76 HARVARD LAW REVIEW.
will appear on a little reflection to be the only one available for this4)urpose, and, inasmuch as Austin makes no attempt to exam- ine all known systems of law, it would seem at first sight that the process of thought in his mind involved a deductive reasoning from that proposition as a premise. If. however, we state the proof that customary law is the command of the sovereign in this form, and compare it with the proof that sovereign power can have no limit, we shall see at once a flaw in the logic. These arguments, taken together, are^ as follows : The power of the sovereign can have no limits ; he has, therefore, power to abolish the customary law ; hence, all law is the command of the sovereign ; and from this it follows that his power can have no limits. The reasoning in a circle here is only too evident, and it is impossible that a man of Austin's logical acuteness should have been guilty of so palpable an error. The fact is that Austin simply assumed the power of the sovereign to abolish customary law. He did not attempt to prove it deductively, nor did he make an examination of all known systems of law, but his attention having been directed only to highly developed societies, he thought the proposition sufficiently obvious to be accepted without question. It is proba- ble, however, that many of his readers have been misled into sup- posing the proposition established deductively, and that they have unconsciously gone through in their own minds the reasoning in a circle already described ; a mistake which is the more natural because the two arguments are separated in Austin's book by two hundred pages, and one of them might easily be forgotten before the other was reached.
I have so far attacked Austin's demonstration that the power of the sovereign can have no limit by trying to prove his premise that law is a command untrue as a general proposition, and by show- ing that the process by which that premise is often supposed to be established involves a reasoning in a circle. But these do not ex- haust all the possible objections to his position, and for the pur- pose of discussing his arguments further I shall leave out of sight the criticisms already made, and suppose the proposition that all law is the command of a definite political superior to have been satis- factorily proved. From this it follows that no law can exist except by virtue of such a command; but is it therefore true that every command of a political superior, or of the ultimate superior termed the sovereign, is a law? That is, of course, the point which Austin
