John Austin on International Law: a Report

Introduction

Positivist thinkers has famously challenged the proposition that international law is actually law. John Austin questioned how international law could be regarded as law without a sovereign, and H.L.A. Hart claimed that international law is law, but one which is comprised of primary rules. International legal thinkers who sought to answer these challenges often argued that secondary rules of international law have now been developed. Most prominently, the Rule of Recognition is often articulated through the theory of sources of international law. These claims are part of the positivist tradition in international legal thought which pushed away, throughout the 19th century, the theories of natural law which dominated the field in the previous centuries (see, e.g. the writings of Alberico Gentili, Hugo Grotius (1583-1645) and Emer de Vattel (1714-1767)).

International law has been dealt with in relation to, or in comparison with, international ethics or morality. This is evidenced by john Austin’s claim that international law is not law the proper sense of the terms but positive morality.

Consequently, what we call “international law” is, as Austin put it, actually “a law in name only.”

It is a form only of what he called “positive morality,” because whether it is enforced or not depends entirely on whether “nation-states” are willing to obey it.

He was a thinker on jurisprudence on the typical Hobbesian line of thinking. Austin defined a “law” as a rule laid down by a sovereign power for which obedience can be enforced ⎯ because there is some penalty for failing to obey it. Thus, as he saw it, for a “law” to be regarded as a “law,” there must be some legal sanction for not obeying it.

About John Austin

As a young man, John Austin’s family bought him a junior commission in the army and after five years’ service he began to study law in 1812. From 1818 to 1825 he practised, rather unsuccessfully, at the Chancery Bar. Austin was never a practical man but he impressed the circle of people around Jeremy Bentham with his powers of rigorous analysis and his uncompromising intellectual honesty. In 1826, when University College London, was founded, he was appointed its first professor of jurisprudence; at that time legal education on the most part was practical and it was nearly impossible to get a university degree in English law.

A key point for Austin is that to achieve legal reform (and reform of government and social institutions through law) one has to have a very clear understanding of the nature of law itself. The first task was to rid our understanding of law from the confusions and ‘mysteries’ of the common law tradition. Austin tried to do this by putting ‘positive law’ into a political framework, taken in considerable part from Hobbes: law was part of the political relations of sovereign and subject.

Central Aspects of Austin’s Theory

A. Analytic Jurisprudence

Austin was concerned to analyze the concept of a legal system and the central concepts used in legal discourse.

1. Reductive Analysis: Austin’s particular form of analysis was reductive. His intention was to analyze legal concepts in terms of non-legal concepts so that the whole realm of the law could be understood in non-legal terms — in particular, in psychological and sociological terms. This was part of an attempt by many philosophers to unify all knowledge with physics at the base.

B. Legal Positivism

1. The Descriptive/Prescriptive Distinction: Both as a substantive point of his legal theory and as a point of methodology, Austin drew a clear conceptual distinction between law as it is and law as it ought to be.
2. Test of Legal Validity: Because the law, for Austin, have any content whatsoever, there needs to be some test of legal validity that doesn’t depend on the content of the law. Like later positivists, Austin accepts a genetic test. The validity of law is determined by its origin or history. (E.g., was it passed by the required legislative bodies, signed by the required executive bodies, etc?)
3. Centrality of Rules: Law is a species of rules.

C. Command Theory of Law and the Theory of Legal Sovereignty

These two aspects of Austin’s theory give the basis for his specific pedigree test of legal validity. They are a part of his version of legal positivism but not, as we shall see later, an essential part of legal positivism itself.

Criticisms levelled at Austin’s views:

1. His description of laws as commands, producing a habit of obedience, misrepresents the nature of the authority given to law.
2. His requirement that sovereignty, as defined by him, is necessary for the existence of law unnecessarily denies the validity of primitive (and modern) customary law, including international law and constitutional law.
3. His alleged program to reduce the inchoate body of regulations to a set of simple rules (requests coupled with a threat of harm) is an impossible project. It is based on the radical empiricism of his day, but is out of touch with modern notions of scientific method.
4. His version of sovereignty (a determinate person or persons with no habit of obedience to another such person or group) is clumsy to the point of being inconceivable within modern legal systems. The same criticism can also be levelled against the related notion of the independent political society.
5. Austin has passed over or obscured the necessary relationship of law to moral values. This has been a major issue in the modern debates centred around the term “legal positivism.” Lon Fuller and, more recently, Ronald Dworkin have been major critics, maintaining that Austin has misrepresented, if not ignored, the unavoidable presence of morals within the law.

My project will mainly deal with the Second criticism (i.e. Austin on International law).

Positive Law according to John Austin

The matter of jurisprudence is positive law: law, simply and strictly so called: or law set by political superiors to political inferiors. But positive law (or law, simply and strictly so called) is often confounded with objects to which it is related by resemblance, and with objects to which it is related in the way of analogy: with objects which are also signified, properly and improperly, by the large and vague expression law.

“A law, in the most general and comprehensive acceptation in which the term, in its literal meaning, is employed may be said to be a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.”

Laws set by men to men are of two leading or principal classes: classes which are often blended, although they differ extremely; and which, for that reason should be severed precisely and opposed distinctly and conspicuously.

Of the laws or rules set by men to men, some are established by political superiors, sovereign and subject: by persons exercising supreme and subordinate government, in independent nations, or independent political societies. The aggregate of the rules thus established or some aggregate forming a portion of that aggregate, the term law, as used simply and strictly is exclusively applied. But, as contra-distinguished to natural law, or to the law of nature (meaning by those expressions, the law of God), the aggregate of the rules established by political superiors is frequently styled positive law, or law existing by position. As contra-distinguished to the rules which Austin styled positive morality, and on which he touched immediately the aggregate of the rules, established by political superiors, may also be marked commodiously with the name of positive law.

Closely analogous to human laws of this second class are a set of objects frequently but improperly termed laws, being rules set and enforced by mere opinion, that is, by the opinions or sentiments held or felt by an indeterminate body of men in regard to human conduct. Instances of such a use of the term law are the expressions – ‘The law of honour;’ ‘The law set by fashion;’ and rules of this species constitute much of what is usually termed ‘International law.’

The aggregate of human laws properly so called belonging to the second of the classes above mentioned, with the aggregate of objects improperly but by close analogy termed laws, Austin places together in a common class, and denote them by the term positive morality. The name morality severs them from positive law, while the epithet positive disjoins them from the law of God.

For the name morality (or morals), when standing unqualified or alone, denotes indifferently either of the following objects, namely, positive morality as it is, or without regard to its merits; and positive morality as it would be, if it conformed to the law of God, and were therefore deserving of approbation.

Positive Morality according to John Austin

Besides the human laws which Austin styles positive law, there are human laws which he styles positive morality, rules of positive morality, or positive moral rules.

The generic character of laws of the class may be stated briefly in the following negative manner. No law belonging to the class is a direct or circuitous command of a monarch or sovereign number in the character of political superior. In other words, no law belonging to the class is a direct or circuitous command of a monarch or sovereign number to a person or persons in a state of subjection to its author. But of positive moral rules, some are laws proper or laws properly so called: others are laws improper or laws improperly so called.

Some have all the essentials of an imperative law or rule: others are deficient in some of those essentials of an imperative law or rule: others are deficient in some of those essentials, and are styled laws or rules by an analogical extension of the term. The positive moral rules which are laws properly so called are distinguished from other laws by the union of two marks:

1. They are imperative laws or rules set by men to men.
2. They are not set by men as political superiors, nor are they set by men as private persons, in pursuance of legal rights.

Inasmuch as they bear the latter of these two marks, they are not commands of sovereigns in the character of political superiors. Consequently, they are not positive laws: they are not clothed with legal sanctions, nor do they oblige legally the persons to whom they are set. But being commands (and therefore being established by determinate individuals or bodies), they are laws properly so called: they are armed with sanctions, and impose duties, in the proper acceptation of the terms.

The positive moral rules which are laws improperly so called, are laws set or imposed by general opinion: that is to say, by the general opinion of any class or any society of persons. For example, some are set or imposed by the general opinion of persons who are members of a profession or calling: others, by that of person who inhabit a town or province: others, by that of a nation or independent political society: others, by that of a larger society formed of various nations.

A few species of the laws which are set by general opinion have gotten appropriate names – For example, there are laws or rules imposed upon gentlemen by opinions current amongst gentlemen. And these are usually styled the rules of honour, or the laws or law of honour – There are laws or rules imposed upon people of fashion by opinions current in the fashionable world. And these are usually styled the law set by fashion. There are laws which regard the conduct of independent political societies in their various relations to one another: Or rather, there are laws which regard the conduct of sovereigns or supreme governments in their various relations to one another. And laws or rules of this species, which are imposed upon nations or sovereigns by opinions current amongst nations, are usually styled the law of nations or international law.

Now a law set or imposed by general opinion is a law improperly so called. It is styled a law or rule by an analogical extension of the term. When we speak of a law set by general opinion, we denote, by that expression, the following fact: Some indeterminate body or uncertain aggregate of person regards a kind of conduct with a sentiment of aversion or liking: Or (changing the expression) that indeterminate body opines unfavourably or favourably of a given kind of conduct. In consequence of that sentiment, or in consequence of that opinion, it is likely that they or some of them will be displeased with a party who shall pursue or not pursue conduct of that kind. And, in consequence of that displeasure, it is likely that some party (what party being undetermined) will visit the party provoking it with some evil or another. The body by whose opinion the law is said to be set, does not command, expressly or tacitly, that conduct of the given kind shall be forborne or pursued. For, since it is not a body precisely determined or certain, it cannot as a body express or intimate a wish. As a body, it cannot signify a wish by oral or written words, or by positive or negative department. The so called law or rule which its opinion is said to impose, is merely the sentiment which it feels, or is merely the opinion which it holds, in regard to a kind of conduct.

On the prevailing tendency to confound what is with what ought to be law or morality, that is, first, to confound positive law with the science of legislation, and positive morality with deontology; and secondly, to confound positive law with positive morality, and both with legislation and deontology.

Criticism

It is also a common criticism that a ‘command’ model seems to fit some aspects of law poorly (e.g. rules which grant powers to officials and to private citizens – of the latter, the rules for making wills, trusts and contracts are examples), while excluding other matters (e.g. international law) which we are not inclined to exclude from the category ‘law’.

More generally, it seems more distorting than enlightening to reduce all law to one type. For example, rules that empower people to make wills and contracts perhaps can be re-characterised as part of a long chain of reasoning for eventually imposing a sanction (Austin spoke in this context of the sanction of ‘nullity’) on those who fail to comply with the relevant provisions. However, such a re-characterisation as this misses the basic purpose of those sorts of laws – they are arguably about granting power and autonomy, not punishing wrongdoing.

Austin assumes that God’s commands to us are the true morality. Austin distinguishes divine law/the true morality from “positive morality,” or the beliefs about what’s right/wrong, just/unjust that are held by the majority of people in some society. The positive morality of our society is correct insofar as it coincides with divine law and incorrect insofar as it deviates from it. It’s worth noting that Austin had an unorthodox view of the content of divine law. Austin believed that God commands us to be utility maximizers, making utilitarianism the true morality.

Austin’s command theory doesn’t work for international law, because there is no international sovereign, that is, no entity with the power to force all countries to obey international law. But Kelsen’s and Hart’s expedients allow international law to be treated as law “properly so called.”

Conclusion

The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law which actually exists, is a law, though we happen to dislike it or though it very from the text by which we regulate our approbation and disapprobation. This truth, when formally announced as an abstract proposition, is so simple and glaring that it seems idle to insist upon it. But simple and glaring as it is, when enunciated in abstract expressions the enumeration of the instances in which it has been forgotten would fill a volume.

Austin made a lasting impact for at least two reasons:

1. Austin argued for an analytical analysis of law.
2. Austin tied his analytical method to a systematic exposition of a view of law known as ‘legal positivism’.

It is always a simplification to generalise; however, it can be maintained that those who adhere to legal positivism do not deny that moral and political criticism of legal systems is important; instead they insist that a descriptive or conceptual approach to law is valuable, both on its own terms and as a necessary prelude to criticism.

Positive law consisted of those commands laid down by a sovereign (or its agents), to be contrasted to other law-givers, such as God’s general commands, or the general commands of an employer. The ‘sovereign’ was defined as a person (or collection of persons) who receives habitual obedience from the bulk of the population, but who does not habitually obey any other (earthly) person or institution. Austin thought that all independent political societies, by their nature, have a sovereign. Positive law should also be contrasted with ‘laws by a close analogy’ (which includes positive morality, laws of honour, international law, customary law, and Constitutional law) and ‘laws by remote analogy’ (e.g. the laws of physics).

Austin also wanted to include within ‘the province of jurisprudence’ certain ‘exceptions’ – items which did not fit his criteria but should nonetheless be studied with other ‘laws properly so called’: repealing laws, declarative laws, and ‘imperfect laws’ (laws prescribing action but without sanctions, a concept Austin ascribes to ‘Roman law jurists’).

In the criteria set out above, Austin succeeded in delimiting law and legal rules from religion, morality, convention and custom.

However, also excluded from ‘the province of jurisprudence’ were customary law (except to the extent that the sovereign had, directly or indirectly, adopted such customs as law), public international law and parts of constitutional law.

Austin’s sharp distinction between custom and law is replaced in various ways. Kelsen bases law on customary acceptance of law by the community in general, while Hart emphasizes the importance of customary acceptance by the legal community. Either of these expedients allows international law and constitutional law to be treated as law “properly so-called.”