Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/444

 § 442.] THE LAW OF PRIVATE CORPORATION'S. [CHAP. VIII. definition of municipal law as " a rule of civil conduct pre- scribed by the supreme power of a state." ' If we look closely into Austin's use of the term " command," it will appear that he means by it very much what Holland and Kent mean by the term " rule." But the term " command," except as applied to criminal law, is misleading in this respect, that a law which manifests itself in civil rights and liabilities is not an absolute or unconditional command to do or refrain ; but its effect is merely to enable some one with the aid of the state to compel some one else to do or refrain. Within the field of criminal law it is eminentl} T proper to call a law a command ; for a criminal law — " thou shalt not kill " — is a command pure and simple, sanctioned or enforced by its giver of his own motion, and not at the request of some individual. But a civil law creates rights just as much as it imposes obligations, 2 and con- sequently to regard such a law as a command is seeing but one side of it. § 442. As Austin says, " Every legal right is the creature of Definitions a P os itive law ; and it answers to a relative duty im- of a 'Megai posed by that positive law, and incumbent on a per- son or persons, other than the person or persons in whom the right resides. To every legal right there are, there- fore, three several parties ; namely, a party bearing the right, a party burdened with the relative duty, and a sovereign gov- ernment setting the law through which the right and the duty are respectively conferred and imposed." 3 " We may define a legal right," says Holland very clearly, " as a capacity residing in one man of controlling with the assent and assistance of the state the actions of others. That which gives validity to a legal 1 Holland says a law is a rule en- forced by the sovereign, while Kent says, it is prescribed by the sovereign. Holland's phrase seems preferable, as laws may not always, with pro- priety, be said to be prescribed by the sovereign, unless the word "pre- scribed " is used in the sense of recognized ; which is improper. Rules of the common law, grown up as they have from custom, have been recognized, but in no proper 424 sense prescribed by the state. The state recognizes them, sanctions them, i. e., enforces them; as it also enforces rules which by legislation it properly speaking prescribes. 2 Or, as I prefer to say, a civil law manifests itself in rights and liabil- ities, i. e., in legal relations. See § 24. 3 Province of Jurisprudence. Lec- ture VI.