Jurisprudence

October 2008 newsletter Adam Gearey

Austins Jurisprudence Part 1

This posting considers the work of John Austin, one of the foundational figures for positivist jurisprudence. Our objective is to try and over-view Austins work, and to appreciate its essential arguments. Next months posting will continue our analysis. Austins jurisprudence has been seen as the acme of a positivist approach to English law. He begins from the central tenet of positivism: every possible law, or rule of lawemanatesfrom a sovereign or subordinate source ( John Austin, Lectures on Jurisprudence or The Philosophy of Positive Law, edited by Robert Campbell in two volumes, Volume Two (London: John Murray, 1885), 533). One must then approach posited law in an ordered manner. Austins jurisprudence is one of careful demarcation and division. This is achieved through the extrapolation of the terms of Roman jurisprudence, and the argument that they can be used as a grid to determine the way in which the common law should be organised. Indeed, the very expression fonts juris is explicated by reference to Roman writers. Although somewhat ambiguous, it can be connected to an account of origins: the term relates to the documents which provide us with knowledge of the law. This re-articulation of the term allows Austin to position his own writing in a line that stretches from the earliest documents that relate to Roman law, through the classical writers to the medieval Glossators and Commentators. From these sources of legal knowledge, one can make an explicit link to the early writers on the common law like Bracton, through to celebrated figures such as Hale and Blackstone. But, it would be wrong to see Austins use of Roman law as slavish. It may be able to provide categories to reveal the true shape of English law, but these categories need to be revised in their application. This is another aspect of positivism; the need to use language with precision. Consider the Roman distinction between the law of persons and the law of things. Austin considers this meaningless, arguing that both these divisions of law relate to rights and duties which are incumbent upon men (Lectures 687). Once this is clarified, one can appreciate that the distinction is not absolute, but rather a question of the best organisation of the corpus juris. But there is a deeper logic. For Austin, the distinction between the law of persons and the law of things rests on a notion of person as meaning status or condition (696). This body of law can usefully be subtracted from the law of things. In Austins account of the ordering of the law, then, the law of things ought to precede the law of persons (727). As the latter is more specific than the former, the law of things ought to take precedence as it contains the most general exposition of the law. The divisions of the law should be based on a principle that moves from the general to the specific. Thus, public law can be seen as a limb of the law of persons. Private law, can in turn be divided by reference to a distinction between relative and absolute rights and duties correlating with a second distinction between primary and sanctioning rights and duties (761). Why should this complex system detain us? It would appear that laws meaning can be determined if only the system of classification could be achieved. This is, in one sense, the drive of positivism. However, we forget to our peril the broader schema into which
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this system of classification fits. As Austin notes, Jurisprudence is the science of what is essential to law, combined with the science of what it ought to be (372 The Province of Jurisprudence Determined (1832), and the Uses of the Study of Jurisprudence (1863) ed. HLA Hart, Weidenfeld and Nicholson: London, 1954)).

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