19 may be expected from the action of our fellow men in virtue of their friendship or hatred, of their esteem or their contempt 18". Austin is at the pains to explain that by the terms moral and morality he does not intend consonance to the law of God, or general usefulness, nor does he express any approbation of his own. He, in fact, uses moral almost in the purely negative sense of "non-commanded by a sovereign 20". Here he seems sometimes to lose sight of the positive notion of general or wide-spread approval and disapproval which, whether absolute or not, is I think, attached to the word moral and its opposite", as those words are ordinarily used. It is surely only in a very technical and non-natural sense of the word that we can speak of the rules of a club as matter of morality, even with the qualifying term positive. And, while we might possibly treat with moral reprobation a breach of the laws of honour, I do not think the same could be said of a breach of the laws of fashion 22. With his "positive moral rules which are laws improperly so called" Austin classes rules set only in the form of opinion or sentiment by a determinate body, which, though capable of signifying a wish and issuing a command in the matter in question, has not done so 23. In the case where the body is small, unimportance would, as Austin rightly says, prevent such rules from obtaining the name of laws 24. When the body is large, Austin seems to assume that its opinion cannot be truly universal 25. It is certainly difficult to conceive any means of ascertaining the universality of the opinion, without something practically amounting to the significance of a wish that conduct of the kind should be pursued or forborne; in which case there would be a working 18 Traités, Principes de Législation, ch. 7, p. 44 (p. 28 of Hildreth's translation). 19 Austin, 5, p. 200, note. 20 Ib. p. 174. 23 Ib. 199. 21 See above, p. 103. 22 See Austin, 5, p. 187. 25 Ib. 198, 199. efficiency of the rule quite equal in effect to the command of Austin's "sovereign". To Austin's last class "positive moral rules which are laws improperly so called" clearly belong the "laws" of honour, those of etiquette or fashion 26; and with them the very "disparate" objects International Law, to - which Austin gives the name of "Positive International Morality"", and the Constitutional Law of a particular state 28. Conclusion. These definitions of Austin are employed with perfect logical accuracy and somewhat wearisome repetition throughout the first and third parts of the Jurisprudence. They appear to me, in spite of the high respect which every student must feel for their author, to ignore the historical commencement of law, to limit very disadvantageously the popular conception of it, and in particular to unduly depreciate two of its most useful branches-the Constitutional and the International. Of the popular conception of law I have already spoken, and have implicitly treated, to a certain extent, of its historical origin. I shall enquire a little more directly into the latter before I come to speak of the modes in which law is made, or the form in which it comes down to us. The enquiry proposed amounts practically to a consideration of law as classified by the different arrangements of human beings whose conduct it has influenced-notably, law, as between the elements of which a state is formed; law, as between the members of a fully formed state; and law, as between entire states. In the course of this enquiry I must endeavour to define a state and sovereign, in tracing the origin of a truly legislative power: and shall then add, at the close of this part of my subject, the remaining observations which I have to make as to the definition of " municipal" law. 26 Ib. p. 187. 27 Ib. pp. 177, 187. 28 Id. 6, pp. 270, 274. CHAPTER XIII. LAW, AS BETWEEN THE ELEMENTS OF A STATE. IN considering the classes or arrangements of human beings among whom law obtains, we should not come at once to its present form in those classes which are known as states, but begin with the enquiry whether there is not what would reasonably and naturally be called law, before or during the formation of a state-at any rate, before the existence of any recognised supreme power. Such an enquiry is not, as some maintain, useless speculation, or merely a matter of past history, because it will be found to deal with rules that undoubtedly remain in existence after states are fully formed and sovereignty completely developed. State or nation. As a matter of terminology, the name of state seems preferable to that of nation, when we are seeking to arrive at the essential constituents of the thing. State in its original and literal meaning involves no theory at all, whereas nation involves the theory of common descent1. As, ་ 1 Wheaton, Elements, Pt. 1, ch. 2 (§ 17 Dana). "A state is also distinguishable from a nation, since the former may be composed of different races of men, &c." See also Halleck, International Law, &c., ch. 3, § 2; and Calvo, Droit International, Liv. 2, § 29. La nation......marque un rapport de naissance, &c." The last author (with others) argues for the retention of the idea of common origin implied in nation. It seems to me, as in the double meanings of jus, recht, &c., that, while the investigation of such double meanings has great value, as matter of historical enquiry, their retention, in current terminology, leads to confusion and loose reasoning. however, we are now mainly concerned with the origin of old states, and unity of race—or at least that unity of language and customs which is the most important result of unity of race-is almost universal in these cases, the occasional use of the word nation will not cause any very serious error. Austin's objections to the word state seem rather over-strained. A confusion with the different states or estates sometimes combined in a sovereign body is very easily avoided even in the few languages where the confusion is possible: and the word state is now pretty generally used in the sense of an entire political society, whether independent or not. The term political society, used by Austin, I have avoided, partly on account of its length, but more because I do not wish, by anticipation, either to accept or reject the different positions which its author has connected with this particular term. Those positions are, I may remark, rather, after Austin's fashion, by way of a mark or test than of a complete account; and, in particular, bear very little upon the origin of states, to which it seems to me that some attention ought to be paid. The Social Contract. The origin of states was long based, in theory, upon the well-known Social contract, compact or convention. One of the earliest and most reasonable forms of this theory is to be found in Grotius; to the effect that, "those who had associated themselves with any body of men, or subjected themselves to any man or men, had either expressly promised, or must from the nature of the transaction be understood to have tacitly promised, that they would follow the ordinances of the majority of that body or of those in whose hands authority had been placed3". 2 See Austin's note p to Lect. 6, p. 249, especially cases 3 and 4. 3 Prolegg. § 15. Qui se coetui alicui aggregaverant aut homini hominibusque subjecerant, hi aut expresse promiserant aut ex negotii natura pro Hobbes, logically carrying out his theory of an original condition of war, postulates for his commonwealth: first, the union of a number of men or families large compared with the external enemies they may have to dread; second, that this number must, both for protection from enemies without and from one another within, be directed by one judgment and that continually. For the latter purpose is required a somewhat different form of the social compact, which, in spite of Austin's objections to the theory in general, is very suitable to his view of law, and which is vigorously and emphatically stated in the following famous passage. "This is more than consent or concord; it is a real unity of them all in one and the same person, made by covenant of every man with every man, in such manner as if every man should say to every man I authorise and give up the right of governing myself to this man, or to this assembly of men, on this condition, that thou give up thy right to him and authorise all his actions in like manner. This done, the multitude so united in one person is called a commonwealth, in Latin civitas. This is the generation of that great Leviathan, or rather (to speak more reverently) of that Mortal God, to which we owe, under the Immortal God, our peace and defence"." It is not my intention to waste any time here on this once famous theory, which has been set forth by many authors of reputation, following rather the view of Grotius than that of Hobbes, but varying considerably from one another according misisse debebant intelligi, secuturos se id quod aut coetus pars major aut hi quibus delata potestas erat constituissent. According to Locke's version of the "original compact" we should read, in the latter part of this statement, simply the majority. Treatise 2, ch. 8. 4 Leviathan, c. 17, p. 86. 5 Ib. p. 87. For a fine description of Leviathan as depicted on Hobbes' title-page see Whewell, Hist. of Moral Philosophy, Lect. 2, pp. 19-21. |