Page:American Journal of Sociology Volume 5.djvu/369

 A SOCIOLOGICAL VIEW OF SOVEREIGNTY 355

into the process whereby custom has disappeared as the main- tainer of order, and coercion itself has become orderly.

The paternal family, we have seen, had both a political and a domestic side to its coercion. With the growth of population and chieftainship so much of the political side as was needed was separated out and organized in an overshadowing institution, the feudal hierarchy. This led to absolutism. Absolutism, we have seen, followed upon changed economic conditions. The increase of population, the complete occupation of land, the breakup of serfdom, the rise of the wage system, the mobility of population, the introduction of money, and the fluctuations of prices — all these causes conspired to overthrow entirely the rule of custom. With this bulwark of order disappearing, the power of the monarch increased. He began to extend his sovereign will into those precincts formerly controlled by custom. His lawyers now introduced the fiction that custom becomes law only because "what the sovereign allows he commands." This has become the doctrine of the analytical school of jurisprudence. "There can be no law without a judicial sanction," says Austin,' "and until custom has been adopted as law by courts of justice, it is always uncertain whether it will be sustained by the sanction [of force] or not."

In Austin's literal and tacit use of the word "law" as the orderly command of constitutional sovereignty this doctrine is, of course, true, but, then, it is also meaningless, for, by the very definition of law, custom is already excluded. In truth, the doctrine only marks the complete breakdown of custom, and the subsequent injection of order into sovereignty. Previous to this injection the king's invasion of the precincts of custom signified mainly the invasion of order by caprice. This is absolutism — the doctrine that the king's will alone is the fountain of law.

The first effort of absolutism is to reduce the feudal chiefs who are next to the monarch in power. Such was the outcome in oriental despotism, in China, India, and Russia. This is the culmination of absolutism. But in England a different result followed. The feudal nobility, deprived of their private dominion

' Lectures, p. 69.