Jurisprudence Blogging 1: Austin

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Murali

Murali did his undergraduate degree in molecular biology with a minor in biophysics from the National University of Singapore (NUS). He then changed direction and did his Masters in Philosophy also at NUS. Now, he is currently pursuing a PhD in Philosophy at the University of Warwick.

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15 Responses

  1. Avatar Tom Van Dyke says:

    Interesting stuff, Murali.  In the US, since the people can vote out the executive &/or legislature, they retain sovereignty.  [Lifetime appointments for the judiciary are problematic; however, the US Senate is empowered to impeach and remove those who breach the law.]

    The notion of constitution-as-sovereign is interesting.  A famous book during the English Civil Wars was Lex, Rex, that is, the law is king.  That’s a good notion, as no man is above the law, but when the king was brought to heel in 1688, Parliament—the people–became the true sovereign.  Indeed, the law [or constitution] can be changed or replaced by the people via their elected representatives.  So we’re still stuck with the people as sovereign.

    However, in the US scheme, our “natural” rights are pre-political, and so the law [and the sovereignty of the people] is limited by that constraint.  James Wilson was a major Framer of the Constitution and pretty much America’s first major legal theorist.  On behalf of the American notion of government, he took on not only Edmund Burke but the granddaddy of English common law, William Blackstone, that

    “Must our rights be removed from the stable foundation of nature, and placed on the precarious and fluctuating basis of human institution? Such seems to be the sentiment of Mr. Burke: and such too seems to have been the sentiment of a much higher authority than Mr. Burke — Sir William Blackstone.” —Wilson, Of the Natural Rights of Individuals

    IOW, that under “social contract,” our rights are only what we can wrest from the government: all rights are political, not pre-political, “natural.”

    Just thought I’d throw some arcane and obsolete notions of government in here, because outside the quaint context of the American Founding, I hear so little talk of liberty in these theories of law and government.  The right to free Wi-fi seems a more pressing concern. [Or free contraception. No, no, wait—scratch that last bit.  Oy.]

     

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    • Avatar Murali says:

      Interesting stuff, Murali.  In the US, since the people can vote out the executive &/or legislature, they retain sovereignty

      I dont think that follows. Since the people do most of the obeying of laws, and  since they are the ones most directly threatened by sanctions when they disobey the law, they hardly count as an austinian sovereign.

      Just thought I’d throw some arcane and obsolete notions of government in here, because outside the quaint context of the American Founding, I hear so little talk of liberty in these theories of law and government.

      The idea here is that Austin thinks that we can sensibly talk about what the law is without saying anything about whether or not it is just or conforms to certain pre-political moral standards. I think he is right about this. So, the individual mandate even with regards to contraception may in fact pass constitutional muster (or judge’s interpretations thereof). Therefore it is the law. This would be the case whether or not it did unreasonably impingine on individual liberties.

      Another thing is that my aim here is to generalise across all systems. It may be the case that the american system employs moral principles as part of its legal framework, but that is certainly not true for all systems of law.Report

      • Avatar Tom Van Dyke says:

        IOW, that under “social contract,” our rights are only what we can wrest from the government: all rights are political, not pre-political, “natural.”

        Of course the mandate and free wi-fi or anything else under the sun are “constitutional,” if all law is conventional, that is, artificial.  Under that view, “liberty” is a non-starter, but “positive” rights are whatever the constitution says they are.

        A quick peek at the South African constituion is helpful.  Basically it’s the list of American rights we’ve grown to know and love asserted as “values,” with a nice overlay of social democrat “rights,” that is, society’s obligation to provide stuff to the individual.  I’m not terribly impressed, as it reads like a non-foundational rehash of the American vision overlaid with leftist newspeak, but hey, you can’t please everybody.

        http://www.info.gov.za/documents/constitution/1996/index.htm

        The Republic of South Africa is one, sovereign, democratic state founded on the following values:

        1. Human dignity, the achievement of equality and the advancement of human rights and freedoms.
        2. Non-racialism and non-sexism.
        3. Supremacy of the constitution and the rule of law.
        4. Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.

         

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        • Avatar D.A. Ridgely says:

          Mr. Van Dyke:

          I think perhaps you miss the point as to what positivism does and does not claim.  The positivist’s claim is that an unjust law is nonetheless a law if but only if it satisfies certain empirically discernible conditions (for Austin, to be a sovereign’s command backed by force) .  The positivist neither asserts as I take it you would nor denies that any particular law (say, antebellum laws enforcing slavery) or even an entire legal system (e.g., Nazi Germany)  violates natural rights.  Positivism, per se, is silent on the existence of natural rights or, for that matter, moral rights of any sort.  The positivist simply asserts that while pre-Civil War laws upholding slavery may well have been immoral, they were nonetheless factually laws.  In short, he distinguishes, as some philosophers of law do not, the question whether something is a law from the question whether it should be a law.

          Rest assured that legal positivism has many staunch critics.  Ronald Dworkin, for example, whom I assume Murali will eventually discuss, considers positivism’s concept of law inchoate at best and more likely incoherent insofar as it fails to account for the law’s relationship to certain moral principles. So, as the television announcer used to say, stay tuned.Report

          • Avatar Tom Van Dyke says:

            Splendid to hear from you again, my dear Mr. Ridgely.  Acknowledged infra is that if all law is conventional, then there is little in the way of constraint.

            for Austin, to be a sovereign’s command backed by force

            Doesn’t this leave us way back in Book One of Republic, that justice is in the interest of the stronger? [Neither does this preclude Italian fascism, National Socialism, or Chinese Communism from being remarkably efficient and indeed yielding the greatest good for the greatest number.  Tyranny need not be inefficient.]

            I get what you mean about the Great Lacuna here on the subject of rights, as a chimera in the positivist scheme.  However, one need not be bound to a Deity scheme to derive what might be universal values-rights.  An interesting quote from an early American Founder, who was a leading thinker before some Tory broke his head and he was never the same:

            “Government is founded not on force, as was the theory of Hobbes; nor on compact, as was the theory of Locke and of the revolution of 1688; nor on property, as was the assertion of Harrington. It springs from the necessities of our nature, and has an everlasting foundation in the unchangeable will of God.” James Otis, 1764

            I believe you can get to Murray Rothbard from here.

            As for the arrival of Dworkin and “law’s relationship to certain moral principles,” it may be possible to derive those “moral principles” from our observations of human nature, a posteriori rather than a priori assertion—in short, that man is best when he is free. [Speaking intelligibly of “liberty” being the great lacuna I see in these theories and discussions.]

             

            And again, great to “hear” your voice again.

             

             

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      • Avatar Tom Van Dyke says:

        Mr. Murali, this may be what your recent bleg on natural law was looking for.

        http://www.nlnrac.org/critics/legal-positivism

        See also the whole website: Natural Law, Natural Rights and American Constitutionalism

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  2. Avatar Erik Kain says:

    Murali – I’m going to do a quick reformat of this post. Please read these instructions and let me know if you have any questions. We need to do this in order for everything to work properly.Report

  3. Avatar Burt Likko says:

    I have a lot less of a conceptual problem with a divided sovereign than you do; and indeed, you’ve not even exposed the full extent of the American government’s complexity because you’ve not really touched on Federal versus State divisions of power, replication and overlap of subject matter jurisdictions, and the interrelationship betwen the states on one another. Checks and balances are imposed at the Constitutional level to provide durable (but ultimately malleable) means of insuring that these functionaries of the sovereign do not overstep their delimited powers. Whether the system actually works or not is perhaps a different story, but at least in theory, accountability and control are distributed both vertically and horizontally throughout the superstructure of government.

    In that light, I also think you’re giving shorter shrift to TVD’s notion that ultimately, the people are sovereign because it is they who hold the ultimately unchecked power over the rest of the system. Presidents, Governors, legislators, judges, bureaucrats, military, and police all are intermediaries between the sovereign electorate and the populace governed indirectly by them through those other governmental officials. Perhaps it’s having grown up here in such a system but it feels completely natural to me.

    Also you may want to consider a different theory of who contract law is directed at and who criminal law is directed at. In terms of criminal law, it may well be the case that the law is, in fact, directed at public officials, instructing them as to whom they should exercise the powers delegated to them by other intermediaries of the ultimate sovereign. Many criminal laws are phrased in the form of a passive-voice description of a person who is guilty of a particular crime: “Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” California Penal Code section 187(a). It’s not so hard to see that phrase as an instruction to a police officer, a prosecutor, and a judge to locate, apprehend, convict, and sentence a person whose behavior matches that description.

    As to contract law, is this not a direct exercise of their innate and sovereign power to make law? You and I enter into a contract by which I will give you my car, and you will give me ten thousand dollars. Can you concieve of this as a private law that you and I jointly created? We have instructed the court to enforce that deal between us, to give it the force and effect of other civil laws, because you and I are, ourselves, sovereigns. No one told us to make that deal, we chose to do it. The court is acting as our agent in enforcing the private law that we created.

    Just some nothing to mull over.Report

  4. Avatar D.A. Ridgely says:

    Murali! How nice to see you’ve found a blogging home with a larger audience!

    I would rephrase your conclusions, for what it’s worth, to note first that Austin was the first important philosopher of law to distinguish positive law from whatever normative value it may be deemed to have or lack; that is, he was the first legal positivist.  As you well know, legal positivism remains a controversial substantive theory of law.  Nonetheless, as you also know, it’s virtually impossible to discuss Hart (by way of Kelsen) without reference to his Austinian roots.  (Whether Hart really was a legal positivist is another matter, of course.)

    But secondly and in my opinion more importantly, Austin was the first significant analytic philosopher of law.; that is, he was the first to view the law conceptually and as a distinct subject of philosophical inquiry, not as a (usually largely ignored) secondary concern of more general political philosophy or, worse yet, in merely historical terms. American philosophers of law have not always been scrupulous in recognizing the distinction between positivism as a substantive theory and analysis as a philosophical method.  Ignoring the perfidious influence of incoherent Post Modern ‘theorists,’ even positivism’s most severe critics have been, whether they knew it or not, analytic.

    Whether Austin’s concept of a sovereign was too narrow by contemporary standards, I think it’s fair to say that for him the important thing was that there was a sovereign and that the sovereign was fundamentally the source of law because that was how he distinguished law from, well, everything that is not law.  He did overemphasize what we would call criminal and regulatory law today to the exclusion of private law (contracts, wills, etc.); and while I agree with Mr. Likko that one can conceptually account for such private law in Austinian terms. it is nonetheless true that Austin, himself, did not.

    I must confess to not being a regular reader of this blog, Murali, but I’ll try to check back more often to see what you have to say about post-Austinian jurisprudence, especially the Crits!Report

  5. Avatar Murali says:

    Thanks Everyone for the interesting comments.

    @Mr Ridgely

    Yes, I did understate Austin’s importance and influence. My mistake (I can only plead tiredness as an excuse.)

    @Messrs Ridgely, Likko  and  Van Dyke

    I will grant that Austin’s definition of sovereignty is too narrow. Possibly, under some wider notion of sovereignty the people could be sovereign. If the people are sovereign, do they ever give orders? In the case of contracts, maybe. But certainlly not in criminal law. Does voting count as giving orders to the relevant officials? (I think it really abuses the notion of orders or command to count a vote as an order.

    I can even grant that criminal law and private law can be accounted for by the same kind of description.i.e. Criminal law also consists of instructions to various officials in the courts and police departments etc. But it is certainly not the case that such orders are backed by threats.

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  6. Avatar Hume says:

    I am much more sympathetic to an Austinian view of law than most contemporary legal positivists.  I highly recommend Frederick Schauer’s recent work, especially his “Was Austin Right After All?” 23 Ratio Juris 1 (2010) and his recent Review in the Yale Law Journal of Shapiro’s Legality).  Matthew Kramer has also done much to revitalize interest in Austin (see his In Defense of Legal Positivism).

    “There is a very real difficulty in pointing out who the sovereign is…”

    There is the same difficulty in pointing out who the “legal officials” are in Hart’s jurisprudence (as well as Raz’s, for Raz cannot adequately differentiate religious officials from legal officials) without recourse to some idea of coercive superiority.  I like to think of Austin’s sovereign in more sociological terms as those group of individuals intimately connected to institutions that ‘monopolize’ coercive superiority.Report