John Austin

Fri Jan 23 07:05:11 PST 2009

Hi Sean,

Ok, I guess that my last post wasn't my final one on this (but this one 
really is).  From my point of view, all the discussion about "laws 
improperly so called" isn't relevant here, because the original question 
concerned "laws that don't come from a sovereign, but that are properly 
laws..."  So we don't really need to worry (for now) about what you call 
Type 3 and Type 4.  Putting the chart you provided together with the 
quote from Hart in my last message, maybe we can agree that the chart 
looks like this:  "Laws properly so called" branches down to "Human 
laws," and Human laws are divided into "positive law" and "positive 
morality."  All I am saying is that, on this understanding (if we can 
agree about it), what Hart refers to in his quote as "fundamental 
constitutional law" falls under the heading of positive morality.  And 
as a specific example of fundamental constitutional law in the English 
system I referred to "constitutional conventions."  You ask in your 
message WHY I think this (I always take CAPS to indicate frustration or 
anger in e-mail) so I'm trying to avoid engendering any more of that.  
Simply put, In Austin's terms (as Hart suggests) this is the only 
category into which fundamental constitutional law, international law, 
etc. can fit.  It's law properly so called, it's human law, and it's not 
positive law (again in Austin's terms as he's using them).

You also seem to think that custom falls under the heading of "close 
analogy" rather than "positive morality."  And you rely on the Stanford 
Encyclopedia for that view.  Ok.  There are two reasons I disagree with 
this, pace the Stanford Encyclopedia (although I'm not sure how much 
really turns on the distinction in this discussion).  First, and most 
convincingly for me, Austin refers to custom as positive morality in at 
least two places (in Lecture I and in Lecture V).  In Lecture I, at page 
35 of the Rumble edition, Austin says this:  "[C]ustom is transmuted 
into positive law, when it is adopted as such by the courts of justice . 
. . before it is adopted by the courts, and clothed with the legal 
sanction, it is merely a rule of positive morality . . ."  In Lecture V, 
on page 141 of Rumble's edition, Austin says this:  "[W]hen they become 
the reasons of judicial decisions upon cases, and are clothed with legal 
sanctions by the sovereign one or number, the customs are rules of 
positive law as well as of positive morality."  So it seems that Austin 
is saying custom originates as positive morality (i.e., human law 
properly so called that has not been issued by the sovereign).  When 
custom is adopted by a court as the basis of a decision, custom is then 
converted from positive morality to positive law.

All of this relates more generally to the second reason I think it's a 
mistake to see custom as law by "close analogy."  If custom is law by 
close analogy then, as you point out, it is "law improperly so called."  
If customary law is a form of "positive morality" then it falls into the 
category of "law properly so called" and it seems to me, very simply, 
that this is where is belongs as the most accurate description (in 
Austin's terms) of where that law should go. 

Also, just in the interest of being clear, I meant for the Catechism 
example to indicate that morality can take the form of law.  In a 
previous post, you said this: "Morality is not any kind of 'law'."  I 
believe that is incorrect.  You now seem to believe that the Catechism 
can be an example of positive morality, which you are calling a "Type 2" 
law.  If that's right, then we now agree on this. 

Doug

Sean Wilson wrote:

> Doug:
>  
> ... well if you ever want to chat about it, you might let us know WHY 
> you think constitutional conventions are in Type II rather than "by 
> close analogy." If there is support for such a view, it has to come 
> from outside Lecture I. All I was doing was showing what he meant in 
> that chapter.  And I believe I did piece it together. I'll lay the 
> thing out here in simple format so that if you ever want to show WHY 
> you have your belief, you can have something to compare it to. (I 
> think your belief is also contrary to the Standford Encyclopedia).
>  
> Here's the basic problem. Americans tend to talk differently about 
> "law" because their traditions (American constitutionalism) are 
> different. So when legally-educated American eyes see someone saying 
> in print "this is law, but this isn't," the mind sees this stark 
> barrier ("this is what counts, that doesn't").  But an English mind 
> traditionally speaks more colorfully about "law" -- God's law, 
> nature's law, man's law, positive law, scientific law, customary law, 
> the law of fashion, the law of nations, "the constitution in the 
> heart," and so forth.  One might say of the English that they needed 
> to impose a grammar that separated "legal laws" from "non-legal laws." 
> And hence comes Austin who does just that using the tradition of 
> analytic philosophy (although admittedly a little early for what we 
> normally call that). His goal is to impose order. He's trying to say, 
> (a) what is properly called "law" (as opposed to just colorful 
> talking); and (b) which of this properly-called stuff COUNTS.
>  
> To accomplish this, he sets up a pedantic taxonomic system. The system 
> RANKS law. There are four categories to the system. They are
>  
> Type 1 -- properly called law, commands from a sovereign
> Type 2 -- properly called law, commands from a non-sovereign
> (type 3) -- improperly called law, considered "close analogy" to Type 
> 2 (international law, morality, and so forth)
> (type 4) --  improperly called, law, considered remote analogy to Type 
> 2 (the laws of physics)
> God's law -- properly called law, but not from humans.  
>  
> He then takes Types 2 and 3 and dumps them under the heading "Positive 
> Morality" and leaves Type 1 all by itself under the heading of 
> "Positive Law." This allows him, in essence, to imposing what would be 
> considered today as a contemporary American mindset. We now know 
> what's in the bag and what's not:  "God's law" is over there out in 
> left field, the law of physics is out there in right field, the 
> positive morality is in center field -- and that leaves good old  
> "law's law" in the store all by itself.   
>  
> Take a look at a graphic that shows this: 
> http://ludwig.squarespace.com/austin
>  
> Now the question is very simple. What did he mean to go into Type 
> 2 that didn't go in "close analogy" [what I have called (type 3)]? The 
> answer to this seems clear:
>  
> 1. It CAN'T be customs (brithishly constitutional or otherwise), 
> because those are already in "close analogy." The Standford 
> Encyclopedia supports me here. See 
> http://plato.stanford.edu/entries/austin-john/
>  
> [Key portion: "Positive law should also be contrasted with “laws by a 
> close analogy” (which includes positive morality, laws of honor, 
> international law, customary law, and constitutional law) and “laws by 
> remote analogy” (e.g., the laws of physics). (Austin 1995: Lecture I)."]
>  
> 2. He SAYS just a few pages later what a law or rule is. The example 
> he uses is a command between a father and son. This "counts" as a law 
> (therefore must be Type 2). He writes:
>  
>
> "And secondly, a command which obliges exclusively persons 
> individually determined, may amount, notwithstanding [Blackstone’s 
> criteria], to a law or rule. For example, A father may set a rule to 
> his child or children: a guardian, to his ward: a master to his slave 
> or servant.  … Most, indeed, of the laws which are established by 
> political superiors, or most of the laws which are simply and strictly 
> co called, oblige generally the members of the political community, or 
> obliges generally persons of a class."
>
>  
>
> Therefore, father commanding child = law = type 2 = 
> bingo. (Interestingly, I  wonder myself whether your Catechism example 
> wouldn't also be Type 2 to a devout believer who is being directly 
> regimented).
>
>  
>
> Regards
>
>  
>
> Dr. Sean Wilson, Esq.
> Assistant Professor
> Wright State University
> New Website: http://seanwilson.org <http://seanwilson.org/>
> Daily Visitors: http://seanwilson.org/homepagelucy.html
> SSRN papers: http://ssrn.com/author=596860
>  
>
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>
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-- 
Douglas E. Edlin
Associate Professor
Department of Political Science
Dickinson College
P.O. Box 1773
Carlisle, Pennsylvania 17013
717.245.1388