Page:Encyclopædia Britannica, Ninth Edition, v. 14.djvu/373

LAW 355 sidering the criticisms which later jurists have bestowed upon them. Austin s first position is to distinguish between laws properly so called and laws improperly so called. In any of the older writers on law, we find the various senses in which the word is used grouped together as variations of one common meaning. Thus Blackstone advances to his proper subject, municipal laws, through (1) the laws of inanimate matter, (2) the laws of animal nutrition, digestion, &c., (3) the laws of nature, which are rules imposed by God on men and discoverable by reason alone, and (4) the revealed or Divine law, which is part of the law of nature directly expounded by God. All of these are connected by this common element that they are "rules of action dictated by some superior being." And some such generalization as this is to be found at the basis of most treatises on jurisprudence which have not been composed under the influence of the analytical school. Austin disposes of it by the distinction that some of those laws are commands, while others are not commands. The so-called laws of nature are not commands ; they are uniformities which resemble commands only in so far as they may be supposed to have been ordered by some intelligent being. But they are not commands in the only proper sense of that word, they are not addressed to reasonable beings, who may or may not will obedience to them. Laws of nature are not addressed to anybody, and there is no pos sible question of obedience or disobedience to them. Austin accordingly pronounces them laws improperly so called, and confines his attention to laws properly so called, which are commands addressed by a human superior to a human inferior. This distinction seems so simple and obvious that the energy and even bitterness with which Austin insists upon it now seems superfluous. But the indiscriminate identifi cation of everything to which common speech gives the name of a law was, and still is, a fruitful source of con fusion. Blackstone s statement that when God "put matter into motion He established certain laws of motion, to which all movable matter must conform," and that in those crea tures that have neither the power to think nor to will such laws must be invariably obeyed, so long as the creature itself subsists, for its existence depends on that obedience, imputes to the law of gravitation in respect of both its origin and its execution the qualities of an Act of Parlia ment. On the other hand the qualities of the law of gravitation are imputed to certain legal principles which, under the name of the law of nature, are asserted to be binding all over the globe, so that " no human laws are of any validity if contrary to this." Nonsense like this so exasperated Austin that he never fails to stigmatize the use of " natural laws " in the sense of scientific facts as improper, or as metaphorical. A later writer has pointed out that law in the scientific sense has acquired a position of its own, from which it is impossible to dislodge it, and which involves none of the ambiguities and confusions against which Austin protested. It would be as reasonable for the man of science as for the jurist to set up his own conception of law as the only legitimate one. There is perhaps only one field of inquiry where the two opposed conceptions of law are still to be found entangled. The " laws of political economy " still hover in the minds of many between the jural and the scientific conception. Certain economical principles appear to have acquired a double character, that of scientific generalizations, and that of rules which may be disobeyed. Measures are pro nounced to be a violation of the laws of political economy, with a vague implication that these being laws of nature any violation of them must be particularly heinous. Having eliminated metaphorical or figurative laws, we restrict ourselves to those laws which are commands. This word is the key to the analysis of law, and accordingly a large portion of Austin s work is occupied with the determination of its meaning. A command is an order issued by a superior to an inferior. It is a signification of desire distinguished by this peculiarity that " the party to whom it is directed is liable to evil from the other, in case he comply not with the desire." "If you are able and willing to harm me in case I comply not with your wish, the expression of your wish amounts to a command." Being liable to evil in case I comply not with the wish which you signify, I am bound or obliged by it, or I lie under a duty to obey it. The evil is called a sanction, and the command or duty is said to be sanctioned by the chance of incurring the evil. The three terms command, duty, and sanction are thus inseparably connected. As Austin expresses it in the language of formal logic, " each of the three terms signifies the same notion, but each denotes a different part of that notion, and connotes the residue." All commands, however, are not laws. That term is reserved for those commands which oblige generally to the performance of acts of a class. A command to your servant to rise at such an hour on such a morning is a particular command, but not a law or rule ; a command to rise always at that hour is a law or rule. Of this distinction it is sufficient to say in the meantime that it involves, when we come to deal with positive laws, the rejection of particular enactments to which by inveterate usage the term law would certainly be applied. On the other hand it is not, according to Austin, necessary that a true law should bind persons as a class. Obligations imposed on the grantee of an office specially created by parliament would imply a law ; a general order to go into mourning addressed to the whole nation for a particular occasion would not be a law. So far we have arrived at a definition of laws properly so called. Austin holds superiority and inferiority to be necessarily implied in command, and such statements as that " laws emanate from superiors " to be the merest tautology and trifling. Elsewhere he sums up the character istics of true laws as ascertained by the analysis thus : (1) laws, being commands, emanate from a determinate source ; (2) every sanction is an evil annexed to a com mand ; and (3) every duty implies a command, and chiefly means obnoxiousness to the evils annexed to commands. Of true laws, those only are the subject of juris prudence which are laws strictly so called, or positive laws. Austin accordingly proceeds to distinguish positive from other true laws, which are either laws set by God to men or laws set by men to men, not, however, as political superiors nor in pursuance of a legal right. The discussion of the first of these true but not positive laws leads Austin to his celebrated discussion of the Utilitarian theory. The laM r s set by God are either revealed or unrevealed, i.e., either expressed in direct command, or made known to men in one or other of the ways denoted by such phrases as the " light of nature," " natural reason," " dictates of nature/ and so forth. Austin maintains that the principle of general utility, based ultimately on the assumed bene volence of God, is the true index to such of His commands as He has not chosen to reveal. His exposition of the meaning of the principle is a most valuable contribution to moral science, though he rests its claims ultimately on a basis which many of its supporters would disavow. And the whole discussion is now generally condemned as lying outside the proper scope of the treatise, although the reason for so condemning it is not always correctly stated. It is found in such assumptions of fact as that there is a God, that He has issued commands to men in what Austin calls the " truths of revelation," that He designs the happiness of all His creatures, that there is a predominance of good in