British legal philosopher John Austin (1790-1859) is noted for providing the terminology necessary to analyze the interrelationship between ethics and proper law that has evolved into the modern field of jurisprudence.
A friend of noted nineteenth-century Utilitarian thinkers Jeremy Bentham and John Stuart Mill, British attorney and educator John Austin became well-known for his attempt to provide an easily understandable ethical framework that could establish the rule of law as distinct from the rule of "God" and Christian morality. Although they were little discussed during his own lifetime, Austin's writings, such as his 1832 work The Province of Jurisprudence Determined, paved the way for the more recent development of the school of analytical jurisprudence. As one of the foremost promoters of legal positivism, Austin argued that law, as opposed to moral imperatives, should be viewed simply as a form of command, made by an acknowledged and legitimate ruler, that gains adherence solely by means of an effective punishment.
Lackluster Career in Court
Austin was born in Creeting Mill, Suffolk, England, in 1790, to parents of average means. His father, a merchant, provided sufficiently for his family to enable his son to gain a commission in the military, where Austin remained from 1807 to 1812. Studying the law upon his release, he was called to the Bar in 1818. Disliking appearing in public and uncomfortable with his rhetorical skills, the bookish Austin practiced infrequently in England's chancery court and within only a few years had developed a rather lackluster reputation as an attorney due to his small caseload, his limited public-speaking skills, and his disposition toward illness and depression. In 1820 he had married Sarah Taylor, who as Sarah Taylor Austin became a successful editor and translator. Her works included the 1840 publication of A History of the Popes by German author Leopold von Ranke and French historian Francois Guizot's 1850 The English Revolution. Bolstered by his wife's emotional support and ability to earn enough money to support the couple's needs, Austin quit the practice of law in 1825.
Despite his less than stellar performance as a practicing attorney, Austin's obvious intelligence and his interest in the analytical aspects of legal theory drew the attention of Jeremy Bentham, an attorney and ethicist who had developed a following—its members known as Benthamites—to promote his philosophical views. Bentham's support resulted in Austin's 1826 appointment as the first professor of jurisprudence at the University of London, then just newly established (the University of London would eventually become University College, London) with Bentham as a founder. Austin's wife, who also shared her husband's utilitarian leanings and interest in legal reform, enjoyed the opportunity to frequent intellectual circles, and the couple eventually met such noteworthy individuals as Thomas Carlyle and John Mill. Throughout Austin's life she worked tirelessly to promote her husband's career despite his frequent bouts of melancholy.
Prior to beginning his teaching assignment at the university, Austin spent two years in Bonn, Germany, where he undertook the study of the law of ancient Rome. He also became fascinated with the classification systems and methods of analysis developed by German scholars to organize civil laws then on the books in the continent. A perfectionist, he wanted to devise a context in which to discuss his subject that would make it easily understood by the average student. Influenced by seventeenth-century English political philosopher Thomas Hobbes and his attempt to extend deductive reasoning to the study of man and society in his Leviathan (1651), Austin also looked to mathematical theory to develop a clear framework for his subject.
Returning to University College in 1828 to begin his classroom teaching, Austin made an early friend of John Stuart Mill, a Scottish-born ethicist fourteen years Austin's junior who would go on to become the most famous proponent of Utilitarianism—the ethical theory that maintains that one should always act to maximize the welfare of the greatest number. Along with his wife, Austin became close friends with Mill, as well as Bentham, who would die in 1832. While he shared his friends' Utilitarian bent, he did not share their ambition and their ability to get along well in social settings. As had been the case while attempting a career as a practicing attorney, Austin found himself still plagued by a frequent melancholy which prevented him from energetically opposing setbacks to his career.
Creates Foundational Framework for Philosophical Study
Jurisprudence—the philosophy of law as it relates to the restrictions imposed on the structure and actions of the court—was a relatively new area of legal study when Austin undertook his teaching post in London in 1828. Indeed, its roots can be found in the relatively new ideas of Utilitarian thinkers such as Mill and Bentham, particularly its concern over how to best determine the rule of law that will result in the greatest advantage to the greatest number in the community affected by the litigation in question. It is through the science of jurisprudence that courts formulate rules that determine the appropriate rules under which new cases or administrative matters with no established legal precedent should be handled.
In addition to being a "new" science, Jurisprudence was not a required part of the law curriculum in the early 1800s, and its theoretical element made it less than appealing to students more in need of strong oratory skills than theoretical understanding. Although he lectured in the subject for several years and drew many notable scholars of his day to his first lectures, Austin soon saw attendance at his lectures fall. Insufficient registration in his classes prompted him to resign his chair at University College, London in the spring of 1832.
Revolutionary Publication Initially Ignored
The publication of Austin's most notable contribution to British law, his The Province of Jurisprudence Determined, was concurrent with its author's departure from academic life. The volume included excerpts from his lectures on the subject, and in it he attempted to clarify the difference between proper law—the law that has its basis in the desire of the governmental authority—and moral law. According to Austin, laws can best be interpreted as a type of command: an expressed desire that another party perform or refrain from performing a specific action, this expression accompanied by the threat of a clearly defined sanction or punishment if not obeyed. To qualify as laws rather than other forms of commands, laws must outline a prescribed course of conduct rather than a specific act and must be set by a "sovereign" body: a supreme ruler or governing body to whom an independent society habitually looks for leadership. Sanctions can be positive or negative, and can include reward or punishment by state agencies; natural consequences or the dictate of one's conscience are not, in this case, legitimate sanctions. In this manner, "positive law" is distinguished from the laws of God that take their shape in moral principles and precepts and such things as social etiquette and international laws such as the unwritten laws of warfare, which have no source in a sovereign body.
In his work Austin outlines the basic theory, originated by Bentham, underlying what has since come to be called legal positivism due to its implicit argument that the law is based on no higher authority than the will of the sovereign power. Austin's utilitarian beliefs also inform his argument, for he further maintains that a law's "utility" is based on its general application rather than application to a specific instance or action. While a procedural matter may result in one guilty man being set free, it is nonetheless a just law if by its continued application it results in most guilty men being convicted.
Although not widely read by members of the legal profession immediately after its publication, Austin's book eventually gained influence over both English and American law by revolutionizing concepts of ethics as they relate to the legal system. By introducing terminology appropriate to the consideration of ethical matters within the legal realm, Austin's book facilitated the discussion that culminated in the establishment of the English analytical school of jurists.
The discussion of jurisprudence set forth in The Providence of Jurisprudence Determined was prefatory to an understanding of Austin's subsequent collection of lectures, compiled in Lectures of Jurisprudence, and published post-humously by Sarah Taylor Austin in 1863. Although unfinished at the time of his death, these lectures expand upon concepts relevant to the study of jurisprudence, such as "pervading notions" of duty, liberty, injury, punishment, right, status, and sources of laws. Austin viewed such institutional analysis as separate from a discussion of the institutions themselves, but maintained that a grounding in jurisprudence would facilitate the consideration of other aspects of the legal process.
Life Ended in Relative Seclusion
In 1834 Austin attempted to make a living by lecturing on jurisprudence in the Inner Temple, but was unsuccessful in this attempt and abandoned teaching altogether. Austin was appointed to the Criminal Law Commission in 1838 and participated in that body's first two reports. However, his frustration at not having his ideas incorporated in the commission's decisions prompted Austin to once more resign. An appointment by the British Crown as commissioner on the affairs of Malta, a group of three islands in the Mediterranean off the south coast of Sicily, took the Austins abroad once more, and after retiring from his commission the couple moved to Paris. While attempting to revise his Province several times due to his own increasingly conservative views on politics and morality, Austin was unable to complete the task, likely due to the depression that haunted him throughout his life and the incapacity of the perfectionist. During the 1850s Sarah Austin provided for both she and her husband through her work as a translator and reviewer for English periodicals. In 1848 Austin and his wife returned to England and purchased a home in Weybridge, Surrey, where he lived until his death in December of 1859 at the age of sixty-nine. His wife survived him by eight years, dying in 1867.
Although Austin's life was noteworthy as much for its string of defeats, his analysis of proper law served as the basis for continued study in his field. Later jurists of his own century, such as the Americans Oliver Wendell Holmes and J. C. Grey, acknowledged Austin's contributions to legal theory, particularly his ability to draw a distinction between the law and morality. While his views have been more recently condemned by twentieth-century scholars such as H. L. A. Hart due to their inflexibility in the wake of changing social priorities, the structure and continuity of his analytical framework remains a respected standard.
Campbell, E. M., John Austin and Jurisprudence in Nineteenth-Century England, 1959.
George, Robert P., editor, The Autonomy of Law: Essays on Legal Positivism, Oxford University Press, 1999.
Hamburger, Lotte, and Joseph Hamburger, Troubled Lives: John and Sarah Austin, University of Toronto Press, 1985.
Hart, H. L. A., Of Laws in General, Althone Press, 1970.
Mill, John Stuart, "Austin on Jurisprudence," Dissertations and Discussions, Vol. 4, 1874.
Rumble, Wilfred E., The Thought of John Austin: Jurisprudence, Colonial Reform, and the British Constitution, Althone Press, 1985.
"John Austin," Stanford Encyclopedia of Philosophy,http://plato.stanford.edu (February 2, 2002). □
John Austin, jurist, whose works The Province of Jurisprudence Determined (1832) and Lectures on Jurisprudence: Or, the Philosophy of Positive Law (published posthumously in 1863) exerted a profound and lasting influence on the development of jurisprudence and legal studies in England and in most English-speaking countries, was born in 1790, the eldest son of an East Anglian miller. After six years of service in the army, he practiced at the English bar, and on the foundation of the University of London in 1826 he became its first professor of jurisprudence. In 1833, discouraged by his dwindling audiences, he resigned his professorship and lived in retirement until his death in 1859.
Austin was a convinced utilitarian and a close friend and pupil of Jeremy Bentham, although he did not share Bentham’s political radicalism. Much of his work consists in the lucid exposition, illustration, and elaboration of Bentham’s ideas in a form more comprehensible and palatable to English lawyers than Bentham’s own writings. Hobbes and Hume were important, although secondary, influences on Austin’s theory of law and society, and he derived from his study of Roman and pandect law important ideas concerning the analysis, classification, and systematization of legal notions.
Austin’s doctrines may best be viewed as the advocacy of three principal theses, which collectively make his work a prime example of what is now known as legal positivism. The first of these theses concerns the definition of law, the second the relationship between law and morals, and the third the nature and scope of a form of legal study which he termed “general jurisprudence.”
Definition of law. Austin defined law as a species of command distinguished by the fact that it enjoins or prohibits courses of action rather than single actions and is “set” or given to the members of a society by the sovereign. A legal system is therefore a collection of laws emanating from the same sovereign. Much of The Province of Jurisprudence Determined is devoted to the precise expositions of the terms used in this definition. For Austin, a command is an expression of desire that another person act or abstain from some action, accompanied by a threat of evil (a sanction) in the event of disobedience. A sovereign is the person or persons to whom the bulk of a given society is in a habit of obedience but who himself renders no such obedience to anyone. Austin considered that in every civil society where law exists such a sovereign is to be found: in Great Britain the sovereign body consists of the crown, members of the House of Lords, and the electorate; and in the United States the sovereign is the aggregate body of the electorates of all the states. Austin allowed that a command might be either explicit, as in the case of legislation, or “tacit,” i.e., inferred from the fact that the sovereign permits laws that were introduced by an earlier sovereign or are of customary origin to be enforced by his subordinates. It follows, however, from Austin’s definition of law that neither international law nor customary law may properly be called law prior to enforcement in particular cases.
Relation between law and morals. Though Austin knew that the development of law had in fact been profoundly influenced by morals and that many legal rules conformed to or reproduced the requirements of morality, he insisted, in opposition to theories of natural law, that there is no necessary or conceptual connection between law and morals and said that the tendency to confuse law and morals is “one most prolific source of jargon, darkness and perplexity.” Hence a legal rule, however morally iniquitous, is still valid if it is enacted in due form. Austin did not think that men were morally bound to obey all valid laws, although they should always consider, before disobeying a law, whether in all the circumstances disobedience would produce worse consequences than obedience.
Within the sphere of morality Austin distinguished between “positive morality”—i.e., the actually accepted or conventional morality of a particular social group—and the “laws of God,” of which utility (the greatest happiness of the greatest number) is the “index.” These “laws of God” are the supreme test of the rules of both positive law and positive morality, the standards determining not what they are, but what they ought to be. “Positive morality” was used by Austin to embrace all man-made rules of human conduct except positive law and includes, besides moral rules in the ordinary sense, codes of manners as well as international law.
The form of utilitarianism which Austin advocated is today known as “rule utilitarianism,” which makes utility the test not of the Tightness or wrongness of particular actions but of general rules, an action being right if it conforms to the requirement of rules that pass the test of utility.
Scope and nature of jurisprudence. Austin distinguished, as did Bentham in different terminology, between the science of legislation, concerned with the criticism and reform of law, and the science of jurisprudence, concerned with the exposition, analysis, and orderly arrangement of systems of law. He believed that there are fundamental distinctions and notions common to all mature systems of law and that general jurisprudence is concerned with their clarification and analysis. They include such distinctions as those between written and unwritten law and between torts and crimes and such notions as rights, obligations, injuries, persons, things, and acts. General jurisprudence is exclusively an analytical study concerned neither with the history nor with the evaluation of law, but solely with the clarification of meanings. Such a value-free analytical study is today usually referred to as analytical jurisprudence.
The influence of Austin’s work was small during his lifetime, although his writings were much admired by members of the Benthamite circle, including John Stuart Mill, Sir George Cornewall Lewis, and Sir Samuel Romilly. But after the posthumous publication of the whole of his work, his ideas came to dominate English jurisprudence, which for long remained primarily analytical in character. Austin’s influence in the United States has been less considerable, although it can be distinctly traced in the works of John Chipman Gray and Oliver Wendell Holmes. On the continent of Europe, Austin’s work was until recently recognized only by a few positivist thinkers, such as Karl Bergbohm in Germany, Ernest Roguin in France, and Hans Kelsen, whose “pure theory” of law has many similarities to Austin’s doctrine.
Criticisms of Austin’s works have ranged very widely. His definition of law has been attacked on the ground that in spite of obvious analogies between criminal statutes and commands, there are many sorts of law that are distorted by assimilation to a command. His conception of the sovereign has been criticized as a misrepresentation of the structure of anything but a very simple form of society, and especially inapplicable to those societies whose supreme legislature is subject to legal limitations imposed by a constitution. Austin’s insistence on the separation of law and morals has been criticized, notably in the United States, for obscuring the true character of the judicial process that is exhibited at those points where judges have a creative choice left open to them by legal rules and therefore have recourse to standards of morality and justice. Similarly, his insistence on the importance of a purely analytical jurisprudence has been criticized as an example of the vicious abstraction of law from its social setting and function, characteristic of English lawyers. Austin has even been criticized for encouraging subservience to tyranny and an uncritical attitude to bad laws. Some, but not all, of these criticisms are well founded. Their debate has usually advanced the understanding of law as a form of social control, and it is a great merit of Austin’s lucid and penetrating work to have provoked it.
H. L. A. Hart
[For the historical context of Austin’s work, seePluralism; Sovereignty; and the biographies ofBentham; Hobbes; Hume. For discussion of the subsequent development of Austin’s ideas, seeJuris-prudence; Political group analysis; Political theory; Public law; and the biographies ofHolmes; Kelsen; Mill.]
(1832–1863) 1954 The Province of Jurisprudence Determined and The Uses of the Study of Jurisprudence. London: Weidenfeld & Nicolson. → Two books bound together.
(1863) 1911 Lectures on Jurisprudence: Or, the Philosophy of Positive Law. 5th ed., rev. 2 vols. London: Murray.
Agnelli, Arduino 1959 John Austin alle origini del positivismo giuridico. Istituto di Scienze Politiche dell’ Università di Torino, Pubblicazioni, Vol. 7. Turin (Italy): Edizioni Giappichelli.
Hart, H. L. A. 1961 The Concept of Law. Oxford: Clarendon. → See especially Chapters 1–3.
Maine, Henry S. (1875) 1897 Lectures on the Early History of Institutions. 7th ed. London: Murray. → See especially Chapter 12 on “Sovereignty” and Chapter 13 on “Sovereignty and Empire.”
Manning, C. A. W. 1933 Austin To-day: Or, The Province of Jurisprudence Re-examined. Pages 180–226 in London School of Economic and Political Science, Modern Theories of Law. Oxford Univ. Press.
Morison, W. L. 1958 Some Myth About Positivism. Yale Law Journal 68:212–233.
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."
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.
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.
Controversialist and hymnodist; b. Walpole, Norfolk, England, 1613; d. London, 1669. Austin (pseudonym, William Birchley) was educated at St. John's College, Cambridge, where he was contemporary with John sergeant. He became a Catholic c. 1640 and left the university for Lincoln's Inn. For some time he was tutor to Walter Fowler of St. Thomas's, Staffordshire, a noted recusant literary center. He probably visited the English Hospice at Rome in 1640 and 1646. During the Interregnum Austin belonged to the group of Catholics (White, Sergeant, Holden, Belson, Keightley) who advocated allegiance to the Cromwellian government and hoped for a degree of toleration and sympathy from the Independents. Austin's Christian Moderator (1651–53) advocated toleration for recusants from an Independent viewpoint and was quick to use T. Hobbes's Leviathan (1651) in support of its arguments. When the question of toleration arose again at the Restoration, Austin published Reflexions upon the Oathes of Supremacy and Allegiance (1661). He published also Devotions in the Ancient Way of Offices (1668), a version of the primer with original hymn versions, which ran through several editions. There had been several recusant primer versions before this, but Austin's was adapted for non-Catholic use by Theophilus Dorrington (Reform'd Devotions, 1686) and Susanna Hopton (Devotions in the Ancient Way of Offices, ed. G. Hickes, 1700); both these works were often reedited. The hymns in Austin's book also found their way separately into other non-Catholic collections, most notably S. Speed's Prison Pietie (1677), John Wesley's Collection of Psalms and Hymns (Charlestown 1737), and Roundell Palmer's Book of Praise (1862).
Bibliography: o. shipley, Annus Sanctus (New York 1884). j. julian, ed., A Dictionary of Hymnology, 2 v. (2d ed. London 1907; repr. New York 1957) e. hoskins, Horae Beatae Mariae Virginis (London 1901). j. gillow, A Literary and Biographical History or Bibliographical Dictionary of the English Catholics from 1534 to the Present Time, 5 v. (London-New York 1885–1902; repr. New York 1961) 1:87–90.
[t. a. birrell]