202 



%S. Of Austiti's Argument, and of His Theory Generally. 



The theory of Austin is so coherent and closely knit together that his 

 doctrine of sovereignty can only be considered in connection with his 

 general theory ; which, tlierefore, must be first considered. 



(1) The theory of Austin is in fact wholly based upon the ambiguity of 

 the term laic ; which is defined by him as though equivalent to the Latin 

 lex, but habitually used as though including the whole law, ox jus. Thus 

 — taking for illustration the famous position of Austin, that judicial deci- 

 sions are in ftict commands or expressions of the will of the State, and 

 therefore in nowise different in essential nature from laws or statutes — it 

 is obvious that the conclusion is deduced by an apparent syllogism, of 

 which the major premise is the proposition that all law is an expression of 

 the will of the State or government, and the minor, that judicial decisions 

 constitute part of the law ; from which — assuming that the term law be 

 used in the same sense in both propositions— the conclusion must neces- 

 sarily follow. But, in fact, in the major premise, it is used in the sense 

 of lex, and in the minor, in that of ^'ms. 



The same fallacy is also illustrated by the equally famous position of 

 the same writer, that custom does not constitute part of the law — the 

 argument being as follows : (1) As before: All law (Zex) is an expression 

 of the will of the State. (2) Custom is not an expression of the will of 

 the State. Ergo, (3) Custom is not part of the law {jus). 



The theory of Austin also furnishes us with a beautiful illustration of 

 the fallacy of petitio j)rindpii. For the theory is wholly deduced from 

 the definition of the law as being merely an expression of the will of the 

 sovereign, or the Supreme Government, and is tlierefore in effect assumed 

 in the definition ; while the definition itself was taken, as it were by acci- 

 dent, from Blackstone, without proof, or attempted proof of its correct- 

 ness, and as though self-evident, (m) 



The theory also presents several striking and important illustrations of 

 the fallacy of irrelevant conclusion or ignoralio elenchi — the most formid- 

 able form of which is to use an ambiguous conclusion proved true in one 

 sense as though true in all senses. Of this the most important and con- 

 spicuous examples are furnished by the reasoning of Austin upon the two 

 important subjects of justice, or rights, and of sovereignty — which will 

 be considered in the order named. 



(2) In the vocabular}^ of the Austinians, a right is defined as being a 

 mere legal power, or, in other words, a power over others, vested in any 

 one by the expressed will of the government ; and rights, therefore, in 

 this sense of the terra, are mere creatures of that will. Accordingly, 

 whatever power be conferred by the government upon any one — though 

 it be in violation of every principle of justice and morality, and even of 

 mercy or decency — it constitutes a right ; and, on the other hand, no 

 ^laim that one man may have upon another, however just, can constitute 



