John Austin (1790-1859) was closely associated with the Utilitarians James and John Stuart Mill and Jeremy Bentham. He practiced law briefly before becoming the first professor of jurisprudence at the new University of London. He resigned from the position in a few years, but published the initial portion of the lectures he had given as The Province of Jurisprudence Determined (1832). He did not teach for the rest of his life and his legal activity was confined to service on a few government commissions. Towards the end of his life, there was interest in a new edition of his book, but he was not able to complete the large-scale revision and enlargement that he contemplated. After his death, his widow Sarah Austin (1793-1867), who was an accomplished translator and had probably provided the chief support of the family, edited his further lectures and notes for revisions and published an expanded edition under the general title Lectures on Jurisprudence. After her death the work was published in several further editions, which made use of John Stuart Mill’s notes from Austin’s original lectures. The handout you will read uses the text of the last of these later editions, which tends now to be regarded as the standard edition of the work.
The content of Austin’s work makes him a legal positivist, but the style of his work has a label, too: it is sometimes called “analytic jurisprudence.” His approach to understanding the law is, as much as anything, an effort to analyze legal concepts and express his analyses in careful definitions. Your key task in thinking about Austin will be, first, to understand his system of definitions and, second, to ask yourself whether it is correct and illuminating. The question of correctness mainly concerns the definition of law he ends up with since many of his other definitions will introduce special technical senses of words; the test of those other definitions will be whether the concepts he introduces with them are useful in thinking about the law.
Austin’s first lecture has a lot to say about law in the specific sense that Aquinas calls “human law” and Austin calls “positive law,” but what he defines at this stage is a broader concept that applies to other things as well. The notes below distinguish three segments of this part of the lecture and suggest things to look for in each. The page references are to the pages of the book; the breaks between these pages are marked in the handout by a white page number on a gray background.
• In his introductory discussion (pp. 86-88) Austin sets out the range of topics that occupy him in the six lectures that make up The Province of Jurisprudence Determined. They include not only positive law itself but also the “law of God” and what he calls “positive morality.” He discusses positive law in this first lecture and returns to it in lecture 6, lectures 2-4 provide his argument that the utilitarian test of maximizing happiness is the best indication of the content of God’s law, and positive morality is the main topic of lecture 5.
• Austin begins his account of the concept of positive law with an analysis of the concepts of command, duty, and sanction (see pp. 88-92). He summarizes this discussion on pp. 91f. Much of the special character of his account of law derives from the meaning he attaches to “command.” How close or far do you think it is from the ordinary meaning? (It doesn’t invalidate Austin’s account of law if he attaches a new meaning to “command,” but it will be important to be clear about any differences from the ordinary meaning as you read what he says about law in terms of it.)
• Next (pp. 92-96) Austin distinguishes rules (or laws in a broad sense) from other commands (in his sense). His discussion will make it clear how someone might disagree with him. Do you think his view or an opposing one is closer to the truth?
• The short discussion of what he calls “superiority” (pp. 96-97) provides a transition to his account (in his sixth lecture) of law in the strictest sense, but it is important also for understanding exactly what he means by “command” and “duty.” In particular, think about his comment that, in the case of human beings, the relations of superiority and inferiority are “reciprocal” (p. 97).
• The final section of Lecture I concerns things called “laws” that either do not fit Austin’s account or do not seem to. It is cases of the second sort that are most important for us. In particular, the difference between the positivist theories of Austin and H. L. A. Hart is tied to Hart’s criticisms of Austin’s attempts to accommodate rights (pp. 100f) and customary law (pp. 101-103) into his scheme. Here are some suggestions for thinking about Austin’s account of rights and customary law that reflect Hart’s criticisms.
• When considering Austin’s account of rights, think especially about the sort of rights that might be called powers (e.g., the authority of an official to perform a particular sort of action or the power of private citizens to enter into legally enforceable contracts). How well does Austin’s account of right handle this sort of right?
• Austin’s account of customary law makes use of the idea of a tacit command. Think about conditions that you take to be required for a command to exist, even as a tacit or unexpressed command. Do you think there would be something meeting those conditions in every case of customary law? Also, it is a consequence of Austin’s account that customary law becomes law only when courts recognize it as law. Do think that is right or do courts merely recognize a law that was already in existence (as custom)?
The handout on Austin’s Lecture V collects a few passages from a long “lecture” that was derived from more than one of his actual lectures.
• In the passage (from pp. 170f) following the introductory paragraph, Austin lays out the classification of positive law and related ideas from the beginning of lecture 1 in a little more detail, and the second passage (from pp. 172f) describes a corresponding classification of jurisprudence and related “sciences.”
• The third passage (from pp. 182f) indicates Austin’s chief reason for distinguishing positive law from positive morality. Notice how this distinction depends on the importance Austin assigns to the concept of commands.
• In the short selection from p. 199, Austin says what he takes to be the error lying behind natural law theory. The second idea he speaks of here, that custom is a source of law, is an old one (you’ve seen Aquinas speak of it), but it had a special importance in Austin’s day. This theory became popular in early 19th century Germany and is sometimes referred to as the “Romantic” theory of law or the “historical” theory of law. Austin had gone to Germany to study in preparation for assuming the professorship at the University of London, and he knew the work of the people, such as Friedrich Carl von Savigny (1779-1861), who held this view. He respected their historical scholarship even if he rejected the idea that positive law is founded on custom.
• The final selection comes from a note added at the end of the lecture by the editor of the later editions of the lectures. (The editor cites J. S. Mill’s notes from Austin’s lectures as his source, but similar material appears in a note to Lecture VI in the edition that Austin himself published.) The note is a clear statement of Austin’s positivism. Critically evaluate his argument for making distinguishing what the law is from what it ought to be. (Not all legal positivists would argue in quite the same way; in particular, you will later see H. L. A. Hart argue that distinguishing positive law and morality can make people more willing to disobey laws than they would be if they believed that nothing could be a law if it was unjust.)