The Evil That Men Do 2 – John Austin

Posted in Inspirational, Thoughts by drsivalaw on September 10, 2008

Let me begin by examining the various juristic traditions and their justifications and possible motivations. I think a good starting point is a theory that asserts that LAW IS POWER.

John Austin’s Positivism
Austin more than any other jurist provided a compact and systematic formulation of a conception of law which allowed an escape from the tradition bound theory implicit in classical English common law thought. He offered a way of looking at law that made legislation central rather than peripheral. Perhaps an indication of the times in which he lived, the gradual secularization of the state and the ascendancy of Parliament over the King and the Church. His legal theory recognized the reality of the modern state as a massive organization of power. Tearing down mercilessly pretensions about justice and its relationship with law.
I repeat a sentiment expressed earlier,
“The science of jurisprudence is concerned with positive laws, or with laws strictly so called, as considered without regard for their goodness or badness.”It is important to understand that the primary motivation for Austin in his jurisprudence was his disenchantment with the English common law. He was generally hostile about judge made law. His teacher, Jeremy Bentham, once wrote that judge made law is like waiting for one’s dog to do something wrong and then beating it. The common law had a reactive focus rather than a pro-active one. It was not a progressive system of law. By contrast, Austin saw Roman law, especially as interpreted and developed by continental civil jurists as the epitome of a rational legal order vastly superior to the English common law in its organization and coherent development. He says of it, “ Turning from the study of the English to the study of the Roman Law, you escape from the empire of chaos and darkness, to a world which seems, by comparison, the region of order and light.”

The Command Theory

The proper “Province of Jurisprudence” is positive law and the ‘key in the sciences of jurisprudence and morals’ is the ‘command’, Austin claimed. For this reason his theory is referred to as ‘The Command Theory of Law’.
“A law in the most general and comprehensive acceptance in which the term, in its literal meaning, is employed, may be said to be a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.”Hence put succinctly: “LAW IS THE COMMAND OF A SOVEREIGN”

The Command
The command is basically an order that is validated by the political system and enforced by the use of sanctions. Hence the idea of command is closely linked to the force that is used to compel compliance.
Austin defines law as a species of command, like Hobbes before him. Austin is direct and straightforward in his characterization of law. For him power is central to law. Thus the sanction is an important part of the command. Austin says that the must be an actual likelihood of a sanction being imposed. This is because for Austin it is the sanction, which supplies the motive for compliance.
Therefore what Austin is saying is that people obey laws because of their fear of sanctions. Austin goes on to say that ‘the greater the sanction and the greater the likelihood of it being applied, the greater the obligation’ under the law. This is essentially a simple idea – Austin is saying that because the penalty for murder is life imprisonment and the penalty for a traffic offence is a fine, people feel under a greater obligation not to commit murder. Similarly he is saying that people are more likely to stop at the red traffic light at 12 noon, then at 2am in the morning because the likelihood of detection is greater at 12 noon.

The Sovereign
The distinctive feature of law is that it law is the command of the ‘Sovereign’ not anyone else.
He says, the sovereign is “a determinate human superior, not in a habit of obedience to a like superior, (and who) receives habitual obedience from the bulk of a given society…..that determinate superior is sovereign in that society, and that society… a society political and independent.”
Austin’s concept of the sovereignty is highly controversial. Positive law is the command of the sovereign. The sovereign is an actual person or an assemblage of persons who do not habitually obey anyone but who are habitually obeyed by everyone in an independent political society.
Austin says there are two marks of sovereignty: first, the sovereign must be ‘habitually obeyed’ by the ‘bulk’ of the society (a condition of general efficacy), this being the positive mark of sovereignty, second, the sovereign does not habitually obey anyone else, this being the negative mark of sovereignty. He says two consequences flow from this definition, the sovereign is legally indivisible (the positive mark) and the sovereign is not capable of being legally limited (the negative mark).

Something to think about
Although it appears that commands flow from the sovereign, when Austin’s definition of the Sovereign is closely analyzed, it becomes clear that it is the ability to command habitual obedience that makes someone the sovereign. Therefore the question is: Is it because a person is habitually obeyed that he is able to command, or is it because he is able to command that he is habitually obeyed?

(To be continued)


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