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.
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.
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.
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.
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).