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.