Austin, John (1790–1859)
John Austin, the most influential English legal philosopher of the analytical school, was born in London; at the age of sixteen he enlisted in the army and served five years, resigning his commission to study law. He was called to the bar in 1818. The following year he married Sarah Taylor, a woman of great intelligence and beauty, to whom many distinguished men of the age were deeply devoted.
The Austins became neighbors of Jeremy Bentham and the Millses and for twelve years remained closely associated with individuals in the Benthamite circle. The practice of law held little appeal for Austin, whose interests were primarily scholarly and theoretical; and after seven years he gave it up. In 1826, on the founding of the University of London by the Benthamites with whom he had been closely associated for years, he was offered its chair in jurisprudence. He accepted with enthusiasm and immediately began to prepare himself by establishing his family in Bonn, where he taught himself German and studied the newly discovered Institutes of Gaius; the Pandects ; and the works of Gustav Hugo, Anton Friedrich Justus Thibaut, and Friedrich Karl von Savigny. Some of the finest young minds in England—John Stuart Mill, George Cornewall Lewis, Sir John Romilly, and Sir William Erie among them—attended the first series of lectures at London. The Province of Jurisprudence Determined, published in 1832, is an expanded version of the first part of these lectures. Apart from this work, Austin published in his lifetime only two articles and a pamphlet attacking reform, A Plea for the Constitution. Austin, who once remarked, "I was born out of my time and place—I ought to have been a schoolman of the twelfth century—or a German professor," never again reached the high point of his first year at London. Student interest declined, and the chair, which had been supported by student fees, was given up by Austin in 1832 for financial reasons. His wife tells us that this was "the real and irremediable calamity of his life—the blow from which he never recovered." Plagued by illness and self-distrust, he served a brief and frustrating period, beginning in 1833, on the Criminal Law Commission; and later, with more satisfaction, he served as royal commissioner of Malta. During his remaining twenty years Austin spent some time on the Continent and a final period in Weybridge, not far from London, which proved to be the quietest and most contented part of his life. The second edition of the The Province was published in 1861, two years after his death. The first complete edition of The Lectures on Jurisprudence or The Philosophy of Positive Law, reconstructed from his notes by his wife, was published in 1863.
Both the nature and the results of Austin's inquiry deserve attention. What are the characteristics of his inquiry? First, his aim was to keep rigorously separate two questions that had formerly been confused, with much practical harm resulting: What is law? And what ought the law to be? Austin wished to lay a solid foundation for answering the second question by clarifying the first. His answer to the second question was along strictly utilitarian lines. Second, his inquiry was analytical rather than empirical. He was concerned with the analysis of concepts, not, for example, with historical or sociological questions. Finally, connected with the preceding analysis, he hoped to provide a general theory of law—"General jurisprudence"—whose concepts would permit us to grasp the essential features of any legal system without describing any particular system; this task of description was reserved for "particular jurisprudence."
What were the results of Austin's inquiry into the nature of law? The province of jurisprudence, the subject matter selected for study, is law "strictly so-called," or positive law, as contrasted, for example, with divine law (related to it by analogy) or physical laws of nature (related to it by metaphor). Positive law is a rule set for subjects by a sovereign in a politically independent society. A major part of The Province consists of analyses of the concepts in this explanatory definition. A rule is a species of command; it is a command that obliges the performance of a class of actions. A command is an expression or intimation of a wish that another do or forbear from doing some act, coupled with the ability and intention to inflict harm in case of noncompliance. The command concept, the key to the science of jurisprudence for Austin, encompasses the concept of a sanction (the evil that will probably be incurred in case of noncompliance), the concept of superiority (the power of forcing compliance with one's wishes), and the concept of obligation or duty (sometimes, for Austin, one is "obliged" because one fears the sanction, sometimes when one is "liable" to the sanction). A sovereign is that person or group of persons receiving habitual obedience from most members of a given society but not in turn having a like habit of obedience to a superior. An independent political society is one in which most members of the society have a habit of obedience to some person or group of persons who have no such habit of obedience to another.
Austin addressed his first class at London in these words: "Frankness is the highest compliment … I therefore entreat you, as the greatest favour you can do me, to demand explanation and ply me with objections—turn me inside out." Legal philosophers have paid him this compliment. His method and his results have come in for severe and often valid criticism. The inadequacies of Austin's theory result mainly from his selecting as basic tools of analysis the concepts of a command and habitual obedience. The former cannot account for certain commonly accepted features of law. It fails, first, to explain the varied content of laws, for if we view all law as an order or command backed by threats, we neglect those many laws that do not impose duties but, rather, function in a variety of ways. It also fails to account for the range of persons to whom laws are normally applicable, for orders are addressed to others, whereas most laws bind those who have enacted them as well as those who have not. Next, orders are deliberate datable events; only with much stretching of meaning and introduction of fictions (the sovereign commands what he permits) can they account for the legal status of customary law and the decisions of the courts. Finally, the concept of a command leads Austin to the erroneous claim that one has a legal obligation because one fears the sanction.
The peculiar deficiency of a concept that links the law to habitual obedience is that serious difficulties are encountered in accounting for either the continuity of legal authority or the persistence of law. With the concept of habitual obedience alone, we should be unable to explain the common legal phenomena of one person's succeeding another in the authority to legislate or of laws that remain obligatory long after the legislator and those who habitually obeyed him are dead. Finally, focusing on coercion as the essence of law prevented Austin from developing sufficiently the connections that law has with morality, connections that make understandable one's moral obligation to obey the law.
In addition to these criticisms, Austin has been charged with lack of originality, even in his fundamental mistakes, for identical views may be found in Thomas Hobbes and Bentham. Bryce commented, "Bentham … drops plenty of good things as he goes along. Austin is barren." It is understandable that we should wonder at Austin's great influence, and his reputation as a great legal philosopher.
First, Austin's positivism, his insistence on separating questions of fact and value, has made legal philosophers sensitive to how easily these questions may be confused and how we may, as a result, delude ourselves into thinking we have answered one of these questions when we have, in fact, answered the other. Even more important, Austin's failures, all associated in some way with his imperativism, have been helpful. He was not alone in feeling the grip of a certain idea, the idea that law is simply the impressing of the will of the stronger upon the weaker. Austin's chief virtue was that he systematically developed, defended, and refined this idea, stripping it of excess philosophical baggage. In doing this he enabled us to focus with greater precision on those features of law that connect it with coercion. More than this, his model presses us to remark upon its limitations, the respects in which viewing law as coercion obscures its complicated role in our lives. After Austin, we understand better what there is in law that connects it with coercion and what there is in law that does not. This is his principal legacy. He provides one more instance in philosophy of our gaining something from a false statement that we might not have gained from a true one.
works by austin
Lectures on Jurisprudence, 5th ed., 2 vols. London: Murray, 1885.
The Province of Jurisprudence Determined. Introduction by H. L. A. Hart. London: Weidenfeld and Nicolson, 1954.
works on austin
Brown, Jethro. The Austinian Theory of Law. London: Murray, 1906.
Bryce, James. Studies in History and Jurisprudence, Vol. II. Oxford: Clarendon Press, 1901.
Hart, H. L. A. The Concept of Law. Oxford: Clarendon Press, 1961.
Maine, Henry. Early History of Institutions. London: Murray, 1875, Chs. XII and XIII.
Mill, J. S. Dissertations and Discussions, Vol. III. London: Longmans, 1867.
Morison, W. L. "Some Myths about Positivism." Yale Law Journal 68 (1958): 212–233.
Morris, Herbert. "Verbal Disputes and the Legal Philosophy of John Austin." UCLA Law Review 7 (1960): 27–56.
Herbert Morris (1967)
Bibliography updated by Philip Reed (2005)