Was John Austin’s theory of sovereignty a purely conceptual one, or did he seek to describe empirical facts?

For John Austin all law that is properly so-called as law that can be the subject of jurisprudence is human law, and so there can exist no natural law. To put more accurately there can be gained nothing of importance or meaning from that which could be called natural law. He poses a positivist theory of jurisprudence that suggests that all laws are initially derived from commands as set out by a sovereign, from whom sanctions are enforced in instances of disobedience against that law — the fear of which coerces those citizens into obeying the law in the first place. For Austin “where a positive law, not fashioned on a custom, is favourably received by the governed and enforced by their opinions or sentiments, we must deem the so called law, set by those opinions or sentiments, a law imperative and proper of the supreme political power.”

For Austin it was crucial that there must be a development of law in a scientific way than looking at its morality and as a result he wanted to develop an analysis of law through the nature of commands, i.e. his theory of sovereignty. Austin’s positivist theory of separation of law from morality is one of a separation of what law is and what law ought to be — i.e. Austin’s jurisprudence recognizes only an arbitrary and coincidental connection between what law is (i.e. human laws, commands by a sovereign backed by a sanction) and what the moral normative values of the time are (what law ought to be). He states explicitly that “the existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.”

Within Austin’s theory every true law is a kind of command and the command is distinguished from other significations of desire, not by the style in which the desire is signified but by the power and purpose of the party (the sovereign) commanding to inflict an evil or pain (sanction) in case the desire might be disregarded by the other party (the populace). The duty to obey law as a result arises and they are more fundamental than rights, where the latter are purely derivative of the former. For Austin the commands create obligatory duties to obey.

Important definitive characteristics of the Sovereign for Austin are that it must a politically superior body that must be factually determinable and legally unlimited. For Austin, the sovereign must be habitually obeyed by the bulk of the population but cannot be under any scope of habitual obedience to any other institution or individual. Furthermore, the society must be both political and independent

An argument against Austin is Holmes whose portrayal of the law seems to be more accurate as it encompasses the idea that the Austinean command theory is not one reflecting positivist standards of law. Holmes rejects an Austinean definition of the Sovereign as the source of all law, which supposes that legal commands have presupposed an essential content (i.e. that law derived from the sovereign had both force and authority post-promulgation and application). However, this works in Austin’s favour, the supposition that the source of law whether it is based on one from the sovereign as a command or any other source has a distinct quality that is reflective of empirical facts. A purely positivist sovereign cannot exist as it fails to take into account that legal commands must have a distinct quality outside of their “source” (i.e. the sovereign) to enjoy the status of being law.

Austin’s sovereign itself has various interpretations. The sovereign can be interpreted as an institution that must be determinable, an abstract ideal rather than a physical entity where the legally unlimited sovereign with its supreme power is merely a position that is identified sociologically because of a habit of obedience that the bulk of society have in determining that an individual or a body of individuals in that position of sovereignty as a common superior. In other words, the idea of sovereignty, and the idea of a sovereign as an institution, a position, a title would continue long after the physical representation of the sovereign as a King, a parliament, a government are dead or removed from office.

However, for Roger Cotterell, the view of the sovereign is in relation to power. The individual or body that retains power retains the office and title and can be so called the sovereign. Echoing Henry Maine whose main criticism of Austin revolves around the idea of his sovereign and its use of coercive forces as a social office, for Cotterell, the “existence of sovereignty is a political fact”. It is not because of habitual obedience that the sovereign has his power (but possibly so in the retention of that power); it is because the whole legal structure is an extensive modern power structure, an organisation of unlimited power from which law is derived. For Maine, Austin’s sovereign’s legal unlimitedness only arises out of the idea that each of its commands arises out of the notion of force and as a result the law, right and duty and conceptions of those are “regarded exclusively as products of coercive force”.

Maine argues, and quite rightly, that such a legal entity, regardless of whether its products arise out of force, does not take into account customary law that has existed independently of the sovereign — however, the argument stands that where laws that are yet to be enforced by courts are merely positive moral rules, and where they are then enforced by courts, their property changes to become commands of the sovereign. But there are in existence laws that are not imposed by a sovereigns command nor enforced by sanctions supplied by that same sovereign power, i.e. that this positive morality exists that “operate on men and sovereigns”, and it is the indirect sanction that arises to give it the value of law in public disapprobation. So there can exist rules of legal characteristics that have sanctions arising from their very nature without the enforcement of those sanctions coming from the Sovereign.

Although Austin may call it morality, there are rules that are dependent on the approval of the bulk of society that the sovereign is limited by. As a result, it is through these rules that laws that may be improper or arbitrary are disallowed — public disapproval arising out of positive morality and it’s refusal for Austin to take into account as law or as limiting the sovereign fails to describe the empirical facts of the time. As Maine states, “The jurist…has nothing to do with any ideal standard of law or morals.”

However, there is still a failure to recognise that positive morals regardless of whether they have legal status or not can still influence the legal structure and behaviour, i.e. that it could be possible for an Austinean argument that these positive morals will inevitably be posited into the legal structure because they have remained constant and consistent and have garnered consistent public disapproval. Such incorporation of morality into the law though warranted by an Austinean mode of law, goes against the idea that positive morality is distinct from law. If one can become the other, surely then morality must have some pseudo-legal quality even though it’s not derived from the sovereign?

Although it can be continued to be argued that until positive morality is incorporated in the legal structure, there exists a moral rather than legal structure guiding people’s behaviour through disapprobative sanction methods, and in that collective group of people is included the sovereign. Where there are positive moral values held by the populace and the (possibly) coincidental content of the command by the sovereign, it is easy for conclude that the habit of obedience is to the sovereign because the threat of sanction is greater than public disapprobation. However, most people follow the law not because they are afraid of the power of the sovereign, or the threat of sanction but because of their own morality, which is reflected by the law. Austin fails to take into account the empirical fact that it is the populace that determines the law governing them. His theory is conceptual in that positive morality as he refers to is a determinable factor of what the law is, and not incidental or independent of it. Although habitual obedience is an argument for Austin in that it grants the sovereign power and thus they will be habitually obedient to the law that stems from him, but people are also habitually obedient to positive morality. Habitual obedience is not as accurate or as important as Austin has deemed it to be.

Even though Maine explains Austin’s approach to the common law as being under the sovereign’s command through Austin’s use of the maxim, “Whatever the sovereign permits, he commands” — it seems almost contradictory to the approach that law is a sovereign’s command. Austin’s admission here by allowing the common law as part of the sovereign’s commands takes into account the empirical facts of the time, however, it is contradictory the idea central to his entire theory that law the sovereign has indirectly and passively agreed to by being silent on the matter, whereas the impression of Austin’s actual sovereign is one that actively is commanding what the law is rather than passively accepting what it is being told it already is. Though the convenient maxim extends the sovereign’s powers from being merely legally limitless to being completely limitless, i.e. where a sovereign has a passive power to govern in non legal rather than only on the legal structure and the current positive laws.

Furthermore, he misunderstands that people are not habitually obedient to a person or a sovereign or even the abstract entity or ideal of what a sovereign is or what it stands for; people are habitually obedient to acting a certain way. For Austin it is the sovereign that is the source of law, and it is that source of law that commands action. However, in reality people act a certain way because of their moral values and it is that morality that brings about an objective legal standard in “law”. Positive law reflecting this always comes after the actions have taken place. It is not enough to suppose that whatever the sovereign permits, he commands; which also in fact implies that by whatever the sovereign permits (i.e. by allowing some practice of positive morality by not outlawing it), the sovereign has to logically admit that that practice which can be deemed law has not originated from the sovereign himself, which although accurate in describing empirical facts is inherently against the idea of an Austinean sovereign.

Taking the Common Law as an example of law that has not originated from the sovereign himself, we can see that it holds a more special place in Austin’s legal theory than mere practices of positive morality. Although at the time customary law was heralded as a source of existing law, where judicial decisions were the supreme authority because of common law reasoning and one that followed ideas of collective wisdom over time, Austin’s view of law as being “imperium oriented” rather than “community-oriented” went against the legal beliefs at the time. The idea that law should reflect the community were the empirical facts of the time, however, to define it as rules that are an imposition from a superior authority is a more centralised idea of government that indicates that Austin’s work was intended to be and was a conceptual theoretical piece. It is not a theory of law, as Cotterell states, but in fact a “a theory of the rule of men”, where it is the “human decision makers with all their frailties and potential for arbitrary or tyrannous exercise of power…of government using law as an instrument of power”.

The Common Law itself was a result from the idea that the sovereign had delegated power to the judiciary, where fundamental powers the sovereign has including that of delegating, administering and legislating. A command for the sovereign is either “express or tacit” where “if the desire be signified by words (written or spoken), the command is express and if the desire be signified by conduct (or by any signs of desire which are not words), the command is tacit.” Austin argues that where customs are turned into legal findings and legal rules through judicial decision-making, such “law” that emerges from customs are the tacit commands of the sovereign legislature. For Austin, the judiciary are not arbitrary or undemocratic, and judicial decisions are no less different from any other institution with delegated power, i.e. from any other subordinately legislating body that the sovereign has already delegated and trusted with law making functions because “they shall serve as the law governed” As Cotterell states, that “each dispersion of sovereign power is a delegation, not a release of it. However, he was inherently clear on his preference over legislative law than judicial decisions, deeming the former superior

However, Austin’s argument against the judiciary is based on the very thing that could possibly be their redeeming qualities. For Austin a common law based system is one that is riddles with inconsistencies. Judicial decisions for him tend to be made in accordance with the “childish fictions employed by our judges, that judiciary or common law is not made by them, but a miraculous something, made by nobody, existing from eternity, and merely declared from time to time by the judges.”. They are inconsistent, based on the whims and moods of several different judges saying different things at different times. For Austin they are vague and unclear.

Austin’s rejection of the idea of judicial decisions as primary law is difficult to understand where judicial interpretation (at the very least in a non common law based system like Austin’s) is the first instance application of the legal commands of the sovereign itself. Surely to give it subordinate status, inferior status to that of legislative law is difficult to understand because application of superior law should quite frankly not lead to the development of inferior law (i.e. judicial decisions), where the whole purpose of Austin’s theory is to create a legal structure with certainty in the source of law. Allowing the acceptance of judicial decisions even as delegated, subordinate pieces of legislation that a sovereign has admitted passively is although a reflection of the empirical facts of the time and of the necessity of a judiciary, it however does go against his own conceptual idea that law is a command.

Maine further comments that the idea of Sovereignty for Austin is universal, however, Austin admits that there exists an exception to that, i.e. that there exists a state of nature where the either the populace has not yet formed a political society or habitually obey their chief. For Austin, the idea is that “Political power necessarily implies the union of several families”. For Maine however, there are two types of organized political society: “In the more ancient of these, the great bulk of men derive their rules of life from the customs of their village or city, but they occasionally, though most implicitly, obey the commands of an absolute ruler who takes taxes from them but never legislates. In the other, and the one with which we are most familiar, the Sovereign is ever more actively legislating on principles of his own, while local custom and idea are ever hastening to decay”. In the latter more Austinean organized political society, for Maine, rules have less superstitious and customary elements to them, and the sovereign uses coercive force to deal with a much larger group of people with greater classes of persons “rather than with isolated acts and individuals”.

He distinguishes between force in society and force in the home, and as a result his admissions that customary law is “not obeyed as enacted law is obeyed” arises out of notions of size. Where force is not particularly necessary in smaller groups of society and people, i.e. where the rule itself has sanctions arising out of what would be called positive morality later on (opinions and superstition rather than law), it becomes integral to society where rules have to then be obeyed where laws “emanate from an authority external to the small natural group and forming no part of it”. However, the issue at hand is the idea of force still. Regardless of whatever legal structure there is, whether it’s formal or informal, all laws whether they are laws or positive morality or arising out of familial patriarchy require force to enforce the sanctions to elicit obedience. Unlike Austin, Law, Maine argues, does not need to be a Sovereign’s command backed by sanction and habitually followed by society; Law needs force. The other parts of Austinean theory are almost irrelevant because he hasn’t accounted for the fact that this force is necessary for a legal structure to remain in some sort of order. It can be argued then that force and sanctions is a more accurate empirical representation of eliciting obedience from the populace than a combination of habit and sanctions.

HLA Hart also posits arguments against the command theory that imply that Austin’s ideas were merely conceptual and contradictory to empirical facts. For example, both Hart and Kelsen recognise that Austin’s theory is flawed in the sense that there exist and have existed legal structures that survive independently of a Sovereign that posits their laws. Furthermore, Austin himself had difficulty in determining who that Sovereign is. The interpretive nature of the concept of the sovereign leads to an uncertain model upon which the entire concept of the command theory is based. Austin’s refusal to acknowledge moral concepts in determining and limiting the sovereign also pave the way for tyrants who meet the standard for the sovereign, but whose laws may not be construed as law because they are forced upon the populace. But Maine argues that the definition of a Tyrant includes one that subverted the laws, and regardless of this, a tyrant would satisfy all Austinean tests of sovereignty. However, an Austin’s sovereign, with his legally unlimited supreme power, could command that he is not a tyrant, and from thereon, he would not subvert the laws because he or it makes the laws because of the coercive force he may use. Or possibly on a more natural law based scale, the analysis of the sovereign can never really be concluded to include ideas that a sovereign can subvert the laws because of the following argument:

The sovereign cannot subvert the laws, because the sovereign commands what the law is to be. A sovereign cannot permit his own subversion of the law because he would no longer be the sovereign. Furthermore, more quintessentially, a sovereign is incapable of subverting the laws because he is a legally unlimited supreme entity. The individual or the collective group acting as sovereign may subvert the law, but the actual position of sovereign is incapable of being a tyrant, or incapable of acting as such as to subvert the law. The abstract entity and understanding of the sovereign cannot be a tyrant, it can only be a sovereign, the individual acting as the sovereign can be a tyrant, and therefore would lose his sovereignty. However this would then mean that there exists a legal structure independent of whatever the current one is, and where that’s voided (i.e. through tyranny), then that human sovereign cannot measure up to the abstract sovereign ideal.

Furthermore, Hart argues the need for both primary and secondary rules; the idea that all rules can be reduced to one legal command is a reductionist view that Hart does not believe can be an accurate representation of a complex positivist legal system. For him the predictive interpretation obscures the fact that, where rules exist, deviations from them are not merely grounds for prediction that hostile reactions will follow…. but are also deemed to be a reason or justification for such reaction and for applying the sanctions.’

To conclude, quite simply put Austin’s theory is one that is most definitely conceptual. Though he has tried to describe important empirical factors, the essence of his theory is purely conceptual. The existence of a sovereign cannot merely occur through habit and obedience and sanctions alone; the legal system for the modern world, and even for the world during the time of Austin’s writing was much more complex and did not require a reductionist definition as that would be one that was unsatisfactory. Furthermore, Austin’s theory itself was contradictory and hypocritical in places, and in others, logically incoherent. However, he attempted to include issues that were although empirical, were also ideal representations of how to deal with situations. The idea of sanction for example is a necessary requirement for the enforcement of laws and this is visible from empirical facts and references, however to complete that enforcement is required the habitual obedience by the populace to the sovereign — which is neither accurate nor necessary. Furthermore, Austin’s theory allows the idea of tyrant and gives it legal status as a sovereign, however it’s a more accurate representation of legality to deny the subversion of laws. Austin also fails to determine the true purpose of laws, which may or may not be determinable from childish fictions, but to reject them in favour of utility is to reject the communitarian living under a legal regime. Finally, Austin’s conflicted relationship with delegation and the judiciary as well as his admission of positive morality although reflective of empirical facts are necessarily reduced to his conceptual theory where they become wholly different from what they actually are. Austin’s theory is one that is wholly conceptual and one that reduces empirical facts to that conceptuality.

BIBLIOGRAPHY

BOOKS

• John Austin, The Province of Jurisprudence Determined, 1832
• John Austin, Lectures on Jurisprudence
• Henry Maine, Lectures on the Early History of Institutions
• HLA Hart, Concept of Law,
• Anthony James Sebok, Legal Positivism in American Jurisprudence, Cambridge University Press, 1998
• Roger Cotterell, The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy (2nd Ed), Oxford University Press, 2003

WEB SOURCES

• Marmor, Andrei, “The Nature of Law”, The Stanford Encyclopedia of Philosophy (Winter 2011 Edition), Edward N. Zalta (ed.), http://plato.stanford.edu/archives/win2011/entries/lawphil-nature
• Green, Leslie, “Legal Positivism”, The Stanford Encyclopedia of Philosophy (Fall 2009 Edition), Edward N. Zalta (ed.), http://plato.stanford.edu/archives/fall2009/entries/legal-positivism/
• Bix, Brian, “John Austin”, The Stanford Encyclopedia of Philosophy (Spring 2010 Edition), Edward N. Zalta (ed.) http://plato.stanford.edu/archives/spr2010/entries/austin-john