Page:Harvard Law Review Volume 2.djvu/90

72 The writers of that great school which maintained the possibility of limitations upon the authority of government, based their theories upon what they styled the natural rights of man. Man, they said, is endowed by nature with certain legal rights which he cannot or at least which he never did surrender, and these rights, derived as they are from a higher source than civil government, cannot be abridged or destroyed by legislation. Such a tenet of man's natural rights was for a long time accepted as an axiom by the great bulk of Englishmen, and it is due to Austin more than to any one else, with the possible exception of Bentham, that within the last half century the idea has been completely discredited, and has been abandoned by almost every scholar in England and America. Austin's teachings on this subject were not, however, altogether original with him, but were derived from Hobbes, whose writings, except when occasionally mentioned with a shudder, slept unnoticed for two hundred years until brought into prominence again by his great disciple. Hobbes seems to have been the first man who understood the difference between legal and moral obligations; who saw that legal rights depend for their existence upon positive law, and that positive law is an artificial creation made by men. In this view he was followed by Austin, who developed the crude notions of his master into a complete philosophical system.

Austin's definition of law may be briefly stated as follows: A law is a command, coupled with a sanction, given by a political superior or sovereign to a political inferior or subject. Now, so far as statute law is concerned this definition is undoubtedly correct, for a statute is clearly a command issued by the legislature, but the customary law presents at once a difficulty, and of this Austin says (Lecture I., p. 23, 2d ed.):—

"Now, when judges transmute a custom into a legal rule (or make a legal rule not suggested by a custom), the legal rule which they establish is established by the sovereign legislature. A subordinate or subject judge is merely a minister. The portion of the sovereign power which lies at his disposition is merely delegated. The rules which he makes derive their legal force from authority given by the State: an authority which the State may confer expressly, but which it commonly imparts by way of acquiescence. For, since the State may reverse the rules which he makes, and yet permits him to enforce them by the power of the political com-