(じょんおーすてぃん Austin, John)
Jurisprudence was also in the minds of Benthamites most intimately connected with the doctrine of utility. This fact explains a peculiarity which often perplexes readers of Austin's Jurisprudence. The whole line of his general argument is illogically broken by an interesting but long and irrelevant disquisition on the principle of utility.
---A.V. Dicey
It was never contended or conceited by a sound, orthodox utilitarian, that the lover should kiss his mistress with an eye to the common weal. (健全で正統な功利主義者は、 《彼氏が彼女にキスするさいには公共の福祉について考えていなければ ならない》などと主張したことも考えたこともない)
---John Austin
英国の法哲学者(1790-1859)。 ベンタムの弟子の一人で、 倫理学的には神学的功利主義を取り、 法哲学的には「法は主権者による命令である」 という主権者命令説を唱え、 道徳と法を峻別する法実証主義の立場を取った。
彼の主著The Province of Jurisprudence Determined (1832)は、 英国分析法学(analytical jurisprudence)の代表的著作である。 ベンタムとオースティンの法実証主義を批判的に受けついだ ハートは、 『法の概念』においてこの著作の批判から始めている。
なお、日常言語学派のJ.L. Austinとは無関係である。
主権者命令説の項も参照せよ。
18/May/2001更新
とくに断わりがないかぎり、以下の著作から引用。
And as for the moral sense, innate practical principles, conscience they are merely convenient cloaks for ignorance or sinister interest: they mean either that I hate the law to which I object and cannot tell why, or that I hate the law, and that the cause of my hatred is one which I find it incommodious to avow. If I say openly, I hate the law, ergo, it is not binding and ought to be disobeyed, no one will listen to me; but by calling my hate my conscience or my moral sense, I urge the same argument in another and a more plausible form: I seem to assign a reason for my dislike, when in truth I have only given it a sounding and specious name. (p. 159)
[To say] law is the creature of justice ... is as much as to say taht it is the child of its own offspring. For when by just we mean anything but to express our own approbation we mean something which accords with some given law. True, we speak of law and justice, or of law and equity, as opposed to each other, but when we do so, we mean to express mere dislike of the law, or to intimate that it conflicts with another law, the law of God, which is its standard. According to this, every pernicious law is unjust. But, in truth, law is itself the standard of justice. What deviates from any law is unjust with reference to that law, though it may be just with reference to another law of superior authority. The terms just and unjust imply a standard, and conformity to that standard and a deviation from it; else they signify mere dislike, which it would be far better to signify by a grunt or a groan than by a mischievous and detestable abuse of articulate language. But justice is commonly erected into an entity, and spoken of as a legislator, in which character it is supposed to prescribe the law, conformity to which it should denote. (p. 162)
By the English law, a promise to give something for the benefit of another is not binding without what is called a consideration, that is, a motive assigned for the promise, which motive must be of a particular kind. Lord Mansfield, hoever, overruled the distinct provision of the law by ruling that moral obligation was a sufficient consideration. Now, moral obligation is an obligation imposed by opinion, or an obligation imposed by God: that is, moral obligation is anything which we choose to call so, for the precepts of positive morality are infinitely varying, and the will of God, whether indicated by utility or by a moral sense, is equally matter of dispute. This decision of Lord Mansfield, which assumes that the judge is to enforce morality, enables the judge to enforce just whatever he pleases. (p. 162)
上の引用は以下の著作から。