The Province of Jurisprudence Determined (by John Austin, 1861)
Ancient Law (by Henry Sumner Maine, 1861).
There is no pursuit on which more ability and learning has been lavished than on the law of England, and there is no subject to which English literature has contributed so little as general jurisprudence. With the addition of Bentham's works, the two books mentioned at the head of this article would almost complete the list of works upon that subject worth reading, written by Englishmen. The reasons of this state of things are not the less interesting because they are obvious to every one whose acquaintance with the subject is practical. It is often ascribed to the supposed inaptitude or dislike of Englishmen for general speculation, or to the immersion of all our ablest men in pursuits tending directly to their personal advancement; but this view of the matter is neither just nor true. Abundant evidence might be given of the aptitude of Englishmen for general speculations, and there have never been wanting amongst us a sufficient supply of persons inclined to a life of thought and study to investigate the subjects which circumstances from time to time have invested with interest.
The real reason why general jurisprudence has been neglected in this country is to be found in the absence of the causes which in other countries induce men to study it. The popularity of general speculations, either upon law or any other subject, depends principally upon the degree of practical importance and dignity attached to them. For example, when the minds of men are occupied, as in France in the last century, with the presentiment that great social changes are impending, there is a strong inducement to theorise upon the constitution of society, and the nature and limits of political obligations, in order to furnish arms to the combatants in the struggle which is felt to be approaching. The birth and growth of the study of political economy, in the course of the last century and a quarter, is another example of the same influence. The general feeling, that the accumulation and distribution of property was little understood, and that its principles, if firmly apprehended and clearly stated, would produce great practical results, was no doubt the chief cause of the attention which the subject received. In the same way the degree in which men perceive the necessity for general principles and broad views on legal subjects depends upon the degree in which they feel the want of them; and though it may appear paradoxical, it is strictly true, that under many circumstances, and in many states of society, the study of jurisprudence is injured by a good administration of justice and a good system of legislation, and favoured by a bad one. The law of England in the present day may be not altogether unfairly described as a mass of details which no memory can embrace, and which hardly any understanding can reduce under the heads to which they properly belong; but this state of things, which a knowledge of jurisprudence more widely diffused amongst lawyers would undoubtedly have gone far to remedy, can be distinctly traced to the fact that the administration of the law was for centuries more pure, systematic, and authoritative, and that legislation was more judicious and definite, in this than in any other country in Europe.
The general object of jurisprudence is to lay down principles as to the nature of law, and to devise for legal purposes classifications of the various actions and relations of mankind; but the practical value of such theories is little felt where a system of law is established, which is so administered as to fulfil satisfactorily the primary objects of the protection of person and property; and their direct influence on judicial decisions is diminished in exact proportion to the degree of authority which practically attaches to the enactments of a well-ascertained sovereign legislature. We have fallen so much into the habit of making a supposed incapacity for systematic thought or systematic institutions on the part of Englishmen a subject either of foolish lamentation or of still more foolish boasts, that we have almost entirely forgotten the fact, that throughout the greater part of the history of modern Europe this was the only country which possessed either a real legislature, or a uniform administration of justice. The French, of whose inherent aptitude for everything systematic, or, to adopt one of the slang phrases of the day, 'logical,' we hear so much, allowed their law to remain for many centuries in a state of confusion, of which we in this country have had no example since the Heptarchy. Not only was there an endless conflict of jurisdictions, but there was also such a confusion of laws that in any given jurisdiction it was impossible to say what was law and what was not. In England the statutes, the law reports, and a few standard text books, have for many centuries formed the only authorities to which persons acting judicially would listen. In France, even at the present day, a far greater latitude is allowed both to judges and to advocates, and the long absence of any standard authority, universally acknowledged and obeyed, has had much more to do with the fondness of French lawyers for general theories, than any natural superiority in their understandings over those of our own legal writers. Nor has this habit of mind been entirely removed by the promulgation of the Code Civil.
In France the line between theory and authority was traced, if at all, in the faintest manner. In a country which contained as many as seventeen or eighteen Supreme Courts, and an infinite number of local jurisdictions of more or less authority, and which was governed partly by customs, partly by Roman law which owed its authority not to enactment but to immemorial usage, partly by royal ordinances, partly by laws made by states-general, which sat perhaps once in a century, and partly by what were called fundamental laws — such as that which regulated the succession to the crown, and which apparently were not made, and could not be repealed, by any known power whatever, the word 'law' had no clear meaning. There was thus a strong inducement to writers to attempt to rise above the petty mass of intricate rules established amongst them, and to claim for their own theories a right to regulate the affairs of mankind on account of their inherent justice and wisdom. On the other hand, the absence of any general authorities binding on all courts alike, naturally disposed the judges to encourage such speculations, by attaching to them a degree of importance which in our own country they have never been allowed to obtain.
In England, on the other hand, the double authority of Parliament on the one hand and the three Courts of Westminster Hall on the other, was unquestioned throughout the whole country. Even in isolated jurisdictions, with one or two unimportant exceptions, the twelve judges administered the law. The only substantial difference between the law of Lancashire and Cornwall and that of Yorkshire and Devonshire was, that in the last two counties the writs ran in the name of the reigning sovereign, and the judges sat by his authority; whereas, when they crossed the border into the other two, the same persons administered the same law by means of the same process under the authority of the same sovereign, by the titles of the Duke of Lancaster or Cornwall, instead of that of the King of England.
Jurisdiction has thus been fixed, and the broad outlines of the law have been laid down in this country from time immemorial, and the result of this has been that general theories as to what the law ought to be, or as to the principles which should regulate its proceedings, have always been relegated by the judges to the legislature. No doubt legislative powers of great importance always have been, and from the nature of the case always will be, vested in the judges; but the acknowledged supremacy of the legislature, and the great authority of the courts, narrow the spirit in which they are exercised. The parliament of Toulouse might take a different view of the principles by which a sale of goods should be regulated from the parliament of Rouen; but when the courts at Westminster had once affirmed a principle, their successors were bound by it, and no other court in England could differ from them. The unquestioned supremacy of the law has been the great guardian of our liberty and prosperity, but like all other unquestioned authority, it has its inconveniences. If there had been courts of co-ordinate authority at York, Bristol, and Norwich, as well as at London, society at large would have suffered, but we should probably have had a greater number of influential writers on jurisprudence.
It must, however, be observed that the strong, and even harsh line drawn by the course of events in this country between legal theories and legal authorities may ultimately favour an enlightened study of jurisprudence as much as it has delayed it; for there can be no doubt that whilst the prospect of producing great immediate practical results stimulates, it also biases, theory in no slight degree. Hardly any one speculates on politics or theology in a purely neutral manner. The most judicial writers think how their views will affect the actual course of events, and shape their premisses and conclusions accordingly. In respect of subjects which attract general attention and provoke discussion on all sides, there is perhaps little harm in this, as the discussion results in the discovery of truth, but subjects of a special character attract comparatively little attention. The debate is usually one-sided, and permanent effects may be produced without attracting public attention. It is therefore highly important that such discussions should have nothing but truth for their object; and the best security for this result is to be found in drawing the line between theory and authority as distinctly as possible, and in rigidly excluding the one from any direct influence upon the other. Whatever may be the defects of our law, there can be no doubt that it has obtained this object with absolute completeness. The proverbial observation that law is 'law,' marks with emphatic precision the divorce which we have succeeded in effecting between the art and the science. There may be great difficulty in ascertaining exactly what the law is on a given point, but there is no difficulty in ascertaining where it is to be looked for; and no one, at all events, can complain that the wisdom of our judicial serpents will be perverted by any theoretical charmer, charm he never so wisely.
These observations form a necessary preface to the consideration of the works of Mr. Austin and Mr. Maine, as they show the sort of position which they fill. They are exclusively speculative, and though eminently useful to every one who wishes to understand the law of England as a liberal profession and not as a mere trade, they have no direct practical bearing whatever upon it, and probably neither of them will ever attain the distinction, so much coveted by most legal writers, of being quoted as an authority in a court of law.
Part of the interest which attaches to Mr. Austin's work is derived from a source which happily does not affect Mr. Maine's. It is the last memorial of a remarkable man, who has left us without any, or with hardly any, public recognition of his rare merits. A touching preface prefixed by his widow to the present edition of his book, supplies the public with the means of forming some estimate of a thinker who was known during his lifetime to few, but was known to hardly any one who did not regard him with a degree of admiration which is not often earned by a career so quiet and solitary. The incidents of Mr. Austin's life may be described in a very few sentences. He was born in 1790, and died in 1859. He served in the army for five years during part of the great war, and his military life left a stamp upon his manners and bearing which it was impossible to overlook. He was called to the bar in 1818, and he was a candidate for practice, though with little success, till 1825. In 1826 he was appointed professor of jurisprudence in the University of London, then just established, and he studied the subject in Germany for two years before he began his lectures. Between 1828 and 1832 he delivered a course which formed the basis of the present volume, and in 1834 he delivered another course at the Inner Temple. In 1833 he was appointed a member of the Criminal Law Commission, for which he received a salary of £800 a year. With a delicacy and generosity characteristically high-minded, though perhaps on this occasion it made him unfair to himself, he resigned this appointment, though he was a poor man and had no other occupation, simply because he thought the powers and the views of the Commission too narrow to enable it to effect the reforms which appeared to him to be required. About two years afterwards he was appointed, in conjunction with Sir G. C. (then Mr.) Lewis, Royal Commissioner to inquire into the grievances of the Maltese, a duty which he discharged with signal success, till that Commission was brought abruptly to an end by ministerial changes. He passed the rest of his life in studious retirement in Germany and France, and for the last ten years at Weybridge, in Surrey.
A life so spent suggests many thoughts both to those who observe and to those who merely read of it. That it should be regarded with enthusiastic veneration by the person who shared and has commemorated it, and that that sentiment should colour all that she has written on the subject, is a fact from which the public are entitled to draw no inferences which it would be becoming to express. Its broad facts are, however, not merely affecting, but instructive. A comparison between Mr. Austin's biography and the book which he has left behind him, conveys a clear notion of a class of men who are most valuable to the world, for whom we in this country provide hardly any place, and who in consequence are both less useful and less happy than they might be. Mr. Austin said of himself, 'I was born out of time and place. I ought to have been a schoolman of the 12th century, or a German Professor.' The whole course of his life showed the justice of his remark. His book proves that he possessed a mind of extraordinary power and accuracy. The outline, now first published and prefixed to his Lectures, of the general scheme of jurisprudence which he had devised, indicate a grasp of mind and a breadth of knowledge almost unexampled; and the incidents of his life sufficiently show that he wanted nothing but a little additional sympathy and freedom from the common trials and anxieties of life, to have produced one of the greatest books of the present century.
It is no doubt easy to say, and it has in some quarters been said with considerable asperity, that Mr. Austin had no right to expect to be treated differently from other people; and that if he failed to work out the plans which he had the power to conceive, the fault ought to be laid on his own want of energy, and not on a state of public feeling which held out to him but little encouragement. There would be much justice in these remarks if they had been made in answer to anything approaching to a complaint made by him or on his behalf, of the treatment which he received at the hands of the world. But no such complaint appears to have been made. He led a life of dignified retirement, asking from others as little as he received; and all that his widow has done has been to show how fruitful that retirement might have been if her husband's powers had been more generally understood, and if his sensitive and nervous temper had been treated with sympathy and tenderness. Personally, Mr. Austin had as little right as he had inclination to complain of his lot in life. That his great book was never written, was a loss to the world at large, and one which a little seasonable encouragement would have avoided. Sympathy and tenderness from strangers are what no wise man would expect, and what every man should be able to dispense with. In most cases the battle is to the strong, and the race to the swift. Such victories as are to be won in the world are won by men with strong nerves and thick skins, and no one who is without these things has a right to complain if he is pushed on one side by those who have them. But though such are, and always must be, the rules of the game of life, the players may sometimes look with advantage at another side of the matter. Genius has no right to expect to be humoured, and if its possessors are vigorous and hardy, their powers will be braced by the excitement of the turmoil in which they live. But it is as impossible that every man should be sturdy and callous, as that every man should be six feet high; and though the sensitive and delicate must not complain if they are jostled out of the course, it does not follow that it is wise to treat them so. A little extra leniency, a little consideration towards such men, would be one of the best investments which the world could make. It is too late now to consider how this might have been done in Mr. Austin's case. No complaint is made upon the subject. All that remains to be done is to try to sketch out what he designed, and to give some account of what he completed.
Mr. Austin appears, from the account given by his widow of the papers left behind him, and from his own sketch of the book which he intended to write, to have had in his mind the scheme of a treatise on human obligations in all their forms, legal and moral. His plan was to investigate the principles and the sanctions of jurisprudence, positive morality, and ethics. By jurisprudence he understood law in the strict sense of the word; by positive morality, morals as they are; and by ethics, morals as they ought to be. A single illustration will show how these subjects were in his scheme related to each other. Marriage with a deceased wife's sister is illegal. It is also immoral, in so far as it is opposed to the public sentiment which exists respecting such marriages. If the law were altered, it would cease to be illegal. It might also cease to be immoral; but this would depend on the question whether or not the change of the law produced a corresponding change in public sentiment. Whether or not such marriages ought to be immoral,— or, to use Mr. Austin's expression, whether they would be unethical,— is a question which would depend upon their general tendency to produce human happiness.
The vast scale on which Mr. Austin proposed to treat these subjects may be estimated from the fact that he meant to examine international law and diplomacy under the head of Positive Morality.
Of this vast scheme, which as appears from his papers he had turned in his mind for many years, and invested with a considerable degree of unity and definiteness, one fragment only was completed. It is contained in the lectures comprised in the present volume, which formed the first instalment of the first part of the work—that which would have investigated Law Proper. Full notes remain, and are being prepared for publication, of a considerable number of other lectures, in which the same subject was pursued; but Mr. Austin does not appear to have left anything sufficiently advanced for publication on the subjects of Positive Morality or Ethics.
The object of the present volume is to define the province of Jurisprudence, and this is accomplished by careful definitions of the leading terms with which it is concerned. Its general purport may be briefly described as consisting in the establishment and illustration of the three following propositions:—
1. A law is a command enforcing a course of conduct. A command is an intimation by a stronger to a weaker rational being, that if the weaker does or forbears to do some act the stronger will injure him.
2. God sets laws to men, and of these some are revealed and others unrevealed. The test by which the purport of the unrevealed laws may be discovered is that all such courses of conduct as tend to produce the general happiness of mankind are enjoined, and those which tend to diminish it are forbidden.
3. Men set laws to each other; those who set them are called sovereigns, and those to whom they are set are subjects. In every independent political society there is a sovereign and there are subjects; and the tests by which an independent political society may be known are, first, that the bulk of the given society are in a habit of obedience to a determinate and common superior; let that common superior be an individual or an aggregate of individuals. Secondly, this common superior must not be in the habit of obedience to a determinate human superior.
It requires some familiarity with legal and moral speculations to appreciate the importance of these propositions, and to perceive the difficulty of elaborating and applying them to human affairs; but simple as they may appear, they form the foundation of a view of law, morals, and politics, which is in all probability destined to exercise an influence which it is hard to over-estimate. They place jurisprudence upon a basis as systematic and truly scientific as political economy, and thus afford a second illustration of a moral science in the true sense of the words.
As no words are used more loosely than the words 'moral science' it may be desirable to dwell a little upon the meaning and importance of this statement. Comparatively few persons have a distinct notion of their own meaning when they speak of a science, and the number who know what they mean by a moral science is still smaller. It is, however, highly important to distinctness of thought to have clear notions upon these points. All human knowledge may ultimately be resolved into a vast number of impressions described in language; nor is the truth of this statement affected by the great controversies as to the origin of these impressions, and as to the degree of authority which attaches to the words in which they are described, which have always exercised the minds of metaphysicians. In order to make a science it is necessary first to separate one set of these impressions, or, to speak with precision, the phrases describing one set of these impressions, from the rest. They must then be classified and finally condensed, if possible, into a system of rules so arranged that the more general rules shall fit each of the particular cases which fall under them. By arranging and combining these rules, a vast number of impressions may be reduced to a few convenient heads, capable of being applied and combined in a variety of ways as occasion may require. Mathematics afford the best and simplest of all illustrations of the nature of science. The first process is to select the phrases describing the set of impressions which relate to number, space, weight, force, and the like. The most important of the phrases relating to number are the names of the numbers themselves — 1, 2, 3, 4, 5, 6, 7, 8, 9 and 0. These are described as the ten numerals, and this description is the first step in classification. Next, the names of particular numbers; the word four, for example, may be examined. What does 'four' mean? It means four books, four ships, four articles of furniture, four men, or any other things which when viewed together convey the impression denoted by the word four. On examination it appears that wherever that impression is conveyed, the impression of two twos is conveyed, and thus we get the second step in classifying the numbers which is embodied in the rule that twice two makes four. All the other rules of arithmetic are only repetitions and combinations of this process. The use of these processes is well exemplified by the enormous multitude of complicated impressions which the multiplication table enables us to understand clearly with hardly any conscious effort. A less homely though hardly a less familiar illustration is afforded by the rules for calculating the effect of gravitation. All motion which can be referred either immediately or circuitously to weight, may be exhibited as an instance of the rule that the force of gravity varies inversely as the square of the distance.
It would be easy to accumulate illustrations, but these are sufficient to show that science is nothing more than a classification, a shorthand description, of all the facts relating to the particular subject-matter with which it is conversant, and that the test of the truth of any scientific rule is its correspondence with every case which can be put of circumstances which it ought to explain. A scientific rule is like a key which professes to open a set of locks, and which is proved to be the right key by opening them successfully.
Such being the nature of science in general, what is the nature of moral science? The words are generally used with a rhetorical emphasis which greatly obscures their meaning; but if they were used correctly they ought to mean those sciences which refer to human conduct; and as sciences are collections of rules by which observers are enabled to refer particular events to the classification on which the rules depend, moral sciences must mean collections of such rules relating to some departments of human conduct. That some departments of human conduct are capable of being classified with sufficient exactness to supply the materials of a true science is conclusively proved by the existence of political economy; nor will any one be either surprised or shocked at this who is capable of seeing that a science stands to its subject-matter exactly in the relation in which a map stands to the country which it represents, and that it has no more tendency to govern (as what are falsely scientific 'laws' are sometimes said to do) the conduct to which it refers than the Nautical Almanack has to govern the tides.
That such sciences do not enable those who are acquainted with them to make specific predictions, is often alleged as a proof that they are not real sciences; and the answer to this throws great light on their true character. It is two-fold. In the first place, no science of itself can enable any one to make a specific prediction. It is necessary for that purpose to have not only a scientific rule but a state of facts to which that rule may be applied. The theory of gravitation would never enable an astronomer to foretell an eclipse unless he knew certain facts about the relative position and rate of motion of the sun, moon, and earth. In moral sciences the facts are generally so transient and obscure, and the evidence relating to them so unsatisfactory, that they can seldom be stated with the precision which is essential to the proper application of a scientific rule; but this does not make the rule itself the less scientific. For example, the truth of Ricardo's theory of rent is altogether unaffected by the circumstance that the facts nowhere correspond to it; just as the truth of the rules about pullies and levers is unaffected by the fact that they are modified in practice by friction and the strength of materials.
In the second place, the terms in which the conclusions of moral sciences are expressed are far from having that degree of precision which gives physical and mathematical science its proverbial accuracy. Its commonest terms are words which are in daily use, and which are generally used with more or less passion and with no precise signification, but with a greater or less approach to one or the other of several distinct meanings. This is the true source of the uncertainty of moral sciences, and it is only in those cases in which it has been properly dealt with that any considerable progress has been made in them. Political economy is the only moral science in which definitions of fundamental terms sufficiently accurate to obtain general currency amongst all persons conversant with the subject have as yet been produced. The consequence has been, that the conclusions of those who understand that science are accepted and acted on with a degree of confidence which is felt in regard to no other speculations which deal with human affairs. Political economists can appeal to the only test which really measures the truth of a science—success — with as much confidence as astronomers. The source of their success has been that they have succeeded in affixing precise meanings to words which had for ages been used by millions, who attached to them vivid, though not definite notions, such as wages, profits, capital, value, rent, and many others of the same kind. The importance of this is well illustrated by one memorable case: the definition of the words 'pound sterling' as meaning a certain weight of gold, simple as it seems, was a great social and political event.
Mr. Austin's propositions on jurisprudence have as much precision, and will in all probability be seen hereafter to have as much importance, as the propositions of Adam Smith and Ricardo on rent, profits, and value. To show their full importance it would be necessary to reprint the entire book, for its style and structure are adamantine. The arguments hang together like the links of a chain cable, or like the scales of leviathan. They are 'shut up together as with a close seal; one is so near another that no air can come between them. They are joined to one another, they stick together that they cannot be sundered.' It is, however, possible to give a few illustrations of their scope and purport. The great leading definition of the book is the definition of the word Law. The definition (which is given above) involves four branches. A command; a sanction, consisting of the threatened evil which converts the intimation into a command; a course of conduct enjoined; and a duty consisting in a contingent liability to the sanction in case of disobedience. The light thrown by this definition on almost every department of speculation is hardly to be exaggerated, and the definition itself cannot be too widely known or adopted. Of all the cants of the day none is more popular or mischievous than that in which the word 'law' plays a conspicuous part. We hear in every direction of laws of some sort or other. The laws of health, the laws of progress, the laws of physiology, the laws of sociology, the laws which regulate the increase of the species, and all kinds of other laws, are declaimed about as if a parliament of abstractions exercised an iron despotism over the human race. The servile fatalism which is spreading widely at the present day is greatly promoted by the constant use of this inaccurate metaphor, and by the absence of any really clear meaning which it is allowed to cover. Mr. Austin's definition of a law enables him to show how very slight is the resemblance between these metaphorical laws and laws in the proper sense of the word. He shows that of the four essential elements of a law proper, namely—a command, a sanction, a duty, and a course of conduct prescribed, one only is even recalled, and that faintly and indirectly, by most of the metaphorical laws, namely, a uniformity which resembles to some extent the uniformity of conduct which would be produced by a law invariably obeyed by a rational being.
Important as this result is, (and if it were fully understood and adopted by the persons concerned, it would produce a most beneficial change in the whole tone of a great part of modern speculation,) it is only one of the results which flow from Mr. Austin's definition. It enables him to describe in an intelligible manner the boundaries between the closely related subjects of law proper, international law, (or, as he more accurately calls it, as did Bentham, international morality,) and positive morality. In the first case (amongst other differences) the command is usually express, the superior by whom it is imposed, and the penalty which forms the sanction are determinate. In the second and third there is no command properly so called, though there is a definite course of conduct enjoined, neither is there any determinate superior or sanction. He is further able to draw definite lines round the provinces of law, morality, and ethics, and to show how they sometimes coincide, sometimes diverge from, and sometimes conflict, with each other. It would be impossible, without long and detailed illustrations, to give any notion to those who are not familiar with such subjects of the mass of confusion and obscurity which he thus clears away, whilst to those who are it is needless. Such words as 'duty,' 'right,' ‘obligation,' 'moral obligation,' 'imperfect obligation,' and the like, which have always been fruitful sources of confusion and misunderstanding, are grouped with admirable symmetry and completeness round this central definition.
For the purpose of illustration the word 'right' is as well fitted as any other. Almost every newspaper article or speech at a public meeting affords proof of the confusion into which people are led by the indefinite meaning which they attach to this term. Nothing is more common than to speak of 'rights' as if they were in themselves something admirable and desirable; and as if there were somewhere some abstract right to which all concrete rights ought to be conformed irrespectively of consequences. If Mr. Austin's definitions were so generally understood and accepted as to have passed into common use, half of the present discussions upon such subjects would fall to the ground, and the other half would be directed towards tangible results instead of producing little more than high words and unsteady prejudices, calling themselves opinions.
A right, according to Mr. Austin's definition, is a power conferred, and if necessary, enforced by law, and its existence may be good, bad, or indifferent for the world at large, and for the person who possesses it, according to circumstances. For example, a man has a right to be paid for goods which he has sold. This means that the Sovereign commands that debts shall be paid, and will enforce that command if it is neglected or disobeyed. This right is for obvious reasons eminently useful. If the Sovereign made a law that A B should be at liberty to cut off the head of any person he met in the street, AB would have precisely the same right to do so as to be paid his debts; but this right would be as monstrous as the other is useful. These are illustrations of legal rights, or rights answering to laws in the full sense of the word. Moral rights stand in precisely the same relation to moral rules as legal rights to laws, and they differ from legal rights in particulars correlative to those in which moral rules differ from laws. Now moral rules enforce a definite course of conduct, but they are not imposed by a definite superior, nor enforced by a definite sanction; and thus moral rights are powers the exercise of which is protected by an indefinite superior who inflicts indefinite penalties; and moral like legal rights may be either useful or pernicious.
For example, a parent has in every part of the world with which we are acquainted, a moral right to the obedience and respect of his children. This means that a tacit rule, that children shall obey and respect their parents, prevails in all human societies, and that the violation of that rule is punished by loss of esteem and disapproval expressed in various ways. This moral right is for obvious reasons beneficial; but it is easy to mention others which are as obviously injurious. A Chinese parent is under a moral obligation to distort his daughter's feet, and his neighbours have a moral right to have his daughter's feet distorted. That is to say, Chinese sentiment has laid down the tacit rule that a woman's feet shall be distorted, and the violation of that rule is punished by loss of esteem and disapproval expressed in various ways. This moral right is for obvious reasons pernicious. If we believe that God has given a tacit command to mankind to pursue all courses of conduct which are generally beneficial, and to abstain from all which are generally pernicious, and that obedience to this command is enforced by punishments either here or hereafter, this would involve a belief in a system of what may be called Divine rights and obligations, which would coincide with legal and moral obligations in so far as they were beneficial, regard being had to the evil arising from the violation of any established rule, whether beneficial or not. These rights (the existence of which is of course a question of evidence) can never be injurious, because the test by which their existence is ascertained is that it would be beneficial. It deserves notice, however, that this results from their nature, and not from their source, for the rights conferred, and the obligations imposed, by the will of a malevolent Deity might be pernicious, though they would be, strictly speaking, Divine rights. If Bhowanee had been a real deity, able to punish those who disobeyed her here or hereafter, and if the Thugs had rightly apprehended her will, they would have had a Divine right to rob and murder travellers, and the travellers would have been under a corresponding obligation to submit to be robbed and murdered. This would have been a case of a divine right of the most pernicious kind.
As any one is at liberty to use words in whatever sense he pleases, so long as he uses them consistently, such theories as these cannot be said to be either true or false. They are, as scientific definitions must always be, nothing else than rival classifications, more or less complete or convenient. Nothing can be more convenient than Mr. Austin's definitions. They entirely prevent the entanglement which is continually arising between an actual and ideal state of things; between the rights or powers protected by laws which do exist, and those which upon some principle or other ought to exist; and this confusion has given the tone to almost all the controversies upon such subjects which have agitated and still continue to agitate mankind.
The notion of sovereignty—the investigation of which fills up the last third of the present volume, is more remote from the common controversies of every day life than the notions of law, right, duty, and their correlatives. It colours, however, almost all political controversies which are of more than passing importance; and though at present such questions occupy little public attention in our own country, there is no reason to suppose that they may not derive prominence from the course of events at some future time, and there is little hope that if they do the confusion which has so frequently arisen from perplexed views of fundamental political notions will not be reproduced. Though most of the views advocated by Mr. Austin had been put forward by others before him, and though their substantial truth has long been tacitly recognised by reflecting and educated men, no better exposition of them is to be found than is contained in his sixth lecture. Their general nature is as follows: Whenever people associate together for political purposes some one or more of them possess a power of publishing and enforcing commands which is not controlled by any other power of the same kind, though it is restrained by positive moral rules which have in point of fact been established by the common sentiment of the community, including under that head the conception which they may have formed of the Divine law. Those who possess this power form individually or collectively, as it may happen, the sovereign of the society, and sovereign authority is always from its nature absolute. Thus it is a mistake to classify governments as being despotic or free; at least such classifications do not point to the extent of their power, but to the use which they make of it. From this it follows that sovereigns and subjects have neither legal rights nor legal duties, nor is sovereign power capable of legal limitation. The reason is, that a law is a command enforced by a common superior, and if the sovereign had any superior he would not be sovereign. The sovereign may, however, be under moral or religious obligations, because such obligations are enforced either by God or by those whose common sentiment establishes moral rules.
These opinions would, no doubt, appear to some minds favourable to tyranny; but this impression may be at once removed by reference to the illustrations given by Mr. Austin of his conception of the bodies which possess sovereign power. In our own country, for instance, he says that the sovereignty, which it must be remembered means the power of making and enforcing laws, resides in the King, the House of Lords, and the constituencies by whom the House of Commons are chosen, jointly; the share of the constituencies in the sovereignty being delegated by them unreservedly to their representatives with the single exception of the power of choosing the representatives. It may easily be seen how exactly the tests of sovereignty given above apply to this body. Any one member of the sovereign power might be, and each in turn has been, restrained by law. The King must be a Protestant; the House of Lords may not amend money bills; the House of Commons cannot legislate by a simple resolution; the constituencies were remodelled by the Reform Bill; but attempts to bind the sovereign itself are simply futile. For example, by the articles of Union between England and Scotland, the preservation of the Church of England and the Kirk of Scotland is declared to be a fundamental condition of the Union, yet no one can doubt that the existing Parliament of Great Britain could, if it pleased, abolish both or either; and such an abolition would be legal in the strictest sense of the word. It is equally true that, against the sovereign so defined, no one has legal rights. A man's right not to be put to death is the most important and most obviously beneficial of all rights, yet a bill of attainder—an act of parliament for cutting off the head of a person convicted of no crime—is just as good law as any other bill whatever, and executions done under its provisions would not only be legal, but to neglect to do it would be a crime.
To apply this conception of sovereignty to the different forms of government which have existed in different times and countries is an intricate task though it is most instructive, and though its practical bearings are occasionally important. Till the knot was cut, or perhaps complicated, by civil war, the question where the sovereignty of the United States resided was one of great interest, and played a considerable part in those discussions between the advocates of States rights and the advocates of the paramount authority of the Union, which for many years inflamed the quarrel between the North and South, and so prepared the way for civil war.
The principal words to which Mr. Austin was led by his theory of sovereignty to assign a definite form, are Liberty and Justice. His views of the meaning which ought to be attached to each of these words are nearly if not quite the same as those of Hobbes. Liberty, he says, means that amount of absence of restraint which the sovereign leaves to its subjects. For example, the liberty of a prisoner in a gaol consists in his being allowed to walk about his cell. He is under no orders as to the part of it in which he is to sit or lie. Justice means the observance of laws, whether good or bad. Thus a law that the seventh sons of seventh sons should be put to death on their twenty-first birth-day would be absurd, cruel, immoral, and irreligious, and would expose those who made it to the disapproval of men, and to the punishments which sanction the Divine laws; but it would not be unjust; on the contrary, it would be unjust not to execute it if the occasion arose. This use of the word, no doubt, would shock the common sentiment, but Mr. Austin explains this as follows:—The words 'just' and 'unjust' as popularly used, in so far as they have any definite meaning, coincide with 'generally beneficial,' or 'generally injurious.' A thing is called just emphatically when it coincides with the laws of God; but the laws of God are to be discovered by the test of general utility; consequently the word 'just' used emphatically without explicit reference to any particular law, means 'generally beneficial,' though it delusively appears to have a wider signification.
'Constitutional' is another word to which Mr. Austin's theory attaches a distinct meaning. Every form of government has a character, and has objects of its own, and is regarded by those who live under it with sentiments which are gradually formed into a system bearing the same relation to public affairs which ordinary morality bears to private conduct. A system of positive morality is thus formed in relation to government which is enforced by moral sanctions, and acts are constitutional if that sentiment approves of them, and unconstitutional if it does not. Any one may satisfy himself of the convenience which would arise from using the words referred to in the sense assigned to them by Mr. Austin by referring to the controversies in which they have played the greatest part. If, for example, it were once finally settled that liberty in itself is neither good nor bad; that it is a mere negation of the existence of laws which might enjoin the most salutary or forbid the most atrocious actions; that it might with equal propriety be applied to the right to freedom of worship in a country where there are no laws against variety of religious belief, and to the right to commit murder in a country where there are no laws to protect human life —all the discussions into which it is introduced would be shorn of most of the obscurity, and most of the heat by which they are usually pervaded. In the same way, if the words 'just' and 'unjust' were used as he wished as the correlatives of law, and if law were uniformly confined to its appropriate meaning, many disputes, both social and metaphysical, would come either to a natural end, or to a plain issue capable of being decided by evidence. Let any one who doubts this read the newspaper discussions about strikes, and say whether if the disputants attached a determinate sense to the words 'justice' and 'right,' they would not perceive that half their arguments are either unmeaning or expressed in a manner so confused and blundering that the meaning which they ought to have can hardly be inferred from the language in which it is wrapped up.
These observations and illustrations may enable those who have not read Mr. Austin's book to form some notion of its general purport and importance, but they can give no idea of the manner in which it is worked out, or of the mental qualities which it displays. His widow refers his reluctance to complete the great work which he had in his mind, partly to the extreme labour which would have been necessary to realise his conception of it; and certainly the part which he did publish conveys the impression that no English writer ever wrote with more labour. The book bears in several particulars a strong resemblance to Butler's Analogy. There is in each the same predominance of one leading idea constantly present to the author's mind, and constantly presented to the reader under different shapes. There is in each the same severity and unwearied closeness of thought. The reader must stop to think at almost every sentence, and no inducement to go on is held out to him than that of arriving at last at the author's meaning. Each book, moreover, leaves on the mind the same sort of impression. When fully mastered, each is a possession for ever. It is possible either to agree or to dissent, but it is impossible to deny that a reasonable coherent view of a subject of vast interest has been put forward, and that it cannot be disturbed or refuted without a thorough examination of the whole argument, and of the relations of its different parts to each other and to the whole of which they form a part. The most curious point of resemblance lies in the style. Each writes like a lawyer and like a judge. Whole chapters of Butler read exactly like the best of the judgments in the Law Reports; and this is the more remarkable because Butler had no legal training, but must have adopted the legal style because it suited the tone of his mind. Mr. Austin, on the other hand, wrote like a lawyer because he was one, and his style throughout shows the deepest and clearest traces of his legal training. Large parts of his lectures are 'drawn,' to use the technical phrase, just as a conveyancer or pleader would have drawn them. Take, for example, the following sentences:—'Excluding from my 'present discourse my analysis of those expressions, I shall complete in my present discourse the purpose mentioned above, so far as I can complete it consistently with that exclusion.'— 'The promisor or the party who proffers the promise promises the promisee or the party to whom it is proffered, that he will 'do or perform some given act or acts, or will do or perform and also forbear or abstain. And the acts or performances which he promises, or the acts and performances which he promises, may be styled the object of his promise and also the object of the convention.' Perhaps no other English writer, except a special pleader, would have cared so much for precision as to draw out in words the alternative which is expressed in commercial documents by the well-known abbreviation and/or. Another illustration of this excessive scrupulousness is to be found in the fact that Mr. Austin constantly replaces pronouns by a repetition of the words for which they stand. For example:—'Considered as rules of positive morality customary laws arise from the consent of the governed . . . . Considered as moral rules turned into positive laws, customary laws are established by the State.' In this he resembled Lord Macaulay, many of whose antitheses are constructed by repeating the first clause in the second with a single significant alteration.
It cannot be denied that a style so laborious applied to matter so unfamiliar, makes Mr. Austin's book extremely difficult to read, and fully accounts for the want of popularity which so long attended it. Till the late reforms in legal education created a demand for it, its value was known only to a few studious persons; and there is little reason to hope that it will ever be generally studied; but there is no reason to doubt that as long as jurisprudence is studied, it will remain as an imperishable monument of the conscientious labour, profound thought, and extraordinary powers of mind which its author bestowed on it.
Mr. Maine's book on 'Ancient Law' is in some respects a contrast to Mr. Austin's, and is in others closely connected with it. The title gives only a slight indication of its object, which is to give the history of the gradual evolution of several of the principal conceptions by which law is pervaded, and to describe the different influences by which they are gradually developed. The following short summary embraces its leading points.
The earliest notion of anything like law is to be found in the Homeric 'Themistes,' which appear to have been judgments uttered by kings acting as judges under the immediate inspiration of the gods. By degrees the kings were replaced by narrow aristocracies, which became the exclusive depositaries first of Themistes and in course of time of rules of law answering more or less to law in our modern sense of the word. As the other parts of the nation gained power, the aristocracies were forced to publish the laws which they had formerly kept secret, and thus we have the origin of codes, of which the code of the Twelve Tables is the most famous and most important example. This ends what Mr. Maine calls the 'spontaneous 'development' of primitive law, and subsequent changes are made by way of alteration from without. These are made, however, on account of the sacred character attached to law, with many precautions and disguises, and in the most gradual manner.
Glancing at the legal history of several other countries, Mr. Maine examines the progress of change in Roman law with considerable minuteness, and illustrates it largely by parallel alterations in the law of England. The instruments by which these changes have been effected are three in number,— fictions, equity, and legislation. By 'fictions' he means 'any assumptions which conceal or affect to conceal the fact that a rule of law has undergone alteration, its letter remaining unchanged, its operation being modified.' The term thus used includes all such alterations as have been introduced into English law by the fiction that the judges possess a reserved fund of law, which they promulgate as often as a novel set of facts comes before them which require its promulgation. In other words, it includes all judicial legislation. Fictions, according to Mr. Maine, are the earliest and one of the most useful of all contrivances for stretching old rules to meet new facts, and are the only means which will effect that object in times which are not yet ripe for the notion of equity, or for the still more difficult task of legislation. In the process of time, however, they are to a great extent replaced by equity. A theory grows up differing in details indifferent nations, according to circumstances, but always involving the conception of some broader and more reasonable system of justice than that which is embodied in any actually existing laws. This is administered side by side with those laws, and involves at first a considerable discretion on the part of the judge who has to dispense it; but inasmuch as strict rules never embody the whole of the sentiment on which they are founded, though they are indispensable to the administration of every judicial system, equity gradually hardens into a second body of law as technical and stringent as that to which it was originally meant to be a supplement. The only remedy for this is to be found in legislation, which is capable of effecting any change that may be thought desirable openly and avowedly.
This view of the different instruments by which the strict and narrow laws of infant societies are adapted to the wants of later times, naturally suggests the question, What is the origin and what is the character of those enlarged views of justice which fictions and equity successively try to realise? Mr. Maine attempts to answer these questions in a most interesting inquiry into the origin and growth of the theory of natural law or natural justice, which has exercised and still exercises so great an influence over large and most important parts of the world. He deduces the theory from the earliest stage of Roman history. It originated in the jus gentium administered by the praetors in cases which arose either between foreigners or between a Roman and a foreigner. This jus gentium was altogether different from that system which went in later times by the same name, and was composed of the rules which the praetors found by experience to be common to the different Italian nations amongst whose subjects they had to adjudicate. For example, delivery was essential to a sale of goods, according to the law of many different nations; but in each nation the delivery had to be accompanied by certain ceremonies which varied in different places; and thus delivery was considered as forming a part of the jus gentium, though the ceremonies attendant on it were not.
This original jus gentium, so far from being looked upon as something more refined and important than the jus civile administered between Roman citizens, was regarded as an inferior kind of law, and its aquitas or tendency to set on one level the Roman and the foreigner was, Mr. Maine conjectures, regarded not as an excellence but as a defect. As the extent of the law administered by the praetors increased with the increase of wealth and population, it came within reach of the Greek philosophical theories about nature and justice, and was deeply affected by them.
Nature was viewed in the early Greek philosophy as a vast whole, including not only matter in all its forms, but man also; and thus the law of nature was that principle of which all phenomena, material or human, were so many detailed manifestations. The jus gentium administered by the praetors was elaborated in a manner which afforded a wide scope for the action of these theories. The praetors, as is well known, annually issued edicts setting forth the rules by which they intended to govern their decisions during their year of office. These edicts naturally reflected with the utmost faithfulness the state of opinion current amongst the jurisconsults of the day whose 'responsa' were closely analogous to our own case law. The chambers, as we should say, of an eminent Roman lawyer were resorted to by clients who asked him for advice; and his answers were given in the presence of students, who noted down both the facts and the opinions, and exercised their own and their masters' ingenuity afterwards by asking what would have been his opinion if the facts had been otherwise. In this way a body of half-authoritative legal opinions was formed, which of course took its general colour from the speculations with which the minds of the jurisconsults were most familiar; and inasmuch as the Roman judicial offices were, to use Mr. Maine's language, 'much less aptly compared to a permanent judicature 'than to a cycle of offices briskly circulating amongst the ‘leaders of the bar,' abstract speculations upon the law of nature, justice, and the like flowed freely from the chambers of the jurisconsults into the praetors' edicts, and thus the jus gentium came to be understood to mean a set of principles which ought to be taken as the standard of all human affairs, deviations from them being stigmatised as corruptions. This view of the matter exercised the greatest influence over the whole history of Roman law, not only during the later history of the republic, but also under the empire.
Roman Law formed the substratum of the laws of almost all the nations of modern Europe. It entered far more deeply than is usually supposed into the composition of our own law. When the study of it extended itself from Italy to France, the French lawyers adopted its principles with avidity; and the circumstances of the country led them to attach particular importance to those parts of it which related to the law of nature, as they afforded the means of setting up a more reasonable standard of authority than was supplied by the intricate and conflicting local customs which prevailed in different parts of France. This was specially important to them, because it was in a great measure by their assistance that the kings of France were able to mould a heterogeneous mass of provinces into the most compact of modern nations.
After prevailing for a length of time as a theory amongst lawyers, the law of nature obtained two great practical triumphs. The first of these consisted in the establishment of the principle that the relations of independent nations were regulated by it. This result was produced principally by the great work of Grotius, whose anxiety to ascertain some principles by which such awful conflicts as those which he had witnessed might be moderated, was favoured by the facility with which the phrase jus gentium might be construed to mean the law binding on all nations instead of the law common to all nations. The second was the famous theory of the state of nature, and the laws of nature as derived from that state, which was urged by Rousseau in the middle of the last century, in a manner which commanded the assent of an immense proportion of his contemporaries, and exercised an influence, which is still deeply felt, over the fortunes of many parts of the world, especially France and America.
Having thus traced out the general nature of the instruments by which laws are changed, and having in particular described the growth of the most famous and most general of all theories respecting the standard to which they should be conformed, Mr. Maine returns to the consideration of the history of the fundamental legal conceptions. How, in point of fact, did laws come to be established? What were the earliest notions of men as to order of succession, property, contract, and crime? Each of these questions is treated with extraordinary skill and ingenuity in a separate chapter; and probably no writer on such a subject ever succeeded in compressing into so short a space so great an amount of thought and learning, clothed in a style so lively and even entertaining. Every paragraph of these six chapters will repay the most careful attention, whilst the least energetic reader will be obliged to confess that the author has imposed upon them no other labour than that which is indispensable to the apprehension of the subject-matter, when placed in the most perspicuous shape, and freed from all irrelevant matter. The extreme condensation of the style, and the profusion of matter brought in by way of illustration, always in a thoroughly pertinent and most interesting manner, make it extremely difficult to give within reasonable limits any account of their contents; but a short summary of two chapters will give a notion of the contents of the rest.
The fifth and sixth chapters treat of the origin of civil society and of testamentary succession. No better illustration can be given of the general character of Mr. Maine's book than is afforded by a contrast between these two chapters and one in Paley's Moral Philosophy on the same subject. Paley dismisses the whole matter in about a page and a quarter. He says that in the earliest form of society men lived alone; and that the earliest kind of property consisted of the product of personal labour; and that the earliest wills were those by which men bequeathed to others the things which they had made or collected with their own hands. Upon this purely arbitrary foundation he founds a great part of his doctrine respecting wills, and especially his distinction between the testamentary power which exists by what he calls the law of nature, and that which exists by positive institution merely.
Mr. Maine in the two chapters in question not only proves to demonstration the falseness of such notions as these, but brings a sufficient quantity of evidence to give considerable credibility to a view of his own which, whether true or not, is at any rate most instructive, and as likely to be true as any hypothesis about so obscure a matter can be. He says that the earliest form of society in all the races by which Western Europe was peopled was that of families connected, or supposed to be connected together, by a common descent. Over these families the patriarch or eldest male descendant had an almost absolute control—a control which as against all other families was quite absolute. The area of the family was thus coextensive with that of the patria potestas; and it might, by the oldest of legal fictions, be recruited not only by natural increase but by adoption or by marriage; the result of which processes was that the adopted son or the wife, as the case might be, came under the power of the patriarch or head of the family.
Mr. Maine traces out with elaborate minuteness the effects of this view of the matter on the old Roman law of marriage, showing how it explains many of the most curious and apparently unmeaning technicalities by which that law was, and to some degree is still, beset. For example, in the old Roman jurisprudence the wife was regarded as the sister of her children, because they were all 'submanum viri;' and down to our own days half brothers could not inherit from each other. The explanation of this apparently unmeaning rule, which was always considered the hardest of all legal riddles, is thus stated by Mr. Maine. It was imported into England from Normandy, where it was confined to brothers by the same mother but by different fathers. Persons so related were obviously under different patria potestates, and as members of different jurisdictions neither could transmit to the other the character of head of the family to which he belonged. When the rule was transplanted into England its grounds were either forgotten or unknown, and the judges interpreted it to apply to all persons related by way of half blood, whether through the father or the mother.
Families being thus the units of which the state was composed, and of which alone the law took notice, the head of the family was in the eye of the most ancient lawyers—to use Mr. Maine's apt illustration—considered as a corporation sole, clothed with a variety of powers and characters, which on his death were transferred as a whole to a representative, who preserved the continuity of the family, notwithstanding his predecessor's death. Wills originally had for their object not the disposal of property but the nomination of a successor, and were thus closely analogous to the practice of adoption. The earliest wills known to Roman law were irrevocable conveyances inter vivos of the reversion (as we should say) of the rights which the paterfamilias held as such. They were published during the testator's lifetime; in the case of patricians in the Comitia Calata; in the case of plebeians by means of the mancipium, which was the earliest form of sale, and was performed in the presence of many witnesses, according to a tedious and elaborate ceremonial. Mr. Maine traces out the steps by which wills of this sort were gradually moulded, by the ingenuity of successive generations of jurisconsults, into the wills with which we are familiar, and illustrates this course of events by parallel incidents in the changes of the Hindoo law, which partly resembled them up to a certain point, at which they have remained stationary for many ages.
Such inquiries as these, which are analogous to those which Mr. Maine institutes respecting classifications of property, contract, and crime, carry us into topics altogether unlike those on which the writers of treatises on the principles of government and politics have usually laid the foundation of their theories. They cast a light both on the origin of society and on the stages of its growth, which is highly important in many different points of view, and will undoubtedly exercise great influence over various departments of thought, especially those which refer to morals and politics. The most interesting point which they suggest is the question as to the mode in which such inquiries should be conducted. No one can have watched the course of modern speculation without perceiving how deeply it is affected by a sort of weariness caused by the apparently unfruitful discussions which have so long prevailed upon political and moral subjects. It must be owned that there is some truth in the assertion that these discussions have usually been conducted in such a manner as to do little else than make the meaning of the opposite parties more or less clear to each other. So much, indeed, has this been the case, that theoretical views upon them have fallen into general discredit, and there has been a disposition to look with indifference upon all attempts to refer practical questions to anything like general principles. Historical inquiry has been the common resource of those who have shared in this feeling, and have nevertheless recognised the necessity of some wider and more durable results than those which the mere transaction of the current affairs of life can afford. History has been consulted upon almost all the great standing subjects of human thought. Politics, morals, and theology have all been studied from this point of view, and Mr. Maine is now applying the same process to law. He is the first person who in this country has brought to such an attempt the special professional knowledge which is indispensable to success in it. Some account has been given above of the nature of his inquiries, and of the special results at which he has arrived. We may conclude by offering a few observations on the character of the manner in which they have been obtained.
Mr. Maine several times uses in reference to his own investigations the phrase 'Historical Method,' and his book has been represented by several of his critics as an exemplification of a process which they describe by that name. Indeed with persons who delight to dress their thoughts in semi-technical language, such phrases as the 'Historical,' the 'Inductive,' and the ‘Analytical' methods, have of late obtained considerable popularity. These phrases, no doubt, have their use, but they greatly obscure the general purport of speculation, which is first to discover truth, and secondly to render it serviceable to mankind. It is not uncommon to write of the historical and analytical methods as if they were two independent roads to the same result, one of which was proved by experience to be right, and the other wrong. This is a mistake as dangerous as it is common, and it contributes more largely than any other to the practical fatalism which under its alias of positivism is one of the great dangers of contemporary thought. History and analysis, so far from being inimical, are complementary to each other, and neither can be safely dispensed with. History without analysis is at best a mere curiosity; and analysis without history is blind, though it may not be barren. No better instance could be given of the importance of each of these two branches of inquiry to the other than is afforded by a comparison of Mr. Austin's book with Mr. Maine's. In justice to each of these writers it should be said that though analysis is the main purpose of the one and history of the other, each (and especially Mr. Austin) recognises the necessity to his own inquiries of the line of thought which he does not pursue. From a curious passage in the introduction, now first published, it appears that Mr. Austin had anticipated Mr. Maine's inquiry into the history of the growth of the Law of Nature, and had independently arrived at the same conclusions about it as those which are contained in Mr. Maine's chapters on the subject. On the other hand, though Mr. Maine does not recognise the necessity of analysis as expressly as Mr. Austin recognises the necessity of history, it is obvious that the precise definitions furnished by the inquiries of Mr. Austin and Bentham supplied a starting point for all his inquiries, and in fact rendered them possible.
One of the very few unfavourable criticisms which Mr. Maine's book suggests is that he appears to think, though he certainly never says, that when he has succeeded in giving the history of a system or a theory, he has done with it. For example, he says that 'the Law of Nature has never maintained its footing for an instant before the historical method;' and though he scrupulously confines himself to facts, and is far too cautious and moderate to commit himself to any express conclusion which does not fall strictly within the limits of his inquiry, he appears to feel that he has refuted the theory, or rather all the successive theories, of the Law of Nature by tracing their genealogy. This is surely a complete though a natural fallacy. Mr. Maine says in substance this: There is no such thing as Natural Law, because you would not have thought of it if it had not been for the theories of Rousseau; who adapted to his own purposes the language current amongst the lawyers of his day; who inherited their views from earlier lawyers; who, to serve a temporary purpose, twisted certain theories of Roman Law; which theories had at an earlier period been compounded out of the notions of certain Greek philosophers and certain doctrines about an older jus gentium, which meant something altogether different from what you understand by Natural Law.
All this may be perfectly true without proving the conclusion. A rational conviction of an important truth may be founded on very bad reasons. The common case of reasonable suspicion proves this. A man may suspect another of a crime and believe him to be guilty of it merely on account of the expression of his face or the tone of his voice, and this suspicion may turn out to be well founded. Mr. Maine would hardly defend a client on the ground that he could show, by the application of the historical method, how the case against him had grown up. How the cook noticed that the housemaid bought too many dresses, which induced the mistress to apply to the draper, who showed coins which he thought he had received from her, and which the mistress strongly suspected to have been stolen from the desk of her husband, who thereupon sent for a policeman to search her boxes, and so discovered the spoons now produced. Most people would consider that this was the case for the prosecution and not for the defence, but Mr. Maine seems a little disposed to put it thus:— The discovery of the spoons was occasioned by the policeman's search, which would never have taken place if the lady had not supposed that some coins shown her by the draper were her husband's; and she would never have gone to the draper's at all if the cook had not gossiped about the dresses bought by the prisoner; so that the whole case, gentlemen of the jury, depends upon the idle tittle-tattle of one silly woman about the dress of another. An advocate of the Law of Nature might say to Mr. Maine: It may be perfectly true that I should never have thought as I do unless Rousseau, Grotius, the lawyers of the 14th century, the jurisconsults of Justinian, and the philosophers of Greece had thought certain other things before me, but I can nevertheless give very good reasons for what I do think. I assert that Nature imposes upon men certain laws capable of distinct enunciation, and attended by distinct penalties. For example, the Law of Nature forbids murder; and if there were no municipal laws at all, murder would still incur natural penalties in the shape of disapprobation and vengeance. The manner in which I came by this opinion has nothing whatever to do with its truth.
The true answer to such assertions is to be drawn, not from Mr. Maine, but from Mr. Austin. It is that the word 'law' in such phrases is a delusive metaphor, because it suggests to the mind a closer analogy than really exists between commands issued by and to reasonable beings, and maxims put as it were into the mouth of abstractions; and also a dangerous metaphor, because it encourages that slavish temper of mind which delights to find consequences asserted to be inevitable, in order that it may acquiesce in them, and of which fatalism is the theoretical exponent. This is a complete answer to such theories; and when it has once been given, and is recognised as true and sufficient, historical investigations are in their proper place. A man who has a firm hold of the truth may advantageously employ himself in constructing a map of error, and thinking what was the connexion of ideas by which people were led into the fallacies which he has recognised as such; but, unless he has some acknowledged standard of truth, his speculations are like a map in which all the roads are marked and all the towns left out; they show nothing but a constant succession of opinions, each of which was inevitable when it prevailed, and was succeeded by a series of equally inevitable successors. The positivist may be considered as a man who has made himself a eunuch for the sake of the kingdom of philosophy. He is debarred by what he calls his ' method' from attempting to alter what exists. The only relation in which he can consistently view opinions is that of their succession to one another; and if he does not derive tests of truth and utility from some other system, he will get none from his own; though, by two self-imposed fallacies which it requires some effort to apprehend, he seems to think he can.
Two tacit assumptions will be found to pervade all positivist writers on all subjects. The first is that opinions are given up because they are shown by experience to be false. The second is that their own opinions will be perpetual, and are thus the test and measure of truth. Having made these tacit assumptions, they proceed to fortify their own opinions by showing how they were gradually formed out of those which preceded them, forgetting that they will probably be in their turn superseded by others; unless, indeed, they should succeed in persuading mankind in general to confine themselves to retrospection, and to be satisfied with surrendering all hope of future golden eggs, for the sake of dissecting the goose which laid those which are already in their possession.
Mr. Maine personally has written nothing or little which would in any degree justify these criticisms, though some of his critics have attempted to find in his book an illustration of the truth of positivist theories. Though he sometimes adopts turns of expression which belong to such theories, he confines himself most cautiously and studiously to the investigation of facts; he puts forward no philosophical theories at all, but leaves to others the question how far the truth of the theories which come before him is affected by the account which he gives of their origin. The light by which his book should be read is supplied by Bentham and Mr. Austin, who have analysed with a precision, which leaves hardly anything to be desired, the fundamental notions which lie at the bottom of jurisprudence. When the rest of Mr. Austin's lectures are before the world—even in the incomplete state in which he left them, a broad and clear meaning will have been affixed to almost all the leading words which are used in connexion with law under all its forms, and to many of those which occur in discussions on morality. This will supply a starting point for any amount of historical investigation, by the help of which it will be possible to compare the degree in which various systems of law have embodied the great leading principles which ought to pervade all speculation on the subject, and how far various methods of altering the law have in fact contributed to the general welfare of mankind.
These last words suggest the observation that the speculations of Bentham and Mr. Austin leave one immense question which is vitally essential to their subject comparatively unexplored. This is the question: What that general happiness is which it is the object of legislation and morals to produce? The account of it given by Bentham is the least satisfactory part of his book on the principles of morals and legislation, though by the mere fact that it gave express and intelligible objects to each of those pursuits, the book has exercised an incalculable influence over the whole course of thought and action in this country since its appearance. In a characteristic MS. fragment now published for the first time, Mr. Austin glances at this vast question, and shows how important and how noble an enterprise its solution would be. He says—
'Mistakes like those of political economists are made by utilitarians, only of a more general nature. . . . They take a part of human happiness, or a part of the means towards it, for the whole of human happiness or the whole of those means: e.g. The exclusion of poetry or the fine arts, or the degrading them to "the agreeable." Their eminent utility: the wisdom to be got from poets (give examples). This partial view of human happiness, or of means towards it, will always be taken till a system of ethical teleology be constructed; i.e. an analysis of happiness, the means towards it, and therefore the ends to be pursued directly.'It is not impossible that by a wise combination of analysis and history, (the first to supply precise general terms and a judicious classification, and the second to supply illustrations of the modes in which men think, and explanations of the language which they use,) jurisprudence and morals may come to be studied amongst us with a scientific and practical completeness unknown elsewhere. The most important part of the analysis has been already completed; and though much remains to be done in the direction indicated by Mr. Austin, his labours, and those of Bentham, have prepared the way for a vast amount of historical investigation. The combination necessary to make such investigations fruitful is a very rare one. They require not merely learning, but those powers of seeing what is essential and what is not; of entering into the modes of thought and feeling of past ages; of compressing masses of detail into broad and connected statements; and of presenting unfamiliar thoughts in a perspicuous and interesting shape, which nothing can give except careful training, varied knowledge, both of books and men, and a mind equally skilled in investigating details and principles. Every page of Mr. Maine's book contains proofs of these qualities, and the manner in which he has executed the task which he has undertaken proves that he is fully capable of doing as much for one element of English jurisprudence as Mr. Austin did for the other.
Edinburgh Review, October 1861.