John Austin (1790-1859)

The Province of Jurisprudence Determined (1832)

▪Lecture V

▪Improper Law is analogous to law. The term law, in that sense, is metaphorical, or a figurative expression.

▪Analogy is a kind of resemblance.

▪Resemble in a narrow sense when both belong to the same class

▪Objects resemble when they are said to be analogous – i.e. when they belong to different classes

▪Resemblance is, therefore an ambiguous term.

▪An analogy, real or supposed, is always on a ground of transference.

▪A Metaphor transfers an idea (term) from its 1st use to a secondary object

▪The Difference in analogy and metaphor is therefore a difference in degree.

▪Lecture V (cont.)

▪Laws, properly so called, are:

▪Set by God to mankind (Devine Law)

▪Set by men to men (Positive Law)

▪By a political superior to a political inferior

▪By a private person in pursuance of a legal right

▪Positive morality (improper laws closely analogous to laws proper) consists of:

▪Law set by men:

▪Who are not politically superior to those to whom that “law” applies

▪As private persons not in pursuance of a legal right

▪Laws analogous to laws, properly so called, are really mere opinion or sentiment.

▪Lecture V (cont.)

▪Jurisprudence is concerned with Positive Law without regard to its goodness or badness.

▪Positive Morality, considered without regard to its goodness or badness might be worthy of a science analogous to jurisprudence – i.e. the study of international law.

▪The “goodness” or “badness” of a law or a particular piece of positive morality can be defined as:

▪“Good” – You like it.

▪“Bad” – You do not like it.

▪Lecture V (cont.)

▪Positive Law, then, flows from:

▪A determinate author who is sovereign, to

▪A political subordinate in subjection to the author,

▪To which is annexed a sanction (eventual evil), intended to enforce obedience.

▪Determinate authors are:

▪Sovereign person(s)

▪Subordinate person(s) politically superior to the one commanded

▪Subjects (private persons) in pursuance of legal rights.

▪The “Law of God” or morality of custom may end as positive law when enforced by the sovereign, but the “law of God” or “morality” giving rise to the true positive law is simply the model – the command of the sovereign is the true law.

▪Lecture V (cont.)

▪Sanctions are of three types:

▪To God’s law

▪To Positive Law

▪Those proper & analogous which enforce compliance with positive morality

▪Does not include “natural” physical consequences of the Act.

▪Sanctions are brought upon the individual by an act or omission of his own.

▪It is nonsense to say that morality or conscience nullify positive law.

▪The (Positive) law is, itself, the proper standard of Justice.

▪