Doing Austin Justice: The Reception of John Austin's Philosophy of Law in Nineteenth Century England (Continuum Studies in British Philosophy)
Wilfrid Rumble | 2004-12-23 00:00:00 | Thoemmes Continuum | 256 | Jurisprudence
John Austin was a towering presence in nineteenth-century English jurisprudence. He lived at the centre of the utilitarian movement in London during the 1820s and 1830s, and became its leading philosopher of law after Bentham's death (1832). Wilfrid E. Rumble's book analyzes Austin's work in its historical context, and shows how much of it remains viable today -- including his conception of analytical jurisprudence, his sharp distinction between law and morality, and his utilitarian theory of resistance to government. The end result is a richer, more nuanced portrait of Austin's legal philosophy than his twentieth-century critics have painted. Doing Austin Justice thus fills a large gap in the literature about this important figure. It will be of substantial interest to jurists, historians of political philosophy, and of the nineteenth century more generally.
Reviews
Wilfrid Rumble has produced in this book an indispensable work on 19th century English jurisprudence. In the process, he has enhanced enormously our understanding of John Austin, who is a somewhat shadowy figure these days, as well as Henry Sumner Maine and other key figures. But it is Austin who remains the central focus throughout. What reception did Austin's work receive in professional journals and books, and how did it impact and shape the study of jurisprudence in the 19th Century? To answer this query, Rumble has dredged the obscure professional literature of the period in what can only be termed a heroic effort. But the result clearly was worth the exertion.
Rumble first sketches this life of this most elusive figure, John Austin, paying particular attention to the impact Bentham and German legal science had on his thinking. Next, he probes as to why Austin was unsuccessful (to say the least) as a lecturer, in the process teaching us a good deal about the English legal education of the period and its overwhelmingly practical orientation. One of the most interesting facets of the book is Rumble's discussion of Austin and Utilitarianism, and how this was viewed by his jurisprudential contemporaries. Surprisingly enough to me, Austin did not avoid ethical issues like the plague, and on occasion even discussed "divine law." Next, a most interesting chapter is devoted to John Stuart Mill examination of Austin's work in two key essays, particularly useful in that Mill had been an Austin student and knew him well. Rumble's discussion here helps the reader to understand the nature of Austin's unique terminology and the importance he attached to it. Chapter 6 is devoted to Austin and the "science of the law," which discusses why Austin was perceived by his contemporaries as a real pioneer in this area.
I found the most interesting chapter to be on Austin and Maine. While Maine was a leading critic of the Austinian approach, it turns out he also was quite an admirer of Austin's work. In the process of his discussion, Rumble reminds us of how significant a work "Ancient Law" was not only in jurisprudence, but in social science as well. Particularly interesting was Maine's view that contrary to his assertions, Austin did engage in a good deal of a priori analysis rather than the rugged empiricism of British philosophy of the period. Austin's much vaunted "universalism" also had a few holes punched in it by Maine's more historical and comparative legal system approach.
Finally, Rumble focuses upon the other critics and supporters of Austin, including such legendary figures as Dicey, Markby, Holland, Bryce, Buckland, Harrison and Lightwood. As a result, we learn a good deal about their contributions to English jurisprudence as well. Of course, today we are much more familiar with H.L.A. Hart's analysis of Austin than Austin himself, but Rumble does not carry his analysis much into the 20th century. Clearly Hart had a rich legacy to draw upon when he came to write "The Concept of Law" and his essays.
Rumble's research is extraordiarily thorough, and his notes invaluable to understanding his discussion. Much of the original source material is very hard to obtain, although some is available on "Hein on Line." To remedy this, Rumble has put together a three-volume "British Philosophy of Law: 1832-1900," which is prohibitively priced at $450, containing the key articles and book chapters upon which he relies. This book too is very expensive (though it is worthwhile to check it out on Amazon-Canada). Nonetheless, this extraordinary volume is worth every buck--and then some--if you are interested in this topic.
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