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as the facts supposed to correspond to these phrases were to their great precursor, Hobbes. Hobbes had political prejudices, as well as logical reasons, for his antipathy. In the case of Austin the motive force is the intense disgust provoked by that vagueness and obscurity of Blackstone which had already called forth Bentham's Fragment on Government. Vague uses of the term "law" and traditional laudations of mixed government, and of the surpassing perfection of the British Constitution, inevitably caused a reaction; and the confused prolixity of Blackstone must serve as the excuse for the seemingly precise prolixity of Austin.

The Austinian jurisprudence, which, in spite of Austin's German studies, is thoroughly English in its antecedents (except in so far as we regard the theories of Hobbes as due to the influence of Bodin), has produced a great effect on English legal and political thinking; but outside of England and English colonies it has produced no effect whatever-none certainly, in France or Germany or Italy; none in Scotland, nor, with very slight exceptions, in the United States of America. Its dominant authority in England has finally begun to be weakened by the introduction of the historical method into the study of lawabove all by the great work done and the ideas suggested by the late Sir Henry Maine. Sir Henry Maine has pointed out, that throughout the greater part of the world and during the greater part of human history, there have been no such sovereign legislating bodies as Austin supposes; and that, where we might consider all the conditions of sovereignty, according to Austin's conception, to be found, as, for instance, in the case of Runjeet Singh, the Sikh despot of the Punjaub, such a sovereign ruler never made a single law in Austin's sense. (Early History of Institutions, p. 380.) As Professor Clark puts it: "That the sovereign

1 Cf. an article on "National Sovereignty," in the Political Science Quarterly [New York] for June, 1890, by Mr. J. A. Jameson, who mentions only two American writers as followers of the "analytical jurists." P. 196.

makes, or sets, such rules in the first instance is contrary alike to philology, history, and legal tradition, all of which indicate an element of original approval or consent by the whole community." (Practical Furisprudence: A Comment on Austin, pp. 167, 168.) "If we look at the history of all early societies," says Sir William Markby, who is not unfriendly to Austin (Elements of Law, edit. 2, p. 24), “we find that the principal duty of the sovereign in time of peace is not the making of law, but the decision of lawsuits." Law is older than sovereignty; primitive law is the custom of the tribe, and the earliest type of sovereignty is exhibited, apart from leadership in battle, in pronouncing judgments, not in making laws. That one person or a determinate body of persons should make laws would be a profane and monstrous idea in the eyes of the members of primitive societies. The legislative activity of the sovereign comes very late in the process of political development; and the great historical interest of the writings of Bentham and Austin is just that they are contemporary with, and supply a theoretical justification for, the quickening of legislative activity in England.

Historical considerations are, however, in themselves no argument against the Austinian conceptions of law and sovereignty-any more than it is an argument against the social contract theory to point out that the date of the original contract has not been fixed by Jean Jacques. A perfectly unhistorical theory may be useful as a means of analysis. Hobbes supplied the principle according to which the Austinian conception must be interpreted. "The legislator is he (not by whose authority the law was first made, but) by whose authority it continues to be a law" (quoted by Austin, Jurisprudence, i. p., 337). Thus, where a rule of English common law has not been interfered with by parliamentary statute, we may regard it as "set" by Parliament, because Parliament could interfere with it, should such interference be considered expedient. What is permitted or suffered to continue we may, by a little

twisting of language, by one of those fictions so dear to the conservative legal mind, consider to be commanded. Of course, when we extend this principle of interpretation from highly-developed political societies, where the sovereign is constantly legislating, to more primitive societies where there is no legislative activity, the extreme artificiality of the procedure is forced on our notice. It becomes absurd to say that the Great King of Persia at one time commanded the Jews to keep the Sabbath, because he did not forbid them to do so. The application of the historical method and the genuine scientific study of the origins and sources of law do not refute a professedly unhistorical theory, but they tend to weaken our sense of its importance. And yet we must not allow the glamour of the historical method to blind us to the value of the analytic. As Professor Dicey reminds us:

"The possible weakness of the historical method as applied to the growth of institutions, is that it may induce men to think so much of the way in which an institution has come to be what it is that they cease to consider with sufficient care what it is that an institution has become."- The Law of the Constitution, pref. to first edition.

But the value of the analytic method is not necessarily the same thing with the value of the analytic method as practised by Austin.

"The procedure of the analytical jurists," says Sir Henry Maine (Early History of Institutions, pp. 360, 361), “is closely analogous to that followed in mathematics and political economy. It is strictly philosophical, but the practical value of all sciences founded on abstractions depends on the relative importance of the elements rejected and the elements retained in the process of abstraction. Tried by this test, mathematical science is of greatly more value than political economy, and both of them than jurisprudence as conceived by the writers I am criticising."

This comparison between the English school of jurisprudence and the characteristically English school of political economy is admirable. If competition be perfectly unfettered by either law or custom or the force of habit or

the presence of ordinary human feelings, if capital be absolutely transferable, and if (what is still more impossible) labor be absolutely transferable, then the Ricardian political economy would represent actual facts. But with a sufficient number of "ifs," it would be possible to write any number of scientific works, every sentence in which might be as painfully and uselessly true as Mr. Froude found the Proverbial Philosophy of Martin Tupper.1

But is this method of abstraction inseparable from an analysis of what is? And is Maine right in calling it 7 "strictly philosophical"?) Aristotle would have objected that to be strictly philosophical we must adapt our methods to the subject-matter of our study, and that the methods available in mathematics are not applicable in the study of the science of wealth and of the science of law, which are branches of the great science of human society. If we try to get strict accuracy and precision where the subjectmatter does not admit of it, we shall find ourselves left with mere empty words and abstract formula which give us no insight into reality, although they may indeed be valuable as a means of criticising the more confused and less conscious abstractions of common talk or of so-called popular philosophy. And, as a mere matter of terminology, is it not rather the business of the "philosopher" to correct the one-sided "abstractions" inevitable in ordinary language and indispensable in the procedure of the various special sciences? At least, we may reasonably expect from a philosophy of law, and even from a science of jurisprudence, that it shall have some applicability, if not to primitive societies, at least to the states which the theorist had before his eyes.

Now, this is the restricted claim made on behalf of Austin by his apologists at the present day. As Professor Holland puts it: "It is convenient to recognize as laws

1 Bagehot, in his "Economic Studies" (republished in the Postulates of English Political Economy, 1885) compares the insularity of the Ricardian political economy and the Austinian jurisprudence.

only such rules as are enforced by a sovereign political authority, although there are states of society in which it is difficult to ascertain as a fact what rules answer to this description." (Jurisprudence, p. 43.) Let us see, then, how the Austinian conception may be applied to the British Constitution. Here there is a noteworthy difference between Austin and his follower, Sir George Cornewall Lewis. Austin finds the sovereign in the United Kingdom in king, lords, and commons-meaning by "commons" the electors of the House of Commons. "Speaking accurately," he says (i. p. 253) “the members of the commons' house are merely trustees for the body by which they are elected and appointed; and consequently, the sovereignty always resides in the kings and the peers, with the electoral body of the commons." Lewis, on the other hand, agrees with Blackstone that "the sovereignty of the British Constitution is lodged in the three branches of Parliament" (Use and Abuse of Political Terms, ed. by Sir R. K. Wilson, p. 49), i. e., in the King, the House of Lords, and the House of Commons. As we are here expressly dealing with a question of jurisprudence and not of history, it would be idle to discuss the question debated between lawyers and historians whether the king is or is not a part of Parliament. The historian is perfectly right in pointing out that the preamble of any Act of Parliament, preserving as it does the old theory of the Constitution, makes the king (or queen) distinct from the three estates in Parliament assembled, "by and with the advice and consent of" whom he (or she) enacts "as follows." And yet we may allow the lawyer, for the sake of the convenience of speaking of the sovereignty of Parliament, to follow the phraseology of Blackstone and define Parliament so that it includes the king (Dicey, Law of the Constitution, ed. 3, p. 37). Lewis's editor, Sir R. K. Wilson, points out that what Lewis himself has laid down as one of the "marks of sovereignty," viz.: "irresponsibility," is most certainly to be found in the body of the electors (Use and Abuse of

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