AN ANALYSIS OF THE DEVELOPMENT OF JOHN AUSTIN’S MAJOR ARGUMENTS IN THE PROVINCE OF JURISPRUDENCE DETERMINED.
AN
ANALYSIS OF THE DEVELOPMENT OF JOHN AUSTIN’S MAJOR ARGUMENTS IN THE PROVINCE OF JURISPRUDENCE DETERMINED.
The core of John
Austin’s seminal tractate on jurisprudence entitled The Province of Jurisprudence Determined is that, of all laws, only
positive laws belong to the province of jurisprudence. In developing this
thesis, he establishes the notion of positive law as command issued with threat
of sanction from a superior to their inferiors, or from the supreme to its subjects.
Accordingly, his, has been severally described as a command theory of law. He offers arguments that lead up to this determination
by establishing that positive laws are distinct from: first, the laws of God;
second, the rules of positive morality; and third, laws metaphorical and
figurative, albeit these are related to positive laws in either of two ways
namely, resemblance or analogy.
In demarcating the
province of jurisprudence, John Austin does two things. Firstly, he determines
the nature or essence of all laws “imperative and proper.”[1] Secondly,
he determines the defining features of his four divisions of laws into laws of
God, positive laws, rules of morality and laws metaphorical and figurative. The Province of Jurisprudence Determined is
a treatise of six lectures. Before the main disquisition of the themes in this
book, Austin gives a summary kind of outline in the prefatory part of the work.
He proposes that in the first lecture, a law shall be proved to be the command
of the superior to the inferior, backed by sanction from the former, obliging
the latter to obedience. The second lecture is about how divine laws are
distinct from other laws. In this connection, Austin divides divine laws into
two species namely: “the revealed or express, and the unrevealed and tacit.”[2]
Next, he considers three theories of how the tacit commands of God are
accessible to human beings. It is worthy of note that Austin’s cogitations on
law are quite similar to Thomas Aquinas’ especially as regards the fact that
the laws of God are universal and enduring models upon which the particular
human laws are based, [3]
hence, he avows that “the divine law is the measure and test of positive law
and morality: or (changing the phrase) law and morality, in so far as they are what they ought to be, conform, or are not repugnant, to the law of God.”[4] Here,
he makes a distinction between the science of legislation, which is about positive
law as it ought to be, and the science
of jurisprudence, which has to do with positive law as it is. This discussion continues through lectures two, three and four.
The fifth lecture contains Austin’s discourse on the division of laws into laws
proper and improper and how the latter relate with the former by remote or
close analogy. In this connection, he discusses the characteristic features of
positive moral rules, which are rules that are not positive laws, since they “are
not armed with legal sanctions.”[5]
Also in lecture five, Austin demarcates the main features of laws metaphorical
and figurative. He dedicates the sixth lecture to the delineation of the
features “of laws positive: that is to say, laws which are simply and strictly
so called, and which form the matter of general and particular jurisprudence.”[6]
He ties the notion
of positive law to his notions of sovereignty and independent political
society. In this logic, Austin notes that sovereignty is the source of positive
law. And so, the sovereign, be it a person or a body of persons, being supreme,
is the one who posits the law to the members of an independent political
society. The members of such a society are, for Austin, usually under habitual
subjection to the sovereign. Further, he dwells on the notion of sovereignty,
noting in this regard the various forms of political government, the limits of
political power, and the origin and causes of political government. More so, he
makes a distinction between positive law and positive morality.
In line with the
above prefatory outline, John Austin notes that positive law, also known as
“law simply and strictly so called: or law set by political superiors to
political inferiors,”[7]
alone belongs properly to the province of jurisprudence. This idea gives
bearing to John Austin’s entire discourse on the determination of the province
of jurisprudence. All other facticities, be they moral, customary or religious,
that go by the appellation of law, are, for Austin, only related to positive
law by resemblance or analogy. And with these legal facticities,
positive law is mostly confused. His resolute comportment then, is to make a
distinction of positive law from these. He note that law is spoken of in two
senses: first, as given by God to human beings; and second, as given to human
beings by fellow human beings. Austin calls the law of God to human beings Divine law or law of God. He breaches the line of distinction between natural law or law of nature and Divine law
which are found in other legal theorists, like Thomas Aquinas. Furthermore,
John Austin chooses to leave out the use of natural law on the grounds of
ambiguity, and perhaps, superfluity, maintaining that the signification of the
fact as Divine law is sufficient.
The laws given by
human beings to their fellows can be also seen in two ways: first, as positive laws properly so called or laws “existing by position”[8] -
given by political superiors to political inferiors; and second, as positive morality – laws or rules not given by political superiors or which
may be given by political superiors but
not as political superiors. Commenting on moral laws, Austin notes that “the name morality severs them form positive
law: whilst the epithet positive
disjoins them from the law of God.”[9]
Nevertheless, one fact underlies Divine law, positive law and positive morality:
“all of them are set by intelligent and rational beings to intelligent and
rational beings.”[10]
Here, it is manifest that John Austin ties the notion of rationality to law.
Moreover, Divine law and positive
morality are related to positive law by strong analogy. But laws that are
merely metaphorical or figurative are related to positive law by thin analogy.
To this latter class of laws belong laws that regulate lower animals and
inanimate things. The reason John Austin adduces for this is that these
realities lack intelligence or rationality. For him, the term law is improperly
applied to laws metaphorical and figurative.
Law
as Command/Imperative and the Characteristics thereof
Furthermore, every
law, properly so called, “is a command.
Or rather, laws or rules properly so called, are a species of commands.”[11] In
this connection, the notion of law is connected with the notion of command and
the notion of command is intimately linked with the notion of punishment in the
jurisprudential thought of John Austin. First, a law is a command, ordinarily
backed by a threat of punishment for noncompliance, uttered by a superior to
their inferior. To show this relationship of command and punishment in Austin’s
notion of law, a section of The Province
of Jurisprudence Determined is worthy lift here:
If
you express or intimate a wish that I shall do or forbear from some act, and if
you will visit me with an evil in case I comply not with your wish, the
expression or intimation of your wish is a command. A command is distinguished
from other significations of desire, not by the style in which the desire is
signified, but by the power and the purpose of the party commanding to inflict
an evil or pain in case the desire be disregarded. If you cannot or will not
harm me in case I comply not with your wish, the expression of your wish is not
a command, although you utter your wish in imperative phrase. If you are able
and willing to harm me in case I comply not with your wish, the expression of
your wish amounts to a command, although you are prompted by a spirit of
courtesy to utter it in the shape of a request.[12]
In this way, John
Austin maintains that a command is an expressed desire directed to one who is
obligated or has a duty to obey it. For him, then, command and duty are
correlative terms. Thus, “wherever a duty lies, a command has been signified;
and whenever a command is signified, a duty is imposed.”[13] Later
in the development of his arguments in lecture six, he used this point to
critique the likes of Thomas Hobbes who would maintain that a duty is imposed
only where a social contract holds.[14] A
sanction or an enforcement of obedience is what follows in the event of
disobedience to a command. In this connection, Austin removes rewards from the
meaning of sanction. He notes that the notion of rewards in the issuance of an
order confers some rights on the
person who obeys them, or a denial of such and such rights to the person who does
not comply. However, a sanction, which in Austin’s usage is primarily about
punishment, imposes a duty on the
person who is so commanded to do or not to do something.
From the forgoing
discourse three characters of a command can be noted: firstly, a command is a
wish or desire of rational agency which obliges obedience from those to whom it
is expressed. Secondly, there is an evil to be incurred from noncompliance. And
thirdly, this wish must duly expressed or intimated in words or tacitly.
Consequently, John Austin sees a necessary connection between command, duty and
sanctions. Further, identifies two species of commands: those called rules or
laws, and occasional or particular commands. Rules or laws oblige of prohibit general
acts. Occasional or particular commands oblige or prohibit specific or
individual acts. In the light of this clarification, Austin notes that most of
the laws that are posited by political superiors are general laws and are such
in two ways: that they enjoin or forbid general acts of kind or sorts; and that
they are binding on the entirety or a large part of the members of the
community.
Superiority
as Might and its Link with Law
Furthermore, John Austin
identifies superiority with might.
The superior is one who, within the bounds of reason, has the power to enforce
their desire or wish. In this way “whoever can oblige another to comply with his wishes, is the superior of that other: The party who is
obnoxious to the impending evil, being, to that same extent, the inferior.”[15] However,
only the superiority of God over his
creatures is absolute. The superiority of human beings over one another is,
for John Austin based on the principle of reciprocity. Thus:
To
an indefinite, though limited extent, the monarch is the superior of the
governed: his power being commonly sufficient to enforce compliance with his
will. But the governed, collectively or in mass, are also the superior of the
monarch: who is checked in the abuse of his might by fear of exciting their
anger; and of rousing to active resistance, the might which slumbers in the
multitude.[16]
More so, John
Austin ties the concept of superiority to the concept of command. This is
because, laws – a species of commands – emanate from superiors. Nevertheless, not all laws are commands.
Further, those laws which lack the character of imperativeness are called laws
only improperly. They are related to positive laws, by mere analogy. Positive morality and laws merely figurative belong to this category. It is
noteworthy that some laws become positive laws by adoption. Customary laws,
when enforced by courts of justice or promulgated by the state in its statute
become positive laws, albeit, they seem
not to be commands.
Divine
Laws as Measure of Positive/Human Laws
In his disquisition
on Divine laws John Austin notes that
Divine laws are the measures or standards, of human laws. They, like positive
laws, are laws properly so called. They impose religious duties on human beings. Noncompliance to them amounts to sin. Religious
sanctions in the form of evils, or
pains in the present life or in the life after death follow sin. Moreover, some of the Divine laws
are revealed, and others are unrevealed. The revealed laws are express commands
given by God by means of human language. The unrevealed laws are not expressed
commands and are not given by means of any human language. Austin states that
these unrevealed laws are the only laws that God has given to those “who are
excluded from the light of Revelation.”[17]
They also bind on those who have received revelation however, “in so far as the
revealed law has left our duties undetermined.”[18]
By way of contrast with revealed Divine laws, unrevealed Divine laws are known
by the light of nature or reason. Austin further identifies three hypotheses
for how human beings come to know these unrevealed Divine laws: first, is the hypothesis of a moral sense, or innate practical reason or conscience. By this hypothesis, human
beings just know the tacit Divine laws by means of their feelings and judgments of reason.
They just know that certain acts are
approved or prohibited by God.
The second
hypothesis is the hypothesis of utility.
The claim here is that the human person can discover the tacit commands of God
by knowing and doing those things that are beneficial to the ultimate happiness
that God has planned for his creatures and avoiding the ones that are injurious
to this purpose. The hypothesis of
utility faces the big challenge that most principles of utility faces: what
is the standard calculus of utility? Hence, how shall the benefits of actions
to the human end intended by God to be calculated? The point is made, however,
that utility is discovered from the various human experiences of leaders and
led, labour owners and employees etc and that “general utility [is] the index
to God’s commands, and therefore, the proximate test of positive law and
morality.”[19]
More so, “positive law and morality, fashioned on the principle of utility, are
gotten by observation and induction from the tendencies of human actions.”[20]
The third
hypothesis is a compound of the other two. In this combination, the moral sense
of the human person is the route to some of the tacit commands of God, and the
principle of general utility is the pathway to others. Further, John Austin
notes that there is a division of positive
law into law natural and law positive. Crimes committed in violation
of law natural are mala in se.[21] The
crimes committed in violation of law positive are mala quia prohibita.[22] This
division corresponds to that of the classical Romans, in faithfulness to the
Greeks, whereby jus civile (positive
law) is divided into jus gentium and jus civile, and the crimes corresponding
to the aforementioned are juris gentium
and jure civili, respectively. Austin
notes that this division is also present in positive morality. Hence, positive
morality is divided into natural and positive. With the third hypothesis,
which John Austin seems to favor, human laws can be divided into two, namely:
positive human rules that apply to all humanity - the conformity of these to
Divine laws are indicated by the moral sense; and positive human rules which do not
apply to all humankind. Their conformity to Divine laws are not indicated by the
moral sense.
On
Laws Improper
John Austin notes
that “strictly speaking, all improper laws are analogous to laws proper: and the terms law, as applied to any of
them, is a metaphorical or figurative expression.”[23]
In addition, improper laws are of two species: There are those whose
relationship with proper laws is analogical,
and there are those whose relationship is metaphorical
or figurative. The proper laws are Divine laws, positive laws and positive morality. Positive laws are
related by resemblance to Divine laws and to positive morality which are laws,
properly so called. They are related to a specie of positive morality which are
mere opinions or sentiments by strong analogy, and to laws metaphorical and
figurative by remote or slender analogy.
Meanwhile, every
law properly so called is a command emanating from a determinate rational author or authors who attach sanctions to be
administered in the event of noncompliance with such commands. Only the laws of God and positive laws fit
this description properly. Divine laws are commands emanating from God, express
or tacit. There are divine sanctions attached to them. Positive laws emanate
from three sources: first, from the sovereign one or number acting in the
capacity of political superiors; second, from subordinate political superiors;
and third, from subjects, as individuals in pursuance of legal rights. In this
way, John Austin can be said to maintain that laws properly so called differ from laws improper by the determinacy of
their source.
Moreover, John
Austin notes that the various designations of law are often confused and mixed
up. Austin evidently admires and borrows from John Locke’s ideas on relation in the discourse on the
analogical relations between the various usages of the designation, law. He expresses
this indebtedness to Locke as he lifts a whole section from Locke’s Essay Concerning Human Understanding,
Book II, chapter XXVIII, wherein Locke makes an excursion into the divisions of
law proper and improper and the purpose of law.
Positive
Laws, Sovereignty and Political Statehood: The Inseparable Triad
There is in John
Austin’s jurisprudential thought, an inseparable link between positive laws as
imperatives, sovereignty and political statehood. In this connection, Austin
avows that “if a determinate human
superior, not in a habit of obedience
to a like superior, receive habitual
obedience from the bulk of a given
society that determinate superior is sovereign in that society, and the society
(including the superior) is a society political and independent.”[24]
For Austin, the relationship between political superior and subject is “the relation of sovereign and subject, or
the relation of sovereignty and subjection.”[25]
The sovereign government has divine as well as moral rights against its
subjects. However, it has no legal rights against the generality of its
subject. This is because it is the author of legality in the political society.
Austin ties the rights of government to the pursuance of justice in the
political society. Justice is judged by the usefulness of the actions of
government. That is, based on the principle of utility. For this reason, “an
act which the government has a right to do is an act which were generally
useful: as an act which the government has not a right to do, is an act which
were generally pernicious.”[26]
In very obvious
ways, John Austin demonstrates how inseparable the notion of state is from the
notion of sovereignty. In this same logic, Austin describes the independent
political society as that in which “the bulk of the given society are in a
habit of obedience or submission to a determinate and common superior.”[27]
This superior, on the other hand, is not in any way in the habit of submission to anybody. This however, means that such a
superior, or sovereign, may be occasionally
affected by some other person or bodies and is also affected by laws which are
set by opinions. Worthy of note is the fact that the emphasis is on habitual submission: while the members
of the independent political society are in habitual obedience to the
determinate human superior, the sovereign is not in habitual obedience to any
other human superior or sovereign whatsoever.
The members of the
independent political society are in subjection
to and dependent on the sovereign. These two parts Austin describes as positive
and negative traits necessary for an independent political society. Where any
of these is lacking, the society cannot exist as political and independent. In
the event of such a case, the society may exist in the state of nature or it
has two or more independent political societies within it.
Furthermore, John
Austin describes three kinds of political societies. Firstly, international
societies, which though are political, lack the dimension of “independence” as
there is no one sovereign over all who can be the author of positive laws.
Hence, international political societies operate based on general opinion: how
best shall the independent political societies live together? The second
involves societies political but dependent or subordinate. Such societies only
exist as appendages to independent states. And the third is not a political
society as such, but has something of the semblance of a political society with
subjects existing as private persons. The instance Austin uses here is the
family consisting of parents and children. Moreover, Austin makes a rather
winding distinction between natural and political societies based on number:
where the number of persons is minute, even if there be obedience to a
superior, such a society is natural and where the number is considerably much
and where there is obedience to the superior, such a society is political.
Further, John Austin
reiterates the fact that every independent political society consists of two
indispensable parts: the sovereign part
and the subjected part. If the sovereign part is made up of one person, the
government is a monarchy and the sovereign is a monarch. If the sovereign part
is made up of a number of persons, it is termed an aristocracy. While power
rests fully in the hands of the monarch as individual, it is shared by a number
of persons in an aristocracy. More so, there are three forms of aristocracies: oligarchies,
aristocracies, properly so called, and democracies. These, again, are
distinguished in terms of number. In an oligarchy, power is shared among a few
persons. More persons share power in an aristocracy and a large number of
persons share power in a democracy legitimately.
Habitual
Obedience of the Subjects is based on Reason and the Principle of Utility
Also, political
government exists to advance human happiness in the greatest possible way. This
it does in its particular territory and since, all political governments ought
to do so, when they do, the general happiness of humanity is assured. With this
in mind, the habitual obedience which the subjects pay the
sovereign one or number, that is, the
monarch or the sovereign body, is
grounded on reason based on the principle of utility. People obey
habitually because they know that government necessarily exists to bring about
the betterment of all in the society. The subjects submit habitually because
they prefer to do so than to live in anarchy since anarchy does not serve the
common good. Hence, habitual obedience is due to “a perception, by
the bulk of the community, of the utility of the political government, or a
preference, by the bulk of the community, of any government to anarchy.”[28]
The
Necessity of Habitual Obedience for the Existence of the Political State
John Austin
believes that the habitual obedience of subjects is inevitable for the
existence of the political state. Without it, the state is not, even if the
sovereign threatens to punish all. The subjects can decide to brave up about whatever
punishment to ensure that the sovereign is undermined. The point is thus made
that “all obedience is voluntary or free, or every party who obeys consents to obey.”[29]
In this way:
That
the permanence of every government is
owing to the people’s consent, and that the origin
of every government is owing to the people’s consent, are two positions so
closely allied…. Every government has arisen through consent of the people, or the bulk of the natural society from
which the political was formed. For the bulk of the natural society from which
apolitical is formed, submit freely
and voluntarily to the inchoate political government. Or (changing the phrase)
their submission is a consequence of motives
or they will the submission which
they render.[30]
Meanwhile, there
was no point in time when people came together to agree to form the political
society: that they will to obey a sovereign one or number is enough, it is not
necessary that they must have agreed when there was a transition from a state
of nature to the political state. Hence, “the formation of the society, as we
know from history, was not preceded
by an original covenant: Or, at least, the formation of the society, as we know
from history, was not preceded by an express original covenant.”[31] Members
of the political state owe it religious, legal and moral duties: religious,
through commitment to the principle of utility; legal, by obedience to the
positive laws; and moral through obedience to positive morality. The sovereign
government owes its subjects only religious and moral duties.
Further, John
Austin identifies various kinds of sovereign governments on the basis of the de jure-de facto distinction: namely governments that are de jure and de facto, government that are de
jure but not de facto, and
governments that are de facto but not
de jure. A government that is lawful,
rightful and just, and which consequently receives habitual obedience from the
bulk of the community, is both de jure
and de facto. A government that is
lawful, rightful and just, but which has been overthrown, and therefore, not
receiving habitual obedience from the bulk of the community, is de jure but not de facto. A government that is unlawful, wrongful and unjust but
receives habitual obedience from the bulk of the community is de facto but not de jure. A government that is not lawful, that is supplanted and
that is neither de jure nor de facto. Furthermore, in respect of the
positive law of its own independent community, a sovereign government is
neither lawful nor unlawful. But with respect to Divine laws and positive
morality, it can be.
[1] John Austin, The Province of Jurisprudence Determined
(London: John Murray, 1832), p.ix
[2] John Austin, The Province of Jurisprudence Determined,
p.xi
[3] See Thomas Aquinas’
discourse on law as contained in Summa
Theologiae I-II, q.90, a.1,2,3, and 4
[4] John Austin, The Province of Jurisprudence Determined,
p.xiii
[5] John Austin, The Province of Jurisprudence Determined,
p.xvi
[6] John Austin, The Province of Jurisprudence Determined,
p.xvii
[7] John Austin, The Province of Jurisprudence Determined,
p.1
[8] John Austin, The Province of Jurisprudence Determined,
p.2
[9] John Austin, The Province of Jurisprudence Determined,
p.4
[10] John Austin, The Province of Jurisprudence Determined,
p.4
[11] John Austin, The Province of Jurisprudence Determined,
pp.5-6
[12] John Austin, The Province of Jurisprudence Determined,
p.6-7
[13] John Austin, The Province of Jurisprudence Determined,
p.7
[14] John Austin, The Province of Jurisprudence Determined,
p.338
[15] John Austin, The Province of Jurisprudence Determined,
p.19
[16] John Austin, The Province of Jurisprudence Determined,
p.20
[17] John Austin, The Province of Jurisprudence Determined,
p.32
[18] John Austin, The Province of Jurisprudence Determined,
p.32
[19] John Austin, The Province of Jurisprudence Determined,
p.76
[20] John Austin, The Province of Jurisprudence Determined,
p.88
[21] This may be translate
as “Intrinsic evils” or “evils in themselves.”
[22] “Prohibited evils” or
“evil that are prohibited.”
[23] John Austin, The Province of Jurisprudence Determined,
p.126
[24] John Austin, The Province of Jurisprudence Determined,
p.200
[25] John Austin, The Province of Jurisprudence Determined,
p.200
[26] John Austin, The Province of Jurisprudence Determined,
p.309-310
[27] John Austin, The Province of Jurisprudence Determined,
p.199
[28] John Austin, The Province of Jurisprudence Determined,
p.321-322
[29] John Austin, The Province of Jurisprudence Determined,
p.323
[30] John Austin, The Province of Jurisprudence Determined,
p.327
[31] John Austin, The Province of Jurisprudence Determined,
p.365
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