Page:Harvard Law Review Volume 5.djvu/192

176 176 HARVARD LAW REVIEW. (a) The former seems to involve a confusion between the genus and the species in the classification just indicated. Although it may be true that law in its widest sense includes all rules of con- duct actually observed among men, and that Mr. Carter's thesis that law is custom is in so far correct, it cannot be denied that law in the narrower sense in which we habitually use it, 1 i.e., municipal law, consists of a set of rules in which the element of force and a definite sanction are ever present and most important. Whether or not these are rules commanded by the sovereign, they are at least rules enforced by him, and those only. The diffi- culties which seem to have been escaped by denying that law is a command thus recur in the question, What rules does the sovereign enforce? To answer that he enforces the customs of the people, the " expressions of society in its jural relations," is to confuse the source and mainsprings of the law with the rule of law itself. That this rule proceeds in some form or other from society's sense of what is just and expedient is no justification for neglecting the medium by which this sense finds expression. It is for the latter, the rule promulgated from some recognized source, and not for the former, that the judge must " search." This is clearly shown by the fact that so far as the two are incon- sistent, as, for example, in the case of a constitutional but un- righteous statute, the judge is bound by the rule, and is not at liberty to look into the conflicting custom. Such a confusion between the rule and its source — between law and ethics — would hardly have been possible in a community where the law habitually found statutory expression, (b) The analysis sug- gested by Mr. Lawrence has a bearing no less important on Austin's treatment of law as a command. This form of expression may, by the maxim that the sovereign commands what he per- mits, undeniably be made to cover all laws, since law in our sense is limited to rules enforced by the sovereign. It is probably true, moreover, that this conception applies with fair correctness to the conditions of modern society. Whether in rewriting the philosophy of the law the notion of order should be substituted for that of force, or whether Austin's classification is the better, is a question which is not for us. But it is of the first importance to perceive that Austin's theory is a development; that it is not, as its advo- cates seem to have thought, a " body of fixed, irrefragable truth," 1 In this sense, unless otherwise mentioned, it will be used in this discussion.