And this "Positive Law" is the appropriate sphere of "The matter of jurisprudence is positive law: law, simply and strictly so-called: or law set by political superiors to political inferiors'." For, says Austin, the division of "Laws set to Men by a Determinate Human Imposer not acting as a Political Superior" is so closely analogous to the class of Laws set by Mere Opinion that the two may well be classed together, both alike being expelled from the domain of Jurisprudence, and falling under the common name of Positive Morality. And Morality." Positive Morality for this reason: that, whereas they are not properly"Laws," or only a portion thereof are properly "Laws," they nevertheless are set by a Human Imposer, which fact of setting by a Human Imposer may fitly be marked by the term "Positive," this being a convenient term for distinguishing the Laws which are set by God to Men from the Laws which are set by Men to Men. Austin's "Positive In brief, then, "Law" in its widest and most comprehensive sense is a far-reaching term: "Law" in its specially Austinian sense is strictly limited; and yet more narrowly defined is "Law" the appropriate matter of Jurisprudence. "Law" in its widest and most comprehensive sense includes the four classes styled Divine Law, Positive Law, Positive Morality and Law Metaphorical or Figurative. "Law" in the specially Austinian sense is "Law Austin is Proper," law set by a determinate author: while "Law" "Proper the appropriate matter of Jurisprudence is " Positive Law," Command directed by a Determinate Human Political mand of a Superior to a Human Being formerly, that is, previously, Deter- obliged to obey. "Law" with Law," de fined as the com minate Author. 'Laws Proper, or properly so-called, are commands ; laws which are not commands, are laws improper or improperly so-called." This is Austin's fundamental premise. And the issue turns, for the world of life and action, not on his inter 1 Austin, Jurisprudence, Lecture 1. pretation of the term "Positive," an interpretation peculiar and important enough: not on his delimitation of "Positive Law," and consequent determination of the Province of Jurisprudence, all-instructive though that delimitation be; but on his employment of the simple adjectival epithets "Proper" and "Improper." There remains no room for doubt as to the full and exact scope of Austin's meaning. "These essentials," he says, " of a law proper, together with certain consequences which these essentials import, may be stated briefly in the following manner; 1. Laws properly so-called are a species of commands. But being a Command, every law properly so-called flows from a determinate source, or emanates from a determinate author. In other words, the author from whom it proceeds is a determinate rational being, or a determinate body or aggregate of rational beings. For whenever a Command is expressed or intimated, one party signifies a wish that another shall do or forbear: and the latter is obnoxious to an evil which the former intends to inflict in case the wish be disregarded. But every signification of a wish made by a single individual, or made by a body of individuals as a body or collective whole, supposes that the individual or body is certain or determinate. And every intention or purpose held by a single individual, or held by a body of individuals as a body or collective whole, involves the same supposition. 2. Every sanction properly so-called is an eventual evil annexed to a command. Any eventual evil may operate as a motive to conduct: but, unless the conduct be commanded and the evil be annexed to the command purposely to enforce obedience, the evil is not a sanction in the proper acceptation of the term. 3. Every Duty properly so-called supposes a command by which it is created. For every sanction properly socalled is an eventual evil annexed to a command. And duty properly so-called is obnoxiousness to evils of the kind." Austin, Lect. V. p. 182. Are able? In a word, "Laws proper" are a species of Commands: Command, implying Superiority, and that Superiority Determinate, denotes the direct expression of Desire, whilst it connotes the existence of Determinate Evil to be incurred upon non-compliance. Now either words are meaningless or they bear a positions meaning. But if, as is obvious, they be at root mere maintain names, mere conductors for the conveyance of ideas, any usage of any term is, from the purely logical standpoint, equally good with any other, provided only that usage be consistent: any naming is grammatically valid, provided only that it fulfil the end of naming, that it at once distinguish and describe1. Ans. Logi cally per Austin accordingly is free to lay it down that the haps, appropriate field of his science of Jurisprudence is one division alone of those rules which commonly go by the name "Laws"; that Jurisprudence is a Science of Conduct and of Human Conduct, and that its field is limited to Laws being Rules of Human Conduct set by Determinate Man in virtue of Political Superiority, to the field of Will set forth in External Human Act, such Act being induced by Determinate Influences merely Human yclept Political Superiority, Political Superiority implying Sovereignty and so a State. And he may, with a view to precision and exact definition, describe this division of the wide field of "Laws" commonly so-called by one distinct and special name, whether "Positive Law" or any other. Nay, he may, if he will, apply the term "Proper Law" exclusively and solely to such rules as, being set by a determinate superior, and so imposing a duty upon a determinate inferior, operate by means of a determinate sanction. He is free herein to act the Consult, but he is not free. to play the Dictator, to deny the validity of the application of the name Law" to such other varieties of rule as have hitherto enjoyed the appellation, to characterise a wider employment of the term as " mere jargon." 1 Early History of Institutions, p. 374. Even should a novel term be taken, a term to which frequent usage has not as yet sanctified any special and commonly received interpretation, there must be equal liberty for all. The one man may create the name for a special end, but popular usage will point the fate of the creation. And when the word is no new one, but wellknown and well-worn, considerations other than logical come into play, and to the condition of consistency is added an element of intelligibility: then we have to do not alone with empty words but with speaking language. The term "Proper" is in this latter case, a word "notorious." And, if the term "Proper" have indeed any meaning determinate and intelligible, that meaning involves the notion of "exclusion." "Laws Proper," if we speak the language of intelligence, are true laws, and "Laws Properly so-called" are laws truly and fitly designated, rules of conduct, that is, to which, and to which alone and exclusively the epithet, or name, "laws" does in correct and exact parlance, and as of right, belong. "Laws Proper, or Laws Properly so-called, are commands." So to assert is to assert the present existence of some certain test, some canon of precise speech, by which the propriety of the application of the substantive term may be measured or known. And it is clear that that test or canon can be but one or other of two. Either the application is appropriate because it is in harmony with the usage of the past, or it is appropriate because it is instinct with the hope of the future. To assert that any term is appropriate having regard to the usage of the past is to assert that, as a fact, a certain idea has been wont to be in that past conveyed by that term. To assert that any term is appropriate by reference to the future is to assert that a certain idea should, as a precept, be conveyed by that term in the time to come. But if Austin assert that, as a fact, the idea which but not in Practice. the field of History, Philology and Usage unite against in the past was wont to be conveyed by the term “law,” was the idea of "command," he asserts that which is not. And if he assert that the notion of "command" should, as a precept, be conveyed in future by the term "law," he advances an assertion by no means axiomatic. If a term have meaning in past usage, that meaning must be sought in History and in Philology, in the Common Speech of the People and the page of the Classic or standard author. If a term be to be employed by reference to the hope of the future, the employment should be rested upon considerations of utility, should be addressed to the furtherance of the greatest happiness of mankind. Grammatically and historically, in its origin and in its application, "Law," with its concomitants and equivalents, has been in no wise restricted to the meaning Austin "Command." Philology unites with History, common lantical Con- guage with common experience, and the united testimony venience. stands clear against Austin. with Prac And if Austin rest the justification of his terminology upon utility, upon manifest logical convenience1, what shall we say of an usage which alike weakens the bonds of State Control and lets slip the dogs of war? How shall the convenience of scientific definition weigh in the world's scale with the inconvenience of lawlessness and turmoil? 1 Holland, Jurisprudence, p. 43. "It is convenient to recognise as laws 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." |