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 possible
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 seem superfluous. But the indiscriminate identification of everything to which common speech gives the name of a law was, and still is, a fruitful source of confusion. 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 creatures 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 parliament. 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.” Austin never fails to stigmatize the use of “natural laws” in the sense of scientific facts as improper, or as metaphorical.
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 characteristics 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 command; 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 jurisprudence 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 laws 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 benevolence of God, is the true index to such of His commands as He has not chosen to reveal. Austin’s 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 the order of the world—which do not now command universal assent. It is impossible to place these propositions on the same scientific footing as the assumptions of fact with reference to human society on which jurisprudence rests. If the “divine laws” were facts like acts of parliament, it is conceived that the discussion of their characteristics would not be out of place in a scheme of jurisprudence.
The second set of laws properly so called, which are not positive laws, consists of three classes: (1) those which are set by men living in a state of nature; (2) those which are set by sovereigns but not as political superiors, e.g. when one sovereign commands another to act according to a principle of international law; and (3) those set by subjects but not in pursuance of legal rights. This group, to which Austin gives the name of positive morality, helps to explain his conception of positive law. Men are living in a state of nature, or a state of anarchy, when they are not living in a state of government or as members of a political society. “Political society” thus becomes the central fact of the theory, and some of the objections that have been urged against it arise from its being applied to conditions of life in which Austin would not have admitted the existence of a political society. Again, the third set in the group is intimately connected with positive laws on the one hand and rules of positive morality which are not even laws properly so called on the other. Thus laws set by subjects in consequence of a legal right are clothed with legal sanctions, and are laws positive. A law set by guardian to ward, in pursuance of a right which the guardian is bound to exercise, is a positive law pure and simple; a law set by master to slave, in pursuance of a legal right, which he is not bound to exercise, is, in Austin’s phraseology, to be regarded both as a positive moral rule and as a positive law.[1] On the other hand the rules set by a club or society, and enforced upon its members by exclusion from the society, but not in pursuance of any legal right, are laws, but not positive laws. They are imperative and proceed from
- ↑ This appears to be an unnecessary complication. The sovereign has authorized the master to set the law, although not compelling him to do so, and enforces the law when set. There seems no good reason why the law should be called a rule of positive morality at all.
