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Law
(Part 2)



Analytical Jurisprudence, according to John Austin

The "science of law," as the expression is generally used, means the examination of laws in general in one or other of the ways just indicated. It means an investigation of laws which exist or have existed in some given society in fact—in other words, positive, laws ; and it means an examination not limited to the exposition of particular systems. Analytical jurisprudence is in England associated chiefly with the name of JOHN AUSTIN (q.v.), whose Province of Jurisprudence Determined systematized and completed the work begun in England by Hobbes, and continued at a later date and from a different point of view by Bentham. The best view of the subject will be obtained by taking Austin’s principal positions in outline, and considering the criticism which later jurists have bestowed upon them.

Austin’s first position is to distinguish between laws properly so called and laws improperly so called. In any of the older writers on law, we find the various senses in which the word is used grouped together as variations of one common meaning. Thus Blackstone advances to his proper subject, municipal laws, through (1) the laws of inanimate matter, (2) the laws of animal nutrition, digestion, &c., (3) the laws of nature, which are rules imposed by God on men and discoverable reason alone, and (4) the revealed or Divine law, which is part of the law of nature directly expounded by God. All of these are connected by this common element that they are "rules of action dictated by some superior being." And some such generalization as this is to be found at the basis of most treatises on jurisprudence which have not been composed under the influence of the analytical school. Austin disposes of it by the distinction that some of those laws are commands, while others are not commands. The so-called laws of nature are not commands; they are uniformities which resemble commands only in so far as they may be supposed to have been ordered by some intelligent being. But they are not commands in the only proper sense of that word,--they are not addressed to reasonable beings, who may not will obedience to them. Laws of nature are not addressed to anybody, and there is no possible question of obedience or disobedience to them. Austin accordingly pronounces them laws improperly so called, and confines his attention to laws properly so called, which are commands addressed by a human superior to a human inferior.

This distinction seems to simple and obvious that the energy and even bitterness with which Austin insists upon it now seems superfluous. But the indiscriminate identification of everything to which common speech gives the name of a law was, and still is, a fruitful source confusion. Blackstone’s statement that when God "put matter into motion He established certain laws of motion, to which all movable matter must conform," and that in those creatures that have neither the power to think nor to will such laws must be invariably obeyed, so long as the creature itself subsits, for its existence existence depends on that obedience, imputes to the law of gravitation in respect of both its origin and its execution the equalities of an Act of Parliament. On the other hand the qualities of the law of gravitation are imputed to certain legal principles which, under the name of law of nature, are asserted to be binding all the over the globe, so that "no human laws are of any validity if contrary to this." Nonsense like this so exasperated Austin that he never fails to stigmatize the use of "natural laws" in the sense of scientific facts as improper, or as metaphorical. A later writer has pointed out hat law in scientific sense has acquired a position of its own, from which it is impossible to dislodge it, and which involves none of the ambiguities and confusions against which Austin protested. It would be as reasonable for the of science as for the jurist to set up his own conception of law as the only legitimate one. There is perhaps only one field of inquiry where the two opposed conceptions law are still to be found entangled. The "laws of political economy" still hover in the minds of many between the jural and the scientific conception. Certain economical principles appear to have acquired a double character, —that of scientific generalizations, and that of rules which may be disobeyed. Measures are pronounced to be a violation of the laws of political economy, with a vague implication that these being laws of nature any violation of them must be particularly heinous. Having eliminated metaphorical or figurative laws, we restrict ourselves to those laws which are commands. This word is the key to the analysis of law, and accordingly a large portin of Austin’s work is occupied with the determination of its meaning. A command is an order issued by a superior to an inferior. It is a signification of desire distinguished by this peculiarity that "the party to whom it is directed is liable to evil from the other, in case he comply not with the desire." "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." Being liable to evil in case I comply not with the wish which you signify, I am bound or obliged by it, or I lie under a duty to obey it. The evil is called a sanction, and the command or duty is said to be sanctioned by the chance of incurring the evil. The three terms command, duty, and sanction are thus inseparably connected. As Austin expressed it in the language of formal logic, "each of the three terms signifies the same notion, but each denotes a different part of that notion, and connotes the residue."

All commands, however, are not laws. That term is reserved for commands which oblige generally to the performance of acts of a class. A command to your servant to rise at such an hour on such a morning is a particular command, but not a law or rule ; a command to rise always at that hour is a law or rule. Of this distinction it is sufficient to say in the meantime that it involves, when we come to deal with positive laws, the rejection of particular enactments to which by inveterate usage the term law would certainly be applied. On the other hand it is not, according to Austin, necessary that a true law should bind persons as a class. Obligation imposed on the grantee of an office specially created by parliament would imply a law ; a general order to go into mourning addressed to the whole nation for a particular occasion would not be a law.





So far we have arrived at a definition of laws properly so called. Austin holds superiority and inferiority to be necessarily implied in command, and such statements as that "laws emanate from superiors" to be the merest tautology and trifling. Elsewhere he sums up the characteristics of true laws as ascertained by the analysis thus : -- (1) laws, being commands, emanate form a determinate source ; (2) ever sanction is an evil annexed to a command ; and (3) every duty implies a command, and chiefly means obnoxiousness to the evils annexed to commands.

Of true laws, those only are the subject of juris-prudence which are laws strictly so called, or positive laws. Austin accordingly proceeds to distinguish positive from other true laws, which are either laws set by God to men or laws set by men to men, not, however, as political superiors nor in pursuance of a legal right. The discussion of the first of these true but not positive leads Austin to his celebrated discussion of the Utilitarian theory. The laws set by God are either revealed or unrevealed, i.e., either expressed in direct command, or made known to men in one or other of the ways denoted by such phrases as the "light of nature," natural reason," "dictates of nature," and so forth. Austin maintains that the principle of general utility, based ultimately on the assumed benevolence of God, is the true index to such of His commands as He has not chosen to reveal. His exposition of the meaning of the principles is a most valuable contribution to moral science, though he rests its claims ultimately on a basis which many of its supporters would disavow. And the whole discussion is now generally condemned as lying outside the proper scope of the treatise, although the reason for so condemning it is not always correctly stated. It is found in such assumptions of fact as that there is a God, the He issued commands to men in what Austin calls the "truths of revelation," that He designs the happiness of all His creatures, that there is a predominance of good in the order of the world—which do not now command universal assent. It is impossible to place these propositions on the same scientific footing as the assumption of fact with reference to human society on which jurisprudence rest. If the "Divine laws" were facts like Acts of Parliament, it is conceived that the discussion of their characteristics would not be out of place in a scheme of jurisprudence.

The second set of laws properly so called, which are not positive laws, consists of three classes :—(1) those which are set by men living in a state of nature ; (2) those which are set by sovereigns but not as political superiors, e.g., when one sovereign commands another to act to a principle of international law ; and (3) those set by subjects but not in pursuance of legal rights. And (3) those set by subjects but not in pursuance of legal rights. This group, to which Austin gives the name of positive morality, helps to explain his conception of positive law. Men are living in a state of nature, or a state of anarchy, when they are not living in a state of government or as members of a political society. "Political society’ thus becomes the central fact of the theory, and some of the objections that have been urged against it arise from its being applied to conditions of life in which Austin would not have admitted the existence of a political society. Again, the third set in the group is intimately connected with positive laws on the one hand and rules of positive morality which are not even laws properly so called on the other. Thus laws set by subjects in consequence of a legal right are clothed with legal sanctions, and are laws positive. A law set by guardian to ward, in pursuance of a right which the guardian is bound to exercise, is a positive law pure and simple; a law set by master to slave, in pursuance of a legal; right which he is not bound to exercise, is, in Austin’s phraseology, to be regarded both as a positive moral rule and as a positive law. (FOOTNOTE 356-1) On the other hand the rules set by a club or society, and enforced upon its members by exclusion from the society, but not in pursuance of any legal right, are laws, but not positive laws. They are imperative and proceed from a determinate source, but they have no legal or political sanction. Closely connected with this positive morality, consisting of true but not positive laws, is the positive morality whose rules are not laws properly so called at all, though they are generally denominated laws. Such are the laws of honour, the laws of fashion, and, most important of all, international law.

Nowhere does Austins’ phraseology come more bluntly into conflict with common usage than in pronouncing the law of nations (which in substance is a compact body of well-defined rules resembling nothing so much as the ordinary rules of law) to be not laws at all, even in the wider sense of the term. That the rules of a private club should be law properly so called, while the whole mass of international jurisprudence is mere opinion, shocks our sense of the proprieties of expression. Yet no man was more careful than Austin to observe these properties. He recognizes fully the futility of definitions which involve a painful struggle with the current of ordinary speech. But in the present instance the apparent paralogism cannot be avoided if we accept the limitation of laws properly so called to commands proceeding from a determinate source. And that limitations is so generally present in our conception of law that to ignore it would be a worse anomaly than this. No one finds fault with the statement that the so-called code of honour or the dictates of fashion are not, properly speaking, laws. We repel the same statement applied to the law of nature, because it resembles in so many of its most striking features—in the certainty of a large portion of it, in its terminology, in its substantial principles—the most universal elements of actual systems of law, and because, moreover, the assumption that brought it into existence was nothing else than this, that it consisted of those abiding portions of legal systems which prevail everywhere by their own authority. But, though "positive morality" may not be the best phrase to describe such a code of rules, the distinction insisted on by Austin is unimpeachable.





The elimination of those laws properly and improperly so called which are not positive laws brings us to the definition of positive law, which is the keystone of the system. Every positive law is "set by a sovereign person, or sovereign body of persons, to a member or members of the independent political society wherein that person or body is sovereign or superior." Though possibly sprung directly from another source, it is a positive law, by the institution of that present sovereign in the character of a political superior. The question is as to the historical origin of the principle, but as to its present authority. "The legislator is he, not by whose authority the law was first made, but by whose authority it continues to be law." This definition involves the analysis of the connected expressions sovereignty, subjection, and independent political society, and of determinate body,—which last analysis Austin performs in connexion with that of commands. These are all excellent examples of the logical method pf which he was so great a master. The broad results alone need be noticed here. In order that a given society may form a society political and independent, the generality or bulk of its members must be in a habit of obedience to a certain and common superior ; whilst that certain person or body of persons must be habitually obedient to a certain person or body. All the italicized words point to circumstances under which it might be difficult to say whether a given society is political and independent or not. Several of these Austin has discussed,—e.g., the state of things in which a political society yields obedience which may or may not be called habitual to some external power, and the state of things in which a political society is divided between contending claimants for sovereign power, and it is uncertain which shall prevail, and over how much of the society. So long as that uncertainty remains we have a state of anarchy. Further, an independent society to be political must not fall below a number which can only be called considerable. Neither then in a state of anarchy, nor in inconsiderable communities, nor among men living in a state of nature, have we the proper phenomena of a political society. The last limitation goes some way to meet the most serious criticism to which Austin’s system has been exposed, and it ought to be stated in his own words. He supposes a society which may be styled independent, which is considerable in numbers and which is in a savage or extremely barbarous condition. In such a society, "the bulk of its members is not in the habit of obedience to one and the same superior. For the purpose of attacking an external enemy, or for the purpose of repelling an attack, the bulk of its members who are capable of bearing arms submits to one leader or one body of leaders. But as soon as that emergency passes the transient submision ceases, and the society reverts to the state which may be deemed its ordinary state. The bulk of each of the families which compose the given society renders habitual obedience to its own peculiar chief, but those domestic societies are themselves independent societies, or are not united and compacted into one political society by habitual and general obedience to one common superior, and there is no law (simply or strictly so styled) which can be called the law of that society. The so-called laws which are common to the bulk of the community are purely and properly customary laws—that is to say, laws which are set or imposed by the general opinion of the community, but are not enforced by legal or political sanctions." Such, he says, are the savage societies of hunters and fishers in North America, and such were the Germans as described by Tacitus. He takes no account of societies in an intermediate stage between this and the condition which constitutes political society.

We need not follow the analysis is detail. Much ingenuity is displayed in grouping the various kinds of government, in detecting the sovereign authority under the disguises which it wears in the complicated State system of the Unites States or under the fictions of English law, in elucidating the precise meaning of abstract political terms. Incidentally the source of many celebrated fallacies in political thought is laid bare. That the question who is sovereign in a given state is a question of fact and not of law or morals or religion, that the sovereign is incapable of legal limitation, that law is such by the sovereign’s command, that no real or assumed compact can limit his action—are positions which Austin has been accused of enforcing with needles iteration. He has cleared them, however, from the air of paradox with which they had been previously encumbered, and his influence was in no direction more widely felt than in making them the commonplaces of educated opinion in this generation.


FOOTNOTES

356-1 This appears to be an unnecessary complication. The sovereign has authorized the master to set the law, although not compelling him to do so and enforces the law when set. There seems no good reason why the law should be called a rule of positive morality at all.


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