John Austin: The Province of Jurisprudence Determined – The limits of utilitarianism

Although Austin advocates utilitarianism in case of determining the commands of divinity, he is aware of its limits, which are ultimately the limits of the human mind. In other words, there are numerous possible cases to consider and no single person can ever determine the proper course of action for all of them, and indeed, most people have never enough time to determine even the most central duties.

Austin’s answer is that this problem is actually common to all sciences. For instance, no single person can find out all the truths of mathematics, but these have been revealed bit by bit by different mathematicians. Indeed, even nowadays no one knows everything in mathematics perfectly and even the mathematicians must rely on the authority of other mathematicians to be convinced of such mathematical truths they have not had the opportunity to study themselves.

Austin admits that the case of ethical studies is still somewhat different from other sciences, because there are not that many impartial persons researching ethics, but essays on ethics are often marred by personal interests or by adherence to unreasoned customs. Because of this, no reliable consensus has been reached and thus there is as yet no ethical authority to follow.

Yet, Austin sees this lack more as a temporary impediment than as a permanent obstacle for the development of ethics. Indeed, he is certain that there is an extensive consensus at least of the basic principles of ethics. Austin even suggests that anyone could by now learn these principles and thus develop a trust on the authority of professional ethicists applying these principles to practice: he gives a somewhat hopeful example that the poor will completely stop thieving, once they have understood that the institution of private property is good for the whole society. In any case, Austin insists, the more the utilitarian principles will spread among the populace, the more people there will be to do proper scientific ethics.

A faultless system of ethics can never be found, Austin says. Still, we as a society can at least improve our understanding of ethics and come more and more closer this system and full knowledge of God’s commands.

John Austin: The Province of Jurisprudence Determined – Divine law

After determining the general definition of law or rule, Austin proceeds to distinguish human made law from divine law. As one might expect, he characterises the divine law as decreed by God. Duties toward divine law are then religious duties and violations of those duties are sins. Like all violations, sins lead to sanctions – religious sanctions – which God should inflict in this life or in the life beyond.

Austin divides divine law into revealed law and unrevealed law. Revealed law should be based on the express commands of God. Then again, unrevealed law, although given by God, should not be based on their express command. In fact, Austin says, unrevealed divine law is what is often called natural law and should be followed by all human beings, no matter whether they have heard divine commands. The problem is, how human beings become aware of the unrevealed divine law.

Austin thinks there are only two theories for the criterion of the unrevealed divine law. First of these theories, he says, states that all human beings have universal sentiments for approving certain actions and disapproving others. This moral feeling or conscience is, according to this theory, given to humans by God, for the purpose of discerning what God has commanded.

The other theory, Austin continues, is that the natural law must be discovered through reason, with the aid of the principle of general utility. Austin is here basing utilitarianism in the benevolence of God, who wants the happiness of all sentient creatures and has thus decreed that they should do things increasing general happiness and avoid things decreasing it.

Austin explains that the principle of general utility is meant to be applied to general tendencies: what would be the result for the general happiness of humankind, if an act of certain kind would be generally done or avoided? Thus, although an action would as such increase the happiness of humankind – say, when a poor person steals something from a rich person, who doesn’t even notice the theft – the action would still be forbidden, because universal permission of thievery would make the whole institution of property impossible. On the other hand, although punishment as an individual action is detrimental to human happiness, it is useful as a foundation of a general system of laws. Hence, Austin concludes, God’s commands are, for the most part, general rules that are to be followed with no exception.

Austin notes a common objection to utilitarianism: if we really had to make precise calculations whether an action contributed to the general happiness of humanity, we would never have time to act, since such deliberation would be too difficult. Austin answers, firstly, by noting that if we do not have any immediate moral sense, as suggested by the first theory, this deliberation is our only possibility to find out the divine commands. Secondly, he notes that the deliberation is meant only for testing general rules of action, which can then be applied without a moment’s notice. Furthermore, Austin adds, we do have sentiments for these rules – for instance, we hate thievery – which provide immediate motives for our actions.

Austin admits that in some cases the general rules do not show us the best course of action. For instance, it is usually beneficial to follow one’s government, since anarchy is so detrimental to human happiness. Yet, in some cases the government itself might be of so great detriment to the happiness of its subjects that a revolution is in order. In such a case, Austin concedes, a deliberation about this specific action must weigh more than a deliberation about the general rule. In these cases the deliberation would take time, as supposed by the objection against the utilitarianism, but Austin considers this good, since one should not lightly act against general rules.

John Austin: The Province of Jurisprudence Determined (1832)

(1790–1859)

John Austin belonged to the utilitarian circle of Jeremy Bentham and James Mill. His field of study was jurisprudence, evidenced especially in his main work, The Province of Jurisprudence Determined.

The purpose of Austin’s book is to define the topic of jurisprudence, which he preliminarily determines as positive law. In other words, he tries to demarcate this positive law from other topics resembling and often confused with it. This means, firstly, distinguishing positive law from the other division of law, which Austin names divine law. While the divine law is given by God to human beings, positive law is given by human beings to other human beings, and usually by so-called rulers to their subjects. Furthermore, Austin distinguishes positive law from moral rules, which are also given by human beings to other human beings, but are not laws in the proper sense of the word – Austin calls the set of such rules the positive morality. Finally, Austin points out that there is a fourth kind of so-called laws, which are laws only metaphorically, such as the laws of animals, by which are only meant regularities of animal behaviour.

Austin’s method is to, firstly, define what we generally mean by law. After that, he aims to find the basic characteristics of divine law, in contrast with the positive law. Finally, he will characterise the difference of law and morality and the mere metaphorical use of the word law.

Austin characterises law as a kind of a command. Then again, he defines command as an explicit or implicit expression of a wish or a desire with the suggestion that the refusal to not fulfill this wish will result in something evil. Such a suggestion of evil makes the receiver of the command obliged or bound by duty to obey the command: a rather severe understanding of duty, since a fellow pointing a rifle at me obligates me then to do something. Austin goes even so far as to suggest that nothing can be a duty, if it does not correspond to some command.

The evil inflicted for the disobeying of the command Austin calls a sanction, which includes what are usually called punishments, although not all sanctions are punishments in the proper sense of the word. Austin carefully points out that the sanction in question need not be a strong one: indeed, otherwise it would not make sense why anyone would want to violate a command. Furthermore, he notes that rewards do not create in this manner obligations or duties, although they might provide an incentive to do something.

Austin divides commands into laws or rules and what he calls occasional or particular commands. The point of the division is that in the case of laws or rules the command is directed generally to a class of cases. Thus, commanding a servant to do a particular errand today is not a law or rule, but to order them to do such an errand everyday is a rule. Similarly, when a parliament declares all thieves to be hanged, this is a law, but when a judge orders a specific thief to be hanged, this is not a law. Austin admits that this division does not completely agree with the general usage of the words, and indeed, that some particular commands of Parliament have been called laws.

Austin suggests that laws, and indeed, all commands are given by superiors and obligate inferiors. This superiority means, he explains, simply power – a superior person has the capacity to inflict some evil upon the inferior person. In the case of God, Austin thinks, this superiority is absolute, but in many other cases it is just relative: for instance, a monarch has a power to rule their subjects within certain limits, but if the monarch breaks these limits, the subjects also have the power to revolt against the monarch.

Austin’s definition of law explicitly distinguishes law from morality, since moral rules are not imposed by superiors, although morality does have something analogous to obligations toward law and sanctions for breaking it. Even more so, the definition distinguishes mere metaphorical laws from proper laws. More interestingly, Austin points out that it also separates laws from other things often called laws, which do form a part of jurisprudence. First type of these Austin calls declaratory laws, which are not so much commands, but explanations and interpretations of what duties commands impose. Second type is that of permissive laws, which revoke certain formerly imposed laws. The third and final type is that of imperfect laws, which lack a sanction.

Austin notes that some true laws might not seem to be commands, although on a further inspection they are. First case is that of laws creating rights. Austin states that every right of someone is correlated with a duty of someone else, thus, a law creating a right for someone imposes a duty to someone else. Second case is that of so-called customary laws, based on the habit of people obeying them. Austin notes that as long as no one really adds a sanction to these customs, they are not proper laws, but whenever a judge bases a decision on such a customary law, it becomes a proper law.