John Austin (3 March 1790 – 1 December 1859) was an English legal theorist who posthumously influenced British and American law with an analytical approach to jurisprudence and a theory of legal positivism. Austin opposed traditional approaches of "natural law", arguing against any need for connections between law and morality. Human legal systems, he claimed, can and should be studied in an empirical, value-free way.

Life and work

Austin was born on 3 March 1790 at Creeting St Mary in today's district of Mid Suffolk, as the eldest son of a well-to-do miller.

After spending five years in the army during the Napoleonic Wars, Austin turned to law, and spent seven unhappy years practicing at the Chancery bar. In 1819, he married Sarah Taylor and became neighbours and close friends with Jeremy Bentham, James Mill, and John Stuart Mill. Mainly through Bentham's influence, Austin was appointed Professor of Jurisprudence at the newly-founded University College London in July 1827. However, 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 Sarah Austin'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 in Austin's lifetime, but became influential after his death, when his widow published a second edition in 1861. A second book, Lectures on Jurisprudence, was put together by her from Austin's notes and published in 1863.

In 1833, Austin was appointed to the Royal Commission on the Criminal Law 1833, a royal commission to consolidate existing statutes of criminal law into an English Criminal Code. There were conflicting interests between Charles Henry Bellenden Ker and Austin on the Commission. Austin's interest in codification was heavily influenced by his mentor, Bentham, whereas Ker's interest came from concerns about the quality of statutes and the difficulty drafting legislation Finding the work uncongenial and having little support for his opinions, in 1836, Austin resigned after signing two reports and was replaced by barrister David Jardine. 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:

  • Law-making powers are dispersed in many modern societies and it is difficult to identify a "sovereign" in Austin's sense.
  • Most legal systems include rules that do not impose sanctions, but empower officials or citizens to do certain things (such as drawing up wills), or specify ways that legal rules may be identified or changed.
  • Those 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.

References

Further reading

  • Spencer about Austin's system: https://web.archive.org/web/20140202205618/http://www.constitution.org/hs/manvssta.txt a short way into essay #4