The all-important distinction between positive law and positive morality . . . needs to be constantly held up and enforced among us. For the confusion of these two distinct conceptions is one of the greatest dangers to which a democracy is liable. Our reformers of the present day aim to obtain reform not so much through and in the law as over and in defiance of it. Of the law itself, they have frequently the greatest ignorance, and not seldom joined with the contempt which naturally accompanies ignorance. The work of legislation is, moreover, abandoned by us to inferior men, who are for the most part incapable of understanding, much less of framing, a law. The people thus tend to separate into two classes, one of which urges and applauds the violation of any law in favor of their ideas of morality, the other of which looks upon all past laws with stupid reverence, and obstinately opposes all change, however loudly called for by the voice of reason and humanity.
(Review of The Province of Jurisprudence Determined, Being the First Part of a Series of Lectures on Jurisprudence, or, the Philosophy of Positive Law, by John Austin; and Lectures on Jurisprudence, Being the Sequel to “The Province of Jurisprudence Determined.” To Which Are Added Notes and Fragments Now First Published from the Original Manuscripts, by John Austin, The North American Review 100 [January 1865]: 246-53, at 253 [ellipsis added])
