Page:Harvard Law Review Volume 5.djvu/190

174 174 HARVARD LAW REVIEW. delegated power of legislation he regards as a confusion of the historical and the scientific aspect of the subject. An admirable essay by Mr. T. J. Lawrence, of Cambridge, Eng- land, 1 throws light on this perplexing difference of opinion. His subject, International Law, led naturally to a consideration of the Austinian theory, for it is a necessary result of that theory that international law is strictly not law at all. The current idea of law, according to Mr. Lawrence, contains so many elements that no definition could embrace them all. For the precise definition and classification, however, which scientific investigation requires, some one element must be selected and made prominent. Just as economists select for purposes of scientific inquiry the desire to grow rich, and reject all the other motives which influence human action, so Austin rejects all the other elements in the complex conception of law, and constructs his system wholly on the basis of the force which compels obedience to its rules. The concep- tion of law reached by this process is necessarily an abstraction. The method is scientifically correct, but its results must be incom- plete, and can therefore be only approximately true. For the jurist as well as for the economist it is a logical error to forget the elements which he has laid aside. This being the method by which a scientific conception of law is reached, the question arises whether the classification on the basis of force is the most satis- factory one. For the economists this question of classification is made easy by the fact that one motive, one element in the prob- lem, clearly predominates. If the element of force were equally predominant in the conception of law, the system of the Analyti- cal Jurists would be as clearly correct. But Sir Henry Maine has demonstrated that Austin's notion of law is inapplicable to the more primitive communities, and Mr. Lawrence is of the opinion that though provisionally accurate for a certain stage, it becomes less applicable as society advances. Obedience to law comes more and more from a recognition of its justice and propriety, not from the fear of punishment, and the law thus becomes the " prod- uct of the stored-up wisdom of the community " rather than the command of a superior. The force which compels submission becomes less prominent as an essential element in our legal con- 1 Essays in International Law (2d ed.), Chap. I. The basis of this essay, as the author states, is to be found in Lectures XII. and XIII. of Sir Henry Maine's " Early History of Institutions."