19th and 20th centuries
John Austin
1790–1859 · England · Jurist and first professor of jurisprudence at University College London
1800 BCAD 2000
Life and ideas
John Austin was an English barrister who became the first professor of jurisprudence at the new University of London in 1826 and went to study in Germany before beginning to lecture. His lectures were published in 1832 as The Province of Jurisprudence Determined. Following Bentham, he defined a law as a command of a sovereign, a person or body that people habitually obey and that obeys no one, and which is backed by a threat of harm. Positive law, the law that actually exists, should be kept apart from morality and from the laws of God, and whether a law is unjust does not affect its existence. His lectures attracted few students and he lived in modest circumstances, but his clear and rigid theory became the standard target of later jurists, and H.L.A. Hart's account of its failings in The Concept of Law set modern positivism on a new course.
The big idea
Law is the command of a sovereign, backed by a threat of sanction, and the sovereign is the person or body habitually obeyed and not obeying anyone else. The existence of law is one thing and its merit another.
Main work
The Province of Jurisprudence Determined (1832)
Legacy
The classic statement of the command theory, which Hart later tested and rejected.
The school of thought
- Legal Positivism: Law is what the proper authorities have laid down, whatever its moral merit.
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