Jurisprudence Blogging 1: Austin
This is the first in a series of posts about general jurisprudence. In this post, I will cover Austin’s view. I will give a simple overview on what his views are, what is good about them and what is bad. Inevitably, this would involve an exploration of some of Hart’s work in the concept of law. Nevertheless, I will try to keep this post as much as possible to a discussion of Austin’s views. As to the approach of evaluation, our concept of law must be good enough to cover all the non-controversial instances of law and non-law. As I have been getting lazy, I will give you Austin’s theory of Law direct from the Stanford Encyclopaedia of Philosophy.
As to what is the core nature of law, Austin’s answer is that laws (“properly so called”) are commands of a sovereign. He clarifies the concept of positive law (that is, man-made law) by analyzing the constituent concepts of his definition, and by distinguishing law from other concepts that are similar:
- “Commands” involve an expressed wish that something be done, combined with a willingness and ability to impose “an evil” if that wish is not complied with.
- Rules are general commands (applying generally to a class), as contrasted with specific or individual commands (“drink wine today” or “John Major must drink wine”).
- Positive law consists of those commands laid down by a sovereign (or its agents), to be contrasted to other law-givers, like God’s general commands, and the general commands of an employer to an employee.
- The “sovereign” is defined as a person (or determinate body of persons) who receives habitual obedience from the bulk of the population, but who does not habitually obey any other (earthly) person or institution. Austin thought that all independent political societies, by their nature, have a sovereign.
- Positive law should also be contrasted with “laws by a close analogy” (which includes positive morality, laws of honor, international law, customary law, and constitutional law) and“laws by remote analogy” (e.g., the laws of physics). (Austin 1832/1995: Lecture I).
Austin also wanted to include within “the province of jurisprudence” certain “exceptions,” items which did not fit his criteria but which should nonetheless be studied with other“laws properly so called”: repealing laws, declarative laws, and “imperfect laws”—laws prescribing action but without sanctions (a concept Austin ascribes to “Roman [law] jurists”) (Austin 1832/1995: Lecture I, p. 36).
What is wrong/problematic about austin?
1. The generality of the commands.
Fairly straightforwardly, a general command for everybody to X on pain of punishment is a law while a speecific command for John Smith to do X would not count as a law. Austin’s theory does not really account for the difference. Of course, with a minor modification, this could be solved. There are, however, more serious problems
2. Who is the sovereign?
There is a very real difficulty in pointing out who the sovereign is in more modern constitutional democracies. I will use the american system as a model because it is quite complicated. Here are some candidates
- The People
- The legislature
- The executive
- The judiciary
- The constitution
- The legislature, executive and judiciary are jointly sovereign.
- Some other combination of the above are jointly sovereign
Very straightforwardly, the constitution cannot be the sovereign because the constitution is just a piece of paper. Papers do not give commands, persons (or bodies of persons) do. We can also rule out the “people”. The People end up obeying a lot of coercive commands, whether those are individual mandates to buy health insurance or injunctions against violence and theft. The legislature seems like a good candidate since it seems to be giving all the orders, but both the executive and the judiciary over-rule the legislature. The executive, however can also be over-ruled by the legislature and the judiciary. The judiciary is looking like a good candidate for sovereignty in the US. Noone can really over-rule the Supreme court, except that it is that the judiciary does a middling job of binding itself to the constitution as they interpret it and a supermajority in the legislature can change the constitution. But still, I suppose that if the supreme court were to throw down and ignore a new constitutional amendment (or interpret it so narrowly that they might as well ignore it), no one would be able to do anything about it (I’m sure liberals, libertarians and conservatives all have their own pet examples). Except that the executive nominates supreme court judges and the legislature confirms those nominations. Of course it is an open question as to how much that really checks the judiciary.
Of course, in parliamentary systems, things are simpler. The legislature is sovereign. The executive is formed from the legislature and the judiciary is subordinate (even though in practice they get a fair bit of latitude). Except that the head of state (queen/president) even though possessing a mostly ceremonial role.
Would it be worthwhile considering if the judiciary, the legislature and the executive were jointly the sovereign? Possibly, except that we wouldn’t be able to make sense of laws allowing one branch to limit the other. Can the sovereign give an order to itself? It would have to be one of the three branches. In at least the American system the most likely candidate looks like the judiciary. However, that would only be the case if the nomination and confirmation process failed to effectively limit the judiciary.
Anyway, let’s just chalk this up to a maybe. The US itself may have a sovereign, but surely it’s conceptually possible for a system like the US to exist in which the judiciary was more constrained. For example, as per the wet dreams of Newt Gingrich, if the legislature could impeach a sitting member of the supreme court, then it would not be clear who the sovereign is. It is possible that there may be no true sovereign at all. Yet, even then, we certainly wouldn’t want to claim that the US had ceased to have any laws would we?
3. Continuity of the law
Let us leave aside the complicated example of modern systems and look at certain hypothetical Hobbesian political systems. In absolute monarchies, the king is sovereign. In absolute monarchies, there is often a rule of succession to designate the political heir. The rule of succession may be made when the old king is still alive, but it only kicks in when the old sovereign is dead. It also has to kick in before the heir becomes king (and thus the sovereign). It is in virtue of the rule of succession that the heir becomes king. If that is the case, then the rule of succession must have the force of law. But who is that gives the command in virtue of which said command becomes law? The dead sovereign who is not around to fulfill the threat that supposedly backs such orders? Or is it the sovereign to be whose legal authority is founded on such orders?
Let’s say that neither is the case. The rule of succession does not really have the force of law. What is it that determines the next sovereign? Power? How is it that the heir in waiting often just gets the power? If rules of succession are just words in the air, how is it that we are often able to distinguish between “lawful” successions and coups.
Three great men: a king, a priest and a rich man. Between them stands a common sellsword. Each great man bids the sellsword kill the other two. Who lives? Who dies? Power resides where men believe it resides. It's a trick, a shadow on the wall
Varys of course hints at the correct answer. But that correct answer will not be discussed here. Let me leave something for next week. For now, here is a hint: It has something to do with the concept of legitimacy. The notion of legitimacy needs more extensive treatment and so, will not be done in this post.
4. Contracts and Nullity
Contract law is a significant body of law that is obviously law, yet doesn’t fit very well into the framework of coercive commands. There are of course some aspects of contract law which are coercive. There are parts of contract law that provide for an injunction for one party to fulfill his end of the bargain, the failure of which results in sanctions against the defaulter. This is not always the case. Often, default on the part of one party results in the nullification of the contract. However, nullification is not coercive. What does nullification involve? It involves the state refraining from requiring either party to fulfill their end of the contract. In a null contract, people can still fulfill their own end of the bargain if they wanted to. What this means is that what contract law does is empower private citizens to call on state resources to force compliance in some cases. The thing is this: Such commands are not aimed at the people who would be forced to comply with contracts. Rather it is aimed at officials giving them instructions in how to deal with a certain class of disputes. By contrast, the law against murder is not merely directed at officials, it is directed at people to tell them to refrain from murder on pain of punishment. sometimes nullity may even be desirable (e.g anullmnt of marriage)
5. Public power conferring rules
Contract law therefore covers a number of private power conferring rules. i.e. rules that confer power to private individuals. There are other laws, however, that confer power to public officials. These rules set out the limits and the roles of the various branches of government. Many of these rules are often found in the constitution, but this need not be so. Some acts of the legislature simply authorise the executive to set up regulatory bodies and other statutory boards. The question that faces those who would deny that these are part of the law is what they would be if they weren’t.
6. Procedural rules.
There are rules that set out procedures that should be followed, for example, in order for a proposed piece of legislations to become law. It’s not just that a majority of the members of the legislature should agree to a motion, it should happen in the right setting. For example, if all the MPs were at the pub and then all said yea to the motion of whether there should be free beer in the halls of parliament, this does not count as a law simply because the proper procedures were not followed. These procedural limits would thus limit everyone even putative sovereigns. But Austin’s theory doesn’t explain how this could be possible.
What’s good
There are just really two good things about Austin’s theory.
1. It emphasises the coercive nature of many of the laws we have. This is an important aspect of a good many laws. It is not clear if a primary rule (i.e. the kind that forbids or demands specific or classes of action) would count as a law without the use of force.
2. The Austinian theory takes an external point of view. If true, any stranger, even a psychopathic martian would be able to grasp the concept of law and point to what the law is. The difference between this and the internal view will be discussed next week. Our conceptual tools should aim as far as possible to put things in terms of a God’s eye view.
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
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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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
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:
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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
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:
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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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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Thanks. I am looking into it. Very interesting stuff.Report
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
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
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
Mr Ridgely! You’re back!Report
“Austin was the first significant analytic philosopher of law.”
See Bentham’s Of Laws in General.Report
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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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