Version: v1, Published online: 1998
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Although written in the early nineteenth century, Austin’s is probably the most coherent and sustained account of the theory of legal positivism. The complex relationships between legal positivism and the concepts of morality and politics are explored by him but are often neglected or misunderstood in modern commentaries.
John Austin became in 1829 the first Professor of Jurisprudence at the newly established University of London, having previously spent a brief spell in the army, followed by a somewhat longer period of work in barristers’ chambers as an equity draftsman. In preparation to take up his chair, he spent two years studying in Bonn, acquainting himself with classical Romano-German legal science. A neighbour of James Mill and Jeremy Bentham, he was much of their intellectual circle, and had John Stuart Mill as a student. His main work was a systematic explanation of some basic social concepts in terms which have been received as the classical statement of ‘legal positivism’, according to which law is dependent on the will of superior(s) over inferior(s) (see Legal positivism §2).
Austin wanted all lawyers to commence their studies with the cognitive sciences, logic and ethics. Politics and the study of law were seen by him as subcategories of ethics. More than half of his introductory series of lectures was given over to an exposition of the principle of utility – seen either as the index to the laws of God, or as the rational basis of ethics (see Utilitarianism).
He said that all laws (apart from scientific laws) were set to intelligent beings by intelligent beings, having power over them. There are two basic types of laws – those set by God for people and those set by people for others. Of the laws set by God, Austin said that he would normally call these ‘natural’ laws, but as this word is likely to be confused with aspects of sociology, he would instead call them ‘divine’ laws. He recognized that ‘non-believers’ would prefer the word ‘ethics’. On either view, these provide the standard by which all other laws should be judged. Many modern positivist scholars think that positivism and natural law are opposed to each other – not so for Austin.
Austin said that of laws set by people there can also be two types – those set by them as political superiors (positive law) and those set by them in other capacities (positive morality). Having set out the basic categories of ethics, positive law and positive morality, Austin went on to explain their common and distinctive features. They have in common the concepts of ‘commands’, ‘duties’ and ‘sanctions’. The intelligent being or person lays down some general rule for the guidance of human conduct. If it is not complied with, the maker of the rule can exact some detriment for non-compliance.
The distinctive features of ‘positive law’ (the law of the state) are that it comprises rules made by ‘sovereigns’ addressed to ‘subjects’ within an ‘independent political society’. While these ideas are scorned by most contemporary legal theorists, they remain fundamental in international politics and foreign affairs policy. Austin made it clear that the study of politics is logically and socially prior to the study of state law. Without political stability there is no state, and without the state no law of the state. The most contentious aspects of Austin’s views were his claims that ‘sovereigns’ cannot be bound by state laws, and that the ‘laws’ operating between states would be better viewed as ‘international positive morality’. Both points relate to the role of coercion, assuming that the author of a coercive law cannot, logically, also be subject to it, and that state boundaries limit the enforceability of state laws, but not necessarily their range of application (see Sovereignty §§2, 3).
Some suggest that his separation of the concepts of positive (state) law, positive (existing or customary) morality, and ethics (the critical base), entails that the positive law can be understood or implemented without understanding its relationship to the other factors. This is plainly wrong.
There has been much debate about this ‘separation of law and morality’. Most writers on the topic forget that Austin said – ‘Positive law (or jus), positive morality (or mos) together with the principles which form the test of both, are the inseparably connected parts of a vast organic whole’ (1861–3: 17). An unfulfilled project of his was to write a book on The Principles and Relations of Jurisprudence and Ethics. It follows from Austin’s analysis that as we are dealing with three types of rules there are also three types of duties as well as three types of commands and sanctions. Austin said that if there should be any conflict between the duties of positive law and the duties of ethics or divine law, then because the sanctions which God could impose would greatly outweigh those which could be imposed by the human makers of positive law, it would accord with the principles of utility to act in accordance with the natural or divine law and not the law of the state.
The law of the state, he said, had its basis in the positive morality of the wider community, and should be guided in its development by the positive morality of the legal and international communities.
Austin had no time for ‘the childish fiction employed by our judges, that judiciary law or common law is not made by them, but is a miraculous something made by nobody, existing, I suppose from eternity, and merely declared from time to time by the judges’ (1861–3: 634). He explains at some length how it is that judges make the law rather than just find it, and entitles chapters 35–9 of his Lectures ‘Judicial Legislation’. In its conceptual aspects, Austin’s approach influenced the work of people such as W.N. Hohfeld, and in its social aspects has much in common with the writing of the later legal realists (see Hohfeld, W.N.; Legal realism).
Austin’s strongest supporter was his wife Sarah, who was accomplished and well known in the intellectual circles of London and Paris, and with a number of important translations to her credit. As a teacher, Austin was not conspicuously successful, and his periods of formal academic employment were quite brief, at the University of London (1829–33) and at the Inns of Court in London (1834). He also worked with the British Criminal Law Commission (1833) and for a short period as a Commissioner to the Royal Commission on Malta (1836–8).
Moles, Robert N.. Austin, John (1790–1859), 1998, doi:10.4324/9780415249126-T025-1. Routledge Encyclopedia of Philosophy, Taylor and Francis, https://www.rep.routledge.com/articles/biographical/austin-john-1790-1859/v-1.
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