Austin, John

AUSTIN, JOHN

John Austin was a nineteenth-century legal theorist and reformer who achieved fame posthumously for his published work on analytical jurisprudence, the legal philosophy that separates positive law from moral principles.

According to Austin, positive law is a series of both explicit and implicit commands from a higher authority. The law reflects the sovereign's wishes and is based on the sovereign's power. Backed by sanctions and punishment, it is not the same as divine law or human-inspired moral precepts. Viewing the law in this way, Austin did not so much question what it ought to be but revealed it for what he thought it was. Analytical jurisprudence sought to consider law in the abstract, outside of its ethical or daily applications. In Austin's view, religious or moral principles should not affect the operation of law.

Austin was not as influential in his lifetime as his fellow Utilitarians jeremy bentham, James Mill, and john stuart mill. His intellectual output did not match his potential, owing in part to poor health and a self-defeating attitude. Yet Austin is regarded by legal historians as a significant figure in the development of modern English jurisprudence.

Austin was born in England in 1790, the son of a prosperous miller. After a stint in the army, he studied law but was not an enthusiastic or especially capable practitioner. Reflecting a keen, analytical mind, Austin's skills lay in writing and theory rather than in equity pleadings. Austin gave up his law practice in 1825 and, in 1826, was named the first professor of jurisprudence at the University of London. To strengthen his academic credentials, Austin studied roman law and German civil law in Heidelberg and Bonn from 1827 to 1828.

Austin's professional pursuits were undermined by his ill health and self-doubt. In 1832, he resigned from teaching because his lectures were poorly attended. During the same year, Austin published the barely noticed The Province of Jurisprudence Determined, a collection of his university lectures. Shortly thereafter, he accepted a post on the Criminal Law Commission, but he resigned from that when his suggestions were not followed. Austin's attempt, in 1834, to resume his legal lectures for the Society of the Inner Temple failed.

In 1838 Austin served on a commission investigating complaints about the management of Malta, a British colony. This time, his efforts were successful, as his work led to tariff reform and improvements in the Maltese government.

"A law … in its literal meaning… may be said to be a rule laid down for the guidance of an intelligent being by an intelligent being having power over him."
—John Austin

The following decade, Austin lived abroad with his wife, Sarah Taylor Austin. In 1848, the couple returned to England, where Austin died on December 1, 1859. In 1863, his widow republished The Province of Jurisprudence Determined under the new title Lectures on Jurisprudence. This single volume received the widespread acclaim that had eluded Austin during his lifetime.

Although critics of analytical jurisprudence do not accept Austin's separation of social and moral considerations from the law, they value his contributions to the discussion. Austin's writings influenced other prominent legal theorists, including U.S. Supreme Court justice oliver wendell holmes jr.

further readings

Hoeflich, M. H. 1985. "John Austin and Joseph Story: Two Nineteenth Century Perspectives on the Utility of the Civil Law for the Common Lawyer." American Journal of Legal History 29 (January): 36–77.

Merriam, Charles Edward. 1999. History of the Theory of Sovereignty Since Rousseau. Union, N.J.: Lawbook Exchange.

Rumble, Wilfrid E. 1996. "Austin in the Classroom: Why Were His Courses on Jurisprudence Unpopular?" Journal of Legal History 17 (April): 17–40.

cross-references

Jurisprudence; Utilitarianism.