society were adequately instructed or enlightened, the habitual obedience to its government which was rendered by the bulk of the community would exclusively arise from reasons bottomed in the principle of utility" (I, 301). And even as things are now, the recognition of the utility of government is "the only cause of the habitual obedience in question, which is common to all societies, or nearly all societies" (page 303), utility being definitely Austin's moral standard. It would be worth while, I think, to reopen the question of Austin's theory of sovereignty, were it only for the purpose of bringing to light this current misapprehension; but that is not my main motive at present. Austin's real theory raises questions as important as does that of Lewis which so far has done duty for Austin's-questions which are completely kept out of sight, however, in the ordinary way of stating it. It is these questions which I propose to raise in this article. II. I wish to point out that at the bottom of Austin's conception (and influential in much of the existing discussion) there is a confusion of sovereignty with the organs of its exercise,1 and that this confusion has for its results a radical error concerning the mode in which sovereignty is exercised — an error which, so far as acted upon, is likely to result in harm. I have already indicated that Austin has a specific criterion for distinguishing moral from legal order and influence. As it happens, the consideration of this criterion will also suffice to reveal Austin's theory of the residence of sovereignty, and thus to prepare the way for showing his confusion of sovereignty with an organ of its exercise. Austin begins by distinguishing between positive law and moral law. As he does not admit that anything but a command can properly be called a law, one differentia commonly employed for distinguishing between the two is not open to him: I refer to that which makes 1 This confusion, in its nature and in the evil results flowing from it, is parallel with that between the state and government, so clearly brought out by Professor Burgess; cf. Political Science and Comparative Constitutional Law, I, 68. the moral law a law of the "ought to be," while positive law What Positive law, according to Austin, is that set by a political superior to an inferior. Moral law must be distinguished into two classes. Moral law, properly so-called, is a command proceeding from a determinate source and having a sanction and an obligation, yet not positive law, because not proceeding from a sovereign. Moral law, improperly so-called, is that set by the opinions and sentiments of an indeterminate public. The difference between positive law and moral law properly so-called depends then simply upon whether or not the rules are set by a sovereign. But how is this to be ascertained? A sovereign is a power not in the habit of obedience to a determinate superior. The commands of such a power are positive law, while the commands of a power which is in the habit of obedience to a determinate superior are moral law. That is, the commands which a master issues to a slave, or a parent to his child, are truly laws; yet they are moral, not positive, because the superior power is, in turn, in the habit 7 of obeying a power still above him. The distinction between moral law, improperly so-called, and positive law is not so clear on the surface. We have to remember that Austin admits that, in one sense, the opinions and sentiments of the mass are supreme in power; the sovereign "habitually defers" to them. From this point of view, then, moral law improperly so-called is above positive law it controls, in ultimate analysis, the latter. Why not say that it, the general or controlling opinion, is sovereign? Here we finally come upon the distinguishing factor, disregard of which leads Lewis, Maine and Green all astray. Laws proper must proceed from a determinate source, and the public at large is indeterminate. Sovereignty is defined by the following traits: 1. The bulk of the given society are in the habit of obedience to a determinate and common superior. . . . 2. That superior is not in the habit of obedience to a determinate common superior. [Volume I, page 226.] It is the determinateness of the authority which issues the commands, then, which is the sole essential differentia of sovereignty from the force exerted by public opinion. Austin admits as definitely as Maine that obedience is rendered to other authorities than the sovereign; he admits as definitely as Green that a moral reason (a reason based on social welfare) underlies the bare fact of obedience to the government, and that the society whose welfare is in question is always, as matter of fact, in possession of the supreme or controlling power. But it is not sovereign, because it is an indeterminate or vague body, while law proper can proceed only from a numerically determinate body.1 So far does Austin go in this direction that he holds that the whole political society is only figuratively called sovereign: "The party truly independent is not the society, but the sovereign portion of the society." The following will sum up that part of Austin's definition of sovereignty which alone is of further interest to us : An independent political society is divisible into two portions : namely, the portion of its members which is sovereign or supreme, 1 See I, pp. 89 and 174-190. In and the portion of its members which is merely subject most actual societies, the sovereign powers are engrossed by a single member of the whole, or are shared exclusively by a very few of its members; and even in the actual societies whose governments are esteemed popular, the sovereign number is a slender portion of the entire political community.' [Volume I, page 243.] III. The question raised, then, by Austin's conception of sovereignty is precisely whether it resides in a specific numerical portion of the body politic. The question is of special interest in this country; for if Austin's theory is correct, the theory of popular sovereignty is obviously wrong, not only in the crude form in which it is ordinarily stated, but in any possible development of it. The first thing that strikes one is the slenderness of the reason given by Austin for limiting sovereignty to a part. Substantially his argument is, that every law must be a command, and that a command, in the proper sense, can proceed only from a person or persons capable of specific enumeration. Hence the rules set by public opinion are not truly laws, and hence the body holding the opinion cannot be said to be sovereign. For, since it is not a body precisely determined or certain, it cannot, as a body, express or intimate a wish. As a body, it cannot signify a wish by oral or written words, or by positive or negative deportment. The so-called law or rule which its opinion is said to impose, is merely the sentiment which it feels, or is merely the opinion which it holds, in regard to a kind of conduct. [Volume I, page 188.] To Austin the statement that a body uncertain as to number cannot act as a body, and cannot, therefore, issue commands, According to 1 Austin's theory is thus the complete antithesis of Rousseau's. Rousseau, it is of the essence of sovereignty to belong to the whole as a whole, i.e., to the general will. According to Austin, it is of its essence to be partial. Green, in the criticism already referred to, opposes Austin and Rousseau as types of the theories which make sovereignty consist in force and will respectively. I hope it is now obvious that both find it equally in will, but that one conceives of this will as necessarily inhering in a part, the other as inhering in the whole of society. To one seems so self-evident as to need no further argument. surrounded with institutions of a "popular" character, and accustomed, almost every day, to see government affected and controlled by various agencies of clamor, mass meeting, petition and newspaper writing, this inability of a body numerically uncertain to express itself, as a body, in ways having the force of command, will, I think, seem less axiomatic. Austin himself admits that it is "not the style in which the desire is signified" that makes it a command. Willingness to inflict harm in case of disobedience, is the essence of the command. "Preces erant, sed quibus contradici non posset," these were commands, though taking the form of a humble request.1 He distinctly states that one who does not comply with the wishes of the indeterminate body which sets the rule of public opinion, will probably suffer, by reason of not complying, some inconvenience or evil from some party or other; and that by this prospect of evil the acts of persons obnoxious to it are influenced to take a specified form, and from this fact exhibit a steadiness and uniformity which they would otherwise probably lack.2 Against all this likeness to true laws and to real sovereignty, the only point of distinction which marks off what Austin calls moral law, improperly so-called, is that "the person who will enforce the so-called law against any future offender is never determinate and assignable,' -a somewhat slight support, I submit, upon which to base the whole difference between law and moral sentiment, between real sovereignty and mere opinion. Indeed, it seems as if Austin were here reasoning simply in a circle. First the law is defined as a command set by the sovereign; then, having the benefit of the idea of sovereignty to help differentiate political from moral law, the sovereign is defined as the power which sets law the idea of determinateness being slipped in so incidentally as almost to conceal its fundamental importance. Let us, however, grant Austin his assumption and see how it stands the test of facts. Austin's idea of the residence of sovereignty in the United States is familiar to students of con |