Lecture XII: Sovereignty
The historical theories commonly received among English lawyers have done so much harm not only to the study of law but to the study of history, that an account of the origin and growth of our legal system, founded on the examination of new materials and the re-examination of old ones, is perhaps the most urgently needed of all additions to English knowledge. But next to a new history of law, what we most require is a new philosophy of law. If our country ever gives birth to such a philosophy, we shall probably owe it to two advantages. The first of them is our possession of a legal system which for many purposes may be considered indigenous. Our national pride, which has sometimes retarded or limited our advance in juridical enquiry, has kept our law singularly pure from mixture with the stream of legal rules flowing from the great fountain of the Roman Corpus Juris, and thus, when we place it in juxtaposition with any other European legal system, the results of the comparison are far more fruitful of instruction than those obtained by contrasting the various Continental bodies of law with one another. The second advantage I believe to consist in the growing familiarity of Englishmen with the investigations of the so-called Analytical Jurists, of whom the most considerable are Jeremy Bentham and John Austin. Of this advantage we have a monopoly. Bentham seems to be exclusively known in France and Germany as the author of an unpopular system of morals. Austin is apparently not known at all. Yet to Bentham, and even in a higher degree to Austin, the world is indebted for the only existing attempt to construct a system of jurisprudence by strict scientific process and to found it, not on ‡ 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.
An important distinction between Bentham and Austin is not as often recognised as it ought to be. Bentham in the main is a writer on legislation. Austin in the main is a writer on jurisprudence, Bentham is chiefly concerned with law as it might be and ought to be. Austin is chiefly concerned with law as it is. Each trespasses occasionally on the domain of the other. Unless Bentham had written the treatise called the 'Fragment on Government,' Austin's 'Province of Jurisprudence Determined,' which sets forth the basis of his system, would never probably have been composed. On the other hand, Austin, in his singular discussion of the theory of utility as an index to the Law of God, has entered on an investigation of the class followed by Bentham. Still the description which I have given of their objects is sufficiently correct as a general description, and those objects are widely different. Bentham aims at the improvement of the law to be effected by the application of the principles now indissolubly associated with his name. Almost all of his more important suggestions have been adopted by the English Legislature, but the process of engrafting on the law what to each successive generation seem to be improvements is in itself of indefinite duration, and may go on, and possibly will go on, as long as the human race lasts. Austin's undertaking is more modest. It would be completed, if a Code were produced perfectly logical in order of arrangement and perfectly lucid in statement of rule Jurisprudence, the science of positive law, is sometimes spoken of nowadays as if it would bring the substance of the law into a state of indefinite perfection. It would doubtless, if it were carried far, lead indirectly to great legal reforms by dispelling obscurities and dissipating delusions, but the investigation of the principles on which the direct improvement of substantive legal rules should be conducted belongs nevertheless not to the theorist on jurisprudence but to the theorist on legislation.
The portion of Austin's Lectures which sets forth the basis of his system, and which was published several years ago as the 'Province of Jurisprudence Determined,' has long been one of the higher classbooks in this University; and, taken together with the other lectures more recently given to the world (though unhappily in a fragmentary shape), it must always, or for a long time to come, be the mainstay of the studies prosecuted in this Department. Making the utmost acknowledgment of the value of the book, I find it impossible not to recognise the magnitude of the difficulties which it occasions to the beginner. Those which have their origin in peculiarities of style and which seem to be attributable to the perpetual commerce of thought in which the writer lived with his precursors, Bentham and Hobbes, I find to be practically less grave than difficulties of another sort which arise from the repulsion created in the mind by the shape in which the conceptions of law, right, and duty are presented to it by Austin's analysis. Of course, so far as this distaste is caused by unpalatable truth, any tenderness shown to it would be wasted; but even thus it is a misfortune, and, if it be in any degree provoked by avoidable causes, such as methods of statement or arrangement, no pains bestowed on the attempt to remove it to this extent would be thrown away. A very frequent effect of forcing on students of active mind and industrious habits a system or subject which for some reason or other is repugnant to them is to make them regard it as so much dogma, as something resting on the personal authority of the writer with whose name it happens to be associated. Now nothing could be more unfortunate for the philosophy of law than that the system of the 'Province of Jurisprudence Determined' should come to be regarded simply as Austin's system -- as standing by the side. of Blackstone's or Hegel's or any other system -- as interchangeable with it or equivalent to it. For, when certain assumptions or postulates have been made, I am fully convinced that the great majority of Austin's positions follow as of course and by ordinary logical process. These assumptions do not appear to me to be stated and described by Austin with sufficient fulness -- possibly because, though he is a comparatively modern writer, a part of the enquiries necessary for such statement had in his day been barely commenced -- but, whatever the cause, the result is that he seems to me open to the same charge as some of the greatest writers on Political Economy who have omitted to set forth at the outset with adequate distinctness the limited objects of their science, and who have thus attracted to it a mass of prejudice of which it may never possibly get rid. The present Lecture is an attempt to show what a certain number of these assumptions or postulates are; in that which follows it, I endeavour to show how these assumptions are affected by some conclusions which we have arrived at in former Lectures during our investigation of the early history of society. (Supra, Lectures I to XI) I think it best for my purpose to begin with calling attention to the definition of Sovereignty. Beyond all doubt this is the logical order of the discussion undertaken by Austin, and I find it difficult to understand, except on one hypothesis, why, deserting the arrangement of Hobbes, he began the discussion of this part of his subject by the analysis of Law, Right and Duty, and ended it with an account of Sovereignty which it seems to me should have come first. I imagine, however, that Blackstone influenced him, as he did Bentham, so to speak, by repulsion. Blackstone, following Roman Institutional writers, begins with a definition of law and proceeds to give a theory of the connection of the various legal conceptions. The desire to expose the fallacies of this portion of the Commentaries furnished Bentham with his principal motive for writing the Fragment on Government, and Austin with his chief inducement to determine the Province of Jurisprudence, and the latter seems to me to have thought that the propositions he disputed would be most effectually disposed of, if they were contradicted in the order given them by their author. However that may be, the branch of my subject on which I shall first have to enter may be described as an enquiry into the probable mode in which Austin's analysis would have been affected, if he had begun in his first Lecture with the examination of the nature of Sovereignty. This examination he placed in the Sixth, which, so far as the 'Province of Jurisprudence' is concerned, is the last of his Lectures.
I believe I may assume that most of my hearers are familiar with the general character of the investigation prosecuted by Austin in the Treatise to which I have referred, but, as his definitions are not easily carried in the memory in their complete shape, I will give his descriptions of an Independent Political Society and of Sovereignty, the two conceptions being interdependent and inseparable from one another.
'If (he says) a determinate human superior, not in the 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.'
He then proceeds: 'To that determinate superior the other members of the society are subject; or on that determinate superior the other members of the society are dependent. The position of its other members towards that determinate superior is a state of subjection or a state of dependence. The mutual relation which subsists between that superior and them, may be styled the relation of Sovereign and Subject, or the relation of Sovereignty and Subjection.'
I may perhaps save the necessity for part of the amplification and explanation of these definitions contained in the Chapter in which they occur, if I state Austin's doctrine of Sovereignty in another way -- more popularly, though without, I think, any substantial inaccuracy. It is as follows: There is, in every independent political community -- that is, in every political community not in the habit of obedience to a superior above itself -- some single person or some combination of persons which has the power of compelling the other members of the community to do exactly as it pleases. This single person or group -- this individual or this collegiate Sovereign (to employ Austin's phrase) -- may be found in every independent political community as certainly as the centre of gravity in a mass of matter. If the community be violently or voluntarily divided into a number of separate fragments, then, as soon as each fragment has settled down (perhaps after an interval of anarchy) into a state of equilibrium, the Sovereign will exist and with proper care will be discoverable in each of the now independent portions. The Sovereignty over the North American Colonies of Great Britain had its seat in one place before they became the United States, in another place afterwards; but in both cases there was a discoverable Sovereign somewhere. This Sovereign, this person or combination of persons, universally occurring in all independent political communities, has in all such communities one characteristic, common to all the shapes Sovereignty may take, the possession of irresistible force, not necessarily exerted but capable of being exerted. According to the terminology preferred by Austin, the Sovereign, if a single person, is or should be called a Monarch; if a small group, the name is an Oligarchy; if a group of considerable dimensions, an Aristocracy. if very large and numerous, a Democracy. Limited Monarchy, a phrase perhaps more fashionable in Austin's day than it is now, is abhorred by Austin, and the Government of Great Britain he classes with Aristocracies. That which all the forms of Sovereignty have in common is the power (the power but not necessarily the will) to put compulsion without limit on subjects or fellow-subjects. It is sometimes extremely difficult to discover the Sovereign in a given State, and, when he or it is discovered, he may fall under no recognised designation, but, where there is an independent political society not in a condition of anarchy, the Sovereign is certainly there. The question of determining his character is, you will understand, always a question of fact. It is never a question of law or morals. He who, when a particular person or group is asserted to constitute the Sovereign in a given community, denies the proposition on the ground that such Sovereignty is an usurpation or a violation of constitutional principle, has completely missed Austin's point of view.
The definitions which I read from the Sixth Lecture furnish Austin's tests for discovering the seat of Sovereignty in independent states. I will again refer to a few of the most important of them, though very briefly.
First, the Sovereign is a determinate human superior. He is not necessarily a single person; in the modern Western world he is very rarely so; but he must have so much of the attributes of a single person as to be determinate. If he is not a single person, he must be a number of persons capable of acting in a corporate or collegiate capacity. This part of the definition is absolutely necessary, since the Sovereign must effect his exertions of power, must issue his orders, by a definite exercise of his will. The possession of physical power, which is one characteristic of Sovereignty, has as matter of historical fact repeatedly been for a time in the hands of a number of persons not determinate, not so connected together as to be capable of exercising volition, but such a state of things Austin would call anarchy, though it might not have all the usually recognised symptoms of a revolutionary interval. At the same time, the limitation of Sovereignty to determinate groups, when the Sovereign is not an individual, is extremely important, since it qualities the notion of Sovereignty by rendering it subject to the various artifices by which an exercise of volition is elicited from a corporate body. Familiar to us as is the practice of taking the opinion of a majority as the opinion of an entire group, and natural as it seems, nothing can be more artificial.
Again, the bulk of the society must obey the superior who is to be called Sovereign. Not the whole of the society, for in that case Sovereignty would be impossible, but the bulk, the large majority, must obey. After the accession of the House of Hanover to the British throne, a certain number of Jacobites and a considerable portion of the Scottish Highlanders habitually disobeyed or disregarded the commands of the British Crown and Parliament, but the bulk of the nation, including no doubt the bulk of the Jacobites themselves, gave to these commands a practical obedience. On Austin's principles, therefore, there is not the least ground for questioning the Sovereignty of George the First and Second and of the Parliaments elected at their summons. The Jacobite view, that the Hanoverian Kings were exclusively Sovereign in Hanover, would at once be throw aside by Austin as not raising that question of fact which is alone disputable under his system.
Next, the Sovereign must receive an habitual obedience from the bulk of the community. In European societies professing the Roman Catholic faith, the great majority of the population receives a variety of directions on points of personal conduct, either mediately or immediately, from the See of Rome. But, compared with the number of times it submits itself to the laws of the country it inhabits, its obedience to these extrinsic commands is only occasional, and not habitual. At the same time a dim appreciation of the principles brought into light by Austin may be detected in several famous ecclesiastical controversies, which sometimes tend to become disputes whether the obedience to the See of Rome which is actually paid is or is not so frequent as to fall under the description of habitual.
A further characteristic of Sovereignty is immunity from the control of every other human superior. The limitation is obviously necessary, for otherwise the Governor-General of India in Council would be Sovereign, and indeed would exhibit a closer correspondence with the more salient features of Sovereignty than almost any other potentate on the face of the globe.
Those who have observed with what slowness definite conceptions are developed in the field of history and politics will be prepared to hear that this whole view of the nature of Sovereignty is older than Austin's work. But, so far as my own knowledge extends, I do not think that any material portion of it is older than Hobbes. On the other hand, in the Leviathan of Hobbes and in the Chapter De Cive in his Treatise first published in Latin, called the Elementa Philosophiae, the analysis of Government and Society and the determination of Sovereignty are so nearly completed that little could be added to them by Bentham and Austin. The originality of these later writers, and more particularly of Austin, resides in their much fuller examination of the conceptions dependent on the notion of Sovereignty -- positive law, positive duty, sanction and right -- in setting forth the relations of these conceptions to others superficially resembling them, in combating objections to the theory by which the entire group of notions are connected together, and in applying this theory to certain complex states of fact which had arisen since Hobbes wrote. There is, however, one great difference between Hobbes and his latest successor. The process of Hobbes was scientific, but his object was less scientific than political. When, with a keenness of intuition and lucidity of statement which have never been rivalled, he has made out a case for the universal theoretical existence of Sovereignty, it becomes clear that he has, to say the least, a strong preference for monarchies over aristocracies and democracies, or (to use the phraseology of the school which he founded) for individual over corporate Sovereignty. Those of his intellectual followers who would have repudiated his politics have often asserted that he has been misunderstood, and no doubt some superficial readers have supposed that he was pointing at despotism when he was really referring to the essentially unqualified power of the Sovereign whatever the form of the Sovereignty. But I do not think it can in candour be denied that his strong dislike of the Long Parliament and of the English Common law, as the great instrument of resistance to the Stuart Kings, has occasionally coloured the language which he uses in examining the nature of Sovereignty, Law, and Anarchy; nor is it matter for surprise that he should have been charged during his life with having devised his system with the secret intention of making his peace with the Protector, though the accusation itself is sufficiently refuted by dates. But Austin's object is strictly scientific. If he has fallen into errors, he has been led into them by his philosophy, and his language scarcely ever betrays the colour of his political opinions.
Another considerable difference is this. Hobbes, it is well known, speculated on the origin of Government and Sovereignty. It is the one fact which some persons seem to have learned about him, and they appear to think his philosophy sufficiently condemned by it. But Austin barely enters on this enquiry,. and indeed he occasionally, though perhaps inadvertently, uses language which almost seems to imply that Sovereignty and the conceptions dependent on it have an ‡ priori existence. Now in this matter I myself hold that the method of Hobbes was correct. It is true that nothing can be more worthless in itself than Hobbes's conjectural account of the origin of society and government. Mankind, he asserts, were originally in a state of war. They then made a compact under which every man abandoned his powers of aggression, and the result was Sovereignty, and through Sovereignty law, peace, and order. The theory is open to every sort of objection. There is no evidence of any stage of the supposed history, and the little we know of primitive man contradicts it. The universal disorder of the race in its infancy may be true of the contests of tribe with tribe and of family with family; but it is not true of the relations of individual man with individual man, whom we, on the contrary, first discern living together under a regimen which, if we are compelled to employ modern phraseology, we must call one of ultra-legality. And, in addition, the theory is open to precisely the same objection as the counter-hypothesis of Locke, that it antedates the modern juridical conception of Contract. But still I think that Hobbes did correctly in addressing himself to the problem, though he did little to solve it. The duty of enquiring, if not how Sovereignty arose, at all events through what stages it has passed, is in my judgment indispensable. It is only thus that we can assure ourselves in what degree the results of the Austinian analysis tally with facts.
There is, in truth, nothing more important to the student of jurisprudence than that he should carefully consider how far the observed facts of human nature and society bear out the assertions which are made or seem to be made about Sovereignty by the Analytical Jurists. To begin with, these assertions must be disentangled from one another. The first of them is that, in every independent community of men, there resides the power of acting with irresistible force on the several members of that community. This may be accepted as actual fact. If all the members of the community had equal physical strength and were unarmed, the power would be a mere result from the superiority of numbers; but, as a matter. of fact, various causes, of which much the most important have been the superior physical strength and the superior armament of portions of the community have conferred on numerical minorities the power of applying irresistible pressure to the individuals who make up the community as a whole. The next assertion is that, in every independent political community, that is in every independent community neither in a state of nature on the one hand nor in a state of anarchy on the other, the power of using or directing the irresistible force stored-up in the society resides in some person or combination of persons who belong to the society themselves. The truth of this assertion is strongly suggested by a certain class of facts, particularly by the political facts of the Western and Modern world; but all the relevant facts, it must be recollected, have not been fully observed. The whole world, of which theorists on human nature are extremely apt to forget considerably more than half, and the entire history of the whole world, would have to be examined before we could be quite sure of the facts, and, if this were done, it may be that a great n umber of the facts would not so strongly suggest the conclusion, or, as I myself think, the assertion which we are considering would not so much be shown to be false as to be only verbally true, and therefore without the value which it possesses in societies of the type to which our own belongs. An assertion, however, which the great Analytical Jurists cannot be charged with making, but which some of their disciples go very near to hazarding, that the Sovereign person or group actually wields the stored-up force of society by an uncontrolled exercise of will, is certainly never in accordance with fact. A despot with a disturbed brain is the sole conceivable example of such Sovereignty. The vast mass of influences, which we may call for shortness moral, perpetually shapes, limits, or forbids the actual direction of the forces of society by its Sovereign. This is the point which, of all others, it is practically most necessary that the student should bear in mind, because it does most to show what the Austinian view of Sovereignty really is -- that it is the result of Abstraction. It is arrived at by throwing aside all the characteristics and attributes of Government and Society except one, and by connecting all forms of political superiority together through their common possession of force. The elements neglected in the process are always important, sometimes of extreme importance, for they consist of all the influences controlling human action except force directly applied or directly apprehended ; but the operation of throwing them aside for purposes of classification is, I need hardly say, perfectly legitimate philosophically, and is only the application of a method in ordinary scientific use.
To put the same thing in another way, that which we reject in the process of abstraction by which the conception of Sovereignty is reached is the entire history of each community. First of all, it is the history, the whole historical antecedents, of each society by which it has been determined where, in what person or group, the power of using the social force is to reside. The theory of Sovereignty neglects the mode in which the result has been arrived at, and thus is enabled to class together the coercive authority of the great King of Persia, of the Athenian Demos, of the later Roman Emperors, of the Russian Czar, and of the Crown and Parliament of Great Britain. Next, it is its history, the entire mass of its historical antecedents, which in each community determines how the Sovereign shall exercise or forbear from exercising his irresistible coercive power. All that constitutes this -- the whole enormous aggregate of opinions, sentiments, beliefs, superstitions, and prejudices, of ideas of all kinds, hereditary and acquired, some produced by institutions and some by the constitution of human nature -- is rejected by the Analytical Jurists. And thus it is that, so far as the restrictions confined in their definition of Sovereignty are concerned, the Queen and Parliament of our own country might direct all weakly children to be put to death or establish a system of lettres de cachet.
The procedure of the Analytical Jurists is closely analogous to that followed in mathematics and political economy. It is strictly philosophical, but the practical value of all sciences founded on abstractions depends on the relative importance of the elements rejected and the elements retained in the process of abstraction. Tried by this test, mathematical science is of greatly more value than political economy, and both of them than jurisprudence as conceived by the writers I am criticising. Similarly, the misconceptions to which the Austinian analysis gives rise are very similar to those which might be conceived as embarrassing the student of mixed mathematics, and which do actually embarrass the student of political economy. Just as it is possible to forget the existence of friction in nature and the reality of other motives in society except the desire to grow rich, so the pupil of Austin may be tempted to forget that there is more in actual Sovereignty than force, and more in laws which are the commands of sovereigns than can be got out of them by merely considering them as regulated force. I am not prepared to deny that Austin occasionally, and Hobbes frequently, express themselves as if their system were not limited throughout by the limitation which is at its base All the great masters of Abstraction are, in fact, now and then betrayed into speaking or writing as if the materials thrown aside in the purely mental process were actually dross.
When, however, it has once been seen that in Austin's system the determination of Sovereignty ought to precede the determination of Law, when it is once understood that the Austinian conception of Sovereignty has been reached through mentally uniting all forms of government in a group by conceiving them as stripped of every attribute except coercive force, and when it is steadily borne in mind that the deductions from an abstract principle are never from the nature of the case completely exemplified in facts, not only, as it seems to me, do the chief difficulties felt by the student of Austin disappear, but some of the assertions made by him at which the beginner is most apt to stumble have rather the air of self-evident propositions. I dare say you are sufficiently acquainted with his treatise to make it enough for me to mention some of these propositions, without the amplifications which are necessary for their perfectly accurate statement. Jurisprudence is the science of Positive Law. Positive Laws are Commands, addressed by Sovereigns to their Subjects, imposing a Duty, or condition of obligedness, or obligation, on those Subjects, and threatening a Sanction, or Penalty, in the event of disobedience to the Command. A Right is the faculty or power conferred by the Sovereign on certain members of the community to draw down the sanction on a fellow-subject violating a Duty. Now all these conceptions of Law, Right, Duty and Punishment depend upon the primary conception of Sovereignty, just as the lower links of a chain hanging down depend upon the highest link. But Sovereignty, for the purposes of Austin's system, has no attribute but force, and consequently the view here taken of 'law' 'obligation' and 'right' is a view of them regarded exclusively as products of coercive force. The 'sanction' thus becomes the primary and most important member of the series of notions and gives its colour to all the others. Probably nobody ever found a difficulty in allowing that laws have the character given to them by Austin, so far as such laws have proceeded from formal Legislatures. But many persons, and among them some men of powerful mind, have struggled against the position that the great mass of legal rules which have never been prescribed by the organ of State, conventionally known as the Legislature, are commands of the Sovereign. The customary law of all countries which have not included their law in Codes, and specially the English Common law, have often had an origin claimed for them independently of the Sovereign, and theories have been propounded on the subject which Austin scouts as mysterious and unintelligible. The way in which Hobbes and he bring such bodies of rules as the Common law under their system is by insisting on a maxim which is of vital importance to it -- 'Whatever the Sovereign permits, he commands.' Until customs are enforced by Courts of Justice, they are merely 'positive morality,' rules enforced by opinion, but, as soon as Courts of Justice enforce them, they become commands of the Sovereign, conveyed through the Judges who are his delegates or deputies. It is a better answer to this theory than Austin would perhaps have admitted that it is founded on a mere artifice of speech, and that it assumes Courts of Justice to act in a way and from motives of which they are quite unconscious. But, when it is clearly comprehended that, in this system, there are no associations with the Sovereign but force or power, the position that what Sovereigns permit they command becomes more easily intelligible. They command because, being by the assumption possessed of uncontrollable force, they could innovate without limit at any moment. The Common law consists of their commands because they can repeal or alter or re-state it at pleasure. The theory is perfectly defensible as a theory, but its practical value and the degree in which it approximates to truth differ greatly in different ages and countries. There have been independent political communities, and indeed there would still prove to be some of them if the world were thoroughly searched, in which the Sovereign, though possessed of irresistible power, never dreams of innovation, and believes the persons or groups, by whom laws are declared and applied, to be as much part of the necessary constitution of society as he is himself. There have again been independent political societies in which the Sovereign has enjoyed irresistible coercive power and has carried innovation to the farthest point; but in which every single association connected with law would have violence done to it if laws were regarded as his commands. The Tyrant of a Greek city often satisfied every one of Austin's tests of Sovereignty; yet it was part of the accepted definition of a Tyrant that 'he subverted the laws.' Let it be understood that it is quite possible to make the theory fit in with such cases, but the process is a mere straining of language. It is carried on by taking words and propositions altogether out of the sphere of the ideas habitually associated with them.
Before proceeding to speak at some length in my next Lecture of these historical limitations on the practical value of Austin's theories, let me repeat my opinion that if the method of discussion which seems to me correct had been followed in his treatise, and if the examination of Sovereignty had preceded the examination of the conceptions dependent on it, a considerable number of the statements which he has made respecting these latter conceptions would have appeared not merely innocent but self-evident. Law is here regarded as regulated force, simply because force is the one element which has been allowed to enter into the primary notion upon which all the others depend. The one doctrine of this school of jurists which is repugnant to lawyers would lose its air of paradox if an assumption were made which, in itself theoretically unobjectionable, manifestly approximates to practical truth as the course of history proceeds -- the assumption that what the Sovereign might alter, but does not alter, he commands. The same arrangement would have a further advantage, as it seems to me, through the modifications it would necessitate in Austin's manner of discussing Morality, though the subject is not one which can be here treated with completeness. The position at which many readers have stumbled -- I do not affect to do more than state it in popular language -- is that the sanction of moral rules, as such, is the disapprobation which one's fellow-men manifest at their violation. It is sometimes construed to mean that the only motive for obeying moral rules is the fear of such disapprobation. Such a construction of Austin's language is an entire misconception of his meaning; but, if the order of discussion which I advocate had been followed, I do not think it could ever possibly occur to any mind. Let us suppose Austin to have completed his analysis of Sovereignty and of the conceptions immediately dependent on it, law, legal right, and legal obligation. He would then have to examine that great mass of rules, which men in fact obey, which have some of the characteristics of laws, but which are not (as such) imposed by Sovereigns on subjects, and which are not (as such) enforced by the sanction supplied by Sovereign power. It would be, of course, incumbent on the philosophical jurist to examine these rules, because Sovereigns being by his hypothesis human superiors are, as human beings, subject to them. Austin has, in fact, examined them from this point of view in some of his most interesting passages. While insisting that Sovereignty is from the nature of the case incapable of legal limitation, he fully admits that Sovereigns are restrained from issuing some commands and determined to issue others by rules which, though they are not laws, are of extreme cogency. The Crown and Parliament of Great Britain are in his view Sovereign -- a sovereign aristocracy, as he would call it -- but, though this aristocracy could for purposes of argument do anything it pleased, it would be out raging all experience to assert that it does this. That great body of rules which is embodied in constitutional maxims keeps it from doing some things; that great body of rules which in ordinary usage are called moral keeps it from doing others. What common characteristics has this aggregate of rules which operate on men and on Sovereigns, like other men? Austin, as you know, names it 'positive morality', and says that its sanction is opinion, or the disapproval of the bulk of the community following on its violation. Properly understood, this last is an obviously true proposition, for what is meant is that public disapprobation is the one sanction which all these rules have in common. The rule which keeps the Crown and Parliament from declaring murder legal, and the rule which keeps them from allowing the Queen to govern without Ministers, are connected together through the penalty attendant on a breach of them, which is the strong disapprobation of a majority of Englishmen; and it is their having a sanction of some kind which principally connects both rules with laws proper. But, though fear of opinion be a motive for obedience to both rules, it does not at all follow that the sole motive for obedience to both rules is fear of opinion. This fear would be allowed by most people to be the chief, if not the exclusive, motive for obedience to constitutional rules; but such an admission involves no necessary assertion whatever as to the complete sanction of moral rules. The truth is that Austin's system is consistent with any ethical theory; and, if Austin seems to assert the contrary, I think the cause is to be sought in his firm conviction of the truth of his own ethical creed, which, I need not say, was Utilitarianism in its earlier shape I do not, indeed, for a moment intend to deny that the careful study of Austin would probably modify the student's view of morals. The discussion of ethics, like many others, is conducted amid much obscurity of thought, and there is no specific more sovereign for dispelling such obscurity than the association of the cardinal terms which enter into our enquiry with absolutely consistent meanings, and the employment of the terms with these meanings as a test for the detection of equivocal phraseology. It is the one inestimable service of the Analytical School to jurisprudence and morals that it furnishes them with a rigidly consistent terminology. But there is not the faintest reason for thinking that the intelligent and appreciative student of the system must necessarily be an utilitarian.
I shall state hereafter what I believe to be the true point of contact between Austin's system and the utilitarian philosophy. Meantime, devotion to this philosophy, coupled with what I hold to be a faulty arrangement, has produced the most serious blemish in the 'Province of Jurisprudence Determined.' The 2nd, 3rd, and 4th Lectures are occupied with an attempt to identify the law of God and the law of Nature (so far as these last words can be allowed to have any meaning) with the rules required by the theory of utility. The lectures contain many just, interesting, and valuable observations; but the identification, which is their object, is quite gratuitous and valueless for any purpose. Written, I doubt not, in the honest belief that they would help to obviate or remove prejudices, they have attracted to Austin's system a whole cloud of prejudices both from the theological and from the philosophical side. If, however, following the order I have suggested, Austin, after concluding the examination of the nature of Sovereignty and of positive law, had entered on an enquiry into the nature of the laws of God, it must have taken the form of an investigation of the question how far the characteristics of the human superiors called Sovereigns can be supposed to attach to an all-powerful and non-human ruler, and how many of the conceptions dependent on human Sovereignty must be considered as contained in his commands. I much doubt whether such an enquiry would have seemed called for in a treatise like Austin's. Taken at its best, it is a discussion belonging not to the philosophy of law but to the philosophy of legislation. The jurist, properly so called, has nothing to do with any ideal standard of law or morals.
