John Austin (legal philosopher)
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John Austin (1790 - 1859) was a noted British jurist and published extensively concerning the philosophy of law and jurisprudence.
Austin served with the British Army in Sicily and Malta, but sold his officer's commission to study law. He became a member of the Bar during 1818. He discontinued his law practice soon after, devoted himself to the study of law as a science, and became Professor of Jurisprudence in the University of London (now University College London) 1826-32. Thereafter he served on various Royal Commissions.
His publications had a profound influence on English jurisprudence. They include The Province of Jurisprudence Determined (1832), and Lectures on Jurisprudence.
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[edit] Theories on legal positivism
The three basic points of Austin's theory of law are, that:
- the law is command issued by the uncommanded commander--the sovereign;
- such commands are backed by sanctions; and
- a sovereign is one who is habitually obeyed
John Austin is best known for his work developing the theory of legal positivism. He attempted to clearly separate moral rules from "positive law."
Austin was greatly influenced in his utilitarian approach to law by Jeremy Bentham. Austin took a positivist approach to jurisprudence; he viewed the law as commands from a sovereign that are backed by a threat of sanction. In determining 'a sovereign', Austin recognized it as one who society obeys habitually. This of course raises problems of the sovereign-many - Parliament, comprising numerous individuals, each with varying authoritative powers. Austin's theory also falls somewhat short in his explanations of Constitutions, International Law, non-sanctioned rules, or law that gives rights. Insofar as non-sanctioned rules and laws that allow persons to do things, for instance contract law, Austin says failure to adhere to the rules does indeed lead to sanctions, however such sanctions are in the form of "the sanction of nullity." In this way he defined law primarily in terms of the power to control others. This definition of law was criticised by the 20th century legal philosopher H. L. A. Hart, who said that it was analogous to a gunman backing up his demands with a threat of violence.
[edit] Legacy
Austin greatly influenced later 20th Century thinkers, most notably "Pure Theory of Law" founder Hans Kelsen and H.L.A. Hart who even more vigorously argued for the divorce of law and morals, attempting to defend against the accusations that legal positivism was responsible for the horror occurring in Nazi Germany.
[edit] References
- This article incorporates public domain text from: Cousin, John William (1910). A Short Biographical Dictionary of English Literature. London, J.M. Dent & sons; New York, E.P. Dutton.
- Wilfred E. Rumble, The Thought of John Austin : Jurisprudence, Colonial Reform, and the British Constitution London ; Dover, N.H. : Athlone Press, 1985
