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ART. V.--The Province of Jurisprudence determined.
Austin, Esq. Barrister at Law. Murray.

By John

THE great scarcity of this work will probably soon lead to the publication of a new edition; we therefore make no apology for the insertion in our pages of the following remarks upon it.

It contains, (the author tells us) with little alteration, the substance of a course of lectures delivered by him at the University of London, (now University College).* These lectures were the commencement of a course intended to have embraced the whole science of jurisprudence. The entire course, however, was not actually delivered; but a very complete outline is appended to the published treatise.

We propose, in the present article, for the benefit of such of our readers as may be interested in the study of the science, to state briefly a few remarks that occur to us upon the fundamental views of our author. "The matter of jurisprudence," says Mr. A., "is positive law; law simply and strictly so called; or law set by political superiors to political inferiors." Positive law being often confounded with objects to which it is related by resemblance and analogy, and to objects which are signified properly and improperly by the large and vague expression Law; it is the purpose of the treatise to distinguish law, properly

* We take this opportunity of clearing up a confusion of ideas, into which many of the friends of University College, misled by its old name, have fallen. University College and the London University are now two distinct bodies. When University College was built, it was intended by its founders for a Metropolitan University, and that name was accordingly then given to it. The design, however, was not fulfilled. A charter was afterwards granted to certain persons, establishing them with power of succession, granting degrees, &c. as "The London University," and a portion of Somerset House, (formerly appropriated to the Royal Academy) set apart for the use of the body. The College, situate in Gowerstreet, is one of the institutions empowered to send candidates for examination for degrees. King's College (situate between Somerset House and the Strand Church) is another. There are also other colleges, about twenty in number, in different parts of the country. These colleges (University and King's College included) bear the same relation to the University of London, that the Colleges at Cambridge or Oxford do to the University of which they are members. We trust, therefore, that in future this mistake will be avoided; and that as University College has no desire unduly to arrogate, so King's College will not be denied the honour which belongs to it, of membership of the only English University which grants degrees irrespectively of the religious faith of the candidates.

so called, from these analogous objects. And this is in fact the whole scope and design of the work. It is pursued through all its bearings with uncommon perseverance, and the different views brought before us with remarkable clearness. While we differ from some of these views, we are of opinion that the work fully deserves its title of "The Province of Jurisprudence determined."

Laws are either set by God to his human creatures, or set by men to men. The latter are either set by political superiors as such, that is, to persons in a state of subjection to them, or are not set by political superiors as such; for instance, the law of honour. There are numerous cases also in which the term law is applied improperly, as when we speak of the laws regulating the growth or decay of vegetables, &c. "Through these misapplications of a name, flagrant as the metaphor is, has the field of jurisprudence and morals been deluged with muddy speculation?"

“ Laws are a species of command." A command is the signification of a desire, distinguished by this peculiarity, "that the party to whom it is directed is liable to evil from the other in case he comply not with the desire.” “Being liable to evil from you if I comply not with the wish which you signify, I am bound or obliged by your command, or I lie under a duty to obey it." “Command and duty are therefore correlative terms, the meaning denoted by each being implied or supposed by the other." "The evil which will probably be incurred in case a command be disobeyed, or (to use an equivalent expression) in case a duty be broken, is frequently called a sanction, or an enforcement of obedience."

We have stated Mr. Austin's views rather fully; thus far, generally in his own words, and with his own italics, because from these necessarily results his definition of jurisprudence, as "the philosophy of positive law;" and also because we think that it is to this part of the treatise, especially as exemplified in its necessary exclusion of international law from the province of jurisprudence, that the strongest objections will be felt. The treatment of international law, in all the older works upon the subject, implicitly if not expressly as a branch of positive law, and the direct opposition since given to Mr. Austin's line of argument, to which we shall presently advert, confirm us in this opinion.

In the first place, it may be asked, is it true that law is a species of command, or is it not rather to be said that command is a species of law. In defining the generic term "law," are we bound to take into consi

deration the party to whom it is given? When we have said who makes the law, and what it is he makes, have we not said all that is necessary to the perfect understanding of the term? Is it at all necessary to its definition, to say, for instance, that "law is a command given by a rational being to a rational being." It being granted that the signification of a wish, and the power and will to enforce that wish are implied in the idea of a law, are the means taken for enforcements also implied? Need law be a command at all? The object of a law, it may be said, is its own fulfilment. The means of enforcing such fulfilment may be varied according to the subject of the operation of the law, or may ensure such fulfilment more or less perfectly. The movements of inanimate bodies are regulated without possibility of variation. The instincts of our nature lead us, almost with certainty, to a particular conduct. We generally obey commands set to us which appeal to our reason. Now all these cases agree in there being an expression of desire, with the will and power for its enforcement. Are we, therefore, to exclude from our definition of law those cases in which the desire is of certainty enforced, and include only those cases in which the desire may or may not be enforced, as the case happens? Can the application of the name law to the first class of cases, be justly stigmatized as "a flagrant metaphor," by which "the field of jurisprudence and morals has been deluged with muddy speculation ?"

These objections appear to us not without weight. We shall not put them aside as involving a mere verbal question-whether law is a species of command, or command more properly a species of law,— with no greater importance resulting from it than the interchange of terms and definitions. We shall attempt to extract from the objection itself, (and we have done our best to state it fairly,) its own refutation.

We think then that the term law must be confined in its meaning to a command given to a rational being, and that the (supposed) laws, which regulate the motions of inanimate bodies, cannot be considered laws properly so called. We mean to say, that the idea conveyed by the term so applied, is not the idea conveyed by it as applied to the conduct of rational beings, but some other and different idea.

The difference it appears to us is simply this, that in the one case the supposed law is a property of the being which it is said to regulate, and in the other case it is not. It is a property, it is something strictly belonging to matter, and without such it would not be what it is, that it moves after a certain fashion; it is not a property, it is no condition of the existence of a rational being, that he should obey a law. He

will preserve all his properties, he will be what he is, whether he obeys a law or not.*

The distinction between a property and a law, that which is internal and that which is external to its subject, is simple enough when stated. That it has not been stated, is we believe the sole cause of the "muddy speculation" of which Mr. Austin speaks, and which expression is just enough if our distinction be the true one. The distinction granted, it is obvious that any further dispute whether law is a species of command would be a logomachy. We shall not therefore pursue it farther. We shall take Mr. Austin's definition that law is a species of command, and conclude consequently, that it can be set only to rational beings.

"Being a command," says Mr. Austin, (p.'138,) "every law properly so called flows from a determinate source, or emanates from a determinate author, in other words, the author from whom it proceeds is a determinate rational being, or a determinate body or aggregate of rational beings. For whenever a command is expressed or intimated, one party signifies a wish that another shall do or forbear; and the latter is obnoxious to an evil which the former intends to inflict in case the wish be disregarded. But every signification of a wish made by a single individual, or made by a body of individuals as a body or collective whole, supposes that the individual or body is certain or determinate. And every intention or purpose held by a single individual, or held by a body of individuals as a body or collective whole, involves the the same supposition."

Now if this be correct, as international law does not "proceed from a determinate rational being, or a determinate body or aggregate of rational beings," international law is not law properly so called. Mr. Austin accordingly considers it as a branch of positive morality merely, and proposes, without entering upon it in his course of lectures, simply to add to the series "a concise summary of the positive moral rules which are styled by recent writers, the positive law of nations, or positive international law."

A conclusion so opposed to the opinions of almost all writers upon the subject, would scarcely be heard in silence. "There is no sufficient reason," it has been said, "for confining the name of positive law' to

* That a rational being has properties, commonly called laws of his nature, is not intended to be denied: all that is asserted is, that the laws set to him as a rational being are not properties. Never to be hungry would not be human: not always to eat when hungry is perfectly possible.

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