John Austin and His Contribution to Law

John Austin (1790 − 1859) is a renowned British Legal scholar of 19th Century England and America, who was born into an English merchant family and changed careers frequently owing to his personal peculiarities. He started off his career by serving in the military of England for a short span of time, and afterwards he joined the bar in 1818, although he quit the practice when he was appointed as a Professor of Jurisprudence at the University of London, from where he made the beginning of his academic pursuit, which he always dreamed of.

Although he resigned in 1835 and later briefly served as Royal Commissioner to Malta in the Criminal Law Commission. He never found success and satisfaction in any of his work, and due to his changing beliefs, the publication and completion of his textbooks were always hampered.

Academics

Austin was the master of his thoughts and thesis throughout his life. His initial interaction in the academic domain developed when he came under the influence of Jeremy Bentham, whom he considered his Master and claimed himself as a Benthamite Disciple, as he supported the ideas of Utilitarianism, which is evident from the fact that the concept of Utilitarianism has found a lot of relevance in Austin’s work.

Austin was a Positivist−Analytical Scholar who studied the Positivist Law in Analytical methodology and compiled his lectures delivered at the University of London in his celebrated book “The Province of Jurisprudence Determined”.

Austin’s Thesis

John Austin enunciated and discussed the concepts of “Nature and Sources of Law” wherein he remarked his historic definition of “Law”, concept of “Sovereign” and “Theory of Command”.

According to Austin, “Law was a set of aggregated of rules which were laid down by the sovereign for his subjects through legislation and command”.

For Austin, a law can be made enforceable only when it is sanctioned by the state and the sovereign. Additionally, Law was a constituent of four main aspect which were:

• Command;

• Sanction;

• Duty; and

• Sovereign

It meant that law is the command of the sovereign, who is the head of the state as he has the power to make the rules with the legal sanction that is necessary to implement them among the masses, and citizens has the duty to abide by the laws.

Legal Positivism

During the early 19th century, law was studied as a natural law and moral conduct of human society, however, the ideas of Austin changed the entire phenomenon of English Jurisprudence when he remarked a crucial difference between Morality and Law as according to him Law was a definite set of rules which has its source in the authority of state unlike morality which is a common conduct developed through human observations in society.

The demarcation created by John Austin was further developed with the passage of time and consequently, Law was considered and studied as a scientific and realistic concept instead of its relation with morality and ethics. As Austin believed that Law is as it exists and it originates from legislation when it is sanctioned by the state, however, morality is developed through customs which become the law of the land only when it is identified by the state and enacted in the form of a statute.

Analytical School of Thought

Austin was the foremost promoter of Analytical Jurisprudence as he was the first person who provided a systematic approach to study law with scientific methods instead of moral and political theories. His efforts gained popularity in the 19th century with the publication of his book The Province of Jurisprudence Determined wherein he developed major difference between Moral and Proper Law, as according to him, Law is an express command of the state and has its basis in its governmental authority. Further, the violation of law is accompanied by a threat of punishment by the sovereign, which would ensure its compliance by all.

Therefore, the Analytical School of Thought as established by Austin was identified and recognized as a deliberation which had the core belief that there exists a major difference between positive morality which includes moral conduct and does not have any legal sanction and positive law which is the command of the sovereign and requires strict obedience from all the concerned.

Criticism

Despite the major celebrated contributions and wide acclamations of John Austin in the study of Jurisprudence, his ideas and theories were severely criticized for being exceptionally idealist and requiring adherence.

H.L.A Hart was one of the renowned critics of Austinian School of Thought as not only he rejected his theory of Legal Positivism for divorcing law and society in absolute terms which cannot be a reality as both law and society has an internal and essential complementary connection with each other because they both develop together, but also disregarded his idea of separation of law and morality because law cannot survive without morality which is a pre−requisite for its acceptance in the society.

Hart further criticized Austin’s overemphasis on sanction, sovereign and command for enforcing the law because he believed that law is nothing but an expression of the general will of the people and law does not require legal sanction every time instead it is accepted by the general public out of respect mostly.

Additionally, he condemned Austin’s neglect of customs as secondary source of law because according to Hart, customs has been the primary source of law for centuries across the world as they are widely accepted, practiced and protected by people.

Books

The following are the major books written by John Austin:

• The Province of Jurisprudence Determined

• A Plea for the Constitution

• Lectures on Jurisprudence or Philosophy of Positive Law (1863)

• On Parliamentary Government

Conclusion

John Austin has been a champion of analytical school of thought along with legal positivism and utilitarianism for centuries through his extensive research and evolved thesis. And, irrespective of his criticism by his contemporaries, he was named as “Father of English Jurisprudence” for his celebrated contributions to the field of Jurisprudence.

Frequently Asked Questions

Q: Q: Who was John Austin?

Ans: John Austin was an English legal philosopher, jurist, and scholar known for his contributions to legal positivism and his work on the theory of law.

Q: What is John Austin best known for?

Ans: John Austin is best known for his development of legal positivism, a theory that separates law from morality and emphasizes the importance of legal rules established by sovereign authority.

Q: What is John Austin's theory?

Ans: Austin's theory of sovereignty makes the assumption that subjects would always do what their sovereign directs, which is untrue given the current political climate in India. According to his views, the fundamental tenet of philosophy is constant submission by the subject. People will submit freely if they believe the sovereign is appropriate.

Q: Who is father of jurisprudence?

Ans: The Father of Jurisprudence is credited to Bentham. Austin improved his job. Bentham was the first to examine what constitutes law.

Q: What is legal positivism?

Ans: Legal positivism, as developed by Austin, posits that the validity of law is determined by its source, typically the sovereign authority. This theory asserts that law is a social creation and is not necessarily tied to moral considerations.

Q: What were Austin's views on the relationship between law and morality?

Ans: Austin believed that law and morality were distinct concepts. He argued that while morality may influence laws, they are not inherently linked. He emphasized the need to analyze laws as they are, rather than as they should be.

Q: How did Austin define law?

Ans: Austin defined law as "a rule laid down for the guidance of an intelligent being by an intelligent being having power over him."

Q: What is the "command theory" of law associated with Austin?

Ans: Austin's "command theory" suggests that laws are essentially commands issued by a sovereign authority and backed by the threat of punishment. He believed that law derives its authority from this commanding aspect.

Q: What were some criticisms of Austin's legal positivism?

Ans: Critics of Austin's legal positivism argued that it oversimplified the relationship between law and morality. They believed that law could not be completely divorced from moral considerations.