The Province of Jurisprudence Determined
Austin
LECTURE I
The purpose of the following attempt to determine the province of jurisprudence, stated or suggested.
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 vagtie expression law. To obviate the difficulties springing from that confusion, I begin my projected Course with determining the province of jurisprudence, or with distinguishing the matter of jurisprudence from those various related objects : trying to define the subject of which I intend to treat, before I endeavour to analyze its numerous and complicated parts.
Taking it with the largest of its meanings which are not merely metaphorical, the term law embraces the following objects: Laws set by God to his human 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 distinguished broadly. But, rejecting the ambiguous expression natural law, I name those laws or rules, as considered collectively or in mass, the Divine law, or the law of God.
The laws or rules 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 some aggregate forming a portion of that aggregate, is the appropriate matter of jurisprudence, general or particular. To 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), the 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 name brief and distinctive at once, and agreeably to frequent 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 superior, or are not established by political superiors, in that capacity or character.
Of human laws belonging to this second class, some are laws, properly so called. But others are styled laws by an improper application of the term, although that improper application rests upon a close analogy.
For such of the human laws belonging to this second class as are properly called laws, current or established language has no collective name.
But the aggregate of the human laws, which are improperly styled laws, is not unfrequently denoted bv one of the following expressions: “moral rules,” “the moral law,” “the law set or prescribed by generalor public opinion.” Certain parcels of the aggregate denoted by those expressions, are usually styled ” the law or rules of honour,” and “the law set by fashion.”
As opposed to the laws which are set by God to men and to the laws which are established by political superiors: the aggregate of the human laws, which are improperly styled laws, may be named commodiously positive morality. The name morality severs them from positive law: whilst 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 indifferently either of the following objects: namely, positive morality 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.
Laws set by God to men, laws established by political superiors, and laws set by men to men (though not by political superiors), are distinguished by numerous and important differences, but agree in this:-that all of them are set by intelligent and rational beings to intelligent and rational beings. Every law of any of those kinds, is either a law (properly so called), or is related to a law (properly so called) by a close and striking analogy.
But in numerous cases wherein it is applied improperly, the applications of the term law 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 aname, flagrant as the metaphor is, has the field of jurisprudence and morals been deluged with muddy speculation.
I have now suggested the purpose of my attempt to determine the province of jurisprudence: to distinguish positive law, the appropriate matter of jurisprudence, from the various objects to which it is related by resemblance, and to which it ‘ is related, nearly or remotely, by a strong or slender analogy.
The manner of the following attempt to determine the province of jurisprudence
Attempting to determine the province of jurisprudence, I shall proceed in the following manner: I shall state the essentials of a law or rule (taken with the largest signification which can be given to the termproperly).
Having stated the essentials of a law or rule, I shall distinguish laws established by political superiors, from laws set by men to men (but not by political superiors), and from that Divine law which is the ultimate test of human.
Having distinguished laws established by political superiors, from the laws (properly so called) to which they are related by resemblance, and from the laws (improperly so called) to which they are nearly related by a strong analogy, I shall advert to the improper applications of the term law which are merely metaphorical or figurative.
Laws or rules, properly so called, are a species of commands
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, since it is the key to the sciences of jurisprudence and morals, its meaning should be analyzed with precision.
Accordingly, I shall endeavour, in the first instance, to analyze the meaning of “command:” an analysis, which, I fear, will task the patience of my hearers, but which they will bear with cheerfulness, or, at least, with resignation, if they consider the difficulty of performing it. The elements of a science are precisely the parts of it which are explained least easily. Terms that are the largest, and, therefore, the simplest of a series, are without equivalent expressions into which we can resolve them concisely. And when we endeavour to define them, or to translate them into terms which we suppose are better understood, we are forced upon awkward and tedious circumlocutions.
The meaning of the term command
If you express or intimate a wish that I shall do or forbear froin some act, and if you will visit me with an evil in case I comply not with your wish, the expression or intimation of your wish is a command. A command is distinguished from other significations of desire, not by the style in 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 disregarded. If you cannot or will not harm me in case I comply not with your wish, the expression of your wish is not a command, although you utter your wish in imperative phrase. If you are able and willing to 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, in case he comply not with the desire.
The meaning of the term duty
Being liable to evil from you if I comply not with a wish which you signify, I am bound or obliged by your command, or I lie under a duty to obey it. If, in 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.
The terms command and duty are correlative
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 be 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 meaning of the term sanction
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 punishments, strictly so called, are only aclass of sanctions, the term is too narrow to express the meaning adequately.
To the existence of a command, a duty and a sanction, a violent motive to compliance is not requisite
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 that same event the greater, no doubt, is the chance that the wish will not be disregarded. But no conceivable motive will certainly determine to compliance, or 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, an 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 the 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 command 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.
Rewards are not sanctions
By some celebrated writers (by Locke, Bentham, and, I think, Paley), the term sanction, or enforcement of obedience, is applied to conditional good as well as to conditional 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 concision 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 lanauage, 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 comply 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 conditional evil, that duties are sanctioned or enforced. It is the power and 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 toilsome struggle with the current of ordinary speech; and shall often slide unconsciously, notwithstanding our efforts to the contrary, into the narrower and customary meaning.
The meaning of the term command, briefly restated
It appears, then, from what has been premised, that the ideas or notions comprehended 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.
The inseparable connection of the three terms, command, duty and sanction
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 in 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 indirectly by each of the three expressions. Each is the name of the same complex notion.
The manner of that connection
But when I am 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 term 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 term sanction, or a term of the like import: The evil to be incurred being signified directly; whilst the obnoxiousness 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), 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.
Laws and rules distinguished from commands which are occasional or particular
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 ambiguous 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 in 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 forbearance, or to acts or forbearances which it determines specifically orindividually, a command is occasional or particular. In other words, a class or description of acts is determined by a law or rule, and acts of that class or description are enjoined or forbidden generally. But where a command 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 now given in abstract expressions, I will 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 specifically 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 of 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 corn then shipped and in port, would not be a law or rule, though issued by the sovereign legislature. 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 determinate 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 unoffending, the sovereign commands that they shall be punished. As enjoining a specific punishment ii that specific case, and as not enjoining 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 c’alled a law. If uttered by an absolute monarch, without deliberation or ceremony, it would scarcely be confounded with acts of legislation, and 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 hanged. 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 offence.
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. Actsdetermined 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 obligesgenerally 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 individuallly.
That laws and particular commands 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.
For example, An order for a general mourning, or an order for a general fast, is uttered by a monarch, or sovereign assembly, on occasion of a 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 be 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 determined, may amount, notwithstanding, to a law or 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 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 will hardly denote them distinctly: for, like most of the leading terms in actual systems of law, it is not the name of a definite class of objects, but of a heap of heterogeneous objects.*
[* 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, is 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 consider the peculiar nature of so called privilegia, or of so called private laws.]
The definition of a law or rule, properly so called
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 occasional or particular command, a law is a command which obliges 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.
The meaning of the correlative terms superior and inferior
Laws and other commands are said to proceed from superiors, and to bind or oblige inferiors. I will, therefore, analyze 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 talk 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 the latter, in rank, in wealth, or in virtue.
But, taken with the meaning wherein I here understand it, the term superiority signifies 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 a 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, theinferior.
The might or superiority of God, is simple 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 resistance, 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 citizen 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 peculiar 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.
Laws (improperly so called) which are not commands
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 commands. 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 limitations. Or, rather, we must distinguish the various meanings of the term laws; and must restrict the proposition to that class of objects which is embraced by the largest signification that can be given to the term properly.
This I shall try to accomplish, with all possible brevity, by passing in review the various classes of objects to which the term laws is improperly applied.
1. The human laws which I style positive morality have nothing of the imperative character. They are closely analogous to laws, properly so called. The duties which they impose are closely analogous to duties, in the proper signification of the term. The sanctions with which they are armed are closely analogous to sanctions, in the proper acceptation of the expression. But, as I have intimated already, and as I shall shew hereafter, they are not significations of desire by determinate superiors. Consequently, they are not commands, properly so called. They are not laws, in the proper meaning of the name.* They neither impose duties, nor are they armed with sanctions, in the proper acceptation of the terms.
[* (Among the numerous scattered notes which were evidently made with a view to a corrected and enlarged edition of this Work, I find the following: “Correct Lecture I. agreeably to note in Preface, p. xvi.”
I have not presumed to make the correction suggested; but by transferring the note from the preface to the passage to which it refers, I have, I trust, in some degree fulfiled the Author’s intentions.- S.A)
In the passage above, I affirm universally of positive moral rules, that they are laws improperly so called; or I limit the expression “positive moral rules” to the laws improperly so called which are laws set by opinion. But this is an error. For, as I have intimated in the Preface, and as 1 show in the fifth lecture, there are laws imperative and proper to which the expression is applicable.
In strictness, declaratory laws and laws abrogating laws belong to the kind of laws which are laws metaphorical or figurative; and laws of imperfect obligation, in the sense of the Roman jurists, belong to the kind of laws which are laws metaphorical or figurative, or to the kind of laws which are laws set by opinion. But, though laws of those three sorts are laws improperly so called, they are closely connected with positive laws, and are appropriate subjects of jurisprudence. Accordingly, I exclude improper laws of those three sorts from laws metaphorical or figurative and laws set by opinion: and enumerating, in the first lecture, the classes of improper laws, I place those three sorts on a level with the two kinds of which those three sorts are strictly limbs or members.]
2. Laws merely figurative (to which I have adverted already) I shall explain briefly in a future lecture. I notice them here, for the sake of regularity; and I dismiss them, for the present, with the following remark.
Like the improper laws which I style positive morality, they are related to laws, properly so called, in the way of analogy. But, unlike the improper laws which I style positive morality, they are related to laws, properly so called, by a remote or slender analogy. Like the improper laws which I style positive morality, they are named laws by an analogical extension of the term. But, unlike the improper laws which I style positive morality, they are named laws by such an extension of the term as is merely metaphorical or figurative.
3. 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 interpretation 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 shew 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.
4. Laws to repeal laws, 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 answering those rights are, therefore, created or revived.
But this is a matter which I shall examine with exactness, when I analyze the expressions “legal right,” “permission by the sovereign or state,” and “civil or political liberty.”
5. Imperfect laws, or laws 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, he manifests no purpose of enforcing compliance with the desire. But where there is not a purpose of enforcing compliance with the desire, the expression of a desire is not a command. 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 England, 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 sanction 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 sanctions. Many of the writers on morals, and on the so called law of nature, have annexed a dilterent meaning to the term imperfect. Speaking of imperfect obligations, they commonly 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, in 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 oblluatiori, 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.
Laws (properly so called) which may seem not imperative
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 now enumerated, are (I think) the only laws which are not commands. But, though these are the only laws which really are not commands, there are certain laws (properly so called) which may seem not imperative. Accordingly, I will subjoin a few remarks upon laws of this dubious character.
[* Laws which for any reason are merely null or void, are clearly not laws in any signification of the term. When we say that a Law is null, we resort to an expression, which in strictness is contradictory and absurd, for the purpose of avoiding circumlocution. We mean that a something which somebody calls a Law is not a Law.-MS. Note by the author.]
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 intimates already, and shall shew 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 specified, it refers tacitly to preexisting 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. I purpose, in my earlier lectures, to determine the province of jurisprudence; or to distinguish the laws established by political superiors, from the various 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 subject 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 the courts of justice: But, that notwithstanding, 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 sovereign 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 perplexed and darkened the simplest and clearest truths.
I think it will appear, on a moment’s reflexion, 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 spontaneously, 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 judicial decisions fashioned upon it are enforced by the power of the state. But before it is adopted by the courts, and clothed with the legal sanction, it is merely a rule of positive morality. a rule generally observed by the citizens or subjects; but 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 sovereign 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 evinced 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, there 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 the state: established by the state directly, when the customs are promulged in its statutes; established by the state circuitously, when the customs are adopted by its tribunals.
The opinion of the party which abhors judge-made law, springs from their inadequate 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 the sovereign legislature. The state, which is able to abolish, permits its ministers to enforce them: and it, therefore, signifies its pleasure, by that 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 (and till positive law made judicially) is established by the state directly or circuitously, 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 iv,hy subject judges, who are properly ministers of the law, have commonly shared with the sovereign in the business of making it.
Laws which are not commands, enumerated
I assume, then, that the only laws which are not imperative are the following: – 1. The laws or rules which I style positive morality. 2. Laws merely metaphorical. 3. Declaratory laws, or laws explaining the import of existing positive law. 4. Laws abrogating or repealing existing positive law. 5. 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) shall limit the term law to laws which are imperative, unless I extend it expressly to laws which are not.