On Mon. we will discuss the end of lecture I (see Friday’s reading guide), and then turn to a few passages from what was published as lecture V, a long “lecture” that was derived from more than one of his actual lectures.
• In the second selection, the passage (from pp. 170f) following the introductory paragraph, Austin lays out the classification of positive law and related ideas from the beginning of lecture 1 in a little more detail, and the third selection (from pp. 172f) describes a corresponding classification of jurisprudence and related “sciences.”
• The fourth selection (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 a command.
• In the short fifth 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, such as Friedrich Carl von Savigny (1779-1861), who held this view. He respected their historical scholarship even if he rejected the idea that positive law is founded on custom.
• The sixth 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 distinguishing what the law is from what it ought to be. (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 unjust laws than they would be if they believed that nothing could be a law if it was unjust.)