§2. First, for clearness, we will confine our attention to the political conditions of an orderly modern state. Here reflection shows us that the notions of Government and Law are closely connected. The essential characteristic of Government, as we commonly conceive it, is that it gives commands, general and particular, to members of the community governed:---meaning by a ``command'' a direction to do, or abstain from doing, a certain act or class of acts, combined with an announcement, express or tacit, of some penalty to be inflicted on those who do not conform to such direction. A subordinate organ of Government is one whose power of issuing such commands is limited by the commands of a superior organ: a Supreme Government is one that is not so limited. On the other hand, the essential characteristic of the Laws of any community is that they are general directions as to the conduct of members of the community, for disobedience to which a penalty of some kind will, normally be inflicted by the authority of Government. This penalty is by no means the only motive which prompts ordinary citizens to obey the laws; nor is it necessarily the chief motive; but it is---or is believed to be---generally indispensable as an inducement to secure adequate conformity to the law. In order, then, to the complete establishment of any proposed law in a community, it is necessary not only that the law should be definitely determined and declared, but also that an adequate penalty should be actually inflicted on any person who transgresses it, whenever, after impartial investigation, the fact of the transgression and the degree of its gravity have been duly ascertained. Now it is clear that the functions (1) of laying down the law, and (2) of investigating and deciding cases of alleged infringement, may be separated from each other; and also (3) from the actual infliction of the penalty and the performance of whatever other acts are required for the effectual execution of the laws---such as the organisation and direction of the military force of the community to crush any open resistance to its government. These three functions, then, are those primarily distinguished as ``legislative'', ``judicial'', and ``executive''.
In a subsequent chapter we shall see reasons for assigning these functions, in a great measure, to separate organs respectively: and we shall have to consider how to deal with any disagreement and conflict that may arise among these organs. But for the present, when we are considering the work that has to be done rather than the method of doing it, we may assume generally that the different organs of government legislative, executive, and judicial, superior and subordinate, central and local---will all cooperate harmoniously: so that we may speak of any or all briefly as ``the government''.
We may say, then, that in the modern state the notion of Law---in the sense in which we are now concerned with it---involves the notion of Government, and vice versa. But this mutual implication of the two notions has only been reached slowly and gradually in the development of political society. Historically, Law first appears in the form of Custom existing from time immemorial, and conceived by rulers and ruled to be equally binding on both,---obedience to it being mainly caused by habit, and by fear of general disapproval and its consequences, rather than by any special fear of governmental penalties. And for a long time after the intervention of government to enforce law has become regular and fundamentally important, the greater part, of the changes actually made in law are not made in the way of express and conscious legislation. In consequence of this, it would be a mistake to suppose that the whole body of laws in force, even in any modern State, has actually been laid down by a legislative organ recognised as such. In some countries, indeed, where Law has been codified, this would be formally true; but in a great measure only formally, as the substance of a new code usually consists, in the main, of laws previously in force. But in such a country as England the supposition would not be even formally true. For a great part of our Law consists of old customary rules modified and added to by the decisions of judges; who while professedly interpreting pre-existing rules, either (1) have extended, restricted, or in some way further defined them; or (2) have overruled them in accordance with what they regarded as higher principles of justice or equity. And it is to be noted that this conception of a higher law valid independently of human legislation, lingered till a very late stage of our civilisation. Thus we find that Blackstone, while defining Law as ``a rule of civil conduct prescribed by the supreme power in a state'', still recognises a ``Law of Nature'' which claims our obedience without being so prescribed, and is indeed ``superior in obligation to any other'' law. In virtue of this Law of Nature, Blackstone declares, men have ``natural rights, such as life and liberty'' which ``receive no additional strength when declared by the municipal laws to be inviolable''; which ``no human legislature has power to abridge or destroy, unless the owner shall himself commit some act that amounts to a forfeiture''. Such language was by no means peculiar to Blackstone; a doctrine of this kind was prevalent among jurists of the eighteenth century. But it is now, on the whole, antiquated: and, indeed, it seems to involve a grave and dangerous confusion between (1) Law as it is, here and now, in any given community, and (2) Law as it ought to. be, the ideal by which Positive Law ought to be judged and, if possible, rectified. Such an ideal, if it is a true ideal, must, of course, coincide with or be based upon ``those eternal and immutable laws of good and evil, to whichthe Creator Himself conforms, and which He has enabled human reason to discover'',---which Blackstone calls ``Law of Nature'',---so far as any such eternal principles are held to be discoverable. But it would be a serious error for any individual Englishman to suppose that this ideal, as conceived by him, was actually established as law in England at the present day, so far as it diverges from the laws laid down by Parliament, or defined by a series of judicial decisions: and any language which encourages a man to claim, as valid here and now, rights not secured by the actually established law of his country, is dangerously revolutionary.
Is then---it may be asked---the power of government to introduce new laws theoretically unlimited in a modern state? The answer to this question requires careful consideration. First, we have to observe that Law, in the political sense in which we are now concerned with it---the law of a state,---is only one species of a genus. In a wider sense the term ``law'' may be properly applied to any general rule which directs persons to do or abstain from doing a class of acts, and for disobedience to which some penalty may reasonably be expected by the persons disobeying. Thus when we speak of the ``laws of health'' we mean a set of rules of conduct, the breach of which is held to entail an appreciably increased chance of disease. So again, the rules of morality, regarded as the expression of God's will, are, by all who believe in a moral government of the world, properly conceived as the ``Law of God''. It is to be observed, however, that---since there are usually considerable variations of moral opinion and sentiments within the limits of the same modern community---the true or Divine Code of morality, as conceived by any reflective individual, may diverge importantly from the body of rules supported by the prevalent opinion of his community at any given time,---which for distinction sake may be called the ``Positive morality'' of the community. Both Positive morality, and Ideal morality as conceived by any individual may come into conflict with the law of the state: it is a familiar experience that a law actually in force is condemned as unjust and oppressive or otherwise immoral by a minority of members of the community; and even when the opinion of this minority becomes the prevalent opinion, the law does not therefore at once cease to exist---though, in a state under popular government, its days are then numbered. When such conflict occurs, it is in most cases admittedly the moral duty of an individual to obey the laws of his state even when they are bad, and when, if he had supreme legislative power, it would be his moral duty to alter them: at the same time it is also generally recognised that Positive Law may sometimes command what morality and religion forbid, and that in such cases there is a moral obligation to disobey the law. Consequently---as a modern government has only a very limited power of modifying the moral opinions of the governed---its legislative power finds in positive morality two kinds of limits, one more completely effectual, but wider and less practically operative, the other narrower but more elastic. That is, there are among the conceivable commands of government some which would certainly be disobeyed so widely that they could not be enforced; while there are others which would probably be obeyed by the bulk of the community, so long as they were not revoked, but would be so strongly disapproved that government would have a powerful inducement to revoke them. The former limit may be assumed to exist in every political society; but it is usually impossible to determine exactly where it lies, since government is ordinarily restrained from approaching it by its desire to avoid popular disapproval of the less intense kind: though the effectiveness of this narrower and more elastic limit varies very much in degree, with differences in the forms of government and in the extent to which active political interests are developed among the members of the society.
The power of government, then, in a modern state is limited not only by its own morality---or by the law of God, so far as it itself recognises principles of religious duty, but by the prevalent moral opinion of the community; especially by opinions, resting on custom and habit, as to the proper nature and limits of governmental coercion. But can we ever properly say that the power of government is limited by Positive Law?
This question has been answered in the negative by leading English publicists: and, as we shall see, there is usually some sense in which the negative answer is true; but it is sometimes a very peculiar sense, requiring to be carefully explained and limited.
At first sight it may seem that a supreme government cannot be subject to strictly legal restraints; since the effectual restraint of law lies in the fear of some penalty which government will inflict, and no supreme government can be alarmed by the dread of its own penalties. And this is obviously true in the case of simple monarchy, or any form of government where the supreme rulers have a lifelong tenure. So far as such rulers are actually restrained by constitutional rules---commonly regarded as laws---which purport to limit their legislative or other powers, it is not a fear of strictly legal penalties that restrains them; it is rather a fear of disobedience and resistance rendered peculiarly formidable by the fact that the moral sentiment of Order and Law-observance---which ordinarily co-operates with the fear of legal penalties in producing obedience to government---will be at least partly on the side of those who disobey and resist a government that is breaking recognised constitutional rules.
If, however, supreme rulers only hold power for a limited time, it is quite conceivable that, when they. have laid down their power, they may suffer strictly legal punishment, inflicted by their successors, for unconstitutional legislation. But though this is conceivable, I know no modern constitution which provides for this kind of punishment of persons invested with legislative power who have made unconstitutional laws. In fact, so long as the legislative and executive organs of a supreme government co-operate harmoniously, and the judicial organ applies unquestioningly the law laid down by the legislature, the restraint placed on governmental action by constitutional rules alone-apart from prevalent opinion, which may in a particular case be opposed to some constitutional rule---is nowhere greater than the corresponding restraint in the case of simple monarchy: and it may easily be in practice less, since a popularly elected organ of government, receiving the manifest support of the majority that elected it, is not unlikely to be bolder than a monarch in defying a constitutional restraint.
The case is different in such a constitution as that of the United States of North America; where the judicial organ, being separate from the legislature and independently constituted, has normally the function of deciding whether the laws made by the latter are consistent with the fundamental laws of the constitution. No one doubts that in this case the legislature is under strictly legal restraints. It is true that the legislators have no other penalty to fear beyond the censure of public opinion---except the annoyance caused by wasted labour. But this is ordinarily the only judicial penalty inflicted on subordinate bodies to which a closely limited legislative power has been granted by a superior legislature: thus in England a railway company is judicially restrained from making bye-laws beyond the limits of its authority, only by the fear that such bye-laws will be declared invalid by the judges if any attempt be made to enforce them. If then, in such a constitution as that of the United States, there were any fundamental laws laid down as unalterable, it could not be denied that the highest legislative organ in such a constitution was under strictly legal restraints,---so long, at least, as the independence of the Supreme Court of Judicature was maintained. But in fact no modern state has such a constitution: every modern constitution contains some provision for altering it, from which no rule that it contains is exempted. For instance, in the constitution of the United States a provision for alteration, extending to all the clauses that circumscribe the legislative power of Congress, is made as follows:---
``The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this constitution, or, on the application of the Legislatures of two-thirds of the several States, shall call a convention proposing amendments, which in either case shall be valid to all intents and purposes, as a part of this constitution, when ratified by the Legislatures of three-fourths of the several States, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress.''
Here, then, a fresh ground is afforded for those who argue that a supreme government cannot be subject to legal restraint; and this ground is actually taken by Austin and others. They admit that in the United States the legislative power of Congress is strictly limited by law-that (e.g.) Congress is legally restrained from making an ``ex post facto law'' by a clause in the constitution forbidding it. But, they argue, the complex body consisting of Congress and the Legislatures of three-fourths of the separate states---provided these Legislatures are all agreed---is not similarly limited. This complex body can constitutionally rescind the clauses prohibiting ex post facto laws, and every other clause of the constitution. and make, or authorise the making of, any law that it pleases: its power is therefore legally unlimited. There can be no doubt that this contention is true: the only question can be whether this complex body is properly called the ``sovereign'' or ``supreme government'' of the United States, Congress being only allowed the title of a subordinate legislature. We need not decide a merely verbal issue: but it is important to note that, if the word ``government'' is so used, it is used in a sense materially different from its ordinary meaning. For ordinarily we conceive an organ of government to exercise its functions regularly, at comparatively short intervals: for instance, while historians regard the English House of Commons as an organ of government in England during the later Middle Ages, they do not commonly treat the States-General in France as an organ of government during the same period, because it only came into existence irregularly, at intervals of several years. But similarly, the complex body that has unlimited legislative power in the United States does not act at all for long periods; during a period of more than sixty years, from 25th September 1804 to 1st February 1865, this unlimited sovereign of the United States remained completely inactive. Surely it strains language to say that during these sixty years citizens of the United States ``habitually obeyed'' this inert composite entity?
If it be replied that this complex body possessed power legally unlimited during the period above mentioned, though it did not exercise it, the answer again must be that the statement is true in a sense, but misleading if made without qualification. It is true that it might without illegality have altered every rule in the constitution: but the statement ignores the fact that it was the legally determined structure of the body in question---the difficulty of bringing about the required majority of two-thirds in both Houses of Congress, and the required agreement of the prescribed number of legislatures---which practically prevented action of this or any other kind. It seems truer to say that in this and similar cases there is an actual organ of government whose commands are habitually obeyed, and a possible organ of government whose power is legally unlimited: but that the two do not coincide, and that the latter may at any given time be incapable of coming into operation at all, owing to the balanced state of opinion.
In the case of England the difficulties just explained do not arise: since the ordinary process of legislation is also the process by which the Constitution is changed. We can say with indisputable truth that there are no legal limits to the authority of Parliament in England: in endeavouring to ascertain what the law of England is, we never ask what Parliament has authority to do, but only what it has done. But a new difficulty arises in communities like our own as regards the attribution of sovereignty or supreme power. Are we to say that in England sovereignty is to be attributed to the complex body formed by (1) the Monarch, (2) the House of Lords, and (3) the House of Commons, or ought we to substitute for the third element of the sovereign the constituencies which choose the House of Commons? On the one hand, the constituencies in England certainly cannot make laws, nor have they a constitutional right to invalidate laws made by Parliament. No private Englishman will suffer any legal penalty for disobeying a resolution passed by the most decisive majority of the electorate; and no law-court would admit such a resolution as a valid excuse for disobeying a law laid down by Parliament. On the other hand, it may be plausibly maintained that by the power of dismissal when election time comes round the constituencies can keep their representatives in ``habitual obedience''. [Note]
These and other difficulties I shall discuss in subsequent chapters; but this preliminary discussion has seemed necessary to explain why, while I adopt substantially Austin's conception of the relation of Law to Government, as applied to the civil law of a modern political community in its latest stage, I prefer in stating it to avoid the difficulties of Austin's notion of sovereignty. The question ``where supreme power ultimately resides'' is one that it is most important to ask with regard to any political society: but it is a question to which, in my opinion, any simple general answer is liable to be misleading, and the discussion of it in the form appropriate to the present treatise will come more fitly after we have considered in detail the proper constitution of the different organs of Government.
In the first part of our inquiry, then, which relates to the work of government, it will be enough to assume that the society with which we are concerned includes one or more persons or bodies, who, so far as they agree, possess legislative power circumscribed by no definite limits; and so may be taken to constitute a supreme legislative organ, whose general rules, defining the rights and obligations of private members of the community, will be habitually obeyed by the bulk of the community. I shall assume that any transgressor of these rules, ascertained to be such by the judicature, will be punished by the executive government, which will be able to bring overwhelming force to crush any openly recalcitrant member. I shall assume that these organs co-operate harmoniously, keeping each to his proper sphere, so that we may habitually speak of them as one Government. And, finally, I shall assume that the Laws with which we are concerned in our theory of legislation are rules which, if they have not actually emanated from the resolutions of the supreme government, may at any rate be regarded as having its approval, being maintained by penalties inflicted by its authority. It is the connection of Law with Government on the one hand and Penalty on the other on which it appears to me important to lay stress---understanding the connection in either case to be taken as normal, and approximately universal in a well-ordered community, not as absolutely universal.[Back to:]