John Austin is normally considered the father of “Legal Positivism” by formulating what has been frequently criticised as a crude “command theory of law”, which could be briefly summarised as laws are simply commands by a sovereign backed up by sanctions. This theory, formulated in the 19th century, has since been, supposedly, torn apart by other legal philosophers and has very few adherents today.

However Roger Cotterrell in his book The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy provides a fascinating and careful analysis of John Austin’s legal theory which suggests that his theory has been misread because his critics neglected key elements of his moral and political theory. When those elements are understood a lot of criticisms against him, namely the failure of his theory to account for rules of recognition and laws empowering others to make laws, etc, are dissipated.

The reason why I want to revisit Austin’s theory because it has some fascinating implications, for example, his theory argues that judges are effectively secondary legislators, like any UK ministry or the US president which can legislate by passing executive orders. On his theory a judge is effectively an official or functionary of the sovereign like any Secretary of State with delegated powers of legislation. And while law is distinguished from morality, but because judges can legislate by precedent they can effectively incorporate morality in every judgement by simply legislating them into the law every time they pass judgement.

However to grasp the nuance and sophistication of his theory it is necessary to grasp the proper referents of the key concepts of his theory, namely, (1) Law broadly speaking and Positive morality, (2) Sanctions as Nullity, (3) The Sovereign as a Pre-Legal Institution.

(1) Law Broadly Speaking and Positive Morality
While Austin’s main topic concerns positive law, or commands issued by a political sovereign, he acknowledges that law does have a broader referent than commands by a political sovereign. His more general definition of law is: “a rule laid down for the guidance of an intelligent being by an intelligent being having power over him”. Thus, this definition encompasses a wider range of referents than merely political sovereigns, it includes both divine law, where God has power over his men, as well as all kinds of other authorities in this world where men have power over other men, e.g. clerics over their congregants, employers over their employees, parents over their children, teachers over their pupils. etc. These authorities and personnel clearly have power over their “subjects” and can issue rules and thereby “laws” properly speaking, to the people subject to them.

Further, Austin argues that the opinions or sentiments of the masses qua collective can have power over individuals via conventions and customs, etc, although these are not laws “properly” but “laws by analogy” as there’s no one issuing commands or orders unlike employers or clerics.

However, both the law by analogy and the other laws Austin groups them as “positive morality”, which are rules prescribed by human beings for other human beings. Thus, generally rules or “laws” prescribed by people for other people are grouped under “Positive Morality”, from clerics to parents or the masses, these are “sources” of positive morality.

One might wonder why I flog the point about positive morality so much when the main concern is with positive law, that is, commands/orders issued by a political sovereign, I can only at this stage issue promissory notes and assure you that eventually we can see how positive morality will come into play especially in determining the nature of the sovereign.

(2) Sanctions as Nullity
Let’s recall Austin’s definition of positive law: laws are commands of a sovereign backed up by sanctions. As has been argued by many since, especially by Hart, there are many laws which does not seem to fit this definition. If a law says that a will is valid only if witnessed by two people, where’s the sanction? If a law says that the President shall have power to issue health directives, what’s the sanction? If a law says that Parliament shall have full power to legislate, where’s the sanction?

To understand Austin’s response to this we need to understand that Austin did not have a “liberal” view of law. Unlike most “rule of law” advocates which sees laws as constrains on government action or as defending individual liberty, Austin’s “command” oriented conception of law sees law as essentially instruments of government or administration. Also, Austin was militantly hostile against the idea of “natural rights” or “natural liberties”. For him, there are no natural rights or liberties floating in ethereal space.

From the preceding considerations the following is entailed: duties are more fundamental than rights. An individual’s ability to make a claim upon another in the legal system, thereby assert a right, is derivative of the law’s commands. Only if the law commands someone to perform a duty does someone have a right to claim the performance, thus commands to someone backed up by sanctions must be prior analytically to the existence of a right.

With this background in place we can appreciate where the “sanction” is in the examples outlined above. Austin goes on to argue that a sanction can be “the smallest chance of incurring the smallest evil”. This suggests a much more expansive referent of sanction than just jails, fines, lash or death. Thus any *disadvantage* which directly or indirectly follows from non-compliance with a law (“the smallest chance”), would constitute a “sanction”.

To go back to our examples, a failure to make a will in the proper form will lead to the sanction of a frustrated intention or disability to attain a certain legal effect, to bequeath one’s goods to a specified party in the will. In that sense, the law can be analysed as “Make a will of this form or you will not be able to attain the legal effect in the will.” Austin also accepts that the sanctions can be threatened at the end of a chain of legal obligations, not merely at each law. Thus, violating traffic laws, for example, can create a legal obligation to appear in court to answer charges or face contempt, and so on, but at the end, the traffic laws are laws only if a sanction awaits at the end of the chain of legal obligations in the fine.

To analyse power conferring laws in Austinian terms will require an exposition of (3) and the nature of sovereignty, however some preliminary remarks will suffice here. There are three ways to breakdown laws conferring powers: (a) we can go by the “nullity-as-sanctions” route and argue that laws conferring powers really are laws circumscribing the limits of one’s actions, and that if they break the law or bounds of the limits they will suffer the sanction of having their acts nulled. Thus, a judge who exceeded his authority in some decision shall be “sanctioned” by having his decision overturned. (b) Alternatively, officials who exceed their powers can be sanctioned in their official capacity via either by positive law or by social sanctions, e.g. gets suspended, demoted or even fired. However invoking “social sanctions” seem to be appealing to a non-legal concept to explain a legal point, I’ll need to get back to this point when I explain (3) where Austin believes that judges and ordinary citizens have been delegated sovereign powers to pass laws or create contracts, etc. Finally, and in my opinion the most coherent analysis (c) asking what sanctions attach to the power holder is a mistake in the first place. Remember Austin’s theory is that rights only arise when there is a duty upon others to respect that right. Thus, what law conferring powers really do is to command everyone else to respect the authority on the official who has been conferred the power or be sanctioned. Thus, a law conferring a local city council or county powers to make local regulation would essentially be commands to all members of that county to respect the county’s valid laws or be subject to being sanctioned by that authority or even by the greater authority, etc.

(As a side note, Hart himself actually conceded that it is possible to incorporate power conferring laws within this framework within the nullity-as-sanction understanding.)

(3) The Sovereign as a Pre-Legal Institution
A lot of criticism of Austin’s theory focus on the point about sovereign. They argue that what constitutes the sovereign itself can only be recognised within a legal system, it has to be specified by positive law, so how could there be commands from the sovereign to itself to declare itself sovereign or else.. or else what?

However for Austin we need to understand that for him, the sovereign which issues commands is not a legal institution, it is a pre-legal political institution. To understand this point we need only to look at Austin’s identification of the sovereign in the UK, keeping in mind that he wrote this in the 19th century. Austin argued that the sovereign in the UK is the monarch, the lords and the electorate of the UK. For orthodox English lawyers this seems puzzling. Surely the doctrine of Parliamentary sovereignty is that it is the House of Commons, with the Lords and Monarch, who is legally sovereign. But this confusion only arise from the misunderstanding that Austin here is trying to specify a legal conception of sovereignty, but his conception of sovereignty is pre-legal, it is a political concept, and politically it is not the MPs or House of Commons but the electorate who forms part of the sovereign body of the UK issuing the commands which constitutes the laws of the UK.

In this sense, Austin’s theory is not strictly a theory of legal positivism where the law can only be determined and recognised “from within” the law, ultimately the law at the bottom is derivative of a political power, it is as such a proto-Legal Realist theory where the law is an exercise of pre-legal political power and institutions and is to be analysed in these terms.

If the Sovereign is a pre-legal concept then it has to be determined on pre-legal terms. Austin discusses several characteristics of such a sovereign, e.g. habitually obeyed, legally unlimited, etc, etc. Thus, to analyse a polity like the United States, it seems like here we have as a “sovereign” the Constitution which is supreme above all institutions of men, isn’t this an example of a sovereign which is legal? Austin however is adamant that law is an instrument of people, it cannot rule other people by itself, only at the will of another. So on Austin’s theory, since the Constitution is amendable by the people, therefore, the people are the ultimate sovereigns in the US, the Constitution by command and order of the People. However, even if we had a polity with an unamendable constitution, then various government institutions like the legislature or judiciary would be sovereign, not because pieces of paper say they were, but because those institutions are, as a political fact, habitually obeyed.

However from here we can see what role positive morality would play. If Sovereignty itself is a civic-political fact, then it would be determined by civic or political facts, positive morality as such would have a large, if not a key role, in determining who the sovereign is and in inducing obedience to the institution identified as sovereign. As the law cannot confer sovereignty, as sovereignty transcends the law, we must look outside the law to determine who is sovereign, and political facts and positive morality will determine the sovereign. Private morality itself even limit the range of actions such a sovereign can take before mass disobedience takes place and the sovereign is not longer habitually obeyed.

The Delegation of Sovereign Power

From here we get to the interesting part of Austin’s theory. Austin discusses the idea of “delegated sovereign powers”, where the sovereign delegates to various bodies, even all citizens, power to make laws. Whenever citizens incorporate a company or sign a contract, new commands are issued from the Sovereign commanding the parties involved to honour the contract or else. However, this “delegation” is interestingly not wholly a legal matter. Various bodies can exercise “delegated powers” without express statutory or legal authorisation from the Sovereign. While obviously the Sovereign can create positive laws delegating sovereign powers, it is not necessary for it to do so. Austin here appeals to the idea of “tacit command” to refer to laws created by such delegates, they are commands of the Sovereign proper as long as the Sovereign doesn’t step in to override them. After all in common law systems, how precedent binds and works, the hierarchy of courts, is rarely regulated by legislation. It was the House of Lords in 1967, not Parliament, which declared that they would not be bound by their own precedent, this has become law, not because of legislation but because everyone else continues to habitually obey judicial orders, even if they depart from precedent.

The determination of delegated powers as such is partially a legal matter and partially a political matter. Like determining who the sovereign is, determining institutions with delegated powers is a political observation of seeing who is habitually obeyed and under what circumstances.

From here we can understand Austin’s point that judges are subordinate legislators. Whatever legal verbiage judges use to try to claim that they are merely declaring what the law is rather than making law, the reality is that judges systematically create new laws, rules, and even amend the Constitution. However they are sovereign not because pieces of paper give them the legal authority to interpret the Constitution or amend or suspend it, but because the true Sovereigns, the People, do not issue orders to contradict them, and their orders are still habitually obeyed. Thus, Americans may complain about how the Supreme Court may issue “unconstitutional” rulings, but because the judges are still obeyed by and large, thus the Austinian implication is that the Constitution has been effectively suspended by the judges by tacit command by the People. The Constitution maybe the supreme law of the land, but the Constitution exists only by the will of the people, and can be amended, or suspended, by the people at their will, even by processes or procedures outside of the Constitution’s amending procedures. Remember, the Sovereign is legally unlimited, it cannot be bound by the Constitution itself, thus the People cannot be bound to the Constitution’s own processes for amending or repealing Constitutional provisions and always possess the inherent political power to suspend their own Constitutions and laws. In a way this is analogous to the doctrine that Parliament cannot pass laws to bind itself, it can simply amend any such self-binding law at will, likewise the Sovereign or People cannot pass laws to bind itself to the Constitution, it can always suspend or supersede the Constitutional provisions at will.

If judges are legislators, then even though Austin’s theory prima facie appears to separate law and morality, in the end we can see how they come together. As judges are legislators they are at liberty the legislate morality and incorporate those laws into their judgements at anytime of their choosing. Contra most positivist theory where the judge must only concern himself with positive law and ignore morality, as a subordinate legislator the judge is at liberty always to just legislate morality into his judicial decisions.

Austinian Legal Realism

Austin obviously did not exposit a full legal realist theory as it has come to be understood in the American or Scandinavian sense, however I think it is highly arguable that his theory is a legal realist theory, albeit of a very peculiar kind. It is a *realism about nature of law creating authorities*. He shares with the later realist the view that the law are instruments of political power, that to determine “the law” political analysis is necessary, and “the law” is subject to political power.

Thus, to extrapolate from Austin, the words on pieces of paper like the Constitution is not as important as observing the behaviour of judges and the true political sovereigns, i.e. the People. Even if the 1st Amendment says that Congress shall pass no law prohibiting freedom of speech and press, if Congress and judges legislate and uphold congressional laws protecting official secrets and gagging reporters during trials, then they effectively superseded the Constitution, with tacit approval from the People, by whose will alone the Constitution has effect and which can be suspended or amended by the People’s inherent sovereign power, not merely by following the Constitution’s own procedures. Even though the Bill of Rights may say that the right to bear and keep arms shall not be infringed, yet the People by and large has tacitly commanded, through various legislators and courts, that the guns of prisoners may be confiscated and that they do not have the right to bear and keep those arms in prisons.

As such, what this theory will entail, even if Austin himself did not take that step, is a realism about the limits of formal analysis of the law. Whatever is written on pieces of paper like the Constitution, or statute books or even judicial precedent, ultimately it is what the Sovereign both overtly or tacitly commands through various political institutions, which determines what the law is. And most vitally, his theory, far from banishing positive morality from legal analysis, makes it an important factor, for positive morality normally is the dominant factor which determines who the sovereign or their delegate are and where they are located. Furthermore, if by uncovering the political nature of institutions which exercise delegated sovereign power like the courts, we can now say that they have full power to “legislate morality” or appeal to positive morality in their judicial determinations as they are ultimately, political creatures, not creatures purely of the law

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