Austin was clearly right in pointing out the difference;and scientific thinkers,before and since his time,have had to struggle with a fallacy,singularly tenacious of life.A 'law of nature'in the scientific sense is not a law in the jurist's sense.The difference may be regarded in another way The two senses of law differ as a 'command'differs from a proposition;the imperative from the indicative mood.The command,'Do not murder,'is not a simple proposition.It belongs rather to action than to belief.It utters a volition and therefore creates a fact,instead of simply expressing a truth.Yet a command is also a fact,and may be regarded as part of the general system of fact.The command,'Do not murder,'implies the fact,'murder is forbidden.'We might show that in certain social conditions murder becomes punishable by death.That is a property of society at certain stages.If the social machinery worked with perfect accuracy,it would be as much a law of nature that a society kills murderers as that a wolf kills lambs or that fire burns straw.From this point of view,then,a 'law proper'falls under the conception of a 'law of nature,'though a law of nature is not a 'law proper.'It is a law of nature in the making,or a law of nature which is only fulfilled when a number of complex conditions of human conduct are satisfied.Austin,denying that free-will means a really arbitrary element,would no doubt have admitted that the 'law proper'was a product of the general laws (in the scientific sense)of human nature.This aspect of the case,however,passes out of sight.The law is something created;'set,'as he calls it,or laid down by the sovereign at his own will,and is thus perfectly arbitrary.That is the ultimate fact,and makes a radical difference.We stop at the 'command,'and do not ask how the command itself comes into existence.This corresponds to J.S.Mill's distinction between 'making'and 'growing.'Law belongs to the region of 'making.'It originates in the will of the sovereign.Whatever he wills and 'sanctions,'and nothing else,is therefore law in the proper sense of the term.
Another class of 'laws'is excluded by the definition.A'custom'is not a law proper.I obey many rules,which are not 'commands'and not enforced by legal sanctions.I conform to countless rules of conduct,though no assignable person has ever made them,and though the sovereign will not punish me for breaking them.In such rules the disapproval of society may act in the same way as a sanction,though not annexed by a sovereign.
The resemblance may pass into identity.Customs become laws,as they receive the sanction of the legislator or of the courts.
This includes Bentham's 'judge-made'law;and Austin diverges from Bentham by recognising this as a legitimate mode of legislation.The question then arises whether the distinction between laws and customs is essential or superficial --a real distinction of kinds or only important in our classification.
From the lawyer's point of view,again,the importance is obvious.He always wishes to know precisely at what point the law can be brought to bear.whether a rule will be enforced by the courts,or generally Under what circumstances a custom will be accepted as a law.The answer necessarily leads to much legal subtlety.The custom may be treated as constructively a law.The sovereign has not actually made nor 'sanctioned'it;but virtue has somehow gone out of him by implication,and his recognition is equivalent to imposition of the rule.Though the 'sovereign'has not really 'made'the law,he may be considered as having made it by a metaphysical fiction.In this direction Austin becomes the twelfth century schoolman,and has to split hairs to force his definition upon the facts.The inquiry,though necessary from the lawyer's point of view,becomes irrelevant from the sociologist's.The social action is the same,whether the rule obeyed be a custom or a law strictly so called.
Confusion therefore follows when the question of legal validity is substituted for the question of real efficacy.Primitive societies obey implicitly a variety of elaborate 'laws'or 'customs,'though they have no conception of legislation.The obedience to the rule is instinctive,and the rule regarded as absolutely unalterable.Are such rules 'laws'--though not made by a sovereign --or mere 'customs,'though obeyed as strictly as the most effective 'laws'?Austin answers consistently that they are not laws at all.There are people,he says,in 'a state of nature,'(4)such as the savages in New Holland or North America.
