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Demos； of the later Roman Emperors； of the Russian Czar； and of
the Crown and Parliament of Great Britain。 Next； it is its
history； the entire mass of its historical antecedents； which in
each community determines how the Sovereign shall exercise or
forbear from exercising his irresistible coercive power。 All that
constitutes this the whole enormous aggregate of opinions；
sentiments； beliefs； superstitions； and prejudices； of ideas of
all kinds； hereditary and acquired； some produced by institutions
and some by the constitution of human nature is rejected by
the Analytical Jurists。 And thus it is that； so far as the
restrictions confined in their definition of Sovereignty are
concerned； the Queen and Parliament of our own country might
direct all weakly children to be put to death or establish a
system of lettres de cachet。
The procedure of the Analytical Jurists is closely analogous
to that followed in mathematics and political economy。 It is
strictly philosophical； but the practical value of all sciences
founded on abstractions depends on the relative importance of the
elements rejected and the elements retained in the process of
abstraction。 Tried by this test； mathematical science is of
greatly more value than political economy； and both of them than
jurisprudence as conceived by the writers I am criticising。
Similarly； the misconceptions to which the Austinian analysis
gives rise are very similar to those which might be conceived as
embarrassing the student of mixed mathematics； and which do
actually embarrass the student of political economy。 Just as it
is possible to forget the existence of friction in nature and the
reality of other motives in society except the desire to grow
rich； so the pupil of Austin may be tempted to forget that there
is more in actual Sovereignty than force； and more in laws which
are the commands of sovereigns than can be got out of them by
merely considering them as regulated force。 I am not prepared to
deny that Austin occasionally； and Hobbes frequently； express
themselves as if their system were not limited throughout by the
limitation which is at its base All the great masters of
Abstraction are； in fact； now and then betrayed into speaking or
writing as if the materials thrown aside in the purely mental
process were actually dross。
When； however； it has once been seen that in Austin's system
the determination of Sovereignty ought to precede the
determination of Law； when it is once understood that the
Austinian conception of Sovereignty has been reached through
mentally uniting all forms of government in a group by conceiving
them as stripped of every attribute except coercive force； and
when it is steadily borne in mind that the deductions from an
abstract principle are never from the nature of the case
completely exemplified in facts； not only； as it seems to me； do
the chief difficulties felt by the student of Austin disappear；
but some of the assertions made by him at which the beginner is
most apt to stumble have rather the air of self…evident
propositions。 I dare say you are sufficiently acquainted with his
treatise to make it enough for me to mention some of these
propositions； without the amplifications which are necessary for
their perfectly accurate statement。 Jurisprudence is the science
of Positive Law。 Positive Laws are Commands； addressed by
Sovereigns to their Subjects； imposing a Duty； or condition of
obligedness； or obligation； on those Subjects； and threatening a
Sanction； or Penalty； in the event of disobedience to the
Command。 A Right is the faculty or power conferred by the
Sovereign on certain members of the community to draw down the
sanction on a fellow…subject violating a Duty。 Now all these
conceptions of Law； Right； Duty and Punishment depend upon the
primary conception of Sovereignty； just as the lower links of a
chain hanging down depend upon the highest link。 But Sovereignty；
for the purposes of Austin's system； has no attribute but force；
and consequently the view here taken of 'law' 'obligation' and
'right' is a view of them regarded exclusively as products of
coercive force。 The 'sanction' thus becomes the primary and most
important member of the series of notions and gives its colour to
all the others。 Probably nobody ever found a difficulty in
allowing that laws have the character given to them by Austin； so
far as such laws have proceeded from formal Legislatures。 But
many persons； and among them some men of powerful mind； have
struggled against the position that the great mass of legal rules
which have never been prescribed by the organ of State；
conventionally known as the Legislature； are commands of the
Sovereign。 The customary law of all countries which have not
included their law in Codes； and specially the English Common
law； have often had an origin claimed for them independently of
the Sovereign； and theories have been propounded on the subject
which Austin scouts as mysterious and unintelligible。 The way in
which Hobbes and he bring such bodies of rules as the Common law
under their system is by insisting on a maxim which is of vital
importance to it 'Whatever the Sovereign permits； he
commands。' Until customs are enforced by Courts of Justice； 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。 It is a better answer to this theory than
Austin would perhaps have admitted that it is founded on a mere
artifice of speech； and that it assumes Courts of Justice to act
in a way and from motives of which they are quite unconscious。
But； when it is clearly comprehended that； in this system； there
are no associations with the Sovereign but force or power； the
position that what Sovereigns permit they command becomes more
easily intelligible。 They command because； being by the
assumption possessed of uncontrollable force； they could innovate
without limit at any moment。 The Common law consists of their
commands because they can repeal or alter or re…state it at
pleasure。 The theory is perfectly defensible as a theory； but its
practical value and the degree in which it approximates to truth
differ greatly in different ages and countries。 There have been
independent political communities； and indeed there would still
prove to be some of them if the world were thoroughly searched；
in which the Sovereign； though possessed of irresistible power；
never dreams of innovation； and believes the persons or groups；
by whom laws are declared and applied； to be as much part of the
necessary constitution of society as he is himself。 There have
again been independent political societies in which the Sovereign
has enjoyed irresistible coercive power and has carried
innovation to the farthest point； but in which every single
association connected with law would have violence done to it if
laws were regarded as his commands。 The Tyrant of a Greek city
often satisfied every one of Austin's tests of Sovereignty； yet
it was part of the accepted definition of a Tyrant that 'he
subverted the laws。' Let it be understood that it is quite
possible to make the theory fit in with such cases； but the
process is a mere straining of language。 It is carried on by
taking words and propositions altogether out of the sphere of the
ideas habitually associated with them。
Before proceeding to speak at some length in my next Lecture
of these historical limitations on the practical value of
Austin's theories； let me repeat my opinion that if the method of
discussion which seems to me correct had been followed in his
treatise； and if the examination of Sovereignty had preceded the
examination of the conceptions dependent on it； a considerable
number of the statements which he has made respecting these
latter conceptions would have appeared not merely innocent but
self…evident。 Law is here regarded as regulated force； simply
because force is the one element which has been allowed to enter
into the primary notion upon which all the others depend。 The one
doctrine of this school of jurists which is repugnant to lawyers
would lose its air of paradox if an assumption were made which；
in itself theoretically unobjectionable； manifestly approximates
to practical truth as the course of history proceeds the
assumption that what the Sovereign might alter； but does not
alter； he commands。 The same arrangement would have a further
advantage； as it seems to me； through the modifications it would
necessitate in Austin's manner of discussing Morality； though the