"29 Thus

person has not ratified is null; it is not a law." 29 the position is taken that all authority exercised other than by warrant of the general assembly of the people is illegal, and a government thus acting has only a de facto and not a de jure existence-a position according to which there was not at the time of Rousseau's writing, nor has there been since, a State in Europe in which rebellion would have been an illegal act.

Comparing these views with those held by Hobbes and Locke, we find that, according to the former of these writers, a sovereign organ, be it a monarch or a popular assembly, is made practically identical with the sovereign State itself, and, as such, incapable of legal limitation. Thus, in all truthfulness, the absolute ruler might say that l'état, c'est moi. The agent is identified with the principal, government is confused with the State, the machine absorbs the power that moves it. Apart, however, from this confusion between State and Government Hobbes developed a substantially correct theory of law and Sovereignty, though he needlessly based it upon an illogical fiction.

Locke, though founding his system on the same fictional contract, came much nearer the comprehension of the true nature of government in his declaration of its limited delegated character, and the essentially representative capacity, of all political agents. It would also seem that at times he perceived the distinction between. the actual ultimate power of the people to condition political action, and the legal or sovereign action of the State. Thus he declares "the community may be said in this respect to be always the supreme power but not as considered under any form of government, because this power of the people can never take place till the "Two Treatises of Government, bk. III, chap. XV.

government be dissolved." 30 But his preconceived ideas of natural rights and of sovereignty as resting upon a contract make him speak in general of this ultimate right of the people as something more than a mere moral right, or as a power founded upon mere might. For the same reason he does not always sufficiently recognize that the State may be so organized as to permit sovereign action greatly opposed to public will and to public interest, and yet strictly constitutional and legal. Thus, in considering what is to be done in case an executive, to whom has been entrusted the power of calling together the legislative branch, should refuse to exercise such power, to the detriment of the people, he describes such action as "contrary to the trust put in him that does so," and as "a state of war with the people who have a right to reinstate their legislative in the exercise of their power." 31

Here the theory of a contract between governed and governing again crops out. The juristic fact is, however, that governmental agents exercise a power delegated or granted to them by the State, and not one created by a joining of their wills with those of the subjects. The only will concerned is that of the State. Public officials are, in other words, agents of the State, not of the People. They have no legal relation to the People as such, and, therefore, there can be no breach of contract with them in whatever manner they may exercise their power. If they exceed their legal competence, or are in any way guilty of non-feasance or malfeasance of office, they are punishable only by the State. Therefore, any action of theirs, however oppressive, does not, as Locke would say, ipso facto deprive them of political power, and place them "Two Treatises of Government, bk. II, p. 149. "Two Treatises of Government, bk. II, p. 155.

in a state of war with their former subjects. Such action is not even illegal if within their competence, and is as fully valid as would be the most beneficent measure. If ultra vires, however, the action is of course illegal and not an act of the State, but of the official as a private individual, and one for which he is personally responsible. But such illegality extends only to the particular act itself. It has no influence over the general public or sovereign status of such official. Rousseau is thus perfectly correct in denying that a Government is established by a

contract.

CHAPTER X

THE NATURE OF POSITIVE LAW

THE ascription of Sovereignty to the State, and the definition of Sovereignty as legal omnicompetence have made it necessary to view the State as the sole source of law in a positive or strictly juristic sense. This is a proposition which many have found the most difficult to accept of all the assertions of analytical jurisprudence and it will therefore be necessary to consider it with some degree of care, and especially is this so because of the varying meanings which are commonly attached to the word "Law."

As opposed to the description of Law as the sequences of events in the physical universe-sequences that occur without reference to and beyond the control of men's wills -the jurist uses the word as declaring a rule or principle for the governance of human action. Its characteristic in this sense is that it is capable of being expressed as a distinct proposition to rational beings in the form and character of a command. As thus conceived, a law implies that he who issues it has, or claims to have some sort of legal authority over the persons whose actions are to be controlled; that, in other words, as between him and them there is a relation of jural superiority and inferiority. Out of this relation also arises the idea of legal obligation upon the part of those to whom the commands are directed, and of legal right upon the part of those who will be beneficially interested in having these obligations fulfilled. Laws, as Austin says, are rules laid down for the guid

ance of intelligent beings by intelligent beings having authority over them. As thus defined, they include commands set by God to men, and those set by men to men. With the former, jurisprudence is not concerned. But, even with regard to the laws set by men to men, the analytical jurist is concerned only with those which are issued by men who claim a political superiority over those men whose actions are to be controlled by them. Laws, thus set, are spoken of as positive in character.

Rules of conduct not in the form of commands from a superior to an inferior, Austin continues, are rules of morality, and, though often spoken of as laws, are not properly so-called, or at least, are not properly so-called if the term law be used in its sense of a command emanating from a determinate political source. Such are the socalled laws of honor or of fashion, and other rules of conduct supported by public opinion. These become "positive" rules, though still not positive laws, when they assume the form of commands from determinate human beings but not as based upon a claim of political superiority. They become positive laws, or laws properly so-called only when there is this relationship of political superiority and political inferiority.

Thus, with reference to the recognized rules of conduct regulating the relations between States, Austin says: "These are not laws properly so-called. But one supreme government may doubtless command another to forbear from a kind of conduct which the [so-called] law of nations condemns. And, though it is fashioned on law which is law improperly so-called, this command is a law in the proper sense of the term [but not a 'positive' law]. Speaking precisely, the command is a rule of positive morality set by a determinate author. For, as no supreme government is in a state of subjection to another, the command, though fashioned on the law of nations,