We went over Austin’s 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 theory 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)
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.
Austin claimed that three things logically entail one another: command, duty, and sanction (see 17–18). I noted that Austin’s definition of “duty” (or “obligation”) is different from at least my understanding of moral duties (or obligations). Being threatened with a sanction is usually neither necessary nor sufficient for being under a moral obligation. That is why I may be obliged to repay Shakira even if she does not threaten to hurt me if I do not pay. By contrast, as Robert noted, Ross is under no moral obligation to hand over the money in his wallet once he has escaped the threat of being shot.
As Austin (the person in our class) pointed out, Austin (the author we read) is perfectly within his rights to say that, given the way he defines “duty”, being threatened is a necessary and sufficient condition of having a duty. That is true! What we have to ask is whether legal obligations are more like Austin’s definition of duty or more like the common sense understanding of moral obligation. If the former, then Austin’s theory is OK. If the latter, then it is in some trouble.
There is one point where I do not think Austin can get away so cleanly, however, because the problem is internal to his theory. It has to do with a question that Antonio raised about weak sanctions: statutes that are rarely enforced or states that are too ineffective to credibly enforce their statutes. When we looked at Austin’s text, we saw that he said that any threatened sanction, no matter how feeble, is good enough to make an expression of desire a command (and so eligible to be a law, provided it is issued by a sovereign): “the magnitude of the eventual evil, and the magnitude of the chance of incurring it, are foreign to the matter in question” (Austin  1955, 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 between this realistic point about sanctions and Austin’s understanding of duty as something that a person is obliged to do by a threat (see Austin  1955, 24–25). Are people legally obliged to follow the speed limit or not? The answer should be “yes” and that is clearly what Austin believes too. Nonetheless, I am not sure that his definition of duty supports that conclusion.
Monica and Antonio both asked whether governments can be bound by laws. For Austin, the answer is no, at least as far as the sovereign is concerned. Laws are commands issued by a sovereign, commands are necessarily addressed to someone else, therefore, the sovereign cannot be governed by commands.
Again, if we find significant examples of parts of the law that do apply to sovereigns, this will pose a problem for Austin.
One thing to bear in mind is that the parts of the government other than the sovereign could be bound by laws even under Austin’s theory. Only the sovereign is above the law.
One interesting question is where the judges who make “judge made law” fit. (Austin thinks that when judges rely on principles that are not found in statutes, such as “no one may profit from their own wrongdoing,” they are making law; others think that these principles are part of something that they call “customary law” and that judges are interpreting customary law rather than making it the law.) Austin says that judges get their power to make law from the sovereign (Austin  1955, 32–33). What could that mean in his theory? Are they commanded to do something? Maybe it’s that the sovereign’s subjects are commanded to obey the judges. Maybe something else. This will come up when we read Hart.
The title says “Austin’s legal positivism” because Austin’s theory is called “legal positivism.” As Austin explains it, that means that laws exist “by position” (Austin  1955, 11). Roughly, if a command is issued by someone in a position to make a law, then it is a law (provided it meets the other conditions for being a law, of course). If it is not made by someone in position to make a law, it is not.
Hart’s theory is also called “legal positivism” because Hart shares the opinion that the way to identify laws is to trace them back to their source. But Hart is a major critic of Austin. Aargh!
To keep your wits about you, it is probably best to think of Austin as claiming that laws are commands and Hart as claiming that laws are rules. That is what distinguishes their versions of legal positivism from one another.
Here is a list of key terms in Austin’s theory that you should be able to explain after today’s class.
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.
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.
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).
Claim: laws are commands. (13)
“Every law or rule … is a command. Or, rather, laws and rules, properly so called, are a species of commands.” (13)
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)
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).
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.’)
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.
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).
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).
The “bulk” of the members of a society are “in a habit” of obeying S’s commands.
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. (1832) 1955. The Province of Jurisprudence Determined. London: Weidenfeld and Nicolson.