1911 Encyclopædia Britannica/Austin, John
AUSTIN, JOHN (1790-1859), English jurist, was born on the 3rd of March 1790. His father was the owner of flour mills at Ipswich and in the neighbourhood, and was in good circumstances. John was the eldest of five brothers. One of his brothers, Charles (1799-1874), obtained great distinction at the bar. John Austin entered the army at a very early age; he is said to have been only sixteen. He served with his regiment under Lord William Bentinck in Malta and Sicily. He seems to have liked his profession, and to have joined in the amusements and even in the follies of his brother officers. Yet it appears from a journal kept by him at the time that he occupied himself with studies of a far more serious kind than is common amongst young officers in the army. He notes having read in the course of one year Dugald Stewart’s Philosophical Essays, Drummond’s Academical Questions, Enfield’s History of Philosophy, and Mitford’s History of Greece, and upon all of these he makes observations which disclose much thought and a capacity for criticism which must have come from extensive reading elsewhere. The prevailing note of this journal is one of bitter self-depreciation. He says in it that the retrospect of the past year (1811) “has hardly given rise to one single feeling of satisfaction,” and farther on he says that “indolence, always the prominent vice of my character,” has “assumed over me an empire I almost despair of shaking off.” It is difficult to believe that a man only just of age, whose serious reading consisted of such books, and who (as appears from the same journal) was in the habit of turning to the classics as an alternative, could have deserved the reproach of indolence. In 1812, he resigned his commission in the army, and returned home. He then began to read law in the chambers of a barrister. He was called to the bar in the year 1818, and joined the Norfolk circuit, but he never obtained any large practice, and he finally retired from the bar in 1825. In 1819 he married Sarah Taylor (see Austin, Sarah).
Although Austin had failed to attain success at the bar it was not long before he had an opportunity of exercising his abilities and in a manner peculiarly suited to his particular turn of mind. In 1826 a number of eminent men were engaged in the foundation of University College, and it was determined to establish in it a chair of jurisprudence. This chair was offered to Austin and he agreed to accept it. As he was not called upon to begin his lectures immediately, he resolved to proceed to Germany in order to prepare himself for his duties by studying the method of legal teaching pursued at German universities. He resided first at Heidelberg, and afterwards at Bonn, where he lived on terms of intimacy with such distinguished lawyers as Savigny and K. J. A. Mittermaier; and such eminent men of letters as Niebuhr, Brandis, Schlegel and A. W. Heffter. He began lecturing in 1828, and at first was not without encouragement. His class was a peculiarly brilliant one. It included a number of men who afterwards became eminent in law, politics and philosophy—Sir George Cornewall Lewis, Charles Buller, Charles Villiers, Sir Samuel Romilly and his brother Lord Romilly, Edward Strutt afterwards Lord Belper, Sir William Erie and John Stuart Mill were all members of his class. All of these have left on record expressions of the profound admiration which the lectures excited in the minds of those who heard them. But the members of his class, though exceptional in quality, were few in number, and as there was no fixed salary attached to the professorship, Austin could not afford to remain in London, and in 1832 he resigned. In that year he published his Province of Jurisprudence determined, being the first ten of his delivered lectures compressed into six.
There is ample testimony that Austin’s lectures were very highly appreciated by those who heard them. Their one fault was that they were over-elaborated. In his desire to avoid ambiguity, he repeats his explanations and qualifications to an extent which must have tired his hearers. Nevertheless the lectures excited an admiration which almost amounted to enthusiasm. Nor was Austin’s influence confined to his lectures. Sir William Erle says in a letter written to him in 1844, “The interchange of mind with you in the days of Lincoln’s Inn I regard as a deeply important event in my life, and I ever remember your friendship with thankfulness and affection.” John Stuart Mill, whose views on political subjects were entirely opposed to those of Austin, spoke of him after his death as the man “to whom he (Mill) had been intellectually and morally most indebted,” and he expressed the opinion “that few men had contributed more by their individual influence, and their conversation, to the formation and growth of the most active minds of the generation.”
In 1833 a royal commission was issued to draw up a digest of criminal law and procedure. Of this commission Austin was a member. The first report was signed by all the commissioners, and was presented in June 1834. Nevertheless it appears from some notes made at the time that Austin, though he thought it his duty to sign the report, strongly objected to some passages which it contained. It is pretty obvious from the nature of these objections that nothing would have satisfied him short of a complete recasting of the criminal law, whereas what the commissioners were ordered to produce was not a code but a digest. Probably Austin felt, as Mr Justice Wills felt some years later, that the anomalies which a code would remove would “choke a digest.”
In 1834 the benchers of the Inner Temple appointed Austin to give lectures on the “General Principles of Jurisprudence and International Law.” He delivered a few lectures in the spring of that year, but in June the course was by order of the benchers suspended on account of the smallness of the attendance, and it was never resumed. He then went to live with his wife and only child Lucie (afterwards Lady Duff-Gordon) at Boulogne. Here he remained for about a year and a half. He then accepted an appointment offered him by Sir James Stephen to go as royal commissioner to Malta in conjunction with Mr (afterward Sir George) Cornewall Lewis, to inquire into the nature and extent of the grievances of which the natives of that island complained.
The Austins remained in Malta until July 1838. After their return they lived a good deal abroad, and in 1844 they settled in Paris, where they remained until driven out of France by the revolution of 1848. They then took a house at Weybridge, and there Austin remained until his death in December 1859. He was urged by his friends to publish a second edition of the Province of Jurisprudence, which was then out of print, and he went so far as to allow a prospectus to be issued by Mr Murray of an extended work on “The Principles and Relations of Jurisprudence and Ethics.” But nothing came of it.
In 1842 Austin published in the Edinburgh Review an attack upon Friedrich List’s system of trade protection (Das nationale System der politischen Ökonomie). And in 1859 he published a pamphlet entitled “A Plea for the Constitution.” This was occasioned by the publication of Lord Grey’s essay on “Parliamentary Government.” Its main object was to show that the consequences to be anticipated from Parliamentary Reform were all of them either impossible of realization or mischievous. He thought any attempt on the part of the poorer classes to improve their position was barred by the inexorable laws of political economy; and that if they obtained power they would only use it to plunder the rich; whilst, on the other hand, he seems not to have had any suspicion that the “proprietary class” were likely to disregard the interests of the poor. He thinks that political power is safest in the hands of those possessed of hereditary or acquired property; and that without property even intelligence and knowledge afford no presumption of political capacity. Undoubtedly Austin was a utilitarian in the Benthamite sense, and remained so to the end of his life. It must be remembered that Bentham’s sole and immutable test of human action was the greatest happiness of the greatest number. This is a principle which an aristocrat may adopt if he chooses, no less than a democrat; an individualist no less than a socialist; and there is nothing in the “Plea for the Constitution” which contravenes this. But Austin thought, and in this no doubt he differed from Bentham, that the mass of the people did not know their own interests so well as “an aristocracy of independent gentlemen” who might be trusted to provide for the wants of all classes alike.
Austin’s position as a jurist is much more difficult to estimate. Twice his influence appeared likely to produce some impression upon English law, but upon both occasions it lasted only a short time, and never extended very far. The men whom he influenced were very eminent, but in numbers they were few. As a rule, students for the bar never at any time paid any attention to his teaching. The first published lectures were almost forgotten when Mr (afterwards Sir Henry) Maine was appointed to lecture on jurisprudence at the Inner Temple. Both in his private and public lectures Maine constantly urged upon his hearers the importance of Austin’s analytical inquiries into the meaning of legal terms. He used to say that it was Austin’s inquiries which had made a philosophy of law possible. Undoubtedly Maine’s influence revived for a short time the interest in Austin’s teaching. Maine was lecturing about the time of Austin’s death, and in 1861 Mrs Austin published a second edition of the Province of Jurisprudence, and this was followed soon after by two volumes which contained in addition in a fragmentary form the remaining lectures delivered at University College and other notes (Lectures on Jurisprudence; or The Philosophy of Positive Law).
It cannot be said that Austin’s views of jurisprudence have had, as yet, any visible influence whatever on the study of English law. But if we consider what it was that Austin endeavoured to teach, it can hardly be said that the subject is one which a lawyer can with impunity neglect. He proposes to distinguish law from morals; to explain the notions which have been entertained of duty, right, liberty, injury, punishment and redress; and their connexion with, and relations to, sovereignty; to examine the distinction between rights in rem and rights in personam, and between rights ex contractu and rights ex delicto; and further to determine the meaning of such terms as right, obligation, injury, sanction, person, thing, act and forbearance. These are some of the terms, notions and distinctions which Austin endeavoured to explain. They are daily in the mouth of every practising lawyer. The only portion of Austin’s work which has attracted much attention of recent years is his conception of sovereignty, and his dictum that all laws properly so called must be considered as sanctioned expressly or tacitly by the sovereign. This has been indignantly denied. It has been considered enough to justify this denial to point out that there are in existence states where the seat of sovereignty, and the ultimate source of law, cannot be accurately indicated. But this criticism is entirely misplaced; for as pointed out by Maine (Early History of Institutions, Lecture xii.), in an elaborate discussion of Austin’s views, which in the main he accepts, what Austin was engaged upon was not an inquiry into the nature of sovereignty as it is found to exist, but an inquiry into what was the connexion between the various forms of political superiority. And this inquiry was undertaken in order to enable him to distinguish the province of jurisprudence properly so called from the province of morality; an inquiry which was hopeless unless the connexion just stated was clearly conceived. Austin’s views of sovereignty, therefore, was an abstraction, useless it is true for some purposes, but by no means useless for others. “There is,” as Maine says, “not the smallest necessity for accepting all the conclusions of these great writers (i.e. Bentham and Austin) with implicit deference, but there is the strongest necessity for knowing what these conclusions are. They are indispensable, if for no other object, for the purpose of clearing the head.” These last words exactly express the work which Austin set himself to do. It was to clear his own head, and the heads of his hearers, that he laboured so hard. As Austin once said of himself, his special vocation was that of untying intellectual knots. The disentangling of classifications and distinctions, the separation of real from accidental distinctions, the analysis of ideas confusedly apprehended, these (as has been truly said) were the characteristics of Austin’s work which specially distinguished him. Austin thought that this somewhat irksome task was a necessary preliminary both to the study of law as a science, and to the production of a code. It is a curious reflection that whilst the lectures in which these inquiries were begun (though not completed) excited the admiration of his contemporaries, hardly any one now thinks such inquiries worth pursuing.