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Austin’s Methodology? His Bequest to Jurisprudence

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The Legacy of John Austin's Jurisprudence

Part of the book series: Law and Philosophy Library ((LAPS,volume 103))

Abstract

This essay explores the disengaged state of contemporary legal theory and John Austin’s contribution to the foundation of modern jurisprudence, seeking to demonstrate the intimate connection between the two themes. The common view that Austin is responsible for a distinctive methodology of analytical jurisprudence is challenged. Instead, through a general consideration of theoretical contestability and disagreement, the investigation is focused on the particular manner in which Austin sought to establish the province of jurisprudence. This reveals an exclusivity in Austin’s field of inquiry that precludes potentially beneficial engagement with theoretical rivals, revolving around Austin’s central insight on the distinction betweeen the existence of law and law’s merit. His insight is critically reassessed in order to offer a fresh perspective on the role of legal reasoning and the nature of the is/ought divide within a general theory of law. Other aspects of Austin’s thinking are regarded as an overlooked inspiration for a fundamentally different direction for legal theory. This would encompass greater engagement between legal theorists themselves; would offer opportunity for engagement with other prospective stakeholders in legal theory; and position legal theory to deal with new forms of global legal phenomena.

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Notes

  1. 1.

    Recognition of a different relationship between academic law and legal practice within Continental Europe, and the implications of that for the development of legal theory, provide reasons for constraining the present essay to a consideration of legal theory in the English-speaking world. Despite acknowledging the influence of Continental legal theorists (see infra note 12), the emergence of a modern subject of Anglophone jurisprudence is treated here as a distinct event. Although historically something of an artificial construction (that also overlooks pre-Austinian Scots legal theory), it exerts a dominant influence on the shape and subject matter of Anglo-American jurisprudence today.

  2. 2.

    Influential examples of such attitudes are provided by Harry Edwards, “The Growing Disjunction between Legal Education and the Legal Profession” (1992) 91 Michigan Law Review 34, and Robert Goff, “The Search for Principle” (1983) 69 Proceedings of the British Academy 169.

  3. 3.

    Evidence for this class of the disengaged is best kept anecdotal and anonymised, but is readily available.

  4. 4.

    Initially brought against legal positivism by Ronald Dworkin, it has also been turned against Dworkin himself. See Andrew Halpin, “The Methodology of Jurisprudence: Thirty Years Off the Point” (2006) 19 Canadian Journal of Law and Jurisprudence 67 at 77, 97 (V)(j); 86–87.

  5. 5.

    John Austin, The Province of Jurisprudence Determined (first published, 1832) ed. by Herbert L. A. Hart (London: Weidenfeld & Nicolson, 1954); ed. by Wilfrid E. Rumble (Cambridge: Cambridge University Press, 1995). Citations below are from the Hart edition, with page references to the Rumble edition provided in square brackets.

  6. 6.

    Julius Stone, The Province and Function of Law: Law as Logic Justice and Social Control, A Study in Jurisprudence, second printing with corrections (Sydney: Maitland Publications, 1950). The title of the first chapter, which previously appeared in two parts in (1944) 7  M.L.R. 97 and 177, makes Stone’s relation to Austin unmistakeable: “The Province of Jurisprudence Redetermined.”

  7. 7.

    Allan Hutchinson, The Province of Jurisprudence Democratized (Oxford 2009). I consider Hutchinson’s position in detail in a conjoined study, sharing much of the scene-setting material with the present article, “The Province of Jurisprudence Contested” (2010) 23 Canadian Journal of Law and Jurisprudence 515.

  8. 8.

    For discussion, see William L. Morison, John Austin (London: Edward Arnold, 1982); Wilfrid E. Rumble, The Thought of John Austin: Jurisprudence, Colonial Reform, and the British Constitution (London: The Athlone Press, 1985); Robert Moles, Definition and Rule in Legal Theory: A Reassessment of H. L. A. Hart and the Positivist Tradition (Oxford: Basil Blackwell, 1987); Wilfrid E. Rumble, Doing Austin Justice: The Reception of John Austin’s Philosophy of Law in Nineteenth-Century England (London: Continuum, 2004); Neil Duxbury, Frederick Pollock and the English Juristic Tradition (Oxford: Oxford University Press, 2004) at 97–106.

  9. 9.

    Hutchinson, The Province of Jurisprudence Democratized, supra note 7 at 1–7, 21–24, 29. See also, Stone, The Province and Function of Law, supra note 6 at 11, in equating the “hegemony of Austinianism” with “the monopoly held by analytical jurisprudence.”

  10. 10.

    On both the influence of Kelsen and different approaches to analytical jurisprudence, see, e.g., Joseph Raz, The Authority of Law (2nd ed., Oxford: Oxford University Press, 2009) at 293, 335. The need to differentiate both influences and outputs, becomes particularly acute when Brian Leiter and Ronald Dworkin are brought into an Austinian tradition (as Hutchinson, The Province of Jurisprudence Democratized, supra note 7, suggests).

  11. 11.

    Stone, The Province and Function of Law, supra note 6 at 3, refers to “The Austinian Revelation.”

  12. 12.

    John Austin, Lectures on Jurisprudence, or the Philosophy of Positive Law, rev. and ed. by Robert Campbell (5th ed., London: John Murray, 1885) at 32. See further, Stanley Paulson, “The Theory of Public Law in Germany 1914–1945” (2005) 25 O.J.L.S. 525 at 525–526.

  13. 13.

    Stone, The Province and Function of Law, supra note 6 at 42–43.

  14. 14.

    Hutchinson, The Province of Jurisprudence Democratized, supra note 7 at 11.

  15. 15.

    Stone, The Province and Function of Law, supra note 6 at 32 and n. 122, 10, accepts the alternative appellation of censorial jurisprudence for theories of justice; acknowledges this was recognised as “censorial jurisprudence” (in Bentham’s terminology) or “the science of legislation” (in Austin’s terminology); and, was regarded as important by both Bentham and Austin.

  16. 16.

    Ibid. at 42, 71–73. For illuminating discussion on a general tendency towards lack of fit between theory and practice and its possible benefits, related to Austin, see Brian H. Bix, “John Austin and Constructing Theories of Law” (2011) 24 Canadian Journal of Law and Jurisprudence 431–440.

  17. 17.

    Stone, The Province and Function of Law, supra note 6 at 4–5, 42.

  18. 18.

    Hutchinson, The Province of Jurisprudence Democratized, supra note 7 at 3, 15, 23; 11, 18, 60; 22–23, 30–31, 40–41.

  19. 19.

    Ibid. at 33. For general discussion, see Andrew Halpin, “Methodology” in ed. by Dennis Patterson, A Companion to Philosophy of Law and Legal Theory (2nd ed., Hoboken, NJ: Wiley-Blackwell, 2010).

  20. 20.

    Dworkin has used methodology to mount a fierce attack against his positivist rivals, but even elsewhere within contemporary analytical jurisprudence, methodological differences tend to map theoretical disagreements. For discussion, see Halpin, “Methodology” supra note 19.

  21. 21.

    Hutchinson, The Province of Jurisprudence Democratized, supra note 7 at 5, 43–44.

  22. 22.

    In July 2009 NASA delayed the launch of the space shuttle Endeavour for three evenings in a row due to bad weather.

  23. 23.

    Technically, Dworkin has primarily employed the argument to scatter his enemies by the device of placing them in an impossible position with each other. For discussion, see Halpin, “The Methodology of Jurisprudence: Thirty Years Off the Point” supra note 4 at 79–81.

  24. 24.

    Thomas S. Kuhn, The Structure of Scientific Revolutions (2nd ed., Chicago: University of Chicago Press, 1970).

  25. 25.

    Ibid. at 72, 77.

  26. 26.

    For an illustration of this employing Dworkin’s engagement with Hart, see Halpin, “The Method­ology of Jurisprudence: Thirty Years Off the Point” supra note 4 at 81.

  27. 27.

    Compare Austin, The Province, supra note 5 at 184–185 [157–158].

  28. 28.

    For a detailed consideration of Hutchinson’s position, see Halpin, “The Province of Jurisprudence Contested” supra note 7.

  29. 29.

    Herbert L. A. Hart, Postscript, The Concept of Law (2nd ed.) ed. by Penelope A. Bulloch and Joseph Raz (Oxford: Oxford University Press, 1994) at 240–241.

  30. 30.

    For discussion, see Halpin, “The Methodology of Jurisprudence: Thirty Years Off the Point” supra note 4 at 87, 103 (XI)(a).

  31. 31.

    Insisting on some commerce between general theory and particular instances becomes problematical for a strict reading of the “philosophical” methodology dealing with law’s essential nature or necessary characteristics, attributed to analytical jurisprudence in general by Hutchinson (see The Province of Jurisprudence Democratized, supra note 18), but certainly found in the work of Joseph Raz. For discussion, see Brian H. Bix, “Raz on Necessity” (2003) 22 Law and Philosophy 537, and “Raz, Authority, and Conceptual Analysis” (2006) 50 American Journal of Jurisprudence 311; Halpin, “Methodology” supra note 19 at 612–614.

  32. 32.

    See works cited in Halpin, “The Methodology of Jurisprudence: Thirty Years Off the Point” supra note 4 at 100 (VII)(k).

  33. 33.

    John Austin, The Province, supra note 5 at 184 [157].

  34. 34.

    Ibid. at 184–188 [157–161].

  35. 35.

    Ibid. at 9 [18]. Words echoed at the commencement of The Uses of the Study of Jurisprudence, ibid. at 365 [not contained in the Rumble edition]: “The appropriate subject of Jurisprudence, in any of its different departments, is positive law.”

  36. 36.

    Ibid. at 9 [18]. The alternative representations of Austin’s task as determining or distinguishing are repeated subsequently: ibid. at 131, 192–193 [116, 164–165].

  37. 37.

    Ibid. at 366 – from The Uses of the Study of Jurisprudence. See also, supra note 15.

  38. 38.

    Herbert L. A. Hart, Essays on Bentham: Studies in Jurisprudence and Political Theory (Oxford: Clarendon, 1982) at 129–131.

  39. 39.

    Jeremy Bentham, An Introduction to the Principles of Morals and Legislation ed. by James H. Burns and Herbert L. A. Hart (Oxford: Oxford University Press, 1996) ch. XVI para. XXV n. 1.

  40. 40.

    In Mill’s review of Austin’s Lectures on Jurisprudence in the Edinburgh Review of October 1863, collected under the title, “Austin on Jurisprudence” in Mill’s Dissertations and Discussions III (1867) and republished in The Collected Works of John Stuart Mill XXI ed. by John M. Robson (Toronto: University of Toronto Press, 1984). I am grateful to Philip Schofield for suggesting the significance of Mill’s comment.

  41. 41.

    Hart, Essays on Bentham, supra note 38 at 130.

  42. 42.

    Austin, The Province, supra note 5 at 370–371 – from The Uses of the Study of Jurisprudence.

  43. 43.

    Ibid. at 371. See also, Morison, John Austin, supra note 8 at 60, where Austin’s remark on terms not admitting of definition is attributed to “probably just retailing recollected Bentham.” Morison points out that Austin “then (…) proceeds to his work on the opposite basis.”

  44. 44.

    Hutchinson, The Province of Jurisprudence Democratized, supra note 18.

  45. 45.

    See Nicola Lacey, A Life of H. L. A. Hart: The Nightmare and the Noble Dream (Oxford: Oxford University Press, 2004).

  46. 46.

    As reported by his widow, Sarah, in her Preface to Austin, Lectures, supra note 12 at 12. Sarah Austin refers specifically to Hugo and Savigny as German professors whose position Austin envied.

  47. 47.

    See Halpin, “Methodology” supra note 19 at 615.

  48. 48.

    See supra note 31, and infra note 56.

  49. 49.

    John Austin, The Province, supra note 5 at 3, 213–16, 372; 3, 214; 8–9, 193; 211 [12, 181–3, –; 12, 182; 16–17, 165; 179–80].

  50. 50.

    Ibid. at 366 [−], “principles abstracted from positive systems are the subject of general jurisprudence”; 373 [−], “a description of such subjects and ends of Law as are common to all systems.”

  51. 51.

    Ibid. at 131–2, 192, 213, 356 [116–17, 164, 181, 289–90] for examples of “character”; and at 131–2, 192, 195, 356 [116–17, 164–65, 167, 289–90] for examples of “mark.”

  52. 52.

    Ibid., e.g., at 213 [181], “a character or essential property”; and, “the two distinguishing marks” of sovereignty at 195 [167] become “two essentials” at 214 [181].

  53. 53.

    Morison, John Austin, supra note 8 at 178 ff.

  54. 54.

    For critical reviews of Morison, see David Lyons, “Founders and Foundations of Legal Positivism” (1984) 82 Michigan Law Review 722; Jerome Bickenbach, “Empiricism and Law” (1985) 35 University of Toronto Law Journal 94.

  55. 55.

    Notably in his discussion of “anomalous cases” which render his definition of positive law “defective or inadequate” – Austin, The Province, supra note 5 at 354 [288].

  56. 56.

    The starkest presentation of the demurrer is to be found in Joseph Raz, Between Authority and Interpretation (Oxford: Oxford University Press, 2009) at 25; see also, ibid. at 91–92.

  57. 57.

    Discussed by Brian H. Bix, “John Austin and Constructing Theories of Law” supra note 16 at 13, and in his entry on Austin in The Stanford Encyclopaedia of Philosophy, available at http://plato.stanford.edu/entries/austin-john/.

  58. 58.

    Julius Stone, The Province and Function of Law, supra note 6 at 67–69.

  59. 59.

    John Austin, The Province, supra note 5 at 365–367 [−].

  60. 60.

    Ibid. at 368–369.

  61. 61.

    Ibid. at 366, 369. See also the passages cited in supra note 50.

  62. 62.

    Wilfrid E. Rumble, Doing Austin Justice, supra note 8 at 96.

  63. 63.

    Michael Lobban, Review of Rumble’s Doing Austin Justice (2006) 45 Journal of British Studies 221 at 222.

  64. 64.

    Despite acknowledging the trap of temporal dislocation, Bickenbach, “Empiricism and Law” supra note 54 at 106, comes close to falling into it.

  65. 65.

    Raz, Between Authority and Interpretation, supra note 56. The chapters of Raz’s book have been published previously, and as such have met with the engagement of Bix (see “Raz on Necessity” supra note 31). For a critical review of the book, covering the issues discussed here, see Allan Hutchinson, “Razzle-Dazzle” (2010) 1 Jurisprudence 39 at 45–49.

  66. 66.

    See Raz, Between Authority and Interpretation, supra note 56.

  67. 67.

    Raz, Between Authority and Interpretation, supra note 56 at 27–31, 40.

  68. 68.

    Ibid. at 40–41.

  69. 69.

    Frederick Schauer, “(Re)Taking Hart” (2006) 119 Harvard Law Review 852 at 857.

  70. 70.

    As heralded in the marginal note, and then expressed in the main text, Austin, The Province, supra note 5 at 350–51, 354 [285, 288].

  71. 71.

    Ibid. at 354–55 [288–89]. (The further lectures being found, together with Lectures I-VI, in Austin, Lectures, supra note 12).

  72. 72.

    Ibid. at 356–58 [290–91].

  73. 73.

    Ibid. at 357 [291]. Austin is perhaps sensing (though not fully addressing) here the problem of contingent variation in the instantiation of a general definitional element, raised in relation to Raz, Between Authority and Interpretation, supra note 56. In Austin’s terms, how can we be sure that these differences are not significant in upsetting the common classification of the laws of different societies employing per genus et differentiam?

  74. 74.

    Ibid. at 354 [288].

  75. 75.

    Moles, Definition and Rule in Legal Theory, supra note 8, particularly at 12–16.

  76. 76.

    Austin, The Province, supra note 5 at 6–7 [14].

  77. 77.

    Ibid. These ties are not to be confused with the “ties of resemblance and analogy” mentioned earlier in the “Analysis of Lectures” (ibid. at 2 [11]), which Austin announces will be dealt with in “the six ensuing lectures.”

  78. 78.

    Ibid. at 3–4 [12–13]. The subject extends across two whole lectures and a greater part of a third, out of six. For Austin’s principal thesis, The matter of jurisprudence is positive law, see supra note 35 and accompanying text.

  79. 79.

    Ibid. at 4, 3 [13, 12]. Italics in original.

  80. 80.

    See John Austin, The Province, supra note 5.

  81. 81.

    Ibid. at 184 [157].

  82. 82.

    See supra note 15.

  83. 83.

    In general, see Lotte and Joseph Hamburger, Troubled Lives: John and Sarah Austin (Toronto 1985). See also, Rumble, Doing Austin Justice, supra note 8.

  84. 84.

    See the positive review of Rumble’s Doing Austin Justice, supra note 8, on this theme by Matthew Kramer (2008) 20 Utilitas 252.

  85. 85.

    Austin, The Province, supra note 5 at 6 [14]. Austin, ibid. at 186 [159], concedes that due to the insufficiency of utilitarianism as an index to the divine will, different people may come to different conclusions in applying it.

  86. 86.

    Not simply dealing with the binary issue, favour party A or favour party B, but also determining ways in which the unfavoured party should be made to answer to the favoured party; suggesting that a different party should be held responsible; suggesting radical reforms whereby legal liability should be avoided altogether in favour of compulsory insurance; etc.

  87. 87.

    A point made pithily by Frederick Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning (Cambridge, MA 2009) at 11: “In a society governed by the wise and the good, legal reasoning is likely simply to get in the way.” The precise nature of the constraint is highly contestable, and is probably better viewed as a tension between doctrinal certainty and social critique, which eases in different locations at different times – see The Use of Legal Materials, ch. 1 of my Definition in the Criminal Law (Oxford: Hart, 2004).

  88. 88.

    For the case at hand. It is possible to argue that law previously established for dealing with previous cases should be overturned, but again there are constraints on the legal reasoning that may be effectively employed to this end.

  89. 89.

    Taking positive law in the sense used by Austin, The Province, supra note 5 at 9, 202 [18, 172]: “law, simply and strictly so called: or law set by political superiors to political inferiors”; “every positive law, or every law simply and strictly so called, is set directly or circuitously by a monarch or sovereign number to a person or persons in a state of subjection to its author.” For Austin, that covers both legislation and judge-made law.

  90. 90.

    See supra note 89.

  91. 91.

    Austin, The Province, supra note 5 at 32 [36], endorsing judge-made laws as tacit commands of the sovereign; at 190–91 [162–63], endorsing Lord Mansfield in “assuming the office of a legislator” (while objecting to his enforcement of morality); at 207 [176], recognising vague terms in positive law without affecting its status. Both topics are held over for his later lectures. See infra note 93.

  92. 92.

    Hart, Postscript, supra note 29 at 259. In the remaining pages of the Postscript, as edited, Hart accepts the significance of legal principles (as well as rules), but in effect only so far as they are introduced through a rule of recognition (ibid. at 267); and reverts (ibid. at 272–276) to his former position on judicial discretion – relying on a restrictive analysis exhausted by settled law or judicial legislation (“judicial law-making”), which is pure Austin. This hardly amounts to saying more on the topic of legal reasoning, but it is impossible to speculate how much more Hart might have said, and what its significance might have been.

  93. 93.

    Austin, Lectures, supra note 12, Lectures XXVIII-XXXI, and the appended incomplete Essays on Interpretation and Analogy. Further consideration of vague terms is also found here, e.g., at 998–999.

  94. 94.

    Again, Austin is not unaware of these issues. Consider the fleeting reference to the “rationale” of positive law (supra note 79) in The Province, or the extensive discussion of the causes of judge-made law in his Lectures, supra note 12 at 634–635, 644–647. Nevertheless, Austin rigidly avoids setting these topics within a discussion of legal reasoning – the judicial function is exhaustively determined by either applying a rule or creating a rule (e.g., ibid. at 998–1000), and it is the rules (or commands) that form the subject matter of The Province. See further, Rumble, The Thought of John Austin, supra note 8 at 116–118.

  95. 95.

    David Dyzenhaus, “The Genealogy of Legal Positivism” (2004) 24 O.J.L.S. 39; Austin, The Province, supra note 5 at 191 [163].

  96. 96.

    Gerald Postema, Bentham and the Common Law Tradition (Oxford: Clarendon Press, 1986) at 463, concludes his assessment of Bentham’s hostility to any judicial legislation with a criticism of Bentham’s narrow “identification of law with the execution of already achieved agreement or consensus,” and his failure to allow into a general theory of law the recognition of “the capacity of (…) legal practice to provide both a matrix of and forum for the continual forging and reforging of consensus.”

  97. 97.

    See Raz, Between Authority and Interpretation, supra note 56 particularly chs. 3, 8 and 14. For criticism, see Hutchinson, The Province of Jurisprudence Democratized, supra note 7 at 77–78, on the lack of “analytical credibility for a concept of law that tells most judges and lawyers (…) that, whatever they are doing, they are not doing law when they go about the prosaic routines of their lawyering or judicial lives.”

  98. 98.

    Personal communication to author.

  99. 99.

    This is the common justification relied upon by all the positivist authors mentioned.

  100. 100.

    For arguments that the nature of the earlier positivists’ work has been narrowly interpreted, so impoverishing legal positivism, see Oren Ben-Dor, Constitutional Limits and the Public Sphere: A Critical Study of Bentham’s Constitutionalism (Oxford: Hart, 2000); David Dyzenhaus, “Positivism’s Stagnant Research Programme” (2000) 20 O.J.L.S. 703; William Twining, Globalisation and Legal Theory (London: Butterworths, 2000) at 16–20, 94–98.

  101. 101.

    The puzzle has been raised in particular over Hart’s purported affiliations with both descriptive sociology and analytical philosophy, see Lacey, A Life of H. L. A. Hart, supra note 45, and also her “Analytical Jurisprudence Versus Descriptive Sociology Revisited” (2006) 84 Texas Law Review 945; William Twining, General Jurisprudence: Understanding Law from a Global Perspective (Cambridge: Cambridge University Press, 2009) ch. 2.

  102. 102.

    A notable exception is John Finnis’ insistence that some sort of synthesis between the analytical and normative is required in any adequate theory of law in his Natural Law and Natural Rights (Oxford: Clarendon Press, 1980). However, his remarks remain allusive and undeveloped.

  103. 103.

    Austin, The Province, supra note 5 at 49–50 [50–51]. To avoid the risk of the following words of Austin being transformed into another “ambitious insight,” it should be stressed that such insight that they contain needs to engage with further insights, notably relating to the matters that are importantly raised in Bix, “John Austin and Constructing Theories of Law” supra note 16. The critical issue to explore is how a lack of fit between theory and practice is used to shed light on practice as it is, on practice as it might be, or on other concerns related to but not affecting that practice as it is currently experienced or conceived (very loosely: descriptive theory, normative theory, and blue sky theory). Raising and answering the question would indicate some advance. Evaluating the answers might alleviate Austin’s anxiety, or exacerbate it.

  104. 104.

    See Theorising the Global Legal Order ed. by Andrew Halpin and Volker Roeben (Oxford: Hart, 2009), chs. 1 and 14; and, more widely, Twining, General Jurisprudence, supra note 101; Jack Goldsmith and Daryl Levinson, “Law for States: International Law, Constitutional Law, Public Law” (2009) 122 Harvard Law Review 1791.

Acknowledgements

I am grateful to Michael Freeman and the participants at the John Austin 150th Anniversary Conference, John Austin and his Legacy, UCL, December 2009, for much stimulating discussion and helpful comments on an earlier draft of this essay presented as a paper at that conference. I am particularly grateful to Stanley Paulson for further helpful discussion thereafter. This chapter was previously published in (2011) 70 Cambridge Law Journal 175 and is reproduced by the kind permission of Cambridge University Press.

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    Andrew Halpin

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    Michael Freeman

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    Patricia Mindus

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Halpin, A. (2013). Austin’s Methodology? His Bequest to Jurisprudence. In: Freeman, M., Mindus, P. (eds) The Legacy of John Austin's Jurisprudence. Law and Philosophy Library, vol 103. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4830-9_2

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