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Austin on Sanctions

Published online by Cambridge University Press:  16 January 2009

Colin Tapper
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Extract

Austin has been sniped at for so long that there is now more hole than target. Many would say that this has happened because he is such an obvious target. His conclusions have been widely condemned, his clarity and precision commended, though less fervently. Some have accepted his concepts, but felt them to be inadequate for his task; others have felt the concepts themselves to be inappropriate. Professor Hart succinctly expresses a new orthodoxy in claiming, “Austin … was sometimes clearly wrong; but … when this was so he was always wrong clearly.” This is surprising as Hart is elsewhere one of the most perceptive and diligent searchers for ambiguities and inconsistencies in Austin's work. It is contended that the conventional view of Austin as a careful and painstaking manipulator of hard concepts is quite unjustified. This is not so much to suggest that Austin was wrong as that he was muddled, inconsistent and ambiguous. It is to suggest that time spent shooting at Austin is invariably successful, and invariably unrewarding. An attack upon one version of a doctrine can usually be evaded by reference to another. If Austin is often wrong, he is also often right, and frequently on the same point but in a different place. For those committed to a general attitude towards Austin this may be merely aggravating; for the uncommitted it can be vastly stimulating.

Type
Research Article
Information
The Cambridge Law Journal , Volume 23 , Issue 2 , November 1965 , pp. 271 - 287
Copyright
Copyright © Cambridge Law Journal and Contributors 1965

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References

1 e.g., Salmond, Jurisprudence (11th ed.), p. 55.

2 e.g., Hart, Introduction to the Library of Ideas edition of The Province of Jurisprudence Determined, p. xi.

3 In “Positivism and the Separation of Law and Morals” (1958) 71Google Scholar Harv.L.Rev. 593.

4 Especially in “Legal and Moral Obligation” in Melden, Essays in Moral Philosophy, pp. 95–100, and The Concept of Law, passim.

5 Vol. I, p. 88. This and all subsequent reference is to Campbell's 5th edition. Reference here to The Province of Jurisprudence Determined is to the original six lectures. Reference to The Lectures on Jurisprudence is to the remaining lectures Published posthumously by his wife.

6 Austin's italics.

7 I, 92.

8 I, 89.

9 Supra, n. 5.

10 What is Justice! pp. 276, 277.

11 Supra, n. 8.

12 The Concept of Law, especially Chaps. 2–6.

13 Supra, n. 8.

14 Supra, n. 8.

15 I, 89.

16 I, 99, 104 and 445.

17 I, 445.

18 I, 447. See also II, 767.

19 Supra, n. 8.

20 Supra, n. 8.

21 I, 99.

22 Supra, n. 8.

23 I, 96.

24 Infra, n. 28.

25 Cf. I, 251, 252, for further examples of a tendency to equate administrative and judicial powers.

26 Supra, n. 8.

27 Supra, n. 8. Power and purpose must coincide.

28 I, 90.

29 I, 89.

30 My italics.

31 I, 401, 443 and 444.

32 Supra, n. 8.

33 Although in the Lectures he expressly includes inconvenience, nullity and a declaration of infamy as sanctions.

34 I, 91.

35 I, 91.

36 Austin's italics.

37 I, 91.

38 Austin's italics.

39 I, 94. Austin's approach to the problem here is completely different from his approach in the Lectures. See infra, p. 283.

40 I, 95.

41 I, 94.

42 I, 94.

43 Contrast Bentham's acute awareness of the distinction between commanding people not to steal and commanding judges to punish them if they do. Sect. VI of 1789, concluding note to The Principles of Morals and Legislation.

44 I, 89.

45 Supra, p. 277.

46 I, 222, 223. Although to judge from his examples Austin seems to contemplate more a habit of commanding than of obeying.

47 I, 444.

48 II, 633, 634.

49 I, 218.

50 Though inconsistent with his earlier assertion that punishment can be commanded; Supra, n. 8.

51 Supra, n. 37.

52 My italics.

53 My italics.

54 I, 249.

55 See also II, 767 et seq.

56 I, 456, 457.

57 I, 456, 457.

58 I, 444, 445.

59 My italics.

60 I, 457.

61 I, 443.

62 Supra, n. 8.