A New School of Jurists 15 



view of the condition of law at the time, Austin naturally in- 

 clined to the imperative theory, and laid down its general prin- 

 ciples almost in the very words of Blackstone. A law, in the 

 most general sense, is, he says, "a rule laid down for the guid- 

 ance of an intelligent being by an intelligent being having power 

 over him." 1 Jurisprudence has to do with rules set by men to 

 men, provided they are established by determinate political su- 

 periors. 2 He requires a state as a condition of positive law ; for 

 a law, being a command, must proceed from a determinate source 

 and must be sanctioned. 3 Accordingly he defines positive law as 

 ''the aggregate of rules set by men as politically superior to men 

 as politically subject." 4 This is simply a thorough carrying out 

 of the notion we have traced from the beginnings of jurispru- 

 dence in the writings of jurists living in periods of legislative 

 activity. Its defects are now well understood. Not only does it 

 fail when applied to the law of archaic communities, but it re- 

 quires an over-ingenious theory of implied command to account 

 for the large traditional or customary element still to be found' 

 in developed systems. Nevertheless it must be admitted to rep- 

 resent what law is largely coming to be, especially where the 

 common law itself is in force by the express terms of a statute. 5 

 The point most directly vulnerable is the notion that rules of 

 law must be prescribed or set by the sovereign. We may under- 

 stand such a doctrine when we find it still put forward by one 

 who believes that rules of morals are to be taken from a spirit- 

 ual sovereign and rules of law from a temporal sovereign. 6 We 

 may expect to find it still asserted by those who cling to eigh- 

 teenth century dogmas and refer the source of all things to some 

 agreement or consent on the part of the "people." 7 But to one 



1 Jurisprudence (3 ed.), 88. 



"Ibid , 89. 



*Idid., 90-91. 



*Lbid., 98, student's ed. (Campbell), 86. 



5 See, for instance, Comp. Slat. Neb., chap. 15#. Compare Jenks, Law 

 and Politics in the Middle Ages, 2; Rattigan, Jurisprudence, sec. 2; Bris- 

 saitd, Manuel d'histoire da droit Francais, 21. 



6 Vareilles-Sommieres, Principes fondamentaux de droit, 12. 



7 "A rule agreed upon by the people, regulating the rights and duties of 

 persons." Andrews, American Law, sec. 72. This agreement of the people 



263 



