Austin’s legal positivism

We went over Austin’s version of legal positivism, the theory that laws are commands. We noted several problems with the theory. None of these are necessarily fatal to Austin’s theory, but Hart will argue that his version of legal positivism has better ways of addressing them.


Austin thought in trees. He liked to begin with a root concept and then subdivide it into branches until he had identified the concept he wished to analyze. So, for example, there are two branches off of the root concept of “expressions of desire:” requests and commands. While they are grammatically similar, they are different because commands come with sanctions. Laws will be one of the sub-branches of commands.

I asked whether what I called instructions (e.g. “To make toast, plug the toaster into an electrical outlet.”) count as commands. We decided they did not. A command, for Austin, has three parts (see p. 17)

  1. The speaker desires that the recipient do something.
  2. The speaker expresses this desire to the recipient.
  3. There is a sanction for failing to comply with the speaker’s wishes.

Instructions fail the first and third conditions. So they are not commands.

This will be a problem for Austin if there are significant parts of the legal system that are more like instructions than like commands. For example, as Riley pointed out, the laws of contracts or wills seems more like a set of instructions than commands. These laws tell you how to make a valid contract or will. They do not command that anyone do so or punish anyone for failing.

Duties and sanctions

Austin claimed that three things logically entail one another: command, duty, and sanction (see 17–18). We had some questions about that as well.

We started with a simple question: is a threatened sanction a necessary condition of having a duty? As Tam pointed out, parents are thought to have duties to care for their children even if there is no sanction for failing to do so. Of course, in our society, there are sanctions for child negligence. But even if there were not, she maintains, there would still be a duty not to neglect your child.

We talked a bit about whether there is a difference between moral and legal duties on this point. If there is, perhaps Austin’s point can be saved from Tam’s example.

We also talked about a methodological question: how do you object to one of Austin’s claims? If he defined the term “duty” in a particular way, then coming up with a use of the term that doesn’t fit just means you’re using the word differently; it doesn’t mean he’s wrong. On the other hand, as Mollie argued, if Austin’s definitions become too remote from more ordinary concepts, then he won’t be analyzing laws as we understand them. Austin is proposing ways of reforming our thinking to make it more clear, so we should expect some gaps between his definitions and ordinary use. But I think Mollie is right to say that there are limits to how large those gaps can be if the project is to hold any interest for us.

We also talked about an important qualification that Austin makes about sanctions. He insists that it is only the threat of sanctions and not the efficacy of sanctions that matters. So the sanction could be quite mild or it could be very unlikely that it would be applied: “the magnitude of the eventual evil, and the magnitude of the chance of incurring it, are foreign to the matter in question” (16).

I see why Austin did that. There are laws whose penalties clearly do not regularly motivate complete compliance: just drive on any freeway to see this in action. But, at the same time, there is some tension here because sanctions were introduced to explain why commands are things that the recipient must do. Peter added that there is another point of tension with Austin’s remarks on what he called imperfect law. There, Austin wrote, “where there is not a purpose of enforcing compliance with the desire, the expression of desire is not a command” (28) and so, he concluded, imperfect law is not properly called law. What’s the difference between that and a command whose sanctions are completely ineffective? Austin maintains that the existence of the threat, no matter how unlikely its enforcement is, is what matters. But it looks suspicious.


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.” (10-13)

    “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.” (10)

    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 (10-13).

  2. Claim: laws are commands. (13)

    “Every law or rule … is a command. Or, rather, laws and rules, properly so called, are are a species of commands.” (13)

  3. Analysis of “command.” (13–18)

    “the ideas or notions comprehended by the term command are the following: 1. A wish or desire conceived by a rational being, that another rational being shall do or forbear. 2. An evil to proceed from the former, and to be incurred by the latter, in case the latter comply not with the wish. 3. An expression or intimation of the wish by words or other signs.” (17)

    Austin argues that commands, duties, and sanctions are all logically equivalent (e.g. 14 and 18)

    He also maintains that duties do not depend on the efficacy of the sanction (cf. Paley) and that rewards cannot be sanctions (cf. Bentham and Locke). (15–17)

  4. Claim: laws are general. (21–23)

    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 (21–22). 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 (23).

  5. Analysis of “superior” and “inferior.” (25–26)

    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 obnoxious to the impending evil, being, to that same extent, the inferior.” (24)

    (Before the 19th century, “obnoxious” usually meant ‘vulnerable.’)

  6. Laws that are not commands (“imperative”) (26–29)

    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.

  7. Apparent exceptions to Austin’s theory (29–31)

    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 (193–94).

  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).

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


Austin, John. 1955. The Province of Jurisprudence Determined. London: Weidenfeld; Nicolson.