The use of the word “command” is not unlikely to lead to a misconception of Austin’s meaning. When we say that a law is a command of the sovereign, we are apt to think of the sovereign as enunciating the rule in question for the first time. Many laws are not traceable to the sovereign at all in this sense. Some are based upon immemorial practices, some can be traced to the influence of private citizens, whether practising lawyers or writers on law, and in most countries a vast body of law owes its existence as such to the fact that it has been observed as law in some other society. The great bulk of modern law owes its existence and its shape ultimately to the labours of the Roman lawyers of the empire. Austin’s definition has nothing to do with this, the historical origin of laws. Most books dealing with law in the abstract generalize the modes in which laws may be originated under the name of the “sources” of law, and one of these is legislation, or the direct command of the sovereign body. The connexion of laws with each other as principles is properly the subject matter of historical jurisprudence, the ideal perfection of which would be the establishment of the general laws governing the evolution of law in the technical sense. Austin’s definition looks, not to the authorship of the law as a principle, not to its inventor or originator, but to the person or persons who in the last resort cause it to be obeyed. If a given rule is enforced by the sovereign it is a law.
It may be convenient to notice here what is usually said about the sources of law, as the expression sometimes proves a stumbling-block to the appreciation of Austin’s system. In the corpus juris of any given country only a portion of the laws is traceable to the direct expression of his commands by the sovereign. Legislation is one, but only one, of the sources of law. Other portions of the law may be traceable to other sources, which may vary in effect in different systems. The list given in the Institutes of Justinian of the ways in which law may be made—lex, plebiscitum, principis placita, edicta magistratuum, and so on—is a list of sources. Among the sources of law other than legislation which are most commonly exemplified are the laws made by judges in the course of judicial decisions, and law originating as custom. The source of the law in the one case is the judicial decision, in the other the custom. In consequence of the decisions and in consequence of the custom the rule has prevailed. English law is largely made up of principles derived in each of those ways, while it is deficient in principles derived from the writings of independent teachers, such as have in other systems exercised a powerful influence on the development of law. The responsa prudentum, the opinions of learned men, published as such, did undoubtedly originate an immense portion of Roman law. No such influence has affected English law to any appreciable extent—a result owing to the activity of the courts of the legislature. This difference has profoundly affected the form of English law as compared with that of systems which have been developed by the play of free discussion. These are the most definite of the influences to which the beginning of laws may be traced. The law once established, no matter how, is nevertheless law in the sense of Austin’s definition. It is enforced by the sovereign authority. It was originated by something very different. But when we speak of it as a command we think only of the way in which it is to-day presented to the subject. The newest order of an act of parliament is not more positively presented to the people as a command to be obeyed than are the elementary rules of the common law for which no legislative origin can be traced. It is not even necessary to resort to the figure of speech by which alone, according to Sir Henry Maine (Early History of Institutions, p. 314), the common law can be regarded as the commands of the government. “The common law,” he says, “consists of their commands because they can repeal or alter or restate it at pleasure.” “They command because, being by the assumption possessed of uncontrollable force, they could innovate without limit at any moment.” On the contrary, it may be said that they command because they do as a matter of fact enforce the rules laid down in the common law. It is not because they could innovate if they pleased in the common law that they are said to command it, but because it is known that they will enforce it as it stands.
The criticism of Austin’s analysis resolved itself into two different sets of objections. One relates to the theory of sovereignty which underlies it; the other to its alleged failure to include rules which in common parlance are laws, and which it is felt ought to be included in any satisfactory definition of law. As the latter is to some extent anticipated and admitted by Austin himself, we may deal with it first.
Frederic Harrison (Fortnightly Review, vols. xxx., xxxi.) was at great pains to collect a number of laws or rules of law which do not square with the Austinian definition of law as a command creating rights and duties. Take the rule that “every will must be in writing.” It is a very circuitous way of looking at things, according to Harrison, to say that such a rule creates a specific right in any determinate person of a definite description. So, again, the rule that “a legacy to the witness of a will is void.” Such a rule is not “designed to give any one any rights, but simply to protect the public against wills made under undue influence.” Again, the technical rule in Shelley’s case that a gift to A for life, followed by a gift to the heirs of A, is a gift to A in fee simple, is pronounced to be inconsistent with the definition. It is an idle waste of ingenuity to force any of these rules into a form in which they might be said to create rights.
This would be a perfectly correct description of any attempt to take any of these rules separately and analyse it into a complete command creating specific rights and duties. But there is no occasion for doing anything of the kind. It is not contended that every grammatically complete sentence in a textbook or a statute is per se a command creating rights and duties. A law, like any other command, must be expressed in words, and will require the use of the usual aids to expression. The gist of it may be expressed in a sentence which, standing by itself, is not intelligible; other sentences locally separate from the principal one may contain the exceptions and the modifications and the interpretations to which that is subject. In no one of these taken by itself, but in the substance of them all taken together, is the true law, in Austin’s sense, to be found. Thus the rule that every will must be in writing is a mere fragment—only the limb of a law. It belongs to the rule which fixes the rights of devisees or legatees under a will. That rule in whatever form it may be expressed is, without any straining of language, a command of the legislator. That “every person named by a testator in his last will and testament shall be entitled to the property thereby given him” is surely a command creating rights and duties. After testament add “expressed in writing”; it is still a command. Add further, “provided he be not one of the witnesses to the will,” and the command, with its product of rights and duties, is still there. Each of the additions limits the operation of the command stated imperatively in the first sentence. So with the rule in Shelley’s case. It is resolvable into the rule that every person to whom an estate is given by a conveyance expressed in such and such a way shall take such and such rights. To take another example from later legislation. An English statute passed in 1881 enacts nothing more than this, that an act of a previous session shall be construed as if “that” meant “this.” It would be futile indeed to force this into conformity with Austin’s definition by treating it as a command addressed to the judges, and as indirectly creating rights to have such a construction respected. As it happens, the section of the previous act referred to (the Burials Act 1880) was an undeniable command addressed to the clergy, and imposed upon them a specific duty. The true command—the law—is to be found in the two sections taken together.
All this confusion arises from the fact that laws are not habitually expressed in imperative terms. Even in a mature system like that of England the great bulk of legal rules is hidden under forms which disguise their imperative quality. They appear as principles, maxims, propositions of fact, generalizations, points of pleading and procedure, and so forth. Even in the statutes the imperative form is not uniformly observed. It might be said that the more mature a legal system is the less do its individual rules take the form of commands. The greater portion of Roman law is expressed in terms which would not misbecome scientific or speculative treatises. The institutional works abound in propositions which have no legal significance at all, but which are not distinguished from the true law in which they are embedded by any difference in the forms of expression. Assertions about matters of history, dubious speculations in philology, and reflections on human conduct are mixed up in the same narrative with genuine rules of law. Words of description are used, not words of command, and rules of law assimilate themselves in form to the extraneous matter with which they are mixed up.
It has been said that Austin himself admitted to some extent the force of these objections. He includes among laws which are not imperative “declaratory laws, or laws explaining the 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.”