[4] Address at Saratoga Springs, N.Y., 1896 (Law Quarterly Review, October 1896).
[5] Commentaries on the Law of England, 4th ed., iv. 66.
[6] Austin’s view, as set out in the Province of Jurisprudence Determined, is that laws proper, or properly so-called, are commands; laws which are not commands are laws improper or improperly so-called. A command implies a definite superior in a position to enforce the command. Where there is no superior to impose obedience there is no law. Rules which “are imposed among nations or sovereigns by opinions current among nations are usually styled the law of nations or international law. Now, a law set or imposed by public opinion is a law improperly so-called” (p. 147). For Sir H. Maine’s views see below.
[7] Introduction to the Principles of Morals and Legislation (Oxford, 1879), pp. 24 et seq.
[8] Province of Jurisprudence Determined (1861), p. 177; Austin explains his view more fully at p. 127.
[9] International Law, p. 50.
[10] Droit des gens (1896), i. 22. Compare Savigny: “A community of judicial conscience can be formed among nations like that which positive law creates in the bosom of one people. The foundations of that intellectual community are constituted partly by a community of race, partly and especially by a community of religious convictions. Such is the basis of the law of nations which exists principally among European Christian states, but which was not known to the peoples of antiquity. We are entitled to look upon this law as a positive law, although it is an incomplete judicial formation” (eine unvollendete Rechtsbildung), System des heutigen römischen Rechts (1840), i. § 11.
[11] Elements (London, 1885), pp. 22 et seq.
[12] “It seems to me,” says Professor L. Oppenheim, “that most writers confound the conception of ‘source’ with that of ‘cause,’ and through this mistake come to a standpoint from which certain factors which influence the growth of International Law appear as sources of rules of the Law of Nations. This mistake can be avoided by going back to the meaning of the term ‘source’ in general. Source means a spring or well, and has to be defined as the rising from the ground of a stream of water; and, wanting to know whence it comes, we follow the stream upwards until we come to the spot where it rises naturally from the ground. On that spot, we say, is the source of the stream of water. We know very well that this source is not the cause of the existence of the stream of water. ‘Source’ signifies only the natural rising of water from a certain spot of the ground, whatever natural causes there may be for that rising. If we apply the conception of source in this meaning to the term ‘source of law’ the confusion of source with cause cannot arise. Just as we see streams of water running over the surface of the earth, so we see, as it were, streams of rules running over the area of law. And if we want to know whence these rules come, we have to follow these streams upwards until we come to their beginning. Where we find that such rules rise into existence there is the source of them. Of course, rules of law do not rise from a spot on the ground as water does; they rise from facts in the historical development of a community. Thus a good many rules of law rise every year from the Acts of Parliament. Source of Law is therefore the name for an historical fact out of which rules of conduct rise into existence and legal force” (International Law, London, 1905, sec. 15.).
[13] International Law (London, 1905) sec. 19.