Open main menu

Page:Harvard Law Review Volume 2.djvu/95

This page needs to be proofread.


THE LIMITS OF SOVEREIGNTY. 77

seeks to proveĀ ; because if there are, or may be, commands of this sort which are not laws, if, in other words, the sovereign is for any reason unable, by issuing a command, to make a law in accordance with his will, then his legislative power is limited by just the ex- tent of that inability. Starting with the proposition which, for the purpose of this part of the discussion, I have admitted, Austin very properly draws the conclusion that a sovereign, being by definition subject to no political superior, cannot be bound by any commands issued by such a superior, and cannot, therefore, be bound by any laws, or be subject to any legal restraints whatever. From this it is clear that no act of the sovereign can be a violation of any legal duty, or give rise to any legal claim against him, or render him liable to punishment, and, in short, that he can do no legal wrong. It is also clear that no law can declare his commands invalid, or deprive them of any legal force they would otherwise possessĀ ; but it does not follow that all his acts are valid and effect- ual, or that all his commands are laws. These are two very differ- ent things, and the former by no means implies the latter, but may very well exist without it. The Queen of England, for example, although not a sovereign in the sense in which we are using the word, is in fact free from legal restraint. She can do no legal wrong. She* cannot be sued or prosecuted for any act which she may commit. But her commands are not laws, and this is not be- cause her power of legislation is restrained by the orders of a political superior, but simply because she possesses no legislative power at all. Here, then, we have the case of a member of a polit- ical society enjoying absolute freedom from legal restraint, with- out any corresponding authority to make laws.

Let us take another illustration. It was at one time asserted by the English judges that parliament had not unlimited power; that it could not, for example, make a man a judge in his own case. Now, suppose that this doctrine had prevailed, and that both the judges and the community at large had been universally in the habit of disregarding statutes which conflicted with the principle I have mentioned. It is evident that parliament in such a case would possess only a limited power of legislation, and yet would be bound by no legal duties, and subject to no legal restraints. The act of the parliament in passing a statute of this kind would not involve that body or its members in any liability to punishment, and, ac- cording to Austin's own definition, its act would not be a breach