Friday, February 11, 2005

On John Austin on Natural Law

John Austin was an influential early utilitarian philosopher, best known for his work on law. Here are his criticisms of Blackstone's claim that laws contrary to the will of God are void as law. I have come across people still using both arguments in one form or another.

Now, to say that human laws which conflict with the Divine law are not binding, that is to say, are not laws, is to talk stark nonsense. The most pernicious laws, and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals. Suppose an act innocuous, or positively beneficial, be prohibited by the sovereign under the penalty of death; if I commit this act, I shall be tried and condemned, and if I object to the sentence, that it is contrary to the law of God, who has commanded that human lawgivers shall not prohibit acts which have no evil consequences, the Court of Justice will demonstrate the inconclusiveness of my reasoning by hanging me up, in purusance of the law of which I have impugned the validity. An exception, demurrer, or plea, founded on the law of God was never heard in a Court of Justice, from the creation of the world down to the present moment.

None of this proves Austin's point. For the point about laws contrary to Divine law not being binding is essentially this: to be binding, a thing must obligate, but nothing immoral obligates. There is no moral obligation to conform to someone's decision if it requires you to do something immoral. And it's doubtful that there's any other sort of obligation that actually binds you to do something when you are morally obligated not to do it. That a court might not consider your claim that the law is unjust is not to the point; all that means is that courts enforce laws that are unjust. It tells us nothing about whether the law is genuinely binding or authoritative; and a law that is not genuinely binding or authoritative is only a law-like pretense at law. The stark nonsense is to pretend to that immoral laws can be obligatory for anyone. Austin holds, of course, that what makes a law obligatory or binding is sanction; and this is the reason he appeals to the court in the above. Sanction is an amoral thing; it is rule of force, plain and simple, and therefore cannot distinguish moral and immoral laws. Blackstone, on the other hand, is concerned with authority, not sanction; and the foundation of all authority is moral authority. He is concerned with why it can be right to obey law. The difference between the two makes all the difference between whether one ultimately sides with Antigone or with Creon. Austin sides with Creon; Blackstone with Antigone. But Austin's argument merely begs the whole question under dispute between him and Blackstone, since the real dispute here is over what creates obligation. On Austin's view, it is power to punish; on Blackstone's view, it is right reason. On Austin's view, anything put forward by a tyrant with sufficient power obliges; on Blackstone's view, such tyrants may have the power to punish, but not the right to rule. On Austin's view, the existence and the merit of law are entirely separate; on Blackstone's view, merit is the very heart of what law is, and when law is deficient in merit, it is a perversion of law, and not a true law. Austin's argument requires one already to hold that Blackstone's notion of law is false.

But this abuse of language is not merely puerile, it is mischievous. When it is said that a law ought to be disobeyed, what is meant is that we are urged to disobey it by motives more cogent and compulsory than those by which it is itself sanctioned. If the laws of God are certain, the motives which they hold to disobeyed, what is, what is meant is that we are urged to disobey it by motives more cogent and compulsory than those by which it is itself sanctioned. If the laws of God are certain, the motives which they hold out to disobey any human command which is at variance with them are paramount to all others. But the laws of God are not always certain....To incite the public to resistance by determinate views of utility may be useful, for resistance, grounded on clear and definite prospects of good, is sometimes beneficial. But to proclaim generally that all laws which are pernicious or contrary to the will of God are void and not to be tolerated, is to preach anarchy, hostile and perilous as much to wise and benign rule as to stupid and galling tyranny.

This strikes me as simply bizarre; we are to encourage disobedience with regard to good possible results and discourage disobedience with regard to justice, on the basis that the latter is uncertain. I see no rhyme or reason in this argument, which puts forward one uncertain thing as better than another uncertain thing, entirely because the latter is uncertain. But there is actually no reason to think that the latter leads to 'anarchy', any more than the former. Indeed, it was a common view for a very long time, and never led to anarchy then; the people who advocate it are not anarchists; the whole charge is just a trumped-up bit of nonsense that has no factual basis behind it. And what sort of 'wise and benign rule' goes about making unjust laws? To the extent its laws are unjust it is precisely not wise and benign, and needs correction.

The point, then, is that these two common complaints against natural law actually either beg the question or are not well-founded. I haven't considered positive arguments for natural law here; but natural law is one of those positions that is typically dismissed without good reason.

[Quotations are from the selection pf "Province of Jurisprudence Determined" in Readings in the Philosophy of Law (2nd edition), Arthur and Shaw, eds. Prentice Hall, 1993: pp. 79-80. You can find out more about John Austin here.]

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