Page:Harvard Law Review Volume 2.djvu/93

 THE LIMITS OF SOVEREIGNTY. 75

superior sovereign : that is to say, a monarch or sovereign num- ber, bound by a legal duty, were sovereign and not sovereign. Supreme power limited by positive law is a flat contradiction in terms."

"Nor would a political society escape from legal despotism, although the power of the sovereign were bounded by legal restraints. The power of the superior sovereign immediately imposing the restraints, or the power of some other sovereign superior to that superior, would still be absolutely free from the fetters of positive law. For, unless the imagined restraints were ultimately imposed by a sovereign not in a state of subjection to a higher or superior sovereign, a series of sovereigns ascending to infinity would govern the imagined community, which is impossible and absurd."

This argument depends for its force, as I have said, upon the proposition that all law is the command of a definite political superior, since it is based upon the assumption that legal restraints can be imposed only by means of such a command. Now, let us return for a moment to the passage already quoted from Austin, in which he tries to prove that customary law derives its authority from a command of the sovereign. The argument there used is, shortly, as follows : The sovereign has power to abolish the customary law ; by refraining from so doing he declares his pleasure that it shall continue in force ; it owes its existence, therefore, to an expression of his will, and may properly be said to result from his command. The whole of this reasoning rests upon the premise that the sover- eign has power to abolish the customary law, and the truth of that premise might be demonstrated by either one of two methods. It might, in the first place, be proved inductively; that is, by exam- ining all known systems of law, and showing that in each of them the sovereign had the power claimed for him, — a result which would establish a probability more or less strong that the power in ques- tion was universal. Such an examination, however, not only fails to establish the premise in this case, but actually disproves it, because, as has been already pointed out, there are known systems of law in which the sovereign does not possess the power in ques- tion. The premise might, on the other hand, be proved deductively, that is, by showing that it followed as a logical conclusion from some other premise or proposition admitted to be sound. Now, the proposition that the power of the sovereign can have no limits