cognition of Right: second, that it does not necessarily include the idea of any determinate imposer, but is defined primarily by its practical results, i. e. as regulating human conduct.

Hobbes. Upon the extremely clear and able chapter "of Civil Laws" in Hobbes' Leviathan" is really founded the greater part of Austin's criticism upon Blackstone, and his own definition, both of which will be considered presently. "Law in general", says Hobbes, "is not counsel but command; nor a command of any man to any man; but only of him whose command is addressed, to one formerly obliged to obey him. And, as for Civil Law, it addeth only the name of the person commanding, which is Persona Civitatis, the Person of the Commonwealth." He therefore thus defines Civil Law: "Civil Law is to every subject those rules which the Commonwealth hath commanded him, by word, writing or any other sufficient sign of the will, to make use of for the distinction of right and wrong; that is to say of what is contrary and what is not contrary to the rules". The "Commonwealth" is, in the following paragraph, for legislative purposes, identified with, or rather replaced by, its representative the "Sovereign, be it an assembly or one man".

we

In these views, practically followed by Puffendorf", see at once the origin of that definition which I presume most students of jurisprudence would just now give as an answer to the question, What is law?

Austin. "Law," according to Austin, "is the aggregate of rules set by men as politically superior, or sovereign, to men as politically subject "0"

40

37 Chap. 26. I have used the English edition of 1651.

38 Ib. p. 137.

39 De Jure Naturae et Gentium 1. 6. His law of nature is therefore, like Austin's, in its origin a law of God.

40 Austin 1. p. 89, &c. &c.

With the reasoning upon which this and other dicta, of the same author, are based, there is, if his postulates are borne in mind, no fault to be found. Nor can any one deny the great services rendered by Austin to Jurisprudence, in clearly marking off the province of that science, at once from all subjects which only resemble law by analogy, from all mere ideals of what law ought to be, and from all socalled accounts of law which depend on à priori assumptions. But, taken as Austin appears often to be taken, like a string of pellets or boluses of ultimate knowledge, I question whether this "simple and strict" sense, of law, can be considered satisfactory, either as the account of actual fact or as the enunciation of a desirable ideal. With the latter, indeed with the question what opinions it is expedient that a future generation should hold about law—I have not to deal, nor does Austin affect to do so.

I only propose to enquire what it is that people in general have understood and in particular do now understand by law, as a practical working reality. Of the early days preceding conscious definition I have already spoken. As to later and present time, the best lines that I can find, on which to base my enquiry, are those of Blackstone's second section in the Introduction to his Commentaries--a short essay once very highly esteemed, but now known to too many only through Austin's quotations and criticisms. I shall, therefore, in the remaining part of what I have to say on the definition of law, follow Blackstone, so far as I can in his own order, eliminating all objects which his definition includes, but which are not practically included under the ordinary acceptation of the word law, in order that I may determine, with some degree of accuracy, what that acceptation really covers.

CHAPTER IX.

DEFINITION: LAW AS A RULE OF HUMAN CONDUCT.

Blackstone. "The general signification of law", says Blackstone, “is a rule of action dictated by some superior being ...but laws, in their more confined sense, in which it is our present business to consider them, denote the rules, not of action in general, but of human action or conduct, &c.1"

To consider, first, the distinction to which our author himself calls attention; the word human is intended to exclude such objects, metaphorically termed laws, as the laws of motion, the law of gravitation, the law of storms, the laws of inanimate matter generally, and the laws which are said to govern the action of animals other than man. Order, or a comparatively uniform sequence, is generally considered to be the common phenomenon in all these cases, such phenomenon being however attributed, by different schools, to different

causes.

The notion of law governing the whole universe appears most definitely in the Stoic philosophy. It is not, I think, exactly that of the "laws" of modern science; the old philosophers rather attributing animation and reason to matter, than speaking of inanimate matter as obedient to a rule.

1 Blackstone Int. § 2, p. 39.

2 Zeno, Diogenes Laertius 7. 1. 136-148. Cicero de Nat. Deorum 1. c. 14: see also the passages quoted above, pp. 99, 100, notes 18-21.

Montesquieu in his first chapter3 takes an equally extensive, and lax, view of law. I quote the passage, with due respect to so great a name: but I must certainly endorse the criticism of Helvetius as to the " feeble and obscure metaphysical reasoning" which pervades the whole of the first book of the Esprit des Lois.

Hooker, in the first book of his Ecclesiastical Polity, classes, inter alia," the rule of natural agents that work by simple necessity," "the rule of natural agents which work after a sort of their own accord as the beasts do," and "the rule of voluntary agents on earth" all under the name of Law', as all matter of order, and all proceeding ultimately from one common author. There follows, shortly after, that well-known passage, which Hallam represents as "nothing else in substance" than one of Suarez, but which certainly must be stripped of half its ideas and all its poetry before it can be identified with what he quotes from that author.

"Of Law there can be no less acknowledged than that her seat is the bosom of God, her voice the harmony of the world; all things in Heaven and earth do her homage, the very least as feeling her care, and the greatest as not exempted from her power5."

This is scarcely to be disposed of in a single word as fustian, by any who either hold Hooker's first principle of a rational Author and Governor of the Universe, or believe him

3 Esprit des Lois, L. 1. ch. 1. "Les lois dans la signification la plus étendue sont les rapports nécessaires qui dérivent de la nature des choses: et, dans ce sens, tous les êtres ont leurs lois : la divinité a ses lois, le monde materiel a ses lois...les bêtes ont leurs lois, l'homme a ses lois."

"Ce livre," says Helvetius," est d'une metaphysique faible et obscure. On n'y remonte nulle part à la vraie source des lois, qui est la nature de l'homme bien approfondie."

4 Hooker's Ecclesiastical Polity, 1. § 8.

5 Ib. § 16 ad finem. See Hallam's Literature 3. ch. 4. p. 329.

6 Austin 5. p. 217.

to have held that principle honestly and sincerely. Indeed, if Blackstone's chapter on "the Nature of Laws in General" may almost be said to have made Bentham and Austin into jurists by virtue of sheer repulsion', so Austin's somewhat unmeasured invective creates a natural revulsion against the analysts.

Still, the difference is so diametrical between the voluntary and the so-called necessary agent, that I cannot but admit Austin to have been perfectly right in refusing to call by the same name the law which governs the conduct of the one, and the order which is observed in the other.

In all the cases mentioned at the beginning of this section but the last (animals other than man), will, i.e. the option of obeying or disobeying, is clearly wanting. The "law which shall not be broken" given to the heavens is evidently contrasted by the Psalmist with laws for human conduct which can be and are broken. The same might be said of any order or seqnence to which, as being, or at least believed to be, invariable, the name law has been metaphorically given. If the laws of political economy, as they have been generally held by the present English school, are true, general plenty cannot be produced by protection, any more than a stone can break the law of gravitation.

This invariable obedience, owing to the absence of any will or any power to disobey-which therefore cannot truly be called obedience at all—is the real difference between the "laws" of inanimate matter, or of such abstractions as cheapness, harmony, symmetry, and the laws regulating human conduct.

Blackstone has indicated the difference, but not with sufficient clearness or emphasis. It is very well put by

7 Maine, Early History of Institutions, 13. p. 372.

8 Psalm 148. 6. (Prayer-book version.)

9 See his opening words on law in general, where the application