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advantage； as it seems to me； through the modifications it would
necessitate in Austin's manner of discussing Morality； though the
subject is not one which can be here treated with completeness。
The position at which many readers have stumbled I do not
affect to do more than state it in popular language is that
the sanction of moral rules； as such； is the disapprobation which
one's fellow…men manifest at their violation。 It is sometimes
construed to mean that the only motive for obeying moral rules is
the fear of such disapprobation。 Such a construction of Austin's
language is an entire misconception of his meaning； but； if the
order of discussion which I advocate had been followed； I do not
think it could ever possibly occur to any mind。 Let us suppose
Austin to have completed his analysis of Sovereignty and of the
conceptions immediately dependent on it； law； legal right； and
legal obligation。 He would then have to examine that great mass
of rules； which men in fact obey； which have some of the
characteristics of laws； but which are not （as such） imposed by
Sovereigns on subjects； and which are not （as such） enforced by
the sanction supplied by Sovereign power。 It would be； of course；
incumbent on the philosophical jurist to examine these rules；
because Sovereigns being by his hypothesis human superiors are；
as human beings； subject to them。 Austin has； in fact； examined
them from this point of view in some of his most interesting
passages。 While insisting that Sovereignty is from the nature of
the case incapable of legal limitation； he fully admits that
Sovereigns are restrained from issuing some commands and
determined to issue others by rules which； though they are not
laws； are of extreme cogency。 The Crown and Parliament of Great
Britain are in his view Sovereign a sovereign aristocracy； as
he would call it but； though this aristocracy could for
purposes of argument do anything it pleased； it would be out
raging all experience to assert that it does this。 That great
body of rules which is embodied in constitutional maxims keeps it
from doing some things； that great body of rules which in
ordinary usage are called moral keeps it from doing others。 What
common characteristics has this aggregate of rules which operate
on men and on Sovereigns； like other men？ Austin； as you know；
names it 'positive morality'； and says that its sanction is
opinion； or the disapproval of the bulk of the community
following on its violation。 Properly understood； this last is an
obviously true proposition； for what is meant is that public
disapprobation is the one sanction which all these rules have in
common。 The rule which keeps the Crown and Parliament from
declaring murder legal； and the rule which keeps them from
allowing the Queen to govern without Ministers； are connected
together through the penalty attendant on a breach of them； which
is the strong disapprobation of a majority of Englishmen； and it
is their having a sanction of some kind which principally
connects both rules with laws proper。 But； though fear of opinion
be a motive for obedience to both rules； it does not at all
follow that the sole motive for obedience to both rules is fear
of opinion。 This fear would be allowed by most people to be the
chief； if not the exclusive； motive for obedience to
constitutional rules； but such an admission involves no necessary
assertion whatever as to the complete sanction of moral rules。
The truth is that Austin's system is consistent with any ethical
theory； and； if Austin seems to assert the contrary； I think the
cause is to be sought in his firm conviction of the truth of his
own ethical creed； which； I need not say； was Utilitarianism in
its earlier shape I do not； indeed； for a moment intend to deny
that the careful study of Austin would probably modify the
student's view of morals。 The discussion of ethics； like many
others； is conducted amid much obscurity of thought； and there is
no specific more sovereign for dispelling such obscurity than the
association of the cardinal terms which enter into our enquiry
with absolutely consistent meanings； and the employment of the
terms with these meanings as a test for the detection of
equivocal phraseology。 It is the one inestimable service of the
Analytical School to jurisprudence and morals that it furnishes
them with a rigidly consistent terminology。 But there is not the
faintest reason for thinking that the intelligent and
appreciative student of the system must necessarily be an
utilitarian。
I shall state hereafter what I believe to be the true point
of contact between Austin's system and the utilitarian
philosophy。 Meantime； devotion to this philosophy； coupled with
what I hold to be a faulty arrangement； has produced the most
serious blemish in the 'Province of Jurisprudence Determined。'
The 2nd； 3rd； and 4th Lectures are occupied with an attempt to
identify the law of God and the law of Nature （so far as these
last words can be allowed to have any meaning） with the rules
required by the theory of utility。 The lectures contain many
just； interesting； and valuable observations； but the
identification； which is their object； is quite gratuitous and
valueless for any purpose。 Written； I doubt not； in the honest
belief that they would help to obviate or remove prejudices； they
have attracted to Austin's system a whole cloud of prejudices
both from the theological and from the philosophical side。 If；
however； following the order I have suggested； Austin； after
concluding the examination of the nature of Sovereignty and of
positive law； had entered on an enquiry into the nature of the
laws of God； it must have taken the form of an investigation of
the question how far the characteristics of the human superiors
called Sovereigns can be supposed to attach to an all…powerful
and non…human ruler； and how many of the conceptions dependent on
human Sovereignty must be considered as contained in his
commands。 I much doubt whether such an enquiry would have seemed
called for in a treatise like Austin's。 Taken at its best； it is
a discussion belonging not to the philosophy of law but to the
philosophy of legislation。 The jurist； properly so called； has
nothing to do with any ideal standard of law or morals。