Philosophy of Law

John Austin’s Province of Jurisprudence

The Province of Jurisprudence as contended by John Austin, it is a philosophical concept that defines the
subject matter and boundaries of jurisprudence. Austin’s aim in this seminal text is to determine the
proper and limited scope of jurisprudence. It specifically distinguishes positive law from other related
objects, resemblance, analogies.

Austin asserted that the matter of jurisprudence is positive law. To understand this, we must define first
what is positive law. Positive law is law in its simplest and strict definition (it is tangible and enforceable)
promulgated by an authority – this is in contrast with theoretical or abstract definition of law. In
essence, this means that jurisprudence is the real and applicable rules created by courts.

John Austin’s Province of Jurisprudence Distinguished from Others Related to it

Austin in his seminal text, addressed a common confusion where positive law is often mixed up or
confused with other things that may seem related but are not the same. To Illustrate:

Objects Related by
Resemblance
Austin places great importance
on the concept of authority
within a given legal system.
The sovereign has the ultimate
power to issue commands and
enforce them through sanctions.
Laws derive their validity from
this sovereign authority.
Austin mentioned that people often confuse positive law with
objects or concepts that resemble it in some way. Stating that
certain objects might look like law but are not actually legal rules
or positive laws.
Divine Law
Austin rejects the term Natural Law or Law of Nature as he finds it
ambiguous and potentially misleading. He believes that Natural
Laws can be interpreted in different ways and can sometimes be
hard to distinguish from others. Hence, Austin termed it as Divine
Law or the Law of God which is the laws set by God to his human
creatures. He argues that this is the only natural law that can be
discussed without metaphor or confusion.

Laws Set by Humans - He categorizes these laws into two principal

classes, which are sometimes mixed but should be clearly
separated.

 First Class: Laws Established by Political Superiors

 Second Class: Other Laws Not Established by Political
Superiors

Austin is concerned that the loose use of terms can lead to

confusion because it blurs the distinction between what is law and
what resembles law.

Objects Related by Analogy Austin also points out that positive law can be

Jurisprudence is distinguished as positive laws -
meaning that regardless if there is a strong or
weak analogy that resembles what positive laws
look like - it won’t still be sufficient to label or
determine it as Jurisprudence.
related to other objects through analogy. He
discusses that the second class of human laws are
closely analogous to laws created and enforced
by opinion (customary rules or rules based on
morality). They are somehow termed as laws
but lack the authority of political superiors.

In this case, positive morality although it is Examples of this type of law-like rules,
somehow equal to positive laws. It cannot be "The law of honor"
determined as Jurisprudence since it lacks the "The law set by fashion."
authority of political superiors. "International law"

These rules are not created by official legislative

bodies but are based on social norms and
opinions.

Austin, to remedy the misunderstanding of the

use of terminology, distinguished these law-like
rules as positive morality. This is because the
term “morality” can be ambiguous without
qualifiers (can be positive morality as it is or
conformed to Divine Law). Hence, there is a need
to use clear terminology to prevent discussions
about legal/moral concepts.

What are the two classes of human laws

First Class: Laws Established by Political Second Class: Laws not Established by
Superior Political Superiors

These are laws created and enforced by political
authorities (superiors) and exist in independent political
societies. The aggregate (totality) of these rules is the
main subject of jurisprudence - the study of law. It is
commonly referred to as Positive Law or Law Existing
by Position
These laws are established by humans but not by
superiors. These may include customary rules or rules
based on morality. While these are considered as
positive law - they are not part of jurisprudence.

What does law as a species of command mean?

Austin asserts that every law or rule, when understood broadly, is essentially a type of command. Why is
this so, it is important to remember that Austin places great importance on the concept of authority
within a given legal system. Therefore, laws are considered as commands because they are promulgated
by a governing authority. The authority as understood has the ultimate power to issue commands and
enforce them through laws and rules.

Looking at it in a bird’s eye-view, Laws derive their validity from this sovereign authority. The authority
promulgates laws as a form of command. In other words, laws are a specific category of commands
issued by a governing authority.

Is it merely an expression of desire?

No. Command is not merely an expression of desire.
Yes, we do understand that a command involves the expression or intimation of a wish or desire by one
person to another. But we also understand that Its definition is not exclusively to that premise alone,
because:

ONE, it also includes the element of evil or disadvantage that may be inflicted upon the person
who disregards the wish.

TWO, a command carries the implication that there will be negative consequences for non-
compliance.

Therefore, a command goes beyond a simple expression of desire and that it also includes the
expectation of obedience through an assumed potential for harm or punishment.

For Austin, what is the source of duty to follow the law?

According to Austin, the source of the duty to follow the law is the command of a political superior
(sovereign). He argues that laws are a species of commands issued by a sovereign authority, and
individuals have an obligation to obey these commands.

The duty to follow the law arises from the fact that the sovereign has the power to enforce compliance
through sanctions or punishments. Austin's theory of legal positivism emphasizes the importance of the
command of legitimate authority as the basis for legal obligation.

Are laws conferring rights absolutely considered as laws?

YES. My justification is that laws conferring rights are absolutely considered as laws because:

A. According to Austin, there is a relative duty with every right (whether explicitly or implicitly).
That there are no laws that creates rights without it imposing a duty or obligation. In its simplest
sense, every law that confers right also imposes an obligation with that right. Therefore, with it
being a duty this also means that there is a command. By having a characteristic of command, it
is considered as laws.

B. Regardless of the premise that rights are mere legal duties, they still exhibit the essential
characteristics of laws being a command issued by a sovereign authority and the nature of these
laws are imperative. Given these requisites present, these are sufficient to identify conferring
rights absolutely considered laws.

The main premise of Austin is that Laws and Jurisprudence are command-based framework, hence laws
conferring rights (since they impose duty and therefore is a form of command by a superior authority)
perfectly fits into the argument that laws conferring rights are absolutely considered as laws.

II. H.L.A. Hart - The Concept of Law (Ch. V-VI)

What is Hart’s three primary points of criticism on Austin’s definition of law?

A. It applies closely to a criminal statute - as forbidding or enjoining certain actions of penalty

most resembles the orders backed by threats given by one person to another (p. 79)

B. It does not distinguish between the primary (rules that guide behavior directly) and secondary
rules (rules that provide the framework for the creation and modification of the primary rules)

C. It does not take into account other varieties of law that are not construed as orders backed by
threats (secondary rules) - examples are the legal powers to adjudicate or legislate (public
power) and create and vary legal situations (private powers) (p. 79)

Fails to recognize that some legal rules differ from orders in their mode of origin - those that come into
being by anything analogous to explicit prescription. (p. 79).

Hart argued that Austin's definition of law as commands issued by a sovereign authority is overly
command-centered and simplistic. It neglects the complexities of legal systems and the variety of legal
rules that may not fit the strict command model, such as rules that grant permissions or create legal
rights.

What are the two types of rules for Hart? How do they differ from one another?
Primary rules Secondary rules
Primary rules require human beings to do or Secondary Rules provide those human beings, by
abstain from certain actions whether they wish to doing certain things, may create new rules,
or not extinguish and/or modify old rules, or in various
ways determine their incidence or control their
Primary Rules impose duties operation

Primary rules concern actions involving physical
movement or changes
Secondary rules confer public or private power
While secondary rules provide for operations
which will lead to the creation or variation of
duties and obligations.

In essence, primary rules are concerned with the actions that individuals must or must not do, these
secondary rules are all concerned with the primary rules themselves. They specify the ways in which the
primary rules may be conclusively ascertained, introduced, eliminated, varied, and determine fact of
their violation.

Note: Basically, the primary rules directly govern the actions of the individuals while the secondary rules
act as a response (somewhat) to the actions of the individuals guided by the primary rules

What are the two types of rules for Hart? How do they differ from one another?
Hart depicts how rules are being analyzed by exhibiting the average group or society having rules of
conduct. He divided it into an analysis of said societal rules of conduct:
A. from the perspective of a member within the group who accepts and uses these rules as guides
conduct (internal point of view) and
B. the perspective from an outside observer who merely observes and does not immerse himself
with said conduct (external point of view).

Hart asserted that there is a difference between the two:

1) He discussed that the internal aspect of rules guides an individual as to the conduct of his
behavior and perhaps even his morals and beliefs, while

2) the external aspect of rules instills the “fear” or “deterrent” in the person from deviating from
said rules.

The internal point of view is important not for only understanding the law, but also for social
structures. It is because the observer is then redirected from plain observation and theory of intangible
concepts in law, but he is also immersed in its day-to-day applications. The rules he is observing are now
being experienced by him firsthand. He gets to understand the context and reason as to how these rules
shaped the society he is in or how the society he is in has shaped these rules.

What are the three problems that arise when we rely solely on primary rules? How
is each problem remedied?

1. Rule Gaps
2. Rule Adjudication and Application
3. Uncertainty and Disagreement
Another Answer:

Problem Remedy

Uncertainty - It would be difficult to identify the rules Rules of Recognition - these specify criteria
if we solely rely on primary rules, and there would be for identifying which rules are valid and
no explanation with regard to their scope of legally binding
application.

Staginess - there is slow process of growth; laws/rules Rules of Change - these prescribe how legal
can only be changed very slowly rules can be created, modified, or repealed

Inefficiency - inefficiency in determining if rules were Rules of Adjudication - these establish

violated or not procedures for settling disputes and applying
primary and secondary rules in concrete
cases
Under the rule of recognition, is there a relationship between the validity and
efficacy of law?

Under the rule of recognition, Hart argued that it is pointless to determine the validity of the law when a
system is inherently inefficacious na.

If by 'efficacy' is meant that the fact that a rule of law which requires certain behavior is obeyed more
often than not, he explained na walay necessary connection between sa validity of particular rule and its
efficacy, unless the rule of recognition of the system includes among its criteria, ang provision
(sometimes referred to as a rule of obsolescence) nga that no rule is to count as a rule of the system if it
has long ceased to be efficacious.

One who makes an internal statement concerning the validity of a particular rule of a system may be
said to presuppose the truth of the external statement of fact that the system is generally efficacious
(page 104)

In the case of a new system, nga wala pa gyud na establish as the legal system of a given group, it had
ceased to be the legal system of the group.

III. H.L.A. Hart - Positivism and the Separation of Law and Morals.
1. Why is there a necessity to separate law from morality? Do positivists take an antagonistic
position regarding the relationship between law and morality?
2. Aside from the separation of law and morality, what do utilitarians believe as important
doctrines in law?
3. What is Hart’s critique of law as command?
4. What are the “problems of the penumbra”? Why is Austinian doctrine on logical deduction
insufficient to answer legal issues in this area?

IV. Hans Kelsen - Pure Theory of Law

(Chapter 1)
1. Why did Kelsen describe his theory of law as “pure”?
2. How does Kelsen define norms? What is the role of norms in interpreting law?
(Chapter 5)
1. What is the place of Kelsen’s Grundnorm (basic norm) in his theory of law?
2. Differentiate static and dynamic norm systems.
3. How does Kant’s philosophy help explain the necessity of the basic norm as being
presupposed?
4. For Kelsen, what is the relationship between validity and effectiveness of law?

VI. Joseph Raz - Legal Positivism and the Sources of Law

1. What is the social thesis in legal positivism? Summarize each position made by Raz.
2. What is the difference between strong and weak social thesis?