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?
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?
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).
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.
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.
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