expression of the nature of the lawgiver; and (h) sets forth the condition or conduct in the subjects, which is requisite for harmony with that nature. Any so-called law, which fails to represent the nature of the governing power, soon becomes obsolete. All law that is permanent is a transcript of the facts of being, a discovery of what is and must be, in order to harmony between the governing and the governed. In short, positive law is just and lasting only as it is an expression and republication of the law of nature.
Diman, Theistic Argument, 106, 107: John Austin, although he ?rigorously limited the term law to the commands of a superior,? yet ?rejected Ulpian?s explanation of the law of nature, and ridiculed as fustian the celebrated description in Hooker.? This we conceive to be the radical defect of Austin?s conception. The Will, which natural law proceeds from, is conceived of after a deistic fashion, instead of being immanent in the universe. Lightwood, in his Nature of Positive Law, 78- 90, criticizes Austin?s definition of law as command, and substitutes the idea of law as custom. Sir Henry Maine?s Ancient Law has shown us that the early village communities had customs, which only gradually took form as definite laws. But we reply that custom is not the ultimate source of anything Repeated acts of will are necessary to constitute custom. The first customs are due to the commanding will of the father in the patriarchal family. So Austin?s definition is justified. Collective morals
( mores ) come from individual duty ( due ); law originates in will. Martineau, Types, 2:18, 19, Behind this will however, is something which Austin does not take account of, namely, the nature of things as constituted by God, as revealing the universal Reason, and as furnishing the standard to which all positive law, if it would be permanent, must conform.
See Montesquieu, Spirit of Laws, book 1, sec. 14 ? ?Laws are the necessary relations arising from the nature of things. There is a primitive Reason, and laws are the relations subsisting between it and different beings, and the relations of these to one another. These rules are a fixed and invariable relation. Particular intelligent beings may have laws of their own making, but they have some likewise that they never made. To say that there is nothing just or unjust but what is commanded or forbidden by positive laws, is the same as saying that before the describing of a circle all the radii were not equal. We must therefore acknowledge relations antecedent to the positive law by which they were established.? Kant, Metaphysic of Ethics, 169-172 ? ?By the science of law is meant systematic knowledge of the principles of the law of nature ? from which positive law takes its rise ? which is forever the same,
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