The Province of Jurisprudence Determined by John Austin

David Campbell, Philip A. Thomas

• Publisher: Routledge
• Year: 2019
• ISBN:
  9780429674839
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

First published in 1998, this text is the prefatory first part of Austin's Lectures on Jurisprudence or the Philosophy of Positive Laws and first appeared separately from the Lectures in 1832. This volume reproduces the standard text of The Province from Robert Campbell's fifth edition, published in 1885, and clarifies the structure and readability of the text, retaining Austin's 'Analysis' as a whole at the start of the book.

John Austin (1790-1859) was the first professor of jurisprudence at the University of London, which is now University College. His classic, The Province of Jurisprudence Determined, was derived from his course lectures. Austin took great pride in his ability to clearly delineate the study of law. Austin took a surgical approach and created a stripped down view of material central to the study of law. While this approach overlooks the ambiguity inherent in interpretations of law, it nevertheless stands as a landmark work and provides an excellent starting point for any deeper inquiry into the subject of jurisprudence.

Lecture VI

Synopsis of Lecture VI

The connection of the sixth lecture with the first, second, third, fourth, and fifth

The distinguishing marks of sovereignty and independent political society

The relation of sovereignty and subjection

Strictly speaking, the sovereign portion of the society, and not the society itself, is independent, sovereign, or supreme

In order that a given society may form a society political and independent, the two distinguishing marks which are mentioned above must unite

A society independent but natural

Society formed by the intercourse of independent political societies

A society political but subordinate

A society not political, but forming a limb or member of a society political and independent

The definition of the abstract term independent political society (including the definition of the correlative term sovereignty) cannot be rendered in expressions of perfectly precise import, and is therefore a fallible test of specific or particular cases

In order that an independent society may form a society political, it must not fall short of a number which cannot be fixed with precision, but which may be called considerable, or not extremely minute

Certain of the definitions of the term sovereignty, and of the implied or correlative term independen tpolitical society, which have been given by writers of celebrity

The ensuing portion of the present lecture is concerned with the following topics:

1. The forms of supreme government;

2. The limits of sovereign power;

3. The origin of government, or the origin of political society

The forms of supreme government

Every supreme government is a monarchy (properly so called), or an aristocracy (in the generic meaning of the expression). In other words, it is a government of one, or a government of a number

Of such distinctions between aristocracies as are founded on differences between the proportions which the number of the sovereign body may bear to the number of the community

Of such distinctions between aristocracies as are founded on differences between the modes wherein the sovereign number may share the sovereign powers

Of such aristocracies as are styled limited monarchies

Of the exercise of sovereign powers by a monarch or sovereign body, through political subordinates or delegates representing their sovereign author

Of the distinction of sovereign, and other political powers, into such as are legislative, and such as are executive or administrative

The true natures of the communities or governments which are styled by writers on positive international law half sovereign states

The nature of a composite state or a supreme federal government: with the nature of a system of confederated states, or a permanent confederacy of supreme governments

The limits of sovereign power

The essential difference of a positive law

It follows from the essential difference of a positive law, and from the nature of sovereignty and independent political society, that the power of a monarch properly so called, or the power of a sovereign number in its collegiate and sovereign capacity, is incapable of legal limitation

Attempts of sovereigns to oblige themselves, or to oblige the successors to their sovereign powers

The meanings of the epithet unconstitutional, as it is contradistinguished to the epithet illegal, and as it is applied to conduct of a monarch, or to conduct of a sovereign number in its collegiate and sovereign capacity

Considered severally, the members of a sovereign body are in a state of subjection to the body, and may therefore be legally bound, even as members of the body, by laws of which it is the author

The nature of political or civil liberty, together with the supposed difference between free and despotic governments

Why it has been doubted that the power of a sovereign is incapable of legal limitation

The proposition is asserted expressly by renowned political writers of opposite parties or sects

A sovereign government of one, or a sovereign government of a number in its collegiate and sovereign capacity, has no legal rights (in the proper acceptation of the term) against its own subjects

From an appearance of a sovereign government before a tribunal of its own, we cannot infer that the government lies under legal duties, or has legal rights against its own subjects

Though a sovereign government of one, or a sovereign government of a number in its collegiate and sovereign capacity, cannot have legal rights against its own subjects, it may have a legal right against a subject or subjects of another sovereign government

The origin or causes of political government and society

The position ‘that every government continues through the people’s consent’, and the position ‘that every government arises through the people’s consent’, examined and explained

The hypothesis of the original covenant or the fundamental civil pact

The distinction of sovereign governments into governments de jure and governments de facto

A general definition of a positive law: or a general statement of the essential difference by which it is severed from a law not a positive law

This definition of a positive law is assumed expressly or tacitly throughout the foregoing lectures. But it only approaches to a perfectly complete and perfectly exact definition. And, consequently, the determination of the province of jurisprudence, which is attempted in the foregoing lectures, only approaches to a perfectly complete and perfectly exact determination

An explanation of a seeming defect in the foregoing definition of independent political society

Restrictions or explanations of the two following positions: namely, that a sovereign government cannot be bound legally, and that it cannot have legal rights against its own subjects

Various meanings of the following terms: 1. The term ‘sovereign’, or ‘the sovereign’; 2. The term ‘republic’, or ‘commonwealth’; 3. The term ‘state’, or ‘the state’; 4. The term ‘nation’

The meaning of Hobbes’s proposition, that ‘no law can be unjust’. Just or unjust, justice or injustice, is a term of relative and varying import

‘Right is might’

‘Right’ as meaning ‘faculty’, ‘right’ as meaning ‘justice’, and ‘right’ as meaning ‘law’

The proper purpose or end of political government and society, or the purpose or end for which they ought to exist

Text of Lecture VI

The connection of the sixth lecture with the first, second, third, fourth, and fifth

Positive laws, the appropriate matter of jurisprudence, are related in the way of resemblance, or by a close or remote analogy, to the following objects:

1. In the way of resemblance, they are related to the laws of God.
2. In the way of resemblance, they are related to those rules of positive morality which are laws properly so called.
3. By a close or strong analogy, they are related to those rules of positive morality which are merely opinions or sentiments held or felt by men in regard to human conduct.
4. By a remote or slender analogy, they are related to laws merely metaphorical, or laws merely figurative.

To distinguish positive laws from the objects now enumerated is the purpose of the present attempt to determine the province of jurisprudence.

In pursuance of the purpose to which I have now adverted, I stated, in my first lecture, the essentials of a law or rule (taken with the largest signification which can be given to the term properly).

In my second, third, and fourth lectures, I stated the marks or characters by which the laws of God are distinguished from other laws. And, stating those marks or characters, I explained the nature of the index to his unrevealed laws, or I explained and examined the hypothesis which regard the nature of that index.

In my fifth lecture, I examined or discussed especially the following principal topics (and I touched upon other topics of secondary or subordinate importance). I examined the distinguishing marks of those positive moral rules which are laws properly so called: I examined the distinguishing marks of those positive moral rules which are styled laws or rules by an analogical extension of the term: and I examined the distinguishing marks of the laws merely metaphorical, or laws merely figurative.

I shall finish, in the present lecture, the purpose mentioned above, by explaining the marks or characters which distinguish positive laws, or laws strictly so called. And, in order to an explanation of the marks which distinguish positive laws, I shall analyse the expression sovereignty, the correlative expression subjection, and the inseparably connected expression independent political society. With the ends or final causes for which governments ought to exist, or with their different degrees of fitness to attain or approach those ends, I have no concern. I examine the notions of sovereignty and independent political society in order that I may finish the purpose to which I have adverted above: in order that I may distinguish completely the appropriate province of jurisprudence from the regions which lie upon its confmes and by which it is encircled. It is necessary that I should examine those notions in order that I may finish that purpose. For the essential difference of a positive law (or the difference that severs it from a law which is not a positive law) may be stated thus. Every positive law, or every law simply and strictly so called, is set by a sovereign person, or a sovereign body of persons, to a member or members of the independent political society wherein that person or body is sovereign or supreme. Or (changing the expression) it is set by a monarch, or sovereign number, to a person or persons in a state of subjection to its author. Even though it sprung directly from another fountain or source, it is a positive law, or a law strictly so called, by the institution of that present sovereign in the character of political superior. Or (borrowing the language of Hobbes) ‘the legislator is he, not by whose authority the law was first made, but by whose authority it continues to be a law’.

Having stated the topic or subject appropriate to my present discourse, I proceed to distinguish sovereignty from other superiority or might, and to distinguish society political and independent from society of other descriptions.

The distinguishing marks of sovereignty and independent political society

The superiority which is styled sovereignty, and the independent political society which sovereignty implies, is distinguished from other superiority, and from other society, by the following marks or characters:

1. The bulk of the given society are in a habit of obedience or submission to a determinate and common superior: let that common superior be a certain individual person, or a certain body or aggregate of individual persons.
2. That certain individual, or that certain body of individuals, is not in a habit of obedience to a determinate human superior.

Laws (improperly so called) which opinion sets or imposes may permanently affect the conduct of that certain individual or body. To express or tacit commands of other determinate parties, that certain individual or body may yield occasional submission. But there is no determinate person, or determinate aggregate of persons, to whose commands, express or tacit, that certain individual or body renders habitual obedience.

Or the notions of sovereignty and independent political society may be expressed concisely thus. If a determinate human superior, not in a habit of obedience to a like superior, receive habitual obedience from the bulk of a given society, that determinate superior is sovereign in that society, and the society (including the superior) is a society political and independent.

The relation of sovereignty and subjection

To that determinate superior, the other members of the society are subject: or on that determinate superior, the other members of the society are dependent. The position of its other members towards that determinate superior is a state of subjection, or a state of dependence. The mutual relation which subsists between that superior and them may be styled the relation of sovereign and subject, or the relation of sovereignty and subjection.

Strictly speaking, the sovereign portion of the society, and not the society itself, is independent, sovereign, or supreme

Hence it follows that it is only through an ellipsis, or an abridged form of expression, that the society is styled independent. The party truly independent (independent, that is to say, of a determinate human superior) is not the society, but the sovereign portion of the society: that certain member of the society, or that certain body of its members, to whose commands, expressed or intimated, the generality or bulk of its members render habitual obedience. Upon that certain person, or certain body of persons, the other members of the society are dependent: or to that certain person, or certain body of persons, the other members of the society are subject. By ‘an independent political society’, or ‘an independent and sovereign nation’, we mean a political society consisting of a sovereign and subjects, as opposed to a political society which is merely subordinate: that is to say, which is merely a limb or member of another political society, and which therefore consists entirely of persons in a state of subjection.

In order that a given society may form a society political and independent, the two distinguishing marks which are mentioned above must unite

In order that a given society may form a society political and independent, the two distinguishing marks which I have mentioned above must unite. The generality of the given society must be in the habit of obedience to a determinate and common superior: whilst that determinate person, or determinate body of persons, must not be habitually obedient to a determinate person or body. It is the union of that positive, with this negative mark, which renders that certain superior sovereign or supreme, and which renders that given society (including that certain superior) a society political and independent.

To show that the union of those marks renders a given society a society political and independent, I call your attention to the following positions and examples.

One. In order that a given society may form a society political, the generality or bulk of its members must be in a habit of obedience to a determinate and common superior.

In case the generality of its members obey a determinate superior, but the obedience be rare or transient and not habitual or permanent, the relation of sovereignty and subjection is not created thereby between that certain superior and the members of that given society. In other words, that determinate superior and the members of that given society do not become thereby an independent political society. Whether that given society be political and independent or not, it is not an independent political society whereof that certain superior is the sovereign portion.

For example: in 1815 the allied armies occupied France; and so long as the allied armies occupied France, the commands of the allied sovereigns were obeyed by the French government, and, through the French government, by the French people generally. But since the commands and the obedience were comparatively rare and transient, they were not sufficient to constitute the relation of sovereignty and subjection between the allied sovereigns and the members of the invaded nation. In spite of those commands, and in spite of that obedience, the French government was sovereign or independent. Or in spite of those commands, and in spite of that obedience, the French government and its subjects were an independent political society whereof the allied sovereigns were not the sovereign portion.

Now if the French nation, before the obedience to those sovereigns, had been an independent society in a state of nature or anarchy, it would not have been changed by the obedience into a society political. And it would not have been changed by the obedience into a society political, because the obedience was not habitual. For, inasmuch as the obedience was not habitual, it was not changed by the obedience from a society political and independent, into a society political but subordinate. A given society, therefore, is not a society political, unless the generality of its members be in a habit of obedience to a determinate and common superior.

Again: a feeble state holds its independence precariously, or at the will of the powerful states to whose aggressions it is obnoxious. And since it is obnoxious to their aggressions, it and the bulk of its subjects render obedience to commands which they occasionally express or intimate. Such, for instance, is the position of the Saxon government and its subjects in respect of the conspiring sovereigns who form the Holy Alliance. But since the commands and the obedience are comparatively few and rare, they are not sufficient to constitute the relation of sovereignty and subjection between the powerful states and the feeble state with its subjects. In spite of those commands, and in spite of that obedience, the feeble state is sovereign or independent. Or in spite of those commands, and in spite of that obedience, the feeble state and its subjects are an independent political society whereof the powerful states are not the sovereign portion. Although the powerful states are permanently superior, and although t...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• CONTENTS
• Preface
• Introduction
• Analysis of Lectures
• Lecture I
• Lecture II
• Lecture III
• Lecture IV
• Lecture V
• Lecture VI
• Index