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74 HARVARD LAW REVIEW.

constitution of government cannot be said to have developed fully in modern Europe before the outbreak of the French revolution. In the early stages of civilization the power of any man or body of men to interfere with customar)*^ law is extremely limited, and the persons by whom justice is administered are not in fact, or in public estimation, the ministers of any legislative body, nor are they under its control. It is only by the purest of fictions, therefore, that cus- tomary law under these circumstances can be said to exist by virtue of the will of such a body, or to be established by its commands.

It is clear, therefore, that Austin's definition of law, although nearly accurate at the present day, is incorrect when applied to primitive societies, or even to those which have reached a consider- able degree of civilization. The definition, in short, is not true of law in general, and this is important when we come to consider the nature of sovereignty, because Austin's proof that sovereign power can have no limits is based entirely, as we shall see, upon the prop- osition that all law is the command of a political superior. If, therefore, this proposition is not universally true, his proof, even if otherwise unimpeachable, will apply only to those States in which it can be shown as a fact that all law derives its force from such a command ; and in these States, moreover, it will not demonstrate that the power of the sovereign is incapable of limitation, but merely that it is not actually limited at the time when the fact in question is found to exist.

We now come to the great argument designed to prove that sovereign power cannot be limited. It is as follows (Lect. VL, p. 225, 2d ed.): —

" Every positive law, or every law simply and strictly so called, is set, directly or circuitously, by a sovereign person or body, to a member or members of the independent political society wherein that person or body is sovereign or supreme. Or (changing the expression) it is set, directly or circuitously, by a monarch or sovereign number to a person or persons in a state of subjection to its author."

" Now, it follows from the essential difference of a positive law, and from the nature of sovereignty and independent political society, that the power of a monarch properly so called, or the power of a sovereign number in its collegiate and sovereign capacity, is incapable of legal limitation. A monarch or sovereign number, bound by a legal duty, were subject to a higher or