Abstract
Austin’s theory of law is simple. The law follows the pattern of power: the sovereign gives commands and obeys none; the subject obeys commands; the law consists in only those commands that directly or indirectly emanate from the sovereign. Nevertheless, Austin’s views on sovereignty are not simple at all. When we look at the relevant chapters closely, it becomes evident that Austin has two rival theories of sovereignty, one for a single person and one for a ‘determinate body’. It is only the latter that allows him to say that sovereignty lies, ultimately, with the electors, the strange conclusion of Province of Jurisprudence Determined. But Austin’s second theory of sovereignty is inconsistent with the simple theory of law. Austin’s faces a dilemma here that any empirical theory of law has to deal with. Is law – as most people take it to be – a public order of standards of conduct aiming to guide behaviour? If so, ‘sovereignty’ ought to be public and intelligible. If not, sovereignty can remain a mystery to those living under it, but ascertainable after the event through the empirical methods of experts in legal philosophy. For the latter reading, law and sovereignty may be normatively ‘inert’, as some of Austin’s followers claim today. But Austin does not agree with his modern followers. Austin’s second theory of sovereignty is aimed at satisfying a practical requirement of law and jurisprudence, i.e. that law should be a legitimate institution capable of guiding conduct.
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An earlier draft was presented at the conference “John Austin and his Legacy” at University College London, 16–17 December 2009. Many thanks to all participants for their comments and suggestions and especially to Brian Bix, David Dyzenhaus, Michael Freeman, George Letsas, Patricia Mindus, Stanley Paulson, James Penner, Frederick Schauer, Lars Vinx and Emmanuel Voyiakis.
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Notes
- 1.
John Austin, Province of Jurisprudence Determined ed. by Wilfrid E. Rumble (Cambridge: Cambridge University Press, 1995) at 132.
- 2.
Austin, Province supra note 1 at 133–4.
- 3.
Ibid. at 30.
- 4.
Ibid. at 30.
- 5.
Ibid. at 166.
- 6.
Jeremy Bentham, Of Laws in General ed. by Herbert L. A. Hart (London: Athlone Press, 1970) at 18.
- 7.
Austin, Province, supra note 1 at 133.
- 8.
Ibid. at 134.
- 9.
Jeremy Bentham, “A Fragment on Government” in J. Bentham, A Fragment on Government with An Introduction to the Principles of Morals and Legislation ed. by Wilfred Harrison (Oxford: Blackwell, 1967) at 7.
- 10.
Austin, Province, supra note 1 at 169.
- 11.
Ibid. at 194.
- 12.
He gives a similar answer as to the sovereignty of the United States: “I believe that the sovereignty of each of the states and also of the larger state arising from the federal union, resides in the states’ governments as forming one aggregate body: meaning by a state’s government, not its ordinary legislature, and which, the union apart, is properly sovereign therein” (Austin, Province, supra note 1 at 209).
- 13.
Austin, Province, supra note 1 at 194.
- 14.
Ibid. at 221.
- 15.
Ibid. at 166.
- 16.
Ibid. at 22.
- 17.
Ibid. at 24.
- 18.
Ibid. at 30.
- 19.
Ibid. at 127.
- 20.
Ibid. at 212.
- 21.
The problem of having procedure for making law is highlighted by Joseph Raz as follows: “it is usually the case, even in states where sovereignty is in the hands of a single person, that laws are created only when the sovereign follows a certain accepted procedure of legislation. But according to Austin every expression of the sovereign’s desire which is a command is law, so he does not allow for the fact that sovereign can command in ways which differ from the accepted procedure, in which case his command is not a law” (Joseph Raz, The Concept of a Legal System, 2nd ed., Oxford: Clarendon Press, 1980 at 38).
- 22.
Austin, Province, supra note 1 at 221.
- 23.
Ibid. at 130.
- 24.
For a criticism of Dicey and Austin on this see Pavlos Eleftheriadis, “Parliamentary Sovereignty and the Constitution” (2009) 22 Canadian Journal of Jurisprudence 267–290.
- 25.
I outline this argument in greater detail in Pavlos Eleftheriadis, “Law and Sovereignty” (2010) 29 Law and Philosophy 535–569.
- 26.
Austin, Province, supra note 1 at 25.
- 27.
Ibid. at 27.
- 28.
Ibid. at 29.
- 29.
Ibid. at 21.
- 30.
Ibid. at 190.
- 31.
Ibid. at 199.
- 32.
Ibid. at 133–4.
- 33.
Ibid. at 247.
- 34.
See N. E. Simmonds, Law as a Moral Idea (Oxford: Oxford University Press, 2007).
- 35.
The phrase belongs to John Gardner. See Gardner, “Legal Positivism: 5 1/2 Myths” (2001) 46 American Journal of Jurisprudence 199.
- 36.
Plato, The Republic, trans by G. M Grube, rev. by C. D. C Reeve, in Plato, The Complete Works ed. by John Cooper (Indianapolis: Hackett, 1997) at 971, R 338c.
- 37.
R 338e-339a. The word translated as “justice” is δίκαιον, which is to be contrasted to statute, i.e. νόμος. So the idea of justice in Plato is complex in that it is a blend of moral principle and legislative action. One plausible interpretation is that justice (díkaion) is a moral idea separate both from personal virtue (agathòn) and from the content of a statute (nomos). For this exchange see Bernard Williams, “Plato Against the Immoralist” in Bernard Williams, The Sense of the Past: Essays in the History of Philosophy ed. by Myles Burnyeat (Princeton: Princeton University Press, 2008) at 97–107.
- 38.
R 339c.
- 39.
R 351c.
- 40.
R 351d.
- 41.
R 352a.
- 42.
See Williams, “Plato Against the Immoralist” at 97–98.
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Eleftheriadis, P. (2013). Austin and the Electors. 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_8
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