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John Austin (1790-1859)

The Province of Jurisprudence Determined


(1832)

Lecture V

Improper Law is analogous to law. The term law, in that


sense, is metaphorical, or a figurative expression.

Analogy is a kind of resemblance.

Resemble in a narrow sense when both belong to the same


class

Objects resemble when they are said to be analogous i.e. when they belong
to different classes

Resemblance is, therefore an ambiguous term.

An analogy, real or supposed, is always on a ground of transference.

A Metaphor transfers an idea (term) from its 1st use to a secondary object

The Difference in analogy and metaphor is therefore a difference in degree.

Lecture V (cont.)

Laws, properly so called, are:

Set by God to mankind (Devine Law)

Set by men to men (Positive Law)

By a political superior to a political inferior

By a private person in pursuance of a legal right

Positive morality (improper laws closely analogous to laws proper) consists of:

Law set by men:

Who are not politically superior to those to whom that law applies

As private persons not in pursuance of a legal right

Laws analogous to laws, properly so called, are really mere opinion or


sentiment.

Lecture V (cont.)

Jurisprudence is concerned with Positive Law without regard to its goodness


or badness.

Positive Morality, considered without regard to its goodness or badness might


be worthy of a science analogous to jurisprudence i.e. the study of
international law.

The goodness or badness of a law or a particular piece of positive


morality can be defined as:

Good You like it.

Bad You do not like it.

Lecture V (cont.)

Positive Law, then, flows from:

A determinate author who is sovereign, to

A political subordinate in subjection to the author,

To which is annexed a sanction (eventual evil), intended to enforce


obedience.

Determinate authors are:

Sovereign person(s)

Subordinate person(s) politically superior to the one commanded

Subjects (private persons) in pursuance of legal rights.

The Law of God or morality of custom may end as positive law when
enforced by the sovereign, but the law of God or morality giving rise to
the true positive law is simply the model the command of the sovereign is
the true law.

Lecture V (cont.)

Sanctions are of three types:

To Gods law

To Positive Law

Those proper & analogous which enforce compliance with positive morality

Does not include natural physical consequences of the Act.

Sanctions are brought upon the individual by an act or omission of his own.

It is nonsense to say that morality or conscience nullify positive law.

The (Positive) law is, itself, the proper standard of Justice.