Banović on John Austin's Analytical Jurisprudence: The Empirical-Rationalist Legal Positivism

Damir Banović, University of Sarajevo Faculty of Law, is publishing About John Austin’s Analytical Jurisprudence: The Empirical-Rationalist Legal Positivism in the International and Comparative Law Review (2021). Here is the abstract.

This article deals with analytical jurisprudence topics presented in John Austin’s work, his predecessors, and its influence on the contemporary theory of law. The article analyses his analytical method, understanding of what the method implies, and its application in understanding law as a social phenomenon. Not only does the article analyse the law phenomenon, but it also presents his views on similar phenomena in law, such as international and constitutional law, the phenomenon of sovereignty and a sovereign, and the principle of general utility as one of the moral principles. His theory of law was one of the most significant theoretical approaches in England of the 19th century, and also constituted the baseline for new conceptions and the basis of critical analyses of later positive law theories. Moreover, his work provides a solid ground for explanations of individual branches of law, especially criminal law. Finally, the article also presents a critical analysis of his approach, useful and important findings, and the perspectives for further development of the theory of law, especially in the domain of his analytical, empirically oriented and descriptive method.

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Kirkby on The Uses of Primitive Law in Anglo-American Concepts of Modern Law, 1861-1961 @CoelKirkby

Coel Kirkby, University of Sydney Law School, is publishing Law Evolves: The Uses of Primitive Law in Anglo-American Concepts of Modern Law, 1861-1961 in the American Journal of Legal History (2018). Here is the abstract.

This study traces how Anglo-American legal thinkers used primitive law to develop their concepts of modern law in the century from Austin to Hart. It first examines how Maine developed his historical jurisprudence as a form of social evolutionary analysis of law. Next, it traces the development of legal anthropology as a distinct discipline combining the scientific method of participant observation with the legal method of the case study. Finally, it looks at how Hart uses primitive law to make his famous argument that law was ‘the union of primary and secondary rules’. In each case, legal thinkers develop their concepts of modern law through a foundational contrast with primitive law. This is a striking feature of much Anglo-American jurisprudence that cuts across the borders of the positivist, natural, historical, realist, and other schools of jurisprudence. Appreciating these new uses of primitive law is a first step in excavating an intellectual history of legal thought grounded in the context of colonial knowledge.

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Schauer on Law as a Malleable Artifact

Frederick Schauer, University of Virginia School of Law, is publishing Law as a Malleable Artifact in Law as an Artifact (Lukas Burazin, Kenneth Einar Himma, and Corrado Roversi, eds., Oxford University Press, 2018 Forthcoming). Here is the abstract.

Within contemporary analytic philosophy of law, most of the scholars who understand themselves to be engaged in conceptual analysis of the concept of law perceive that project to be analytic and descriptive, but not normative. But the concept of law is itself a human creation, and what humans can create humans can also re-create. And thus there is a different project of conceptual prescription or conceptual revision, one in which the goal is to reflect on (and to prescribe, at times) on how a society ought to understand the very idea of law – what concept of law a society ought to have. This project, which under one reading may have informed both H.L.A. Hart and Lon Fuller in their 1958 debate, need not displace the analytic/descriptive project of conceptual analysis of the concept of law, but, given its provenance going back at least as far as Jeremy Bentham, nor should it be dismissed from what John Austin labeled “the province of jurisprudence.”

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The Basis of Law

Damiano Canale, Bocconi University Department of Law, has published Is Law Grounded in Joint Action? as a Bocconi Legal Studies Research Paper. Here is the abstract.

One of the central theses in contemporary jurisprudence is that law is grounded in a social practice. It is far from being clear, however, what the characteristics of this practice would be. Starting from the discussion of the social practice thesis recently provided by Carlos Bernal-Pulido, this article critically considers whether the practice at the foundation of law can be seen as a form of joint action based upon collective intentionality and common knowledge. The paper reconstructs the idea of law as a social practice in the works of John Austin, Herbert Hart and Scott Shapiro, and shows that an accurate reading of these works leads us to cast doubt on the persuasiveness of Bernal-Pulido’s proposal. The practice at the foundation of law, if any, cannot be seen as a form of joint action without making several aspects of law puzzling or unaccountable. Finally, the article tries to shed some light on the contemporary debate about the normativity of law by distinguishing the different theoretical problems that this debate actually tackles.

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Legal Theory and Judge-Made Law In England

Michael Lobban has published Legal Theory and Judge-Made Law in England, 1850-1920 as Queen Mary School of Law Legal Studies Research Paper No. 91/2011. Here is the abstract.

Many nineteenth century jurists agreed that John Austin’s separation of the spheres of law and morality lay the foundations for a scientific analysis of law. However, they remained uneasy with his definition of law as the command of a sovereign, preferring to speak of rules enforced by the state. The jurists who succeeded Austin strove to analyze law in terms of rules enforced by the state, and used Austin’s tools to put order to the mass of common law materials. However, when it came to discussing how judges should develop the law, they continued to defend the interpretive approach distinctive of the common law tradition. Rather than identifying rules, this entailed applying principles found in older case law to new situations and thereby adapting the law to the changing needs of the community. Consequently, jurists who found Austin’s strict separation of law and morality a useful tool for analysis continued to feel that the interpretative work done by the judges needed to take into account the moral needs of the community, and numerous jurists argued explicitly for a connection between law and morality.

In the debates over codification of the 1860s, many judges and jurists who admired the analytical method which allowed them to make sense of a mass of legal materials resisted the aspiration to put all common law into rules. They explicitly defended the common law as a system of principles. In their view, the problems caused by the proliferation of case law resulted from judges looking to find a rule from every reported case, rather than looking to principles. They therefore argued that efforts should be made to digest the principles of the common law, which would allow the law to continue to develop flexibly by reasoning at case level. In response, a number of analytical jurists argued that if the common law could be seen to generate series of authoritative propositions, they could be codified into rules. For them, a digest was a mere preparatory to a code, where judges would apply and not make law. They specifically linked the analytical project, premised on the separation of law and morality, with the codification project. However, by the 1870s, jurists like J.F. Stephen began to separate the codification project from the analytical one. Instead of needing to find an ideal analytical model, Stephen argued, different areas of law could be codified for convenience. By the end of the century, those who argued for codification no longer felt that it would curtail the role of the judge in developing the law in an interpretive way. 

The article ends by briefly looking at three jurists who accepted Austin’s analytical models, while rejecting (in various degrees) his arguments on the separation of law and morals. William Markby, John Salmond and W. Jethro Brown all argued that legal and moral norms were related, if distinct, and that judges were to look to moral sources, including the moral needs of the community, on developing the law.