Austin outline

Notes for January 23


Austin suffers a bit from an excess of clarity. The sentences and paragraphs are all fairly clear, but he can get so detailed that it’s easy to lose track of what exactly he’s doing. I wrote this outline to help me keep my bearings.

Lecture I

In this lecture, Austin advances his central claim that law is a kind of command. He also argues that commands involve threats of force and that obligations consist in being threatened.

  1. Definition of “law.” (74–75)

    “A law … may be said to be a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.” (74)

    A list of things that are properly called laws by this definition and those that are improperly called laws because they do not fit the definition (74-75).

  2. Claim: laws are commands. (75)

    Not all commands are laws but all laws are commands.

    “Every law or rule … is a command. Or, rather, laws and rules, properly so called, are are a species of commands.” (75)
  3. Analysis of “command.” (75–76)

    Commands have two parts: (1) an expression of a wish about someone else’s behavior and (2) a threat to inflict harm if the other person does not comply (this is called a sanction).

  4. Claim: commands logically entail duties. (76–77)

    The person to whom the command is addressed is necessarily “obliged” or lies under a “duty” to comply. This is due to the fact that this person is “liable to evil” from the person issuing the command. (76)

    “Command and duty are, therefore, correlative terms: the meaning denoted by each being implied or supposed by the other. Or … wherever a duty lies, a command has been signified; and whenever a command is signified, a duty is imposed.” (76)

    Austin argues that duties do not depend on the strength (‘violence’) of the motivation to comply with a command (cf. Paley) and that rewards cannot be sanctions (cf. Bentham and Locke). (76–77)

  5. Claim: laws are general. (78–80)

    This is a commonly accepted claim about the law; Austin offers his distinctive interpretation about what it means. He distinguishes between two kinds of commands: (1) laws (or rules) and (2) occasional (or particular) commands.

    In what way are laws general (as opposed to particular)? Austin argues that only commands that apply to a general category of actions are laws (78–79). He disagrees with Blackstone’s claim that laws must apply to people in general. Example: Parliament could pass laws that govern only those who occupy a particular government office (79–80).

    “A law is a command which obliges a person or persons. But, as … opposed to an occasional or particular command, a law is a command which … obliges generally to acts or forbearances of a class.” (80)
  6. Analysis of “superior” and “inferior.” (80–81)

    It is generally said that laws are addressed by superiors to inferiors. Austin uses his command theory to offer his interpretation of what this means. It does not refer to differences in rank, wealth, or virtue. The relevant difference is power.

    “the term superiority signifies might: the power of afflicting others with evil or pain, and of forcing them, through fear of that evil, to fashion their conduct to one’s wishes. … In short, whoever can oblige another to comply with his wishes is the superior of that other, so far as the ability reaches: The party who is obnoxiousPrior to the 19th century, “obnoxious” usually meant ‘vulnerable.’ -mjg to the impending evil, being, to that same extent, the inferior.” (80)
  7. Laws that are not commands (“imperative”) (81–82)

    Three cases that do not fit the command theory. These are legislative acts that explain laws, repeal laws, or impose ‘imperfect’ duties. Austin thinks these are minor cases (see p. 84).

  8. Apparent exceptions to Austin’s theory. (82–84)

    Austin takes up two cases that appear to be inconsistent with his theory in order to show that they do not pose genuine problems. (1) Laws that seem to confer rights without duties (he maintains rights always come with duties). (2) Customary law (he maintains custom is made law only if it is enforced by the state).

Lecture VI

This lecture is devoted to identifying a sovereign, that is, the kind of superior power that makes laws.

A sovereign, S, is an individual or corporate body with two qualities (84–85).

  1. The “bulk” of the members of a society are “in a habit” of obeying S’s commands.

  2. S is not in the habit of obeying any other human beings (as opposed to habitually obeying God.)

The bulk of this section consists in examples that Austin uses to illustrate this claim.

This page was written by Michael Green for Philosophy of Law, Philosophy 34, Spring 2014. It was posted January 22, 2014.
Philosophy of Law