The similarity between Austin’s and Hobbes’ approaches is evident since both philosophers point out that the law cannot exist without a person who will establish the law and agree to execute and make it. Both Austin and Hobbes view sovereigns as the makers of the law, and subjects need to obey the sovereign’s commands because the sovereign is chosen as the person who will have the power to create and control the law.
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Hobbes’ reflections on the law are less precise than those of Austin, but their initial opinion remains the same. As Hobbes states, “nor can any Law be made, till they have agreed upon the Person that shall make it” (par. 52).
Austin divides the existing laws in those established by nature (or God) and those formed by men; he points out that these laws are set by political superiors or persons who exercise supreme and subordinate governments (2). Thus, such laws that are established by sovereigns or individuals with a specific position can be seen as positive law “or law existing by position” (Austin 2).
Hobbes also addresses the problem of equality. He points out that since there is equality among men, the nature of this equality leads to the belief that some of them are superior to the others: “they may acknowledge many others to be more witty, or more eloquent, or more learned, yet they will hardly believe there be many so wise as themselves” (Hobbes par. 48).
Due to this perception of one’s own ability to take any desired action, men who desire the same become enemies, Hobbes states (par. 50).
Austin examines the concept of superiority with regard to those in power. He points out that while the superiority of God to human beings is indisputable, the superiority of one man to another is determined by different aspects: “the relation of superior and inferior, and the relation of inferior and superior, are reciprocal” (Austin 19).
The sovereign is, therefore, the person with power that has the right to create and control the laws, as well as those inferior to them. Hobbes also points out that life without such power (of the sovereign and the law) would quickly lead to degeneration and even civil war (par. 62).
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In his first lecture, Austin provides a detailed description of the definition “command” and its relevance to other significations of desire. As Austin points out, the difference between a command and a simple desire (even if it is expressed in an imperative way) is that the person who receives the command automatically becomes obliged to it (7).
It is the individual’s duty to obey the command, and if the individual is willing to disobey (i.e., violate their duty), this disobedience results in punishment (Austin 8).
As can be seen, the discussion of relationships between the command, the subject, and the disobedience is similar to those documents (including laws based on the Constitution) that point out how a person that violates a particular law will be punished for disobedience. Although Austin’s reflections might appear to be significantly more abstract than the Constitution and the laws, they rely on the very same idea.
If this idea is reduced to its basics, it is possible to see that the sovereign (the Supreme Court) issues a command or a set of commands (the Constitution, laws), and subjects (citizens of the USA) are to obey to this set of commands. Therefore, the definition provided by Austin is correct, although it does not cover the additional details, issues, and specifics related to the law and the Constitution.
Furthermore, the author also discusses the difference between some of the laws and rules by pointing out that some of the commands (laws) can be occasional or particular, i.e., they depend on the context of the situation and how they are used (Austin 13).
Here, Austin addresses some of the laws that can be defined by social, economic, and cultural contexts in a specific country (for example, one can remember the regulation of same-sex marriages in the USA or laws used during the racial segregation in the XX century).
At the same time, Austin clearly distinguishes between laws and rules, and such a distinction is less relevant to the supreme law (the Constitution) because the latter does not regard “rules” and “laws” as polar definitions but rather views them as synonyms.
It should also be noted that Austin demonstrates an extremely militaristic approach toward the law and its appliance to society. For example, he argues that “with the principle of general utility, is our only index or guide to [God’s] unrevealed law” (Austin 37). Therefore, Austin believes that natural law can be determined and observed by measuring its influence (either positive or negative) on the general happiness of society (38).
This way, the disruption between Austin’s and constitutional approach toward the law becomes more visible, since Austin dismisses individual behavior and focuses on the acts of a class: “[the acts God] enjoins and prohibits, for the most part, not singly, but by classes: not by commands which are particular…” (39).
As can be seen, Austin’s opinion on the law and its appliance to the public (citizens) is built on the perception of natural law (God’s law) as the basis of human (man to man) law. Such an approach cannot be seen as relevant due to specifics of law regulations and the current Constitution that is applied in a less generalized manner and with little regard to the theological morale.
Definition and Law in the USA
By touching upon the topic in the previous section, I aimed to indicate that Austin’s definition of the law is unlikely to be relevant to the modern law in the USA because it is based on obsolete, although valuable, worldviews and perceptions.
For example, Austin’s understanding of the law and the sovereign is strikingly hierarchical, since he states that “superiority signifies might: the power of affecting others with evil or pain, and of forcing them…” to obey the desires (or commands) of another (superior) subject (24).
Thus, if such an approach would become the base of the current Constitution, it would lead to a significant disruption in power among American legislators, as well as the extermination of any possible horizontal hierarchy. Furthermore, it also appears that such a notion would lead to severe inequality among legal officers since superiority and power would be less balanced than they are now.
Austin’s decision to base his perception of the law both on positive and natural law results in a problem that would be difficult to solve with the modern law if we decided to base it on Austin’s suggestions.
The principle of utility appears to be more important to Austin than positive law, and, therefore, most of the cases examined by the Court would consider general utility as more important than an individual examination of an act committed by an individual (55).
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Therefore, Austin creates a contradiction between positive and natural law, because if the sovereign decides to take the utilitarian approach, he or she loses the ultimate power to create general commands (laws) because utility becomes more important than positive law. If all actions of today were viewed by the Constitution from a militaristic point of view, each case would depend on the general utility of it to the public.
I have also noticed that Austin does not discuss in detail the human rights and their place in the law. For example, he views the law as a command only, while human rights are also considered to be the part of the law, despite the fact that they do not always contain any command or obligatory statement.
Therefore, I believe that Austin’s definition of the law is also inapplicable to the law in the United States because it does not view human rights as part of the law. For example, Austin expresses the following views when he discusses illegal actions of governments: “For, it is only in the ignorance of the people, and in their consequent mental imbecility, that governments or demagogues can find the means of mischief” (57).
Thus, he does not view the law as a tool that can protect the rights of citizens. According to Austin, the law is a set of commands that can be made or conducted by a person of power (a sovereign), and this set of commands should also take the utility of actions into consideration (40).
Austin, John. The Province of Jurisprudence Determined. J. Murray, 1861.
Hobbes, Thomas. “Leviathan.” Gutenberg, n.d.