I’m studying philosophy of law (jurisprudence in the sense that it is about the structure and form of law) this semester, and I’ve been introduced to the idea of Legal Positivism (related to Logical Positivism only insofar as there is some family resemblance, since, for instance, both exclude any appeal to or talk about ‘God’, but Legal Positivism goes back to the ancient Greeks and earlier). John Austin is the philosopher of jurisprudence who defends and works out his view of Legal Positivism most famously, and so, naturally, he’s the first on the list of Philosophers to read for this course.
Now, I read the work of Austin and I have a very superficial quibble about his supposedly clear and analytic definition of law. He says that a Law is “a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.” The words ‘having power over him’ are meant to indicate that a law is really a command, issued by a superior to an inferior. So far so good, but then Austin puts forward a conception of what constitutes a command in the following words:
“If you express or intimate a wish that I shall do or forbear from some act, and if you will visit me with an evil in the case I comply not with your wish, the expression or intimation of your wish is a command.”
I’d like to be extremely superficial and pedantic for a moment. This, it seems to me, is not a very good or ‘clear’ definition of a command. Notice that it stipulates that a command has the form of a conditional, where the antecedent is supposed to be my failure to comply, and the consequent is some evil visited upon me (presumably, though not explicitly, as a result).
First, what if you will visit the very same evil upon me if I do comply with your imperative expression – is your imperative expression a command then? By definition it is, but this isn’t what Austin means, at least presumably. So his definition needs clarification.
Second, suppose you allow Austin to be read charitably and say that he means to say that a command is not merely of the form (~P ⊃ Q) but actually of the form (~P ≡ Q), there remain residual problems. For one thing, suppose you direct at me an imperative expression which you intend to be a command, and then before I am given any opportunity to either comply or fail to comply with such a demand, you die (or something happens which makes it impossible for you to visit the promised evil upon me whether I fail to comply or not). Now, given that you died before I was given opportunity to comply or fail to comply, it seems that your original imperative expression was not a command. After all, it did not satisfy the counterfactual form (~P ⊃ Q) as a matter of fact (therefore, obviously, doesn’t satisfy the form (~P ≡ Q)).
So then, a command shouldn’t be interpreted as having the logical form (~P ⊃ Q), or the form (~P ≡ Q). If it did, then there would be a significant epistemic gap; we wouldn’t be able to know which expressed demands were commands and which weren’t, even if we were the ones issuing them. Perhaps what Austin meant to say, or intended by his words, was that the person issuing the command is promising that the consequent will follow given the failure to comply, but this means that anyone can issue a command to anyone else, including an inferior issuing a command to a superior. All one needs is for there to be the promise of retribution. Perhaps Austin would say that the retribution must be reasonably expected, and thus might think that an inferior couldn’t issue commands to superiors because whatever evil they promise just couldn’t be reasonably expected by the superiors. However, suppose an inferior commands a superior whose position as superior is in part afforded by standing in the superior position to the inferior, by promising that the inferior will kill herself in case of non-compliance. Her death would clearly harm the superior (insofar as it took away from her some measure of superiority). Perhaps, then, the harm has to be weighed in some ways, like whether it is reasonable to expect it, and whether it is a considerably bad evil. Presumably any demand made, intended to be a command, which promised more harm for the commander than the commandee in case of non-compliance, would be that much less reasonable to expect.
This post was not really meant as a serious criticism of Austin or anything like that, it was just a pedantic quibble I had upon a first superficial reading through of some of Austin’s work. I intended only to register some thoughts I had ‘in the moment‘, and I won’t be surprised to find that, once I know more about Austin, I will find the thoughts here expressed to be even more superficial than intended or based on misunderstandings altogether.