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Lecture XII
Sovereignty
The historical theories commonly received among English
lawyers have done so much harm not only to the study of law but
to the study of history； that an account of the origin and growth
of our legal system； founded on the examination of new materials
and the re…examination of old ones； is perhaps the most urgently
needed of all additions to English knowledge。 But next to a new
history of law； what we most require is a new philosophy of law。
If our country ever gives birth to such a philosophy； we shall
probably owe it to two advantages。 The first of them is our
possession of a legal system which for many purposes may be
considered indigenous。 Our national pride； which has sometimes
retarded or limited our advance in juridical enquiry； has kept
our law singularly pure from mixture with the stream of legal
rules flowing from the great fountain of the Roman Corpus Juris；
and thus； when we place it in juxtaposition with any other
European legal system； the results of the comparison are far more
fruitful of instruction than those obtained by contrasting the
various Continental bodies of law with one another。 The second
advantage I believe to consist in the growing familiarity of
Englishmen with the investigations of the so…called Analytical
Jurists； of whom the most considerable are Jeremy Bentham and
John Austin。 Of this advantage we have a monopoly。 Bentham seems
to be exclusively known in France and Germany as the author of an
unpopular system of morals。 Austin is apparently not known at
all。 Yet to Bentham； and even in a higher degree to Austin； the
world is indebted for the only existing attempt to construct a
system of jurisprudence by strict scientific process and to found
it； not on * priori assumption； but on the observation；
comparison； and analysis of the various legal conceptions。 There
is not the smallest necessity for accepting all the conclusions
of these great writers with implicit deference； but there is the
strongest necessity for knowing what those conclusions are。 They
are indispensable； if for no other object； for the purpose of
clearing the head。
An important distinction between Bentham and Austin is not as
often recognised as it ought to be。 Bentham in the main is a
writer on legislation。 Austin in the main is a writer on
jurisprudence； Bentham is chiefly concerned with law as it might
be and ought to be。 Austin is chiefly concerned with law as it
is。 Each trespasses occasionally on the domain of the other。
Unless Bentham had written the treatise called the 'Fragment on
Government；' Austin's 'Province of Jurisprudence Determined；'
which sets forth the basis of his system； would never probably
have been composed。 On the other hand； Austin； in his singular
discussion of the theory of utility as an index to the Law of
God； has entered on an investigation of the class followed by
Bentham。 Still the description which I have given of their
objects is sufficiently correct as a general description； and
those objects are widely different。 Bentham aims at the
improvement of the law to be effected by the application of the
principles now indissolubly associated with his name。 Almost all
of his more important suggestions have been adopted by the
English Legislature； but the process of engrafting on the law
what to each successive generation seem to be improvements is in
itself of indefinite duration； and may go on； and possibly will
go on； as long as the human race lasts。 Austin's undertaking is
more modest。 It would be completed； if a Code were produced
perfectly logical in order of arrangement and perfectly lucid in
statement of rule Jurisprudence； the science of positive law； is
sometimes spoken of nowadays as if it would bring the substance
of the law into a state of indefinite perfection。 It would
doubtless； if it were carried far； lead indirectly to great legal
reforms by dispelling obscurities and dissipating delusions； but
the investigation of the principles on which the direct
improvement of substantive legal rules should be conducted
belongs nevertheless not to the theorist on jurisprudence but to
the theorist on legislation。
The portion of Austin's Lectures which sets forth the basis
of his system； and which was published several years ago as the
'Province of Jurisprudence Determined；' has long been one of the
higher classbooks in this University； and； taken together with
the other lectures more recently given to the world （though
unhappily in a fragmentary shape）； it must always； or for a long
time to come； be the mainstay of the studies prosecuted in this
Department。 Making the utmost acknowledgment of the value of the
book； I find it impossible not to recognise the magnitude of the
difficulties which it occasions to the beginner。 Those which have
their origin in peculiarities of style and which seem to be
attributable to the perpetual commerce of thought in which the
writer lived with his precursors； Bentham and Hobbes； I find to
be practically less grave than difficulties of another sort which
arise from the repulsion created in the mind by the shape in
which the conceptions of law； right； and duty are presented to it
by Austin's analysis。 Of course； so far as this distaste is
caused by unpalatable truth； any tenderness shown to it would be
wasted； but even thus it is a misfortune； and； if it be in any
degree provoked by avoidable causes； such as methods of statement
or arrangement； no pains bestowed on the attempt to remove it to
this extent would be thrown away。 A very frequent effect of
forcing on students of active mind and industrious habits a
system or subject which for some reason or other is repugnant to
them is to make them regard it as so much dogma； as something
resting on the personal authority of the writer with whose name
it happens to be associated。 Now nothing could be more
unfortunate for the philosophy of law than that the system of the
'Province of Jurisprudence Determined' should come to be regarded
simply as Austin's system as standing by the side。 of
Blackstone's or Hegel's or any other system as interchangeable
with it or equivalent to it。 For； when certain assumptions or
postulates have been made； I am fully convinced that the great
majority of Austin's positions follow as of course and by
ordinary logical process。 These assumptions do not appear to me
to be stated and described by Austin with sufficient fulness
possibly because； though he is a comparatively modern writer； a
part of the enquiries necessary for such statement had in his day
been barely commenced but； whatever the cause； the result is
that he seems to me open to the same charge as some of the
greatest writers on Political Economy who have omitted to set
forth at the outset with adequate distinctness the limited
objects of their science； and who have thus attracted to it a
mass of prejudice of which it may never possibly get rid。 The
present Lecture is an attempt to show what a certain number of
these assumptions or postulates are； in that which follows it； I
endeavour to show how these assumptions are affected by some
conclusions which we have arrived at in former Lectures during
our investigation of the early history of society。 （Supra；
Lectures I to XI） I think it best for my purpose to begin with
calling attention to the definition of Sovereignty。 Beyond all
doubt this is the logical order of the discussion undertaken by
Austin； and I find it difficult to understand； except on one
hypothesis； why； deserting the arrangement of Hobbes； he began
the discussion of this part of his subject by the analysis of
Law； Right and Duty； and ended it with an account of Sovereignty
which it seems to me should have come first。 I imagine； however；
that Blackstone influenced him； as he did Bentham； so to speak；
by repulsion。 Blackstone； following Roman Institutional writers；
begins with a definition of law and proceeds to give a theory of
the connection of the various legal conceptions。 The desire to
expose the fallacies of this portion of the Commentaries
furnished Bentham with his principal motive for writing the
Fragment on Government； and Austin with his chief inducement to
determine the Province of Jurisprudence； and the latter seems to
me to have thought that the propositions he disputed would be
most effectually disposed of； if they were contradicted in the
order given them by their author。 However that may be； the branch
of my subject on which I shall first have to enter may be
described as an enquiry into the probable mode in which Austin's
analysis would have been affected； if he had begun in