John Austin Research Paper
John Austin was a legal positivist from the nineteenth century who constructed what is known as the command theory, which was the idea that the laws were nothing more than a command that “obliges a person or persons to a course of conduct” and a lack of compliance would require said people to receive a punishment (Austin 51).
Additionally, Austin believed that the law and morality were separate, and to discuss the idea of what laws should be does not take away from the fact they are still laws (52). While I believe that the principle idea of Austin’s theory is potentially viable in the idea that people do obey certain laws for fear of fines or imprisonment, and that a person or group in power governs the laws. I however, cannot agree unconditionally …show more content…
with his belief that in most cases such laws would be enacted without a level of morality that is recognized by society. Furthermore, that people would always abide by the law out of a fear of punishment. To explain my discontent with this idea, in the paragraphs to follow I will outline Austin’s theory in its complete form and explain his idea of laws as nothing more than commands. I will introduce the logic behind my argument to explain how the law and morality do intersect in certain ways, along with excerpts of philosophers such as H.L.A. Hart, Lon Fuller and Thomas Aquinas who also dissent portions of Austin’s theory. Lastly, I will present an idea of basic morality that can help to indicate to people when laws may have deviated from what could be deemed acceptable for an entire community.
Austin’s Theory
To understand if Austin’s theory is valid, we must first understand the methodology behind it. Austin’s primary objective was to prove what he believed to be the correct analysis of jurisprudence that had a foundation in science rather than morality and what would become known as legal positivitism.1 He argued there were two categories of the law the first being the Divine laws, which he considered to be equal to Natural laws that are set forth by God onto men. Next, Austin argued there are human laws, which are governed by men onto other men. He then divided the law further into separate categories, which he called positive law and positive morality (50). Austin classified laws such as “the law of honour, the law set by fashion…[and] International law” within positive morality (50). He believed these types of “objects” should not be regarded as laws. He argued these were laws that were “enforced by mere opinion” or the bias one group of people had regarding the proper outcome of a situation (Austin 50). Therefore, making a clear distinction from what he believed the laws should encompass. Austin argued that a law or a positive law could be defined as a command that “obliges a person or persons to a course of conduct” that is enforced by a “superior” individual or “sovereign” group of people (51). Thus, providing citizens with a general guideline as to what was deemed appropriate behavior by the group in power. Austin believed the citizens being governed did not retain a voice in the law, instead, he argued, “the power of affecting others with evil or pain, and of forcing them, through fear of that evil, to fashion their conduct to one’s wishes” (Austin 51). Moreover, to ensure that citizens remained in compliance he explained that a sense of fear of punishment from lack of compliance would force people to adhere strictly to the laws. Hence, his idea that morality and the laws were not cohabitants, instead the laws were merely set forth for those under the leadership to follow (Austin 50). As the cornerstone of Austin’s theory was that people were obligated to follow commands out of fear from being disciplined (51). However, while I believe that laws can be viewed as a formal set of rules for people to follow, it does not seem plausible that those rules would be created a void of a certain level of morality deemed appropriate within society at the time of enactment. Additionally, it is important to clarify that he was not implying that citizens might not find reasons to oppose the laws as commands. However, he believed that any reasons expressed by the people would not deny any validity to the law (Austin 52). Finally, he thought the laws must be respected and followed for what they are, and that is the laws, and as Austin stated that “A law which actually exists, is a law, though we happen to dislike it” (52).
Comments on Austin’s theory After examining these claims by Austin, it may seem logical to agree that perhaps laws are in fact just commands that people follow out of fear of punishment, however, this would be to act in haste. First, we must analyze Austin’s belief that people buy in large adhere to the laws from a particular leader or sovereign out of intimidation and not a “moral obligation.” 2 He argued “ the greater the eventual evil…the greater the chance of incurring it, the greater is the efficacy of the command [and] the strength of the obligation” (Austin 50). I believe that this idea that laws are meant to coerce people into behavior deemed proper is not entirely valid. H.L.A. Hart in his response to Austin’s law as command theory explained that laws designed to coerce people would be similar to the laws holding the general population at gunpoint and stating “give me your money or your life” (603). Instead, people often adhere to the laws, not out of a feeling of coercion, but something that our conscience flags us as being morally correct, and that is precisely what Thomas Aquinas believed could afford each person the ability to reason so they would avoid acting immorally (2). He argued, “natural law is promulgated by the very fact that God instilled it into a man’s mind so as to be known to him naturally” (Aquinas 2). However, as a counter to that indeed, the argument could be made that people often act outside of this moral compass that Aquinas referred to, as people commit acts of murder, assault, and robbery frequently in our society. However, to assume people in said examples were unaware of the level of morality they may be violating overall in said acts within society I believe could be a mistake. Moreover, the reason such acts have laws in place, preventing them from occurring suggests the law may be created with a certain basic level of moral standards in mind. However, Austin would argue the need for a separation of feeling morally “obliged” to adhere to the law is necessary to avoid people’s deviance from their conscience (Austin 50). Austin’s point is formidable, however, if we choose to understand these deviances as the norm instead of the exception as a whole would seem invalid. It would seem paramount to assume that people hold a level of morality higher in the laws rather than the sanctions imposed on them. For a person governed out of fear would not explain why individuals feel compelled to act with a sense of morality towards each other even when no law or punishment is designed to follow. For instance, there may not be laws in place to punish those who cut in front of individuals in the post office or steal a taxi ahead of the person who had clearly there first. It is not a feeling of fear that would overcome an individual, but rather a feeling in one’s conscience of wrong doing towards another person. Furthermore, I would argue that laws are created with a level of morality in mind to protect the basic moral principles people intrinsically recognize. The laws are created primarily to promote goodness and to serve as a code of conduct for the benefit of the people in an entire community. Everyone wants the ability to live with a sense of peace, therefore the law intersects with morality in a way that recognizes what a given society determines is the proper way to behave. Moreover, the laws are in place to protect these beliefs. However, I am not implying that all laws are created in such a way, but instead, people have the capability to understand when they are not in such accordance. Thus, the concept of morality and law together is one that I believe is to be considered seriously, but I also realize such a notion could lead to questions regarding what levels of morality that should be deemed appropriate. For instance, one could argue as to how we can define morality in a way that could determine when laws are designed unjustly and without the entire community in mind. Furthermore, perhaps each person’s concept of what is morally acceptable has certain variances to it. What one society determines is morally acceptable may not be viewed the same in a different culture. Therefore, we must establish a foundation to begin to answer such questions. To start, we must consider what Martin Luther King Jr. stated in his Letter From Birmingham Jail that “a just law is a code that a majority compels a minority to follow, and is willing to follow itself” (3). This idea put forth by King Jr. was something that was lacking from Austin’s theory as he argued that a sovereign commanded the laws, but did not have to adhere to those same laws (Austin 51). Thus, Austin’s notion of a sovereign enforcing laws that they were not obliged to adhere to could lead to laws being implemented that were without any overall moral benefit for the entire community. As King Jr. provided an additional example in his letter regarding the voting laws that restricted African Americans right to have a voice in what laws should be passed (3). Thus, providing one group of society leverage over another for controlling people’s actions. The ability of a leader to take such control in creating laws devoid of any concept of morals could lead to situations arising where the laws imposed could be severely immoral and unjust such as the Nazi laws. The argument would stand in accordance with Austin that they are still valid laws, however, it does not stand that just because they are laws with sanctions they will be strictly adhered to. When the law strikes a certain level that does not reflect what people as a whole determine is morally acceptable is when people can feel compelled to act against such laws. In the example from King Jr. he believed the segregation laws that were in place did not comply with a level of goodness for everyone equally, thus he believed breaking such laws was a moral obligation. To use an example from present time regarding unjust law, there is the attempted travel ban by the US government, which was designed to prevent people from certain countries whose population is primarily Muslim. While the ban was said to have been constructed for security reasons, several judges have opposed the ruling because it targets a particular group of people. The travel ban is another example of a group in power trying to impose sanctions on another group that they would not have to comply with. In this this case the judges were able to understand that the law would not be creating a sense peace that is equal for everyone. Thus, as Lon Fuller argued in the Morality of Law what he refers to, as “morality of duty” being the very basic human principles that should be respected to maintain a well-functioning society (272) He argued that the morality of duty could serve as the framework for the laws being created as they would have a sense of a certain moral code for people to follow. Fuller’s claim is a more realistic example of why the laws are enacted as opposed to Austin’s law as command theory, which is that laws are simply a “signification desire” of a person in command. Moreover, the idea of a punishment would keep people in compliance with those desires (Austin 50).
Of course, then the question would emerge as to when laws are enacted that do not meet such basic moral standards should people still be obliged to comply. Austin would argue, “the existence of law is one thing; its merit or demerit is another” (52).
While I disagree that laws should not be followed so blindly, I would also argue that just because a law is void of certain morality does necessarily make the law void. Instead, laws lacking basic morality should send a signal to people within the community, city, or state to raise their awareness that such laws are flawed. It is then that people collectively should to take action to force the government to block or repeal laws that are found to be grounded in repugnance and to ultimately instill a change that will be beneficial to all. However, it is also difficult to deny the fact that faced with any punishment, especially with increased severity that a person may choose to oblige the law even if it goes against their morals. But even faced with a harsh punishment, I believe there would be a far greater imprisonment to a person’s conscience by choosing to ignore a sense of basic morality. Going back to the idea I presented earlier from Aquinas that people have the ability to reason to understand basic human principles that are either right or wrong (2). If we know the actions we engage in are wrong, but we continue with them regardless it will stay locked in our minds. An example of when laws should be fought against for not being in accordance with morals comes from King Jr. and the battle against segregation laws. He stated, “ So I can urge men to obey the 1954 decision of the Supreme Court because it is morally right, and I can urge them to disobey segregation ordinances because they are morally wrong” (3). Therefore, as explained by Hart a law that is promulgated and enforced remains a law by definition. However, it is the right of the people to hold those laws accountable to a certain moral standard and to question their validity if they begin to stray outside of that standard (617). The framework I have just outlined is one I believe is more consistent with the way many
people view the law. As opposed to Austin’s belief that the law is the law and should never be brought into questions of what is should entail.
Conclusion
Ultimately, Austin believed that the law and morality were separate and to argue whether or not laws fit certain moral criteria would be a separate question, and not discount the fact that the law must still be considered valid. Instead, I proposed that laws are in fact constructed with some sense of morality and that people adhere to the laws, not simply out of fear, but because of certain moral standards that society recognizes in accordance with the law. I presented the idea for a basic level of morality that could help to guide people in determining just from an unjust law. Moreover, that unjust law would not be disregarded as actual laws. Instead, I suggested that laws simply being laws did not necessarily mean people should comply without fail, but that these laws should be inspected critically to ensure they qualify as containing basic moral principles.
Additionally, Austin believed that the law and morality were separate, and to discuss the idea of what laws should be does not take away from the fact they are still laws (52). While I believe that the principle idea of Austin’s theory is potentially viable in the idea that people do obey certain laws for fear of fines or imprisonment, and that a person or group in power governs the laws. I however, cannot agree unconditionally …show more content…
with his belief that in most cases such laws would be enacted without a level of morality that is recognized by society. Furthermore, that people would always abide by the law out of a fear of punishment. To explain my discontent with this idea, in the paragraphs to follow I will outline Austin’s theory in its complete form and explain his idea of laws as nothing more than commands. I will introduce the logic behind my argument to explain how the law and morality do intersect in certain ways, along with excerpts of philosophers such as H.L.A. Hart, Lon Fuller and Thomas Aquinas who also dissent portions of Austin’s theory. Lastly, I will present an idea of basic morality that can help to indicate to people when laws may have deviated from what could be deemed acceptable for an entire community.
Austin’s Theory
To understand if Austin’s theory is valid, we must first understand the methodology behind it. Austin’s primary objective was to prove what he believed to be the correct analysis of jurisprudence that had a foundation in science rather than morality and what would become known as legal positivitism.1 He argued there were two categories of the law the first being the Divine laws, which he considered to be equal to Natural laws that are set forth by God onto men. Next, Austin argued there are human laws, which are governed by men onto other men. He then divided the law further into separate categories, which he called positive law and positive morality (50). Austin classified laws such as “the law of honour, the law set by fashion…[and] International law” within positive morality (50). He believed these types of “objects” should not be regarded as laws. He argued these were laws that were “enforced by mere opinion” or the bias one group of people had regarding the proper outcome of a situation (Austin 50). Therefore, making a clear distinction from what he believed the laws should encompass. Austin argued that a law or a positive law could be defined as a command that “obliges a person or persons to a course of conduct” that is enforced by a “superior” individual or “sovereign” group of people (51). Thus, providing citizens with a general guideline as to what was deemed appropriate behavior by the group in power. Austin believed the citizens being governed did not retain a voice in the law, instead, he argued, “the power of affecting others with evil or pain, and of forcing them, through fear of that evil, to fashion their conduct to one’s wishes” (Austin 51). Moreover, to ensure that citizens remained in compliance he explained that a sense of fear of punishment from lack of compliance would force people to adhere strictly to the laws. Hence, his idea that morality and the laws were not cohabitants, instead the laws were merely set forth for those under the leadership to follow (Austin 50). As the cornerstone of Austin’s theory was that people were obligated to follow commands out of fear from being disciplined (51). However, while I believe that laws can be viewed as a formal set of rules for people to follow, it does not seem plausible that those rules would be created a void of a certain level of morality deemed appropriate within society at the time of enactment. Additionally, it is important to clarify that he was not implying that citizens might not find reasons to oppose the laws as commands. However, he believed that any reasons expressed by the people would not deny any validity to the law (Austin 52). Finally, he thought the laws must be respected and followed for what they are, and that is the laws, and as Austin stated that “A law which actually exists, is a law, though we happen to dislike it” (52).
Comments on Austin’s theory After examining these claims by Austin, it may seem logical to agree that perhaps laws are in fact just commands that people follow out of fear of punishment, however, this would be to act in haste. First, we must analyze Austin’s belief that people buy in large adhere to the laws from a particular leader or sovereign out of intimidation and not a “moral obligation.” 2 He argued “ the greater the eventual evil…the greater the chance of incurring it, the greater is the efficacy of the command [and] the strength of the obligation” (Austin 50). I believe that this idea that laws are meant to coerce people into behavior deemed proper is not entirely valid. H.L.A. Hart in his response to Austin’s law as command theory explained that laws designed to coerce people would be similar to the laws holding the general population at gunpoint and stating “give me your money or your life” (603). Instead, people often adhere to the laws, not out of a feeling of coercion, but something that our conscience flags us as being morally correct, and that is precisely what Thomas Aquinas believed could afford each person the ability to reason so they would avoid acting immorally (2). He argued, “natural law is promulgated by the very fact that God instilled it into a man’s mind so as to be known to him naturally” (Aquinas 2). However, as a counter to that indeed, the argument could be made that people often act outside of this moral compass that Aquinas referred to, as people commit acts of murder, assault, and robbery frequently in our society. However, to assume people in said examples were unaware of the level of morality they may be violating overall in said acts within society I believe could be a mistake. Moreover, the reason such acts have laws in place, preventing them from occurring suggests the law may be created with a certain basic level of moral standards in mind. However, Austin would argue the need for a separation of feeling morally “obliged” to adhere to the law is necessary to avoid people’s deviance from their conscience (Austin 50). Austin’s point is formidable, however, if we choose to understand these deviances as the norm instead of the exception as a whole would seem invalid. It would seem paramount to assume that people hold a level of morality higher in the laws rather than the sanctions imposed on them. For a person governed out of fear would not explain why individuals feel compelled to act with a sense of morality towards each other even when no law or punishment is designed to follow. For instance, there may not be laws in place to punish those who cut in front of individuals in the post office or steal a taxi ahead of the person who had clearly there first. It is not a feeling of fear that would overcome an individual, but rather a feeling in one’s conscience of wrong doing towards another person. Furthermore, I would argue that laws are created with a level of morality in mind to protect the basic moral principles people intrinsically recognize. The laws are created primarily to promote goodness and to serve as a code of conduct for the benefit of the people in an entire community. Everyone wants the ability to live with a sense of peace, therefore the law intersects with morality in a way that recognizes what a given society determines is the proper way to behave. Moreover, the laws are in place to protect these beliefs. However, I am not implying that all laws are created in such a way, but instead, people have the capability to understand when they are not in such accordance. Thus, the concept of morality and law together is one that I believe is to be considered seriously, but I also realize such a notion could lead to questions regarding what levels of morality that should be deemed appropriate. For instance, one could argue as to how we can define morality in a way that could determine when laws are designed unjustly and without the entire community in mind. Furthermore, perhaps each person’s concept of what is morally acceptable has certain variances to it. What one society determines is morally acceptable may not be viewed the same in a different culture. Therefore, we must establish a foundation to begin to answer such questions. To start, we must consider what Martin Luther King Jr. stated in his Letter From Birmingham Jail that “a just law is a code that a majority compels a minority to follow, and is willing to follow itself” (3). This idea put forth by King Jr. was something that was lacking from Austin’s theory as he argued that a sovereign commanded the laws, but did not have to adhere to those same laws (Austin 51). Thus, Austin’s notion of a sovereign enforcing laws that they were not obliged to adhere to could lead to laws being implemented that were without any overall moral benefit for the entire community. As King Jr. provided an additional example in his letter regarding the voting laws that restricted African Americans right to have a voice in what laws should be passed (3). Thus, providing one group of society leverage over another for controlling people’s actions. The ability of a leader to take such control in creating laws devoid of any concept of morals could lead to situations arising where the laws imposed could be severely immoral and unjust such as the Nazi laws. The argument would stand in accordance with Austin that they are still valid laws, however, it does not stand that just because they are laws with sanctions they will be strictly adhered to. When the law strikes a certain level that does not reflect what people as a whole determine is morally acceptable is when people can feel compelled to act against such laws. In the example from King Jr. he believed the segregation laws that were in place did not comply with a level of goodness for everyone equally, thus he believed breaking such laws was a moral obligation. To use an example from present time regarding unjust law, there is the attempted travel ban by the US government, which was designed to prevent people from certain countries whose population is primarily Muslim. While the ban was said to have been constructed for security reasons, several judges have opposed the ruling because it targets a particular group of people. The travel ban is another example of a group in power trying to impose sanctions on another group that they would not have to comply with. In this this case the judges were able to understand that the law would not be creating a sense peace that is equal for everyone. Thus, as Lon Fuller argued in the Morality of Law what he refers to, as “morality of duty” being the very basic human principles that should be respected to maintain a well-functioning society (272) He argued that the morality of duty could serve as the framework for the laws being created as they would have a sense of a certain moral code for people to follow. Fuller’s claim is a more realistic example of why the laws are enacted as opposed to Austin’s law as command theory, which is that laws are simply a “signification desire” of a person in command. Moreover, the idea of a punishment would keep people in compliance with those desires (Austin 50).
Of course, then the question would emerge as to when laws are enacted that do not meet such basic moral standards should people still be obliged to comply. Austin would argue, “the existence of law is one thing; its merit or demerit is another” (52).
While I disagree that laws should not be followed so blindly, I would also argue that just because a law is void of certain morality does necessarily make the law void. Instead, laws lacking basic morality should send a signal to people within the community, city, or state to raise their awareness that such laws are flawed. It is then that people collectively should to take action to force the government to block or repeal laws that are found to be grounded in repugnance and to ultimately instill a change that will be beneficial to all. However, it is also difficult to deny the fact that faced with any punishment, especially with increased severity that a person may choose to oblige the law even if it goes against their morals. But even faced with a harsh punishment, I believe there would be a far greater imprisonment to a person’s conscience by choosing to ignore a sense of basic morality. Going back to the idea I presented earlier from Aquinas that people have the ability to reason to understand basic human principles that are either right or wrong (2). If we know the actions we engage in are wrong, but we continue with them regardless it will stay locked in our minds. An example of when laws should be fought against for not being in accordance with morals comes from King Jr. and the battle against segregation laws. He stated, “ So I can urge men to obey the 1954 decision of the Supreme Court because it is morally right, and I can urge them to disobey segregation ordinances because they are morally wrong” (3). Therefore, as explained by Hart a law that is promulgated and enforced remains a law by definition. However, it is the right of the people to hold those laws accountable to a certain moral standard and to question their validity if they begin to stray outside of that standard (617). The framework I have just outlined is one I believe is more consistent with the way many
people view the law. As opposed to Austin’s belief that the law is the law and should never be brought into questions of what is should entail.
Conclusion
Ultimately, Austin believed that the law and morality were separate and to argue whether or not laws fit certain moral criteria would be a separate question, and not discount the fact that the law must still be considered valid. Instead, I proposed that laws are in fact constructed with some sense of morality and that people adhere to the laws, not simply out of fear, but because of certain moral standards that society recognizes in accordance with the law. I presented the idea for a basic level of morality that could help to guide people in determining just from an unjust law. Moreover, that unjust law would not be disregarded as actual laws. Instead, I suggested that laws simply being laws did not necessarily mean people should comply without fail, but that these laws should be inspected critically to ensure they qualify as containing basic moral principles.