University of London LLB International Programme at Horizon Campus

LA3005: Tute for Jurisprudence and Legal Theory

Name of Lecturer - H.R. Chiranthi Senanayake

Legal Positivism and Imperative Theory - A Rival to the Natural Law

School of Jurisprudence (03)

An Introduction to the Work of John Austin

Who is John Austin?

 John Austin is considered by many to be the creator of the

school of analytical jurisprudence, as well as, more specifically, the
approach to law known as “legal positivism.” Austin’s particular
command theory of law has been subject to pervasive criticism, but its
simplicity gives it an evocative power that continues to attract
adherents.
 Austin’s work was influential in the decades after his passing
away (Rumble 2005); this influence was in part due to the restatement
of is ideas by other thinkers, like T. E. Holland (Postema 2011: p. 4). E.
C. Clark wrote in the late 19th century that Austin’s work “is
undoubtedly forming a school of English jurists, possibly of English
legislators also. It is the staple of jurisprudence in all our systems of legal education” (Clark
1883: pp. 4–5).
 A similar assessment is made by H.L.A. Hart, looking back nearly a century later:
“within a few years of his death it was clear that his work had established the study of
jurisprudence in England” (Hart 1955: p. xvi). As will be discussed, Austin’s influence can
be seen at a number of levels, including the general level of how legal theory, and law
generally, were taught (Stein 1988: pp. 238–244), and the use of an analytical approach in
legal theory. At such levels, Austin’s impact is felt to this day. Hart could write that “Austin’s
influence on the development of England of [Jurisprudence] has been greater than that of any
other writer,” (Hart 1955: p. xvi) even while Austin’s particular command theory of law
became almost friendless, and is today probably best known from Hart’s use of it (1958: 602–
606, 2012: 18–25) as a foil for the elaboration of Hart’s own, more nuanced approach to legal
theory. In recent decades, some theorists have revisited Austin’s command theory (and other
works), offering new characterizations and defenses of his ideas (e.g., Morison 1982, Rumble
1985, see generally Freeman & Mindus 2013).

Analytical Jurisprudence and Legal Positivism

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LA3005: Tute for Jurisprudence and Legal Theory
Name of Lecturer - H.R. Chiranthi Senanayake

 Early in his career, Austin came under the influence of Jeremy

Bentham, and Bentham’s utilitarianism is evident (though with some
differences) in the work for which Austin is best known today. On Austin’s
reading of utilitarianism, Divine will is equated with Utilitarian principles:
“The commands which God has revealed we must gather from the terms
wherein they are promulg[ate]d. The command which he has not revealed, we must construe
by the principle of utility” (Austin 1873: Lecture IV, p. 160; see also Austin 1832: Lecture II,
p. 41). This particular reading of utilitarianism, however, has had little long-term influence,
though it seems to have been the part of his work that received the most attention in his own
day (Rumble 1995: p. xx). Some have also seen Austin as being one of the early advocates of
“rule utilitarianism.”(e.g., Austin 1832: Lecture II, p. 42, where Austin urges that we analyze
not the utility of particular acts, but that of “class[es] of action”). Additionally, Austin early
on shared many of the ideas of the Benthamite philosophical radicals; he was “a strong
proponent of modern political economy, a believer in Hartleian metaphysics, and a most
enthusiastic Malthusian” (Rumble 1985: pp. 16–17). Austin was to lose most of his “radical”
inclinations as he grew older.
 Austin’s importance to legal theory lies elsewhere—his theorizing about law was
novel at four different levels of generality. First, he was arguably the first writer to approach
the theory of law analytically (as contrasted with approaches to law more grounded in history
or sociology, or arguments about law that were secondary to more general moral and political
theories). Analytical jurisprudence emphasizes the analysis of key concepts, including “law,”
“(legal) right,” “(legal) duty,” and “legal validity.” Though analytical jurisprudence has been
challenged by some in recent years (e.g., Leiter 2007, Leiter and Etchemendy 2021, Postema
2021 [Other Internet Resources]), it remains the dominant approach to discussing the nature
of law. Analytical jurisprudence, an approach to theorizing about law, has sometimes been
confused with what the American legal realists (an influential group of theorists prominent in
the early decades of the 20th century) called “legal formalism”—a narrow approach to how
judges should decide cases. The American legal realists saw Austin in particular, and
analytical jurisprudence in general, as their opponents in their critical and reform-minded
efforts (e.g., Sebok 1998: pp. 65–69). In this, the realists were simply mistaken;
unfortunately, it is a mistake that can still be found in some contemporary legal
commentators (see Bix 1999, 903–919, for documentation).
 Second, Austin’s work should be seen against a background where most English
judges and commentators saw common-law reasoning (the incremental creation or
modification of law through judicial resolution of particular disputes) as supreme, as
declaring existing law, as discovering the requirements of “Reason,” as the immemorial
wisdom of popular “custom.” Such (Anglo-American) theories about common law reasoning
fit with a larger tradition of theorizing about law (which had strong roots in continental
European thought—e.g., the historical jurisprudence of theorists like Karl Friedrich von

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LA3005: Jurisprudence and Legal Theory
 University of London LLB International Programme at Horizon Campus
LA3005: Tute for Jurisprudence and Legal Theory
Name of Lecturer - H.R. Chiranthi Senanayake

Savigny (1975)): the idea that generally law did or should reflect community mores, “spirit,”
or custom. In general, one might look at many of the theorists prior to Austin as exemplifying
an approach that was more “community-oriented”—law as arising from societal values or
needs, or expressive of societal customs or morality. By contrast, Austin’s is one of the first,
and one of the most distinctive, theories that views law as being “imperium oriented”—
viewing law as mostly the rules imposed from above from certain authorized (pedigreed)
sources. More “top-down” theories of law, like that of Austin, better fit the more centralized
governments (and the modern political theories about government) of modern times
(Cotterrell 2003: pp. 21–77).
 Third, within analytical jurisprudence, Austin was the first systematic exponent of a
view of law known as “legal positivism.” Most of the important theoretical work on law prior
to Austin had treated jurisprudence as though it were merely a branch of moral theory or
political theory: asking how should the state govern? (and when were governments
legitimate?), and under what circumstances did citizens have an obligation to obey the law?
Austin specifically, and legal positivism generally, offered a quite different approach to law:
as an object of “scientific” study (Austin 1879: pp. 1107–1108), dominated neither by
prescription nor by moral evaluation. Subtle jurisprudential questions aside, Austin’s efforts
to treat law systematically gained popularity in the late 19th century among English lawyers
who wanted to approach their profession, and their professional training, in a more serious
and rigorous manner (Hart 1955: pp. xvi–xviii; Cotterrell 2003: pp. 74–77; Stein 1988: pp.
231–244).
 Legal positivism asserts (or assumes) that it is both possible and valuable to have a
morally neutral descriptive (or “conceptual”—though this is not a term Austin used) theory of
law. (The main competitor to legal positivism, in Austin’s day as in our own, has been natural
law theory.) Legal positivism does not deny that moral and political criticism of legal systems
is important, but insists that a descriptive or conceptual approach to law is valuable, both on
its own terms and as a necessary prelude to criticism.
 (The term “legal positivism” is sometimes used more broadly to include the position
that we should construct or modify our concept of law to remove moral criteria of legal
validity; or to include a prescription that moral values should not be used in judicial decision-
making (Schauer 2010—see the Other Internet Resources). I do not think anything turns on
whether the term is used more broadly or more narrowly, as long as it is clear which sense is
being used. Additionally, while Schauer claims (2010) that Austin could be seen as
supporting some of the views associated with the broader understanding of “legal
positivism”, there is need for more evidence and argument before the point should be
granted.)
 There were theorists prior to Austin who arguably offered views similar to legal
positivism or who at least foreshadowed legal positivism in some way. Among these would
be Thomas Hobbes, with his amoral view of laws as the product of Leviathan (Hobbes 1996);

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LA3005: Jurisprudence and Legal Theory
 University of London LLB International Programme at Horizon Campus
LA3005: Tute for Jurisprudence and Legal Theory
Name of Lecturer - H.R. Chiranthi Senanayake

David Hume, with his argument for separating “is” and “ought” (which has been taken by
some as a sharp criticism for some forms of natural law theory, those views that purported to
derive moral truths from statements about human nature, Hume 1739, Section 3.1.1, but see
Chilovi and Wodak 2021, raising questions about the relevance of Hume’s views here for
either natural law theory or legal positivism); and Jeremy Bentham, with his attacks on
judicial lawmaking and on those commentators, like Sir William Blackstone, who justified
such lawmaking with natural-law-like justifications (Bentham 1789).
 Austin’s famous formulation of what could be called the “dogma” of legal positivism
is as follows:
 The existence of law is one thing; its merit or demerit is another. Whether it be or be
not is one enquiry; whether it be or be not conformable to an assumed standard, is a different
enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it
vary from the text, by which we regulate our approbation and disapprobation. (Austin 1832:
Lecture V, p. 157)
 (While Austin saw himself as criticizing natural law theory, a view shared by most of
the legal positivists who followed him, the extent to which the two schools disagree, and the
location of their disagreement, remains a matter sharply contested (e.g., Finnis 2000a,
2000b.))
 Andrew Halpin has argued (Halpin 2013) that Austin shaped the nature of modern
analytical jurisprudence and legal positivism by his choice to exclude legal reasoning from
his discussion of “jurisprudence.” A greater focus on legal reasoning, Halpin argues, would
have made it harder to claim a clear separation of law “as it is” and law “as it ought to be.”
Halpin points out that prominent later legal positivists have followed Austin, either in
speaking little about legal reasoning (Hans Kelsen, and, to some extent, H. L. A. Hart), or
speaking about the topic at length, but treating the issue as sharply separate from their
theories of (the nature of) law.
 Fourth, Austin’s version of legal positivism, a “command theory of law” (which will
be detailed in the next section), was also, for a time, quite influential. Austin’s theory had
similarities with views developed by Jeremy Bentham, whose theory could also be
characterized as a “command theory.” Bentham, in a posthumously published work, defined
law as an:
 assemblage of signs declarative of a volition conceived or adopted by the sovereign in
a state, concerning the conduct to be observed in a certain case by a certain person or class of
persons, who in the case in question are or are supposed to be subject to his power: such
volition trusting for its accomplishment to the expectation of certain events which it is
intended such declaration should upon occasion be a means of bringing to pass, and the
prospect of which it is intended should act as a motive upon those whose conduct is in
question (Bentham 1970: p. 1).

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LA3005: Jurisprudence and Legal Theory
 University of London LLB International Programme at Horizon Campus
LA3005: Tute for Jurisprudence and Legal Theory
Name of Lecturer - H.R. Chiranthi Senanayake

 However, Austin’s command theory was more influential than Bentham’s, because
the latter’s jurisprudential writings did not appear in an even-roughly systematic form until
well after Austin’s work had already been published, with Bentham’s most systematic
discussion only appearing posthumously, late in the 20th century (Bentham 1970, 1996;
Cotterrell 2003: p. 50).

Austin’s Views

 Austin’s basic approach was to ascertain what

can be said generally, but still with interest, about
all laws. Austin’s analysis can be seen as either a
paradigm of, or a caricature of, analytical
philosophy, in that his discussions are dryly full of
distinctions, but are thin in argument. The modern
reader is forced to fill in much of the meta-
theoretical, justificatory work, as it cannot be
found in the text. Where Austin does articulate his methodology and objective, it is a fairly
traditional one: he “endeavored to resolve a law (taken with the largest signification which
can be given to that term properly) into the necessary and essential elements of which it is
composed” (Austin 1832: Lecture V, p. 117).
 As to what is the core nature of law, Austin’s answer is that laws (“properly so
called”) are commands of a sovereign. He clarifies the concept of positive law (that is, man-
made law) by analyzing the constituent concepts of his definition, and by distinguishing law
from other concepts that are similar:
 “Commands” involve an expressed wish that something be done, combined with a
willingness and ability to impose “an evil” if that wish is not complied with.
 Rules are general commands (applying generally to a class), as contrasted with
specific or individual commands (“drink wine today” or “John Major must drink
wine”).
 Positive law consists of those commands laid down by a sovereign (or its agents), to
be contrasted to other law-givers, like God’s general commands, and the general
commands of an employer to an employee.
 The “sovereign” is defined as a person (or determinate body of persons) who receives
habitual obedience from the bulk of the population, but who does not habitually obey
any other (earthly) person or institution. Austin thought that all independent political
societies, by their nature, have a sovereign.
 Positive law should also be contrasted with “laws by a close analogy” (which includes
positive morality, laws of honor, international law, customary law, and constitutional
law) and “laws by remote analogy” (e.g., the laws of physics).
(Austin 1832: Lecture I).

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LA3005: Jurisprudence and Legal Theory
 University of London LLB International Programme at Horizon Campus
LA3005: Tute for Jurisprudence and Legal Theory
Name of Lecturer - H.R. Chiranthi Senanayake

 Austin also included within “the province of jurisprudence” certain “exceptions,”

items which did not fit his criteria but which should nonetheless be studied with other “laws
properly so called”: repealing laws, declarative laws, and “imperfect laws”—laws prescribing
action but without sanctions (a concept Austin ascribes to “Roman [law] jurists”) (Austin
1832: Lecture I, p. 36).
 In the criteria set out above, Austin succeeded in delimiting law and legal rules from
religion, morality, convention, and custom.
However, also excluded from “the province
of jurisprudence” were customary law
(except to the extent that the sovereign had,
directly or indirectly, adopted such customs
as law), public international law, and parts of
constitutional law. (These exclusions alone
would make Austin’s theory problematic for
most modern readers.)
 Within Austin’s approach, whether something is or is not “law” depends on which
people have done what: the question turns on an empirical investigation, and it is a matter
mostly of power, not of morality. Of course, Austin is not arguing that law should not be
moral, nor is he implying that it rarely is. Austin is not playing the nihilist or the skeptic. He
is merely pointing out that there is much that is law that is not moral, and what makes
something law does nothing to guarantee its moral value. “The most pernicious laws, and
therefore those which are most opposed to the will of God, have been and are continually
enforced as laws by judicial tribunals” (Austin 1832: Lecture V, p. 158).
 In contrast to his mentor Bentham, Austin, in his early lectures, accepted judicial
lawmaking as “highly beneficial and even absolutely necessary” (Austin, 1832: Lecture V, p.
163). Nor did Austin find any difficulty incorporating judicial lawmaking into his command
theory: he characterized that form of lawmaking, along with the occasional legal/judicial
recognition of customs by judges, as the “tacit commands” of the sovereign, the sovereign’s
affirming the “orders” by its acquiescence (Austin 1832: Lecture 1, pp. 35–36). It should be
noted, however, that one of Austin’s later lectures listed the many problems that can come
with judicial legislation, and recommended codification of the law instead (Austin 1879: vol.
2, Lecture XXXIX, pp. 669–704).

Criticisms of Austin’s Theory

 As many readers come to Austin’s theory mostly through its criticism by other writers
(prominently, that of H.L.A. Hart; see also Kelsen 1941: 54–66), the weaknesses of the
theory are almost better known than the theory itself:

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 University of London LLB International Programme at Horizon Campus
LA3005: Tute for Jurisprudence and Legal Theory
Name of Lecturer - H.R. Chiranthi Senanayake

 First, in many societies, it is hard to identify a “sovereign” in Austin’s sense of the

word (a difficulty Austin himself experienced, when he was forced to describe the British
“sovereign” awkwardly as the combination of the King, the House of Lords, and all the
electors of the House of Commons). Additionally, a focus on a “sovereign” makes it difficult
to explain the continuity of legal systems: a new ruler will not come in with the kind of “habit
of obedience” that Austin sets as a criterion for a system’s rule-maker.
 A few responses are available to those who would defend Austin. First, some
commentators have argued that Austin is here misunderstood, in that he always meant “by the
sovereign the office or institution which embodies supreme authority; never the individuals
who happen to hold that office or embody that institution at any given time” (Cotterrell 2003:
p. 63, footnote omitted); there are certainly parts of Austin’s lectures that support this reading
(e.g., Austin 1832: Lecture V, pp. 128–29; Lecture VI, p. 218).
 Secondly, one could argue (see Harris 1977) that the sovereign is best understood as a
constructive metaphor: that law should be viewed as if it reflected the view of a single will (a
similar view, that law should be interpreted as if it derived from a single will, can be found in
Ronald Dworkin’s work (1986: pp. 176–190)).
 Thirdly, one could argue that Austin’s reference to a sovereign whom others are in the
habit of obeying but who is not in the habit of obeying anyone else, captures what a “realist”
or “cynic” would call a basic fact of political life. There is, the claim goes, entities or factions
in society that are not effectively constrained, or could act in an unconstrained way if they so
chose. For one type of example, one could point out that if there was a sufficiently large and
persistent majority among the United States electorate, nothing could contain them: they
could elect Presidents and legislators who would amend the Constitution and, through those
same officials, appoint judges who would interpret the (revised or original) Constitution in a
way amenable to their interests. A different sort of example (and some would say that there
are recent real-life examples of this type) would be a President who ignored the constraints of
statutory law, constitutional law, and international treaty commitments, while the public and
other officials lacked the will or the means to hold that President to the legal norms that
purported to constrain his or her actions.
 As regards Austin’s “command” model, it seems to fit some aspects of law poorly
(e.g., rules which grant powers to officials and to private citizens—of the latter, the rules for
making wills, trusts, and contracts are examples), while excluding other matters (e.g.,
international law) which we are not inclined to exclude from the category “law.”
 More generally, it seems more distorting than enlightening to reduce all legal rules to
one type. For example, rules that empower people to make wills and contracts perhaps can be
re-characterized as part of a long chain of reasoning for eventually imposing a sanction
(Austin spoke in this context of the sanction of “nullity” (Austin 1879: 522, 523, 923)) on
those who fail to comply with the relevant provisions. However, such a re-characterization

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 University of London LLB International Programme at Horizon Campus
LA3005: Tute for Jurisprudence and Legal Theory
Name of Lecturer - H.R. Chiranthi Senanayake

misses the basic purpose of those sorts of laws—they are arguably about granting power and
autonomy, not punishing wrongdoing.
 A different criticism of Austin’s command theory is that a theory which portrays law
solely in terms of power fails to distinguish rules of terror from forms of governance
sufficiently just that they are accepted as legitimate (or at least as reasons for action) by their
own citizens.
 Finally, one might note that the constitutive rules that determine who the legal
officials are and what procedures must be followed in creating new legal rules, “are not
commands habitually obeyed, nor can they be expressed as habits of obedience to persons”
(Hart 1958: p. 603).
 Austin was aware of some of these lines of attack, and had responses ready; it is
another matter whether his responses were adequate. It should also be noted that Austin’s
work shows a silence on questions of methodology, though this may be forgivable, given the
early stage of jurisprudence. As discussed in an earlier section, in many ways, Austin was
blazing a new path. On matters of methodology, later commentators on Austin’s work have
had difficulty determining whether he is best understood as making empirical claims about
the law or conceptual claims; elements of each sort of approach can be found in his writings
(Lobban 1991: pp. 224–225; Cotterrell 2003: pp. 81–83).
 When H.L.A. Hart revived legal positivism in the middle of the 20th century (Hart
1958, 2012), he did it by criticizing and building on Austin’s theory: for example, Hart’s
theory did not try to reduce all legal rules to one kind of rule, but emphasized the varying
types and functions of legal rules; and Hart’s theory, grounded partly on the distinction
between “obligation” and “being obliged,” was built around the fact that some participants
within legal systems “accepted” the legal rules as reasons for action, above and beyond the
fear of sanctions. Hart’s “hermeneutic” approach, building on the “internal point of view” of
participants who accepted the legal system, diverged sharply from Austin’s approach to law.

A Revisionist View?

 Some modern commentators appreciate

in Austin elements that were probably not
foremost in his mind (or that of his
contemporary readers). For example, one
occasionally sees Austin portrayed as the first
“realist”: in contrast both to the theorists that
came before Austin and to some modern writers
on law, Austin is seen as having a keener sense
of the connection of law and power, and the importance of keeping that connection at the
forefront of analysis (cf. Cotterrell 2003: pp. 49–77). One commentator wrote:

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LA3005: Jurisprudence and Legal Theory
 University of London LLB International Programme at Horizon Campus
LA3005: Tute for Jurisprudence and Legal Theory
Name of Lecturer - H.R. Chiranthi Senanayake

 Austin’s theory is not a theory of the Rule of Law: of government subject to law. It is
a theory of the ‘rule of men’: of government using law as an instrument of power. Such a
view may be considered realistic or merely cynical. But it is, in its broad outlines, essentially
coherent. (Cotterrell 2003: p. 70)
 When circumstances seem to warrant a more critical, skeptical or cynical approach to
law and government, Austin’s equation of law and force will be attractive—however distant
such a reading may be from Austin’s own liberal-utilitarian views at the time of his writing,
or his more conservative political views later in his life (Hamburger, 1985).

References

Austin, John, 1832, The Province of Jurisprudence Determined, W. Rumble (ed.),

Cambridge: Cambridge University Press, 1995.

–––, 1879, Lectures on Jurisprudence, or The Philosophy of Positive Law, 2 volumes, R.

Campbell (ed.), 4th edition, revised, London: John Murray; reprinted, Bristol: Thoemmes
Press, 2002.

Bentham, Jeremy, 1789, An Introduction to the Principles of Morals and Legislation, J. H.

Burns & H.L.A. Hart (eds.), Oxford: Oxford University Press, 1996.

–––, 1970, Of Laws in General, H.L.A. Hart (ed.), London: Athlone Press.

Bix, Brian H., 1999, “Positively Positivism,” Virginia Law Review, 75: 1613–1624.

Chilovi, Samuele and Wodak, Daniel, 2021, “On the (In)significance of Hume’s
Law,” Philosophical Studies, first online 29 June 2021. doi:10.1007/s11098-021-01674-5

Clark, E. C., 1883, Practical Jurisprudence: A Comment on Austin, Cambridge: Cambridge

University Press.

Cliffe Leslie, T. E., 1864, “Modern Phases of Jurisprudence in England,” Westminster

Review, 26: 261–76 [U.S. edition, 162: 125–132].

Cosgrove, Richard A., 1996, Scholars of the Law: English Jurisprudence from Blackstone to
Hart, New York: New York University Press.

Cotterrell, Roger, 2003, The Politics of Jurisprudence: A Critical Introduction to Legal

Philosophy, 2nd edition, London: LexisNexis.

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LA3005: Tute for Jurisprudence and Legal Theory
Name of Lecturer - H.R. Chiranthi Senanayake

Dewey, James, 1894, “Austin’s Theory of Sovereignty,” Political Science Quarterly, 9: 31–
52.

Duxbury, Neil, 2005, “English Jurisprudence Between Austin and Hart,” Virginia Law
Review, 91: 1–91.

Dworkin, Ronald, 1986, Law’s Empire, Cambridge, MA: Harvard University Press.

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