import of existing positive law, and laws abrogating or repealing
existing positive law.” He thus associates them with rules of
positive morality and with laws which are only metaphorically
so called. This collocation is unfortunate and out of keeping
with Austin’s method. Declaratory and repealing laws are as
completely unlike positive morality and metaphorical laws as
are the laws which he describes as properly so called. And if we
avoid the error of treating each separate proposition enunciated
by the lawgiver as a law, the cases in question need give us no
trouble. Read the declaratory and the repealing statutes along
with the principal laws which they affect, and the result is perfectly
consistent with the proposition that all law is to be resolved
into a species of command. In the one case we have in the
principal taken together with the interpretative statute a law,
and whether it differs or not from the law as it existed before the
interpretative statute was passed makes no difference to the true
character of the latter. It contributes along with the former
to the expression of a command which is a true law. In the same
way repealing statutes are to be taken together with the laws
which they repeal—the result being that there is no law, no
command, at all. It is wholly unnecessary to class them as laws
which are not truly imperative, or as exceptions to the rule that
laws are a species of commands. The combination of the two
sentences in which the lawgiver has expressed himself, yields the
result of silence—absence of law—which is in no way incompatible
with the assertion that a law, when it exists, is a kind of
command. Austin’s theory does not logically require us to treat
every act of parliament as being a complete law in itself, and
therefore to set aside a certain number of acts of parliament as
being exceptions to the great generalization which is the basis
of the whole system.
Rules of procedure again have been alleged to constitute another exception. They cannot, it is said, be regarded as commands involving punishment if they be disobeyed. Nor is anything gained by considering them as commands addressed to the judge and other ministers of the law. There may be no doubt in the law of procedure a great deal that is resolvable into law in this sense, but the great bulk of it is to be regarded like the rules of interpretation as entering into the substantive commands which are laws. They are descriptions of the sanction and its mode of working. The bare prohibition of murder without any penalty to enforce it would not be a law. To prohibit it under penalty of death implies a reference to the whole machinery of criminal justice by which the penalty is enforced. Taken by themselves the rules of procedure are not, any more than canons of interpretation, complete laws in Austin’s sense of the term. But they form part of the complete expression of true laws. They imply a command, and they describe the sanction and the mode in which it operates.
A more formidable criticism of Austin’s position is that which attacks the definition of sovereignty. There are countries, it is said, where the sovereign authority cannot by any stretch of language be said to command the laws, and yet where law manifestly exists. The ablest and the most moderate statement of this view is given by Sir Henry Maine in Early History of Institutions, p. 380:—
“It is from no special love of Indian examples that I take one from India, but because it happens to be the most modern precedent in point. My instance is the Indian province called the Punjaub, the country of the Five Rivers, in the state in which it was for about a quarter of a century before its annexation to the British Indian Empire. After passing through every conceivable phase of anarchy and dormant anarchy, it fell under the tolerably consolidated dominion of a half-military half-religious oligarchy known as the Sikhs. The Sikhs themselves were afterwards reduced to subjection by a single chieftain belonging to their order, Runjeet Singh. At first sight there could be no more perfect embodiment than Runjeet Singh of sovereignty as conceived by Austin. He was absolutely despotic. Except occasionally on his wild frontier he kept the most perfect order. He could have commanded anything; the smallest disobedience to his commands would have been followed by death or mutilation; and this was perfectly well known to the enormous majority of his subjects. Yet I doubt whether once in all his life he issued a command which Austin would call a law. He took as his revenue a prodigious share of the produce of the soil. He harried villages which recalcitrated at his exactions, and he executed great numbers of men. He levied great armies; he had all material of power, and he exercised it in various ways. But he never made a law. The rules which regulated the lives of his subjects were derived from their immemorial usages, and those rules were administered by domestic tribunals in families or village communities—that is, in groups no larger or little larger than those to which the application of Austin’s principles cannot be effected on his own admission without absurdity.”
So far as the mere size of the community is concerned, there is no difficulty in applying the Austinian theory. In postulating a considerably numerous community Austin was thinking evidently of small isolated groups which could not without provoking a sense of the ridiculous be termed nations. Two or three families, let us suppose, occupying a small island, totally disconnected with any great power, would not claim to be and would not be treated as an independent political community. But it does not follow that Austin would have regarded the village communities spoken of by Maine in the same light. Here we have a great community, consisting of a vast number of small communities, each independent of the other, and disconnected with all the others, so far as the administration of anything like law is concerned. Suppose in each case that the headman or council takes his orders from Runjeet Singh, and enforces them, each in his own sphere, relying as the last resort on the force at the disposal of the suzerain. The mere size of the separate communities would make no sort of difference to Austin’s theory. He would probably regard the empire of Runjeet Singh as divided into small districts—an assumption which inverts no doubt the true historical order, the smaller group being generally more ancient than the larger. But provided that the other conditions prevail, the mere fact that the law is administered by local tribunals for minute areas should make no difference to the theory. The case described by Maine is that of the undoubted possession of supreme power by a sovereign, coupled with the total absence of any attempt on his part to originate a law. That no doubt is, as we are told by the same authority, “the type of all Oriental communities in their native state during their rare intervals of peace and order.” The empire was in the main in each case a tax-gathering empire. The unalterable law of the Medes and Persians was not a law at all but an occasional command. So again Maine puts his position clearly in the following sentences: “The Athenian assembly made true laws for residents on Attic territory, but the dominion of Athens over her subject cities and islands was clearly a tax-taking as distinguished from a legislating empire.” Maine, it will be observed, does not say that the sovereign assembly did not command the laws in the subject islands—only that it did not legislate.
In the same category may be placed without much substantial difference all the societies that have ever existed on the face of the earth previous to the point at which legislation becomes active. Maine is undoubtedly right in connecting the theories of Bentham and Austin with the overwhelming activity of legislatures in modern times. And formal legislation, as he elsewhere shows, comes late in the history of most legal systems. Law is generated in other ways, which seem irreconcilable with anything like legislation. Not only the tax-gathering emperors of the East, indifferent to the condition of their subjects, but even actively benevolent governments have up to a certain point left the law to grow by other means than formal enactments. What is ex facie more opposed to the idea of a sovereign’s commands than the conception of schools of law? Does it not “sting us with a sense of the ridiculous” to hear principles which are the outcome of long debates between Proculians and Sabinians described as commands of the emperor? How is sectarianism in law possible if the sovereign’s command is really all that is meant by a law? No mental attitude is more common than that which regards law as a natural product—discoverable by a diligent investigator, much in the same way as the facts of science or the principles of mathematics. The introductory portions of Justinian’s Institutes are certainly written from this point of view, which may also be described without much unfairness as the point of view of German jurisprudence. And yet the English
