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Jurisprudence

October 2008 newsletterAdam Gearey

Austins Jurisprudence Part 1

This posting considers the work of John Austin, one of the foundational figures forpositivist jurisprudence. Our objective is to try and over-view Austins work, and toappreciate its essential arguments. Next months posting will continue our analysis.

Austins jurisprudence has been seen as the acme of a positivist approach to Englishlaw. He begins from the central tenet of positivism: every possible law, or rule oflawemanatesfrom a sovereign or subordinate source ( John Austin, Lectures onJurisprudence or The Philosophy of Positive Law, edited by Robert Campbell in twovolumes, Volume Two (London: John Murray, 1885), 533). One must then approach

posited law in an ordered manner. Austins jurisprudence is one of careful demarcationand division. This is achieved through the extrapolation of the terms of Romanjurisprudence, and the argument that they can be used as a grid to determine the wayin which the common law should be organised. Indeed, the very expression fontsjuris is explicated by reference to Roman writers. Although somewhat ambiguous, itcan be connected to an account of origins: the term relates to the documents whichprovide us with knowledge of the law.

This re-articulation of the term allows Austin to position his own writing in a line thatstretches from the earliest documents that relate to Roman law, through the classicalwriters to the medieval Glossators and Commentators. From these sources of legalknowledge, 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 toprovide categories to reveal the true shape of English law, but these categories need tobe revised in their application. This is another aspect of positivism; the need to uselanguage with precision. Consider the Roman distinction between the law of personsand the law of things. Austin considers this meaningless, arguing that both thesedivisions of law relate to rights and duties which are incumbent upon men (Lectures687). Once this is clarified, one can appreciate that the distinction is not absolute, butrather a question of the best organisation of the corpus juris. But there is a deeperlogic. For Austin, the distinction between the law of persons and the law of things restson 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 ofthe law, then, the law of things ought to precede the law of persons (727). As the latteris more specific than the former, the law of things ought to take precedence as itcontains the most general exposition of the law.

The divisions of the law should be based on a principle that moves from the general tothe 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 rightsand duties correlating with a second distinction between primary and sanctioningrights and duties (761).

Why should this complex system detain us? It would appear that laws meaning can bedetermined 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 whatis essential to law, combined with the science of what it ought to be (372 The Provinceof Jurisprudence Determined (1832), and the Uses of the Study of Jurisprudence(1863) ed. HLA Hart, Weidenfeldand Nicholson: London, 1954)).

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