by Tim Sommers
John Austin was cursed with famous friends, among them Jeremy Bentham, Thomas Carlyle, James Mill and Mill’s son John Stuart, whom Austin tutored in the law. Cursed because, while they were all impressed by his intellect and predicted he would go far, he did not. His nervous and depressive disposition combined with his ill-health lead to his failure as a lawyer, an academic, and as a government official. In 1832, Austin wrote The Province of Jurisprudence Determined, which almost no one read and promptly went out of print. Almost thirty years after his death, his widow published a second edition. This time, everybody read it.
Austin is considered the first positivist. Positivism is so-called because the law, on this account, is a “posit.” That is, all law is human-made, separate from morality, and identifiable as law by the details of how it came about – and (most importantly) the fact that the source of law is habitually obeyed. Positivism aspires to be an empirical approach to the law. So, Austin says laws are rules, but, empirically, are also a species of command.
Specifically, a law is a command made to a subject, or political inferior, by a sovereign, or political superior, habitually obeyed, who can back the command up with a credible threat of punishment of sanction. No law without sanction. If I offer money to whomever finds my dog, even if I am the sovereign, it’s not a law.
There are problems with this approach. First of all, it seems to apply best to criminal law – and only with retrofitting to other kinds of law. As my Constitutional law professor, Paul Gowder, used to say, despite what people think, “The law does not, primarily, tell people what they can’t do. It tells them how to do what it is that they want to do. Get married. Open a business. Drive a car. Make a will.”
Secondly, in post-monarchial society, who exactly is the sovereign? Austin himself had difficulty. He was forced to describe the British “sovereign” of the time, awkwardly, as the combination of the King, the House of Lords, and all the electors of the House of Commons.
Finally, as Hart emphasized, it’s not clear, on this account, that we can make a principled distinction between the commands of the sovereign and the commands of a criminal with a gun. Read more »