Pagina-afbeeldingen
PDF
ePub

LECT. XII.

AUSTIN ON LAW OF GOD.

369

others, is conducted amid much obscurity of thought, and there is no specific more sovereign for dispelling such obscurity than the association of the cardinal terms which enter into our enquiry with absolutely consistent meanings, and the employment of the terms with these meanings as a test for the detection of equivocal phraseology. It is the one inestimable service of the Analytical School to jurisprudence and morals that it furnishes them with a rigidly consistent terminology. (But there is not the faintest reason for thinking that the intelligent and appreciative student of the system must necessarily be an utilitarian.

I shall state hereafter what I believe to be the true point of contact between Austin's system and the utilitarian philosophy. Meantime, devotion to this philosophy, coupled with what I hold to be a faulty arrangement, has produced the most serious blemish in the 'Province of Jurisprudence Determined.' The 2nd, 3rd, and 4th Lectures are occupied with an attempt to identify the law of God and the law of Nature (so far as these last words can be allowed to have any meaning) with the rules required by the theory of utility. The lectures contain many just, interesting, and valuable observations; but the identification, which is their object, is quite gratuitous and valueless for any purpose. Written, I doubt not, in the honest belief that they would

BB

370

AUSTIN ON LAW OF GOD.

LECT. XII.

help to obviate or remove prejudices, they have attracted to Austin's system a whole cloud of prejudices both from the theological and from the philosophical side. If, however, following the order I have suggested, Austin, after concluding the examination of the nature of Sovereignty and of positive law, had entered on an enquiry into the nature of the laws of God, it must have taken the form of an investigation of the question how far the characteristics of the human superiors called Sovereigns can be sup posed to attach to an all-powerful and non-human ruler, and how many of the conceptions dependent on human Sovereignty must be considered as contained in his commands. I much doubt whether such an enquiry would have seemed called for in a treatise like Austin's. Taken at its best, it is a discussion belonging not to the philosophy of law but to the philosophy of legislation. (The jurist, properly so called, has nothing to do with any ideal standard of law or morals.)

LECT XIII.

FORCE AND ORDER.

371

LECTURE XIII.

SOVEREIGNTY AND EMPIRE.

THE word 'law' has come down to us in close association with two notions, the notion of order and the notion of force. The association is of considerable antiquity and is disclosed by a considerable variety of languages, and the problem has repeatedly suggested itself, which of the two notions thus linked. together is entitled to precedence over the other, which of them is first in point of mental conception? The answer, before the Analytical Jurists wrote, Iwould on the whole have been that 'law' before all things implied order. 'Law, in its most general and comprehensive sense, signifies a rule of action, and is applied indiscriminately to all kinds of action, whether animate or inanimate, rational or irrational. we say, the laws of motion, of gravitation, of optics or mechanics, as well as the laws of nature and of nations.' With these words Blackstone begins that Chapter on 'the Nature of Laws in General,' which almost be said to have made Bentham and

may

Thus

372

PRIORITY OF ORDER OR FORCE. LECT. XIII.

Austin into Jurists by virtue of sheer repulsion. (The Analytical Jurists, on the other hand, lay down unhesitatingly that the notion of force has priority over the notion of order. They say that a true law, the command of an irresistible Sovereign, enjoins a class of acts or a class of omissions either on a subject or on a number of subjects, placed by the command alike and indifferently under a legal obligation. The characteristic which thus as a matter of fact attaches to most true laws of binding a number of persons, taken indifferently, to a number of acts or omissions, determined generally, has caused the term 'law' to be extended by metaphor to all uniformities or invariable successions in the physical world, in the operations of the mind, or in the actions of mankind. Law when used in such expressions as the Law of Gravity, the Law of Mental Association, or the Law of Rent, is treated by the Analytical Jurists as a word wrested from its true meaning by an inaccurate figurative extension, and the sort of disrespect with which they speak of it is extremely remarkable. But I suppose that, if dignity and importance can properly be attributed to a word, there are in our day few words more dignified and more important than Law, in the sense of the invariable succession of phenomena, physical, mental, or even politico-economical. With this meaning, 'law' enters into a great deal of modern thought, and has almost become the condi

[merged small][ocr errors][merged small][merged small]

tion of its being carried on. It is difficult at first to believe that such an expression as the Reign of Law,' in the sense in which the words have been popularised by the Duke of Argyll's book, would have been strongly disliked by Austin; but his language leaves little doubt on the point, and more than once reminds us that, though his principal writings are not much more than forty years old, he wrote before men's ideas were leavened to the present depth by the sciences of experiment and observation.

The statement that, in all languages, Law primarily means the command of a Sovereign, and has been applied derivatively to the orderly sequences of Nature is extremely difficult of verification; and it may be doubted whether its value, if it be true, would repay the labour of establishing its truth. The difficulty would be the greater because the known history of philosophical and juridical speculation shows us the two notions, which as a matter of fact are associated with Law, acting and reacting on one another. The order of Nature has unquestionably been regarded as determined by a Sovereign command. Many persons to whom the pedigree of much of modern thought is traceable, conceived the particles of matter which make up the universe as obeying the commands of a personal God just as literally as subjects obey the commands of a sovereign through fear of a penal sanction. On the other hand, the contemplation of

« VorigeDoorgaan »