Austin, Lectures on Jurisprudence, 5th ed., vol. 1, lecture 22

I have endeavoured to analyse and to fix the meanings of the following related expressions:—‘Motive,’ ‘Will,’ ‘Intention,’ ‘Negligence,’ ‘Heedlessness,’ ‘Rashness.’

I now proceed to the essentials of Injury and Sanction, and of that Compulsion or Restraint which is imported by Duty or Obligation.

Every legal duty (whether it be relative or absolute, or whether it be officium or obligatio) is a duty to do, or forbear from, an act or acts, and is imposed by a Command (express or tacit) of the person or body which is sovereign in a given society.

As every injury or wrong is a breach or violation of duty, it supposes that an act enjoined is not done, or that an act forbidden is done.

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 violate the duty, or disobey the command which imposes it. The evil to be incurred by the party in case he disobey the command, enforces compliance with the command, or secures the fulfilment of the duty. In other words, it inclines the party to obey the command, or to fulfil the duty or obligation which the command imposes upon him. By reason of his liability or obnoxiousness to the eventual or conditional evil, there is a chance that he will not disobey: A chance which is greater or less (foreign considerations apart), as the evil itself, and the chance of incurring it by disobedience, 444are greater or less. The eventual or conditional evil to which the party is obnoxious, is styled a ‘Sannction;’ or the Law or other Command is said to be sanctioned by the evil.

‘To be obliged to do or forbear,’ or ‘to lie under a duty or obligation to do or forbear,’ is to be liable or obnoxious to a sanction, in the event of disobeying a command. In other words, ‘to lie under an obligation to do or forbear,’ is to be liable to an evil from the author of the command, in the event of disobedience.

The party is bound or obliged to do or forbear, because he is obnoxious to the evil, and because he fears the evil. To borrow the current, though not very accurate expressions, he is compelled by his fear of the evil to do the act which is enjoined, or is restrained by his fear of the evil from doing the act which is forbidden.

Obligation regards the future. An obligation to a past act, or an obligation to a past forbearance, is a contradiction in terms.

If the party has acted or forborne agreeably to the command, he has fulfilled the obligation wholly or in Part, and the obligation has wholly or in part ended or ceased in respect of that act or forbearance.

And here there is a certain difference between positive and negative duties. The end or scope of positive duties, and of the jura in personam which correspond to them, is the performance of that to which the party obliged by the duty is bound. But the scope or purpose of negative duties, and of the rights with which they correlate, is not the observance of the office or obligation; although that observance is a necessary condition to the enjoyment or exercise of the right. A positive obligation, therefore, is determined by fulfilment: but an office or negative obligation is not determined by fulfilment, but by an event extraneous to the duty, namely, the extinguishment of the right with which it correlates, or of a right which it regards or concerns. The performance of a positive duty extinguishes both the duty and the corresponding right: a negative duty is never extinguished by fulfilment, though if the right be extinguished 445by another cause, the duty ceases. This difference between positive and negative duties, has been erroneously supposed to be a difference between offices and obligations; a confusion of ideas pregnant with important misconceptions, and which obscures the difference between offices and obligations, between jura in rem and jura in personam.

If, on the other hand, the party has disobeyed the command by action, forbearance or omission, he has actually incurred the sanction, or is actually liable to the application of the sanction. And, in respect of the forbearance which he has not observed, or in respect of the act which he has forborne or omitted, the duty or obligation to which the sanction was annexed, has (as before), wholly or in part, ended or ceased. The sanction which has attached upon him may consist of a new obligation, but that obligation to which the sanction was appended, has (wholly or in part) determined.

It is not unfrequently said ‘that Sanctions operate upon the Will,’ and ‘that men are obliged to do or forbear through their wills.’

It were more correct to say ‘that Sanctions operate upon the desires,’ and ‘that men are obliged to do or forbear through their desires.’

Stated plainly and precisely, the fact is this: The party obliged is averse from the conditional evil, which he may chance to incur in case he break the obligation: In other words, he wishes or desires to avoid it. But, in order that he may avoid the evil, or may avoid the chance of incurring it, he must fulfil the obligation: He must do that which the Law enjoins, or must forbear from that which the Law prohibits.

That every sanction operates upon the desires of the obliged, is true. For he is necessarily averse from the evil with which he is threatened by the Law, as he is necessarily averse from every evil whatsoever.

That every sanction operates upon the will of the obliged, is not true. If the duty be positive, and if he fulfil the duty out of regard to the sanction, it may be said with propriety that the sanction operates upon his will. For his desire of avoiding the evil which impends from the Law, makes him do, and, therefore, will, the act which is the object of the command and the duty. But if the duty be negative, and if he fulfil the duty out of regard to the sanction, it can scarcely be said with propriety that the sanction operates upon his will. His desire of avoiding the evil which impends from the Law, makes him forbear from 446the act which the Law prohibits. But, though he intends the forbearance, he does not will the forbearance. He either wills an act which is inconsistent with the act forborne, or he remains in a state of inaction which equally excludes it. In the former case, he does not will the forbearance. In the latter case, he wills nothing.

If, then, the party fulfil his duty, and if he fulfil his duty out of regard to the sanction, the fact, precisely stated, is this: He is obnoxious to evil from the Law, in case he violate his duty. This conditional evil, like every possible evil, he necessarily wishes to avoid. And, in order that he may avoid the evil with which he is threatened by the Law, he wills the act, or intends the forbearance, which the Author of the Law commands.

Again: Every sanction operates upon the desires of the obliged, although he violate the duty.

If he do an act which the Law forbids, or if he forbear from an act which the Law enjoins, he desires to avoid the evil with which he is threatened by the Law, although that desire be mastered and suppressed by a conflicting and stronger desire. And, if he omit an act which the Law enjoins, he habitually desires to avoid the conditional evil, although, at the moment of the omission, he forgets the sanction and the duty.

But, when the obliged party violates his duty, it is manifest that the sanction does not operate upon his will, although it affects his desires. If he do an act which the Law forbids, he wills an act in spite of the sanction. If he violate his duty by forbearance or omission, he does not will an act which the Law enjoins, and which it is the scope and purpose of the sanction to make him will.

It is, therefore, not true, or is not true universally, that ‘Sanction operates upon the will of the obliged;’ or ‘that the party is obliged through his will.’ But it is true, and is true universally, ‘that Sanction operates upon the desires of the obliged,’ or ‘that the party is obliged through his desires.’

For to affirm that is merely to affirm this:—‘That the party is necessarily averse from every evil; and necessarily wishes to avoid the evil by which the command is sanctioned.’

I said, in a former Lecture, that an obligation to will is impossible.⁹¹ Why I said so, I am somewhat at a loss to see. 447For it is quite certain, that the proposition is grossly false, and is not consistent with my own deliberate opinion.

⁹¹ The passage referred to, not being contained in the lectures as formerly published, I have not restored in its place. But I find that in J.S.M.’s notes it follows the sentence ending on the 33d line of p. 367 ante, and runs thus:—‘We cannot, speaking correctly, be obliged to will, though we are obliged through our will. Neither can we, strictly speaking, be obliged to suffer.’—R. C.

We are obliged to will, whenever our duties are positive: that is to say, whenever we are obliged to act. The Law threatens us with the sanction, in order that we may act; and in order that we may act, we must will. This, it is manifest, is the meaning of the proposition ‘that we are bound to act through our wills.’ The force of the obligation lies in our desire of avoiding the threatened evil. But, in order that we may avoid that evil by performing the obligation, we will the act which is commanded.

And this is true. For acts and their consequences are the objects of positive duties; and every volition is followed by the act which is willed, if the appropriate bodily organ be sound or healthy. Perhaps, I confounded desires (as contradistinguished from volitions) with those peculiar desires which are styled ‘volitions.’ Or, perhaps, I intended to affirm that we cannot be obliged to desire, in the sense wherein desire is opposed to will. And this is also true.

And here I may remark that we cannot be obliged to desire or not to desire; i.e. to desire that which the Law enjoins, or not to desire that which the Laws forbids: For although we desire to avoid the sanction, we are not therefore averse from that which the Law forbids, nor do we therefore incline to that which the Law enjoins.

In spite of our aversion from the evil with which we are menaced by the Law, we may still desire that which the Law forbids, or may desire to evade that which the Law exacts: Although our necessary desire of avoiding the sanction, may be stronger than the opposite desire which urges us to a breach of our duty. The desire of avoiding the sanction may control the opposite desire, but cannot supplant or destroy it. Or, if it can destroy it, it can only destroy it in the oblique or indirect manner to which I shall advert immediately.

It is equally manifest, that we are not obliged to our desire of avoiding the sanction. We are not bound or obliged to entertain the desire; but we are bound or obliged, because we are threatened with the evil, and because we inevitably desire to avoid the evil. We are not obliged to entertain the desire, but we are obliged because we entertain it.

When we desire that which the Law forbids, or when we are averse from that which the Law enjoins, we observe our duty (supposing we do observe it) because our aversion from the sanction tops the conflicting wish.

448In these, and in similar cases, it is not unusual to suppose a conflict between desire and will. Because we will a something from which we are averse, it is imagined that we will against our desires. The truth, however, is, that there is no conflict between desire and will, although there is a conflict between inconsistent desires.

I wish to forbear from that which the Law enjoins, or I wish to do that which the Law prohibits. But I also wish to avoid the evil with which I am threatened by the Law. And as my wish of avoiding this evil is stronger than the opposite wish, I will that which the Law enjoins, or I forbear from that which the Law forbids. I do not will or forbear against my desires, but I will or forbear in compliance with a stronger desire, instead of forbearing or willing in compliance with a weaker desire.

It is truly astonishing that this obvious solution of the difficulty escaped the penetration of Mr. Locke. It is of no small importance that the difficulty should be clearly conceived, and the solution distinctly apprehended. For I believe that the mysterious jargon about the nature of the will has arisen entirely from this purely verbal puzzle.

If we suppose that the Will can control the Desires, or that man can will against his desires, we must suppose that will and desire are utterly distinct and disparate; we cannot, consistently with such a supposition, admit that volitions are a class of desires, and are merely distinguished from other desires by a certain specific difference: namely, that they are followed immediately or without the intervention of means, by their direct or appropriate objects.

I have said that we cannot be obliged not to desire; that the desire of avoiding the sanction may master or control, but cannot extinguish a desire which urges to a breach of duty.

But this, though true in the main, must be taken with an important qualification.

The desire of avoiding the sanction cannot destroy directly the conflicting and sinister desire. But the desire of avoiding the sanction may destroy the antagonist desire, gradually or in the way of association. The thought of the act or forbearance which would amount to a breach of duty, is habitually coupled with the thought of the evil which the Law annexes to the wrong. If our desire of avoiding the evil, which the Law annexes to the wrong, be stronger than our desire of the consequences which might follow the act or forbearance, we regard the latter as a cause of probable evil, and we gradually transfer 449to the cause our aversion from the effect. Our stronger desire of avoiding the Sanction, gradually extinguishes the weaker desire. Our wish for the agreeable consequences. which might follow the wrong, is absorbed by our wish of avoiding the evil which the wrong would probably induce. We regard the wrong as a cause of evil, and we dislike it accordingly.

This is merely a case of a familiar and indisputable fact. Objects originally agreeable become disagreeable on account of their disagreeable consequences. And objects originally pleasing become displeasing by reason of painful consequences with which they are pregnant.

This gradual effect of sanctions in extinguishing sinister desires, is a matter of familiar remark, and is expressed in various ways. Owing to the prevalent misconceptions regarding the nature of the will, the effect which is really wrought upon the state of the desires is frequently ascribed to the will. It is forgotten that the will is merely an instrument of the desires; and that every change in disposition and conduct is a change in the dominant desires, and not in the subject will.

We are told, for instance, by Hobbes, in his ‘Essay on Liberty and Necessity,’ ‘that the habitual fear of punishment maketh men just:’ ‘that it frames and moulds their wills to justice.’ The plain and simple truth is this: that it tends to quench wishes which urge to breach of duty, or are adverse to that which is jussum or ordained.

Where the fear of the evils which impend from the law has extinguished the desires which urge to breach of duty, the man is just. He is not compelled or restrained by fear of the sanction, but he fulfils his duty spontaneously. He is moved to right, and is held from wrong, by that habitual aversion from wrong or injury, which the habitual fear of the sanction has gradually begotten.

The man who fulfils his duty because he fears the sanction, is an unjust man, although his conduct be just. If he could violate his duty without incurring the evil, his conduct would accord with the desires which urge him to break it.

In short, the fear of the evils by which our duties are sanctioned, cannot extinguish instantly or directly the desires and aversions which urge us to violate our duties. But the fear of those evils may extinguish these desires and aversions gradually or in the way of association. Our necessary aversion from the evils with which we are threatened by the Law is often transferred by insensible degrees to the injuries or wrongs which 450might bring those evils upon us. Our fear of the sanction is changed into hate of the offence. Instead of fulfilling our duty through fear of the sanction, we fulfil our duty through that aversion from wrong which the habitual fear of the sanction has slowly engendered. We come to love justice with disinterested love, and to hate injustice with disinterested hate. So far as we fulfil our duties through these disinterested affections, we are just, ‘Justitia eat perpetua voluntas suum cuique tribuendi.’ So far as we are moved to fulfil them by the evils with which they are sanctioned, we are unjust men, although our conduct be just, For if we were freed from the fear which compels or restrains us, our conduct would accord with the sinister desires and aversions, which solicit or urge us to violate our duties.

When I affirm that our fear of the evils by which our duties are sanctioned is frequently transmuted into a disinterested hate of injustice, I am far from intimating that that fear is the only source of this beneficent disposition. The love of justice, or the hate of injustice, is partly generated (no doubt) by a perception of the utility of justice; and by that love of general utility which is felt by all or most men more or less strongly. But it is also generated, in part, by the habitual fear of sanctions. And to this consideration my attention is particularly directed. For my purpose is not to analyse the sources of the beneficent disposition, but to distinguish the remote effect of obligations and sanctions from the immediate or direct:—to shew that sanctions may inspire us with a disinterested love of justice, although they compel us to right, or restrain us from wrong, in case that useful sentiment be absent or defective.

When the desires of the man habitually accord with his duty, we say that the man is disposed to justice, or we style the state of his mind a disposition to justice. And this disposition to justice is a ground for mitigation in measuring out punishment or in measuring out censure.

Every legal crime should be visited with legal punishment, and every offence against morals should be visited with reprobation. But when the circumstances of the offence indicate a disposition to justice, or indicate any disposition which is generally useful or beneficent, utility requires that the punishment should diminish, or that the censure should soften accordingly. The general consequences which would ensue if the offender passed with impunity, render it expedient that it should be visited with punishment or censure. But since there would be few offences if good dispositions were general, it is also expedient 451to mitigate the punishment or censure, with a view to the good disposition manifested by the criminal.

And this, accordingly, is the usual habit of the world. The occasional aberrations of a man who is habitually just or humane, are treated with less severity than the offences of the dishonest and the cruel. The amount of punishment is frequently determined by this consideration; or (although the nature of the offence exclude mitigation of punishment) public reprobation falls with comparative lenity. The necessity of inflicting the punishment is generally perceived and admitted, but the offender is regarded with a feeling which approaches to compassion and regret, rather than to antipathy and exultation.

Where the desires of the man are habitually adverse to his duty, we say that the man is disposed to injustice, or style the state of his mind a disposition to injustice.

Owing to the prevalent misconceptions about the nature of will, we frequently style the predominance of pernicious desires, a depraved or wicked will. Sometimes, indeed, we mean by a depraved or wicked will, a deliberate intention to do a criminal act. Although it is perfectly manifest, that badness or goodness cannot be affirmed of the will, and that a criminal intention may accord with a good disposition.

⁹² These names, especially the first and last of them, suggest an observation upon the ethical views maintained by the author in these lectures.

The author recognises an absolute standard of what is good and true, not (with Kant) as a necessary form of thought, but as consisting in the Divine law which is set to man by a superior, namely the Divine intelligence. The indices to that law he states to be Revelation and Utility, and the position on which he insists at length in the introductory lectures is this: that, apart from Revelation, Utility is the only index, measure, or test of the Divine law—conformity to the law ascertained by Utility, the only aim which ought to control the desires. But the sphere of Revelation he passes in silence; a reserve which obliges him to leave untouched the question, how far it is possible for human intelligence and desire to reach forward beyond experience, in the direction of conforming themselves to the Divine intelligence and the Divine will.

The position thus taken up by the author, is a very strong one; and admirably adapted to the purpose of an entry into the field of jurisprudence. But I cannot help noting that, in regard to the entire field of ethical science, this position is comparatively narrow, and that its bounds have been left by the author undefined. And they are necessarily indefinite. For I conceive that, as a measure or test, utility may well be extended far within the sphere of Revelation; and is the only test of Revelation which the intelligence common to all mankind seems capable of applying. But that the theory of utility has availed, except to a very limited extent, in advancing the practical science of ethics, I take to be contrary to the teaching of history. For I confess myself a learner with those who have read history as shewing, that Revelation has been the guide and pioneer, in places which utility has now fenced and secured as a possession to mankind for all time coming.

Provided only there be conceded to human nature divinus aliquis afflatus, which can rise above experience to the recognition and partial realisation of the good existing in God and the Divine Law, and provided all the results of such a faculty be embraced in the term Revelation, I readily accede to the author’s rejection of a tertium quid under the name of moral sense, etc., standing between Revelation and Utility as an index to moral truth. An inquiry into the nature and province of Revelation and the corresponding receptive faculty would clearly have been beyond the scope of these lectures. And as it has not been entered on, neither is it prejudged.—R. C.

What they meant by freedom of the Will was not that we desire without a determining cause, or that we will against our desires, but that, in the cases in question, our desires or wills go with our duties, i.e. we desire to perform our duty more than anything else.

452The term ‘Sanction’ denotes the conditional evil, which is annexed by the Sovereign to the Command. The term ‘Obligation’ imports the same object considered from a certain aspect. It denotes present liability to that contingent evil, in case the duty be broken, or the command be disobeyed.

The Latin Obligatio denotes the operation of the sanction upon the will of the obliged.

It is manifest that the Latin obligatio is equivalent to ligamen or vinculum. The position of a party obnoxious to a contingent evil, is likened to that of a party who is tied to a given place.

The English duty (looking at its derivation) rather denotes that to which a man is obliged, than the obligation itself. It is derived, through the French devoir (past part.) and the Italian dovere, from the Latin debere. It is, therefore, equivalent to id quod debitum est, rather than to obligatio.

Same remark as to the German ‘Forderung’ (equivalent to the obligatio of the Roman Jurists), ‘Pflicht,’ ‘Verbindlichkeit.’

By ‘duty’ may be meant any duty; but it commonly meant religious duty, or test of duties.