John Austin. A Positivist Conception of Law.
What is the central question?
What is law with respect to the ruler and the governed?
What is the quick summary
Law as posited by superiors.
What is the evidence?
Law (properly so called) is understood as something set by political superiors to political
inferiors. The hierarchy of society dictates law. Note how this relates to material
circumstances. How legal significance will follow is through a negative sanction: the
power of effecting pain on others. One who can oblige another to comply is his superior.
Law must be given to a rational being. This forms the question: what is a rational being?
Does rationale not constitute something more than the adherence to a sanction? Is this not
where Kelsen would object? Austin states “For where intelligence is too bounded to take
the name of reason, he is too bounded to receive the purpose of law” is this not a form
Austin reinforces the Separation Thesis by asserting that morality servers from positive
law, referring to the former merely as the law of God. Laws improperly so called, ie.
related to fashion and honour, are mere opinion so where laws lack a sanction, it is
Every law is a command. A command is not a simple imitation of desire. But it MUST be
coupled with a negative sanction Therefore, law is not efficient due to a probability of
consequence but by a negative sanction. The greater chance of it being incurred, the
greater chance of it being regarded. Therefore, a reward, or a negative sanction does not
count because it can’t oblige action.
Law implies duty. Where a law is imposed, a duty lies. How do we define the sovereign?
Storrs McCall claims that the sovereign is the command of the uncommanded
commander. The sovereign is the apex of authority that is habitually obeyed by the bulk
of the population.
What are the Objections?
As this law is highly subject to material circumstances such as domestic hierarchy, how
would Austin explain a change of regime or a transfer of power? If the sovereign is one
who must be habitually obeyed, would a new sovereign not be vested with any authority?
One of the quintessential problems associated with Austin’s piece is that it fails to
recognize that the intimate connection between law and the sanction is a discussion about
the normativity of law. His idea of intelligent being to intelligent being is insurance that
he will not get caught out on this point. But does intelligent being not imply cognition,
rather than a mere reaction? If Law is law if and only if a subject can predict the chances
of incurrence of evil, does it not mean that law has a normative aspect to it? Austin wants
to establish coercion as the main legal domain but if it requires intelligent cognizance,
surely the underlying epithet must be a norm (Kelsen).