prudence and morals, the term laws is extremely ambiguous. Taken with the largest signification which can be given to the term properly laws are a species of commands. But the term is improperly applied to various objects which have nothing of the imperative character: to objects which are not commands, and which therefore are not laws, properly so-called. Accordingly the proposition that laws are commands must be taken with limitations. Or rather we must distinguish the various meanings of the term laws and must restrict the proposition to that class of objects which is embraced by the largest signification that can be given to the term properly. I have already indicated .. the objects improperly termed laws which are not within the province of jurisprudence. . There are other objects improperly termed laws (not being commands) which yet may properly be included within the province of jurisprudence."*

These are (1) legislative acts of authentic interpretation, (2) laws to repeal laws, (3) imperfect laws, i.e., of imperfect sanction. They belong to the province of jurisprudence for the simple reason that jurisprudence is the science of "law," not of commands.

Austin proceeds :-" Though these, with the so-called laws set by opinion, and the objects metaphorically_termed laws, are the only laws which really are not commands, there are certain laws (properly so-called) which may seem not imperative According to an opinion which I must notice incidentally here customary laws must be excepted from the proposition that laws are a species of command.'"

To prove that customary laws are commands, Austin has recourse to a fiction which is extremely useful, or rather indispensable, in the law of agency, but is out of place, to say the least, in jurisprudence-the fiction of ratihabition.

"At its origin, a custom is a rule of conduct which the governed observe spontaneously or not, in pursuance of a law set by a political superior. The custom is transmuted into positive law, when it is adopted as such by the courts of justice, and when the judicial decisions fashioned upon it are enforced by the power of the State. But before it is adopted by the courts, and clothed with the legal sanction, it is merely a rule of positive morality, a rule generally observed by the citizens or subjects, but deriving the only

* I. 100.

force which it can be said to possess from the general disapprobation falling on those who transgress it. Now, when judges transmute a custom into a legal rule (or make a legal rule not suggested by a.custom) the legal rule which they establish is established by the sovereign legislature. A subordinate or subject judge is merely a minister. The portion of the sovereign power which lies at his disposition is merely delegated. The rules which he makes derive their legal force from authority given by the State-an authority which the State may confer expressly, but which it commonly imparts in the way of acquiescence. For since the State may reverse the rules which he makes, and yet permits him to enforce them by the power of the political community, its sovereign will that his rules shall obtain as law' is clearly evinced by its conduct, though not by its express declaration the legal rules which emerge from the customs are tacit commands of the sovereign legislature" (pp. 104—5.)

All this merely proves that legal rules must derive their sanction from the sovereign; it does not prove that customary laws are commands. The test of law is simply whether it is capable of political or judicial enforcement. Whether the sovereign power commands a course of conduct in a given case, or whether it allows its subjects to indicate what course of conduct they wish to be pursued, the resulting rule is law, but surely it is an abuse of language to call an executive function a command. The sovereign stands by and enforces rules which the people, by their course of conduct, indicate as those which they wish to govern their relations, but the test of such a customary rule of law is not the command of the sovereign, but the consent of the people, and its capacity of being judicially enforced. The sovereign may be compared to a passer-by who decides a dispute between the finders of a treasure.*

It is curious that Austin, who abuses English lawyers in general and Blackstone in particular, (pp. 498, 1018) for

The true nature of custom is well put by Prof. Lorimer: The rational will of the community may be declared either expressly, by legislation, or tacitly, by consuetude." Inst. of Law, 416. See also Savigny (System I. 34) who shews that the rules of customary law are rational, not arbitrary or accidental, and that therefore customary law has a deeper basis than mere habit.

confounding quasi-contracts with implied or tacit contracts, should have fallen into the similar and almost equally obvious blunder of confounding tacit commands with quasi-commands. If an Act of Parliament gives A a right against B

But if a
But if a judge

it tacitly commands B to perform his duty. decides that a custom, never before adjudicated upon, is valid and condemns the defendant for non-conformity with it, the sovereign can only be said to have commanded compliance with it by a fiction-it is a command ex post facto, a quasi-command.* Moreover if every rule of customary law is a command, we must suppose that the kings of England created the conflicting rules of common law, equity, and admiralty-law by command, and with malice aforethought, presumably for the purpose of increasing the revenue.

All these difficulties disappear if we recognise the fact that law has two meanings, viz., an aggregate of binding rules of whatever origin, and a legislative enactment. The latter is a command, the former is not. Austin took the latter meaning only, and endeavoured to make all his other theories fit his definition of it.

4. Mr. Markby, in his "Elements of Law," avoids the error committed by Austin in so far that he expressly defines Law as "the body of commands issued by the rulers of a political society to its members." This is a definition which might be correct, for it is possible to conceive a system of law consisting entirely of legislative commands, but it is hardly a correct description of any system which has hitherto existed and is certainly not appliable either to English law or Roman law. On the subject of customary law, too, Mr. Markby differs from Austin in treating it, not as a

Austin might have followed his favourite model Bentham with advantage in this instance: "When a tacit expression of the will of a superior is supposed to have been uttered, it may be styled a fictitious command. Were we at liberty to coin words after the manner of the Roman lawyers we might say a quasi command. The Statute Law is composed of commands, the Common Law of quasi commands." Fragment on Government, ch. i. s. xii. n. (b). An equally sagacious observation is made in the note to the Introduction to the Fragment, cited post, but in his express definitions he calls law a command. Nomography c. ii.

+ Clarendon Press Series, 1871.

branch of judge-made law," but as "an independent source of law." By this the author probably means that it arises from the tacit commands of the sovereign authority, but without the necessity of judicial assent (ss. 65-71). This does not, however, as the author admits (s. 71) do away with all the difficulties of the subject.

66

5. Sir Henry Maine, in his work on " Ancient Law," cautions the student against too implicit a belief in Bentham and Austin's analysis of law into a command, an obligation and a sanction. The results of this separation tally exactly with the facts of mature jurisprudence, and by a little straining of language they may be made to correspond in form with all law, of all kinds, at all epochs. It is not, however, asserted that the notion of law entertained by the generality is even now quite in conformity with this dissection and it is curious that the farther we penetrate into the primitive history of thought, the farther we find ourselves. from a conception of law which at all resembles a compound of the elements which Bentham determined." *

Again, in "Village Communities," the author observes:"Without the most violent forcing of language it is impossible to apply these terms command, sovereign, obligation, sanction, right, to the customary law under which the Indian communities have lived for centuries, practically knowing no other civil law obligatory Under the system of

Bentham and Austin the customary law of India would have to be called morality, an inversion of language which scarcely requires to be formally protested against. Though

it be improper to employ these terms sovereign, subject, command, obligation, right, sanction, of law in certain stages of human thought, they nevertheless correspond to a stage to which law is steadily tending, and which it is sure ultimately to reach."+

The only objection to these remarks is that they do not go far enough. If the analysis of law suggested by Hobbes (not by Bentham, who, as we have seen, perceived its inapplicability to customary law) is not true of all law, it must + Village Communities, 67 seq.

* Ancient Law 8.

be rejected altogether. As Voltaire might have said: "Brûlez vos définitions, et faites-en de nouvelles."*

The learned author does not suggest a substitute for the "imperative" analysis of law.

6. Professor Sheldon Amos, as might be expected from his unqualified admiration of Austin's work on Jurisprudence,† adopts most of Austin's conclusions, among others the analysis of law into command, &c.‡ Professor Amos's definition of jurisprudence is considerably longer than Austin's, but its correctness depends entirely upon an accurate definition of the "fact of law," with which he considers jurisprudence has to deal, and the one given by him is almost identical with that of Austin (p. 73).

7. Mr. Frederick Pollock, in an article on "Law and Command,"§ discusses the difficulties to which the "imperative" analysis of law leads us. He points out that it is too narrow to include customary and international law, that it gives a false idea of right and law, and concludes by suggesting bases for a definition of law :

"Law in its widest sense is a condition, or assemblage of conditions, under which the evolution of things proceeds: law in the special sense is a condition or assemblage of conditions under which the evolution of a society proceeds, and the determination of which is part of the collective consciousness of that society."

These bases, and the argument on which they are founded, seem to me to be open to some objections.

In the first place, with regard to the distinction between "law" and "statute," Mr. Pollock does not point out that Austin's definition of law is inapplicable to customary and international law, &c., not because it is wrong in itself, but because it is a definition of the wrong word; it is satisfactory when applied to a "statute," but it is no definition at all of "law."

Systematic View of the Science of Jurisprudence. 1872.

§ Law Magazine, N.S. April, 1872.