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Austin and the Electors

Published online by Cambridge University Press:  20 July 2015

Pavlos Eleftheriadis
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Extract

Austin’s theory of 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 theory of sovereignty is 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 his book. But Austin’s second theory of sovereignty is not consistent with his own theory of law. Austin’s faces a dilemma. 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 (accessible only after the event by the expert legal philosopher). For the latter reading, law and sovereignty are ‘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. to be in the position of publicly guiding conduct.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 24 , Issue 2 , July 2011 , pp. 441 - 453
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2011 

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References

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, Wayne Morrison, Stanley Paulson, James Penner, Frederick Schauer, Lars Vinx and Emmanuel Voyiakis.

1. Austin, John, The Province of Jurisprudence Determined, ed by Rumble, Wilfred E (Cambridge: Cambridge University Press, 1995) at 132.CrossRefGoogle Scholar

2. Ibid at 133-34.

3. Ibid at 30.

4. Ibid.

5. Ibid at 166.

6. Bentham, Jeremy, Of Laws in General, ed by Hart, HLA (London: Athlone Press, 1970) at 18.Google Scholar

7. Austin, supra note 1 at 133.

8. Ibid at 134.

9. Bentham, Jeremy, ‘A Fragment on Government’ in Bentham, , A Fragment on Government with and an Introduction to the Principles of Morals and Legislation, ed by Wilfred Harrison (Oxford: Blackwell, 1967) at 7.Google Scholar

10. Austin, 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’ (209).

13. Austin, 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.’ Raz, Joseph, The Concept of a Legal System (Oxford: Oxford University Press, 1970) at 38.Google Scholar

22. Austin, supra note 1 at 220-21.

23. Ibid at 130.

24. For a criticism of Dicey and Austin on this, see Eleftheriadis, Pavlos, ‘Parliamentary Sovereignty and the Constitution’ (2009) 22 Can J L & Jur 267 Google Scholar.

25. I outline this argument in greater detail in Eleftheriadis, Pavlos, ‘Law and Sovereignty’ (2010) 29 Law & Phil 535 CrossRefGoogle Scholar.

26. Austin, supra note 1 at 25.

27. Ibid at 27.

28. Ibid at 29.

29. Ibid at 21.

30. Ibid at 191.

31. Ibid at 199.

32. Ibid at 133-34.

33. Ibid at 247.

34. See Simmonds, NE, Law as a Moral Idea (Oxford: Oxford University Press, 2007).Google Scholar

35. The phrase belongs to Gardner. See Gardner, John, ‘Legal Positivism: 5½ Myths’ (2001) 46 Am J Juris 199 CrossRefGoogle Scholar.

36. Plato, , The Republic, translated by Grube, GM, revised by Reeve, CDC, in Plato, , The Complete Works, ed by Cooper, John (Indianapolis, IN: Hackett, 1997) 971 at R 338cGoogle Scholar.

37. Ibid at R 338e-339a. The word translated as ‘justice’ is ‘δίποαον’, which is to be contrasted to statute, i.e., ‘νομοζ’. 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 (‘dikaion’) is a moral idea separate both from personal virtue (‘agathon’) and from the content of a statute (‘nomos’). For this exchange see Williams, Bernard, ‘Plato Against the Immoralist’ in Burnyeat, Myles, ed, The Sense of the Past: Essays in the History of Philosophy (Princeton, NJ: Princeton University Press, 2008) at 97–107 Google Scholar.

38. Ibid at R 339c.

39. Ibid at R 351c.

40. Ibid at R 351d.

41. Ibid at R 352a.

42. See Williams, supra note 37 at 97-98.