The key purpose of this paper is to analyze and assess the main similarities between the Hobbesian and Austinian concepts of the sovereign, precisely outline the constitutive elements of John Austin’s theory, and thoroughly examine how the definition is applicable to the laws in the United States.
The theories of Austin and Hobbes are similar to some extent, and Austin’s ideas of law are extremely rudimentary, since the purpose of law is far more extensive to the society; in addition, the notions of Austinian positivism and naturalism coexist in the US, even though modern American courts prefer liberal interpretations of law.
Main Similarities between Hobbesian and Austinian Notions of the Sovereign
The most essential similarity between Austin and Hobbes is that both are legal positivists and proponents of the ‘command theory of law’ and both recognize civil law as ‘commands’ from a sovereign (Hobbes 127); although Hobbes presented his ideas centuries prior to the emergence of Austin, there is no doubt that Hobbes had remained contemporary even in the 19th century.
Both in ‘Leviathan’ and ‘The Province of Jurisprudence Determined’, the authors stated that ‘properly so-called’ laws emerge from the superior (Austin 22), and in case of disobedience of these laws, the inferior can be punished by sovereign with physical or monetary sanctions (Hobbes 127); additionally, both agreed that the relationship between the sovereign and the law is inseparable (Hobbes 128). On the other hand, significant similarities are also present between the authors when it comes to the classification of laws, since Hobbes had clearly distinguished between ‘God’s Law’ and the ‘human law’ (Hobbes 204), and John Austin had been prompted to argue that laws can be categorized as either divine or man-made (Austin 2).
The Constitutive Elements of John Austin’s Definition
Austin is a legal positivist popular for his command theory of law; he states that law has three key aspects – firstly, it is a command; secondly, it comes from the sovereign; and thirdly, it is enforceable by a sanction; in addition, he further states that the ‘sovereign’ compel his subjects (the inferior) to follow his authority through law (Austin 6). Law can be either ‘divine’ or ‘man-made’ (Austin 2), and ‘man-made’ laws are essentially those put into place by the politically sovereign ‘backed by’ threats of punishment (in case of any disobedience); however, whilst all laws are general commands, all commands are not laws – thus, he differentiates law from other commands and states that certain exceptions may be present here.
He puts forward the perplexing idea of general obedience, which states that law will only be effective if it is generally obeyed by the people; however, it is adequate if only a general obedience exists, since ideal obedience has not been made essential (Austin 16); conversely, a sovereign is someone who is ‘habitually obeyed’ by a majority of the population. In order words, laws put into place by a sovereign, who lacks habitual obedience from the mass people shall be ineffective in a general sense, and should be seen as ‘improperly so-called’, whereas laws from a sovereign having habitual obedience are ‘properly so-called’ (Austin 22).
The sovereign should be from an autonomous political society where he is supreme – thus, not all sovereigns are capable of proper law making; Austin better describes the concept with the gunman situation, so a gunman keeping someone at gunpoint, and telling him to follow his commands ‘backed by’ threats of sanction, is not making a law in a general sense. This is because, firstly, there is no general obedience of his commands amongst the majority of the population, and secondly, because the sovereign is not the one whose commands are being habitually followed by the public (though habitual obedience is an ambiguous precondition). The precondition of imposition of sanctions in case of a disobedience of the command gives rise to further ambiguity, since not all laws are coercive, and there are certain laws, which are merely procedural and lack the punishing element.
According to John Austin, all commands, duties, and sanctions are rationally equivalent from an overall perspective (Austin 14); he offers his idiosyncratic interpretation to uphold that rewards are not sanctions, and duties are not generally reliant on the effectiveness of the sanction itself (Austin 15); he further states that there may well be certain exceptions present here.
On the other hand, he explains two circumstances (which seem to be incompatible with his hypothesis) to demonstrate that they do not create real troubles; firstly, he states that there are laws that seem to confer rights without duties (rights always come with duties), and secondly, that there are customary law (custom becomes law if it is state-enforced) (Austin 31). His theory states that it is sufficient that law exists, its ‘merit or demerit’ is the secondary inquiry; moreover, it has never been argued that law’s merits are incomprehensible, insignificant, or marginal to the philosophy of law, but believed that they do not decide whether laws or legal organizations exist.
How Well the Definition Applies To the Law in the United States
Austin’s hypothesis rematerialized in the US after the Civil War and since then, modern scholars have taken numerous attempts to construe his positive notions to enhance the US constitutional law and democracy; therefore, practical implications of legal positivism are noticeable on the development of mainstream laws, although positivism contributed only to some extent to the logical legal theories. Austin’s theory stressed on societal and behavioral realism in the US and reviewed how standards of democracy and constitution truly influence the entire system; in fact, the US ‘originalists’ are positivists in nature, and their strong opinion is that the courts must always interpret the constitution strictly (that is literally), as this is how codified constitutions should be dealt with.
On the other hand, the ‘living constitutionalists’ are naturalists and they reject the literal interpretation, arguing that even codified constitution should acclimatize with time, and the US democracy urges for wider explanation of constitutional texts; in this way, the two diverging concepts of Austinian positivism, and the more recent, ‘naturalism’ are coexisting in the American law for a long time. However, whilst Austin remained to be a strong opponent of the notion of separation of powers, today, this is the fundamental concept upon which modern American system operates every day.
It is notable that Austinian ideals of legal positivism have a huge role to play in the US law since the colonial days, and the way in which the legal system in imperialist America operated can largely be explained in terms of Austin’s command theory of law; however, these ideas evolved and became far sharper in the post-Civil War era. During this period, the US underwent quick societal alterations, which allowed Austin’s philosophies to engross new attention from the renowned legal and political scholars; since then, Austin’s positivism turned out to be extremely imperative, even though in certain parts of the society, it was largely seen as orthodox, crude, and inapplicable. However, debates regarding the constitutional implications of the theory continued because the supporters of the theory strongly believed that the incumbent legal regime could only be interpreted in the way put forward by John Austin.
Subsequently, US legal scholars rejected the positivist tag and those who had accepted Austin attempted to enhance him methodically through their works using the term analytical jurisprudence rather than positivism; thus, the term positivism mostly faded away, but in the mid 20th century, positivism returned in the US legal tradition, and its revitalization was mainly due to some fresh determinations. At this point, the Austinian notions seemed to be particularly important to the legal scholars, as it promised them instant and apparent professional honors – these activities helped Austinian philosophies to be quickly adopted in the system, and this is the reason why the theory applies so well to the US laws even today.
Certain similarities exist between the theories of Austin and Hobbes, and both have made significant contributions to the evolution of the legal philosophy; whilst Austin’s description of law remained to be reductionist and crude (and broadly criticized in a constructive way by numerous scholars like HLA Hart), it has helped developing the understanding of the relationship between law and sovereign.
Austin, John. The Province of Jurisprudence Determined. John Murray, 1832.
Hobbes, Thomas. Leviathan. Penguin Books, 1651.