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AUSTIN, JOHN (179o-1859)

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Originally appearing in Volume V02, Page 940 of the 1911 Encyclopedia Britannica.
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AUSTIN, See also:JOHN (179o-1859) , See also:English jurist, was See also:born on the 3rd of See also:March 1790. His See also:father was the owner of See also:flour See also:mills at See also:Ipswich and in the neighbourhood, and was in See also:good circumstances. John was the eldest of five See also:brothers. One of his brothers, See also:Charles (1799—1874), obtained See also:great distinction at the See also:bar. John Austin entered the See also:army at a very See also:early See also:age; he is said to have been only sixteen. He served with his See also:regiment under See also:Lord See also:William See also:Bentinck in See also:Malta and See also:Sicily. He seems to have liked his profession, and to have joined in the amusements and even in the follies of his See also:brother See also:officers. Yet it appears from a See also:journal kept by him at the See also:time that he occupied himself with studies of a far more serious See also:kind than is See also:common amongst See also:young officers in the army. He notes having read in the course of one See also:year Dugald See also:Stewart's Philosophical Essays, See also:Drummond's Academical Questions, See also:Enfield's See also:History of See also:Philosophy, and See also:Mitford's History of See also:Greece, and upon all of these he makes observations which disclose much thought and a capacity for See also:criticism which must have come from extensive See also:reading else-where. The prevailing See also:note of this journal is one of See also:bitter self-depreciation. He says in it that the retrospect of the past year (1811) " has hardly given rise to one single feeling of See also:satisfaction," and farther on he says that " indolence, always the prominent See also:vice of my See also:character," has " assumed over me an See also:empire I almost despair of shaking off." It is difficult to believe that a See also:man only just of age, whose serious reading consisted of such books, and who (as appears from the same journal) was in the See also:habit of turning to the See also:classics as an alter-native, could have deserved the reproach of indolence. See also:Niebuhr, See also:Brandis, See also: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 See also:

law, politics and philosophy—Sir See also:George Cornewall See also:Lewis, Charles See also:Buller, Charles See also:Villiers, See also:Sir See also:Samuel See also:Romilly and his brother Lord Romilly, See also:Edward See also:Strutt afterwards Lord See also:Belper, Sir William See also:Erie and John See also:Stuart See also:Mill were all members of his class. All of these have See also:left on See also: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 See also:salary attached to the professorship, Austin could not afford to remain in See also:London, and in 1832 he resigned. In that year he published his See also:Province of See also: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 See also:fault was that they were over-elaborated. In his See also:desire to avoid See also: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 See also:enthusiasm.

Nor was Austin's See also:

influence confined to his lectures. Sir William Erie says in a See also:letter written to him in 1844, " The interchange of mind with you in the days of See also:Lincoln's See also:Inn I regard as a deeply important event in my See also:life, and I ever remember your friendship with thankfulness and See also:affection." John Stuart Mill, whose views on See also:political subjects were entirely opposed to those of Austin, spoke of him after his See also:death as the man " to whom he (Mill) had been intellectually and morally most indebted," and he expressed the See also: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 See also:generation." In 1833 a royal See also:commission was issued to draw up a See also:digest of criminal law and See also:procedure. Of this commission Austin was a member. The first See also:report was signed by all the commissioners, and was presented in See also:June 1834. Nevertheless it appears from some notes made at the time that Austin, though he thought it his See also:duty to sign the report, strongly objected to some passages which it contained. It is See also:pretty obvious from the nature of these objections that nothing would have satisfied him See also:short of a See also:complete recasting of the criminal law, whereas what the commissioners were ordered to produce was not a See also:code but a digest. Probably Austin See also:felt, as Mr See also:Justice See also:Wills felt some years later, that the anomalies which a code would remove would " choke a digest." In 1834 the benchers of the Inner See also:Temple appointed Austin to give lectures on the " See also:General Principles of Jurisprudence and See also:International Law." He delivered a few lectures in the See also:spring of that year, but in June the course was by See also:order of the benchers suspended on See also:account of the smallness of the attendance, and it was never resumed. He then went to live with hiswife and only See also:child Lucie (afterwards See also:Lady See also:Duff-See also:Gordon) at See also:Boulogne. Here he remained for about a year and a See also:half. He then accepted an See also:appointment offered him by Sir See also:James See also:Stephen to go as royal See also:commissioner to Malta in See also:conjunction with Mr (afterward Sir Gedrge) Cornewall Lewis, to inquire into the nature and extent of the grievances of which the natives of that See also:island complained. The Austins remained in Malta until See also:July 1838. After their return they lived a good See also:deal abroad, and in .1844 they settled in See also:Paris, where they remained until driven out of See also:France by the revolution of 1848.

They then took a See also:

house at See also:Weybridge, and there Austin remained until his death in See also:December 1859. He was urged by his See also:friends to publish a second edition of the Province of Jurisprudence, which was then out of See also:print, and he went so far as to allow a See also:prospectus to be issued by Mr See also:Murray of an extended See also:work on " The Principles and Relations of Jurisprudence and See also:Ethics." But nothing came of it. upon See also:Friedrich See also:List's See also:system of See also:trade See also:protection (See also:Des nationale System der politischen Okonomiej. And in 1859 See also:lie pu(kshed a pamphlet entitled " A Plea for the Constitution." This was occasioned by the publication of Lord See also:Grey's See also:essay on " See also:Parliamentary See also:Government." Its See also:main See also: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 See also:attempt on the See also:part of the poorer classes to improve their position was barred by the inexorable See also:laws of political See also:economy; and that if they obtained See also:power they would only use it to See also:plunder the See also:rich; whilst, on the other See also: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 See also: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 See also:Bentham's See also:sole and immutable test of human See also: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 See also:mass of the See also:people did not know their own interests so well as " an See also:aristocracy of See also: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 See also:

numbers they were few. As a See also:rule, students for the bar never at any time paid any See also:attention to his teaching. The first published lectures were almost forgotten when Mr (afterwards Sir See also:Henry) See also: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 See also: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 See also: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 See also:form the remaining lectures delivered at University See also:College and other notes (Lectures on Jurisprudence; or The Philosophy of See also: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 See also:teach, it can hardly be said that the subject is one which a lawyer can with impunity neglect. He proposes to In 1812, he resigned his commission in the army, and returned See also:home. He then began to read law in the See also:chambers of a See also:barrister. He was called to the bar in the year 1818, and joined the See also:Norfolk See also:circuit, but he never obtained any large practice, and he finally retired from the bar in 1825.

In 1819 he married Sarah See also:

Taylor (see AUSTIN, SARAH). Although Austin had failed to attain success at the bar it was not See also: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 See also:foundation of University College, and it was determined to establish in it a See also: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 See also:Germany in order to prepare himself for his duties by studying the method of legal teaching pursued at See also:German See also:universities. He resided first at See also:Heidelberg, and afterwards at See also:Bonn, where he lived on terms of intimacy with such distinguished la wyers as Sa vigily / In 7842 Austin published in the See also:Edinburgh See also:Review an attack and K. J. A. Mittermaier, and such eminent men Qf kttcrs as distinguish law from morals; to explain the notions which have been entertained of duty, right, See also:liberty, injury, See also:punishment and redress; and their connexion with, and relations to, See also:sovereignty; to examine the distinction between rights in rem and rights in See also:person am, and between rights ex contractu and rights ex delicto; and further to determine the meaning of such terms as right, See also:obligation, injury, See also:sanction, person, thing, See also: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 See also: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 See also: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 See also:

abstraction, useless it is true for some purposes, but by no means useless for others. " There is," as Maine says, "not the smallest See also: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 See also:head." These last words exactly See also: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 See also:special vocation was that of untying intellectual knots. The disentangling of classifications and distinctions, the separation of real from accidental distinctions, the See also: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 See also:science, and to the See also: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 See also:

worth pursuing. The Lectures on Jurisprudence were reviewed by J. S. Mill in the Edinburgh Review of See also:October 1863, and this review is republished in Mill's See also:Dissertations and Discussions, vol. 3, p. 206. See also:Professor See also:Jethro See also:Brown has published (1906) an edition of Austin's earlier lectures, in which they are stated in an abbreviated form. There is a See also:sketch of his life by his widow in the See also:preface to the Lectures on Jurisprudence, which she published after his death. (W.

End of Article: AUSTIN, JOHN (179o-1859)

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