A prediction of what courts will do: “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law i. Hence, a legal duty “is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court” ii.
First published Sat Feb 24, 2001; substantive revision Thu Feb 8, 2018
John Austin is considered by many to be the creator of the school ofanalytical jurisprudence, as well as, more specifically, the approachto law known as “legal positivism.” Austin’s particularcommand theory of law has been subject to pervasive criticism, but itssimplicity gives it an evocative power that continues to attractadherents.
- Bibliography
1. Life
John Austin’s life (1790–1859) was filled with disappointment andunfulfilled expectations. His influential friends (who included JeremyBentham, James Mill, John Stuart Mill and Thomas Carlyle) wereimpressed by his intellect and his conversation, and predicted hewould go far. However, in public dealings, Austin’s nervousdisposition, shaky health, tendency towards melancholy, andperfectionism combined to end quickly careers at the Bar, in academia,and in government service (Hamburger 1985, 1992).
Austin was born to a Suffolk merchant family, and served briefly inthe military before beginning his legal training. He was called to theBar in 1818, but he took on few cases, and quit the practice of law in1825. Austin shortly thereafter obtained an appointment to the firstChair of Jurisprudence at the recently established University ofLondon. He prepared for his lectures by study in Bonn, and evidence ofthe influence of continental legal and political ideas can be foundscattered throughout Austin’s writings. Commentators have foundevidence in Austin’s writings of the German Pandectist treatment ofRoman Law, in particular, its approach to law as something that is, orshould be, systematic and coherent (Schwarz 1934; Stein 1988:pp. 223–229, 238–244; Lobban 1991: pp. 223–256).
Lectures from the course he gave were eventually published in 1832 as“Province of Jurisprudence Determined” (Austin 1832).However, attendance at his courses was small and getting smaller, andhe gave his last lecture in 1833. A short-lived effort to give asimilar course of lectures at the Inner Temple met the sameresult. Austin resigned his University of London Chair in 1835. Helater briefly served on the Criminal Law Commission, and as a RoyalCommissioner to Malta, but he never found either success orcontentment. He did some occasional writing on political themes, buthis plans for longer works never came to anything during his lifetime,due apparently to some combination of perfectionism, melancholy, andwriter’s block. His changing views on moral, political, and legalmatters also apparently hindered both the publication of a revisededition of “Province of Jurisprudence Determined,” and thecompletion of a longer project started when his views had beendifferent.
(Some scholars have argued that Austin may have moved away fromanalytical jurisprudence (see below) towards something moreapproximating the historical jurisprudence school; cf. Hamburger 1985:pp. 178–91, arguing for Austin’s views having changedsignificantly, with Rumble 2013, arguing against that view.)
Much of whatever success Austin found during his life, and after, mustbe attributed to his wife Sarah, for her tireless support, both moraland economic (during the later years of their marriage, they livedprimarily off her efforts as a translator and reviewer), and her workto publicize his writings after his death (including the publicationof a more complete set of his Lectures on Jurisprudence) (Austin1879). Credit should also be given to Austin’s influential friends,who not only helped him to secure many of the positions he held duringhis lifetime, but also gave important support for his writings afterhis death (Hamburger 1985: pp. 33, 197; Morison 1982: p. 17; Mill1863).
Austin’s work was influential in the decades after his passing away.E. C. Clark wrote in the late 19th century that Austin’s work “isundoubtedly forming a school of English jurists, possibly of Englishlegislators also. It is the staple of jurisprudence in all oursystems of legal education.” (Clark 1883: pp. 4–5) A similarassessment is made by H.L.A. Hart, looking back nearly a centurylater: “within a few years of his death it was clear that hiswork had established the study of jurisprudence in England”(Hart 1955: p. xvi). As will be discussed, Austin’s influence can beseen at a number of levels, including the general level of how legaltheory, and law generally, were taught (Stein 1988: pp. 238–244), andthe use of an analytical approach in legal theory. At such levels,Austin’s impact is felt to this day. Hart could write that“Austin’s influence on the development of England of[Jurisprudence] has been greater than that of any other writer,”(Hart 1955: p. xvi) even while Austin’s particular command theory oflaw became almost friendless, and is today probably best known fromHart’s use of it (1958, 1994) as a foil for the elaboration of Hart’sown, more nuanced approach to legal theory. In recent decades, sometheorists have revisited Austin’s command theory (and other works),offering new characterizations and defenses of his ideas (e.g.,Morison 1982, Rumble 1985, see generally Freeman & Mindus 2013).
2. Analytical Jurisprudence and Legal Positivism
Early in his career, Austin came under the influence of JeremyBentham, and Bentham’s utilitarianism is evident (though with somedifferences) in the work for which Austin is best known today. OnAustin’s reading of utilitarianism, Divine will is equated withUtilitarian principles: “The commands which God has revealed wemust gather from the terms wherein they are promulg[ate]d. Thecommand which he has not revealed, we must construe by the principleof utility” (Austin 1873: Lecture IV, p. 160; see also Austin1832: Lecture II, p. 41). This particular reading ofutilitarianism, however, has had little long-term influence, though itseems to have been the part of his work that received the mostattention in his own day (Rumble 1995: p. xx). Some have also seenAustin as being one of the early advocates of “ruleutilitarianism.”(e.g., Austin 1832: Lecture II, p. 42,where Austin urges that we analyze not the utility of particular acts,but that of “class[es] of action”). Additionally, Austinearly on shared many of the ideas of the Benthamite philosophicalradicals; he was “a strong proponent of modern politicaleconomy, a believer in Hartleian metaphysics, and a most enthusiasticMalthusian” (Rumble 1985: pp. 16–17). Austin was to lose mostof his “radical” inclinations as he grew older.
Austin’s importance to legal theory lies elsewhere—histheorizing about law was novel at four different levels ofgenerality. First, he was arguably the first writer to approach thetheory of law analytically (as contrasted with approaches to law moregrounded in history or sociology, or arguments about law that weresecondary to more general moral and political theories). Analyticaljurisprudence emphasizes the analysis of key concepts, including“law,” “(legal) right,” “(legal)duty,” and “legal validity.” Though analyticaljurisprudence has been challenged by some in recent years (e.g.,Leiter 2007, 2017), it remains the dominant approach to discussing thenature of law. Analytical jurisprudence, an approach to theorizingabout law, has sometimes been confused with what the American legalrealists (an influential group of theorists prominent in the earlydecades of the 20th century) called “legalformalism”—a narrow approach to how judges should decidecases. The American legal realists saw Austin in particular, andanalytical jurisprudence in general, as their opponents in theircritical and reform-minded efforts (e.g., Sebok 1998:pp. 65–69). In this, the realists were simply mistaken;unfortunately, it is a mistake that can still be found in somecontemporary legal commentators (see Bix 1999, 903–919, fordocumentation).
Second, Austin’s work should be seen against a background where mostEnglish judges and commentators saw common-law reasoning (theincremental creation or modification of law through judicialresolution of particular disputes) as supreme, as declaring existinglaw, as discovering the requirements of “Reason,” as theimmemorial wisdom of popular “custom.” Such(Anglo-American) theories about common law reasoning fit with a largertradition of theorizing about law (which had strong roots incontinental European thought—e.g., the historical jurisprudence oftheorists like Karl Friedrich von Savigny (1975)): the idea thatgenerally law did or should reflect community mores,“spirit,” or custom. In general, one might look at manyof the theorists prior to Austin as exemplifying an approach that wasmore “community-oriented”—law as arising fromsocietal values or needs, or expressive of societal customs ormorality. By contrast, Austin’s is one of the first, and one of themost distinctive, theories that views law as being “imperiumoriented”—viewing law as mostly the rules imposed fromabove from certain authorized (pedigreed) sources. More“top-down” theories of law, like that of Austin, betterfit the more centralized governments (and the modern politicaltheories about government) of modern times (Cotterrell 2003:pp. 21–77).
Third, within analytical jurisprudence, Austin was the firstsystematic exponent of a view of law known as “legalpositivism.” Most of the important theoretical work on law priorto Austin had treated jurisprudence as though it were merely a branchof moral theory or political theory: asking how should the stategovern? (and when were governments legitimate?), and under whatcircumstances did citizens have an obligation to obey the law? Austinspecifically, and legal positivism generally, offered a quitedifferent approach to law: as an object of “scientific”study (Austin 1879: pp. 1107–1108), dominated neither byprescription nor by moral evaluation. Subtle jurisprudential questionsaside, Austin’s efforts to treat law systematically gained popularityin the late 19th century among English lawyers who wanted to approachtheir profession, and their professional training, in a more seriousand rigorous manner. (Hart 1955: pp. xvi–xviii; Cotterrell 2003:pp. 74–77; Stein 1988: pp. 231–244)
Legal positivism asserts (or assumes) that it is both possible andvaluable to have a morally neutral descriptive (or“conceptual”—though this is not a term Austin used)theory of law. (The main competitor to legal positivism, in Austin’sday as in our own, has been natural law theory.) Legal positivism doesnot deny that moral and political criticism of legal systems isimportant, but insists that a descriptive or conceptual approach tolaw is valuable, both on its own terms and as a necessary prelude tocriticism.
(The term “legal positivism” is sometimes used morebroadly to include the position that we should construct or modify ourconcept of law to remove moral criteria of legal validity; or toinclude a prescription that moral values should not be used injudicial decision-making (Schauer 2010—see the Other InternetResources). I do not think anything turns on whether the term is usedmore broadly or more narrowly, as long as it is clear which sense isbeing used. Additionally, while Schauer claims (2010) that Austincould be seen as supporting some of the views associated with thebroader understanding of “legal positivism”, there is needfor more evidence and argument before the point should begranted.)
There were theorists prior to Austin who arguably offered viewssimilar to legal positivism or who at least foreshadowed legalpositivism in some way. Among these would be Thomas Hobbes, with hisamoral view of laws as the product of Leviathan (Hobbes 1996); DavidHume, with his argument for separating “is” and“ought” (which worked as a sharp criticism for some formsof natural law theory, those that purported to derive moral truths fromstatements about human nature) (Hume 1739, Section 3.1.1); and Jeremy Bentham, withhis attacks on judicial lawmaking and on those commentators, like Sir WilliamBlackstone, who justified such lawmaking with natural-law-likejustifications (Bentham 1789).
Austin’s famous formulation of what could be called the “dogma” oflegal positivism is as follows:
The existence of law is one thing; its merit or demerit isanother. Whether it be or be not is one enquiry; whether it be or benot conformable to an assumed standard, is a different enquiry. A law,which actually exists, is a law, though we happen to dislike it, orthough it vary from the text, by which we regulate our approbation anddisapprobation. (Austin 1832: Lecture V, p. 157)
(While Austin saw himself as criticizing natural law theory, a viewshared by most of the legal positivists who followed him, the extentto which the two schools disagree, and the location of theirdisagreement, remains a matter sharply contested (e.g., Finnis 2000a,2000b.)
Andrew Halpin has argued (Halpin 2013) that Austin shaped the natureof modern analytical jurisprudence and legal positivism by his choiceto exclude legal reasoning from his discussion of“jurisprudence.” A greater focus on legal reasoning,Halpin argues, would have made it harder to claim a clear separationof law “as it is” and law “as it ought to be.”Halpin points out that prominent later legal positivists have followedAustin, either in speaking little about legal reasoning (Hans Kelsen,and, to some extent, H. L. A. Hart), or speaking about the topic atlength, but treating the issue as sharply separate from his theory of(the nature of) law.
Fourth, Austin’s version of legal positivism, a “command theoryof law” (which will be detailed in the next section), was also,for a time, quite influential. Austin’s theory had similarities withviews developed by Jeremy Bentham, whose theory could also becharacterized as a “command theory.” Bentham, in aposthumously published work, defined law as an:
assemblage of signs declarative of a volition conceived oradopted by the sovereign in a state, concerning the conduct tobe observed in a certain case by a certain person or class ofpersons, who in the case in question are or are supposed to be subjectto his power: such volition trusting for its accomplishment to theexpectation of certain events which it is intended such declarationshould upon occasion be a means of bringing to pass, and the prospectof which it is intended should act as a motive upon those whoseconduct is in question (Bentham 1970: p. 1).
However, Austin’s command theory was more influential than Bentham’s,because the latter’s jurisprudential writings did not appear in aneven-roughly systematic form until well after Austin’s work hadalready been published, with Bentham’s most systematic discussion onlyappearing posthumously, late in the 20th century (Bentham 1970, 1996;Cotterrell 2003: p. 50).
3. Austin’s Views
Austin’s basic approach was to ascertain what can be said generally,but still with interest, about all laws. Austin’s analysis can be seenas either a paradigm of, or a caricature of, analytical philosophy, inthat his discussions are dryly full of distinctions, but are thin inargument. The modern reader is forced to fill in much of themeta-theoretical, justificatory work, as it cannot be found in thetext. Where Austin does articulate his methodology and objective, itis a fairly traditional one: he “endeavored to resolve alaw (taken with the largest signification which can be givento that term properly) into the necessary and essentialelements of which it is composed” (Austin 1832: Lecture V,p. 117).
As to what is the core nature of law, Austin’s answer is that laws(“properly so called”) are commands of a sovereign. Heclarifies the concept of positive law (that is, man-made law) byanalyzing the constituent concepts of his definition, and bydistinguishing law from other concepts that are similar:
- “Commands” involve an expressed wish that something bedone, combined with a willingness and ability to impose “anevil” if that wish is not complied with.
- Rules are general commands (applying generally to a class), ascontrasted with specific or individual commands (“drink winetoday” or “John Major must drink wine”).
- Positive law consists of those commands laid down by a sovereign(or its agents), to be contrasted to other law-givers, like God’sgeneral commands, and the general commands of an employer to anemployee.
- The “sovereign” is defined as a person (or determinatebody of persons) who receives habitual obedience from the bulk of thepopulation, but who does not habitually obey any other (earthly)person or institution. Austin thought that all independent politicalsocieties, by their nature, have a sovereign.
- Positive law should also be contrasted with “laws by a closeanalogy” (which includes positive morality, laws of honor,international law, customary law, and constitutional law) and“laws by remote analogy” (e.g., the laws of physics).
(Austin 1832: Lecture I).
Austin also included within “the province ofjurisprudence” certain “exceptions,” items which didnot fit his criteria but which should nonetheless be studied with other“laws properly so called”: repealing laws, declarativelaws, and “imperfect laws”—laws prescribing actionbut without sanctions (a concept Austin ascribes to “Roman [law]jurists”) (Austin 1832: Lecture I, p. 36).
In the criteria set out above, Austin succeeded in delimiting law andlegal rules from religion, morality, convention, and custom. However,also excluded from “the province of jurisprudence” werecustomary law (except to the extent that the sovereign had, directlyor indirectly, adopted such customs as law), public international law,and parts of constitutional law. (These exclusions alone would makeAustin’s theory problematic for most modern readers.)
Within Austin’s approach, whether something is or is not“law” depends on which people have done what: the questionturns on an empirical investigation, and it is a matter mostly ofpower, not of morality. Of course, Austin is not arguing that lawshould not be moral, nor is he implying that it rarely is. Austin isnot playing the nihilist or the skeptic. He is merely pointing outthat there is much that is law that is not moral, and what makessomething law does nothing to guarantee its moral value. “Themost pernicious laws, and therefore those which are most opposed tothe will of God, have been and are continually enforced as laws byjudicial tribunals” (Austin 1832: Lecture V, p. 158).
In contrast to his mentor Bentham, Austin, in his early lectures,accepted judicial lawmaking as “highly beneficial and evenabsolutely necessary” (Austin, 1832: Lecture V,p. 163). Nor did Austin find any difficulty incorporating judiciallawmaking into his command theory: he characterized that form oflawmaking, along with the occasional legal/judicial recognition ofcustoms by judges, as the “tacit commands” of thesovereign, the sovereign’s affirming the “orders” by itsacquiescence (Austin 1832: Lecture 1, pp. 35–36). It should benoted, however, that one of Austin’s later lectures listed the manyproblems that can come with judicial legislation, and recommendedcodification of the law instead (Austin 1879: vol. 2, Lecture XXXIX,pp. 669–704).
4. Criticisms
As many readers come to Austin’s theory mostly through its criticismby other writers (prominently, that of H.L.A. Hart; see also Kelsen1941: 54–66), the weaknesses of the theory are almost better knownthan the theory itself:
First, in many societies, it is hard to identify a“sovereign” in Austin’s sense of the word (a difficultyAustin himself experienced, when he was forced to describe the British“sovereign” awkwardly as the combination of the King, theHouse of Lords, and all the electors of the House ofCommons). Additionally, a focus on a “sovereign” makes itdifficult to explain the continuity of legal systems: a new ruler willnot come in with the kind of “habit of obedience” thatAustin sets as a criterion for a system’s rule-maker.
A few responses are available to those who would defend Austin.First, some commentators have argued that Austin is heremisunderstood, in that he always meant “by the sovereignthe office orinstitution which embodies supreme authority; never theindividuals who happen to hold that office or embody that institutionat any given time” (Cotterrell 2003: p. 63, footnote omitted);there are certainly parts of Austin’s lectures that support thisreading (e.g., Austin 1832: Lecture V, pp. 128–29; LectureVI, p. 218).
Secondly, one could argue (see Harris 1977) that the sovereign isbest understood as a constructive metaphor: that law should be viewedas if it reflected the view of a single will (a similar view, that lawshould be interpreted as if it derived from a single will, can befound in Ronald Dworkin’s work (1986: pp. 176–190)).
Thirdly, one could argue that Austin’s reference to a sovereignwhom others are in the habit of obeying but who is not in the habit ofobeying anyone else, captures what a “realist” or“cynic” would call a basic fact of political life. Thereis, the claim goes, entities or factions in society that are noteffectively constrained, or could act in an unconstrained way if theyso chose. For one type of example, one could point out that if therewas a sufficiently large and persistent majority among the UnitedStates electorate, nothing could contain them: they could electPresidents and legislators who would amend the Constitution and,through those same officials, appoint judges who would interpret the(revised or original) Constitution in a way amenable to theirinterests. A different sort of example (and some would say that thereare recent real-life examples of this type) would be a President whoignored the constraints of statutory law, constitutional law, andinternational treaty commitments, while the public and other officialslacked the will or the means to hold that President to the legal normsthat purported to constrain his or her actions.
As regards Austin’s “command” model, it seems to fitsome aspects of law poorly (e.g., rules which grant powers toofficials and to private citizens—of the latter, the rules formaking wills, trusts, and contracts are examples), while excludingother matters (e.g., international law) which we are not inclined toexclude from the category “law.”
More generally, it seems more distorting than enlightening toreduce all legal rules to one type. For example, rules that empowerpeople to make wills and contracts perhaps can bere-characterized as part of a long chain of reasoning for eventuallyimposing a sanction (Austin spoke in this context of the sanction of“nullity”) on those who fail to comply with the relevantprovisions. However, such a re-characterization misses the basicpurpose of those sorts of laws—they are arguably about grantingpower and autonomy, not punishing wrongdoing.
A different criticism of Austin’s command theory is that a theorywhich portrays law solely in terms of power fails to distinguish rulesof terror from forms of governance sufficiently just that they areaccepted as legitimate (or at least as reasons for action) by theirown citizens.
Finally, one might note that the constitutive rules that determinewho the legal officials are and what procedures must be followed increating new legal rules, “are not commands habitually obeyed,nor can they be expressed as habits of obedience to persons”(Hart 1958: p. 603).
Austin was aware of some of these lines of attack, and had responsesready; it is another matter whether his responses were adequate. Itshould also be noted that Austin’s work shows a silence on questionsof methodology, though this may be forgivable, given the early stageof jurisprudence. As discussed in an earlier section, in many ways,Austin was blazing a new path. On matters of methodology, latercommentators on Austin’s work have had difficulty determining whetherhe is best understood as making empirical claims about the law orconceptual claims; elements of each sort of approach can be found inhis writings (Lobban 1991: pp. 224–225; Cotterrell 2003:pp. 81–83).
When H.L.A. Hart revived legal positivism in the middle of the20th century (Hart 1958, 1994), he did it by criticizingand building on Austin’s theory: for example, Hart’s theory did nottry to reduce all legal rules to one kind of rule, but emphasized thevarying types and functions of legal rules; and Hart’s theory,grounded partly on the distinction between “obligation”and “being obliged,” was built around the fact that someparticipants within legal systems “accepted” the legalrules as reasons for action, above and beyond the fear of sanctions.Hart’s “hermeneutic” approach, building on the“internal point of view” of participants who accepted thelegal system, diverged sharply from Austin’s approach to law.
5. A Revisionist View?
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Some modern commentators appreciate in Austin elements that wereprobably not foremost in his mind (or that of his contemporaryreaders). For example, one occasionally sees Austin portrayed as thefirst “realist”: in contrast both to the theorists thatcame before Austin and to some modern writers on law, Austin is seenas having a keener sense of the connection of law and power, and theimportance of keeping that connection at the forefront ofanalysis (cf. Cotterrell 2003: pp. 49–77). One commentator wrote:
Austin’s theory is not a theory of the Rule of Law: of governmentsubject to law. It is a theory of the ‘rule of men’: ofgovernment using law as an instrument of power. Such a view may beconsidered realistic or merely cynical. But it is, in its broadoutlines, essentially coherent. (Cotterrell 2003: p. 70)
When circumstances seem to warrant a more critical, skeptical orcynical approach to law and government, Austin’s equation of law andforce will be attractive—however distant such a reading may befrom Austin’s own liberal-utilitarian views at the time of hiswriting, or his more conservative political views later in hislife (Hamburger, 1985).
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