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See also:JURISPRUDENCE (See also:Lat. jurisprudenlia, knowledge of See also:law, from See also:jus, right, and prudentia, from providere, to foresee) , the See also:general See also:term for " the formal See also:science of See also:positive See also:law " (T . E.cussed below and in See also:JURISPRUDENCE, See also:COMPARATIVE; the details of particular See also:laws or sorts of law (See also:CONTRACT, &c.) and of individual See also:national systems of law (See also:ENGLISH LAW, &c.) being dealt with in See also:separate articles . The human See also:race may be conceived as parcelled out into a number of distinct See also:groups or See also:societies, differing greatly in See also:size and circumstances, in See also:physical and moral characteristics of all kinds . But they all resemble each other in that they reveal on examination certain rules of conduct in accordance with which the relations of the members inter se are governed . Each society has its own See also:system of laws, and all the systems, so far as they are known; constitute the appropriate subject See also:matter of jurisprudence . The jurist may See also:deal with it in the following ways . He may first of all examine the leading conceptions See also:common to all the systems, or in other words define the leading terms common to them all . Such are the terms law itself, right, See also:duty, See also:property, See also:crime, and so forth, which, or their equivalents, may, notwithstanding delicate See also:differences of See also:connotation, be regarded as common terms in all systems . That See also:kind of inquiry is known in See also:England as See also:analytical jurisprudence . It regards the conceptions with which it deals as fixed or stationary, and aims at expressing them distinctly and exhibiting their logical relations with each other . What is really meant by a right and by a duty, and what is the true connexion between a right and a duty, are types of the questions proper to this inquiry . Shifting our point of view, but still regarding systems of law in the See also:mass, we may consider them, not as stationary, but as changeable and changing, we may ask what general features are exhibited by the See also:record of the See also:change .
This, somewhat crudely put, may serve to indicate the See also:
The " science of law," as the expression is generally used, means the examination of laws in general in one or other of the ways just indicated
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It means an investigation of laws which exist or have existed in some given society in fact—in other words, positive laws; and it means an examination not limited to the exposition of particular systems
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Analytical jurisprudence is in England associated chiefly with the name of See also:
This distinction seems so See also:simple and obvious that the See also:energy and even bitterness with which Austin insists upon it now seem superfluous
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But the indiscriminate See also:identification of everything to which common speech gives the name of a law was, and still is, a fruitful source of confusion
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Blackstone's statement that when God " put matter into See also:motion He established certain laws of motion, to which all movable matter must conform," and that in those creatures that have neither the See also:power to think nor to will such laws must be invariably obeyed, so See also:long as the creature itself subsists, for its existence depends on that obedience, imputes to the law of See also:gravitation in respect of both its origin and its See also:execution the qualities of an See also:act of See also:parliament
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On the other See also:hand the qualities of the law of gravitation are imputed to certain legal principles which, under the name of the law of nature, are asserted to be binding all over the globe, so that " no human laws are of any validity if contrary to this." Austin never fails to stigmatize the use of " natural laws " in the sense of scientific facts as improper, or as metaphorical
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Having eliminated metaphorical or figurative laws, we restrict ourselves to those laws which are commands
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This word is the See also: A command to your servant to rise at such an See also:hour on such a See also:morning is a particular command, but not a law or rule; a command to rise always at that hour is a law or rule . Of this distinction it is sufficient to say in the meantime that it involves, when we come to deal with positive laws, the rejection of particular enactments to which by inveterate usage the term law would certainly be applied . On the other hand it is not, according to Austin, necessary that a true law should bind persons as a class . Obligations imposed on the grantee of an e lice specially created by parliament would imply a law; ageneral order to go into See also:mourning addressed to the whole nation for a particular occasion would not be a law . So far we have arrived at a See also:definition of laws properly so called . Austin holds superiority and inferiority to be necessarily implied in command, and such statements as that laws emanate from superiors " to be the merest tautology and trifling . Elsewhere he sums up the characteristics of true laws as ascertained by the analysis thus: (r) laws, being commands, emanate from a determinate source; (2) every sanction is an evil annexed to a command; and (3) every duty implies a command, and chiefly means obnoxiousness to the evils annexed to commands . Of true laws, those only are the subject of jurisprudence which are laws strictly so called, or positive laws . Austin accordingly proceeds to distinguish positive from other true laws, which are either laws set by God to men or laws set by men to men, not, however, as See also:political superiors nor in pursuance of a legal right . The discussion of the first of these true but not positive laws leads Austin to his celebrated discussion of the utilitarian theory . The laws set by God are either revealed or unrevealed, i.e. either ex-pressed in See also:direct command, or made known to men in one or other of the ways denoted by such phrases as the " See also:light of nature," " natural reason," " dictates of nature," and so forth . Austin maintains that the principle of general utility, based ultimately on the assumed benevolence of God, is the true See also:index to such of His commands as He has not chosen to reveal .
Austin's exposition of the meaning of the principle is a most valuable contribution to moral science, though he rests its claims ultimately on a basis which many of its supporters would disavow
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And the whole discussion is now generally condemned as lying outside the proper See also:scope of the See also:treatise, although the reason for so condemning it is not always correctly stated
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It is found in such assumptions of fact as that there is a God, that He has issued commands to men in what Austin calls the " truths of See also:revelation," that He designs the happiness of all His creatures, that there is a predominance of See also:good in the order of the See also:world—which do not now command universal assent
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It is impossible to See also:place these propositions on the same scientific footing as the assumptions of fact with reference to human society on which jurisprudence rests
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If the " divine laws " were facts like acts of parliament, it is conceived that the discussion of their characteristics would not be out of place in a See also:scheme of jurisprudence
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The second set of laws properly so called, which are not positive laws, consists of three classes: (r) those which are set by men living in a See also:state of nature; (2) those which are set by sovereigns but not as political superiors, e.g. when one sovereign commands another to act according to a principle of See also:international law; and (3) those set by subjects but not in pursuance of legal rights
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This See also:group, to which Austin gives the name of positive morality, See also:helps to explain his conception of positive law
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Men are living in a state of nature, or a state of anarchy, when they are not living in a state of See also:government or as members of a political society
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" Political society " thus becomes the central fact of the theory, and some of the objections that have been urged against it arise from its being applied to conditions of See also:life in which Austin would not have admitted the existence of a political society
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Again, the third set in the group is intimately connected with positive laws on the one hand and rules of positive morality which are not even laws properly so called on the other
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Thus laws set by subjects in consequence of a legal right are clothed with legal sanctions, and are laws positive
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A law set by See also:guardian to See also: On the other hand the rules set by a See also:club or society, and enforced upon its members by exclusion from the society, but not in pursuance of any legal right, are laws, but not positive laws . They are imperative and proceed from This appears to be an unnecessary complication . The sovereign has authorized the master to set the law, although not compelling him to do so, and enforces the law when set . There seems no good reason why the law should be called a rule of positive morality at all . a determinate source, but they have no legal or political sanction . Closely connected with this positive morality, consisting of true but not positive laws, is the positive morality whose rules are not laws properly so called at all, though they are generally denominated laws . Such are the laws of See also:honour, the laws of See also:fashion, and, most important of all, international law . Nowhere does Austin's phraseology come more bluntly into conflict with common usage than in pronouncing the law of nations (which in substance is a compact See also:body of well-defined rules resembling nothing so much as the See also:ordinary rules of law) to be not laws at all, even in the wider sense of the term . That the rules of a private club should be law properly so called, while the whole mass of international jurisprudence is See also:mere See also:opinion, shocks our sense of the proprieties of expression . Yet no See also:man was more careful than Austin to observe these properties . He recognizes fully the futility of See also:definitions which involve a painful struggle with the current of ordinary speech . But in the See also:present instance the apparent paralogism cannot be avoided if we accept the See also:limitation of laws properly so called to commands proceeding from a determinate source . And that limitation is so generally present in our conception of law that to ignore it would be a worse See also:anomaly than this . No one finds See also:fault with the statement that the so-called See also:code of honour or the dictates of fashion are not, properly speaking, laws . We repel the same statement applied to the law of nature, because it resembles in so many of its most striking features—in the certainty of a large portion of it, in its terminology, in its substantial principles—the most universal elements of actual systems of law, and because, moreover, the See also:assumption that brought it into existence was nothing else than this, that it consisted of those abiding portions of legal systems which prevail everywhere by their own authority . But, though " positive morality " may not be the best phrase to describe such a code of rules, the distinction insisted on by Austin is unimpeachable . The elimination of those laws properly and improperly so called which are not positive laws brings us to the definition of positive law, which is the See also:keystone of the system . Every positive law is " set by a sovereign See also:person, or sovereign body of persons, to a member or members of the See also:independent political society wherein that person or body is sovereign or superior." Though possibly sprung directly from another source, it is a positive law, by the institution of that present sovereign in the See also:character of a political superior . The question is not as to the historical origin of the principle, but as to its present authority . " The legislator is he, not by whose authority the law was first made, but by whose authority it continues to be law." This definition involves the analysis of the connected expressions See also:sovereignty, subjection and independent political society, and of determinate body—which last analysis Austin performs in connexion with that of commands . These are all excellent examples of the logical method of which he was so See also:great a master . The broad results alone need be noticed here . In order that a given society may See also:form a society political and independent, the generality or bulk of its members must be in a See also:habit of obedience to a certain and common superior; whilst that certain person or body of persons must not be habitually obedient to a certain person or body . All the italicized words point to circumstances in which it might be difficult to say whether a given society is political and independent or not . Several of these Austin has discussed—e.g. the state of things in which a political society yields obedience which may or may not be called habitual to some See also:external power, and the state of things in which a political, society is divided between contending claimants for sovereign power, and it is uncertain which shall prevail, and over how much of the society . So long as that uncertainty remains we have a state of anarchy . Further, an independent society to be political must not fall below a number which can only be called considerable . Neither then in a state of anarchy, nor in inconsiderable communities, nor among men living in a state of nature, have we the proper phenomena of a political society . The last limitation goes some way to meet the most serious See also:criticism to which Austin's system has been exposed, and it ought to bestated in his own words . He supposes a society which may be styled independent, which is considerable in See also:numbers, and which is in a See also:savage or extremely barbarous condition . In such a society, " the bulk of its members is not in the habit of obedience to one and the same superior . For the purpose of attacking an external enemy, or for the purpose of repelling an attack, the bulk of its members who are capable of bearing arms submits to one See also:leader or one body of leaders . But as soon as that emergency passes the transient submission ceases, and the society reverts to the state which may be deemed its ordinary state . The bulk of each of the families which compose the given society renders habitual obedience to its own See also:peculiar, See also:chief, but those domestic societies are themselves independent societies, or are not See also:united and compacted into one political society by habitual and general obedience to one common superior, and there is no law (simply or strictly so styled) which can be called the law of that society . The so-called laws which are common to the bulk of the community are purely and properly customary laws—that is to say, laws which are set or imposed by the general opinion of the community, but are not enforced by legal or political sanctions." Such, he says, are the savage societies of hunters and fishers in See also:North See also:America, and such were the Germans as described by See also:Tacitus . He takes no See also:account of societies in an intermediate See also:stage between this and the condition which constitutes political society . We need not follow the analysis in detail . Much ingenuity is displayed in grouping the various kinds of government, in detecting the sovereign authority under the disguises which it wears in the complicated state system of the United States or under the See also:fictions of English law, in elucidating the precise meaning of abstract political terms . Incidentally the source of many celebrated fallacies in political thought is laid See also:bare . That the question who is sovereign in a given state is a question of fact and not of law or morals or See also:religion, that the sovereign is incapable of legal limitation, that law is such by the sovereign's command, that no real or assumed compact can limit his action—are positions which Austin has been accused of enforcing with needless iteration . He cleared them, however, from the See also:air of See also:paradox with which they had been previously encumbered, and his influence was in no direction more widely See also:felt than in making them the commonplaces of educated opinion in this See also:generation . Passing from these, we may now consider what has been said against the theory, which may be summed up in the following terms . Laws, no matter in what form they be expressed, are in the last resort reducible to commands set by the person or body of persons who are in fact sovereigns in any independent political society . The sovereign is the person or persons whose commands are habitually obeyed by the great bulk of the community; and by an independent society we mean that such sovereign See also:head is not himself habitually obedient to any other determinate body of persons . The society must be sufficiently numerous to be considerable before we can speak of it as a political society . From command, with its inseparable incident of sanction, come the duties and rights in terms of which laws are for the most part expressed . Duty means that the person of whom it is predicated is liable to the sanction in case he fails to obey the command . Right means that the person of whom it is predicated may set the sanction in operation in case the command be disobeyed . We may here interpolate a doubt whether the condition of See also:independence on the part of the head of a community is essential to the legal analysis . It seems to us that we have all the elements of a true law present when we point to a community habitually obedient to the authority of a person or determinate body of persons, no matter what the relations of that superior may be to any external or superior power . Provided that in fact the commands of the lawgiver are those beyond which the community never looks, it seems immaterial to inquire whether this lawgiver in turn takes his orders from some-body else or is habitually obedient to such orders when given . One may imagine a community governed by a dependent legislatorial body or person, while the supreme sovereign whose representative and nominee such body or person may be never directly addresses the community at all . We do not see that in such a case anything is gained in clearness by representing the law of the community as set by the suzerain, rather than the dependent legislator . Nor is the ascertainment of the ultimate seat of power necessary to define political societies . That we get when we suppose a community to be in the habit of obedience to a single person or to a determinate See also:combination of persons . The use of the word " command " is not unlikely to See also:lead to a misconception of Austin's meaning . When we say that a law is a command of the sovereign, we are See also:apt to think of the sovereign as enunciating the rule in question for the first See also:time . Many laws are not traceable to the sovereign at all in this sense . Some are based upon immemorial practices, some can be traced to the influence of private citizens, whether practising lawyers or writers on law, and in most countries a vast body of law owes its existence as such to the fact that it has been observed as law in some other society . The great bulk of See also:modern law owes its existence and its shape ultimately to the labours of the Roman lawyers of the See also:empire . Austin's definition has nothing to do with this, the historical origin of laws . Most books dealing with law in the abstract generalize the modes in which laws may be originated under the name of the " See also:sources " of law, and one of these is legislation, or the direct command of the sovereign body . The connexion of laws with each other as principles is properly the subject matter of historical jurisprudence, the ideal perfection of which would be the See also:establishment of the general laws governing the See also:evolution of law in the technical sense . Austin's definition looks, not to the authorship of the law as a principle, not to its inventor or originator, but to the person or persons who in the last resort cause it to be obeyed . If a given rule is enforced by the sovereign it is a law . It may be convenient to See also:notice here what is usually said about the sources of law, as the expression sometimes proves a stumbling-See also:block to the appreciation of Austin's system . In the corpus See also:juris of any given See also:country only a portion of the laws is traceable to the direct expression of his commands by the sovereign . Legislation is one, but only one, of the sources of law . Other portions of the law may be traceable to other sources, which may vary in effect in different systems . The See also:list given in the Institutes of Justinian of the ways in which law may be made—lex, plebiscitum, principis placita, edicta magistratuum, and so on—is a list of sources . Among the sources of law other than legislation which are most commonly exemplified are the laws made by See also:judges in the course of judicial decisions, and law originating as See also:custom . The source of the law in the one case is the judicial decision, in the other the custom .
In consequence of the decisions and in consequence of the custom the rule has prevailed
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English law is lamely made up of principles derived in each of those ways, while it is deficient in principles derived from the writings of independent teachers, such as have in other systems exercised a powerful influence on the development of law
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The response prudentum, the opinions of learned men, published as such, did undoubtedly originate an immense portion of Roman law
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No such influence has affected English law to any appreciable extent—a result owing to the activity of the courts of the legislature
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This difference has profoundly affected the form of English law as compared with that of systems which have been See also:developed by the See also:play of See also:free discussion
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These are the most definite of the influences to which the beginning of laws may be traced
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The law once established, no matter how, is nevertheless law in the sense of Austin's definition
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It is enforced by the sovereign authority
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It was 'originated by something very different
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But when we speak of it as a command we think only of the way in which it is to-See also:day presented to the subject
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The newest order of an act of parliament is not more positively presented to the See also:people as a command to be obeyed than are the elementary rules of the common law for which no legislative origin can be traced
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It is not even necessary to resort to the figure of speech by which alone, according to See also:Sir See also: 314), the common law can be regarded as the commands of the government . " The common law," he says, " consists of their commands because they can See also:repeal or alter or restate it at See also:pleasure." " Their command because, being by the assumption possessed of uncontrollable force, they could innovate without limit at any moment." On the contrary, it may be said that they command because they do as a matter of fact enforce the rules laid down in the common law . It is not because they could innovate if they pleased in the common law that they are said to command it, but because it is known that they will enforce it as it stands . The criticism of Austin's analysis resolved itself into two different sets of objections . One relates to the theory of sovereignty which underlies it; the other to its alleged failure to include rules which in common parlance are laws, and which it is felt ought to be included in any satisfactory definition of law . As the latter is to some extent anticipated and admitted by Austin himself, we may deal with it first . See also:Frederic See also:Harrison (Fortnightly See also:Review, vols. See also:xxx., xxxi.) was at great pains to collect a number of laws or rules of law which do not square with the Austinian definition of law as a command creating rights and duties . Take the rule that " every will must be in See also:writing." It is a very circuitous way of looking at things, according to Harrison, to say that such a rule creates a specificright in any determinate person of a definite description . So, again, the rule that " a See also:legacy to the See also:witness of a will is void." Such a rule is not " designed to give any one any rights, but simply to protect the public against See also:wills made under undue influence." Again, the technical rule in See also:Shelley's case that a See also:gift to A for life, followed by a gift to the heirs of A, is a gift to A in See also:fee simple, is pronounced to be inconsistent with the definition . It is an idle See also:waste of ingenuity to force any of these rules into a form in which they might be said to create rights . This would be a perfectly correct description of any See also:attempt to take any of these rules separately and analyse it into a See also:complete command creating specific rights and duties . But there is no occasion for doing anything of the kind . It is not contended that every grammatically complete See also:sentence in a textbook or a See also:statute is per se a command creating rights and duties . A law, like any other command, must be expressed in words, and will require the use of the usual See also:aids to expression . The gist of it may be expressed in a sentence which, See also:standing by itself, is not intelligible; other sentences locally separate from the See also:principal one may contain the exceptions and the modifications and the interpretations to which that is subject . In no one of these taken by itself, but in the substance of them all taken together, is the true law, in Austin's sense, to be found . Thus the rule that every will must be in writing is a mere fragment—only the See also:limb of a law . It belongs to the rule which fixes the rights of devisees or legatees under a will . That rule in whatever form it may be expressed is, without any straining of language, a command of the legislator . That " every person named by a testator in his last will and testament shall be entitled to the property thereby given him " is surely a command creating rights and duties . After testament add " expressed in writing "; it is still a command . Add further, " provided he be not one of the witnesses to the will," and the command, with its product of rights and duties, is still there . Each of the additions limits the operation of the command stated imperatively in the first sentence . So with the rule in Shelley's case . It is resolvable into the rule that every person to whom an See also:estate is given by a See also:conveyance ex-pressed in such and such a way shall take such and such rights . To take another example from later legislation . An English statute passed in 1881 enacts nothing more than this, that an act of a previous session shall be construed as if " that " meant " this." It would be futile indeed to force this into conformity with Austin's definition by treating it as a command addressed to the judges, and as indirectly creating rights to have such a construction respected . As it happens, the See also:section of the previous act referred to (the Burials Act 188o) was an undeniable command addressed to the See also:clergy, and imposed upon them a specific duty . The true command—the law—is to be found in the two sections taken together . All this confusion arises from the fact that laws are not habitually expressed in imperative terms . Even in a mature system like that of England the great bulk of legal rules is hidden under forms which disguise their imperative quality . They appear as principles, See also:maxims, propositions of fact, generalizations, points of See also:pleading and See also:procedure, and so forth . Even in the statutes the imperative form is not uniformly observed . It might be said that the more mature a legal system is the less do its individual rules take the form of commands . The greater portion of Roman law is expressed in terms which would not misbecome scientific or speculative treatises . The institutional See also:works abound in propositions which have no legal significance at all, but which are not distinguished from the true law in which they are embedded by any difference in the forms of expression . Assertions about matters of history, dubious speculations in See also:philology, and reflections on human conduct are mixed up in the same narrative with genuine rules of law . Words of description are used, not words of command, and rules of law assimilate themselves in form to the extraneous matter with which they are mixed up . It has been said that Austin himself admitted to some extent the force of these objections . He includes among laws which are not imperative " declaratory laws, or laws explaining the import of existing positive law, and laws abrogating or repealing existing positive law." He thus associates them with rules of positive morality and with laws which are only metaphorically so called . This collocation is unfortunate and out of keeping with Austin's method . Declaratory and repealing laws are as completely unlike positive morality and metaphorical laws as are the laws which he describes as properly so called . And if we avoid the See also:error of treating each separate proposition enunciated by the lawgiver as a law, the cases in question need give us no trouble . Read the declaratory and the repealing statutes along with the principal laws which they affect, and the result is perfectly consistent with the proposition that all law is to be resolved into a See also:species of command . In the one case we have in the principal taken together with the interpretative statute a law, and whether it differs or not from the law as it existed before the interpretative statute was passed makes no difference to the true character of the latter . It contributes along with the former to the expression of a command which is a true law . In the same way repealing statutes are to be taken together with the laws which they repeal—the result being that there is no law, no command, at all . It is wholly unnecessary to class them as laws which are not truly imperative, or as exceptions to the rule that laws are a species of commands . The combination of the two sentences in which the lawgiver has expressed himself, yields the result of silence—See also:absence of law—which is in no way incompatible with the assertion that a law, when it exists, is a kind of command . Austin's theory does not logically require us to treat every act of parliament as being a complete law in itself, and therefore to set aside a certain number of acts of parliament as being exceptions to the great generalization which is the basis of the whole system . Rules of procedure again have been alleged to constitute another exception . They cannot, it is said, be regarded as commands involving See also:punishment if they be disobeyed . Nor is anything gained by considering them as commands addressed to the See also:judge and other ministers of the law . There may be no doubt in the law of procedure a great deal that is resolvable into law in this sense, but the great bulk of it is to be regarded like the rules of See also:interpretation as entering into the substantive commands which are laws . They are descriptions of the sanction and its mode of working . The bare See also:prohibition of See also:murder with-out any See also:penalty to enforce it would not be a law . To prohibit it under penalty of See also:death implies a reference to the whole machinery of criminal See also:justice by which the penalty is enforced . Taken by themselves the rules of procedure are not, any more than canons of interpretation, complete laws in Austin's sense of the term . But they form part of the complete expression of true laws . They imply a command, and they describe the sanction and the mode in which it operates . A more formidable criticism of Austin's position is that which attacks the definition of sovereignty . There are countries, it is said, where the sovereign authority cannot by any stretch of language be said to command the laws, and yet where law manifestly exists . The ablest and the most moderate statement of this view is given by Sir Henry Maine in Early History of Institutions, p . 380: " It is from no special love of See also:Indian examples that I take one fr9m See also:India, but because it happens to be the most modern precedent in point . My instance is the Indian province called the Punjaub, the country of the Five See also:Rivers, in the state in which it was for about a See also:quarter of a See also:century before its See also:annexation to the See also:British Indian Empire . After passing through every conceivable phase of anarchy and dormant anarchy, it See also:fell udder the tolerably consolidated dominion of a See also:half-military half-religious See also:oligarchy known as the Sikhs . The Sikhs themselves were afterwards reduced to subjection by a single chieftain belonging to their order, Runjeet Singh . At first sight there could be no more perfect embodiment than Runjeet Singh of sovereignty as'conceived by Austin . He was absolutely despotic . Except occasionally on his See also:wild frontier he kept the most perfect order . He could have commanded anything; the smallest disobedience to his commands would have been followed by death or See also:mutilation; and this was perfectly well known to the enormous See also:majority of his subjects . Yet I doubt whether once in all his life he issued a command which Austin would See also:call a law . He took as his See also:revenue a prodigious See also:share of the produce of the See also:soil . He harriedvillages which recalcitrated at his exactions, and he executed great numbers of men . He levied great armies; he had all material of power, and he exercised it in various ways . But he never made a law . The rules which regulated the lives of his subjects were derived from their immemorial usages, and those rules were administered by domestic tribunals in families or See also:village communities—that is, in groups no larger or little larger than those to which the application of Austin's principles cannot be effected on his own See also:admission without absurdity." So far as the mere size of the community is concerned, there is no difficulty in applying the Austinian theory . In postulating a considerably numerous community Austin was thinking evidently of small isolated groups which could not without provoking a sense of the ridiculous be termed nations . Two or three families, let us suppose, occupying a small See also:island, totally disconnected with any great power, would not claim to be and would not be treated as an independent political community . But it does not follow that Austin would have regarded the village communities spoken of by Maine in the same light . Here we have a great community, consisting of a vast number of small communities, each independent of the other, and disconnected with all the others, so far as the See also:administration of anything like law is concerned . Suppose in each case that the headman or See also:council takes his orders from Runjeet Singh, and enforces them, each in his own See also:sphere, relying as the last resort on the force at the disposal of the suzerain . The mere size of the separate communities would make no sort of difference to Austin's theory . He would probably regard the empire of Runjeet Singh as divided into small districts—an assumption which inverts no doubt the true historical order, the smaller group being generally more See also:ancient than the larger . 
But provided that the other conditions prevail, the mere fact that the law is administered by See also:local tribunals for See also:minute areas should make no difference to the theory . The case described by Maine is that of the undoubted See also:possession of supreme power by a sovereign, coupled with the See also:total absence of any attempt on his part to originate a law . That no doubt is, as we are told by the same authority, " the type of all See also:Oriental communities in their native state during their rare intervals of See also:peace and order." The empire was in the See also:main in each case a tax-gathering empire . The unalterable law of the Medes and Persians was not a law at all but an occasional command . So again Maine puts his position clearly in the following sentences: " The Athenian See also:assembly made true laws for residents on See also:Attic territory, but the dominion of See also:Athens over her subject cities and islands was clearly a tax-taking as distinguished from a legislating empire." Maine, it will be observed, does, not say that the sovereign assembly did not command the laws in the subject islands—only that it did not legislate . In the same See also:category may be placed without much substantial difference all the societies that have ever existed on the See also:face of the See also:earth previous to the point at which legislation becomes active . Maine is undoubtedly right in connecting the theories of Bentham and Austin with the overwhelming activity of legislatures in modern times . And formal legislation, as he else-where shows, comes See also:late in the history of most legal systems . Law is generated in other ways, which seem irreconcilable with anything like legislation . Not only the tax-gathering emperors of the See also:East, indifferent to the condition of their subjects, but even actively benevolent governments have up to a certain point See also:left the law to grow by other means than formal enactments . What is ex facie more opposed to the |