Important for students: Roger Cotterrell is super important when it comes to defending Austin against the critique of Hart’s and other jurists. I think we should be grateful to him for forming a line of argument that presents a cogent edifice in understanding Austin in a contemporary light. Therefore it is important to read from here when a student attempts a question on Austin from Section A. This will get you more marks as it is recommended by the examiner that you add this detail in your answers. Also a summary in a paragraph of this detail can be added in Section A: Hart vs. Austin question as well. The passages below have been condensed and summarized and borrowed where appropriate from Penner (pp.134-141). Some of the headings are his and the rest of them I’ve added myself so you can understand the defence when you read Hart for instance. If anything is unclear, please leave a comment and I’ll get back to you.
Now let’s see what Cotterrell has to say in the defence of Austin:
1. SOVEREIGNTY:
Cotterrell calls this the ‘most crucial element’. According to Austin, law is a type of command. The emphasis of Cotterrell’s is on the identity and character of the Sovereign or the commander and what enables them to issue legal commands. He’s doing this so that Austin’s sovereign can be explained first and then criticisms on the sovereign can be entertained and clarified later, as a second step. Alright so from this step onwards, I’m going to add pointers and their explanations here so I don’t have to write ‘Cotterrell says this or that repeatedly’. Thus to understand the Sovereign further, the following must be understood:
Commands as Rules
• Austin adapts the theory of Sovereignty from Hobbes’ political philosophy. Here Austin borrows the concept of Sovereign from Hobbes. The foundation of the Sovereign laid down by Hobbes is imperative in nature.
• Commands used in Austin’s theory can called as rules as well (here Note that Hart in Chapter 2 and then in 3 takes pains to explain the nature of Commands as expounded by Austin. He labels Austin’s theory as an Orders Backed by Threats theory because of its imperative nature and the lack of rules in it) because of the element of generality in them. Rules are laws in the sense of positive laws (or laws strictly so called) in Austin’s theory is the fact that they are the direct or indirect commands of the sovereign in an independent political society (refer to Austin’s lectures in the guide). These commands are addressed to the members of that society who are thus subjects of that sovereign.
The Sovereign as an Office rather than as a Person
• The Sovereign for Austin is a person (for example an absolute monarch) or a body of persons (for example lawmakers or electorate of a democracy, or the members of an established ruling elite). “It is essential however to note that he always means by the sovereign the office or institution which embodies supreme authority; never the individuals who happen to hold that office or embody that institution through their relationships at any given time.” Austin’s sovereign is an abstraction – the location of the ultimate power which allows the creation of law in a society. Austin’s Sovereign is often criticized as the legal authority in the ‘personal’ sense, whereas it is the office to where the power emerges from in Austin’s theory, not the person/ Sovereign.
• Austin however did not labour on this matter of sovereignty as an abstract concept because on the tradition of political theory on which he heavily relies considers sovereignty as explicitly ‘abstract’. For instance, since Austin borrows the concept of the sovereign from Hobbes, let’s see how Hobbes expressed his notion of the sovereign.
• According to Hobbes, in Leviathan, his major work, the concept of the sovereign is laid down as the ‘artificial soul’ of an ‘artificial man’, the latter being the state or the commonwealth. Since Austin borrows the concept of sovereign from Hobbes, it is again asserted here that even in Hobbes thesis, the sovereign is am office (artificial man), and not a particular person or particular people.
Politically Independent Society
• Now the environment in which the sovereign operates will be discussed. The sovereign operates in a politically independent society, meaning thereby that the sovereign operates in a politically independent and sovereign state. Hobbes defines this society as one that could defend itself. It is the existence of sovereignty which defines independence. Thus political independence and sovereignty are correlative terms.
• Furthermore, all these elements are connected like a chain. Thus sovereignty exists when two conditions are satisfied. First, the bulk of the society are in a habit of obedience or submission to a determinate and common superior (whether an individual or a body of individuals) and secondly, that individual or body is not, itself in a habit of obedience to a determinate human superior.
Habitual Obedience
• In the idea of habitual obedience as illustrated briefly above, Austin follows his predecessor Bentham and not Hobbes. So from Hobbes, Austin borrows the concept of the sovereign and from Bentham, Austin borrows the concept of habitual obedience as well as the concept of utility (which will be discussed later). Professor Morrison calls Austin a ‘naïve empiricist’ since he doesn’t take seriously the empirical enquiry of his theory but Cotterrell claims that the idea of habitual obedience introduces a factual, indeed a sociological criterion of the existence of sovereignty.
• Hobbes found the existence of sovereignty in an assumed ‘social contract’ by which individuals could be thought of as joining together to form a society and trusting the absolute power of the government to a sovereign who would provide peace and physical protection for them. This society is secular and makes the State the source of all the power. Considering the human condition of man as short, nasty and brutish, and the ‘war of all against all’ which would exist without government would be replaced by the domination of the sovereign to whom all are subject. But Cotterrell says that this particular analysis presupposed that individuals have natural rights which, by social contract, they agree to forego so as to institute a secular sovereign power over them.
• However, neither Bentham nor Austin subscribed to this view as neither of them were prepared to accept the ideas of natural rights, treating them as irrational dogma (the former clearly called this as ‘nonsense upon stilts’). Thus Bentham and Austin following him, discard Hobbes’ social contract basis of sovereignty and replace it with the idea of a factual basis of sovereignty in actual habitual obedience. As for Hobbes, the idea of social contract gave a ‘right’ to rule to the sovereign, whereas both Bentham and Austin deny the talk of ‘right’ in this context. The existence of sovereignty for them is merely a political fact, not a matter of right and wrong.
• How can then the normativity of law be explained in Austin’s theory (which means raising the question as to why one ought to obey the law? And utility provides the answer for this). In simple terms what is of the most significance is that habitual obedience by the majority of the population exists. Where there is no such obedience however, there is anarchy (no recognized sovereign at all) or revolution (the population is divided into groups rendering habitual obedience to different authorities).
2. SOME CHARACTERISTICS OF AUSTIN’S SOVEREIGN
• The sovereign must be common (that is only one sovereign can exist in any single political society; the sovereign is in this sense indivisible, although it can be made up of several components).
• The sovereign must also be determinate (that is the sovereign as a person or a body must be clear).
• Austin also says that the sovereign must be illimitable by law. A sovereign he says cannot issue enforceable commands to itself. Even if this is conceivable, the sovereign can abrogate these commands on him at any time. Also no laws other than the sovereign’s own commands can exist to bind it. As Austin says in one of his Lectures: ‘Supreme power limited by positive law, is a flat contradiction in terms… Every supreme government is legally despotic’.
Criticisms on the Illimitable Nature of Austin’s Sovereign Addressed
• Many critics have considered that Austin’s view of sovereignty conjures up the image of a despotic monarch. But if we look at it more closely, when Austin determines his Province of Jurisprudence, he makes two categories under human laws, one is categorized as ‘laws proper or laws strictly so called’ and the other is called as ‘laws improper or laws not properly so called’, now the former is where legal positivism resides and the latter helps in providing a check on the sovereign, albeit not a legal check. Thus in the latter category, positive morality (reflected in public opinion, widespread moral or political expectations, and ultimately the threat of rebellions) may provide important restraints.
• Cotterrell points out that most of Austin’s discussions of sovereignty relate primarily to the conditions of representative democracies (especially Britain and the US).
Sovereign in the UK
• Austin’s sovereign, both indivisible and legally illimitable runs into the most serious analytical difficulties. This problem begins as soon as a person identifies the sovereign in particular societies. For instance in orthodox British constitutional law the sovereign is said to be the Queen in Parliament: that is the sovereign is made up of the monarch and the two houses of Parliament. Cotterrell further says that constitutional law supports the claim that such a sovereign is legally illimitable. Parliament cannot bind itself or its successors by legislation. Since the House of Commons is the representative of the electorate, however Austin locates sovereignty in the monarch, the House of Lords and the electorate of the Commons.
• Cotterrell states that the above distinction and then amalgamation in terms of the sovereign is problematic and misleading. He claims that popular sovereignty may reside in the electorate, but for legal purposes Parliament is sovereign.
Austin’s Sovereign as a pre-legal notion
• Cotterrell further states that Austin does not write of legal sovereignty or treat sovereignty as supreme legal competence. As C A W Manning points out, Austin’s sovereignty is not a legal but a pre-legal notion, existing not as a specified organ or a complex of organs but that individual or collectively at whose pleasure the constitution is changed or subsists intact.
How can the electorate be in habitual obedience to themselves as sovereigns?
• But if this is so then how can the electorate as subjects be in a state of habitual obedience to themselves as sovereign?
• There exists here a reciprocal relationship. As long as the bulk of the population considers the authority of the common and determinate sovereign, that society is declared as a politically independent one. Cotterrell says that there is nothing incoherent in claiming that the individual is subject to the authority of the collectivity as an institution, or that the collectivity as a whole retains authority because the bulk of the individuals continue to accept its authority.
Sovereign in the US
• The sovereign must be a person or body of persons, but the ultimate sovereign in federal systems like the US is that of a document – the constitution.
• The question remains, where then does the sovereignty lie? Of course in the Austinian analysis it must lie with that body of people that has ultimate authority to alter the Constitution.
• The Constitution itself in Article 5 provides that amendments to it must, to be valid, be ratified by the legislatures of three quarters of the states. Again in Austininan analysis, where the representatives are involved, it is the electors of these representatives who form the sovereign body.
• Sovereignty in this sense lies in the governmental and legislative institutions which the Constitution recognizes as ultimately authoritative. In an Austinian analysis, sovereignty resides in these authorities not because of their designation by the Constitution, but because the authorities so designated are themselves habitually accepted.
3. MUST THE SOVEREIGN BE LEGALLY ILLIMITABLE?
Positive Law and Positive Morality
According to Austin, the sovereign cannot be restricted by legal limitations but only politically can the sovereign be bound (as already discussed above). Thus there is a difference between positive law and positive morality. Where the former does not put limits on the sovereign, the latter does. Sovereign here must also be seen as an abstract and also as a pre-legal concept. One must avoid framing the sovereign as a person; instead the sovereign must be sought as an office.
• It has been seen that for Austin, the sovereign is always an institution – for example, the monarch, not the person who is the kind at any given time; the body which can change the constitution, not the particular individuals who may form that body. But how is that institution defined or identified?
• Two kinds of rules may do this: rules of positive law and rules of positive morality (for example, public opinion expressed in customary, moral or other rules, conventions, or expectations). Thus only positive morality can actually bind the sovereign so as to fix its institutional character. Positive law cannot do this since the sovereign can alter this law at will. But even if it does not bind the sovereign it can have the status of law if commanded by the sovereign and addressed to any part or agent of the sovereigns body (for example, to the British parliament- perhaps defining its procedures; to judges- perhaps specifying jurisdiction; or to the monarch within a constitutional monarchy- perhaps defining the monarchs powers as well as the right of succession to the throne). Positive law can bind each part of such a sovereign body as ‘the Queen in Parliament ‘, since each part is not itself sovereign.
• Furthermore, Cotterrell claims that in Austinian view no call can confer or validate authority. Austin asserted that much of constitutional ‘law’ must, in fact be merely positive morality for this reason.
Explaining the persistence and continuity of law
• The acceptance of the sovereign as an institution seems to remove much of the difficulty which has been thought to exist for Austinian attempts to explain the persistence and continuity of laws.
• Laws can remain in focrce as long as the institutional sovereign remains, perhaps for centuries. Since we are not pinpointing any particular person as the sovereign, rather we are directing the sovereign to be the office, thus whoever comes and goes as a person or group of people, the office will remain intact, standing and in operation.
Law as a system of rules
• Cotterrell writes that, writers who have argued forcefully against Austin’s interpretation have usually wanted to see the legal system as being governed by rules, even in its highest regions of authority, rather than- as Austin’s theory so starkly claims- governed by people, mere human decision- makers with all their frailties and potential for arbitrary or tyrannous exercise of power. Thus Austin’s theory is not a theory of the Rule of Law- of government subject to law. It is a theory of the ‘rule of men’ – of government using law as an instrument of power. Such a view may be considered realistic or merely cynical. But it is, in its broad outlines, essentially coherent.
4. THE JUDGE AS DELEGATE OF THE SOVEREIGN
Does Austinian analysis consider power conferring rules (or secondary rules)?
• The concept of delegation of sovereign power is fundamental to Austin’s thinking. The idea of delegation in this sense is the element necessary to complete the discussion of power-conferring or secondary rules.
• The sovereign in Austinian terms delegates legislative and administrative functions to many institutions- including significantly the judiciary.
• Equally, law making power is delegated to private citizens who exercise it, for example, in the creation of contracts according to the terms chosen by the contracting parties, but which the sovereign’s institutions will enforce. These are legal relationships of a private nature such as contracts, Wills, marriages etc.
• Each dispersion of sovereign power in this way is a delegation, not a release of it. Each legitimate exercise of such power to create legal obligations must be treated as an exercise of the sovereign’s power of command. Hence, insofar as such an act is not revoked or invalidated by higher authority representing the sovereign, it can be considered a tacit command of the sovereign.
Judicial law making in Austin’s theory of law
• Bentham sought a rational, codified legal system which would make not only judicial law-making but probably also judicial interpretation of law unnecessary and inappropriate. For Austin, judicial law making is not arbitrary or undemocratic, taking as his primary point that judiciary law is no different in this respect from any other form of subordinate legislation and in all such situations, positive law and public opinion must provide the necessary safeguards.
5. AUSTIN’S THEORY OF THE CENTRALIZED STATE
Raising questions of whether Austin’s theory would find its place in the contemporary society. Austin, it has been asserted was not a democrat. His top-down image of law reflects a top-down image of polity or society. Austin viewed government as a matter of rational management to be guided by the principles of utility. In Austin’s case, Cotterrell claims that his concepts- command, sovereign, habitual obedience and sanctions have not been formulated without him being cognizant of the sociological questions they entail. This dimension of his thought has been almost totally ignored by his critics in the field of normative legal theory.
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