Austin can be tough going. The handout should help you distinguish between his main points and those that are digressions.
Austin’s theory is that laws are commands. Today’s class concerns several problems with the theory.
Not all laws fit the model of commands; some appear to be more like instructions.
Having an obligation is not generally thought to be the same thing as being threatened with a sanction.
I think it is possible for Austin to give answers to these problems. Hart is going to maintain that his theory has superior ways of addressing all three points.
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.
Commands, according to Austin, always involve three things (Austin [1832] 1995, 24):
The first two elements are common between requests and commands while the last one distinguishes commands from requests.
Here is an expression that looks like a command: “plug in the toaster.” Of course, that could be a command, but it is often something else: an instruction. If you look at the manual for my toaster, for instance, you will see this listed as the second step for making toast (after “take the toaster out of the box”; I am not making this up).
Instructions look like commands, but they do not meet two of Austin’s criteria. This will be one of our first topics of discussion. Why not? How does an instruction fail to meet the conditions of a command?
Jayden said that instructions don’t have the first or third elements: the person issuing the instruction may not care whether it is carried out or not and there is no threatened sanction for failing to comply with the instruction. To use my toaster, the author of the manual need not care whether I make toast or not; he or she is merely telling me how to do it if I want to. And the manual author is not threatening to harm me if I fail to comply with the instructions. No one will punish me for trying to make toast without plugging in the toaster first. While I will suffer the anguish of having to eat untoasted bread, that is not something that the author of the manual will inflict on me.
Lilly thought that the second point was the more fundamental one. You might well give someone instructions because you want them to succeed at doing something. But the important point, in her opinion, is that the person giving instructions does not threaten sanctions for failure to comply.
Lola noted that failure to get what you want, such as toasted bread in my case, could be construed as a sanction. In my opinion, the answer is no. For Austin, a sanction is a kind of harm that the person who issues a command threatens to impose on the person to whom a command is addressed. When I issue instructions, I’m telling you what will happen if you don’t do what I say to do. But I’m not saying that I will do anything to bring that about and you might even think that the results from failure to follow the instructions would be a good thing. Maybe you want to play a joke on me by unplugging the toaster, for instance.
Why does all of this matter? Well, if parts of the law are more like instructions than they are like commands, the command theory will look like at best an incomplete theory of what laws are. To tip my hand a bit, some parts of the law tell you how to do things, like making a valid contract or passing a law in the legislature. Those look more like instructions than commands.
For Austin, the terms “command,” “sanction,” and “duty” (or “obligation”) are all defined in terms of one another. To receive a command is equivalent to being threatened with a sanction and being threatened with a sanction is equivalent to having a duty (Austin [1832] 1995, 22–24). This, according to Austin, is why people are obliged to obey the law.
A second topic of discussion concerns the apparent divergence between this understanding of “duty” and the ordinary one. Think about cases where you owe a debt to someone else. Would you owe the debt even if you could not be threatened with a sanction? Conversely, is being threatened with a sanction enough to put you in debt to someone?
Jayden said that being threatened with a sanction is not a necessary condition of having a duty. I can have a duty to repay you even if you can’t sanction me for failing to do so. That is, I can have a duty even though there is no sanction. That’s what it means to say a being threatened with a sanction isn’t a necessary condition of having a duty.
Madeline said that being threatened with a sanction is not a sufficient condition of having a duty. I can threaten to punch you in the nose if you don’t give me your wallet but that wouldn’t mean that you have a duty to give me your wallet. As Madeline said, if you managed to get away from me by, say, running away or punching me first, you wouldn’t do anything wrong. By contrast, running away or hitting someone is not a way of getting out of a genuine duty.
Nico made an important point here. For Austin, all that matters is that a sanction is threatened. He does not say that the threat has to be effective (see Austin [1832] 1995, 22–23). If the threat had to be effective, it would be impossible to violate the law, after all.
Soo Bin had another important observation. Our examples of duties involve moral duties. But Austin is talking about legal duties. It’s possible that the two kinds of duty are different. I think that’s worth keeping in mind. If we want to rest a lot on this point about duty, we had better have something to say about why legal duties are like moral ones. Conversely, someone trying to defend Austin here would be wise to have something to say about why they’re different.
A sovereign, according to Austin, is someone that the “bulk” of the population is in the habit of obeying while not being in the habit of obeying anyone else (Austin [1832] 1995, 166).
I asked you to think about cases that seem to diverge from his definition: sovereigns that do not have this quality or entities that do but do not count as sovereigns.
Madeline started us off by noting something unusual about Austin’s definition. He’s not saying that a sovereign is someone that people have a moral duty to obey. It’s just that the bulk of the population is in the habit of obeying. It’s important to note that Austin’s project is different than some of the ones you might have encountered in political philosophy or political theory classes. He’s trying to describe sovereignty rather than stating the conditions for its justification. Even wicked states still make law, on his view.
Nico noted a problem: sovereigns can be governed by laws. It’s hard to make sense of that if the commmand theory is true. Sovereigns don’t issue commands to themselves much less threaten to sanction themselves.
When judges say things like “like cases should be decided alike” or “no one should profit from their own wrongdoing,” they are sometimes not drawing on anything that could be traced to a sovereign’s command. Instead, they are referring to what is sometimes called “customary law.”
Is customary law part of the law or not?
Austin could say “my theory says it has to come from the sovereign’s commands, this doesn’t, so it’s not law.” But he doesn’t say that. He says that the customary law is “judge-made law” (Austin [1832] 1995, 35). How do judges make law? They get the authority to do so from the sovereign.
Nico said that courts in the US system are authorized by the Constitution and not by a sovereign. I think that’s a very interesting case for Austin. He would have to say that the Constitution is law only because it was issued by a sovereign. What would the sovereign be in this case? Well, it starts “We the people ….” So maybe the sovereign is “the people?” I don’t think it’s at all obvious that this would work. Among other things, whatever the people are, they don’t seem to be in the business of threatening sanctions.
Several people pointed to the passage where Austin noted that human sovereigns are typically both superior and inferior to the people they rule (Austin [1832] 1995, 30). A king has power over his subjects but the subjects have the power to overthrow the king as well. The observation seems accurate. I don’t think Austin does much with it, though. His theory holds that a sovereign has to capable of issuing threats and that they are habitually obeyed by the bulk of the society they rule. Those things can both be true even if the members of the society are capable of overthrowing the sovereign. So I read it as an interesting observation about what “superiority” involves in human government but not as an important element of his theory.
Here is a list of key terms in Austin’s theory that you should be able to explain after today’s class.
Also, it wouldn’t hurt to know how he accommodates customary law; remember the phrase “judge made law.”
There was a handout for this class: 02.Austin.handout.pdf