quent chapter; for which also I reserve the question whether the rules regulating the appointment and co-operation of the persons forming the supreme government-what we ordinarily call constitutional law-are properly termed, as Austin terms them, a "department of morality." But this preliminary discussion has seemed necessary to explain why, while I adopt substantially Austin's conception of the relation of Law to Government, as applied to the civil law of a modern political community in its latest stage, I prefer in stating it to avoid the difficulties of Austin's notion of sovereignty. The question "where supreme power ultimately resides" is one that it is most important to ask with regard to any political society: but it is a question that would be answered very differently in the case of different communities having apparently the same form of government, and very differently for the same community at different times, without any change in the form of government and the discussion of it in the form appropriate to the present work will come more fitly after we have considered in detail the proper constitution of the different organs of government.

In the first part of our inquiry, then, which relates to the functions of government, it will be enough to assume that in the society with which we are concerned there are one or more persons or bodies, which we may call "highest" or "supreme" organs of government, in the sense that they do not habitually obey the commands of any other person or body, in the ordinary discharge of their functions: and that any commands they issue-in the sphere of their proper functions—will be habitually obeyed by the bulk of the community in all matters affecting the private rights and obligations of the members of the community; so that they are able to bring the whole force of the community to crush any openly recalcitrant member. I shall assume that these organs co-operate harmoniously, keeping each to his proper sphere, so that we may habitually speak of them as one Government: and, finally, I shall assume that the Laws with which we are concerned, in our theory of legislation,

are rules, which if they have not actually emanated from the resolutions of the supreme government may at any rate be regarded as having its approval, being maintained by penalties inflicted by its authority. It is the connection of Law with Government on the one hand and Penalty on the other, which appears to me to constitute the most vital part of Austin's view: and to this I adhere-understanding the connection in either case to be taken as normal, and approximately universal in a well-ordered community, not as absolutely universal.1

§ 3. In the preceding discussion I have distinguished "civil" from "constitutional" law as the body of rules determining the (legal) rights and obligations of private members of the community as such in their relations to each other. But the terms used in this definition, though current and familiar, require some further explanation in order to make their import as clear as possible.

Let us begin by considering the term "legal obligation." By this we express the relation of a general rule or command, enforced by the authority of government, to the member or members of the community whose civil conduct it is intended to control. The law is conceived as exercising a certain constraint on the will of such person or persons; and it is this constraint that the term "obligation" expresses. A similar constraint is exercised in the case of "moral obligations" by the conscience of the individual who lies under the obligation, and the moral opinion of the community of which he is a member.2

It is not quite so easy to see what is meant by the term "legal right"; and perhaps the most convenient way of

3

1 See Chapter xiii. I may repeat that the word "Penalty" is to be understood in a wide sense, to include negative as well as positive penalties, and 'damages" as well as punishment proper.

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* The distinction-and possible divergence in particulars-between what any individual believes to be moral truth, and the moral opinion of his society, must always be borne in mind.

3 The difficulty of defining "a right" is increased by the fact that while we recognise in ordinary discourse that there are moral as well as legal rights, and that the two kinds of rights are not always coincident, we still frequently

making this clear is to examine the relation of Rights to Obligations according to the ordinary use of both terms. little reflection will show that we cannot conceive Rights of any one individual without corresponding Obligations imposed on others. Thus A's right of property in any material thing necessarily implies obligations imposed on B, C, D, etc., to abstain from interfering with A's use of the thing: similarly any right to services that A may have in consequence of a contract implies that the other party to the contract is under an obligation to render the services: so again, if a child has a right to education, some one is under an obligation to educate it. It is not, however, similarly clear that the imposition of Obligations on one or more individuals always involves the granting of Rights to other persons. Consider (e.g.) the legal obligation on Englishmen to abstain from suicide, vagrancy, or keeping gambling-houses: there do not appear to be in these cases- -as in those just consideredany definite Rights belonging to assignable individuals which are violated if the obligations are not fulfilled. Still, when we reflect on the interest that the community at large has in the observance of the laws in question, it does not seem strained to say that the community has a right to their observance.

Comparing these cases, I arrive at the conclusion that "a right" is really an obligation regarded from a different point of view i.e. regarded in relation to the person to whom the obligation is intended to be useful. In the case of such rights as the right of property, the rule which binds or obliges the members of the community to abstain from interfering with the owner's use of the appropriated thing has at the same time the effect of securing or protecting the owner's freedom of action in respect of the thing in question: and hence some thinkers have conceived a "Right" as being essentially "secured or protected liberty." But there are other cases to which this definition clearly would not apply:

speak of "rights" without clearly distinguishing which of the two we mean. At present I am concerned with legal rights; but the definition that I propose to give may easily be applied, mutatis mutandis, to moral rights.

e.g. when a child is said to have a "right to education" there is no liberty secured to the child, but merely an obligation imposed on other persons of rendering it certain positive services.1

In speaking, then, of "rules determining rights and obligations of private members of the community as such," I mean rules imposing obligations on private persons either in the interest of other individuals or in the interest of the community at large, considered as an aggregate of private individuals. That is, I mean to exclude (a) obligations imposed on members of the government in the interest of private persons, and (b) obligations imposed on private persons in the interest-so to say-of Government: i.e. in order to enable Government to perform its work efficiently. The distinction thus drawn enables us to separate the discussion of the work that Government has to do from the discussion of the methods and instruments by which the work should be done. It will be somewhat further developed in the next chapter.

1 Some writers hold that a legal right implies that the person who is said to have the right must be able to obtain, by a legal process, redress or punishment from any violation of his right. I agree that such redress or punishment must be somehow obtainable-otherwise the rule professing to determine the right would not deserve the name of a law: but it does not seem to me necessary that the individual whose right is violated should himself have the right of suing or prosecuting the violator: it seems to me better to regard this latter as a secondary and additional right, which is ordinarily given for the better security of the first, but may in some cases be withheld. Thus I should say that a destitute pauper had a legal right to relief in England, because the poor-law officials are liable to punishment if they refuse him relief, though the pauper himself cannot sue or prosecute them.

2 It should be observed that this distinction does not altogether correspond to the generally accepted distinction between Private and Public Law. According to this latter distinction Criminal Law is placed with Constitutional Law under the head of Public Law: but I conceive that, from a political point of view, the prohibitions of certain acts as crimes must be included among the rules determining the rights and obligations of private individuals as such. The allotment of punishment for such acts I regard as one of the methods by which Government accomplishes its primary work of maintaining these rules in force.

CHAPTER III

THE GENERAL PRINCIPLES OF LEGISLATION

§ 1. IN the preceding chapter we have been concerned with the general definition of Positive Law, or Law in the strict political sense, in which we speak of the "law of the land,” which judges and magistrates are appointed to administer and enforce; as distinct from other kinds of recognised rules of conduct, such as those contained in the moral code, the code of honour, the code of social behaviour,which are also in a looser sense called moral laws, laws of honour, social laws. Law, in the sense in which we are primarily1 concerned with it, is a body of rules intended to control the conduct of the governed, which may be regarded as imposed by Government on the governed: since, though they have not actually been laid down by the persons or bodies of persons whose orders are habitually obeyed by the rest of the community, they are liable to be modified by such persons or bodies, and any resistance to them may be expected to be overborne by the force which the habitual obedience of the community places at the disposal of such governing persons or bodies. This general definition of law must of course apply to good and bad laws alike it is concerned not specially with laws as they ought to be, but as they must be; or, to put it otherwise, it states the characteristics which, in accordance with usage, we agree to consider essential to the right application of the term “law,"

1 The propriety of the phrase "international law," will be discussed later. See Chapter xvii.