When the English people passed the Reform Bill and the Americans accepted the constitution of the United States they altered very important laws,but it was precisely because they had been so thoroughly imbued with certain habits of combined action,involving the acceptance of complex legislative processes,that they were able to make changes in the less essential parts of the constitution.The 'sanction'no doubt determines the conduct of the individual.But when we ask upon what then does the sovereign power depend,we must go behind the law,and ask what are the complex instincts,beliefs,and passions which in fact bind men together and constitute the society as a moral organism.
The weak side of the 'Austinian analysis'is this transference of a legal conception to a sociological problem.
Distinctions valid and important in their own sphere become irrelevant and lead to idle subtleties beyond that sphere.What,in fact,is the sovereign?He stands for an undeniable fact.Law presupposes a state and political unity.Political order implies some supreme and definite authority which can be invoked in all controversies as to what is or is not the law.The simplest case would be an irresponsible despot who could command whatever he pleased,and whose commands would be implicitly obeyed.If he does not exist he must be invented,as Voltaire said of the Deity.He is a 'fictitious entity,'or the incarnation of legal authority.This corresponds to the truth implied in the Utilitarian polemic against the supposed balance of powers and the mixture of the three abstract forms,monarchy,aristocracy,and democracy.The existence of the state implies unity of authority and the agreement that the validity of laws shall depend upon their elaboration by definite constitutional processes.But then we have to ask,Who precisely is the sovereign?The answer would be simple in the case of the individual despot.When the sovereign is not a single man but an organised body of men,such phrases as 'will'and 'command'become metaphorical.The will is not one will,but the product of multitudinous wills acting in complex though definable ways.The sovereign is not an entity distinct from the subjects,but is composed of the subjects themselves,or some fraction of them,according to a definite set of regulations.Can the state be treated as the embodiment of an external force?Austin is greatly puzzled to say who,in a given case,is the sovereign?Is parliament,or the House of Commons,or the electoral body the ultimate sovereign of England?Who is the true sovereign in a federal government such as the United States,where sovereign powers are distributed in complex ways?The legal question,What are the recognised forms by which valid laws are nominally constructed?is again confounded with the question of fact,What are the real forces which,in fact,produce obedience?The British Constitution has been steadily altering from remote times as a certain understanding has been developed.The centre of power has imperceptibly shifted without definite legislation;and the legal theory has remained unaltered,or has only conformed to customs already established.The question,therefore,what forms must be observed in conformity to precedent or explicit legislation,is entirely different from the question,What are the really dominant forces?The crown can undoubtedly veto an act of parliament in the legal sense of 'can';whether it 'can'do so in the practical sense is a question only to be solved by saying what are the real forces which lie beneath the constitutional machinery.
I have already noticed the tendency of the Utilitarians to confuse the legal doctrine of the sovereign's omnipotence with the doctrine of his omnipotence in fact.Macaulay had sufficiently pointed out to Mill that the sovereign was limited:limited by his own character and by the impossibility of enforcing laws not congenial to the public sentiment.Austin illustrates a further result.Customs are legally invalid till recognised and sanctioned by the sovereign.That is important for the lawyer.But interpreted as a law of 'social dynamics,'it leads to the inversion by which custom is supposed to be created by the law,and the sovereign made the ultimate source of power,instead of being himself the product of a long and intricate process of development of custom.Here,therefore,is the point at which the Utilitarian view becomes antithetic to the historical.It seeks to explain the first state of society by the last,instead of explaining the last by the first.We can see,too,the main reason for this mode of conceiving the case.To Austin the reference to the underlying forces by which political society is built up seemed to be 'mysticism.'A fully developed 'law'is intelligible:the customs which grow up in the twilight before the full light of day has appeared are too incoherent and shadowy for scientific treatment.The mode of analysing all phenomena into independent and uniform atoms leads to this result.Causation itself had been reduced to mere sequence to get rid of a 'mystic bond,'and the same method is applied to social phenomena.(10)We have the difficulty which occurs so often in the Utilitarian theories.They desire on the one hand to be scientific,and on the other hand to be thoroughly empirical.The result is to divide the two spheres:to enlarge as much as possible the variability of human society in order to be 'empirical';and to regard the constituent atoms as unchangeable.
