John Austin (1790-1859)

The Province of Jurisprudence Determined (1832)

Lecture VI

Every positive law is set by a sovereign person or body to the

members of the independent political society wherein that person
or body is sovereign (supreme).

Distinguish a Sovereign from superiority or might:

The bulk of the given society are in a habit of obedience or

submission to an independent, determinate, and common superior

That individual or body (to whom such obedience is given) is not in a habit of
obedience to a determinate human superior.

Since bulk, habit of obedience, and independent are relative terms, the
abstraction of Sovereign or Independent Political Society cannot be precisely defined.

In such cases, the society (including its Sovereign) is a society political and
independent.

If a possible sovereign is in the habit of obedience to another, then that sovereign (and
its subjects) are not independent but rather a limb or member of the greater society
to which it habitually owes obedience.

Lecture VI (cont.)

A society in a state of nature is independent when composed of persons connected by

mutual intercourse, but not in the habit of obedience to a person or body. I.e. they
are not a political society.

Independent political societies, then, can in some ways be said to live in a state of
nature with one another.

International Law is not positive law. The duties it imposes are only enforced by
moral sanctions, or fear of incurring the wrath of more powerful sovereign(s).

Neither a weakness, nor occasional obedience to a more powerful sovereign destroys

a societies sovereignty or independence.

Lecture VI (cont.)

Every government, no matter how powerful:

Renders occasional obedience to commands of other governments

Defers frequently to international law

 Defers habitually to the opinions and sentiments of its own subjects (or at least a more
or less defined subset of subjects.)

None of these weaken the governments status as sovereign because it does not
habitually obey the commands of another.

A sovereign government may exercise its powers:

Directly

By delegation to representative(s) subject to a trust

The trust may be enforced legally (by positive law), or

By moral sanctions (fear that it will offend the community)

By delegation to representatives unconditionally

Lecture VI (cont.)

Austin does not buy the concept of separation of the powers of sovereignty (executive
(including judicial), and legislative), because under any known system, each distinct
party to which those powers may be given also exercise other types of powers.

Rather, he divides sovereignty into supreme and subordinate.

The supreme are the infinite political powers of the sovereign partly exercised and
partly dormant, but nevertheless existing.

The subordinate are those portions of the supreme powers of sovereignty which are
delegated to political subordinates as ministers and trustees.

Lecture VI (cont.)

Therefore, there is no such thing as sovereign:

Either the government at issue is totally subordinate, or

It is completely independent, or

It is jointly sovereign with the more powerful, and therefore simply a constituent
member of the more powerful sovereign.

When one government is formed from a union of states:

A Composite State is Formed when the overall government is now obeyed

throughout the old states.

A Supreme Federal Government is formed by the federal union of several

independent political governments which results in the central government together
with the governments of the forming societies being jointly sovereign in each of the
 forming states and also in the larger society formed. In such case neither the central
nor constituent governments are sovereign and supreme.

A System of Confederated States wherein each state is still truly sovereign, and the
acts of the central government are simply adopted, and enforced by, each state
without creating one single political society.

Lecture VI (cont.)

The power of a Sovereign is incapable of legal limitation, it being a flat contradiction

of terms to say that the positive law eminating from a Sovereign may limit that
Sovereign.

Constitutional law is simply positive morality, or a compound of positive morality and

positive law which fixes the structure of the given government.

Thus, although an act of the sovereign or its constituent members may be

unconstitutional, it cannot be illegal.

Unconstitutional actions of part of the sovereigns agents may be checked by:

Refusal of other agents to enforce the particular act

Refusal of the community to adhere to the act (moral sanction)

Lecture VI (cont.)

Liberty is, therefore, simply those areas which the sovereign has chooses to leave
within the discretion of the individual, realizing that the sovereign may at any time
abridge that liberty at its discretion.

Every supreme government is legally despotic. Whether a given government is good

or bad, free or despotic simply denotes whether we agree with its actions.

Those who divide governments between free and despotic are simply lovers of
democracy.

The true distinction is not the power of the government, for they all truly have
complete powers, rather whether it is so constituted as to be beneficial to the people.

A sovereign is not subject to the civil law, because he would thus be subject to
himself.

Lecture VI (cont.)

There are no sovereign rights with respect to the sovereigns relation to its people.

All rights have three parties:

The government which sets the right and enforces it

The ones on whom the right is conferred

 The ones who have a relative duty not to interfere with that right.

The proper end of every government is the happiness of the people, achieving this
happiness promotes obedience, which is also promoted by:

Custom

Prejudices (opinions and sentiments)

Habit

The tactic or actual consent of the people is not the true origin or permanence of
government only that they wish to escape a state of nature by living in a political
society and therefore tolerate whatever government exists.

Lecture VI (cont.)

Theory of the social contract is rejected:

1. The rights and duties of the government and governed flow only from the law of
God, positive law, and positive morality.

2. The hypothesis of an original covenant is therefore needless and useless.

3. The covenant would not bind original or following subjects, or original or following
sovereigns since there is no positive law or sovereign to enforce that contract.

4. Religious rationales would bind both sovereign and subjects without a covenant,
but would not bind following sovereigns or subjects.

5. The extent to which the sovereign would be bound by the opinions or expectations
of its subjects will always be limited by:

The extent (nature and uniformity) of the expectations of the subjects

The degree of clearness or precision with which they conceive the ends in which their
sentiments coincide.

6. The hypothesis has no foundation in fact.

7. All governments have changed or grown.

8. Conquest

Lecture VI (cont.)

Governments de jure and government de facto

1. De jure and also de facto (lawful, right, just, and being obeyed)

2. De jure, but not de facto (lawful, rightful, or just, but displaced)

 3. De facto, but not de jure (unlawful, unrightful, or unjust, but nevertheless being
currently obeyed)

4. Neither de facto nor de jure (not a government at all, but a former government
which one wishes still was)

In respect to positive law, the de jure distinction is without meaning, such distinction
is only appropriate for positive morality.

A sovereign established, is neither lawful nor unlawful with respect to its positive law,
and cannot be said to be legal or illegal. It simply is.