300 LAW
These laws are not the laws of the jurists, though they resemble them closely in many points – indeed in all points except that of the sanction by which they are enforced. It is a spiritual not a political sanction. The force which lies behind them is not that of the sovereign or the state. When physical force is used to compel obedience to the laws of the church they become positive laws. But so long as the belief in future punishments or the fear of the purely spiritual punishments of the church is sufficient to procure obedience to them, they are to be regarded as commands, not by the state, but by the church. That difference Austin makes essential. In rejecting spiritual laws from the field of positive law, his example would be followed by jurists who would nevertheless include other laws, not ecclesiastical in purpose, but enforced by very similar methods.
Compare the following account of "the mode in which justice was administered in the neighbourhood of Benares towards the end of the last century," extracted from a very valuable work on the scientific study of Hindu law by Mr J. H. Nelson. "The recognized mode of compelling a debtor to pay up appears to have been by sending a Brahman to do dharna before his house with a dagger or a bowl of poison to be used by the Brahman on his own body if the debtor proved obstinate. When the tax collector gave too much trouble, a ryot would sometimes erect a koor or pile of wood and burn an old woman on it by way of bringing sin on the head of the tormentor. The lex talionis obtained in the following shape. Persons who considered themselves aggrieved by acts of their enemies would kill their own wives and children, in order, as we may suppose, to compel their enemies to do a similar act to their own hurt. Thus two Brahmans cut off their mother's head to spite a foe." The same author states that he is "firmly persuaded that the normal condition of India has ever been to be without what Europeans understand by laws and law courts."
So far as the question is one of the propriety of language, the burden in this case is decidedly against those who would extend the phraseology of law to such rules as these. Can we with any advantage speak of one person having a right against another, when his remedy consists in starving himself in order to bring sin upon the head of his opponent or compel him to do likewise? If dharna or anything like it suffices to keep a community to its customary practices, is it possible to express such customs in terms applicable to the laws of European societies? Or is any harm done by saying that the difference between the two is so great that the former cannot be regarded as positive laws at all?
The true criterion in all these cases is, neglecting the shape and circumstances in which the rules in question may have appeared, to ask by what means compliance with them is enforced. Austin's theory in the end comes to this, that true laws are in all cases obeyed in consequence of the application of regulated physical force by some portion of the community. That is a fair paraphrase of the position that laws are the commands of the sovereign, and is perhaps less objectionable inasmuch as it does not imply or suggest anything about the forms in which laws are enunciated. All rules, customs, practices, and laws – or by whatever name these uniformities of human conduct may be called – have either this kind of force at their back or they have not. Is it worth while to make this difference the basis of a scientific system or not? Apparently it is. If it were a question of distinguishing between the law of the law courts and the laws of fashion no one would hesitate. Why should laws or rules having no support from any political authority be termed laws positive merely because there are no other rules in the society having such support?
The question may perhaps be summed up as follows. Austin's definitions are in strict accordance with the facts of government in civilized states; and, as it is put by Sir H. Maine, certain assumptions or postulates having been made, the great majority of Austin's positions follow as of course or by ordinary logical process. But at the other extreme end of the scale of civilization are societies to which Austin himself refuses to apply his system, and where, it would be conceded on all sides, there is neither political community nor sovereign nor law, – none of the facts which jurisprudence assumes to exist. There is an intermediate stage of society in which, while the rules of conduct might and generally would be spoken of as laws, it is difficult to trace the connexion between them and the sovereign authority whose existence is necessary to Austin's system. Are such societies to be thrown out of account in analytical jurisprudence, or is Austin's system to be regarded as only a partial explanation of the field of true law, and his definitions good only for the laws of a portion of the world? The true answer to this question appears to be that when the rules in any given case are habitually enforced by physical penalties, administered by a determinate person or portion of the community, they should be regarded as positive laws and the appropriate subject matter of jurisprudence. Rules which are not so enforced, but are enforced in any other way, whether by what is called public opinion, or spiritual apprehensions, or natural instinct, are rightly excluded from that subject matter. In all stages of society, savage or civilized, a large body of rules of conduct, habitually obeyed, are nevertheless not enforced by any state sanction of any kind. Austin's method assimilates such rules in primitive society, where they subserve the same purpose as positive laws in an advanced society, not to the positive laws which they resemble in purpose but to the moral or other rules which they resemble in operation. If we refuse to accept this position we must abandon the attempt to frame a general definition of law and its dependent terms, or we must content ourselves with saying that law is one thing in one state of society and another thing in another. On the ground of clearness and convenience Austin's method is, we believe, substantially right, but none the less should the student of jurisprudence be on his guard against such assumptions as that legislation is a universal phenomenon, or that the relation of sovereign and subject is discernible in all states of human society. And a careful examination of Sir Henry Maine's criticism will show that it is devoted not so much to a rectification of Austin's position as to correction of the misconceptions into which some of his disciples may have fallen. It is a misconception of the analysis to suppose that it involves a difference in juridical character between custom not yet recognized by any judicial decision and custom after such recognition. There is no such difference except in the case of what is properly called "judicial legislation" – wherein an absolutely new rule is added for the first time to the law. The recognition of a custom or law is not necessarily the beginning of the custom or law. Where a custom possesses the marks by which its legality is determined according to well understood principles, the courts pronounce it to have been law at the time of the happening of the facts as to which their jurisdiction is invoked. The fact that no previous instance of its recognition by a court of justice can be produced is not material. A lawyer before any such decision was given would nevertheless pronounce the custom to be law, – with more or less hesitation according as the marks of a legal custom were obvious or not. The character of the custom is not changed when it is for the first time enforced by a court of justice, and hence the language used by Sir Henry Maine must be understood in a very limited sense. "Until customs are enforced by courts of justice" – so he puts the position of Austin – they are merely "positive morality," rules enforced by opinion; but as soon as courts of justice enforce them they become commands of the sovereign, conveyed through the judges who are his delegates or deputies. This proposition, on Austin's theory, would only be true of customs as to which these marks were absent. It is of course true that when a rule enforced only by opinion becomes for the first time enforceable by a court of justice which is the same thing as the first time of its being actually enforced –
