Did Austin remain an Austinian?
pp. 131-153
in: Michael Freeman, Patricia Mindus (eds), The legacy of John Austin's jurisprudence, Berlin, Springer, 2013Abstract
The vast majority of writers on Austin's legal philosophy have assumed that it did not change after the publication in 1832 of The Province of Jurisprudence Determined, the only book that he published in his lifetime. This assumption has been sharply criticized, however, by Lotte and Joseph Hamburger in their excellent biography, Troubled Lives: John and Sarah Austin. They argue that by the end of his life Austin no longer believed in the science of jurisprudence set forth in his book. They base their argument almost entirely upon A Plea for the Constitution, a very conservative political pamphlet that Austin published in 1859, the year of his death. My paper is a critique of this interpretation, the nature of which is discussed at some length. I also explain in detail what it means to be an Austinian, at least as I see it. I subsequently argue that Austin's pamphlet does not support the Hamburger;s interpretation. In it he discusses incidentally only a few of the basic principles, notions, and distinctions of his jurisprudence, all of which are repetitions of what he says about them in his book. Although he does modify somewhat his interpretation of the principle of utility, he still employs it as the "ultimate principle" or "test" of laws and political institutions. In short, there is no compelling evidence that Austin changed his legal philosophy in the final year, or years, of his life.