AUSTIN ON THE 'PROVINCE OF YUB,ISPRUDENCE.* (Szconn NOTICE.)
THE close connexion .of the various subjects which are discussed in Mr. Austin's work wouldnot, perhaps, be apparent. from a cursory examination of it, but a deeper study shows that the topics embraced are such as it was impossible • to emit in any thorough and philosos
cal consideration of the -questions he had proposed to answer.
he task of distinguishing positive law from divine law, from the rules of positive morality, from the opinions or sentiments of men, and from the laws which are only so in a figurative sense, obliged him in the first instance to.determine the essentials of a law-or rule, in the largest signification which can properly be given to the term, and, next, to lay down some test for discriminating the laws of God from all others, in order to discover the index to those rules which He has not revealed, but which it is the object of the human law- giver to establish and enforce. This index having been found in the principle of utility, lie next proceeded to examine the distinguishing marks of the remaining objects with which positive laws may be con- famided. Among these, positive moral rules, which are laws pro- perly so called, are distinguished from positive laws (in their public sense) by the- former being laws set by men as private persons in pursuance of legal rights. They are commands, in the sense which has already been attached to the term. The positive •moral rules, which are laws improperly so called, are laws imposed by opinion, em- bodying the sentiments of an indeterminate body of persons in regard to some kind of conduct ; and 'it has not been usual to apply the name of "laws" (even in this modified sense) to any Tales which flow from the opinion of a small number of persons, though such rules, or even those drawn from the sentiment of an individual, are equally well en- titled to the name. In distinguishing these from laws in the proper sense, he points out that their resemblance consists in the fact of the former exposing those who infringe them to some evil conse- quence ; the difference being that in the case of a law of sentiment or opinion, the desire of the authors has not been duly signified, and that they have no formed intentions of inflicting evil or pain upon any one who may break or transgress it. This analogy—of the sanction which exists both in the case of laws proper and of laws improper— is, however, wanting in that of laws figurative. In the two former cases, the sanction or penalty of disobedience operates on the will of those under the law and makes them adjust their conduct to it. But when we say that the movements of lifeless bodies are "determined by certain laws" we only mean that they always move in a certain way, which we believe their Creator has appointed for them ; but, as they can have no desires or aversions of their own, we do not mean that they can be touched by anything which resembles a sanction, or can he subject to anything in the nature of an obligation. The laws to which we popularly say that irrational animals conform, fall under the same category. Instinct is only a name—like the Greek
for some cause of which we are ignorant, and, with the exception of some few modes of conduct which the sanctions imposed by human masters have induced them to observe, it would be false to say of them that they "obey" any law, or that they are moved by any "obligation." Although this seems clear enough when so stated, all jurists have not kept the notions sufficiently distinct. Ulpian talks of the "jus naturale," which leads animals to propagate their kind, and take care -of their young—confounding appetite and instinctive affection,' which give rise to laws, with laws themselves.
The " jus naturale," however, of the other Roman jurists is used in a more correct sense—that of the " law of nations"—embodying those principles which, as obtaining almost universally, are looked upon as the dictates of the moral sense implanted in man. The looseness of expression instanced-from Ulpian is also found in Mon- te,squieu, who confounds under the name of law the modes of exist- ence not only of animals and of the material world, but of all beings whatever, including the Deity and the angelic intelligences. The i disquisition on laws in general, in Blackstone's introduction, and the descripition of law in Hooker's " Ecclesiastical Polity"—which; Mr. Austin roundly calls "fustian"—are open to similar objections. Pro- bably Mr. Austin's purposes would be sufficiently answered if the dis- tinction is borne in mind, for he could have no expectation that the custom of applying the word "law" in the manner he censures would ever be eradicated from popular phraseology. He might, perhaps, have analyzed more closely than he has done the way in which this improper sense came to be attached to the sequences of the material world. Sanctions do belong to these, but they are inflicted, not on what is governed by the supposed law—viz. the sequences them- selves—but on other beings who may cut across the appointed path of their operation. Scripture says, of the forces of nature, Thou hest given them a law which cannot be broken." But in Mr..Austin's view a law which cannot be broken is not a law at all, for if it cannot be broken it can involve no 'penalties. The penal- ties which it does involve apply, if we look closely, not to &isobe- thence, for disobedience is, ex hypothesi, impossible, but to obe- dience. To put an inflammable substance in the way of fire is rather a conformity to physical sequence than a contraven- tion of. it. It may involve pain to him who puts it there, but a pain is not necessarily a penalty ; on the contrary, it is suffered because the substance in question follows the order which has made it subject to disintegration by an inflammatory agent. The point would be worth while to work out in more detail ; but we mast be satisfied with directing the reader's attention to it. The same consideration which led' Mr. Austin to exclude physical • The Province of Jurisprudence Determined : being the First Part of a Series of Lec- tures on Jurisprudence, or the Philosophy of Positive Law. ny the late John. Austin, Esq. Murray. sequences from the designation of laws, would have induced him., we may suppose, had he rewritten his work as he intended, also to exclude the lawd," which, 'on the theory of Mr. Buckle and others, are supposed to determine the actions of all classes of apparently voluntary beings; not because these beings may not (possibly) be so determined—though even this, we think, he would not have admitted—but because the hypothesis, as in the case of the external world,, is itself of a necessazian character, and to whatever is necessarily determined the notions of command, duty, and law cannot apply. Having thus separated positive law from other objects with which it might be confounded; Mr. Austin, in his sixth lecture, proceeds .to analyze more minutely the idea of positive law itself, and for this purpose he is led to examine what is involved in the notions of " soverei, gnty," of " subjection,". and of " independent political society.' The 'first of these two notions is correlative with the third. It implies that the.society is not in subjection to any other, and that the bulk of it is habitually obedient to a determinate superior part. That bulk is subject or dependent as regards the sovereign portion, .and as regards other nations is equally independent; if the sovereign owes any obedience to any other superior, the society is only subordinate, and is a member of another political body. A mere occupation of territory by a foreign foe does not destroy- this relation of sovereign and subject, for though the subjects of the country may render obedience to the foreigner, that obedience is not habitual, neither is it destroyed by the occasional command and obedience, for which the weakness of one nation anft the strength of another may afford occasion. The necessity of a determinate human superior also excludes from political society the state which is called the state of natare," where each man is independ- ent, and which, in a political point of view, is purely nega- tive. As the relation of sovereign and .subject can only subsist where one party is determinately superior to the other, and as it is only from this relation that positive laws can be evolved, it follows that the law of nations is beyond the domain of poi- live law. For independent nations have no common superior, and none but a common superior would be competent to impose positive laws upon them. International law is set by general opinion, and its sanctions are moral ones—the fear of incurring; not any _known or fixed penalty, but of perhaps provoki g general hostility, perhaps only the loss of esteem, in case they violate maxims generally received and respected. The author warns us that this de- finition, though clear enough in extreme and well-marked oases, cannot always be expected to meet those which lie on the boundary line, and the point in which its laxity is impossible to remedy is in settlicig what is meant by the word bulk. Numerous instances will readily occur when it would be most difficult to point out to which, of two rival " determinate" superiors, the bulk of a " nation" could be said to be " habitually" subordinate. The point is practically important, because a time always arrives at which it becomes neces- sary to determine whether a nation shall be recognized as such, or shall be regarded as still forming a part of the society from which it has attempted to separate. Mr. Austin instances the period of the Parliamentary war in England; but, with America before us, we have no need to go so far back. Unfortunately, neither his reasoning, nor that of any other political writer, will enable us to say before- hand at whatjuncture we shall be justified in sending an envoy to the seceding Southern States.
After criticizing other definitions which have been given of the above ideas, the author goes on to discuss the different forms of government, the real and imaginary limits of the power of sove- reigns, and the origin of governments, or the causes of the obedience which subjects render, and from which the Rower of the governing part to restrain.and compel is entirely or mainly derived. Throwing out of consideration the case, possible but never realized, of a com- munity actually and literally sell-governed, governments are only of two kinds—monarchy, or the rule of one ; and aristocracy (in the generic sense), or the rule of a number. Aristocracies are often divided, according to the proportion which the number of the governing body bears to the governed, into oligarchies, aristocracies (in the specific sense), and democracies; but it is impossible to fix the application of these terms precisely. Much more important— as regards the distinction between positive law and morality—is the difference of the modes in which the sovereign number may share the sovereign powers. Of these modes the most broadly dis- tinguished from the rest have been called ".limited monarchies," an expression which Mr. Austin shows to involve a contradiction in terms, since sovereign power is incapable of limitation, whether it resides in one individual or in more. The Basileus, who is designated by this 'title, is really only a sharer in the power of the other members of the supreme government, and the name of monarchy applied to the latter is a mere accident, since, if he happened to be a
president" or a " stadtholder," the government would probably be classed as a republic—though there would be no practical dif- ference.
This analysis of the forms of government leads to a consideration of some other topics closely connected with it ; the delegation of political power—the distinction of the "legislative" and "admini- strative or executive" functions—the meaning of "half-sovereign" states—and the nature of "composite" or "federal," and of "con- federated" governments. In regard to the first of these topics, or to so much of it as is involved in the notion of representation, Mr. Austin points out that power may be handed over by the body which possesses it, in two modes—either subject to a trust, or absolutely. The electoral body in England hands over their power to the Com- mons, in thesecond of these modes, so that while they sit they'are completely in the place of those who send them, and constitute, with the Queen and the`Peers, the sovereign body. Thus, if they liked, they might (with the consent of the Lords and the Queen) make over their share of power to the two latter, or might resolve to sit fortwenty i years, or do what they pleased with the Constitu- tion. There s no positive law to prevent them ; although it is, of course, absurd to suppose that no trust at all exists because it is not specified. It is tacitly .understood, but is only enforced by moral sanction.s, for if it were enforced by legal ones, the laws establishing them would be passed by the very body sought to be coerced; or, if passed by the electoral body itself, there would be an ulterior legislature having a supremacy over the ordinary one; a state of things which, however, actually exists, or existed, in New York. As to the second ,point, the necessity of separating the legislative and executive powers has often been 'considered as a sort of recognized axiom in political philosophy, but it is not one which will bear examination, nor is it supported by the facts of the British Constitution. The view which Mr. Austin takes, that it is neither necessary nor possible to separate them, is held, if we remember rightly, by Sir Cornwall Lewis in his work "On the Government of Dependencies," and is supported by the best thinkers on the subject. Passing. over the examination of what have been termed " sovereign" states, states, the account of federal government is worth atten- tion. It may be described as a composite state, the parts of which are each sovereign in their several societies, while sovereignty is also shared by the general government. It is a community in which the several governments that constitute it have concurred in relinquish- ing a part of their political power and vesting it in a general body. But neither this general body, nor any of the several bodies, is sove- reign or supreme, even in the separate societies swayed by the latter. If the general government were wholly supreme, the notion of federality would be, inapplicable; if the .several societies were seve- rally supreme, they would be independent of the whole. Where then does the sovereignty reside ? In the united governments as forming one aggregate body, which is able to signify their joint will agreeably to the forms of their federal compact. In the present crisis in America the following passage will be interesting : " The supreme government of the United States of. America agrees (I believe) with the foregoing general description of a supreme federal government. I believe that the common government, or the government consisting of the congress and the president of the United States, is merely a subject minister of the United States governments. I believe that none of the latter is properly sovereign or supreme, even in the state or political society of which it is the immediate eMef. And, lastly, I believe that the sovereignty of each of. the states, and also of the larger state arising from the federal -anion, resides in the states' governments as forming one aggregate body: meaning by a state's government, not its ordi- nary legislature, but the body of its citizens which wealth its ordinary legisla- ture,' and which, the union apart, is properly sovereign therein If the several immediate chiefs of the several united states, were respectively single individuals, or were respectively narrow oligarchies, the sovereignty of each of the states, and also of the larger state arising from the federal union, would reside in theseseveral individuals, or would reside in those several oligarchies,forwing aa- lectire whole."
It would seem to result from this view that the authority -which ought to prevent secession is broken np by the very fact of secession, although it may still be a question-whether the majority which elected Mr. Lincoln is not a sufficiently adequate exponent of this auth to have a right to enforce compliance with its decrees. 'But though. the question is interesting in a legal point of view, it is of all others the most unlikely to be 'settled on legal considerations. As the government of the United States is beyond all precedent, its disso- lution may be expected to partake of the same anomalous character, and to supply data to future writers like' Mr. Austin, rather than to be ruled by the decisions of any publicist. We shall look with much interest to the remaining volumes of Mr. Austin's Remains. If they have been worked out with anything like similar care and soundness to the first volume, they will form a body of thought which will be a most valuable addition to our very meagre list of authoritative works on such subjects. As regards the decipher- ing and collation of the text itself, we have no doubt that Mrs. Austin will do all that can be clone. But as her literary. experience, however great, has not been precisely of the nature requisite, for editing books of this kind in their mechanical details, we suggest that she would do well to consult some one who is conversant with the Frangemeit strictly legal works, -which, in the matters of printing and the like, are generally better cared for than any others. The table 'of contents ought not to be printed continuously, but in lines, as is the case, for example, in Macaulay's History ; the numbering of the lectures should be given at the heads 'of the pages ; and the head- lines, instead of being a mere repetition of the title of the volume, might give the general subject of the lecture, or bear some more special relation to the text below. The index, which is very scanty, ought also to have been enlarged. These are trivial points, but they materially affect a reader's convenience, especially in a difficult'book broken np into many minute subdivisions.
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