John Austin (legal philosopher)

Life and work

Austin was born on March 3, 1790, the eldest son of a well-to-do Suffolk miller. After spending five years in the army during the Napoleonic Wars, Austin turned to law and spent seven unhappy years practising at the Chancery bar. In 1819, Austin married Sarah Taylor and became neighbours and close friends with Jeremy Bentham and James and John Stuart Mill. Largely through Bentham's influence, Austin was appointed professor of jurisprudence at the newly founded University of London in 1826. Austin's lectures were not well-attended, and he resigned his university post in 1834. Thereafter, aside from two stints on government commissions, Austin lived largely on his wife's earnings as a writer and translator. Plagued by ill health, depression and self-doubt, Austin wrote little after the publication of his major work, The Province of Jurisprudence Determined (1832). This work was largely ignored during Austin's lifetime. It became influential only after his death when his wife, Sarah Austin, published a second edition in 1861. A second book, Lectures on Jurisprudence, was put together by Sarah from Austin's notes and published in 1863.

Legal positivism

Austin’s goal was to transform law into a true science. To do this, he believed it was necessary to purge human law of all moralistic notions and to define key legal concepts in strictly empirical terms. Law, according to Austin, is a social fact and reflects relations of power and obedience. This twofold view, that (1) law and morality are separate and (2) that all human-made ("positive") laws can be traced back to human lawmakers, is known as legal positivism. Drawing heavily on the thought of Jeremy Bentham, Austin was the first legal thinker to work out a full-blown positivistic theory of law.

Austin argues that laws are rules, which he defines as a type of command. More precisely, laws are general commands issued by a sovereign to members of an independent political society, and backed up by credible threats of punishment or other adverse consequences ("sanctions") in the event of non-compliance. The sovereign in any legal system is that person, or group of persons, habitually obeyed by the bulk of the population, which does not habitually obey anyone else. A command is a declared wish that something should be done, issued by a superior, and accompanied by threats in the event of non-compliance. Such commands give rise to legal duties to obey. Note that all the key concepts in this account (law, sovereign, command, sanction, duty) are defined in terms of empirically verifiable social facts. No moral judgment, according to Austin, is ever necessary to determine what the law is — though of course morality must be consulted in determining what the law should be. As a utilitarian, Austin believed that laws should promote the greatest happiness of society.

Criticism

Though Austin's brand of legal positivism was greatly influential in the late 19th and early 20th centuries, it is widely seen as overly simplistic today. Critics such as H. L. A. Hart have charged that Austin's account fails to recognize that: (1) Most legal systems include rules that do not impose sanctions, but rather empower officials or citizens to do certain things (e.g., to make wills), or specify ways that legal rules may be identified or changed. (2) In many modern legal systems, such as that of the United States, lawmaking power is dispersed and it is very difficult to identify a "sovereign" in Austin’s sense. (3) Defining legal duties in terms of "habits of obedience" to a determinate sovereign makes it hard to explain why laws remain in force when one government replaces another.

(4) Mere threats do not give rise to obligations. If they did, there would be no essential difference between a gunman's threat ("Your money or your life") and an ordinary piece of legislation.