Abstract
One of the standard criticisms of John Austin’s work is that his portrayal of law, as essentially the command of a sovereign to its subjects, does not fit well with the way law is practiced in many or most contemporary legal systems, or the way that it is perceived by lawyers, judges, and citizens who are participants in those systems. However, contemporary legal theories also seem to fail to fit current practice in significant ways. The question is one of the power of the insights a theory brings, and whether it is worth whatever “distortions” it requires. For one generation, the insights of Austin’s (or Kelsen’s or Raz’s) theory might seem central, and the deviations trivial, while for a later generation, the insights might seem small or hard to accept, while the deviations seem fatal. Theory construction, especially where the theory is not anchored by falsifiable predictions, is often more a matter of persuasiveness, rather than a matter of truth. And if John Austin’s theory seems less sustainable than it once did, that may say as much about us, and what concerns us, as it does about his theory.
An earlier version of this paper was presented at the University College London Conference, “John Austin 150th Anniversary” and a different version of portions of the paper was published in (2011) 24 The Canadian Journal of Law and Jurisprudence 431–440. I am grateful for the comments of Andrew Halpin, the other participants at the University College London Conference, and Brian Tamanaha.
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Notes
- 1.
John Austin, The Province of Jurisprudence Determined ed. by Wilfrid E. Rumble (Cambridge: Cambridge University Press, 1995) (first published, 1832); John Austin, Lectures on Jurisprudence, or The Philosophy of Positive Law ed. by Robert Campbell (4th edition, rev., London: John Murray, 1873) [Bristol: Thoemmes Press reprint, 2002], two vols.
- 2.
Herbert L. A. Hart, The Concept of Law (rev. ed., Oxford: Clarendon Press, 1994) at 56–57, 84–91.
- 3.
John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980) at 3–18; Joseph Raz, Practical Reason and Norms (Princeton: Princeton University Press, 1990) at 170–177.
- 4.
Joseph Raz, “Two Views of the Nature of the Theory of Law: A Partial Comparison” (1998) 4 Legal Theory 249 at 258 (footnotes omitted).
- 5.
Here, as elsewhere in this paper, the reference is to the English-language jurisprudence literature. I am well aware that the traditions and discussions in other jurisprudential literatures are quite different (starting from the fact that, in many other countries, Austin, along with Hart and Raz, may be relatively unknown, while more emphasis is given to Kelsen’s work).
- 6.
Herbert L. A. Hart, “Positivism and the Separation of Law and Morals” (1958) 71 Harv. L. Rev. 593 at 594–606; Hart, The Concept of Law, supra note 2 at 18–78; see also Scott J. Shapiro, Legality (Cambridge, MA: Harvard University Press, 2011) at 51–78.
- 7.
For example, Austin offers some detailed responses to possible objections to his claim that all societies have an unlimited sovereign, in Austin, Province, supra note 1 at Lecture VI, 190–242.
- 8.
See, e.g., Joseph Raz, Ethics in the Public Domain (Oxford: Oxford University Press, 1994) at 210–21; Joseph Raz, Between Authority and Interpretation (Oxford: Oxford University Press, 2009) at 190–202.
- 9.
Of which both Dworkin and Raz have given effective rebuttals. See Raz, Practical Reason and Norms, supra note 3 at 50–58; Ronald Dworkin, Taking Rights Seriously (rev. ed., Cambridge, MA: Harvard University Press, 1978) at 48–58.
- 10.
See, e.g., Joseph Raz, The Authority of Law (Oxford: Clarendon Press, 1979) at 95–96; Dworkin, Taking Rights Seriously, supra note 9 at 14–130.
- 11.
See Simon Roberts, Order and Dispute (Harmondsworth, England: Penguin, 1979) at 23–25.
- 12.
See Brian H. Bix, Jurisprudence: Theory and Context (5th ed., London: Sweet & Maxwell, 2009) at 23–24.
- 13.
Joseph Raz, The Concept of a Legal System (2nd ed., Oxford: Clarendon Press, 1980) at 197–200.
- 14.
Dworkin, Taking Rights Seriously, supra note 9 at 14–45.
- 15.
One might note in passing a couple of possible lines of response: first, that for Hart, as for Kelsen before him, the notion of a single rule of recognition (for Kelsen, the single Grundnorm or “Basic Norm” – e.g., Hans Kelsen, Introduction to the Problems of Legal Theory trans. by Bonnie Litschewski Paulson and Stanley L. Paulson (Oxford: Oxford University Press, 1992) at 55–65 – is more of an assumption, by legal officials and citizens as much as by theorists, based on the systematic nature of legal systems rather than a description or observation; and, second, that Dworkin’s legal principles are more moral reasons for changing the law than they are aspects of the law as it currently is. See Joseph Raz, “Legal Principles and the Limits of Law” in Ronald Dworkin and Contemporary Jurisprudence ed. by Marshall Cohen (Totowa, NJ: Rowman & Allanheld, 1984) at 73–87.
- 16.
For a discussion of “reductionism” in the theories of John Austin, Hans Kelsen, and James W. Harris, see Brian H. Bix, “Reductionism and Explanation in Legal Theory” in Properties of Law: Essays in Honour of Jim Harris ed. by Timothy Endicott, Joshua Getzler and Ed Peel (Oxford: Oxford University Press, 2006) at 43–51.
- 17.
See, e.g., Judgment Under Uncertainty: Heuristics and Biases ed. by Daniel Kahneman and Paul Slovic Amos Tversky (Cambridge: Cambridge University Press, 1982).
- 18.
Nigel E. Simmonds, “Law as a Moral Idea” (2005) 55 U. Toronto L.J. 61 at 69–70.
- 19.
Raz, Between Authority and Interpretation, supra note 8 at 17–46.
- 20.
Ronald Dworkin, Law’s Empire (Cambridge, MA: Harvard University Press, 1986).
- 21.
Liam Murphy, “The Political Question of the Concept of Law” in Hart’s Postscript ed. by Jules Coleman (Oxford: Oxford University Press, 2001) at 371.
- 22.
Sean Coyle, From Positivism to Idealism (London: Ashgate, 2007) at 10.
- 23.
John Finnis, “Law and What I Truly Should Decide” (2005) 48 Amer. J. Juris. 107.
- 24.
Dworkin, Taking Rights Seriously, supra note 9.
- 25.
E.g., Dworkin, Law’s Empire, supra note 20.
- 26.
See Hart, The Concept of Law, supra note 2 at 82–91; see also Finnis, Natural Law and Natural Rights, supra note 3 at 3–18.
- 27.
Cf. Finnis, Natural Law and Natural Rights, supra note 3 at 4–11 (criticizing Kelsen’s theory for seeking “the lowest common denominator” of all legal systems: ibid. at 10).
- 28.
See, e.g., Raz, Ethics, supra note 8 at 204–10.
- 29.
See Dworkin, Law’s Empire, supra note 20 at 313–54.
- 30.
See, e.g., Brian H. Bix, “Ross and Olivecrona on Rights” (2009) 34 Australian J. Legal Phil. 103.
- 31.
E.g., Willard V.O. Quine, Joseph S. Ullian, The Web of Belief (New York: Random House, 1970). Quine was referring to the effect of sensory experiences on the periphery of our web of beliefs, but the notion also works, in broad analogy, with the topics discussed in the text.
- 32.
Cf. Scott Altman, “Judicial Candor” (1990) 89 Mich. L. Rev. 296; Paul Butler, “When Judges Lie (and When They Should)” (2007) 91 Minn. L. Rev. 1785.
- 33.
E.g. John Finnis, “The Fairy Tale’s Moral” (1999) 115 Law Quarterly Review 170, 170; John Finnis, “On the Incoherence of Legal Positivism” (2000) 75 Notre Dame Law Review 1597, 1602–6.
- 34.
Rational reconstruction is comparable to what Ronald Dworkin has called “constructive interpretation.” Dworkin, Law’s Empire, supra note 20 at 49–53.
- 35.
See Austin, Lectures, supra note 1 at vol. 2, 1107–08.
- 36.
Roger Cotterrell, The Politics of Jurisprudence (2nd ed., London: LexisNexis, 2003) at 81–83. Here, contrast William L. Morison’s view of Austin, William L. Morison, John Austin (London: Edward Arnold, 1982) at 2 (Austin’s focus was to portray law “empirically”) with Julius Stone’s view, Julius Stone, Legal System and Lawyer’s Reasoning (London: Stevens, 1964) at 68–69 (Austin as a conceptual theorist).
- 37.
Cf. Grant Lamond, “Coercion and the Nature of Law” (2001) 7 Legal Theory 35; Grant Lamond, “The Coerciveness of Law” (2000) 20 Oxford J. Legal Stud. 39; Danny Priel, “Sanction and Obligation in Hart’s Theory of Law” (2008) 21 Ratio Juris 404; Frederick Schauer, “Was Austin Right After All?: On the Role of Sanctions in a Theory of Law” (2010) 23 Ratio Juris 1; Nicos Stavropoulos, “The Relevance of Coercion: Some Preliminaries” (2009) 22 Ratio Juris 339.
- 38.
Portions of the above paragraph derive from Cotterrell, Politics of Jurisprudence, supra note 36 at 49–77.
- 39.
See Frederick Schauer, “Positivism Through Thick and Thin” in Analyzing Law ed. by Brian H. Bix (Oxford: Oxford University Press, 1998) at 65–78.
- 40.
Thomas S. Kuhn, The Structure of Scientific Revolutions (2nd ed., Chicago: University of Chicago Press, 1970).
- 41.
See publications listed supra note 37.
- 42.
And, a similar debate goes on around economic theories of law, where the question is whether the rational actor model is a great insight around which to build a predictive model, or is instead a politically biased and empirically disproven misreading of human nature.
- 43.
See Kuhn, Structure of Scientific Revolutions, supra note 40.
- 44.
A point made by Joseph Raz, among others. See, e.g., Raz, Between Authority and Interpretation supra note 8 at 3.
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Bix, B.H. (2013). John Austin and Constructing Theories of 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_1
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