Page:Popular Science Monthly Volume 25.djvu/304

292 or large, compared with the whole community. Austin was originally in the army; and it has been truly remarked that "the permanent traces left" may be seen in his "Province of Jurisprudence." When, undeterred by the exasperating pedantries—the endless distinctions and definitions and repetitions—which serve but to hide his essential doctrines, we ascertain what these are, it becomes manifest that he assimilates civil authority to military authority: taking for granted that the one, as the other, is above question in respect of both origin and range. To get justification for positive law, he takes us back to the absolute sovereignty of the power imposing it—a monarch, an aristocracy, or that larger body of men who have votes in a democracy; which body he also styles the sovereign, in contrast with the remaining portion of the community, which, from incapacity or other cause, remains subject. And having affirmed, or rather taken for granted, the unlimited authority of the body, simple or compound, small or large, which he styles sovereign, he, of course, has no difficulty in deducing the validity of its edicts, which he calls positive law. But the problem is simply moved a step further back, and there left unsolved. The true question is. Whence the sovereignty? What is the assignable warrant for this unqualified supremacy assumed by one, or by a small number, or by a large number, over the rest? A critic might fitly say—"We will dispense with your process of deriving positive law from unlimited sovereignty: the sequence is obvious enough. But first prove your unlimited sovereignty."

To this demand there is no response. Analyze his assumption, and the doctrine of Austin proves to have no better basis than that of Hobbes. In the absence of admitted divine descent or appointment, neither single-headed ruler nor many-headed ruler can produce such credentials as the claim to unlimited sovereignty implies.

"But surely," will come in deafening chorus the reply, "there is the unquestionable right of the majority, which gives unquestionable right to the parliament it elects."

Yes, now we are coming down to the root of the matter. The divine right of Parliaments means the divine right of majorities. The fundamental assumption made by legislators and people alike is that a majority has powers to which no limits can be put. This is the current theory which all accept, without proof, as a self-evident truth. Nevertheless, criticism will, I think, show that this current theory requires a radical modification.

In an essay on "Railway Morals and Railway Policy," published in the "Edinburgh Review," for October, 1854, I had occasion to deal with the question of a majority's powers, as exemplified in the conduct of public companies; and I can not better prepare the way for conclusions presently to be drawn than by quoting some passages from it: