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.

John Austin's System of Law (Lecture I)

[sent to conlaw prof re: John Austin's Sytem of law in Lecture 1]

Here's the basic problem. Americans tend to talk differently about "law" because their traditions (American constitutionalism) are different. So when legally-educated American eyes see someone saying in print "this is law, but this isn't," the mind sees this stark barrier ("this is what counts, that doesn't").  But an English mind traditionally speaks more colorfully about "law" -- God's law, nature's law, man's law, positive law, scientific law, customary law, the law of fashion, the law of nations, "the constitution in the heart," and so forth.  One might say of the English that they needed to impose a grammar that separated "legal laws" from "non-legal laws." And hence comes Austin who does just that using the tradition of analytic philosophy (although admittedly a little early for what we normally call that). His goal is to impose order. He's trying to say, (a) what is properly called "law" (as opposed to just colorful talking); and
(b) which of this properly-called stuff COUNTS.

To accomplish this, he sets up a pedantic taxonomic system. The system RANKS law. There are four categories to the system. They are

Type 1 -- properly called law, commands from a sovereign
Type 2 -- properly called law, commands from a non-sovereign
(type 3) -- improperly called law, considered "close analogy" to Type 2 (international law, morality, and so forth)
(type 4) --  improperly called, law, considered remote analogy to Type 2 (the laws of physics)
God's law -- properly called law, but not from humans.  

He then takes Types 2 and 3 and dumps them under the heading "Positive Morality" and leaves Type 1 all by itself under the heading of "Positive Law." This allows him, in essence, to imposing what would be considered today as a contemporary American mindset. We now know what's in the bag and what's not:  "God's law" is over there out in left field, the law of physics is out there in right field, the positive morality is in center field -- and that leaves good old  "law's law" in the store all by itself.   

Take a look at a graphic that shows this: http://ludwig.squarespace.com/austin

Now the question is very simple. What did he mean to go into Type 2 that didn't go in "close analogy" [what I have called (type 3)]? The answer to this seems clear:

1. It CAN'T be customs (brithishly constitutional or otherwise), because those are already in "close analogy." The Standford Encyclopedia supports me here. See http://plato.stanford.edu/entries/austin-john/

[Key portion: "Positive law should also be contrasted with “laws by a close analogy” (which includes positive morality, laws of honor, international law, customary law, and constitutional law) and “laws by remote analogy” (e.g., the laws of physics). (Austin 1995: Lecture I)."]

2. He SAYS just a few pages later what a law or rule is. The example he uses is a command between a father and son. This "counts" as a law (therefore must be Type 2). He writes:

"And secondly, a command which obliges exclusively persons individually determined, may amount, notwithstanding [Blackstone’s criteria], to a law or rule. For example, A father may set a rule to his child or children: a guardian, to his ward: a master to his slave or servant.  … Most, indeed, of the laws which are established by political superiors, or most of the laws which are simply and strictly co called, oblige generally the members of the political community, or obliges generally persons of a class."
 
Therefore, father commanding child = law = type 2 = bingo. (Interestingly, I  wonder myself whether your Catechism example wouldn't also be Type 2 to a devout believer who is being directly regimented).