Page:Harvard Law Review Volume 2.djvu/89

Rh as the sole and final test of legislation, while the second developed, in a new form, the doctrine that sovereignty is essentially incapable of limitation, and by the clearness and force of his logic, obtained a mastery over the legal thought of English-speaking people, which has never been equalled in the history of the race. No doubt the increasing strength of democracy has helped to make Austin's views upon sovereignty prevail; but this alone would not account for the power with which his theories have stamped themselves upon all subsequent legal speculation, and, in fact, the many criticisms upon this work, however correct some of them may have been, have served to bring into brighter light the ascendency of his mind.

At first sight Austin's doctrine appears to involve merely an abstract question, or intellectual problem, which has no real bearing on actual government; but this is by no means true, for, although as understood by its author it is harmless, even if erroneous, yet, when applied to politics, it is liable to be very much abused, and to become the source of evils which were by no means contemplated by him. In the first place, the doctrine that sovereign power is unlimited leads almost unavoidably to the opinion that it is proper to use that power without restraint, because the great mass of the people will not distinguish between the legal and moral aspect of politics, and are very sure to conclude that if the State has a legal right to deprive the individual of his property, it is under no moral obligation to refrain from doing so. The people are apt, in the second place, to confound sovereignty with political power, and to attribute the former to any body which exercises legislative authority. If, therefore, they are taught that the sovereign has absolute power, they will believe that the legislature ought to, and in fact does, have authority to pass laws without restraint; a notion which would undermine the very foundations of our whole political system. It is for these reasons that the doctrine advanced by Austin is of real practical importance, and not a mere matter for intellectual speculation. In considering the subject, however, I shall assume the liberty, so rarely allowed at the present day, of treating the theory from a purely abstract stand-point, without inquiring in what body or bodies sovereignty is actually lodged in the United States, or whether those bodies (be they States severally, States in union, or people of the nation) are, in fact, possessed of absolute power or not.