Philosophy Phridays – John Austin

Philosophy Phridays is a series where each Friday, I go to the Stanford Encyclopedia of Philosophy, click on “random entry,” and then write about whatever comes up. This week’s random entry is John Austin.

John Austin was a British thinker who lived from 1790-1859. He is famous for creating the school of analytical jurisprudence. He also came up with an approach to law known as legal positivism. He was good friends with Jeremy Bentham, James and John Stuart Mill, and others of the utilitarian circle. He was never very successful in his lifetime, though. He had trouble keeping a job and rarely finished his writings. The article blames these failings on his, “nervous disposition, shaky health, tendency towards melancholy, and perfectionism.” Most of his success is because his wife supported him, both emotionally and economically, and she worked to publicize his writings after his death.

Austin is often considered the first person to study the law analytically. He would analyze key concepts of the law, such as legal duty, legal right, and legal validity. In his time, common law was in fashion. People thought that the law was a matter of tradition, community mores, and things like that. Austin saw it as a thing in itself, that came from the top down. In other words, it was created by the sovereign. It is a view much more in line with modern, centralized states than the common law view.

His other main innovation was legal positivism. At the time he wrote, most people thought of law as merely a branch of moral philosophy or political philosophy. “Legal positivism asserts (or assumes) that it is both possible and valuable to have a morally neutral descriptive (or “conceptual”—though this is not a term Austin used) theory of law.” It is important to study the law as the law, not as how it relates to morality or politics. Not that these things are unimportant, but they are a separate field of study.

Many who have written about the history of philosophy have talked about how subjects often start as philosophy before breaking off to their own domain. Physics, economics, biology, computer science, and psychology all started as philosophy. I kind of look at Austin as the person who made the break between philosophy and law. Thanks to him, the law is now the domain of lawyers, not philosophers. Figures like that are interesting to me.

There are a few scholars out there now who believe in Austin’s particular views and try to defend them, but not many. For the last century, people have been pointing out problems with his ideas about sovereign authority. They also point out that his command theory doesn’t work very well when looking at wills and contracts. He also didn’t leave much room for international law and treaties. Even though his views are no longer in fashion, he is still an important figure in the history of philosophy and the law.

Bix, Brian, “John Austin”, The Stanford Encyclopedia of Philosophy (Summer 2019 Edition), Edward N. Zalta (ed.), URL = <https://plato.stanford.edu/archives/sum2019/entries/austin-john/>.

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