Reading guide for 1/23: John Austin, The Province of Jurisprudence Determined, lecture I cont’d, pp. 98-103 (handout) and selections from lecture V (handout)
 

The final section of Lecture I concerns things called “laws” that do not fit Austin’s account or do not seem to. It is cases of the latter sort that are most important for us. In particular, the difference between the positivist theories of Austin and H. L. A. Hart is tied to Hart’s criticisms of Austin’s attempts to accommodate rights (pp. 100f) and customary law (pp. 101-103) into his scheme. I’ll suggest something along the lines of Hart’s criticisms as things to think about as you read Austin’s account.

•  When considering about Austin’s account of rights, think especially about the sort of rights that might be called powers (e.g., the authority of an official to perform a particular sort of action or the power of private citizens to enter into legally enforceable contracts). How well does Austin’s account of right handle this sort of right?

•  Austin’s account of customary law makes use of the idea of a tacit command. Think about conditions that you take to be required for a command to exist, even as a tacit or unexpressed command. Do you think there would be something meeting those conditions in every case of customary law? Also, it is a consequence of Austin’s account that customary law becomes law only when courts recognize it as law. Do think that is right or do courts merely recognize the existence of law that was already in existence (as custom)?

The selections from Austin’s Lecture V are scattered through a long “lecture” that was derived from more than one of his actual lectures.

•  The first of these selections after the introductory paragraph (from pp. 170f) lays out the classification of positive law and related ideas from the beginning of lecture 1 in a little more detail, and the second (from pp. 172f) describes a corresponding classification of jurisprudence and related “sciences.”

•  The third (from pp. 182f) indicates Austin’s chief reason for distinguishing positive law from positive morality. Notice how this distinction depends on the importance Austin assigns to the concept of commands.

•  In the short selection from p. 199, Austin says what he takes to be the error lying behind natural law theory. The second idea he speaks of here, that custom is a source of law, is an old one (you’ve seen Aquinas speak of it), but it had a special importance in Austin’s day. This theory became popular in early 19th century Germany and is sometimes referred to as the “Romantic” theory of law or the “historical” theory of law. Austin had gone to Germany to study in preparation for assuming the professorship at the University of London, and he knew the work of the people, of whom Friedrich Carl von Savigny (1779-1861) was the most important, who held this view. He respected their historical scholarship even if he rejected the idea that positive law is founded on custom.

•  The final selection comes from a note added at the end of the lecture by the editor of the later editions of the lectures. (The editor cites J. S. Mill’s notes from Austin’s lectures as his source, but similar material appears in a note to Lecture VI in the edition that Austin himself published.) The note is a clear statement of Austin’s positivism. Critically evaluate his argument for making the distinction. (Not all legal positivists would argue in quite the same way; in particular, you will later see H. L. A. Hart argue that distinguishing positive law and morality can make people more willing to disobey laws than they would be if they believed that nothing could be a law if it was unjust.)