Utilitarian Philosophers-3-john Austin

John Austin (1790-1859)-

• Disciple of Jeremy Bentham
• Father of “positive law” and “determinate” sovereignty.
• “the province of jurisprudence” book (1832)
• The word “Austinian” is one common adjectives in the vocabulary of modern public
law.
• Bentham’s utilitarianism and Austin’s positivism were made for each other like piston
and cylinder.
• The pivotal concept of Austinian positivism was its definition of law. Austin sought a
definition that would eliminate all uncertainty as to what and what was not law.
• Accepting without question Bentham’s idea that what imparts the quality of law to
any rule or mandate is the fact of habitual obedience, he removed from consideration
everything but man-made rules. The so-called laws of nature and laws of God,
whatever they were, could not be counted among the rules which courts of justice had
to administer.
• Habitually obeyed they might or might not be; but the obedience, when given, was
from religious or ethical and not political motives. When disobeyed, there was no
sanction that judicial tribunal could apply.
• Of man-made rules Austin discerned two great classes. One consisted of “rules set
and enforced by mere opinion, that is by the opinions and sentiments held or felt by
an indeterminate body of men in regard of human conduct”. The other consisted of
rules set and enforced by political superior.
• Rules of the first type could not properly be termed law; they belonged rather in the
category of “positive morality”.
• The only rules which could be truly regarded as “positive law” were such as, in
substance if not in form, amounted to a command which might be followed by
definite punishment if disobeyed.
• There were two species of commands. Some were “occasional” and “particular”’ not
of general force or application. Others created obligations “generally to acts of
forbearances of a class. The latter alone could be deemed “positive law”.
• Every positive law is set by a sovereign person, or a sovereign body of persons, to a
member or members of independent political society wherein that person or body of
persons is sovereign or supreme.”
Definition of Sovereignty-
• The notions of sovereignty and independent political society may be expressed
concisely thus- if a determinate human superior, not in the habit of obedience to a like
superior, receive habitual obedience from the bulk of a given society, that determinate
 superior is sovereign in the society, and the society (including the superior) is a
society political and independent.
Concept of Law-
• Like “determinate” sovereignty, Austin is also rightly called as the father of “positive
law”. The Greeks developed their own concept of law. To them it was a reason
reincarnate in law and they regarded it as an ethical code of a community. To the
Roman it was both right reason and an expression of will of the prince. The fame of
Rome lies in the field of jurisprudence. Roman Imperial lawyers who flourished in the
early centuries of the Christian era distinguished 3 kinds of authoritative commands –
namely 1) Jus Civile 2) Jus Gentium 3) Jus Naturale.
• The first was the law peculiar to Roman citizens, and applicable to any other persons.
• The second may roughly be described as the highest common factor of the laws that
prevailed among the peregrini or strangers, who frequent the great city; it was a
system of rules marked by simplicity, equity, intelligibility, and freedom from
technicalities and the traps.
• The third was essentially the dictates of conscience and common sense sublimated by
the stoic philosophy into an authoritative system of precepts regarded as emanating
from the primal and universal reason.
• Medieval Christendom was the heir of Imperial Rome. The medieval thinkers
accepted the classification of the great Latin jurists, but they supplemented it and
redefined its terms only adding particularly the supernaturally revealed Law of God.
• The best concept of medieval law is found in the writings of St. Thomas Aquinas. He
classified them as 1) Eternal, 2) Natural, 3) Human and 4) Divine.
• In modern era Jean Bodin in his work “De Republica”, discarding what is known as
just divinum or the divine law. (the cause of dissent was that since 1562 he had seen
this country, France, torn by ferocious civil wars and disgraced by such appalling
atrocities as the Bartholomew massacre simply because Catholics and Calvinists
could not agree in their interpretation of the jus divinum.)
• Bodin concluded that no accord was possible and the only way of peace and national
salvation was the recognition of the sovereignty of the state and its primary obligation
to maintain and enforce Jus Civile or the civil laws made by human authority. ( but he
remained a denizen of the Middle Ages as to admit that the civil laws will have the
validity if they depended on divine law, natural law and the law of nations.)
• Although Bodin prepared the way for Hobbes, Bentham and Austin, but he did not
himself advance for along the path of clarity. (Grotius, the Dutch Jurist, interpreted
jus gentium, and jus naturale in his own way. He accepted only two of the four
medieval categories of commands, and combined them together to free them from the
entanglements of medieval ideology. Hobbes, however, was the person who broke
most completely with the medieval and Roman tradition respecting law. He regarded
tye will of Leviathan as the only source of valid law on the Earth.)
• According to Hobbes –law was the word of him that hath command over others. This
had cleared the way for Austin to go but the confusion was again created by
Blackstone who said that “no human laws are of any validity if they are contrary to
natural law. This was serious; in an English law court could a person accused of
violating one of the laws of England plead successfully that the law was contrary to
the law of nature?
• Sir Thomas Moore, in the 16th century when convicted of high treason, had pleaded
that the Statute under which he had condemned was “directly repugnant to the laws of
God and His Holy Church”. His idea had been disallowed. Ought to have been so? In
Blackstone’s opinion apparently not: for he said, “Human laws are of no validity if
contrary to divine laws-all valid laws derive their force from the divine original”.
• Here was a problem that needed solution and clearing up.
• What laws could claim validity in the English courts?
• Could Acts of Parliament or cases adjudged be set aside by the plea that the law
which they laid down was contrary to the divine law, or natural law, or moral law, or
constitutional law, or international law, or any other code of human conduct?
• Austin like Bentham did not approve all this.
• In his “lectures on Jurisprudence” he defined law as “a command of sovereign issued
by one who is politically superior to those who are politically inferior. It is binding
because of the power of the superior to enforce penalties. Commands issued by a
political superior, that is by sovereign in a state, are positive laws or laws proper. But
all other human commands set by indeterminate or non sovereign superiors are
positive morality. Within the latter category, we may include customs, laws of
• fashion, and of honour, the mass of understandings and conventions that form
international law, and the principles and precedents of constitutional law.
International law is now no law because there is no sovereign power behind to enforce
it.
• Constitutional law is not positive law, since no legal authority can establish rules by
which the sovereign itself created.
• To legal rules to which habitual obedience is given might be statutes created by the
sovereign will, court’s decision given by the sovereign’s agents, or custom permitted
by the sovereign but which may be superseded at any time.
• It was to this that the principle that “what the sovereign permits, it commands”, was
applied.
• Custom, he says, is not laws unless the sovereign has given his formal or tacit
consent.
• He carefully separated jurisprudence and ethics.
• Jurisprudence was limited to the field of positive law.