John Austin: The Province of Jurisprudence Determined – Sovereignty

Austin’s final lecture should finally proceed to the analysis of positive law. As we have seen, he describes positive law as a commandment by a superior. If the lawgiver itself has a superior in a community, their power of giving laws is derived from this superior actor. Ultimately, all positive law is then dependent on some actor who has no superior in an independent society, that is, a sovereign. Thus, Austin says, he has to characterise the concepts of sovereign and of independent society.

Austin defines a sovereign of a community as such a person or a group of persons that 1) most of that society habitually obeys them and 2) this person or group does not habitually obey any individual or group in that society, although they might occasionally submit to a command of someone. The other members of the society are then said to be subjects of the sovereign.

Austin calls a community consisting of a sovereign and all the people subject to the sovereign an independent political society, although he admits that actually only the sovereign is independent, while all the subjects are dependent. Austin notes that this definition does not mean that the society in question could not be subjected to other societies in a transitory manner. Thus, when the allied forces occupied France, the French nation was still an independent society, since the government of France obeyed the occupiers only in a transitory manner.

Austin emphasises that an independent political society can have only one sovereign. Thus, he argues, a society in a civil war, where one side obeys one government and the other side another is not an independent, political society, although the two sides of the conflict might be.

Austin compares an independent political society, first, with a dependent political society. Such a society is political, because it answers to a common superior, such as a viceroy, but this society is not dependent, because this superior has a further superior and the whole society is then subordinate to another society.

Secondly, Austin compares an independent political society with an independent natural society. In such a society the members interact with one another, but are not part of any political society. Closely related to such a natural society is the society of sovereigns, since although as sovereigns they are part of political societies, in relation to each other they do not form a political society. Thus, Austin concludes, international politics are not regulated by a positive law.

Austin admits that this classification of societies is not perfect. In other words, there are societies that are not independent political societies, subordinate political societies, independent natural societies or societies of sovereigns. Examples of such societies include families within political societies, since they are not themselves political societies, but do not exist in a state of nature.

Austin admits that his definition of an independent political society is not completely precise. It says that the bulk of that society must habitually obey the sovereign, but this leaves still undetermined, what proportion must obey or how often and how long they must do so. Thus, although there are clear cases of independent political societies and clear cases of societies that are not independent or political, there are also some cases which cannot be easily categorised into either categories, such as a society recovering from a civil war or a colony fighting for its independence.

Austin notes also that his definition of an independent society contains an implicit assumption that the society in question is big enough. What the exact size for this “big enough” is cannot be exactly determined, but we can still say that a family living in a state of nature is no political society, although all the family members would obey one person as their superior.

Austin goes on to classify various forms of sovereigns. He has already stated that the sovereign is either a single person or a group of persons. He mentions also the possibility that the whole of the society would govern itself, but discards it as improbable, since society always has people who are unable to govern. Thus, Austin concludes, the government of an independent political society is either a monarchy, with a single individual as a sovereign, or aristocracy, with a group of persons as a sovereign.

Furthermore, Austin continues, aristocracies in this general sense can be divided into oligarchies, with a very small group as a sovereign, aristocracies in the proper sense, with a somewhat larger group as a sovereign, and popular governments or democracies, with a relatively largest group as a sovereign. Yet, he admits, no precise numbers can be assigned to these kinds of aristocracies.

Austin notes that in aristocracies the sovereign may consist of a single homogenous group of individuals or of several groups, some of which might be larger and others smaller. The latter kind has an indefinite number of subdivisions, he remarks, but the only one he considers worthy of consideration is the so-called limited monarchy, where one part of sovereign is an individual person, often titled monarch, although this is not the case of proper monarchy according to Austin’s definition.

Whatever the form of the sovereignty, Austin says, the sovereign can exercise their power through delegates or subordinates representing them. This is often even a necessity, when the size of the society grows so large that the sovereign itself could not govern everything by themselves. An interesting species of such representatives is formed by societies where sovereignty is at least partially with a large part of the populace that elects representatives to rule for them, like in the British system, where the commons vote their representatives to the parliament.

Austin considers the supposed division of sovereign power to legislative and administrative or executive powers. According to his definition of positive law, this division seems meaningless, since many of the powers deemed often executive and also the special judicial power are simply legislative. Thus, Austin concludes, the only definite division of sovereign powers that can be made is that of supreme and subordinate powers.

Austin reflects on the notion of so-called half-sovereign or imperfectly sovereign societies, the prime example of which were supposedly the states in the Holy Roman Empire, which in some sense governed themselves, but had also some political duties toward the Empire. Austin thinks that no such notion is actually required. In some cases such states are simply just nominally independent, in others truly independent (like Prussia). There is a third possibility, Austin admits, where a state, like Bavaria in its relation to the Empire, is partially independent of another state and still has to obey it in some cases, but then the true sovereign is not the government of the first state alone, but this government together with the government of the second state. Furthermore, in a case like Hannover and Great Britain sharing a monarch, the British state was not, according to Austin, imperfectly sovereign over Hannover, but the sovereign of Hannover was part of the sovereign of Great Britain.

Austin points out that in some cases independent political states have united into a composite state, or as he prefers to call it, a supreme federal government: a good example would be the United States. Such a composite state, Austin thinks, forms a single independent political society, but its sovereignty does not lie just in the central government, but is shared by it and the governments of the constituent states. Then again, he insists, this is very different from a system of confederated states, such as the so-called German Confederation following the Holy Roman Empire, where the states remain independent, but they have formed a permanent alliance.

Austin argues that the power of sovereign cannot be legally restricted in its own society, because they are the source of all legal restrictions. Of course, their power can be restricted by divine law or by positive morality, in other words, their actions might be considered unethical or against the common opinion. Furthermore, if a sovereign is a group of persons, the power of a part of this group can be also legally restricted, so that e.g. the king of Britain could be legally punished. Furthermore, he also admits that the sovereign might be legally restricted in another independent political society: for instance, if the British government has assets in a Swiss bank, it must obey Swiss jurisdiction with its interaction with the bank.

In Austin’s opinion, since the sovereign power can never be legally restricted within its own political society, political liberty can mean only the liberty from legal obligation granted by the sovereign. He is also critical of thinkers who extol political liberty as the supreme end of a political society. Instead, he insists, the true end of a political society is the common good, which might in some cases require limiting the political liberty of someone. Indeed, Austin points out, all political liberty requires setting legal limits someone else, for instance, my liberty to travel freely in a country must be guaranteed by the duty of others not to harm me in my travels.

Just like sovereign power has no legal restrictions in its own society, the sovereign also has no legal rights in its own society, Austin thinks. According to him, legal right is something conferred by the sovereign government to an actor in its society, so that respective duties are conferred to other actors. Clearly, he argues, the sovereign cannot hand such rights to themselves, since it already has the legal power to do anything. Of course, the sovereign may still have divine or moral rights. Furthermore, the sovereign can have legal rights in other independent political societies, if such rights are given to it by the legislation of the other society.

The purpose of an independent political society is the common good of its citizens, thus, Austin argues, the cause for its continued existence is that the subjects consider it more useful for the society to obey their sovereign than, for instance, resist its commands. The origin of a political society, on the other hand, could have been of various sorts, Austin conjectures, but one element of its generation has to have been that the majority of its subjects have thought its existence to be generally useful. Yet, he is adamantly against the idea of a so-called social contract, which is not just clearly a fiction for historical reasons, but also suggests the erroneous idea that the political society would be based on a consent of people in the natural state, when no such consent would form a legal contract in a state with no political society, and indeed, would not obligate the sovereign in any manner.

John Austin: The Province of Jurisprudence Determined – Positive morality

Austin’s next task is to set out what distinguishes proper laws from laws that are merely analogous or metaphorical. He notes that the words analogy and metaphor mean strictly speaking the same: analogical or metaphorical is not literally the same, but resembles the original somehow. Yet, he adds, usually metaphorical is understood as bearing a smaller resemblance than analogous. Thus, he will also differentiate between laws closely analogous to proper laws and metaphorical or figurative laws.

Austin now ignores the metaphorical laws and divides the proper laws, together with closely analogous laws, into three main categories. First is the already well defined divine law. Second is the positive law, which Austin thinks was given by humans as political superiors or as private persons pursuing their legal rights to other human beings. Other proper laws given by a human being to other humans belong to the final, third class, which also contains closely analogous laws that are mere opinions held by human beings about human conduct. Austin considers calling this third class morality, but because the divine law can also be called morality, he finally suggests the name positive morality.

Austin explains the relation of the three classes by stating that the divine law works as a criterion for the positive law and the positive morality: divine law states what the positive law and the positive morality ought to be. Yet, he also notes, this cannot really be the full truth, since atheists can also make evaluations of positive laws, although they do not believe in any divine law. Furthermore, Austin points out that we could think of the possibility that the divine law might be bad. Thus, he concludes, the true criterion must be the principle of general utility that could be used by atheists and also for determining that the divine law is good.

Austin also notes in passing that he has used the phrase “natural law” in two senses, firstly, as another name for the divine law, and secondly, as indicating the portion of the positive law that according to the mixed hypothesis assuming both utilitarianism and moral sense as criteria of morality holds universally in all humankind. Although the similarity of the two names is apt to produce confusion, according to Austin, there is a reason for the similarity, because the latter natural law is produced as an image of the divine natural law through the means of the moral sense.

Returning to the task of explaining the class of positive morality, Austin first considers the proper laws in that class. Such proper laws should be, according to his own definition, commands instituted by some determinate individuals or groups of individuals, with the danger of a sanction if that command is not followed. Yet, as this is not the case of positive law, the commanding agent should not be a political superior or a private individual pursuing legal rights. Thus, Austin explains, commands in a state of anarchy belong to this class. Another example are commands instigated by leaders of states not toward their subjects, but e.g. toward leaders of other states.

Some commands of private persons are also proper laws that are part of positive morality, Austin states, yet, not all of them. The commands not belonging to this class, he explains, are such that are made by individuals pursuing their legal rights, such as commands made by guardians to their wards and masters to their slaves. Such commands, Austin thinks, are actually part of positive law. On the other hand, the commands belonging to the positive morality, he explains, include commands of parents toward children, of masters toward servants and of lenders toward borrowers. A further interesting example is that of a club instituting rules for its members.

Moving on to improper laws of positive morality, Austin notes that this class consists of laws set by general opinion of some indeterminate group of persons. The important point here is, according to him, that the group of people is indeterminate and cannot thus really issue any commands nor can there be any definite threat of a sanction for breaking this general opinion. Still, Austin points out, there is an implicit threat of a general opinion turning against anyone breaking such uncommanded moral rules, which makes human behaviour of e.g. a certain culture predictable.

Austin points out that one still has to define what is meant by a group of people being determinate or indeterminate. He notes that there are two cases of determinate groups of individuals. In the first case, the group consists of persons, each of which can be designated by some specific description and each of which belong to this group due to this specific reason. An example of such a determinate group, Austin explains, is a company with specific individuals as its owners.

In the second case, Austin continues, the group consists of all the persons of one or more generic descriptions, who belong to this class because of these general characteristics. An example of such a group, he says, is British Parliament, which comprises the British monarch and all the members of the upper and lower houses, all of whom are members of parliament not as specific individuals, but as e.g. members of lower house and could thus be replaced by other individuals, for instance, through voting.

The common feature of both these cases is that all the members of such a determinate group can be definitely indicated. On the contrary, members of an indeterminate group cannot be definitely indicated. Thus, for instance, when we speak of a general opinion of a certain class of people, we do not know which of them exactly have this opinion, only that most of them do have it.

Having now separated the divine law, the positive law and the positive morality, Austin makes the remark that these three might coincide, but sometimes do not, while in some cases they might even conflict. Thus, all the three laws coincide with murders, since they all forbid it. On the other hand, the positive law forbids smuggling, but positive morality or the opinions of some persons might not think it is necessarily forbidden. The laws conflict, if one of them forbids what the other commands, for instance, when positive law forbids dueling, but the positive morality of a certain culture takes it as a necessity in certain cases.

Austin proceeds to metaphorical extension of the notion of law, which he has already suggested as made because of similarity in the uniformity of behaviour in case of people following laws and cultural norms on the one hand and e.g. astronomical objects and animals on the other. Such metaphorical laws are far from proper laws, he says, because there is no question of, for instance, planets being commanded to follow a certain course and being punished if they don’t. The indication of this difference is important, Austin explains, because other writers have explicitly confused them.

John Austin: The Province of Jurisprudence Determined – Moral sense

Austin seems convinced that the impossibility of ever perfectly becoming aware of the divine law through utilitarianism is a fault that seems inconsistent with the supposed goodness of God. One might object that it is quite enough that we can still indefinitely improve our ethical understanding, but this is not the strategy Austin takes. Instead, he suggests that this inconsistency is just a fact in any system of ethics: perfect humans would require no divine commands, but would act perfectly. In other words, Austin suggests, we live in an imperfect world and this is just a conundrum that exceeds our capacities of reasoning.

Austin’s second strategy is to point out that the only alternative to utilitarianism is the theory of moral sense, according to which we do not need to calculate whether our actions are good, but we have immediate or instinctual feelings of what actions are good and what not. This division of possible theories of moral criterion seems reminiscent of the juxtaposition of deliberative morality with the subjective certainty of conscience in Hegel’s Phenomenology, but this is probably just a coincidence.

According to the theory of moral sense, Austin explains, an uneducated Kaspar Hauser would have different feelings, if he killed a person for stealing their food or if he killed them in self-defence, being thus aware without anyone telling it that the former is a bad thing, while the latter is not. Furthermore, this theory assumes that these feelings are implanted by God, as a tool for understanding divine commands. Thus, if this theory were right, we would always know what is the right course of action, although our will might be too weak to realise these actions.

Austin notes that we can dispute the theory of moral sense, and this possibility makes it very suspect, since this supposed moral sense is then not like a feeling of hunger we cannot really doubt. Furthermore, he points out, our moral judgements are often not immediate, but we hesitate on what is the correct course of action. In fact, Austin adds, even if our moral judgement would be immediate, it still might not be instinctual, but just a sign of an ingrained habit to think something as bad.

Austin also makes the obvious objection that different people have had different ideas about what constitutes good and bad action. Yet, he at once adds that this is not a perfect objection against the existence of moral sense, since we do not know if God might have had reasons for giving different moral senses for different persons, so that what would be good for one might be bad for another. Even so, Austin finds utilitarianism a more convincing explanation, since it explains the diversity of moral judgements, since people have different ideas about what is useful, but also gives hope for finding some common ground in moral reasoning.

Austin mentions also a third possibility, which is essentially a combination of utilitarianism and the theory of moral sense, stating that moral sense is a criterion of some divine commands and utilitarianism of others. He notes that although this third hypothesis is more compatible with the diversity of moral judgements, it still faces the objection that there seems to be no moral question, of which all human beings would agree with each other. Yet, Austin finds the theory interesting, because it is the only hypothesis justifying the usual division of law into positive and natural law, natural law being grounded in moral sense and thus universal to all humans, and positive law being grounded in utilitarianism and thus varying from one culture to another.

Austin ends his account of the divine law with a few further ways to misunderstand utilitarianism. First of them involves taking utilitarianism not as the criterion, but as the motive of our actions. Austin underlines that the criterion of utilitarianism or the general good of humankind is no abstraction beyond individuals, but simply the sum of the joys of individual humans. According to him, the best person to decide what makes an individual happy is that very individual. Thus, Austin concludes, utilitarianism demands that the motive of the actions of an individual should not be any abstract general good, but their own advantage. He admits that this general principle is not without exceptions and that a person must sometimes put the interest of others ahead of their own interest, but even then it is usually people they know such as their own family that must be helped.

The second mistake that Austin considers is to confuse utilitarianism with the so-called selfish system. Indeed, he adds this mistake is often connected with the additional misreading of the selfish system itself: while this system states that human benevolence has been generated from an original self-love, it is read as denying the existence of benevolence. In any case, Austin concludes, utilitarianism is no theory on motives of human actions and is thus compatible both with the existence of independent feelings of benevolence or the reduction of benevolence to self-love.