Gustave Fechner: Proof that the Moon consists of iodine (1821)

We have met Gustave Fechner before and we were not quite sure how seriously to take what he was saying. Similarly jesting appears to be his work Beweis, dass der Mond aus Iodine bestehe that actually appeared a year earlier than the panegyry to current medicine we have studied before. This time, it is not the whole of medicine that is the apparent topic of the writing, but the newly found habit of using iodine as a curative substance for almost any ailment. Fechner notes jestingly that even the most opposite medicinal schools use it, but just for opposite reasons: iodine has a tendency to lessen the fat of the people who eat it, thus, allopathics (those insisting that drugs should have opposite effects to the illnesses they are used for) can use iodine to cure obese people, while homeopathics (those insisting that drugs should have same effect to illnesses they are used for) can use it to cure the loss of body weight in tuberculosis.

If iodine is so useful a medicine, Fechner continues the joke, certainly it must be produced in great quantities, at least for the use of allopathic doctors (homeopathics require only very little of any medicine they use, he adds). Fechner makes the passing remark that if iodine is known to cure women who cannot menstruate, such women could be used to mine it, since they have an intrinsic ability to know where to find it. Then he notes that iodine was actually discovered by Bernard Courtois, when applying sulfuric acid to ashes of seaweed, which then let out a reddish cloud of iodine. This procedure did not produce that much of iodine, so certain practitioners of medicine had just assumed that anything with a similar reddish tinge might contain some iodine.

Fechner suggests going even further with this sort of deduction, and indeed, with a twinkle in his eye insists that the less a science is based on anything real, the more divine it certainly must be. With a clear reference to the Schellingian school of philosophy, he notes that any incompetent person can build a system empirically from what nature provides them, but only a genius can, as it were, construct the pyramid upside down, beginning from a single proposition and then working against the nature to show what the world must be really like in light of this proposition. Furthermore, Fechner emphasises, this axiomatic proposition need not even be proven, since it should be the basis of everything else.

Applying the hilarious suggestion how to construct systems to the question of iodine, Fechner begins with the known fact that iodine cures goitre and leaps to the conclusion that anything that cures goitre must contain iodine (surprisingly good conclusion of a joke, since goitre is effectively caused by a lack of iodine). Then he points out that often the same substances are used to cure both scrofula and goitre and deduces from this that iodine must also cure scrofula, and indeed, any substance used as a cure for scrofula must contain some iodine. Since the medicine of Fechner’s time applied many substances to either goitre or scrofula, they could be all lumped together as containing iodine – even the knives used for cutting the bumps caused by either goitre or scrofula.

Fechner isn’t satisfied with this, but wants to find an even bigger source of iodine and he discovers it in Moon, which, so the old wives tell us, can also cure goitre. Indeed, he adds, in this it resembles the seaweed, from which iodine was originally extracted, since the Moon is floating, as it were, in the ocean of universe. The old tales tell that the curative powers of the Moon are especially evident when it is waning, obviously because it is then spreading its iodine rays to Earth. 

Taking another stab at the Schellingian school, Fechner notes that the moon light cannot be proper light, which by the axiom of the philosophy of nature should also contain its opposite. According to Schellingians, this opposite is warmth, and with equally convincing analogies as Fechner, Schellingians had identified such things as egoism, lies, acidness, ganglias and plants as modifications of warmth, while virtue, truth, base, brains and animals corresponded then with light. Like these philosophers couldn't be virtuous without being somewhat vicious, Fechner jests, the proper light must also be warm, while the moon light must be something else, that is, iodine.

Fechner began by noting that people had tried to identify substances containing iodine through their reddish tinge. But isn't moon light yellow? Fechner borrows another phrase from Schellingians and suggests that the yellow colour is just another potency of the reddish iodine. Indeed, as a final quip, he notes that our skin can be coloured yellow with iodine and that the reddish tinge of the evening sky must be the effect of the iodine from the Moon.

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.

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.