GUIDE TO THE PHILOSOPHY 1938 - 1947.pdf - Rare Books at ...

538
POLITICS
to command in different spheres for special purposes.
Thus it authorizes Parliament to command in the sphere
of law-making; the civil service in the sphere of law*
the judges in that of law-determining; the
police in that of law-enforcing. Parliament, in other
words, makes the law, the civil servant applies it, the
judge says what it is, and the policeman enforces it. (I
do not wish to suggest that these various officers of the
community do not exercise other functions; I am concerned
merely to point out that, in relation to law, they all do
exercise functions, and different functions.) The essence
"
of Austin's answer to the question, Where in a community
does Sovereignty reside? ", is that it resides in those bodies,
institutions and persons in which or whom the law of the
community places control for different purposes. But if
we ask the further question, by virtue of what authority
does the law authorize this person or that body to command
obedience in his or its appropriate sphere, or, to
put the point in another way, who or what authorizes
the law to vest authority in different bodies and persons
and bodies, no satisfactory answer is given. Nor, indeed,
on Austin's theory, is a satisfactory answer possible, for
the theory is, in the last resort, a circular one, as may be
seen by testing it with a series of questions. Parliament,
we are told, exercises Sovereignty in the sphere of lawmaking
because it has been established by law for this
purpose. Who, then, gives the law authority to establish
Parliament for this purpose? Answer, Parliament, which
is the law-maker. Who, then, authorizes Parliament to
be the law-maker? Answer, the law. The purport of these
questions is to show that any theory which seeks to derive
Sovereignty from law must answer the question, "Why do
men obey the law? " The answer, whatever form it takes,
reveals the fact that that authority is really sovereign in
a community by
reason of whose existence citizens do
in the last resort obey the law. If, however, the theory is
content to regard the law as that which authorizes the
Sovereignty of some person or body, the question must be