Cotterrell Politics of Jurisprudence, Chs. 3 and 4

  • Austin’s main aim was to separate law from other doctrines such as morality or politics, and defined law as “a rule laid down for an intelligent being, by an intelligent being having power over him.” Power and “commands” are at the centre of the Austin/Bentham definition, though Bentham, unlike Austin, was willing to include stipulated rewards as an alternative to sanctions. Austin denied this possibility, since he thought law was to do with commands, and commands are different from incentives. He claimed that nullity was a sanction (to get round the power-conferring problem). Hart’s criticism on the basis that (1) Austin’s single coercive model ignores the variety of laws and (2) ignores the different purpose of laws, as demonstrated by the variety of sanctions, is rejected by Cotterrell on the grounds that Austin was merely seeking to demonstrate characteristics familiar to all laws, NOT claim that all laws serve the same purpose. Laws repealing other ones were not laws in a real sense, since they commanded nothing.
  • Austin and Bentham both require generality for a law to exist. Generality relates (1) to the category of addressees, and (2) to the acts prohibited/required by the rule. I.e. not merely a direction on one specific case or action, nor to a particular individual. Austin therefore sees a law as a technical instrument that should aim for utility, NOT as a device to maximise liberty (as many liberal theorists see law).
  • Austin/Bentham believed that liberties were no more sacred than other types of law, and should only be granted where to do so would maximise the common good.
  • Austin’s conception of the sovereign is the office or institution that is sovereign, NEVER the individual person in charge.
  • Characteristic’s of Austin’s sovereign: There can only be one sovereign in any society and it must be determinate (i.e. clear). Also a sovereign cannot issue commands to himself. NB This is NOT only applicable to absolute monarchs: The sovereign body can be split up into several parts so that the executive and legislative powers are in reality exercised by many different bodies, while there are still constraints, just non-legal ones. Austin locates sovereignty in the monarch, lords and electorate of the Commons. BAD for legal purposes, parliament, not the people, is sovereign. Also, how can the public be the subjects of commands made by them? Austin himself said that the sovereign could not be bound by laws. Possibly he is confusing the sovereign with the sources from which the sovereign derives its authority.
  • The problem of the sovereign not being able to bind itself i.e. legally illimitable, may be overcome: If individual parts of the sovereign are limited, that does not mean the sovereign as a whole has been legally limited. A good example would be the parliament acts, limiting the powers of HL, although the power of the queen in parliament altogether has not changed.
  • Judges etc are regarded by Austin as delegates of the sovereign, whose actions are those tacitly commanded by the sovereign (so how to explain judgments to which the queen in parliament is opposed?). He regards judge-made law as no different to other secondary legislators. What does this mean where the courts rule against their sovereign? Does the sovereign just voluntarily agree to obey? No other explanation from Austin, since a sovereign surely cannot be obliged to obey their delegates.
  • The motives behind Austin’s power-based view of law are a belief in the ability of the state to improve lives, given sufficient power and utility.
  • Wide discretion would undermine Hart’s concept of law as a collection of rules

 

  • Penner Schiff and Nobles Jurisprudence & Legal Theory: Commentary and Materials Chs. 3 and 4 (Lacey: Modern Positivism: HLA Hart and Analytical Jurisprudence)

 

  • Hart claimed to be employing both analytical jurisprudence and descriptive sociology.
  • It is a mix of empiricism (looking at the way in which things actually happen) and what Cotterrell labels “conceptualism” (interpreting law by its concepts).
  • The internal aspect is a “critical reflective attitude”- manifested in the account people give of their own behaviour or that of others.

 

https://www.law.cornell.edu/wex/jurisprudence