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John Austin, Legal Positivism, and the Debate over the Sources of Law January 14, 2013

Posted by Christopher Donohue in History of the Human Sciences, Philosophy of Law.
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One of the most important developments in the understanding of law, what law is and why it is that law has authority in society, was the move away from natural law jurisprudence, articulated by Cicero, Montesquieu, and by Hugo Grotius in the nineteenth century. Natural law jurisprudence was the idea that law derived its authority due to the perfection and purpose of nature and divinity. Since true law had its origins and its sanction from nature and divinity, outside of society, it stood against whim, convention, custom, and caprice. Laws which were against natural law, against reason or justice, were not laws at all.

Early in the nineteenth century, legal positivism, espousing a narrow definition of “positive law,” or those laws enacted by the State or sovereign in the form of commands, attempted a similar style of reasoning to that of earlier natural law jurisprudence insofar as, like natural law theory, it was both rationalistic and deductive. Legal positivism in John Austin’s prose, considered law to be law (as opposed to morality and custom) if it was a command from a sovereign authority that was coercive. This meant that going against the command of the sovereign brought threat of an “evil.” Law was sovereign, moreover, if it emanated from an authority which was subject to no other, such as a king or parliament, who was habitually obeyed.

The elements of this theory were succinctly described by Austin in his definition of command. He noted in the Province of Jurisprudence Determined (1832), “If you express or intimate a wish that I shall do or forebear some act, and if you will visit upon me some evil in case I

comply not with your wish, the expression or intimation of your wish is a command. ” To this he added a rather interesting note on the rhetoric and nature of sovereignty namely, “If you are able and willing to harm me in case I comply not with your wish, the expression of your wish amounts to a command, although you are prompted by a spirit of courtsey to utter it in the shape of a request.”

This notion of command becomes even more rarefied in the writings of H.L.A. Hart who, for all his differences with Austin’s theory (which he considered incorrect in many aspects), compared the command of the sovereign to be analogous to the threat of a gun. This command theory of legal positivism was subject to criticism by Ronald Dworkin in “The Model of Rules I,” in which he argued that laws must have an essential moral content and cannot simply be an formal expression of coercion and command. Laws according to Dworkin were not simply rules but also imply standards. Standards according to Dworkin are of two types: principles and policies. Principles attempted to provide answers to such questions as “what is justice?” or “what is fair?” while policies attempted to articulate a desirable social or economic goal.

I could delve more deeply into whether law is moral in and of itself, or whether law is legitimate regardless of content and therefore enjoins obedience through duty. However, the twentieth century discussion of this topic is byzantine. The jurist Roscoe Pound called this the “Cape Horn of Jurisprudence” in his article “Spurious interpretation.” Instead, I want to narrate a related discussion concerning what counted as the true source of law, of freedom, and of obligation that was part of the critique of legal positivism and natural law jurisprudence in the late nineteenth century.

Two turn of-the-century theorists of jurisprudence, Georges Gurvitch and Eugen Ehrlic located legitimate law in immoral custom and in free spontaneous association, respectively. Both were reacting against not only legal positivism of the Austin tradition but the “State-centric” legal theory of Hans Kelsen. While there are a number of differences between Kelsen’s “pure theory of law” and Austin’s “command theory,” I would like to defer discussion of that quite interesting topic to a later time where I will address some issues in Kelsen’s philosophical anthropology and his account of the development of civilization, putting him at odds with the more well-known legal philosopher Carl Schmitt.

—Georges Gurvitch (Гео́ргий Дави́дович Гу́рвич; November 11, 1894, Novorossiysk – December 12, 1965, Paris) was the founder of the Cahiers internationaux de Sociologie in 1944 and was the chair of sociology at the Sorbonne. His understanding of legal pluralism and of

Georges Gurvitch

law (which I will characterize in a moment) was defined by his early impression of the Soviets and Factory Councils. He rejected

Marxism-Leninism for the tension between its economic determinism and its revolutionary volunteerism. Gurvitch embraced Fichte’s anti-individualism and Proudhon’s anti-statism. The influence of the syndicalism of Sorel was also quite prominent in his jurisprudence. In contrast to “positive law,” Gurvitch’s “social law” was the moral and social solidarity which arose outside the individualistically oriented laws of the state and the sovereign through spontaneous associations (such as workers’ councils). “Social law” was conceptually the “We” of society. These spontaneous associations, moreover, were the source of true obligation but also (in a Kantian sense) true freedom.

Eugen Ehrlich (September 14, 1862 – May 2, 1922) was born in Czernowitz, at that time part of the Austro-Hungarian Empire. —Ehrlich espoused an anthropological approach to legal philosophy, which he conceptualized as the distinction between “positive law,” law by statute or decree, and “living law,” the normative order of society brought about by its natural evolution, or the “inner order of associations.” In Ehrlich’s jurisprudence there was a tension between the “law of the lawyers,” the law of the State, and the “living law,” that mass of custom which is actually more effective in resolving disputes.

For Ehrlich, law was not binding because of the authority of the state, but due to obligations already imposed by existing social relations. Ehrlich declared, —“Man acts according to law first of all because social relations make him do so.” He detailed that —“Criminal law is powerless when it comes to mobilizing forces which are not given in society itself; every criminal law can only achieve what it can achieve with the forces which exist in people.” “Living law” in Ehrlich’s jurisprudence was “the law which dominates life even though it has not been posited in legal propositions. The knowledge of this law is, first, the modern legal document, secondly, direct observation of life, of commerce, of customs and usages of all associations.”

While “social law” and “living law” are many times treated as similar concepts, they emerged from distinct intellectual traditions and have differing ends. Georges Gurvitch’s idea of order and association is quite like that of Tocqueville and Durkheim in the notion that modern societies diffuse the power of the sovereign or increase the freedom of the group through “intermediary” institutions (this is the aristocratic French liberalism of Constant of the Second Empire; the syndicalism of Proudhon and Sorel) and a plurality of voluntary associations.

—For Eugen Ehrlich (note the essential role of custom, of the behaviors of people being the true origin and character of law), the true law, slowly, organically adapted and changed with circumstance. True law was the customs of the Volk, the peasant and his village who is the true source of wisdom. —For Gurvitch, the point was to understand the nature of freedom and justice; for Ehrlich, the true source and power of moral norms and the origins of the authority of the law.

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