THE
PROVINCE OF JURISPRUDENCE
DETERMINED.
THE
PROVINCE OF JURISPRUDENCE
DETERMINED.
By JOHN AUSTIN, Esq.
BARRISTER AT LAW.
═════
LONDON:
JOHN MURRAY, ALBEMARLE STREET.
───
1832.
PRINTED BY RICHARD TAYLOR,
PRINTER TO THE UNIVERSITY OF LONDON,
RED LION COURT, FLEET STREET.
PREFACE.
As one of the Law-Professors at the University of London, I planned and partly delivered a systematical Course of Lectures on General or Abstract Jurisprudence. In the ten lectures delivered at the beginning of my Course, I distinguished positive law (the appropriate matter of jurisprudence) from various objects with which it is connected by resemblance, and from various other objects to which it is allied by analogy. Out of those ten discourses, I have made the treatise which I now submit to the public, and which I venture to entitle “the province of jurisprudence determined.”
Expounding the matter of the treatise to my hearers at the University of London, I was forced to finish each of my readings within the compass of an hour. Hence it naturally followed, that the division which I gave to the matter differed from the division suggested by the affinities of the topics. Compelled to finish each of my readings within the compass of an hour, I expounded the matter in ten discourses, although the affinities of the topics would have led me to expound it in six.
Addressing the matter to readers, I am not convistrained to preserve the division, which, as addressing it to hearers, I was forced to adopt. Accordingly, I divide the treatise into six lectures, although it is made out of ten.
But the quantity of the matter which was contained by the ten, is somewhat less than the quantity of the matter which is contained by the six. The six ensuing lectures (and, especially, the fifth and last) are therefore longer than most of the essays to which the name of “lecture” is usually given. But, nevertheless, I call them “lectures”: for their matter is clothed with a style, or wears a form of expression, which assumes that they are read to an audience. This is the style with which their matter was clothed, when it was delivered, in the ten lectures, to my hearers at the University of London: and I could not have stripped it of this, and dressed it in another, without much and profitless labour.
═════
Having stated the origin of the following treatise, I now will suggest its principal purpose or scope: And, having suggested its principal purpose or scope, I will indicate the topics with which it is chiefly concerned, and also the order wherein it presents them to the reader.
viiLaws proper or properly so called, are commands: laws which are not commands, are laws improper or improperly so called. Laws properly so called, with laws improperly so called, may be aptly divided into the four following kinds. 1. The divine laws, or the laws of God: that is to say, the laws which are, set by God to his human creatures. 2. Positive laws: that is to say, laws which are simply and strictly so called, and which form the appropriate matter of general and particular jurisprudence. 3. Positive morality, rules of positive morality, or positive moral rules. 4. Laws metaphorical or figurative, or merely metaphorical or figurative.
The divine laws and positive laws are laws properly so called.—Of positive moral rules, some are laws properly so called, but others are laws improper. The positive moral rules which are laws improperly so called, may be styled laws or rules set or imposed by opinion: for they are merely opinions or sentiments held or felt by men in regard to human conduct. A law set by opinion and a law imperative and proper are allied by analogy merely; although the analogy by which they are allied is strong or close.—Laws metaphorical or figurative, or merely metaphorical or figurative, are laws improperly so called. A law metaphorical or figurative and a law imperative and proper are allied by analogy merely; and the analogy by which they are allied is slender or remote.
viiiConsequently, positive laws (the appropriate matter of jurisprudence) are related in the way of resemblance, or by close or remote analogies, to the following objects. 1. In the way of resemblance, they are related to the laws of God. 2. In the way of resemblance, they are related to those rules of positive morality which are laws properly so called: And by a close or strong analogy, they are related to those rules of positive morality which are laws set by opinion. 3. By a remote or slender analogy, they are related to laws metaphorical, or laws merely metaphorical.
The principal purpose or scope of the six ensuing lectures, is to distinguish positive laws (the appropriate matter of jurisprudence) from the objects now enumerated: objects with which they are connected by ties of resemblance and analogy; with which they are further connected by the common name of “laws”; and with which, therefore, they often are blended and confounded. And, since such is the principal purpose of the six ensuing lectures, I style them, considered as a whole, “the province of jurisprudence determined.” For, since such is their principal purpose, they affect to describe the boundary which severs the province of jurisprudence from the regions lying on its confines.
The way which I take in order to the accomplishment of that purpose, may be stated shortly thus.—I. I determine the essence or nature which is comixmon to all laws that are laws properly so called: In other words, I determine the essence or nature of a law imperative and proper. II. I determine the respective characters of the four several kinds into which laws may be aptly divided: Or (changing the phrase) I determine the appropriate marks by which laws of each kind are distinguished from laws of the others.
And here I remark, by the by, that, examining the respective characters of those four several kinds, I found the following the order wherein I could explain them best: First, the characters or distinguishing marks of the laws of God; secondly, the characters or distinguishing marks of positive moral rules; thirdly, the characters or distinguishing marks of laws metaphorical or figurative; fourthly and lastly, the characters or distinguishing marks of positive laws, or laws simply and strictly so called.
By determining the essence or nature of a law imperative and proper, and by determining the respective characters of those four several kinds, I determine positively and negatively the appropriate matter of jurisprudence. I determine positively what that matter is; and I distinguish it from various objects which are variously related to it, and with which it not unfrequently is blended and confounded. I show moreover its affinities with those various related objects: affinities that ought to be conceived as precisely and clearly as may be, inasmuch as xthere are numerous portions of the rationale of positive law to which they are the only or principal key.
Having suggested the principal purpose of the following treatise, I now will indicate the topics with which it is chiefly concerned, and also the order wherein it presents them to the reader.
I. In the first of the six lectures into which the treatise is divided, I state the essentials of a law or rule (taken with the largest signification that can be given to the term properly). In other words, I determine the essence or nature which is common to all laws that are laws properly so called.
Determining the essence or nature of a law imperative and proper, I determine implicitly the essence or nature of a command; and I distinguish such commands as are laws or rules, from such commands as are merely occasional or particular. Determining the nature of a command, I fix the meanings of the terms which the term “command” implies: namely, “sanction” or “enforcement of obedience”; “duty” or “obligation”; “superior and inferior”.
II. (a) in the beginning of the second lecture, I briefly determine the characters or marks by which the laws of God are distinguished from other laws.
xiIn the beginning of the same lecture, I briefly divide the laws, and the other commands of the Deity, into two kinds: the revealed or express, and the unrevealed or tacit.
Having briefly distinguished his revealed from his unrevealed commands, I pass to the nature of the signs or index through which the latter are manifested to Man. Now, concerning, the nature of the index to the tacit commands of the Deity, there are three theories or three hypotheses: First, the pure hypothesis or theory of general utility; secondly, the pure hypothesis or theory of a moral sense; thirdly, a hypothesis or theory mixed or compounded of the others. And with a statement and explanation of the three hypotheses or theories, the greater portion of the second lecture, and the whole of the third and fourth lectures, are exclusively or chiefly occupied.
That exposition of the three hypotheses or theories, may seem somewhat impertinent to the subject and scope of my Course. But in a chain of systematical lectures concerned with the rationale of jurisprudence, such an exposition is a necessary link.
Of the principles and distinctions involved by the rationale of jurisprudence, or of the principles and distinctions occurring in the writings of jurists, there are many which could not be expounded correctly and clearly, if the three hypotheses or theories had not been expounded previously. For xiiexample: Positive law and morality are distinguished by modern jurists into law natural and law positive: that is to say, into positive law and morality fashioned on the law of God, and positive law and morality of purely human original. And this distinction of law and morality into law natural and law positive, nearly tallies with a distinction which runs through the Pandects and Institutes, and which was taken by the compilers from the jurists who are styled “classical.” By the jurists who are styled “classical” (and of excerpts from whose writings the Pandects are mainly composed), jus civile is distinguished from jus gentium, or jus omnium gentium. For (say they) a portion of the positive law which obtains in a particular nation, is peculiar to that community: And, being peculiar to that community, it may be styled jus civile, or jus proprium ipsius civitatis. But, besides such portions of positive law as are respectively peculiar to particular nations or states, there are rules of positive law which obtain in all nations, and rules of positive morality which all mankind observe: And since these legal rules obtain in all nations, and since these moral rules are observed by all mankind, they may be styled the jus omnium gentium, or the commune omnium hominum jus. Now these universal rules, being universal rules, cannot be purely or simply of human invention and position. They rather are made by men on laws coming from God, or from the intelligent xiiiand rational Nature which is the soul and the guide of the universe. They are not so properly laws of human device and institution, as divine or natural laws clothed with human sanctions. But the legal and moral rules which are peculiar to particular nations, are purely or simply of human invention and position. Inasmuch as they are partial and transient, and not universal and enduring, they hardly are fashioned by their human authors on divine or natural models.—Now, without a previous knowledge of the three hypotheses in question, the worth of the two distinctions to which I have briefly alluded, cannot be known correctly, and cannot be estimated truly. Assuming the pure hypothesis of a moral sense, or assuming the pure hypothesis of general utility, those distinctions are absurd, or are purposeless and idle subtilties. But, assuming the hypothesis compounded of the others, those distinctions are significant, and are also of considerable moment.
Besides, the divine law is the measure or test of positive law and morality: or (changing the phrase) law and morality, in so far as they are what they ought to be, conform, or are not repugnant, to the law of God. Consequently, an all-important object of the science of ethics (or, borrowing the language of Bentham, “the science of deontology”) is to determine the nature of the index to the tacit commands of the Deity, or the nature of the signs xivor proofs through which those commands may be known.—I mean by “the science of ethics” (or by “the science of deontology”) the science of law and morality as they respectively ought to be: or (changing the phrase) the science of law and morality as they respectively must be if they conform to their measure or test. That department of the science of ethics, which is concerned especially with positive law as it ought to be, is styled the science of legislation: that department of the science of ethics, which is concerned especially with positive morality as it ought to be, has hardly gotten a name perfectly appropriate and distinctive.—Now though the science of legislation (or of positive law as it ought to be) is not the science of jurisprudence (or of positive law as it is), still the sciences are connected by numerous and indissoluble ties. Since, then, the nature of the index to the tacit commands of the Deity is an all-important object of the science of legislation, it is a fit and important object of the kindred science of jurisprudence.
There are certain current and important misconceptions of the theory of general utility: There are certain objections, resting on those misconceptions, which frequently are urged against it: There are also considerable difficulties with which it really is embarrassed. Labouring to rectify those misconceptions, to answer those objections, and to solve or extenuate those difficulties, I probably dwell upon xvthe theory somewhat longer than I ought. Deeply convinced of its truth and importance, and therefore earnestly intent on commending it to the minds of others, I probably wander into ethical disquisitions which are not precisely in keeping with the subject and scope of my Course. If I am guilty of this departure from the subject and scope of my Course, the absorbing interest of the purpose which leads me from my proper path, will excuse, to indulgent readers, my offence against rigorous logic.
II. (b) At the beginning of the fifth lecture, I distribute laws or rules under two classes: First, laws properly so called, with such improper laws as are closely analogous to the proper; secondly, those improper laws which are remotely analogous to the proper, and which I style, therefore, laws metaphorical or figurative.—I also distribute laws proper, with such improper laws as are closely analogous to the proper, under three classes: namely, the laws properly so called which I style the laws of God; the laws properly so called which I style positive laws; and the laws properly so called, with the laws improperly so called, which I style positive morality or positive moral rules.—I assign moreover my reasons for marking those several classes with those respective names.
Having determined, in preceding lectures, the characters or distinguishing marks of the divine laws, I determine, in the fifth lecture, the characters xvior distinguishing marks of positive moral rules: that is to say, such of the laws or rules set by men to men as are not armed with legal sanctions; or such of those laws or rules as are not positive laws, or are not appropriate matter for general or particular jurisprudence.—Having determined the distinguishing marks of positive moral rules, I determine the respective characters of their two dissimilar kinds: namely, the positive moral rules which are laws imperative and proper, and the positive moral rules which are laws set by opinion*.
* The following correction and explanation may be placed conveniently here.
In the first lecture, I affirm universally of positive moral rules, that they are laws improperly so called; or I limit the expression “positive moral rules” to the laws improperly so called which are laws set by opinion. But this is an error. For, as I have intimated above, and as I show in the fifth lecture, there are laws imperative and proper to which the expression is applicable.
In strictness, declaratory laws and laws abrogating laws belong to the kind of laws which are laws metaphorical or figurative; and laws of imperfect obligation, in the sense of the Roman jurists, belong to the kind of laws which are laws metaphorical or figurative, or to the kind of laws which are laws set by opinion. But, though laws of those three sorts are laws improperly so called, they are closely connected with positive laws, and are appropriate subjects of jurisprudence. Accordingly, I exclude improper laws of those three sorts from laws metaphorical or figurative and laws set by opinion: and enumerating, in the first lecture, the classes of improper laws, I place those three sorts on a level with the two kinds of which those three sorts are strictly limbs or members.
The divine law, positive law, and positive morality, are mutually related in various ways. To xviiillustrate their mutual relations, I advert, in the fifth lecture, to the cases wherein they agree, wherein they disagree without conflicting, and wherein they disagree and conflict.
I show, in the same lecture, that my distribution of laws proper, and of such improper laws as are closely analogous to the proper, tallies, in the main, with a division of laws which is given incidentally by Locke in his Essay on Human Understanding.
II. (c) At the end of the same lecture, I determine the characters or distinguishing marks of laws metaphorical or figurative. And I show that laws which are merely laws through metaphors, are blended and confounded, by writers of celebrity, with laws imperative and proper.
II. (d) In the sixth and last lecture, I determine the characters of laws positive: that is to say, laws which are simply and strictly so called, and which form the appropriate matter of general and particular jurisprudence.
Determining the characters of positive laws, I determine implicitly the notion of sovereignty, with the implied or correlative notion of independent political society. For the essential difference of a positive law (or the difference that severs it from a law which is not a positive law) may be stated generally in the following manner. Every positive law, or every law simply and strictly so called, is set by a sovereign person, or a sovereign body of persons, xviiito a member or members of the independent political society wherein that person or body is sovereign or supreme. Or (changing the phrase) it is set by a monarch, or sovereign number, to a person or persons in a state of subjection to its author.
To elucidate the nature of sovereignty, and of the independent political society that sovereignty implies, I examine various topics which I arrange under the following heads: First, the possible forms or shapes of supreme political government; secondly, the limits, real or imaginary, of supreme political power; thirdly, the origin or causes of political government and society. Examining those various topics, I complete my description of the limit or boundary by which positive law is severed from positive morality. For I distinguish them at certain points whereat they seemingly blend, or whereat the line which divides them is not easily perceptible.
The essential difference of a positive law (or the difference that severs it from a law which is not a positive law) may be stated generally as I have stated it above. But the foregoing general statement of that essential difference, is open to certain correctives. And with a brief allusion to those correctives, I close the sixth and last lecture.
───────
xixIn 1831 I published an Outline of my Course: Which outline, carefully corrected and somewhat enlarged, I append to the following treatise. For the following treatise is a detached portion of the Course: And unless the disquisitions composing the treatise be viewed with their relations to the subject and scope of the Course, their pertinence and importance can hardly be seen completely.
═══════
From the foregoing sketch of the following treatise, the reader may gather the principal scope of the latter: he may gather moreover the topics with which it is chiefly concerned, and also the order wherein it presents them to his attention.
That the reader may turn readily from topic to topic, I have placed in the margin of the treatise a running index to its matter.
I endeavoured to give to the style through which that matter is conveyed, brevity, clearness, and ease, as well as the requisite precision. But I could not have expressed that matter with that indispensable precision, unless I had resorted occasionally to long and intricate circumlocutions. And this the reader will be pleased to remember, in case he shall find that the style is sometimes crabbed and tedious.
The following treatise is not proffered exclusively to those who are engaged specially in studying the science of jurisprudence. For the nature or essence xxof law, and the nature or essence of morality, are of general importance and interest; and he who would know exactly the natures of law and morality, must clearly apprehend the distinctions which the treatise affects to determine. Accordingly, the matter of the treatise is so arranged and expressed, that any reflecting reader, of any condition or station, may, I think, understand it.
I have stated in the beginning of my preface, that the six lectures or essays composing the following treatise are made out of ten lectures which I delivered at the University of London. These (I may venture to add) were heard with some approbation, by an instructed and judicious audience. Imboldened by that approbation, I submit them, in their present form, to the judgment of a larger public.