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John Austin and Constructing Theories of Law

Published online by Cambridge University Press:  20 July 2015

Brian H. Bix
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Extract

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 or perceived by lawyers, judges, and citizens; and since the theory “fails to fit the facts,” Austin’s theory must be rejected in favor of later theories that have better fit. Many influential modern approaches to the nature of law, including Joseph Raz’s exclusive legal positivism and Ronald Dworkin’s interpretivism, while they criticize the lack of fit of theories like Austin’s, themselves unapologetically offer characterizations of legal practice that deviate in significant ways from the way most people practice or perceive law. Thus, it appears that many contemporary legal theorists wish to have it both ways: they use the deviations from conventional understandings as grounds for dismissing some theories by other scholars, but forgive or overlook comparable deviations in their own theories. This article explores what general principles can be learned, or developed, regarding when or to what extent deviation from the way law is practiced and perceived can be justified in a theory of the nature of law by other theoretical gains. Additionally, the article considers whether, in light of the proper approach to fit and mistake in theory-construction, Austin’s theory of law might be a more viable alternative than is conventionally assumed.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 24 , Issue 2 , July 2011 , pp. 431 - 440
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2011 

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References

1. Austin, John, The Province of Jurisprudence Determined, ed by Rumble, W (Cambridge: Cambridge University Press, 1995)CrossRefGoogle Scholar [first published, 1832]; Austin, John, Lectures on Jurisprudence, or The Philosophy of Positive Law, ed by Campbell, R, 4th ed (London: John Murray, 1879)Google Scholar [Bristol, UK: Thoemmes Press reprint, 2002].

2. Hart, HLA, The Concept of Law, ed by Bullock, Penelope A & Raz, Joseph (Oxford: Clarendon Press, 1994) at 56-57, 84–91 Google Scholar.

3. Finnis, John, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980) at 3–18 Google Scholar; Raz, Joseph, Practical Reason and Norms (Princeton, NJ: Princeton University Press, 1990) at 170–77Google Scholar.

4. Raz, Joseph, “Two Views of the Nature of the Theory of Law: A Partial Comparison” (1998) 4 Legal Theory 249 at 258CrossRefGoogle Scholar [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. Hart, HLA, “Positivism and the Separation of Law and Morals” (1958) 71 Harv L Rev 593 at 594–606 Google Scholar; Hart, supra note 2 at 18-78.

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 at 190-242.

8. See, e.g., Raz, Joseph, Ethics in the Public Domain (Oxford: Oxford University Press, 1994) at 210–21Google Scholar; Raz, Joseph, Between Authority and Interpretation (Oxford: Oxford University Press, 2009) at 190–202 CrossRefGoogle Scholar.

9. Of which both Dworkin and Raz have given effective rebuttals. See Joseph Raz, supra note 3 at 50-58; Dworkin, Ronald, Taking Rights Seriously, revised ed (Cambridge, MA: Harvard University Press, 1978) at 48–58 Google Scholar.

10. See, e.g., Raz, Joseph, The Authority of Law (Oxford: Clarendon Press, 1979) at 95–96 Google Scholar; Dworkin, supra note 9 at 14-130.

11. See Roberts, Simon, Order and Dispute (Harmondsworth, UK: Penguin, 1979) at 23–25 Google Scholar.

12. See Bix, Brian, Jurisprudence: Theory and Context, 5th ed (London: Sweet & Maxwell, 2009) at 23–24 Google Scholar.

13. Raz, Joseph, The Concept of a Legal System, 2d ed (Oxford: Clarendon Press, 1980) at 197–200 CrossRefGoogle Scholar.

14. Dworkin, 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., Kelsen, Hans, Introduction to the Problems of Legal Theory, translated by Paulson, Bonnie Litschewski & Paulson, Stanley L (Oxford: Oxford University Press, 1992) at 55–65)Google Scholar— 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 Raz, Joseph, “Legal Principles and the Limits of Law” in Cohen, Marshall, ed, Ronald Dworkin and Contemporary Jurisprudence (Totowa, NJ: Rowman & Allanheld, 1984) 73.Google Scholar

16. For a discussion of “reductionism” in the theories of John Austin, Hans Kelsen, and JW Harris, see Bix, Brian H, “Reductionism and Explanation in Legal Theory” in Properties of Law: Essays in Honour of Jim Harris, Endicott, Timothy, Getzler, Joshua & Peel, Ed, eds (Oxford: Oxford University Press, 2006) at 43–51 Google Scholar.

17. See, e.g., Kahneman, Daniel, Slovic, Paul & Tversky, Amos, eds, Judgment Under Uncertainty: Heuristics and Biases (Cambridge: Cambridge University Press, 1982).CrossRefGoogle Scholar

18. Simmonds, NE, “Law as a Moral Idea” (2005) 55 UTLJ 61 at 69–70 Google Scholar.

19. Raz, Between Authority, supra note 8 at 17-46.

20. Dworkin, Ronald, Law’s Empire (Cambridge, MA: Harvard University Press, 1986).Google Scholar

21. Murphy, Liam, “The Political Question of the Concept of Law” in Coleman, Jules, ed, Hart’s Postscript (Oxford: Oxford University Press, 2001) 371.Google Scholar

22. Coyle, Sean, From Positivism to Idealism (London: Ashgate, 2007) at 10.Google Scholar

23. Finnis, John, “Law and What I Truly Should Decide” (2005) 48 Am J Juris 107 CrossRefGoogle Scholar.

24. Dworkin, supra note 9.

25. E.g., Dworkin, supra note 20.

26. See Hart, supra note 2 at 82-91; see also Finnis, supra note 3 at 3-18.

27. Cf Finnis, 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, supra note 20 at 313-54.

30. See, e.g., Bix, Brian H, “Ross and Olivecrona on Rights” (2009) 34 Austl J Legal Phil 103 Google Scholar.

31. E.g., Quine, WVO & Ullian, JS, The Web of Belief (New York: Random House, 1970)Google Scholar. 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 Altman, Scott, “Judicial Candor” (1990) 89 Mich LR 296 CrossRefGoogle Scholar; Butler, Paul, “When Judges Lie (and When They Should)” (2007) 91 Minn LR 1785 Google Scholar.

33. See Austin, Lectures, supra note 1 vol 2 at 1107-08.

34. Cotterrell, Roger, The Politics of Jurisprudence, 2d ed (London: LexisNexis, 2003) at 81–83 Google Scholar. Here, contrast WL Morison’s view of Morison, Austin WL, John Austin (London: Edward Arnold, 1982) at 2 Google Scholar (Austin’s focus was to portray law “empirically”) with Julius Stone’s view, Stone, Julius, Legal System and Lawyer’s Reasoning (London: Stevens, 1964) at 68–69 Google Scholar (Austin as a conceptual theorist).

35. Cf Lamond, Grant, “Coercion and the Nature of Law” (2001) 7 Legal Theory 35 CrossRefGoogle Scholar; Lamond, Grant “The Coerciveness of Law” (2000) 20 Oxford J Legal Stud 39 CrossRefGoogle Scholar; Priel, Danny, “Sanction and Obligation in Hart’s Theory of Law” (2008) 21 Ratio Juris 404 CrossRefGoogle Scholar; Schauer, Frederick, “Was Austin Right After All?: On the Role of Sanctions in a Theory of Law” (2010) 23 Ratio Juris 1 CrossRefGoogle Scholar; Stavropoulos, Nicos, “The Relevance of Coercion: Some Preliminaries” (2009) 22 Ratio Juris 339 CrossRefGoogle Scholar.

36. Portions of the above paragraph derive from Cotterrell, supra note 34 at 49-77.

37. See Schauer, Frederick, “Positivism Through Thick and Thin” in Bix, Brian, ed, Analyzing Law (Oxford: Oxford University Press, 1998) at 65–78 Google Scholar.

38. Kuhn, Thomas S, The Structure of Scientific Revolutions, 2d ed (Chicago, IL: University of Chicago Press, 1970).Google Scholar

39. See publications listed in supra note 35.

40. 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.

41. See Kuhn, supra note 38.

42. A point made by Raz, among others. See, e.g., Raz, supra note 8 at 3.