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Austin is better understood as the last of the Schoolmen rather than the first of the Benthamites. Ostensibly, Austin fundamentally distinguishes the objective moral truth of divine law from the morally dubious human positive law. But at a deeper level, Austin distinguishes natural from positive law within human positive law just as he distinguishes natural from positive divine law. Like the Schoolmen, he uses the term positive in two very different senses, by implicit contrast both to natural law and to customary law. Once we see the importance of positive divine law, what Austin calls the "revealed" law of God, we can see that might makes duty and the Almighty makes all duty. True, utility provides the standard for judging the goodness or badness of all law, human and divine. But positive divine law imposes duties paramount to all others whether it is good or bad, because the existence of a law is one thing, its merit or demerit is another. In short, Austin has a divine command theory of duty but not of goodness.

DOI: 10.1007/978-94-007-4830-9_9

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