Greek philosophers were so constructed as to avert, if possible, the chance of development or change. To look nearer home, the earlier volumes of our Statutes are full of minute regulations on matters of local or social custom, but when an important change in the law is contemplated the long and apologetic preambles, such as we read in the Statute of Wills, show how much explanation was needed to make it acceptable to Parliament. To a modern House of Commons it is almost till late in history. enough that a practice has prevailed for a long time to create an impression that such a practice must need examination and revision. But the step is a long one from the time when the State first enforces custom vigorously and constantly, to the time when it takes upon itself without fear or hesitation to recast or alter custom.

gets

narrows.

And we must further note that in proportion as the State And as it becomes stronger, more complex, more active, so does it define stronger its sphere of action in such a way as to exclude from its its sphere operation those rules of conduct which are better left to the guidance of the moralist and the priest. The State, as conceived by the lawgiver of Deuteronomy, swept with its intermittent action the whole area of human conduct; but the modern legislator, who can apply constant uniform pressure to procure the acts and forbearances which he desires to enjoin, strives hard to set limits to State interference, to keep religion and morals wholly outside these limits, to ascertain with precision what it is best to leave to the individual and what must be enforced by the central authority.

strength

State is

We are not so much concerned with the sphere of State The action, or, in other words, the amount and direction of the of the forces which the State brings to bear upon individual conduct, the basis as with the existence, the strength, and the complexity of of Jurisprudence. these forces. For these forces are the State; their strength makes it sovereign; their complexity is what the constitutional lawyer has to unravel. The power to strike at offenders within and without gives to States and maintains in them an individual existence: it preserves them from inward collapse,

and from absorption into the existence of other States outside them. We do not allow that because the collective force of the community-in other words, the State-narrows its sphere of action, it thereby admits a diminution of its power; nor do we allow that because the machinery for setting it in motion is complicated-in other words, that political power is vested in many hands-its action is therefore less regular and certain in the enforcement of such rules of conduct as Its rules are essential to its existence. Rather we should say that as Law of the the State defines the rules of conduct which it will enforce, jurist.

are the

What is

Law.

What is
Positive
Law.

and employs a uniform constraint for their enforcementregular judicial process backed by the strong arm of the executive-it creates the Law with which alone the jurist can profitably deal.

All constraint which produces uniformity of human conduct by human agency, may be regarded as creating Law. But so long as the constraint is wrought by public opinion which may act differently in different cases; or so long as the State cannot or will not use a regular machinery to ensure that penalty follows upon offence, the analytical jurist has no rules precise enough or stringent enough for him to work upon.

When the State has attained to regularity in definition and enforcement of rules of conduct, then we get the Positive Law with which Austin delighted to torment himself and his readers, and then the sanctions of conduct or springs of human action fall into the four groups indicated by Bentham.

The Thus a violent wind may blow a man against another in physical sanction, the street, or a stronger than he may take his hand and compel his signature to a document, or a fear of personal injury may prevent him from telling what he knows; and this is the physical sanction.

the religious sanction,

Or a fear of wrath to come, or a desire for the growth within him of a spiritual life, may determine a man's conduct; this is the religious sanction.

Or a desire to obtain the good opinion, or avoid the active dislike of others, many or few; or to conform to a standard

of conduct which he conceives to be good for himself or for the moral sanction, the world at large, may make a man give up pleasure or endure pain; this is the moral sanction.

political sanction

Yet although a man may be deterred from picking a pocket because the man whose pocket he was going to pick turns round and catches his wrist; or by fear of God's anger or care for the spiritual life; or by the knowledge that his neighbours will condemn him: yet, at any rate, this the sanction must be present to his mind that the State, or the community in its political character, has taken to itself the right to maintain order and to prevent violent and involuntary transfers of property by punishing offenders; and that if he is detected he will be punished by such process and in such ways as the State may provide.

The absolute strength of the State is a conception necessary to the foundation of any jurisprudence which is not merely a speculative and ideal arrangement of rules of conduct, but the complex structure of the State is the matter of difficulty to the student of constitutional law.

or Law

proper.

specialising of The political

functions.

The king, who decides quarrels, declares customs, and leads The his people in war, ceases after a while to discharge these duties as they become more elaborate and cover a wider surface. community extends by absorbing others in conquest or by a natural process of growth, and can no longer assemble in its entirety to express its assent or dissent on matters of common interest. The various duties of the king pass into the hands of ministers, sometimes with the result, noticeable in our constitution, that he comes to be regarded as incapable of discharging these duties for himself. Thus we find in our own country that though every act in the State is in theory the act of the Queen or of the Queen in Council, there is scarcely an executive act which the Crown can perform without the intervention of a minister.

And as the Crown has lost the power of independent action in matters administrative, so it has lost independence and

be distin

initiative in legislation. First, the community demands to be represented when money is granted, to assent to the amount and incidence of the tax; then the representatives claim to state grievances, departures from custom or need of change, before they grant the tax; then, instead of leaving it to the king and his council to make and promulgate the required law, the representatives undertake to frame and settle the law. The king's legislative power sinks to a formal right to assent or dissent from a law submitted to him, and this again to a merely formal expression of assent. Though statutes are nominally enacted by the Queen's most excellent Majesty,' and the Lords and Commons do but advise and consent and give their authority thereto, the legislative power of the Crown has shrunk to a shadowy veto.

From what has been said it will appear that the complexity of a modern State, and in particular the complexity of modern English institutions, gives enough work to the constitutional lawyer if he is to disentangle and set out in their various Matters to relations the institutions of his country. It is the more guished important to keep his province clear of other fields of study from Con- which have been touched upon in what has just been said. The history of the conception of the State, its sphere of duty, the best possible disposition of forces in it, the mode in which they are or have been disposed at different times-all these topics are more or less susceptible of confusion with the topic of constitutional law.

stitutional

Law:

Legal An

Let us try to sever them.

(a) There is the growth and development of the State in its tiquities; rudimentary forms, the mode in which Law parts company with morals and religion, and becomes specialised as a code of conduct enforceable by a central power within the community this is the department of historical jurisprudence, and is matter for the student of legal antiquities.

Political

Economy and the

limits of

(3) The determination of the rules which should be enforced by the State, as opposed to such as should be left to the moralist and the priest or preacher, is matter for the political

economist and the student of political science: it is for them State to discuss and settle the limits of State interference.

interference;

(y) But when once it is determined what rules of conduct the State shall enforce, the business of the jurist and of the legislator begins. For when the State enforces acts and forbearances, it at once creates rights; the analysis and arrange- Jurispru ment of these rights is the business of the jurist.

dence ;

Moreover, it is one thing to say that certain acts and forbearances shall be made obligatory, and another thing to determine the mode in which they shall be so made, in what form, and with what sanctions for disobedience. The theory of punishment (using the term punishment as including all the theory of legislaforms of penalty or remedy for rights infringed), and the tion; business of making laws, make up the province of the legislator.

(6) There yet remains for consideration the actual structure of the State. We may ask, after determining the due limits of State interference and the objects of State control, how the forces of the community may best be disposed with a view Political to the attainment of these objects; and this is a part of the business of the student of political science1.

Science;

tional

Or, we may ask how the forces of the community have been Constitudisposed in the past, noting the displacement and change of History; balance from time to time; and this is the business of the constitutional historian.

tional

Or, lastly, we may consider how the forces of the community Constituare disposed here and now; what are the legal rights and duties of the various parts of the sovereign body against one

I may seem to have suggested under three different headings three matters, all of which might be included within the term 'political science.' It is not my business to find a terminology for the political philosopher, but his studies would seem to include three distinct things: the ascertainment of the limits of State Interference, so that he may know what the State should undertake; the theory of Legislation, so that he may know how the State should set about what it undertakes; and the Analysis and Comparison of Constitutions, so that he may know how the State may be best constructed and political forces best disposed with a view to the work of the State being done.

Law.