Abstract
Austin’s simple theory of law is limited in several ways as critics have shown ever since it was first conceived. Yet it served his intended purposes, that is, to define the relevant features of rule of law and subject law to the prevailing scientific paradigm that transferred reason into the positive legal systems. The definition of law as imperatives backed by coercion did not have a political meaning but was the preamble of a coherent systematization of law. By defining legal rules by reference to the express or tacit mandate of a single legislator the organisation and justification of which are irrelevant for jurisprudence within the framework of coercive enforcement allows Austin to separate legal rules from other types of norms. As such, the reference to sanctions and to the pre-legal concept of sovereignty were sufficient for this purpose. But Austin was concerned with much more than jurisprudence. He long thought about writing his major work embracing moral and legal questions and interconnecting them although he never completed the task. Since this was his general objective, the published lectures are thus incomplete if unrelated to morals, especially to positive morality that is different from morals yet relevant to identify valid law. In a way not far from Hart’s account of the rule of recognition, Austin considered that stability of social interaction does not depend exclusively on external regularities of behaviour but on a common attachment to normative authority.
This is a preview of subscription content, log in via an institution.
Buying options
Tax calculation will be finalised at checkout
Purchases are for personal use only
Learn about institutional subscriptionsNotes
- 1.
I developed this idea in my Derecho y moral en John Austin (Madrid: Centro de Estudios Políticos y Constitucionales, 2001) chapter 2.
- 2.
Wilfrid E. Rumble, Doing Austin Justice. The Reception of John Austin’s Philosophy of Law in Nineteenth-Century England (New York: Continuum, 2005) at 4. As the author writes, the variety of Austin’s ideas are anything but a model of uniformity (Ibid. at 8) and “[w]hat is clear is that Austin’s conception of jurisprudence, or some elements of it, appear to have been more widely accepted than many of his other notions” (Ibid. at 5).
- 3.
John Austin, Lectures on Jurisprudence, or the Philosophy of Positive Law, rev. and ed. by Robert Campbell (5th ed., London: John Murray, 1885) Preface at 16.
- 4.
In Austin’s theory, the use of powers by public bodies are not only assumed tacitly as sovereign commands but can derive from a written declaration. Austin talks of “the positive laws which determine the powers and duties of the ministers of justice, and of the other political and public persons subordinate to the sovereign government” (Austin, Lectures, supra note 3 at vol. II, 567–568). Nevertheless, these laws are interpreted as imperative and coercive (Austin, Lectures, supra note 3 at 567–568).
- 5.
John Stuart Mill, “On the Logic of the Moral Sciences” in A System of Logic, Ratiocinative and Inductive, Collected Works of John Stuart Mill ed. by John M. Robson (Toronto: University of Toronto Press, 1974), vol. 8.
- 6.
John Stuart Mill, “Austin on Jurisprudence” in Collected Works of John Stuart Mill, supra note 5, 1984, vol. XXI, 165–205.
- 7.
Ibid. at 171.
- 8.
John Stuart Mill, “Austin’s Lectures on Jurisprudence” in Collected Works of John Stuart Mill, supra note 5 at 55.
- 9.
Felipe González Vicén, “El positivismo en la filosofía del derecho contemporánea” in Estudios de Filosofía del Derecho (Tenerife: Universidad de la Laguna, 1979) at 67.
- 10.
Felipe González Vicén, [Preliminary Study to Spanish translation of] On the Uses of the Study of Jurisprudence (Madrid: Centro de Estudios Constitucionales, 1981) 5–22, at 20. In this sense, Mauro Barberis states that Austin’s theory of law could be regarded “as a sort of conceptual natural law – a natural law providing not principles, but just concepts” (Mauro Barberis, “Universal Legal Concepts? A Criticism of ‘General’ Legal Theory” (1996) 9:1 Ratio Juris 1–14, at 10). Also Buckland comes to the same conclusion, asserting that Austin “takes on faith” the existence of general principles common to Western systems, “for he speaks of ‘necessary notions, principles and distinctions’, which language is so like that associated with the Law of Nature that some foreign writers treat Austin as a disguised supporter of the doctrine of Naturrecht.” See William Warwick Buckland, Some Reflections on Jurisprudence (Cambridge: Cambridge University Press, 1949) at 69–70. Peter Stein suggests that natural lawyers influenced Austin indirectly through Pandectism. See Peter Stein, Roman Law and English Jurisprudence Yesterday and Today (Cambridge: Cambridge University Press, 1969) at 12.
- 11.
In this sense, William Archibald Dunning, A History of Political Theories. From Rousseau to Spencer (New York: Macmillan, 1930) at 224–225; Morris R. Cohen, “John Austin” in The Encyclopaedia of Social Sciences ed. by Edwin Seligman and Alvin Johnson (New York: Macmillan, 1931) vol. II, 317–318, at 318; Charles Anthony Woodward Manning, “Austin Today; or ‘The Province of Jurisprudence’ Re-examined” in Modern Theories of Law ed. by W. Ivor Jennings (Oxford: University Press, 1933) 180–226, at 185 and cf. at 220; Andreas B. Schwarz, “John Austin and the German Jurisprudence of His Time” (1934) August Politica 178–199, at 192–197; Gustav Radbruch, “Anglo-American Jurisprudence through Continental Eyes” (1936) 52 The Law Quarterly Review 530–545; Arduino Agnelli, John Austin, alle origini del positivismo giuridico (Torino: Giappichelli, 1959) at 21–34; Julius Stone, Legal System and Lawyers’ Reasonings (Sydney: Maitland, 1964); Reginald Walter Michael Dias, Jurisprudence, (4th ed., London: Butterworths, 1976); González Vicén, “Preliminary Study” supra note 10 at 13–15; Michael H. Hoeflich, “John Austin and Joseph Story: Two Nineteenth Century Perspectives on the Utility of the Civil Law for the Common Lawyer” (1985) 29 The American Journal of Legal History 36–77; Josep Juan Moreso, “Cinco diferencias entre Bentham y Austin” (1989) 6 Anuario de Filosofía del Derecho 129–139; Michael Lobban, The Common Law and English Jurisprudence. 1760–1850 (Oxford: Clarendon Press, 1991) at 223–224 and 227–234; Mauro Barberis, [Introduction to the Italian translation of The Province] John Austin, Delimitazione del campo della giurisprudenza, trans. by Giorgio Gjylapian (Bologna: Il Mulino, 1995) at 17 and 39 and Barberis, “Universal Legal Concepts?” supra note 10 at 4.
- 12.
Otto von Gierke, “Labands Staatrecht und die deutsche Rechtwissenschaft” in Jahrbuch für Gesetzgebung, Verwaltung und Volkswirtschaft im deutschen Reich ed. by Gustav von Schmoller (Berlin: Dunker & Humblot, 1883 – Jan) at 1191–1192; and Immanuel Bekker, Über den Streit der historischen und philosophischen Rechtsschule (Heidelberg: Akademische Rede, 1886) at 19–20.
- 13.
Paul Koschaker, Europa und das römische Rechts (München: Biederstein Verlag, 1947); Franz Wieacker, A History of Private Law in Europe: with particular reference to Germany (Oxford: Clarendon Press, 1995). The same idea is expressed in Mario G. Losano, Sistema e struttura nel diritto, vol. I, “Dalle origini alla scuola storica” (Torino: Giappichelli, 1968) and Enrique Gómez Arboleya, “Supuestos cardinales de la ciencia jurídica moderna” in Estudios de teoría de la sociedad y del Estado (Madrid: Instituto de Estudios Políticos, 1962).
- 14.
González Vicén, “Sobre los orígenes y supuestos del formalismo” supra note 9 at 167.
- 15.
Austin, Lectures, supra note 3 at 16. In this preface, Sarah Austin wrote that she well knew that “he had long meditated a book embracing a far wider field (…). His opinion of the necessity of an entire refonte of his book arose, in great measure, from the conviction, which had continually been gaining strength in his mind, that until the ethical notions of men were more clear and consistent, no considerable improvement could be hoped for in legal or political science, nor, consequently, in legal or political institutions” (ibid.). The outline attached, of which Austin’s quotation is extracted, “sufficiently proves that he had seriously resolved to execute the great work he had planned.”
- 16.
In this sense, Wilfrid E. Rumble, “Nineteenth-Century Perceptions of John Austin: Utilitarianism and the Reviews of The Province of Jurisprudence Determined” (1991) 3 Utilitas at 202. Rumble shares this view when considering the lessons on the principle of utility not only relevant for his contribution to moral philosophy, but also for their impact on Austin’s legal theory: see Wilfrid E. Rumble, The Thought of John Austin. Jurisprudence, Colonial Reform and the British Constitution (London: The Athlone Press, 1985) chapter 3.
- 17.
James Fitzjames Stephen, “English Jurisprudence” (1861) 114 The Edinburgh Review 456–486, esp. at 462–463.
- 18.
Radbruch, “Anglo-American Jurisprudence” supra note 11 at 535–536.
- 19.
Stone, Legal System and Lawyers’ Reasonings, supra note 11 at 80. Later on, the author states that “[the] ‘law of God’, ‘the law of nature’ and ‘the law of reason’ held interest for him only for the purpose of being distinguished and kept rigidly outside his scheme. He did not deny their importance, but he did deny that they had any special importance for a logical view of law. He did not deny that they might have binding force for men, but he denied that they could have legal binding force according to his logical system” (Ibid. at 86).
- 20.
Raymond Cocks, Foundations of the Modern Bar (London: Sweet & Maxwell, 1983) at 49. Also Arduino Agnelli places Austin’s interests on the wider practical problem of individual action (Agnelli, John Austin, supra note 11 at e.g. 175, 258–259, 269).
- 21.
Austin, Lectures, supra note 3 at 82, vol. I.
- 22.
Ibid. at 155.
- 23.
Ibid. at 83.
- 24.
Ibid. at 81.
- 25.
Ibid. at 197.
- 26.
Ibid. at 746, vol. II. Cf. at 81, vol. I.
- 27.
Ibid. at 754.
- 28.
Ibid. at 634. See Lobban, The Common Law and English Jurisprudence, supra note 11 at 242.
- 29.
Austin, “Excursus on Analogy” in Lectures, supra note 3 at 1012, vol. II.
- 30.
See Agnelli, John Austin, supra note 11 at 175, 258–259, and 269; and Robert Moles, Definition and Rule in Legal Theory: A Reassessment of H. L. A. Hart and the Positivist Tradition (Oxford: Blackwell, 1987) at 15, 20, and 93. This is not an unanimous interpretation of Austin’s thought. Many interpreters considered his disquisition on ethics irrelevant for his main purposes, see Albert V. Dicey, “The Study of Jurisprudence” (1880) 5 The Law Magazine and Review (4th series) 382–401, at 387; Henry S. Maine, Lectures on the Early History of Institutions (6th ed., London: John Murray, 1893) at 368–370; William Jethro Brown, The Austinian Theory of Law (London: John Murray, 1906); John Chipman Gray, The Nature and Sources of the Law (New York: Macmillan, 1909) at 144, and at 304–305; Frederic Harrison, On Jurisprudence and the Conflict of Laws (Oxford: Clarendon Press, 1919) at 20–21; Mario A. Cattaneo, Il positivismo giuridico inglese. Hobbes, Bentham, Austin (Milano: Giuffrè, 1962) at 236–237; Wolfgang Friedmann, Legal Theory (5th ed., London: Stevens and Sons, 1967) at 258; Lobban, The Common Law and English Jurisprudence, supra note 11 at 246, cf. at 254–256.
- 31.
Austin, Lectures, supra note 3 at 113–114.
- 32.
In this sense, Barberis, Introduction, supra note 11 at 22 fn 31.
- 33.
See Moles, Definition and Rule in Legal Theory, supra note 30 at 16–21. Moles is among those who mostly stressed the normative unity in Austin’s work and the analytical purpose of the separation between each type of law. This reading allowed him to show that Hart’s conclusions about Austin’s position was “fundamentally flawed, because they are based on a complete misinterpretation of Austin’s work” (Ibid. at 74).
- 34.
Austin, “On the Uses of the Study of Jurisprudence” in Lectures, supra note 3 at 1076, vol. II.
- 35.
David Sugarman, “Legal Theory, the Common Law Mind and the Making of Textbook Tradition” in Legal Theory and Common Law ed. by William L. Twining (Oxford: Basil Blackwell, 1986) 26–61, at 43.
- 36.
Ibid. at 44.
- 37.
Austin, “On the Uses of the Study of Jurisprudence” in Lectures, supra note 3 at 1075.
- 38.
Moles, Definition and Rule in Legal Theory, supra note 30 at 26–30, and 61–62.
- 39.
Buckland, Some Reflections on Jurisprudence, supra note 10 at 3. In the same sense, Dias, Jurisprudence, supra note 11 at 469–470.
- 40.
Manning, “Austin Today: or ‘The Province of Jurisprudence’ Re-examined” supra note 11 at 182.
- 41.
Cattaneo thinks that therein lies the distinctive contribution of Austin: see his “John Austin” (1978) 8:1 Materiali per una storia della cultura giuridica at 49–50, cf. at 86–87, and Il positivismo guiridico inglese, supra note 30 at 223, cf. at 225–6.
- 42.
Harrison, On Jurisprudence and the Conflict of Laws, supra note 30 at 29. See also Fossey John Cobb Hearnshaw, The Social and Political Ideas of Some Representative Thinkers of the Age of Reaction and Reconstruction. 1815–1865 (London: Barnes and Noble, 1932) at 178.
- 43.
As Brian H. Bix writes, theories are efforts to “boil down” a complicated reality to find what is essential amid the differences. When they intend to be too inclusive they thwart their purpose. “They are like maps that are large and detailed, almost as big as the area they purport to describe, creating realistic portraits of the area, but doing so at such a large size that they are no longer functional, and can no longer serve their intended function of helping us to find quickly the best route from one place to another” (See supra chapter 1 by Brian Bix entitled John Austin and Constructing Theories of Law).
- 44.
Against the widespread thesis that a claim to correctness or to authority is a necessary element to define the law, some still deny the necessity of moral premises for definitional undertakings, such as Brian H. Bix, “Robert Alexy, Radbruch’s Formula and the Nature of Legal Theory” (2006) 37 Rechtstheorie 139–149; Matthew Kramer, In Defense of Legal Positivism. Law without Trimmings (Oxford: Oxford University Press, 1999); Liam Murphy, “The Political Question of the Concept of Law” in Hart’s Postscript. Essays on the Postscript to “The Concept of Law” ed. by Jules L. Coleman (Oxford: Oxford University Press, 2001) 371–409.
- 45.
Herbert Morris, “John Austin” in Encyclopedia of Philosophy ed. by Paul Edwards (New York: MacMillan, 1967) vol. I, 209–211, at 210.
- 46.
Frederick Schauer, “Was Austin Right After All? On the Role of Sanctions in a Theory of Law” (2010) 23:1 Ratio Juris 1–21, at 17.
- 47.
Herbert L. A. Hart, “Positivism and the Separation of Law and Morals” in Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983) 49–87, at 60.
- 48.
Ibid. at 78.
- 49.
Anthony T. Kronman, “Hart, Austin and the Concept of a Legal System: The Primacy of Sanctions” (1974–1975) 84 The Yale Law Journal 584–607, at 606. Also Philip Soper, A Theory of Law (Cambridge, MA: Harvard University Press, 1984).
- 50.
I agree with Francisco Laporta that the conception of law as the union of primary and secondary rules or the normative point of view does not enable the conceptual distinction between law and morals (Francisco Laporta, “Sobre las relaciones entre derecho y moral: cuestiones básicas” in Entre el derecho y la moral (2nd ed., México DF: Fontamara, 1995) at 92.
- 51.
Herbert L. A. Hart, Postscript in The Concept of Law (2nd ed.) ed. by Penelope A. Bulloch and Joseph Raz (Oxford: Oxford University Press, 1994) at 110–117. See Moles, Definition and Rule in Legal Theory, supra note 30 at 97–99.
- 52.
Ibid. at 257.
- 53.
Ibid. at 203.
- 54.
Hart, Postscript, supra note 51 at 257.
- 55.
Ibid. at 240.
- 56.
Ibid. at 266–267.
- 57.
Hart, The Concept of Law, supra note 51 at 113. Although he recognises that this “is either no more than a convenient shorthand for complex facts which still await description, or a disastrously confusing piece of mythology” (ibid).
- 58.
Herbert L. A. Hart, Essays on Bentham. Jurisprudence and Political Theory (Oxford: Clarendon Press, 1982) at 160.
- 59.
Matthew Kramer, “Requirements, Reasons and Raz: Legal Positivism and Legal Duties” (1999) 109 Ethics 375–407.
- 60.
Austin, Lectures, supra note 3 at 220, vol. I.
- 61.
Manning, “Austin Today” supra note 11 at 192. Cotterrell shares this interpretation of Austin’s sovereign: See Roger Cotterrell, The Politics of Jurisprudence. A Critical Introduction to Legal Philosophy (London: Butterworths, 1989) at 70, 87.
- 62.
Ernesto Garzón Valdés, “Hermann Heller y John Austin. Un intento de comparación” (1983) 57 Sistema 31–50, esp. at 35–36, cf. at 47–48.
- 63.
Leslie Stephen, The English Utilitarians (London: Duckworth, 1900) vol. 3, at 329.
- 64.
This interpretation of Austin’s sovereign as an abstraction that precedes his legal theory has been made on many occasions. See Barberis, Introduction, supra note 11 at 28; Mario A. Cattaneo, “John Austin” (1978) 8 Materiali per una storia della cultura giuridica 11–95, at 88; Dan Gerber, “A Note on Woody on Dewey on Austin” (1969) 79 Ethics 303–308, at 306; Lobban, The Common Law and English Jurisprudence, supra note 11 at 245–254; Moles, Definition and Rule in Legal Theory, supra note 30 at 71; Stone, Legal System and Lawyers’ Reasonings, supra note 11 at 71–75. Austin himself acknowledged that his definition of independent political society and sovereignty did not describe reality adequately and were representative of specific or particular cases due to their imprecise import (Austin, Lectures, supra note 3 at 226–227, vol. I).
- 65.
Ernesto Garzón Valdés, “Acerca de las limitaciones legales al soberano legal” (1981) 43/44 Sistema 43–56, at 54–5.
- 66.
John Austin, “Centralization” (1847) 85 The Edinburgh Review 221–258, at 248 and 261.
- 67.
Hart, The Concept of Law, supra note 51 at 288.
- 68.
Austin, Lectures, supra note 3 at 191–3, vol. I.
- 69.
Herbert L. A. Hart, Introduction to John Austin, The Province of Jurisprudence Determined ed. by Herbert L. A. Hart (London: Weidenfeld, 1954) vii-xviii, at xiii.
- 70.
Austin, Lectures, supra note 3 at 224, vol. I.
- 71.
Ibid. at 294, vol. I.
- 72.
Susan Minot Woody, “The Theory of Sovereignty: Dewey versus Austin” (1967–8) 78 Ethics 313–318, at 315.
- 73.
This moral nature of the rules that define the sovereign eludes the circularity criticised by Morison: See William L. Morison, John Austin (London: Edward Arnold, 1982) at 92 and 183. The author has to admit that, contrary to his assumed empiricism, Austin finally converts the question of legal validity in a question of rules (Ibid. at 74, cf. at 83 and 91).
- 74.
There are many occasions when Austin insists that he uses the notion of sovereign to refer not to particular individuals but to persons in his sovereign character or capacity. See Austin, Lectures, supra note 3 at e.g. 87, 97, 170, 178, 180, 187, 256, 269, 402, 404 (vol. I) and 540, 746 (vol. II).
- 75.
See Juan Ramón De Páramo, H. L. A. Hart y la teoría analítica del derecho (Madrid: Centro de Estudios Constitucionales, 1984) at 296.
- 76.
Hart, Introduction, supra note 69, at x.
- 77.
Geoffrey Marshall, Constitutional Theory (Oxford: Clarendon Press, 1971).
- 78.
In this sense, Francisco Laporta, “Poder y derecho” in El derecho y la justicia ed. by Ernesto Garzón Valdés and Francisco Laporta (Madrid: Trotta, 1996) 441–453, at 446.
- 79.
Austin, Lectures, supra note 3 at 746, vol. I.
- 80.
Lotte and Joseph Hamburger, Troubled Lives: John and Sarah Austin (Toronto: University Press, 1985) at 189.
- 81.
Austin, Lectures, supra note 3 at 116–117, vol. I.
- 82.
Ibid. at 321.
- 83.
John Austin, A Plea for the Constitution (2nd ed., London: John Murray, 1859) at 37.
- 84.
Ibid. at 4.
- 85.
Ibid. at 5.
- 86.
Juan Ramón De Páramo, Prologue to Isabel Turégano, Derecho y moral, supra note 1 at 19.
- 87.
Moles, Definition and Rule in Legal Theory, supra note 30 at 14.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2013 Springer Science+Business Media Dordrecht
About this chapter
Cite this chapter
Mansilla, I.T. (2013). Reconstructing Austin’s Intuitions: Positive Morality and Law. 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_15
Download citation
DOI: https://doi.org/10.1007/978-94-007-4830-9_15
Published:
Publisher Name: Springer, Dordrecht
Print ISBN: 978-94-007-4829-3
Online ISBN: 978-94-007-4830-9
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)