Jhon Austin
Theory of Command
LECTURE I
The matter of jurisprudence is
positive law: law, simply and strictly so called: or
law set by political superiors to political inferiors. But
positive law (or law, simply and
strictly so called) is often confounded with objects to
which it is related by resemblance,
and with objects to which it is related in the way of
analogy: with objects which are also
signified, properly and improperly, by the large and vague
expression law. To obviate
the difficulties springing from that confusion, I begin my
projected Course with deter-
mining the province of jurisprudence, or with distinguishing
the matter of jurisprudence,
or with distinguishing the matter of jurisprudence from
those various related objects: try-
ing to define the subject of which I intend to treat, before
I endeavour to analyse its
numerous and complicated parts.
A law, in the most general and
comprehensive acceptation in which the term, in its literal meaning, is
employed, may be said to be a rule laid down for the guidance of an intelligent
being by an intelligent being having power over him. Under this definition are
concluded, and without impropriety, several species. It is necessary to define
accurately the line of demarcation which separates these species from one
another, as much mistiness and intricacy
has been infused into the science of jurisprudence by their being confounded or
not clearly distinguished. In the comprehensive sense above indicated, or in
the largest meaning which it has, without extension by metaphor or ana1ogy, the
term law embraces the following objects:--Laws set by God to his humal1
creatures, and laws set by men to men.
The whole or a portion of the laws
set by God to men is frequently styled the law
of nature, or natural law: being, in truth, the only natural
law of which it is possible to
speak without a metaphor, or without a blending of objects
which ought to be distin-
guished broadly. But, rejecting the appellation Law of
Nature as ambiguous and mislead-
ing, I name those laws or rules, as considered collectively
or in a mass, the Divine law, or the law of God.
Laws set by men to men are of two
leading or principal classes: classes which are
often blended, although they differ extremely; and which,
for that reason, should be
severed precisely, and opposed distinctly and conspicuously.
Of the laws or rules set by men to
men, some are established by political superiors, sovereign and subject: by
persons exercising supreme and subordinate government, in independent nations,
or independent political societies. The aggregate of the rules thus
established, or to some aggregate forming a portion of that aggregate, the term
law, as used simply and strictly, is exclusively applied. But, as
contradistinguished to natural law, or to the law of nature (meaning, by those
expressions, the law of God), tile aggregate of the rules, established by
political superiors, is frequently styled positive law, or law existing by
position. As contradistinguished to the rules which I style positive morality,
and on which I shall touch immediately, the aggregate of the rules, established
by political superiors, may also be marked commodiously with the name of positive
law.
For the sake, then, of getting a n31ne brief and distinctive
at once, 311d agreeably to fre-
quent usage, I style that aggregate of rules, or any portion
of that aggregate, positive law:
though rules, which are not established by political
superiors, are also positive, or exist by position, if they be rules or laws,
in the proper signification of the term.
Though some of the laws or
rules, which are set by men to men, are established by political superiors, others,
are not established by political superiors, or are not
established by political superiors, in that capacity or character.
Closely analogous to human laws of
this second class, are a set of objects
frequently but improperly termed laws, being rules set and
enforced by mere opinion, that
indeterminate body of men in regard to human conduct.
Instances of such a use of the
term law are the expressions--"The law of honour;"
"The law set by fashion;" and rules of
this species constitute much of what is usually termed
"International law."
The aggregate of human laws
properly so called belonging to the second of the
classes above mentioned, with the aggregate of objects
improperly but by close analogy
termed laws, I place together in a common class, and denote
them by the term positive
morality. The name morality severs them from positive law,
while the epithet positive
disjoins them from the law of God. And to the end of obviating confusion, it is
necessary
or expedient that they should be disjoined from the latter
by that distinguishing epithet.
For the name morality (or morals), when standing unqualified
or alone, denotes indiffe-
rently either of the following objects; namely, positive
mor.t1ity as it is, or without regard
to its merits; and positive morality as it would be, if it
conformed to the law of God, and
were, therefore, deserving of approbation,
Besides the various sorts of rules
which are included in the literal acceptation of the term law, and those which
are by a close and striking analogy, though improperly, termd laws, there are
numerous applications of the term law, which rest upon a slender analogy and
are merely metaphorical or figurative. Such is the case when we talk of laws
observed by the lower animals; of laws regulating the growth or decay of
vegetables; of laws determining the movements of inanimate bodies or masses.
For where intelligence is not, or where it is too bounded to take the name of
reason, and, therefore, is too bounded to conceive the purpose of a law, there
is not the will which law can work on, or which duty can incite or restrain,
Yet through these misapplications of a name, flagrant as the metaphor is, has
the field of jurisprudence and morals been deluged with muddy speculation.
Having suggested the purpose or my
attempt to determine the province of jurispru
dence: to distinguish positive law, the appropriate matter
of jurisprudence, from the vari-
ous objects to which it is related, nearly or remotely, by a
strong or slender analogy: I
shall now state the essentials of a law or rule (taken with
the largest signification which
can be given to the term properly.)
Every law or rule (taken with the
largest signification which can be given to the
term properly) is a command. Or, rather, laws or rules,
properly so called, are a species
of commands.
Now, since the term command
comprises the term law the first is the simpler as
well as the larger of the two. But, simple as it is, it
admits of explanation. And, simple it
is the key to the sciences of jurisprudence and morals, its
meaning should be analysed
with precision.
If you express or intimate a wish
that I shall do or forbear from some act, and if
you will visit me with an evil in case I comply not with
your wish, the expression or inti-
mation of your wish is a command. A command is distinguished
from other significa-
tions of desire, not by the style ill which the desire is
signified, but by the power and the
purpose of the party commanding to inflict an evil or pain
in case the desire be disre-
garded. If you cannot or will not harm me in case I comply
not with your wish, the
expression of your wish amounts to a command, although you
are prompted by a spirit of
courtesy to utter it in the shape of a request. 'Preces
erant, sed quibus contradici non
posset.' Such is the language of Tacitus, when speaking of a
petition by the soldiery to a
son and lieutenant of Vespasian,
A command, then, is a signification
of desire. But a command is distinguished
from other significations of desire by this peculiarity:
that the party to whom it is
directed is liable to evil from the other, ill case he
comply not with the desire.
Being liable to evil from you if I comply not with a wish
which you signify, I roll
bound or obliged by your command, or I lie under a duty to
obey it. If, ill spite of that
evil in prospect, I comply not with the wish which you
signify, I am said to disobey your
command, or to violate the duty which it imposes..
Command and duty are, therefore,
correlative terms: the meaning denoted by each
being implied or supposed by the other. Or (changing the
expression) wherever a duty
lies, a command has been signified; and whenever a command
is signified, a duty is
imposed.
Concisely expressed, the meaning of
the correlative expressions is this. He who
will inflict an evil in case his desire by disregarded,
utters a command by expressing or
intimating his desire: He who is liable to the evil in case
he disregard the desire, is bound
or obliged by the command.
The evil which will probably be
incurred in case a command be disobeyed or (to
use an equivalent expression) in case a duty be broken, is
frequently called a sanction" or
an enforcement of obedience. Or (varying the phrase) the
command or the duty is said to
be sanctioned or enforced by the chance of incurring the
evil.
Considered as thus abstracted from
the command and the duty which it enforces,
the evil to be incurred by disobedience is frequently styled
a punishment. But, as punish-
ments, strictly so called, are only a class of sanctions,
the term is too narrow to express
the meaning adequately.
I observe that Dr. Paley, in his
analysis of the term obligation, lays much stress
upon the violence of the motive to compliance. In so far as
I can gather a meaning from
his loose and inconsistent statement, his meaning appears to
be this: that unless the
motive to compliance be violent or intense, the expression
or intimation of a wish is not a command, nor does the party to whom it is
directed lie under a duty to regard it.
If he means, by a violent motive, a
motive operating with certainty, his proposition is manifestly false. The
greater the evil to be incurred in case the wish be disregarded, and the
greater the chance of incurring it on the same event, the greater, no doubt, is
the chance that the wish will not be disregarded. But no conceivable motive
will render obedience inevitable. If Paley's proposition be true, in the sense
which I have now
ascribed to it, commands and duties are simply impossible.
Or, reducing his proposition
to absurdity by a consequence as manifestly false, commands
and duties are possible, but
are never disobeyed or broken.
If he means by a violent motive,
al1 evil which inspires fear, his meaning is simply this: that the party bound
by a command is bound by the prospect of an evil. For that which is not feared
is not apprehended as an evil: or (changing the shape of the expression) is not
an evil in prospect.
The truth is, that the magnitude of
tl1e eventual evil, and the magnitude of the
chance of incurring it, are foreign to the matter in
question. The greater the eventual evil,
and the greater the chance of incurring it, the greater is
the efficacy of the command, and the greater is the strength of the obligation:
Or (substituting expressions exactly equivalent), the greater is the chance
that the comman1d will be obeyed, and that the duty will not be broken. But
where there is the smallest chance of incurring the smallest evil, the
expression of a wish amounts to a command, and, therefore, imposes a duty. The
sanction, if you will, is feeble or insufficient; but still there is a
sanction, and, therefore, a duty and a command.
By some celebrated writers (by
Locke, Bentham, aud, I think, Paley), the term
sanction, or enforcement of obedience, is applied to
conditional good as well as to condi-
tional evil: to reward as well as to punishment. But, with
all my habitual veneration for
the names of Locke and Bentham, I think that this extension
of the term is pregnant with confusion and perplexity.
Rewards are, indisputably, motives
to comply with the wishes of others. But to talk of commands and duties as
sanctioned or enforced by rewards, or to talk of rewards as obliging or
constraining to obedience, is surely a wide departure from the established
meaning of the terms.
If you expressed a desire that I
should render a service, and if you proffered a
reward as the motive or inducement to render it, you would
scarcely be said to command
the service, nor should I, in ordinary language, be obliged
to render it. In ordinary lan-
guage, you would promise me a reward, on condition of my
rendering the service, whilst
I might be incited or persuaded to render it by the hope of
obtaining the reward.
Again: If a law hold out a reward
as an inducement to do some act, an eventual
right is conferred, and not an obligation imposed, upon
those who shall act accordingly:
The imperative part of the law being addressed or directed
to the party whom it requires
to render the reward.
In short, I am determined or
inclined to comp1y with the wish of another, by the
fear of disadvantage or evil. I am also determined or
inclined to comply with the wish of
another, by the hope of advantage or good. But it is only by
the chance of incurring evil,
that I am bound or obliged to compliance. It is only by
conditiona1 evil, that duties are
sanctioned or enforced. It is the power mid the purpose of
inflicting eventual evil, and
not the power and the purpose of imparting eventual good,
which gives to the expression
of a wish the name of a command.
If we put reward into the import of
the term sanction, we must engage in a toil-
some struggle with the current of ordinary speech; and shall
often slide unconsciously,
notwithstanding our efforts to the contrary, into the
narrower and customary meaning.
It appears, then, from what has
been premised, that the ideas or notions compre-
hended by the term command are the following. 1. A wish or
desire conceived by a
rational being, that another rational being shall do or
forbear. 2. An evil to proceed from
the former, and to be incurred by the latter, in case the
latter comply not with the wish. 3.
An expression or intimation of the wish by words or other
signs.
It also appears from what has been
premised, that command, duty, and sanction are inseparably connected terms:
that each embraces the same ideas as the others, though each denotes those
ideas ill a peculiar order or series.
'A wish conceived by one, and
expressed or intimated to another, with an evil to be inflicted and incurred in
case the wish be disregarded,' are signified directly and indi-
rectly by each of the three expressions. Each is the name of
the same complex notion.
But when I an talking directly of
the expression or intimation of the wish, I
employ the term command: The expression or intimation of the
wish being presented
prominently to my hearer; whilst the evil to be incurred,
with the chance of incurring it,
are kept (if I may so express myself) in the background of
my picture.
When I am talking directly of the
chance of incurring the evil, or (changing the
expression) of the liability or obnoxiousness to the evil, I
employ the tern) duty, or the
term obligation: The liability or obnoxiousness to the evil
being put foremost, and the
rest of the complex notion being signified implicitly.
When I am talking immediately of
the evil itself, I employ the teem sanction, or a
term of the like import: The evil to be incurred being
signified directly; whilst the obnox-
iousness to that evil, with the expression or intimation of
the wish, are indicated indirectly or obliquely.
To those who are familiar with the
language of logicians (language unrivalled for
brevity, distinctness, and precision), I can express my
meaning accurately in a breath:
--Each of the three terms signifies the same notion; but
each denotes a different part of
that notion, and connotes the residue.
Commands are of two species. Some
are laws or rules. The others have not
acquired an appropriate name, nor does language afford an expression
which will mark
them briefly and precisely. I must, therefore, note them as
well as I can by the ambigu-
ous and inexpressive name of
'occasional or particular commands,'
The term laws or rules being not
unfrequently applied to occasional or particular
commands, it is hardly possible to describe a line of
separation which shall consist ill
every respect with established forms of speech. But the
distinction between laws and
particular commands may, I think, be stated in the following
manner.
By every command, the party to whom
it is directed is obliged to do or to forbear.
Now where it obliges generally to
acts or forbearances of a class, a command is a
law or rule. But where it obliges to a specific act or
forbearances, or to acts or forbear-
ances which it determines specifically or individually, a
command is occasional or partic-
ular. In other words, a class or description of acts is
determined by a law or a rule, and
acts of that class or description are enjoined or forbidden
generally. But where a com-
mand is occasional or particular, the act or acts, which the
command enjoins or forbids,
are assigned or determined by their specific or individual
natures as well as by the class
or description to which they belong.
The statement which I have given in
abstract expressions I will now endeavour to illustrate by apt examples.
If you command your servant to go
on a given errand, or not to leave your house on a given evening, or to rise at
such an hour on such a morning, or to rise at that hour during the next week or
month, the command is occasional or particular. For the act or acts enjoined or
forbidden are specially determined or assigned.
But if you command him simply to
rise at that hour, or to rise at that hour always,
or to rise at that hour till further orders, it may be said,
with propriety, that you lay down
a rule for the guidance of your servant's conduct. For no
specific act is assigned by the
command, but the command obliges him generally to acts or a
determined class.
If a regiment be ordered to attack
or defend a post, or to quell a riot, or to march
from their present quarters, the command is occasional or
particular. But an order to
exercise daily till further orders shall be given would be
called a general order, and might
be called a rule.
If Parliament prohibited simply the
exportation of corn either for a given period or indefinitely, it would
establish a law or rule: a kind or sort of acts being determined by
the command, and acts of that kind or sort being generally
forbidden. But an order issued by Parliament to meet an impending scarcity, and
stopping the exportation of corm then shipped and in port, would not be a law
or rule, though issued by the sovereign legisla-
ture. The order regarding exclusively a specified quantity
of corn, the negative acts or
forbearances, enjoined by the command, would be determined
specifically or individually by the deten11inate nature of their subject.
As issued by a sovereign
legislature, and as wearing the form of a law, the order
which I have now imagined would probably be called a law.
And hence the difficulty of
drawing a distinct boundary between laws and occasional
commands.
Again: An act which is not an
offence, according to the existing law, moves the
sovereign to displeasure: and, though the authors of the act
are legally innocent or unof-
fending, the sovereign commands that they shall be punished.
As enjoining a specific
punishment in that specific case, and as not enjou1ing
generally acts or forbearances of a
class, the order uttered by the sovereign is not a law or
rule.
Whether such an order would be
called a law, seems to depend upon circumstances which are purely immaterial:
immaterial, that is, with reference to the present purpose, though material
with reference to others. If made by a sovereign assembly deliberately, and
with the forms of legislation, it would probably be called a law. If uttered by
an absolute monarch, without deliberation or ceremony, it would scarcely be
confounded with acts of legislation, and would be styled an arbitrary command.
Yet, on either of these suppositions, its nature would be the same. It would
not be a law or rule, but an occasional or particular command of the sovereign
One or Number.
To conclude with an example which
best illustrates the distinction, and which
shows the importance of the distinction most conspicuously,
judicial commands are
commonly occasional or particular, although the commands
which they are calculated to
enforce are commonly laws or rules.
For instance, the lawgiver commands
that thieves shall be hru1ged. A specific theft and a specified thief being
given, the judge commands that the thief shall be hanged, agreeably to the
command of the lawgiver.
Now the lawgiver determines a class
or description of acts; prohibits acts of the
class generally and indefinitely; and commands, with the
like generality, that punishment shall follow transgression. The command of the
lawgiver is, therefore, a law or rule. But the command of the judge is
occasional or particular. For he orders a specific punishment, as the
consequence of a specific offense.
According to the line of separation
which I have now attempted to describe, a law
and a particular command are distinguished thus:--Acts or
forbearances of a class are
enjoined generally by the former. Acts determined
specifically, are enjoined or forbidden
by the latter.
A different line of separation has
been drawn by Blackstone and others. According to Blackstone and others, a law
and a particular command are distinguished in the following manner:--A law
obliges generally the members of the given community, or a law obliges
generally persons of a given class. A particular command obliges a single
person, or persons whom it determines individually.
That laws and particular
col11lnands are not to be distinguished thus, will appear on a moment's
reflection.
For, first, commands which oblige
generally the members of the given community, or commands which oblige
generally persons of given classes, are not always laws or rules.
Thus, in the case already supposed;
that in which the sovereign commands that all com actually shipped for
exportation be stopped and detained; the command is obligatory upon the whole
community, but as it obliges them only to a set of acts individually assigned,
it is not a law. Again, suppose the sovereign to issue all order, enforced by
penalties, for a general mourning, on occasion of public calamity. Now, though
it is addressed to the community at large, the order is scarcely a rule, in the
usual acceptation of the term. For, though it obliges generally the members of
the entire community, it obliges to acts which it assigns specifically, instead
of obliging generally to acts or forbearances of a class. If the sovereign
commanded that black should he the dress of his subjects, his command would
amount to a law. But if he commanded them to wear it on a specified occasion,
his command would be merely particular.
And, secondly, a command which
obliges exclusively persons individually deter-
mined, may amount, notwithstanding, to a law or a rule.
For example, A father may set a
rule to his child or children: a guardian, to his
ward: a master, to his slave or servant. And certain of
God's laws were as binding on the
first man, as they are binding at this hour on the millions
who have sprung from his loins.
Most, indeed, of the laws which are
established by political superiors, or most of
the laws which are simply and strictly so called, oblige
generally the members of the
political community, or oblige generally persons of a class.
To frame a system of duties
for every individual of the community, were simply
impossible: and if it were possible, it
were utterly useless. Most of the laws established by
political superiors are, therefore,
general in a twofold manner: as enjoining or forbidding
generally acts of two kinds or
sorts; and as binding the whole community, or, at least,
whole classes of its members.
But if we suppose that Parliament
creates and grants an office, and that Parliament binds the grantee to services
of a given description, we suppose a law established by political superiors,
and yet exclusively binding a specified or determinate person.
Laws established by political
superiors. and exclusively binding specified or determinate persons, are
styled, in the language of the Roman jurists, privilegia. Though that, indeed,
is a name which wil1 hard1y denote them distinct1y: for, like most of the
leading terms in actual systems of law, it is not the mane of a definite class
of objects, but of a heap of heterogeneous objects.'
It appears, from what has been
premised, that a law, properly so called, may be
defined in the following manner.
A law is a command which obliges a
person or persons.
But, as contradistinguished or
opposed to an occasiona1 or particular command, a law is a command which
obliges a person or persons, and obliges generally to acts or
forbearances of a class.
In language more popular but less
distinct and precise, a law is a command which obliges a person or persons to a
course of conduct.
Laws and other commands are said to
proceed from superiors, and to bind or
oblige inferiors. I will, therefore, analyse the meaning of
those correlative expressions;
and will try to strip them of a certain mystery, by which
that simple meaning appears to be obscured.
Superiority is often synonymous
with precedence or excellence. We ta1k of superiors in rank; of superiors in
wealth; of superiors in virtue: comparing certain persons with certain other
persons; and meaning that the former precede or excel tl1e latter in rank, in
wealth, or in virtue.
But, taken with the meaning wherein
I here understand it, the term superiority sig-
nifies might: the power of affecting others with evil or
pain, and of forcing them, through
fear of that evil, to fashion their conduct to one's wishes.
For example, God is emphatically
the superior of Man. For his power of affecting us with pain, and of forcing us
to comply with his will, is unbounded and resistless.
To limited extent, the sovereign
One or Number is the superior of the subject or
citizen: the master, of the slave or servant: the father, of
the child.
In short, whoever can oblige
another to comply with his wishes, is the superior of
that other, so far as the ability reaches: The party who is
obnoxious to the impending evil, being, to that same extent, the inferior.
The might or superiority of God, is
simp1e or absolute. But in all or most cases of
human superiority, the relation of superior and inferior,
and the relation of inferior and
superior, are reciprocal. Or (changing the expression) the
party who is the superior as
viewed from one aspect, is the inferior as viewed from
another.
For example, To an indefinite,
though limited extent, the monarch is the superior of the governed: his power
being commonly sufficient to enforce 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 his fear of exciting their anger; and of rousing to
active resistence the might which slumbers in the multitude.
A member of a sovereign assembly is
the superior of the judge: the judge being
bound by the law which proceeds from that sovereign body.
But, in his character of citi-
zen or subject, he is the inferior of the judge: the judge
being the minister of the law, and
armed with the power of enforcing it.
It appears, then, that the term
superiority (like the terms duty and sanction) is
implied by the term command. For superiority is the power of
enforcing compliance with
a wish: and the expression or intimation of a wish, with the
power and the purpose of
enforcing it, are the constituent elements of a command.
That laws emanate from superiors'
is, therefore, an identical proposition. For the
meaning which it affects to impart is contained in its
subject.
If I mark the peculiar source of a
given law, or if I mark the pecu1iar source of laws of a given class, it is
possible that I am saying something which may instruct the hearer. But to affirm of laws universally 'that they
flow from superiors,' or to affirm of laws universally 'that inferiors are
bound to obey them,' is the merest tautology and trifling.
Like most of the leading terms in
the sciences of jurisprudence 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 command.
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 limita-
tions. Or, rather, we must distinguish the various meanings
of the term laws; and must
restrict the proposition to that class of objects winch is
embraced by the largest sjgnifica-
tion that can be given to the term properly.
I have already indicated, and shall
hereafter more fully describe, the objects
improperly termed laws, which are not within the province of
.jurisprudence (being either
rules enforced by opinion and closely analogous to laws
properly so called, or being laws
so called by a metaphorical application of the term merely.)
There are other objects
improperly termed laws (not being commands) which yet may
properly be included
within the province of jurisprudence. These I shall
endeavour to particularise:--
1. Acts on the part of legislatures
to explain positive law, can scarcely be called
laws, in the proper signification of the term. Working no
change in the actual duties of
the governed, but simply declaring what those duties are,
they properly are acts of inter-
pretation by legislative authority. Or, to borrow an
expression from the writers on the
Roman Law, they are acts of authentic interpretation.
But, this notwithstanding, they are
frequently styled laws; declaratory laws, or
declaratory statutes. They must, therefore, be noted as
forming an exception to the
proposition 'that laws are a species of commands.’
It often, indeed, happens (as I
shall show in the proper place), that laws declaratory in name are imperative
in effect: Legislative, like judicial interpretation, being frequently
deceptive; and establishing new law, under guise of expounding the old.
2. Laws to repea1laws, and to
release from existing duties, must also be excepted
from the proposition 'that laws are a species of commands.'
In so far as they release from
duties imposed by existing laws, they are not commands, but
revocations of commands.
They authorize or permit the parties, to whom the repeal
extends, to do or to forbear. from acts which they were commanded to forbear
from or to do. And, considered with regard to this, their immediate or direct
purpose, they are often named permissive laws, or, more briefly and more
properly, permissions..
Remotely and indirectly, indeed,
permissive laws are often or always imperative.
For the parties released from duties are restored to
liberties or rights: and duties answer-
ing those rights are, therefore, created or revived.
But this is a matter which I shall
examine with exactness, when I analyse the
expressions 'legal right,' 'permission by the sovereign or
state,' and 'civil or political lib-
erty.’
3. Imperfect laws, or 1aws of
imperfect obligation, must also be excepted from
the proposition 'that laws are a species of commands.'
An imperfect law (with the sense
wherein the term is used by the Roman jurists) is a law which wants a sanction,
and which, therefore, is not binding. A law declaring that
certain acts are crimes, but annexing no punishment to the
commission of acts of the
class, is the simplest and most obvious example.
Though the author of an imperfect
law signifies a desire, lie manifests no purpose
of enforcing comp1iance with the desire. But where there is
not a purpose of enforcing
compliance with the desire, the expression of a desire is
not a con1marlu. Consequently,
an imperfect law is not so properly a law, as counsel, or
exhortation, addressed by a
superior to inferiors.
Examples of imperfect laws are
cited by the Roman jurists. But with us in Eng-
land, laws professedly imperative are always (I believe)
perfect or obligatory. Where the
English legislature affects to command, the English
tribunals not unreasonably presume
that the legislature exacts obedience. And, if no specific
sanction be annexed to a given
law, a sal1ction is supplied by the courts of justice,
agreeably to a general maxim which
obtains in cases of the kind,
The imperfect laws, of which I am
now speaking, are laws which are imperfect, in
the sense of the Roman jurists: that is to say, laws which
speak the desires of political
superiors, but which their authors (by oversight or design)
have not provided with sanc-
tions. Many of the writers on morals, and on the so called
law of nature, have annexed a
different meaning to the term imperfect. Speaking of
imperfect obligations, they com-
monly mean duties which are not legal: duties imposed by
commands of God, or duties
imposed by positive morality, as contradistinguished to
duties imposed by positive law.
An imperfect obligation, the sense of the Roman jurists, is
exactly equivalent to no
obligation at all. For the term imperfect denotes simply,
that the law wants the sanction
appropriate to laws of the kind. An imperfect obligation, in
the other meaning of the
expression, is a religious or a moral obligation. The term
imperfect does not denote that
the law imposing the duty wants the appropriate sanction. It
denotes that the law imposing the duty is not a law established by a political
superior: that it wants that perfect, or that surer or more cogent sanction,
which is imparted by the sovereign or state.
I believe that I have now reviewed
all the classes of objects, to which the term laws is improperly applied. The
laws (improperly so called) which I have here lastly enumerated, are (I think)
the only laws which are not commands, and which yet may be properly included
within the province of jurisprudence. But though these, with the so called laws
set by opinion and the objects metaphorically termd laws,
are the only laws which really
are not commands, there are certain laws (properly so
called) which may seem not imper-
ative. Accordingly, I will subjoin a few remarks upon laws
of this dubious character.
1. There are laws, it may be said,
which merely create rights: And, seeing that
every command imposes a duty, laws of this nature are not
imperative,
But, as I have intimated already,
arid shall show completely hereafter, there are no
laws merely creating rights. There are laws, it is true,
which merely create duties: duties
not correlating with correlating rights, and which, therefore
may be styled absolute. But
every law, really conferring a right, imposes expressly or
tacitly a relative duty, or a duty
correlating with the right, If it specify the remedy to be
given, in case the right shall be
infringed, it imposes the relative duty expressly. If the
remedy to be given be not speci-
fied, it refers tacitly to pre-existing law, and clothes the
right which it purports to create
with a remedy provided by that law. Every law, really
conferring a right, is, therefore,
imperative: as imperative, as if its only purpose were the
creation of a duty, or as if the
relative duty, which it inevitably imposes, were merely
absolute.
The meanings of the term right, are
various and perplexed; taken with its proper
meaning, it comprises ideas which are numerous and
complicated; and the searching and
extensive analysis, which the term, therefore, requires,
would occupy more room than
could be given to it in the present lecture, It is not,
however, necessary, that the analysis
should be performed here. 1 purpose, in my earlier lectures,
to determine the province of
jurisprudence; or to distinguish the laws established by
political superiors, from the vari-
ous laws, proper and improper, with which they are
frequently confounded. And this I
may accomplish exactly enough, without a nice inquiry into
the import of the term right.
2. According to an opinion which I
must notice incidentally here, though the sub-
ject to which it relates will be treated directly hereafter,
customary laws must be excepted
from the proposition 'that laws are a species of commands,'
By many of the admirers of
customary laws (and, especially, of their German
admirers), they are thought to oblige legally (independently
of the sovereign or state),
because the citizens or subjects have observed or kept them.
Agreeably to this opinion,
they are not the creatures of the sovereign or state,
although the sovereign or state may
abolish them at pleasure. Agreeably to this opinion, they
are positive law (or law, strictly
so called), inasmuch as they are enforced by tile courts of
justice: But, that notwithstand-
ing, they exist as positive law by the spontaneous adoption
of the governed, and not by
position or establishment on the part of political
superiors. Consequently, customary
laws, considered as positive law, are not commands. And,
consequently, customary laws,
considered as positive law, are not laws or rules properly
so called.
An opinion less mysterious, but
somewhat allied to this, is not uncommonly held
by the adverse party: by the party which is strongly opposed
to customary law; and to all
law made judicially, or in the way of judicial legislation.
According to the latter opinion,
all judge-made law, or all judge-made law established by
subject judges, is purely the
creature of the judges by whom it is established
immediately. To impute it to the sover-
eign legislature, or to suppose that it speaks the will of
the sovereign legislature, is one of
the foolish or knavish fictions with which lawyers, in every
age and nation, have per-
plexed and darkened the simplest and clearest truths.
I think it will appear, on a
moment's reflection, that each of these opinions is
groundless; that customary law is imperative, in the proper
signification of the term; and
that all judge-made law is the creature of the sovereign or
state.
At its origin, a custom is a rule
of conduct which the governed observe spontane-
ously, 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 judi-
cial decisions fashioned upon it are enforced by the power
of the state. But before it is
adopted by the courts, and clothed with legal sanction, it
is merely a rule of positive
morality: a rule generally observed by tile citizens or
subjects; hut deriving the only
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 sov-
ereign 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 evu1ced by its conduct, though not by its express
declaration.
The admirers of customary law love
to trick out their idol with mysterious and
imposing attributes. But to those who can see the difference
between positive law and
morality, h1ere is nothing of mystery about it. Considered
as rules of positive morality,
customary laws arise from the consent of the governed, and
not from the position or
establishment of political superiors. But, considered as
moral rules turned into positive
laws, customary laws are established by tile state:
established by the state directly, when
the customs are promulged in its statutes; established by
the stale circuitously, when the
customs are adopted by its tribunals.
The opinion of the party which
abhors judge-made laws, springs from their inade-
quate conception of the nature of commands.
Like other significations of
desire, a command is express or tacit. If the desire be
signified by words (written or spoken), the command is
express. If the desire be signified
by conduct (or by any signs of desire which are not words),
the command is tacit.
Now when customs are turned into
legal rules by decisions of subject judges, the
legal rules which emerge from the customs are tacit commands
of tile sovereign legisla-
ture. The state, which is able to abolish, permits its
ministers to enforce them: and it,
therefore, singifies its pleasure, by tl1at its voluntary
acquiescence, 'that they shall serve
as a law to the governed.'
My present purpose is merely this:
to prove that the positive law styled customary
(an all positive law made judicially) is established by the
state directly or circuitiously,
and, therefore, is imperative. I am far from disputing, that
law made judicially (or in the
way of improper legislation) and law made by statute (or in
the properly legislative
manner) are distinguished by weighty differences. I shall
inquire, in future lectures, what
those differences are; and why subject .judges, who are
properly ministers of the law,
have commonly shared with the sovereign in the business of
making it.
I assume, then, that the only laws
which are not imperative, and which belong to
the subject-matter of jurisprudence, aloe the following:--I.
Declaratory laws, or laws
explaining the import of existing positive law. 2. Laws
abrogating or repealing existing
positive law. 3. Imperfect laws, or laws of imperfect
obligation (with the sense wherein
the expression is used by the Roman jurists).
But the space occupied in the
science by these improper laws is comparatively
narrow and insignificant. Accordingly, although I shall take
them into account so often
as I refer to them directly, I shall throw them out of
account on other occasions. Or
(changing the expression) I shall limit the term law to laws
which are imperative, unless I extend it expressly to laws which are not.
LECTURE 5
...Positive Jaws, or 1aws strict1y
so called, are estah1ished direct1y or immediate1y by authors of three
kinds:--by monarchs, or sovereign bodies, as supreme political superiors: by
men in a state of subjection, as subordinate political superiors: by subjects,
as private persons, in pursuance of legal rights. But every positive law, or
every law strictly so called, is a direct or circuitous command of a monarch or
sovereign number in the character of political superior: that is to say, a
direct or circuitous command of a monarch or sovereign number to a person or
persons in a state of subjection to its author. And being a command (and
therefore flowing from a determinate source), every positive law is a law
proper, or a law so properly called.
Besides the human laws which I
style positive law, there are human laws which I
style positive morality, rules of positive morality, or
positive moral rules.
The generic character of laws of
the class may be stated briefly in the following
negative manner:--No law belonging to the class is a direct
or circuitous command of a monarch or sovereign number in the character of
political superior. In other words, no
law belonging to the class is a direct or circuitous command
of a monarch or sovereign number to a person or persons in a state of
subjection to its author.
But of positive moral rules, some
are laws proper, or laws properly so ca11ed: others are laws improper, or laws
improperly so called. Some have all the essentials of an
imperative law or rule: others are deficient in some of
those essentials, and are styled
laws or rules by an analogical extension of the term.
...The positive moral rules which
are laws improperly so called, are laws set or
imposed by general opinion: that is to say, by the general
opinion of any class or any
society of persons. For example, Some are set or imposed by
the general opinion of per-
sons who are members of a profession or calling: other, by
that of persons who inhabit a
town or province: others, by that of a nation or independent
political society; others, by
that of a larger society formed of various nations.
A few species of the laws which are
set by genera1 opinion have gotten appropriate names.--For example, There are
laws or rules imposed upon gentlemen by opinions current amongst gentlemen. And
these are usually styled the rules of honour, or the laws or laws of honour.
There are laws or rules imposed upon people of fashion by opinions
current in the fashionable world. And these are usually
styled the law set by fashion.
There are laws which regard the conduct of independent
political societies in their vari-
ous relations to one another: Or, rather, there are laws
which regard the conduct of sover
eigns or supreme governments in their various relations to
one another. And laws or
rules of this species, which are imposed upon nations or
sovereigns by opinions current
amongst nations, are usually styled the law of nations or
international law.
Now a law set or imposed by general
opinion is a law improperly so called. It is
styled a law or rule by an analogical extension of the term.
When we speak of a law set
by general opinion, we denote, by that expression, the
following fact:--Some indetermin-
nate body or uncertain aggregate of persons regards a kind
of conduct with a sentiment
of aversion of liking: Or (changing the expression) that
indetermu1ate body opines unfa-
vourably or favourably of a given kind of conduct. In
consequence of that sentiment, or
in consequence of that opinion, it is likely that they or
some of them will be displeased
with a party who shall pursue or not pursue conduct of that
kind. And, in consequence of
that displeasure, it is likely that some party (what party
being undetermined) will visit the
party provoking it with some evil or another.
The body by whose opinion the law
is said to he set, does not command, expressly or tacitly, that conduct of the
given kind shall be forborne or pursued. 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.
...In the foregoing analysis of a
law set by general opinion, the meaning of the
expression 'indeterminate body of persons' is indicated
rather than explained. To com-
plete my analysis of a law set by general opinion (and to
abridge that analysis of sover-
eignty which I shall place in my sixth lecture,) I will here
insert a concise exposition of
the following pregnant distinction: namely, the distinction
between a determinate, and an
indeterminate body of single or individual persons. --If my
exposition of the distinction
shall appear obscure and crabbed, my hearers (I hope) will
recollect that the distinction
could hardly be expounded in lucid and flowing expressions.
I will first describe tile
distinction in general or abstract terms, and will then exem
plify and illustrate the general or abstract description.
If a body of persons be
detem1ulate, all the persons who compose it are determined and assignable, or
every person who belongs to it is determined and may be indicated.
But determinate bodies are of two
kinds.
A determinate body of one of those
kinds is distinguished by the following marks:
--1. The body is composed of persons determined specifically
or individually, or deter-
mined by characters or descriptions respectively appropriate
to themselves. 2. Though
every individual member must of necessity answer to many
generic descriptions, every
individual member is a member of the detemlu1ate body, not
by reason of his bearing his
specific or appropriate character, but by reason of his
answering to any generic descrip-
tion but by reason of his bearing his specific or appropriate
character.
A determinate body of the other of
those kinds is distinguished by the fo11owing
marks:--1. It comprises all the persons who belong to a
given class, or who belong
respectively to two or more of such classes. In other words,
every person who answers to
a given generic description, or to any of two or more given
generic descriptions, is also a
member of the determinate body. 2. Though every individual
member is of necessity
determined by a specific or appropriate character, every
individual member is a member
of the determinate body, not by reason of his bearing his
specific or appropriate character,
but by reason of his answeru1g to the given generic
description.
If a body be indeterminate, all
tile persons who compose it are not determined and
assignable. Or (changing the expression) every person who
belongs to it is not deter-
mined, and, therefore, cannot be indicated. --For an
indeterminate body consists of some
of the persons who belong to another and larger aggregate.
But how many of those per-
sons are members of the indeterminate body, or which of
those persons in particular are
members of the indeterminate body, is not and cannot be
blown completely and exactly.
LECTURE 6
I shall finish, in the present
1ecture, the purpose mentioned above, by explaining
the marks or characters which distinguish positive laws, or
laws strictly so called. And,
in order to an explanation of the marks which distinguish
positive laws, I shall analyze
the expression sovereignty, the correlative expression subjection,
and the inseparably
connected expression independent political society. With the
ends or final causes for
which governments ought to exist, or with their different
degrees of fitness to attain or
approach those ends, I have no concern. I example the
notions of sovereignty and inde-
pendent political society, in order that I may finish the
purpose to which I have adverted
above: ill order that I may distinguish completely the
appropriate province of jurispru-
dence from the regions which lie upon its confines, and by
which it is encircled. It is
necessary that I should examine those notions, in order that
I may finish that purpose.
For the essential difference of a positive law (or the
difference that severs it from a law
which is not a positive law) may be stated thus. Every
positive law, or every law simply
and strictly so called, is set by a sovereign person, or a
sovereign body of persons, to a
member or members of the independent political society
wherein that person or body is
sovereign or supreme. Or (changing the expression) it is set
by a monarch, or sovereign
number, to a person or persons in a state of subjection to
its author. Even though it
sprung directly from another fountain or source, it is a
positive law, or a law strictly so
called, by the institution of that present sovereign in the
character of political superior.
Or (borrowing the language of Hobbes) 'the legislator is he,
not by whose authority the
law was first made, but by whose authority it continues to
he a law.'
Having stated the topic or subject
appropriate to my present discourse, I proceed to distinguish sovereignty from
other superiority or might, and to distinguish society political and
independent from society of other descriptions.
The superiority which is styled sovereignty,
and the independent political society
which sovereignty implies, is distinguished from other
superiority, and from other soci-
ety, by the following marks or characters: 1. The bulk of
the given society are in a habit
of obedience or submission to a determinate and common
superior: let that common
superior be a certain individual person, or a certain body
or aggregate of individual per-
sons. 2. That certain individual, or that certain body of
individuals, is not in a habit of
obedience to a determinate human superior. Laws (improperly
so called) which opinion
sets or imposes, may permanently affect the conduct of that
certain individual or body.
To express or tacit commands of other determinate parties,
that certain individual or body
may yield occasional submission. But there is no determinate
person, or determinate
aggregate of persons, to whose commands, express or tacit,
that certain individual or
body renders habitual obedience.
Or the notions of sovereignty and
independent politica1 society may be expressed
concisely thus. --If a determinate human superior, flat in a
habit of obedience to a like
superior, receive habitual obedience from the bulk of a
given society, that determinate
superior is sovereign in that society, and the society
(including the superior) is a society
political and independent.
To that determinate superior, the
other members of the society are subject: or on
that determinate superior, the other members of the society
are dependent. The position
of its other members towards that determinate superior, is a
state of subjection, or a state
of dependence. The mutual relation which subsists between
that superior and them, may
be styled the relation of sovereign and subject, or the
relation of sovereignty and subjec-
tion.
Hence it follows, that it is only
through an ellipsis, or an abridged form of expres-
sion, that the society is styled independent. The party
truly independent (independent,
that is to say, of a determinate human superior), is not the
society, but the sovereign por-
tion of the society: that certain member of the society, or
that certain body of its mem-
bers, to whose commands, expressed or intimated, the
generality or bulk of its members
render habitual obedience. Upon that certain person, or
certain body of persons, the other
members of the society are dependent; or to that certain
person, or certain body of per-
sons, the other members of the society are subject. By 'an
independent political society,'
or an independent and sovereign nation,' we mean a political
society consisting of a sovereign and subjects, as opposed to a political
society which is merely subordinate: that is to say, which is merely a limb or
member of another political society, and which there-
fore consists entirely of persons in a state of subjection.
In order that a given society may
form a society political and independent, the two distinguishing marks which I
have mentioned above must unite. The generality of the
given society must be in the habit of obedience to a
determinate and common superior:
whilst that determinate person, or determinate body of
persons must not be habitually
obedient to a determinate person or body. It is the union of
that positive, with this neg-
ative mark, which renders that certain superior sovereign or
supreme, and which renders
that given society (including that certain superior) a
society political and independent.
To show that the union of those
marks renders a given society a society political
and independent, I call your attention to the following
positions and examples.
1. In order that a given society
may form a society political, the generality or bulk of its members must be in
a habit of obedience to a determinate and common superior.
In case the generality of its
members obey a determinate superior, but the obedi-
ence be rare or transient and not habitual or permanent, the
relation of sovereignty and
subjection is not created thereby between that certain
superior and the members of that
given society. In other words, that determinate superior and
the members of that given
soceity do not become thereby an independent political
society. Whether that given soci-
ety be political and independent or not, it is not an
independent political society whereof
that certain superior is the sovereign portion.
For example: In 1815 the allied
armies occupied France; and so long as the allied armies occupied France, the
commands of the allied sovereigns were obeyed by the
French government, and, through the French government, by
the French people gener-
ally. But since the commands and the obedience were
comparatively rare and transient,
they were not sufficient to constitute the relation of
sovereignty and subjection between
the allied sovereigns and the members of the invaded nation.
In spite of those com-
mands, and in spite of that obedience, the French government
was sovereign or indepen-
dent. Or in spite of those commands, and in spite of that
obedience, the French govern-
ment and its subjects were an independent political society
whereof the allied sovereigns
were not the sovereign portion.
Now if the French nation, before
the obedience to those sovereigns, had been an
independent society in a state of nature or anarchy, it
would not have been changed by
the obedience into a society political. And it would not have
been changed by the obedi-
ence into a society political, because the obedience was not
habitual. For, inasmuch as
the obedience was not habitual, it was not changed by the
obedience from a society political and independent, into a society political
but subordinate. --A given society, therefore, is not a society political,
unless the generality of its members be in a habit of obedience to a
determinate and common superior.
Again: A feeble state holds its
independence precariously, or at the will or the
powerful states to whose aggressions it is obnoxious. And
since it is obnoxious to their
aggressions, it and the bulk of its subjects render
obedience to commands which they
occasionally express or intimate. Such, for instance, is the
position of the Saxon government and its subjects in respect of the conspiring
sovereigns who form the Holy Alliance.
But since the commands and the obedience are comparatively few and rare,
they are not sufficient to constitute the relation of sovereignty and
subjection between the powerful states and the feeble state with its subjects.
In spite of those commands, and in spite of that obedience, the feeble state is
sovereign or independent. Or in spite of those commands, and in spite of that
obedience, the feeble state and its subjects are an independent political
society whereof the powerful states are not the sovereign portion. Although the
powerful states are permanently superior, and although the feeble state is
permanently inferior, there is neither a habit of command on the part of the
former, nor a habit of obedience on the part of the latter. Although the latter
is unable to defend and maintain its independence, the latter is independent of
the former in fact or practice.
From the example now adduced, as
from the example adduced before, we may
draw the following inference: that a given society is not a
society political, unless the
generality of its members be in a habit or obedience to a
determinate and common
superior. --By the obedience to the powerful states, the
feeble state and its subjects are
not changed from an independent, into a subordinate
political society. And they are not
changed by the obedience into a subordinate political
society, because the obedience is
not habitual. Consequently, if they were a natural society
(setting that obedience aside),
they would not be changed by that obedience into a society
political.
2. In order that a given society
may fom1 a society political, habitual obedience
must be rendered, by the generality or bulk of its members,
to a determinate and common superior. In other words, habitual obedience must
be rendered, by the generality or bulk of its members, to one and the same,
determinate person, or determinate body of persons.
Unless habitual obedience be
rendered by the bulk of its members, and be rendered by the bulk of its members
to one and the same superior, the given society is either in a state of nature,
or is split into two or more independent political societies.
For example: In case a given
society be tom by intestine war, and in case the con-
flicting parties be nearly balanced, the given society is in
one of the two positions which I
have now supposed. --As there is no common superior to which
the bulk of its mem-
bers render habitual obedience, it is not a political society
single or undivided. --If the
bulk of each of the parties be ill a habit or obedience to
its head, th1e given society is bro-
ken into two or more societies, which, perhaps, may be
styled independent political societies. --If the bulk of each of the parties be
not in that habit of obedience, the given society is simply or absolutely in a
state of nature or anarchy. It is either resolved or broken into its individual
elements, or into numerous societies of an extremely limited size: of a size so
extremely limited, that they could hardly be styled societies independent w1d
political. For, as I shall show hereafter, a given independent society would
hardly be styled political, in case it fell short of a number which cannot be
fixed with precision, but which may be called considerable, or not extremely
minute.
3. In order that a given society
may fom1 a society political, the generality or bulk
of its members must habitually obey a superior determine as
well as common.
On this position I shall not insist here. For I have shown
sufficiently in my fifth
lecture, that no indeterminate party can command expressly
or tacitly, or can receive
obedience or submission: that no indeterminate body is
capable of corporate conduct, or is capable, as a body, of positive or negative
deportment.
4. It appears from what has
preceded, that, in order that a given society may form a society political, the
bulk of its members must be in a habit of obedience to a certain and common
superior. But, in order that the given society may form a society political and
indedndent, that certain superior must not be habitually obedient to a
determinate human superior.
The given society may form a
society political and independent, although that cer-
tain superior be habitually affected by laws which opinion
sets or imposes. The given
society may form a society political and independent,
although that certain superior render occasional submission to commands of
determinate parties. But the society is not
independent, although it may be political, in case that
certain superior habitually obey the
commands of a certain person or body.
Let us suppose, for example, that a
viceroy obeys habitually the author of his delegated powers. And, to render the
example complete, let us suppose that the viceroy
receives habitual obedience from the generality or bulk of
the persons who inhabit his
province. --Now though he commands habitually within the
limits of his province, and receives habitual obedience from the generality or
bulk of its inhabitants, the viceroy is not sovereign within the limits of his
province, nor are he and its inhabitants an independent political society. The
viceroy, and (through the viceroy) the generality or bulk of its inhabitants,
are habitually obedient or submissive to the sovereign of a larger society. He
and the inhabitants of his province are therefore in a state of subjection to
the sovereign of that larger society. He and the inhabitants of his province
are a society political but subordinate, or form a political society which is
merely a limb of another.
...Society formed by the
intercourse of independent political societies, is the
province of international law, or of the law obtaining
between nations. For (adopting a
I current expression) international law, or the law obtaining
between nations, is conversant about the conduct of independent politica1
societies considered as entire communities:
circa negotia et causas gentium integrarum. Speaking with greater
precision, international law, or the law obtaining between nations, regards the
conduct of sovereigns considered as related to one another.
And hence it inevitably follows,
that the law obtaining between nations is not positive law: for every positive
law is set by a given sovereign to a person or persons in a state of subjection
to its author. As I have already intimated, the law obtaining between nations
is law (improperly so called) set by general opinion. The duties which it
imposes are enforced by moral sanctions:
by fear on the part of nations, or by fear on the part of, sovereigns, of
provoking general hostility, and incurring its probable evils, in case they
shall violate maxims generally received and respected.
...The definition of tile abstract
term independent political society (inc1uding the
definition of the correlative term sovereignty cannot be
rendered in expressions of per-
fectly precise import, and is therefore a fallible test of
specific or particular cases. The
least imperfect definition which the abstract term will
take, would hardly enable us to fix
the class or every possible society. It would hardly enable
us to detem1ine of every inde-
pendent society, whether it were political or natural. It
would hardly enable us to deter-
mine of every political society, whether it were independent
or subordinate.
In order that a given society may
form a society political or independent, the posi-
tive and negative marks which I have mentioned above must
unite. The generality or
bulk of its members must be in a habit of obedience to a
certain and common superior; whilst that certain person, or certain body of
persons, must not be habitually obedient to a- certain person or body.
But, in order that the bulk of its
members may render obedience to a common superior, how many of its members, or
what proportion of its members, must render obedience to one and the same
superior'! And, assuming that the bulk of its members render obedience to a
common superior, how often must they render it, and how long must they render
it, in order that that obedience may be habitual? --Now since these questions cannot be answered precisely, the
positive mark of sovereignty and
independent
political society is a fallible test of specific or particular cases. It would
not enable us to determine of every independent society, whether it were
political or natural.
NOTES
1.
Where a
privilegium merely imposes a duty, it exclusively obliges a determinate person
or persons. But
where a privilegium confers a right, and the right conferred avails
against the
world at large, the law is privilegium as viewed from a certain aspect, but is
also a general
law as viewed from another aspect. In respect of the right conferred, the
law exclusively
regards a determinate person, and. therefore, js privilegium. In respect of
the duty
imposed, and corresponding to the right conferred, the law regards generally
the
members of the
entire community.
This I shall
explain particularly at a subsequent point of my Course, when I con-
sider the
peculiar nature of so-called privilegia, or of so-called private laws.
