205 



Briefly stated, his argument is that it follows, ex vi termini, from the 

 definition of the law as consisting exclusively of the commands of the 

 sovereign, that the power of the sovereign cannot be limited by law, or, 

 in his own language, "is incapable of legal limitation;" or, slated 

 syllogistically : 



(1) Whatever is limited by law is limited by the commands of the sov- 

 ereign. (2) The power of the sovereign is not limited by liis own com- 

 mands. (3) Ergo, the power of the sovereign is not limited by law. (n) 



The three principal terms here used, as we have observed, are all ex- 

 tremely ambiguous ; but in the present argument, as will be seen by ref- 

 erence to the passages cited in the note, they are precisely defined. Tlie 

 term law denotes merely the commands of the sovereign, and the term 

 sovereign, the supreme government — whether consisting of a monarch or 

 of a sovereign number — and ihe term power, actual power. The proposi- 

 tion, therefore, merely asserts that the actual power or might of the govern- 

 ment cannot be limited by its own commands. Or, as the argument is 

 expressed by liobbes in the passage cited in the note : " To the civil laws, 

 or to the laws which the sovereign maketh, the sovereign is not subject : 

 For, if he were subject to the civil laws, he were subject to himself; 

 which were not subjection, but freedom." 



In this sense ot the terms no objection can be made, either to the argu- 

 ment or the conclusion ; but the latter — which, as defined, is without ma- 

 terial significance — is habitually used by Austin and his school as equiva- 

 lent to several essentially different propositions, and hence, the argu- 

 ment, thus used, presents an example, or rather several examples, of the 

 f&W&cy oi ig nor atio elenehi ; to which it will be necessary to advert in 

 detail. 



The most important of these is that the conclusion is habitually re- 

 garded and used by the Austinians as though a successful refutation of 

 the theory to which they are opposed ; which is that the rightful power, 

 or right of the government is limited by law, in the sense of jus ; of 

 "which, as will be seen, natural right or justice constitutes a part. And 

 hence they regard as exploded, not only the proposition above stated, but 

 also the hypothesis of natural rights, and of justice, or natural right. 

 But obviously the conclusion of Austin is not tlie elenchus, or contradic- 

 tory, either of the theory of limited sovereignty, or of that of natural 

 right, but is entirely consistent with both. 



The conclusion of Austin, that the power of the sovereign is unsus- 

 ceptible of legal limitation, is expressly asserted by him to be equivalent 

 to the proposition that "every free government is legally despotic;" 

 which, he says, is "the same proposition dressed in a diflerent phrase." 

 But this is not the case ; for, accordmg to the most obvious sense of the 

 terms, to say that the government is " legally despotic" is to say that it 

 is by law vested with despotic power ; which is obviously false, and, ac- 

 cording to Austin's theory, impossible. 



The conclusion asserted is also regarded by Austin and his school as a 



PROC. AMER. PHILOS. SOC. XXXIV. 148. 2 A. PRINTED AUXJ. 21, 1895. 



