A

AUSTIN'S THEORY OF SOVEREIGNTY.

I.

CAREFUL study of Austin's Jurisprudence has con

vinced me that the theory which is ordinarily put forward under his name is not his at all. If it belongs to any one, Hobbes and Cornewall Lewis deserve that it be accredited to them. So far as I can trace the origin of the statement which is usually put forward as Austin's, it came from Sir Henry Maine. From his Early History of Institutions I take the following, which will serve as a sufficient statement of the ordinary misconception, whether originating with Maine or not:

There is in every independent political community some single person or combination of persons which has the power of compelling the other members of the community to do exactly as it pleases... This sovereign has in all such communities one characteristic, common to all the shapes sovereignty may take, the possession of irresistible force. That which all the forms of sovereignty have in common is the power (the power, but not necessarily the will) to put compulsion without limit on subjects or fellow-subjects. [Pages 349, 350.]

...

The phrases which I have italicized give the gist of the misconception -the perversion, it may be called of Austin's theory. The work of misstatement which Maine commenced on the historical side, T. H. Green completed on the philosophical side. According to him, Austin's doctrine. "considers the essence of sovereignty to lie in the power . . . to put compulsion without limit on subjects, to make them do exactly as it pleases."1 These statements give what I may without disrespect call the Austinian myth as it has gradually developed. Cornewall Lewis regarded himself as a disciple of Austin, and undoubtedly thought he was repre

1 Works, II, 401.

senting his master's doctrine correctly when he said: "As long as a government exists, the power of the person or persons in whom the sovereignty resides over the whole community, is absolute and unlimited."1 But as a matter of fact, no such conception of sovereignty as consisting in absolute force is to be found anywhere in Austin. Before coming to a positive discussion of Austin's doctrine, it therefore seems necessary to get the false conception of his theory out of the way.

The following statement by Austin is typical:

If perfect or complete independence be of the essence of sovereign power, there is not in fact the human power to which it will apply. Every government, let it be ever so powerful, renders occasional obedience to the commands of other governments. . . . And every government defers habitually to the opinions and sentiments of its own subjects.2

Again he writes:

To an indefinite though limited extent the monarch is superior to the governed, his power being commonly sufficient to secure compliance with his will. But the governed, collectively or in mass, are also the superior of the monarch, who is checked in the abuse of his might by fear of exciting their anger, and of arousing to active resistance the might which slumbers in the multitude.3

"4

If it be said that Lewis, too, recognizes a distinction between legal and moral force, and speaks of a use of the term sovereignty "to signify the moral influence of a whole or a part of the community upon the acts of the sovereign," the reply is that Lewis has absolutely no criterion by which to distinguish between moral and legal, while the characteristic thing in Austin is (as we shall see presently) the careful way

1 Use and Abuse of Political Terms, p. 33. 2 Jurisprudence, I, 242, ed. of 1869.

3 Ibid., I, 99. Compare the following from Maine, who seems to think he is urging something contrary to Austin: "The vast mass of influences, which we call for shortness moral, perpetually shapes, limits or forbids actual direction of the forces of society by its sovereign." Early History of Institutions, p. 359. 4 Use and Abuse, p. 40.

in which he endeavors to fix a basis for such a distinction. So far as Lewis's theory is concerned, whatever actually exercises control must be sovereign; if the "sovereign" is influenced by the wishes of his subjects, so as to "defer habitually" to them, they are really sovereign and he is the subject. "If a sovereign has not power to enforce his commands... he is not sovereign."1 Indeed, Lewis is essentially a legalist, Austin a moralist. Lewis is simply after a definition which will hold water legally; Austin, in spite of the legal form which his main work took, was, like Bentham, preeminently interested in social reform and progress. Law, as such, was to him a means to realize this reform. Το be convinced of this, one has only to read his chapters on "Utility," introduced at the outset of his Lectures, and note especially what he has to say upon the importance of diffusing correct ethical knowledge among the masses of the people (I, 129–143).

If Lewis thus completely inverts Austin's conception, it is perhaps not surprising to find that the necessity of basing force upon some common interest and purpose, which Green urges against Austin, is not only recognized, but stated by Austin at considerable length. He defines the proper end of a sovereign political government "the purpose or end for which it ought to exist"-to be "the greatest possible advancement of human happiness.' "3 He thus recognizes as distinctly as Green a moral end back of and controlling the political institution. Not only this, but he recognizes that the motive which induces men to obey government is, even under existing conditions, very largely an ethical one, and not mere fear of force, while under proper conditions it would be completely ethical. "Supposing," he says, "that a given

1 Use and Abuse, p. 15.

2 It is true that Green and Austin do not use the language of the same philosophical school; Green uses the language of action, Austin that of feeling. But Austin's "general happiness" is practically one with Green's "general will."

8 Vol. I, p. 298.

4 How far this is consistent with another phase of his teaching, viz., his definition of law, we shall have to consider hereafter.

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 exercisedan 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.

35 the moral law a law of the "ought to be," while positive law is a law which actually obtains. Every law implies to Austin a person (or persons) who issues a command, the command being the signification of a wish, together with the power and purpose of inflicting an evil in case the wish is not complied with. "Being liable to evil from you in case I do not comply with a wish which you signify, I am bound or obliged by your command, or I lie under a duty to obey it" (I, 91). The positive law equally with the moral sets up duty; the morai law equally with the positive implies an actual force and a sanction. Both involve actual authority, an actual law-giver and an actual law-subject, and therefore, on Austin's theory, an evil to which the latter is liable from the former in case of disobedience. The distinction between the legal and the moral, accordingly, cannot be the presence or absence of a personal authority imposing the command and enforcing obedience through sanctions. It can only be in some trait or characteristic of the authority imposing the command. is the defining peculiarity of this authority?

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 of obeying a power still above him.