AUSTIN John—a theoretician of law, b. March 3, 1790 in Creeting Mill, Suffolk, d. December 17, 1859 in Weybridge, Surrey.
He came from the English middle class. In 1807 he began a military career (he was stationed in Sicily and Malta). In 1812 he began legal studies in the chancellery of G. Stykes. He finished these studies in 1818 and was entered into the list of advocates in 1820. He was not successful in legal practice. In 1819 he took up residence in London where he met J. Bentham and J. Mill.
His first article, Disposition of Property by Will-Primogeniture (Westminster Review 2, (1824)) appeared in 1824. In 1827 and 1828 he lived in Bonn and Heidelberg to learn Roman law and German legal theory and to prepare materials for didactic work. He returned to England and in 1829 began lectures int he Chair of Legal Science and the Law of the Nations in the University of London, which had been established in 1826 (presently University College). Future British statesmen and J. S. Mill were among his listeners.
In 1832 in London he published his lectures from 1829 and 1830: The Province of Jurisprudence Determined. In 1833, as the result of failure in didactic work, he interrupted his lectures. He finally resigned from the school in 1835 and began legal research. From 1833 he had been a member of the Royal Commission for the Codification of Penal Law but resigned from this post in the following year. In 1834 he gave a cycle of lectures in Inner Temple. In 1835 he settled in Bologne. In 1844 he moved to Paris and remained there until the beginning of the revolution in 1848. He returned to England and settled in the London suburb of Weybridge Surrey. He worked scientifically but published little (Centralisation, Edinburgh Review 84 (1847); A Plea for the Constitution (Lo 1859)). By the efforts of his wife, S. Austin, his Lectures on Jurisprudence or the Philosophy of Positive Law was published (Lo 1861–1863, 19115), which contains Austin’s complete conception of the science of law.
Austin’s views were not understood during his lifetime by pragmatically disposed British jurists but became popular in the second half of the nineteenth century.
AUSTIN’S UTILITARIANISM. In keeping with the doctrine of classical utilitarianism (J. Bentham and J. Mill), understood as a theory of public and private morality, Austin took a view on ethics as a science in which he accepted utility as the basis of morality. Utility is the principle of the greatest happiness. The criterium for evaluating human actions is whether or not they contribute to happiness. Austin treated politics and studies of law as a domain of ethics understood in utilitarian terms. He drew upon the English philosophy of politics (T. Hobbes) and thought that studies of politics are more important than studies on positive law. Without political stability there is no state, and without a state there is no state law. He considered political economy and scientific politics as normative sciences. They study the problem of human actions directed to achieve benefits.
THE AIMS OF THE SCIENCE OF LAW. John Austin wanted to develop a general science of law that would be the domain of theoretical considerations on the basis of which the terminology and conceptual apparatus of the British practice of law (based on common law), a collection of unsystematic assertions, could be put in order. The fundamental legal concepts, classifications and principles had to be analyzed (analytic jurisprudence) to meet the needs of the science of law (jurisprudence) which treats the features of law as such, the foundations of law, and the universal legal concepts and contents. The need to answer the question of what law is and what its scope is (the province of law) led Austin to recognize binding positive law as the proper object of the study of jurisprudence. The task of jurisprudence was to distinguish the proper object of the science of law—positive law, from rules and norms of conduct that are associated with positive law only by similarity.
THE CHARACTERIZATION OF LAW. Austin divided law into law in the proper sense (properly so-called) and in the improper sense (improperly so-called). The term “law” in its broadest sense means a rule of conduct established for some thinking being by another thinking being who has authority over the first one. This definition of law includes laws established by God for the people he has created, and laws established by men for men (laws in the proper sense). The laws created by God for men, or the Divine law, are identical to the natural law (according to Austin this concept is vague and misleading and it designates only principles that exist in societies before the state). The Divine law, defined with the help of the principle of utility, is the set of Divine commands and also the criterium for the moral evaluation of general principles of action (that which leads to happiness is beloved to God, that is, it is in agreement with the Divine law).
Among the laws established by men for men one may distinguish: (1) laws established by persons who act as political superiors for political inferiors—positive laws; (2) laws established by persons who are not political superiors or do not act in that role. Objects similar to laws but that are not laws (customary laws, honorary laws, international laws), which together with the group of laws established by persons who are not political superiors form so-called positive morality. These are called laws (law improperly so-called) by a close analogy. Positive morality is the set of opinions, customs, and prejudices the rule in a particular society. Opinions arise in society on the basis of the economic relations that prevail in a given environment (they refer to freedom in the economic sphere). Customs (referring to the sphere of psychological phenomena) concern a mode of conduct, the rendering of obedience, e.g., prohibitions that have no justification in the positive law of mores that exist in a particular society). Opinions and mores are connected by the principle of utility. Prejudices are opinions and sentiments that have no foundation in the principle of utility. Besides this, there are also objects called laws only by a distant analogy (e.g., the laws of physics, growth of plants, or the laws that rule animal behavior), called “metaphorical” or “allegorical” laws. One may therefore distinguish four categories of law: (1) divine (natural) law; (2) positive law; (3) positive morality (law established not by political authorities or rules improperly called laws); (4) laws in the figurative sense. Of these four, only positive law should be the object of legal science.
A law is always a command that binds persons. A command contains three elements: (1) a wish (or desire) of a thinking being that another thinking being must carry out by acting in a certain way or abstaining from action; (2) an evil dealt by the first being and suffered by the second being in case he does not carry out the wishes of the first (a sanction); (3) an expression or some way of making others aware of a particular wish by words or other signs (the form in which the command is given is not essential). Only those commands that have a general character can be norms or rules, while commands that impose an obligation to perform a single action or prohibit a single action do not belong to law. A command to be a real law, or a binding law (positive law), must in addition be promulgated by a sovereign for his subjects, the members of an independent political society (a society subject to an authority who is not at the same time subject to any other authority). The sovereign also brings to life the positive law of his predecessors, giving it the attribute of sanctions, whereby he recognizes it as his own, as it were, and demands the same respect for it as he does for his own commands.
Austin distinguishes three groups of subjects who create positive law: (1) rulers or sovereign instances who are the highest political subjects; (2) officials—representatives of the sovereign, those subject to the authorities and making laws at their recommendation or with their permission; (3) private persons while coming into, or exercising, the rights that belong to them. From the moment a law is introduced by a sovereign by his power, it is binding for his subjects. If a citizen does not respect norms, his action is illegal (i.e., it is in disagreement with the sovereign’s expectations) and he must face the consequences.
THE POSITION OF THE SOVEREIGN. The sovereign is the individual or group that exercises the highest authority to whom the majority of society customarily shows obedience (the sovereign is a pre-legal fact and law is defined with reference to the sovereign as coming from the sovereign). Sovereignty is determined by the fact that it is subject to no other authority (the negative aspect) and the fact that the sovereign receives obedience from society (the positive aspect of sovereignty). If in a society the habit of obedience is shown to person X, and person X does not have the habit of obedience to anyone else, then person X is a sovereign in that society. A sovereign has the ability to command effectively, i.e., he can establish norms and is able to compel obedience for these norms under the threat of sanction. According to Austin, an authority is a sovereign who is guided by concrete aims, not a sovereign promulgating any laws whatsoever. The purpose for the existence of sovereign political authority is the greatest increase in human happiness. The obligations of the sovereign are in part religious (they are products of the Divine law that are known by the application of the principle of utility) and in part moral. An act of sovereign authority that is generally beneficial is legitimized by the Divine law (it is recognized by the principle of utility). The sovereign receives an entitlement that comes, as it were, from Divine laws, to promulgate a concrete act. The source of law is the Divine law (not the will of the sovereign). As for an act that would be generally injurious, the Divine law (recognized by the criterium of utility) would not give the sovereign any right to enact it.
Every law promulgated by a legitimate authority (one who receives obedience in society) is binding for all subjects. The subjects have the ability to protect themselves against a bad law by refusing obedience to the sovereign and thereby causing his downfall. They are guided by the calculus of what is most beneficial for society, whether it be an evil legal order or the anarchy that results from obedience. When they undermine one law, they undermine the meaning of the entire system of law. If resistance to the law and to the whole system who lead to the fall of the governing authority, then enlightened public opinion must establish whether this resistance is worthwhile. As long as a sovereign exists who is generally obeyed in society, the laws he promulgates must be observed by the subjects (his promulgation of laws that strike at the principle of utility cause justified resistance). However, one must consider the transitional anarchy, which, according to Austin, will exist after the overthrow of the sovereign. Government (or a sovereign) is necessary to do good for society. Therefore one should oppose only a patently evil authority or an authority that is unable to maintain order in society. Enlightened public opinion should “summon forth” new laws according to what is needed and public opinion should check the legislator in his actions with respect to the aim of authority, “the greatest possible increase of human happiness”.
THE SIGNIFICANCE OF JOHN AUSTIN. Austin’s theory is regarded as the classical form of legal positivism. Legal positivism is treated as a domain of theoretical knowledge about law. Its conception of law is also described as analytic jurisprudence (an analysis of legal concepts by formal-dogmatic methods) or as the utilitarian conception of law (law is a political instrument and a regulator of social law that carries a benefit).
Austin provided the foundation for a new object of the positive science of the philosophy of law. The aim of the new science was the precise definition of the object of study and its limits. This was intended to separate metaphysical discussions (the natural law) from scientific assertion on law. Austin thought that the conceptual apparatus of the system of common law should be set in order. He supported a reform of law with the aim of its codification. He was also the author of a program of theoretical-practical legal education. He showed the superiority of legislation over the law of judges, which did not guarantee security and legal order. The reception of Austin’s ideas, often in a simplified form or in disagreement with his thought as a whole, led to the elimination of propositions of valuation in the legal sciences. The major thesis of his theory: “only norms of conduct established or recognized by the sovereign which he orders to be obversed under pain of punishment are real laws”, became a dogma of contemporary legal positivism. H. Kelsen, H. L. A. Hart, and L. L. Fuller, among others, have referred to this principle.
W. N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, NH 1920; A. Schwarz, John Austin and the German Jurisprudence of his Time, Politica 1 (1934), 73–92; K. Kocourek, The Century of Analytical Jurisprudence since John Austin, in: Law. A Century of Progress. 1835–1935, Lo 1937, III 194–230; H. L. A. Hart, Introduction, in: John Austin, The Province of Jurisprudence Determined, Lo 1954; A. Angelli, John Austin, alle origini del positivismo giuridico, T 1959; H. L. A. Hart, The Concept of Law, Ox 1961, 19942; W. Löwenhaupt, Politischer Utilitarismus und bürgerliches Rechtsdenken, B 1972; E. Ruben, John Austin’s Political Pamphlets, in: Perspectives in Jurisprudence, G 1977, 20–41; W. L. Morison, John Austin, Lo 1982; W. E. Rumble, The Thought of John Austin, Lo 1985; R. N. Molesd, Definition and Rule in Legal Theory, Ox 1987; W. Babicki, Koncepcja separacji prawa i moralności w doktrynie posytywizmu prawnego Johna Austina [The conception of the separation of law and morality in John Austin’ doctrine of legal positivism], Palestra 4 (1986), 115–118; idem, Prawo jako rozkaz suwerena w doktrynie Johna Austina [Law as the command of the sovereign in the doctrine of John Austin], SF 5 (1988), 73–83; K. Dybowski, Johna Austina filozofia prawa [John Austin’s philosophy of law], To 1991; idem, Utylitarystyczna filozofia prawa Johna Austina [John Austin’s utilitarian philosophy of law], Państwo i Prawo [State and law] 3 (1992), 66–71; J. Stelmachowski, R. Sarkowicz, Filozofia prawa XIX i XX wieku [Philosophy of law of the 19th and 20th century], Kr 1998.