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Page:Harvard Law Review Volume 2.djvu/97

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laws. It is not necessary that he should be able to establish any conceivable combination of rights and duties. To maintain the contrary would be like asserting that my motions are not vol- untary because I cannot bend my joints the wrong way, or that my house does not stand during my pleasure, because I cannot tear down the lower story and leave the upper ones undisturbed. Hence it is clear that even if all law is based upon the will of the sovereign there may be combinations of rules which he cannot make, and it follows that there may be rights which he cannot take away ; at least if we leave out of account his power to revoke all his commands at once, and introduce a general state of anarchy, — an act which would be very nearly equivalent to an abdication.

Up to this point we have been examining Austin's proof that the power of the sovereign can have no limit, and I have tried to show that the argument is based upon an erroneous premise, and that even if the premise were sound the conclusion would not follow. Let us now study his definition of a sovereign, and see what infer- ences can be drawn from it. " If a determinate human superior," he says (Lect VI., p. 170, 2d ed.), " not in a habit of obedience to a like superior, receive habitual obedience from the bulk of a given society, that determinate superior is sovereign in that society, and the society (including the superior) is a society political and independent." Now, suppose that the members of a soci- ety are in the habit of obeying all those commands issued by the sovereign which relate to a certain class of matters, but are at the same time in the habit of disobeying all his commands af- fecting another class of matters. Suppose, for example, that they are in the habit of obeying all commands relating to secular con- cerns, while in the habit of disregarding entirely all commands touching religion. In such a case it is absurd to say that there is no government, and that the condition of the society is one of mere anarchy; but it is also impossible to hold that the legislative power of the sovereign is unlimited, because those of his com- mands which are disregarded by his subjects, and which he has no power to enforce, amount only to ineffectual expressions of desire on his part, and by a misuse of terms alone can be called laws. Sovereignty depends, in fact, upon the habitual obedience of the society, and it is hard to see how it can extend farther than the habit upon which it rests. If, therefore, the society is not in the habit of obeying commands which relate to certain matters,