corres 4 BENTHAM AND AUSTIN Jexbir Boxmia ind such a ow option of antl law deine that be condemned it a6 "this formidable now-entty he tw of natare” At the early age of Bien, Renta attended a couse of esas given inthe water of {76-64 by Sir Wilt Blackstone, sd evn then showed profound dagresoent Wik mach of oat he beard, Tie tanston trom the paclar brad of natura lw doctne inthe work of Blctston to the rpotoes posi of Densham reprises one of the major development fete soy of modern fel thar. Benth the esol psn ‘Aa outne ba alieady bea given of oe of te comping eis ‘of atris sd postin. pent spon legal aly, 40 lar from ejecting any costeration of the mays which the Sonfent of existing hw may be tipoved, and sla trom Te {hing to consider moral question i rlaton to av. can he of ener asitaes in the improvestt of exsting la ta mach Tatura In dosti. The paral advotage which pom ry claim es sha inthe very poring of austions concerning Segal tefor and eraluntion, the zope ad the ajo mater sch quesons cas be pastvely dlisted. A pine cesae of jist ach a chins found inthe legal wtngs of Beth Hs Iissed on the separation of ‘matters anayteat aad, mater, mjunes. A ie same time he wa reponse ie inde, for ove of the eae coatnbutons 10 legal reform Work shows ceaely that a postive detton of lw goes ogtiet, Wit the most emphatic arenes ofthe fleeoce betes Sood ‘aomuae Axo aust a sd bal ih 4 og el pinoy adn, he Geetioe, andthe bluiag of distinctions vil 10 a posit pprech othe analyse of a, ae principal target of Beatan's ‘The combined contribution oem i fr formulating a8 Sve stead much est, md among ae wo have pte {iow kind of inpeave dame in Vari aye of fora itor (4) LO. 34 lal weed sf peal Oa oe Ha 78a Keen an’ Olea, {or umole, whee cao of he Sn Se Uf plan Chap 9 OSn moBHCTON 1D LSONL THEORY of ga posta, neers remain ofthe preset sino, "A‘mnoe put of Aus contribton to pal analysis to bo found ia The Province of Jurisprudence Determined which vas ‘ublhed in 1692, te yeu of Dentan's deat At the ine oft Publeaio i atted bat lt stention. It was aot Un IDS that the influence of Benhan’s ideas upon Austins acount fl 4am of “oven commode” wa fay pprecined. Ass deb to Dentnm was reveted oa the icone inthe archives of Unienity Collge, London, of n unpublched work by ethan, completed ia IED, which was orgy ined fo form pare of The Principles of Morals and Lepiation, pubthed in 170" ‘Meri and demerit ‘The geoeal proposition of posivim ls ha the nature of wis to be examined in relation fo wha found to ext sta produt of mar action. Emphasis is fiom creation rier thas pon the emulation ofa sapeoro ighr ln The lnpentive Phe. ‘8 one of the east forms of poivem, ives patel eb ‘hase o tb hums eeatve leat al Tis eps repre fs both the merit and the demerit of postin’ east ‘Stpessions. The Ineating ct a prone fete of alot aM acosnis ofthe mature of law in general. Dut ithe legal ot Dreseriplvesigance ofthe acts and evens which figure in {he eration and perpesntion of & legal system ie desea in terms of is dea withthe pial net themes the eset ally preriptivchaacer of law it Inbie to bo cbecured” The ‘making or nyag down o lel rls i given futile atetion by bath Attn ced Bentham. The very mame pontvse eelaer, 1 “law as I is lid down.” oe posted. A consetation on the eunstnces whch eorosed the laying dowa of sich vil is ‘easly understandable. Bot the courenc ofthis posse inthe orm of physical and oberabe evens i,t ill Be sen, Aly at ofthe Whole so. ITT tp en yan ft ad em ii an W's thee supped tattoo sift af enon rom the sone) ete AND AUSTN a « “Lew ond sorerleny ‘The tals of Renan’ account consist ia the arin that lw ema up ofthe order id by 2 ovesgn power. The ratio ship between sovereign ad subject is one between superior and Infor, slatons of power and sbjosion. Bencar's notion of govcroment i expressed inthe following pasmge om his pallial teatse Pragent on Government: "When a mumber of ‘esos (whom we my Sle subject) are suposed tobe in the Fit of paying obedience to peton, oan stembluge of persons, ‘of known abd certain descipion (whom we may call governor ‘or govemas) sch persons algster (bits and governor) ae ‘id tobe ina sate of pli sity" To the fit haper of bis recelly edcoverod work, now pub lished under te tile Of Lars in General Bethan writes "A law may te defsod ae an eesmblage of sign dodaratve of = valton coasted or adopted by the sovereign in a sate, con eraing the conus fo be obeered in osrtan sar bya cern ‘roa or el of persons, ola the casein question ate of a foppoed fo be abject tis power; such volition fusing for ‘ts sesomplishnent f the expectation of ceria eveals which it {s Intended such dilaton should, upon ccason, be a mes ‘teinging tops andthe prospect of whch its intended shold fet ar a motive upon those whose conduct is i question” In CChaper Two he throws ore light on his notion of sovercigny, ng: "Now by a sovetelgnT isean any paca or astemlape of pects to whose wil a whol potieal community ate (no ‘male on what account supposed 19 be ia disposition pay ‘bedince; and tat in preeroe othe Wil of wy ober enon” The elements of ceraisty in the decepuon Of te sovereign ‘ody and of the sovereigns eapeior potion ate even further fmphased by Austin. A feature reminoeat of Becta’ inital ‘tals of law and sovereignty i found in Ansa’ compodkte ‘diaiion of bo the notion ofSovereigty and what be calls an ethan, iawe i Geshe Hat Aloe Pres, 1970, Cap. hy Chas 218ndopendent polite vce a dteainate bum super, avin he abit of obedience wo ale sper. resve baba {pero i soverien fo that soci andthe society Ctaing the Spero a soit ola nd faspendnt"™* Tis laos ire eed ro of ser ad won, of pole inion and sbnuid nt reader obedience to aay fren by win sate shouldbe determina, and ti fener toptier with the neeanrynbseiee of Ts on te tveren Dower, cots to the exes of Auatts cata! aoton of Teal autor and lo to He hit weakest stra Paton of eal power His restive destin (or 8 dfaition [eporports tobe) ogee hat habia obodeore soul bern dered en ad bese determinate peron or body of persons ‘x rsp reson for his intece on such mole form of legal superiority ny be found in Aust t etre, which he later tot "no inerminate party can command expresiy OF tac of can rete ebeditce or omission” The pesoaal snd der notion of command ena 10 Aust exposition, fees ths to have latienad one of the Nery carci of the lel suo fom whi aces “Aoi insist on Both adv and ita ab sce, sary charters of a sovereign power. Benham lasts on ir" iay happen aus Bench, "at owe person or sot Of pens sill te sovreg in some cae, while tater i a2 completly so in ober cases." In adaing this simple fet of le relating to egal atbority, Beata shows an awareness of the nee aap legal comet fo he eres! ad pata tr wi ye ne ee, Sih ve he ibe nature of Aaa’ defiton of sven which relia from As lps sesoant of notions which depend-on bth Legal filma is presented, This dilemma takes the form of a choice teteen a determinate person or body and split into more tan fone “independent poles" The trminsogy wich Aun ths and the dene whic i expreses make i iat, if tim posite fru ond ny satcory scout of, te feral “a Rt is of tts tid ak (Waa stom of legal story which opeates inthe United States of Ameria ‘While, however, ctshng Austin's inflible concept of sovereign) Ren site at we should svete be careful wot te atrbule to: Benim tore than he scully wrote. Of Beuthan' origina notion of soverinty, Raz writes: “He did {5t bive a expiation of divided rovereiguty. He sugested 0 ‘ay of deciding weber ean leg power ep fa sveri Dower, andy i to, of which. Nor dd he explain what are the Fnasr if anys etwoen the vars powers consliting on foveteps pone. Simiry, ke dd nt explain stixactonly ow overpay cine legally Tid. He was avare of eortaisleat ‘Boomena which be sould nt rssonlle wis the doting tht Grover el sytem there ie ope ended and unlined 20 eon ind one be cine 0 bate oa eo mentioned sppent to stn fom a cnfsion of lea sipeioty Si politcal snysiony. At snoter point at which this confusion feces appre the wid of Austin’s notion i as emaskable Se manowing eect of the rextictons of indivisity and Hasty a his finale in The Province of Jurupa Determined, Austin aserts that ina damoctcy the eetorate onstiues pat ofthe sovereign body. Thi tendeoy to make ‘Sopostons about lw and about ple ath same beat might Ee'ergeted a sin of reals abi apeoach. But this virtue Jape become a yc ia lal anys, especially when chars (Srnt stetre aud soelopes! faction are conde oily. Jain o fs bing ater o conceive of hit partular toes of Ast's action of sovereignty alengside some of the ‘Ratha characteris whish mare mentioned ent i fihy ‘Sua even ths sage of come of study in eal theory that Invenigaons wil avec be made wich are ofa ater diflret ‘ope tom tog sofa ctsouatred I satisactory acount i (BP Sncn ofthe waton offal thority. tis alo cer that some {hing more wil be nesewary han the mee enumeration of che ‘atearly obecabe characteristics ofa atem of law. On tis ane we muy be indeed ltr to debe he pature of Austin's “ppronch a observation ot espbstin. Paula atfeton wi i ven in the following Chapter to the atte to autortaie> ae % awapeeriow Yo LEAL TORY ‘ules of those subj oth, Soh consideration i conspicuous by is absense from the work of Austin Benthan’s definition of “slaw” hasbeen gies. The notion a a soctonataching to behavior which le onary 1 law it ape ‘ately no more than an addon to the base efaiion, For ‘Asin the snction i a itl part othe Hea of law. He aye ‘emphasis on the close iteration tire element i; namely, “command,” “uy” aad “sancion™: "command, ‘duty and sanction are inseparably eoanetd tes; each embraces te same ides as the ote ough each denotes those deat ina peolar one or series A with coccived by one, with om evil 0 be infted and incurred in cate the with be deeded, ‘re sige dre and ied by each ofthe hee expen. Each i te name of th se compler ntlon”™ Asia asserts ‘hat every law or rue is a command rth laws and eal flee ae a “species f commands” Law au a whole is therfore te ‘repate of thee nda! Ine cormmanis. “A lew” 10 be regarded atypical model for lw in geet. The cement of sation which contained in ach w models frber Gx ‘by Auin in hes terme: "The evil whieh wt probly be curred incase a commu be disobeyed ot o wean caitalent reson in cas daty be broken i fegunly leds eantion, ‘ora enforcement of obedience. Or (ecying the phase) the com ‘an othe dt is dt be snactoned or eared by the chance st ncrtng tbe ert 1s lear tht nly a small number of evs in wpa system slate diety to the aplaton of sanction, epetlly i te ‘toton ofa sanction I to be deed, with Aust, sv chance ot fret of some evil ot arm. The pe of lal fle whi mot ‘early appronnes to Austin’s model i tale of emia i hich reqles that a certain. pls or mater sanlon Be 2» esi it asco, oe of he mle dec of Ati acou o Ire cmt aod if Se ye Sie eno a oy Rae af aC ‘tat clameots in Auctin’s nodon of law render his account Seadeguate as 2 proper explanation of both theory and practice. ‘Fe sears no inpoantaea of hewn wh he "tpe mime gen Hart to sich rls “power conferag or oat ata earn ‘h wll, provided that in each case a certain procedure is follows intima iene mes one carat ent ae 2clame wes forthe oration a ald wil 1 di Re dee of ox bulk: i ‘Austin’s Tcl and singh to tings ea pe, of condo Hi ee es a 2a A actin making enh ter os wich dont ty ued “ard tacked by thee” OO apt Gon ng tn ae SSSR RSTn MES reat apa By Relegal requremecs as to fom? This i mt like the condi dis. fouraged by the criminal Iw, vomsthing whic the el ule Spulsting Kea forms for contact ate dase to suppres. The ‘ules merely ‘withld legal recognition from them Even ore fbsurd is 0 regard as sation the Tac tat &eglatie ‘measure, it dos ot obi the reqied sj also tas the saa of ev. To site hs fatto the ganctions ofthe srimina aw would be like thinking of th song rules of 2 fine a designed to elinlaae all moves excap the hiking of {Souls oe the malag of rune. Thi, if eucesul would be the ead tall games; ye oly if we tisk of power onerng rales as signed to make people Behave is estan ways and 4s adding ‘ily a motive for obedeno, can we axa seh let (0 orders tached by teats Teathan's account admits both punishments aad rewards wich he cals respectively "coercive ative” aod “alli ‘motves” Aus, however, rfc to allow the tam “eon 4o be extended to cover rowed: “I think tat this extension ofthe term is pregnant with confusion and pepsi Toe ‘erence ot opinion tethech thexe two ju Te sible otto a diflerence in interectation ofthe ter “eanain™ sel ‘ut ater to the relative las of conser shows by Bentham with the lament of sanction dn has concept of lw Beato gaye ‘more aletion, however, lo ‘eocone when dicing ethos ‘of eforement of avs a ater stage i his work, Aus allem 'o cover more ground with is inal deiiion, bar his attenp were dicted alo annuitabe lina, Questions at to the ienifcatory mark of Iw, at queions as tothe motives fr which poops cy la ae spate cod should be Kept separate in Tegal acyl Both Bent ant ‘Astin are concerned withthe former question rater tan wi {beter Avan, however, peas ofthe “cance” "ikelton ‘ofthe appiatinn of snstion, and aio at tines of the “es ‘of sanctions Benth, to, uss expresons whic imp acu ‘suse and elect relationship between the ising ofa wad the Securing of obedence to i ootwiuanding tat Rs introductory dtnieas are tamed in term of an “epesation” em the par ‘ofthe sujet to laws and of the purpose or “station” Gein Hla, The Cone of Lam, Cap 3, 9.8 Prone of ares Benin Lae. Soveriony in con ‘Te nial tals by Besta nd Ata fe oi of In'etn oneig toe oe to wih he Mo rp. Cre ot the ental eatres of tse ae 0 eso Ho hs Shans Hse ai, te ce of Bent’ explnstion to be oisictry asi of nw sso rng thn those of A tino. Aten wl acoringly be ps Ben's elbor Mono the mtn f covery i och wy ato a Strat some of he slishns which est of the Tperaive Seay bes ; TA vy taping of he Bt Caper of Hs Wonk OF Laws in Genta Bena tvs ic inal tenon of 2 ae?” He Goninuces “Takiog thi defiion foe the de mates fot whet the expresion of wi i gussion, a8 have Bat" the uthory ofthe soverighto bck wo by his medi tonceon, only By adopion” To this he ate ads: “A wll x mtn te nid to tkong 8 wri in the way of ‘See! iin tn word ovr sgn wha stands expres it'may fe sito bong f0 him by aéopon when the peson from whow immediately mane oot the soverégn awl (Geant the sversgn for he ine blag) ba some eer eros np an i at eS nD reoy rmopatION To LEcuL THBERY nso at all the coeera which Be to whom it belongs by ‘option asin the mater isthe Being Kaown to eaertan a will ‘hatin case ache sich anaerpefon should have expresed ‘ot should come fo have exposed twill conering the at OF ft of ao queson auch wll should be observed and Jooked ‘poo a hiss 'The mandate which the sovereign Jn guetion is Shnpase* to adopt ay be eles alendy ited, op noc: inthe omer ease i ay best ip be it by escepton in the Tater eee ‘Beam was cealy aware of the ania and wnzealiic ent wich woul enue if te sovereign or sovereign body wee {aid spesiely to produce and peontlgate all te “commands” ‘or Toda” of wh the content ofthe pose lav of 8 sate is ‘ae up His exposition therfore icles the ie thatthe Sov ism though diety sponsible for originating some Of the prlne Inw, alo fakes ver of adoplaofders given by others {In partcslat, the notion of “prodopont Is one peraps rather coed wey of exprosing the forvardlookig! or purposive sipect of eal author. "The ation of the sovecigas adoption of orders mud by poles! subordaates produos rome remariable reas 1 wll ‘Be remembered ha Beaty danitionepeiealiy sets 10 "2 Tew” and therefore to theta in gor ath detion of exch individu put within the agreate whole, His acount is thot to be mguded at bsg ofan atomic” antore** The basi ei tion ie further elaborated hae? “Under the erm aw ovo rue fcide a jdisal order, «allay or any other Kid of ‘xcetve omer, of even the mat tal and momentary order of the domeatis Had so beta egal” The notion of adoption ‘ofthe oress of eer Is nither more nor let ralite thn the tions of escepon and proadopton, They all represent a0 compt facet forthe way in Wich vabd legal acs seis thar aulhoriatve charac lose the sovereign Is deverbed 0s oneuping the Highest plae in the birch of the Jal sem, {he don of he “authostaive backing” of the sovereign sued. oer CeCe en ee FG] Eecie Gneel, Gap es sui Aso Ass a Benda cosines: "The mania ofthe mas, the fe, ‘achat, te uaa, ae allo eas hemes oe ‘ovecg i ot then nor nes of he bea oto he fede Nota cok ido dem ncaa ted» el, 2 her to whip scooby, a econ fo hang i a lier 0 ve the cn ay from pot but by hoes. Ienyone sald fo cay te cing th, Be Bs Oy to sappos th sve mate gusto ones wb estan, th ovo cuss we ar ane, he bans ere the ‘at teint whe worsen The venti vary on which Bena comp ot bv" ands nn of expan Sich apex Sts i isl to ve wihout towing the purpone wld he Authentic, he wide sm of oe “a? isenyhg hus msahy en of entail tons Wie sper tat Benn tale dnguch beeen ender eh sven oo te bai or in te fms oft psc {el lew and an one whch in eral em fl, ty {ot lel” Anping tn he form factor egal ting oped” by he soverdgn ad wish aot co) oa tezome, i Bena vier, lw. Te amg be att ives the omimion ofan inpatient su a one may css afr mbt nado cal. sina toweer, bent tha ad made for Beata inde prin ar well a commans er rd An Ae whch ham even sabget and vec, cn thw te ceommedsted in ema comet of tan” by means of hs teary Ton, Beaten theory muy be sen to Be mich ve dene tan the rib formulae st out ty Avs nh ate and tometer par eins “Anti bey 0, cans the nto a adoption of eds peri ue re i "Por Frsanaaw's sew, ae ta hl bmw be os Fors2 rmooucron To LEGAL TABOR ined by ots, oF “tact commands. When, fr isc, cus tom i clelol to te satus of a logl cue by te decisions of ‘Souris lay the eal les which emerge ate cased by Austin ‘3 lc commana te sveegnlegtare. “The Sate, wih is able to abolish, permis Ks ministers to enforce them ad it, thesfre, spies please, by tat ts volustary square hat thy all ore ar a hr 0 the governed” Despite the Ingeout of ths device, te notion of "a comsband™ remains, ‘on ane cosiucton,« contasiction in terms. A “comand” 3s Stpropente to tad or tho expat Taig” f an ieee, tnd the tes ually employed to demibe ection of pation who doe his Te addon ofthe adcuve “act” detracts fom the ordiary meaning of te very word to which it rels, a ‘This section devoted o some of te peinipletims which versions of the Inperntve theory have arate. Tt wil be 1 Toomer tht four erential element ze be fund in Austin’ oount These ae: sera. dined in terms of 4 “aabit of ‘hotence” onthe pt of pois inferior commands: te day {rested by sovereign commands, and the lal sntion consiing n't peny to noncompliance wih the logl cuy. With the towble exeepton of snc, tere elements fe also, in 0oe form or anther, esses tO Bentbam'rascount Objections © these iets sd to their patel ase wll now be cadet Sovereignty and “habit of obedence™ Both ethan an Ain we the expeson “abi of obedience” In tic chnrcoraton of sverciaty. The aulhosty of the ‘overig is iter from busrations ao thefts obedience ‘wich renderd bythe balk of iven soiay- entha'sex- Preston “daponidon to py obedince” appears In this context fo mean the sate thing ae “abit” Both alons are themselves ‘raced by tho way In whi hey ae sled to deseribe te fens of practical aeration “The idea ofa “babitof obedience” hasbeen severely rited rina AND AUST 8 fore abit to forsah an adequate explanation of esl author. A) aed of the nutoriy-bsedielasonshipe of which legal ‘yet composed" In parteular, “abi is appropriate for & {eement of fatal conelsion bsnl obseratan of pial vents It no at al story, however, when tho Tak t and is to explain the reaion fo wich cbreable replies Imny be said fo occur inthe isd ‘under examination, and pot tneely to describe wag thine regulates ae. Any examination Wich docs no do thse Til to produce observation, not Trplanaions2” Law ooncere far more tam mete coinidens, fin og euthory ir not wall daseibed merely In ters of = ‘Shof cbverable replatien net eile of the Imperative theory must eventually be considered inthe ight of bua own concep of Hepa als and of {'ojiem made up of ssh lr" Sue er to say tht Hart [Bw an account which Asin, a prc, det not—2ot jst ft what happens in fat ato the tsson for Which i happens. ‘Theses of a “ib of bodice” represent weakness the tecouot of Bt Beatam and. Astin Is ration to patel foveteion at part te lenge tot inadeqacy o6 an et Panation of the ootinsour nate of egal authority ring the encafl dotrmal sity of 4 roca) order, repemted by a umber of coneecatve governneat reine, "The able, or powers and dite of the soverian body ss they ext Goring the sgn ofthat Boy re neces con ‘Scions in an analyst of the mening of soveriaty, at ny time and in any eoodios, The sae apples to the ales of foscnon which ave, inthe Bat place, endowed the eoveripn tr sovereign body wi legal audi. Austin falls to gie an suc agin the Coe af Lam, Chap 4 p04 lh Hat iplamoey at Whey rae to be oe ad structure Lm,