Austin, Lectures on Jurisprudence, 5th ed., vol. 1, lecture 18

In a former Lecture I entered upon the analysis and explanation of the term ‘Rights:’ Meaning by ‘rights,’ legal rights, or rights which owe their being to the express or tacit commands of Monarchs or Sovereign bodies.

Now all that can be affirmed of rights considered in abstract—or all that can be affirmed of rights apart from their kinds and sorts—amounts to a brief and barren generality, and may be thrust into a single proposition, or into a few short propositions.

But before I could shew the little which can be affirmed of rights in abstract—or before I could shew how little can be affirmed of rights in abstract—it was necessary that I should advert to persons, as bearing rights and duties; to things and 408persons, as subjects of rights and duties; to acts and forbearances, as objects of rights and duties; and to a certain capital distinction which obtains between rights themselves.

Accordingly, In the last four Lectures I called your attention to the following leading topics; and to numerous subordinate topics, with which they are inseparably connected, or which they naturally suggest:

3rdly, Persons, as placed in a position analogous to the position of things: That is to say, not as invested with rights, or as lying under duties, but as the subjects or matter of rights residing in other persons, and availing against strangers or third persons.

4thly, Acts and forbearances, as objects of rights and of duties corresponding to rights.

5thly, and lastly, The distinction between the rights which avail against persons generally, and the rights which avail against persons certain or determinate:—A distinction which the Classical Jurists denoted by the opposed expressions, ‘Dominium et Obligatio;’ but which numerous modern Civilians (and writers upon general jurisprudence) have marked with the more adequate and less ambiguous expressions, ‘Jus in rem et Jus in personam.’

In reviewing these various topics (and, especially, the principal kinds into which rights are divisible), I endeavoured to prepare the way for such a definition of ‘Right’ as might rest upon a sufficient induction: as might apply indifferently to every right; or might apply to any right, without regard to its class. Accordingly, I proceeded to examine the import of the term ‘Right,’ considered as an expression for all rights, or for rights abstracted from the generic and specific differences by which their kinds and sorts are separated or distinguished. And, in attempting to settle the import of the term ‘Right,’ I considered implicitly the general nature of the duties which I style ‘relative:’ that is to say, which correlate with rights, or answer to corresponding rights.

But, besides the Duties which I style ‘relative,’ there are numerous duties which have no corresponding rights, or no rights wherewith they correlate: And, as the Analysis through which I am journeying embraces Duties as well as Rights, it 409was necessary that I should advert to duties without corresponding rights, as well as to duties which are relative.

Accordingly, the class of duties in question (which I distinguish from relative duties by the negative epithet ‘absolute’) were also considered in the last Lecture.

Every legal duty—whether it be relative or absolute, or whether it be obligatio or officium—is a duty to do (or forbear from) an outward act or acts, and flows from the Command, (signified expressly or tacitly) of the person or body which is sovereign in some given society.

To fulfil the duty which the command imposes, is just or right. That is to say, the party does the act, or the party observes the forbearance, which is jussum or directum by the author of the command.⁶⁹

⁶⁹ Just is that which is jussum; the past participle of jubeo.

Right is derived from directum; the past participle of dirigo; or, rather, right is probably derived from some Anglo-Saxon Verb, which comes with dirigo from a common root. The German recht, gerecht, richtig, rechtens, (just) is from the obsolete richten or rechten (dirigo). Hence Richter, a judge. Latin; Rego, Rex, Regula, Rectum. (Wrong = Wrung; the opposite of rectum.)

And as just and right signify that which is commanded, so do the Latin Æquum and the Greek Dikaion denote that which conforms to a law or rule. Manifestly, a metaphor borrowed from measures of length. Something equal to, or oven with, a something to which it is compared. Æquum = jus gentium.

The abstracts, justice,—justum, dikaion, equity, etc., denote conformity to Command; as their corresponding concretes denote a something which is commanded, or equal.

Distinction between right as denoting something commanded, and as denoting the position of the party towards whom it is commanded. To do right, is to obey a command. ‘To have a right,’ in to be placed in such a position that or another is commanded to do or forbear towards or in respect of oneself.

In consequence of the intimate connection between the terms, right and obligation are often used indifferently. E.g. In old German Law language, recht denotes either. So in vulgar English. So the Latin jus and obligatio. The French droit, and the Italian diritto, are not free from this ambiguity. The Greek exousia is equivalent to facultas, potestas.

To omit (or forbear from) the act which the command enjoins, or to do the act which the command prohibits, is a wrong or injury:—A term denoting (when taken in its largest signification) every act, forbearance, or omission, which amounts to disobedience of a Law (or to disobedience of any other command) emanating directly or circuitously from a Monarch or Sovereign Number—‘Generaliter injuria dicitur, omne quod non jure fit.’

A party lying under a duty, or upon whom a duty is incumbent, is liable to evil or inconvenience (to be inflicted by sovereign authority), in case he disobey the Command by which the duty is imposed. This conditional evil is the Sanction which enforces the duty, or the duty is sanctioned by this conditional evil: And the party bound or obliged, is bound or 410obliged, because he is obnoxious to this evil, in case he disobey the command.—That bond, vinculum, or ligamen, which is of the essence of duty, is, simply or merely, liability or obnoxiousness to a Sanction.

Now it follows from these considerations, that, before I can complete the analysis of legal right and duty, I must advert to the nature or essentials of legal Injuries or Wrongs, and of legal or political Sanctions.—As Person, Thing, Act and Forbearance, are inseparably connected with the terms ‘Right’ and ‘Duty,’ so are Injury and Sanction imported by the same expressions.

Obligation, Injury, and Sanction imply Motive, Will, Intention, Negligence, and Rashness.

But before we can determine the import of ‘Injury’ and ‘Sanction’ (or can distinguish the compulsion or restraint, which is implied in Duty or Obligation, from that compulsion or restraint which is merely physical), we must try to settle the meaning of the following perplexing terms: namely, Will, Motive, Intention, and Negligence:—Including, in the term ‘Negligenece,’ those modes of the corresponding complex notion, which are styled ‘Temerity’ or ‘Rashness, Imprudence or Heedlessness.’

Accordingly, I shall now endeavour to state or suggest the significations of ‘Motive’ and ‘Will.’ In other words, I shall attempt to distinguish desires, as determining to acts or forbearances, from those remarkable desires which are named volitions, and by which we are not determined to acts or forbearances, although they are the immediate antecedents of such bodily movements as are styled (strictly and properly) human acts or actions.

Nor is this incidental excursion into the Philosophy of Mind a wanton digression from the path which is marked out by my subject.

For (first) the party who lies under a duty is bound or obliged by a sanction. This conditional evil determines or inclines his will to the act or forbearance enjoined. In other language, he wishes to avoid the evil impending from the Law, although he may be averse from the fulfilment of the duty which the Law imposes upon him.

Consequently, if we would know precisely the import of ‘Duty,’ we must endeavour to clear the expressions ‘Motive’ and ‘Will’ from the obscurity with which they have been covered by philosophical and popular jargon.

2ndly, The objects of duties are acts and forbearances. But 411every act, and every forbearance from an act, is the consequence of a volition, or of a determination of the will, Consequently, if we would know precisely the meaning of act and forbearance, and, therefore, the meaning of duty or obligation, we must try to know the meaning of the term ‘Will.’

3rdly, Some injuries are intentional. Others are consequences of negligence (in the large signification of the term). Consequently, if we would know the nature of injuries or wrongs, and of various important differences by which they are distinguished, we must try to determine the meanings of ‘Intention’ and ‘Negligence.’

It is absolutely necessary that the import of the last-mentioned expressions should be settled with an approach to precision. For both of them run, in a continued vein, through the doctrine of injuries or wrongs; and of the rights and obligations which are begotten by injuries or wrongs. And one of them (namely, ‘Intention’), meets us at every step, in every department of Jurisprudence.

But, in order that we may settle the import of the term ‘Intention,’ we must settle the import of the term ‘Will.’ For, although an intention is not a volition, the facts are inseparably connected. And, since ‘Negligence’ implies the absence of a due volition and intention, it is manifest that the explanation of that expression supposes the explanation of these.

Accordingly, I will now attempt to analyse the expressions ‘Will’ and ‘Motive.’

Certain parts of the human body obey the will. Changing the expression, certain parts of our bodies move in certain ways so soon as we will that they should. Or, changing the expression again, we have the power of moving, in certain ways, certain parts of our bodies.

Certain movements of our bodies follow invariably and immediately our wishes or desires for those same movements: Provided, that is, that the bodily organ be sane, and the desired movement be not prevented by an outward obstacle or hindrance. If my arm be free from disease, and from chains or other hindrances, my arm rises, so soon as I wish that it should. But if my arm be palsied, or fastened down to my side, my arm will not move, although I desire to move it.

412These antecedent wishes and these consequent movements, are human volitions and acts (strictly and properly so called). They are the only objects to which those terms will strictly and properly apply.

But, besides the antecedent desire (which I style a volition), and the consequent movement (which I style an act), it is commonly supposed that there is a certain ‘Will’ which is the cause or author of both. The desire is commonly called an act of the will; or is supposed to be an effect of a power or faculty of willing, supposed to reside in the man.

That this same ‘will’ is just nothing at all, has been proved (in my opinion) beyond controversy by the late Dr. Brown: Who has also expelled from the region of entities, those fancied beings called ‘powers,’ of which this imaginary ‘will’ is one. Many preceding writers had stated or suggested generally, the true nature of the relation between cause and effect. They had shown that a cause is nothing but a given event invariably or usually preceding another given event; that an effect is nothing but a given event invariably or usually following another given event; and that the power of producing the effect which is ascribed to the cause, is merely an abridged (and, therefore, an obscure) expression for the customary antecedence and sequence of the two events. But the author in question, in his analysis of that relation, considered the subject from numerous aspects equally new and important. And he was (I believe) the first who understood what we would be at, when we talk about the Will, and the power or faculty of willing.

All that I am able to discover when I will a movement of my body, amounts to this: I wish the movement. The movement immediately follows my wish of the movement. And when I conceive the wish, I expect that the movement wished will immediately follow it. Any one may convince himself that this is the whole of the case, by carefully observing what passes in himself, when he wills to move any of the bodily organs, which are said to obey the will, or the power or faculty of willing.

For further proof I must refer you to Brown’s ‘Analysis of Cause and Effect.’⁷⁰ A detailed exposition of the subject, were utterly inconsistent with the limits by which I am confined, and with the direct or appropriate purpose of these Lectures.

⁷⁰ Brown’s Enquiry into the Relation of Cause and Effect. (For the Will in particular, Part 1, Section 3.) Mill’s Analysis of the Phenomena of the Human Mind, cap. 24, 25.

The wishes which are immediately followed by the bodily 413movements wished, are the only wishes immediately followed by their objects. Or (changing the expression), they are the only wishes which consummate themselves:—The only wishes which attain their ends without the intervention of means.

In every other instance of wish or desire, the object of the wish is attained (in case it be attained) through a mean; and (generally speaking) through a series of means:—Each of the means being (in its turn) the object of a distinct wish; and each of them being wished (in its turn) as a step to that object which is the end at which we aim.

For example, If I wish that my arm should rise, the desired movement of my arm immediately follows my wish. There is nothing to which I resort, nothing which I wish, as a mean or instrument wherewith to attain my purpose. But if I wish to lift the book which is now lying before me, I wish certain movements of my bodily organs, and I employ these as a mean or instrument for the accomplishment of my ultimate end.

Again: If I wish to look at a book lying beyond my reach, I resort to certain movements of my bodily organs, coupled with an additional something which I employ as a further instrument. For instance, I grasp and raise the book now lying before me; and with the book which I grasp and raise, I get the book which I wish to look at, but which lies on a part of the table beyond the reach of my arm.

It will be admitted by all (on the bare statement) that the dominion of the will is limited or restricted to some of our bodily organs: that is to say, that there are only certain parts of our bodily frames, which change their actual states for different states, as (and so soon as) we wish or desire that they should. Numberless movements of my arms and legs immediately follow my desires of those same movements. But the motion of my heart would not be immediately affected, by a wish I might happen to conceive that it should stop or quicken.

That the dominion of the will extends not to the mind, may appear (at first sight) somewhat disputable. It has, however, been proved by the writers to whom I have referred. Nor, indeed, was the proof difficult, so soon as a definite meaning had been attached to the term will. Here (as in most cases) the confusion arose from the indefiniteness of the language by which the subjects of the inquiry were denoted.

If volitions be nothing but wishes immediately followed by their objects, it is manifest that the mind is not obedient to the will. In other words, it will not change its actual, for different 414states or conditions, as (and so soon as) it is wished or desired that it should. Try to recall an absent thought, or to banish a present thought, and you will find that your desire is not immediately followed by the attainment of its object. It is, indeed, manifest that the attempt would imply an absurdity. Unless the thought desired be present to the mind already, there is no determinate object at which the desire aims, and which it can attain immediately, or without the intervention of a mean. And to desire the absence of a thought actually present to the mind, is to conceive the thought of which the absence is desired, and (by consequence) to perpetuate its presence.

Changes in the state of the mind, or in the state of the ideas and desires, are not to be attained immediately by desiring those changes, but through long and complex series of intervening means, beginning with desires which really are volitions.⁷¹

⁷¹ Examples: Taking up a book to banish an importunate thought. Looking into a book to recover an absent thought.

Our desires of those bodily movements which immediately follow our desires of them, are therefore the only objects which can be styled volitions; or (if you like the expression better) which can be styled acts of the will.—For that is merely to affirm, ‘that they are the only desires which are followed by their objects immediately, or without the intervention of means.’ They are distinguished from other desires by the name of volitions, on account of this, their essential or characteristic property.

And as these are the only volitions; so are the bodily movements, by which they are immediately followed, the only acts or actions (properly so called).⁷² It will be admitted on the mere statement, that the only objects which can be called 415acts, are consequences of Volitions. A voluntary movement of my body, or a movement which follows a volition, is an act. The involuntary movements which are the consequences of certain diseases, are not acts. But as the bodily movements which immediately follow volitions, are the only ends of volition, it follows that those bodily movements are the only objects to which the term ‘acts’ can be applied with perfect precision and propriety.

⁷² It is not clear whether the author here intends to exclude from the category of acts all processes that do not immediately result in a palpable bodily movement. If so, he is inconsistent.

The author elsewhere (p. 454) implicitly recognises meditation as an act: Further (p. 456), while he regards the conviction produced by evidence as a case of physical compulsion, he recognises that non-belief may be blamable, if the result of insufficient examination, refusal to examine, etc. The process of examination is therefore the object of a duty, and hence, according to his own analysis, it is an act (pp. 367, 395).

And it is difficult to see why cogito should not be classed with acts, just as much as curro or haurio. There seems no generic difference between the act of taking up a book to banish an importunate thought and the process of entering (without external aid) upon some mental exercise (e.g. a problem in geometry) for the same purpose. It is no doubt true that a given specific change in the state of the mind cannot generally be the object of a volition. But the same is true of any given bodily movement, unless it happen to be one of those movements, very limited in direction and extent, which are immediately in our power to effect.

No doubt the mental processes in question are too impalpable and obscure to enter the domain of positive law, unless evidenced by acts of a more observable kind, which last are sometimes distinguished by the name of overt acts, a term devised not without insight. (See p. 441, post.)—R. C.

The only difficulty with which the subject is beset, arises from the concise or abridged manner in which (generally speaking) we express the objects of our discourse.

Most of the names which seem to be names of acts, are names of acts, coupled with certain of their consequences. For example, If I kill you with a gun or pistol, I shoot you: And the long train of incidents which are denoted by that brief expression, are considered (or spoken of) as if they constituted an act, perpetrated by me. In truth, the only parts of the train which are my act or acts, are the muscular motions by which I raise the weapon; point it at your head or body, and pull the trigger. These I will. The contact of the flint and steel; the ignition of the powder, the flight of the ball towards your body, the wound and subsequent death, with the numberless incidents included in these, are consequences of the act which I will. I will not these consequences, although I may intend them.

Nor is this ambiguity confined to the names by which our actions are denoted. It extends to the term ‘will;’ to the term ‘volitions;’ and to the term ‘acts of the will.’ In the case which I have just stated, I should be said to will the whole train of incidents; although I should only will certain muscular motions, and should intend those consequences which constitute the rest of the train. But the further explanation of these and other ambiguities, must be reserved for the explanation of the term ‘intention.’

The desires of those bodily movements which immediately follow our desires of them, are imputed (as I have said) to an imaginary being, which is styled the Will. They are called acts of the will. And this imaginary being is said to be determined to action, by Motives.

All which (translated into intelligible language) merely means this: I wish a certain object. That object is not attainable immediately, by the wish or desire itself. But it is attainable by means of bodily movements which will immediately follow my desire of them. For the purpose of attaining 416that which I cannot attain by a wish, I wish the movements which will immediately follow my wish, and through which I expect to attain the object which is the end of my desires (as in the foregoing instance of the book).

A motive, then, is a wish causing or preceding a volition:—A wish for a something not to be attained by wishing it, but which the party believes he shall probably or certainly attain, by means of those wishes which are styled acts of the will.

In a certain sense, motives may precede motives as well as acts of the will. For the desired object which is said to determine the will may itself be desired as a mean to an ulterior purpose. In which case, the desire of the object which is the ultimate end, prompts the desire which immediately precedes the volition.

That the will should have attracted great attention, is not wonderful. For by means of the bodily movements which are the objects of volitions, the business of our lives is carried on. That the will should have been thought to contain something extremely mysterious, is equally natural. For volitions (as we have seen) are the only desires which consummate themselves: the only desires which attain their objects without the intervention of means.

His mistake was this. He perceived (though obscurely) that we mean by the ‘will’ or by ‘volitions,’ desires which consummate themselves, or which are followed immediately by their objects. And if he had asked himself ‘what desires are attained by merely desiring them?’ he would have arrived at the solution reserved for Dr. Brown.

‘In Deliberation the last Appetite or Aversion immediately adhering to the action, or to the omission thereof, is what we Call the Will; the Act (not the faculty) of Willing. And Beasts that have Deliberation must necessarily also have Will. The Definition of the Will commonly given by the Schools, that it is a rational Appetite, is not good. For, if it were, then there could be no voluntary Act against Reason. For a voluntary Act is that which proceedeth from the Will and no other. But if instead of a rational Appetite, we shall say an Appetite resulting from a precedent Deliberation, then the Definition is the same that I have given here. Will therefore is the last Appetite in Deliberating. And though we say in common Discourse, a man had a Will once to do a thing that nevertheless he 417forbore to do; yet that is properly but an Inclination, which makes no Action voluntary; because the action depends not of it but of the last Inclination or Appetite.’—Leviathan, p. 28, edit. 1651.

The objects of wishes or desires are desired simply or absolutely, or they are desired for their effects or consequences. Changing the expression, the objects of wishes or desires are desired as ends, or they are desired as means to ends.

For example, I may desire money for the sake of the advantages which it would procure; or (by virtue of that process of association which I think it needless to explain) I may wish for money without adverting to those advantages, or to any of the consequences which would follow the attainment of my desire.

And the remark which I have applied to positive desires, will also apply to those negative desires which are styled aversions. I may wish to avoid a given pain in prospect, without carrying my attention beyond that given object. Or I may wish that an event in prospect may not happen, on account of some consequence which would certainly or probably follow it, and from which I am averse.

If we steadily keep in view this simple and obvious truth, I think that we may approach to the true distinctions between Motive, Will, and Intention.

First, a voluntary act is any act done in pursuance of a volition; i.e. an act (s.s.) with such of its intentional consequences as are included in its import; e.g. submission to punishment, in consequence of a knowledge that resistance would be fruitless.

Secondly, a voluntary act is an act done in consequence of an act of the will, as determined by certain motives. This last sense includes several related yet different senses; e.g. a voluntary act, as opposed to an act done for a valuable consideration: a voluntary act, as opposed to an act done in apprehension of pain.

⁷³ ‘Principles of Morals and Legislation,’ pp. 22, 79, 81.

‘I purposely abstain from the use of the words voluntary and involuntary, on account of the extreme ambiguity of their signification. By a voluntary act is meant sometimes, any act in the performance of which the will has had any concern at all; in this sense it is synonymous to “intentional;” sometimes such acts only, in the production of which the will has been determined by motives not of a painful nature: in this sense it is synonymous with unconstrained or uncoerced; sometimes such acts only, in the production of which the will has been. determined by motives which, whether of the pleasurable or painful kind, occurred to a man himself, without being suggested by anybody else;⁷⁴ in this sense it is synonymous with spontaneous.

⁷⁴ Or rather, by motives other than those which are in question. Good offices proceeding from the Moral Sanction, are, with reference to legal obligation, spontaneous.—See ‘Principles,’ etc. p. 320.—Marginal Note.

‘The sense of the word “involuntary” does not correspond completely to that of the word “voluntary.” Involuntary is used in opposition to intentional and to unconstrained, but not to spontaneous.’