be they aggregates of individuals, may clearly 
 be legally amenable, even as members of the body, to laws 
 which the body imposes. 
 
172 THE LIMITS OF SOVEREIGN POWER 
 
 330. And here I may remark, that if a member considered 
 severally, but considered as a member of the body, be wholly 
 or partially free from legal or political obligation, that 
 legally irresponsible aggregate, or that legally irresponsible 
 individual, is restrained or debarred in two ways from an 
 unconstitutional exercise of its legally unlimited power. 
 
 1. Like the sovereign body of which it is a member, it is 
 obliged or restrained morally : that is to say, it is controlled 
 by opinions and sentiments current in the given community. 
 
 2. If it affected to issue a command which it is not em- 
 powered to issue by its constitutional share in the sover- 
 eignty, its unconstitutional command would not be legally 
 binding, and disobedience to that command would therefore 
 not be illegal. Nay, although it would not be responsible 
 legally for thus exceeding its powers, those whom it com- 
 missioned to execute its unconstitutional command, would 
 probably be amenable to positive law", if they tried to accom- 
 plish their mandate. For example : If the king or either of 
 the houses, by way of proclamation or ordinance, affected to 
 establish a law equivalent to an act of parliament, the pre- 
 tended statute would not be legally binding. And althougli 
 the king or the house would not be responsible legally for 
 this supposed violation of constitutional law or morality, 
 those whom the king or the house might order to enforce the 
 statute, would be liable civilly or criminally, if they at- 
 tempted to execute the order. 
 
 The 331. I have affirmed above, that, taken or considered 
 
 severally, all the individuals and aggregates composing a 
 sovereign number are subject to the supreme body of which 
 they are component parts. By the matter contained in the 
 last paragraph, I am led to clear the proposition to which 
 I have now adverted, from a seeming difficulty. 
 
 332. Generally speaking, if a member of a sovereign body, 
 taken or considered severally, be not amenable to positive 
 
 limited 
 monarch 
 
THE LIMITS OF SOVEREIGN POWER 173 
 
 law, it is merely as a member of the body that he is free 
 from legal obligation. Generally speaking, he is bound, in 
 his other characters, by legal restraints. But in some of the 
 mixed aristocracies which are styled limited monarchies, the 
 so-called limited monarch is exempted or absolved com- 
 pletely from legal or political duty. For example : Accord- 
 ing to a maxim of the English law, the king is incapable of 
 committing wrong : that is to say, he is not responsible 
 legally for aught that he may please to do, or for any for- 
 bearance or omission. 
 
 333. But though he is absolved completely from legal or 
 political duty, it cannot be thence inferred that the king is 
 sovereign or supreme, or that he is not in a state of subjec- 
 tion to the sovereign or supreme parliament of which he is a 
 constituent member. Of the numerous proofs of this nega- 
 tive conclusion, which it were easy to produce, the following 
 will amply suffice. — 1. Although he is free in fact from the 
 fetters of positive law, he is not incapable of legal obliga- 
 tion. A law of the sovereign parliament, made with his 
 own assent, might render himself and his successors legally 
 responsible. But a monarch properly so called, or a sover- 
 eign number in its corporate and sovereign character, can- 
 not be rendered, by any contrivance, amenable to positive 
 law. — 2. If he affected to transgress the limits which the 
 constitution has set to his authority, disobedience on the 
 part of the governed to his unconstitutional commands 
 would not be illegal : whilst the ministers or instruments of 
 his unconstitutional commands, would be legally amenable, 
 for their unconstitutional obedience, to 'laws of that sover- 
 eign body whereof he is merely a limb. But commands 
 issued by sovereigns cannot be disobeyed by their subjects 
 without an infringement of positive law- whilst the minis- 
 ters or instruments of such a sovereign command, cannot be 
 legally responsible to any portion of the community, except- 
 
174 THE LIMITS OF SOVEREIGN POWER 
 
 ing the author of their mandate. — 3. He habitually obeys 
 the laws set by the sovereign body of which he is a con- 
 stituent member. If he did not, he must speedily yield his 
 office to a less refractory successor, or the British constitu- 
 tion must speedily expire. If he habitually broke the laws 
 set by the sovereign body, the other members of the body 
 would probably devise a remedy : though » prospective and 
 definite remedy, fitted to meet the contingency, has not been 
 provided by positive law, or even by constitutional morahty. 
 Consequently, he is bound by a cogent sanction to respect 
 the laws of the body, although that cogent sanction is not 
 predetermined and certain. A law which is set by the 
 opinion of the upper and lower houses (besides a law which 
 is set by the opinion of the community at large) constrains 
 him to observe habitually the proper and positive laws 
 which are set by the entire parliament. — But habitually 
 obeying the laws of a determinate and sovereign body, he is 
 not properly sovereign : for such habitual obedience consists 
 not with that independence which is one of the essentials of 
 sovereignty.* 
 
 333. Q. Define the expression " limited monarchy." 
 Note. — In the note to Section 289 a brief reference was made to 
 the view that sovereignty in the British Constitution might be 
 regarded as divisible into Legislative and Executive. In opposi- 
 tion to that view, I held that the King in Council is legally 
 subordinate to the King in Parliament. In actual practice, the 
 Executive fulfils its function subject to the general direction 
 of Parliament. From the point of view of legal theory, an Act 
 of Parliament remodelling the Executive or restricting its powers 
 would be completely vaUd. The position is criticized by Professor 
 Salmond, who remarks that the Crown "is not merely a part 
 of the Legislature, but also a part without whose consent the 
 Legislature cannot exercise any fragment of its own power. . . . 
 A power over a person which cannot be exercised without that 
 person's consent is no power over him at all." ^ With all 
 deference to this acute writer, it seems to me that questions 
 
 ' Jurisprudence," pp. 629-31. 
 
THE LIMITS OF SOVEREIGN POWER 175 
 
 334. But if sovereign or supreme power be incapable of Thenotnre 
 legal limitation, or if every supreme government be legally °j. ^j^ 
 absolute, wherein (it may be asked) doth political liberty liberty, 
 consist, and how do the supreme governments which are 
 commonly deemed free, differ from the supreme governments 
 which are commonly deemed despotic ? 
 
 335. I answer, that political or civil liberty is the liberty 
 from legal obligation, which is left or granted by a sovereign 
 government to any of its own subjects : and that, since the 
 power of the government is incapable of legal limitation, 
 the government is legally free to abridge their political 
 liberty, at its own pleasure or discretion. 
 
 336. Political or civil liberty has been erected into an 
 idol, and extolled with extravagant praises by doting and 
 fanatical worshippers. But political or civil liberty is not 
 more worthy of eulogy than political or legal restraint. 
 Political or civil liberty, like political or legal restraint, may 
 be generally useful, or generally pernicious ; and it is not as 
 
 of fact and law are here confused. If a radical change in the 
 constitution of the Executive is approved by both Houses, whether 
 the King assents to it or rejects it, he does so, not in his executive 
 capacity as executing laws, but in his legislative capacity as 
 making them. Legal theory requires us to differentiate between 
 the King or the Crown in these two capacities. Professor Salmond 
 appears to me to illustrate the difficulties which ari^ in the 
 absence of such a differentiation when he adds that the British 
 Constitution has a sovereign Judicature as well as a sovereign 
 Legislature and sovereign Executive. If our sovereignty were 
 really of this threefold character insoluble difficulties must arise as 
 to whether in a particular case one of the sovereign powers had or 
 hid not exceeded its sphere. In point of fact, differences might 
 arise between our different governmental organs, but happily the 
 Constitution provides an organization capable of dealing with all 
 such differences. That organization is the King in Parliament, the 
 final depositary of all governmental power, the living expression 
 of the unity of the State. To assert an executive sovereignty or 
 a judicial sovereignty involves a denial of the ideal unity of the 
 King and Parliament — a unity as much a matter of law as the 
 unity of the State is a matter of fact. 
 
176 THE LIMITS OF SOVEREIGN POWER 
 
 being liberty, but as conducing to the general good, that 
 political or civil liberty is an object deserving applause. 
 The final cause or purpose for which government ought to 
 exist, is the furtherance of the common weal to the greatest 
 ^possible extent. In so far as it attains its appropriate 
 purpose by conferring rights upon its subject?, government 
 attains that purpose through the medium of political liberty. 
 But since it must impose a duty wherever it confers a right, 
 and should also impose duties which have no corresponding 
 rights, it is less through the medium of political liberty, 
 than through that of legal restraint, that government must 
 attain the purpose for which it ought to exist. To say that 
 political liberty ought to be its principal end, or to say that 
 its principal end ought to be legal restraint, is to talk 
 absurdly: for each is merely a me^ to that furtherance of 
 the common weal, which is the only ultimate object of good 
 or beneficent sovereignty. But though both propositions are 
 absurd, the latter of the two absurdities is the least remote 
 from the truth. 
 
 337. Political or civil liberties rarely exist apart from 
 corresponding legal restraints. Where persons in a state 
 of subjection are free from legal duties, their hberties 
 (generally speaking) would be nearly useless to themselves, 
 unless they were protected in the enjoyment of their 
 liberties, by legal duties on their fellows: that is to say, 
 unless they had legal rights (importing such duties on their 
 fellows) to those political liberties which are left them by 
 the sovereign government. I am legally free, for example, 
 to move from place to place, in so far as I can move from 
 place to place consistently with my legal obligations: but 
 this my political liberty would be but a sorry liberty unless 
 my fellow-subjects were restrained by a political duty from 
 assaulting and imprisoning my body. Through the ignorance 
 or negligence of a sovereign government, some of the civil 
 
THE LIMITS OF SOVEREIGN POWER 177 
 
 liberties which it leaves or grants to its subjects, may not be 
 protected against their fellows by answering legal duties: 
 and some of those civil liberties may perhaps be protected 
 8u£Giciently by religious and moral obligations. But, speak- 
 ing generally, a political or civil liberty is coupled with 
 a legal r^ht to it: and, consequently, political liberty is 
 fostered by that very political restraint from which the 
 devotees of the idol liberty are so fearfully and blindly 
 averse.' 
 
 337. Note. — The remarks of Austin as to the nature of political 
 or civil liberty suggest three topics for consideration : the unity 
 which underlies the different uses of the term " liberty " ; the distinc- 
 tion between civil and political liberty ; and the relation between 
 liberty and right. 
 
 (1) The unity which underlies the different uses of the term 
 " liberty." — This unity is found in the idea of freedom from some 
 constraint which is external to the individual either in fact or 
 in conception. The constraint may take one or other of several 
 forms : — 
 
 (a) The interference of one's fellow-citizens ; 
 
 (6) The interference on the part of the ruling powers of the 
 State ; 
 
 (c) That interference with the development of one's true self, 
 which happens when some momentary pleasure is pre- 
 ferred to a permanent good. 
 
 Restraint of the kind last mentioned may seem to need illustra- 
 tion. "Love Virtue," said Milton, "she alone is free." So a dipso- 
 maniac is said to be the slave of a depraved taste j a Don Juan the 
 t ic*'im of the tyranny of passion. The apparent paradox involved 
 in the differentiation of the two selves recalls the remark of Aris- 
 totle that Nature implies complete development, and that the nature 
 of a thing may be defined to be its condition when its growth is 
 complete.^ The real self is thus conceived of as something 
 different from the self actually existing at any particular moment, 
 something which is becoming rather than in being, something 
 which can only he reaUzed on the condition of rising above the 
 flashes of momentary impulse, something which must have been 
 present to the mind of Shakespeare when he wrote : " To thine 
 own self be true." So Professor Bosanquet defines liberty as the 
 condition of being ourselves. "There is something worthy of 
 
 ' Pohtics," I, iL 
 
178 THE LIMITS OF SOVEEEIGN POWER 
 
 Govern- 338. From the nature of political or civil liberty, I turn 
 ment free ^^ ^^^ supposed difference between free and despotic govern- 
 despotic. ments. 
 
 Dante in Kousseau's observation that the convicts in the galleys 
 ,at Genoa had ' Liberty ' stamped on their chains. The fetters of 
 'the bad self are the symbols of freedom." ^ The region into 
 which we are here transferred may seem remote ; but the nature 
 of political and civil liberty will only be grasped by the student 
 who has the courage to look occasionally beyond the immediate 
 borders of his own special subject, and to examine that ideal of 
 moral freedom which it is the purpose of civil and political liberty 
 to promote. The truth of this statement will be apparent when 
 we come to consider the conception of political liberty as consist- 
 ing; in self-government. 
 
 (2) The relation of civil to political liberty. — The freedom 
 irom an external constraint which is fundamental in the concep- 
 tion of liberty can only be assured in a society of human beings 
 where each recognizes in others the claims which he makes for 
 himself. The individual can only be free to do as he ought, on 
 condition of recognizing that he is not free to do as he likes. 
 •"-Liberty implies Law. We thus arrive at a conception of it as 
 consisting in a certain power of self-determination residing alike 
 in others and ourselves — a power not to do exactly as we wish but 
 necessarily limited by reference to a like power in others — a 
 power regulated by law. The expression "civil and political liberty" 
 indicates the power of self-determination which is secured to 
 individuals by the existing government and positive laws. The 
 civil and political liberty which I enjoy is the power of self- 
 determination which is assured to me by the State and the laws, 
 and is protected from the arbitrary interference on the part of 
 either my fellow-citizens or the officers of government. 
 
 The expressions " civil liberty" and " political liberty," however, 
 are not interchangeable. They are distinguished by reference to a 
 positive element, the means,_gBiBlOTed for the assurance of the 
 power of self-determination. Where we are thinking of that 
 power, as secured to us by the laws, we employ the term " civil 
 liberty." Where we are thinking of it as secured to us by such 
 institutions as the franchise and representative government, wo 
 employ the term " political liberty." In popular usage the positive 
 element is more prominent in the conception of political liberty 
 than in that of civil liberty, although it is implicit in both. 
 
 In the development of the detail involved in the conceptions of 
 civil and political libertv, continental usage is different from 
 
 " Philosophical Theory of the State," p. 142 n. 
 
THE LIMITS OF SOVEREIGN POWER 179 
 
 339. Every supreme government is free from legal 
 restraints; or (what is the same proposition dressed in a 
 different phrase) every supreme government is legally 
 demotic. The distinction, therefore, of governments into 
 
 English. Thus M. Boutmy, after having defined civil liberty as 
 the protection of person and property assured to the individual 
 against the government, remarks that this protection must be 
 guaranteed by political liberties such as the right of association and 
 assembly, the freedom of the Press, and a national representation 
 founded on a widely extended electoral franchise. The author 
 then remarks that the right of association and assembly, and the 
 freedom of the Press, are not regarded in England as political 
 liberties, but as civil liberties. " They have never been raised to 
 the dangerous dignity of constitutional prerogatives, but have been 
 left in the position of purely private rights. They have always 
 been regarded as corollaries contained in the fundamental postulate 
 of personal liberty, from which they have become separated. 
 The right of assembly proceeds directly from the right every man 
 has to come, go, or stay where he likes. The right of association 
 is simply a development of the right to enter into contracts. The 
 liberty of the Press is a particular example of the liberty to think 
 and speak." ^ 
 
 Hitherto I have considered the terms civil liberty and political 
 liberty as referring to actualities. The terms are sometimes used 
 to designate idealities — the liberty which ought to exist as distin- 
 guished from that which does exist. The ideal of political liberty 
 is self-government — an ideal which can only be realized in a 
 society where the restraints upon individuals which Uberty implies 
 are self-imposed, not in the mere sense that they are popularly 
 approved, but in the sense that they are formally made by the 
 society through the direct vote of individual citizens, or through 
 representatives whom those citizens have chosen and control. Used 
 in a still deeper sense, political liberty as an ideal implies even 
 more — the imposition of restraints in the interests of a common 
 good — government of selves by selves in the interest of all. The 
 individual is morally free where the true self triumpbs over the 
 baser elements. The State is politically free when the restraints 
 upon the action of its citizens are self-imposed in the interests of 
 the well-being of all. In this connection the ideal of political 
 liberty has a deeper meaning than is generally appreciated. It 
 looks forward to a society wherein the wisdom and the virtue of 
 the whole community triumph over the sinister interests of a class 
 
 "The English People," p. 207. 
 
180 THE LIMITS OF SOVEREIGN POWER 
 
 free and despotic, can hardly mean that some of them are 
 freer from restraints than others : or that the subjects of the 
 governments which are denominated free, are protected 
 against their governments by positive law. 
 
 or of individuals — a condition to the realization of which a demo- 
 cratic constitution, which is often made synonymous with political 
 liberty, is but one of many means. 
 
 (3) Austin'* use of the terms " liberty " and " right." The various 
 dicta of Austin on this subject seem to indicate a lack of clearness 
 and precision not usual with him. His general position, however, 
 as it is indicated by a statement in a later lecture, appears to b& 
 substantially accurate. "In liberty, the prominent or leading 
 idea is the absence of restraint ; whilst the security for the enjoy- 
 ment of that liberty is the secondary idea. Eight, on the other 
 hand, denotes the protection and connotes the absence of re- 
 straint."* The distthction may be illustrated by the following 
 cases. One citizen has the liberty, or the right, to make a present 
 to another citizen. If the paramount idea be that of the obliga- 
 tion upon other citizens not to interfere with him in the exercise 
 of this privilege, we may use the term "right." But if, as is more 
 likely, the paramount idea be that the privilege to make gifts is 
 part of that sphere of activity within which a man is free from 
 external interference or control, we should use the term " liberty." 
 Strictly speaking, we ought not to say that a man has a right to 
 rise at six a.m. What we really mean is that he is at hberty to 
 rise at that hour. We are not thinking of duties on the part 
 of other citizens to refrain from interfering with him in his de- 
 cision, but of the privilege which he enjoys to decide such ques- 
 tions for himself without any direction from the laws. So we 
 say that a man is at liberty to make a fool of himself rather than 
 he has a legal right to do so. If X, observing his friend T in 
 that predicament at amateur theatricals, succeeds in diverting the 
 attention of the audience in order to save Y's reputation, Y is not 
 legally protected from that interference, so long as X does not 
 violate any specific rule of law, as by removing T bodily from the 
 stage. In a society where the religious code consisted simply of 
 prohibitions, against polytheism and smoking,^ a man may enjoy 
 religious liberty to run away with his neighbour's wife, but not a 
 religious right to do so, since the religious code imposes no obliga- 
 tion on the husband to abstain from interfering with him in the 
 exercise of this religious liberty. Such cases as these illustrate 
 
 1 "Jurisprudence," I, 356. 
 
 ' Cf. Palgrave, "Journey through Central and Eastern Arabia," II, 11. 
 
THE LIMITS OF SOVEREIGN POWER 181 
 
 340. Nor can it mean that the governments which are 
 denominated free, leave or grant to their subjects more of 
 political liberty than those which are styled despotic. For 
 the epithet fret, importing praise, and the epithet despotic 
 importing blame, they who distinguish governments into 
 free and despotic, suppose that the first are better than the 
 second. But inasmuch as political liberty may be generally 
 useful or pernicious, we cannot infer that a government is 
 better than another government, because the sum of the 
 liberties which the former leaves to its subjects, exceeds 
 the sum of the liberties which are left to its subjects by the 
 latter. The excess in the 'sum of the liberties which the 
 former leaves to its subjects, may be purely mischievous. It 
 may consist of freedom from restraints which are required 
 by the common weal ; and which the government would lay 
 upon its subjects, if it fulfilled its duties to the Deity. In 
 consequence, for example, of that mischievous freedom, its 
 subjects may be guarded inadequately against one another, 
 or against attacks from external enemies. 
 
 341. They who distinguish governments into free and 
 despotic, probably mean this : In every political society, the 
 government, in conferring rights and imposing duties, more 
 or less disregards the common or general weal, and looks to 
 
 the fact that liberty and right are not inseparable. In developed 
 systems, however, the tendency is in the direction of making 
 them so. " The plaintiff," said Lord Lindley in Quinn v. Leathern, 
 " had the ordinary rights of a British subject. He was at liberty 
 to earn his own living in his own way, provided he did not violate 
 some special law prohibiting him from so doing, and provided 
 he did not infringe the rights of other people. This liberty 
 involved liberty to deal with other persons who were willing to 
 deal with him. This liberty is a right recognized by law; its 
 correlative is the general duty of every one not to prevent the free 
 exercise of this liberty, except so far as his own liberty of action 
 may justify him in so doing." * 
 
 1901. A.C., 534. 
 
182 THE LIMITS OF SOVEREIGN POWER 
 
 the peculiar interests of a portion or portions of the com- 
 munity. — Now the governments which deviate less from 
 that ethical principle or maxim, are better than the govern- 
 ments which deviate more. But, according to the opinion of 
 those who make the distinction in question, the governments 
 which deviate less from that ethical principle or maxim, are. 
 popular governments, meaning by a popvlar government any 
 aristocracy which consists of such a number of the given 
 political community as bears a large proportion to the 
 number of the whole society. For it is supposed by those 
 who make the distinction in question, that, where the 
 government is popular, the interests of the sovereign 
 number, and the interests of the entire community, are 
 nearly identical, or nearly coincide: but that, where the 
 government is monarchical, or where the supreme powers 
 reside in a comparatively few, the sovereign one or number 
 has numerous interests which are not consistent with the 
 good of the general. — According, therefore, to those who 
 make the distinction in question the duties which a govern- 
 ment of many lays upon its subjects, are more consonant to 
 the general good than the duties which are laid upon its 
 subjects by a government of one or a few. Consequently, 
 though it leaves or grants not to its subjects, more of 
 political liberty than is left or granted to its subjects by a 
 government of one or a few, it leaves or grants to its subjects 
 more of the political liberty which conduces to the common 
 weal. But, as leaving or granting to its subjects more of that 
 useful liberty, a government of many may be styled free: 
 whilst, as leaving or granting to its subjects less of that 
 useful liberty, a government of one or a f^w may be styled 
 not free, or may be styled despotic or absolute. Conse- 
 quently, a free government is a popular government: whilst a 
 despotic government is either a monarchy or an oligarchy. 
 342. They who distinguish governments into free and 
 
THE LIMITS OF SOVEREIGN POWER 183 
 
 despotic, are therefore lovers of democracy. By the epithet 
 free, as applied to governments of many, they mean that 
 governments of many are comparatively good : and by the 
 epithet despotic, as applied to monarchies or oligarchies, they 
 mean that monarchies or oligarchies are comparatively bad. 
 The epithets free and despotic are rarely, I think, employed 
 by the lovers of monarchy or oligarchy. If the lovers 
 of monarchy or oligarchy did employ those epithets, they 
 would apply the epithet free to governments of one or a few, 
 and the epithet despotic to governments of many. For they 
 think the former comparatively good, and the latter com- 
 paratively bad ; or that monarchical or oligarchical govern- 
 ments are better adapted than popular, to attain the ultimate 
 purpose for which governments ought to exist. They deny 
 that the latter are less misled than the former, by interests 
 which are not consistent with the common or general weal : 
 or, granting that excellence to governments of many, they 
 think it greatly outweighed by numerous other excellences 
 which they ascribe to governments of one or to governments 
 of a few. But with the respective merits or demerits of 
 various forms of government, I have no direct concern. 
 I have examined the current distinction between free and 
 despotic governments, because it is expressed in terms 
 which are extremely inappropriate and absurd, and which 
 tend to obscure the independence of political or legal obliga- 
 tion, that is common to sovereign governments of all forms 
 or kinds.' 
 
 342. Seeley makes an interesting contribution to the distinction 
 under discussion. All government, he argues, rests on force. 
 But force implies the support of at least a considerable number 
 of the community. Hence in every community, whether despotic 
 or free, we have to distinguish between the government and the 
 body which supports the government. Now the body which sup- 
 ports the government may be said to make it, and certainly has 
 the power to destroy it In States where that body ii organized, 
 
184 THE LIMITS OF SOVEREIGN POWER 
 
 Whyithas 343 That the power of a sovereign is incapable of legal 
 
 j*™^ , limitation has been doubted, and even denied. But the 
 doubted, 
 
 that sever- difficulty, like thousands of others, probably arose from 
 eign in- g^ verbal ambiguity. — ^The foremost individual member of a 
 
 capable of 
 
 legal so-called limited monarchy, is styled improperly monarch or 
 
 limitation, sovereign. Now the power of a monarch or sovereign, thus 
 
 improperly so styled, is not only capable of legal limitations, 
 
 but is sometimes actually limited by positive law. But 
 
 monarchs or sovereigns, thus improperly so styled, were 
 
 confounded with monarchs, atid other sovereigns, in the 
 
 proper acceptation of the terms. And since the power of 
 
 the former is capable of legal limitations, it was thought 
 
 that the power of the latter might be bounded by similar 
 
 restraints. 
 
 The pro- 344. Whatever may be its origin, the error is remarkable. 
 
 '^°" t^ ^°^ ^^^ legal independence of monarchs in the proper 
 
 byre- acceptation of the term, and of sovereign bodies in their 
 
 nowned corporate and sovereign capacities, not only follows in- 
 
 writers. evitably from the nature of sovereign power, but is also 
 
 asserted expressly by renowned political writers of opposite 
 
 parties or sects : by celebrated advocates of the governments 
 
 which are decked with the epithet free, as by celebrated 
 
 advocates of the governments which are branded with the 
 
 epithet despotic. 
 
 345. 'If it he objected (says Sidney) that I am a de- 
 fender of arbitrary powers, I confess I cannot comprehend 
 how any society can be established or subsist without them. 
 
 the government is free. In other States, the government is 
 despotic. The distinction between a free and a despotic State 
 is thus a distinction between States which have, and States which 
 have not, an organization by means of which public opinion 
 makes, supports, and destroys the government. Great Britain 
 enjoys free government; Kussia is a despotism.^ 
 
 ' Of. Seeley, " Political Science," Lectures v.-viii. 
 
THE LIMITS OF SOVEREIGN POWER 185 
 
 The difference between good and ill governments is not, that 
 those of one sort have an arbitrary power which the others 
 have not ; for they all have it ; but that in those which 
 are well constituted, this power is so placed as it may be 
 beneficial to the people,' 
 
 346. 'It appeareth plainly (says Hobbes) to my under- 
 standing, that the soveraign power whether placed in one 
 man, as in monarchy, or in one assembly of men, as in 
 popular and aristocraticall commonwealths, is as great as men 
 can be imagined to make it. And though of so unlimited 
 a power men may fancy many evill consequences, yet the 
 consequence of the want of it, which is warre of every man 
 against his neighbour, is much worse. The condition of man 
 in this life shall never be without inconveniences : but there 
 I happeneth in no commonwealth any great inconvenience, but 
 what proceeds from the subjects' disobedience. And whoso- 
 ever, thinking soveraign power too great, will seek to make 
 it lesse, must subject himselfe to a power which can limit it 
 that is to say, to a greater.' — ' One of the opinions (says 
 the same writer) which are repugnant to the nature of 
 a commonwealth, is this: that he who hath the soveraign 
 power is subject to the civill lawes. It is true that all 
 Boveraigns are subject to the lawes of nature ; because such 
 lawes be Divine, and cannot by any mtin, or by any 
 commonwealth, be abrogated. But to the civill lawes, or to 
 the lawes which the soveraign maketh, the soveraign is not 
 subject : for if he were subject to the civill lawes, he were 
 subject to himselfe ; which were not subjection, but freedom. 
 The opinion now in question, because it setteth the civill 
 lawes above the soveraign, setteth also a judge above him, 
 and a power to punish him: which is to make a new 
 soveraign ; and, again, for the same reason, a third to punish 
 the second ; and so continually without end, to the confusion 
 and dissolution of the commonwealth.' — 'The difference 
 
186 THE LIMITS OF SOVEREIGN POWER 
 
 (says the same writer) between the kinds or forms of 
 
 commonwealth, consisteth not in a difference between their 
 
 powers, but in a difference between their aptitudes to 
 
 produce the peace and security of the people: which i» 
 
 their end.' 
 
 Asover- 347. Before I discuss the origin of political government 
 
 eign not ^^^ society, I will briefly examine a topic allied to the 
 
 of rights, liberty of sovereigns from political or legal restraints. 
 
 348. A sovereign government of one, or a sovereign govern- 
 ment of a number in its collegiate and sovereign capacity, has 
 no legal rights (in the proper acceptation of the term) against 
 its own subjects. 
 
 349. Every legal right is the creature of a positivejaw : 
 and it answers to a relative duty imposed by that positive law, 
 and incumbent on a person or persons other than the person or 
 persons in whom the right resides. To every legal right, there 
 are three several parties : namely, a party bearing the right ; 
 a party burthened with the relative duty ; and a sovereign 
 government setting the law through which the right and the 
 duty are respectively conferred and imposed. A sovereign 
 government cannot acquire rights through laws set by itself to 
 its own subjects. A man is no more able to confer a right on 
 himself, than he is able to impose on himself a law or duty. 
 Every party bearing a right (divine, legal, or moral) has 
 necessarily acquired the right through the might or power 
 of another : that is to say, through a law and a duty (proper 
 or improper) laid by that other party on a further and distinct 
 party. If a government had legal rights against its own 
 subjects, it could not be sovereign, for those rights were the 
 creatures of positive laws set to its own subjects by a third 
 person or body. 
 
 •Right is 350. It has often been affirmed that 'right is might,' or 
 
 vag^t- that "might is right.' But this paradoxical proposition is 
 
 either a truism affectedly and darkly expressed, or is false 
 
THE LBIITS OF SOVEREIGN POWER 187 
 
 and absurd. If it mean that a party who possesses a right 
 possesses the right through might or power of his own, the 
 proposition is false and absurd. For a party who possesses a 
 right necessarily possesses the right through the might or 
 power of another : namely, the author of the law by which the 
 right is conferred. If it mean that right and might are one 
 and the same thing, the proposition in question is also false 
 and absurd. My physical ability to move about, when my 
 body is free from bonds, may be called might or power, but 
 cannot be called a right : though my ability to move about 
 without hindrance from you, may doubtless be styled a right, 
 with perfect precision, if I owe the ability to a law imposed 
 upon you by another. If, again, it mean that every right is a 
 creature of might or power, the proposition is merely a truism 
 disguised in paradoxical language. For every right (divine, 
 legal, or moral) rests on a relative duty ; that is to say, a duty 
 lying on a party or parties other than the party or parties in 
 whom the right resides. And, manifestly, that relative duty 
 would not be a duty substantially, if the law which affects to 
 impose it were not sustained by might. 
 
 351. So far as subjects are bound by the law of God to 
 obey their temporal sovereign, a sovereign government has 
 rights divine against those subjects : rights which are conferred 
 upon itself, through duties which are laid upon its subjects, 
 by laws of a common superior. And so far as the members 
 of its own community are severally constrained to obey it by 
 the opinion of the community at large, it has also rnoral rights 
 (or rights arising from positive morality) against its own 
 subjects severally considered: rights which are conferred upon 
 itself by the opinion of the community at large, and which 
 answer to relative duties laid upon its several subjects by 
 the general or prevalent opinion of the same indeterminate 
 body. 
 
 352. Consequently, when we say that a sovereign govern- 
 
188 THE LIMITS OF SOVEREIGN POWER 
 
 ment, as against its own subjects, has or has not a right to do 
 this or that, we necessarily mean by a right (supposing we 
 speak exactly), a right Divine or moral : we necessarily mean 
 (supposing we speak exactly) that it has or has not a r^ht 
 derived from a law of God, or derived from a law improperly 
 so called which the general opinion of the community sets to 
 its members severally. 
 
 353. But when we say that a government, as against its 
 own subjects, has or has not a right to do this or that, we 
 not uncommonly mean that we deem the act in .question 
 generally useful or pernicious. This application of the term 
 right, resembles an application of the term justice to which 
 I have adverted above. — An act which conforms to the Divine 
 law, is styled, emphatically, just ; an act which does not, is 
 styled, emphatically, unjust. An act which is generally use- 
 ful, conforms to the Divine law as known through the principle 
 of utility : an act which is generally pernicious, does not con- 
 form to the Divine law as known to the same exponent. Con- 
 sequently, ' an act which is just or unjust,' and ' an act which 
 is generally useful or generally pernicious,' are nearly equiva- 
 lent expressions. — An act which a sovereign government has 
 a Divine right to do, it, emphatically, has a right to do : if it 
 has not a Divine right, it, emphatically, has not a right. An 
 act which were generally useful, the Divine law, as known 
 through the principle of utility, has conferred on a sovereign 
 government a right to do : an act which were generally 
 pernicious, the Divine law, as known through the same 
 exponent, has not conferred on the sovereign government a 
 right to do. Consequently, an act which the government has 
 a right to do, is an act which were generally useful : as an 
 act which the government has not a right to do, is an act 
 which were generally pernicious. 
 
 354. To ignorance or neglect of the palpable truths which 
 I have expounded in the present section, we may impute a 
 
THE LIMITS OF SOVEREIGN POWER 189 
 
 pernicious jargon that was current in our own country on the 
 eve of her horrible war with her North American children. By 
 the great and small rabble in and out of Parliament, it was 
 said that the government sovereign in Britain was also sover- 
 eign in the colonies ; and that, since it was sovereign in the 
 colonies, it had a right to tax their inhabitants. It was 
 objected by Mr. Burke to the project of taxing the inhabit- 
 ants, that the project was inexpedient : pregnant with prob- 
 able evil to the inhabitants of the colonies, and pregnant with 
 probable evil to the inhabitants of the mother country. But 
 to that most rational objection, the sticklers for the scheme of 
 taxation returned this asinine answer. They said that the 
 British government had a right to tax the colonists; and 
 that it ought not to be withheld by paltry considerations of 
 expediency, from enforcing its sovereign right against its 
 refractory subjects. — Now, assuming that the government 
 sovereign in Britain was properly sovereign in the colonies, 
 it had no legal right to tax its colonial subjects ; although it 
 was not restrained by positive law, from dealing with its 
 colonial subjects at its own pleasure or discretion. If, then, 
 the sticklers for the scheme of taxation had any determinate 
 meaning, they meant that the British government was em- 
 powered by the law of God to tax its American subjects. But 
 it had not a Divine right to tax its American subjects, unless 
 the project of taxing them accorded with general utility: 
 for every Divine right springs from the Divine law ; and to 
 the Divine law, general utility is the index. Consequently, 
 when the sticklers for the schem^ of taxation opposed the 
 right to expediency, they opposed the right to the only test 
 by which it was possible to determine the reality of the right 
 itself. 
 
 355. A sovereign government of one, or a sovereign govern- Appear- 
 ment of a number in its collegiate and sovereign capacity, *'"'® °f ' 
 may appear in the character of defendant, or may appear in govern- 
 
190 THE LIMITS OF SOVEREIGN POWER 
 
 ment the character of demandant, before a tribunal of its own 
 
 e ore its appointment, or deriving jurisdiction from itself. But from 
 
 tribunals, such an appearance of a sovereign government, we cannot 
 
 infer that the government lies under legal duties, or has legal 
 
 rights against its own subjects. 
 
 356. Supposing that the claim of the plaintiff against the 
 sovereign defendant were truly founded on a positive law, it 
 were founded on a positive law set to the sovereign defend- 
 ant by a third person or body : or (changing the phrase) the 
 sovereign defendant would be in a state of subjection to 
 another and superior sovereign. Which is impossible and 
 absurd. — And supposing that the claim of the sovereign de- 
 mandant were truly founded on a positive law, it were founded 
 on a positive law set by a third party to a member, or members 
 of the society wherein the demandant is supreme: or (chang- 
 
 l ing the phrase) the society subject to the sovereign demand- 
 I ant, were subject, at the same time, to another supreme 
 1 government. Which is also impossible and. absurd. 
 
 357. The rights which are pursued against a sovereign 
 government before tribunals of its own, and also the rights 
 which it pursues before tribunals of its own, are merely 
 
 — analog<yus to legal rights (in the proper acceptation of the 
 term) : or (borrowing the brief and commodious expressions 
 by which the Eoman jurists commonly denote an analogy) 
 they are legal rights quasi, or legal rights uti. — ^The rights 
 which are pursued against it before tribunals of its own, it 
 may extinguish by its own authority. But, this notwith- 
 standing, it permits the demandants to prosecute their 
 claims: And it yields to those claims, when they are 
 established judicially, as if they were truly founded on 
 positive laws set to itself by a third and distinct party.— 
 The rights which it pursues before tribunals of its own, are 
 powers which it is free to exercise according to its own 
 pleasure. But, this notwithstanding, it prosecutes its claims 
 
THE LIMITS OF SOVEREIGN POWER 191 
 
 throi^h the medium of judicial procedure, as if they were 
 Truly founded on positive laws set to the parties defendant 
 "by a third person or body. 
 
 358. The foregoing explanation of the seeming legal rights 
 which are pursued against sovereign governments before 
 tribunals of their own, tallies with the style of judicial 
 procedure, which, in all or most nations, is observed in 
 <;ases of the kind. The object of the plaintiffs claim is not 
 demanded as of right, but is begged of the sovereign 
 defendant as a grace or favour. 
 
 359. In our own country, claims pursued judicially 
 Against our own king are presented to the courts of justice 
 in the same or a similar style. The plaintiff petitions the 
 royal defendant to grant him his so-caUed right : or he 
 shows to the royal defendant his so-called right and injury, 
 and prays the royal defendant to yield him fitting redress. 
 — But where a claim is pursued judicially against our own 
 king, this mendicant style of presenting the claim is merely 
 accidental. It arises from the mere accident that our own 
 king, though not properly sovereign, is completely free in 
 fact from legal or political duties. Since he is free in fact 
 from every legal obligation, no one has a legal right (in the 
 proper acceptation of the term) against the king : for if any 
 had a legal right against the king, the king were necessarily 
 subject to an answering legal duty. But seeing that our 
 ■own king is merely a limb of the parliament, and is 
 virtually in a state of subjection, he is capable of legal 
 ■duties ; and he is capable of legal rights. In point of fact, 
 the king has legal rights against others of his fellow 
 subjects: though by reason of his actual exemption from 
 €very legal obligation, none of his fellow subjects have legal 
 rights against him. 
 
 360. Though a sovereign government of one, or a sovereign Legal 
 government of a number in its collegiate and sovereign "^Jits of 
 
192 THE LIMITS OF SOVEREIGN POWER 
 
 Mvereign capacity, cannot have legal rights against its own subjects, it 
 •gMnat may have a legal right against a subject or subjects of 
 subjects, another sovereign government. For seeing that a legal or 
 political right is not of necessity saddled with a legal or 
 political trust, the positive law conferring the right may not 
 be set to the government on which the right is conferred. 
 The law conferring the right (as well as the relative duty 
 answering to the right) may be laid or imposed exclusively 
 on the subject or subjects of the government by which the 
 right is imparted. The possession of a legal or political 
 right against a subject or subjects of another sovereign 
 government, consists, therefore, with that independenca 
 which is one of the essentials of sovereignty.' 
 
 360. Q. (1) If a sovereign may have legal rights against a 
 subject of another sovereign, may it not also be under a legal 
 duty towards the subject of another sovereign? But if so, can 
 it be said to be a sovereign in the Austinian sense ? 
 
 (2) Discuss the tenability of Austin's general conclusion with 
 respect to the possibility of a sovereign having legal rights against 
 its own subjects. 
 
 Note. — The position adopted by Austin may be summarized 
 as follows : A man cannot command himself, for command implies 
 sanction, and there is no true sanction where the penalty which 
 ia to be inflicted upon a person or body is inflicted at the dis- 
 cretion of that person or body. Moreover, as a man cannot 
 impose a duty upon himself, neither can he confer a right. If 
 two persons are necessary to the conception of a duty, three are 
 necessary to the conception of a right. We ought not to regard 
 as a right, a privilege which an authority is entitled to exercise 
 solely by virtue of a law of its own making ; such a privilege may 
 be exercised according to forms which res^aaWe those by which 
 legal rights are enforced ; but it cannot be "placed on the same 
 footing. It is not a legal right, but a quasi-legal right. 
 
 Austin's argument, though severely criticized by many authors, 
 is not altogether without excuse. If we consider the occasions 
 which may be quoted as illustrating the existence of legal rights 
 and duties between sovereign and subject, we shall often find 
 that it is not for naught that the sovereign has been judge in 
 his own cause. Austin refers to the differences of procedure ; hut 
 apart from these differences, sovereigns and their delegates have 
 not been slow to take advantage of their position. The maxim 
 
THE LIMITS OF SOVEREIGN POWER 193 
 
 Nidlum tempus occurrit reipuhlicoe is an illustration. So it has 
 been held that the Crown, impersonation of the sovereign or the 
 State, is not liable for the torts of its servants. Professor Harrison 
 Moore, in an article on the legal liabilities of the Executive, 
 remarks upon a disposition on the part of the Courts to prefer 
 the claims of the public service to those of the individual.^ 
 
 To excuse Austin is not to justify him. I maintain that the' 
 sovereign may have rights against the subject, and even may be 
 subject to d/uiies towards the subject. 
 
 (1) The sovereign may have rights against the subject. — One 
 difficulty in the way of realizing this fact arises from a confusion 
 of different kinds of alleged rights. It may be said, for example, 
 that a sovereign has : (a) a right that subjects who contract with 
 him shall do what they undertake to do ; (6) a right to receive 
 payment of the taxes which the laws impose on the subject; 
 (c) a right to tax the subject. Many of the arguments used 
 against the possibility of admitting legal rights against subjects 
 are inspired solely by reference to the third of these cases. As 
 regards the first two cases, the application of the term " right " in 
 a legal sense is neither meaningless nor inaccurate. It accords 
 with common sense, with popular usage, with the practice of the 
 Courts, and even with Austin's own definition. ' " A party has 
 a legal right when another or others are forced or obliged by the 
 law to do or forbear towards or in regard of him."^ If a theory 1 
 of sovereignty is in conflict with this conclusion, so much the | 
 worse for that theor y. The alleged right of a sovereign to tax 
 his subjects stands on a different footing. Everything that a 
 sovereign chooses to do in a formal manner it may do, so far as 
 the law is concerned. If the British Parliament imposes a tax, 
 and a subject refuses to pay the tax, the legal right violated is 
 not that of the sovereign to impose the tax, but that of the 
 sovereign to receive payment of the tax. If we say the British 
 Parliament has a right to pass a law or impose a tax, we can 
 only mean moral right. But in a community where the govern- 
 ment is distinct from the sovereign, a question might easily arise 
 whether a government had a legal right to impose a tax. It inay 
 be noted in this connection that the Parliamentarians opposed to 
 Burke may have meant more than Austifi supposes. When they 
 declared the existence of a right to tax the colonists, they prob- 
 ably meant that a colonist does not cease to be a subject. The 
 statement thus interpreted is not intrinsically absurd when we 
 remember that it was made in an age when colonies were apt to 
 be regarded as excrescences rather than parts incorporated in a 
 larger whole. 
 
 1 "Journal of Comparative Legislation," XII., 282-6. 
 ' "Jurisprudence," Lecture XVI. 
 
 o 
 
194 THE LIMITS OF SOVEREIGN POWER 
 
 \(2) The subject may have a right against the sovereign. — The 
 difficulty of admitting the fact originates in a confusion similar 
 to that which was mentioned under the preceding proposition. 
 
 — Subjects can have no right against the State, argues Gieen,' 
 But by this he means that they can have no moral right to dis- 
 obey the laws save in the interests of the State. The position, 
 morally, may be unassailable ; nor, in communities with a sovereign 
 
 , law-making organ, can we suppose for a moment that a subject 
 has a legal right of resisting the declared will of that organ even 
 in the interests of the State. To argue to the contrary is to expose 
 oneself to the full force of the argument, urged alike by Austin 
 and by Kant, ,that the supposition of such a right implies the 
 existence of a power capable of enforcing it, capable, i.e., of 
 coercing the sovereign and so superior to the sovereign. I beheve 
 that .most of the arguments against admitting the existence of 
 legal rights against a sovereign have simply this case in view, and 
 so fail to meet the case where the alleged right is with the 
 sovereign's full permission and actual sanctipn. As I have pre- 
 viously urged, sovereignty does not preclude the notion of obliga- 
 tion, but only the notion of limitation by a power external to 
 itself. If a sovereign, having laid down a law that contracts shall 
 be enforced, enters into contracts with its own subjects, and if those 
 contracts are enforced as a matter of fact by its Courts even as 
 against the sovereign, then it is impossible to deny that the 
 sovereign is under a legal duty towards its subjects. We cannot 
 refuse to describe the sovereign's liability as a legal duty on the 
 
 \ ground that the sanction is self-imposed, if as a matter of fact the 
 sanction is invariably admitted by the sovereign and applied by 
 the Courts. Austin's failure to recognize the fact is a conclusive 
 illustration of the need for revising his theory of sovereignty. 
 
 ' Principles of Political Obligation," § 141. 
 
CHAPTER VI 
 ORIGIN OR CAUSES OF POLITICAL SOCIETY 
 
 361. I now have defined or determined the general notion The origin 
 of sovereignty, including the general notion of independent °l '^?^^ , 
 political society : And, in order that I might further goyem- 
 elucidate the nature or essence of sovereignty, and of the ™™* """"^ 
 independent political society which sovereignty implies, I 
 
 have considered the possible forms of supreme political 
 government with the limits, real or imaginary, of supreme 
 political power. To complete my intended disquisition 
 I proceed to the origin or causes of the habitual or perma- - 
 nent obedience, which, in every society political and inde- 
 pendent, is rendered by the bulk of the community to the 
 monarch or sovereign number. In other words, I proceed to 
 the origin or causes of political government and society. 
 
 362. The proper purpose or end of a sovereign political Purpose of 
 government, or the purpose or end for which it ought to S"^^"'"- 
 exist, is the greatest possible advancement of human happi- — • 
 iiess : Though, if it would advance the good of mankind, it 
 commonly must labour particularly to advance the weal of 
 its own community. The good of the universal society 
 formed by mankind, is the aggregate good of the particular 
 societies into which mankind is divided : just as the happi- 
 ness of any of those societies is the aggregate happiness of 
 its single or individual members. Though, then, the weal of 
 mankind is the proper object of a government, or though 
 the test of its conduct is the principle of general utility, it 
 commonly ought to consult directly and particularly the 
 
 195 
 
196 ORIGIN OR CAUSES OF POLITICAL SOCIETY 
 
 Not the 
 i protec- 
 tion of 
 property. 
 
 Nor in- 
 crease 
 of wealth. 
 
 weal of the particular community jwhich the Deity has com- 
 mitted to its rule. If it truly adjust its conduct to the 
 principle of general utility, it commonly will aim imme- 
 diately at the particular and more precise, rather than the 
 general and less determinate end. 
 
 363. It were easy to show, that the general and particular 
 ends never or rarely conflict. Universally, or nearly uni- 
 versally, the ends are inseparably connected. An enlightened 
 regard for the common happiness of nations, implies an en- 
 lightened patriotism; whilst the patriotism ^hich looks 
 exclusively to country, and would further the interests of 
 country at the cost of all other communities, grossly mis- 
 apprehends and frequently crosses the interests that are 
 the objects of its narrow concern. 
 
 364. And here it may be observed that, by many of the 
 speculators on political government and society, one or a few 
 of the instrumental ends through which a government must 
 accomplish its proper absolute end, are mistaken for that 
 paramount purpose. For example: It is said by many 
 of the speculators on political government and society, that 
 ' the purpose of every government is to institute and protect 
 property.' But if the creation and protection of property 
 were its proper paramount purpose, its proper paramount 
 purpose might be the advancement of misery, rather than 
 the advancement of happiness; since many of the rights 
 which governments have created and protected (as the 
 rights of masters, for example, to and against slaves) are 
 generally pernicious, rather than generally useful. 
 
 365. The prevalent mistake which I have stated is com- 
 mitted by certain of the writers on the science of political 
 ceconomy, whenever they meddle incidentally with the con- 
 nected science of legislation. Whenever they step from 
 their own into the adjoining province, they make expressly, 
 or they make tacitly and unconsciously, the following 
 
ORIGIN OR CAUSES OF POLITICAL SOCIETY 197 
 
 assumption: that the proper absolute end of a sovereign 
 political government is to further as far as is possible the 
 grovyth of the national vyealth. If they think that a 
 political institution fosters production and accumulation, or 
 that a political institution damps production and accumula- 
 tion, they pronounce, without more ado, that the institution is 
 good or bad. They forget that the wealth of the community 
 is not the weal of the community, though wealth is one of 
 the m eans requisite to the attainment of happiness. They 
 forget that a political institution may further the weal of 
 the community, though it checks the growth of its wealth 
 and that a political institution which quickens the growth 
 of its wealth, may hinder the advancement of its weal.* 
 
 366. From the proper purpose or end for which a 
 sovereign political government ought to exist, we may 
 readily infer the causes of that habitual obedience which 
 would be paid to the sovereign by the bulk of an en- 
 hghtened society. Supposing that a given society were 
 adequately instructed or enlightened, the habitual obedience 
 to its government which was rendered by the bulk of the 
 community, would exclusively arise from reasons based or 
 the principle of utility. If they thought that the govern- 
 ment accomplished perfectly its proper purpose or end, this 
 their conviction or opinion would be their motive to obey 
 If they deemed the government faulty, a fear that the evi! 
 of resistance might surpass the evil of obedience, would be 
 their inducement to submit; for they would not persist in 
 their obedience to a government which they deemed im- 
 perfect, if they thought that a better government might 
 probably be got by resistance, and that the probable good of 
 the change outweighed its probable mischief. 
 
 367. Since every actual society is inadequately instructed 
 or enlightened, the habitual obedience to its government 
 
 365. Q. Does Austin base government on force or on utility 1 
 
198 ORIGIN OR CAUSES OF POLITICAL SOCIETY 
 
 which is rendered by the bulk of the comiimnity, is partly 
 the consequence of cusJtDm : They partly pay that obedience 
 ; to that present or established government, because they, and 
 I perhaps their ancestors, have been in a habit of obeying it. 
 ' Or the habitual obedience is partly the consequence of 
 prejudices : meaning by ' prejudices,' opinions and sentiments 
 which have no foundation whatever in the principle of 
 general utility. If, for example, the government is monarch- 
 ical, they partly pay that obedience to that present or estab- 
 lished government, because they are fond of monarchy 
 inasmuch as it is monarchy, or because they are fond of the 
 race from which the monarch has descended. Or if, for 
 example, the government is popular, they partly pay that 
 obedience to that present or established government, because 
 they are fond of democracy inasmuch as it is democracy, or 
 because the word 'republic' captivates their fancies and 
 affections. 
 
 368. But though that habitual obedience is partly the 
 
 consequence of custom, or though that habitual obedience is 
 
 partly the consequence of prejudices, it partly arises from a 
 
 " reason based upon the principle of utility. It partly arises 
 
 from a j)erfiapiiDn of the expediency of political government 
 
 from a preference of government to anarchy. And this 
 
 is the only cause of the habitual obedience in question, 
 
 which is common to all societies, or nearly all societies. It 
 
 therefore is the only cause of the habitual obedience in 
 
 question, which the present general disquisition can properly 
 
 embrace. The causes of the obedience in question which 
 
 are peculiar to particular societies, belong to the province of 
 
 statistics, or the province of particular history. 
 
 I 369. The only general cause of the permanence of political 
 
 /governments, and the only general cause of the origin of 
 
 j political governments, are exactly or nearly alike. Though 
 
 every government has arisen in part from specitic or particular 
 
ORIGIN OR CAUSES OF POLITICAL SOCIETY 199 
 
 causes, almost every government must have arisen in part> 
 from the following general cause : namely, that the bulk of 
 the natural society from which the political was formed, '■. 
 were desirous of escaping to a state of government, from a 
 ^tate of nature_or anarchy. If they liked specially the < 
 government to which they submitted, their general perception 
 of the utility of government concurred with their special 
 inclination. If they disliked the government to which they 
 submitted, their general perception of the utility of govern- 
 ment controlled and mastered their repugnance. 
 
 370, According to a current expression, the permanence The poBi- 
 
 and origin of every government are owing to the people's *'°° 
 
 consent : that is to say, every government continues through emment 
 
 the consent of the people, or the bulk of the political com- ooitinue» 
 
 , through 
 
 munity: and every government arises through the consent ^^^^^ 
 
 of the people, or the biilk of the natural society from which people's 
 
 the political is formed. According to the same opinion 
 
 dressed in a different phrase, the power of the sovereign flows 
 
 from the people, or the people is the fountain of sovereign 
 
 power. 
 
 371. Now the permanence of every government depends 
 on the habitual obedience which it receives from the bulk of 
 the community. For if the bulk of the community were 
 fully determined to destroy it, the might of the government 
 would scarcely suffice to reduce them to subjection. But all 
 obedience is voluntary or free, or every party who obeys con- 
 sents to obey. In other words, every party who obeys wills 
 the obedience which he renders, or is determined to render it 
 by some motive or another. If a man condemned to imprison- 
 ment were dragged to the prison by the jailors, he would not 
 obey or submit. But if he were liable to imprisonment in 
 the event of his refusing to walk to it, and if he were 
 determined to walk to it by a fear of that further restraint, 
 the man would render obedience to the sentence or command 
 
200 ORIGIN OR CAUSES OF POLITICAL SOCIETY 
 
 of the judge. — Since, then, a government continues through 
 the obedience of the people, and since the obedience of the 
 people ia voluntary or free, every government continues 
 through the consent of the people, or the bulk of the poHtical 
 society. If they like the government, they are determined 
 to obey it habitually, or to consent to its continuance, by 
 their attachment. If they hate the government, they are 
 determined to obey it habitually, or to consent to its con- 
 tinuance, by their dread of a violent revolution. They 
 consent to what they abhor, because they avoid thereby 
 what they abhor more. — ^As correctly or truly apprehended, 
 the position ' that every government continues through the 
 people's consent,' merely amounts to this : That, in every 
 society political and independent, the people are determined 
 i by motives of some description or another, to obey their 
 government habitually : and that, if the bulk of the com- 
 munity ceased to obey it habitually, the government would 
 cease to exist. 
 
 372. But the position in question, as it is often under- 
 stood, is taken with one or another of the two following 
 meanings. 
 
 373. Taken with the first of those meanings, the position 
 amounts to this : That the bulk of every community approve 
 of the established government, or prefer it to every govern- 
 ment which could be substituted for it : and that they consent 
 to its continuance, or pay it habitual obedience, by reason of 
 that their approbation or by reason of that their preference. 
 As thus understood, the position is ridiculously false : the 
 habitual obedience of the people in most or many communi- 
 ties, arising wholly or partly from their fear of the probable 
 evils which they might suffer by resistance. 
 
 374. Taken with the second of those meanings, the position 
 amounts to this : That, if the bulk of a community dislike 
 the established government, the government ought not to 
 
OKIGIN OR CAUSES OF POLITICAL SOCIETY 201 
 
 continue. And, if every actual society were adequately en- 
 lightened, the position as thus understood would approach 
 nearly to the truth. For the dislike of an enlightened people 
 towards their established government, would beget a violent 
 presumption that the government was faulty or imperfect. 
 But, in every actual society, the government has neglected to 
 instruct the people in sound political science ; or pains have 
 been taken by the government, or the classes that influence 
 the government, to exclude the bulk of the community from 
 sound political science, and to perpetuate or prolong the 
 prejudices which weaken and distort their undertakings. 
 Every society, therefore, is inadequately instructed or en- 
 lightened : And, in most or many societies the love or hate 
 of the people towards their established government would 
 scarcely beget a presumption that the government was good 
 or bad. An ignorant people may love their established govern- 
 ment, though, by cherishing pernicious institutions and 
 fostering mischievous prejudices, it positively prevents the 
 progress in useful knowledge and in happiness, which its 
 subjects would make spontaneously if it simply were careless 
 of their good. And as an ignorant people may love their 
 established government, though it positively crosses the 
 purpose for which it ought to exist, so may an ignorant people 
 hate their established government, though it labours strenu- 
 ously and wisely to further the general weal. The dislike 
 of the French people to the ministry of the godlike Turgot, 
 amply evinces the melancholy truth. They stupidly thwarted 
 the measures of their warmest and wisest friend, and made 
 common cause with his and their enemies : with the rabble 
 of nobles and priests who strove to uphold misrule, and to 
 crush the reforming ministry with a load of calumny and 
 ridicule.* 
 
 374. Q. (1) Is it necessary, in defining law, to take into con- 
 sideration the motives which compel obedience tn law 1 Consider 
 
202 ORIGIN OR CAUSES OF POLITICAL SOCIETY 
 
 The posi- 375. That the permanence of every government is owing 
 
 tion ' that j^ ^jjg people's consent, and that the origin of every govern- 
 
 every 
 
 goyern' ment is owing to the people s consent, are two positions so 
 
 whether, having in view the emphasis that Austin. lays upon the 
 popular appreciation of the utiHty of political society, he is con- 
 sistent in defining law as a command. (Cf. § 13 as to definition of 
 command.) 
 
 (2) Why does Austin, in Sections 367-8, omit to refer to fear as 
 a motive to obedience 1 
 
 Note. — The motives of obedience. — The question of the motives 
 of obedience is one of extreme difiBculty. Motives vary with the 
 age, with the individual, and with the nature of particular laws. 
 A man who will obey most laws from exalted motives may obey 
 others from the basest. Moreover, the motive of which a man is 
 most conscious is by no means necessarily the most potent in deter- 
 mining his conduct. Even if he can judge the motives which 
 determine his own conduct, he may well feel diffident in affirm ing 
 the motives which determine the conduct of other people. The 
 student who wishes to pursue the subject should read the chapter 
 on " Obedience " in Mr. Bryce's " Studies in History and Juris- 
 prudence." 1 The learned author declares Political Obedience to 
 be a form of compliance in general, the grounds or motives of 
 which he sums up under five heads : — 
 
 (1) Indolence, i.e. the disposition of a man to let some one else 
 
 do for him what it would give bim trouble to do for 
 himself. 
 
 (2) Deference, i.e. some emotion drawing one person to another, 
 
 disposing him to obey the will of that other. 
 
 (3) Sympathy, i.e. "not merely the emotion evoked by the sight 
 
 of a corresponding emotion in another, but the various 
 forms of what may be called the associative tendency in 
 mankind." 
 
 (4) Fear, " a motive acting powerfully upon the ruder and more 
 
 brutish natures." 
 
 (5) Keason, " as guiding the more thoughtful and gentle 
 
 natures." 
 
 The author concludes : " In the sum total of obedience, the 
 percentage due to Fear and to Eeason respectively is much less 
 than that due to Indolence, and less also than that due to Defer- 
 ence or to Sympathy." 
 
 In comparing the classifications of Mr. Bryce and Austin, it will 
 be obvious that indolence and deference are connected with habit, 
 
 II, 1-43. 
 
ORIGIN OR CAUSES OF POLITICAL SOCIETY 203 
 
 closely allied, that what I have said of the former will nearly ment 
 apply to the latter. *^'="' ^ 
 
 ^^ •' through 
 
 376. Every government has arisen through the consent of the 
 
 the people, or the bulk of the natural society from which psop'e'^ 
 
 consent. 
 the political was formed. For the bulk of the natural society 
 
 from which a political is formed, submit freely or voluntary 
 
 to the inchoate political government. Or (changing the 
 
 phrase) their submission is a consequence of motives, or they 
 
 will the submission which fchey render. 
 
 377. But a special approbation of the government to which 
 they freely submit, or a preference of that government to 
 every other government, may not be their motive to submis- 
 sion. Although they submit to it freely, the government 
 perhaps is forced upon them : that is to say, they could not 
 withhold their submission from that particular government, 
 unless they struggled through evils which they are loath to 
 endure. Determined by a fear of the evils which woidd 
 follow a refusal to submit (and, probably, by a general per- 
 ception of the utility of political government), they freely 
 submit to a government from which they are specially averse. 
 
 378. The expression 'that every government arises through 
 the people's consent,' is often uttered with the following 
 meaning: That the bulk of a natural society about to 
 become a political, or the inchoate subjects of an inchoate 
 political government, promise, expressly or tacitly, to obey 
 the future sovereign. The expression, however, as uttered 
 with the meaning in question, confounds consent and pro- 
 sympathy with prejudice, and fear and reason with the preference 
 of government to anarchy. A second glance, however, must con- 
 vince us that the two authors are not thinking of quite the same 
 thing. Mr. Bryce answers the question : Why do subjects obey 
 laws 1 Austin answers the question : Why do subjects submit to 
 government 1 The one has in mind the offence of the law-breaker ; 
 the other, the offence of the anarchist. Moreover, Mr. Bryce 
 regards the individual citizen ; Austin the community in general. 
 
204 OEIGIN OE CAUSES OF POLITICAL SOCIETY 
 
 mise, and therefore is grossly incorrect. That the inchoate 
 subjects of every inchoate government will or consent to 
 obey it, is one proposition : that they promise, expressly or 
 tacitly, to render it obedience, is another proposition. That 
 the inchoate subjects of every inchoate government promise 
 to render it obedience, is a position involved by an hypothesis 
 which I shall examine in the next section. 
 The hypo- 379. The duties of the subjects towards the sovereign 
 j.j^^^° government, are partly religious, partly legal, and partly 
 ginal cove- moral. The religious duties of the subjects to\^ards the 
 nant. sovereign government, are creatures of the Divine law as 
 known through the principle of utility. If the general 
 good which probably would follow submission outweigh the 
 general good which probably would follow resistance, the 
 subjects are bound religiously to pay it habitual obedience 
 although it accomplish imperfectly its proper purpose or eni 
 — The legal duties of the subjects towards the sovereign 
 government, are creatures of positive laws which itself has 
 imposed upon them. — The moral duties of the subjects 
 towards the sovereign government, are creatures of positive 
 morality. They mainly are creatures of laws (in the im- 
 proper acceptation of the term) which the general opinion 
 of the community itself sets to its several members. 
 
 380. The duties of the sovereign government towards the 
 subjects are partly religious and partly moral. If it lay 
 under legal duties towards the subjects, it were not a 
 supreme, but were merely a subordinate government. 
 
 381. It follows from the foregoing analysis, that the 
 duties of the subjects towards the sovereign government, 
 with the duties of the sovereign government towards the 
 subjects, originate respectively in three several sources: 
 namely, the Divine law (as indicated by the principle of 
 utility), positive law, and positive morality. And, to my 
 understanding, it seems that we account sufficiently for the 
 
OEIGIN OR CAUSES OF POLITICAL SOCIETY 205 
 
 origin of those obligations, when we simply refer them to 
 those their obvious fountains. It seems to my under- 
 standing, that an ampler solution of their origin is not in 
 the least requisite, and, indeed, is impossible. But there are 
 many writers on political government and society, who are 
 not content to account for their origin, by simply referring 
 them to those their manifest sources. It seems to the 
 writers in question, that we want an ampler solution of the 
 origin of those obligations, or, at least, of the origin of such 
 of them as are imposed by the law of God. And, to find 
 that ampler solution which they believe requisite, those 
 writers resort to the hypothesis of the original covenant or 
 contract, or the fundamental civil pact.' 
 
 381. Q. (1) Consider to what extent, if at all, a science of law- 
 is concerned with thp following topics : — 
 
 (a) The State's purpose ; 
 
 (6) The State's sphere of action ; 
 
 (c) The State's origin. 
 
 Note. — The origin and judiflcation of the State. — Austin has 
 now passed from the question of the motives which induce sub- 
 mission to government, to consider the nature of the duties 
 between sovereign and subjects. These are seen to result from 
 religion, law, or positive morality. In discussing the sections 
 375-80, we must distinguish between two great questions about 
 which men have interested themselves in discussing the origin and 
 cause of civil government :' — 
 
 (1) How the State came to be ; 
 
 (2) The right of the State to be; i.e. the right of the State to 
 
 exercise authority over individual subjects. 
 Of these questions the one is historical, the other is philosophical. 
 How does Austin answer them? He hardly affects to consider the 
 first. He says by impUcation : " I find governments to be estab- 
 lished as a fact, to be considered useful, and to be supported 
 by popular opinion. How these things came to be ? is a question 
 that I, as a jurist, am not called upon to answer. If I must 
 answer the question, I should say that the most important factor 
 in the origin of society is a vague perception of the utUity of 
 society (cf. § 369). Force, though it must be present, prevaila( 
 less by its own might than by virtue of the presence of a con4 
 aciousness of advantages to be gained; and also by the power of' 
 custom, and the attraction of such unreflecting preferences as 
 
206 ORIGIN OR CAUSES OF POLITICAL SOCIETY 
 
 382. By the writers who resort to it, this renowned and 
 not exploded hypothesis is imagined and rendered variously. 
 But the purport or effect of the hypothesis, as it is imagined 
 and rendered by most of those writers, may be stated 
 generally thus : 
 
 383. To the formation of every society political and inde- 
 pendent, or to the institution of every TroXty or civitas, aU 
 its future members then in being are joint or concurring 
 parties : for all are parties to an agreement in which it then 
 originates, and which is also the basis whereon it afterwards 
 rests. As being the necessary source of the independent 
 political society, or as being a condition necessarily preceding 
 its existence, this agreement of all is styled the original 
 covenant : as being the necessary basis whereon the civitas 
 afteirwards rests, it is styled pactum civile fundamentale. — 
 
 loyalty to a chief" (cf. § 367). Two very serious olrjections 
 may be urged against such an account. It gives no adequate ex- 
 pression to the enormous power exercised by Eeligion in the 
 formation of the State ; and it exaggerates the conscious element 
 in early social evolution, almost ignoring the fact that the State is 
 essentially a slow growth, a "gradual realization, in legal institu- 
 tions, of the universal principles of human natme, and the gradual 
 subordination of the individual side of that nature to the universal 
 side."i 
 
 The second of the questions to which reference has been made, 
 the justification of the State's exercise of authority over iudividual 
 subjects, is a question to which Austin's answer may be inferred 
 from his accomit of the end of government. In Austin's opinion, 
 the State is justified by the useful purpose which it serves in 
 promoting human happiness. The answer may be compared with 
 that of T. H. Green, who held that the State is justified by the 
 purpose which it serves in maintaining those conditions of freedom 
 which are essential to the moral life. 
 
 The distinction between the two great questions of the State's 
 origin and justification must be borne in mind. The theory of the 
 original contract, to which Austin now proceeds, has been pro- 
 pounded as an answer to both questions. 
 
 * Burgess : " Political Science and Constitutional Law," I, 59. 
 
ORIGIN OK CAUSES OF POLITICAL SOCIETY 207 
 
 In the process of making this covenant or pact, or the pro- 
 cess of forming the society political and independent, there 
 are three several stages which may be described in the 
 following manner. 1. The future members of the com- 
 munity just about to be created, jointly resolve to unite 
 themselves into an independent political society : signifying 
 and determining withal the paramount purpose of their 
 union, or even more or fewer of its subordinate or instru- 
 mental ends. And here I must briefly remark, that the 
 paramount purpose of their union is the paramount purpose 
 (let it be what it may) for which a society political and 
 independent ought to be founded and perpetuated. By the 
 writers who resort to the hypothesis, this paramount pur- 
 pose or absolute end is conceived differently: their several 
 conceptions of this purpose or end, dififering with the several 
 natures of their respective ethical systems. To writers who 
 admit the system which I style the theory of utility, this 
 purpose or end is the advancement of human happiness. 
 To a multitude of writers who have flourished and flourish 
 in Germany, the following is the truly magnificent though 
 somewhat mysterious object of political government and 
 society : namely, the extension over the earth, or over its 
 human inhabitants, of the empire of right or justice. It 
 would seem that this right or justice, like Ulpian's justice, is 
 absolute, eternal, and immutable. It would seem that this 
 right or justice is not a creature of law : that it was anterior 
 to every law ; exists independently of every law ; and is the 
 measure or test of all law or morality. Consequently, it is 
 not the right or justice which is a creature of the law of 
 God, and to which the name of 'justice' is often applied 
 emphatically. It rather is a something, perfectly self- 
 existent, to which his law conforms, or to which his law 
 should conform. I, therefore, cannot understand it, and 
 will not affect to explain it. Merely guessing at what it 
 
208 ORIGIN OR CAUSES OF POLITICAL SOCIETY 
 
 may be, I take it for general utility darkly conceived and 
 expressed. 2. Having resolved to unite themselves into an 
 independent political society, all the members of the 
 inchoate community jointly determine the constitution of 
 its sovereign political government. In other words, they 
 jointly determine the member or members in whom the 
 sovereignty shall reside : and, in case they will that the 
 sovereignty shall reside in more than one, they jointly 
 determine the mode wherein the sovereign number shall 
 share the sovereign powers. 3. The process of forming the 
 independent political society, or the process of forming its 
 supreme political government, is completed by promises 
 [given and acce pted: namely, by a promise of the inchoate 
 sovereign to the inchoate subjects, by promises of the latter 
 to the former, and by a promise of each of the latter to all 
 and each of the rest. The promise made by the sovereign, 
 and the promises made by the subjects, are made to a 
 common object. The sovereign promises generally to govern 
 to the paramount end of the independent political society: 
 and, if any of its subordinate ends were signified by the 
 resolution to form it, the sovereign moreover promises 
 specifically to govern specifically to those subordinate ends. 
 The subjects promise to render to the' sovereign a qualified 
 or conditional obedience : that is to say, to render to the 
 sovereign all the obedience which shall consist with that 
 paramount purpose and those subordinate purposes. 
 
 384. The resolution of the members to unite themselves 
 into an independent political society, is styled pactim 
 unionis. Their determination of the constitution or struc- 
 ture of the sovereign political government, is styled pactum 
 constitutionis or pactum ordinationis. The promise of the 
 sovereign to the subjects, with the promises of the subjects 
 to the sovereign and to one another, are styled pactum 
 suhjectionis : for, through the promises of the subjects, or 
 
ORIGIN OR CAUSES OF POLITICAL SOCIETY 209 
 
 through the promises of the subjects coupled with the 
 promise of the sovereign, the former are placed completely 
 in a state of subjection to the latter, or the relation of 
 subjection and sovereignty arises between the parties. But 
 of the so-called pact of union, the so-called po/ct constituent, 
 and the so-called pact of subjection, the last only is properly 
 a convention. The so-called pact of union and the so-called 
 pact constituent are properly resolves or determinations 
 introductory to the pact of subjection: the pact of subjec- 
 tion being the original covenant or the fundamental civil 
 pact. 
 
 385. Through this original covenant, or this fundamental 
 pact, the sovereign is bound (at least religiously) to govern 
 as is mentioned above : and the subjects are bound (at least 
 religiously) to render to the sovereign for the time being, 
 the obedience above described. And the binding virtue of 
 this fundamental pact is not confined to the founders of the 
 independent political society, but extends to the following 
 members of the same community. Tor the promises which 
 the founders of the community made for themselves respec- 
 tively, import similar promises which they make for their 
 respective successors. 
 
 386. In every society political and independent, it is held, 
 the duties of the sovereign towards the subjects (or the 
 religious duties of the sovereign towards the subjects) spring 
 from an original covenant like that which I now have 
 delineated: And the duties of the subjects towards the 
 sovereign (or the religious duties of the subjects towards 
 the sovereign) arise from a similar pact. Unless we 8uppose\ 
 that such an agreement is incumbent on the sovereign and ' 
 subjects, we cannot account adequately for those their 
 respective obligations. Unless the subjects were held to 
 render it by an agreement that they shall render it, the 
 subjects would not be obliged, or would not be obliged 
 
210 ORIGIN OR CAUSES OP POLITICAL SOCIETY 
 
 sufficiently, to render to the sovereign the obedience 
 requisite to the accomplishment of the proper purpose or 
 end of the society. Unless the sovereign were held by an 
 agreement to govern as is mentioned above, the sovereign 
 would not be obliged, or would not be obliged sufficiently, 
 from governing despotically or arbitrarily: that is to say, 
 governing with little or no regard to the proper purpose or 
 end of a supreme political government. 
 
 387. Such, I believe, is the general purport of the 
 hypothesis of the original covenant, as it is rendered by 
 most of the writers who resort to it. 
 
 388. But, as I have remarked above, the writers who 
 resort to the hypothesis imagine and render it variously. — 
 According, for example, to some of those writers. The 
 original subjects, covenanting for themselves and their 
 followers, promise obedience to the original and following 
 sovereigns. But the original sovereign is not a promising 
 party to the fundamental civil pact. And by the different 
 writers who render the hypothesis thus, the purport of the 
 subjects' promises is imagined. For example : Some suppose 
 that the obedience promised is qualified or conditional, whilst 
 others suppose that it is passive or unlimited. But though 
 the writers who resort to the hypothesis imagine and render 
 it variously, they concur in this: That the duties of the 
 subjects towards the sovereign (or the religious duties of the 
 subjects towards the sovereign) are creatures of the original 
 covenant. And the writers who fancy that the original 
 sovereign was a promising party to the pact, also concur in 
 this : That the duties of the sovereign towards the subjects 
 (or the religious duties of the sovereign towards the 
 subjects) are engendered by the same agreement. 
 
 389. A complete though concise exposition of the various 
 forms or shapes in which various writers imagine and render 
 the hypothesis, would fill a considerable volume. Besides, 
 
ORIGIN OR CAUSES OP POLITICAL SOCIETY 211 
 
 the ensuing strictures apply exactly, or may be fitted easily, 
 to any original covenant that has been or can be conceived ; 
 although they are directed more particularly to the fancied 
 original covenant which I have delineated above. My state- 
 ment of the purport of the hypothesis, I, therefore, conclude 
 here. And I now will suggest shortly a few of the con- 
 clusive objections to which the hypothesis is open, 
 
 390. (1) To account for the duties of subjects towards Oritioum 
 their sovereign government, or for those of the sovereign °^ "J^" 
 government towards its subjects, is the scope of every writer theory. 
 
 who supposes an original covenant. — But we sufficiently <^) '^° 
 
 • I.T ■ i_ account 
 
 account for the origin of those respective obligations, when for duty 
 
 we refer them simply to their apparent and obvious foun- of ^over- 
 
 taius: namely, the law of God, positive law, and positive g^j^^^g 
 
 morality. — Besides, although the formation of an indepen- the hypo- 
 
 dent political society were really preceded by a fundamental j,g^"g^ 
 
 civil pact, scarce any of the duties lying thereafter on the and in- 
 
 subjects, or on the sovereign, would be engendered or *PP™- 
 
 influenced by that foregoing convention. — The hypothesis, 
 
 therefore, of an original covenant, is needless, and is worse 
 
 than needless. It affects to assign the cause of certain phae- 
 
 nomena: but the cause assigned is superfluous inasmuch as 
 
 there are other causes which are at once obvious and 
 
 adequate, and inefficient inasmuch as it could not have 
 
 produced the phaenomena whereof it is the fancied source. 
 
 391. It will appear from the following analysis, that, * 
 
 although the formation of an independent political society 
 
 were really preceded by an original covenant, scarce any of 
 
 the duties lying thereafter on the subjects, or of the duties 
 
 lying thereafter on the sovereign, would be engendered or 
 
 affected by that foregoing agreement. In other words, the 
 
 covenant would hardly oblige {legally, religiously, or morally) 
 
 the original or following subjects, or the original or following 
 
 sovereigns. 
 
212 OEIGIN OR CAUSES OF POLITICAL SOCIETY 
 (o) Does • 392. Every convention which obliges legally (or every 
 ""au"*^ Icontract properly so called) derives its legal efiBcacy from 
 |a positive law. Speaking exactly, it is not the convention 
 that obliges legally, or that engenders the legal duty: but 
 the law obliges legally, or engenders the legal duty, through 
 the convention. In other words, the positive law annexes 
 the duty to the convention : or it determines that duties of 
 the given class shall follow conventions of the given descrip- 
 tion. — Consequently, if the sovereign government were 
 bound legally by the fundamental civil pact, the legal duty 
 lying on the government were the creature of a positive 
 law : and the positive law annexing the duty to the pact 
 would be set to the sovereign government by another and 
 superior sovereign. Consequently, the sovereign government 
 legally bound by the pact would be in a state of subjection. 
 — ^Through a positive law set by their own sovereign, the 
 subjects might be bound legally to keep the original cove- 
 nant. But the legal or political duty thus incumbent on the 
 (subjects, would properly proceed from the law set by their 
 own sovereign, and not from the covenant itself. If they 
 were bound legally to keep the original covenant, without a 
 positive law set by their own sovereign, they would be 
 bound through a positive law set by another sovereign : that 
 is to say, they would be in a state of subjection to their own 
 sovereign government, and also to a sovereign government 
 conferring rights upon their own. 
 (i) Nor re- 893. Again, if the sovereign or subjects were bound 
 hgiously. ^giig^Qusly by the fundamental civil pact, the religious duty 
 lying on the sovereign, or the religious duty lying on the 
 subjects, would properly proceed from the Divine law, and 
 not from the pact itself. 
 
 394. Now the proper absolute end of an independent 
 political society, and the nature of the index to the law 
 of God, are conceived differently by different men. But 
 
ORIGIN OR CAUSES OF POLITICAL SOCIETY 213 
 
 whatever be the absolute end of an independent political 
 society, and whatever be the nature of the index to the law 
 of God, the sovereign would be bound religiously, without an 
 original covenant, to govern to that absolute «nd : whilst the 
 subjects would be bound religiously, vrithout an original 
 covenant, to render to the sovereign the obedience which 
 the accomplishment of the end might require. Conse- 
 quently, whether it consisted or conflicted with that proper 
 absolute end, the original covenant would not oblige re- 
 ligiously either of the two parties. If the original covenant 
 consisted with that absolute end, the original covenant 
 would be superfluous, and therefore inoperative. If the 
 original covenant conflicted with that absolute end, it would 
 also conflict with the law which is the source of religious 
 obligations, and would not oblige religiously the sovereign 
 government or its subjects. 
 
 395. And though the original sovereign or the original 
 subjects might have been bound religiously by the original 
 covenant, why or how should it bind religiously the following - 
 sovereigns or subjects ? Why should obligations be laid on 
 those following parties, through or in consequence of a pact 
 made without their authority, and even without their know- 
 ledge ? Legal obligations often lie upon parties (as, for ex- 
 ample, upon heirs or administrators), through or in consequence 
 of promises made by other parties whose legal representatives 
 they are. It is expedient, for various reasons, that positive 
 law should impose obligations on the makers of certain 
 promises : and for the same, or nearly the same, reasons, it 
 is expedient that the legal duties which are laid on the 
 makers themselves, should pass to the parties who legally 
 represent them, and who take their faculties or means. 
 But I am unable to perceive, why or how a promise of the 
 original sovereign or subjects should biud religiously the 
 following sovereigns or subjects : Though I see that cases of 
 
morally. 
 
 214 ORIGIN OR CAUSES OF POLITICAL SOCIETY 
 
 legal obligation to which I now have adverted, probably 
 suggested the groundless conceit to those who advised the 
 hypothesis of a fundamental civil pact, 
 (c) Nor 396. If the sovereign were bound morally to keep the 
 
 original covenant, the sovereign would be bound by opinions 
 current amongst the subjects, to govern to the absolute end at 
 which its authors had aimed : And if the subjects were 
 bound morally to keep the original covenant, the subjects 
 would be bound severally by opinions of the comin unity at 
 large , to render to the sovereign the obedience which the 
 accomplishment of the end might require. But the moral 
 obligations thus incumbent would not be imposed by the 
 positive morality of the community, through or in conse- 
 quence of the pact. For the opinions obliging the sovereign 
 to govern to that absolute end, with the opinions obliging 
 the subjects to render that requisite obedience, would not he 
 consequents of the pact, but would have been its antecedents; 
 inasmuch as the pact itself would have been made by the 
 founders of the community, because those very opinions were 
 held by all or most of them. 
 
 397. We may, if we like, imagine that the fancied original 
 covenant was constructed with some particularity and pre- 
 cision: that, having determined the absolute end of their 
 union, it specified some of the ends positive or negative, or 
 some of the means or modes positive or negative, through 
 which the sovereign government should rule to that absolute 
 <!nd. The founders, for example, of the independent political 
 society (like the Eoman people who adopted the Twelve 
 Tables), might have adverted specially to the monstrous and 
 palpable mischiefs of ex post facto legislation: and therefore 
 the fancied covenant might have determined specially, that 
 the sovereign government about to be formed should forbear 
 from legislation of the kind. And if any of those positive 
 or negative ends were specified by the original covenant, the 
 
ORIGIN OR CAUSES OF POLITICAL SOCIETy 215 
 
 promise of the subjects to render obedience to the sovereign, 
 was made with special reservations : it was not extended to 
 anj of the cases wherein the sovereign might deviate from 
 any of the subordinate ends which the covenant determined 
 specially. 
 
 398. Now, if an original covenant had determined clearly 
 and precisely some of the subordinate ends whereto the 
 sovereign should rule, the sovereign would be bound effectu- 
 ally by the positive morality of the community, to rule to 
 the subordinate ends which the covenant had thus specified : 
 supposing (I, of course, understand) that those same sub- 
 ordinate ends were favoured by opinions and sentiments 
 which the mass of the subjects for the time being held and 
 felt. And here (it might be argued) the sovereign would, be 
 bound morally to rule to those same ends, through the 
 fundamental pact, or in consequence of the fundamental 
 pact. For (it might be said) the efficacy of the opinions 
 binding the sovereign government would mainly arise from 
 the clearness and precision with which those same ends were 
 conceived by the mass of the subjects; whilst the clear- 
 ness and precision of their conceptions would mainly arise 
 from the clearness and precision with which those same ends 
 had been specified by the original covenant. It will, how- 
 ever, appear on a moment's reflection, that the opinions of 
 the generality of the subjects, concerning those same ends, 
 would not be engendered by but rather would have engen- 
 dered the covenant. And, granting that the clearness with 
 which they were specified by the covenant would impart an 
 answering clearness to the conceptions of the following 
 subjects, that effect on the opinions held by the following 
 subjects would not be wrought by the covenant as being a 
 covenant or pad : that is to say, as being a promise, or mutual 
 promises, proffered and (uxepted. That effect would be wrought 
 by the covenant as being a luminous statement of those 
 
216 ORIGIN OH CAUSES OF POLITICAL SOCIETY 
 
 same subordinate ends. And any similar statement which 
 might circulate widely (as a similar statement, for example, 
 by a popular and respected writer), would work a similar 
 effect on the opinions of the following subjects. 
 Apoisible 399. The following (I think) is the only, or nearly the 
 •zoeption. ^^^^ ^^^^^ wherein an original covenant, as being a covenanlj 
 or pact, might generate or influence any of the duties lying 
 on the sovereign or subjects. 
 
 400. It might be believed by the bulk of the subjects, 
 that unless their sovereign government had promised so to 
 govern, it would not be bound by the law of God, or would 
 not be bound sufficiently by the law of God, to govern to what 
 they esteemed its proper absolute end. It might be behaved 
 moreover by the bulk of the subjects, that the promise made 
 by the original sovereign was a promise made in effect by 
 each of the following sovereigns, and therefore that their 
 sovereign government was bound religiously to govern to 
 that absolute end, rather because it had so promised than by 
 reason of the intrinsic worth belonging to the end itself.— 
 Now, if the mass of the subjects potently believed these 
 positions, the duties of the government towards its subjects, 
 which the positive morality of the community imposed upon 
 it, would be engendered or affected by the original covenant. 
 They would be imposed upon it, wholly or in part, because 
 the original covenant had preceded or accompanied the 
 institution of the independent political society. For if it 
 departed from any of the ends determined by the original 
 covenant, the mass of its subjects would be moved to anger 
 (and perhaps to eventual rebellion), by its breach of its 
 promise, real or supposed, rather than by that misrule of which 
 they esteemed it guilty. 
 
 401. It appears from the foregoing analysis, that, although 
 the formation of the independent political society had really 
 been preceded by a fundamental civil pact, none of the 
 
ORIGIN OR CAUSES OF POLITICAL SOCIETY 217 
 
 orj-eMgioMsdgties lying on the sovereign or subjects could be - 
 engendered or influenced by that preceding convention : that 
 there is only a single case, or are only a few cases, wherein 
 it could engender or influence any of the moral duties lying 
 on the same parties. It will appear from the following 
 analysis, that, where it might engender or influence any of 
 those moral duties, that preceding convention would be use- 
 less or pernicious. 
 
 402. An original covenant would be simply useless, if it i 
 merely determined the absolute end of the sovereign political 
 government : if it merely determined that the absolute end ' 
 of the government was the greatest possible advancement of : 
 the common happiness or weal. For though the covenant | 
 might give uniformity to the opinions of the mass of the sub- ; 
 jects, that uniformity would hardly influence the conduct of 
 their sovereign political government. ' 
 
 403. But the covenant might §gecify some of the nieans 
 through which the government should rule to that its 
 absolute end. And as so doing, the original covenant would 
 be simply useless, or positively pernicious. 
 
 404. If the covenant of the founders of the community 
 did not affect the opinions of its following members, the 
 covenant would be simply useless. 
 
 405. If the covenant of the founders of the community 
 did affect the opinions of its following members, the cove- 
 nant probably would be positively pernicious . The follow- 
 ing members probably would impute to the subordinate 
 ends specified by the original covenant, a worth extrinsic 
 and arbitrary, or independent of their intrinsic merits. A 
 Belief that the specified ends were of a useful or beneficent 
 tendency would not be their reason, or would not be their 
 only reason, for regarding the ends with respect. They 
 probably would respect the specified ends, or probably 
 would partly respect them, because the venerable founders' 
 
218 ORIGIN OR CAUSES OF POLITICAL SOCIETY 
 
 of the independent political society had determined that 
 those same ends were some of the ends or means through 
 which the weal of the community might be furthered by its 
 sovereign government. Now the venerable age or times 
 wherein the community was founded, would probably be less 
 enlightened than any of the ensuing and degenerate ages 
 through which the community might endure. Consequently, 
 the opinions held in an age comparatively ignorant, concern- 
 ing the subordinate ends to which the government should 
 rule, would unduly influence — through the medium of the 
 covenant — the opinions held, concerning those ends, in ages 
 comparatively knowing. 
 
 406. Let us suppose, for example, that the formation of 
 the British community was preceded by a fundamental pact. 
 Let us suppose that the ignorant founders of the community 
 deemed foreign commerce hurtful to domestic industry, and 
 that the government about to be formed promised for itself 
 and its successors, to protect the industry of its own society, 
 by forbidding and preventing the importation of foreign 
 manufactures. Now if the fundamental pact made by our 
 worthy ancestors were devoutly reverenced by many of our- 
 selves, it woul^ hinder the diffusion of sound oeconomical 
 doctrines through the present community. The present 
 sovereign government would, therefore, be prevented by the 
 pact, from legislating wisely and usefully in regard to our 
 commercial intercourse with other independent nations. If 
 the government attempted to withdraw the restrictions 
 which the laws of preceding governments have laid on our 
 foreign commerce, the fallacies which now are current, and 
 the nonsense which now is in vogue, would not be the only 
 fallacies, and would not be the only nonsense, wherewith 
 the haters of improvement would belabour the audacious 
 innovators. All who delighted in 'things ancient,' would 
 certainly accuse it of infringing a principle which was part 
 
ORIGIN OR CAUSES OF POLITICAL SOCIETY 219 
 
 of the very basis whereon the community rested : which the 
 vnae and venerable authors of the fundamental pact itself 
 had formerly adopted and consecrated. Nay, the lovers of 
 darkness would affirm, and probably would believe, that the 
 government was incompetent to withdraw the restrictions 
 which the laws of preceding governments have laid on our 
 foreign commerce : that being, as it were, a privy of the first 
 or original government, it was estopped by the solemn 
 promise which that government had given. 
 
 407. Promises or oaths on the part of the original The re»l 
 
 sovereign, or promises or oaths on the part of succeeding !°°"^ \_ 
 
 sovereigns, are not the efficient securities, moral or religious, cent 
 
 for beneficent government or rule. — The best of moral S°^""' 
 
 . , , , , . . ment. 
 
 securities, or the best of the securities yielded by positive 
 morality, would arise from a wide diffusion, through the\ 
 mass of the subjects, of the soundest political science which/ 
 the lights of the age could affi)rd. The best of religious 
 securities, or the best of the securities yielded by religious 
 convictions, would arise from worthy opinions, held by rulers 
 and subjects, concerning the wishes and purposes of the 
 Good and Wise Monarch, and concerning the nature of 
 the duties which he lays upon earthly sovereigns. 
 
 408. (2) It appears from the foregoing strictures on the (2) The 
 hypothesis of the original covenant, that the hypothesis is ''n»|"««>» 
 needless, and is worse than needless: that we are able to 
 account sufficiently, without resorting to the hypothesis, for 
 
 the duties of subjects towards their sovereign government, 
 with the duties of the sovereign government towards its 
 subjects ; and that, though the formation of the independent 
 political society had really been preceded by a fundamental 
 civil pact, scarce any of those obligations would be engen- 
 dered or influenced by that preceding agreement. It will 
 appear from the follovWng strictures, that the hypothesis of 
 the fundamental pact is auction approaching to an impossi- 
 
of a con 
 
 veution, 
 
 220 ORIGIN OR CAUSES OF POLITICAL SOCIETY 
 
 bility : that the formation of a society political and indepen- 
 dent, was never preceded or accompanied, and could hardly 
 be preceded or accompanied, by an original covenant properly 
 so called, or by aught resembling the idea of a proper 
 original covenant. 
 Essentials 409. The main essentials of a convention are these: 
 First, a signification by the promising party, of his intention 
 to do the acts, or to observe the forbearances, which he 
 promises to do or observe : secondly, a signification by the 
 promisee, that he expects the promising party will fulfil the 
 proffered promise. That this signification of intention and 
 this signification of expectation are of the very essence of 
 a proper convention or agreement, will appear on a moment's 
 reflection. 
 
 410. The conventions enforced by a positive law or moraUty 
 are enforced legally or morally for various reasons. But of 
 the various reasons for enforcing any convention, the follow- 
 ing is always one. — Sanctions apart, a convention tends to 
 raise in the mind of the promisee an expectation that its 
 object will be accomplished : and to the expectation so raised, 
 he naturally shapes his conduct. E"ow, as much of the 
 business of human life turns or moves upon conventions, 
 frequent disappointments of those expectations which con- 
 ventions naturally excite, would render human society a 
 scene of baffled hopes, and of thwarted projects and labours. 
 To prevent disappointments of such expectations, is a main 
 object of the legal and moral rules whose direct and appropri- 
 ate purpose is the enforcement of pacts or agreements. But 
 the promisee would not entertain the expectation, unless 
 the corresponding intention were signified by the promising 
 party: and, unless the existence of the expectation were 
 signified by the promisee, the promising party would not be 
 apprised of its existence, although the proffered promise had 
 actually raised it. Without the signification of the intention, 
 
ORIGIN OR CAUSES OF POLITICAL SOCIETY 221 
 
 there were no promise properly so called ; without the signi- 
 fication of the expectation, there were no sufficient reason 
 for enforcing the genuine promise which really may have 
 been proffered. 
 
 411. It follows from the foregoing statement of the main Eisentials 
 essentials of a convention that an original covenant properly °^ *.''°°" 
 80 called, or aught resembling the idea of a proper original not 
 covenant, could hardly precede the formation of an indepen- present in 
 dent political society. °"|gty° 
 
 412. According to the hypothesis of the original covenant, 
 in 80 far as it regards the promise of the original sovereign, 
 the sovereign promises to govern to the absolute end of the 
 union (and, perhaps, to more or fewer of its subordinate or 
 instrumental ends). And the promise is proffered to, and is 
 accepted Vy, all the original subjects. According to the 
 hypothesis of the original covenant, in so far as it regards 
 the promise of the original subjects, they promise to render 
 to the sovereign a passive and unlimited obedience, or they 
 promise to render to the sovereign such a qualified obedience 
 as shall consist with a given end or with given ends. And 
 the promise of the subjects passes from all the subjects : 
 from all and each of the subjects to the monarch or sover- 
 eign body, or from each of the subjects to all and each of 
 the rest. 
 
 413. Now it appears from the foregoing statement of the 
 main essentials of a convention, that the promise of the 
 sovereign to the subjects would not be a covenant properly, 
 unless the subjects accepted it. But the subjects could hardly 
 accept it, unless they apprehended its object. Unless they 
 apprehended its object, it hardly could raise in their minds 
 any determinate expectation: and unless it raised in their 
 minds a determinate expectation, they hardly could signify 
 virtually any determinate expectation, or could hardly 
 accept virtually the proffered promise. The signs of accept- 
 
222 ORIGIN OE CAUSES OF POLITICAL SOCIETY 
 
 ance which might actually fall from them would be in reality 
 unmeaniag noise or show. — Now we know that the great 
 imajority, in any actual community, have no determinate 
 Inotions concerning the absolute end to which their sovere%n 
 (government ought to rule : or concerning the ends or means 
 through which it should aim at the accomplishment of that 
 its paramount purpose. It surely, therefore, were absurd to 
 suppose, that all or many of the members of any inchoate 
 community would have determinate notions (or notions 
 approaching to determinateness) concerning the scope of their , 
 union, or concerning the means to its attainment. Conse- 
 quently, most or many of the original subjects would not 
 apprehend the object of the original sovereign's promise: 
 and, not apprehending its object, they would not accept it in 
 effect, although they might accept it in show. 
 
 414. The remarks which I now have made on the promise 
 of the original sovereign, will apply, with a few adaptations, 
 to the promise of the original subjects. If really they 
 proffered to the sovereign (or if really they proffered to one 
 another) that promise to render obedience which the hypo- 
 thesis supposes or feigns, they would signify expressly or 
 tacitly an intention of fulfilling it. But such a signification 
 of intention could not be made by all of them, or even by 
 most or many of them : for by most or many of them, the 
 object of the fancied promise would not be apprehended 
 determinately, or with a distant approach to determinateness. 
 
 415. If you would suppose an original covenant which 
 as a mere hypothesis will hold water, you must suppose that 
 the society about to be formed is composed entirely of adult 
 members : that all these adult members are persons of sane 
 mind, and even of much sagacity and much judgment : and 
 that being very sagacious and very judicious, they also are 
 perfectly familiar, or at least are passably acquainted, with 
 political and ethical science. On these bare possibilities. 
 
ORIGIN OR CAUSES OF POLITICAL SOCIETY 223 
 
 you may build an original covenant which shall be a coherent 
 fiction. 
 
 416. It hardly is necessary to add, that the hypothesis of The hyp6. 
 the original covenant, in any of its forms or shapes, has no ^^ found*. 
 foundation in actual facts. There is no historical evidence, tion in 
 that the hypothesis has ever been realized : that the forma- • 
 tion of any society political and independent has actually 
 
 been preceded by a proper original covenant, or by aught 
 appoaching to the idea. 
 
 417. In a few societies political and independent (as, for 
 example, in the Anglo-American States), the sovereign 
 political government has been determined at once, and 
 agreeably to scheme or plan. But, even in these societies, 
 the parties who determined the constitution (either as 
 scheming or planning, or as simply voting or adopting it) were 
 merely a_^;gnd£i_RQrtion of the whole of the independent 
 community, and were virtually sovereign therein before the 
 constitution was determined ; insomuch that the constitution 
 was not constructed by the whole of an inchoate community, 
 but rather was constructed by a fraction of a community 
 already consummate or complete. 
 
 418. In most societies political and independent, the con- 
 stitution of the supreme government has grown. By which 
 fustian but current phrase, I intend not to intimate that it 
 hath come of itself, or is a marvellous something fashioned 
 without hands : but that it has not been determined at once, 
 or agreeably to a scheme or plan ; that positive moral rules 
 of successive generations of the community (and, perhaps, 
 positive laws made by its successive sovereigns) have deter- 
 mined the constitution, with more or less of exactness, 
 slowly and unsystematically. Consequently, the supreme 
 government was not constituted by the original members of 
 the society : Its constitution has been the work of a long 
 series of authors, comprising the original members and 
 
224 ORIGIN OE CAUSES OF POLITICAL SOCIETY 
 
 many generations of their followers. And the same may be 
 said of most of the ethical maxims which the subjects con- 
 strain the sovereign to observe. These are not coeval with 
 the independent political society, but rather have arisen 
 insensibly since the society was formed. 
 
 419. In some societies political and independent, oaths or 
 promises are made by rulers on their accession to office. But 
 such an oath or promise, and an original covenant to which 
 the original sovereign is a promising party, have little or no 
 resemblance. That the formation of the society political 
 and independent preceded the conception of the oath itself, is 
 commonly implied by the terms of the latter. The swearing 
 party, moreover, is commonly a limited monarch, or occupies 
 some position like that of a limited monarch : that is to say, 
 is merely a limb or member of a sovereign body. 
 
 420. It is said, however, by the advocates of the hypothesis 
 (for the purpose of obviating the difficulty which these 
 negative cases present), that a tacit original covenant pre- 
 
 i ceded the formation of the society, although its formation 
 was not preceded by an express c6venant of the kind. 
 
 421. Now (as I have shown above) an actual signification of 
 intention on the part of the promisor, with an actual acceptance 
 of the promise on the part of the promisee, are of the very 
 essence of a genuine convention or pact, be it express, or be 
 it tacit. The only difference between an express, and a tacit 
 or implied convention, lies in this : That, where the conven- 
 tion is express, the intention and acceptance are signified by 
 language, or by signs which custom or usage has rendered 
 equivalent to language: but that, where the convention is 
 tacit or implied, the intention and acceptance are not signi- 
 fied by words, or by signs which custom or usage has madf 
 tantamount to words.* 
 
 421. Quasi-Contract. — In a note to this paragraph, Austin traces 
 the fallacy at present under discussion to a confusion of Implied 
 
ORIGIN OR CAUSES OF POLITICAL SOCIETY 225 
 
 422. Most or many, therefore, of the members of the 
 inchoate society, could not have been parties, as promisors or 
 promisees, to a tacit original covenant. They could not have 
 signified virtually the requisite intention or acceptance : for 
 they could not have conceived the object (as I have shown 
 above) with which, according to the hypothesis, an original 
 covenant is concerned. 
 
 423. Besides, in many of the negative cases to which I 
 now am adverting, the position and deportment of the 
 original sovereign government, and of the bulk of the 
 original subjects, exclude the supposition of a tacit original 
 covenant. For example: Where the original government 
 begins in a violent conquest, it scarcely promises tacitly, by its 
 violences towards the vanquished, that it will make their 
 weal the paramount end of its rule. And a tacit promise to 
 render obedience to the intrusive and hated government, 
 scarcely passes from the reluctant subjects. They presently 
 
 Contract with the Quasi-Contract of Roman Law. The former 
 was a true agreement, although implied from conduct rather than 
 expressed in words. The latter was no agreement at all. It was 
 a name adopted by the Bomans to cover a miscellaneous set of 
 obligations which did not spring from agreement, express or implied. 
 For example, if a Roman citizen voluntarily undertook to manage 
 the business of an absentee without having been asked to do so, 
 certain legal obligations sprang up between him and the absentee. 
 These obligations were comparable in many respects to obligations 
 arising from contract. They were said to arise, not ex contractu, 
 but quasi ex contractu. As several authors have remarked, it is 
 in this form that the theory of contract can be most easUy adapted 
 to the purposes of poUtical discussion. The ruler, it may be urged, 
 may not have promised to rule justly, the subjects may not have 
 promised to obey, but the circumstances are such that no moral 
 injustice is done in assuming such promises.* It must be obvious, 
 however, that, the moment consent becomes fictitious, such philo- 
 sophic merits as the Social Contract theory may have, cease to 
 exist. 
 
 ' Cf. Maine, " Ancient Law," pp. 344-7. 
 
■ 226 ORIGIN OR CAUSES OF POLITICAL SOCIEXr 
 
 vnll to obey it, or presently consent to obey it, because they 
 are determined to obey it, by their fear of its military sword. 
 But the will or consent to obey it presently, to which they 
 are thus determined, is scarcely a tacit promise to render it 
 future obedience. They would kick with all their might 
 against the intrusive government, if the military sword 
 which it brandishes were not so long and fearful. 
 
 424. By the recent and present advocates of the hypothesis 
 of the original covenant (who chiefly are German writers 
 on political government and society), it commonly is ad- 
 mitted that original covenants are not historical facts : that an 
 actual original covenant never preceded the formation of any 
 actual society political and independent. But they zealously 
 maintain, notwithstanding this sweeping admission, that the 
 only sufficient basis of an independent political society is a 
 fundamental civil pact. Their doctrine, therefore, touching 
 the original covenant amounts to this: namely, that the 
 original fcovenant hath not preceded the formation of any 
 society political and independent : but that though it hath 
 not preceded the formation of any, it yet precedeth inevit- 
 ably the formation of every. — Such is a taste or sample of 
 the high ideal philosophy which the Germans oppose ex- 
 ultingly to the philosophy of Bacon and Locke. 
 (3) No 425. (3) I close my strictures on the hypothesis of the 
 
 necessary original covenant, with the following remark: It would 
 connection ■, i ■, ^ ■ , . i -l 
 
 between Seem that the hypothesis was suggested to its authors, by 
 
 con- one or another of these suppositions. 1. Where there is no, 
 
 and duty convention, there is no duty. In other words, whoever is 
 
 obliged, is obliged through a promise given and accepted. 
 
 2. Every convention is necessarily followed by a duty. In 
 
 other words, wherever a promise is given and accepted, the 
 
 promising party is obliged through the promise, let its object 
 
 and tendency be what they may. — It is assumed, expressly 
 
 or tacitly, by Hobbes, Kant, and others, that he who is 
 
ORIGIN OR CAUSES OF POLITICAL SOCIETY 227 
 
 tound has necessarily given a promise, and that he who has 
 given a promise is necessarily hound. 
 
 426. But both suppositions are grossly and obviously false. 
 — Of religious, legal, and moral duties, some are imposed by 
 the laws which are their respective sources, through or in 
 consequence of conventions. But others are annexed to 
 facts which have no resemblance to a convention, or to 
 aught that can be deemed a promise. Consequently, a 
 sovereign government might lie under duties to its subjects, 
 and its subjects might lie under duties towards itself, though 
 neither it nor its subjects were bound through a pact. — And 
 as duties are annexed to facts which are not pacts or conven- 
 tions, so are there pacts or conventions which are not 
 followed by duties. Conventions are not enforced by divine 
 or human law, without reference to their objects and tenden- 
 cies. There are many conventions which positive morality 
 reprobates: There are many which positive law will not 
 sustain, and many which positive law actually annuls : There 
 are many which conflict with the law of God, inasmuch as 
 their tendencies are generally pernicious, Consequently, 
 although the sovereign and subjects were parties to an 
 original covenant, neither the sovereign nor subjects would 
 of necessity be bound by it.* 
 
 426. The 'theory of the Social Contract. — Huxley expresses a 
 familiar fact when he says that doctrines do not necessarily die 
 from being killed. The Social Contract theory, triumphantly 
 slain by many generations of writers, will not die. It reappears, 
 sometimes openly and shamelessly, sometimes in disguises more or 
 less apparent. Herbert Spencer, whUe declaring that the hypo- 
 thesis of a social contract as assumed by Hobbes or Kousseau was 
 baseless, elaborated a theory of his own which was essentially one 
 of contract. Society, he urged, is in principle the same as an 
 incorporated body, and " the general principle underlying the right 
 government of every incorporated body is that its members contract 
 with each other severally to submit to the will of the majority in 
 all matters concerning the fulfilment of the objects for which they 
 
228 ORIGIN OR CAUSES OF POLITICAL SOCIETY 
 
 Govern- 427. From the origin or causes of political government 
 meutsde ^^^ society, I pass to the distinction of sovereign govern- 
 ments into governments de jure and governments de facto. 
 
 are incorporated, but in no others." ^ Although in the case of 
 poHtical society there is no express deed of incorporation, such a 
 deed is implicit. Its terms can he infeired by considering what 
 would be the agreement into which citizens would now enter with 
 practical unanimity.^ 
 
 Whenever a social theory will thus insist upon reappearing from 
 time to time, despite its complete logical refutation, it will be found 
 to contain some important truths which deserve statement. Such 
 truths underlie the despised doctrine of the Social Contract. The 
 fact must be my chief excuse for supplementing Austin's admirable 
 remarks by a brief reference to the following topics: — (1) The 
 essential inadequacy of the doctrine ; (2) The historic forms in 
 which the doctrine has been expressed ; (3) The underlying 
 truths. 
 
 (1) The essential inadequacy of the doctrine. — The doctrine 
 purports to be an explanation both of the origin of the State and 
 of the source of the State's authority. As an explanation of the 
 origin of political society, the doctrine reaUy belongs to the age in 
 which thinkers attempted to explain social origins by a pnori 
 speculation rather than by investigation of an actual past. Having 
 determined how man, who is largely what he is by virtue of 
 pohtical institutions, would act if he were to be suddenly deprived 
 of them, the inference was drawn that man must have so acted at 
 the beginnings of social life. The fallacy is too apparent to call for 
 refutation. As a matter of fact, the very idea of a contract as 
 binding belongs to a comparatively advanced stage. Sfa tltS*, Bfl^' 
 contract, is„the.b.a.sis.of .piimitiv-asQciety. How unreal and fanciful 
 is the world to which the Social Contract theory belongs is happily 
 satirized by Huxley. " To Hsten to Locke, one would imagine that 
 a general meeting of men living in the state of nature, having been 
 called to consider the ' defects ' of their condition, and somebody 
 being voted to the tree (in the presumable absence of chairs), thi 
 earliest example of a constituent assembly resolved to fonn a 
 governmental company, with strictly limited habihty, for the 
 purpose of defending liberty and property ; and that they elected 
 a director, or body of directors, to be known as the sovereign, for 
 the purpose of carrying on that business, and no other whatso- 
 ever." ^ N 
 
 The Social Contract theory as an explanation of the ground of 
 
 ' " Man versiis the State," p. 83. ^ Ibid., p. 85. 
 
 • "Method and Results," p. 407. 
 
ORIGIN OR CAUSES OF POLITICAL SOCIETY 229 
 For the two topics are so connected, that the few brief govem- 
 
 j monts de 
 aptly at the end of my disquisition on the former. 
 
 remarks which I shall make on the latter, may be placed' 
 
 the State's authority, though less absurd, is equally untenable. It ■ 
 rests on the postulate that man is endowed with an abstract right \ 
 to a freedom with which no interference can be justified save by 
 assent on the part of the individual himself. Man, in other 
 words, is looked upon as having rights independently of his 
 relations to society, although it is only as a member of society that 
 he has rights at all. However clever may be our logic, vfb cannot 
 reach a working conception of the State on such lines. The 
 State is an organic unity ; the parts of which it is composed are 
 largely what they are by virtue of their relation to the whole of 
 which they are a part. To arbitrarily separate them from that 
 whole is to deform them.^ 
 
 (2) The historic forms of the doctrine. — The most famous forms 
 of the doctrine are respectively associated with the names of 
 Hobbes, Locke, and Eousseau. According to Hobbes, the inchoate 
 subjects agree among themselves to surrender all rights to the 
 sovereign. The sovereign is not a party to the contract, and, 
 accordingly, no breach of covenant on the part of the sovereign is 
 possible. " None of his subjects, by any pretence of forfeiture on 
 his part, can be freed from subjection."^ According to Locke> 
 though paternal control may pass by insensible degrees into sover- 
 eign authority, the foundation of that authority rests, not in 
 paternity, but in the consent of the governed.^ Hence it can be 
 no greater than that possessed by individuals ia a state of nature, 
 since nobody can transfer to another more power than he has 
 in himself, and nobody in the state of nature can have more 
 power over the life, liberty, and possession of another than is given 
 him by the law of nature for the preservation of himself and the rest 
 of mankind.* Hence the power of the sovereign is limited ; and 
 resistance to him is justified if he exceed those limits. The judge 
 of such ofience shah, be the people, "for who shall be judge 
 whether his trustee or deputy acts well and according to the trust 
 reposed in him, but he who deputes him and must, by having 
 deputed him, have stiU a power to discard him when he fails in 
 his trust 1"^ According to Eousseau, society begins in a contract the 
 clauses of which, though perhaps never formally enumerated, are 
 everywhere the same, everywhere tacitly admitted and recognized. 
 
 • Of. infra Excursus A, " The State." 
 ' " Leviathan," cap. xxviii. 
 
 ' "Second Discourse on Government," pars. 76, 105, 110. 
 
 * Ibid., par. 135. ' Ibid., pp. 232, 240. 
 
230 ORIGIN OR CAUSES OT* POLITICAL SOCIETY 
 
 428. In respect of the distinction now in question 
 governments are commonly divided into three kinds 
 First, governments which are de jure and also de facto, 
 secondly, governments which are de jure but not de facto; 
 
 " These clauses may be reduced to one, that is, the total aUenation 
 of each associate with aU his rights to the eiitire community. . . . 
 Each gives in common his person and all his force under the 
 supreme direction of the general will, and is received as an 
 indivisible part of the whole. . . . Each is sovereign as weU as 
 subject." 1 According to this view, a government which does not 
 embrace the whole people cannot he a true sovereign, and its over- 
 throw is only a change in the delegation of sovereign functions. 
 
 The foregoing theories call for no discussion in detail. It may 
 be noted, however, that the theory of Hobbes finds expression for 
 government but not for the State, while that of Kousseau finds an 
 expression for the State but none that is adequate for the 
 government. The path taken by Hobbes leads on to governmental 
 despotism; that taken by Eousseau, to the despotism of majorities. 
 While Locke may be said to have apprehended the existence both 
 of the State and the government, his doctrine easily lends itself 
 to an individuahsm of which the final outcome must be anarchy.* 
 
 (3) The underlying truths in the Social Contract theory. — 
 In the first place, regarded as an explanation of social origins, the 
 theory of the original contract expresses the highly important fact 
 that society is something more than a spontaneous growth. It 
 is a-gIQlwth_ddrectedLbyJthe fo^^ That the theory 
 
 in question involves a grave exaggeration of the conscious element 
 must be admitted; the fact need not blind us to its merit in 
 insisting upon the presence of that element. In the second place, 
 regs^rded as a philosophical account of the State's authority over 
 the individual, the Social Contract theory affords an inadequate ex- 
 pression for the truth that the conception of rights is only attain- 
 able among men of whom each recognizes in others the claims 
 that he makes for himself. "It is only through a recognition by 
 certain men of a common interest, and through the expression of 
 that recognition in certain regulations of their dealings with each 
 other, that morality could originate, or any meaning be gained for 
 such terms as 'ought' and 'right' and their equivalents."* 
 
 In the preceding paragraph, reference has been made to an 
 element of truth in the Social Contract theory, regarded as a 
 
 1 " The Social Contract," bk. I, chap. vi. 
 
 > Of. Huxley, " Methods and Results," p. 419. 
 
 » T. H. Green, "Principles of Political Obligation," § 116. 
 
ORIGIN OR CAUSES OF POLITICAL SOCIETY 231 
 
 thirdly, governments which are de facto but not de jv/re. A 
 government rfe jwre and also de, facto, is a government 
 deemed lawful, rightful or just, which receives presently 
 habitual obedience from the bulk or generality of the 
 members of the independent political community. A 
 government de jure but not de fado (or more briefly a 
 government de jwe) is a government deemed lawful, right- 
 ful or just, which, nevertheless, has been supplanted or dis- , 
 placed. A government de facto but not de jv/re (or more 
 briefly a government de facto) is a government deemed un- 
 lawful, wrongful or unjust, which, nevertheless, receives 
 presently habitual obedience from the bulk of the com- 
 munity. A government supplanted or displaced, and not 
 deemed lawful, is neither a government de facto nor a 
 government de jure. 
 
 429. In respect of positive law, a sovereign political I 
 government which is established is neither lawful nor un-| 
 
 philosophical expression, of the ground of the authority of the 
 State. In history, the theory has more often appeared as an 
 expression of the ground of the authority of the Ruler. Ee- 
 gaided from this point of view, the theory is capable of being 
 formulated so as to express the important truth that the Euler 
 sacrifices his claim to the obedience of the subjects when he fails 
 to consult the interests of those subjects. The duties of obedience 
 and protection are reciprocal. 
 
 The admission that a theory contains some elements of truth 
 involves no justification of that theory. History abundantly 
 illustrates the fact that opinions and beliefs, which have acquired 
 a dominating influence by virtue of the truths which they con- 
 tained, may, through their imperfections, bring destruction to the 
 very cause in the interests of which they have been formulated. 
 Man's poverty of language not only compels him to wait long for 
 some expression for the truth he vaguely feels, but also menaces 
 him at every step when once that expression has been found, for 
 the reason that it is certain to be inadequate. His only safety 
 lies in the constant re-examination of his intellectual equip- 
 ment. Neither a sane socialist nor a sane individualist of our 
 own day would buUd his social theory upon the basis of a social 
 contract. 
 
232 ORIGIN OE CAUSES OF POLITICAL SOCIETY 
 
 ^ lawful : neither rightful nor wrongful : neither just nor 
 unjust: neither legal nor illegal. 
 
 430. In every society political and independent, the 
 actual positive law is a creature of the actual sovereign. 
 Although it was positive law under foregoing sovereigns, 
 it is positive law presently through the power and author- 
 ity of the present supreme government. For though the 
 present government may have supplanted another, and 
 though the supplanted government be deemed the lawful 
 government, the supplanted government is stripped of the 
 might which is requisite to the enforcement of the law con- 
 sidered as positive law. Consequently, if the law were>not 
 enforced by the present supreme government, it would want 
 the appropriate sanctions which are essential to positve law. 
 To borrow the language of Hobbes, ' The legislator is he (not 
 by whose authority the law was first made, but) by whose 
 authority it continues to be law.' 
 
 431. Consequently an established sovereign government, 
 in respect of the positive law of its own independent com- 
 munity, is neither lawful nor unlawful. If it were lawful or 
 unlawful, by law of its own making, it were lawful or un- 
 lawful by its own appointment. Which is absurd. — And if 
 it were lawful or unlawful, in respect of the positive law 
 of another independent community,, it were not an actual 
 supreme, but an actual subordinate government. Which 
 also is absurd. 
 
 432. In respect of the positive law of that independent 
 community wherein it once was sovereign, a so-called 
 government de jure but not de facto, is not, and cannot be, 
 a lawful government : for the positive law of that inde- 
 pendent community is now positive law by the authority of 
 the government de facto. Being positive law by the authority 
 of the government de facto, this positive law proscribes the 
 supplanted government, and determines that attempts to 
 
ORIGIN OR CAUSES OF POLITICAL SOCIETY 233 
 
 restore it are legal wrongs. The supplanted government, 
 though deemed de jure, is unlawful, — In respect of the 
 positive law of another independent community, a so-called 
 government de jure but not de fmdo, is neither lawful nor 
 unlawful. For if, in respect of this law, it were lawful or 
 unlawful, it were lawful or unlawful by the appointment of 
 the law-maker; that is to say, it were not an ousted supreme, 
 but an ousted subordinate government. 
 
 433. In respect, then, of positive law, the distinction of 
 sovereign governments into lawful and unlawful is a distinc- 1 
 tion without a meaning. For, as tried by this test, a so- 
 called government de jure but not de facto cannot be lawful : 
 And, as tried by the same test, a government de facto is 
 neither lawful nor unlawful. 
 
 434. In respect, however, of positive morality, the distinc- 
 tion of sovereign governments into lawful and unlawful, is 
 not without a meaning. If the opinions of the bulk of the 
 community favour the government de facto, the government de 
 facto is morally lawful in respect of the positive morality of 
 that particular society. If the opinions of the bulk of the 
 community be adverse to the government ds facto, it is 
 morally unlawful in respect of the same standard. The 
 bulk, however, of the community, may regard it with in- 
 difiference : or a large portion of the community may regard 
 it v?ith favour, whilst another considerable portion regards it 
 with aversion. And, in either of these cases, it is neither 
 morally lawful, nor morally unlawful, in respect of the 
 positive morality of that independent community wherein it 
 is established. — And what I have said of a government dt 
 fa^to, may also be said of a government not de facto. 
 
 435. And a government de facto, or a government not de 
 facto, may be morally lawful, or morally unlawful, in respect 
 of the positive morality which obtains between nations 
 or states. Though positive international morality looks 
 mainly at the possession, every government in possession 
 
234 ORIGIN OR CAUSES OF POLITICAL SOCIETY 
 
 or every government de facto, is not acknowledged of course 
 by other established governments. In respect, therefore, of 
 positive international morality, a government de facto may 
 be unlawful, whilst a government not de facto may be a 
 government de jure. 
 
 436. A government, moreover, de fa/ito, or a government 
 not de facto, may be lawful or unlawful in respect of the law 
 of God. Tried by the Divine law, as known through the 
 principle of utility, a sovereign government de facto is 
 lawfully a sovereign government, if the general happiness or 
 weal requires its continuance : it is not lawfully sovereign, 
 if the general happiness or weal requires its abolition. Tried 
 by the Divine law, as known through the principle of utility, 
 a government not de facto is yet a government de jure, if 
 the general happiness or weal requires its restoration,: a 
 government not de facto is also not de jure, if the general 
 happiness or weal requires its exclusion." 
 
 436. Oovemments de jure and de facto. — A sovereignty which 
 exists in fact can only be said to be not de jure, if by jus we are 
 thinking of somethiag other than the law of the State, e.g., of 
 Positive Morality or luternational Law. But since, for the pur- 
 poses of jurisprudence, jus = the law of the State, the distinction b 
 not tenable. In the highly developed modern state, however, the 
 sovereign may not be identical with the government. In a Consti- 
 tution where this differentiation is recognized, the distinction 
 between the government dejure and the government de facto may 
 have a meaning. If, for example, the government of a 'State', 
 member of a Federal State, assumes the practical exercise of goyern- 
 mental functions which the constitution allots to the Federal 
 government, such assumption might be described as government 
 de facto, but not de jure. 
 
 Mr. Bryce, in a recent work, identifies sovereignty de jure with 
 the legal sovereignty, and sovereignty de fcKto with political 
 sovereignty, or, to quote his own expression, " Practical Mastery."' 
 The terminology appears to me to be open to objection. Legal 
 sovereignty is as much a matter of fact as political sovereignty. 
 Legal sovereignty is both de jure and de facto ; poUtical sovereignty 
 is de facto only. Or, to take a concrete example, the British 
 Parliament is as much a matter of fact as the British electorate. 
 
 ' " Studies in History and Jurisprudence," II, 69, 70. 
 
ORIGIN OR CAUSES OF POLITICAL SOCIETY 235 
 
 437. A positive law may be distinguished in the following General 
 manner. Every positive law (or every law simply and ^ °'*^°." 
 strictly so called) is set, directly or circuitously, by a tive law. 
 sovereign individual or body, to a member or members 
 
 of the independent political society wherein its author is 
 supreme. 
 
 438. This definition of a positive law is assumed expressly The defi- 
 or tacitly throughout the foregoing lectures. But it only °^*""' 
 approaches to a perfectly complete and perfectly exact approxi- 
 definition. It is open to certain correctives which I now mate- 
 will briefly suggest. 
 
 439. Every law properly so called is set by a superior to 
 an inferior or inferiors: It is set by a party armed with 
 might, to a party or parties whom that might can reach. If 
 the party to whom it is set could not be touched by the 
 might of its author, its author would signify to the party a 
 wish or desire, but would not impose a proper and imperative 
 law. Now (speaking generally) a party who is obnoxious to 
 a legal sanction, is a subject of the author of the law to 
 which the sanction is annexed. But as none but members 
 of the community wherein the law obtains are obnoxious to 
 the legal sanction which enforces a positive law, the positive 
 law is imposed exclusively on a member or members of that 
 independent community. Although the positive law may 
 affect to oblige strangers (or parties who are not members of 
 thiit independent community), none but members of that 
 independent community are virtually or truly bound by it. 
 
 440. Speaking, then, generally, we may say that a positive 
 law is set or directed exclusively to a member or members 
 of the community wherein its author is sovereign. But, in 
 many cases, the positive law of a given independent com- 
 munity imposes a duty on a stranger : on a party who is not 
 a member of the given independent community, or is only a 
 member to certain limited purposes. For such, in these 
 
236 ORIGIN OR CAUSES OF POLITICAL SOCIETY 
 
 cases, is the position of the stranger, that the imposition of 
 the legal duty consists with the sovereignty of the govern- 
 ment of which he is properly a subject. Although the legal 
 duty is laid on one of its subjects, it is not laid on the 
 foreign government itself : nor does the author of the law,- 
 by imposing the legal duty, exercise sovereign power in the 
 community of the foreign government, or over one of its 
 subjects as being one of its subjects. — For example: A party 
 not a member of a given independent community, but Uving 
 within its territory and within the jurisdiction of its sover- 
 eign, is bound or obliged, to a certain limited extent, by its 
 positive law. Living within the territory, he is obnoxious to 
 the legal sanctions by which the law is enforced. And the 
 legal duties imposed upon him by the law are consistent 
 with the sovereignty of the foreign government of which he 
 is properly a subject. For the duties are not imposed upon 
 the foreign government itself, or upon a party within its 
 independent community : nor are they laid upon the obhged 
 party as being one of its subjects, but as being a member, to 
 certain limited purposes, of the community wherein he 
 resides. Again : If a stranger not residing within the given 
 community be the owner of land or ipoveables lying within 
 its territory, a convention of the stranger, with any of its 
 members or a stranger, may be enforced against him by its 
 positive law. For if he be sued on the agreement, and 
 judgment be given for the plaintiff, the tribunal may execnte 
 its judgment by resorting to the land or moveables, although 
 the defendant's body is beyond the reach of its process. 
 And this execution of the judgment consists with the sover- 
 eignty of the government of which the stranger is properly 
 a subject. For the judgment is not executed against that 
 foreign government, or within the independent community 
 of which it is the chief : nor is it executed against the de- 
 fendant as being one of its subjects, but as owning land or 
 
ORIGIN OR CAUSES OF POLITICAL SOCIETY 237 
 
 moveables within the jurisdiction of the tribunal. If the 
 judgment were executed within the jurisdiction of the 
 foreign supreme government, the execution would wound 
 the sovereignty of the foreign supreme government, unless 
 the judgment were executed through its permission and au- 
 thority. And if the judgment were executed through its 
 permission and authority, the duty enforced against the de- 
 fendant would be imposed in effect by the law of his own 
 community : the law of his own community adopting the law 
 of the other, by reason of a special convention between the 
 respective governments, or of a rule of international morality 
 which the governments acknowledge and observe. 
 
 441. The definition, therefore, of a positive law, which is 
 assumed expressly or tacitly throughout the foregoing 
 lectures, is not a perfectly exact definition. In the cases 
 noted and exemplified in the last paragraph, a positive law 
 obliges legally a person or persons Twt of the community 
 wherein the author of the law is sovereign or supreme. Now, 
 since the cases in question are omitted by that definition, the 
 definition is too narrow. To render that definition complete 
 or adequate, a comprehensive summary of these anomalous 
 cases (or, perhaps, a full enumeration of 'these anomalous 
 cases) must be tacked to the definition in the way of supple- 
 ment. Moreover, since the definition is defective or inade- 
 quate, and is assumed expressly or tacitly throughout the 
 foregoing lectures, the determination of the province of 
 jurisprudence, which is attempted in those discourses, is not 
 a perfectly complete and perfectly exact determination. 
 
 442. But a perfect determination of the province of 
 jurisprudence is not the purpose of the foregoing lectures. 
 Their purpose is merely to suggest the general character of 
 the subject. That subject receives a more adequate exposi- 
 tion in my entire Course. The anomalous cases to which I 
 have referred belong to the departments of my Course which 
 
238 ORIGIN OR CAUSES OF POLITICAL SOCIETY 
 
 are concerned with the detail of the science. They hardly 
 were appropriate matter for the foregoing general attempt to 
 determine the province of jurisprudence : for the foregoing 
 attempt to suggest the subject of the science, with as much of 
 completeness and exactness as consist with generality and 
 brevity. 
 Member- 443. Defining sovcreigntyand independent political Society, 
 * jF .° .* I have said that a given society is a society political and 
 society, independent, if the bulk or generality of its members habitu- 
 ally obey the commands of a determinate and independent 
 party. — But who are the members of a given society ? By 
 what characters, or by what distinguishing marks, are its 
 members severed from persons who are not of its members ? 
 By the foregoing general definition of independent poHtical 
 society the questions which I now iiave suggested are not 
 resolved or touched : And it may seem, therefore, that the 
 foregoing general definition is not complete or adequate. 
 But, for the following reasons, I believe that the foregoing 
 definition, considered as a general definition, is, notwith- 
 standing, complete or adequate: that a general definition 
 of independent political society could hardly resolve the 
 questions which I have suggested above. 
 
 444. (1) It is not through one mode, or it is not through 
 one cause, that the members of a given society are subjects of 
 the person or body sovereign therein. A person may be 
 determined to a given society, by any of numerous modes, or 
 by any of numerous causes : as, for example, by birth within 
 the territory which it occupies; by birth without its territory, 
 but of parents being of its members ; by simple residence 
 within its territory ; or by naturalization. — Again :- A subject 
 member of one society may be, at the same time, a subject 
 member of another. A person, for example, who is natural- 
 ized in'one independent society, may yet be a member com- 
 pletely, or to certain limited purposes, of that independent 
 
ORIGIN OR CAUSES OF POLITICAL SOCIETY 239 
 
 society which he affects to renounce: or a member of one 
 society who simply resides in another, may be a member 
 -completely of the former society, and, to limited purposes, a 
 member of the latter. Nay, a person who is sovereign in one 
 society, may be, at the same time, a subject member of 
 another. Such, for example, would be the plight of a so- 
 called limited monarch, if he were monarch and autocrator in 
 a foreign independent conununity.-^Now if the foregoing 
 definition of independent political society had affected to 
 resolve the questions which I have suggested above, I must 
 have discussed the topics which I have touched in the present 
 paragraph. I must have gone from the generals into the 
 detail of jurisprudence ; and therefore I must have wandered 
 from the proper purpose or scope of the foregoing general 
 attempt to determine the province of the science. 
 
 445. (2) By a general definition of independent political 
 society (or such a definition as is applicable to every society 
 of the kind), I could not have resolved completely the 
 questions suggested above, although I had discussed the 
 topics touched in the last paragraph. For the modes through 
 which persons are members of particular societies (or the 
 causes by which persons are determined to particular 
 societies) differ in different communities. These modes are 
 fixed differently in different particular societies, by their 
 differeilt particular systems of positive law or morality. In 
 some societies, for example, a person born of aliens within 
 the territory of the community, is, ipso jure, or without an 
 act of his own, a perfect member of the community within 
 whose territory he is born ; but in other societies, he is not a 
 perfect member (or is merely a resident alien) unless he 
 acquire the character by fulfilling certain conditions. (See 
 the French Code, Article 9.) It therefore is only in relation 
 to a given particular society that the questions suggested 
 above can be completely resolved. 
 
240 OEIGIN OR CAUSES OF POLITICAL SOCIETY 
 
 Restric- 446. I have assumed expressly or tacitly throughout the 
 
 tion (a) on foregoing lectures that a sovereign government of one, or a 
 
 position . , 1 • -J. 11 • 
 
 that a sovereign government of a number m its collective and 
 
 sovereign sovereign capacity, cannot be hound legally. In the sense 
 
 bound ^^*^ which I have assumed it, the position will hold univer- 
 
 legally. sally. But it needs a slight restriction, or rather a slight 
 
 explanation, which may be placed conveniently at the close of 
 
 my present discourse. 
 
 447. It is true universally, that as being the sovereign of 
 the community wherein it is sovereign, a sovereign govern- 
 ment cannot be bound legally. But, as beingji,,gu^eQ|^of a 
 I foreign supreme government (either generally or to certaia 
 I limited purposes), it may be bound by laws (simply and 
 ! strictly so called) of that foreign supreme government. In 
 the case which I now am supposing, the sovereign political 
 government bound by positive laws bears two characters, or 
 bears two persons : namely, the character or person o/ 
 sovereign in its own independent society, and the charactei 
 or person of subject in the foreign independent community 
 And in order to the existence of the case which I now am 
 supposing, its two characters or two persons must be distinct 
 in practice, as well as in name and show. For example, 
 before the French Revolution, the sovereign government of 
 the Canton of Bern had money in the English funds: And if 
 the English law empowered it to hold lands, it might be the 
 owner of lands within the English territory, as weU as the 
 owner of money in the English funds. Now, assuming that 
 the government of Bern is an owner of lands in England, it 
 also is subject to the legal duties with which property in 
 land is saddled by the English law. But by its subjection 
 to those duties, and its habitual observance of the law through 
 which those duties are imposed, its sovereignty in its own 
 , Canton is not annulled or impaired. For the duties are in- 
 cumbent upon it (not as governing there, but) as owning 
 
ORIGIN OR CAUSES OF POLITICAL SOCIETY 241 
 
 lands here : as being, to limited purposes, a member of the 
 British community, and obnoxious, through the lands, to the 
 process of the English tribunals. 
 
 448. I have said in a preceding section, that a sovereign (*) On 
 
 government of one, or a sovereign government of a number ^^"^ '^°° 
 
 in its collective and sovereign capacity, cannot have legal sovereign 
 
 rights (in the proper acceptation of the term) against its own ^*°"''* 
 
 subjects. In the sense with which I have advanced it, the rights 
 
 position will hold universally. But it needs a slight re- *g*"i3* ^^ 
 
 . own sub- 
 
 striction, or rather a slight explanation, which I now willjects. 
 
 state or suggest. 
 
 449. It is true universally, that against a subject of its 
 own, as being a subject of its own, a sovereign political 
 government cannot have legal rights. But against a subject 
 of its own, as being generally or partially a subject of a foreign 
 government, a sovereign political government may have legal 
 rights. For example : Let us suppose that a Eussian merchant 
 is resident and domiciled in England : that he agrees with the 
 Eussian emperor to supply the latter with naval stores : and 
 that the laws of England, or the English tribunals, lend their 
 sanction to the agreement. Now, according to these sup- 
 positions, the emperor bears a right, given by the law of 
 England, against a Eussian subject. But the emperor has 
 not the right through a law of his own, or against a Eussian 
 subject in that capacity or character. He bears the legal 
 right against a subject of his own, through the positive law 
 of a foreign independent society ; and he bears it against his 
 subject (not as being his subject, but) as being, to limited 
 purposes, a subject of a foreign sovereign. 
 
CHAPTEE VII 
 
 ON THE USES OF THE STUDY OF JUKISPBUDENCE 
 
 [In a prefatory note, Mrs. Austin relates that the matter 
 which follows was taken chiefly from the opening lectures of the, 
 two courses delivered hy Mr. Austin. The work of selection, 
 arrangement and revision, was undertaken by Mrs. Austin, whose 
 text I have adopted, save for the omission of less important 
 sections. My own opinions upon the chief points discussed by 
 Austin are given in the excursus on the Sciences of the Law.] 
 
 Proper 450. The appropriate subject of Jurisprudence, in any of 
 
 Jurispru- ^*^ different departments, is positive law : Meaning by positive 
 deuce. law (or law emphatically so called), law established or 
 ' positmn,' in an independent political community, by the ex- 
 press or tacit authority of its sovereign or supreme govern- 
 nient. 
 
 451. Considered as a whole, and as implicated or connected 
 with one another, the positive laws and rules of a particular 
 or specified community, are a system or body of law. And as 
 limited to any one of such systems, or to any of its component 
 parts, jurisprudence is particular or national. 
 
 452. Though every system of law has its specific and 
 characteristic dififerences, there are principles, notions, and 
 distinctions common to various systems, and forming analogies 
 or likenesses by which such systems are allied. 
 
 453. Many of these common principles are common to all 
 systems ; — to the scanty and crude systems of rude societies, 
 and the ampler and maturer systems of refined communities. 
 But the ampler and maturer systems of refined communities 
 
 242 
 
THE STUDY OF JURISPRUDENCE 243 
 
 are allied by the numerous analogies which obtain between all 
 systems, and also by numerous analogies which obtain ex- 
 clusively between themselves. Accordingly, the various 
 principles common to maturer systems (or the various 
 analogies obtaining between them), are the subject of an 
 extensive science: which science (as contradistinguished to 
 national or particular jurisprudence on one side, and, on 
 another, to the science of legislation) has been named General 
 (or comparative) Jurisprudence, or the philosophy (or general 
 principles) of positive law. 
 
 454. As principles abstracted from positive systems are 
 the subject of general jurisprudence, so is the exposition of 
 such principles its exclusive or appropriate object. With the 
 goodness or badness of laws, as tried by the test of utility 
 (or by any of the various tests which divide the opinions of 
 mankind), it has no immediate concern. If, in regard to some 
 of the principles which form its appropriate subject, it adverts 
 to considerations of utility, it adverts to such considerations 
 for the purpose of explaining such principles, and not for the 
 purpose of determining their worth. And this distinguishes 
 the science in question from the science of legislation : which 
 affects to determine the test or standard (together with the 
 principles subordinate or consonant to such test) by which 
 positive law ought to be made, or to which positive law ought 
 to be adjusted. 
 
 455. If the possibility of such a science appear doubtful, it 
 arises from this ; that in each particular system, the principles 
 and distinctions which it has in common with others, are com- 
 plicated with its individual peculiarities, and are expressed in 
 a technical language peculiar to itself. It is not meant to be 
 affirmed that these principles and distinctions are conceived 
 with equal exactness and adequacy in every particular system. 
 In this respect different systems differ. But, in all, they are 
 to be found more or less nearly conceived ; from the rude con- 
 
244 THE STUDY OF JURISPRUDENCE 
 
 ceptions of barbarians, to the exact conceptions of the Eoman 
 lawyers or of enlightened modern jurists. 
 
 456. I mean, then, by General Jurisprudence, the science 
 concerned with the exposition of the principles, notions, and 
 distinctions which are common to systems of law: under- 
 standing by systems of law, the ampler and maturer systems 
 which, by reason of their amplitude and maturity, are pre- 
 eminently pregnant with instruction. 
 
 457. Of the principles, notions, and distinctions which 
 are the subjects of general jurisprudence, some may be 
 esteemed necessary. For we cannot imagine coherently a 
 system of law (or a system of law as evolved in a refined 
 community), without conceiving them as constituent parts 
 of it. 
 
 458. Of these necessary principles, notions, and distinc- 
 tions, I will suggest briefly a few examples. 
 
 1°. The notions of Duty, Eight, Liberty, Injury, Punish- 
 ment, Eedress ; with their various relations to one another, 
 and to Law, Sovereignty, and Independent Political Society : 
 
 2°. The distinction between written or promulged, and 
 unwritten or unpromulged law, in the juridical or improper 
 senses attributed to the opposed expressions; in other 
 words, between law proceeding immediately from a sover- 
 eign or supreme maker, and law proceeding immediately 
 from a subject or subordinate maker (with the authority 
 of a sovereign or supreme) : 
 
 3°. The distinction of Eights, into rights availing against 
 the world at large (as, for example, property or dominion), 
 and rights availing exclusively against persons specifically 
 determined (as, for example, rights from contracts) : 
 
 4°. The distinction of rights availing against the world at 
 large, into property or dominion, and the variously restricted 
 rights which are carved out of property or dominion : 
 
 5°. The distinction of Obligations (or of duties corre- 
 
THE STUDY OF JURISPRUDENCE 245 
 
 spending to rights against persons specifically determined) 
 into obligations which arise from contracts, obligatiQns 
 which arise from injuries, and obligations which arise from 
 incidents that are neither contracts nor injuries, but which 
 are styled analogically obligations ' quasi ex contractu : ' 
 
 6°. The distinction of Injuries or Delicts, into civil injuries 
 (or private delicts) and crimes (or public delicts) ; with the 
 distinction of civil injuries (or private delicts) into torts, 
 or delicts (in the strict acceptation of the term), and 
 breaches of obligations from contracts, or of obligations 
 ' quasi ex contractu.' 
 
 ■459. It will, I believe, be found, on a little examination 
 and reflection, that every system of law (or every system 
 of law evolved in a refined community) implies the notions 
 and distinctions which I now have cited as examples; 
 together with a multitude of conclusions imported by 
 those notions and distinctions, and drawn from them, 
 by the builders of the system, through inferences nearly 
 inevitable. 
 
 460. Of the principles, notions, and distinctions which 
 are the subjects of General Jurisprudence, others are not 
 necessary (in the sense which I have given to the expres- 
 sion). We may imagine coherently an expanded system 
 of law, without conceiving them as constituent parts of it. 
 But as they rest upon grounds of utility which extend 
 through all communities, and which are palpable or obvious 
 in all refined communities, they in fact occur very generally 
 in matured systems of law; and therefore may be ranked 
 properly with the general principles which are the subjects 
 of general jurisprudence. 
 
 461. Such, for example, is the distinction of law into ' jus 
 personarum' and 'jus rerum' : the principle of the scientific 
 arrangement given to the Eoman Law by the authors of the 
 elementary or institutional treatises from which Justinian's 
 
246 THE STUDY OF JURISPKUDENOE 
 
 Institutes were copied and compiled. The distinction, 
 I believe, is an arbitrarily assumed basis for a scientific 
 arrangement of a body of law. But being, a commodious 
 \)asis for an arrangement of a body of law, it has been 
 very generally adopted by those who have attempted such 
 arrangements in the modern European nations. It has 
 been very generally adopted by the compilers of the authori- 
 tative Codes which obtain in some of those nations, and 
 by private authors of expository treatises on entire bodies 
 of law. Nay, some who have mistaken the import of it, 
 and who have contemptuously rejected it, as denoted by the 
 obscure antithesis of 'jus personarum et rerum,' have yet 
 assumed it under other (and certainly more appropriate) 
 names, as the basis of a natural arrangement. Meaning, 
 I presume, by a natural arrangement, an arrangement so 
 commodious, and so highly and obviously commodious, that 
 any judicious methodiser of a body of law would naturally 
 adopt it. 
 tegiala- 462. The word Jurisprudence itself is not free from ambi- 
 
 bon an gujty • it has been used to denote — 
 
 Jnnspru- ° •' ' 
 
 dence. The knowledge of Law as a science, combined with the art 
 
 or practical habit or skill of applying it ; or, secondly. 
 
 Legislation ; — the science of what oiight to he done towards 
 
 making good laws, combined with the art of doing it. 
 
 Inasmuch as the knowledge of what ought to be, supposes 
 
 a knowledge of what is, legislation supposes jurisprudence, 
 
 but jurisprudence does not suppose legislation. What laws 
 
 have been and are, may be known without a knowledge of 
 
 what they ought to be. 
 
 Inevitable 463. It is impossible to consider Jurisprudence quite 
 
 an aome- g^p^j,^ from Legislation ; since the inducements or considera- 
 
 tentional) tions of expediency which lead to the establishment of laws, 
 
 jmphca- jjj^gi; ^g adverted to in explaining their origin and mechanism. 
 
 bon of iT D o 
 
 Legiala- If the causes of laws and of the rights and obligations which 
 
THE STUDY OF JURISPEUDENCE 247 
 
 they create be not assigned, the laws themselves are unintel- tion witk 
 ligible. i""'^^"^ 
 
 ° dence. 
 
 464. Where the subject is the same, but the provisions of 
 different systems with respect to that subject are different, 
 it is necessary to assign the causes of the difference : whether 
 they consist in a necessary diversity of circumstances, or in a 
 ' diversity of views on the part of their respective authors 
 with reference to the ends of Law. Thus, the rejection or 
 limited reception of entails in one system, and their exten- 
 sive reception in another, are partly owing to the different 
 circumstances in which the communities are placed ; — partly 
 to the different views of the aristocratic and democratic 
 legislators by whom these provisions have been severally 
 made. 
 
 465. So far as these differences are inevitable — are im- 
 posed upon different countries — there can be no room for 
 praise or blame. Where they are the effect of choice, there 
 is room for praise or blame ; but I shall treat them not as 
 subjects of either, but as causes explaining the existence 
 of the differences. So of the admission or prohibition of 
 divorce — Marriages within certain degrees, etc. Wherever an 
 opinion is pronounced upon the merits and demerits of Law, 
 an impartial statement of the conflicting opinions should be 
 given. The teacher of Jurisprudence may have, and prob- 
 ably has, decided opinions of his own ; but it may be ques- 
 tioned whether earnestness be less favourable to impartiality 
 than indifference ; and he ought not to attempt to insinuate 
 his opinion of merit and demerit under pretence of assigning 
 causes. 
 
 466. Attempting to expound the principles which are the 
 subject of the science of Jurisprudence (or rather to expound 
 as many of them as a limited Course of Lectures will 
 embrace), he must not only try to state them in general or 
 abstract expressions, but must also endeavour to illustrate 
 
248 THE STUDY OF JURISPRUDENCE 
 
 them by examples from particular systems: especially by 
 examples from the law of England, and from the Eoman or 
 Civil Law. 
 Value of 467. Por the following sufficient reason (to which many 
 of^Roman Others might be added), the Eoman or Civil Law is, of all 
 Law. particular systems, other than the Law of England, the best 
 of the sources from which such illustrations might be drawn. 
 In most of the nations of modern continental Europe, much 
 of the substance of the actual system, and much of the tech- 
 nical language in which it is clothed, is derived from the 
 Eoman Law, and without some knowledge of the Eoman 
 Law the technical language is unintelligible; whilst; the 
 order or arrangement commonly given to the system, imi- 
 tates the exemplar of a scientific arrangement which Ib 
 presented by the Institutes of Justinian. Even in our own 
 country, a large portion of the Ecclesiastical and Equity, 
 and some (though a smaller) portion of the Common Law, is 
 derived immediately from the Eoman Law, or from the 
 Eoman Law through the Canon. Nor has the influence of 
 the Eoman Law been limited to the positive law of the 
 modern European nations. For the technical language of 
 this all-reaching system has deeply tinctured the language 
 of the international law or morality which those nations 
 affect to observe. By drawing, then, largely for examples on 
 the Eoman or CivU Law, an expositor of General Jurispru- 
 dence (whilst illustrating his appropriate subject) might 
 present an idea of a system which is a key to the inter- 
 national morality, the diplomacy, and to much of the positive 
 law, of modern civilized communities. 
 
 468. It is much to be regretted that the study of the 
 Eoman Law is neglected in this country, .and that the real 
 merits of its founders and expositors are so little understood. 
 ' Much has been talked of the philosophy of the Eoman Insti- 
 tutional writers. Of familiarity with Grecian philosophy 
 
THE STUDY OF JURISPRUDENCE 249 
 
 there are few traces in their writings, and the little that 
 they have borrowed from that source is foolishness: for 
 example, their account of Jus naturale, in which they con- 
 found law with animal instincts; law, with all those wants 
 and necessities of mankind which are causes of its insti- 
 tution. 
 
 469. Nor is the Eoman Law to be resorted to as a maga- 
 zine of legislative wisdom. The great Eoman Lawyers are, 
 in truth, expositors of a positive or technical system. Not 
 Lord Coke himself is more purely technical. Their real 
 merits lie in their thorough mastery of that system ; in their 
 command of its principles ; in the readiness with which they 
 recall, and the facility and certainty with which they apply 
 them. 
 
 470. In support of my own opinion of these great writers 
 I shall quote the authority of two of the most eminent 
 Jurists of modern times. 
 
 'The permanent value of the Corpus Juris Civilis,' says 
 Falck, ' does not lie in the Decrees of the Emperors, but in 
 the remains of .juristical literature which have been pre- 
 served in the Pandects. Nor is it so much the matter of 
 these juristical writings, as the scientific method employed 
 by the authors in explicating the notions and maxims with 
 which they have to deal, that has rendered them models to 
 all succeeding ages, and pre-eminently fitted them to pro- 
 duce and to develop those qualities of the mind which are 
 requisite to form a Jurist.' 
 
 And Savigny says, ' It has been shown above, that, in our 
 science, all results depend on the possession of leading prin- 
 ciples; and it is exactly this possession upon which the 
 greatness of the Eoman Jurists rests. The notions and 
 maxims of their science do not appear to them to be the 
 creatures of their own will; they are actual beings, with 
 whose existence and genealogy they have become familiar 
 
250 THE STUDY OF JURISPRUDENCE 
 
 from long and intimate intercourse. Hence their whole 
 method of proceeding has a certainty which is found nowhere 
 else except in mathematics; and it may he said without 
 exaggeration, that they calculate with their ideas. If they 
 liave a case to decide, they begin by acquiring the most 
 vivid and distinct perception of it, and we see before our 
 eyes the rise and progress of the whole affair, and all the 
 changes it undergoes. It is as if this particular case were 
 the germ whence the whole science was to be developed. 
 Hence, with them, theory and practice are not in fact dis- 
 tinct ; their theory is so thoroughly worked out as to be iit 
 for immediate application, and their practice is uniformly 
 ennobled by scientific treatment. In every principle they 
 see a case to which it may be applied ; in every case, the 
 rule by which it is determined: and, in the facility with 
 which they pass from the general to the particular and the 
 particular to the general, their mastery is indisputable.' 
 
 471. In consequence of this mastery of principle's, of their 
 perfect consistency (' elegantia '), and of the clearness of the 
 method in which they are arranged, there is no positive 
 system of law which it is so easy to seize as a whole. The 
 smallness of its volume tends to the same end. The 
 principles themselves, many of them being derived from 
 barbarous ages, are indeed ill fitted to the ends of law ; and 
 the conclusions at which they arrive being logical conse- 
 quences of their imperfect principles, necessarily partake of 
 the same defect. 
 Uses of the 472. Having stated generally the nature of the science of 
 Study of Jurisprudence, and also the manner in which I think it ought 
 denoa. to be expounded, I proceed to indicate briefly a few of its 
 possible uses, 
 
 473. I would remark, in the first place, that a well- 
 grounded study of the principles which form the subject of 
 the science, would be an advantageous preparative for the 
 
THE STUDY OF JURISPBUDENCE 251 
 
 study of English Law. To the student who begins the study 
 of the English Law, without some previous knowledge of the 
 rationale of law in general, it naturally appears an assemblage 
 of arbitrary and unconnected rules. But if he approached 
 it with a well-grounded knowledge of the general principles 
 of jurisprudence, and with the map of a body of law dis- 
 tinctly impressed upon his mind, he might obtain a clear 
 conception of it (as a system or organic whole), with com- 
 parative ease and rapidity. With comparative ease and 
 rapidity, he might perceive the various relations of its various 
 parts-; the dependence of its minuter rules on its general 
 principles ; and the subordination of such of these principles 
 as are less general or extensive, to such of them as are more 
 general, and run through the whole of its structure. 
 
 474. In short, the preliminary study of the general 
 principles of jurisprudence, and the mental habits which the 
 study of them tends to engender, would enable him to 
 acquire the principles of English jurisprudence, in particular, 
 far more speedily and accurately than he possibly could have 
 acquired them, in case he had begun the study of them with- 
 out the preparative discipline. 
 
 475. There is (I believe) a not unprevalent opinion, that 
 the study of the science whose uses I am endeavouring to 
 demonstrate, might tend to disqualify the student for the 
 practice of the law, or to inspire him with an aversion from 
 the practice of it. That some who have studied this science 
 have shown themselves incapable of practice, or that some 
 who have studied this science have conceived a disgust of 
 practice, is not improbably a fact. But in spite of this seem- 
 ing experience in favour of the opinion in question, I deny 
 that the study itself has the tendency which the opinion 
 imputes to it. A well-grounded knowledge of the general 
 principles of jurisprudence helps, as I have said, to a well- 
 grounded knowledge of the principles of English jurispru- 
 
252 THE STUDY OP JUEISPRUDENCE 
 
 dence; and a previous well-grounded knowledge of the 
 principles of English jurisprudence, can scarcely incapaci- 
 tate the student for the acquisition of practical knowledge 
 in the chambers of a conveyancer, pleader, or draftsman. 
 Armed with that previous knowledge, he seizes the rationale 
 of the practice which he there witnesses and partakes in, 
 with comparative ease and rapidity ; and his acquisition of 
 practical knowledge, and practical dexterity and readiness, 
 is much less irksome than it would be in case it were 
 merely empirical. Insomuch, that the study of the general 
 principles of jurisprudence, instead of having any of the 
 tendency which the opinion in question imputes to it, has a 
 tendency (by ultimate consequence) to qualify for practice, 
 and to lessen the natural repugnance with which it is re- 
 garded by beginners. 
 
 476. And as a well-grounded knowledge of the science 
 whose uses I am endeavouring to demonstrate, would facili- 
 tate to the student the acquisition of the English law, so 
 would it enable him to apprehend, with comparative ease 
 and rapidity, almost any of the foreign systems to which he 
 might direct his attention. So numerous, as I have said, are 
 the principles common to systems of law, that a lawyer who 
 has mastered the law which obtains in his own country, has 
 mastered implicitly most of the substance of the law which 
 obtains in any other community. So that the difficulty with 
 which a lawyeir, versed in the law of his own country, appre- 
 hends the law of another, is rather the result of differences 
 between the terms of the systems, than of substantial or 
 real differences between their maxims and rules. 
 
 477. Now the obstacle to the apprehension of foreign 
 systems which is opposed by their technical language, might 
 in part be obviated or lightened to the student of General 
 Jurisprudence, if the science were expounded to him com- 
 petently, in the method which I shall endeavour to observe 
 
THE STUDY OF JURISPRUDENCE 253 
 
 [f the exposition of the science were made agreeably to that 
 method, it would explain incidentally the leading terms, as 
 well as the leading principles, of the Eoman or Civil Law. 
 And if the student were possessed of those terms, and were 
 also grounded thoroughly in the law of his own country, he 
 would master with little difficulty the substance of the 
 Eoman system, and of any of the modern systems which are 
 mainly derivatives from the Eoman. 
 
PART II 
 
 EXCURSUS A 
 
 THE STATE 
 
 The State 501. " It is a fact which has received far too little notice 
 from English lawyers," writes Professor Dicey, " that, when- 
 ever men act in concert for a common purpose, they tend to 
 create a body which, from no fiction of law, but from the 
 very nature of things, differs from the individuals of whom 
 it is constituted."^ To some this may seem a strange saying. 
 Yet it contains a truth of the first importance which we 
 must take full account of, if we are to make satisfactory pro- 
 gress in the direction of a theory of the State which will 
 serve the purposes of a reflective jurisprudence. For the 
 State is but one of the many forms in which the associative 
 tendency of mankind finds expression. Before we can form 
 a theory about it, we must consider the nature of social 
 groups in general. 
 
 English 502. How has law regarded social groups in the past? 
 
 law and Towards the great majority of them, English law has assumed 
 
 group. an attitude of mere tolerance. It has not forbidden or at- 
 tempted to crush them, as it might have done ; it has simply 
 ignored them. But at times and places, this attitude of 
 mere tolerance has not been possible. Some sort of recogni- 
 tipn, of some sorts of groups, has become increasingly neces- 
 
 1 "Law and Opinion in England," p. 153. 
 
 254 
 
THE STATE 255 
 
 sary as man has become more and more a social being. One 
 form of such recognition has been to attribute a representa- 
 tive capacity to certain individuals who act in behalf of the 
 groups. The Crown has been a convenient scapegoat for 
 national sins; the trustees of a nonconformist chapel have 
 stood in law for the nonconformist congregation. In so far 
 as legal recognition of groups is relevant to our present pur- 
 poses, however, it has taken the form of a theory of corpora- 
 tions. This theory may be summarized very briefly in four 
 propositions. 
 
 503. (1) A corporation is something distinct from the in- Corpora- 
 dividual persons who constitute it. The position is too *^"'" '■^^ 
 
 ^ members. 
 
 obvious to need proof. The whole is more than its parts. 
 The individual members of a mining company have no im- 
 mediate right of property in the mine or the machinery, and 
 if any one of them should presume to act as owner, he would 
 be liable to civil action as an ordinary trespasser. It is of 
 more practical importance to point out, for the sake of the 
 uninitiated, that the persons who constitute the corporation 
 are not necessarily coincident with two other classes of per- 
 sons who are directly associated with it, viz. : (a) Those 
 persons through whom the corporation acts, (b) those persons 
 in whose interests the corporation exists. The former are 
 often called representatives, the latter beneficiaries. In a 
 typical municipal corporation, the members are the mayor, 
 aldermen, and burgesses of the borough; the beneficiaries 
 are the inhabitants of the borough; and the "representa- 
 tives " are the mayor, aldermen, and town councillors. In 
 an ordinary mining company, the members, and also the 
 beneficiaries, are the shareholders ; whilst, for most purposes, 
 the " representatives " are the directors. Both members and 
 "representatives" of corporations are living persons — I 
 speak throughout of corporations aggregate as distinct from 
 Eorporations sole — whilst the beneficiaries may be, as in the 
 
256 THE STATE 
 
 case of the University of Cambridge, an indeterminate body 
 
 embracing present and future generations. 
 
 Corpora- 504. (2) A corporation is, in the eye of the law, distinct 
 
 f from the sum of its members. This fact received an inter- 
 sum 01 
 
 members, fisting illustration in Eoman law. In that system, although 
 the torture of a slave as a means of extorting information 
 against his master was prohibited, the slave of a corporation 
 might be tortured as a means of gaining information against 
 any or all of its individual memiers. As regards English law, 
 the following illustrations may be quoted : 
 
 (a) Each of the members of a corporation may be solvent 
 whilst the corporation itself is insolvent. 
 
 (&) The very same persons who have registered themselves 
 as one company may also register themselves as another and 
 quite distinct company. If the corporation were identical 
 with the sum of its members they would be one company, 
 but the law holds them two. 
 
 (c) The corporation remains the same, although its per- 
 sonnel changes entirely. It is a totality of which the parts 
 are constantly changing without affecting the continuity of 
 the totality itself. 
 
 (d) Finally, the corporation is no mere partnership. Thus, 
 partners are, whilst corporators need not be, liable for the 
 debts of the group. Partners own, whilst corporators do 
 not own, the group property. A partnership possesses a 
 practically unrestricted power in dealings with third parties, 
 while a corporation is ordinarily limited by reference to the 
 purposes for which it is incorporated. Finally, whilst 
 partnership can be resolved into mere contract, a corpora- 
 tion implies a new status. " Contract, that greediest of legal 
 cdtegories," writes Professor Maifrland, " which once wanted 
 to devour the state, resents being told that it cannot pain- 
 lessly digest even a joint-stock company." ^ 
 
 ' " Political Theories of the Middle Age," p. xxiv. 
 
THE STATE 257 
 
 505. (3) The corporation is a legal subject of right and Corpora- 
 duties. If the law recognizes a distinction between a cor- °^. *^ , 
 
 ° _ _ _ subject 0^ 
 
 poration and the sum of its members, it is not as a mere rights. 
 
 flight of fancy, or to indulge an inclination for metaphysics, 
 but for the very practical and sufficient purpose of establish- 
 ing the inherence of certain rights and duties which cannot 
 be conveniently treated — or perhaps cannot be treated at 
 all — as inhering in the members of the corporation. The 
 property of a corporation follows the fate of the corporation, 
 whatever that may be, not the fate of its members, whatever 
 that may be. It is the corporation (not the members) which 
 is creditor and debtor. 
 
 506. (4) The corporation is, therefore, in law a person. Corpora- 
 The cardinal distinction of jurisprudence is between rights ""* * 
 or duties, and the holders or subjects of rights or duties. 
 
 Such subjects are persons in law. This does not mean that 
 they are not also persons in fact, a suggestion which might 
 occur to the layman who has a mother-in-law who, by the 
 way, is a mother neither in fact nor in law. It will be 
 obvious that while some human beings (e.g. slaves) are not 
 persons, some persons are not .human beings. Wherever 
 the law attributes rights or duties to an entity or institu- 
 tion, it makes a person of, or recognizes a person in, that 
 entity or institution. It becomes important, therefore, to 
 distinguish between different kinds of persons in law. When 
 the person in law is also a human being, it is called a 
 natural person; when it is not a human being, it is some- 
 times called an artificial person. We have hitherto con- 
 sidered how the law regards that so-called artificial person 
 which we know as the corporation. We have now to look 
 behind legal rules to the nature of things, and to consider 
 whether, in distinguishing between the corporaticm and the 
 sum of its members, the law is merely employing a service- 
 able fiction, or is building on certain real and deep analogies 
 
258 THE STATE 
 
 to natural personality which exist wholly apart from legal 
 
 recognition. 
 Unity of 507. The inquiry is one which leads us on from the 
 t 6 social g^bjgpj Qf corporations to the wider subject of human 
 
 association in general. Of this wider subject it is necessary 
 ^ to speak for a moment. Whenever men act in common, 
 
 I they inevitably tend to develop a spirit which is something 
 different from themselves taken singly or in sum. No one 
 who has had any experience as a member of a governing 
 body, for example, can be ignorant of the fact that the 
 decisions of such a body, even when they are unanimous, are 
 often inexplicable if regarded from the point of view of the 
 several characters of the individual members considered as 
 so many units. When at a meeting of such a board, a 
 speaker begins with the statement, " I speak as a member 
 of this board, and I say ," there will be reason to antici- 
 pate statements or proposals which represent the traditional 
 policy of the board rather than the person who makes them. 
 Under the inspiration of esprU de corps, the humane will 
 give a cruel decision, the cruel a humane. In every group 
 of men acting together for a common purpose, the common 
 purpose inevitably begets a common spirit which is real, 
 'though it may be vague and indefinite to us because our 
 vision is limited, or because the group is in the making. 
 The group becomes, or tends to become, a unit ; and, as 
 Bluntschli so well said, a mere sum of individuals as such 
 can no more become a unit than a heap of sand can become 
 a statue. So a symphony is something more than a mere 
 concurrence of sounds, and a cathedral than stone and 
 mortar. As regards the human group, in proportion as the 
 psychical realities which inspire it become distinct and 
 emphatic, so is the efficiency of the group increased, and its 
 purpose promoted. 
 
 The group 508. The unity of spirit and purpose just referred to is 
 in action. 
 
THE STATE 259 
 
 developed by continuous action in common. It is not so 
 obvious, though quite as true, that the same unity tends 
 to beget a dififerent kind of action — the action of some in 
 behalf of all. As psychical realities in the individual find 
 means of expression in individual action, so psychial 
 realities in the group find means of expression in cor- 
 porate action. But the individual is a natural organism 
 with predetermined organs for expressing the individual 
 will. The group is not a natural organism, and number- 
 less difficulties have to be overcome when the ^roup ^mind 
 seeks realization in the external world. The difficulties^ 
 will be overcome somehow, though possibly the group j 
 may never pass beyond the stage when action of the 
 whole is only possible by combined action of each of the 1 
 parts. In all highly developed groups, however, some one i 
 person, or a number of persons, acquires a capacity to | 
 express in action the will of the group. If we may employ 
 an extremely useful and suggestive analogy, he or they are 
 the organ of the group for the purpose of giving external 
 expression to the corporate will. Inevitably, such expression 
 lacks the directness and spontaneity which exist in the 
 case of the individual ; but the group-purpose is promoted 
 in proportion as such directness and spontaneity are 
 approached. The member of a highly developed group is 
 thus part of a new power or force. For this privilege, 
 however, he forgoes something of his own liberty of action. 
 In becoming a member of an organized whole, he loses 
 apparently something of his significance as a unit. He 
 ceases to become a member of an undisciplined mob that 
 he may become a soldier in a disciplined army. 
 
 509. The realities of group life may be found in every Group u. 
 degree of intensity. They take their beginning wherever 8'""'°n'- 
 two individuals act in a common undertaking. Each in- 
 dividual takes to every group with which he associates 
 
260 THE STATE 
 
 something of the group spirit with which inheritance and 
 circumstance have endowed him. In every group sufficiently 
 i organized to act as a group, there exist, thor^h at different 
 I degrees of development, the phenomena which justify us in 
 regarding society as an organic whole. Law is not in haste 
 to recognize the fact; hut when the group is large and its 
 organization complex, and more especially when it assumes 
 the responsibility of owning property, recognition becomes 
 more and more urgent. As a member of such a group, the 
 individual is affected, however slightly, yet to some extent;, 
 qualities are developed in him which cannot be explained 
 save by reference to the union. More obviously, the group 
 itself is something which cannot be analysed into the mere 
 sum of its parts. The sum of the parts may survive the 
 destruction of the group, but can no more explain the group 
 than the material of a murdered organism explains the 
 organism. 
 The cor- 510. I return to the legal view of human groups, as that 
 pora ion. y^g^ ^g presented to us in the theory of corporations. The 
 corporation is a group recognized as such by law. The , 
 psychic bonds to which I have referred as existing in all 
 social groups, derive an added reality and efficiency from 
 the mere fact of legal recognition. Differences of opiaion 
 and aim may exist within the group, but there is at least 
 one will which may be assumed to be general, the will to 
 continue the collective work. The corporation, in a word, 
 is an efficiently organized unity which the State has re- 
 cognized. To it, as we have seen, the law ascribes a 
 distinctive existence, a capacity for right and duty, a person- 
 ality. This personality differs from the personalities of 
 the natural persons composing it, but shares with them the 
 important characteristic of being based on a pre-existing 
 capacity for will and action. In view of this capacity, it is 
 difficult to hold, as traditional theory in England professes to 
 
THE STATE 261 
 
 hold, that the law, in distinguishing between the corporation 
 and the sum of its members, is merely employing a service- 
 able fiction. The difficulty becomes each year more obvious, 
 owing to the enormous development of associated activities. 
 We may readily ignore what we see seldom or in incipient 
 stages; what appears before us at every moment and at 
 highly developed stages, refuses to be ignored. To the 
 moderns it is becoming increasingly clear that "the some- 
 thing more than the sum of its members '' which the State 
 implicitly recognizes as a person, is no mere creation of the 
 juristic imagination, but is rather a reality as indisputable 
 as man himself. 
 
 511. The real character of corporate personality is sug- Early 
 gested by certain facts in the early history of corporations W^t^'y 
 in England. The chief attributes of the corporation, such porationa. 
 as perpetual succession, the right to sue and be sued by 
 name, to purchase lands, to have a common seal and to 
 make by-laws, were long recognized before the conception 
 of the corporation was thought of. Their attainment marked 
 stages which corresponded to the developments of social 
 life rather than of juristic thought. "All the ancient 
 boroughs of England, or nearly all," wrote Stubbs, "must 
 have possessed all the rights of corporations and been 
 corporations by prescription long before the reign of Henry 
 VI; and the acquisition of a formal charter of incorpor- 
 .ation could only recognize, not bestow, these rights."^ So far 
 from the corporation having been the creature of the law, 
 we ought rather to regard it as an entity which has compelled 
 the law to grant it official recognition. Acting as a person, 
 it has compelled law to regard it as a person. The function 
 of the State in the matter has been permissive and regulative 
 rather than creative. The relation suggests the judicial 
 
 • " Constitutional History of England." ill. 
 
262 THE STATE 
 
 adoption of a social usage. If -the judges have made new 
 law, they have not made new rule. Similarly, statute or 
 charter, in conferring upon a social group the legal status of 
 a corporation, is not creating something new ; it is simply 
 setting an official seal upon a pre-existing reality. 
 The unin- 512. Those to whom the past history of corporations in 
 OToup™ " English law is inconclusive, will do well to reflect upon the 
 enormous range and variety of those unincorporated institu- 
 tions which exist to-day, and of which many already present 
 the more important characteristics of personality without 
 having been officially and openly recognized as legal 
 persons. When such an unincorporate group chooses to 
 incorporate, the change, as Professor Maitland has well said, 
 may amount to no more than a mere event in its history. 
 "We could not even compare it to the attainment of full 
 age. Eather it is as if a ' natural person ' bought a type- 
 writing machine or took lessons in stenography." 
 Corpora- 513. The untenability of the view that corporate per- 
 
 tion V. sonality is a mere legal fiction is most clearly seen when we 
 fictitious ,. . . , ,..,., 
 
 compare corporate personalities with personalities which are 
 
 really fictitious. Austin classifies "fictitious or legal persons " 
 
 under three heads : — 
 
 1. Collections of physical persons, e.g. corporations aggre- 
 gate. 
 
 2. Things, e.g. the praedium dominans. 
 
 3. Collections of rights and duties, e.g. the haereditas 
 jacens?- 
 
 No argument can be necessary to prove that in the second 
 and third of these cases the attribution of personality is a 
 mere legal fiction designed to facilitate certain practical 
 objects. If the jurist visualizes the haereditas jacens as a 
 person, it is merely because he finds it convenient to do so, 
 
 person. 
 
 ' Jurisprudence," 5th ed., I, 354. 
 
THE STATE 263 
 
 and not because of any realities in the haereditas jacens itself 
 which bear a close analogy to natural personality. Unities 
 of spirit and purpose, will and action, are wholly lacking. 
 To talk of them is absurd. 
 
 514. To the discerning, then, it would seem that the view Fiction 
 of corporate personality as a mere fiction is but a stage in ^^^°^y » 
 the evolution of legal ideas. When, at a certain stage in tional 
 national development, lawyers find themselves brought face ***8«- 
 to face with the fact of corporate personality, they find a 
 difficulty in knowing what to do with it. Existing legal 
 categories find no place for it. No material reality, nothing 
 apparent to the senses, is at hand. A crude realism denies / / 
 that there can be any person except the corporators. Yet 
 realities press with increasing urgency for legal recognition. 
 
 It is seen to be necessary to recognize in the group a 
 capacity for legal rights and duties — the test of personality. 
 To call the group a person is theti the first stage — ^person 
 not by reality, but by fiction of the law. There is nothing 
 beyond the corporators, it is said, but let us suppose a person 
 for convenience' sake. As groups multiply and ideas develop, 
 this provisional solution of law is seen to owe more to 
 realities and less to the juristic imagination than was at 
 first supposed. The corporate person is stated to be a real 
 person. The statement is true, though, as I shall proceed to 
 show, it is liable to be misunderstood. 
 
 515. The outcome of the preceding argument may be Corpora- 
 briefly expressed by saying that the corporation is a person, '°° ?' 
 and that this person is not a legal fiction. That it must be person. 
 in consequence a real person, seems to follow necessarily. 
 
 Yet we must be careful to remember that, in such a con- 
 nection, the term " real " person is not the same as physical 
 person. Personality is a legal conception. A natural person 
 is a legal conception, a physical reality, and a natural 
 organism. A corporation is a legal conception, but neither 
 
264 THE STATE 
 
 a physical reality nor a natural organism. When we say 
 I that a corporation is a person, we imply that it is a lega) 
 I conception. When we say that this corporate person is not 
 a legal fiction, we imply that it is a representation of 
 .psJLchical realities which the law recognizes rather, than 
 creates. The whole conception of group personality belongs 
 to the world, not of material, but of psychical jealities. 
 The differences between corporations and physical persons 
 are so numerous and significant that it is important in the 
 interests of clear thinking not to lose sight of them — a 
 thing we are very apt to do if we press certain highly 
 practical and profoundly suggestive analogies beyond legiti- 
 mate limits. When a corporate person comes to will and to 
 act, it is confronted by peculiar difficulties. The ordinary 
 principle of willing by a majority is a triumph of conscious 
 art. "The canon lawyers," it has been said, "escaped the 
 fallacy that some natural law enables a majority of members 
 in a duly convened meeting to express the will of the 
 corporation." i The law assumes, it is sometimes urged, that 
 the will of a majority represents what would be the 
 unanimous will of the corporation if unanimity were in- 
 sisted upon. It need hardly be said that this is pure 
 assumption, justified by expediency and not by a 'priori 
 necessity. Again, natural persons act without the mediation 
 of another person. The corporate person can only act 
 through the mediation of natural persons. The real sig- 
 nificance of this difference is seen when we try to find a 
 name for the natural persons who act for the group. Shall 
 we call them agents ? representatives ? or organs ? To call 
 them agents is clearly open to objection, since an agent is 
 appointed by a» principal who himself wills and acts. To 
 choose between representative and organ is more difficult 
 
 > Pollock and Maitland, "History of English Law," I, 491. 
 
THE STATE 265 
 
 The term representative suggests a distinct person whose 
 will and act are accepted as the will and act of another 
 person. A more intimate term is needed to describe the 
 persons whose acts are attributed to the corporation. They 
 are members of the corporation, and their will has more 
 claim to incarnate the corporate will than the will of the 
 guardian, for example, to incarnate the will of the ward. 
 That this is true is exemplified by common speech, which 
 identifies the will of the natural persons acting for the 
 group with the group itself, while refraining from speaking 
 of the \Vill of the guardian as the will of the ward. We 
 say the community sold; we do not say as much of the 
 idiot, argues Le Mestre.^ On the whole, the term organ 
 seems more apt to suggest the true inwardness of things 
 than any other that can be suggested. Nevertheless, it is 
 ^lear that between the organ of the group and the organ of 
 the individual there are important differences. The one has 
 an independent existence, the other has not; the one is a 
 person, the other is not; the one is variable, the other is 
 necessary and unchangeable. The natural person who 
 follows a scriptural injunction as to offending members may 
 find himself eternally bereft; the group person is more 
 fortunate. The dangers of a too literal interpretation o£ 
 the word organ are well illustrated by the anthropomorphism 
 of an early time in accordance with which it was held that 
 a corporation could not survive the loss of its head. So 
 wrote King James of the body politic. " And for the simili- 
 tude of the head and the body, it may well fall out that 
 the head will be forced to garre cut off some rotten member 
 to keep the rest of the body in integritie; but what state 
 can the body be in if the head for any infirmitie that can 
 fall to it be cut off, I leave it to the reader's judgment." * 
 
 ' " Les Personnes morales," 212. 
 * King James, "Works," ed. 1616. 
 
266 THE STATE' 
 
 The State. 516. If we now return to the problem with which we 
 started, how to formulate a legal theory of the State, we have 
 at our command a conception of group life which should 
 prove of the utmost service — the conception of a corporate 
 personality. I have endeavoured to prove, at a perhaps 
 wearisome length, that this conception is no mere fiction 
 of the law. My reason will be now apparent. If corporate 
 personality were mere fiction, the propriety of consider- 
 ing the State as a person would have to be determined 
 by reference to purely formal considerations. But if, as I 
 have endeavoured to prove, the corporate personality is no 
 mere creation of the lawyer's imagination, but a generali- 
 zation based on certain unities of spirit,. purposes, interests, 
 and^orgamzation which exist in every social group, we can no 
 longer deny the necessity for recognizing the personality of 
 that highest and most developed social group, the State. 
 Patrimonial theories of government, and doctrines of an 
 absolute sovereignty of visible rulers, may blind us to this 
 necessity. Its ultimate recognition is inevitable. 
 Legal con- 517. In these respects, as in many others, the theory of 
 servatism ^jjg jg^^ ]^^ lagged behind the thought of the nation. While 
 with re- ■, ■ -i , . , ,. i • i 
 
 speet to lawyers have admitted the existence of " personality which 
 
 the State, ig a fiction " in the corporation, other people are loudly affirm- 
 ing the existence of " a personality which is no fiction " in 
 the State. The historian who sees in the State a growth, 
 the scientist or sociologist who holds it a moral organism, the 
 political philosopher who talks of social solidarity, the social 
 consciousness, conscience, will, and intellect — all alike bear 
 testimony to the power and growth of a conception which 
 has enriched the political thought of our time. Even that 
 much-abused individual, the man in the street, is beginning 
 to feel that the State into which he is born and in which he 
 lives and dies, which comes out of the past and passes on to 
 an indefinite future, may have many "personal" qualities 
 
THE STATE 267 
 
 and an existence from many points of view superior to his 
 own. Meanwhile, however, from the point of view of 
 English law, if we are to believe what we are told, the State 
 is no person, ideal or fictitious. In Great Britain, it is not 
 the State, but the Crown, which owns property, is responsible 
 for debts, enjoys rights and privileges, and administers 
 justice. Truly the ways of transgressors are hard. Pro- 
 hibited from admitting the personality of the State, either 
 by the poverty of our ideas or by the conservatism of our 
 temperament, we are driven to the device of attributing 
 privileges and responsibilities to the king which no one can 
 suppose to be really his. A sounder legal theory, however, 
 knocks loudly at our door, and some day we shall awake to 
 find we have been talking in our sleep. When that day has 
 come, some legal fictions which are real fictions will make 
 way for a legal theory which is a true theory — a theory, I 
 may add, which is already implicit in many legal rules.^ 
 
 518. If it be the mission of legal science to look behind the The prob- 
 professions of the lawyer, to harmonize those professions with I*™ °^ 
 one another and with the facts of national life, we must con- denoe. 
 elude that the jurist has a serious responsibility to undertake 
 
 in the direction of giving some rational account of the State. 
 He must take the legal conception of corporate personality, 
 interpret that conception in the way most consistent with the 
 facts of social life, and must here bring his deeper inter- 
 pretation to bear on the problem of the nature of the State 
 itself. In the process he will discover that the analogies 
 between the State and the corporation are incomparably more 
 important than the differences. 
 
 519. The most conspicuous differences between the State state v. 
 and the corporation deserve consideration if only to convince ""^P"™" 
 
 ' On the nature of the Crown as a Corporation, vide two articles in 
 the "Law Quarterly Review," the first by Professor Maitland, vol. 
 XVII, 131, the second by Professor Harrison Moore, vol. XX, 351. 
 
268 THE STATE 
 
 us of the superior claims of the State's personality to recog- 
 Dition. In the first place, the State's will is sovereig n, and 
 j therefore subject to no regulation from above ; its powers 
 ( over members are numerous, indefinite, and irresistible ; and 
 I its purposes, general rather than special, touch human life at 
 j every point. In the second place, it has far more claims to 
 be considered a natural growth than most corporationa 
 Conscious art has far less to do in its origin. It is born before 
 the individuals whose lives go to form it are quite aware of 
 what they are doing. With self -consciousness comes a demand 
 for philosophical justification of the state-building process, 
 but that process has been going on in obedience to elemental 
 instinct. "Law and institutions are only possible," writes 
 Professor Bosanquet, " because man is already what they 
 gradually make more and more explicit."^ Hence, in the 
 ^ third place, the personality of the State is more highly 
 developed than that of other collective persons. The share- 
 holder in a joint-stock company is united to other shareholders 
 by unities in every way inferior in degree and intensity to 
 those which bind together the citizens of a state. Both com- 
 pany and State are organized groups, but in the mind of the 
 component individuals which go to form them, the social self 
 in one case is strictly limited, whilst in the other case it is 
 unlimited, extending in its range over the whole compass of 
 individuality. 
 Some 520. While the consideration of the differences between 
 
 practical jj^g gtafce and the corporation only serves to intensify the 
 ad van- ^ ,• u 
 
 tagesof conviction of the reality of the States personality, when 
 
 conception once this personality is definitely recognized, the student has 
 
 person- ** ^^^ disposal a view of the State which has the merit of 
 
 ality. .regresentiag^rea^ties^and incidentally of solving some of the 
 
 most difficult problems of Public Law. In particular, the 
 
 representation of the action of the State through its 
 
 ' Philosophical Theory of the State," p. 122. 
 
THE STATE 269 
 
 government, as the action of a person through definite 
 organs, commands respect as a representation which is both 
 convenient and true. The value of the conception of State 
 personality in regard to questions of sovereignty will receive 
 some illustrations in the following Excursus. 
 
 521. If, then, the State be a person, and if that person The posi- 
 has very special claims to legal recognition, to what position *'°° °f 
 
 • • • a Btfitto 111 ft 
 
 should we assign it xn a complete scheme of legal persons ? scheme of 
 To answer this question, we must begin at the beginning ^^g"! 
 and consider how law at present classifies persons. In the 
 first place, we must exclude from the list of persons recog- 
 nized as such by law, certain entities which hover on the bor- 
 ders of recognition as persons without securing such recogni- 
 tion. The class includes slaves, children en ventre sa mire, 
 and group personalities of which the law takes no direct 
 cognizance. As we have seen, no degree of psychological 
 unity will serve to make a group for legal purposes a 
 person : a family may be a psychological unity ; it is not as 
 such a person : a large number of natural persons may 
 pledge themselves, soul and body, to secure a political 
 reform ; they do not as such become legal persons. In the 
 second place, among legal persons we must distinguish those 
 which are real from those which are fictitious. Instances of 
 the last-mentioned abounded in later Eoman Law. A person 
 who dedicated property for certain purposes, whether by 
 will or by gift inter vivos, thereby created a new subject of 
 rights and duties — ^it may be a hospital, poor-house, convent 
 or church. In English Law we have an instance in the 
 corporation sole. We attribute personality to the succession 
 of the holders of a certain office. There can be no pretence 
 to psychological unity in such cases. The attribution of 
 personality may be serviceable, but is fictitious. In the 
 third place, among legal persons which are real persons, we 
 have to distinguish between those which consist of an 
 
270 THE STATE 
 
 individual and those which consist of a group of individuals. 
 The former are generally called natural persons. The group 
 of individuals is often called a moral person, but this term 
 cannot be used with propriety by the jurist for the reason 
 that it has been already appropriated by the philosopher. 
 Just as the natural person of the lawyer has to be dis- 
 tinguished from the physical person of the vernacular, so 
 the group person of the lawyer must be distinguished from 
 that much wider class, the moral person of the philosopher 
 A more common designation of the group person is "juristic," 
 though this latter term is open to the objection that the 
 natural person is a juristic conception and therefore a 
 juristic person. The term, however, is very generally 
 adopted in practice and may be accepted on this ground 
 Finally, juristic persons have to be divided into two classes 
 according as the person is, or is not, a public body. The 
 State finds its true place in the complete scheme as a 
 concrete example of the last-mentioned class. Combining 
 the various principles, we arrive at the following classifica- 
 tion : — 
 
 Persons in a wide sense. 
 
 ! 
 
 I 1 
 
 Legal persons. Not legal persons, 
 
 though analogous 
 thereto. 
 
 Keal. Fictitious, e.g., 
 
 I Corporation sole. 
 
 I 1 1 1 
 
 Physical, Not physical, Physical, Not physical, 
 
 i.e., natural, i.e., juristic. e.g., slaves. i.e., group entities, 
 
 I such as a club, 
 
 I ■" ■ " j a Nonconformist 
 
 ■ Public, e.g., the Private, e.g., congregation. 
 
 State or a muni- an incorporated » partnership, 
 
 cipal corporation. company. etc. 
 
 Such a classification may leave much to be desired from 
 the point of view of logic, but it is perhaps as logical as the 
 present condition of the law will admit. 
 
EXCURSUS B 
 
 SOVEEEIGNTY 
 
 525. The student who invades that dread domain, the contro- 
 Kterature of the doctrine of sovereignty, finds himself in a versial 
 world where differences of opinion are numerous and funda- ^j ^.j^^ 
 mental. One moment he learns that sovereignty is neces- subject 
 sarily absolute, the next that it is eternally limited. Now 
 
 he is told that in the nature of things sovereignty must be 
 indivisible and inalienable; now he is confronted with 
 definite illustrations of sovereignties which have been divided 
 or abdicated. If he seeks to inquire what sovereignty is 
 based on, he is told by some that it is based on force, by 
 others on will, by others on reason. If he be so rash as to 
 ask where sovereignty resides, he is referred to persons or 
 bodies of all kinds — to a visible ruler, to governments, to 
 constitution-revising assemblies, to an electorate, to the 
 popular majority, or to the body politic. 
 
 526. He who knowingly and voluntarily enters upon a Suggested 
 region of such bewildering contradictions, may be presumed^ explana- 
 to be possessed of the doubtful blessings of an independent {^^^^ 
 mind and a will to fight-his way to conclusions which shall 
 
 be his own. He need also have a courage and a modesty 
 not less rare, a courage to brave difiCculties which have over- 
 come many a hardy adventurer who has gone before him ; a 
 modesty to profit by the lessons which the failures of others 
 may afibrd him. If he can but discover some intelligible 
 explanation of the extraordinary divergences of opinion to 
 which reference has been made, the explanation may enable 
 
 271 
 
272 SOVEREIGNTY 
 
 him to avoid at least some of the dangers that have been fata» 
 to others. Three facts may be mentioned as a contribution 
 towards such an explanation. 
 (1) Sever- 527. In the first place, as man is constituted, sovereignty 
 worth ''^ something well worth fighting about. It belongs, if not 
 fighting to the things which men hold sacred, at least to the things 
 * ■ which men hold dear. Power and, authm'ity^ over others ! 
 In the great controversies which have raged from time to 
 time round the subject, the student will find everywhere 
 reflected the despotism of the emotions over the intellect 
 \ Theories of sovereignty have been more often apologies for a 
 fcause than the expression of a disinterested love for truth. 
 Bodin, father of the modern doctrine, was supremely a defen- 
 der of the centralized monarchy which was to supersede a 
 decadent feudalism, and win for France the first place among 
 the nations of the earth. Hobbes, if not the apologist of 
 tyranny, was at least the defender of absolutism. Endowed 
 with a nature which combined moral courage with physical 
 cowardice, he was audacious in abstract speculation whilst 
 actually engaged in building a political fabric wherein the 
 individual might find a substitute for the infallibility of 
 the Pope in the infallibility of the monarch. Eousseau, ^ro- 
 pounder of a political theory which, in spite of defects and 
 inconsistencies, revealed the subtlety of a philosopher and 
 the fire of a prophet, was a passionate devotee of the Eights 
 of Man. When the gospel which he proclaimed was adopted 
 as the vindication of the Eevolution, when the Eeign of j 
 Terror succeeded to 'the despotism of princes, the way was 
 prepared for a host of reactionary theorists supremely con- 
 cerned to defend the cause of social order against an imminent 
 social anarchy. So, historically-minded jurists like Burke 
 and Savigny, repelled by the excessive emphasis which the 
 school of Eousseau had laid upon the conscious element in 
 human development, proclaimed a doctrine of society as aa 
 
SOVEREIGNTY 273 
 
 unconscious growth ; philosophical jurists like Kant, alarmed 
 lest the risings of the peoples should mean the recrudescence 
 of barbarism, preached a doctrine yrhioh denied the right of 
 popnlfir resistance and affirmed the doctrine of governmental . 
 absolutism in terms which often exceeded the professions 
 of the illustrious Bodin; and religious writers like De 
 Maistre, shocked by the apparent irreligion of the Eevolu- 
 tionaries, preached a doctrine of monarchical legitimacy 
 which was scarcely distinguishable from the despised and 
 rejected theory of the divine rights of kings. Still kter in 
 the nineteenth century, in that great Republic of the New 
 World which was officially pledged to the theory of the 
 Eevolution and the Eights of Man, the doctrine of sover- 
 eignty became the debating ground of acute and subtle 
 thinkers who sought to defend, or to deny, the rights of par- 
 ticular States in the Union. That controversy, as we all 
 know, was settled by an appeal to the sword — an appeal 
 which might have grand political results, but was unlikely 
 to contribute to the scientific elucidation of juristic or 
 political theory. 
 
 528. In the second place, sovereignty, being an attribute (2) Sorer- 
 of human association, must be subject like human associa- *ig"*y » 
 tion to the laws of developnjgpt. Generically deecribable ment. 
 
 as some kind of power or authority in some kind of political 
 community, sovereignty must necessarily change as com- 
 munities grow. Any account of it which afifects to be — 
 universalis almost certain to be misleading. Failure to recog- 
 nize this simple fact, attempts to find universal theories 
 when provisional theories alone can be at once possible and 
 useful, have resulted in a fatal divorce between doctrine and 
 reality. 
 
 529. In the third place, and the fact will be evident from (3) Sover- 
 
 what has preceded, sovereignty is not a conception of which «'g"*y * 
 , conception 
 
 the meaning is wholly confined to one department of human of several 
 
274 SOVEREIGNTY 
 
 social thought. It disturbs the serenity of the courts of justice ; it 
 sciences. gjj|;gj.g ^j^g arena of legislative debate; it is a matter of inter- 
 national diplomacy which at any moment may bring the 
 armies of the nations into savage conflict. One consequence 
 is clear. The lawyer, the political philosopher, the inter- 
 I national jurist — each of these must necessarily regard the 
 / faet of supremacy in a State from his own point of view. A 
 doctrine of that supremacy which will serve for the one, will 
 be misleading or inadequate for the others. Failure to recog- 
 nize this simple truth has added enormously to the perplexi- 
 ties of the highly controversial literature of the subject. 
 The lawyer appeals to the dicta of the statesman or the 
 diplomatist, in order to defend a position which may be valid 
 within the sphere of Politics or International Law, and yet 
 be wholly inadmissible for the purposes of the settlement of 
 judicial conflicts. On the other hand, revolutionists, while 
 going beyond the law, have often striven to prove that they 
 were keeping within it, and have affirmed a legal right of 
 resistance where none but a moral right could be pretended. 
 TheMoral. 530. The extraordinary dissidence of opinion, which might 
 drive a student to the extremities of cynicism or despair, 
 assumes a less terrible aspect when we remember that it 
 can be largely explained by other considerations than the 
 intrinsic difficulty of the subject. The labours of the student 
 of Jurisprudence will be much lighter, and incomparably 
 more fruitful,, if he will bear in mind that his purpose is 
 scientific not polemic, that his field of investigation is the 
 highly developed community not universal history, and that 
 his point of view is that of the lawyer as distinct from that 
 of the statesman, the diplomatist, or the political philoso- 
 pher. He must not be surprised, however, if he finds it not 
 always easy to observe the last of the limitations suggested. 
 If, disdaining to regard as holy writ the consecrated formulae 
 which the lawyer employs to conceal his thought, he looks 
 
SOVEREIGNTY 275 
 
 beyond such formulae to realities, he is brought at times into 
 very close relations with the social sciences generally. Partly 
 for this reason, and partly in order to illustrate the general 
 position that the poiiits of view must be carefully distin- 
 guished, I shall preface the discussion of the subject of 
 sovereignty in Jurisprudence by a brief consideration of the 
 allied subjects of sovereignty in International Law and in 
 Political Science. 
 
 I. Sovereignty in International Law 
 
 531. Discussions on the nature of sovereignty have occu- Sover- 
 pied a prominent place in the literature of International *'S"*y "• 
 Law. Such discussions approach the subject from a point of tional 
 view which is distinguishable from that adopted by writers ^"'^ Com- 
 on Jurisprudence, even when the Jurisprudence is based on l^^_ 
 the comparative study of different legal systems, I'he stu- 
 dent of International Law, like the student of Comparative 
 Law, is concerned with existing forms and institutions rather 
 than with the actualities of a remote past or the unrealized 
 ideals of some philosophic system. Both are legalists who 
 seek a doctrin e of sovereignty which will apply over a wide 
 area. But at this point important differences become ap- 
 parent. The student of Comparative Law is more especially 
 concerned with the better understanding of the Constitution 
 of his own country. He may take a wide view of political 
 societies, but he is eclectic in his study of them. If he finds 
 that his doctrine of sovereignty does not square with facts as 
 they appear in communities less developed than his own, he 
 does not necessarily modify that doctrine. The student of 
 International Law, on the other hand, must find some place 
 for such communities in his scheme. Again, the student of 
 Comparative Law is primarily interested in the internal 
 aspect of sovereignty ; the student of International Law in 
 the external aspect. One thinks of sovereignty as supremacy 
 
276 SOVEREIGNTY 
 
 over the subjects ; the other as a relation of State to State. 
 As a consequence, the student of International Law is inti- 
 mately concerned with topics which are only incidentally 
 discussed by the Comparative lawyer — e.g., the extent to 
 which the independence of a sovereign may be affected by 
 treaty obligations. Finally, the student of International 
 Law, perplexed by the variety of the material with which he 
 has to deal, is compelled to rest content with a conception of 
 sovereignty as divisible into many parts, of which hardly 
 any one is essential.^ 
 
 II. Sovereignty in Political Science 
 
 Legal V. 532. In the notes to the text of Austin, I have referred on 
 Political several occasions to the distinction between legal and poHti- 
 
 80V6r- 
 
 eignty. °^^ sovereignty. The distinction is of great importance 
 even in the elementary form in which it is generally pre- 
 sented. The lawyer is interested in the State in so far as 
 the State takes form in definite organizations recognized by 
 the law. The political philosopher, desirous of penetrating 
 more deeply into the nature of things, looks behind such 
 organizations to the powers or forces which find expression 
 in them. Both think of sovereignty as supremacy, but one 
 regards that supremacy as an attribute of some organization 
 known to the law; the other regards that supremacy as a 
 reality in the world of practical forces. 
 Political 533. Political sovereignty is practical supremacy; but 
 •over- where in a modern state like ovr own is this supremacy to 
 Great ^® found ? If we are disposed towards the legal view of 
 Britain, things, we may say that in Great Britain the House of Com- 
 mons is the political sovereign ; or, if we are somewhat less 
 legally minded, we may say that the real supremacy does 
 not rest with the House of Commons, but with the electors 
 
 * Cf. supra, sec. 295 n. 
 
SOVEREIGNTY 277 
 
 of the United Kingdom ; or again, shaking off the fetters of 
 legalism altogether, we may say that the whole community 
 is sovereign, meaning by the community either a simi of in- 
 dividuals or an organic unity. Thus, without going beyond 
 the British Constitution, we find at least four distinct types 
 of the conception of sovereignty for the purposes of political 
 science. These types may be expressed briefly as follows : — 
 
 (1) The dominating power in the government. - 
 
 (2) The electoral body. - 
 
 (3) The populat majority. 
 
 (4) The State as a moral organism. 
 
 If we were to extend our analysis to other States, some of 
 the above expressions must be made more general; some 
 new types must be added. For present purposes, the list 
 may be accepted as it stands. Each of the types to which 
 reference is made has some claim to answer to the descrip- 
 tion of the political sovereign which has been suggested by 
 Professor Dicey. " That body is politically sovereign the \ 
 will of which is ultimately obeyed by the citizens of the 
 State."! 
 
 534. The choice between the four types mentioned must sover- 
 depend upon conditions of time and circumstance. Thee>g"ty 
 theory of sovereignty must keep pace with the progress of gjesaive 
 society. The progress of society may assume at least three oonoep- 
 distinct phases — territorial expansion, the extension of politi- 
 cal power to new classes of the community, and the increase 
 in the strength of the various bonds, material, intellectual 
 and moral, which unite the citizens to one another and to 
 the State. The end of the first phase is the large political 
 aggregate; the end of the second, the democratic community; 
 the end of the third, the realization of a national life. As 
 progress in one or other of these phases absorbs the energies 
 
 ' " Law of the Constitution," 5th ed., p. 69. 
 
278 SOVEREIGNTY 
 
 of the State, the seat of sovereignty is changed. Con- 
 spicuously, progress in the form of territorial expansion is 
 apt to involve some sacrifice of the results of progress in the 
 form of advance towards organic unity ; as the social group 
 merges in the larger group, the moral honds which have 
 held men together as members of the smaller group may 
 lose much of their force without being immediately suc- 
 ceeded by moral bonds of equal strength between citizens as 
 members of the larger group. In other words, the process 
 of drilling men into larger communities is one in which 
 force is apt to play the prominent part. When it does so, 
 political sovereignty shifts from communities to a superior 
 power : it ceases to be democratic and becomes monarchic or 
 aristocratic. 
 lUustra- 535. English medieva,l history affords a partial but in- 
 
 *'°"" , structive illustration. The town of medieval England, in 
 mfidieTal i. • i i. 
 
 history, the course of its long struggle against the forces of feudalism, 
 
 realized a high degree of organic unity. Throughout a long 
 period, the practical forces which compelled the subject's 
 obedience embraced both the King, by whose aid the 
 borough community succeeded in attaining a relative inde- 
 pendence, and the borough community itself. When, on the 
 other hand, the strongly centralized State succeeded in 
 establishing itself, the need for self-assertion on the part 
 of the borough community grew less, and the spirit and 
 authority of the town life declined. The poiitical centre of 
 gravity shifted in the direction of the Monarch; and a point 
 was reached at which it might have been said with a fair 
 approach to accuracy that the King alone was political 
 sovereign. 
 And in 536. If we turn from medieval to modern history, we 
 
 modern g^^j gg^^j^ q£ ^.jjg tjjree phases of political progress in full 
 operation. Britain has become the United Kingdom : the 
 franchise has been successively extended to new classes of 
 
SOVEREIGNTY 279 
 
 the community ; and, despite the loosening of many of the 
 older social bonds, an advance has been made towards the 
 realization of a highly organic national life. Each of these 
 developments must be taken into consideration if we are to 
 determine where political sovereignty resides. That we cannot 
 stop short of the electorate will be apparent. Whether, 
 having gone so far, we ought not to take a further step and 
 regard the State itself as politically sovereign is a more 
 debatable question which may be answered differently by ' 
 different inquirers according to their estimate of the degree 
 of progress which has been made in the different forms 
 already suggested. Also, it may be added, according to the 
 particular object in view. Professor Dicey, whose definition 
 of political sovereignty has been already mentioned, rests 
 content with the electorate. But his avowed object is simply 
 to distinguish political from legal sovereignty. For the 
 purposes of political science, I believe we need to carry 
 our analysis further. 
 
 537. A suggestive contribution towards the solution of the The 
 problem under discussion has been made by T. H. Green, in *"aly»is 
 his work on " The Principles of Political Obligation." The Green, 
 essential characteristic of society, according to Green, is a_ 
 powQ Lwhich guarantees men's rights. This power, he urges, 
 does not necessarily reside in the supreme coercive power 
 known to law — -a statement illustrated by the case of States 
 under a foreign dominion which retain a national life of their 
 own ; and again, by Oriental despotisms where the nominal 
 sovereign is a mere tax-gatherer who leaves the maintenance 
 of right within the particular communities to local law 
 and custom. At this stage, however, if we are to make use 
 of Green's analysis for the purposes of developing a doctrine 
 of political sovereignty, we must be guided by the spirit 
 rather than the letter of his language. In a State like Great 
 Britain, he admits the sovereignty of the government because 
 
280 SOVEREIGNTY 
 
 the government may claim to express the general will. But 
 the circumstance that a government may claim to represent 
 the general will does not make that government the political 
 sovereign. As Green expressly states, the hahitual obedi- 
 ence of the subject in Great Britain is really determined, 
 not by the ruling power, but by the common will and reason 
 of men — a will of which the ruling power is the agent even 
 though some of its laws may be in conflict with that will* 
 Both political subjection and morality, he contends, have a 
 common source in the rational recognition by human beings 
 of a common well-being which is their well-being, and which 
 they conceive as their well-being, whether at any moment 
 any one of them is inclined to it or not, and in the embodi- 
 ment of that recognition in rules which restrain individual 
 inclination and secure a corresponding freedom of action for 
 the attainment of general well-being. Though the idea of 
 the State as serving a common interest is only partially - 
 realized among men, nevertheless, every citizen who is not a 
 member of the dangerous classes, has a clear understanding 
 of certain interests and rights which are common to himself 
 with his neighbours. Habitually and instinctively he regards 
 the claim which he makes for himself as conditional upon 
 his recognizing a like claim in others. With such a regard, 
 though he has no regard for the State under that name, 
 he has still the needful elementary conception of a common 
 good maintained by law. " We only count Eussia a state by 
 a sort of courtesy on the supposition that the power of the 
 Czar, though subject to no constitutional control, is so far 
 exercised in accordance with a recognized tradition of what 
 the public good requires as to be on the whole a sustainer 
 of rights."^ The general conclusion may be inferred that, 
 according to Green, a State worthy of the name is a moral 
 
 1 " Principles of Political ObHgation," §§ 90-4, 132-4. 
 * Ibid., §§ 100-32. 
 
SOVEREIGNTY 281 
 
 or ffanis m ; practical supremacy within it can only be at- 
 tributed to the general will. 
 
 538. Before passing from the subject of political sover- Analysis 
 eignty, I may refer to the analysis of Austin. That analysis, ° "*" 
 as we have seen, confuses political with legal sovereignty. 
 
 But of whichever of these he is thinking, he invariably looks 
 upon the sovereign as a superior person or body who imposes 
 his will on inferiors. He is accordingly classed By most 
 writers among those who base sovereignty on force. This 
 traditional view of the Austinian analysis has been attacked by 
 Professor Dewey, who alleges that the distinction between 
 the Austinian theory and that implicitly adopted by T. H. 
 Green is a distinction, not between force and general will, 
 but between will as inhering in a part of society and will as 
 existing in society as a whole} I regret not to be able to 
 agree with this acute critic. Austin's references to the 
 utilitarian ends of government, and to the popular apprecia- 
 tion of those ends, are merely incidental. They do not enter 
 into, and determine the nature of, his general theory of 
 sovereignty. That theory, for all practical purposes, accepts 
 the objec tive Jact of a sovereign will imposing itself upon 
 inferiors as an ultimate fact behind which it is unnecessary 
 to go. This detachment on Austin's part appears to me to 
 jilstify the traditional presentation of his theory as based on 
 force.' 
 
 III. Sovereignty in Jurisprudence 
 
 539. Sovereignty for the purposes of Jurisprudence, The clii> 
 sovereignty without qualifiying epithet, may be defined as^"'*"** 
 supremaoyrecogiiizedby.Jaw. But the location of this Sover- 
 supremacy, like the location of political sovereignty, has "iS"** 
 
 and 
 
 varied from time to time. In the early days of the develop- govem- 
 ment. 
 
 ' " Austin's Theory of Sovereignty" : " Political Science Quarterly," 
 • IX, 1. 37. 
 
282 SOVEREIGNTY 
 
 ment of the modern doctrine, no practical need existed for 
 distinguishing between the governments and the legally 
 supreme or unlimited authority. When, however, the 
 Puritan Eeformers of the Commonwealth were devising 
 new constitutions, they decided to impose very important 
 limitations upon their governmental assemblies. The Agree- 
 ment of the People, after prescribing the Parliamentary Con- 
 stitution, proceeds: "The power of this, and all future 
 representatives of this Nation, is inferior only to theirs 
 who chuse them, and doth extend ... to whatsoever is not 
 expressly or implyedly reserved by the represented them- 
 selves. 
 
 Which are as foUoweth, 
 
 1. That matters of Eeligion, and the wayes of God's wor- 
 ship, are not at all intrusted by us to any humane power," 
 etc., etc. We have here in germ that distinction between 
 
 I ordinary government and extraordinary government which 
 has since become the basis of most modern constitutions. 
 The distinction involves a practical dif&culty with regard to 
 the location of sovereignty. WhePL governmen t and l egal 
 absolutism are sepa ra±(^.rl, what, bBpnTn es of Bover eignty ? Some 
 writers have sought to surmount the difficulty by locating 
 sovereignty in both ordinary governments and the extra- 
 ordinary governments or constituent assemblies, regarded 
 as forming parts of an ideal whole. The solution is not 
 always satisfactory, since the constituent assemblies may be 
 absolutely superior to the ordinary governments, and en- 
 titled to amend them at will. Where this is the case, it 
 must be admitted that sovereignty and government are 
 definitely separated unless we are to throw over the concep' 
 tion of sovereignty as legal supremacy. ; 
 Sover- 540. But at this stage a further difficulty arises. To what 
 
 •ignty power ought formal supremacy to be attributed in the case of 
 
 under The ^ ^ ° , . , . . , . . 
 
 Agreement a State With a written and rigid constitution contaming no 
 
SOVEREIGNTY 2S3 
 
 provision for its amendment ? The scheme of organization of the 
 prescribed by the Agreement of the People is a concrete ^'"^^'• 
 example. In a note to the text of Austin, I remarked that 
 the question might be resolved by assuming that a power to 
 amend the constitution had been vested in the highest law- 
 making body known to law. The answer surmounts the 
 difficulty by help of a leg al fictio n. The more logical solution M. 
 would be to attribute the ^sovereignty to the State itsel f." 
 Such a sovereignty, though it cannot be immediately actualized 
 in a way recognized by law, may still serve two important 
 purposes. It may provide legal theory with a supreme source 
 from which all law and all governmental institutions shall 
 derive their authority; and it may be employed in some 
 revolutionary crisis to give a legal form to the will of a 
 revolutionary legislative assembly. 
 
 541. The possibility of the location of the sovereignty in the State- 
 State itself is implicitly recognized in all modern theories ^?^*^" 
 which state legal limitations upon the power which ranks Ruler- 
 highest in the hierarchy of State institutions. The sovereign ^f'"" 
 is the source of all law, and so cannot be limited by law ; ° 
 where a legal limitation is held to exist upon a power claim- 
 ing to be sovereign, we are compelled to infer that legal 
 theory looks beyond the pretended sovereign to the State 
 itself as true sovereign and ultimate source of law. Such an 
 inference is a fat cry from doctrines of Euler-sovereignty, but 
 may be founded on very practical considerations. Whilst 
 there are obvious objections to a State being so organized as 
 to make some things only possible by revolutionary process, 
 a State may desire that it should be so organized. The desire, 
 like other facts of the national life, may find expression in 
 legal theory. If a;power which is highest in the hierarchy of 
 State institutions passes a law, although that law is expressly 
 a rule and implicitly a declaration that its passing is within 
 the competence of the power which passes it, the tribunals 
 
284 SOVEREIGNTY 
 
 are not bound to apply the law if they feel impelled to regard 
 it as exceeding limitations imposed upon the rulers by the 
 will of the State. Austin would probably sajj that sovereignty 
 in such a case exists in a combination of the Legislature and 
 the Judicature. The contention might be urged with apparent 
 justice where the Courts are capable of being regarded aa 
 depositaries of a sort of tribuniciary veto. Where, however, 
 the Courts simply rely upon limitations expressly stated in a 
 written constitution, the view ceases to be maintainable. 
 Suggested 542. The fact that under conceivable conditions sover- 
 goalof leignty in g, state may not admit of being actualized in tha 
 theory. ' law-making institutions, ordinary or even extraordinary, has 
 a profound significance for the student of Jurisprudence. I 
 have dwelt upon it at some length for a reason which I shall 
 now proceed to state. When once the conclusion has been 
 reached that under conceivable conditions sovereignty maj 
 reside in the State itself, the more startling conclusion is 
 suggested that sooner or later the location of sovereignty in 
 the State must be accepted. as an axiom by legal theory in all 
 highly developed communities. Even where legal absolutism 
 can be attributed to some definite legislative institution, 
 sooner or later the question is certain to arise whether, after 
 all, formal supremacy can be attributed to that institution 
 save as an organ of the State. In a multitude of ways the 
 State, as owner of its territory, as invested with property and 
 the dubious blessing of a National Debt, demands legal recog- 
 nition. But if once the law recognizes the State as an entity 
 capable of rights and duties, it is almost compelled to attribute 
 , sovereignty to that entity, and to regard the supreme law- 
 -making institution as merely an actualization of a formal 
 j supremacy which in the last analysis can only be found in the 
 ' State itself. 
 Confirm- 543. The conclusion just suggested has beeti reached by 
 ation from reference to formal considerations. But a similar conclusion 
 
SOVEREIGNTY 285 
 
 is also suggested by considerations which go to the roots of facta of 
 things. As in the sphere of politics, in proportion as nations ^"^"^ 
 have come to self-consciousness, political sovereignty or 
 practical supremacy is seen to reside in the community 
 regarded as an organic totality, so also in the sphere of 
 Jurisprudence, those who seek to think things together, 
 to bring legal formulae into some relation with the actual 
 tendencies of social life, are impelled to look beyond the 
 sovereignty of Court etiquette, and beyond the sovereignty 
 of parliamentary institutions and constitution-revising as- 
 semblies, to the. iotality, of the community which King, 
 Parliament or Assembly but represent. But while in 
 politics men have sought to give expression to thoughts and 
 ideas that were clamouring for recognition in some theory of 
 Society as a. m oral ^rpram'sTTi the tendency in Jurisprudence 
 has been rather to make use of a conception which existed in 
 germ in Eoman law and was suggested by the attempts of 
 lawyers to find some expression for the phenomena of group 
 life as exhibited in the universitas personantm — the concep- 
 tion of a juristic person. The recognition and development 
 of this conception represent the most important contribution 
 to Jurisprudence which has been made in recent times. 
 
 544. The general conclusions of the present Excursus may Summary, 
 be briefly summarized. Sovereignty is a conception whose 
 meaning and incidents must vary with the particular depart- 
 ment of thought with which the student is more immediately 
 concerned. In Political Science, it may refer to the practical 
 supremacy of 
 
 (1) A^ggvernnoent ; i 
 
 (2) An electoral body ; 
 
 (3) A popular majority ; 
 
 (4) The State as a moral organism. 
 In Jurisprudence, the conception may refer to the formal 
 
 supremacy of 
 
286 SOVEREIGNTY 
 
 (1) A government ; 
 
 (2) The highest law-making body ordinary or extra- 
 ordinary ; 
 
 (3) The State as a juristic person. 
 
 545. Such a list can make no pretence to completeness, but 
 will serve for the purposes of a practical discussion. The 
 choice between the various types of theory thus grouped 
 must vary according to conditions of time and circumstance 
 So far as the Jurisprudence of our time is concerned, the 
 sovereign may be defined as the power whose authority is re- 
 garded by law as unlimited, and as the source both of all law 
 and of the authority of all law-making or governmental 
 institutions. Although the location of the sovereign varies 
 in the different legal theories of different nationalities, it 
 seems probable that the Jurisprudence of a near future will 
 recognize that the State itself is the true sovereign, and that 
 such a body as the Parliament of Great Britain should be 
 described, not as the sovereign, but as the sovereign-organ. 
 " Let us see, then," wrote Grotius, " in what subject sovereign 
 power resides. The subject in which a power resides is 
 either common or special ; as the common subject in which 
 the sight resides is the body, but the special subject is the 
 eye. And in like manner the common subject in which the 
 sovereignty resides is the State. . . . The special subject is 
 one or more persons according to the laws and customs of 
 each nation."^ The conception of legal sovereignty as in- 
 hering in a portion of the community needs then to be 
 revised by reference to the fact that such portion is but 
 an organ of the community as a whole. When we have 
 escaped from the tyranny of mere forms, and have overcome 
 the superstition that we must not regard things in their total- 
 ity, when we have learnt that, on the contrary, it is only 
 
 ^ Grotius, De Jure Belli ac Pads, Wiewell's translation, vol. I, p. 113. 
 
SOVEREIGNTY 287 
 
 when we so regard them we can hope to comprehend them, 
 we shall find some place in legal theory for ideas which 
 have already! profoundly affected less conservative branches 
 of learning. We shall not fear to think of the State as a 
 unity, a personality, a sovereign — a sovereign in whose 
 presence the visible ruler can aspire to no higher title than 
 that of sovereign-organ. The law may accept the declared 
 will of that visible ruler as conclusive of the will of the 
 Bovereign, but the fact need not prevent us from recog- 
 nizing, even as lawyers, that the visible ruler is but an 
 organ of the organized community. It has been said of a 
 great scientist that he closed the door of his laboratory 
 before he entered the door of his church. The attitude is 
 suggestive of the provisional order of things, since a theo- 
 logical theory which will not somehow square with the 
 laboratory can afford no resting-place. Similarly a lawyer 
 who leaves what he has learnt from history and science 
 behind him when he opens his Law Reports is merely post- 
 poning a difficulty. That difficulty will have to be met 
 somehow. When it has been met, legal theory will not be 
 thp less, but the more, worthy of his homage. 
 
EXCURSUS C 
 
 THi ENGLISH JUDGE AS LAW-MAKER 
 
 Purpose of 552. In the present Excursus I propose to discuss the 
 
 Excursus, questions whether, and if so, within what limits and by 
 
 what authority, judges may add to the existing law by the 
 
 indirect process of judicial decision. 
 
 I. View 553. To the question whether judges may add to the 
 
 . ? , existing law by their decisions, it might seem a sufficient 
 
 not make answer to say that a great part of our law has been 
 
 new law. developed in this way. Yet an ancient fiction to the 
 
 contrary has displayed a quite extraordinary virility, and 
 
 must be run to earth if we are ever to have a sound theory 
 
 of the judicial office. At times the fiction is openly avowed 
 
 as essential truth. It was expressed forcibly and with 
 
 approval in a comparatively recent address delivered before 
 
 the American Bar Association by a distinguished American 
 
 lawyer.^ The precise words merit quotation. "All the 
 
 knowledge which we really have of the law comes from the 
 
 judge. But how does he get at the law? Does he make 
 
 it? . . . Let us examine the process. The statute book is 
 
 first consulted, and if that speaks to the point and clearly, 
 
 all doubt vanishes. But in the great majority of cases the 
 
 statute book is silent, and what is the resort? Inquiry 
 
 is made by the judge concerning what his predecessors have 
 
 done, and if he finds that a similar state of facts has been 
 
 considered by them and the law pronounced in reference 
 
 ^ J. C. Carter, " The Ideal and the Actual in Law," American Law 
 Beview, 24, pp. 758-9. 
 
THE ENGLISH JUDGE AS LAW-MAKER 289 
 
 to it, he declares the same rule law. But in many, indeed ' 
 
 most, of the controversies brought before him, no record 
 is found of a precisely similar case, and the law is to be 
 declared for the first time. Here is the interesting and 
 crucial test of the question how the law springs into 
 existence. That the judge cannot make the law is accepted 
 from the start. That there is already existing a rule by 
 which the case must be determined is not doubted. Un- 
 questionably the functions of making and declaring the law 
 are here brought into close proximity ; but, nevertheless, the 
 distinction is not for a moment lost sight of. It is agreed that 
 the true rule must be somehow found. Judge and advocates 
 — altogether — engage in the search. Cases more or less 
 nearly approaching the one in controversy are adduced. 
 Analogies are referred to. Customs and habits of men are 
 appealed to. Principles already settled as fundamental are 
 invoked and run out to their consequences; and finally a 
 rule is deduced which is declared to be the one which the 
 existing law requires to be applied to the case." 
 
 554. To discuss all of the fallacies in which this statement Criticism: 
 abounds would be superfluous. Two, however, are peculiarly ^y>p*^°-- 
 deserving of attention. In the first place, the statement formal and 
 
 involves a confusion which has been exposed time after ™**°"*^ , 
 
 sources of 
 time, between the material and the formal sources of laws, legal mle. 
 
 between the sources from which laws have taken their 
 
 origin as rules and the sources from which laws have takea 
 
 their title to rank as rules which the State will enforce 
 
 Let us suppose for a moment that a judge always finds a 
 
 rule, in preference to making! one. Wherever he has found 
 
 it, his decision becomes a precedent for future cases. The 
 
 rule may not be new or judge-made ; often the law is both. 
 
 If the British Fleet discovers and annexes an island, the 
 
 British possession is new-made, though the island be as 
 
 ancient as the Universe. 
 
290 THE ENGLISH JUDGE AS LAW-MAKER 
 
 (2) Implies 555. Apart from the confusion of the formal and material 
 an ID nite gQuj.(.gg qJ jg^^^ ^jjg argument of Mr. Carter implies that the 
 rules of law are of infinite range. If the judge does not 
 make the law, but only declares it, it must have existed 
 before. The practical result follows that the law of our 
 time, though in great part unrevealed, provides for every 
 case that can possibly arise. The view may be logically 
 defensible where judges claim to be the oracles of a divine 
 omniscience. To us who have the disadvantage of living in 
 a more sceptical age^ it must seem the beginning of wisdom 
 to recognize, frankly and unreservedly, that law never has 
 been, and never will be, adequate to existing need. This 
 must be so under the completest code that man could 
 devise. The wisest legislator cannot foretell the future, or 
 entirely comprehend the present. " The narrow compass of 
 human wisdom," declared Bacon, "cannot take in all the 
 cases which time may discover. ... It is preposterous to 
 ' wrest statutes to omitted cases." ^ Under a system of Com- 
 
 mon Law, as distinct from Statutory Law, the pretence to 
 completeness is the more hollow. Much of the argument in 
 ' defence <Jf such completeness might be summarized as 
 follows : There is a body of principles underlying the vast 
 variety of legal rules; these principles are numerous and 
 complementary; the office of the judge, in any case not 
 provided for by express rule, is simply to apply these prin- 
 ciples ; his decision is no more than the logical consequence 
 of these principles; it illustrates without adding to them. 
 If judges were omniscient and the principles were eternal, 
 this picture of judicial activity might answer to reality. 
 But, on the one hand, judges are not omniscient ; their view 
 of a case is always more or less partial ; and the rule which 
 they apply is binding on future judges whether or not it be 
 the precise logical result of all pre-existing principle. On 
 
 » " De Augmentis," Lib. VIII., " Works," V., 90, 91. 
 
• incom- 
 petence. 
 
 THE ENGLSIH JUDGE AS LAW-MAKER 291 
 
 the other hand, the principles themselves, far from being 
 eternal, must in the very nature of things undergo at the 
 hands of both legislature and judges a progressive modifica- 
 tion and development. The contrary view is a survival of 
 the medieval conception of Natural Law as a part of the 
 law of the land — a conception which may have been 
 excusable in an age of undifferentiated knowledge, of theo- 
 logical moralities and theocratic politics, but long since 
 definitely rejected for other conceptions more in harmony 
 with the thought of our time. 
 
 556. It is interesting to consider for a moment the Ancient 
 grounds of the judicial profession of incompetence to make "^^X- 
 new law. Those grounds were objective or subjective, of judicW 
 Objectively, an open profession of the judges to apply new ■ 
 law might have brought them into conflict with the litigant ' 
 and the public. The vanquished suitor may submit with 
 resignation to what is declared to have been the law of the 
 land, when he would have stoutly rebelled against a decision 
 professedly applying new law. Humble before the long- 
 established, he might have risen in revolt against the pre- 
 tensions of the parvenu. Subjectively, on the other hand, 
 the judges have been conservative to the extent of being 
 timorous; and, in so far as they have innovated, they have 
 Bought to conceal the fact from themselves as well as from 
 the general public. There is, moreover, a moral to the story 
 of the learned judge who proposed to amend the opening 
 phrase of a judicial opinion from "Conscious as we are of 
 our infirmities" to "Conscious as we are of one another's 
 infirmities." The judges, by nature conservative, fearful lest 
 the element of certainty in judicial administration should 
 be endangered, have striven to guard against unwise innova- 
 tion by a declaration of non possumus. Lest they should 
 innovate prematurely or capriciously, they have affected as 
 a profession of faith that they cannot innovate at alL 
 
292 THE ENGLISH JUDGE AS LAW-MAKER 
 
 lUustra- 557. To explain the historical origin of a fiction is not to 
 
 bon rom jygtify it;_ J conceive that on this point we may draw an 
 
 School of instructive moral from the history of the traditional school 
 
 Interpre- qJ interpreters of the Code Napolfon. The school accepted 
 tation. 
 
 the completeness of the Written Law as a postulate. That 
 
 law of course required interpretation; the interpretation 
 might be grammatical, or it might be logical in the sense of 
 effecting a reanimation of the texts by reference to the 
 thought and inspiration of the legislative author; and in 
 extreme cases, recourse might be had to analogical extensions 
 of the text based on what the legislator might be presumed 
 to have willed had his intentions been directed to the 
 particular situation calling for judicial regulation. Beyond 
 this, nothing was necessary. The results of this narrow 
 view were, exemplified in the course of the nineteenth 
 century. The attempt to deduce from the will of {he legis- 
 lator more than the legislator had expressed, or could have 
 been reasonably supposed to have intended, involved a 
 highly ingenious logic, the development and multiplication 
 of ideal conceptions attributed somewhat disingenuously to 
 the legislator, though often enough having no other founda- 
 tion than in the thought of the interpreter. These subjective 
 products easily came to be regarded as permanent objective 
 realities. The historical sense was sacrificed to the logical. 
 The general result has been well stated by M. Boutmy. 
 "Propositions abstraites, subtiles interpr^tatioiis verbales, 
 deductions fortement enchatn^es, simplifications parfois 
 excessives, conclusions toujours cat^goriques, voilk dans 
 quelle fr^quentation de tons les instants Tintelligence 
 apprend et aime a se mouvoir. ' L'esprit du geom^trie ' au 
 sens oi I'entendait Pascal, devient sa rSgle. Elle perd 
 'l'esprit de finesse,' tout en d^pensant beaucoup de finesse 
 d'esprit. Elle acquiert, exerce, et developpe jusqu'i une 
 maitrise incontestee la faculty dialectique. Mais toute 
 
THE ENGLISH JUDGE AS LAW-MAKER 293 
 
 superiority se paie, et celle-ci est trop souvent achet^e aux 
 ddpens du sens historique."^ 
 
 558. If we turn from Prench to English soil, we find the Kotion of 
 fiction of legal adequacy present, though under differences of ^®s*^ *'^; 
 condition which have told for differences in result. From England, 
 some evils we have been saved because we are less logically 
 minded than the Trench. We are "practical," with the 
 advantages as well as the limitations which the ordinary use 
 of that much-abused term implies. Innumerable have been 
 the cases upon which judges have been called to adjudicate 
 where no existing rule of law was applicable. With those 
 cases judges have dealt differently according to time, circum- 
 stance, and idiosyncrasy, generally displaying a strong desire 
 to secure some kind of analogy to pre-existing law, but as a 
 rule too "practical" to be at the mercy of purely logical 
 considerations. It must not be supposed, however, that we 
 have escaped evil consequences. Our system of Equity has 
 had its admirers, but if Common Law judges had been more 
 enlightened, our dual system of administrators, with all the 
 disadvantages incidental to duality, would not have been 
 called for. Moreover, the evils inevitably incidental to 
 judicial law-making are greatly increased if the law-making 
 has to make some attempt to accord with the fiction that it 
 is non-existent. In the presence of such a fiction, our 
 Common Law judges have been denied a theory of the 
 persuasive sources of law. Formally acting on the assump- 
 tion that the law is complete for all our needs, they could 
 find no place for a theory of the relative value of those 
 external sources from which, as a matter of fact, rules have 
 often been drawn, e.g., the opinions of our jurists, the con- 
 eiderations of public policy, or the rules of a foreign law. 
 
 ' "Revue de ranseignement," 1889, 1°, t. XVII, p. 222. Quoted 
 Qinj, " La Mdthode d'lnterprdtation," p. 50. 
 
294 THE ENGLISH JUDGE AS LAW-MAKER 
 
 The lack of such a theory tells, not merely against scientific 
 development, but even against that certainty in adminis- 
 tration upon which we are too apt to pride ourselves. 
 Whatever way we regard the subject, we must conclude that 
 we cannot use a fiction and remain its master; that we 
 must always pay a price for the luxury of professing one 
 thing while doing another. 
 Illnatra- 559. I believe that the need for a comprehensive theory 
 '"*^ f °^ *^® persuasive sources of legal rule is illustrated by a 
 theory of recent controversy as to the exact significance of Inter- 
 
 persMsive national Law for the purposes of municipal tribunals. The 
 
 sources : 
 
 Interna- great case of B. v. ICeyn raised the question whether, sup- 
 
 tional posing International Law to have conceded to municipal 
 tribunals a jurisdiction over coastal waters, such concession 
 could be accepted by municipal tribunals as a conclusive 
 ground for exercising jurisdiction. The majority of the 
 Court decided in the negative. Cockburn, C.J., in deliveriDg 
 the judgment of the Court, asked significantly: "Can a 
 portion of that which was before high sea have been con- 
 verted into British territory without any action on the part 
 of the British Government or Legislature — by the mere 
 assertions of writers on Public Law — or even by the assent of 
 other nations ? "^ But to those students of modern society 
 who have observed how the growth of trade and commerce, 
 commerce of ideas as well as of goods, has brought nations 
 into closer and closer relations with one another, and have 
 remarked the resulting development of modern International 
 usage, it must have become obvious that judges could not 
 fulfil their proper functions in municipal life without at times 
 and places giving some sort of recognition to International 
 Law. Later judicial interpretation, at any rate, has shown 
 a tendency to revert to an older doctrine, and to hold, with 
 
 > L.R. 2 Exch. Div. 63. 
 
THE ENGLISH JUDGE AS LAW-MAKER 29B 
 
 qualifications, that International Law is a part of the law of 
 England. "The proposition that International Law is part 
 of the law of England," aflBrms a recent judgment of the 
 Court of King's Bench, " requires a word of explanation and 
 comment. It is quite true that whatever has received the 
 common consent of civilized nations must have received the 
 assent of our country ; and that to which we have assented 
 along with other nations in general, may properly be called 
 International Law, and as such will be acknowledged and 
 applied by our municipal tribunals when legitimate occasion 
 arises for those tribunals to decide questions to which doo- 
 trines of International Law may be relevant. But any 
 doctrine so invoked must be one really accepted as binding 
 between nations, and the International Law sought to be 
 appUed must, like anything else, be proved by satisfactory 
 evidence, which must show either that the particular pro- 
 position put forward has been recognized and acted upon by 
 our own country, or that it is of such a nature, and has been 
 so widely and generally accepted, that it can hardly be 
 supposed that any civilized State would repudiate it."^ 
 
 560. The judgment in the two leading cases just cited 
 appears to have created in some minds an impression of 
 irreconcilable conflict.^ Such conflict, however, ceases to 
 exist if we once recognize that a via media exists between 
 declaring International Law as such to be positive law, and 
 declaring that the Courts will never enforce it. If we once 
 recognize the truth that judges are often compelled to go 
 beyond the existing law, it is possible for us to regard 
 International Law as a code of rules which are not absolutely 
 law and yet may be made from time to time the basis 
 of judicial decision. In my opinion, neither of the cases 
 
 ' West Band Central Gold Mining Co. v. The King, 1° xciii. at p. 213, 
 [1905] 2 K.B. 391. 
 
 ' Cf. "Columbia Law Review," "VI, i. 48. 
 
296 THE ENGLISH JUDGE AS LAW-MAKER 
 
 above cited is inconsistent with the view that rules of 
 International Law, though not as such binding on our 
 municipal tribunals, must nevertheless exercise in particular 
 cases a very material influence upon the decisions of those 
 tribunals; that, like the principles of public policy, they 
 belong to the list of persuasive sources of the law, and as 
 such must exercise an increasing influence upon the develop- 
 ment of our judiciary law in general, and even upon the 
 interpretation of the Acts of our Supreme Legislature.^ 
 What 561. It is a relief to turn from discussing the origin 
 
 i" ^*° „ and disadvantages of an ancient fiction to consider more in 
 
 have really ° 
 
 done. detail how, as a matter of fact, judges act in dealing with 
 cases not governed by pre-existing rule. In the first place, 
 they do not necessarily refuse to decide the case by refer- 
 ence to the simple principle of holding for the defendant. 
 In the second place, they reveal in their judgments, not 
 merely the influence of ancient and established ideas and 
 beliefs, but also the influence of a Time Spirit, thereby giving 
 expression to rules which are new, both in the sense that 
 they have not found expression in an earlier case, and in 
 the sense that they could not have done ho. So far, however, 
 there is no claim to make new law. The function of the 
 judges being to decide disputes in accordance with law so far 
 as that may be possible, but in any case somehow — ^in short, 
 to administer justice — the mere fact that they apply a rule 
 does not of necessity make that rule a part of the law. 
 Comparatively early in English legal history, however, judges 
 elected to be bound by precedents, not with the idea of 
 magnifying the judicial office, but rather with the idea 
 of limiting the judge. The discretion of the single judge 
 
 ^ Of, however, Walker, "The Science of International Law," pp. 
 44-56 ; Holland, " International Law and Acts of Parliament," Law 
 Qiuirterly Beview, IX, 136-52 ; Westlake, " Is International Law a part 
 of the Law of England?" Lmv Quarterly Beview, XXII, 85 (January, 
 1906). 
 
THE ENGLISH JUDGE AS LAW-MAKER 297 
 
 was qualified by the necessity of deciding in harmony with 
 the decisions of predecessors. As a result of the adoption 
 of this principle, legal decisions give rise to new law. So 
 general rules, legal conceptions, and legal principles are 
 resRjhed through a long series of decisions slowly working 
 towards conclusions which at first were felt dimly or not at 
 all. ThQirolder law is vivified by the infusion of elements 
 drawn from the social life. Usage and opinion, social as- 
 piration and economic needs, react upon the older law, 
 adapting its texts, modifying their operation, developing 
 their content, restraining, amplifying, and controlling in a 
 thousand subtle and invisible ways. Even the judicial 
 decision which seems merely to illustrate pre-existing law 
 often adds to it. In purporting to apply a rule, the rule 
 itself is modified. For the rule is held to be found, not in 
 the language of the judges, but in the facts and the decision. 
 Each time a new case is tried these facts are different. 
 Each difierence of fact creates new possibilities of interpre- 
 tation. As a result, the most conservative and timid of 
 judges, however strenuously seeking to shelter himself be- 
 hind the authority of earlier decisions, is driven by a power 
 beyond his control to take his place in the ranks of the 
 makers of law ! 
 
 562. The judge, then, is a law-maker. What are the IL Limi- 
 iimits to his action in this capacity ? In the first place, ***'"" 
 judges do not make law which is directly contrary to judicial 
 Statute. The judicial interpretation of Statute in the past *"*''"'• 
 may seem to throw a doubt on this statement. As Lord 
 Hardwicke said of the historic act of legislation which 
 became the basis of modern conveyancing, " A statute made (l) Judg« 
 upon great consideration, introduced in a solemn and '*''°°* 
 pompous manner, by a strict interpretation has had no other statuta. 
 effect than to add at most three words to a conveyance." 
 Curiously enough, this was an understatement of the defeat 
 
298 THE ENGLISH JUDGE AS LAW-MAKER 
 
 of the legislative purpose. The Act not only failed to 
 achieve its purpose, but even extended the evil which it was 
 passed to prevent. The phenomenon, moreover, is not 
 entirely a matter of antiquity. High authority has declared 
 with regard to some of the rules of modern interpretation 
 that they imply " that Parliament generally changes the law 
 for the worse, and that the business of judges is to keep the 
 mischief of its interferences within the narrowest possible 
 bounds."^ Such statements might lead us to suppose that 
 the judicial deference to Statute is on a level with their 
 pretence to make no new law — a fiction serving useful 
 purposes, but to be carefully distinguished from legal theory. 
 The time for holding such a view, if it ever existed, is long 
 since past. Where the will of the legislator is clearly 
 expressed, the judge of to-day will enforce it, and will leave 
 the legislator to deal with any unpleasant consequences that 
 may follow. If the legislative purpose is ever defeated by 
 judicial interpretation, it is not because of any legislative 
 ambition on the part of judges, but because the legislative 
 purpose has been illrexpressed. It is the result of an 
 excessive deference to the letter, not of a will to control 
 the spirit. The celebrated case which finally established 
 the principle that the House of Lords is bound by its own 
 precedent is no exception to the position just laid down. 
 Although the court of final appeal will not reconsider its 
 interpretation of a previous statute, however erroneous that 
 interpretation may seem to be, the supreme legislature might 
 declare the interpretation to have been erroneous; and the 
 declaration would be accepted by all Courts as final. 
 (2) Prece- 563. In the second place, judges cannot overrule a law 
 dent and which their own practice has sanctioned. An isolated 
 iractioe precedent, with the exception of a decision of the House of 
 
 1 Sir Frederick Pollock : " Essays in Jurisprudence and Ethics," 
 p. 85. 
 
THE ENGLISH JUDGE AS LAW-MAKEK 299 
 
 Lords, may be overruled as contrary to law or reason. A 
 rule established by judicial practice cannot be so overruled. 
 Positive proof that a particular precedent had been decided 
 wrongly would avail nothing in the face of the fact that the 
 precedent had become the basis of later judicial practice. 
 Language has been employed at times which suggests that 
 the distinction between precedent and practice has ceased to 
 have any real value. " At the present day," writes Professor 
 Salmond, "judicial usage is no longer reckoned as one of the 
 sources of our law, for its operation as such has been 
 merged in precedent."^ But apart from the liability of an 
 isolated precedent to be overruled as already stated, legal 
 theory requires us to distingviish between precedent and 
 practice for at least two reasons, (a) The single precedent, 
 as an authority, is more or less of an abstraction. As an 
 authority it binds when the facts of future cases are identi- 
 cal. In reality the facts never are identical. They may 
 come within the operation of the underlying principle of 
 the given case, but that underlying principle is normally 
 based on, and implies, a number of previous decisions. We 
 are not likely to apprehend it correctly unless we know 
 the pre-existing state of the law. (6) If we inquire why 
 precedents make law, as undoubtedly they do, we must 
 look to that practice which has established and maintains 
 that validity. If the question be asked, why is precedent 
 binding in England, I think it a true and useful answer 
 to say that it is binding, because the practice of the Courts 
 has so decided. Although the distinction between judicial 
 practice and precedent is but inadequately realized in our 
 Courts, although, as our French critics teU us, we suffer 
 from " la superstition du cos," ^ nevertheless, the distinction 
 exists, and in proportion as the Law Reports increase in 
 
 ' "Jurisprudence,'' p. 139. 
 
 • Cf. Lambert, " Etudes de droit commun Mgislatif," I, 202. 
 
300 THE ENGLISH JUDGE AS LAW-MAKER 
 
 volume, it is likely to receive a more complete recogaition 
 and a more fruitful application. In proportion as this 
 recognition and application take place, our legal develop- 
 ment will advance in scientific process. The search for 
 "the case on all fours" will give way to the search for a 
 principle expressed or embodied in a series of cases. The 
 stage seems to have been reached already in some American 
 Courts, thanks, perhaps, to the thoroughly scientific treat- 
 ment of case law which has distinguished American Law 
 Schools, but thanks even more to the increasing volume of 
 reports issuing from the many co-ordinate systems of judi- 
 cature. 
 (3) statute 564. The third limitation upon the power of the judges to 
 may over- ^jiigji J ^gji jq draw attention is implied in preceding limi- 
 
 rule pre- x x o 
 
 cedent. tations, but deserves separate statement. No product of 
 judicial precedent or practice is good as against a subsequent 
 statute overruling it. It is, indeed, a part of the duty of 
 the Legislature to watch the development of the law which 
 takes place at the hands of the judges, and if need arise, to 
 restrain or accelerate its movement. The duty is inade- 
 quately realized and perfunctorily performed, but has re- 
 ceived from time to time dramatic expression. 
 III. Source 565. The consideration of the foregoing limitations upon 
 ° tho^it* *^® capacity of the judge as law-maker should enable us to 
 answer the question to which I shall now proceed. Whence 
 does judicial practice derive its authority to turn precedent 
 into law? Two answers to this question at once suggest 
 themselves. We may say that the judicature acts as repre- 
 sentative of the community, or that it acts as the delegate 
 or agent of the organized Sovereign Power. The former 
 answer is made by Mr. Bryce. " If we are to have a theory 
 of the position of the magistrate or judge ... we must call 
 him the recognized and permanent organ through which the 
 mind of the people expresses itself in shaping that part of 
 
THE ENGLISH JUDGE AS LAW-MAKER 301 
 
 the law which the State Power does not formally enact." ^ 
 The statement expresses an important and familiar fact. 
 The judges, as part of the governmental machinery of the 
 country, are, to a large extent, creatures of their time and 
 place, animated by the time-spirit, subject to the prejudices 
 and passions, endowed with the ideas, the hopes, and fears of 
 their day and generation. In devising rules through the 
 means of precedent, they give effect to principles which are 
 a part of the social atmosphere around them. In a deep 
 sense they are servants of the community. 
 
 566. If, however, we are to formulate a theory of the The legal 
 judicial office which will satisfy English Law, we must not ™*°''y- 
 stop short at this point. To do so implies a confusion 
 similar to that between legal and political sovereignty. 
 Judicial authority has a formal as well as a material source, 
 
 and the distinction is one of great importance so far as 
 English Law is concerned. In a Federal State in which no 
 machinery was provided for amending the constitution, a 
 different conclusion might be possible. The authority of the 
 Courts as interpreters of the constitution would be absolute. 
 I conceive, however, that the matter is quite otherwise in a 
 Federal constitution where an organization of the sovereign 
 power is provided behind the governments. Still more is this 
 the case under a unitary system such as that which exists in 
 Great Britain. 
 
 567. Little doubt seems possible on this subject if we Theory 
 regard in their totality the relevant facts of the existing J"^*^*^ 
 British Constitution. As we have already seen, the judges 
 
 can and do make law, but only in strict subordination to 
 Parliament, which may set at naught their judgments and 
 repeal the law which they have established. This subordina- 
 tion is not a legal fiction, but a reality sufficiently attested by 
 
 " Essays in History and Jurisprudence," p. 272. 
 
302 THE ENGLISH JUDGE AS LAW-MAKER 
 
 experience. When any decision of the judges or principle 
 estabhshed by them is seriously distasteful to Parliament, 
 action will be taken to reverse the decision or to annul the 
 principle. Moreover, the judges themselves may be dismissed 
 by Parliament, and their tenure and authority may be regu- 
 lated by Parliament. An Act which should expressly recog- 
 nize and sanction the limited power of law-making at present 
 assumed by the judges could scarcely be regarded as anything 
 more than sanctioning expressly what is already sanctioned 
 implicitly. Finally, the rule which the judges lay down is 
 enforced, not by might of their own, nor by the might of the 
 unorganized community, but by the might of the sovereign 
 power. If these circumstances be regarded in their totaHty, 
 it seems impossible to impugn the statement of the judicial 
 office expressed by Willis, J., " We sit here as the servants 
 of the Queen and Legislature." ^ 
 
 568. In a previous Excursus, I have stated that legal theory 
 in England might come to recognize the claims of the State 
 as a personality in which in the last analysis sovereignty 
 must! be held to reside. Even were this step taken, the 
 British Parliament would still be the authoritative organiza- 
 tion of that sovereignty ; the Courts would still be subordinate 
 to that organization and derive their authority immediately 
 from it, if mediately from the community at large. 
 
 ' Lee V. Bude and Torrington RaiVwa/y Co., 1871, L.R. 6 C.P. at 
 p. 582. Quoted Pollock, " First Book of Jurisprudence," p. 255. 
 
EXCURSUS D 
 CUSTOMARY LAW IN MODERN ENGLAND 
 
 569. The nature of customary law has been for ages one 
 of the most controversial subjects of Jurisprudence. As 
 in the case of sovereignty, other explanations of the fact of 
 controversy than the intrinsic difficulty of the subject may 
 be easily suggested. Three deserve a brief mention: the 
 eternal mobility of fact, the despotism of ulterior purpose, 
 and the confusion of legal theory with legal fiction. 
 
 570. The ever-changing nature of the material with which The 
 the student in the social sciences has to deal makes all his ^'^["f.!. 
 
 mobility 
 generalization provisional Each decade adds its contribution of fact. 
 
 to the raw material ; and each generation, however sensible 
 it may be of its indebtedness to the past, lies under the 
 eternal necessity to give its own account of things or rest a 
 defaulter. The garment which was devised for the ancestor, 
 however cunningly shaped, will never quite fit the heir, and 
 may at times be indeed ludicrous. The part of custom in 
 the social life is no exception to the rule. A theory about it 
 which has become established, ought probably to be obsolete. 
 The most superficial examination of its history will convince 
 us that its importance and authority have varied indefinitely 
 from age to age. There have been periods when it is para- 
 mount; periods when it seems a mere fiction to conceal a 
 judicial activity ; periods when it is reverenced and periods 
 when it is denied. Needless to add, similar divergences 
 exist with regard to different countries. He would be a 
 rash student who should contend that the refusal of French 
 
 303 
 
304 CUSTOMARY LAW IN MODERN ENGLAND 
 
 jurists to admit the law-creative power of ' custom in modern 
 France, is a valid proof for jurists who have to deal with a 
 non-codified system of law. Eesearches in Comparative Law 
 and Comparative Legal History have accordingly a varying 
 value according to the particular point of view. The value 
 is only persuasive for English lawyers who are anxious for 
 a theory which will fit precisely the facts of modern English 
 Law. In the present inquiry, only the more modest and 
 more practical object is pursued. The task of constructing 
 a universal theory of customary law which shall relate to the 
 past as well as to the present, to uncivilized and civilized, to 
 Hindu, Celt, Teuton and Eoman, I leave to the philospher of 
 legal history who shall have the courage to venture upon the 
 undertaking. 
 The 571. Accounts of customary law have been written, leas 
 
 despotism Qfjgji ^q represent actualities, than to promote an ulterior 
 purpose, purpose — to justify a political or constitutional policy, to 
 secure the triumph of Eoman Law at the expense of local 
 laws, to justify or deny the validity of judicial legislation, or 
 to support some a priori theory of the nature of law in 
 general. As a result, that which may have purported to be 
 scientific has been polemic. It is not surprising that a theory 
 which in its time has played so many parts should present 
 strange metamorphoses not to be explained by any variations 
 in the raw material. Canonists and post glossators wrangled 
 about the nature of the mental element in the conception of 
 custom, opinio necessitatis, more concerned to secure the 
 sanction of classic texts than to represent the real facts of 
 medieval life, and apt to find a solution of their difficulties 
 in various interpretations of a tacit consent of the populace 
 regarded atomistically in accordance with classic models.^ 
 So too, if we turn from the mental to the material element 
 
 ' Of. the historical sketch by M. Lambert, " Etudes de droit commun 
 le'gislatif," pp. 111-73. 
 
CUSTOMARY LAW IN MODERN ENGLAND 305 
 
 in custom, we find equally important divergences of opinion 
 which are often inspired by merely a priori conceptions. 
 The school of Savigny and Puchta, under the speU of an 
 excessive subjectivism, was almost prepared to dispense 
 with its existence. 
 
 572. Juristic controversies, moreover, have been darkened The 
 by a confusion between legal theory and fiction. What is °°°''"\°" 
 dignified as legal theory is often no better than a transparent theory 
 fiction, or at best a blending of both, or a transition from '"*^ '*8»l 
 
 fiction, 
 
 one to the other. When first expressed, the theory was 
 perhaps a true representation of the facts with which 
 lawyers as such were concerned. Time has changed those 
 facts, but the theory remains. The distinction under con- 
 sideration must not be confused with that between Constitu- 
 tional Law and Convention. With the last-mentioned 
 subject the lawyer is not directly concerned. The distinction 
 is that between the rational and the merely nominal version 
 of legal facts. Two familiar instances may be quoted in 
 illustration. It is sometimes said to be legal theory that 
 English statutes are made by the King with the assent of 
 the Lords and Commons. In reality, they are made by Par- 
 liament with the assent of the King. The older theory is 
 interesting as an explanation of the origin of certain con- 
 stitutional forms, but it has long since ceased to answer to 
 actualities. Again, it is often said that English judges only 
 apply pre-existing law. In point of fact, they often intro- 
 duce new rules which have no foundation in either pre- 
 existing law or custom. Yet the older theory on the subject 
 survives, and even when its fictitious character is admitted, it 
 is apt to reassert itself in some form or other. Lest such 
 dangers should prove imaginary, I will quote what appears 
 to me to be an example in a recently published work of no 
 less distinguished a scholar than Mr. Bryce. The learned 
 author, while admitting the reality of judicial law-making, 
 
! 306 CUSTOMARY LAW IN MODERN ENGLAND 
 
 proceeds to refute the view that such law-making may be 
 regarded as effected in futherance of a sovereign delegation. 
 "The theory of the English Law and Constitution has re- 
 mained, in these points, substantially unchanged. That theory 
 is that the judges of the Common Law Courts are nothing 
 zaore and nothing less than the officers who expound and 
 apply the Common Law, a body of usages held to be known 
 to the people, and by which the people live."^ We cannot 
 suppose that Mr. Bryce is ignorant of the fact that judges 
 make law, since he expressly admits it, He denies, how- 
 ever, that they make law as delegates of the sovereign 
 power, and his reason for this is a legal theory which, by his 
 own initial statement, is a fiction. It is difficult to see how 
 one can uphold the view that judges make law, and then 
 call in evidence the theory that they make no law but only 
 declare custom, as a proof of the authority by which they 
 act. Similar examples from the works of less distinguished 
 authors might be added indefinitely. A sound legal theory 
 should represent those realities of which so-called legal 
 theory is frequently very deceptive evidence. 
 Judicial v. 573, The moral of the foregoing considerations may be 
 
 popular briefly stated. A sound theory of customary law must be 
 custom. •' J J 
 
 based on the. existing facts, and not upon any a priori con- 
 ception of the nature of law in general, or upon any of the 
 many fictions which mask as legal theories. As regards 
 English Law, certain of these basic facts are quite clear. 
 Before proceeding to their statement, however, we must 
 carefully distinguish between two kinds of custom which are 
 often confused. There is the custom of the people or a class ; 
 there is the custom of the Courts. The distinction is fre- 
 quently overlooked, and statements are made in regard to 
 custom as embracing both kinds which really hold only with 
 
 ' Essays in History and Jurisprudence," II, p. 270. 
 
CUSTOMARY LAW IN MODERN ENGLAND 307 
 
 regard to one. Both may be ultimately embraced in a single 
 theory. At the outset it is imperative to distinguish between 
 them. I propose accordingly to dwell at some length on 
 custom in the sense of popular usage. 
 
 574. The first and most obvious of the facts with regard (i) Popu- 
 to popular custom relates to its character as an important ^ gonrce of 
 source of legal rules in time past. A very large part of the law in tha 
 English Common Law, from whatever power it may have ^*° ' 
 gained its authority as law, has been developed as rule by 
 
 the processes of popular observance, 
 
 575. A second fact is that custom remains, and must con- (2) still a 
 tinue to remain, a source of legal rules. So long as a people H^'^" " 
 is progressive, the need for new regulation will be felt by 
 
 each generation. Inevitably the official agencies for meeting 
 that need will be imperfect. So long as they are imperfect, 
 the generations will be compelled to work out their own 
 salvation, whether under the influence of an irresistible 
 juridic sentiment, or in the consciousness of a purposeful 
 adaptation to new conditions. Statutes and judicial decisions 
 in particular cases may anticipate the process, or may give 
 to it a formal sanction. The process goes on eternally in 
 obedience to a law which is higher than judge or legislator, 
 and is founded in the very nature of man. " Usage adopted 
 by the Courts," said Cockburn, C.J., delivering a judgment 
 of the Court, " having been thus the origin of the whole of 
 the so-called Law Merchant as to negotiable securities, what 
 is there to prevent our acting upon the principle acted upon 
 by our predecessors, and followed in the precedents they have 
 left to us ? Why is it to be said that a new usage which has 
 sprang up under altered circumstances is to be less admissible 
 than the usages of past times ? Why is the door to be now 
 shut to the admission and adoption of usage in a matter 
 altogether of cognate character, as though the law had been 
 
308 CUSTOMARY LAW IN MODERN ENGLAND 
 
 finally stereotyped and settled by some positive and per- 
 emptory enactment ? " ^ 
 (3) may 576. That custom is often posterior to judicial decision is 
 on iudioial ^oot^^r fact about which no difference of opinion is possible, 
 decision. Under the pretence of declaring custom, judges frequently 
 give rise to it. The phenomenon is ancient as well as modern. 
 " Above all local customs," declare Pollock and Maitland, in 
 speaking of justice under the Norman kings, "rose the 
 custom of the King's Court. The jurisprudence of this 
 court, if one may use so grand a phrase, was of necessity a 
 flexible, occasional jurisprudence, dealing with an unprece- 
 dented state of affairs, meeting new facts by new expedients, 
 wavering as wavered the balance of power between the king 
 and his barons, capable of receiving impressions from with- 
 out, influenced by the growth of Canon Law, influenced 
 perhaps by Lombard learning, modern in the midst of antique 
 surroundings. ... It was not a jurisprudence that had 
 been transplanted from Normandy, but it had been developed 
 by a Court composed of Frenchmen to meet cases in which 
 Frenchmen were concerned. . . . The future was to make 
 the jurisprudence of the King's Court by far the most im- 
 portant element in the law of England." ^ 
 
 577. The facts of medieval history thus suggest the evolu- 
 tion of legal rules through judicial decisions based on equity 
 rather than law, but tending to harden into a judicial usage, 
 and thereby to create or to shape popular usage. In speak- 
 ing of the age of Bracton, the learned authors just quoted 
 remark: "Even the knights who were employed to take 
 assizes in their shires, though they had read no law, would 
 believe that they knew the law and custom applicable to the 
 cases that came before them. Every man who does his duty 
 
 ' Good-win v. Robarts (1875) L.R. 10 Exch. 337, 352. 
 2 ' History of English Law," I, 85, 86. 
 
CUSTOMARY LAW IN MODERN ENGLAND 309 
 
 knows a great deal of law and custom ; the difficulty is to 
 persuade him that he does not know everything." ^ 
 
 578. So far we have not had occasion to enter the region (4) When 
 of controversy. At the present point, however, two very de- ™ 
 batable questions call for consideration. When does custom become 
 become positive law ? Whence does custom derive its author- ^'^ ' 
 ity to rank as positive law ? I propose to discuss the first of 
 these questions in some detail. At the outset we must dis- 
 tinguish between several classes. There are customs which 
 the people observe, in relation, for example, to such matters 
 as the details of manner and costume, which are not law and 
 in all probability never will become law. There are customs 
 which, though they may hereafter satisfy certain tests which 
 judges have affirmed, do not satisfy these tests at the 
 present time. These are not now laws, though they may 
 become so. Again, there are customs which have been 
 definitely adopted by the judges. These are undoubtedly a 
 part of the law of the land. "When a general usage has 
 been judicially ascertained and established," said Lord 
 Campbell, " it becomes a part of the Law Merchant, which 
 courts of justice are bound to know and recognize." ^ Lastly, 
 there are customs which, though they have not been 
 definitely adopted by the judges, nevertheless appear to 
 satisfy the judicial tests. The precise legal character of 
 these is a matter about which different opinions are enter- 
 tained by different writers. 
 I 579. According to the more popular doctrine, customs Argu- 
 may be laws, and not infrequently are laws, even before their ™*"^y[°of 
 adoption by the Courts. The arguments by which thistr»di- 
 doctrine is supported deserve careful attention. We are told *"•"*' 
 that it corresponds with the language of the judges, and that stated and 
 it is implied in the retrospective operation given by judges examined. 
 
 > " History of English Law," I, 163. 
 
 » Brandao v. Barnett (1846) 12 01. and F. at p. 805. 
 
310 CUSTOMARY LAW IN MODERN ENGLAND 
 
 {a) The 
 language 
 of the 
 judges. 
 
 to customs of which they approve. "We are told also that 
 customs are laws because the judges are hownd to enforce 
 them. 
 
 580. The argument from the language of the judges is 
 open to suspicion. What judges do, and what they profess 
 to do, are not always the same, and the latter is only 
 evidence of the former — often very misleading evidence. 
 In particular, the judicial theory Of customary law seems 
 to have been elaborated with the object of concealing facts 
 rather than representing them. It has been, not a scientific 
 analysis of custom, but a fiction to serve useful purposes. 
 The judge, like the priest, has legislated; but whilst the 
 latter has attributed his activities to a Supernatural origin, 
 the former has been content to throw the weight of responsi- 
 bility upon the mundane shoulders of the community at 
 large. Sometimes enforcing custom, sometimes creating 
 custom, judges have found the formula of immemorial 
 usage a convenient cloak beneath which they might per- 
 form no end of tricks to dazzle the credulous. In particular, 
 we in this later day cannot too much admire the ingenuity 
 with which judges in a past age have made royal justice 
 prevail under the pretence of declaring popular usage, in 
 reality deposing usage in the name of usage. Yet, if we 
 would substitute rational theory for ancient and once service- 
 able fiction, we must recognize that judges have made laws, 
 and continue to make laws, and that in consequence the 
 language of the judges in relation to such subjects as the 
 true nature of custom must be regarded with considerable 
 suspicion. Like the evidence of a discredited witness, it 
 -may be true, but we are not entitled to assume its truth in 
 the absence of more convincing testimony. 
 
 581. The argument which is based upon the retrospective 
 operation of the judicial adoption of custom deserves a 
 
 of the more serious attention. It is supported by no less an 
 
 (») The 
 letrospec 
 tive nature 
 
CUSTOMARY LAW IN MODERN ENGLAND 311 
 
 authority than Professor Holland. "To such customs as judicial 
 come up to a certain standard of general reception and use- *^"P*"*" 
 
 " -^ of custom. 
 
 fulness the Courts give operation, not merely prospectively 
 from the date of such recognition, hut also retrospectively ; 
 so far implying that the custom was law before it received 
 the stamp of judicial authentication. The contrary view, 
 supported by Austin, is at variance with fact."^ The 
 language suggests that the retrospective operation of the 
 judicial adoption of a custom is a 'proof that the custom is 
 already law. Such a view, however, would compel us to 
 hold that rules of law which have been founded on principles 
 of public policy and adopted in judicial decision were law 
 before so adopted. The rules of law relating to undue in- 
 fluence, to take a familiar illustration, have been developed 
 by the judges and applied retrospectively. They were not 
 laws, however, prior to such adoption. That laws should not 
 be made to bind retrospectively is a rule of expediency, not 
 an a priori necessity. It is a rule, moreover, which applies 
 with greater force to the judicial applications of public 
 policy than to the judicial adoption of popular custom, since 
 people are more to be blamed for violating a rule with which 
 they have been acquainted in the form of a popular usage, 
 than for violating a rule which perhaps represents no more 
 than the judicial perception of the expedient. In short, we 
 have to reckon with the fact that the State is a very im- 
 perfect institution. It cannot foresee all possible con- 
 tingencies, or determine in advance how far general rules 
 of law should be modified on particular occasions or in 
 particular localities. Its chief function is the maintenance 
 of some kind of order, and in the fulfilment of this function 
 its organs employ devices which are at once seriously objec- 
 tionable and imperatively necessary. 
 
 1 " Jurisprudence," 9th ed., p. 57. 
 
312 CUSTOMARY LAW IN MODERN ENGLAND 
 
 JTistioe 582. It is a fact upon the importance of which too much 
 
 J^^*'"*''*" emphasis cannot he laid that the justice which it is the 
 function of the Courts to administer is wider than law. In 
 a world where all things were ideal, the judge would have 
 no more to do than to ascertain the facts and apply to them 
 the rule of law. In the world in which we live, there is 
 often no precise rule to apply to the group of facts which 
 demand adjudication, either because the occasion has been 
 wholly unanticipated, or else because the matter of dispute 
 falls within the scope of some legal rule, which is so general 
 in its character as to leave considerable latitude in its appli- 
 cation. In either case the precise rule which the judge 
 applies is not necessarily law before such application. It 
 may be added that it does not necessarily become law by 
 such application. For although judges are constantly adding 
 to the specific rules of law, working out in concrete and 
 definite form standards of duty implied in the judicial con- 
 ception of reasonableness, the process is carried on with 
 very considerable caution, and subject to the judicial con- 
 i sciousness that in a world where possible combinations of 
 
 fact are infinite, the proper elaboration of legal rules can 
 never be carried to an extent which shall leave no discretion 
 in the application. As Sir William Markby writes, " There 
 are many rules made use of in English courts of justice 
 which hover upon the borders of law, and we are hardly 
 able to say whether they are legal rules or not. . . . There 
 was at one time a struggle to establish a rule of law as to 
 whether it was a breach of duty for the servants of a rail- 
 way company to call out the name of a station before ^ 
 train had reached the platform : for a time it seemed likely 
 to be recognized that this was a matter of law, but it is now 
 settled that each tribunal must determine in each case what 
 is reasonable. ... To say that a standard is to be applied 
 by the jury is the same thing as to say that th^ standard is 
 
CUSTOMARY LAW IN MODERN ENGLAND 313 
 
 not a legal one. But the non-legal standard is also applied 
 in courts when there is no jury, and the nature of the 
 standard does not depend upon the person who applies it."^ 
 
 583. Finally, it is often asserted that judges are absolutely (c) Argn- 
 btnmd to decide in accordance with custom. If the assertion ""^ " 
 
 customs 
 be true, the question is decided once and for all. The ground are laws 
 
 of the assertion is the reality of the deference which judges 1^^°*"=^ 
 
 have undoubtedly displayed towards some customs. But bound to 
 
 this deference is quite consistent with the view that custom ^fo^o* 
 
 them. 
 
 is a persuasive rather than an absolutely binding source of 
 legal rule. Among the many historical sources from which 
 judges draw rult3 for application to particular cases, there 
 are many differences of kind and of degree. If we are 
 comparing two such historical sources as a statute of the 
 realm and the Code Napoleon, the difference is one of kind. 
 If, on the other hand, the historical sources under comparison 
 be a modem text-book of high repute and the Digest of 
 Justinian, the difference is one of degree. According to the 
 English theory of precedents, the proposition necessarily 
 involved in a decision needs to be distinguished, not merely 
 from the obiter dicta, but even from the judicial declaration 
 of the grounds of the decision. The theory involves the 
 recognition of three historical sources of which one is bind- 
 ing and two are persuasive, but of very different degrees of 
 authority. "The practice of conveyancers amounts to a 
 very considerable authority," declared Lord Eldon.^ The 
 judgments of the Privy Council, sitting as a Court of Appeal 
 from the colonies, undoubtedly exercise a strong influence 
 upon English courts in general. When it is once clearly 
 reahzed that a much greater judicial deference to one 
 historical source than to another does not imply of necessity 
 a difference of kind, when it is once seen that there are 
 
 ' " Elements of Law,'' pp. 19, 20, and note. 
 » Smith V. Earl Jersey (1825), 3 Bligh 444 
 
314 CUSTOMARY LAW IN MODERN ENGLAND 
 
 sources of every degree of persuasiveness, sources which no 
 
 judge dare overlook, and sources whose authority is so 
 
 slight as to leave judicial discretion unfettered, we shall he 
 
 better prepared to consider whether custom in modem 
 
 English Law is an absolutely binding source of law or only 
 
 one of the highest of the persuasive sources. 
 
 Customs 584. The first of the arguments which seem to favour the 
 
 as a per- yjg^ jj^g^^ custom is not law until it has been judicially 
 
 source of adopted, is associated with the fact that courts never 
 
 ^^- enforce custom as such, but only enforce custom as satisfying 
 
 (o) Courts 'J J 6 
 
 do not certain tests which the courts themselves have imposed. If 
 enforce ^g ^re to make of any custom a rule of law before adoption, 
 merely as ^® must argue that the judge is as helpless to amend or 
 grioh. reject it as he would be to act in either of these ways to- 
 wards precedent. It becomes, then, important to examine 
 the tests which are alleged as differentiating customary law 
 from mere usage. 
 Nature of 585. What, then, are the tests ? To answer the question 
 
 the tests of ^g need to distinguish between three kinds of customs: (1) 
 
 customs — , 
 
 Different General customs, i.e. those which, though they may apply 
 
 customs to particular classes of the community, are not limited to par- 
 
 guished. ticular localities; (2) Particular customs, i.e. those which 
 
 are so limited; (3) Customs which are deferred to, not as 
 
 binding rules of conduct, but as affording an explanation or 
 
 interpretation of some agreement ; e.g. to show that in the 
 
 lease of a rabbit warren the word thousand meant in that 
 
 particular part of the country twelve hundred. Such customs 
 
 are ordinarily usages of a particular trade or district, with 
 
 whose existence the contracting parties must be assumed 
 
 to have been acquainted. They are not subject to ordinary 
 
 rules for testing the validity of customs, and do not concern 
 
 us here. With respect to the first two classes, we can 
 
 scarcely do better than refer to certain learned authors who 
 
 expound the more popular doctrine. 
 
CUSTOMARY LAW IN MODERN ENGLAND 315 
 
 586. Sir Frederick Pollock states the general conditions statameut 
 required for the validity of particular ctistom as follows : v ^"^' 
 
 1. The custom must be reasonable, that is, it must not be 
 repugnant to any fundamental principle of justice or law. 
 " A custom is void which purports to enable an officer of a 
 corporation to give a conclusive certificate in a matter in 
 which the corporation is interested." ^ 
 
 2. The custom must have a reasonable commencement. 
 
 3. It must be certain. 
 
 4. It must be ancient. 
 
 5. It must be continuous, and must be regarded by the 
 persons concerned as a binding rule, not as a matter of in- 
 dividual choice.^ 
 
 587. Professor Salmond, after observing that a custom, in Profesior 
 order to be valid as a source of law, must conform to cer- * "" 
 tain requirements laid down by law, proceeds to state that 
 
 the chief of these are as follows : 
 
 1. The custom must be reasonable. "The authority of 
 usage is not absolute, but conditional on a certain measure 
 of conformity with justice and public utility." 
 
 2. The custom must be accompanied by the intellectual 
 element, opinio necessitatis, "the conviction on the part of 
 those who use a custom that it is obligatory, and not merely 
 optional." 
 
 3. It must be consistent with statute law. 
 
 4. It must have existed from time immemorial. But this 
 is applicable to particular customs only. " If he who dis- 
 putes its validity can prove its non-existence at any time 
 between the present day and the twelfth century, it will not 
 receive legal recognition." 
 
 5. It must be consistent with the common law. This is 
 applicable only to recent custom. " Modern custom possesses 
 
 ' Day V. Samdge (1614) Hobart 85. 
 
 * "First Book of Jurisprudence" (1896) pp. 264-6. 
 
Commen- 
 taries. 
 
 316 CUSTOMARY LAW IN MODEEN ENGLAND 
 
 constitutive, but no abrogative power. . . . Immemorial 
 custom, on the other hand, can destroy as well as create, so 
 far as the common law is concerned." ^ 
 Stephen's 588.' The fourteenth edition of Stephen's Commentaries 
 (1903) contains the following account of general and par- 
 ticular customs : 
 
 I. General customs. "These form the Common Law in 
 its stricter signification. . . . But here a very natural, 
 and very material, question arises. How are these general 
 customs or maxims to be known, and by whom is their 
 validity to be determined? The answer is, by the judges of 
 the several courts of justice. They are the depositaries of the 
 laws; the living oracles, who in all cases of doubt must 
 decide according to the law of the land. Their knowledge 
 of that law is derived from experience and study, from the 
 'viginti annorum lucuhrationss ' which Fortescue mentions, 
 and from being long personally accustomed to the judicial 
 decisions of their predecessors. And indeed, these judicial 
 decisions are the most authoritative evidence of the existence 
 of the common law. . . . And thus much for the first 
 ground and chief corner stone of the laws of England, which 
 is general immemorial, custom, or common law, from time 
 to time declared in the decisions of the courts." 
 
 II. Particular customs. "The second branch of the un- 
 written law of England consists of particular (or special) 
 customs affecting only the inhabitants of particular districts ; 
 and a custom of this kind it is usual to designate by the 
 word custom simply, to distinguish it from the common 
 law, or the general customs already spoken of. . . . The 
 Law Merchant is not local, nor is its obligation confined to 
 any particular district. Hence it cannot with propriety be 
 considered as a special custom. The usages of particular 
 
 1 "Jurisprudence" (1902), pp. 140-9. 
 
CUSTOMARY LAW IN MODERN ENGLAND 317 
 
 trades, where not restrained to some particular locality, must 
 also be excluded, and for the same reason, from the technical 
 name of customs. For, if there be any such usage of im- 
 memorial observance, authenticated by judicial decisions, it 
 will form, according to our definition, part of the general 
 law of England. If there be any sanctioned by Act of 
 Parliament, it will constitute part of statute law. But for 
 the rest, the want of any peculiar locality determines these 
 usages to be no customs, and they are consequently no rules 
 of law at all. . . . The rules relating to particular customs 
 regard rather the proof of their existence, their validity, 
 and their usual method of allowance when proved. First, 
 as to proof. As to gavelkind and Borough-English, the law 
 takes particular notice of them. . . . All other special 
 customs must be expressly pleaded, and their existence must 
 be shown, not merely that the thing in dispute is within the 
 custom alleged. . . . When a custom is actually proved to 
 exist, the next inquiry is into the validity of it. To make 
 a custom good the following are necessary." The custom 
 must be : 
 
 1. Immemorial. 
 
 2. Continuous. 
 
 3. Undisputed. 
 
 4. Eeasonable. 
 
 5. Pertain. 
 
 6. Obligatory. 
 
 7. Consistent with other custom. 
 
 " Next as to the allowance of special customs. N"o custom 
 can of course prevail against the express provisions of an Act 
 of Parliament. But, apart from this restriction, a custom, 
 being in derogation of the general law, must be construed 
 strictly. . . . But though customs must be strictly, yet 
 they need not in every case be literally, construed."^ 
 
 Stephen's Commentaries (1903), pp. 20-30. 
 
318 CUSTOMARY LAW IN MODERN ENGLAND 
 
 Mr. Greer. 589. With the above accounts of custom it may be in- 
 teresting to add the following statement from an article by 
 Mr. F. A. Greer, on Custom in the Common Law : " It was 
 in reference to 'particular customs' that the well-known 
 tests of the validity of custom were laid down. It was said 
 that the validity of a custom depended on its being (1) 
 certain and unambiguous, (2) reasonable, (3) on its having 
 existed from time immemorial. And it was further added 
 that it should not ' exalt itself ' upon the prerogative of the 
 "king: Nullum tempus occurrit Regi. . . . The first condition, 
 certainty, is indeed applicable to all cases where custom is 
 suggested as the basis of rights. But it is not properly a 
 condition at all. It merely amounts to the obvious proposi- 
 tion that a custom is a different thing from a variable prac- 
 tice. . . . Both the second and third conditions are properly 
 applicable only to particular or local customs. They were 
 used by courts of law as a means of checking the indefinite 
 growth of local customs."^ 
 The fore- 590. A comparison of the foregoing accounts suggests 
 stated several interesting facts. As regards general customs, for 
 ments example, it is affirmed by Professor Salmond that they must 
 compare . j^g reasonable, obligatory, in conformity with statute law 
 and, unless immemorial, in conformity with common law. 
 On the other hand, Mr. Greer repudiates such tests as 
 reasonableness and antiquity, whilst in Stephen's Commen- 
 taries all legal validity is denied to the custom iintil it has 
 been " authenticated by judicial decisions." In other words, 
 one of these authors holds some general customs to be law, 
 another seems to be disposed to hold all general customs to 
 be law, whilst a third will admit no general custom to be 
 law except as judicially sanctioned. With regard to parti- 
 cular customs, we find a nearer approach to unanimity, at 
 
 1 "Law Quarterly Review," IX, 156, 157. 
 
CUSTOMARY LAW IN MODERN ENGLAND 319 
 
 least to the extent of an agreement that some particular 
 customs are laws before being judicially adopted. But im- 
 mediately we turn to inquire which particular customs, 
 unanimity is at an end. One writer proposes five tests, 
 another four, a third eight, and a fourth three. Although 
 the divergences are in reality less serious than this merely 
 numerical test might seem to imply, their very existence 
 is suggestive. It impels ns to ask whether, in a more 
 rational view of the tests of the validity of customs, we 
 should not regard them as aids to the judges to guide them 
 in dealing with a persuasive source of law, than as qualifica- 
 tions which define what is already law. 
 
 591. Such a view receives some encouragement from a (i) The 
 consideration of the traditional attitude of the iudges in ***|*"de 
 
 " ° of judges 
 
 relation to the tests of the validity of custom. Particular towards 
 customs, to deal first with the more difficult instance, have ^^^ ''*''^- 
 
 1° Par- 
 net been received into the law in time past as a matter of tiouiar 
 
 course. In the first part of Coke's Institutes we find a very customs, 
 interesting paragraph in which the question is raised as to 
 what customs may be alleged in an upland town, and what 
 in cities and boroughs. The note of the learned editors 
 remarks: "The privilege of having special customs, dero- 
 gating from the Common Law, is in general denied to 
 inferior places, such as upland towns, not being either cities 
 or boroughs, and hamlets ; though it is allowed to larger or 
 more important districts, such as counties, manors, hundreds, 
 honors, cities and boroughs. The special cases hinted at by 
 Lord Coke as an exception to this restraint, seem to be those 
 in which the custom tends to advance some right recognized 
 by the Common Law."^ ^ 
 
 592. Again, the use that is made by judges of the test of E.g.,test 
 reasonableness, as to the existence of which all authorities °-J^^°^' 
 
 ' Coke on Littleton (1817) 110b, 
 
320 CUSTOMARY LAW IN MODERN ENGLAND 
 
 are agreed, is very suggestive. The general disposition of 
 Coke in regard to customs is expressed in the familiar state- 
 ment " Consuetude is one of the maine triangles of the lawes 
 of England: those lawes being divided into common law, 
 statute law, and custome." When, however, the great 
 judge is dealing with the statement that customs must not 
 be against reason, he adds significantly, " This is not to be 
 understood of every unlearned man's reason, but of artificiall 
 and legal reason warranted by authority of law: Lex est 
 summa ratio." ^ Later on, in discussing the validity of a 
 custom, alleged to be ancient, that every tenant within a 
 certain manor who marries his daughter without the Lord's 
 consent shall pay a fine to the Lord, the learned author 
 follows Littleton in repudiating the custom as contrary to 
 reason. " Some have thought that such a custome generally 
 within the manor should be good. But the answer is, that 
 though it may be so in a particular case upon such a special 
 reservation of such a fine upon a gift of land, yet to claime 
 such a fine, by a generall custome within the manor, is 
 against the freedome of a freeman, that is not bound there- 
 unto by particular tenure." ^ 
 Other 593. The element of certainty has been a further means of 
 
 controlling custom. Thus in the case of Nailor, qui tarn, v. 
 Scott, where a custom had been foimd by a jury " that every 
 housekeeper in the parish of Wakefield having a child born 
 there, should, at the time when the mother was churched, or 
 at the usual time after her delivery when she should be 
 churched, pay tenpence to the vicar," the court determined 
 that the custom was bad tor uncertainty, since the usual time 
 for women to be churched was not alleged.^ Of all the 
 tests, however, perhaps the one which might be expected to 
 have required most elucidation is that described as opinio 
 
 teats. 
 
 1 Coke on Littleton, 62a. " Ibid., 139b, 140a. 
 
 3 Smith's Leading Cases, lOth ed., I, p. 532. 
 
CUSTOMARY LAW IN MODERN ENGLAND 321 
 
 necessitatis. The general meaning of this test came under 
 discussion in the interesting case of Meyer v. Dresser} In 
 that case the attempt was made to establish judicially an 
 alleged general custom giving to a consignee of goods, or an 
 endorsee of a bill of lading, the right to deduct the value of 
 missing goods from the freight. It was held by the judges 
 that the alleged custom was merely a convenient practice for 
 settling undisputed claims, and not applicable in case of con- 
 tested rights, — a mode of settling accounts, not a foundation 
 on which to rest a legal claim. So far as I am aware, how- 
 ever, the difficulties involved in the conception of opinio 
 •necessitatis have not received an adequate attention at the 
 hands of English judges or English lawyers or jurists. A 
 perusal of the controversial literature of the Continent upon 
 the point might serve to warn us against too hastily under- 
 estimating the difficulties which are- really involved.^ 
 
 594. As r^ards general customs, the leading modern case is 2° Gener»l 
 Goodvnn v. Bdbarts? I shall venture to quote certain dicta 
 from the judgment of this case, though with some hesitation, 
 for the reason that the judges as a body have so clung to the 
 fiction that they only apply pre-existing law, that their real 
 attitude is more to be gathered from a consideration of the 
 facts of many decisions than the langu&ge of the judges in 
 any one. Curiously enough, however, in the leading modern 
 case, the very language of the judges will be seen to favour 
 the interpretation of judicial decision as transforming custom 
 into law. The judgment of the Court (Cockburn, C.J., 
 Mellor, Lush, Brett and Lindley, JJ.) contains the following 
 statements : " The' substance of Mr. Benjamin's argument is, 
 that because the scrip does not correspond with any of the 
 forms of the security for money which have hitherto been 
 
 ' (1864; 33 L. J. C. P. 289. 
 
 " Of. Lambert. " Etudes de droit commun l^slatif," I, pp. 120 et 
 J. » (1875) L R 10 Exch. 337. 
 
522 CUSTOMARY LAW IN MODERN ENGLAND 
 
 held to be negotiable by the Law Merchant, and does not 
 contain a direct promise to pay money, but only a promise to 
 give security for money, it is not a security to which, by the 
 Law Merchant, the character of the' negotiability can attach. 
 Having given the fullest consideration to this argument, we 
 are of opinion that it cannot prevail. It is founded on the 
 view that the Law Merchant thus referred to is fixed and 
 stereotyped, and incapable of being expanded and enlarged 
 so as to meet the wants and requirements of trade in the 
 varying circumstances of commerce. . . The Law Merchant 
 is neither more nor less than the usages of merchants and 
 traders in the different departments of trade, ratified by 
 decisions of Courts of Law, which, upon such usages being 
 proved before them, have adopted them as settled law with a 
 view to the interests of trade and the public convenience. 
 . . By this process, what before was usage only, unsanc- 
 tioned by legal decision, has become engrafted upon, or 
 incorporated into, the common law, and may thus be said to 
 form part of it." The judgment proceeds to discuss the 
 history of the development of the Law Merchant, and then 
 continues : " But Holt having become Chief Justice, a some- 
 what unseemly conflict arose between him and the merchants 
 as to the negotiability of promissory notes, whether payable 
 to order or to bearer, the Chief Justice taking what must 
 now be admitted to have been a narrow-minded view of the 
 matter, setting his face strongly against the negotiability of 
 these instruments. The inconvenience to trade arising there- 
 from led to the passing of the statute of 3 and 4 Anne, c. 9." 
 The Court, after considering later judicial controversies, pro- 
 ceeds to ask : " Why is it to be said that a new usage which 
 has sprung up under altered circumstances, is to be less 
 admissible than the usage of past times ? . . . The univer- 
 sality of a usage voluntarily adopted between buyers and 
 sellers is conclusive proof of its being in accordance with 
 
CUSTOMARY LAW IN MODERN ENGLAND 323 
 
 public convenience; and there can be no doubt that by hold- 
 ing this species of security to be incapable of being transferred 
 by delivery . . . we should cause great public inconvenience."^ 
 
 595. In reviewing the preceding argument, I may remind Review of 
 the reader that discussion has turned, not upon the question j"^|,° j 
 whether judges should defer to usage, but upon the question 
 whether they are hownd by usage. I began the consideration 
 
 of this question by remarking the inconcliAsive character of 
 the arguments commonly held to justify the traditional 
 view. The language of the judges, for example, is open 
 to considerable suspicion in view of the persistence of the 
 fiction of judicial incompetence to add to the law. Until 
 that fiction is definitely rejected, we can hope for no sound 
 theory of the relation of the judges to the development 
 of new rules. Again, that the judicial adoption of custom 
 is retrospective proves nothing, for this is a characteristic 
 of judge-made law in general, an inevitable result of the 
 imperfection of human institutions, the sacrifice of formal 
 justice that in the long run substantial justice may be done. 
 The fact that judges often base their decision upon custom is 
 paralleled by the fact that judges often base their decision 
 upon convenience; in determining the significance of all 
 such action, we must remember that in the unideal world 
 wherein we live, justice is wider than law ; that much to 
 which judges pay great deference is in no sense law and 
 does not even of necessity become law as a result of the 
 judicial decision. ' 
 
 596. On the other hand, there are real difficulties in the 
 way of calling customs, as such, laws. Tests exist for 
 deciding what customs are to determine or influence judicial 
 action, but the writers who tell us what these tests are, 
 differ from one another in important respects. The use, 
 
 ' (1875) L. R. 10 Exch. 352. Of. also nmiihall v. Metropolitan Bank 
 1877) L. R. 2 Q. B. D. 194. 
 
324 CUSTOMAEY LAW IN MODERN ENGLAND 
 
 moreover, which judges make of the tests, eind the important 
 
 r61e which the argument from convenience plays in the 
 
 judicial trials where customs have been approved, tend to 
 
 confirm a suspicion of the existence of a fundamental 
 
 difference between the attitude of the judges in dealing with 
 
 custom, and their attitude in dealing with sources of law 
 
 which are undoubtedly binding. 
 
 Diffi- 597. Among the binding sources of law, however, there 
 
 °" '^\ d ^^^ ^^^ classes which raise at this point some real difficulties. 
 
 by the The precise conditions under which precedents are binding 
 
 analogy of ^^^ nowhere clearly stated. Municipal by-laws it is said 
 customa to "^ _ 1:1 
 
 iudioial must be in conformity with the general law of the land, intra 
 precedents qji^gg, reasonable, just, certain, etc.* As no one would deny 
 by-Jaw3, that precedent and by-law are binding sources of law, it 
 might seem that the value of the preceding argument as to 
 the tests of custom is seriously, if not fatally, prejudiced. I 
 do not think, however, that it would be difficult to establish 
 a real difference in modern judicial administration between 
 the application of a precedent or a by-law and the applica- 
 tion for the first time of a popular custom, — a difference 
 that, as regards the test of reasonableness, for example, 
 might be expressed by saying that precedent and by-law 
 bind unless obviously unreasonable, whilst a custom must be 
 proved positively to be reasonable and in accord with public 
 convenience. Moreover, that the line between the binding 
 and the persuasive sources of legal rule should be drawn 
 somewhere beneath precedent and by-law and above popular 
 custom, is made a priori probable by certain leading tenden- 
 cies of social evolution to which I shall now proceed to 
 draw attention, 
 (c) Argu- 598. In the first place, the tendency of social evolution is 
 merit trom towards conscious regulation in the place of unconscious 
 
 the facta ° ^ 
 
 ' Cf. Adler, "The Law of Corporations," p. 63. 
 
CUSTOMARY LAW IN MODERN ENGLAND 325 
 
 regulation. The struggle for existence goes on eternally, of social 
 but the knowledge of the fact in its practical bearings *^°^""°"" 
 and implications is relatively modern. The knowledge 
 brings far-sighted action of reflecting human beings in the 
 place of the spontaneous development of rules. Law- 
 making, whether by judges or usage, from being largely 
 unconscious tends to become increasingly conscious. 
 "Primitive societies and undeveloped races," writes Pro- 
 fessor Sorley, "are more prone to be governed by external 
 circumstances than to reflect upon their nature and tenden- 
 cies, and hence their ideas of legal relations are for the 
 most part the mere reflection of customs inherited from 
 a previous generation or necessitated by outward events. 
 . , . But in developed and civilized communities, where men 
 have learned the lesson of reflection, the tendency is in the 
 opposite direction ; custom has to justify itself at the bar of 
 reason, and conduct comes to be guided by a definite concep- 
 tion of its end, instead of by a vague belief that it is 
 usual." ^ In the second place, social evolution has implied, 
 not merely an increase in conscious regulation, but also 
 the development of appropriate organs for this regulation. 
 The relative position and importance of these organs vary 
 from time to time. A claim on the part of one law- 
 making organ to be something other than an organ, revives 
 older sources of law by inevitable reaction. Patrimonial 
 theories of the State and doctrines of an absolute sover- 
 eignty, for example, have driven men to contend for the 
 aboriginal rights of the unorganized community. The 
 general tendency, "however, is towards a just appreciation 
 of the position of law-making organs, and a corresponding 
 hmitation of the term law to what is developed by organs 
 specially provided by the State for that purpose. Finally, 
 
 in Philosophical Criticism," pp. 109, 110. 
 
326 CUSTOMARY LAW IN MODERN ENGLAND 
 
 social evolution has worked for an increasing definiteneas, 
 substituting, as Herbert SpenCer would say, definite hetero- 
 geneity for an indefinite homogeneity. In the sphere of 
 law this increased definiteness has told for a differentiation 
 of the natural and political bases of law, and a differentia- 
 tion of the sources of law into respective hierarchies of 
 those which are legal and those which are merely persuasive. 
 Signifi- 599. The relation of these tendencies of the social evolu- 
 
 canceof jJqjj ^q ^jjg question immediately under consideration must 
 for present be apparent Judges and by-law-making authorities are 
 puri)oae3. organs of the community which, in different ways, are 
 called upon to make new law. Their work is, or tends 
 to become, conscious and rational. The products of their 
 law-making action are definite and knowable. In all these 
 respects they stand on a somewhat different level from 
 popular custom in which the spontaneous takes the place 
 of the conscious, the unorganized of the organized, the in- 
 definite and unknowable of the definite and knowable. It 
 has been long felt to be a serious difficulty in the way of the 
 traditional theory of custom, that if customs may be law 
 before judicial adoption, a part of the law of the land is not 
 only unknown of the judges, but is practically unknowable 
 save by the circuitous process of proof by evidence of wit- 
 nesses. A further practical proof of difference may be seen 
 in the decline of custom as a matter of fact. It is not 
 uncommon nowadays to limit the law-making power of 
 custom to particular customs, and in regard to these an 
 author who cannot be accused .of underestimating their 
 importance or authority remarks, "The truth is that in 
 modern times there is an express demand for legislation 
 as soon as there is any decided trend of opinion. Except 
 in matters outside the scope of positive law the formation 
 of custom belongs to an archaic period in our history."' 
 
 ' Pollock, " First Book of Jurisprudence," p. 265. 
 
CUSTOMARY LAW IN MODERN ENGLAND 327 
 
 Judicial precedent, not popular custom, is the extra-legis- 
 lative source of law to-day. 
 
 600. The general conclusion at which I have arrived may Gen«»l 
 be expressed in a sentence. When judges, in applying a"™^"°° 
 custom which is not yet judicially authenticated, declare the 
 custom to have been law previously to the decision, they 
 
 are merely displaying a special form of the fiction of judicial 
 incompetence. In the relatively developed character of 
 modern institutions, more especially in regard to the de- 
 velopment of the special organs for the amelioration and 
 development of legal rules, it appears to me that the time 
 has arrived for a clearer limitation of the contents of law, 
 and for the development of a theory of those persuasive 
 sources of law (including custom) to which judges may have 
 recourse in cases where there is an imperative call either for 
 a new rule or for the variation of an existing rule under 
 particular circumstances of locality. 
 
 601. I pass from the discussion of the question as to the (6)Wheiica 
 moment when we are iustified in saying of custom that it is °°f 
 
 ■' JO custom 
 
 law, to examine the theory that custom is law, not merely derive its 
 before judicial adoption, but independently of such adoption, »n*°"*J- 
 and by an inherent and ultimate authority of its own. 
 Granted, it has been urged, that a custom comes within the 
 judicial conception, and it is treated with all the deference 
 due to an Act of Parliament. Judges may make precedent 
 a binding source of legal rule ; custom is such independently 
 of any authority either of a single judge or of a succession 
 of judges. 
 
 602. The theory recalls the period in our legal history Theory n» 
 when competent lawyers doubted whether a statute had any !°°^" 
 authority to overrule usage, and regarded usage as a law- 
 creating power co-ordinate with Parliament rather than sub- 
 ordinate to it. In our own day it is not custom as such 
 
 which is enforced, but custom as satisfying certain tests 
 
328 CUSTOMARY LAW IN MODERN ENGLAND 
 
 which the judges themselves have fixed, and which they 
 may vary if in their wisdom they think it desirable to do 
 BO. The real source of the authority of general custom is 
 sufficiently attested by the requirement that it must be 
 reasonable, and by the emphasis laid by the judges upon 
 considerations of public policy and convenience in cases 
 where their validity comes before the courts.^ In respect of 
 particular customs, the single circumstance that they must be 
 immemorial in itself disposes of any claim to possess an 
 inherent authority. To hold that they must be well estab- 
 lished is consistent with such a claim; to hold that they 
 must be established from time immemorial is completely 
 fatal to it. I conceive that in this matter it would be inter- 
 esting to imagine a country of which the courts should 
 assume the right of picking and choosing between statutes, 
 saying of some : Yes, these are good ; though their contents 
 are not quite ideal, they satisfy — as a matter of fact — ^the 
 conditions which we have laid down, and we will apply 
 them. If such courts existed I do not think we should 
 attribute to statute as such an intrinsic authority. We 
 should be more inclined to hold that if the courts had picked 
 and chosen among the statutes, and had laid down the con- 
 ditions which must be satisfied by a statute before it would 
 be enforced, such intrinsic authority as existed must be 
 looked for rather in the judicial practice than in the statutes 
 themselves. 
 Signifi- 603. The emphasis which I have laid upon the test of 
 
 cance of reasonableness may seem excessive in view of the fact that 
 
 the test of 
 
 reason- there was a time in our legal history when it was held that 
 
 ablenesa. an Act of Parliament itself might be void as unreasonable. 
 
 In the face of such a condition of things, it might be urged 
 
 that the requirement -that a custom must be reasonable 
 
 involves no denial of its intrinsic authority. But we need to 
 
 * For example, Goodwin v. Robarts (1875) L. R. 10 Exch. 337. 
 
CUSTOMARY LAW IN MODERN ENGLAND ^ 329 
 
 consider precisely what was meant by the doctrine that an 
 Act of Parliament might be void as unreasonable. In a 
 leading case on this point, the judgment of the court con- 
 tains the following significant statement : " Even an Act of 
 Parliament made against natural equity, as to make a man 
 judge in his own case, is void in itself. Jwra naturae, sunt 
 immidahilia, and they are leges legum." ^ The view that an 
 Act of Parliament might be void as unreasonable was but 
 one way of saying that Natural Law was a part of the law of 
 the land. The Act of Parliament in obvious conflict with 
 Natural Law was thus held to be void as being in conflict 
 with a higher law of the State. When it became a recog- 
 nized principle that Natural Law as such was not a part of 
 the law of the land, it could no longer be held that an Act of 
 Parliament was void as unreasonable. If, on the other hand, 
 the question be asked, by what authority to-day can a custom 
 be rejected as unreasonable? we can make no appeal to 
 Natural Law or to any express Act of Parliament. We can 
 only appeal, and naturally would appeal, to the judicially 
 established rule. 
 
 604. The general conclusion, therefore, is that custom is Some ob- 
 law when it can be held that the judges are bound to enforce ^*"'*'°"' 
 it Though there may be some difference of opinion possible 
 as to the moment when this can be said to be the case, I do 
 not think there can be any difference of opinion on the point 
 that judges are bound, not by any inherent intrinsic autho- 
 rity of custom, but by virtue of their own practice. To the 
 question why custom is law no better answer can be given 
 than that the judges treat it as such. The custom of the 
 people is law, in so far as it is law, by virtue of the custom 
 of the courts. Professor Dewey, in discussing the view that 
 the judicial recognition of custom as law is due to an express 
 or tacit law giving to such customs the effect of laws, 
 
 1 Day V. Samdge (1614) Hob. p. 87. 
 
330 CUSTOMARY LAW IN MODERN ENGLAND 
 
 remarks, "To say that customs are regarded as laws by 
 virtue of a tacit law to that effect, is simply to heg the whole 
 question. It is to say that custom is law in virtue of custom." ' 
 The criticism receives some support from Dr. Willoughby.' 
 " The law-creating power of custom," argues Professor Sal- 
 mond, " is an ultimate legal principle. We may say, indeed, 
 that it is recognized by precedent, and has there its legal 
 source. But it may be said with equal truth that the autho- 
 rity of precedent is recognized by, and has its source' in, 
 custom. One or other of these two propositions may be 
 true, but to accept them both is to reason in a circle."' 
 " These two are co-ordinate legal sources, and each operates 
 independently of the other. Custom does not rule the law 
 through precedent, any more than precedent through 
 custom."* 
 The 605. The answer to objections of this kind appears to 
 
 me to be that the people are not, what the judges are, an 
 of&cial organ. It seems to me not only possible, but highly 
 important, to distinguish between what the judges do or 
 may do, and what unorganized and unofficial groups within 
 the community do or may do. It appears to me a right and 
 important step in the direction of a sound theory to hold 
 that popular custom enters the law, if" not through prece- 
 dent, at least through judicial practice ; that precedent also 
 becomes law by virtue of judicial practice, and that in con- 
 sequence the authority of both j^pular custom and isolated 
 precedent find a common basis in the authority of judicial 
 practice. In the view I hold of the matter, we have reached 
 a stage in our legal history when a theory of customary law 
 inevitably leads on to a theory of judicial practice in general 
 Some suggestions towards the latter theory have been already 
 made in the preceding excursus. 
 
 •nswer. 
 
 1 " Political Science Quarterly," IX, 47. 
 
 " " Nature of the State," p. 175. 
 
 3 "Jurisprudence," p. 110. ♦ lb., p. 165. 
 
EXCURSUS E 
 
 A. CONSIDERATION OF SOME OBJECTIONS TO THE 
 CONCEPTION OF POSITIVE LAW AS STATE COM- 
 MAND 
 
 610. Austin defined a law as a species of command. The Modem 
 definition was not original ; it had been expressed by greater ""^"g" 
 men, forming indeed a venerable juristic succession, and tinian 
 enjoying for centuries the sanctity of orthodoxy. Never d^^"'''''"' 
 without rivals, however, the definition has been subjected in 
 
 our own time to a searching and vehement criticism. The 
 historian has declared it unhistorical, the lawyer unpractical, 
 the philosopher superficial. Before such criticism, the defini- 
 tion might have been expected to apologize for taking so 
 unconscionable a time in dying. Its disappointment of such . 
 expectations may serve to recall to the mind of hostile 
 criticism a remark of Leslie Stephen that philosophical 
 theories live long after their brains have been knocked out. 
 We have here, it may be suggested, an illustration of the 
 fatality of hereditary attachment. Just so, those who be- 
 lieved the earth to be fiat have left such a taint of that 
 impression in the blood of their descendants that some may 
 still be heard to confess in half-shamed whisper, " I think 
 something may be said for a flat earth after all ! " " What," 
 I have heard one demand, " What if there be a Hell after 
 aU!" 
 
 611. Although the modern believer in Austinian oi Neo- Not an 
 Austinian doctrine who lives on this side of the Channel finds ^^-^ 
 aiders and abettors in high life, he canpot be insensible to the 
 
 331 
 
332 POSITIVE LAW AS STATE COMMAND 
 
 growing body of criticism which he is called upon to answer. 
 Under these circumstances it may be a consolation for him 
 to reflect that truth can only be won through controversy 
 that only by refuting error can we hope to realize what the 
 true may be. The present conflict as to the meaning of law 
 should be welcomed as the student's opportunity to win his 
 spurs. If knowledge rather than formulae be his goal, his 
 lot is happier than that of the student who is born in a 
 period when all are agreed as to what is true, while scarce 
 any one realizes the nature of that as to which all are 
 agreed. Certainly the student who carefully examines the 
 objections to the conception of law as command, the reasons 
 which may be urged for them, and the answers that can be 
 suggested to them, will gain a new insight into the meaning 
 of law. If the reader has not already approached the sub- 
 ject from this point of view, he may find some material for 
 consideration in the following excursus. The position under 
 examination, however, is not identical with that adopted by 
 Austin, who defined a law not law, and looked for the source 
 of laws, not to the State, but to the visible ruler. With 
 respect to the last-mentioned difference, my reasons for dis- 
 senting from Austin have been stated in the excursus on the 
 State and Sovereignty. My preference for discussing the defini- 
 tion of law rather than of a law is the result of a conviction 
 that for the purposes of legal science it is more important 
 to arrive at a general conception of one's subject-matter as 
 a whole than to obtain a verbally precise definition of the 
 fragments of which it is composed. 
 
 Objeotiona 612. The objections to which attention is drawn may l)« 
 
 Bteted. briefly stated :— 
 
 A. As to the Source of Law. 
 
 (i.) Law is older than the State, 
 (ii.) Customs are laws apart from State recognition, 
 (iii.) Law, not the State, is supreme. 
 
POSITIVE LAW AS STATE COMMAND 333 
 
 B. As to the Nature of Law. 
 
 (iv.) A great part of law is not expressible as com- 
 mand, 
 (v.) Even where law is so expressible, command is 
 
 not of its essence. . 
 (vi.) In any case, the representation of law as com- 
 mand is hopelessly inadequate. 
 This list is not suggested as exhaustive, or as representing 
 the tenets of any one school, but as convenient for the 
 purposes of discussion. 
 
 613. (i.) Law is older than the State. — In a recent work, (i.) Law 
 
 " The Native Tribes of South-east Australia," Dr. Howitt has °^'^«'" "*•■ 
 shown that tribal laws or customs are obeyed by the 
 Australian aboriginal, not from any fear of punishment by 
 tribal authority, whether individual or collective, but from 
 the dread of a supernatural .punishment in whose reality 
 the individual has been taught to belieVe from infancy. The 
 evidences of similar phenomena elsewhere might be multi- 
 plied indefinitely. On the authority of such evidences, three 
 distinct arguments may be suggested. The conception of 
 law as State command is not applicable in the earlier stages 
 of social life ; as a consequence it is not likely to represent 
 the true inwardness of things to-day; and in any case a 
 definition of law, to be scientific, should embrace its mean- 
 ing in the different stages of human history. 
 
 614. The consideration of such arguments belongs to aitsinooa- 
 science or philosophy of legal history rather than to a theory "l""^'- 
 of the modern law. In this connection, two conceptions of 
 
 the purpose of historical study require to be distinguished. 
 We may study the history of the past to illumine the present ; 
 or we ma^ study that history for its own sake. In the one 
 case history is an accessory study ; in the other case it is an 
 independent science. The former is the point of view which 
 appeals to the theorist of things as they are. In constructing 
 
334 POSITIVE LAW AS STATE COMMAND 
 
 a science of law as it is to-day, recourse may be had to history 
 for suggestion, but not for final judgment. When, however, 
 it is once clearly realized that there may be different sciences 
 of law, each entitled to have its own definition of its subject- 
 matter, the present objection to the conception of law as 
 State command loses its force. The fact that the conception 
 is only possible in a modem atmosphere, so far from being a 
 criticism, is on the contrary a eulogy if our object is a science 
 of the modern law. The historical-mindedness which should 
 save us from the error of fastening a modem conception upon 
 ancient fact, should also save us from the like error of forcing 
 on modern fact a theory derived from, or suggested by, ancient 
 data. Each generation, as I remarked in the preceding 
 excursus, lies under the eternal necessity to give its own 
 account of things or rest a defaulter. " There may have been 
 a time in the far past when a man was not distinguished from 
 an anthropoid ape, but that is no reason for now defining a 
 man in such wise as to include an ape."^ So, too, in the life 
 of our time, there is such a thing as State-enforced rule — a 
 reality of profound importance and wholly worthy of being 
 made the subject of a distinct science. The circumstance 
 that the historical antecedent of this reality may have been 
 enforced by an impersonal authority or a supernatural 
 sanction, is interesting but inconclusive. For the jurist, who 
 is concerned to achieve a theory of modem law, law implies a 
 State and an organized ruling power within it. 
 (ii.) Ous- 615. (ii.) A great part of the inodern law has been derived 
 toraary jfrom popular customs which have been held to be laws before 
 being adopted by the State, and independently of such adoption. 
 The State enforces them because they are law ; they are not law 
 because the State enforces them. 
 In reality 616. If it were true that law could be made by unorganized 
 masses of the population, the conception of law as State 
 
 State com 
 manded. 
 
 Salmond, " Jurisprudence," p. 54. 
 
POSITIVE LAW AS STATE COMMAND 335 
 
 command would be open to serious objection, since the term 
 State stands for the organized community. That the un- 
 organized masses of the population have no such power is a 
 position I hope to have sufiBciently demonstrated, at any rate 
 BO far as England is concerned, in the preceding excursus. 
 Tn the opinion I have there upheld, the very small section of 
 popular customs which can lay any claim to be called law, 
 are law by the specific or general adoption of the judges. 
 Such adoption is quite as much the work of the organized 
 community as a general legislative adoption. It is true that 
 the State enforces them because they are laws ; but they are 
 laws because they are declared to be so, specifically or gener- 
 ally, by the judicial organ. 
 617 (iii.) Law, not the State, is sv^preme. — "How is the (iii.) Law 
 
 enforcement of the law regulated ? By the law itself. The ""* ^°^ 
 t • • 1 • t T 1 T1 1 ■ supreme, 
 
 force IS exercised, in fact, accordmg to law. Even when its 
 
 exercise seems to be most arbitrary, there must be some 
 
 legal method behind it. It is the law, then, and not the 
 
 force which is supreme. . . . The law by which the ruler 
 
 rules cannot be the outcome of his ruling."^ The force of Objection 
 
 arguments of this kind is less directed against the concep- maintain- 
 able 
 tion of law as command of the State, than against the against 
 
 conception of law as command of a visible ruler. Austin, Austiman 
 failing to recognize that both rulers and subjects are parts of 
 a larger unity, attributed the origin and authority of all law 
 to the former. The position is not, in my opinion, maintain- 
 able ; nor is it under consideration in the present excursus. 
 618. But even when we reject the error of identifying The ob- 
 
 the State with the visible rulers, the criticism that law not J^"''"" "^ 
 
 senses : 
 the State is supreme may be urged in either of two senses, (o) that 
 
 According to the first of these senses, law exists inde- 1*^ *^i*** 
 
 , independ- 
 
 pendently of its formulation by the State ; for example, as a ^ntiy of 
 
 the State ; 
 
 Watt, " Legal Philosophy," p. 18. 
 
336 POSITIVE LAW AS STATE COMMAND 
 
 philosophic lex naturce, or as a body of rules deriving their 
 
 being from the very nature of things.^ The criticism, 
 
 though it may have a meaning for the purposes of a phib- 
 
 sophy of law, is irrelevant for the purposes of that science 
 
 of law of which the lawyer stands most in need. Such 
 
 a science must recognize, as its raw material, the legal rules 
 
 which actually exist. But the legal rules which actually 
 
 exist are determined by reference to State-declared will As 
 
 philosophers, we may believe in the existence of ideal codes- 
 
 as lawyers, we have to reckon with the fact that the degree 
 
 of mutual adjustment which is to be enforced in a society by 
 
 the corporate will, must be determined by that will. Law 
 
 only becomes actual as it is ofi&cially declared by the State 
 
 and enforced by its authority. 
 
 (6) that 619. The criticism that law not the State is supreme, may 
 
 the State j^g based, however, upon the fact that the State is bound by 
 IB limited > ■ r j 
 
 by law. law. The existence of a State, as we understand the term 
 
 to-day, implies not merely rule, but rule according to law 
 But although the State may be bound by law, it can change 
 that law at will, and hence in a very real sense is superior to 
 it. The supremacy in developed States is even expressed in 
 the visible organization. Most States possess some organ, or 
 group of organs, which is supreme over law, not in the sense 
 that it can violate law at will, but in the sense that it can 
 change the law at will. ^The position has been challenged at 
 times with regard to the rules of fundamental Constitutional 
 Law. The fifth section of the Constitution of the United 
 States, for example, defines the organization by which amend- 
 ments of the Constitution may be effected ; the section is a. 
 law of which the Supreme Court will take cognizance; the 
 organization which it prescribes is sovereign; and accordingly 
 that sovereign, when it makes new law, does so in the name, 
 
 ^ Cf . Duguit, " Le droit objectif et la loi positive." 
 
POSITIVE LAW AS STATE COMMAND 337 i 
 
 and by the authority, of law. Nevertheless, the ultimate 
 supremacy of the State is sufficiently demonstrated by the 
 fact that, when once the sovereign organization is in being, 
 it can change at will the very law to which it owes its origin 
 and authority. Eightly regarded, the fifth section of the 
 American Constitution is not superior to the State or 
 sovereign ; it merely defines the sovereign organ. It is 
 simply an expression of the will of the State, prescribing 
 its mode of action for certain purposes. 
 
 620. (iv.) A great part of law is not expressible in the form (iv.) Some 
 
 of command. — Austin admitted the non-imperative character '*^ ""' 
 
 1.1 1-- ■■• .••■ 1,1 . expresaibls 
 
 of laws explaining or repealing positive law, and of laws of as com- 
 
 imperfect obligation. Later criticism of Austin's general mand. 
 position has been more especially directed to two other 
 classes. In the first place, many rules of law affect not to 
 impose duties, but to confer privileges. Thus a Settled Land 
 Act empowers a tenant for life to exercise new rights of 
 alienation ; a Companies Act allows any seven persons, who 
 choose to go through certain formalities, to enjoy the privi- 
 leges of incorporation ; and an Enfranchisement Act confers 
 the suffrage upon a new class of the population. In the 
 second place, such rules of procedure as relate to the admis- 
 sibility of different kinds of evidence, or define the respective 
 provinces of judge and jury, seem neither to impose duties 
 nor to confer privileges, but simply to state the conditions 
 under which Courts of Justice will apply legal sanctions. 
 
 621. Two answers have been made with respect to Buch PoBsibls 
 
 classes. It may be said of them that they involve a real fi's^ers : 
 
 •' " (a) Imper- 
 
 imperative, i.e. the command to the judge.i Apart from the ative to 
 
 obvious fact that the supreme lawgiver may also be the ^^^ jndge. 
 
 supreme judge, and so not amenable to legal penalties, 
 
 the answer is open to the objection of evading the primary 
 
 ' Of. Ihering, "L'Evolution du droit," § 149. 
 
338 POSITIVE LAW AS STATE COMMAND 
 
 (i) The aspect of legal rules for an aspect which is secondary. An 
 ^""^ answer which is more entitled to respect dwells upon what 
 narrowly is alleged to be an undue abstraction in determining what 
 ■"*" , are legal rules. " A law, like any other command, must be 
 expressed in words, and will require the use of the usual 
 aids to expression. The gist of it may be expressed in a 
 sentence which, standing by itself, is not intelligible ; other 
 sentences locally separate from the principal one may contain 
 the exceptions and the modifications and the interpretations 
 to which that is subject. In no one of these taken by itself, 
 but in the substance of them all taken together, is the true 
 law, in Austin's sense, to be found. Thus the rule that every 
 will must be in writing is a mere fragment — only the hmb 
 of a law. It belongs to the rule which fixes the rights 
 of devisees or legatees under a will. That rule, in whatever 
 form it may be expressed, is, without any straining of 
 language, a command of the legislator. That ' every person 
 named by a testator in his last will and testament shall 
 be entitled to the property thereby given to him ' is surely 
 a command creating rights and duties. After testament 
 add ' expressed in writing ' ; it is still a command. Add 
 further, 'provided he be not one of the witnesses to the 
 will ' and the command', with its product of rights and duties, 
 is still there. Each of the additions limits the operation 
 of the command stated imperatively in the first sentence." ^ 
 Other illustrations in support of the same line of argument 
 might be multiplied indefinitely. Mr. Bryce, in his criticism 
 of the Austinian position, refers to Administrative Statutes 
 which enable a public body to do something which it could 
 not otherwise have done. But a Statute empowering Borough 
 Councils to impose a new rate is also a command to the 
 subjects to pay the rate when called upon to do so. The 
 
 ' Encyclopaedia Britannica," XIV, 358. 
 
POSITIVE LAW AS STATE COMMAND 339 
 
 Statute expresses a permission; it implies a command. 
 Though nominally addressed to the County Council, it is 
 really also addressed to the subject, as he will discover 
 to his cost if he should dispute the payment of the rate. 
 It may be regarded as a delegation by a sovereign body of a 
 limited power of taxation ; it may also be regarded as the 
 imposition of a conditional duty upon the subject. 
 
 622. Unfortunately, Austin himself was not free from the Austin on 
 charge of undue abstraction in determining what are legal j^^^j 
 rules. Statutes which interpret pre-existing Statutes are Repealing 
 but detached parts of a whole along with which they must S***"***- 
 be read if their true character is to be determined. A similar 
 argument seems to hold with respect to repealing Statutes. 
 One Statute prohibits gambling, and a later Statute repeals 
 the prohibition. What are we to say in such a case ? That 
 it is a rule of law that gambling is permissible ? If so, we 
 imply a direct command to the subjects not to interfere 
 with the gambler. The theory of English Law, however, 
 would be better expressed by saying that there was, but 
 is no longer, a rule of law with regard to gambling. If, 
 subsequent to the repeal of the Statute prohibiting gambling, 
 certain persons choose to gamble and others interfere with 
 them, this interference will not be taken cognizance of by 
 the Courts by virtue of the repealing Statute, but by virtue 
 of the general rules of law which forbid assault, imprison- 
 ment, etc. " I take the effect of repealing a Statute to be," 
 said Tindall, C. J„ " to obliterate it from the records of Par- 
 liament as completely as if it had never passed; and it 
 must be considered as a law that never existed, except for 
 the purpose of those actions which were commenced, prose- 
 cuted, and concluded while it was existing law."^ By 
 reading the repealing Statute along with the Statute repealed 
 
 Ziiy V. Goodwin, 6 Bingham, 582. 
 
340 POSITIVE LAW AS STATE COMMAND 
 
 we arrive at the general result, not of non-imperative law, 
 
 but of the non-existence of law. 
 
 («) Dia- 623. The objection that many rules of law are not expres- 
 
 tanction g-jj|g ^ ^j^g ioim. of command may be therefore met, in part 
 between ■' * 
 
 law and at least, by the answer that the expression legal rules can 
 
 laws. ijg construed, and ought to be construed, in a wide sense. 
 In the present excursus, however, I have elected to consider, 
 not the definition of legal rules, but the definition of law. 
 Now the position that law in its totality is essentially a 
 system of social regulation which the State will uphold by 
 force, is not affected by the fact that some parts of the law 
 are not imperative, if it be true that such parts derive 
 a practical meaning and value from parts which are impera- 
 tive. I referred, in expanding the general objection now 
 under consideration, to two classes of legal rules — ^rules con- 
 ferring privileges and rules of procedure. The latter are 
 obviously accessory. They define the legal sanction or 
 express the persons by whom, and the conditions under 
 which, it will be applied. To regard them severally as im- 
 perative is to miss their most obvious aspect ; it is otherwise 
 when we regard them in conjunction with the totality of 
 the legal system. The same holds good of laws conferring 
 privileges. Such privileges would be meaningless, divorced 
 from their context of State-enforced regulation. A Com- 
 panies Act, for example, allows any seven persons to incor- 
 porate under certain conditions and for certain purposes. 
 The effect is merely to supply official recognition of a new 
 class of person. Law is command to persons ; the Act in 
 question offers a general definition of a class of person. 
 Similarly, an enfranchising Statute defines the mode of the 
 constitution of the legislative organ whose chief business it 
 is to formulate new rules of law. 
 (v.) Com- 624 (v.) Hven though law be expressible in the form of com- 
 mand not ./n^nd, command is not of its essence. — The objection raises 
 
POSITIVE LAW AS STATE COMMAND 341 
 
 directly an issue indirectly suggested by objections already the essence 
 considered. Admit, it may be said, that we are only con- °^ ''*"■ 
 cerned with the positive law of a modern State, admit that 
 customs are not law save by virtue of the will of the State, 
 admit that law is not superior to the State, admit that law 
 in its totality can be expressed in the formula of command, 
 we have yet to consider whether, when so expressed, it is 
 most naturally and properly expressed, whether its real 
 essence be not something other than command. The general 
 object of law, it may be urged, is not to impose duties, but 
 to confer rights ; not to make the citizen a slave, but to en- 
 noble him as a man; not to compel him to walk in prescribed 
 ways, but to provide him with opportunities for self-realiz- 
 ation. Law, in a word, is primarily and emphatically a system 
 of rights conferred in the interest of a common good. If it 
 imposes duties, it is not for their own sake, but only for the 
 purpose of securing rights. Therefore to define the totality 
 as command is to mistake the secondary aspect of law for the 
 primary aspect. " An examination of the current reports of 
 the decisions of Courts of last resort will show that a great 
 number of even common law cases are decided upon prin- 
 ciples of utility. . . . What will work best ? is an impUed 
 queption. This is not the jurisprudence of a system of com- 
 mands ; it is the jurisprudence of a common welfare wrought 
 out by free reasoning upon the actual facts of life."^ "Law, 
 in its own notion," declared Locke, "is not so much the 
 limitation as the direction of a free and intelligent agent to 
 his proper interest, and prescribes no further than is for the 
 general good of those under the law . . so that, however it 
 may be mistaken, the end of the law is, not to abolish or 
 restrain, but to preserve or enlarge freedom."^ 
 
 > "American Law Review," Nov., Dec, 1893, p. 
 » " Of Civil Government," i. 57. 
 
342 POSITIVE LAW AS STATE COMMAND 
 
 General 625. With much of this criticism I am in entire accord. 
 
 position of rpjjg^ jg^^ -g ^ great deal more than command is indeed a 
 
 present ° 
 
 exGuraua proposition which no one will care to combat. I will even 
 
 stated. agree that command is not the most essential aspect of law, 
 though it may be the most obvious. I hold, however, that 
 rights are nothing apart from duties, that legal duties imply 
 the command of the State, and that in the present constitu- 
 tion of society any definition of law which does not give 
 prominence to the element of command can afiford no ade- 
 quate starting-point for a legal science. 
 Unten- 626. The argument so stated would call for little support 
 
 Austinian ^^^ ^°^ ^^^ ^*°*' '^^^ *^® conception of law as command has 
 interpreta- been interpreted at times in a manner so extreme and one- 
 f T t th ^^^^^ ^^ *'° create in many minds an unreasoning horror of 
 source of the very term. Apart from the attempt to force every 
 
 thea)m- igg^l rule into the formula of command which has been 
 nana ; 
 
 already made the subject of reference, a mistake has been 
 
 made as to the ultimate source of those commands which 
 have the authority of law, and the notion of command has 
 been limited to injunctions which are obeyed through fear of 
 a penalty. For the perpetuation of both these errors, Austin 
 was largely responsible. In regarding laws as the command 
 of the rulers to the subjects, he gave countenance to the in- 
 ference that law is the arbitrary creation of the rulers. The 
 position at present imder consideration, however, is that of 
 law as command of the State, a totality embracing rulers 
 and ruled. As a citizen, a man is not entitled to regard law 
 as an arbitrary regulation of his life when it is the regula- 
 tion imposed by a totality of which he himself forms a part. 
 The truth of this statement is apt to be forgotten by subjects 
 labouring under the sense of some legislative or executive 
 wrong. Finding themselves in direct conflict with law on 
 one point in a thousand, they concentrate all thought upon 
 that point, and declare that law is none of their doing. 
 
POSITIVE LAW AS STATE COMMAND 343 
 
 Some excuse for this illogical attitude will always exist as 
 long as the organs for the expression of the general will are 
 BO defective as to admit of much being done in the name of 
 the State which is contrary to the will and interests of the 
 State. But even under existing conditions, law, as a system, 
 exists by virtue of the will of that totality of which each 
 citizen is a part — a totality with a past and a future — a 
 totality into which he enters and from which he departs, 
 but of which he is here and now a visible, member — a 
 totality which lives and learns, affirming for men's guidance 
 from generation to generation new rules which express the 
 conditions under which man's life may be lived. 
 
 627. Austin was also guilty of unduly limiting the notion (*) of tha 
 of command. He regarded a command as an injunction to °^ " ° 
 which a penalty was attached. When, however, he discussed mmi 
 the question of the motives which account for submission to 
 government, he attached most importance to the popular 
 perception of the utility of government. The inconsistency 
 is apparent ; it should have been avoided by a revision of his 
 definition of command. Such a revision would have been 
 justified by popular usage, in accordance with which the term 
 as directly connotes the idea of authority as that of sanction. 
 In such expressions as the royal comTnand, the idea of author- 
 ity is the more obvious of the two. The spirit which breathes 
 in the text, "Thy will, not mine, be done," is one of sub- 
 mission to command wherein the idea of authority is supreme, 
 whilst that of sanction is virtually absent. I see no reason 
 why a citizen who defines law as a command should be taken 
 to postulate a reluctance on his part to obey it, still 
 less a reluctance only to be overcome by fear of a legal 
 penalty. In the "English Historical Dictionary," the 
 following is given as the leading definition of command: "To 
 order, enjoin, bid, with authority or influence." The essence 
 of command consists in the fact that it is imposed by. a 
 
344 POSITIVE LAW AS STATE COMMAND 
 
 body which speaks with authority and can somehow or other 
 punish disobedience, not in the fact of its being obeyed 
 through fear of a penalty. To some citizens, law may appear 
 as fulfilment ; to others a hindrance ; some may revere, others 
 may hate it ; alike to saint and to sinner it speaks with the 
 authority and sanction of the State. Whatever may be the 
 motive of the citizen's obedience, the law is still law to him, 
 still a command to him, although all thought of the legal 
 sanction lies entirely in the unexplored recesses of his con- 
 sciousness. 
 Neo-Aus- 628. When once the conception of law as command is 
 tinian in- gig^rly distinguished from the representation of legal rules 
 tion of as the arbitrary creation of a visible ruler obeyed by subjects 
 tommand. from fear of legal penalties, it is difficult to see on what 
 ground the conception can be criticized. Whatever else law 
 is, it is at least command. What makes a particular rule of 
 conduct law, is not the fact that it may be useful, but that 
 behind it is the maJQsty, the authority, and the force of the 
 State. There are other rules of conduct which men observe 
 under the influence of all kinds of impulse, but of the rules 
 of conduct which are law, the distinguishing characteristic is 
 the existence of the organized force of the community be- 
 hind them. But what the community as an organized unit 
 will enforce, it may be said with justice to command. Law, 
 in its totality, is the voice of the organized community 
 'speaking to all persons subject to its control, and affirming 
 a rule of life which men may accept with the consciousness 
 of the might of the community to support them. It is the 
 expression of the organized will of the community, backed 
 by the organized force of the community. Particular rules 
 of law may not be expressible in the imperative form, but 
 such rules derive their meaning and value from their associ- 
 ation with a system which, regarded as a whole, must be 
 held to be commanded — if once the term command be de- 
 
POSITIVE LAW AS STATE COMMAND 345 
 
 fined in the manner which popular usage and common sense 
 require. 
 
 629. (vi.) The conception of Law as corfimand is inadequate (vi.) Law 
 for the jm/rposes of Legal Science. — The proposition that law """^^ °|° 
 is more than command will receive the assent of all classes 
 of the community. But when we come to determine how 
 far this something more is so essential to the nature of law 
 as to call for expression in its definition, important differ- 
 ences of opinion are certain to arise even amongst that very 
 limited class of folk who are interested in legal science. One 
 reason for such differences may be found in the fact that 
 legal science may be approached from very different points 
 of view, and may be pursued with very different objects. 
 Austin affected a Jurisprudence which should serve the 
 purposes of an introduction to the study of a particular 
 legal system. It may be urged with much force that, for 
 such purposes, Austin's definition was not seriously in- 
 adequate. Among those who are interested in legal educa- 
 tion to-day, however, there are some who demand a theory 
 of law which will serve more ambitious purposes — a theory 
 which will complete an academic course of legal study 
 rather than serve as an introduction to it — a theory which, 
 whether it be mainly history, science, or philosophy, shall 
 give to the student of law a new interpretation of his 
 subject as a whole. For such a theory of law as this, we 
 must go much further in our definition of law than to 
 characterize it as command. 
 
 630. I shall venture, in concluding this excursus, to ex- Law con- 
 press my own opinion as to how much further we ought to stitnted of 
 go. In two respects at least, there need be little fear of external 
 evoking criticism. In the first place, law afiirms rules of "otio"- 
 londuct. The command of the State, in the nature of things, 
 cannot be directed to particular individuals or particular oc- 
 casions. Accordingly, it regards persons and occasions gener- 
 
elements 
 in law. 
 
 346 POSITIVE LAW AS STATE COMMAND 
 
 ally. In the second place, ^nce the law must be enforced, 
 the command of the State must not invade a domain where 
 enforcement is wholly impossible. One such domain is so 
 obvious and important as to call for express mention. Law 
 can compel men to act justly, not to think justly. In other 
 words, law relates solely to external action. Austin included 
 the first of these essentials in the definition of a law, biat not 
 the second. Professor Holland includes both. " A law is a 
 general rule of external human action enforced by a sovereign 
 political authority."' 
 Further 631. If we are to define law, as distinguished from rules of 
 law, the foregoing analysis only expresses the results of what 
 may be called a first view. In such familiar descriptions of 
 law as the empire of the dead over the living, as the product 
 of national life, as a spirit which lives and moves within the 
 letter, we may recognize dimly the presentation of great truths 
 which should be reflected in the definition of law. I will 
 venture, accordingly, to urge for the inclusion of three further 
 elements in the conception of law in addition to those to 
 which reference has been made. The sum of the rules which 
 go to make law is a unity; it is a unity which is also a. growth; 
 it is a growth which is also something distinguishable from a 
 mere natural product, being in fact an expression of human 
 intelligence and design — " a growth directed ly conscious fore- 
 sight." 
 (1) Law a 632. (1) Law is a wnity. — Particular rules of law cannot 
 unity. be interpreted as if they were detachable fragments of an 
 atomic or mechanical whole. To explaiti their meaning we 
 must regard them alongside of other rules of law which 
 qualify or extend their scope and regulate their enforcement. 
 In the last analysis, every rule of law takes its meaning from 
 the totality of law, and legal science should aim at giving to 
 
 > " Jurisprudence," ed. 9, p. 40. 
 
POSITIVE LAW AS STATE COMMAND 347 
 
 the student such an appreciation of that totality as will 
 enable him to realize the inner significance of particular 
 rules. 
 
 633. (2) Law is a growth. — The truth must be interpreted (2) Law a 
 in a sense deeper than that understood by Austin. " The ^° ' 
 Constitution," he wrote, " has grown. ... I intend to inti- 
 mate by the phrase that the constitution of the supreme 
 government has not been determined at once, or agreeably to 
 a scheme or plan: that positive moral rules of successive 
 generations of the community (and, perhaps, positive laws 
 made by its successive sovereigns) have determined the con- 
 stitution, with more or less of exactness, slowly and unsystem- 
 atically." Growth, in other words, implies no more than 
 slow and unsystematic manufacture. To the student of to- 
 day, the inadequacy of such a purely negative conception of 
 growth will be apparent. We may patch a cloak, we may 
 add to it or alter it, but we cannot make it grow; the 
 patches, additions, alterations remain the same in essence; 
 they enter into no vital relation with that to which they 
 become related. Quite different is the case of change in law. 
 Existing rules of law change in their meaning from age to 
 age by slow, insensible processes, and additions or alterations 
 of the law are no mere patchwork. The most despotic of 
 legislators cannot think or act without availing himself of 
 the spirit of his race and time. His most despotic laws 
 reveal the influence and potency of that spirit. When they 
 are once promulgated they have to be interpreted and 
 administered ; in the process of interpretation and adminis- 
 tration, the spirit of the legal system as a whole will reassert 
 itself at every stage ; between the rule and the legal system 
 vital relations become established ; and if we are to describe 
 the change in the legal system we must call it a growth, not' 
 in the mechanical sense conceived by Austin, but in the 
 Uving sense in which we employ the term when describing 
 
348 POSITIVE LAW AS STATE COMMAND 
 
 the developmental processes which are characteristic of 
 organic nature. 
 Import- 634. The fact that law has grown is a commonplace of 
 ance of vehich the importance is seldom realized. Some general idea 
 history, of this importance may be gained by reflecting for a moment 
 upon the revolution effected in the nineteenth century, in the 
 world of thought in general, by the discovery that what has 
 grown needs to be studied in relation to the processes of its 
 development. The historical spirit of inquiry achieved its 
 supreme triumphs in natural science, but invaded many 
 domains and assumed various forms. It reformed theology, 
 revolutionized philology, and created sociology. When in 
 literary criticism Sainte-Beuve laid down that each literary 
 work was a mental result which could only be understood 
 after a study of the character, ancestry, race, country, and 
 intellectual, moral, and social surroundings of the individual 
 who produced it, he was but once more illustrating the 
 modern belief that a product cannot be fully understood apart 
 from the factors, an effect apart from the cause, the present 
 apart from the past. The same belief has invaded the domain 
 of law. Here too we have learnt that the present is an out- 
 come of compromises which the past alone can explain ; that 
 if we are to tfhderstand law, we must study the processes of 
 its development as well as the forms in which it expresses 
 itself to-day. To Savigny belongs the honour of establishing 
 the profound truth of this view by the irresistible logic of 
 example. In his epoch-making treatise on Possession, he 
 showed how much of the later Koman law is unintelligible 
 without the aid which historical inquiry affords. In our own 
 day, happily, we need not go to German texts to learn the 
 power of the new method. In various treatises on the 
 modern law, we are enabled to see how closely the origin 
 and history of legal rules bears upon their meaning for the 
 modern lawyer. In the great work of Pollock and Maitland 
 
POStTIVE LAW AS STATE COMMAND 349 
 
 we may experience, in the studies of our early law, the 
 revelation of a new meaning in our whole legal system. 
 
 635. (3) Finally, the law which is at once a unity and a (S) Law't 
 growth, is moreover a growth of a special kind, since it is P^n'os*. 
 directed and guided by the forethought of man in view of 
 purposes deemed to be good. If legal development is a 
 process which must be described according to the categories 
 
 of growth rather than those of manufacture, this growth is 
 not the outcome of blind forces, but is in a large and ever 
 increasing measure the expression of human initiative and 
 design. The fact, though more obvious where legal develop- 
 ment takes, place through acts of formal legislation, is easily 
 discernible in the sphere of customary law. A usage may 
 grow imperceptibly ; it takes its origin in the thought of 
 men conscious of an end to be attained. The process is aptly 
 compared by Ihering to the formation of a path through a 
 virgin forest. The path was not created by the obscure 
 instinct of the masses, but by the conscious will of the 
 pioneers after whom the crowd followed.^ And the trans- 
 formation of usage into law has demanded the reflective 
 action of judges and lawyers, under whatever title they may 
 be recognized in the different stages of social evolution, who 
 have assisted in the work of selection, formulation, and de- 
 finition. " The pretended obscure forces of nature," declares 
 M. Lambert, " which are alleged to play with regard to the 
 elaboration of custom the role which is played as regards 
 statute law by human reason, are only the resultant of all 
 the initiatives, all the efforts of reflection and invention, of 
 the mental energies of innumerable practitioners who stimu- 
 late and direct the development of our legal thought."^ 
 
 636. I wish to dwell for a moment upon the purposive Import- 
 element in law, because I hold strongly that no science of recogniz- 
 
 ing 
 > " Histoire du droit." 
 ' " Etudes du Droit commun et l^gislatif J' 
 
350 POSITIVE LAW AS STATE COMMAND 
 
 puTpoBive law can be adequate which ignores the ends which law 
 
 elem 
 
 law. 
 
 e emen in sgj.ygg_ jf ja^,/ is an imposition from above, it is also a rule 
 
 of existence which the State has indicated as a means by 
 which varying interests and opinions may be reconciled, con- 
 flicts avoided, and the general well-being promoted. While 
 the conception of law as a growth should save us from the 
 common fallacy of supposing that law is the creature of an 
 individual ruler dispassionately calculating, in a more or less 
 detached or Machiavellian manner, the best means for pro- 
 moting any particular ends he may have in view, the con- 
 ception of law as realizing a purpose should guard us against 
 the opposite fallacy of looking upon legal development as 
 the spontaneous outcome of a national instinct which con- 
 structs a system "as bees construct honeycomb without 
 undergoing the degradation of knowing what they are 
 doing." To regard the legislator as acting independently of 
 the popular mind is one fallacy ; to regard his work as the 
 unreflecting expression of that mind is another fallacy. The 
 legislator may be looked upon as the organ of the national 
 will ; but if so, then as an organ which not merely expresses 
 the national will, but to some degree, and within certain 
 limits, thinks for it. While one school of law has exaggerated 
 the conscious element in legal evolution, another school has 
 exaggerated the unconscious element. A complete theory of 
 law must embrace both. 
 Resulting 637. If the preceding argument is sound, a just conception 
 conception ^f ig^^ implies the recognition of the elements of unity, of 
 as an growth, and of growth consciously directed in view of an 
 organism, end to be gained. If we wish our definition of law to 
 express these elements, we may borrow from the thought 
 of our time the conception of the organism. The concep- 
 tion, originally suggested by biological analogies, has proved 
 widely useful in the sciences concerned with human nature. 
 Most students are familiar with the use which has been 
 
POSITIVE LAW AS STATE COMMAND 351 
 
 made of the conception in the sphere of Political Philo- 
 sophy, where men have turned from atomistic or mechanical 
 theories of the State to the theory of it as a living whole.^ 
 The conception will be found not less useful as an instru- 
 ment of thought in the work of defining law. It resumes, 
 sufi&ciently for the purpose of a definition, the elements 
 upon the importance of which I have been insisting. In 
 describing the totality of the law as an organism we imply 
 at once that it is a unity, a growth, and a growth which 
 must be studied from the point of view of function as well 
 as from that of structure. We imply that the rules of 
 which it is constituted are not related to it as a part of a 
 machine to the whole machine, or as a single stone to a 
 heap of stones, but as part of a living plant to the whole 
 plant. We imply, i.e., that the relationship is intrinsic, not 
 extrinsic, that into each rule of law the spirit of the whole 
 law enters. We imply also that changes in the law are not 
 comparable with the additions of coins to a heap of coins, 
 or the modifications of a mechanism, however elaborate, but 
 to the growth of an organic nature — a growth involving a 
 constant adaptation of the new to the nature of the old. 
 finally, we imply that law, like every other organism, must 
 be regarded from the point of view of function as well as 
 from that of structure — from the point of view of physiology 
 as well as that of anatomy. 
 
 638, The conception of law as an organism has been already Ihering's 
 suggested by learned authors, among others by Ihering in [^^"'^ ° 
 his great work on Eoman Law. As that work is little read 
 in England, I will venture to present a brief outline of 
 Iheriog's doctrine so far as it relates to the subject immedi- 
 ately under consideration.'' The author begins by remarking 
 that the recognized rules of law are but the aspects which 
 
 ' Of. supra, Excursus B. 
 
 » Of. " Esprit du droit romain," I, 27, 50. 
 
352 POSITIVE LAW AS STATE COMMAND 
 
 the observer realizes on a first view. They convey no 
 adequate idea of the law, since even in the case of a system 
 which has been expounded by lawyers of the greatest genius, 
 a distinction is certain to exist between rules of law which 
 are expressed and those which are latent. The latter may 
 be applied by lawyers who have no consciousness of them, 
 just as a man may observe rules of grammar which his 
 mind has never expressly formulated. So a primitive 
 code of law is no more than a few fragments of a vast 
 unrealized whole. Even when men come to recognize the 
 rule of law which they have once unconsciously applied, 
 they experience the greatest difficulty in giving to it an 
 adequate expression. As that expression is never quite 
 perfect, a divorce between the real law and the formulated 
 law is inevitable. If men would understand the nature 
 of the real law, they must pass from the group of particular 
 rules of law which establish the juridic form of a specific 
 relation of life, to other related groups of legal rules, until 
 they reach the systematic unities of which those rules are but 
 an expression. For example, they must pass from the 
 conception of the contract of sale to that of contract,, and 
 again to that of obligation. Legal rules, legal relations, 
 and legal institutions are thus but successive stages in 
 a series of generalizations by means of which the lawyer 
 passes from the formulated law to the real law. An infinite 
 multiplicity of legal rules, which to the layman may seem 
 the natural destination of a legal system, must appear to the 
 lawyer an evidence of feeble digestive power on the part of 
 those who are concerned in its administration. If we carry 
 the process of analysis one step further, we discover at every 
 epoch in the history of a legal system the existence of 
 certain dominating influences — the time-spirit of a people. 
 Law, far from being a mere aggregate of legal institutions, 
 possesses a unity and an individuality related to appearances 
 
POSITIVE LAW AS STATE COMMAND 353 
 
 as the soul to the body. To reveal this psychic element in 
 the law is the supreme triumph of legal science. It is 
 a triumph which implies vater alia the fact that in law, 
 as in other organisms, we need to know the function if 
 we would comprehend the organ. Nothing exists in law, 
 save through, and in view of, the end. How important 
 is this truth we may appreciate when we reflect that a 
 legal system may be perfect as a work of art and yet useless 
 as a social force; or by reflecting that the excessive attention 
 to the anatomic structure of law tells for legal classifications 
 in which the inner meaning of rules is sacrificed to their 
 form.i Or yet again, by reflecting how treatises on the 
 history of Eoman Law, by regarding solely the history 
 of the dogmatic content of the law without reference 
 to the actual conditions of existence at the different periods 
 has often ended in presenting to the student a mere carica- 
 ture of the reality. In the opinion of Ihering, the history 
 of Eoman Law would have made greater progress if it had 
 received more attention from the historian by profession, 
 "J'ai fait de bonne heure cette experience avec la courte 
 esquisse de I'histoire du droit romain qui se trouve au 
 chapitre XLIV. de Gibbon. J'ai ^t^ cependant quelque temps 
 avant de me rendre compte du motif pour laquelle elle 
 eiergait sur moi une attraction infiniment sup6rieure k celle 
 que les travaux bien plus ^tendus, publics jusqu'alors par les 
 jurisconsultes, avaient produite sur mon esprit. Gibbon est 
 le premier qui ait offert k mes yeux un tout, tr^s concis il 
 est vrai, mais concordant et plein de vie, tandis cpe je n'ai 
 trouv4 dans tons les autres auteurs que des lambeaux et des 
 fragments de regies, de lois, etc."^ 
 
 ' I presume that a classification of English Law which would treat 
 the right in personam of a cestui que trust as part of the law of obliga- 
 tion rather than of property would be regarded by Ihering as an 
 illustration of this error. 
 
 ^ " Esprit du droit romain," I, 57 n. 
 
 2 A 
 
354 POSITIVE LAW AS STATE COMMAND 
 
 The deB- 639. If the general argument of the present excursus be 
 mtion of gQmi^ a, science of law should venture a definition of law in 
 
 aw. 
 
 its totality. That definition should recognize the imperative 
 element in law, and also certain other elements which found 
 little or no expression in Austinian analysis. In accordance 
 with this view, I hold that it is not wholly relevant to ask 
 whether law is will or command or reason, since it is all 
 three. It is an expression of the general will, affirming an 
 order which will be enforced by the organized might of the 
 State, and directed to the realization of some real or imagined 
 good. Medieval schoolmen might argue that the essence of 
 the Law of Nature was reason, and " that there would be a 
 Law of Nature discoverable by human reason and absolutely 
 binding, even if there were no God." ^ Such a dictum can- 
 not be extended to positive law. If there were no organized 
 State to enforce rules of conduct, there would be no such 
 thing as positive law, though there might be a something 
 which was on the way to become positive law, if the commu- 
 nity in which such rules were observed might be said to be 
 on its way to becoming a State. Law, as the term must be 
 interpreted in legal science, is the organic totality of the 
 rules relating to external human action, together with the 
 associated systems of rights and duties which those rules 
 imply, affirmed by the State through official organs, main- 
 tained by the organized power of the State, and applied by 
 the Courts of the State in the discharge of their judicial 
 functions. 
 
 1 Gierke : "Political Theories of the Middle Age," p. 174. 
 
EXCURSUS F 
 
 THE SCIENCES OF STATE LAW 
 
 640. Law has been described as an organic totality of the The 
 rules of external human action, and of the associated system "°"""° 
 of rights and obligations which those rules imply. This science, 
 totality may be studied with special reference, either to par- 
 ticular rules, rights and duties, or to underlying principles, 
 fundamental conceptions and historical causes. In the former 
 case, we may be interested ei|ther in a present content (legal 
 exposition), or in the past development of that content (leg^l 
 history). In the latter case, we enter the domain of legal 
 science. 
 
 641. The distinction between law as a body of rules and Principle 
 law as a body of principles cannot be drawn with absolute °'°'* "^*" 
 precision. An author of a text-book on the Law of Con- 
 tracts, for example, is inevitably impelled at times to deal. 
 
 with fundamentals, in the mere endeavour to state adequately 
 and clearly the rules of his subject. Nay, every law student 
 who seeks to find the general in the particular is so fax a 
 scientist. Every judgment of a court which directly assists 
 him in doing so, is a contribution to legal science. This does 
 not mean, however, that legal science has no existence apart 
 from legal exposition or legal history. " I take my jurispru- 
 dence," I have heard one student say, "from the Law 
 Eeports." The , statement suggests courage rather than 
 wisdom. The judgments of the Law Courts are delivered in 
 the consciousness that they may become precedents for 
 future casea As a result, they are expressed in terms which 
 
 355 
 
356 THE SCIENCES OF STATE LAW 
 
 limit their significance to particular rules. The judges rarely 
 venture into that region of the more general and the more 
 abstract with which the student of legal science is concerned. 
 The student; on the other hand, while he is not restrained by 
 the terrifying fear which limits the word, if not the thought, 
 of the judge, has perhaps other reasons for refusing to venture 
 where the judge has feared to tread. While, throughout his 
 course, he is largely engaged in turning the materials of the 
 Law Keports into scientific form, he can only hope to gain a 
 science of the whole law by this process if he be gifted with 
 an extraordinary industry and a still more extraordinary 
 insight. 
 The 642. Legal science, then, is concerned with principles, 
 
 sciences of conceptions, and causes. It has many branches. It may 
 refer to the causes of legal development, to the principles 
 underlying an existing system, to the principles underlying 
 several systems, or to the principles of an ideal system. The 
 term legal science should embrace all of these, although some 
 authors, in a perhaps excusable zeal for the special science 
 in which they are most interested, would limit the expression 
 to that science and deny it to all others. In the present 
 excursus I propose to distinguish between the several 
 sciences, and to refer briefly to their value for the purposes 
 which a student of law may be supposed to have in view. 
 Natural 643. Legal science, as the science of the principles under- 
 law. lying an ideal system of law, has been discussed by a great 
 
 variety of authors who may be divided into two classes 
 according to the degree in which they have displayed an in- 
 clination for metaphysics, Lorimer may be taken as a type 
 of the one ; Bentham of the other. The former is the more 
 philosophic; the latter the more practical. The one pro- 
 fessed a theory of Natural Law ; the other a theory of Legis- 
 lation. The theorists of Natural Law attempted to construct, 
 by a priori methods, an ideal law of which existing systems 
 
THE SCIENCES OF STATE LAW 357 
 
 were conceived to be very imperfect anticipations. The 
 practical and scientific demerits of the school were closely 
 connected, and have long been commonplaces. ^ Practically^ 
 the school threw little light upon the nature of existing law ; 
 and the result was largely due to a disposition to build up an 
 ideal system in reliance upon the processes of abstract reason- 
 ing from the data of man's social nature, without due regard 
 to the revelation of that nature in history and in existing 
 legal systems. Such a school might afford scope for philo- 
 sophic genius, but must appear remote from practice. It 
 might help to foretell a remote future ; it could not interpret 
 the present. Partly owing to the character of Jhe English 
 ''temperament, and partly owing to the bias which certain 
 historical conditions imparted to early attempts at legal 
 philosophy in England, the school has exercised a compara- 
 tively slight influence upon English thought. It has indeed 
 become a byword for the unreal and the fanciful. Its funda- 
 mental merit consisted in its appreciation of the importance 
 of the end of law as a subject of juristic inquiry ; its funda- 
 mental demerit in its determination of that end by a priori 
 analysis. The school serves to recall the luminous censure 
 in the "Advancement of Learning" : "As for the philosophers, 
 they make imaginary laws for imaginary commonwealths, 
 and their discourses are as the stars, which give little light 
 because they are so high." ^ 
 644. The methods of English jurists, even when they have The 
 
 been idealists, have been more nearly a posteriori. Thus ^^^°^ "' 
 
 legisla- 
 
 Bentham, although nominally guided by reference to abstract tion. 
 considerations of the greatest happiness of the greatest 
 number, was mainly guided in his conceptions of the ends of 
 law, and of the means for attaining those ends, by observation 
 of concrete systems. As a consequence, his ideal civil and 
 
 ' Book I, p. 266. 
 
358 THE SCIENCES OF STATE LAW 
 
 penal code, while it contains much that is highly suggestive 
 to the legislator, serves also to reveal incidentally the true 
 purpose and meaning of existing rules. A law student who 
 reads the famous "Principles of Legislation" will scarcely 
 fail to gain a new insight into the meaning of the actual 
 system which he is to interpret and apply. 
 Historical 645. The student of legal science who openly and avowedly 
 Jnrispru- leaves the world of the ideal for the world of the actual, may 
 seek for the material of his science either in Itegal history or 
 in legal exposition. In the former case, he aims at achieving 
 a theory of legal development. His object is, not to formu- 
 late a Natural Law, but to discover natural laws.^ His 
 science might be called Historical Jurisprudence. I have 
 referred, in a previous excursus, to the value of legal 
 history. I shall endeavour to explain here what I conceive 
 to be the distinction between that subject and Historical 
 Jurisprudence. Legal history affects to describe the actual 
 development of the law as it has been at the different periods 
 of the national history. Historical Jurisprudence should 
 state, as far as may be, the moral, social, and economic 
 causes which account for that development. The one 
 answers the question how? the other seeks to find some 
 answer to the question why? The one describes legal 
 development ; the other explains it. The one regaTds the 
 development of the law more or less in isolation ; the other 
 is compelled to bring that development into relation with 
 the general progress of the national life. Finally, while 
 both legal history and Historical Jurisprudence help to 
 explain existing law, the light afforded by the former is pri- 
 marily the result of showing how particular rules or institu- 
 tions have come to be what they are, whilst the light afforded 
 by the latter is rather the result of an added insight gained 
 
 Cf. supra, § 188™, " The Law of Nature." 
 
THE SCIENCES OF STATE LAW 359 
 
 from a broad view of the development of the legal system as 
 a whole. 
 
 646. T3ie value of Historical Jurisprudence to the law Ita value 
 student will be universally admitted. Unhappily, the sub- '? j?*^ 
 ject exists in imagination rather than in fact. So far as 
 Anglo-Saxon Law is concerned, we even lack a complete 
 
 legal history. Although invaluable contributions towards 
 such a history have been made, and although those contribu- 
 tions have been occasionally marked by a sense of causation, 
 Historical Jurisprudence is still for us a dream of far-off 
 things, a vision of a future that may be, more to be valued 
 as an inspiration in the study of legal history, than as a 
 source of positive information or as a special science of 
 the law. 
 
 647. If the material of our science be legal exposition Compara- 
 
 rather than legal history, if we are in search of a theory of *i^« J"™" 
 o •" •' prudence. 
 
 modem law rather than a theory of legal development, we 
 are at once confronted by a very debatable question which 
 may be expressed as follows : Ought a theory of modern law 
 to be based on the analysis of one legal system, or on the 
 analysis of several ? Austin, while he distinguishes between 
 Particular and General or Comparative Jurisprudence, is 
 clearly persuaded of the superiority of the latter. But the 
 term Comparative Jurisprudence may be used in at least 
 three distinct senses. In the first sense, the term may 
 indicate a study of which the avowed object is to discover a 
 law common to various nations — a body of legal rules which 
 are alleged to exist in a number of different civilized com- 
 munities and which, by virtue of ^his existence, are assumed 
 to possess a permanent value. The idea is that of a Jus 
 gentivm, as that term has been frequently interpreted. 
 Such a system of rules suggests an obvious parallelism 
 to the Law of Nature of a priori philosophy. There are, 
 liowever, two important differences. A jus gentivm postu- 
 
360 THE SCIENCES OF STATE LAW 
 
 lates neither immutability nor universality. It may grow 
 with the growth of the different national systems from 
 which it is drawn ; and for the test of universality, it sub- 
 stitutes that of generality. In a second sense, Comparative 
 Jurisprudence may be identified with the General Juris 
 prudence of Austin, i.e. as the science of the notions, prin- 
 ciples, and distinctions common to the various systems. 
 This is also the sense of the term Jurisprudence as defined 
 by Professor Holland: "Jurisprudence is not the material 
 science of those portions of the law which various nations 
 have in common, but the formal science of those relations of 
 mankind which are generally recognized as having legal 
 consequences."^ In a third sense. Comparative Jurispru- 
 dence may indicate, not a science of the law in general, but 
 any investigation of a particular legal topic which attempts 
 to show how that topic is dealt with in two or more legal 
 systems. The object of such an investigation may be to 
 discover hints for the reform of law or for the interpreta- 
 tion of law. In the latter case, the particular solutions 
 which are offered by different systems of particular groups 
 of facts are examined together, and their pyecise relation 
 discussed. In the former case, the further attempt is made 
 to consider the relative merits of the solutions suggested by 
 different systems with the object of discovering that which 
 is most adapted to serve the purposes of a particular milieu. 
 Value of 648. What is the value, to the law student, of Compara- 
 Compara- ^-^^ Jurisprudence in either of the senses suggested ? Aa a 
 prudence: Jus Gentiwm, Comparative Jurisprudence is a subject of 
 
 (1) as Jus speculative rather than practical interest. Even its possi- 
 Geniiutn / 
 
 bility might be challenged on the ground that the rules of 
 
 law as formulated in different systems are solutions of 
 
 particular combinatiops of fact largely determined by the 
 
 ' Jurisprudence," 9th ed., p. 8. 
 
THE SCIENCES OF STATE LAW 361 
 
 circumstances of a particular milieu, and distorted when 
 considered abstractly apart from that milieu. Even if this 
 objection should be considered inconclusive, the subject is a 
 highly controversial one. Unless the jus gentium is to be 
 the mere result of arithmetical processes, the existence of a 
 particular rule in several systems is only one of the circum- 
 stances to be taken into consideration in deciding whether 
 it shall be included in the system induced. Among the 
 solutions of particular problems afforded by the different 
 systems, an investigator must make allowance for considera- 
 tions of quality as well as of quantity ; he must examine the 
 claims of a rule less commonly adopted (as opposed to the 
 claims of a rule more commonly adopted) on the grounds of 
 the alleged superiority, either of the rule itself, or of the 
 systems from which it is drawn. 
 
 649. The merits of Comparative Jurisprudence in the (2) as 
 sense of an investigation of some legal topic as developed in ^ ™^^j 
 two or more systems, is a subject with regard to which there of a special 
 exists a strange divorce between modern profession and snbjeBt of 
 modern practice. While it is eulogized by educational 
 theorists, it receives little or no attention in existing 
 schemes of legal education. Even those schemes which 
 prescribe the study of a foreign law do not appear to 
 contemplate that the study shall be genuinely comparative, 
 either with regard to the whole or a part. In England, for 
 example, although Eoman Law is often treated with much 
 thoroughness, it is generally half forgotten before the study 
 of English Law is begun. Learned authors and law teachers 
 may employ the comparative method in the study; it is 
 seldom heard of in the class-room, or seriously practised by 
 the student. If we turn from the schools to the forum, 
 scepticism is more avowed and even ventures to deny the 
 value of the method from any point of view but that of the 
 legislator. " A lawyer," it is urged, " does not know his own 
 
362 _ THE SCIENCES OF STATE LAW 
 
 law better for wasting his time on some one else's. Possession 
 of property in Eoman law under certain conditions confers 
 certain rights. The fact is interesting, but not specially 
 helpful, to the student of a system in which possession con- 
 fers other rights under other conditions. The student must 
 know his own law. The knowledge of other laws may be 
 left to legislators who are in search of the ideal." 
 Value of 650. Despite educational practice and professional plausi- 
 8UC s y ijiiitigg^ tlie value of a comparative study of a topic of law in 
 tained. two or more systems can be demonstrated by arguments of a 
 most elementary and conclusive character. In law, as else- 
 where, an account of the resemblances and differences be- 
 tween two objects is a useful way to bring out their true 
 meaning. Whoever has not made the acquaintance of a 
 foreign language, said Goethe, knows not the first word of 
 his mother tongue. While no one would pretend to apply 
 this dictum within the sphere of law, and declare that a law 
 student who is ignorant of other systems knows nothing of 
 his own, the thought within the speech of Goethe has never- 
 theless a real meaning for the student of law, as well as for 
 the student of language. Any one who reads the masterly 
 analysis of Possession by Chief Justice Holmes in his work 
 on the Common Law — an analysis in which the Eoman 
 theory of possession is contrasted with the English — cannot 
 fail to make a real advance in the direction of understand- 
 ing both Eoman and English law. For it is one of those 
 commonplaces of the truth of which a student needs to be 
 constantly reminded, that the knowledge of a subject of law 
 implies much more than an acquaintance with the mere 
 rules of law which constitute it. Behind the rules which go 
 to the making of our law of Possession, for example, is the 
 conception of Possession itself, which is something distinct 
 from particular rules — something which must be compre- 
 hended before those rules can be rightly interpreted^some- 
 
THE SCIENCES OF STATE LAW 363 
 
 thing which it is within the power of comparative analysis 
 to illumine. Comparative study puts new life into the legal 
 formulae with which the student will have to deal in every- 
 day life, and thus gives to him a power of vision which 
 must prove of the highest value when he is called upon to 
 deal with new combinations of facts which have not hitherto 
 been made the subject of legislative or judicial interpreta- 
 tion. The argument, both from this point of view and from 
 that of educational discipline, was forcibly expressed by a 
 late Lord Chief Justice. " I have heard many men say, and 
 so far as my opinion is worth anything it is true, that an 
 acquaintance with the Code Napoleon, which is to a great 
 extent founded on Eoman law, and a different system from 
 our own, was of great advantage to him (Mr. Benjamin) ; 
 not only was it of great advantage to him in actual prac- 
 tical argument, because it gave a breadth, and grace, and 
 facility of illustration which might have been wanting 
 otherwise, but it gave him a grasp of larger, wider, more 
 general principles." ^ 
 
 651. How then are we to explain the divorce between Sceptism 
 
 modern profession and modern practice to which allusion""*^'® 
 
 11! aiDjeot 
 has been made ? If comparative analysis is capable of expiainei 
 
 serving purposes so useful, why has so little use been made 
 
 of that analysis in legal studies ? One obvious answer may 
 
 be found in the lack of treatises in which this method has 
 
 been employed with any degree of success. It was at one 
 
 time imagined that magical results must foUow from a 
 
 merely tabular arrangement of the legal rules of two or 
 
 more systems in parallel columns. Hence a faith in the 
 
 saving power of such works as that of Mackenzie on Eoman 
 
 Law. Comparative analysis only begins to be useful, either 
 
 as an intellectual discipline or as a source of information. 
 
 ' Report of the Gresham University Commission, 1894, p. 1006. 
 
364 THE SCIENCES OF STATE LAW 
 
 when the rules of different systems are brought into close 
 and intimate relationship, and the precise differences in 
 their scope and meaning stated and illustrated. 
 How to 652. Fortunately for the student of law, the lack of 
 
 ' treatises is no conclusive argument against the inclusion of 
 Comparative Jurisprudence, in the sense immediately under 
 consideration, within the general scheme of his law studies. 
 Por, within modest limits, and by the aid of a little guid- 
 ance from a more experienced hand, he may construct a 
 treatise for himself. He has but to study some special 
 subject, such, for example, as the Law of Sale in Eoman and 
 English law, and then, instead of resting content with a 
 superficial enumeration of resemblances and differences, 
 honestly seek to discover how the two systems actually deal 
 with particular combinations of fact. He need not take the 
 trouble to state such combinations for himself, for he will 
 find them already suggested in Ihering's work on "Law in 
 Daily Life," which has been translated into EngKsh by Pro- 
 fessor Goudy. If he will conscientiously deal with the 
 practical problems suggested in this most admirable work, 
 not only will the Eoman and English Law of Sale be incom- 
 parably more real to him, but he will also have gained a 
 priceless experience in the art of bringing concrete groups of 
 facts and legal principles or rules into living relationship. 
 (3) General 653. In neither of the senses just indicated, however, can 
 jurispru- Comparative Jurisprudence claim to be a Science of Law in 
 the con- *^^ sense in which that science is most needed by the law 
 ception student. What, then, can be said of Comparative Juris- 
 ™j '^ " prudence as the science of the principles, notions, and dis- 
 tinctions common to maturer systems? Apparently not 
 much, unless I have sadly misread some of the lessons the 
 historical school has taught. A system of law is the re- 
 sultant of many forces, of the particular social and economic 
 conditions, of the character and history of a people. It is a 
 
THE SCIENCES OF STATE LAW 365 
 
 concrete expression of man's endeavour to realize the useful 
 and the just under the conditions of a particular environ- 
 ment. It varies according to circumstances of time and 
 race. The legal rules of one country are not those of 
 another. But the legal principles which it is the special 
 mission of legal science to state, illumine and develop, are 
 derived from legal rules. If those rules differ in different 
 nationalities, it is difficult to see how the principles can be 
 identical or common. When we have eliminated all differ- 
 ences, the residuum is unlikely to be of much service for 
 explaining or illuminating any of the particular systems 
 which have been made the subject of analysis. The ethos, 
 the spirit of each, has escaped us. "The revived study of 
 Germanic law in Germany, which was just beginning in 
 Austin's day," writes Professor Maitland, "seems to be 
 showing that the scheme of Eoman jurisprudence is not the 
 scheme into which English law will run without distortion."^ An 
 
 654. The conception of a General Jurisprudence appears ™P]'*^ 
 ■^ 7 . eonfusion. 
 
 to me to imply a confusion between a question of intellectual 
 
 equipment and a quite distinct question of scientific method. 
 Just as an author who wishes to give some intelligible 
 account of the soul of a people will do well, before under- 
 taking his task, to travel widely both in space and in 
 literature, to reflect on the nature of several races before 
 expounding the character of one, so an author who would 
 express the essence of a particular system of law will do 
 well to begin by availing himself of the discipline implied 
 in the study of a foreign system. In either case, the object 
 is to obtain a breadth of view, a sense of perspective, rather 
 than to discover positive material on which to base the 
 treatment of the subject. The practically minded law 
 student cares little to know that certain principles of his 
 
 > "Encyclopaedia Britannica," XXVII, 253. 
 
366 THE SCIENCES OF STATE LAW 
 
 own system, or something like them, may exist elsewhere. 
 He is interested, not in the universality of a principle, but 
 in the reality of that principle as a representation of rules 
 actually existing in his own system. Conversely, he is not 
 less interested in a principle which possesses this reality, 
 because it happens to be peculiar rather than general. 
 Prestige of 655. Such considerations appear so obvious that one is at 
 General ^^ j^gg ^^ explain why they should have been ignored, until 
 dence ex- one remembers that juristic thought has been slow to 
 plained by emancipate itself from the tyranny of a theory of Natural 
 theory of Law. That theory could not long survive the progress of 
 a law of historical methods of inquiry. But investigators were more 
 ready to admit the formal supremacy of such methods than 
 to accept all the consequences of the admission. Hence the 
 disposition to cling to the old fiction of universality in the 
 modified form of generality. The difficulties of this inter- 
 mediate position are illustrated by a particular concession 
 to the historical school which exponents of General Juris- 
 prudence have been impelled to make. "Jurisprudence," 
 declares Professor Holland, "is a progressive science. Its 
 generalizations must keep pace with the movement of 
 systems of actual law." To which Mr. Buckland has made 
 the very natural rejoinder, "This admission is somewhat 
 startling. A writer on the Jurisprudence of a single nation 
 might make it readily enough. But what is likely to be 
 the fate of a principle found in the law of, say, ten states 
 which go on developing on different lines ? The probabilities 
 are against its continuance as a general principle. And the 
 notion that some other general principle will arise to take 
 its place appears to be rather an article of faith than a 
 proposition on which a science can be based." ^ 
 
 ' Lam Qwwrterhj Beview, XXIV, 444, article on " The Difficulties of 
 Abstract Jurisprudence." 
 
THE SCIENCES OF STATE LAW 367 
 
 656. Happily for the law student, existing treatises on (S) Inoon- 
 General Jurisprudence reveal a practice which is in advance ™*®°"'"* 
 of profession. The profession of such treatises might lead fession and 
 us to suppose that their authors had laboriously constructed P™"*'**- 
 
 a table of the legal principles existing in different legal 
 systems, and had then selected the principles most generally 
 recognized without any regard to their relative importance 
 under particular conditions. There is little reason to suppose 
 that either Austin or Professor Holland constructed their 
 admirable works on such lines. Comparative analysis has 
 served the purposes of illustration rather than formed the 
 basis of their science. 
 
 657. In discussing the terms Historical Jurisprudence Oompar- 
 and Comparative Jurisprudence, I have made no reference l^^'^i 
 to the fact that the primary method in either of these Juris- 
 sciences may be used as an accessory method in the other. P™*^*""'*- 
 Comparative Jurisprudence may involve much historical 
 investigation before we can be quite sure of the nature of 
 
 the objects we compare; Historical Jurisprudence, while it 
 might be based upon the study of materials derived ex- 
 clusively from the history of a particular country, is more 
 likely to have a permanent value if it takes note of parallel 
 developments elsewhere. "EngUsh land law," writes Sir 
 F. Pollock, "cannot be understood at all without a great 
 deal of historical explanation ; it cannot be understood very 
 well without learning how peculiar the English history of 
 land tenure was from the Norman Conquest onwards — in 
 other words, without comparing the divergent fortunes of 
 English and Continental Feudalism."^ But the facts that 
 a work on Comparative Jurisprudence may occaaionally 
 employ the historical method, or that a ,work on Historical 
 
 ' Journal of CoMparaUme Legislation, N.S., XI, 78, article on " The 
 History of Comparative Jurisprudence." 
 
368 THE SCIENCES OF STATE LAW 
 
 Jurisprudence may occasionally resort to comparative 
 analysis for the purposes of illustration or correction, is no 
 justification for confusing the two sciences. The object of 
 Historical Jurisprudence is to trace development; that of 
 Comparative Jurisprudence is to compare two subjects at 
 some particular stage of their development. It would be 
 possible, however, to combine both historical and comparative 
 methods in such a way as to present a comparative theory 
 of legal development. "By the help of God," declared 
 Leibnitz, " I will some day compile a complete panorama of 
 the law wherein shall be arranged in parallel columns the 
 laws of all nations, of all countries, and of all ages." Such 
 a panorama may be conceived as the material of a science 
 which should examine the origin and development of law 
 uader various conditions of race and clime. With respect 
 to the possibilities of such a science, Mr. Bryce remarks, 
 "It is a weak point in the historical method as ap- 
 plied to the science or philosophy of law that it is more 
 appUcable to the law of any particular country than to the 
 theory of law in general, for the details of legal history 
 vary so much in different countries that immense know- 
 ledge and unusual architectonic power are needed to combine 
 their general results for the purposes of a comprehensive 
 theory." ^ 
 
 658. We have thus arrived at a classification of the legal 
 sciences : 
 
 1 " Studies in History and Jurisprudence," II, 186. 
 
THE SCIENCES OF STATE LAW 
 
 369 
 
 /regarded aa a 
 body of rules 
 
 Law 
 
 rwith reference to a 
 present content 
 
 I with reference to 
 
 their past 
 I develgpment 
 
 'to discover an ideal 
 code 
 
 to explain legal de- 
 velopment 
 
 reg»rded as the 
 subject-matter I to compare different | 
 of a Science \ systems as a 
 which purpoi» | means of dis- 
 ' covering 
 
 tc investigate a par- 
 ticular topic of 
 the law in seyeral 
 systems 
 
 to state the fun- 
 damental prin- 
 ciples of a 
 \ particular system 
 
 Legal exposition 
 Legal history. 
 
 ' by a priori or \ Natural Law. 
 
 mixed o priori I 
 
 and a poster- f 
 , iori process J Theory of 
 
 Legislation, 
 
 in one milieu Historical 
 
 Jurisprudence. 
 
 in several 
 
 Comparative 
 Historical 
 Jurisprudence, 
 
 a Jiis OerUium ■\ 
 
 a General 
 Jurisprudence 
 
 Comparative 
 Jurisprudence. 
 
 Particular 
 or National 
 Jurisprudence. 
 
 659, The borderland between the sciences indicated cannot Varying 
 be drawn with logical precision. In the nature of things, ^*.'°^ °' 
 there must be much overlapping. The relationship between to law 
 the sciences is one of co-operation, not of conflict. Each student, 
 must borrow from others conceptions which it does not itself 
 establish. All alike serve the great practical purpose of 
 giving new life and meaning to existing rule. Man is a dull 
 creature in whose hands the rule is apt to become inert. So, 
 aspiring to bring life and meaning to rule, aspiring to adapt 
 rules to an ever-changing social and economic milieu, he now 
 summons to his aid the evidences of the past, now turns to 
 the study of a foreign system, or concentrates his scrutinizing 
 2 B 
 
370 THE SCIENCES OF STATE LAW 
 
 glance upon the sacred texts of his own — everywhere justified 
 by the hope that he may succeed in seeing beneath externals 
 to the innermost meaning of tl>3 law by which he lives. But 
 whilst all the legal sciences in some degree contribute to this 
 ultimate purpose, they do so with varying degrees of success. 
 They have accordingly a varying value for the practically 
 minded student. The science of which that student is most 
 in need, appears to me to be Particular or National Juris- 
 prudence. The historical and comparative investigations 
 which have contributed to this science only concern him in- 
 directly. The special purposes of the science, and the means 
 by which those purposes may be served, are subjects to which 
 I propose to devote the remainder of the present excursus. 
 National 660. At the outset we must distinguish, more carefully 
 Jurispru- jiian has been usually done, between the needs of two classes 
 element- "f students — those who have yet to begin their legal studies, 
 ary law. and those who have already made considerable progress in 
 them. A student of the former class demands a treatise on 
 elementary law rather than on National Jurisprudence. He 
 needs a general description of the land he is about to explore 
 in order that he may obtain some general impressions to 
 which his own experience is hereafter to give a meaning and 
 content. He needs, in short, an elementary outline of his 
 system, with just sufiBcient in the nature of detailed illus- 
 tration to make that outline intelligible. Nor, if be be wise, 
 will he despise a foreword vas to ways and means of study. 
 'The use of law books and the appreciation of legal authori- 
 ties," says Sir F. Pollock, " can be fully learned only by as- 
 siduous practice ; but here, again, it has long seemed to me 
 that something can be done to lighten the first steps of the 
 beginner."^ 
 A.rtistic ^^^- Naticpal Jurisprudence eiffeots more ambitious pur- 
 purposes of poses than that of providing the student with a general 
 
 National 
 
 * " A First Book on Jurisprudence," p. 8. 
 
THE SCIENCES OF STATE LAW 371 
 
 introduction to legal studies. The nature of those purposes Juris- 
 may be distinguished as artistic or practical. The artistic P™"^®""* 
 purpose is to meet the demand, which must be felt more or 
 less consciously by every student worthy of the name, to 
 realize the unity of his subject and the harmony which per- 
 vades it. In the study of the law, as in all great study, there 
 is implied on the part of the student some sense of beauty, 
 some love of truth for its own sake, some will to discover 
 under an infinite variety, the unity which gives distinction 
 and charm to every work of art. 
 
 662. What practical purposes are served by a National Practioal 
 Jurisprudence ? Obviously, a student who has once realized P'"P°°"" 
 that the rules of law are portions of an ordered system will 
 more easily remember, and more readily apply, those rules. 
 It is a more important if less obvious fact, that such a realiza- 
 tion implies an added insight into the meaning of rules. In 
 realizing the nature of law, we acquire a new power of inter- 
 preting laws. In appreciating our subject-matter as a whole, 
 we gain a knowledge which enables us to press down to 
 greater depths the comprehension of the rules and principles 
 which we have previously formulated. 
 
 ■ 663. The means for realizing the artistic and practical Means for 
 purposes of National Jurisprudence are not always the same. *''*^.'^ '"**'■ 
 Juridic art is concerned with the form of law ; it implies an 
 analysis of legal principle and a theory of leg£!,l classification. 
 Practical Jurisprudence, on the other hand, concerned with 
 meaning rather than form, implies in addition to such an 
 analysis some account of what law stands for in the general 
 scheme of things, and supremely a theory of the ends which 
 law serves. " I must confess to a certain feeling,'' writes 
 Lightfoot, " that law is meant to serve the interests of the 
 people, and that no treatment of it can be called scientific 
 which does not show how it contributes to this end. ... As 
 long as we take our distinctions solely from English law and 
 
of law. 
 
 372 THE SCIENCES OP STATE LAW 
 
 explain them merely by history, we do not enter upon 
 science, for the distinctions and principles may he merely 
 accidental, and the historical reasons may have no reference 
 to utility. If, however, we were to show that these dis- 
 tinctions and principles have a real basis in the wants of the 
 people, we should then treat the law scientifically, and we 
 should work out the Particular Jurisprudence of the 
 country." ' 
 The ends 664. Two ways of regarding the ends which law serves 
 have alike a sound justification in fact. The one we may 
 call the economic, the other the ethical. According to the 
 economic view, the purpose of law may be expressed as the 
 discovery of the conditions under which man adapts himself 
 to his environment in so far as those conditions are main- 
 tainable by the organized force of a political society ; the 
 predominant and determining factor in the development of 
 law must be sought in man's constant endeavour to respond 
 to the pressure of economic facts, to discover some way of 
 realizing his will to live ; laws, in a word, are what economic 
 necessities have made them. According to the ethical view, 
 the purpose of law is to realize man's idea of the just. 
 Although what is just may be difficult for him to determine, 
 yet to know the just, and to do it, is his mission. "Whether 
 justice be regarded as something divinely revealed to man ; 
 or as something absolute, immutable, superior to contingencies 
 of fact, and determinable by some a priori process of reason- 
 ing ; or again, as something whose meaning and nature are 
 being revealed in the long course of social evolution and so 
 to be determined by the analysis of human experience — in 
 either of these cases we are confronted by the fact of an 
 ideal of justice to which it is held to be the mission of law to 
 conform. "Justice is," said Carlyle, "whether I can define 
 it or not." 
 
 ' "The Nature pf Positive Law," p. 11. 
 
THE SCIENCES OF STATE LAW 373 
 
 665. The legal doctrine of our time has been more ready Import- 
 to acknowledge the importance of the economic than of the """f °^ 
 ethical view of the ends which law serves. This is, however, view of 
 a mere reaction against older doctrine which should be ^*^' 
 avoided. To think of man as solely impelled by economic 
 or elementary social necessities, is suggestive of the view 
 which holds him a mere creature of his environment. Man 
 not only adapts himself to his environment, but he also 
 adapts environment to himself. He seeks not merely to 
 live, but to live in accord with some ideal of justice. The 
 conditions in which he has to live are not alien influences 
 affecting him as the storm affects a windmill ; they are the 
 material out of which he fashions his life in accordance with 
 ideals Which he has come to revere. As Vico said, with 
 profound truth, interest and necessity are no more than the 
 occasions which awake in men that consciousness of right 
 which is the constitutive principle of social life.^ I believe 
 that evidence as to the truth and the importance of this 
 view of law may be found in a study of the lives of great 
 lawyers. Most of the lawyers who have profoundly in- 
 fluenced the course of legal interpretation in their generation 
 however limited in some respects their intellectual outlook 
 may have been, have yet been distinguished by a deep 
 reverence for Justice. It has been said- of Papinian that 
 if he was the prince of jurists it was because he knew 
 better than any of his contemporaries how to subordinate 
 law to morals. " He has no equal in the precision with which 
 he states a case, elimioating all irrelevancies of fact, yet 
 finding relevancies of humanity that would have escaped the 
 vision of most." * 
 
 666. Whether, therefore, we dwell more on the economic Need for » 
 or the ethical views of law, whether we regard it as primarily ^°™?"" 
 
 — theory. 
 
 • Flint, " Vico," p. 140. " Muirhead, " Roman Law," p. 324. 
 
374 THE SCIENCES OF STATE LAW 
 
 a result of the pressure of elementary social and economic 
 necessities, or as primarily a realization of man's idea of the 
 just, we need not ignore the indisputable element of truth 
 in the other view. A true juristic theory will, in fact, 
 combine them. This implies a wider interpretation of law 
 than has been hitherto deemed necessary. It is, however, 
 an interpretation towards which the best thought of our 
 time is tending. "I look forward," writes Chief Justice 
 Holmes, "to the time when the part played by history 
 in the explanation of dogma shall be very small, and when, 
 instead of ingenious research, we shall spend our energy on 
 a study of the ends sought to be obtained, and the reason for 
 desiring them. The present divorce between schools of 
 political economy and law seems to me an evidence of how 
 much progress in philosophical study still remains to 
 be made." Further confirmation may be found in the 
 practice of the law schools of Prance, Germany, Bussia, 
 Switzerland, Hungary, Greece, and Japan. "Les sciences 
 politiques," said a Professor from Japan at a recent Congress, 
 " sont I'apanage de la faculty de droit." " Les juristes," said 
 Michel Soboleff at the same Congress, " doivent §tre bien au 
 courant de cette science (Political Economy), parce que les 
 normes juridiques touchent principalement les relations 
 feonomiques varices, I'achat et la vente, le loyer, le fermage, 
 la propri^t^, etc. Pour appliquer les normes (Ju droit, il est 
 n&essaire de savoir et de comprendre la nature des relations 
 vitales qu'elles r^glent." ^ 
 Such a ^^'^' ^^ °^*y ^® inferred from what has been said, that 
 
 theory the to see law Steadily and see it whole is a somewhat toilsome 
 N ti °^l business. Sociology, ethics, politics, legislation, and political 
 Juriapru- economy suggest a range of studies wliich is too wide to be 
 denoB within the possibilities of a course of legal study. The law 
 
 ' "Le Premier Congres de rEnseignement des Sciences Sociales," 
 pp. 23, 26, 85, 86, 93, 121, 129. 
 
THE SCIENCES OF STATE LAW 375 
 
 student will say, " All this is too wonderful for me ; I cannot 
 attain unto it." Probably he will be right. Here, as else- 
 where, he may find it necessary to content himself with a 
 compromise. National Jurisprudence should endeavour to 
 aid him in achieving this compromise. Each of the sciences 
 to which I have referred has its own special view of law. 
 A National Jurisprudence cannot hope to rival those sciences 
 within their own special sphere. Yet by their aid it may 
 succeed in presenting such a view of law and of the funda- 
 mental principles and conceptions of law as will enable the 
 student to realize in his subject a new life and meaning, to 
 get nearer that spirit which saves from the despotism of the 
 letter. 
 
 668. I have stated at some length the practical purposes Prevalent 
 which might be served by a National Jurisprudence. The scepticiam 
 excuse for this statement might be found, if excuse were value of 
 needed, in a prevalent scepticism which has been inherited ^'at'onal 
 from times when the avowedly scientific treatment of law ^ence ex- 
 disdained to serve the wants of practice. " All who plained. 
 have written of laws," says Bacon, "have trea,ted that 
 subject as philosophers or as lawyers. And the philosophers 
 propound many things beautiful in speech but remote from 
 use." Even in times more modern, when the scientific 
 treatment of law has ceased to be a sort of Jurisprudence in 
 the air, it has yet recognized its practical function very 
 inadequately. The logic of law has dominated the spirit. 
 Hence an excessive attention to such matters as the theory 
 of legal classification — a subject of more interest to the 
 writers of text-books than the students of law. We shall 
 only conquer this despotism of the logic, we shall only 
 learn how the practical purposes of National Jurisprudence 
 can be effected, when we have realized the full significance 
 of the fact that law is the resultant of innumerable social 
 and economic forces, and cannot be adequately studied in 
 
376 THE SCIENCES OF STATE LAW 
 
 isolation from those forces. Those forces are present at the 
 making of law; they are no less obviously present in its 
 application. "Before a law attains its ends through the 
 processes of administration and interpretation," very justly 
 observed Sheldon Amos, "it is directly qualified by every 
 strong wave, and by all the multitudinous weaker waves 
 of thought and feeling by which, for the time, the community 
 is swayed." 1 
 Refuted : 669. Let any student, who is disposed to regard all this as 
 toeipw-r ^^^ theory, reflect for a moment upon some of the more 
 •noe. important economic facts of the nineteenth century— the 
 multitudinous inventions of modern science, the rapid de- 
 velopment of commerce, trade and industry, the vast aggrega- 
 tions of modern capital, the power of the modem trade 
 union. Let him further reflect upon the great humanitarian 
 and democratic movement of the nineteenth century, which 
 has transformed theology, has emancipated woman, has 
 changed history from a record of dynasties into a story of 
 peoples, and has taught art and literature to see and .express 
 something of the sacredness of the mean and lowly. Let 
 any student, who reflects upon these things, ask himself 
 whether it is conceivable that they have not a profound 
 significance for the lawyer as well as for the legislator. The 
 Law Reports afford abundant evidence on this matter. Law 
 is proverbially conservative ; yet it would need to be a thou- 
 sand times more conservative than it is, if new economic 
 facts and new social ideals did not re-shape it, modifying the 
 letter or breathing into that letter a new spirit. The lawyer, 
 who wishes to forecast the judicial interpretation of any 
 problem that is not already covered by precise rule will be 
 the more capable of doing so if he has learned to regard 
 law, not as something existing in complete detachment 
 
 1 " The Science of Jurisprudence," p. 18. 
 
THE SCIENCES OF STATE LAW 377 
 
 from life, or as a mere heau chef d'ceuvre de logigue, but 
 rather as something which is being constantly re-shaped by 
 the facts of life, the thought and aspiration of men. 
 
 670. Scepticism on this point has sometimes entrenched (*) The 
 itself behind the authority of the great lawyers of Imperial 1'^^*'^°' 
 Eome. " Consider the lilies how they grow," it is said in Eome. 
 effect; "they toil not, neither do they spin. Yet Solomon 
 in all his glory was not arrayed as one of these."' Eoman 
 lawyers certainly managed very well without the help of 
 any special science of the law. Yet I believe that a con- 
 sideration of the reasons for the high reputation which the 
 Eoman lawyers have so justly gained, will tend to confirm, 
 rather than weaken, our confidence in the modern claim for 
 a science of law. In the first place, the Eomans were men 
 of great intellectual power, who were capable of doing 
 without many aids which lesser men would be unwise to 
 uef use. In the second place, they were indefatigable students. 
 They had a profound knowledge of their legal system in all 
 its inter-relation of principle and detail. The student of the 
 Digest is astounded to discover how rarely the Eoman jurists 
 erred in their application of legal rules to the most diflBcult 
 and detailed groups of facts. Their solutions harmonize 
 with one another, and with the system as a whole. Their per- 
 ception of the right rule to be applied seems so unerring 
 that we are tempted to think of them as divinely inspired, 
 or as gifted with some infallible and inexplicable instinct. 
 In reality, they decided well because they had studied much. 
 In the third place, they were distinguished by an exceptional 
 regard for Justice. Such a regard may be assumed from the 
 mere position of the Eoman as an Imperial Eace. A nation 
 may conquer other nations without having more than the 
 merely military virtues ; it cannot hold them in subjection 
 for long centuries without being itself distinguished for an ex- 
 ceptionally keen sense of fair play — a sense which both the 
 
378 THE SCIENCES OF STATE LAW 
 
 Eoman and the Anglo-Saxon have possessed in a rare degree. 
 Finally, though the Eomans had no formulated recognition 
 of the purposes of a National Jurisprudence as we under- 
 stand the term, there are abundant evidences that they 
 realized those purposes in indirect ways. Most of them 
 were men of varied culture and philosophical training. Ifo 
 jurists as a class have ever realized more fully the impera- 
 tive call of law to serve practical ends. "The Eoman 
 jurists," writes Mr. Bryce, " reason and write as men who 
 have been thoroughly trained, who have been imbued with 
 a large and liberal view of law, who have philosophy and 
 analysis and the sense of historical development equally at 
 their command. They are endowed, in fact, with the quali- 
 ties which, as we have been led to think, a course of the 
 Theory or Science of Law ought to impart. How, then, did 
 they acquire these qualities ? First, by the study of philo- 
 sophy. Though our data scarcely justify a general state- 
 ment, it seems probable that many of the jurists, especially 
 such as grew up at Eome, received instruction in Greek 
 philosophy. It has been suggested that not a few professed 
 the doctrines of the Porch. Anyhow, the conception of 
 Nature as a force or body of tendencies prompting and 
 guiding the progress of law was familiar to them, and 
 appears to have influenced their ideas. . . . The Eomans, 
 though saying little about the broad aspects or so-called 
 Philosophy of Law, do, in fact, pursue it in a philosophic 
 spirit, and to this the excellence of their system is largely 
 due."i • 
 
 ' " Studies in History and Jurisprudence," II, 200-7. 
 
INDEX 
 
 AOE 
 
 Acts determined specifically . 14 
 
 — to explain positive laws . 23 
 Analogy, meaning of . ,31 
 Aristocracy, classification of . 120 
 
 — every supreme Government 
 
 is an 118 
 
 Aristotle, diflfereutiation between 
 legislative and judicial func- 
 tions 132 
 
 Austin, analysis of sovereignty 281 
 
 — classification of fictitious or 
 
 legal persons . . . 262 
 
 — criticism of semi-sovereign, . 139 
 
 — definition of legal right . 65 
 
 — „ law criticized . . 331 
 
 — division of commands . . 45 
 
 — ,, governmental powers 131 
 
 — general argument, review of 20 
 
 — law of nature . . .70 
 
 — limitation of sovereign power 158 
 
 — on declaratory and repealing 
 
 statutes .... 334 
 
 — on political civil liberty . 176 
 
 — on rights of sovereignty, 
 
 criticism of . . . 193 
 
 — on unconstitutional law . 167 
 
 — on use of tenns "liberty" 
 
 and " right *^ . . .180 
 
 — test of general commands . 17 
 
 — view of command, unten- 
 
 ability of . . . .342 
 Autonomic laws . . .46 
 
 Bacon, "law is nothing else than 
 a commanding rule " . .19 
 
 Bentham, definition of sover- 
 eignty .... 163 
 
 Blaokstone, distinction between 
 law and a particular com- 
 mand . . . .14 
 
 PAQE 
 
 Blaokstone, on human laws . 71, 
 
 72, 74, 92 
 
 — definition of positive law . 92 
 Bodin, leges imperii . . . 161 
 Bosanquet, on civil liberty . 177 
 Boutmy „ ,, . . 179 
 Bryce, de jure and de facto . 234 
 
 — on judicial authority . . 301 
 
 — on legal theory and fiction . 306 
 
 — on obedience . . . 202 
 Burgess on sovereignty . . 163 
 
 Capito, Ateius, test of general 
 
 commands . . . .18 
 CivU liberty . . . 177, 179 
 Clark, criticism of generality . 18 
 
 — definition of positive, proper, 
 
 strictly so called . . 34 
 Coincidence and conflict of laws 66 
 Command analysed . . ,45 
 
 — correlative with duty . . 6 
 
 — general meaning of Austinian 
 
 test 17 
 
 — inseparably connected with 
 
 duty and sanction . . 10 
 
 — is a signification of desire . 5 
 
 — may amount to a law or rule 15, 40 
 
 — not the essence of law . . 341 
 Gockbum, usage the origin of 
 
 law merchant , . . 307 
 Confederation, distinction be- 
 tween, and federal state . 151 
 Contract, criticism of original 
 theory .... 211 
 
 — theory of social . . . 227 
 Convention, main essentials of 220 
 
 — not present in origin of society 221 
 
 — no necessary connection with 
 
 duty 226 
 
 Corporation, a, subject of rights 257 
 
 379 
 
380 
 
 INDEX 
 
 Corporation, definition of 256, 260 
 
 — early history of . . . 261 
 
 — in law a person . . . 257 
 
 — V. fictitious person . 262 
 
 — V. physical person . . 263 
 
 — V. state .... 267 
 Cnstomarylaw is imperative . 28 
 
 — laws not a, species of com- 
 
 mands . . .27, 69 
 Customs, a persuasive source of 
 law 314 
 
 — general .... 321 
 
 — particular . . . 315-18 
 
 — when they became law . 309 
 
 Declaratory acts, when not retro- 
 spective in Great Britain , 23 
 
 — laws classed with laws meta- 
 
 phorical . . . .95 
 Delegation of sovereign powers 124 
 Democracy, definition of . . 120 
 Deontology, science of 35, 71, 75 
 Determinate and indeterminate 55 
 Dewey on custom law . . 829 
 Dicey, meaning of state and social 
 
 group .... 254 
 Difierentiation of functions . 132 
 
 — of organs . . . .133 
 Divine law, definition of . 1, 81 
 Duty, meaning of , . .5 
 
 — correlative with command . 6 
 
 — inseparably connected with 
 
 command and sanction . 10 
 
 — no necessary connection with 
 
 convention . . . 226 
 
 Ethics, science and meaning of 35 
 Executive v. legislative powers 128 
 
 Falok on value of "corpus juris 
 civilis" .... 249 
 
 Federal state and Unity state, 
 distinction . . . 149 
 
 Federal state and the Confedera- 
 tion 151 
 
 Generality, as an 
 ment in law 
 
 essential ele- 
 
 18 
 
 Gierke, on medieval notion of 
 
 sovereignty . . .70 
 Good as applied to a human law 36 
 
 — as applied to the law of God 38 
 Government, every, arises and 
 
 continues through the people's 
 consent, considered . 199, 202 
 
 — every supreme, is a monarchy 118 
 
 — de jure and de facto . . 228 
 
 — forms of supreme . .117 
 
 — free and despotic . . . 178 
 
 — lawful and unlawful . . 233 
 
 — purpose of, not the protection 
 
 of property nor the increase 
 of wealth . . . .195 
 Green, analysis of sovereignty . 279 
 GrotiuB, definition of sovereignty 113 
 
 — on sovereign powers . . 286 
 Group, beginning of a . . 259 
 
 — in action .... 268 
 
 — social, the State is a . . 254 
 unity of the . . . 258 
 
 — the unincorporated . . 262 
 
 Hearn, on orders to soldiers . 49 
 Hobbes, definition of sovereignty 113 
 
 — on sovereign power . 185, 229 
 Holland, definition of law , 27 
 Honour, law or rules of . .49 
 Human laws, two classes of . 2 
 Huxley, on social contract . 228 
 
 Ihering, on legal development . 159 
 
 — theory of law . . . 361 
 Imperfect, different meanings of 26 
 Independent, sovereign portion 
 
 of the society is . . .97 
 
 — political society, definition . 238 
 Indeterminate and determinate, 
 
 distinction between . . 55 
 Inferior, meaning of . . 18 
 
 International law . 50, 51. 106 
 
 Judge, English, as lawmaker . 288 
 
 — cannot overrule statute . 297 
 Judical action, limitation upon . 297 
 
 — authority, source of . . 300 
 Jurisprudence, comparativa . 959 
 
INDEX 
 
 381 
 
 PjLOE 
 
 Jarupradence, definition of 76 
 
 — is the knowledge of law as a 
 
 science .... 246 
 
 — is positive law ... 1 
 
 — historical .... 358 
 
 — and legislation . . . 246 
 
 — national , . . 370, 374 
 
 — science and meaning of . 35 
 Jus Gentium .... 360 
 Jus naturale . . . .90 
 
 Kant, on legislature . 
 
 159 
 
 Law, a growth .... 347 
 
 — a unity .... 346 
 
 — Austin's argument on . .20 
 
 — definition of . 1, 3, 16, 354 
 
 — and laws, distinction between 340 
 
 — different kinds of . 
 
 31 
 
 — divine . . . 1 
 
 . 81 
 
 — every, or rule is a command 
 
 4 
 
 — human, divided into two 
 
 
 classes . . . . 
 
 2 
 
 — is a command which obliges 
 
 
 a person ... 16 
 
 , 40 
 
 — is a commanding rule . 
 
 19 
 
 — is older than State 
 
 333 
 
 — is supreme not the State 
 
 334 
 
 — may amount to a command . 
 
 15 
 
 — more than command . 
 
 346 
 
 — .of God, definition of . 
 
 1 
 
 — of honour .... 
 
 49 
 
 — of nature . . . 1 
 
 70 
 
 — positive, existing by posi- 
 
 
 tion, 2, 28, 38, 34, 38, 70, 
 
 
 definition of . . . 
 
 235 
 
 — proper, analogy of, with law 
 
 
 set by general opinion 
 
 53 
 
 — purpose of . 
 
 349 
 
 — set by fashion and general 
 
 
 opinion .... 
 
 250 
 
 — by political superiors . 2 
 
 , 96 
 
 Laws, absolute 
 
 26 
 
 — autonomic .... 
 
 46 
 
 — as commands 
 
 337 
 
 — by analogy, by metaphor 
 
 32, 
 
 83 
 
 ,88 
 
 Laws, coincidence and conflict of 65 
 
 — customary, not a species of 
 
 command . . 27, 69, 334 
 
 — declaratory . . . .95 
 
 — distinguished from commands 11 
 
 — improperly and properly so 
 
 called . . . .31 
 
 — legal, what may be styled 64 
 
 — of imperfect obligation . 24 
 
 — religious . . . .64 
 
 — to repeal laws . . .23 
 
 — set by men in pursuance of 
 
 legal rights . . .43 
 
 — when they are general . 16 
 
 — which merely create rights . 26 
 
 — which seem not imperative . 26 
 
 — which are not commands 22 
 Legal rights against sovereign 
 
 government . . .190 
 
 — rights of sovereign against 
 
 foreign subjects . . 192 
 
 — rights defined by Austin . 65 
 Legally a sovereign cannot be 
 
 bound .... 240 
 Legal sciences, classification of . 367 
 
 — theory and fiction, confusion 
 
 of 305 
 
 Leges legum , . . . 329 
 
 — imperii .... 161 
 Legislation, science of . .35 
 
 — definition of . . . 246 
 
 — theory of . . . .357 
 Legislative, difiFerentiation be- 
 tween, executive and judicial 
 functions . . . 128, 132 
 
 Lex M]ia, Sentia . . .25 
 
 — Furia Testamentaria . . 25 
 Liberty, nature of political or 
 
 civil 175 
 
 Limited monarch, the . .172 
 Lindley on liberty of British 
 
 subject .... 181 
 Locke o> human understanding 79 
 
 — on meaning of law . . 341 
 
 — on power of legislature , 159 
 
 — on sovereign power . , 229 
 
382 
 
 INDEX 
 
 FAOS 
 
 Maine on generality . . .19 
 Mansfield, moral obligation and 
 
 sufficient consideration . 78 
 Markby, as to liability . . 78 
 
 — on rules .... 312 
 Marshall on governmental func- 
 tions 133 
 
 Martens, Von, definition of 
 sovereignty . . . 115 
 
 — positive international law 36, 75 
 Merriam on sovereignty , .142 
 Metaphor, meaning of . .31 
 Monarchy, every supreme govern- 
 ment is a . . . . 118 
 
 — limited, a form of aristocracy 121 
 Montesquieu, spirit of laws . 91 
 Morality, positive 3, 33, 34, 44, 49 
 Morals, science of . . .35 
 Morley on moral principles . 86 
 
 Natural law, definition of . 1 
 
 Nature, state of . . . 108 
 
 Obedience, habit of . , .98 
 
 — motives of . . . . 202 
 Obligation . . . .6 
 Oligarchy, definition of . . 120 
 Opinion, laws set by . . 2 
 
 Pactum oonstitutionis subjec- 
 
 tionis . . . .208 
 Paley, analysis of obligation . 6 
 Permissions or permissive laws . 23 
 Permissive laws always impera- 
 tive 24 
 
 Persons, classification of . . 270 
 Political government, causes of 195 
 
 — society, independent, defined 238 
 
 — superiors .... 2 
 Pollock, on use of law books . 370 
 Positive, definition of, by Clark 34 
 
 — law . 1, 28, 33, 34, 38, 71, 75, 92, 
 
 232, 242 
 Positive law, definition of . 235 
 
 — essential difference of . . 155 
 
 — something more than a com- 
 
 mand .... 9 
 
 PAOK 
 
 Positive moral rules, classifica- 
 tion of . . 44, 49, 71, 75 
 Positive morality . 3, 33, 41, 233 
 Power, legislative v. executive . 128 
 
 Beasonableness, significance of 
 
 test of 
 
 . 328 
 
 Rewards are not sanctions 
 
 . 7 
 
 Eoman law, value of 
 
 . 248 
 
 Rousseau, on law 
 
 . 29 
 
 — governmental functions . 133 
 
 — sovereign power . 
 
 . 229 
 
 Right is might, discussed 
 
 . 186 
 
 Rule, every, or law is a 
 
 com- 
 
 mand 
 
 4, 11, 15 
 
 Rules, positive moral 
 
 . 41 
 
 — of honour, meaning of 
 
 . 49 
 
 — of art „ 
 
 . 87 
 
 Salmond, on judicial usage . 299 
 Sanction, an enforcement of 
 obedience .... 6 
 
 — inseparably connected with 
 
 duty and command . .10 
 Savigny, Eoman law, 91,249, 254, 266 
 Science of jurisprudence . . 35 
 
 — of legislation . . 35, 71 
 Seeley on destruction of govern- 
 ments .... 183 
 
 Sidney on destruction of govern- 
 ments .... 184 
 
 Sidgwick, positive law and 
 morality . . . .54 
 
 Society, explained . . .101 
 
 — independent political . . 103 
 Sovereign government tried before 
 
 its own tribunals . . 190 
 — , half, states, 134 ; position of 186 
 
 — legal rights against foreign 
 
 subjects 191 
 
 — may have rights against the 
 
 subject .... 193 
 
 — subject may have a right 
 
 against . . . .194 
 
 — power, limits of . . 155, 157 
 Sovereignty, definition of , 11^15 
 
 — in international law, jurispru- 
 
 dence, political science 275-81 
 
INDEX 
 
 383 
 
 Spencer, Herbert, on society 
 Spinoza, on divine law 
 State, law, science of 
 — the, definition of . . 254 
 Stubbs, on corporations . 
 Superior, meaning of 
 
 PAGE 
 
 227 
 
 9 
 
 355 
 
 , 266 
 
 261 
 
 18 
 
 PAGB 
 
 Ulpian, the purpose of law . 8, 76 
 
 — jug naturale • . . .88 
 
 — test of general commands . 18 
 Unconstitutional, meaning of , . 
 
 158, 167 
 
 Westlake, as to classification of 
 law 51 
 
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