Unfair to Austin

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. 

Comments

[Marc DeGirolami]

Matt -- very interesting. I am all for historically sensitive reconstructions of Victorian-era jurists, as you know! Could you explain a little (just a little -- enough for a blog comment) about what theological utilitarianism is?

[Patrick S. O'Donnell]

Here's a snippet from the SEP entry on the history of utilitarianism:

Some of the earliest utilitarian thinkers were the ‘theological’ utilitarians such as Richard Cumberland (1631-1718) and John Gay (1699-1745). They believed that promoting human happiness was incumbent on us since it was approved by God. After enumerating the ways in which humans come under obligations (by perceiving the “natural consequences of things”, the obligation to be virtuous, our civil obligations that arise from laws, and obligations arising from “the authority of God”) John Gay writes: “…from the consideration of these four sorts of obligation…it is evident that a full and complete obligation which will extend to all cases, can only be that arising from the authority of God; because God only can in all cases make a man happy or miserable: and therefore, since we are always obliged to that conformity called virtue, it is evident that the immediate rule or criterion of it is the will of God.” (R, 412) Gay held that since God wants the happiness of mankind, and since God's will gives us the criterion of virtue, “…the happiness of mankind may be said to be the criterion of virtue, but once removed.” (R, 413) This view was combined with a view of human motivation with egoistic elements. A person's individual salvation, her eternal happiness, depended on conformity to God's will, as did virtue itself. Promoting human happiness and one's own coincided, but, given God's design, it was not an accidental coincidence.

This approach to utilitarianism, however, is not theoretically clean in the sense that it isn't clear what essential work God does, at least in terms of normative ethics. God as the source of normativity is compatible with utilitarianism, but utilitarianism doesn't require this.

[Marc DeGirolami]

Thanks, Patrick. I had linked to the SEP discussion of Austin but had missed that.

[Patrick S. O'Donnell]

Incidentally, while I'm happy to see us re-visit Austin's work, I still think that Hart, Raz, Finnis, Oberdiek, and Edmundson are right (and thus Austin wrong) in arguing that law is NOT essentially or primarily coercive in nature. Indeed, I think they've collectively shifted the burden of proof insofar as any claim to the contrary has to address their arguments.

[Matt Lister]

Hi Marc- The summary Patrick provided is pretty good, though it, very oddly, to my mind, leaves out the theological utilitarian who was historically the most important- William Paley. Paley was almost certainly more important than Bentham, for example, in making utilitarianism the dominant moral view in England in the Victorian era. It's basically an attempt to rectify common-sense and utilitarianism by having God work everything out in the end. It seems very much a view that you'd hold because you wanted to believe the conclusion anyway. I tend to think Paley is worth reading more than many do, but he is mostly of historical interest. (This is the same Paley made famous again by Richard Dawkins.)

Patrick- I think that Schauer pretty convincingly shows, in the papers I link above, that Hart's arguments against Austin are not, at least fully, convincing. When you mix that with the very real problems with the internal point of view idea, it's not at all clear to me that Hart made great improvements over Austin. Others may disagree, of course, but I'll recommend these papers to you. Now, I don't think that Austin's account of law is right, mind you. But I think it's gets at something important that needs to be considered. (It's an important difference for law to be essentially coercive in nature or primarily coercive in nature, too, and showing one wouldn't show the other, as well.) But I tend to think blogs are a bad place to do serious philosophy beyond pointing at things, so I'll not try to make the argument here.

[Patrick S. O'Donnell]

The Encyclopedia of Religion and Ethics entry accords significant attention to Paley's theological utilitarianism.

Matt,

We'll have to disagree about the extent of Hart's improvement over Austin (I've read the Schauer paper that is freely available online).

I did not mean to suggest or imply that there is not a significant difference between law conceived as essentially coercive in nature and law conceived as primarily coercive, and although I think it's the case that neither is in fact true, that (or those) aspect (aspects) of law which is (are) in fact coercive is (are) no less deserving of attention insofar as the moral justification of same is properly a central concern of any full-bodied political (and legal) theory.

[Matt Lister]

Hi Patrick- I'm glad that the other source you cite discusses Paley. It was the SEP piece on the history of utilitarianism that leaves him out. To my mind that's a hugely strange decision, one that only a whig history of the first order could justify. Both pieces I have in mind from Schauer are available on SSRN and linked above. The Waldron piece, alas, does not seem to be available on line even for a fee, as it looks like the Canadian Journal of Law and Jurisprudence only has on-line archives going back to 2000. That's a shame, as it's an excellent paper that, I think, casts considerable doubt on whether the idea of the "internal point of view" allows Hart to move as far away from Austin as he thinks he does.

[Patrick S. O'Donnell]

Thanks Matt. I thought the one paper ('Was Austin Right...?') by Schauer cost $ but I may have accessed it through another route.

[Tony Cole]

Matt, I just ran across your post, a little late, and thought I'd add a quick note as I'm actually finalising (give me a month or so) an article on Austin, arguing precisely that close attention to his work shows his work is far better and more complex than it is given credit as being.

One thing I would point out, just quickly, is that the description of theological utilitarianism given above is not actually Austin's take on it, and that Austin's view does indeed give an answer to the "what essential work God does" question. Basically, for Austin utilitarianism doesn't serve as normative, but is rather an index regarding God's will, and it is God's will that is normative. We use utilitarianism simply because revelation is extremely unreliable. However, if we were to have evidence that God wanted something, even though it was incompatible with utilitarianism, Austin's view would be that the obligation we should follow God's will, not utilitarianism. Utilitiarianism is, after all, a flawed index of God's will, it is just the best one we have.

I'd also emphasise, with respect to your comments on international law, that it's important to understand the formal structure of Austin's system, as it is all very intricately put together. Every word, from "sanction" to "law" to "obligation" has a technical meaning for him, that may not correspond to its regular meaning (a complication he recognises and discusses at some length).