to be conferred upon Pompey, or the return of Cicero from banishment. The obligation upon all citizens was, no doubt, implied in the words populi jussum, &c., but not expressed in the definition. Blackstone must clearly have had this passage before him, but has, more suo, introduced a certain ambiguity into it, when he says, pursuing his definition of law: "It is a rule: not a transient sudden order from a superior to or concerning a particular person; but something permanent, uniform and universal. Therefore a particular act...to attaint Titius of high treason...is rather a sentence than a law. But an act to declare that the crime of which Titius is accused shall be deemed high treason; this has permanency, uniformity and universality, and therefore is properly a rule22". Austin's criticism on this passage 23 is that Blackstone understands by the generality of law, as a rule, distinguished from a particular command, obligation upon persons of a class but not obligation to actions of a class. The insertion of the words italicised (to or concerning), in the sentence first quoted above, does somewhat justify this charge, but I think it is nevertheless clear on the whole that Blackstone really meant a standing order as distinguished from an occasional one. Both the generalities mentioned by Austin appear to be contained in the usual conception of law. Out of the two, that of obligation upon all members of a class or number is the more likely to be tacitly assumed, and neither consciously 21 Aulus Gellius 10. 20. 3, 4. Ea definitio si probe facta est, neque de imperio Cn. Pompei, neque de reditu M. Ciceronis, neque de caede P. Clodi quaestio, neque alia id genus populi plebisve jussa leges vocari possunt. non sunt enim generalia jussa neque de universis civibus sed de singulis concepta; quo circa privilegia potius vocari debent &c. 22 Blackstone Int. § 2. p. 41. 23 Austin 1. pp. 95, 97. adverted to, nor à fortiori expressed, except in early constitutional pacts or charters. There, of course, the levelling of a privileged with a non-privileged class is often the whole. essence of the business. But in the other cases, where it is not expressed, this generality, I think, always enters into the popular idea of law. That is, I question much if a rule, set to a person or persons individually determined, would amount to a law, as ordinarily conceived". In endeavouring, therefore, to frame a definition which shall express the popular idea of law, as the word rule does not in itself necessarily imply that generality of obligation (or incumbency of obligation) to which I now refer, I would slightly alter the first words of Blackstone's definition and read—instead of simply "a rule of human conduct ”—“ a rule of conduct obtaining among a number or class of human beings." The question how such number or class is to be determined will be considered presently. The second generality, on the other hand, mentioned by Austin-obligation to a class of actions-does appear to be clearly implied in the use of the word rule, coupled with the word conduct, and will not, consequently, require further expression. A distinct and very important function of the word rule in this definition is next set forth by Blackstone. Rule is now treated by him as necessarily implying external command or injunction. The words of his text are obviously suggested 24 As in the Roman statutes about the Plebiscita. 25 Austin, Lect. 1, p. 97, holds that it may. The case of a privilegium conferring a right is, as he correctly shews, a matter of general obligation. Grotius (1. 1. 14) would seem to allow the name of jus (arctius patens) to the rules of a father or master. 26 44 It is also called a rule to distinguish it from advice or counsel... counsel is only matter of persuasion, law is matter of injunction." "Law is a command directed to us," &c., &c. Blackstone, Int. § 2, pp. 44, 45. C. J. 8 by Hobbes 27. I shall not dwell here upon their inconsistency with Blackstone's subsequent definition of English common law 28; but shall consider them merely as introductory to a consideration of the manner in which or the means by which the rules that we call law do regulate voluntary human conduct-in other words, of the motives for obedience to law. 27 Above, p. 104. CHAPTER X. DEFINITION: LAW, AS TO THE MOTIVE FOR OBEDIENCE. An ulterior motive to action. Our definition of law is. not yet close enough to exclude what hardly any one would call by the name. There are classes of voluntary human actions performed by any number of human beings-by all mankind -in obedience to the recurring calls of a common appetite or desire others, where appetite or desire can scarcely be predicated, which are attributed to human instinct. But we should not ordinarily say that men take their meal, or women rear their children, in obedience to law. What, then, is the differentia, which must be added to mere uniformity of human conduct, before we should talk of it as produced by law? That differentia is indicated to a certain extent, though not very clearly or fully, in Grotius' definition of law as a rule of moral actions, and Puffendorf's interpretation of moral as including a consideration. of consequences. Under the word action, as here used, I include, of course, not only positive acts, but also conscious abstinence from action, "voluntary inaction" or "forbearance." These terms are sufficiently explained by Austin and elsewhere1. 1 Austin, 14, p. 377. For the distinction from omission, see 20, p. 438. Also my "Analysis of Criminal Liability," pp. 39, 42. I do not here include Austin's "internal acts," 14, p. 377: 19, p. 433. "Analysis," pp. 22-24. The differentia, then, of which I am in search, appears to lie in the existence of an ulterior motive to action, whereas in the case of pure instinct, where that term is used with any definite meaning, there is supposed to be no conscious motive beyond the desire or propensity to perform the action itself. I therefore use the expression ulterior motive to indicate some feeling or sentiment beyond or behind the mere desire for or propensity to any particular action, and ultimately causing that action. Where there are motives behind motives2, the ultimate one, or the one-to use a material metaphorfarthest back in the mind, is the one which I intend. Motive, what? The motive, or feeling in the mind moving the agent to particular conduct, is often confused with a thing or state of things desired by him: but, as the two are rarely identical, this confusion is a very misleading one. In describing motive, I prefer to use these wide terms feeling or sentiment, because to call every motive, with Austin3, a desire or wish-and à fortiori, to use the stronger terms appetite or aversion of Hobbes*—appears to me to be begging a psychological question which I do not wish to beg. I need not, indeed, enter into that question, as it will be found that the particular motive actually causing obedience to law, does come within Austin's terms. The law of nature. In the consideration, however, of this motive for obedience to law, as essential to the definition of law itself, I find myself obliged, very reluctantly, to travel somewhat into the region of ethics, into which Austin's 2 See "Analysis of Criminal Liability," p. 72. 3 See his definition of a motive, 18, p. 428. 4 Ib. 429. Hobbes, "Leviathan," vi. p. 28. 5 Sidgwick ("Methods of Ethics" 3. 1, § 2, p. 179) defines motive "The conscious impulse to action, whether desire or aversion:" but I think he would admit something not strictly falling under either of these names in the "impulse to do right simply because it is right" which is analysed on the next page (180). |