AUSTIN

 

Austin's life (1790 – 1859) was one of repeated disappointments. He began the study of law in 1812 after five years in the army. For a dozen years he then practiced, unsuccessfully, at the chancery bar. In 1826 he was appointed the first professor of jurisprudence at University College, the University of London. This career, too, ended in fiasco: he resigned his chair in 1832, having failed to attract students to his lectures. For a while he served on the Criminal Law Commission and then, in 1836, on the Malta Commission. He moved to Paris and lived there until the upheavals of 1848. He then went to Surrey, where he died ten years later. He had published his fundamental views in 1832, the year he was forced to abandon his professorship, but these were given little attention during his lifetime. His lectures on jurisprudence were only published posthumously.

Austin's answer to the problem of consent posed by the great-power directorate was to deny that the relations among nations were governed by law at all. Austin did not deny that there were international rules of behavior; indeed the source of these posed the problem to be addressed. Nor did he deny their efficacy and power. Rather he attributed these rules, which were an important factor in international relations, to custom. International law “consists of the opinions and sentiments current among nations generally,” he wrote. It is “a law in name only,” because there is no sovereign governing the states who are supposed to obey these rules.

“In order to [provide] an explanation of the marks which distinguish positive law, I shall analyze the expression ‘sovereignty,’” he began. Austin then proceeded to define law as the commands of a sovereign addressed to political inferiors, backed by threats of harm in the event of disobedience. “The generality of the given society must be in the habit of obedience to a determinate and common superior: whilst that determinate person, or determinate body of persons, must not be habitually obedient to a determinate person or body,” i.e., must itself be sovereign. Thus obedience is not a rational matter, as for Hobbes, nor a consensual one, as for Rousseau, but merely a fact. Whether it is justified is not a matter for the lawyer, who confines himself simply to analyzing what is. This distinction between legitimacy (a matter of habit) and justification (a matter of morality) tracks a similar distinction made by the architects of the Vienna settlement.

Notice that positivism, as Austin's doctrines are known, does away with two of the core ideas that had shaped international law from its inception at the time of the birth of the modern state: natural law and the theory of the just war. Natural law, whatever its content—and the positivists took some pleasure in pointing out that, unlike other observable phenomena in nature, no one could agree on the content of allegedly “natural” law— became an irrelevancy. If a provision was enacted into law by the sovereign, then that act made that provision law, whatever its origin; and if the sovereign denied authority to a “natural” law, it ceased to have any legal effect. As to the just war, its “justice” was a matter of morality, not of law. Whether a war was lawful was a matter of the sovereign's rules. For example, if the constitutional law of the United States were scrupulously followed, the fact that the United States manufactured an incident that provoked an attack (as, it is claimed, was the case in the Mexican-American War) while relevant to the moral judgment of the acts of the United States, was scarcely material regarding the legality of those acts. A war might be lawful but unjust, or just but unlawful; there was no necessary correlation. To the problem of whether more than one belligerent might prosecute a just war, the positivist would reply, “That's not my department; consult the clergy or perhaps (today) the psychoanalyst,” for positivists tended to treat moral judgments as projections of the emotions of the persons declaring moral rules. These concepts form the core of the jurisprudential doctrine of positivism, which, crucially, distinguishes law from morality. Although law might well be derived from moral precepts, such precepts become law only when commanded by a sovereign.

This approach to law perfectly suited the Vienna system. That system was of course a product (and key determinant) of its Age. A self-consciously designed constitutional system, it reflected the idealism of the late eighteenth century, just as the system of Utrecht had reflected (and contributed to) the rationalism of the Enlightenment. Like the Vienna system itself, positivism reflects the self-consciousness, attention to public behavior, and sensitivity to the bases for legitimacy that characterized the state-nation. It raised, however, a fundamental question for this form of the State: is sovereignty defined in terms of domestic law or international law? It must be one or the other, because only de jure sovereignty, as opposed to de facto sovereignty, could serve as the fount of law. But if, as Austin claimed, international law was non-law—that is, it was only the positive (as opposed to natural) morality imposed by the opinion of the society of states—then international law could not confer a de jure status on the states it recognized as sovereign. On the other hand, if de jure sovereignty were a matter of domestic law only, then—at least outside the club of like-minded European state-nations with consistent customs—there was no consistent basis on which it might be identified. Sovereignty then became merely a matter of de facto control, and this the sovereigns of the directorate were at pains to deny, believing as they did that domestic revolu-tion—which seizes sovereignty—was a real source of potential destruction for their international constitutional system.