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AUSTIN'S METHODOLOGY? HIS BEQUEST TO JURISPRUDENCE

Published online by Cambridge University Press:  15 March 2011

Andrew Halpin
Andrew Halpin
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School of Law, Swansea University.
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The Cambridge Law Journal , Volume 70 , Issue 1 , March 2011 , pp. 175 - 202
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Copyright © Cambridge Law Journal and Contributors 2011

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References

1 Recognition of a different relationship between academic law and legal practice within Continental Europe, and the implications of that for the development of legal theory, provide reasons for constraining the present article to a consideration of legal theory in the English-speaking world. Despite acknowledging the influence of Continental legal theorists (see note 12 below), the emergence of a modern subject of Anglophone jurisprudence is treated here as a distinct event. Although historically something of an artificial construction (that also overlooks pre-Austinian Scots legal theory), it exerts a dominant influence on the shape and subject matter of Anglo-American jurisprudence today.

2 Influential examples of such attitudes are provided by Edwards, Harry, “The Growing Disjunction between Legal Education and the Legal Profession” (1992) 91 Michigan Law Review 34CrossRefGoogle Scholar, and Robert Goff, “The Search for Principle” (1983) 69 Proceedings of the British Academy 169.

3 Evidence for this class of the disengaged is best kept anecdotal and anonymised, but is readily available.

4 Initially brought against legal positivism by Ronald Dworkin, it has also been turned against Dworkin himself. See Halpin, Andrew, “The Methodology of Jurisprudence: Thirty Years Off the Point” (2006) 19 Canadian Journal of Law and Jurisprudence 67 at pp. 77, 97 (V)(j); 86–87Google Scholar.

5 John Austin, The Province of Jurisprudence Determined (London 1832) – H.L.A. Hart (ed.) (London 1954) – Wilfrid Rumble (ed.) (Cambridge 1995). Citations below are from the Hart edition, with page references to the Rumble edition provided in square brackets.

6 Julius Stone, The Province and Function of Law: Law as Logic Justice and Social Control, A Study in Jurisprudence, Second Printing with corrections (Sydney 1950). The title of the first chapter, which previously appeared in two parts in (1944) 7 M.L.R. 97 & 177, makes Stone's relation to Austin unmistakeable: “The Province of Jurisprudence Redetermined”.

7 Allan Hutchinson, The Province of Jurisprudence Democratized (Oxford 2009). I consider Hutchinson's position in detail in a conjoined study, sharing much of the scene-setting material with the present article, “The Province of Jurisprudence Contested” (2010) 23 Canadian Journal of Law and Jurisprudence 515.

8 For discussion, see W.L. Morison, John Austin (London 1982); Wilfrid Rumble, The Thought of John Austin: Jurisprudence, Colonial Reform, and the British Constitution (London 1985); Robert Moles, Definition and Rule in Legal Theory: A Reassessment of H.L.A. Hart and the Positivist Tradition (Oxford 1987); Wilfrid Rumble, Doing Austin Justice: The Reception of John Austin's Philosophy of Law in Nineteenth-Century England (London 2004); Neil Duxbury, Frederick Pollock and the English Juristic Tradition (Oxford 2004), pp. 97–106.

9 Hutchinson, note 7 above, at 1–7, 21–24, 29. See also, Stone, note 6 above, at 11, in equating the “hegemony of Austinianism” with “the monopoly held by analytical jurisprudence”.

10 On both the influence of Kelsen and different approaches to analytical jurisprudence, see, e.g., Joseph Raz, The Authority of Law, 2nd ed. (Oxford 2009), pp. 293, 335. The need to differentiate both influences and outputs, becomes particularly acute when Leiter and Dworkin are brought into an Austinian tradition (as Hutchinson, note 7 above, suggests).

11 Stone, note 6 above, at 3, refers to “The Austinian Revelation”.

12 John Austin, Lectures on Jurisprudence or the Philosophy of Positive Law, 5th ed. revised and edited by Robert Campbell (London 1885), p. 32. See further, Paulson, Stanley, “The Theory of Public Law in Germany 1914–1945” (2005) 25 O.J.L.S. 525 at 525–526Google Scholar.

13 Stone, note 6 above, at pp. 42–43.

14 Hutchinson, note 7 above, at p. 11.

15 Stone, note 6 above, at p. 32 & n. 122, 10, accepts the alternative appellation of censorial jurisprudence for theories of justice; acknowledges this was recognised as “censorial jurisprudence” (in Bentham's terminology) or “the science of legislation” (in Austin's terminology); and, was regarded as important by both Bentham and Austin.

16 Ibid. at pp. 42, 71–73. For illuminating discussion on a general tendency towards lack of fit between theory and practice and its possible benefits, related to Austin, see Bix, Brian, “John Austin and Constructing Theories of Law”, forthcoming (2011) 24 Canadian Journal of Law and JurisprudenceCrossRefGoogle Scholar.

17 Stone, note 6 above, at pp. 4–5, 42.

18 Hutchinson, note 7 above, at pp. 3, 15, 23; 11, 18, 60; 22–23, 30–31, 40–41.

19 Ibid. at p. 33. For general discussion, see Andrew Halpin, “Methodology” in Dennis Patterson (ed), A Companion to Philosophy of Law and Legal Theory, 2nd ed. (Hoboken, NJ 2010).

20 Dworkin has used methodology to mount a fierce attack against his positivist rivals, but even elsewhere within contemporary analytical jurisprudence, methodological differences tend to map theoretical disagreements. For discussion, see Halpin, note 19 above.

21 Hutchinson, note 7 above, at pp. 5, 43–44.

22 In July 2009 NASA delayed the launch of the space shuttle Endeavour for three evenings in a row due to bad weather.

23 Technically, Dworkin has primarily employed the argument to scatter his enemies by the device of placing them in an impossible position with each other. For discussion, see Halpin, note 4 above, at pp. 79–81.

24 T.S. Kuhn, The Structure of Scientific Revolutions, 2nd ed. (Chicago 1970).

25 Ibid. at pp. 72, 77.

26 For an illustration of this employing Dworkin's engagement with Hart, see Halpin, note 4 above, at p. 81.

27 Compare Austin, note 5 above, at pp. 184–185 [157–158].

28 For a detailed consideration of Hutchinson's position, see Halpin, note 7 above.

29 H.L.A. Hart, “Postscript”, The Concept of Law, 2nd ed., Penelope Bulloch and Joseph Raz (eds.) (Oxford 1994), pp. 240–241.

30 For discussion, see Halpin, note 4 above, at pp. 87, 103 (XI)(a).

31 Insisting on some commerce between general theory and particular instances becomes problematical for a strict reading of the “philosophical” methodology dealing with law's essential nature or necessary characteristics, attributed to analytical jurisprudence in general by Hutchinson (see text at note 18 above), but certainly found in the work of Joseph Raz. For discussion, see Bix, Brian, “Raz on Necessity” (2003) 22 Law and Philosophy 537Google Scholar, and “Raz, Authority, and Conceptual Analysis” (2006) 50 American Journal of Jurisprudence 311Google Scholar; Halpin, note 19 above, at pp. 612–614.

32 See works cited in Halpin, note 4 above, at p. 100 (VII)(k).

33 Austin, note 5 above, at p. 184 [157].

34 Ibid. at pp. 184–188 [157–161].

35 Ibid. at p. 9 [18]. Words echoed at the commencement of “The Uses of the Study of Jurisprudence”, ibid. at p. 365 [not contained in the Rumble edition]: “The appropriate subject of Jurisprudence, in any of its different departments, is positive law”.

36 Ibid. at p. 9 [18]. The alternative representations of Austin's task as determining or distinguishing are repeated subsequently: ibid. at pp. 131, 192–193 [116, 164–165].

37 Ibid. at p. 366 – from “The Uses of the Study of Jurisprudence”. See also, note 15 above.

38 H.L.A. Hart, Essays on Bentham: Studies in Jurisprudence and Political Theory (Oxford 1982), pp. 129–131.

39 Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, J.H. Burns and H.L.A. Hart (eds.) (Oxford 1996), ch. XVI para. XXV n. 1

40 In Mill's review of Austin's Lectures on Jurisprudence in the Edinburgh Review of October 1863, collected under the title, “Austin on Jurisprudence” in Mill's Dissertations and Discussions III (1867) and republished in John M. Robson (ed.), The Collected Works of John Stuart Mill XXI (Toronto 1984). I am grateful to Philip Schofield for suggesting the significance of Mill's comment.

41 Hart, note 38 above, at p. 130.

42 Austin, note 5 above, at pp. 370–371 – from “The Uses of the Study of Jurisprudence”.

43 Ibid. at p. 371. See also, Morison, note 8 above, at 60, where Austin's remark on terms not admitting of definition is attributed to “probably just retailing recollected Bentham.” Morison points out that Austin “then … proceeds to his work on the opposite basis.”

44 Text at note 18 above.

45 See Nicola Lacey, A Life of H.L.A. Hart: The Nightmare and the Noble Dream (Oxford 2004).

46 As reported by his widow, Sarah, in her Preface to Austin, note 12 above, at 12. Sarah Austin refers specifically to Hugo and Savigny as German professors whose position Austin envied.

47 See Halpin, note 19 above, at p. 615.

48 See note 31 above, and note 56 below.

49 Austin, note 5 above, at pp. 3, 213–16, 372; 3, 214; 8–9, 193; 211 [12, 181–3, –; 12, 182; 16–17, 165; 179–80].

50 Ibid. at p. 366 [–], “principles abstracted from positive systems are the subject of general jurisprudence”; 373 [–], “a description of such subjects and ends of Law as are common to all systems”.

51 Ibid. at pp. 131–2, 192, 213, 356 [116–17, 164, 181, 289–90] for examples of “character”; and at pp. 131–2, 192, 195, 356 [116–17, 164–65, 167, 289–90] for examples of “mark”.

52 Ibid., e.g., at 213 [181], “a character or essential property”; and, “the two distinguishing marks” of sovereignty, at 195 [167], become “two essentials” at 214 [181].

53 Morison, note 8 above, at 178ff.

54 For critical reviews of Morison, see Lyons, David, “Founders and Foundations of Legal Positivism” (1984) 82 Michigan Law Review 722CrossRefGoogle Scholar; Bickenbach, Jerome, “Empiricism and Law” (1985) 35 University of Toronto Law Journal 94CrossRefGoogle Scholar.

55 Notably in his discussion of “anomalous cases” which render his definition of positive law “defective or inadequate” – Austin, note 5 above, at p. 354 [288].

56 The starkest presentation of the demurrer is to be found in Joseph Raz, Between Authority and Interpretation (Oxford 2009), p. 25; see also, ibid. at pp. 91–92.

57 Discussed by Brian Bix, note 16 above, at p. 13, and in his entry on Austin in The Stanford Encyclopaedia of Philosophy, available at http://plato.stanford.edu/entries/austin-john/.

58 Stone, note 6 above, at pp. 67–69.

59 Austin, note 5 above, at pp. 365–367 [–].

60 Ibid. at pp. 368–369.

61 Ibid. at pp. 366, 369. See also the passages cited in note 50 above.

62 Rumble (2004), note 8 above, at p. 96.

63 Michael Lobban, Review of Rumble's Doing Austin Justice (2006) 45 Journal of British Studies 221 at p. 222.

64 Despite acknowledging the trap of temporal dislocation, Bickenbach, note 54 above, at p. 106, comes close to falling into it.

65 Raz, note 56 above. The chapters of Raz's book have been published previously, and as such have met with the engagement of Bix (see note 31 above). For a critical review of the book, covering the issues discussed here, see Hutchinson, Allan, “Razzle-Dazzle” (2010) 1 Jurisprudence 39 at pp. 45–49CrossRefGoogle Scholar.

66 See note 56 above.

67 Raz, note 56 above, at pp. 27–31, 40.

68 Ibid. at pp. 40–41.

69 Schauer, Frederick, “(Re)Taking Hart” (2006) 119 Harvard Law Review 852Google Scholar at 857.

70 As heralded in the marginal note, and then expressed in the main text, Austin, note 5 above, at pp. 350–51, 354 [285, 288].

71 Ibid. at pp. 354–55 [288–89]. (The further lectures being found, together with Lectures I-VI, in Austin, note 12 above.)

72 Ibid. at pp. 356–58 [290–91].

73 Ibid. at p. 357 [291]. Austin is perhaps sensing (though not fully addressing) here the problem of contingent variation in the instantiation of a general definitional element, raised in relation to Raz, text following note 66 above. In Austin's terms, how can we be sure that these differences are not significant in upsetting the common classification of the laws of different societies employing per genus et differentiam?

74 Ibid. at p. 354 [288].

75 Moles, note 8 above, particularly at pp. 12–16.

76 Austin, note 5 above, at pp. 6–7 [14].

77 Ibid. These ties are not to be confused with the “ties of resemblance and analogy” mentioned earlier in the “Analysis of Lectures” (ibid. at p. 2 [11]), which Austin announces will be dealt with in “the six ensuing lectures”.

78 Ibid. at pp. 3–4 [12–13]. The subject extends across two whole lectures and a greater part of a third, out of six. For Austin's principal thesis, “The matter of jurisprudence is positive law”, see note 35 above and accompanying text.

79 Ibid. at pp. 4, 3 [13, 12]. Italics in original.

80 See text at note 33 above.

81 Austin, note 5 above, at p. 184 [157].

82 See note 15 above.

83 In general, see Lotte and Joseph Hamburger, Troubled Lives: John and Sarah Austin (Toronto 1985). See also, Rumble (2004), note 8 above.

84 See the positive review of Rumble (2004), note 8 above, on this theme by Matthew Kramer, (2008) 20 Utilitas 252.

85 Austin, note 5 above, at p. 6 [14]. Austin, ibid. at p. 186 [159], concedes that due to the insufficiency of utilitarianism as an index to the divine will, different people may come to different conclusions in applying it.

86 Not simply dealing with the binary issue, favour party A or favour party B, but also determining ways in which the unfavoured party should be made to answer to the favoured party; suggesting that a different party should be held responsible; suggesting radical reforms whereby legal liability should be avoided altogether in favour of compulsory insurance; etc.

87 A point made pithily by Frederick Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning (Cambridge, MA 2009), p. 11: “In a society governed by the wise and the good, legal reasoning is likely simply to get in the way.” The precise nature of the constraint is highly contestable, and is probably better viewed as a tension between doctrinal certainty and social critique, which eases in different locations at different times – see “The Use of Legal Materials”, ch. 1 of my Definition in the Criminal Law (Oxford 2004).

88 For the case at hand. It is possible to argue that law previously established for dealing with previous cases should be overturned, but again there are constraints on the legal reasoning that may be effectively employed to this end.

89 Taking positive law in the sense used by Austin, note 5 above, at pp. 9, 202 [18, 172]: “law, simply and strictly so called: or law set by political superiors to political inferiors”; “every positive law, or every law simply and strictly so called, is set directly or circuitously by a monarch or sovereign number to a person or persons in a state of subjection to its author.” For Austin, that covers both legislation and judge-made law.

90 See note 89 above.

91 Austin, note 5 above, at p. 32 [36], endorsing judge-made laws as tacit commands of the sovereign; at pp. 190–91 [162–63], endorsing Lord Mansfield in “assuming the office of a legislator” (while objecting to his enforcement of morality); at p. 207 [176], recognising vague terms in positive law without affecting its status. Both topics are held over for his later lectures. See note 93 below.

92 Hart, note 29 above, at p. 259. In the remaining pages of the Postscript, as edited, Hart accepts the significance of legal principles (as well as rules), but in effect only so far as they are introduced through a rule of recognition (ibid. at p. 267); and reverts (ibid. at pp. 272–276) to his former position on judicial discretion – relying on a restrictive analysis exhausted by settled law or judicial legislation (“judicial law-making”), which is pure Austin. This hardly amounts to saying more on the topic of legal reasoning, but it is impossible to speculate how much more Hart might have said, and what its significance might have been.

93 Austin, note 12 above, Lectures XXVIII-XXXI, and the appended incomplete “Essays on Interpretation and Analogy”. Further consideration of vague terms is also found here, e.g., at pp. 998–999.

94 Again, Austin is not unaware of these issues. Consider the fleeting reference to the “rationale” of positive law (note 79 above) in The Province, or the extensive discussion of the causes of judge-made law in his Lectures, note 12 above, at pp. 634–635, 644–647. Nevertheless, Austin rigidly avoids setting these topics within a discussion of legal reasoning – the judicial function is exhaustively determined by either applying a rule or creating a rule (e.g., ibid, at pp. 998–1000), and it is the rules (or commands) that form the subject matter of The Province. See further, Rumble (1985), note 8 above, at pp. 116–118.

95 Dyzenhaus, David, “The Genealogy of Legal Positivism” (2004) 24 O.J.L.S. 39CrossRefGoogle Scholar; Austin, note 5 above, at p. 191 [163].

96 Gerald Postema, Bentham and the Common Law Tradition (Oxford 1986), p. 463, concludes his assessment of Bentham's hostility to any judicial legislation with a criticism of Bentham's narrow “identification of law with the execution of already achieved agreement or consensus”, and his failure to allow into a general theory of law the recognition of “the capacity of … legal practice to provide both a matrix of and forum for the continual forging and reforging of consensus”.

97 See Raz, note 56 above, particularly chs. 3, 8 & 14. For criticism, see Hutchinson, note 7 above, at pp. 77–78, on the lack of “analytical credibility for a concept of law that tells most judges and lawyers … that, whatever they are doing, they are not doing law when they go about the prosaic routines of their lawyering or judicial lives.”

98 Personal communication to author.

99 This is the common justification relied upon by all the positivist authors mentioned.

100 For arguments that the nature of the earlier positivists' work has been narrowly interpreted, so impoverishing legal positivism, see Oren Ben-Dor, Constitutional Limits and the Public Sphere: A Critical Study of Bentham's Constitutionalism (Oxford 2000); Dyzenhaus, David, “Positivism's Stagnant Research Programme” (2000) 20 O.J.L.S. 703; William Twining, Globalisation and legal theory (London 2000), pp. 16–20Google Scholar, 94–98.

101 The puzzle has been raised in particular over Hart's purported affiliations with both descriptive sociology and analytical philosophy – see Lacey, note 45 above, and also her “Analytical Jurisprudence Versus Descriptive Sociology Revisited” (2006) 84 Texas Law Review 945Google Scholar; William Twining, General Jurisprudence: Understanding Law from a Global Perspective (Cambridge 2009), ch. 2.

102 A notable exception is John Finnis's insistence that some sort of synthesis between the analytical and normative is required in any adequate theory of law in his Natural Law and Natural Rights (Oxford 1980). However, his remarks remain allusive and undeveloped.

103 Austin, note 5 above, at pp. 49–50 [50–51]. To avoid the risk of the following words of Austin being transformed into another “ambitious insight”, it should be stressed that such insight that they contain needs to engage with further insights, notably relating to the matters that are importantly raised in Bix, note 16 above. The critical issue to explore is how a lack of fit between theory and practice is used to shed light on practice as it is, on practice as it might be, or on other concerns related to but not affecting that practice as it is currently experienced or conceived (very loosely: descriptive theory, normative theory, and blue sky theory). Raising and answering the question would indicate some advance. Evaluating the answers might alleviate Austin's anxiety, or exacerbate it.

104 See Andrew Halpin and Volker Roeben (eds.), Theorising the Global Legal Order (Oxford 2009), chs. 1 & 14; and, more widely, Twining, note 101 above; Goldsmith, Jack and Levinson, Daryl, “Law for States: International Law, Constitutional Law, Public Law” (2009) 122 Harvard Law Review 1791Google Scholar.