Page:Encyclopædia Britannica, Ninth Edition, v. 14.djvu/374

 356 L A W the order of the world which do not now command uni versal assent. It is impossible to place these propositions on the same scientific footing as the assumptions of fact with reference to human society on which jurisprudence rests. If the &quot;Divine laws &quot; were facts like Acts of Parlia ment, it is conceived that the discussion of their character istics would not be out of place in a scheme of juris prudence. The second set of laws properly so called, which are not positive laws, consists of three classes : (1) those which are set by men living in a state of nature ; (2) those which are set by sovereigns but not as political superiors, e.g., when one sovereign commands another to act according to a prin ciple of international law ; and (3) those set by subjects but not in pursuance of legal rights. This group, to which Austin gives the name of positive morality, helps to explain his conception of positive law. Men are living in a state of nature, or a state of anarchy, when they are not living in a state of government or as members of a political society. &quot; Political society &quot;thus becomes the central fact of the theory, and some of the objections that have been urged against it arise from its being applied to conditions of life in which Austin would not have admitted the existence of a political society. Again, the third set in the group is intimately connected with positive laws on the one hand and rules of positive morality which are not even laws properly so called on the other. Thus laws set by subjects in consequence of a legal right are clothed with legal sanction?, and arc laws positive. A law set by guardian to ward, in pursuance of a right which the guardian is bound to exercise, is a positive law pure and simple; a law set by master to slave, in pursuance of a legal right which he is not bound to exercise, is, in Austin s phrase ology, to be regarded both as a positive moral rule and as a positive law. 1 On the other hand the rules set by a club or society, and enforced upon its members by exclusion from the society, but not in pursuance of any legal right, are laws, but not positive laws. They are imperative and proceed from a determinate source, but they have no legal or political sanction. Closely connected with this positive morality, consisting of true but not positive laws, is the positive morality whose rules are not laws properly so called at all, though they are generally denominated laws. Such are the laws of honour, the laws of fashion, and, most important of all, international law. Nowhere does Austin s phraseology come more bluntly into conflict with common usage than in pronouncing the law of nations (which in substance is a compact body of well-defined rules resembling nothing so much as the O O ordinary rules of law) to be not laws at all, even in the wider sense of the term. That the rules of a private club should be law properly so called, while the whole mass of international jurisprudence is mere opinion, shocks our sense of the proprieties of expression. Yet no man was more careful than Austin to observe these proprieties. He recognizes fully the futility of definitions which involve a painful struggle with the current of ordinary speech. But in the present instance the apparent paralogism cannot be avoided if we accept the limitation of laws properly so called to commands proceeding from a determinate source. And that limitation is so generally present in our conception of law that to ignore it would be a worse anomaly than this. No one finds fault with the statement that the so-called code of honour or the dictates of fashion are not, properly speaking, laws. We repel the same statement applied to the law of nature, because it resembles in so many of its most 1 This appears to be an unnecessary complication. The sovereign has authorized the master to set the law, although not compelling him to do so, and enforces the law when set. There seems no good reason why the law should be called a rule of positive morality at all. striking features in the certainty of a large portion of it, in its terminology, in its substantial principles the most universal elements of actual systems of law, and because, moreover, the assumption that brought it into existence was nothing else than this, that it consisted of those abid ing portions of legal systems which prevail everywhere by their own authority. But, though &quot; positive morality &quot; may not be the best phrase to describe such a code of rules, the distinction insisted on by Austin is unimpeachable. The elimination of those laws properly and improperly so called which are not positive laws brings us to the defini tion of positive law, which is the keystone of the system. Every positive law is &quot;set by a sovereign person, or sovereign body of persons, to a member or members of the independ ent political society wherein that person or body is sove reign or superior.&quot; Though possibly sprung directly from another source, it is a positive law, by the institution of that present sovereign in the character of a political superior. The question is not as to the historical origin of the prin ciple, but as to its present authority. &quot; The legislator is he, not by whose authority the law was first made, but by whose authority it continues to be law.&quot; This definition involves the analysis of the connected expressions sovereignty, subjection, and independent political society, and of deter minate body,- which last analysis Austin performs in con nexion with that of commands. These are all excellent examples of the logical method of which he was so great a master. The broad results alone need be noticed here. In order that a given society may form a society political and independent, 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 body of persons must not be habitually obedient to a certain person or body. All the italicized words point to circumstances under which it might be difficult to say whether a given society is political and independent or not. Several cf these Austin has discussed, e.g., the state of things in which a political society yields obedience which may or may not be called habitual to some external power, and the state of things in which a political society is divided between contending claimants for sovereign power, and it is uncertain which shall prevail, and over how much of the society. So long as that uncertainty remains we have a state of anarchy. Further, an independent society to be political must not fall below a number which can only be called considerable. Neither then in a state of anarchy, nor in inconsiderable communities, nor among men living in a state of nature, have we the proper phenomena of a political society. The last limitation goes some way to meet the most serious criticism to which Austin s system has been exposed, and it ought to be stated in his own words. He supposes a society which may be styled independent, which is con siderable in numbers, and which is in a savage or extremely barbarous condition. In such a society, &quot; the bulk of its members is not in the 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, the bulk of its members who are capable of bearing arms submits to one leader or one body of leaders. But as soon as that emergency passes the 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 them selves independent societies, or are not united and com pacted into one political society by habitual and general obedience to one common superior, and there is no law (simply or strictly so styled) which can be called the law of that society. The so-called laws which are common to the bulk of the community are purely and properly