This is the first in a series of posts about general jurisprudence. In this post, I will cover Austin’s view. I will give a simple overview on what his views are, what is good about them and what is bad. Inevitably, this would involve an exploration of some of Hart’s work in the concept of law. Nevertheless, I will try to keep this post as much as possible to a discussion of Austin’s views. As to the approach of evaluation, our concept of law must be good enough to cover all the non-controversial instances of law and non-law. As I have been getting lazy, I will give you Austin’s theory of Law direct from the Stanford Encyclopaedia of Philosophy.
As to what is the core nature of law, Austin’s answer is that laws (“properly so called”) are commands of a sovereign. He clarifies the concept of positive law (that is, man-made law) by analyzing the constituent concepts of his definition, and by distinguishing law from other concepts that are similar:
- “Commands” involve an expressed wish that something be done, combined with a willingness and ability to impose “an evil” if that wish is not complied with.
- Rules are general commands (applying generally to a class), as contrasted with specific or individual commands (“drink wine today” or “John Major must drink wine”).
- Positive law consists of those commands laid down by a sovereign (or its agents), to be contrasted to other law-givers, like God’s general commands, and the general commands of an employer to an employee.
- The “sovereign” is defined as a person (or determinate body of persons) who receives habitual obedience from the bulk of the population, but who does not habitually obey any other (earthly) person or institution. Austin thought that all independent political societies, by their nature, have a sovereign.
- Positive law should also be contrasted with “laws by a close analogy” (which includes positive morality, laws of honor, international law, customary law, and constitutional law) and“laws by remote analogy” (e.g., the laws of physics). (Austin 1832/1995: Lecture I).
Austin also wanted to include within “the province of jurisprudence” certain “exceptions,” items which did not fit his criteria but which should nonetheless be studied with other“laws properly so called”: repealing laws, declarative laws, and “imperfect laws”—laws prescribing action but without sanctions (a concept Austin ascribes to “Roman [law] jurists”) (Austin 1832/1995: Lecture I, p. 36).
What is wrong/problematic about austin?
1. The generality of the commands.
Fairly straightforwardly, a general command for everybody to X on pain of punishment is a law while a speecific command for John Smith to do X would not count as a law. Austin’s theory does not really account for the difference. Of course, with a minor modification, this could be solved. There are, however, more serious problems
2. Who is the sovereign?
There is a very real difficulty in pointing out who the sovereign is in more modern constitutional democracies. I will use the american system as a model because it is quite complicated. Here are some candidates
- The People
- The legislature
- The executive
- The judiciary
- The constitution
- The legislature, executive and judiciary are jointly sovereign.
- Some other combination of the above are jointly sovereign
Very straightforwardly, the constitution cannot be the sovereign because the constitution is just a piece of paper. Papers do not give commands, persons (or bodies of persons) do. We can also rule out the “people”. The People end up obeying a lot of coercive commands, whether those are individual mandates to buy health insurance or injunctions against violence and theft. The legislature seems like a good candidate since it seems to be giving all the orders, but both the executive and the judiciary over-rule the legislature. The executive, however can also be over-ruled by the legislature and the judiciary. The judiciary is looking like a good candidate for sovereignty in the US. Noone can really over-rule the Supreme court, except that it is that the judiciary does a middling job of binding itself to the constitution as they interpret it and a supermajority in the legislature can change the constitution. But still, I suppose that if the supreme court were to throw down and ignore a new constitutional amendment (or interpret it so narrowly that they might as well ignore it), no one would be able to do anything about it (I’m sure liberals, libertarians and conservatives all have their own pet examples). Except that the executive nominates supreme court judges and the legislature confirms those nominations. Of course it is an open question as to how much that really checks the judiciary.
Of course, in parliamentary systems, things are simpler. The legislature is sovereign. The executive is formed from the legislature and the judiciary is subordinate (even though in practice they get a fair bit of latitude). Except that the head of state (queen/president) even though possessing a mostly ceremonial role.
Would it be worthwhile considering if the judiciary, the legislature and the executive were jointly the sovereign? Possibly, except that we wouldn’t be able to make sense of laws allowing one branch to limit the other. Can the sovereign give an order to itself? It would have to be one of the three branches. In at least the American system the most likely candidate looks like the judiciary. However, that would only be the case if the nomination and confirmation process failed to effectively limit the judiciary.
Anyway, let’s just chalk this up to a maybe. The US itself may have a sovereign, but surely it’s conceptually possible for a system like the US to exist in which the judiciary was more constrained. For example, as per the wet dreams of Newt Gingrich, if the legislature could impeach a sitting member of the supreme court, then it would not be clear who the sovereign is. It is possible that there may be no true sovereign at all. Yet, even then, we certainly wouldn’t want to claim that the US had ceased to have any laws would we?
3. Continuity of the law
Let us leave aside the complicated example of modern systems and look at certain hypothetical Hobbesian political systems. In absolute monarchies, the king is sovereign. In absolute monarchies, there is often a rule of succession to designate the political heir. The rule of succession may be made when the old king is still alive, but it only kicks in when the old sovereign is dead. It also has to kick in before the heir becomes king (and thus the sovereign). It is in virtue of the rule of succession that the heir becomes king. If that is the case, then the rule of succession must have the force of law. But who is that gives the command in virtue of which said command becomes law? The dead sovereign who is not around to fulfill the threat that supposedly backs such orders? Or is it the sovereign to be whose legal authority is founded on such orders?
Let’s say that neither is the case. The rule of succession does not really have the force of law. What is it that determines the next sovereign? Power? How is it that the heir in waiting often just gets the power? If rules of succession are just words in the air, how is it that we are often able to distinguish between “lawful” successions and coups.
Varys of course hints at the correct answer. But that correct answer will not be discussed here. Let me leave something for next week. For now, here is a hint: It has something to do with the concept of legitimacy. The notion of legitimacy needs more extensive treatment and so, will not be done in this post.
4. Contracts and Nullity
Contract law is a significant body of law that is obviously law, yet doesn’t fit very well into the framework of coercive commands. There are of course some aspects of contract law which are coercive. There are parts of contract law that provide for an injunction for one party to fulfill his end of the bargain, the failure of which results in sanctions against the defaulter. This is not always the case. Often, default on the part of one party results in the nullification of the contract. However, nullification is not coercive. What does nullification involve? It involves the state refraining from requiring either party to fulfill their end of the contract. In a null contract, people can still fulfill their own end of the bargain if they wanted to. What this means is that what contract law does is empower private citizens to call on state resources to force compliance in some cases. The thing is this: Such commands are not aimed at the people who would be forced to comply with contracts. Rather it is aimed at officials giving them instructions in how to deal with a certain class of disputes. By contrast, the law against murder is not merely directed at officials, it is directed at people to tell them to refrain from murder on pain of punishment. sometimes nullity may even be desirable (e.g anullmnt of marriage)
5. Public power conferring rules
Contract law therefore covers a number of private power conferring rules. i.e. rules that confer power to private individuals. There are other laws, however, that confer power to public officials. These rules set out the limits and the roles of the various branches of government. Many of these rules are often found in the constitution, but this need not be so. Some acts of the legislature simply authorise the executive to set up regulatory bodies and other statutory boards. The question that faces those who would deny that these are part of the law is what they would be if they weren’t.
6. Procedural rules.
There are rules that set out procedures that should be followed, for example, in order for a proposed piece of legislations to become law. It’s not just that a majority of the members of the legislature should agree to a motion, it should happen in the right setting. For example, if all the MPs were at the pub and then all said yea to the motion of whether there should be free beer in the halls of parliament, this does not count as a law simply because the proper procedures were not followed. These procedural limits would thus limit everyone even putative sovereigns. But Austin’s theory doesn’t explain how this could be possible.
There are just really two good things about Austin’s theory.
1. It emphasises the coercive nature of many of the laws we have. This is an important aspect of a good many laws. It is not clear if a primary rule (i.e. the kind that forbids or demands specific or classes of action) would count as a law without the use of force.
2. The Austinian theory takes an external point of view. If true, any stranger, even a psychopathic martian would be able to grasp the concept of law and point to what the law is. The difference between this and the internal view will be discussed next week. Our conceptual tools should aim as far as possible to put things in terms of a God’s eye view.