Austin Analytical jurisprudence logically analyze the structure what idea of law involves NOT the function of law

law o Function of law Science of Legislation NOT really concerned with utilitarianism greatest happiness for greatest number HLA Hart argues that enabling people to do things as well as tells them what to do BUT not what Austin was concerned with Bentham SIGNIFICANTLY different view on how sanctions support law o Austin smallest chance of incurring the smallest evil pain if do not comply something unpleasant Reward held out for compliance would indicate a promise or inducement but NOT a command on the basis of ordinary usage of the word which specifies non-optional conduct Imperfect laws lacking sanctions completely, are NOT laws in the Austinian sense o Bentham WHY couldnt sanction be a reward? Sticks AND CARROT incentives PROBLEM of Wills/Contracts disappears since when make will in right form = rewarded and will take effect Therefore easy way out of command theory for Bentham BUT destroys idea of Command DIFFICULT to think back to reward not logical thus Austin appears more logical (a) Sovereignty Austins Sovereignty Start with assumption law as a command NOW assess who is commander sovereign who issues legal commands to the subjects relationship of power between sovereign and subjects o ESSENTIAL note that Austin ALWAYS means by the sovereign the office or institution which embodies supreme authority NEVER the individuals who occupy office abstract concept (a) is identified sociologically: o (i) positive mark look at a society/population are numerical bulk of people/population habitually obeying a particular figure/authority a determinate and common superior Determinate Superior sovereign is clearly identifiable NO controversy Common Superior Population NOT fighting amongst themselves for different sovereigns worst case = civil war Cant have sovereign UNTIL all facing same direction and recognizes sovereign authority o (ii) Negative mark that individual or body is NOT itself in a habit of obedience to any determinate human superior Where apparent sovereign ALWAYS takes orders from others ie. Government of Colony

Sociological Mark not speculating philosophically simply observing what people are doing whether habitually obeying or not

THUS very different from Hobbes = social contract fictional social contract which people of society might make together to create government for themselves here done because without government disorder, chaos, anarchy NEED someone above them to hold all in order o INSTEAD closer to Bentham habit of obedience introduces a factual, indeed sociological, criterion of the existence of sovereignty o NOT social contract RATHER habitual obedience existence is a political fact NOT a matter of right/wrong Austin NEVER such a social contract never existed fiction LETS stick to facts people without choice very often born into society THUS cannot moralize and must look at facts

(b) Legally Unlimited: Supreme power limited by positive law, is a flat contradiction in terms Every supreme government is legally despotic. (ruler with absolute power) Sovereign CANNOT be limited by law NOT possible to have legal limits on sovereign power o BUT limited by positive morality public opinion to provide constraints Supreme power limited by positive law is a flat contradiction in terms WHY because no law EXCEPT what sovereign commands THUS nonsense to command itself to issue commands for self o Austin View towards Constitution SOME is not law at all, while others simply deals with bits of sovereign power NOT that it controls as a whole UPPERMOST that constitutional law deals with agencies of government particular parts of its structure ie. electoral system, how Parliament operates, that affects appointment/jurisdiction of judges etc great mix of rules that relate to different things Constitutional Conventions that are not LAW as such BUT important since Constitution cannot work without Austin would argue THESE not positive law RATHER positive morality MEANING rules set by public opinion set and authorized by public opinion REALLY like moral rules OTHER kinds of Constitutional Laws Positive Law where sovereign commands laws/authorizes creation of law relating to agencies of government Parliament NOT sovereign THESE are agencies o Bentham Concept Leges in principem fundamental laws NOT natural law (hostile towards that) rules which established which control how government operates ie. Written Constitution Rules BUT not explained HOW it comes into being

Logical problem that not laws so HOW can they be laws at all? Controlled NOT commanded by sovereign NOT clear how attain legal character For Austin THESE are Positive Morality laws

(c) Identifying the Sovereign in Practice THIS part often most criticized In the UK (Monarch, Lords + electorate of the Commons) o HoC is representative body supposed to represent people IF looking for ultimate source it is the Monarch HoL and electorate LARGE group of people o Sovereign in a sense AUTHORISES through agencies of law making o * sovereign exists BEFORE the law authority without which creation of law is IMPOSSIBLE without electorate NO HoC thus agency only exists because created based on sovereign power o (vs. constitutional lawyers sovereign IS HoC sovereignty of Parliament WITHIN legal system is highest authority BUT in Austins view MUST look behind) o ARGUES COLLECTIVELY represented by the electorate of the Commons In the USA (the body of persons that can amend the constitution) o Constitution put in place by humans THUS not only thing to look at authority BEHIND lies with the people who created it o Assuming it can be amended ULTIMATE authority is people who have power to amend it In the EU? o IS IT a new legal order NOT based on sovereign power RATHER based on Treaties so that what look like sovereign of countries are actually now subject to Treaties that have formed Union o Austins answer likely to have been that all sovereign powers agreed together to form Union conservative view of things

Austin is NOT seeking a legal sovereign (an active, ultimately authoritative lawmaker) RATHER he is identifying ONLY the location of ultimate authority underlying the constitutional order, the institution recognised as having authority to confirm or amend that order (d) The sovereign as pre-legal (the sovereign provides the ultimate guarantee of law, and does not depend on law for its identity though that identity might be expressed in law) Constitutional Sovereignty Vs. Austins Constitutional Pre-legal form Cotterrell Chapter - ** (e) The sovereign as an institution ([old] the King is dead; long live the [new] King!

Continuous statement The monarch WHOEVER might be at that time follows Hobbes Hart criticize WHAT happens when old king dies and new one is 6 year old HOW talk about sovereignty then? Surely something else going on require time to acquire time to gain obedience Austin argues that CAN bind EACH body of a sovereign ie. the Queen in Parliament, British Parliament because each part is NOT itself sovereign Austins theory of the rule of men of government using law as an instrument of POWER -

(f) The sovereign makes law indirectly Command, Sanction, Duty, Commander, Circumstances in which he can command NOW mechanics of it all how sovereignty is actually exercised Sovereignty RPE legal MOST what sovereign does tacit commands unstated where sovereign accepts what done in its name IF not accepted rebellion habit and obedience crumble people unhappy ultimately revolution BUT when things stable tacit command what done in its name NOT a disadvantage RATHER advantage law making power cascades down to various agencies Austins Theory of the centralised state PRAISES political centralisation praises as political society where authority is well gathered together CLEAR line of authority how rounds up towards sovereignty centralisation good thing in that sense CRITICS fail to realise that Austins concepts are formulated with a clear awareness of the sociological questions they entail -

The Judge as delegate of the sovereign AUSTIN also believes in local government THUS delegation ALSO important and good o Dispersion of power NOT a release of it o DIFFICULTY in stating that judiciary is mere delegate of some other authority o BUT in reality Austin claims that they must act as representatives of the constitutional order of which they are part o Positive Morality a safeguard for judiciary law MOST important agencies who develop law on behalf of sovereign judges delegates of sovereign given authority to manage and develop the law DIFFERENCE to Bentham judge made law = dog-law = RATHER judges are necessary makers of law get authority to do so as handed down to them from sovereign SHOULD BE well educated, well trained, and should have in their minds greatest happiness for greatest number

BUT Austins way of thinking of judges AT ODDS with common law thinking ie. 17th C common law developed by Judges as spokespeople for community representing needs of people whom curse see before them Austin influenced by German legal thought before lectures given in London jurists thought something which had to be codified and worked out in so far logically worked can be worked down top down conception of law RATHER than UK bottom top -