203 



a right, unless the government has signified its will that it should be 

 such. But the term a right universally carries with it, as part of its 

 essential connotation, tlie notion of Tightness, and, consequently, ex vi 

 termini, it is impossible to conceive of a right that is not just, or rightful ; 

 and hence, Austin was compelled to advance to the position that, "in 

 truth, law {i. e., the expressed will of the government), is itself the stan- 

 dard of justice." * This view he based on the proposition that the term, 

 "just, or tmjust, justice, or injustice, is a term of relative and vary- 

 ing import" — denoting merely conformity, or non-conformity, to some 

 "standard of comparison," referred to by the speaker. This stan- 

 dard maybe either (1) the will of God, as evidenced by utility, or (2) 

 positive morality, or (3) the will of the government ; and, accordingly as 

 the one or the other of these standards is referred to, the term has an 

 essentially different meaning. Hence, it may be said, with equal propri- 

 ety, that Socrates was poisoned, and Christ crucified, either justly, or un- 

 justly ; or that it is eiWxer just or unjust for one to refuse to pay an honest 

 debt, or to return a deposit, where the action of the creditor or owner is 

 barred by the Statute of Limitations. Or we may, in one sense of the 

 term, approve as just the fate of the gladiator "butchered to make a 

 Roman holiday," or the spectacle of Christians converted by Nero by 

 way of amusement into animated torches, or of the crazy act of Caligula 

 in making his horse a consul, or the marriage of Elagabulus to his cata- 

 mite. 



Of the three standards referred to, Austin holds the first, i. e., utility, 

 "as an index to the Divine Will, to be obviously insufficient;" the 

 second — positive morality — as mere opinion and therefore of no authority, 

 and, consequently, the third — the will of the government — as practically 

 the only one admissible. Accordingly, it is asserted, not only by himself, 

 but by the modern English jurists generally, that in jurisprudence, or the 

 law, the last is the standard, and the only standard referred to ; that the 

 term rights, is always used in this sense, and all other senses of the term 

 are disregarded. To this, were we considering the theory generally, objec- 

 tion might be made on the score that it is an altogether novel sense of the 

 term right, and one inconsistent with its proper and generally accepted 

 sense ; and that in thus using it, it is almost impossible either for the 

 speaker or the hearers to escape from the original connotation of the term. 

 And even the suspicion might be suggested that the term is in fact used 

 on this account, with a view of covering the innate and essential deform- 

 ity of the Austiuiau theory with the cloak of its venerable name. But 

 this, though in my opinion true, is immaterial to our present subject, 

 which is simply to expose the logical fallacy, and for this purpose it will 

 be sufficient to show — as can be very readilj' done — that the term is not 

 used consistently by the Austinian jurists in the sense in which it is 

 defined. 



The principle asserted by Austin is \\\&,i justice, in the sense he uses the 



*Jur.,22Z. 



