John Austin, Custom and International Law

[sent to conlaw prof; replying to a post that thinks Austin's system treats custom as "laws properly stated" as opposed to "laws by analogy"]

Doug:

... a good answer (and a good exchange). I think I now understand your position. Because the issue is now framed very well, let me make what should be my final reply. Just a couple of quickies: 

1. as a historical matter, I think you may be in some trouble, at least with respect to "custom" and international law. Didn't Austin maintain, historically, that custom and international law were not "laws properly speaking?" I had always thought that was a standard piece of history, which is why I quoted the Standford Encyclopedia of philosophy. Here is another quote from Britannica, this one from the late 1800s (very close to Austin's work):

"Nowhere does Austin's phraseology come more bluntly into conflict with common usage than in pronouncing the law of nations which in substance is a compact body of well defined rules resembling nothing so much as the ordinary rules of law to be not laws at all even in the wider sense of the term That the rules of a private club should be law properly so called while the whole mass of international jurisprudence is mere opinion shocks our sense of the proprieties of expression Yet no man was more careful than Austin to observe these proprieties." http://books.google.com/books?id=lqMMAAAAYAAJ&lpg=PA355&ots=w3YJWL5RTV&dq=law%20set%20by%20men%20to%20men%20not%20as%20political%20superiors&pg=PA356&ci=63,898,421,181&source=bookclip">The Encyclopaedia Britannica A Dictionary of Arts, Sciences, and General Literature By Thomas Spencer Baynes

2. It doesn't matter that customs becomes "positive law" once the sovereign approves (even tacitly). That doesn't make them "laws properly speaking" in Austin's scheme before they are so legitimated. So I don't see the relevance there. 

3. Here's the kicker. You seem to vest an American significance to something being "law properly said." Remember, Austin considered the Girl Scouts to have "rules" and thus "laws properly said." In an Austinian tongue, the essence of a "law" or "rule" is simply being regimented  in a definite way by a superior. The reason international law failed is that it did not come from a superior, whereas the girl thrown out of the Scouts is regimented by a superior. Please note that this way of speaking has nothing to do with "law" in an American mind (today), which means "government says" and (in some vernaculars) "correct judging" (finding the right answer to the case).  Austin even admits that his system is a PRESCRIPTIVE vocabulary to which others properly-thinking minds should conform (if he is correct), because that was the protocol of this method of "philosophy" before Wittgenstein came along. (Declaratory). So even if you are
successful in getting customs thrown into the category that you want, it would still be "only morality. " So I don't see the practical effect of your labors anyway. In an Austinian model, customs are squat in the legal system until big brother recognizes them.

As to your point that Austin's system doesn't deal properly with British constitutional conventions, I'm sure many would agree. But having a flaw in his system doesn't mean that he meant for those conventions to refer to Mariah's paragraph. And think the history is quite clear: he did not.

As always, regards.