Abstract
Austin is better understood as the last of the Schoolmen rather than the first of the Benthamites. Ostensibly, Austin fundamentally distinguishes the objective moral truth of divine law from the morally dubious human positive law. But at a deeper level, Austin distinguishes natural from positive law within human positive law just as he distinguishes natural from positive divine law. Like the Schoolmen, he uses the term positive in two very different senses, by implicit contrast both to natural law and to customary law. Once we see the importance of positive divine law, what Austin calls the “revealed” law of God, we can see that might makes duty and the Almighty makes all duty. True, utility provides the standard for judging the goodness or badness of all law, human and divine. But positive divine law imposes duties paramount to all others whether it is good or bad, because the existence of a law is one thing, its merit or demerit is another. In short, Austin has a divine command theory of duty but not of goodness.
In this paper I draw freely on my book The Philosophy of Positive Law: Foundations of Jurisprudence (New Haven: Yale University Press, 2005), especially Chapter 4: Positive Law in the Analytical Positivism of John Austin.
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Notes
- 1.
Many commentators describe Austin simply as a disciple of Bentham: “Austin followed very much in Bentham’s footsteps, though he did not command his master’s powers of innovation in logic.” See Herbert L. A. Hart, “Jhering’s Heaven of Concepts” in Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983) 265–277, at 273. Obviously Hart is aware that, after the publication of his first lectures on jurisprudence, Austin distanced himself radically from Bentham’s politics. For an assessment of this distance, see Lotte and Joseph Hamburgers’ Troubled Lives: John and Sarah Austin (Toronto: University of Toronto Press, 1985), chap. 9: “Did Austin remain an Austinian?” But even in his early lectures on jurisprudence, Austin’s commitment to rule utilitarianism and his grounding of moral and legal duty in divine law show him marching out of step with Bentham. See Wilfrid Rumble’s The Thought of John Austin (London: Athlone Press, 1985), chap. 3: “Divine law, utilitarian ethics, and positivist jurisprudence.” Austin later said of his relationship to Bentham: “I have since [my youth] dissented from many of his views of law and of the various subjects immediately connected with it.” Cf. John Austin, A Plea for the Constitution (London: John Murray, 1859) at vi.
- 2.
John Austin’s confession here is reported by Sarah Austin in her “Preface” to his Lectures on Jurisprudence: Or the Philosophy of Positive Law [hereafter Lectures], ed. by Robert Campbell (5th ed., London: John Murray, 1885) at 12.
- 3.
Austin, Lectures, supra note 2 at 32.
- 4.
Blackstone and Bentham fail to avoid “positive law” entirely. For Blackstone’s contrast of “natural duties” to “positive [legal] duties” and for his contrast of positive and common law, see William Blackstone (Dublin: 5th edition, 1773) Introduction, sec. 2, at 57–58 and sec. 3.10 (at 92); for Bentham’s very rare use of “positive law” see Jeremy Bentham, Deontology Together with A Table of the Springs of Action and the Article on Utilitarianism ed. by Amnon Goldworth (Oxford: Clarendon Press, 1983) at 34 and Legislator of the World: Writings on Codification, Law and Education ed. by Philip Schofield and Jonathan Harris (Oxford: Clarendon Press, 1998) at 29 and 203.
- 5.
Henry Sumner Maine led a chorus of complaints that Austin’s lectures on utilitarianism were “the most serious blemish in the Province of Jurisprudence Determined” because “it is a discussion belonging not to the philosophy of law but to the philosophy of legislation.” See Henry Sumner Maine, Lectures on the Early History of Institutions (New York: Henry Holt, 1975) at 369–370. Even today, Michael Lobban complains: “Austin created confusion by spending much time in the Province of Jurisprudence Determined discussing utilitarian theory. Yet this was irrelevant to jurisprudence. (…) Utility was clearly part of the science of ethics, and had nothing to do with law as law.” See Michael Lobban, The Common Law and English Jurisprudence 1760–1850 (Oxford: Clarendon Press, 1991) at 246 and 254.
- 6.
Quod P. Nigidius argutissime docuit nomina non positiva esse, sed naturalia: Gellius then points to the Greek origin of this debate: “Quaeri enim solitum aput philosophos, physei ta onomata sint thesei.” Aulus Gellius, Noctes Atticae ed. by Peter K. Marshall (Oxford: Clarendon Press, 1990), vol. 1, X, 4 (at 307). Other variants of pono, later used to describe positive law, were also derived from Greek debates about language: “illi qui primi nomine imposuerunt rebus fortasse an in quibusdam sint lapsi (…).” See Varro, De Lingua Latina, L. 8, 7: “qui primus, quod summae sapientiae Pythagorae visum est, omnibus rebus imposuit nomina.” See also Cicero, Tusculan Disputations, I, 25, 62.
- 7.
Stephan Kuttner has traced the origin of “positive law” to the rediscovery of Chalcidius’s commentary on Plato’s Timaeus in the twelfth century in Latin (possibly a translation of a Greek original); on Chalcidius’s reliance on Gellius, see Stephen Kuttner, Repertorium der Kanonistik (1140–1234), vol. 1 (Vatican City: Biblioteca Apostolica, 1937) at 176: “Aus welchen Quellen de französische Scholastik und Dekretistik den Ausdruck ‘positives Recht’ bildete – es wäre z. B. an des Chalcidius Kommentar au Platons Timäus zu denken – bedarf noch philosophiegeschichter Erforschung”; and at 176 fn. 2: “Da der Kommentar selber wohl nur eine Uebersetzung einer griechischen Kommentarkompilation ist, lässt sich vermuten, dass das Begriffspaar ‘naturalis – positiva’ eine Latinisierung von physei – thesei ist, wie sie auf grammatisch-sprachlogischem Gebiet schon bei Gellius (…) begegnet.” See Stephen Kuttner, “Sur les origines du terme ‘droit positif’” (1936) 15 Revue historique du droit français et étranger 728–740 at 739.
- 8.
Thomas Aquinas, Summa Theologiæ I-II, QQ. 98–105.
- 9.
Thomas Hobbes, Leviathan, chap. 31.
- 10.
John Austin, The Province of Jurisprudence Determined (hereafter Province) ed. by Herbert L. A. Hart (London: Weidenfeld and Nicolson, 1954) at 365; See also Austin, Lectures, supra note 2 at 548.
- 11.
Austin, The Province, supra note 10 at 179.
- 12.
Austin, The Province, supra note 10 at 124.
- 13.
Ibid. at 124.
- 14.
Ibid. at 124.
- 15.
Edwin Charles Clark, Practical Jurisprudence: A Comment on Austin (Cambridge: Cambridge University Press, 1883) at 132.
- 16.
Recall that in William of Conches’s commentary on Calcidius we read: “Positive [justice] is that which is contrived by men (ab hominibus inventa), such as the hanging of a thief” (Latin text in Sten Gagnér, Studien zur Ideengeschichte der Gesetzgebung, Stockholm: Almqvist and Wiksell, 1960 at 231).
- 17.
Austin, The Province, supra note 10 at 6.
- 18.
Austin rejects the misleading connotations of the expression “natural law” but he thinks it intelligible when we take it to mean divine law: “rejecting the appellation Law of Nature as ambiguous and misleading, I name those laws or rules, as considered collectively or in a mass, the Divine law, or the law of God (…) as contradistinguished to natural law, or to the law of nature (meaning, by those expressions, the law of God)”: Austin, The Province, supra note 10 at 10–11.
- 19.
Austin, The Province, supra note 10 at 10.
- 20.
Bentham An Introduction to the Principles of Morals and Legislation ed. by James H. Burns and Herbert L. A. Hart (University of London: Athlone Press, 1970) at 31: “The will of God here meant cannot be his revealed will, as contained in the sacred writings” and “we may be perfectly sure, indeed, that whatever is right is conformable to the will of God.”
- 21.
Mill says of Austin: “If he could have been suspected of encouraging a mere worship of power, by representing the distinction of right and wrong as constituted by the Divine will, instead of merely recognized and sanctioned by it.” See John Stuart Mill, “Austin on Jurisprudence” in (1863) 118 The Edinburgh Review 222–244 at 228.
- 22.
“To say that they are good because they are set by the Deity, is to say that they are good as measured or tried by themselves. But to say this is to talk absurdly.” See Austin, The Province, supra note 10 at 129.
- 23.
William Paley, Principles of Moral and Political Philosophy (London: Faulder, 1799) vol. 1 at 63.
- 24.
Although in contemporary philosophical ethics, utilitarian theories and divine-command theories are usually thought to be very different, one recent philosopher has shown the many structural parallels between them. See Edward Wierenga, “Utilitarianism and the Divine Command Theory” in (Oct. 1984) 21/4 American Philosophical Quarterly 311–318.
- 25.
“He will be directed by both rules: when his instructions are clear and positive, there is an end to deliberation, (…) when his instructions are silent or dubious, he will endeavor to supply or explain them, by what he has been able to collect from other quarters of his master’s general inclination or intentions.” Paley, Principles of Moral and Political Philosophy, supra note 21, vol. 1 at 63–64.
- 26.
Austin, The Province, supra note 10 at 34.
- 27.
Ibid. at 34 and 104.
- 28.
Ibid. at 34.
- 29.
Ibid. at 35.
- 30.
Ibid. at 40.
- 31.
Ibid. at 42–43.
- 32.
Ibid. at 35.
- 33.
Ibid. at 42.
- 34.
Austin includes in natural law “the dictates of natural religion” in Austin, The Province, supra note 10 at 34.
- 35.
Ibid. at 43.
- 36.
Austin says that Revelation tells us next to nothing about the unrevealed divine law: “These [rules known by “the light of nature or reason”] the revealed law supposes or assumes. It passes over them in silence, or with a brief and incidental notice”: Austin, The Province, supra note 10 at 35.
- 37.
Austin, The Province, supra note 10 at 42.
- 38.
Ibid. at 129.
- 39.
Ibid. at 42 and 186.
- 40.
Bentham on revealed divine law: “(…) before it can be applied to the details of private conduct, it is universally allowed, by the most eminent divines of all persuasions, to stand in need of pretty ample interpretations; else to what use are the works of those divines?” Thus, he says, “setting revelation out of the question.” See Bentham, An Introduction to the Principles of Morals and Legislation, supra note 18 at 31.
- 41.
Austin, The Province, supra note 10 at 185–186.
- 42.
Ibid. at 186.
- 43.
Ibid. at 80; cf. at 87.
- 44.
Ibid. at 53.
- 45.
Ibid.
- 46.
Ibid. at 54.
- 47.
Ibid. at 184.
- 48.
Ibid. at 42.
- 49.
Ibid. at 34.
- 50.
Ibid. at 43.
- 51.
Ibid. at 14.
- 52.
Ibid. at 160.
- 53.
Ibid. at 365; see also Austin, Lectures, supra note 2 at 444 and at 447 “The force of the obligation lies in our desire of avoiding the threatened evil” (emphasis his).
- 54.
“Some theorists, Austin among them, seeing perhaps the general irrelevance of the person’s beliefs, fears, and motives to the question whether he had an obligation to do something, have defined this notion not in terms of these subjective facts, but in terms of the chance or likelihood that the person having the obligation will suffer a punishment or ‘evil’ at the hands of others in the event of disobedience.” See Herbert L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961) 83.
- 55.
Austin, Lectures, supra note 2 at 489.
- 56.
“In our law, ignorantia juris non excusat seems to obtain without exception.” See Austin, Lectures, supra note 2 at 483.
- 57.
Austin, The Province, supra note 10 at 35.
- 58.
“In so far as the laws of God are clearly and indisputably revealed, we are bound to guide our conduct by the plain meaning of their terms.” See Austin, The Province, supra note 10 at 42.
- 59.
Austin, The Province, supra note 10 at 186.
- 60.
Ibid. at 185.
- 61.
Ibid. at 42–43.
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Murphy, J.B. (2013). Positive Divine Law in Austin. 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_9
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