Abstract
I argue that attention to Austin helps us to appreciate that there are significant continuities between his legal theory and that of contemporary positivists; hence, to the extent that Austin’s theory has defects, these are reproduced in the work of contemporary legal positivists. An historical perspective on contemporary philosophy of law thus permits one to appreciate that the basic divide in legal theory is between a tradition whose basic intuition is that law is answerable to a moral ideal of legality and the positivist tradition that sees law as the transmitter of political judgment. For the former, the rule of law tradition, the basic problem for philosophy of law is to explain the distinction between the rule of law and the arbitrary rule of men. For the latter, the rule by law tradition, the basic problem is to explain how law can effectively transmit the judgments made political elites. The rule by law tradition encounters severe difficulties in making sense of the idea of government according to law, difficulties which reach their height once legal positivists accept, following Hart, that philosophy of law has to understand law as a normative phenomenon, which in turns requires taking seriously the internal point of view of legal officials.
I thank Michael Freeman for organizing the symposium on John Austin at University College London at which a draft of this paper was presented and the participants in that symposium for discussion.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Herbert L. A. Hart, “Positivism and the Separation of Law and Morals” reprinted in Hart, Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983) at 49.
- 2.
Herbert L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961) at vii.
- 3.
Hart, “Positivism and the Separation of Law and Morals” supra note 1 at 50.
- 4.
Ibid. at 57, fn 25.
- 5.
Ibid. at 52. John Austin, Lectures on Jurisprudence or The Philosophy of Positive Law (5th ed., London: John Murray, 1885, reproduced by Verlag Detlev Auvermann KG: Glashütten in Taunus, 1972) volume I, note at 214–15.
- 6.
Hart, “Positivism and the Separation of Law and Morals” supra note 1 at 53.
- 7.
Herbert L. A. Hart, Essays on Bentham: Jurisprudence and Political Philosophy (Oxford: Clarendon Press, 1982) at 244.
- 8.
Ibid. at 28.
- 9.
Ibid at 221.
- 10.
Ibid. at 28.
- 11.
Ibid. at 153–61, 263–68, referring to Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press, 1979) at 155.
- 12.
Hart, Essays on Bentham, supra note 7 at 160–61. For the “internal point of view, see Hart, Concept of Law, supra note 2 at 87.
- 13.
Austin, Lectures, supra note 5 at 281.
- 14.
Hart, Essays on Bentham, supra note 7 at 225–27.
- 15.
Ibid. at 226.
- 16.
Ibid. at 227–42.
- 17.
Hart, Concept of Law, supra note 2, chapter VI.
- 18.
Hart, “Positivism and the Separation of Law and Morals” supra note 1 at 59.
- 19.
See Stuart Lakin, “Debunking the Idea of Parliamentary Sovereignty: The Controlling Factor of Legality in the British Constitution” (2008) 28 Oxford Journal of Legal Studies 709.
- 20.
See John Gardner, “The Legality of Law” (2004) 17 Ratio Juris 168.
- 21.
See Jeremy Waldron, “Positivism and Legality: Hart’s Equivocal Response to Fuller” (2008) 83 New York University Law Review 1135 and David Dyzenhaus, Hard Cases in Wicked Legal Systems: Pathologies of Legality (2nd ed., Oxford: Oxford University Press, 2010) chapters 7–10.
- 22.
Though he did not choose to place the note there. It was inserted by Robert Campbell, the editor, from John Stuart Mill’s notes of the lectures as originally delivered: see Austin, Lectures, supra note 5 at 200, note 16.
- 23.
Ibid. at 220, his emphasis.
- 24.
Ibid. at 245, his emphasis.
- 25.
Ibid. at 246–47.
- 26.
Ibid. at 278.
- 27.
Ibid. at 278–79. The passages are to be found in Thomas Hobbes, Leviathan ed. by Richard Tuck (Cambridge: Cambridge University Press, 1997) at 144–45, 224.
- 28.
Pavlos Eleftheriadis, “Law and Sovereignty”, University of Oxford Legal Research Paper Series, Paper No 42/2009, available at http:/ssrn.com/abstract  =  1486084 (last accessed 13 April 2012), his emphasis. See Carl Schmitt, Constitutional Theory, trans. and ed. by Jeffrey Seitzer (Durham: Duke University Press, 2008) at 64; Schmitt’s emphasis.
- 29.
Eleftheriadis, “Law and Sovereignty” supra note 28 at 27.
- 30.
Ibid. at 29.
- 31.
Ibid. at 29–30.
- 32.
Hart, Concept of Law, supra note 2 at 149.
- 33.
Austin, Lectures, supra note 5 at 302.
- 34.
Ibid. at 301.
- 35.
However, he has no problem with the idea that consent is the basis of government, since consent can be inferred from obedience; ibid. at 298.
- 36.
Ibid. at 267.
- 37.
Ibid. at 267, 269.
- 38.
Ibid. at 245–6.
- 39.
He says that if the electorate were sovereign without the king and the peers, “not a single sovereign power” except the power of election of representatives would be exercised “by the sovereign directly”; ibid. at 245. But it also then follows that the electorate cannot make a law with the king and the peers.
- 40.
Ibid. at 268 and the note at that page.
- 41.
Ibid.
- 42.
Ibid. at 247–48.
- 43.
Albert V. Dicey, An Introduction to the Study of the Law of the Constitution (8th ed., London: MacMillan, 1924) at 68–72.
- 44.
Ibid. at 70.
- 45.
Ibid. at 71–2.
- 46.
Austin, Lectures, supra note 5 at 280–81.
- 47.
Ibid. note at 214–15. For Hart’s quotation of much of this passage, see Hart, “Positivism and the Separation of Law and Morals” supra note 1 at 73.
- 48.
Ibid. at 74.
- 49.
Ibid. at 75.
- 50.
Austin, Lectures, supra note 5 note at 215–16.
- 51.
Ibid. at 216, his emphasis.
- 52.
Ibid. at 118–20.
- 53.
Ibid. at 218.
- 54.
Ibid. at 279–280.
- 55.
Ibid.
- 56.
Ibid. at 281–82.
- 57.
Indeed, one should take into account in regard to disobedience the remarks of Hobbes that get referred to as the “rebel’s catechism,” in which he suggests that subjects may disobey when the sovereign’s commands frustrate the ends of sovereignty; Hobbes, Leviathan, supra note 27 at 151.
- 58.
Ibid. at 110.
- 59.
Ibid. at 192.
- 60.
Austin, Lectures, supra note 5 at 301–2.
- 61.
Dicey, An Introduction to the Study of the Law, supra note 43 at 179.
- 62.
Ibid. at 183.
- 63.
Ibid. at 183–84.
- 64.
Ibid. at 189.
- 65.
Ibid.
- 66.
Ibid. at 191, footnote omitted; my emphasis.
- 67.
Ibid. at 179.
- 68.
Ibid. note at 65–66.
- 69.
Ibid. at 23.
- 70.
Ibid. at 196.
- 71.
Ibid. at 48–49, my emphasis.
- 72.
Supra note 66.
- 73.
Notice that in a parliamentary order that the statute is in this way problematic has two immediate practical consequences even on the assumption that judges do not have the authority to strike down the statute as invalid. First, when judges are confronted by a problem that results from the fact that a statute is plausibly interpreted as undermining the rule of law, the judges have a legal duty to try to interpret the statute in a way that preserves rather than undermines the rule of law. Second, if they find that they have no option but to interpret the statute as one that manifests an intention to undermine the rule of law, they are under a legal duty to point this out. And that should be seen as a signal both to parliament and to the public that parliament has strayed from its part in upholding the rule of law.
- 74.
Hobbes, Leviathan, supra note 27 at 194.
- 75.
David Dyzenhaus, “Hobbes’s Constitutional Theory” in Thomas Hobbes, Leviathan ed. by Ian Shapiro (New Haven, CT: Yale University Press, 2010) at 453.
- 76.
A sovereign government may appear before a tribunal of its own appointment, but “from such an appearance of a sovereign government, we cannot infer that the government lies under legal duties, or has legal rights against its own subjects”; Austin, Lectures, supra note 5 at 287–88. Further: “where the sovereign government appears in the character of defendant, it appears to a claim founded on a so called law which it has set to itself. It therefore may defeat the claim by abolishing the law entirely, or by abolishing the law in the particular or specific case.” Rights pursued against the government are therefore merely “analogous” to legal rights since the government can “extinguish [them] by its own authority”; ibid. his emphasis.
- 77.
Ibid. at 134.
- 78.
Ibid. at 133.
- 79.
Ibid.
- 80.
Ibid. at 218–19.
- 81.
For example: “The proper purpose or end of a sovereign political government, or the purpose or end for which it ought to exist, is the greatest possible advancement of human happiness” (ibid. at 290). See further 292–93: One can infer “the causes of that habitual obedience which would be paid to the sovereign by the bulk of an enlightened society” from that purpose. “Supposing that a given society were adequately instructed or enlightened, the habitual obedience to its government which was rendered by the bulk of the community, would exclusively arise from reasons bottomed in utility.”
- 82.
Ibid. at 294–95.
- 83.
Ibid. at 220.
- 84.
For example: “To the ignorant and bawling fanatics who stun you with their pother about liberty, political or civil liberty seems to be the principal end for which government ought to exists. But the final cause or purpose for which government ought to exist, is the furtherance of the common weal to the greatest possible extent”; ibid. at 274.
- 85.
Lon L. Fuller, “Positivism and Fidelity to Law – A Reply to Professor Hart” (1958) 71 Harvard Law Review 630.
- 86.
Waldron, “Positivism and Legality” supra note 21.
- 87.
Joseph Raz, “The Rule of Law and its Virtue” in Raz, The Authority of Law, supra note 11 210. See Dyzenhaus, Hard Cases in Wicked Legal Systems, supra note 21, chapters 7, 8 and 9.
- 88.
Hart, “Positivism and the Separation of Law and Morals” supra note 1 at 66, a term he took with approval from Austin.
- 89.
Ibid. at 197.
- 90.
Harold J. Berman, in the conclusion to his history of the Western legal tradition, argues that positivists fail to see that such resources have played a constitutive role both in that tradition and in the tradition of the civil law. He takes the central idea of legal positivism to be that law is an “instrument of domination, a means of effectuating the will of the law-maker,” but finds that this idea only captures part of the historical story. He argues that an understanding of law also has to account for the way it has evolved in part by providing mechanisms to protect the powerless from the arbitrary power of the powerful; Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, MA: Harvard University Press, 1983) at 556.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2013 Springer Science+Business Media Dordrecht
About this chapter
Cite this chapter
Dyzenhaus, D. (2013). Austin, Hobbes, and Dicey. In: Freeman, M., Mindus, P. (eds) The Legacy of John Austin's Jurisprudence. Law and Philosophy Library, vol 103. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4830-9_11
Download citation
DOI: https://doi.org/10.1007/978-94-007-4830-9_11
Published:
Publisher Name: Springer, Dordrecht
Print ISBN: 978-94-007-4829-3
Online ISBN: 978-94-007-4830-9
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)