Chapter 3 Jurisprudence- The Emergence of Legal Positivism.
§ Legal positivism presented as if they are able to say what law is, however, NLT do this as well as considering the ethical element.
§ P- its basic method is descriptive. They seek to set down essential elements of the legal systems set down by man. This is to examine the nature of stable rule systems.
§ They seek to generalise the common features of all centralised rule-based systems that are stable, rather than those which are legitimate.
§ (19th Bentham- words have ‘real’ meaning because they refer to real things (as opposed to others, which refer to things, which are not real but metaphysical). Knowledge is found from separating one form the other.
§ They wanted to expel lack of clarity associated with NLT. This required a clear definition
§ Bentham did not believe that NLT provided any objective guide to what was moral or immoral. He attempted to describe the nature of law in general, his disciple Austin also did this
§ Austin-law is positive established in an independent political community, by the express or tacit (unspoken) authority of its sovereign or supreme gvt. This makes up a body of law (on a particular or national scale) although systems can be very different there are notions and principles common to all systems. Such general principles have the same exclusive object. These may look different but this is because they are complicated with individual peculiarities. General jurisprudence is concerned with principles common to systems of law (e.g. notion of duty, right, liberty and to sovereignty and independent political society, written and unwritten laws, the distinction of rights (against the world and rights against things specifically determined), the distinction of obligations into those that arise from contracts or injuries or neither) other principles are not necessary. Other grounds of utility may expand the system of law generally and therefore may be ranked properly with the general principles.
§ Certain terms have to be properly defined for a proper analysis. You first have to look at the resemblance b/w them and then their specific differences: to state why they are under a common expression and then the marks by which they are distinguished. (E.g. written and unwritten law- need to scrutinise nature of latter). Even the term jurisprudence is not free form ambiguity. It can be the knowledge of law as a science or through leg- the science of what ought to be done. Inasmuch as the knowledge of what ought to be supposes knowledge of what is, legislation supposes jurisprudence but jurisprudence does not suppose legislation. Laws can exist without a knowledge of what they ought to be.
§ Bentham and Austin were united in the view that law is imperative and coercive. Both recognized that most statements of law made no reference to sanctions, they felt that this omission obscured a connection that made law different from other expressions of desire or guides to behaviour. Bentham felt that statements of law that made no reference to sanctions were ‘incomplete’
§ Bentham– when considering what is law and what the parts of a law are one must consider the logical, ideal and intellectual whole, not the physical one: the law and not the statute. Whatever is given, as law by the sovereign is law. The law is exhibited by a statute not the statute which exhibits them.
§ Every law when complete is either:
o Coercive- a command
o Uncoercive nature- (discoercive) a revocation, in whole or part, of a coercive law.
§ A declaratory law is not properly a law. It is not the expression of an act but the mere notification of the existence of a law, either of the coercive or discoercive kind.
§ Every coercive law creates an offence, only by doing this can it impose an obligation and produce coercion.
§ A law creating an offence and a law commanding punishment are 2 separate laws (latter is punitory but also imperative)
§ Discoercive law- no punitory law. If it wants it, it has to be attached as coercive but a punitory law is capable of answering its purpose without the imperative
§ Expository matter is also imp as commands may make little sense without it.
§ Problems may occur in the great variety of ways the imperative may be conveyed. In some of them the imperative quality is clouded and concealed from apprehension.
§ Civil code and penal code are not complete in its kind. A civil code would not consist of a collection of civil laws, each complete in itself, as well as clear of all penal ones or vice versa. The civil code would consist mainly of expository matter whereas the penal code would have punitory laws involving the imperative matter of the civil laws along with expository matter.
§ Besides the penal and civil, every complete body of law must contain a third branch, the constitutional– it confers on particular persons, powers, to be exercised for the good of the whole society, or of considerable parts of it and prescribes duties to the persons invested with those powers. The powers are principally given by discoercive laws, operating as exceptions to certain laws of the coercive or imperative kind. The duties are created by imperative laws, addressed to the persons on whom the powers are conferred.
§ Austin took many of Bentham’s observations and attempted to include them with a comprehensive definition of law. But this meant that Austin was forced to accept the logical consequences of his own definitions. Although Bentham felt criminal and civil law are interconnected Austin appears to define the latter as not law ‘properly so called’
§ Both Austin and Bentham define law as a species of coercion. Law is a type of command, and a command is an intimation of will backed by sanctions that makes particular expressions of will into obligations, or duties.
§ For Austin, commands are laws if they are general and if they issue from the Sovereign (a definite person). This is through the behaviour of the maj of pop- the sov was the body to whom the pop owed a habit of obedience, provided that body was not in the habit of obedience to another body. (How are sov’s powers ltd then? NLT q)
§ Austin-matter of jurisprudence is positive law: law, simply and strictly so called: or law set by political superiors to political inferiors. It is often confused with things that resemble law.
§ A law is a rule laid down for the guidance of an intelligent being by an intelligent being having power over him. Law embraces the following objects: – Laws set by God to his human creatures (divine law), and laws set by men to men. Some of the latter are established by political superiors, sovereign and subject.
§ There are also objects frequently improperly termed laws, being rules set and enforced by mere opinion. Some of these are by close analogy termed laws and these are known as positive morality. The name morality severs them from +ve law while positive disjoins them from the law of God.
§ There are often misapplications of the name, since there is no will e.g. ‘laws regulating growth’
§ Every law or rule is a command. The expression or intimation of your wish is a command. A command is distinguished from other significations of desire by the power and the party commanding to inflict an evil or pain in case that desire is disregarded. What makes it a command is not just a signification of desire but the fact that if you do not comply with the desire you are liable to evil from the other for not doing so. You are therefore obliged by the command or under a duty. The evil imposed is called a sanction or an enforcement of obedience.
§ Paley– the party bound by a command is bound by the prospect of evil
§ Rewards are motives to comply with the wishes of others but if a law holds out a reward as an inducement to do some act, an eventual right is conferred, and not an obligation imposed upon those who should act accordingly.
§ It is the power and the purpose of inflicting eventual evil, and not the power and purpose of imparting eventual good, which gives to the expression of a wish the name of a command.
o A wish conceived by a rational being that another rational being shall do or forbear
o An evil to proceed from the former, and to be incurred by the latter, in case the latter comply not with the wish
o An expression of the wish by words or other signs
§ Command, duty and sanction are inseparable connected terms. Each signifies the same notion; but each denotes a different part of that notion, and connotes the residue. Commands are of 2 species: some are laws or rules and others are ‘occasional or particular commands’. By every command, the party to whom it is directed is obliged to do or forbear. Where it obliges generally to acts or forbearance of a class, a command is a law or rule. But where it obliges to a specific act or forbearance, or to acts or forbearance which it determines specifically or individually, a command is occasional or particular.
§ Laws properly so-called are commands but every command flows from a determinate source.
§ Every sanction properly so-called is an eventual evil annexed to a command. Any eventual evil may operate as a motive to conduct. If the evil is not in response to the disobedience to the command then it is not a sanction.
§ Every duty properly so called supposes a command by which it is created
§ Laws of Gods are laws proper since they are commands express or tacit, and therefore come from a certain source
§ Positive laws established by:
o Monarchs or sovereign bodies
o Men in a state of subjection, as subordinate political superiors
o Subjects in pursuance of legal rights
§ But each is a direct command of a monarch or sov
§ Positive moral rules can be laws properly so-called or laws improperly called. Those which are laws so properly distinguished form others on 2 marks they are imperative laws set by men to men and they are not set by men as political superiors, nor set by men as private persons in pursuance of legal rights. The latter bears the mark of not being a command of sovereigns. They are therefore not +ve laws, not clothed with legal sanctions nor do they legally oblige the person to whom they are set but they are laws proper: armed with sanctions and impose duties.
§ +ve moral rules which are laws properly so called may be reduced to 3 types:
o Some are est. by men living in a –ve state which is styled a state of nature or anarchy (men who are not in a state which is styled a state of gvt)
o Others established by sovereign individuals, but not sov’s in the character of political superiors.
o Those set by subjects as private persons, and are not set by the subject authors in pursuance of legal rights
§ An imperative law set by one sov. to another is not set by its author in the character of political superior. It is a rule of +ve morality.
§ If rules are imperatives set by private persons and not in pursuance of legal rights (e.g parent to child) they are not +ve laws but rules of +ve morality.
§ +ve moral rules which are laws improper are laws set or imposed by general opinion
§ A command is a rule of +ve morality set by a determinate author when one nation commands another. It is not a true command as no gvt is supreme.
§ General opinion is not law proper because it is set by an uncertain body. The sanction in the laws proper is constant and uniform. Laws improper carry uncertainty.
§ Every +ve law is set by a sovereign person to a member or members of an independent political society wherein that person or body is supreme. Or it is set by a monarch, or sovereign no., to a person/s in a state of subjection to its author
§ Superiority styled as sovereignty, and the independent political society which sovereignty implies is distinguished form other superiority and other societies by:
§ The bulk of the given society are in a habit of obedience or submission to a determinate or common superior
§ That certain individual is not in a habit of obedience to a determinate human superior
§ Thus if a determinate human superior is not in the habit of obedience to a like superior, receive habitual obedience from the bulk of a given society, that determinate superior is sovereign in that society, and that society is a society political and superior.
§ Other members of the society are subject to that superior and dependent.
§ The party truly independent is not the society, but the sovereign portion of the society.
§ For a society to be political and independent the generality of the given society must be in the habit of obedience to a determinate and common superior: whilst that determinate person must not be habitually obedient to a determinate person/body.
§ If the generality of members obey a determinate superior but the obedience is rare and not habitual the relation of sovereignty and subjection is not created. A given society, therefore, are be in a habit of obedience to a determinate and common superior.
§ A natural society (in a state of nature) is composed by persons who are connected by mutual intercourse, but are not members sovereign or subject of any society political. None of the persons who compose it live in the +ve state.
§ Law obtaining b/w nations is not +ve law, set by general opinion the duties which it imposes are enforced by moral sanctions: by fear on the part of the nations.
§ The sovereign is incapable of legal limitation. A sov bound by a legal duty, subject to a higher sov is not sov supreme power limited by +ve law is a flat contradiction in terms.
§ Laws, which sovereigns affect to impose on themselves, are merely principles or maxims which they adopt as guides, or which they commend as guides for their successors. A sov that departs from law of this kind is not illegal. It doesn’t matter if the law it sets is diff from the one set
§ Unconstitutional- in most independent political societies there are principles which sov habitually obeys, often such maxims are adopted by sov, but they are imposed by opinion. The sov or state is only bound to obey them by moral sanctions- if it deviates cant get a legal pain or penalty but may meet resistance from the generality. If a law or other acts of the monarch or sov conflicts with a maxim of this kind, the law or other act may be called unconstitutional. This means that an act is inconsistent with some given principle. The given supreme gvt has habitually observed the principle, and since the bulk of society regard it with approval.
§ By the expression constitutional law, Austin is referring to +ve morality, or the compound of +ve morality and +ve law, which fixes the constitution or structure of the given supreme gvt.
§ Against a sov constitutional law is merely +ve morality enforced only by moral sanctions only. Sov can expressly adopt it. Although an act of the sov which violates constitutional law, may be called unconstitutional, it is not an infringement of the law simply and strictly so called, and cannot be termed illegal.
§ All this is b’cos – sov is incapable of legal limitation. By sov Austin means a monarch properly so called, or a sov no. in its collegiate and sov capacity. Considered collectively a sov no is sov and independent. Separately they don’t have any power; they are subject to the supreme body. Consequently, though the body is inevitably independent of legal or political duty, any of the individuals that compose the body may be legally bound by the laws of which the body is the author, and which regard the constitution of a given supreme gvt- in case it is clothed with a legal sanction, or the means of enforcing it judicially be provided by its author, a law set to any of its own members is properly +ve law. Then it can be both unconstitutional and illegal. E.g a king, as a limb of parliament, may be punishable by Act of P
§ This is a difference b/w monarchies or gvts of one and aristocracies or gvts of a no.
§ Where the supreme gvt is a monarchy or gvt of one, constitutional law is inevitably nothing more that +ve morality. This is also the case against the members of sov body in its corporate.
§ Together they’re protected alone they are subject tot law.
§ The members, like the sov body, are obliged or restrained morally- controlled by opinion current in a given community.
§ It is artificial to issue a command which it is not empowered to issue by its constitutional share in the sov, its unconstitutional command would not be legally binding, and so disobeying it wouldn’t be illegal. It wouldn’t be responsible for exceeding its powers but whatever they had tried to impose wouldn’t be legally binding.
§ A person, considered, as part of the body of the sov is free from legal obligation. But he is bound in his other characters. A limited monarch is absolved completely from legal or political duty but this doesn’t mean that it can be inferred that he is supreme or sov as he is still is a state of subjection to the sov or supreme Parliament of which he is a constituent member:
o – Although he is free from the restrain of +ve law, he is not incapable of legal obligation.
o – If he attempted to disobey the limits which the constitution has set to his authority, disobedience on the part of the governed to his unconstitutional commands would not be illegal. Commands issued by sovereigns cannot be disobeyed by their subjects without an infringement of +ve law.
o – He habitually obeys the laws set by the sov body of which he is a constituent member. If he habitually broke the laws set by sov body, the other members of the body would probably devise a remedy: though a prospective and definite remedy, fitted to meet the eventuality, has not been provided by +ve law or even by constitutional morality. Consequently he is bound by a cogent (convincing/strong) sanction to respect the laws of the body, although that sanction is not predetermined and certain.
§ A law which is set by the opinion by the upper and lower houses (besides a law which is set by the opinion of the community at large) constrains him to observe habitually the proper and +ve laws which are set by the entire Parliament- but habitually obeying the laws of a determinate and sov body, he isn’t properly sov, for such habitual obedience doesn’t fit with the independence which is one of the essentials of sovereignty.
§ Habitually obeying the laws of a certain and supreme body, he is really in a state of subjection to that body, though the other members of the body, together with the rest of the community, are commonly styled (seen as) his subjects.
§ But if the sov is incapable of legal limitation, or if every supreme gvt is legally absolute. Where is political liberty? How do you differentiate b/w gvts, which are deemed free, and those which are seen as despotic (tyrannical)?
§ Austin answers by saying political or civil liberty is the liberty from legal obligation, which is left to be granted by a sov gvt to any of its own subjects: and since the power pf the gvt is incapable of legal limitation, the gvt is legally free to abridge their political liberty, at its own discretion. It may be hindered by +ve morality form abridging the political liberty which it grants: and it is bound by the law of God, known through principle of utility, not to load them with legal duties which general utility condemns. Political or civil liberty supposes a political society and it is the liberty from legal obligation which is left by a state to its subjects, rather than from legal obligation which is inherent in sovereign power.
§ Political or civil liberty has been made up into an idol but it is not more worthy of tribute than legal restraint. Political or civil liberty, like political or legal restraint, may be generally useful; and it is not as being liberty, but as conducting to the general good that it is praised.
§ It is the ignorant that think political or civil liberty is the reason that gvt ought to exist but the purpose is the furtherance of the common weal to the greatest possible extent.
§ It must attain the purpose for which it ought to exist, by 2 sets of means:
o By conferring such rights to its subjects as general utility commends, and by imposing such relative duties as are necessary to the enjoyment of the former
o By imposing such absolute duties as tend to promote the good of the political community at large, although they promote not specially the interests of determinate parties.
§ He who is clothed with a legal right, is also clothed with a political liberty- he ahs the liberty form legal obligation, which is necessary to the enjoyment of the right. Consequently, in so far as it attains its purpose by conferring rights upon its subjects, gvts attain that purpose through the medium of political liberty.
§ But since it imposes a duty wherever it confers a right it is less through the medium of political liberty, than through that of legal restraint, that gvt must attain the purpose for which it ought to exist.
§ To say political liberty ought to be the principal end, or to say its principal end ought to be legal restraint is absurd for both are merely a means to the furtherance of the common weal, which is the only ultimate object of good.
§ Political or civil liberties rarely exist apart from corresponding legal restraints. Where persons in a state of subjection are free from legal duties, their liberties would be nearly useless to themselves, unless they were protected in the enjoyment of their liberties, by legal duties on their fellows. For you to have a right (e.g. to move from place to place) another has to be legally restraint (cant imprison or assault you).
§ Every supreme gvt is free from legal restraint or put another way every supreme gvt is despotic (tyrannical). The distinction, therefore, of gvts into free and despotic, can hardly mean that some of them are freer from restraint than others: or that subjects of the gvt which are classed as free, are protected against their gvts by +ve law.
§ Nor can it mean that the gvts that are seen as free, leave or grant their subjects more of political liberty than those which are seen as despotic. The term free makes you think of praise whilst despotic= blame, those who distinguish gvts into free and despotic, suppose that the 1st are better than the 2nd. You cant say one gvt is better than the other b’cos the former leaves more liberties to its subjects than the latter. The type former leaves may just be mischievous.
§ Those that distinguish gvts into free and despotic mean the rights which a gvt confers, and the duties which it lays on its subjects, ought to be conferred and imposed for the advancement of the most. But in every political society the gvt deviates from the ethical principle or the maxim of the general good and looks for the benefit for a portion of the community.
§ The gvts that deviate less are better than those that deviate more. Those that deviate less are popular gvts (consists of a large proportion of the whole of society). In these gvts the interests of the sov no, and the interests of the entire community, are nearly identical or nearly coincide. But where the supreme powers reside in a comparative few interests are less likely to coincide. Therefore the popular gvt doesn’t grant more political liberty, it leaves more of a political liberty which conduces to the common weal. So just b’cos it grants more useful liberty it is seen as free.
§ A despotic gvt is seen as a bad gvt and is either a monarchy properly so called, or any such narrow aristocracy. The free gvt is seen as good and is democratic.
§ They who distinguish gvts into free and despotic are therefore lovers of democracy. By the term free they mean that gvts of many are comparatively good.
§ To say that the sov is incapable of legal limitation has been doubted but this is b’cos of verbal ambiguity. The primary individual member of a so-called limited monarchy, is styled improperly monarch or sovereign. So the power of the monarch or sov, thus improperly styled is capable of legal limitations and is sometimes ltd by +ve law. Prob is that monarchs and sovereigns improperly styled were confused with monarchs, and sov’s, in the proper acceptation. Some the power of the former is capable of legal limitation, it was thought that the power of the latter was also bounded by similar restraints.
§ Hobbes-if a sov is subject to civil laws then he is subject to the laws he made himself (he is subject to the laws of nature, b’cos such laws are Divine). Is it true that all sov’s are subject to the laws of nature b’cos such laws cannot be abrogated? If someone above the sov set the civil laws, the judge and the powers to punish then again you need a 3rd to punish the 2nd and this cycle would continue and lead to confusion and dissolution of the commonwealth.
§ A sov power of one, or a sov gvt of a no has no legal rights against its own subjects. Every legal right is a creature of +ve law: it answers to a relative duty imposed by that +ve law, and exist on persons other than the person(s) in whom the right resides.
§ To every legal right there are therefore 3 parties:
o The sov gvt of 1 or a no which sets the +ve law and which through the +ve law confers the legal right and imposes the relative duty
o The person(s) on whom the right is conferred
o The persons on whom the duty is imposed, or whom the +ve law is directed or set
§ The person invested with the right, are not necessarily members of the independent political society where the author of the law is sov. The person invested with the right may be a member, subject or sovereign, of another society. But the person on whom the duty is imposed are members of the society where the author is sov. A gvt can hardly impose legal duties or obligations upon members of foreign societies: although it can invest them with rights, by imposing relative duties upon members of its own community. (If u stop your lot from doing something it may enable other society to do things).
§ A party with a legal right is not necessarily burdened with a legal trust. Consequently. A party may bear and exercise a legal right, though the party cannot be touched by the might or power of its author. But unless the party burdened with a relative duty could be touched by the might of its author, the right and the relative duty, with the law which confers and imposes them, were merely nominal or illusionary. A person hating the sanction enforcing a +ve law, is subject to the author.
§ Follows that a sov has no legal rights against its own subjects.
§ To every legal right 3 several parties:
o Party bearing the right
o Party burdened with the relative duty
o Sov gvt setting the law through which the right and the duty are conferred and respected.
§ A sov gvt can’t acquire rights through laws set by itself to its own subjects. A man is no more able to confer a right on himself, than he is able to impose on himself a law or duty.
§ Every party bearing a right (legal, moral, divine) has got the right through a law and a duty (proper and improper) laid by that other party.
§ So if a sov gvt has legal rights against its own subjects, those rights were the creatures of +ve laws set to its own subjects by a 3rd party. That 3rd party has to be sov in that community whose own sov gvt has the legal rights. That is to say, the community are subject to their own sov. And also subject to a sov conferring rights on its own. Which is impossible and absurd.
§ They are bound by the law of God to obey their temporal sov- sov gvt has rights divine against it sown subjects. It also has moral rights (rights arising from +ve morality) against its own subjects, which are conferred upon itself by the opinion of the community at large.
§ The concept of the sov is the most crucial element. If law is a type of command, the id and character of the commander and what enables them to issue legal commands must be established.
§ What makes rules laws (+ve laws) is the fact that they are direct or indirect commands of the sov of an independent political society. These commands are addressed to members of this community who are subject to the sov. Austin writes of the sov as a person or a body of persons. He always means by the sov the office or institution which embodies supreme authority; never the individuals who happen to hold the office or embody the institution through their relationship at a given time. Austin’s sov is an abstraction. It is the location of the ultimate power which allows the creation of law. This is imp as he has often been criticized as describing the sov in ‘personal terms’
§ This is clear in the trad political theory he relies on. Hobbes-describes sov as the ‘artificial soul’ of ‘an artificial man’, latter being the state. Sov is an office not a person.
§ What is the sov of an independent political society?
§ Hobbes has defined such a society as one which could defend itself, unaided, against attacks from without. Austin notes that realistically few societies would qualify on this basis. Accordingly, it is the existence of a soc, which defines independence, assuming the society is of a minimum size.
§ Sov exists when 2 conditions are met:
o Bulk of society are in habit of obedience or submission to a determinate and common superior
o That individual or body is not itself in a habit of obedience to a determinate human superior.
§ Idea of habit of obedience introduces a factual criterion of the existence of sov and in this Austin follows Bentham, not Hobbes.
§ Hobbes found existence of sov in an assumed ‘social contract’. The ‘war of all against all’ which would exist without gvt would be replaced by the domination of the sov to whom all are subject. But this presupposes that individuals have natural rights, which, by the social contract, they agree to forego so as to institute a sov power over them. Both Bentham and Austin saw Natural rights as irrational dogma. So Bentham and Austin discard the social contract basis of sov and replace it with the idea of a factual basis of sov in actual habitual obedience. Hobbes social contract gave the sov the right to rule, both Bentham and Austin deny that it makes any sense to talk of a right in this context. Existence of sov is merely a political fact, not a matter of right and wrong.
§ One of the weak sides of Austin’s theory is this transference of a legal conception to a sociological problem. Nevertheless, it is easy to see here the utilitarian attempt to be realistic, to avoid dogma and abstract talk about arbitrarily assuming natural rights.
§ Austin cannot resist speculating on why people might habitually obey.
§ Where there is no such obedience there is either anarchy (no recognized sov at all) or revolution (pop divided over who to obey)
§ Some characteristics of Austin’s Sovereign
§ Point of controversy- sov is illimitable by law. This follows directly from Austin’s def of law. Every law is direct/indirect command of sov. But a sov can’t issue enforceable commands to itself- or even if he can he can abrogate them at any time. No laws other than the sov’s own commands can exist to bind it.
§ ‘Supreme power is ltd by +ve law, is a flat contradiction in terms…every supreme gvt is legally despotic.’
§ Many critics have considered that A’s view of sov conjures up the image of a despotic monarch.
§ Austin doesn’t suggest the sov is free of limitations but only legal limitations. Thus +ve morality may provide imp constraints.
§ Most of A’s discussion of sov relate primarily to the conditions of representative democracies (like UK or US).
§ A’s conception of delegation by the sov, which is used by him to express the possibility of very extensive dispersion of legislative, adjudicative and administrative authority within the overall hierarchical framework of a centralised state.
§ Considered that A’s conception of an indivisible and legally illimitable sov runs into difficulties. Problems seem to begin as soon as one seeks to identify the sov in particular societies. In orthodox British constitutional law the sov is said to be the Queen in Parliament: that is, the sov is made up of the monarch and the 2 houses of 2 Parliamt. Constitutional law supports the claim that such a sov is legally illimitable. Parliament can’t bind itself or its successors by leg. Since the HC is the rep of the electorate Austin locates sov in the monarch, the HL and the electorate of the Commons.
§ Many critics see this as problematic. Austin has been seen as confusing legal and political sov…Popular sov may well reside in the electorate, but for legal purposes surely Parlmt is sov. Cotterrell says there is no confusion. Austin doesn’t write of legal sov or treat sov as supreme legal competence. As CAW Manning points out, A’s sov is not a legal but a pre-legal notion. It is ‘the logical correlate of an assumed factual obedience.’- it is the locus of legitimate ultimate political authority. It is ‘not a specified organ or complex of organs, but… that individual or collectivity at whose pleasure the constitution is changed or subsists intact.’ But how can the electorate as subjects be in a state of habitual obedience to themselves as sov? The members of a society as individuals can be in a state of habitual obedience.
§ What about written constitutions and where the distribution is gvt is complex (like federal systems)?
§ Austin looks at sov in US. Sov must be a person or body of persons, but the ultimate auth in US polity appears to be a document- the Constitution. In Austinian analysis sov lies with that body of people that has ultimate auth to alter the Constitution. Constitution itself in art 5 that amendments to it must be valid, be ratified by the legislatures of ¾ of the states.
§ Critics note that the Austinian analysis in such a context is ‘a monarch who slumbers and sleeps’, since amendments are rare. But this situation only matters only if we are seeking (as Austin in not) a legal sov- that is an active, ultimately authoritative lawmaker. By contrast Austin is identifying only the location of the ultimate authority underlying the constitutional order, the institution which is recognised as having authority to confirm or amend that order. If there were no such institution (no constitutional amendments) then sov would lie in those governmental and legislative institutions which the constitution recognises as ultimately authoritative, since nothing is capable of changing their auth. It lies in them not b’cos of their designation by the constitution, but because the authorities so designated are themselves habitually accepted.
§ Must the sov be legally illimitable?
§ Bentham did accept that legal limits on power were practically possible. He sees the possibility of conditional habitual obedience- obedience habitually given to sov acts within certain limits. For Austin the sov is legally unlimited, maybe constraints of +ve morality.
§ Sov lies in an institution but how is the institution defined or identified?
§ 2 kinds of rules may do this: rules of +law and rules of +ve morality. Only the latter can actually bind the sov so as to fix its institutional character. +ve law can however bind each part of such a sov body as ‘the Queen in Parliament’ since each part is not itself sov.
§ The considerations, which fix the nature of sov, in general must be founded in +ve morality, not law. Sov is a pre-legal concept. In an Austinian view no law can confer or validate sovereignty. This is why constitutional ‘law’ is +ve morality.
§ The acceptance of the sov as an institution seems to remove much of the difficulty which ahs thought to exist for Austinian attempts to explain the persistence and continuity of laws. Laws can remain in force as long as the institutional sov remains. Equally, the prob of succession to authority and the continuity of laws, which accompanies it, may be explained in Austinian terms by the existence of rules of +ve morality. Where sov appears to reside in one person it would seem that the rules governing succession to the throne can only be rules of +ve morality.
§ The judge as delegate of the sovereign.
§ The sov delegates legislative and admin functions to many institutions (inc judiciary). Law-making power also delegated to private citizens who exercise it, for e.g. in the creation of contracts, but which the sov’s institutions will enforce. Each dispersion of sov power in this way is delegation not a release of it. Even when judges create new legal obligations it is the tacit command of the sov.
§ Many critics claim that this notion of tacit commands (also in Hobbes’ theory) is unrealistic as regards law making through judicial decisions. Are judges not independent in UK or US? How can they be considered mere delegates of some other authority? Difficulty arises from treating Austin’s sov as a legal sov- an ultimate legislating institution. Thus the doctrine of parliamentary sovereignty in Britain, which recognises Parlmt as the highest law creating authority, doesn’t entail that judges are delegates of Parlmt. Austin’s theory doesn’t however suggest that they are. It claims merely that they must act as reps of the constitutional order of which they are part. This constitutional order is the consequence of the pre-legal sov authority.
§ Follows that delegation of sovereign’s power must be by sov’s commands, whether express or tacit.
§ Austin’s view of delegation recognises that judges legislate just as legislatures do. Judges make law insofar as their decisions embody what can be considered to be the sov’s tacit commands.
§ A’s views on judicial law making often misinterpreted and are diff from Bentham’s. Bentham sought a rational, codified system which would make not only judicial law making but also judicial interpretation of law unnecessary and inappropriate. Role of the judge would be to decide cases not by looking at precedent but by following the demands of utility in particular cases, and seeking to reconcile differences b/w the parties where possible. Judicial law making would then be separated from the rational code structure of the law itself.
§ Austin argues against the idea that judicial law making is arbitrary and undemocratic. It is subordinate leg and +ve laws and public opinion provide the necessary safeguards.
§ Austin’s theory of the centralised state
§ In his earlier political writings he made clear his belief in the virtues of political centralisation. He viewed gvt as a matter of rational management to be guided by principles of utility.
§ This suggests that A’s view of law (as commands supported by sanctions) as much like the view of mere orders backed by threats (such as those of a gunman pointing his gun at the person addressed) is misleading (as Hart does in Chap 2). The relation b/w sov and subject is far more than one found on coercion. The habit of obedience, according to A, is rooted in custom, prejudices, and ‘reason bottomed in the principle of utility’- that is, a recognition of the expediency of gvt.
§ Equally, when we consider the significance of the sanctions attaching to law in actually securing obedience to law, Austin notes that the fear of (state) sanctions which can be based on reason is unlikely to be more powerful as a deterrence against deviance than ‘the fear of public [disapproval], with its countless train of evils.’ In forming moral character the latter far more significant than former.
§ A’s view of the centralised state, making use of coercion through law in the matter of gvt, is also an image of a state which can be based on reason; guided by governmental activity by utility, securing allegiance of subjects through their rational understanding, not fear. Austin recognises that most subjects are kept unenlightened by their rulers so gvts rely on irrational, habitual agreement. Universal education, for Austin, is needed for a sound and enlightened polity.
§ Delegation shouldn’t be able to defeat the central co-ordination of gvt by which rational utilitarian policies can be consistently brought into effect.
§ A is aware of the sociological questions his theory (sov, command, sanctions and habitual obedience) entails. Critics have ignored this.
§ Hart’s criticism can create the misleading impression that early +veism has no contemporary significance. This is far from the truth