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Page:Harvard Law Review Volume 2.djvu/98

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80 HARVARD LAW REVIEW.

the sovereignty of the person who issues them does not cover those matters, and the commands in question are not laws. The case we have supposed is extremely unlikely to occur, because a sovereign who found that a certain class of his commands were habitually disobeyed would, in all probability, either desist from issuing them, or attempt to enforce them, and thereby provoke a conflict likely to result in his success or his overthrow. Let us, however, take a less improbable case. Let us suppose that the commands of a sov- ereign which concern one class of affairs are habitually obeyed, but that he refrains from issuing any commands touching another class of affairs because he knows that they would certainly be disobeyed. This case is evidently parallel to the last one, for, so long as the habit of obedience does not extend to commands dealing with certain matters, it can make no difference whether such commands are issued and disobeyed, or whether they are not issued for fear of disobedience. It would seem, therefore, that the limit of sovereign power depends upon the limit of habitual obedience; that every command of a political superior, or (if we reject the proposition that all laws are commands) every rule of conduct, which is obeyed by the bulk of a given society, is a law, provided, of course, it is coupled with a sanction appropriate to law in the state of civilization which that society has reached ; and that, con- versely, no command or rule of conduct is a law if it does not receive the obedience of the bulk of the society.^

This test can readily be applied to existing enactments, but it is not always easy to prophesy whether a command of a new and unprecedented character would be obeyed or not. Inasmuch, however, as the bulk of every society, except in cases of severe social convulsion, is, from one motive or another, in the habit of obeying what it regards as the law, and is not in the habit of obey- ing rules which it does not consider law unless they are agreeable, it is sufficiently accurate to say that if the bulk of a society con- sider that a certain command, if issued by the sovereign, would not be a law, and if they are not disposed to obey it, then such a command would not be a law, and does not lie within the legisla- tive power of the sovereign. The extent, in other words, of sov-

^ It may be supposed that, according to this principle, the statutes forbidding the use of liquor in some States are not laws, but that would be going too far, because these acts are by no means disregarded. Persons violating them may perhaps be rarely prose- cuted, but the law is strictly enforced by the courts whenever a case is brought before them.