Their life,in Hobbes's famous phrase,is 'solitary,poor,nasty,brutish,and short.'Their laws correspond to mere 'positive morality or the law set by public opinion,'which is necessarily so uncertain that it cannot serve as a complete guide of conduct,nor can it be sufficiently minute or detailed.(5)Savages,it seems,form herds not societies,and may be simply left out of consideration by the philosophical jurist.Austin,of course.could not be expected to anticipate more recent investigations into archaic institutions;but he was unlucky in thus summarily condemning them by anticipation.In any case the position indicates an important gap in his system.What was the legal bond which converted the herds into political societies?The problem of the formation of society had been solved not by historical inquiry but by the 'social contract theory.'Austin follows Bentham and Hume.They had shown conclusively not only that the contract was a figment historically,but that it could not supply what was wanted.It professed to add the sanctity of a promise to the social bond,whereas the sanctity of a promise itself requires explanation.The theory simply amounted,as Bentham had urged,to a roundabout way of introducing utility.Any sort of contract,as Austin urges,(6)presupposes a formed political society.Clearly it cannot otherwise be a contract in his sense --an obligation enforced by a sanction --when it is itself to be the foundation of sovereignty or sanctions.Austin therefore rejects contemptuously the doctrine of natural law accepted by his German teachers.The theory that there is somehow or other a body of law,deducible by the pure reason,and yet capable of overriding or determining the 'law proper,'is his great example of ontological 'jargon'and 'fustian.'Austin's disciples hold(7)that his main service to the philosophy of law was precisely his exposure of the fallacy.The 'Natur-Recht'is 'jargon.'It is most desirable to discuss ideal law as meaning the law which it would be useful to adopt;but to speak as if it had already some transcendental reality is to confuse 'ought'with 'is'or,as Austin would say,the question of utility with the question of actual existence.The 'natural law'corresponds to the legal fictions denounced by Bentham,under which,when really making law,judges pretended to be only applying an existing law;and to the theories attacked in the Anarchical Fallacies,according to which this ideal law could override the actual law.Austin's polemic was no doubt directed against a theory fertile in confusion and fallacies.
Still the social contract,though exploded,leaves a problem for solution.Somehow or other the social organism has been put together,or,in Austin's phrase,the sovereign has come into existence.To explain this is the sociological problem.Austin recognises a difficulty.Generally speaking,he says,'the constitution of the supreme society has grown.'(8)It should then,we might expect,be studied like other growths,as the physiologist studies the growth of plants and animals and tries to formulate the processes.Austin,however,protests by anticipation.He does not use the 'fustian but current phrase,'Growth,to cover anything mysterious.He only means that governments have in fact been put together by unsystematic processes'--'by a long series of 'authors'and 'successive sovereigns.'They did not,that is,spring ready-made from the hand of a supernatural legislator,but they were made by a series of patchings and cobblings carried out by ignorant and short-sighted rulers.The 'growing,'then,was really 'making,'however blundering and imperfect.Thus we have no 'mystical'social bond.Society has been constructed all along by the same method.The ultimate cause has always been,the perception of the utility of political government,or the preference by the bulk of the community of any government to anarchy.'(9)The theory thus appears to be that men in fact made such an agreement as the social contract supposes,though the agreement had not the force of a contract.Men have always seen,as they see now,that government is useful;and thus 'perception of utility'(not utility simply)is the sole force which holds society together and supports the sovereign and the sanctions.
A practical lawyer has little concern with savages and the origin of civil society.Austin's principles,however,apply to the modern society also.Law,as he seems to think,excludes or supersedes custom,so that the whole fabric of the state is entirely dependent upon the 'sovereign,'and the social union upon the 'perception of utility.'As a rule,one might observe,the question hardly arises.Men accept the social constitution into which they are born,because they can't help it.They never ask whether it is useful because they have no alternative of joining or separating.I may ask whether I shall belong to this or that club;but no one can choose whether he shall or shall not be a member of society.This leads to the point already noticed under Bentham.Custom is not really the creature of law,but law the product of custom.The growth of a society does not imply the disappearance of instinct,but implies on the contrary that certain fundamental instincts and the corresponding modes of action have become so thoroughly settled and organised that the society is capable of combining to modify particular regulations.
