1 6 Roscoe Pound 



who investigates the actual facts of existing- systems it is impos- 

 sible. The will of the state, or, if one likes, the will of the people 

 is not always expressed in imperative form. The state may be 

 passive. It may suffer old practices to continue or may continue 

 to protect or require them, without any express declaration on 

 the subject. Rules of. law are administered by the courts, and 

 the courts have been established by the state. This does not 

 mean, however, that the state has established or prescribed the 

 rules. These considerations must have led in time to an over- 

 hauling- of Austin's theories had nothing happened to bring 

 them suddenly in question. But contact of English lawyers with 

 a living body of archaic law in India gave England a historical 

 school of jurists and hastened the result. Hence Holland (1880) 

 made a distinct advance in substituting the idea of enforcement 

 by the sovereign. 1 The next improvement was to limit the for- 

 mula to those rules enforced in the administration of justice. 2 

 Finally, we owe to Salmond a suggestion which serves tersely 

 to reconcile the analysis of modern systems with the facts of 

 legal history. He defines law as "the rules recognized and acted 

 on in courts of justice." 3 If we substitute or for and, we have a 

 formula which accords' also with the circumstances of archaic 

 law, since before the rise of the state as the active agent in put- 

 ting down private war, law is something recognized in the ad- 

 ministration of justice ; and it continues to be merely recognized 

 until the state becomes strong enough to take it up and enforce 

 it. International law to-day is a system recognized by states. 



and Austin's command of the sovereign are the same; each exists, as to the 

 traditional element of the law by implication only. The one author looks to 

 an ultimate moral source, the other to the immediate practical source of the 

 sanction upon which both have fixed their attention. 



1 "A general rule of external human action, enforced by a sovereign polit- 

 ical authority . " Jm isp ru den ce , chap . 3 . 



2 " The sum of the rules administered by courts of justice." Pollock and 

 Maitland, Hist. Rn%. Laiv (1 ed.\ xxv (1895). " The sum of the rules of 

 justice administered in a state and by its authority." Pollock, First Book 

 of- Jurisprudence, 17 (1896). Compare formulas of Tha}'er (4 Harv. Law 

 Rev., 153), Gray (6 Harv. Law Rev., 24 s ), and Dicey (Lazvofthe Constitu- 

 tion, 23)', which approach this phase of the analytical definition. 



3 Jurisprudence, sec. 5 (1902). Compare his earlier statement: "The ag- 

 gregate of principles or rules recognized or acted on by the state in the admin- 

 istration of justice." First Principles of Jurisprudence, 77 (1893). 



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