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terra, denotes merely conformity to the will of the government, and that 

 consequently rights are mere legal or statutory powers, and therefore mere 

 creatures of the legislative v^mII ; and from this it logically follows that, 

 in this sense of the terms, there can be no such things as natural rights, or 

 natural justice, or riglit. To this — except as a matter of taste — provided 

 the terms be understood in the sense defined — no objection need be 

 urged ; but thus construed, both propositions are without significance ; 

 for the one simply asserts the identical proposition that natural rights, or 

 rights existing independently of legislation, are not rights created by law, 

 in the sense of legislation ; and the other, the natural justice or right, 

 which, ex m termini, does not refer to the will of the government as tiie 

 paramount standard, is not necessarily J^<s^ice or riglit as determined by 

 that standard. The conclusions readied, therefore, have no bearing upon 

 the real question involved ; which is : Whether there is, or is not a stan- 

 dard of justice or morality paramount to the will of the government? or, 

 in other words : Whether there are in fact, such things as natural rights, 

 and natural right or justice? Nor is there anything anywhere contained 

 in the Austinian theory that throws any light on this great and funda- 

 mental question. Yet the conclusion thus reached by Austin — which, 

 when construed according to his definitions, is a mere truism — is habitu- 

 ally understood and used by his followers — as it was by himself — as 

 though establishing the negative of the great question of the existence or 

 non-existence of natural justice, or rights, or, in other words, of the exist- 

 ence or non-existence of justice, or rights, independently of governmental 

 institution. And this is regarded as so triumphantly established, as to put 

 the question for the future beyond the pale of legitimate discussion, and to 

 relegate the doctrine of Natural Right, or of Justice, and the ineradicable 

 faith of the human race generally in the existence of natural rights, to 

 the list of exploded delusions — such — to use the illustration of Sir Henrj'' 

 Maine — as the Ptolemaic theory of the universe, or the Pythagorean 

 doctrine of the music of the spheres ; — a position wholly unjustified, and 

 which I take to be the most remarkable and striking illustration of the 

 fallacy of ignoratio elenchi presented in the history of Philosophy. 



(3) The argument of Austin in support of the doctrine of absolute 

 sovereignty has served to convince two generations of English jurists and 

 philosophers, and is fondly regarded by the existing generation, as an im- 

 pregnable foundation upon which that theory may securely rest. On this 

 account, whatever be our views with regard to the doctrine, the argument 

 demands of us a most serious and careful examination. For, on the one 

 hand, if it be valid, it has in fact recreated political science, and thus, as 

 the Austinian jurists claim, rendered it necessary for us definitely to 

 abandon, not only the doctrine of limited sovereignty, but also many 

 other almost universal delusions. On the other, before accepting his 

 paradoxical views, it behooves us to assure ourselves that the argument 

 used to establish them is at least logically conclusive, and that we be not 

 misled by merely verbal fallacies. 



