John Austin (legal philosopher)
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| - | '''Legal positivism''' is a school of thought of [[analytical jurisprudence]] largely developed by legal thinkers in the 18th and 19th centuries, such as [[Jeremy Bentham]] and [[John Austin (legal philosopher)|John Austin]]. While Bentham and Austin developed legal positivist theory, [[empiricism]] set the theoretical foundations for such developments to occur. The most prominent legal positivist writing in English has been [[H. L. A. Hart]], who in 1958 found common usages of "positivism" as applied to law to include the contentions that: | + | '''John Austin''' (3 March 1790 – 1 December 1859) was an English legal theorist, who 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. |
| - | # laws are commands of human beings | + | |
| - | # there is no necessary connection between law and morality, that is, between law as it is and as it ought to be. | + | |
| - | # analysis (or study of the meaning) of legal concepts is worthwhile and is to be distinguished from history or sociology of law, as well as from criticism or appraisal of law, for example with regard to its moral value or to its social aims or functions | + | |
| - | # a legal system is a closed, logical system in which correct decisions can be deduced from predetermined legal rules without reference to social considerations | + | |
| - | # moral judgments, unlike statements of fact, cannot be established or defended by rational argument, evidence, or proof ("noncognitivism" in ethics) | + | |
| - | Historically, legal positivism sits in opposition to [[natural law]] theories of jurisprudence, with particular disagreement surrounding the natural lawyer's claim that there is a necessary connection between law and morality. | + | ==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. | ||
| - | == Etymology == | + | After spending five years in the army during the Napoleonic Wars, Austin turned to law, and spent seven unhappy years practising at the Chancery bar. In 1819, he married Sarah Taylor and became neighbours and close friends with [[Jeremy Bentham]], [[James Mill|James]] and [[John Stuart Mill]]. Mainly through Bentham's influence, Austin was appointed Professor of Jurisprudence at the newly founded [[London University]] in 1826. However, Austin's lectures were not well-attended and he resigned his university post in 1834. |
| - | The term ''positivism'' is derived from ''ponere'', ''positum'', meaning, "to put". "Positive law" is that which is man-made, ''i.e.'', formally laid down. | + | |
| - | ==Legal validity and the sources of law== | + | Thereafter, aside from two stints on government commissions, Austin lived largely on his wife [[Sarah Austin (translator)|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 the positivist view, the "source" of a law is the establishment of that law by some socially recognised legal authority. The "merits" of a law are a separate issue: it may be a "bad law" by some standard, but if it was added to the system by a legitimate authority, it is still a law. | + | John Austin died on 1 December 1859 in [[Weybridge]]. His only child, [[Lucie, Lady Duff-Gordon|Lucie]], later became Lady Duff-Gordon. |
| - | ''The Stanford Encyclopedia of Philosophy'' summarises the distinction between merit and source like so: "The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it. According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc.); as we might say in a more modern idiom, positivism is the view that law is a [[social construction]]." | + | ==Legal positivism== |
| + | Austin's goal was to transform law into a true science. To do this, he believed it was necessary to purge human law of all moralistic notions and to define key legal concepts in strictly empirical terms. Law, according to Austin, is a social fact and reflects relations of power and obedience. This twofold view, that (1) law and morality are separate and (2) that all human-made ("positive") laws can be traced back to human lawmakers, is known as legal positivism. Drawing heavily on the thought of Jeremy Bentham, Austin was the first legal thinker to work out a fully developed positivistic theory of law. | ||
| - | Legal positivism does not claim that the laws so identified should be followed or obeyed or that there is value in having clear, identifiable rules (although some positivists may also make these claims). Indeed, the laws of a legal system may be quite unjust, and the state may be quite illegitimate. As a result, there may be no obligation to obey them. Moreover, the fact that a law has been identified by a court as valid provides no guidance as to whether the court should apply it in a particular case. As John Gardner has said, legal positivism is 'normatively inert'; it is a theory of law, not a theory of legal practice, adjudication, or political obligation. Legal positivists believe that intellectual clarity is best achieved by leaving these questions to a separate investigation. | + | Austin argues that laws are rules, which he defines as a type of command. More precisely, laws are general commands issued by a sovereign to members of an independent political society, and backed up by credible threats of punishment or other adverse consequences ("sanctions") in the event of non-compliance. The sovereign in any legal system is that person, or group of persons, habitually obeyed by the bulk of the population, which does not habitually obey anyone else. A command is a declared wish that something should be done, issued by a superior, and accompanied by threats in the event of non-compliance. Such commands give rise to legal duties to obey. Note that all the key concepts in this account (law, sovereign, command, sanction, duty) are defined in terms of empirically verifiable social facts. No moral judgment, according to Austin, is ever necessary to determine what the law is – though of course morality must be consulted in determining what the law should be. Austin as a utilitarian believed that laws should promote the greatest happiness of society. |
| - | ==Legal positivism and legal realism== | + | ==Criticism== |
| - | Legal positivism should be distinguished from ''[[legal realism]]''. The differences are both analytically and normatively important. Both systems consider that law is a human construct. Unlike the American legal realists, positivists believe that in many instances, the law provides reasonably determinate guidance to its subjects and to judges, at least in trial courts. | + | Though Austin's brand of legal positivism was greatly influential in the late 19th and early 20th centuries, 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. | ||
| - | [[Niklas Luhmann]] asserts "We can reduce... positive law to a formula, that law is not only posited (that is, selected) through decision, but also is valid by the power of decision (thus contingent and changeable)." However, no positivist has ever asserted that law is made valid by anyone's decision. In Hart's opinion, the validity of law is a matter of the customary and collective practices of the courts. As for the moral validity of law, both positivists and realists maintain that this is a matter of moral ''principles''. 'The power of decision' has no essential role in either, since individual decision rarely suffices to create a social practice of recognition, and it would be implausible to suppose that moral principles are made so by anyone's decision. | ||
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| - | ==See also== | ||
| - | *[[Constitution in exile]] | ||
| - | *[[Critical legal studies]] | ||
| - | *[[Leslie Green (philosopher)|Leslie Green]] | ||
| - | *[[International legal theory]] | ||
| - | *[[Interpretivism (legal)]] | ||
| - | *[[Georg Jellinek]] | ||
| - | *[[Judicial activism]] | ||
| - | *[[Legal formalism]] | ||
| - | *[[Legal naturalism]] | ||
| - | *[[Legal realism]] | ||
| - | *[[Legalism (Chinese philosophy)]] | ||
| - | *[[Libertarian theories of law]] | ||
| - | *[[Living Constitution]] | ||
| - | *[[Natural law]] | ||
| - | *[[Philosophy of law]] | ||
| - | *[[Positive law]] | ||
| - | *[[Rule according to higher law]] | ||
| - | *[[Strict constructionism]] | ||
| - | *[[Translating "law" to other European languages]] | ||
| - | *[[Jurisprudence of concepts]] | ||
| - | *[[Jurisprudence of interests]] | ||
| - | *[[Jurisprudence of values]] | ||
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John Austin (3 March 1790 – 1 December 1859) was an English legal theorist, who 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 practising at the Chancery bar. In 1819, he married Sarah Taylor and became neighbours and close friends with Jeremy Bentham, James and John Stuart Mill. Mainly through Bentham's influence, Austin was appointed Professor of Jurisprudence at the newly founded London University in 1826. 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.
John Austin died on 1 December 1859 in Weybridge. His only child, Lucie, later became Lady Duff-Gordon.
Legal positivism
Austin's goal was to transform law into a true science. To do this, he believed it was necessary to purge human law of all moralistic notions and to define key legal concepts in strictly empirical terms. Law, according to Austin, is a social fact and reflects relations of power and obedience. This twofold view, that (1) law and morality are separate and (2) that all human-made ("positive") laws can be traced back to human lawmakers, is known as legal positivism. Drawing heavily on the thought of Jeremy Bentham, Austin was the first legal thinker to work out a fully developed positivistic theory of law.
Austin argues that laws are rules, which he defines as a type of command. More precisely, laws are general commands issued by a sovereign to members of an independent political society, and backed up by credible threats of punishment or other adverse consequences ("sanctions") in the event of non-compliance. The sovereign in any legal system is that person, or group of persons, habitually obeyed by the bulk of the population, which does not habitually obey anyone else. A command is a declared wish that something should be done, issued by a superior, and accompanied by threats in the event of non-compliance. Such commands give rise to legal duties to obey. Note that all the key concepts in this account (law, sovereign, command, sanction, duty) are defined in terms of empirically verifiable social facts. No moral judgment, according to Austin, is ever necessary to determine what the law is – though of course morality must be consulted in determining what the law should be. Austin as a utilitarian believed that laws should promote the greatest happiness of society.
Criticism
Though Austin's brand of legal positivism was greatly influential in the late 19th and early 20th centuries, 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.
