AUSTIN ON THE PROVINCE OF JUILISPRI7DENCE.* To all who love
precision of reasoning and soundness of thought upon some of the most momentous subjects that can engage any man's attention, the republication of this volume will be a welcome boon. It was the work of a man who, if his share of the coarser qualities which promote success in life had borne any proportion to his deeper intellectual gifts, might have achieved the highest distinction either in his profession or in the world at large ; but whose bodily and mental health were alike unfitted for the rough business of making his way in life, and for placing his valuable powers in the light ne- cessary to do them justice. Many men persuade themselves—and some are not wrong—that their career has been similarly marred, but few of these leave behind them so substantial a proof that the esti- mate formed of them by intimate friends is not a mistaken one, as is afforded by the book before us. To students of the more thorough kind in law and in the philosophy of government and morals, the work has long been well known, but we have met with men in large practice at the bar who had never heard of it, and to general readers Mr. John Austin would be better known as the husband of the authoress of the "Characteristics of Goethe" and translatress of many German works, than as the author of one of the deepest treatises on morals and legislation which has ever appeared in this country.
Mrs. Austin has prefaced this reprint by some account of her late husband, which is interesting as far as it goes, though we should have been glad to see it more expanded. We have no particulars of his origin, or of his education, but we find that after serving in the army for five years, he quitted it for the bar, to which he was called in 1818, with the fullest expectations of his instructors and friends that his industry and unusual talent could not fail to render him highly distinguished. He had, however, two drawbacks fatal in a profes- sion where, though leathern lungs and a brazen forehead never by themselves attain the topmost place, toughness of cOnstitution and some hardness of character are always indispensable. He was deli- cate in health, excitable and over-sensitive in action: much too par- ticular, and not ready or confident enough to use his great attain- ments with advantage. He gave up practice in 1825; but was al- most immediately appointed Professor of Jurisprudence at the then new University of London, to qualify himself for which he passed some months at Bonn, and returned master of the German language and some of its best ideas on the philosophy of law. His audience was at first a brilliant one, including many men who are now eminent, and he did full justice to it by the substance of his information and the brilliancy of his exposition. But his lectures did not enable any one to "get on" at the bar, or furnish anything of immediately pro- ducible value in that time, and the number of men who thought it worth while to study jurisprudence for its own sake became too small to support an unendowed chair. He resigned it, and in 1832 pub- lished the lectures of which this volume is a reprint. In 1833 he was appointed a member of the Criminal Law Commission, but found the work unsatisfactory, and was equally disheartened by the reception of a second series of lectures delivered at the Inner Temple in 1834, the first attempt to establish scientific study of the principles of legal science. Slender means and the aforesaid disappointments sent him to live on the Continent, which he left for a short time to take a semi-legal appointment, under the Colonial-office, at Malta. A change of ministry brought this to an end, and his health then obliged him to live chiefly at German watering-places for some years. He next removed to Paris, but after the revolution of 1848 returned to England, where he passed the remainder of his life, and died in the early part of last year. Though often solicited to republish his lectures, he always refused to do so without revising them, but for this task he couki never in later years be brought to exert himself. We must share the regret which Mrs. Austin expresses, that im- proved health and leisure were not made the opportunity of complet- ing a work which perhaps no one else was so well fitted to perform, but which we have no doubt would, as it became better known, have • The Province of Jurisprudence Delerrnined. Second Edition. Being the flrat part of a series of Lectures on Jurisprudence, or the Philosophy of Positive Law. By the late John Austin, Esq. Murray.
placed him in the position of public estimation to which he was en- titled. He wrote nothing latterly except a pamphlet entitled "A Plea for the Constitution," on the occasion of the late abortive attempts at Parliamentary Reform, but which did not excite as much attention as it deserved. He left behind him, however, a mass of copious but confused materials for the completion of the work he had projected—which would have been a very extensive one. Nothing but his ten introductory lectures are comprised in the six which fill this volume, and the intended course would have taken up, he says, at least a hundred and twenty. He appears to have gone over part of the same ground in the lectures he afterwards delivered at the Inner Temple. These were never published, and Mrs. Austin proposes to collate theta with these and print in a future volume such portions as have not been anticipated. To give these separately, was not, we think, the most judicious plan. When a man lectures a second time on the same subject he generally becomes clearer and freer, and corrects any mistakes he may have made. To have had such corrections, or the same view differently expressed, would have been a great help in some parts of this first volume, and there could have been no difficulty in omitting such parts as were mere repetitions and in appending the remainder in the proper places in the form of notes. They were meant to be incorporated, and no greater violence would be done to them than by the method now intended to be pursued.
The "outline" of the whole course—which, from its numerous ra- mifications, its extreme brevity, and the author's conscientious aim at precision of language, is nearly as difficult as the " Kritik" of Kant —falls, after the preliminary explanations, to which alone this volume belongs, into iito two principal divisions. In one of these law was to have considered with reference to its sources, and the mode in which it begins and ends—i.e. whether written or unwritten, whether statute or formed by judicial decisions ; also whether suggested by custom, by practice of lawyers, or by other systems; the distinction of law and equity, and the way in which laws are abrogated or otherwise end. The second division, of law considered with reference to its purposes, and the subjects with which it is conversant, included first, the law of Things—of rights and relative duties "in rem" and "in personam," with their combinations; 'these being either "pri- mary" rights or "sanctioning" rights, that is, rights arising from the means taken to enforce the former; and, secondly, the law of Persons, considered in the,r private, their political, and their miscellaneous conditions.
We have said that this volume contains only a part of the intro- ductory matter of this extensive scheme. It may seem a simple matter to determine what is the province of jurisprudence, in other words, to lay down what objects positive law should concern itself with ; and perhaps it is so for those who have derived their ideas from the same sources, or have thought over the question with the same deliberate care and freedom from prejudice as the author of this book. But when we observe what very lax notions prevail in some quarters as to the office of legislation, the ill-judged attempts which have been made in all ages and countries to intrude its operation beyond its sphere, and the no less foolish policy which sometimes restrains it from cases for which its interference is necessary, we shall see that distinct views on these points are of the highest importance, both to those who make and administer, and to those who live under any system of law.
The appropriate matter of jurisprudence is positive law ; those rules which are laid down by political superiors to political inferiors. Law in any sense not metaphorical, should only be applied either as above, or to the laws which God sets to his human creatures. It is, however, often improperly applied to rules of positive morality, to sentiments or opinions felt by mea in regard to human conduct, and, by a remote analogy to laws figuratively so called, such as the invariable sequences of the material universe. From all these it is the object of the first lecture to distinguish the term. Laws, properly so called, are a species of commands, that is, intimations by a superior of wishes, the non-compliance with which will be followed by the infliction of some evil. Of the term command, the correlative is "duty," which implies something which an inferior has to perform under a "sanction," that is, an injurious consequence in case of dis- obedience. In restricting the term sanction to punishment, Mr. Austin is at variance with Locke, Bentham, and Paley, who extended it to reward also. He observes that the holding out of a reward is only a motive, and implies nothing of obligation or command, which terms, in fact, we never apply to cases where a benefit in return for service is offered. In his analysis the author seems to have been led somewhat to stretch the notion of duty and obligation, or not to have properly guarded his explanations. He says that "if you express a wish that I shall do or forbear some act, and you will visit me with an evil in case I do not comply, the expression of your wish is a command." Further on he says, "whenever a command is signified a duty- is imposed." This would seem to include in the notion of duty wrongful acts which are done under compulsion. The definition includes the threat of a burglar to the man he robs that he will kill hint if he does not give up his cash, as much as the threat of the law to the burglar that he will be transported if he breaks into a house. But no one would ever think of applying the word duty to the former case.
In the second, third, and fourth lectures an extremely interesting analysis is given of the utilitarian theory. Mr. Austin was a dis- ciple, but by no means a blind follower, of Bentham, and we could not point out any work where the theory is stated in so clear and unob- ectionahle a form. The connexion of this theory with the question of jurisprudence is, that the latter deals with laws which enforce the Part of morality which does not depend on a direct revelation, as well as the part which does ; and that we, therefore, require some index to point out what moral rules we are entitled to impose on our fellow-creatures by legal sanctions, beyond those which revelation enjoins. This index, say the philosophers who belong to what Dr. Whewell calls the "independent" school of morals, is to be found in the "moral sense," the "practical principles," the "practical reason" (Kant), "innate ideas," "common sense," &c., all of which come to nearly the same thing. The school of "dependent" moralists,
• such as Bentham, the two Mills, and our author, say that it is to be found in the general utility of some actions and the general perni- ciousness of others. The test of a human action is its tendency, that is, the consequences which would follow if everybody did the same thing. It may be a good thing that the life of a particular person should be taken. It may be a thing of which the harm is infinitesimal for a person to steal a turnip out of a field. We have to consider whether any one's life or property would be secure if every, one acted on these views. Of course, there are many cases in which it is much more difficult to decide what course is on the whole for the best as regards mankind in general, and these cases have given rise to the two principal objections by which the utilitarian theory is assailed. It 13 said that if the test of the quality of an action is its utility, we shall require a long calculation before we do any act at all; and our presumptuous attempt at calculation may lead to error and sin. But if utility be our only index to the tacit commands of the Deity, it is idle to object that it is an imperfect one. We must make the most of it as it is. However, it does not follow because utility is the ultimate, that it is therefore the immediate, test of our actions. What we should act upon would be, in any case, some kind of rule, and it would be these rules, and not specific or individual action of which utility would be the test. "Our rules would be fashioned on utility; our conduct on our rules" with which, more- over, sentiments of approbation or disapprobation would be in. evitably associated, whatever we might determine their origin to be. In anomalous cases, where we had no rules to guide us, we should be forced to resort directly to the principle of utility, and calculate specific consequences as well as we might. It is a more potent objection to say that the classes of actions are so numerous that no man can know all their tendencies, and that if we are to depend on such a test, we are placed in a false position. That is true, but it is not pretended that any one is obliged to know them by his own research. We take many things in all departments of life on trust, and we must do so in that of morals, without attempting to go through for ourselves the process by which the conclusions we obey were originally gained. It is, of course, unfortunately true that whereas in other matters there is no motive to mislead, in that of morals there are all kinds of disturbing influences. Most men have not time to inquire for themselves, and those who should guide them have often guided them wrong. Hence the science of ethics, and the sciences most nearly connected with it, are behind the rest. They con- tain much which is barbarous and unjust, arising partly from caprice, partly from the narrow notions of utility which governed the early efforts of legislators. The laws, which should be "schoolmasters' to bring the people to a knowledge of better things, have often only perpetuated the prejudices of those who once had power to enforce them. Hence those who are from their circumstances obliged to take their opinions on authority, are not alive to their true interests. They do not always see that the security of property, for instance, is beneficial to them as well as to the rich, and the opinion of those with whom they mix is not of a kind to exercise any deterring influence. Nothing but the diffusion of knowledge and education can correct these errors, and give the principle of utility a fair chance to work all the benefits it is calculated to produce. We have preferred to give a summary of Mr. Austin's views upon a particular point rather than go over the whole book, because the multitude of subjects discussed in these Lectures is much too great for any complete analysis within our limits, and because the question we have selected admits of being presented in a short compass. The objections to the utilitarian thory have been recently revived by the republication of Lord Macaulay's three essays, and it is, therefore, as well that attention should be drawn to perhaps the ablest statement of the opposite views which is anywhere to be met with. To make the summary complete, we ought to have given Mr. Austin's criticism on the rival theories, but for this we must refer to the book itself. The sixth lecture, however, is so important and so interesting in regard to the philosophy of government, that we shall, if possible, return to it in another article.
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