Austin and the Electors

Abstract

Austin’s theory of law is simple. The law follows the pattern of power: the sovereign gives commands and obeys none; the subject obeys commands; the law consists in only those commands that directly or indirectly emanate from the sovereign. Nevertheless, Austin’s views on sovereignty are not simple at all. When we look at the relevant chapters closely, it becomes evident that Austin has two rival theories of sovereignty, one for a single person and one for a ‘determinate body’. It is only the latter that allows him to say that sovereignty lies, ultimately, with the electors, the strange conclusion of Province of Jurisprudence Determined. But Austin’s second theory of sovereignty is inconsistent with the simple theory of law. Austin’s faces a dilemma here that any empirical theory of law has to deal with. Is law – as most people take it to be – a public order of standards of conduct aiming to guide behaviour? If so, ‘sovereignty’ ought to be public and intelligible. If not, sovereignty can remain a mystery to those living under it, but ascertainable after the event through the empirical methods of experts in legal philosophy. For the latter reading, law and sovereignty may be normatively ‘inert’, as some of Austin’s followers claim today. But Austin does not agree with his modern followers. Austin’s second theory of sovereignty is aimed at satisfying a practical requirement of law and jurisprudence, i.e. that law should be a legitimate institution capable of guiding conduct.

An earlier draft was presented at the conference “John Austin and his Legacy” at University College London, 16–17 December 2009. Many thanks to all participants for their comments and suggestions and especially to Brian Bix, David Dyzenhaus, Michael Freeman, George Letsas, Patricia Mindus, Stanley Paulson, James Penner, Frederick Schauer, Lars Vinx and Emmanuel Voyiakis.