HARVARD LAW REVIEW [ Vol.7I I do not think any mistake is committed in believing that Bentham and Austin's error in formulating improperly and too simply the problem of the relation of law and morals was part of a larger error that led to the command theory of law. I think the connection between these two errors can be made clear if we ask ourselves what would have happened to Austin's system of thought if he had abandoned the command theory One who reads Austin's Lectures v and VI cannot help being impressed by the way he hangs doggedly to the command theory, in spite of the fact that every pull of his own keen mind as toward abandoning it In the case of a sovereign monarch law is what the monarch commands. But what shall we say of the“ laws"of succession which tell who the“ lawful” monarch is? it is of the essence of a command that it be addressed by a superior to an inferior, yet in the case of a"sovereign many say, a parliament, the sovereign seems to command itself since a member of parliament may be convicted under a law he him self drafted and voted for. The sovereign must be unlimited in gal power, for who could adjudicate the legal bounds of a su- preme lawmaking power? Yet a"sovereign many"must accept the limitation of rules before it can make law at all. Such a body can gain the power to issue commands only by acting in a"cor- porate capacity"; this it can do only by proceeding"agreeably to the modes and forms""established and accepted for the making of law. Judges exercise a power delegated to them by the su- preme lawmaking power, and are commissioned to carry out its "direct or circuitous commands. Yet in a federal system it is the courts which must resolve conflicts of competence between the federation and its components All of these problems Austin sees with varying degrees of plicitness, and he struggles mightily with them. Over and over again he teeters on the edge of an abandonment of the command theory in favor of what Professor Hart has described as a vic that discerns the foundations of a legal order in"certain funda mental accepted rules specifying the essential lawmaking pro- cedures. "Yet he never takes the plunge. He does not take it be- cause he had a sure insight that it would forfeit the black-and- white distinction between law and morality that was the whole object of his Lectures-indeed, one may say, the enduring ob- 10 I AUsTIN, LECTURES ON JURISPRUDENCE I67-34I(5th ed. I885)HARVARD LAW REVIEW I do not think any mistake is committed in believing that Bentham and Austin's error in formulating improperly and too simply the problem of the relation of law and morals was part of a larger error that led to the command theory of law. I think the connection between these two errors can be made clear if we ask ourselves what would have happened to Austin's system of thought if he had abandoned the command theory. One who reads Austin's Lectures V and VI 10 cannot help being impressed by the way he hangs doggedly to the command theory, in spite of the fact that every pull of his own keen mind was toward abandoning it. In the case of a sovereign monarch, law is what the monarch commands. But what shall we say of the "laws" of succession which tell who the "lawful" monarch is? It is of the essence of a command that it be addressed by a superior to an inferior, yet in the case of a "sovereign many," say, a parliament, the sovereign seems to command itself since a member of parliament may be convicted under a law he him￾self drafted and voted for. The sovereign must be unlimited in legal power, for who could adjudicate the legal bounds of a su￾preme lawmaking power? Yet a "sovereign many" must accept the limitation of rules before it can make law at all. Such a body can gain the power to issue commands only by acting in a "cor￾porate capacity"; this it can do only by proceeding "agreeably to the modes and forms" established and accepted for the making of law. Judges exercise a power delegated to them by the su￾preme lawmaking power, and are commissioned to carry out its "direct or circuitous commands." Yet in a federal system it is the courts which must resolve conflicts of competence between the federation and its components. All of these problems Austin sees with varying degrees of ex￾plicitness, and he struggles mightily with them. Over and over again he teeters on the edge of an abandonment of the command theory in favor of what Professor Hart has described as a view that discerns the foundations of a legal order in "certain funda￾mental accepted rules specifying the essential lawmaking pro￾cedures." Yet he never takes the plunge. He does not take it be￾cause he had a sure insight that it would forfeit the black-and￾white distinction between law and morality that was the whole object of his Lectures - indeed, one may say, the enduring ob- 10 I AUSTIN, LECTURES ON JURISPRUDENCE I67-34I (5th ed. I885). 640 [Vol. 7