John Austin has long been a whipping boy in jurisprudence. This has been so at least since Hart’s criticism of Austin in The Concept of Law. My strong impression is that very few people today actually read Austin’s best known work, The Providence of Jurisprudence Determined, at least beyond short excerpts. And, this is at least partially understandable, even beyond Hart’s criticisms. That book was the basis for a famously unsuccessful and unpopular series of lectures and is not easy reading. Furthermore, it is grounded in part in a view that today has few, if any, proponents, theological utilitarianism, a view that, even more than that all men seek pleasure, it seems, only a Englishman of a certain time and class could believe.(*) The writing style also leaves something to be desired, even when compared to other works of its time. But, I have come to think that there is more to Austin than people have thought, and that he’s worth taking more seriously than he has been in recent years. I won’t here even try to sketch an argument for this in any serious sense, but will simply point to a few areas where I think it’s worth thinking about Austin more seriously, and reading him more carefully, than has been done much recently.
In the first case, I think there’s some good reason to think that Hart’s attacks on Austin’s “command” theory of law are not as successful as has been widely assumed. The most important work in this area has been done by Fred Schauer , in a series of recent papers . (An extremely helpful summary of Schauer’s views can be found in a recent post on Jotwell by Connie Rosati ). When we mix this with some of the doubts about Hart’s “internal point of view” expressed by Jeremy Waldron(**) and others, we might well start to wonder if Hart’s victory over Austin is as complete as has been suggested.
The second area where I think it’s worth thinking more and more carefully about Austin is in international law. Here the dialectic usually takes the following form: an international law skeptic claims that international law isn’t really law because it doesn’t have a sovereign who coercively enforces norms. The international law proponent claims that this “Austinian” account of law has been refuted by Hart, and that anyway, there are sanctions in international law. The skeptic then stomps his foot and says that even if international law has sanctions sometimes, it’s not really law, and on we go. At no point is there an attempt, or even interest, in seeing what Austin thought or why he thought what he did. This is unfortunate, for when we look at Austin, we can see that he offers much less support to strong international law skeptics than we might have thought. First of all, while it is true that he (sometimes) says that international law is not law “properly so called”, and (in part) bases this on the lack of sanctions in international law, it’s pretty clear that the international law he was thinking about (the law of his time, naturally enough) was significantly different from international law today. International law today does have sanctions of various sorts, and we’d have to look at them carefully, and compare them carefully to domestic law sanctions, to see if an Austinian account of law would fit today’s international law or not. (Scott Shapiro and Oona Hathaway presented a very interesting paper at a conference on international law at Penn this last spring that made important progress in this area, though they did not cast the paper in terms of Austin’s view.) Additionally, the above dialectic ignores that Austin thought that, even if international law was not law “properly so speaking”, there could be very significant reasons, including moral reasons, to follow international law. For the most part, on Austin’s account, something being the law or not tells you nothing about a moral duty to do the thing in question. So, even if international law is not law “properly so called”, we may have weighty moral reasons to follow its dictates. This point is of importance in that international law skepticism is often invoked in support of “realism ” in the international relations sense. But on Austin’s account, there is no direct line from a claim about the status of international law as law to “realism”. When the skeptic-realist makes this jump, Austin can help us see that there is a gap in the argument.
Finally, let me mention a fairly trivial way that Austin has
been treated unfairly by legal philosophers and theorists. In the indexes of books he is all too often
conflated with another Austin, John Langshaw ("J.L.") Austin , the Oxford
philosopher and one of the founders of the “ordinary language” school of
philosophy. The two are completely
distinct, but you’d not know this by looking in the index of, for example, the Blackwell Companion to Philosophy of Law and Legal Theory , where there is only
one entry for “Austin, J.L.”, though some of these point towards J.L. Austin
and some to John Austin (whose middle initial was not, as far as I can find, “L”.) A recent excellent book on Kant's legal philosophy also has an index entry for “Austin, John L.”, though all of the
references there are to John Austin, not J.L. Austin. This conflation is made worse by the fact
that J.L. Austin did do work that is of interest to legal philosophers and was
an influence on, and even sort of mentor of, Hart. My plea, then, is that even if we cannot be
fair to Austin in jurisprudence, please try to be fair to him (both of them,
really) in indexes.
(*) Somewhere or other Nietzsche says something like, "All men seek pleasure: No, only all Englishmen do." Unfortunately, I can't find or remember the place. He also, at least in the Kaufmann translation, calls John Stuart Mill a "blockhead".
(**) I have in mind in particular Waldron' paper, "All We Like Sheep", 12 CANADIAN JOURNAL OF LAW AND JURISPRUDENCE (1999), 169-86, but which does not seem to be available on line.