A comparative analysis of legal positivism of John Austin and the realistic movement in american jurisprudence

This article makes a comparative analysis of John Austin's legal positivism and the concepts of American legal realism, which is necessary for evaluating new legal-theoretical theories and developments and is the basis of this study, which compares Austin's progressive ideas with the realistic ideas of the twentieth century. The main task of the article is to consider the most important points of similarity and difference between legal realism and the philosophy of positive law of John Austin in order to identify their unity. It also helps to determine whether Austin's ideas influenced the concepts of legal realists, given the fact that they were formed in the context of the Anglo-American legal family.

As a result of the study, the following results were achieved, and the following conclusions were made.

There are realistic elements in Austin positivism, and in legal realism there are positivist aspects. Austin and the realists shared an empirical orientation that led to other similarities in their ideas. Although they defined the importance of conceptual clarity and accuracy in different ways, they shared an understanding of the importance of this aspect for legal theory and practice. They have developed concepts of law that are similar in a number of aspects, moreover, their approaches to the assessment of law demonstrate a common focus on the result of legal regulation.

At the same time, the intellectual and professional orientation of Austin, the philosophical and theoretical foundations of his teaching, the social, economic and political conditions of the society in which the ideas of the English scientist were formed, significantly differed from the foundations of the formation of legal realism in the United States. These differences are reflected in numerous trends of the realist movement, which have no analogues in the jurisprudence of Austin. First, the realists approached the definition of law more pragmatically than Austin. Secondly, the realists developed a concept of the law, which paid special attention to the decisions of officials.

Legal realists have formulated numerous theories, differing in variety, which Austin in no way anticipated. The reasons for these differences vary. On the one hand, Austin and the legal realists set themselves the same tasks, came to the need to find answers to the same key questions of jurisprudence, but gave different answers to these questions. Despite the fact that Austin was a positivist who tended to believe that law is those rules that come from the sovereign and must be strictly observed and enforced, he recognized the existence of rules that do not come from the person and not from the state. However, while Austin associated law primarily with power (man or God), and not only with the state, legal realists emphasized the connection of law with society through the state. Understanding the unity and differences between the ideas of Austin and the legal realists is necessary not only for an objective assessment of legal realism, but also for understanding the significance of legal positivism in modern legal science.

1. Austin J. Determination of the field of jurisprudence // Anthology of world legal thought. Moscow, 1999. T. 3.

2. Adygezalova G.E. Sociological jurisprudence and legal realism as a basis for the development of judicial law-making // Journal of Advanced Research in Law and Economics. 2018. № 9(5). Pp. 1528–1533.

3. Adygezalova G.E. Case law school as a way of law rationalization // Man in India. 2016. № 96 (12). Pp. 5463–5470.

4. Austin J. The Province of Jurisprudence Determined, W. Rumble (ed.). 1995.

5. Austin J. Lectures on Jurisprudence, or The Philosophy of Positive Law. Two vol. 1879. R. Campbell (ed.). Bristol. 2002.

6. Bix B.H. On Philosophy in American Law: Analytical Legal Philosophy // Ed. by Francis J. Mootz III. Cambridge University Press, 2009. Pp. 99–105.

7. Blake W. Umpires as Legal Realists // Ps-Political Science & Politics. 2012. №45 (2). C. 271-276.

8. Cohen M. Cohen F., Readings in Jurisprudence and Legal Philosophy. New-York: Prentice Hall. 1951.

9. Hall J. Studies in jurisprudence and criminal theory. New-York. 1958. Pp. 136-137.

10. Hamburger L.J. Troubled Lives: John and Sarah Austin. 1985.

11. Leiter B. Rethinking legal realism: Toward a naturalized jurisprudence // Texas Law Review. 1997. №76 (2). Pp. 267-315.

12. Leiter B. Legal realism and legal positivism reconsidered // Ethics. 2001. №111 (2). Pp. 278-301.

13. Paulson S.L. The Very Idea of Positivism. – Report at the XXV World Congress of the International Association for the Philosophy of Law and Social Philosophy in Frankfurt am Main // Izvestiya vysshikh educational institutions. Jurisprudence. SPb, 2011. № 4 (297). Pp. 32-49.

14. Rumble W. American legal realism. New-York. 1968.

15. Schauer F., Positivism Before Hart // URL: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1512646.