Lecture XIII: Sovereignty and Empire
The word 'law' has come down to us in close association with two notions, the notion of order and the notion of force. The association is of considerable antiquity and is disclosed by a considerable variety of languages, and the problem has repeatedly suggested itself, which of the two notions thus linked together is entitled to precedence over the other, which of them is first in point of mental conception? The answer, before the Analytical Jurists wrote, would on the whole have been that 'law' before all things implied order. 'Law, in its most general and comprehensive sense, signifies a rule of action, and is applied indiscriminately to all kinds of action, whether animate or inanimate, rational or irrational. Thus we say, the laws of motion, of gravitation, of optics or mechanics, as well as the laws of nature and of nations.' With these words Blackstone begins that Chapter on 'the Nature of Laws in General,' which may almost be said to have made Bentham and Austin into Jurists by virtue of sheer repulsion. The Analytical Jurists, on the other hand, lay down unhesitatingly that the notion of force has priority over the notion of order. They say that a true law, the command of an irresistible Sovereign, enjoins a class of acts or a class of omissions either on a subject or on a number. of subjects, placed by the command alike and indifferently under a legal obligation. The characteristic which thus as a matter of fact attaches to most true laws of binding a number of persons, taken indifferently, to a number of acts or omissions, determined generally, has caused the term 'law' to be extended by metaphor to all uniformities or invariable successions in the physical world, in the operations of the mind, or in the actions of mankind. Law when used in such expressions as the Law of Gravity the Law of Mental Association, or the Law of Rent is treated by the Analytical Jurists as a word wrested from its true meaning by an inaccurate figurative extension, and the sort of disrespect with which they speak of it is extremely remarkable. But I suppose that, if dignity and importance can properly be attributed to a word, there are in our day few words more dignified and more important than Law, in the sense of the invariable succession of phenomena, physical, mental, or even politico-economical. With this meaning, 'law' enters into a great deal of modern thought, and has almost become the condition of its being carried on. It is difficult at first to believe that such an expression as 'the Reign of Law,' in the sense in which the words have been popularised by the Duke of Argyll's book, would have been strongly disliked by Austin; but his language leaves little doubt on the point, and more than once reminds us that, though his principal writings are not much more than forty years old, he wrote before men's ideas were leavened to the present depth by the sciences of experiment and observation. The statement that, in all languages, Law primarily means the command of a Sovereign, and has been applied derivatively to the orderly sequences of Nature is extremely difficult of verification. and it may be doubted whether its value, if it be true, wOuld repay the labour of establishing its truth. The difficulty would be the greater because the known history of philosophical and juridical speculation shows us the two notions, which as a matter of fact are associated with Law, acting and reacting on one another. The order of Nature has unquestionably been regarded as determined by a Sovereign command. Many persons to whom the pedigree of much of modern thought is traceable, conceived the particles of matter which make up the universe as obeying the commands of a personal God just as literally as subjects obey the commands of a sovereign through fear of a penal sanction. On the other hand, the contemplation of order in the external world has strongly influenced the view taken of laws proper by much of the civilised part of mankind. The Roman theory of a Law Natural has affected the whole history of law, and this famous theory is in fact compounded of two elements, one furnished by an early perception, Greek in origin, of a certain order and regularity in physical nature, and the other attributable to an early perception, Roman in origin, of a certain order and uniformity among the observances of the human race. I need not here repeat the proof of this which I attempted to give in a volume published some years ago. Nobody is at liberty to censure men or communities of men for using words in any sense they please, or with as many meanings as they please, but the duty of the scientific enquirer is to distinguish the meanings of an important word from one another, to select the meaning appropriate to his own purposes, and consistently to employ the word during his investigations in this sense and no other. The laws with which the student of Jurisprudence is concerned in our own day are undoubtedly either the actual commands of Sovereigns, understood as the portion of the community endowed with irresistible coercive force, or else they are practices of mankind brought under the formula 'a law is a command,' by help of the formula, 'whatever the Sovereign permits, is his command.' From the point of view of the Jurist, law is only associated with order through the necessary condition of every true law that it must prescribe a class of acts or omissions, or a number of acts and omissions determined generally; the law which prescribes a single act not being a true law, but being distinguished as an 'occasional' or 'particular' command. Law, thus defined and limited, is the subject-matter of Jurisprudence as conceived by the Analytical Jurists. At present we are only concerned with the foundations of their system; and the questions which I wish to raise in the present Lecture are these: has the force which compels obedience to a law always been of such a nature that it can reasonably be identified with the coercive force of the Sovereign, and have laws always been characterised by that generality which, it is said, alone connects them with physical laws or general formulas describing the facts of nature? These enquiries may seem to you to lead us far afield, but I trust you will perceive in the end that they have interest and importance, and that they throw light on the limits which must be assigned in certain cases, not to the theoretical soundness, but to the practical value, of the speculations we have been discussing.
Let me recur to Sovereignty, as conceived by the Analytical Jurists. The readers of Austin's treatise will remember his examination of a number of existing governments or (as he would say), forms of political superiority and inferiority, for the purpose of determining the exact seat of sovereignty in each of them. This is among the most interesting parts of his writings, and his sagacity and originality are nowhere more signally demonstrated. The problem had become much more complex than it was when Hobbes wrote, and even than it was at the date of Bentham's earlier publications. Hobbes, a partisan in England, was a keen scientific observer of the political phenomena of the Continent, and there the political conditions open to his observation were (putting England aside) practically limited to despotism and anarchy. But, by the time Austin wrote, England, probably considered by Hobbes as the ground on which the battle of his principles was to he fought out, had long since become a 'limited monarchy,' an expression disliked by Hobbes' successors almost as much as the thing was by Hobbes himself, and moreover the influences of the first French Revolution were beginning to have their play. France had lately become a limited monarchy, and almost all the other Continental States had given signs of becoming so. The complex political mechanism of the United States had arisen on the other side of the Atlantic, and the even more complicated systems of the German and Swiss Confederations in Continental Europe. The analysis of political societies, for the purpose of determining the seat of sovereignty, had obviously become much more difficult, and nothing can exceed the penetration evinced by Austin in applying this analysis to extant examples.
Nevertheless Austin fully recognises the existence of communities, or aggregates of men, in which no dissection could disclose a person or group answering to his definition of a Sovereign. In the first place, like Hobbes, he fully allows that there is a state of anarchy. Wherever such a state is found, the question of Sovereignty is being actively fought out, and the instance given by Austin is that which was never absent from Hobbes's mind, the struggle between Charles the First and his Parliament. An acute critic of Hobbes and Austin, whom I am permitted to identify with Mr Fitzjames Stephen, insists that there is a condition of dormant anarchy, and the reservation is doubtless made to meet such cases as that of the United States before the War of Secession. Here the seat of sovereignty was for years the subject of violent dispute in words or on paper, and many eminent Americans acquired fame by measures which compromised for a time a notorious difference of principle, and adjourned a struggle which was nevertheless inevitable. It is in fact quite possible that there may be deliberate abstinence from fighting out a question known to be undecided, and I see no objection to calling the temporary equilibrium thus produced a state of dormant anarchy. Austin further admits the theoretical possibility of a state of nature. He does not attach to it the importance which belongs to it in the speculations of Hobbes and others, but he allows its existence wherever a number of men, or of groups not numerous enough to be political, have not as yet been brought under any common or habitually acting authority. And, in speaking in this last sentence of groups not numerous enough to be political, I have introduced the most remarkable exception allowed by Austin to the rule that Sovereignty is universal among mankind. The passage occurs at p. 237 of the first volume of the third edition: --
'Let us suppose 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. Now, since it is not a limb of another 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 its chief, this independent 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, a society consisting of persons not in a state of subjection. Without an application of the terms, which would somewhat smack of the ridiculous, we could hardly style the society a society political and independent, the imperative father and chief a monarch or sovereign, or the obedient mother and children subjects.'
And then Austin quotes from Montesquieu the doctrine that 'Political power necessarily implies the union of several families.'
The effect of this passage then is that a society may be too small to admit of the application of the theory. The employment, Austin says, of his terminology would be ridiculous in such a case. I believe I shall be able to point out to you the significance of this appeal to our sense of absurdity, generally a a most dangerous criterion; but at present I merely ask you to note the seriousness of the admission, since the form of authority about which it is made, the authority of the Patriarch or Paterfamilias over his family, is, at least according to one modern theory, the element or germ out of which all permanent power of man over man has been gradually developed.
There are, however, another set of cases, known to us from sources of knowledge of which it is perhaps fair to say that (though Austin is in one sense a modern writer) they were hardly open when he wrote -- cases in which the application of his principles is at least difficult and doubtful. It is from no special love of Indian examples that I take one from India, but because it happens to be the most modern precedent in point. My instance is the Indian Province called the Punjaub, the Country of the Five Rivers, in the state in which it was for about a quarter of a century before its annexation to the British Indian Empire. After passing through every conceivable phase of anarchy and dormant anarchy, it fell under the tolerably consolidated dominion of a half-military, half-religious oligarchy, known as the Sikhs. The Sikhs themselves were afterwards reduced to subjection by a single chieftain belonging to their order, Runjeet Singh. At first sight, there could be no more perfect embodiment than Runjeet Singh of Sovereignty, as conceived by Austin. He was absolutely despotic. Except occasionally on his wild frontier, he kept the most perfect order. He could have commanded anything; the smallest disobedience to his commands would have been followed by death or mutilation, and this was perfectly well known to the enormous majority of his subjects. Yet I doubt whether once in all his life he issued a command which Austin would call a law. He took, as his revenue, a prodigious share of the produce of the soil. He harried villages which recalcitrated at his exactions, and he executed great numbers of men. He levied great armies; he had all material of power, and exercised it in various ways. But he never made a law. The rules which regulated the life of his subjects were derived from their immemorial usages, and these rules were administered by domestic tribunals, in families or village-communities -- that is, in groups no larger or little larger than those to which the application of Austin's principles cannot be effected, on his own admission, without absurdity.
I do not for a moment assert that the existence of such a state of political society falsifies Austin's theory, as a theory. The great maxim by which objections to it are disposed of is, as I have so often said before, 'What the Sovereign permits, he commands.' The Sikh despot permitted heads of house holds and village-elders to prescribe rules, therefore these rules were his commands and true laws. Now we can see that an answer of this kind might have some force if it were made to an English lawyer who denied that the Sovereign in England had ever commanded the Common law. The Crown and Parliament command it, because the Crown and Parliament permit it; and the proof that they permit it is that they could change it. As a matter of fact, since the objection was first advanced, the Common law has been largely encroached upon by Act of Parliament, and, in our own day, it is possible that it may come to owe the whole of its binding force to statute. But my Oriental example shows that the difficulty felt by the old lawyers about the Common law may have once deserved more respect than it obtained from Hobbes and his successors. Runjeet Singh never did or could have dreamed of changing the civil rules under which his subjects lived. Probably he was as strong a believer in the independent obligatory force of such rules as the elders themselves who applied them. An Eastern or Indian theorist in law, to whom the assertion was made that Runjeet Singh commanded these rules, would feel it stinging him exactly in that sense of absurdity to which Austin admits the appeal to be legitimate. The theory remains true in such a case, but the truth is only verbal.
You must not suppose that I have been indulging in a merely curious speculation about a few extreme cases to which the theory of Sovereignty, and of Law founded on it, will not apply without straining of language. In the first place, the Punjaub under Runjeet Singh may be taken as a type of all Oriental communities in their native state, during their rare intervals of peace and order. They have ever been despotisms, and the commands of the despots at their head, harsh and cruel as they might be, have always been implicitly obeyed. But then these commands, save in so far as they served to organise administrative machinery for the collection of revenue, have not been true laws; they have been of the class called by Austin occasional or particular commands. The truth is that the one solvent of local and domestic usage in those parts of the world of which We have any real knowledge has been not the command of the Sovereign but the supposed command of the Deity. In India, the influence of the Brahminical treatises on mixed law and religion in sapping the old customary law of the country has always been great, and in some particulars, as I tried to explain on a former occasion, it has become greater under English rule.
It is important to observe that, for the purposes of the present enquiry, the state of political society which I have described as Indian or Oriental is a far more trustworthy clue to the former condition of the greatest part of the world than is the modern social organisation of Western Europe, as we see it before our eyes. It is a perhaps not unreasonable impression that Sovereignty was simpler and more easily discovered in the ancient than in the modern world. The critic of Hobbes and Austin, whom I before quoted, writes, 'in every state of which we read, whether Greek, Phoenician, Italian, or Asiatic, there was a Sovereign of some sort whose authority was absolute while it lasted;' and he adds that, 'if Hobbes had tried to write an imaginary history of mankind he could not have constructed one better fitted for his purpose than the history of the foundation and establishment of the Roman Empire.' I put aside for awhile the consideration of the Roman Empire, and my reasons for doing so will become apparent afterwards; but, if we give our attention to empires at all resembling that of the Romans in territorial extent, we shall find that, properly understood, they are very far from corresponding to the Great Leviathan imagined by Hobbes. We know something of the Assyrian and Babylonian Empires from Jewish records, and something of the Median and Persian Empires from Greek records. We learn from these that they were in the main tax-taking empires. We know that they raised enormous revenues from their subjects. We know that, for occasional wars of conquest, they levied vast armies from populations spread over immense areas. We know that they exacted the most implicit obedience to their occasional commands, or punished disobedience with the utmost cruelty. We know that the monarchs at their head were constantly dethroning petty kings and even transplanting whole communities. But amid all this, it is clear that in the main they interfered but little with the every day religious or civil life of the groups to which their subjects belonged. They did not legislate. The 'royal statute' and 'firm decree' which has been preserved to us as a sample of 'law of the Medes and Persians which altereth not' is not a law at all in the modern juridical acceptation of the term. It is what Austin would call a 'particular command,' a sudden, spasmodic, and temporary interference with ancient multifarious usage left in general undisturbed. What is even more instructive is that the famous Athenian Empire belonged to the same class of sovereignties as the Empire of the Great King. The Athenian Assembly made true laws for residents on Attic territory, but the dominion of Athens over her subject cities and islands was clearly a tax-taking as distinguished from a legislating Empire.
The difficulty of employing Austin's terminology of these great governments is obvious enough. How can it conduce to clear thinking to speak of the Jewish law as commanded at one period by the Great King at Susa? The cardinal rule of the Analytical Jurists, 'what the Sovereign permits, he commands,' remains verbally true, but against its application in such a case there lies an appeal to a higher tribunal of which Austin allows the jurisdiction, our sense of the ridiculous.
I have now reached the point at which I can conveniently state my own opinion of the practical limitations which must be given to the system of the Analytical Jurists, in order that it may possess, I will not say theoretical truth, but practical value. The Western world, to which they confined their attention, must be conceived as having undergone two sets of changes. The States of modern Europe must be conceived as having been formed in a manner different from the great empires of antiquity (save one), and from the modern empires and kingdoms of the East, and a new order of ideas on the subject of legislation must be conceived as having been introduced into the world through the empire of the Romans. Unless these changes had taken place, I do not believe that the system would ever have been engendered in the brain of its authors. Wherever these changes have not taken place, I do not believe the application of the system to be of value.
The most nearly universal fact which can be asserted respecting the origin of the political communities called States is that they were formed by the coalescence of groups, the original group having been in no case smaller than the patriarchal family. But in the communities which came into existence before the Roman Empire, and in those which have been slightly affected by it or not at all, this coalescence was soon arrested. There are some traces of the process everywhere. The hamlets of Attica coalesce to form the Athenian State; and the primitive Roman State is formed by the coalescence of the minute communities on the original hills. In very many Indian village-communities there are signs of smaller elements combining to make them up. But this earlier coalescence soon stops. In a later stage, political communities, wearing a superficial resemblance to the Roman Empire, and often of very great territorial extent, are constructed by one community conquering another or one chieftain, at the head of a single community or tribe, subjugating great masses of population. But, independently of the Roman Empire and its influence, the separate local life of the small societies included in these great States was not extinguished or even much enfeebled. They continued as the Indian village-community has continued, and indeed, even in their most glorious forms, they belonged essentially to that type of society. But the process of change by which the States of the modern world were formed has been Materially different from this. The smaller groups have been much more completely broken up and absorbed in the larger, the larger have again been swallowed up in still wider, and these in yet wider areas. Local life and village custom have not, it is true, decayed everywhere in the same degree. There is much more of them in Russia than in Germany; more of them in Germany than in England; more of them in England than in France. But on the whole, whenever the modern State is formed, it is an assemblage of fragments considerably smaller than those which made up empires of the earlier type, and considerably liker to one another.
It would be rash to lay down confidently which is cause and which is consequence, but unquestionably this completer trituration in modern societies of the groups which once lived with an independent life has proceeded concurrently with much greater activity in legislation. Wherever the primitive condition of an Aryan race reveals itself either through historical records or through the survival of its ancient institutions, the organ which in the elementary group corresponds to what we call the legislature, is everywhere discernible. It is the Village Council, sometimes owning a responsibility to the entire body of villagers, sometimes disclaiming it, sometimes overshadowed by the authority of an hereditary chief, but never altogether obscured. From this embryo have sprung all the most famous legislatures of the world, the Athenian Ekklesia, the Roman Comitia, Senate and Prince, and our own Parliament, the type and parent of all the 'collegiate sovereignties' (as Austin would call them) of the modern world, or in other words of all governments in which sovereign power is exercised by the people or shared between the people and the King. Yet, if we examine the undeveloped form of this organ of State, its legislative faculty is its least distinct and least energetic faculty. In point of fact, as I have observed elsewhere, the various shades of the power lodged with the Village Council, under the empire of the ideas proper to it, are not distinguished from one another, nor does the mind see a clear difference between making a law, declaring a law, and punishing an offender against a law. If the powers of this body must be described by modern names, that which lies most in the background is legislative power, that which is most distinctly conceived is judicial power. The laws obeyed are regarded as having always existed, and usages really new are confounded with the really old.
The village-communities of the Aryan race do not therefore exercise true legislative power so long as they remain under primitive influences. Nor again is legislative power exercised in any intelligible sense of the words by the Sovereigns of those great States, now confined to the East, which preserve the primitive local groups most nearly intact. Legislation, as we conceive it, and the break up of local life appear to have universally gone on together. Compare the Hindoo village-community in India with the Teutonic village-community in England. The first of them, among all the institutions of the country which are not modern and of British construction, is far the most definite, far the most strongly marked, far the most highly organised. Of the latter, the ancient English community, the vestiges may certainly be tracked, but the comparative method has to be called in, and the written law and written history of many centuries searched, before their significance can be understood and the broken outline restored to completeness. It is impossible not to connect the differing vitality of the same institution with certain other phenomena of the two countries. In India, Mogul and Mahratta, following a long series of earlier conquerors, have swept over the village-communities, but after including them in a nominal empire they have imposed no permanent obligation beyond the payment of tax or tribute. If on some rare occasions they have attempted the enforced religious conversion of subjugated populations, the temples and the rites have been at most changed. in the villages, while the civil institutions have been left untouched. Here in England the struggle between the central and the local power has followed a very different course. We can see plainly that the King's law and the King's courts have been perpetually contending against the local law and the local courts, and the victory of the King's law has drawn after it the long series of Acts of Parliament founded on its principles. The whole process can only be called legislation ever increasing in energy, until the ancient multifarious law of the country has been all but completely abolished, and the old usages of the independent communities have degenerated into the customs of manors or into mere habits having no sanction from law.
There is much reason to believe that the Roman Empire was the source of the influences which have led, immediately or ultimately, to the formation of highly-centralised, actively-legislating, States. It was the first great dominion which did not merely tax, but legislated also. The process was spread over many centuries. If I had to fix the epochs of its commencement and completion, I should place them roughly at the issue of the first Edictum Provinciale, and at the extension of the Roman citizenship to all subjects of the empire, but no doubt the foundations of the change were laid considerably before the first period, and it was continued in some ways long after the last. But, in the result, a vast and miscellaneous mass of customary law was broken up and replaced by new institutions. Seen in this light, the Roman Empire is accurately described in the Prophecy of Daniel. It devoured, brake in pieces, and stamped the residue with its feet.
The irruption of the barbarian races into the Empire diffused through the communities included in it a multitude of the primitive tribal and village ideas which they had lost. Nevertheless no society directly or indirectly influenced by the Empire has been altogether like the societies formed on that more ancient system which the immobility of the East has continued till we can actually observe it. In all commonwealths of the first kind, Sovereignty is more or less distinctly associated with legislative power, and the direction in which this power was to be exercised was in a considerable number of countries clearly chalked out by the jurisprudence which the Empire left behind it. The Roman law, from which the most ancient legal notions had been almost wholly expelled, was palpably the great solvent of local usage everywhere. There are thus two types of organised political society. In the more ancient of these, the great bulk of men derive their rules of life from the customs of their village or city, but they occasionally, though most implicitly, obey the commands of an absolute ruler who takes taxes from them but never legislates, In the other, and the one with which we are most familiar, the Sovereign is ever more actively legislating on principles of his own, while local custom and idea are ever hastening to decay. It seems to me that in the passage from one of these political systems to another, laws have distinctly altered their character. The Force, for example, which is at the back of law, can only be called the same by a mere straining of language. Customary law -- a subject on which all of Austin's remarks seem to me comparatively unfruitful -- is not obeyed, as enacted law is obeyed. When it obtains over small areas and in small natural groups, the penal sanctions on which it depends are partly opinion, partly superstition, but to a far greater extent an instinct almost as blind and unconscious as that which produces some of the movements of our bodies. The actual constraint which is required to secure conformity with usage is inconceivably small. When, however, the rules which have to be obeyed once emanate from an authority external to the small natural group and forming no part of it, they wear a character wholly unlike that of a customary rule. They lose the assistance of superstition, probably that of opinion, certainly that of spontaneous impulse. The force at the back of law comes therefore to be purely coercive force to a degree quite unknown in societies of the more primitive type. Moreover, in many communities, this force has to act at a very great distance from the bulk of the persons exposed to it, and thus the Sovereign who wields it has to deal with great classes of acts and with great classes of persons, rather than with isolated acts and with individuals. Among the consequences of this necessity are many of the characteristics sometimes supposed to be inseparable from laws, their indifferency, their inexorableness, and their generality.
And as the conception of Force associated with laws has altered, so also, I think, has the conception of Order. In the elementary social groups formed by men of the Aryan race, nothing can be more monotonous than the routine of village custom. Nevertheless, in the interior of the households which together make up the village-community, the despotism of usage is replaced by the despotism of paternal authority. Outside each threshold is immemorial custom blindly obeyed; inside is the Patria Potestas exercised by a half-civilised man over wife, child, and slave. So far then as laws are commands, they would be associated in this stage of society less with invariable order than with inscrutable caprice; and it is easier to suppose the men of those times looking to the succession of natural phenomena, day and night, summer and winter, for types of regularity, than to the words and actions of those above them who possessed coercive power over them.
The Force then which is at the back of laws was not always the same. The Order which goes with them was not always the same. They have only gradually attracted to themselves the attributes which seem essential to them not only in the popular view but to the penetrating eye of the Analytical Jurist, Their generality and their dependence on the coercive force of a Sovereign are the result of the great territorial area of modern States, of the comminution of the sub-groups which compose them, and above all of the example and influence of the Roman Commonwealth under Assembly, Senate, and Prince, which from very early times was distinguished from all other dominations and powers in that it brake up more thoroughly that which it devoured.
It has sometimes been said of great systems of thought that nothing but an accident prevented their coming into existence centuries before their actual birth. No such assertion can be made of the system of the Analytical Jurists, which could not have been conceived in the brain of its authors till the time was fully ripe for it. Hobbes's great doctrine is plainly the result of a generalisation which he had opportunities unrivalled in that day for effecting, since during the virility of his intellect he was as much on the Continent as in England, first as a travelling tutor and afterwards as an exile flying from civil disturbances. Independently of English affairs, which he certainly viewed as a strong partisan, the phenomena which he had to observe were governments rapidly centralising themselves, local privileges and jurisdictions in extreme decay, the old historical bodies, such as the French Parliaments, tending for the time to become furnaces of anarchy, the only hope of order discoverable in kingly power. These were among the palpable fruits of the wars which end ed in the Peace of Westphalia. The old multiform local activity of feudal or quasi-feudal society was everywhere enfeebled or destroyed; if it had continued, the system of this great thinker would almost certainly have never seen the light; we have heard of a village Hampden, but a village Hobbes is inconceivable. By the time Bentham wrote, and while he was writing, the conditions which suggest the Analytical System of Jurisprudence presented themselves still more distinctly. A Sovereign who was a democracy commenced, and a Sovereign who was a despot completed, the Codification of the laws of France. There had never before in the modern world been so striking an exemplification of the proposition that, what the Sovereign permits, he commands, because he could at any time substitute an express command for his tacit permission, nor so impressive a lesson in the far-reaching and on the whole most beneficial results which might be expected from the increased activity of Sovereigns in legislation proper.
No geniuses of an equally high order so completely divorced themselves from history as Hobbes and Bentham, or appear, to me at all events, so completely under the impression that the world had always been more or less as they saw it. Bentham could never get rid of the idea that imperfect or perverse applications of his principles had produced many things with which they had nothing whatever to do, and I know no more striking instance of an historical misconception (though at the time a very natural one) than Hobbes's comparison of privileged corporations and organised local groups to the parasites which the physiology then becoming fashionable had shown to live in the internal membranes of the human body. We now know that, if we are forced to use a physiological illustration, these groups must rather be compared to the primary cells out of which the whole human body has been built up.
But, if the Analytical Jurists failed to see a great deal which can only be explained by the help of history, they saw a great deal which even in our day is imperfectly seen by those who, so to speak, let themselves drift with history. Sovereignty and Law, regarded as facts, had only gradually assumed a shape in which they answered to the conception of them formed by Hobbes, Bentham, and Austin, but the correspondence really did exist by their time, and was tending constantly to become more perfect. They were thus able to frame a juridical terminology which had for one virtue that it was rigidly consistent with itself, and for another that, if it did not completely express facts, the qualifications of its accuracy were never serious enough to deprive it of value and tended moreover to become less and less important as time went on. No conception of law and society has ever removed such a mass of undoubted delusion. The force at the disposal of Sovereigns did in fact act largely through laws as understood by these Jurists, but it acted confusedly, hesitatingly, with many mistakes and vast omissions. They for the first time saw all that it was capable of effecting, if it was applied boldly and consistently. All that has followed is a testimony to their sagacity, I do not know a single law-reform effected since Bentham's day which cannot be traced to his influence; but a still more startling proof of the clearing of the brain produced by this system, even in an earlier stage, may be found in Hobbes. In his 'Dialogue of the Common Laws,' he argues for a fusion of law and equity, a registration of titles to land, and a systematic penal code -- three measures which we are on the eve of seeing carried out at this very moment.
The capital fact in the mechanism of modern States is the energy of legislatures. Until the fact existed, I do not, as I have said, believe that the system of Hobbes, Bentham and Austin could have been conceived; wherever it exhibits itself imperfectly, I think that the system is never properly appreciated. The comparative neglect with which German writers have treated it seems to me to be explained by the comparative recency of legislative activity in Germany. It is however impossible to observe on the connection between legislation and the analytical theory of law without having the mind carried to the famous addition which Bentham and Austin engrafted on the speculations of Hobbes. This addition consisted in coupling them with the doctrine or theory of utility -- of the greatest happiness of the greatest number -- considered as the basis of law and morals. What, then, is the connection, essential or historical, between the utilitarian theory and the analytical theory of law? I certainly do not affect to be able, especially at the close of a lecture, to exhaust a subject of such extent and difficulty, but I have a few words to say of it. To myself the most interesting thing about the theory of Utility is that it presupposes the theory of Equality. The greatest number is the greatest number of men taken as units; 'one shall only count for one,' said Bentham emphatically and over and over again. In fact, the most conclusive objection to the doctrine would consist in denying this equality; and I have myself heard an Indian Brahmin dispute it on the ground that, according to the clear teaching of his religion, a Brahmin was entitled to twenty times as much happiness as anybody else. Now how did this fundamental assumption of equality, which (I may observe) broadly distinguishes Bentham's theories from some systems with which it is supposed to share the reproach of having pure selfishness for its base -- how did it suggest itself to Bentham's mind? He saw plainly -- nobody more clearly -- that men are not as a fact equal; the proposition that men are by nature equal he expressly denounced as an anarchical sophism. Whence then came the equality which is a postulate of his famous doctrine about the greatest happiness of the greatest number? I venture to think that this doctrine is nothing more than a working rule of legislation, and that in this form it was originally conceived by Bentham. Assume a numerous and tolerably homogeneous community -- assume a Sovereign whose commands take a legislative shape assume great energy, actual or potential, in this legislature -- the only possible, the only conceivable, principle which can guide legislation on a great scale is the greatest happiness of the greatest number. It is in fact a condition of legislation which, like certain characteristics of laws, has grown out of the distance from which sovereign power acts upon subjects in modern political societies, and of the necessity under which it is thereby placed of neglecting differences, even real differences, between the units of which they are composed. Bentham was in truth neither a jurist nor a moralist in the proper sense of the word. He theorises not on law but on legislation; when carefully examined, he may be seen to be a legislator even in morals. No doubt his language seems sometimes to imply that he is explaining moral phenomena; in reality he wishes to alter or re-arrange them according to a working rule gathered from his reflections on legislation. This transfer of his working rule from legislation to morality seems to me the true ground of the criticisms to which Bentham is justly open as an analyst of moral facts.
