John Austin (1790-1859)
The Province of Jurisprudence Determined
(1832)
Lecture I
Jurisprudence = The Study of positive law set by political
superiors to political inferiors
Law = In general, a rule for guidance of an intelligent being
by an intelligent being having power over him.
Laws are of two sorts:
Laws of God (Natural Law or the Law of God)
Laws of Man
Laws by a political superior in a government independent of
others (Known as positive law), and
Positive morality which is rules set and enforced by mere opinion
of an indeterminent body of people with respect to conduct.
True LAW then = a command (law is a subset of all commands) coupled with
an evil to be done if the command be disregarded.
Lecture I (cont.)
The evil to be done then binds or obliges conformance to the desire
expressed by the command, and imposes a duty to obey. (Why wouldnt
resistance be as appropriate a response as obedience?)
Law, then requires a command and a sanction. Rewards create rights, but
are not law in the strict sense.
Commands are
A wish or desire conceived by a rationale being that another do or
forebear from doing particular act(s).
A sanction or evil from the superior to the inferior for non- compliance.
Expression of the wish from the superior to the inferior.
Lecture I (cont.)
Commands are either
Laws or Rules: General command applying to a class of persons or
actions
Occasional or Particular Commands:
Command applying to a particular person or action
Compare with privilege graned and duties not to interfere with
that privilege
Whoever can enforce obedience by applying evil consequences to lack of
obedience to his commands is a superior - i.e. the Government
Might therefore = right?
Superiority is implied in Command
Laws contained within Jurisprudence without a Command
Legislative explanations of a prior positive law
Laws repealing prior laws
Imperfect laws which do not contain a sanction.
Lecture I (cont.)
Laws which do not seem to be commands but really are:
Customary Laws. These are law because they are either adopted by
statute or imposed by Judges, and therefore carry a sanction from the
state for non-compliance.
Privileges which create rights in some, are, in truth, actually commands
to others to abstain
Lecture II
Gods Laws Are:
Revealed
Word of God
Prophets, etc.
Problem is how to test the veracity of the prophets & the
book(s)?
Unrevealed - not expressed in human language
How do we know Gods unrevealed Law
Of all mankind adopts an action as good it is Gods law. (The problem
here is that if so, no one would violate it. Therefore, if a suspected law
is violated, then it is not law.)
If the action tends to utility the goodness of God & the benfit of man
it is Gods law. (Encourages a very ethnocentric view)
How to test the utility of an act? Test the probable effect on general
happiness of the effects of many such acts.
If to the good, it is Gods law, and we should punish its violation. Why?
Lecture III
If Divine Law must be gathered from utility, how can we know them fully and
correctly? Generally we cannot.
Absurdity God has given us laws to obey which no one can know fully and
completely.
These are then positive morality Gods Laws are really rules of (assumed)
authority, testimony, or trust.
Too many who postulate Divine law in this way have been advocates of a
particular position rather than disinterested inquirers or observers.
Good Rules for any writing or speaking effort
Define your leading terms
Adhere to your announced meanings for those terms
Carefully examine and distinctly state their premises
Deduce the consequences of their premises with logical rigour.
Seek always for precision, clearness, and conciseness.
