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lecture 5. Early Legal Positivism - Austin
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Lecture notes of 3 pages for the course Jurisprudence at QMUL (FIRST CLASS NOTES!)
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Reading – PSN chapter 3, C chapter 3Lecture 4. Early Legal Positivism Pt. 2: Austin
Lecture handout
John Austin (1790-1859)
Biographical
- Enters army at 16 and serves for 5 years
- Marries Sarah Taylor, who was a successful translator of literary works from German to English, and
who is sometimes said to have introduced him to Bentham – after marriage, they move to Queen
Square and have a house overlooking Bentham’s garden (the other neighbours are James Mill, and
the very young John Stuart Mill)
- Is called to the Bar at Inner Temple in 1818 and practices as an equity draftsman (unsuccessfully – in
fact, he only held one brief) – quit in 1825
- d. Becomes a great admirer of Bentham – but ultimately has very different attitudes e.g. is
conservative where Bentham was radical; and is more sympathetic to common law judges and
practitioners
For example, on judges: ‘Notwithstanding my great admiration for Mr. Bentham, I cannot but
think that, instead of blaming judges for having legislated, he should blame them for the
timid, narrow, and piecemeal manner in which they have legislated, and for legislating under
cover of vague and indeterminate phrases...which would be censurable in any legislator’.
Re conservatism: he saw many of the laws that existed as nevertheless approximating what
the principle of utility would have required, whereas Bentham insisted on radical reform
- Appointed to Chair of Jurisprudence and the Law of Nations at the University of London in 1826 –
begins lecturing in 1829, but gives up the Chair in 1835 due to lack of interest in his lectures
- Appointed to Criminal Law Commission 1833-1836
- Served as a Royal Commissioner to Malta in 1836 h. Suffered from illness for large parts of his life
Key text
- The Province of Jurisprudence Determined (1832)
- b. Did not make an impact on publication – but in large part due to the efforts of his widow made
considerable impact after his death
Method and Object of Jurisprudence
- Expository and Censorial Jurisprudence
- Within the science of jurisprudence, there is a further distinction: between Particular and General
Jurisprudence
- ‘Analytical’ method
The essence / nature of law
- See lecture slides for the components of Austin’s theory on the nature of law
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