Page:Harvard Law Review Volume 2.djvu/96

78 of any duty imposed by law, because no sanction is attached in case of disobedience. The conduct of the legislature, in other words, would not be illegal, but simply ineffectual. Parliament, therefore, would be subject to no legal duty, and yet would possess only a limited authority. Austin's argument, however, goes, as I have said, farther than this, and means that if parliament were subject to no superior, the validity of its commands could not in any way be limited by law. Now, the result we have imagined could, of course, be produced by means of a law, set by a political superior, which declared the objectionable statutes invalid; but Austin makes no attempt to prove that it could not also be brought about without the intervention of such a law, and, in the case supposed, it would be clear that neither the judges, nor any definite political superior, issued commands to this effect, and that the statutes were not disregarded, on the ground that they conflicted with any such commands. To assume, indeed, that because the legislative power of the sovereign is not limited by law, it is therefore without lim to assumne one of the very points to be proved, and a point, more- over, which is far from self-evident. It is like assuming that, because the soil of Great Britain is not bounided by that of any other country, it is unlimited in extent.

It will perhaps occur to some one that if all law is the voluntary command of the sovereign and the expression of his will (a proposition which for the purpose of this part of the discussion I have admitted), then through a change of that will any part of the law may cease to operate, and any right, being but the creature of law, may be taken away. It may seem, in short, that the sovereign, merely by revoking his own commands, can bring about any conceivable variation in that vast network of rights and duties which forms the substance of the law. Such, however, is not the case, because, although it is true that a volition which can be exercised only in one way is no volition at all, and that law cannot be said to exist by the will of the sovereign if he has no real option in the matter, yet it is equally true that the power of willing need not be unlimited in order that an act may be voluntary. It is enough that there exists a choice, although that choice does not extend to an infinite variety of objects. In order, therefore, that the act of the sovereign in making a law should be voluntary, it is only essential that he should have the option of making the law or not, or that he should have a choice between two or more possible