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AUSTIN ON JURISPRUDENCE 1863 - John Stuart Mill, The Collected Works of John Stuart Mill, Volume XXI - Essays on Equality, Law, and Education 
The Collected Works of John Stuart Mill, Volume XXI - Essays on Equality, Law, and Education, ed. John M. Robson, Introduction by Stefan Collini (Toronto: University of Toronto Press, London: Routledge and Kegan Paul, 1984).
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AUSTIN ON JURISPRUDENCE
Dissertations and Discussions, III (1867), 206-74, where the title is footnoted, “Edinburgh Review, October 1863.—1 ‘Lectures on Jurisprudence; being the Sequel to “The Province of Jurisprudence Determined.” To which are added Notes and Fragments, now first published from the Original Manuscripts.’ By the late John Austin, Esq., of the Inner Temple, Barrister-at-Law. [Ed. Sarah Austin.] Two vols. 8vo. London: [Murray,] 1863. 2. ‘On the Uses of the Study of Jurisprudence.’ By the late John Austin, Esq., of the Inner Temple, Barrister-at-Law. Reprinted from the Third Volume of ‘Lectures on Jurisprudence.’ [Ed. Sarah Austin.] London: [Murray,] 1863.” Reprinted from Edinburgh Review, CXVIII (Oct., 1863), 439-82, where it appeared as Art. V, headed by the same information as in the footnote to the title in D&D; running titles. “Austin on Jurisprudence.” Unsigned Identified in Mill’s bibliography as “A review of Austin’s Lectures on Jurisprudence in the Edinburgh Review for October 1863 (omitted in its proper place)” (MacMinn, 96), the entry appears between those for 1865 and for 1866. In the Somerville College copy of an offprint of the Edinburgh Review version (repaged 1-44 but otherwise identical) are two corrections in Mill’s hand, both of which are adopted in D&D (and in the present text), see 167a-a and 172d-d. In the Somerville College set of D&D there is a further correction at 179.27 “motion” is corrected in pencil to “notion” (as in the Edinburgh version and in the 2nd ed. of Vol. III of D&D [1875, edited after Mill’s death by Helen Taylor]), it too is adopted here. For comment on the essay, see xli-xlviii and lxv-lxvi above.
The text below is that of D&D, III (1867), the only edition of that volume in Mill’s lifetime. In the footnoted variants, “631” indicates Edinburgh Review, “632”, the offprint; “67”, D&D, III.
Austin on Jurisprudence
these lectures and fragments, with the volume on The Province of Jurisprudence,[*] of which they are the continuation, and a very few though very elaborate essays on miscellaneous subjects, published at long intervals, mostly in Reviews, are all that remains of the intellectual life of a most remarkable mind. Mr. Austin’s name and writings are little known, except to students of the science which, though only aonea of those on which his writings prove him to have reflected, was the subject on which he principally wrote. But in that science, even the limited portion of his labours which was before the world had placed him, in the estimation of all competent judges, in the very highest rank; and if such judges are now greatly more numerous than when he began to write, the fact is in no small degree owing to his intellectual influence. He has been in nothing more useful than in forming the minds by which he is, and will hereafter be, judged. No writer whom we know had more of the qualities needed for initiating and disciplining other minds in the difficult art of precise thought. Though the merit and worth of his writings as a contribution to the philosophy of jurisprudence are conspicuous, their educational value, as a training school for the higher class of intellects, will be found, we think, to be still greater. Considered in that aspect, there is not extant any other book which can do for the thinker exactly what this does. Independently of the demands which its subject makes upon the attention, not merely of a particular profession, but of all liberal and cultivated minds, we do not hesitate to say that as a mere organon for certain faculties of the intellect, a practical logic for some of the higher departments of thought, these volumes have a claim to a place in the education of statesmen, publicists, and students of the human mind.
It is not, of course, intended to claim for Mr. Austin a position in the philosophy of law either equal or similar to that which posterity will assign to his great predecessor, Bentham. That illustrious thinker has done, for this important department of human affairs, what can only be done once. But though the work which Mr. Austin did, neither would nor could have been done if Bentham had not given the impulse and pointed out the way, it was of a different character from Bentham’s work, and not less indispensable. In the confidence of private friendship, Mr. Austin once said of himself, that if he had any special intellectual vocation, it was that of “untying knots.” In this judgment he estimated his own qualifications very correctly. The untying of intellectual knots; the clearing up of the puzzles arising from complex combinations of ideas confusedly apprehended, and not analysed into their elements; the building up of definite conceptions where only indefinite ones existed, and where the current phrases disguised and perpetuated the indefiniteness; the disentangling of the classifications and distinctions grounded on differences in things themselves, from those arising out of the mere accidents of their history, and, when disentangled, applying the distinctions (often for the first time) clearly, consistently, and uniformly—these were, of the many admirable characteristics of Mr. Austin’s work as a jurist, those which most especially distinguished him. This untying of knots was not particularly characteristic of Bentham. He cut them rather. He preferred to draw his pen through the whole of the past, and begin anew at the beginning. Neither his tastes nor his mental habits were adapted to the other kind of work: but, though his neglect of it led him not unfrequently into errors, yet, all things considered, success has justified his choice. His effect on the world has been greater, and therefore more beneficial, by means of it. The battering ram was of more importance, in Bentham’s time, than the builder’s trowel. He had to conquer an inveterate superstition. He found an incondite mass of barbarian conceits, obsolete technicalities, and contrivances which had lost their meaning, bound together by sophistical ingenuity into a semblance of legal science, and held up triumphantly to the admiration and applause of mankind. The urgent thing for Bentham was to assault and demolish this castle of unreason, and to try if a foundation could not be laid for a rational science of law by direct consideration of the facts of human life. To rescue from among the ruins such valuable materials as had been built in among rubbish, and give them the new and workmanlike shape which fitted them for a better edifice; to hunt among the irrationalities of law for helps to its rationale, was work for which, even if it had been opportune in his day, Bentham had not time. For Bentham’s subject had a wider range than Mr. Austin’s. It was the whole, of which the latter is but a part. The one inquiry was ultimate, the other instrumental. Mr. Austin’s subject was Jurisprudence, Bentham’s was Legislation.
The purpose of Bentham was to investigate principles from which to decide what laws ought to exist—what legal rights, and legal duties or obligations, are fit to be established among mankind. This was also the ultimate end of Mr. Austin’s speculations; but the subject of his special labours was theoretically distinct, though subsidiary, and practically indispensable, to the former. It was what may be called the logic of law, as distinguished from its morality or expediency. Its purpose was that of clearing up and defining the notions which the human mind is compelled to form, and the distinctions which it is necessitated to make, by the mere existence of a body of law of any kind, or of a body of law taking cognisance of the concerns of a civilized and complicated state of society. A clear and firm possession of these notions and distinctions is as important to practice as it is to science. For only by means of it can the legislator know how to give effect to his own ideas and his own purposes. Without it, however capable the legislator might be of conceiving good laws in the abstract, he could not possibly so word them, and so combine and arrange them, that they should really do the work intended and expected.
These notions and distinctions form the science of jurisprudence as Mr. Austin conceived it. The readers of what we must now call his first volume, The Province of Jurisprudence Determined, have probably often regretted, that though it discussed in a most elaborate and searching manner the “province” (in other words the subject-matter and limits) of jurisprudence, the nature and uses of the study itself were rather taken for granted than expressly set forth. This, which was a real defect in the former volume considered as a separate work, is now supplied by a dissertation on the study of jurisprudence, formed out of the introductory lectures to the two courses which Mr. Austin delivered, at University College and at the Inner Temple. This instructive paper, besides being included in the larger work, has, in order to recommend the study to a more numerous body of readers, been judiciously published separately as a pamphlet.
We have already, in reviewing the second edition of Mr. Austin’s Province of Jurisprudence,* republished by his widow in 1861, compared and contrasted the method of Mr. Austin with that of another eminent philosophical lawyer, Mr. Maine. The subject-matter of both writers is positive law—the legal institutions which exist, or have existed, among mankind, considered as actual facts. The aim of both is to let in the light of philosophy on these facts, and both do this with great success. Neither writer treats ex professo of laws as they ought to be; though, in treating of them as they are and as they have been, it is the declared aim of both to facilitate their improvement. But they pursue this end, for the most part, through different intellectual media. Mr. Maine’s operation is essentially historical, not only in the mode of prosecuting his inquiry, but in the nature of the inquiry itself. He investigates, not properly the philosophy of law, but the philosophy of the history of law. In the various legal institutions which obtain, or have formerly obtained, he studies principally the causes that produced them. His book may be called a treatise on the action and reaction between the ideas prevalent among mankind, and their positive institutions. Under each of the principal classes of facts with which law is conversant—family, property, contract, and delict or offence—he historically investigates the primitive ideas of mankind, traces the customs and institutions, which have prevailed ever since, to their origin in those primitive ideas, and shows how institutions which were modelled on the rude notions of an early state of society, have influenced the thoughts of subsequent generations down to the present time. Speculations like these, when directed, as Mr. Maine’s are, by a true historical genius, possess in a pre-eminent degree all the uses which can belong to history. The laws and institutions of primitive mankind are the richest indications available for reading their thoughts, entering into their feelings, and understanding their general mode of existence. But the historical value of these studies is the smallest part of their utility. They teach us the highly practical lesson, that institutions which, with more or less of modification, still exist, originated in ideas now universally exploded; and conversely, that ideas and modes of thought which have not lost their hold even on our own time, are often the artificial, and in some sort accidental product of laws and institutions which exist no longer, and of which no one would now approve the revival.
It is not in this manner, except incidentally and occasionally, that Mr. Austin’s treatise contributes to the improvement of law; though there is a place allotted to such speculations in his comprehensive conception of the study of jurisprudence. He does not specially contemplate legal systems in reference to their origin, and to the psychological causes of their existence. He considers them in respect of what may be called their organic structure. Every body of law has certain points of agreement with every other; and between those which have prevailed in cultivated and civilized societies, there is a still greater number of features in common. Independently of the resemblances which naturally exist in their substantive provisions (designed as these are for the same world, and for the same human nature), there is also a certain common groundwork of general conceptions or notions, each in itself very wide, and some of them very complex, which can be traced through every body of law, and are the same in all. These conceptions are not pre-existent; they are a result of abstraction, and emerge as soon as the attempt is made to look at any body of laws as a whole, or to compare one part of it with another, or to regard persons, and the facts of life, from a legal point of view. There are certain combinations of facts and of ideas which every system of law must recognise, and certain modes of regarding facts which every such system requires. The proof is, that all legal systems require a variety of names, which are not in use for any other purpose. Whoever has apprehended the full meaning of these names—that is, whoever perfectly understands the facts and the combinations of thoughts which cthe namesc denote—is a master of juristical knowledge; and a well-made lexicon of the legal terms of all systems would be a complete science of jurisprudence: for the objects, whether natural or artificial, with which law has to do, must be the same objects which it also has occasion to name.
But to conceive distinctly a great mass of objects, partly resembling and partly differing from one another, they must be classed; and to make any set of practical provisions, which cover a large field, definite and intelligible, they must be presented to the mind on some principle of arrangement, grounded on the degree of their connexion and alliance with one another. The details of different legal systems are different, but there is no reason why the main classifications and heads of arrangement should not be in a great measure the same. The facts of which law takes cognisance, though far from being identical in all civilised societies, are sufficiently analogous to enable them to be arranged in the same cadres. The more general of the terms employed for legal purposes might stand for the same ideas, and be expounded by the same definitions, in systems otherwise different. The same terminology, nomenclature, and principle of arrangement, which would render one system of law definite, clear, and (in Bentham’s language) cognoscible,[*] would serve, with additions and variations in minor details, to render the same office for another.
Such a result, however, has not been attained by the mode in which existing bodies of law have been formed. Laws having in general been made singly, and their mass having grown by mere aggregation, there has usually been no authoritative arrangement but the chronological one, and no uniform or predetermined phraseology, even in the case of statute law; while in many countries, and pre-eminently in England, the greater portion of the law, the part which serves as the basis for all the rest, does not exist at all in the form of general language, but lies imbedded in judicial decisions; of which even the general principle has to be evolved by abstraction, and made the subject of forensic disputation, when the time comes for applying it. Whatever definiteness in detail, and whatever order or consistency as a whole, has been attained by any established system, has in almost all countries been given by private writers on law. All the generalizations of legal ideas, and all explicit statements of the meaning of the principal legal terms, have, speaking generally, been the work of these unauthorized persons—have passed from their writings into professional usage, and have ended by being, either expressly, or oftener by implication, adopted by governments and legislatures. So far as any great body of law has been systematized, this is the mode in which the work has been done; and being done piecemeal, by persons often ill-prepared for the task, and who had seldom any other object in view than the convenience of professional practice, it has been, as a general rule, done very ill. Instead of classing objects together which agree in their main features, or in the points which are of chief importance to the ends of law, the classes formed consist of things which have either no common qualities, or none but such as are common to them with other things. When the bond of connexion is real, it seldom lies in the things themselves, but usually in the historical accidents of the particular body of laws. In actual systems of law “most of the leading terms” (it is truly said by Mr. Austin) “are not names of a definite class of objects, but of a heap of heterogeneous objects.”*
The only mode of correcting this evil, is to free from confusion and set in a clear light those necessary resemblances and differences, which, if not brought into distinct apprehension by all systems of law, are latent in all, and do not depend on the accidental history of any. These resemblances and differences, while they are the key to all others, are evidently those which, in a scientific point of view, are alone worth understanding in themselves. They are also those which are alone fit to be made use of as the groundwork of a scientific arrangement. The fact that they exist in all legal systems, proves that they go deeper down into the roots of law than any of those which are peculiar to some one system. That the main divisions of the subject should be grounded on these, follows from the first principle of classification, that the general should take precedence of the special: and as they are common to all systems, or to all which are of any scientific importance, the parts of any given system which are peculiar to it will still find, in this arrangement, a proper place in which to lodge themselves; which would not happen if the main arrangement were itself grounded on distinctions purely historical, and belonging only to a particular system.
To clear up these general notions is, therefore, the direct object of the science of jurisprudence, as conceived by Mr. Austin. And the practical result of the science, if carried to the greatest perfection of which it is susceptible, would be to provide, first, such a legal terminology (with a strict and precise meaning attached to every word and phrase) that any system whatever of law might be expressed in it; and next, such a general scheme of arrangement, that any system whatever of law might be distributed according to it; and that when so expressed and distributed, every part of it would be distinctly intelligible, and each part would assist the comprehension of all the rest. Jurisprudence, thus understood, is not so much a science of law, as of the application of logic to law. But by affording a clear and connected view of the whole field of law—illuminating it by large, comprehensive, and exactly discriminated conceptions—and enabling every legal dfactd to be classed at once with those with which it has the nearest alliance, it bestows on the student either of the philosophy of law, or of any existing legal system, a command over the subject such as no other course of study would have made attainable.
In the attempt to investigate, and bring out into scientific clearness, the conceptions and distinctions of general jurisprudence, Mr. Austin has built chiefly on the foundation of the Roman law. This has been a cause of disappointment to some earnest students, who expected, and would have preferred, something more decidedly original. The course, however, which Mr. Austin deliberately adopted, admits, we conceive, of full justification. If the conceptions and distinctions which he sought belong to law in general, they must exist in all bodies of law, either explicitly or latently, and might, in strictness, be evolved from any. By stripping off what belongs to the accidental or historical peculiarities of the given system, the elements which are universal will be more surely and completely arrived at, than by any process of construction à priori; and with the additional advantage of a knowledge not confined to generals, but including under each generalization a large acquaintance with the concrete particulars contained in it. If this be so, the legal system which has been moulded into the shape it possesses by the greatest number of exact and logical minds, will necessarily be the best adapted for the purpose; for, though the elements sought exist in all systems, this is the one in which the greatest number of them are likely to have been brought out into distinct expression, and the fewest to remain latent. And this superiority is possessed, beyond question, by the Roman law. The eminent systematizing genius of the Roman jurists, and not any over-estimate of the Roman law considered in itself, determined Mr. Austin to make it the basis of his own investigations, as is evident from many passages, and from the following especially:
Much has been talked of the philosophy of the Roman Institutional writers. Of familiarity with Grecian philosophy there are few traces in their writings, and the little that they have borrowed from that source is the veriest foolishness for example, their account of Jus Naturale, in which they confound Law with animal instincts—Law, with all those wants and necessities of mankind which are causes of its institutions.
Nor is the Roman law to be resorted to as a magazine of legislative wisdom. The great Roman Lawyers are, in truth, expositors of a positive or technical system. Not Lord Coke himself is more purely technical.[*] Their real merits lie in their thorough mastery of that system; in their command of its principles, in the readiness with which they recall, and the facility and certainty with which they apply them.
In consequence of this mastery of principles, of their perfect consistency (elegantia), and of the clearness of the method in which they are arranged, there is no positive system of law which it is so easy to seize as a whole. The smallness of its volume tends to the same end.
The principles themselves, many of them being derived from barbarous ages, are indeed ill fitted to the ends of law, and the conclusions at which they arrive, being logical consequences of their imperfect principles, necessarily partake of the same defect.
([On the] Study of Jurisprudence, pp. 17-19.)*
Mr. Austin, therefore, was justified in seeking for the constituent elements of universal jurisprudence where they were certain to be found, and where (from the superior quality of the minds which had been employed on the system) more of those elements had been explicitly recognised, and adopted into the scientific arrangement of the law itself, than in any other legal system. There remains, it is true, a question belonging to a later stage of the inquiry: did the Roman jurists select as the foundation of their technology and arrangement those among the conceptions and distinctions of law universal which were best fitted for the purpose? Mr. Austin seems to think that they did; since his own arrangement is merely theirs in an improved form. We shall presently give our reasons for thinking that, with great merits, the arrangement of the Roman jurists has great faults; that, in taking as the ground of their entire system the classification of rights, they adopted a principle suited only to what Bentham called the substantive law,[*] and only to the civil branch of that, and, in so doing, reversed the order of filiation of juristical conceptions, and missed the true aim of scientific classification. But this, though a very important, is still a secondary consideration. To find the absolutely best systematic order for a body of law, would be the ultimate result of a complete science of jurisprudence; but its main problem is to give clearness, precision, and consistency to the juristical conceptions themselves. What Mr. Austin has done towards this object, constitutes the great permanent worth of his speculations, considered as substantive results of thought. No one thoroughly versed in these volumes need ever again miss his way amidst the obscurity and confusion of legal language. He will not only have been made sensible of the absence of meaning in many of the phrases and dogmas of writers on law, but will have been put in the way to detect the true meaning, for which those phrases are the empty substitute. He will have seen this done for him in the Lectures, with rare completeness, in regard to a great number of the leading ideas of jurisprudence, and will have served an apprenticeship, enabling him with comparative ease to practise the same operation upon the remainder.
The Course of Lectures, which occupies the greatest part of these volumes, was never completed. The first eleven lectures, condensed (or rather enlarged) into six, form the original volume, lately republished. The remainder have never before appeared in print, but left an indelible impression on the minds of those who heard them delivered, among whom were an unusual number of persons since distinguished as among the foremost minds of the time. Though the Lectures do not conclude the subject, yet, with the loose and unfinished but rich and suggestive memoranda which have been very properly subjoined to them, they fill up the greatest part of the outline given in the first volume; so that, when taken in conjunction with that outline, and with the important and elaborate notes appended to the tables which Mr. Austin prepared of the various known arrangements of the field of law, they give something like an adequate idea of the mode in which he would have treated the entire subject. We may add that, notwithstanding the fragmentary nature of the latter part of these volumes, they will be found, on the whole, easier reading (if that epithet can be applied to anything worth reading on such a subject) than the work already so highly prized by those for whom it was intended.[*] This is an effect of that peculiarity of Mr. Austin’s mind, which made his first drafts always more fitted for popularity than his finished performances. For, in deliberate scientific exposition, he was so rigid in his demands on himself, so intolerant of anything short of absolute completeness, so impatient while the slightest shadow rested upon any part of the field he surveyed, that he was apt to overlay his work with excess of matter, and, by the elaboration which he bestowed on minor points, weakened the general effect of his elucidation of those which were greater. But this, while it necessarily diminished the popularity of his writings, added to their intrinsic value. Where most men would have permitted themselves to pass lightly over some detail or difficulty, he developed it at full length; but it was because he well knew that unless the point were cleared up, the matter in hand could not be understood thoroughly. Those who pass on their way leaving dark corners unexplored, and concern themselves only with as much of the subject as lies straight before them, often through that neglect miss the very key of the position. Absence of light and shade, and uniformity of distance, bringing all objects alike into the foreground, are fatal defects in describing things for merely artistic purposes; but Mr. Austin’s delineations are like geometrical line-drawing, not intended to exhibit objects in their most impressive aspect, but to show exactly what they are. Whether it would have been possible, by greater artifice of composition, to have somewhat relieved the tension of mind required by the length and intricacy of the fifth and sixth chapters of The Province of Jurisprudence:[†] whether somewhat more of rhetoric, in the elevated sense in which the word was understood by Aristotle,[‡] might have conciliated an easier reception for their severe logic—those who have best learnt from experience the extreme difficulty of such a task will be the most backward to decide. But we feel certain that any competent student of the subject who reads those chapters once, will read them repeatedly, and that each reading will raise higher his estimate of their substance, and reconcile him more, if he ever needed reconciliation, with their manner.
In the very summary view which can alone be taken of the contents of the work, a few words must be premised on the introductory portion, although epublished many years earliere ; the rather, as it affords an apt exemplification of what we have said concerning the object and character of the entire treatise. The inquiry into the Province of Jurisprudence may be correctly characterized as being from one end to the other an analysis and explanation of a word. It is an examination of what is meant by a law, in the political or juristical sense of the term. And yet it is as far from being a merely verbal discussion, as the inquiry into the meaning of justice, which is the foundation of the greatest and most renowned of the writings of Plato.[*] For the meaning of a name must always be sought in the distinctive qualities of the thing named; and these are only to be detected by an accurate study of the thing itself, and of every other thing from which it requires to be distinguished.
A law is a command. A command is an expression of desire, issuing from a superior, and enforced by a sanction, that is, by something of the nature of a punishment. Law, however, does not mean every command, but only commands which oblige generally—which oblige to acts or forbearances of a class, not to an act or forbearance individually determined. These several notions having been duly analysed and illustrated, various objects are brought to view, which do not possess all the attributes of a law, but which, bearing a certain analogy to laws, require to be distinguished from them. And even within the limits of the strict meaning of the term, the laws which are the subject of jurisprudence require to be distinguished from laws in the same logical sense but of a different species—namely, divine laws, or the laws of God. The region which these different inquiries travel over is large and important, including the following as its principal parts:
First, the laws of God. Of the six lectures, or chapters, composing the volume, three[†] are occupied in the inquiry, by what means the will of God, concerning the rules of conduct to be observed by his rational creatures, is to be ascertained—ascertained, that is, so far as it has not been revealed, or, if revealed, requires ulterior inquiry respecting the sense intended by the revelation. The author discusses at considerable length the two rival theories on this subject, that of utility, and that of the moral sense; of the former of which he is an earnest supporter, and has given a most able and instructive defence.[*] His treatment is sometimes such as might suggest the idea that he regarded the binding force of the morals of utility as depending altogether upon the express or implied commands of God. This, however, is a mere appearance, arising from the particular point of view to which he was limited by the nature of his subject. What is called the moral law, was only related to the Law of which Mr. Austin was treating, in so far as it might be considered to possess the distinctive character of laws proper, that of being the command of a superior. If he could have been suspected of encouraging a mere worship of power, by representing the distinction of right and wrong as constituted by the Divine will, instead of merely recognised and sanctioned by it, the supposition would have been conclusively rebutted by a passage at page 116n: “If the laws set by the Deity were not generally useful, or if they did not promote the general happiness of his creatures, or if their great Author were not wise and benevolent, they would not be good, or worthy of praise, but were devilish and worthy of execration.”
The laws with which jurisprudence is conversant, having been distinguished from divine laws, have next to be discriminated from what are called laws only by way of analogy—rules prescribed and sanctioned only by opinion: to which Mr. Austin, by a happy extension of the term Positive as applied to law, gives the name of Positive Morality,[†] meaning the moral opinions and sentiments actually prevailing in any given society, as distinguished from Deontology, or morality as it ought to be. Of this character is much that is commonly (to the great confusion of the minds of students) called by the name of Law. What is termed Constitutional Law is, in part, only maxims of morality, considered proper to be observed towards one another by the component members of the sovereign body. But the strongest case is that of International Law, which, as independent nations are not subject to any common political superior, ought not to be termed Law, but Positive International Morality. It is law only in as far as effect is given to its maxims by the tribunals of any particular country; and in that capacity it is not international law, but a part of the particular law of that country.
Lastly, laws properly so called have to be distinguished from laws which are such only in a metaphorical sense—the laws of nature as the expression is understood by physical inquirers, meaning the uniformities of co-existence or succession in the phenomena of the universe. That an ambiguity like this should ever have misled any one—that what are laws only by a metaphor, should be supposed to be laws in the same sense as those which are really the commands of a superior—would hardly à priori have appeared probable, yet this confusion is total in the majority of modern writers; among whom Mr. Austin mentions Hooker, Blackstone, and Montesquieu in his celebrated first chapter, which is even now regarded by most French thinkers as profound philosophy.[*] In our own country we are frequently warned by a certain class of writers against disobeying or violating the physical laws of organic life; as if it were not the very meaning of a physical law, that it may be unknown or disregarded, but cannot possibly be violated.
These distinctions, with the many important considerations into which they branch out, bring us to the end of the fifth chapter. The sixth is employed in giving precision to the remainder of the conceptions involved in a law in the positive sense (a law emanating from a sovereign or political superior), by clearing up the meaning of sovereignty, and independent political society; involving incidentally the whole subject of constitutional organization, and the division of the sovereignty among several members; also that of subordinate governments, of federations, and all the various relations in which one political society can stand to another.
In the Lectures newly published, the first subject treated is the most general of all those which come within the scope of jurisprudence—the nature and meaning of Rights (understanding thereby legal rights), and of legal Duties or Obligations. In order to treat of this subject, it was necessary to define certain notions, which are involved in all cases of rights and duties—the notions of person, thing, act, and forbearance. These, accordingly, are the first matters with which the author deals; and he criticizes various cases of confusion of thought or misuse of language on these subjects, in the writings of jurists.
All rights, as he observes, are rights to acts or forbearances, either on the part of persons generally, or of particular persons. When we talk of our right to a thing, we mean, if the thing is in our possession, a right to the forbearance of all persons from taking it, or disturbing us in its enjoyment. If it is in the possession of some other person, we mean a right to an act or forbearance of that person—the act of delivering it to us, or forbearance on his part from detaining it. It is by commanding these acts and forbearances that the law confers the right; and the right, therefore, is essentially and directly a right to them, and only indirectly to the thing itself.
Right is correlative with legal duty or obligation. But though every right supposes a correlative obligation—though the obligation properly constitutes the right—every obligation does not create a right correlative to it. There are duties or obligations which are not relative, but (as the phrase is) absolute. The act commanded is not to be done, or the forbearance observed, towards or in respect to a determinate person; or, if any, not a person distinct from the agent himself. Such absolute duties comprise, first, what are called duties towards oneself. The law may forbid suicide or drunkenness; but it would not be said, by so doing, to give me a right to my life or health as against myself. Secondly, duties towards persons indefinitely, or towards the sovereign or state; such as the political duties of a citizen, which do not correspond to any right vested in determinate individuals. Lastly, duties which do not regard persons—the duty, for instance, of abstaining from cruelty to the lower animals; and religious duties as such, if the law, most improperly, thinks fit to enforce them.
From a comparison between duties which correspond to rights, and duties which have no corresponding rights, and also from a brief review of the different kinds of rights, Mr. Austin endeavours to collect a general definition of a legal right. He rejects the definitions usually given, as not applicable to all cases. He is of opinion that rights have very few properties in common, and that “all that can be affirmed of rights, considered universally, amounts to a brief and barren generality.”* The only definition of a right which he finds himself able to give, is, that whenever a legal duty is to be performed towards or in respect of some determinate person, that person is invested with a right.[*] The idea of a legal right involves, in his opinion, nothing more.
This is one of the points (extremely few, considering the extent and intricacy of the subject) on which we cannot help thinking that Mr. Austin’s analysis falls short of perfect exhaustiveness.
Mr. Austin always recognises, as entitled to great consideration, the custom of language—the associations which mankind already have with terms, insomuch that, when a name already stands for a particular notion (provided that, when brought out into distinct consciousness, the notion is not found to be self-contradictory), the definition should rather aim at fixing that notion, and rendering it determinate, than attempt to substitute another notion for it. A definition of right, so wide and general as that of Mr. Austin, does not, as it appears to us, stand this test. It does not satisfy the conception which is in everyone’s mind, of the meaning of the word right. Almost every one will feel that there is, somehow, an element left out; an element which is approximately, though perhaps imperfectly, expressed by saying, that the person who has the right, is the person who is meant to be benefited by the imposition of the duty.
In the Lectures as delivered (which included much extemporaneous matter, not preserved in the publication) Mr. Austin anticipated this obvious objection, and combated it. The notion of a right as having necessarily for its purpose the benefit of the person invested with it, is contradicted, he said, by the case of fiduciary rights. To these he might have added (and probably did add) the rights of public functionaries—the judge, for instance, or the policeman; which are not created for the benefit of the judge or policeman themselves. These examples are conclusive against the terms of the particular definition contended against; but it will appear, from two considerations, that they do not fully dispose of the subject.
In the first place, Mr. Austin’s own definition is amenable to a similar, though contrary, criticism. If the definition which he rejected does not comprise all rights, his own comprises more than rights. It includes cases of obligation to which he himself must have admitted that there were no rights corresponding. For example, the legal duties of jailers. It is a jailer’s duty to feed the prisoners in his custody, and to this duty corresponds a correlative right in the prisoners. But it is also his legal duty to keep them in confinement, perhaps in bodily fetters. This case is strictly of the kind contemplated in Mr. Austin’s definition of a right; there is a duty to be performed, towards, or in respect to, a determinate person or persons; but would it be said that a corresponding right resided in those persons, or, in other words, that they had a right to be imprisoned, and that their right would be violated by setting them at liberty? Again, it is the duty of the hangman to inflict capital punishment upon all persons lawfully delivered to him for that purpose; but would the culprit himself be spoken of as having a right to be hanged? Certainly not. And the reason is one which Mr. Austin fully recognises. He says, in one place, that “a right in a condition which is purely burthensome is hardly conceivable;”* and, in another, that “a right to a burthen, or to vindicate the enjoyment of a burthen,” is “an absurdity.”† He also, with writers in general, speaks of many obligations as existing for the sake of the correlative rights.‡ If this is a correct expression, there is more in the idea of a right, than an obligation towards or in respect to a given person; since an obligation cannot exist merely in order that there may be a person towards or in respect to whom it exists.
The truth is, that it is not customary to speak of a person as having a right to anything which is not, in the contemplation of the legislator, a desirable thing; and it is always assumed that the person possessing the right is the person specially interested in enforcing the duty which corresponds to it. Mr. Austin, no less than others, makes this supposition, when, in the common language of jurists, he says, that when a duty is violated, the person who has the right is wronged or injured by the violation.[*] This desirableness of the right, and this especial vocation on the part of the possessor to defend it, do not necessarily suppose that the right is established for his particular advantage. But it must either be given to him for that reason, or because it is needful for the performance of his own legal duties. It is consistent with the meaning of words to call that desirable to us, which is required for the fulfilment of our duties. The alternative covers the case of fiduciary rights, the rights of magistrates, and we think every case in which a person can, consistently with custom and with the ends of language, be said to have a right. And, including all such cases, and no others, it seems to supply what is wanting to Mr. Austin’s definition. We submit it therefore to the consideration of his readers.
The analysis of right and duty is not complete without an analysis of wrong or injury—the violation of a duty or of a right. And in order to clear up all that is included in the notion of wrong or injury, it is necessary “to settle the meaning of the following perplexing terms—viz. will, motive, intention, and negligence; including in the term negligence those modes of the corresponding complex notion which are styled temerity or rashness, imprudence or heedlessness.”* These topics comprise the whole theory of the grounds of imputation, in other words, the generalia of criminal or penal law. How much bad law, and bad philosophy of law, have arisen from imperfect comprehension of them, may be seen in the nonsense of English law writers concerning malice. The full elucidation of them by our author occupies a considerable space,[*] and our limits are inconsistent with even the briefest abstract of it. Mr. Austin’s special vocation for “untying knots,” which would have fitted him as well for the problems of inductive psychology as for those of jurisprudence, is nowhere called into more successful exercise. Without a single metaphysical subtlety, there cannot be a more happy example than he here affords of metaphysical analysis.
With the idea of wrong, that of sanction is inseparably bound up, and after settling the meaning of sanction in its largest sense, Mr. Austin examines the two kinds into which sanctions are divided—namely, civil and criminal,[†] or, as they are sometimes called, private and public. Whoever has even the most superficial acquaintance with the writings of criminalists, knows what a mass of vague and confusing speculation this distinction has given birth to, though, as pointed out by Mr. Austin,[‡] the real difference between civil injuries and crimes consists only in this, that in wrongs of the former class the sanction is enforced at the instance and discretion of the injured party, who has the power of remitting the liability incurred by the wrongdoer; while, when the offence is called a crime (which only means that the procedure is of the kind called criminal), the sanction is enforced at the discretion of the sovereign or state, by whom alone the liability of the wrongdoer can be remitted. This case is an instance of the mode in which a confused apprehension of juristical ideas, in themselves not at all difficult of comprehension, reacts mischievously on practical legislation. The unhappy idea of classifying wrongs according to a difference which exists only in the modes appointed for redressing them, has raised up a notion in English lawyers that there is a distinction between civil injuries and crimes considered per se, which makes damages the proper remedy for the one, and punishment for the other. And hence that serious defect in English law, by which punishment eo nomine, and damages to the injured party, cannot both be awarded in the same cause; while in France, on the contrary, the sufferers by the crime can always be admitted as parties civiles, and compensation to them is habitually a part of the sentence. In England, whenever the wrong is of so grave a character as to require punishment over and above the obligation of making amends, the injured party loses the indemnity which he would have been able to exact for a less heinous injury; and the penalty on the criminal is deprived of one of its uses, that of being instrumental to the redress of the particular evil which the crime has inflicted upon an individual.
With the twenty-eighth Lecture[*] Mr. Austin commences a new subject—Law considered with reference to its sources, and to the modes in which it begins and ends; involving the distinction between written and what is called unwritten law; the theory of customary law; the meaning of what is called equity; and the false metaphysical distinction drawn by the Roman lawyers and by nearly all modern jurists, between law natural and positive. These theoretical considerations involve, among other important consequences, the highly practical question of codification, or the reduction of the laws of any country into a compact body, expressed in fixed words, and conforming to a systematic arrangement. Whether we regard the importance of these subjects, or the mass of illogical, unphilosophical, and practically misleading speculation in which they have been enveloped, there is no part of the field of jurisprudence on which the value of precise and logical thought is more conspicuous. Mr. Austin was eminently fitted to supply it, both by the general quality of his intellect, and by that accurate special knowledge of the history of institutions and of juristical ideas, which he had in common with Mr. Maine; of whose masterly treatise also a great part of the value has reference to this cluster of subjects.
Even such apparently simple phrases as “written” and “unwritten” law, have their full share of the ambiguity which infects nearly the whole vocabulary of legal science. They are employed to express no less than three different distinctions. “Written law” is used, first, in its literal sense, to denote law which is put into writing at the time of its origin, as distinguished from “law originating in custom, or floating traditionally amongst lawyers.”[†] But this last so-called law is not really law until re-enacted by the legislature, or enforced judicially by the tribunals.
Secondly, written law, in what is called its juridical sense, means law made directly by the sovereign legislature, as distinguished from that which is made by subordinate legislatures, or by judicial tribunals. In this sense of the term, laws made by provincial or colonial legislatures are unwritten laws, as were also the edicts of the Roman praetors. But the laws made by the Roman emperors, not as legislators by their imperial constitutions, but as supreme judges by their rescripts, would be styled written law, because made directly by the sovereign.
Thirdly (and this is the most important distinction), written law is synonymous with statute law, or law made (whether by supreme or subordinate authorities) in the way of direct legislation. Unwritten law is judiciary law, or law made indirectly, in the way of judicial decision, either by the sovereign in a judicial capacity, or by a subordinate judge. The terms statutory law and judiciary law, being unambiguous, should be exclusively employed where this really fundamental distinction is to be expressed.
Mr. Austin next deals with the strange notion which has prevailed among the Roman and the majority of modern jurists, that customary law exists as law merely by being custom; that it is law not by the will of the legislature, but by the spontaneous act of those who practise it.[*] He exposes the absurdities involved in this notion, and shows that custom in itself belongs not to law, but at most to positive morality, binding only by moral sanctions—by the penalties of opinion. What was originally custom may become law, when either the legislature (supreme or subordinate) enacts a statute in conformity to the custom, or the tribunals recognise it, and enforce it by legal sanctions. In both these ways, custom, in all countries, is continually passing into law. But it has force as law solely by the authority of the sovereign legislator, who either shapes his direct commands in accordance with the custom, or lends his sanctions to the tribunals, which, in the discretion allowed them, annex those sanctions to the particular practice, and render obligatory what before was only voluntary.
The notion of writers on law, “that there are positive laws which exist as positive laws independently of a sovereign authority,”[†] is not limited to customary laws. It extends to the laws which, in the Roman system avowedly, and in all others really, are modelled on the opinions and practices of private lawyers. The Responsa Prudentum, and the treatises of institutional writers, gave birth to the whole body of law contained in the Pandects;[‡] and in England “much of the law of real property is notoriously taken from opinions and practices which have grown up, and are daily growing up, amongst conveyancers.”[*] The English tribunals (by what, when first employed, was an entirely indispensable artifice) keep up what Mr. Austin, with reference to present circumstances, justly calls the “puerile fiction,”[†] that these opinions and practices are mere evidence of law already established by custom. But they well know, and every lawyer knows, that the law thus introduced is really new, and, in the case which creates the first precedent, is even ex post facto; though not generally liable to the condemnation implied in that term, being commonly shaped for the purpose of fulfilling, not frustrating, the expectations presumed to have been entertained by the parties concerned.
The fact that there is law which the legislature has never expressly announced, but which is, with its tacit consent, made by tribunals which are not regularly authorized to enact law, but only to declare it, has thrown a vagueness over the whole idea of law, which has contributed greatly to obscure the distinction between it and positive morality. The error, that law exists as such independently of legal sanctions, appears in an aggravated shape in the notion that there exists a natural law—a law known by the light of nature, which does not emanate from legislators, but is nevertheless binding on tribunals, and may and ought to be by them enforced by reason of its natural obligation only. This Jus Naturale has, as Mr. Austin observes, “thoroughly perplexed and obscured the sciences of jurisprudence and ethics.”* As the notion admits only of an historical explanation, Mr. Austin deals with it substantially in the same manner as Mr. Maine.
He expounds the origin of the Jus Gentium of the early Roman lawyers,[‡] a different thing not only from international law, to which the term has been perversely transferred by modern jurists, but also from the Natural Law of modern writers on jurisprudence, though of this last it is the real progenitor. The jus gentium took its rise from the necessity in which the Romans found themselves, through the growth of their dominion, of administering justice to persons who were not Romans—to whom the laws provided for Roman citizens were not applicable, and who, belonging to different nations and communities, had originally different laws. Provincials of the same province retained, as between themselves, their old laws; but between a provincial and a Roman citizen, or between provincials of one province and those of another, it was neither convenient, nor would in most cases have been just, to decide disputes by a law which was not the law of both parties. The praetors, whose decision in such cases was probably at first arbitrary, were able to find many legal principles and provisions which were not peculiar to either people (as so much of the early Roman law was peculiar to the Romans) but were common to the laws of all or of many different communities. These principles and provisions there seemed no hardship in applying to cases between persons of what would now be called different nationalities. And where these did not furnish a rule exactly applicable to the case, the praetors were led to supply the deficiency by rules either derived from them by analogy, or suggested by a sense of substantial justice or expediency. In this manner arose the idea of a body of law not peculiar to one, but common to all nations, on which the praetors were supposed, and supposed themselves, to have fashioned the body of positive law which grew up under their hands. This law, being abstracted from the peculiarities both of the Jus Quiritium and of all other local and special bodies of law or custom, was, as might naturally be expected, of a more liberal character. It was less charged with technical and circuitous modes of proceeding, invented to evade conflict with local or accidental prejudice. It was less infected by the freaks of fancy which, as Mr. Austin observes, are “omnipotent with barbarians,”[*] but in which one barbarous people is not likely to agree with another. It might be said, by comparison, to represent that portion of all systems, which arose from the wants and feelings of human nature generally. Being, for this reason, as well as from its originating in a more civilized period, far preferable to the old Roman law, it became the model on which the praetors, by their edicts, gradually modified the old law itself, and finally (though not till after many centuries), almost entirely substituted itself for the original Roman law. The provisions of the more liberal jus gentium, applied by the praetors as modifying principles to the old law, obtained the name of Aequitas, or equity: an appellation which became extended to the somewhat similar process by which the Court of Chancery for ages employed itself in supplying the omissions and mitigating the barbarities of the feudal laws of England. The explanation and elucidation of this one word Equity, in the many senses in which it is used by jurists, forms the subject of several of Mr. Austin’s lectures.[†] Both historically and philosophically, they are among the most interesting parts of the Course, though much of the matter they contain, when once stated, appears so obvious, that one is apt to forget how often and by what esteemed authorities it has been misunderstood.*
Now it was this Roman idea of a jus gentium, or portion of law common to all nations, which grew insensibly into the modern idea of Natural Law. “The jus Naturale, or law of nature,” as Mr. Maine observes, “is simply the jus gentium seen in the light of a peculiar theory.”* That theory, as both he and Mr. Austin remark, was derived from the precept “Live according to Nature” of the Greek philosophical schools.[*]
After Nature had become a household word in the mouths of the Romans, the belief gradually prevailed among the Roman lawyers that the old jus gentium was in fact the lost code of Nature, and that the praetor, in framing an Edictal Jurisprudence on the principles of the jus gentium, was gradually restoring a type from which law had only departed to deteriorate.†
Being observed or recognised universally, these principles were supposed to have a higher origin than human design, and to be (we quote Mr. Austin) “not so properly rules of human position or establishment, as rules proceeding immediately from the Deity himself, or the intelligent and rational Nature which animates and directs the universe.”‡ This notion, once formed, was, by an obvious process, so enlarged as to include merely moral or merely customary rules which had obtained general acceptance; “every rule, in short, which is common to all societies, though the rule may not obtain as positive law in all political communities, or in any political community.”§ In this manner the Natural Law of modern writers was extended to those international usages, and those rules of international morality, which obtained generally among nations. And by a similar process each writer was led to include in his scheme of Natural Law, whatever maxims of justice or utility approved themselves to him as an individual moralist, provided they appeared to be at once self-evident and universal. The writings which profess to treat of the Law of Nature and Nations are a chaos of all these materials. “In studying these writers,” says Mr. Maine, “the great difficulty is always to discover whether they are discussing law or morality—whether the state of international relations they describe is actual or ideal—whether they lay down that which is, or that which in their opinion ought to be.”¶ This arose from the confused apprehension of the very meaning of law, engendered by their notion of a Law of Nature according to which what in their opinion ought to be law, was conceived as being, in some strange manner, law already. By this confusion they have spread a thick fog over the distinctions and demarcations which separate the three different notions, positive law, positive morality, and deontology, or morality as it ought to be.
The influence of the imaginary Law of Nature over modern thought has been all-pervading; on the whole, however, still greater on the Continent than in England. Mr. Maine very truly affirms, that “the theory of natural law is the source of almost all the special ideas as to law, politics, and society, which France during the last hundred years has been the instrument of diffusing over the western world. The part” (he continues) “played by jurists in French history, and the sphere of jural conceptions in French thought, have always been remarkably large;”* and in the latter half of the last century, when other old modes of thought were breaking up, the calamitous influence of Rousseau (calamitous at least in this respect) became powerfully operative in strengthening this particular delusion. Coleridge, in the Friend, has maintained, with much force of argument, that the thrusting of immutable principles of morality into the province of law, and assuming them as the only legitimate basis of politics, is the essence of Jacobinism.[*] It is the essence not specially of that, but of a general mode of thought which prevails among French thinkers of all political opinions. As a general rule, French speculation knows no distinction or barrier between the province of morals and that of politics or legislation. While, on the one hand, it tends to impose on morals (for this, however, Catholic thought and the influence of the Canonists are partly responsible) all the formality and literalness of juridical rules; on the other, it invests the creations of pure legal institution—the law of property for example—with the sacredness and indefeasibility of the fundamental doctrines of morals; and cannot bear to discuss such a question, for instance, as copyright, on grounds of general expediency, but insists on clenching it by affirming or denying an assumed absolute right in authors to hold the produce of their brain, by themselves or their representatives, as permanent property to the end of time.
The influence, for good and for evil, of the theory of a Law of Nature, is delineated by Mr. Maine more fully than was compatible with Mr. Austin’s more extensive design. There is no doubt that for a long period the good side of the influence predominated. It assisted mankind in disencumbering themselves from a superstititous reverence for the institutions which had historically grown up in their several countries. It accustomed them to test particular laws by general principles of some sort, and gave them a type of excellence of which simplicity and symmetry were among the supposed characteristics. Finally, it disregarded all distinctions between man and man, between citizen and foreigner, noble and burgess, burgess and peasant; and Mr. Maine is of opinion “that to the assumption of a Law Natural we owe the doctrine of the fundamental equality of human beings.”[†] When almost everything which was artificial was oppressive, the reaction in favour of what was supposed to be natural had a healthy tendency, though we now know that the real natural state (if natural means primitive), instead of being the reign of justice and freedom, is a condition of more universal tyranny than any form whatever of civilized life. But whatever power of liberalizing men’s minds may once have belonged to the doctrine of Natural Law, that power is now exhausted; the doctrine has done all it can do in that direction, and its remaining influence serves only to make men greater bigots, not indeed to the peculiar vices of any given system, but to whatever vices have existed from the beginning in them all. Meanwhile, the theory of law must be a mass of contradiction as long as the imaginary Natural Law retains any authority in it; for as every actual system of law has been shaped out by conflicting instincts, a theory generalized from what they have in common is necessarily full of conflicting principles, and affords, on both sides of every controverted point, arguments which, if the theory be granted, are all equally unanswerable.
In the thirty-seventh Lecture[*] Mr. Austin commences discussing the differences which distinguish statute from judiciary law; the advantages and disadvantages of judicial legislation, and the possibility and desirableness of excluding it for the future, and converting all judiciary law into statute—in other words, codification. From this excellent discussion we shall permit ourselves, in consideration of its great practical moment, to give a longer quotation than we have ventured to make from any other portion of the Course. It is taken from the place in which, after remarking on some disadvantages erroneously attributed to judiciary law, Mr. Austin points out the evils which are really inherent in it.
First: A judiciary law (or a rule of judiciary law) exists nowhere in fixed or determinate expressions. It lies in concreto, or it is implicated with the peculiarities of the particular case or cases, by the decision or decisions whereon, the law or rule was established. Before we can arrive at the rule, we must abstract the ratio decidendi (which really constitutes the rule) from all that is peculiar to the case through which the rule was introduced, or to the resolution of which the rule was originally applied. And in trying to arrive at the rule by this process of abstraction and induction, we must not confine our attention to the general positions or expressions which the judicial legislator actually employed. We must look at the whole case which it was his business to decide, and to the whole of the discourse by which he signified his decision. And from the whole of his discourse, combined with the whole of the case, we must extract that ratio decidendi, or that general principle or ground, which truly constitutes the law that the particular decision established.
But the process of abstraction and induction to which I now have alluded, is not uncommonly a delicate and difficult process, its difficulty being proportioned to the number and the intricacy of the cases from which the rule that is sought must be abstracted and induced. Consequently, a rule of judiciary law is less accessible and knowable than a statute law. . . . And it must be recollected, that whether it be performed by judges applying the rule to subsequent cases, or by private persons in the course of extra-judicial business, this delicate and difficult process is commonly performed in haste. Insomuch that judges in the exercise of their judicial functions, and private persons in their extra-judicial transactions, must often mistake the import of the rule which they are trying to ascertain and apply.
And this naturally conducts me to a second objection: namely, that judiciary law (generally speaking) is not only applied in haste, but is also made in haste. It is made (generally speaking) in the hurry of judicial business, and not with the mature deliberation which legislation requires, and with which statute law is or might be constructed. . . .
There is more of stability and coherency in judiciary law than might, at the first blush, be imagined. But though it be never so stable and never so coherent, every system of judiciary law has all the evils of a system which is really vague and inconsistent. This arises mainly from two causes, the enormous bulk of the documents in which the law must be sought, and the difficulty of extracting the law (supposing the decisions known) from the particular decided cases in which it lies imbedded.
By consequence, a system of judiciary law (as every candid man will readily admit) is nearly unknown to the bulk of the community, although they are bound to adjust their conduct to the rules or principles of which it consists. Nay, it is known imperfectly to the mass of lawyers, and even to the most experienced of the legal profession. A man of Lord Eldon’s legal learning, and of Lord Eldon’s acuteness and comprehension, may know where to find the documents in which the law is preserved, and may be able to extract from the documents the rule for which he is seeking. To a man, therefore, of Lord Eldon’s learning, and of Lord Eldon’s acuteness, the law might really serve as a guide of conduct. But by the great body of the legal profession (when engaged in advising those who resort to them for counsel), the law (generally speaking) is divined rather than ascertained. And whoever has seen opinions even of celebrated lawyers, must know that they are often worded with a discreet and studied ambiguity, which, whilst it saves the credit of the uncertain and perplexed adviser, thickens the doubts of the party who is seeking instruction and guidance. And as to the bulk of the community—the simple-minded laity (to whom, by reason of their simplicity, the law is so benign)—they might as well be subject to the mere arbitrium of the tribunals, as to a system of law made by judicial decisions. A few of its rules or principles are extremely simple, and are also exemplified practically in the ordinary course of affairs. Such, for example, are the rules which relate to certain crimes, and to contracts of frequent occurrence. And of these rules or principles, the bulk of the community have some notion. But those portions of the law which are somewhat complex, and are not daily and hourly exemplified in practice, are by the mass of the community utterly unknown, and are by the mass of the community utterly unknowable. Of those, for example, who marry, or of those who purchase land, not one in a hundred (I will venture to affirm) has a distinct notion of the consequences which the law annexes to the transaction.
Consequently, although judiciary law be really certain and coherent, it has all the mischievous effect (in regard to the bulk of the community) of ex post facto legislation. Unable to obtain professional advice, or unable to obtain advice which is sound and safe, men enter into transactions of which they know not the consequences, and then (to their surprise and dismay) find themselves saddled with duties which they never contemplated.
The ordinary course is this:—
A man enters into some transaction (say, for example, a contract) either without advice, or with the advice of an incompetent attorney.
By consequence, he gets into a scrape
Finding himself in a scrape, he submits a case, through his attorney, to counsel
And, for the fee to attorney and counsel, he has the exquisite satisfaction of learning with certainty that the mischief is irremediable
[I am far from thinking, that the law ever can be so condensed and simplified, that any considerable portion of the community may know the whole or much of it
But I think that it may be so condensed and simplified, that lawyers may know it and that at a moderate expense, the rest of the community may learn from lawyers beforehand the legal effect of transactions in which they are about to engage.
Not to mention (as I shall show, when I come to the rationale of the distinction between Law of Things and Law of Persons) that the law may be so arranged, that each of the different classes of persons may know something of the part of it with which they are particularly concerned.
Forms, too, for the more usual transactions might be made out by the legislature.]
The evil upon which I am insisting is certainly not peculiar to judiciary law. Statute law badly expressed, and made bit by bit, may be just as bulky and just as inaccessible as law of the opposite kind. But there is this essential difference between the kinds of law. The evil is inherent in judiciary law, although it be as well constructed as judiciary law can be. But statute law (though it often is bulky and obscure) may be compact and perspicuous, if constructed with care and skill.
Fifthly: I am not aware that there is any test by which the validity of a rule made judicially can be ascertained.
Is it the number of decisions in which a rule has been followed, that makes it law binding on future judges? Or is it the elegantia of the rule (to borrow the language of the Roman lawyers), or its consistency and harmony with the bulk of the legal system? Or is it the reputation of the judge or judges by whom the case or cases introducing the rule was decided? . . .
We never can be absolutely certain (so far as I know) that any judiciary rule is good or valid law, and will certainly be followed by future judges in cases resembling the cases by which it has been introduced.
Here, then, is a cause of uncertainty which seems to be of the essence of judiciary law. For I am not aware of any contrivance by which the inconvenience could be obviated.
Sixthly: In consequence of the implication of the ratio decidendi with the peculiarities of the decided case, the rule established by the decision (or the ratio, or the general principle of the decision) is never or rarely comprehensive. It is almost necessarily confined to such future cases as closely resemble the case actually decided although other cases more remotely resembling may need the care of the legislator. In other words, the rule is necessarily limited to a narrow species or sort, although the genus or kind, which includes that species or sort, ought to be provided for at the same time by one comprehensive law.
This is excellently explained by Sir Samuel Romilly.
“Not only is the judge, who at the very moment when he is making law, is bound to profess that it is his province only to declare it, not only is he thus confined to technical doctrines and to artificial reasoning—he is further compelled to take the narrowest view possible of every subject on which he legislates. The law he makes is necessarily restricted to the particular case which gives occasion for its promulgation. Often when he is providing for that particular case, or according to the fiction of our Constitution, is declaring how the ancient and long-forgotten law has provided for it, he represents to himself other cases which probably may arise, though there is no record of their ever having yet occurred, which will as urgently call for a remedy as that which it is his duty to decide. It would be a prudent part to provide, by one comprehensive rule, as well for these possible events, as for the actual case that is in dispute, and, while terminating the existing litigation, to obviate and prevent all future contests. This, however, is, to the judicial legislator, strictly forbidden; and if, in illustrating the grounds of his judgment, he adverts to other and analogous cases, and presumes to anticipate how they should be decided, he is considered as exceeding his province; and the opinions thus delivered are treated by succeeding judges as extra-judicial, and as entitled to no authority.”[*]
[Hence, exigencies of society provided for bit by bit, and therefore slowly.
Hence, further, immense volume of the documents in which the law is recorded. For in lieu of one comprehensive rule determining a genus of cases, we have many several and narrow rules severally determining the species which that genus includes.]
And this inconvenience (for a reason which I have noticed above)[*] is probably of the essence of judiciary law. So delicate and difficult is the task of legislation, that any comprehensive rule, made in haste, and under a pressure of business, would probably be ill adapted to meet the contemplated purpose. It is certain that the most experienced, and the most learned and able of our judges, have commonly abstained the most scrupulously from throwing out general propositions which were not as proximate as possible to the case awaiting solution: though the ratio decidendi (or ground or principle of decision) is necessarily a general position applying to a class of cases, and does not concern exclusively the particular case in question. . . .
Seventhly. Wherever much of the law is judiciary law, the statute law which coexists with it, is imperfect, unsystematic, and bulky.
For the judiciary law is, as it were, the nucleus around which the statute law is formed. The judiciary law contains the legal dictionary, or the definitions and expositions (in so far as such exist) of the leading technical terms of the entire legal system. The statute law is not a whole of itself, but is formed or fashioned on the judiciary law, and tacitly refers throughout to those leading terms and principles which are expounded by the judiciary.
Wherever, therefore, much of the law consists of judiciary law, the statute law is not of itself complete, but is merely a partial and irregular supplement to that judiciary law which is the mass and bulk of the system. The statute law is not of itself an edifice, but is merely a set of irregular unsystematic patches stuck from time to time upon the edifice reared by judges. . .
Wherever, therefore, much of the law consists of judiciary law, the entire legal system, or the entire corpus juris, is necessarily a monstrous chaos partly consisting of judiciary law, introduced bit by bit, and imbedded in a measureless heap of particular judicial decisions, and partly of legislative law stuck by patches on the judiciary law, and imbedded in a measureless heap of occasional and supplemental statutes.*
Since such [continues Mr. Austin] are the monstrous evils of judicial legislation, it would seem that the expediency of a Code, or of a complete or exclusive body of statute law, will hardly admit of a doubt. Nor would it, provided that the chaos of judiciary law and of the statute law stuck patchwise on the judiciary could be superseded by a good code. For when we contrast the chaos with a positive code, we must not contrast it with the very best of possible or conceivable codes, but with the code which, under the given circumstances of the given community, would probably be the result of an attempt to codify.[†]
The expediency of codification at a particular time and place depends on the question, “Are there men, then and there, competent to the task of successful codification?”[‡] The difficulty of the work no one feels more strongly, or has stated more emphatically, than Mr. Austin. He considers “the technical part of legislation incomparably more difficult than what may be styled the ethical,” holding it “far easier to conceive justly what would be useful law, than so to construct that same law that it may accomplish the design of the law-giver:”* an opinion which, in its full breadth of statement, we should hesitate to endorse. But it will readily be admitted that the two qualifications are different, that the one is no guarantee for the other, and that the talent which is merely instrumental is, in any high degree of perfection, nearly if not quite as rare as that to which it is subordinate.
The expediency, therefore, of codification in England and at the present time, Mr. Austin does not discuss; but he shows “the futility of the leading or principal arguments which are advanced against codification, considered generally or in abstract.”[*] Unhappily a great part of the matter which he delivered on this subject is missing from the manuscript. But its place is partly supplied by the abundant notes and memoranda relating to the subject, which have been found among his papers, and of which the “Notes on Codification,” appended to the third volume, are but a part.[†] We shall quote only one passage, which belongs to the Lectures, and is reproduced in the pamphlet on the Study of Jurisprudence. It is a reply to the common objection that statute law cannot include all cases. Mr. Austin shows that it can at least include all those which are covered by judiciary law.
The current objection to codification is the necessary incompleteness of a code. It is said that the individual cases which may arise in fact or practice are infinite, and that, therefore, they cannot be anticipated, and provided for, by a body of general rules. The objection (as applied to statute law generally) is thus put by Lord Mansfield in the case of Omichund and Barker. (He was then Solicitor-General.) “Cases of Law depend upon occasions which give rise to them. All occasions do not arise at once. A statute very seldom can take in all cases. Therefore the common law that works itself pure by rules drawn from the fountains of justice, is superior to an act of parliament.”[‡]
My answer to this objection is, that it is equally applicable to all law; and that it implies in the partisans of judiciary law (who are pleased to insist upon it) a profound ignorance, or a complete forgetfulness, of the nature of the law which is established by judicial decisions.
Judiciary law consists of rules, or it is merely a heap of particular decisions inapplicable to the solution of future cases. On the last supposition, it is not law at all and the judges who apply decided cases to the resolution of other cases, are not resolving the latter by any determinate law, but are deciding them arbitrarily.
The truth, however, is, that the general grounds or principles of judicial decisions are as completely law as statute law itself, though they differ considerably from statutes in the manner and form of expression. And being law, it is clear that they are liable to the very imperfection which is objected to statute law. Be the law statute or judiciary, it cannot anticipate all the cases which may possibly arise in practice.
The objection implies, that all judicial decisions which are not applications of statutes are merely arbitrary. It therefore involves a double mistake. It mistakes the nature of judiciary law, and it confounds law with the arbitrium of the judge. Deciding arbitrarily, the judge, no doubt, may provide for all possible cases. But whether providing for them thus be providing for them by law, I leave it to the judicious to consider.
If law, as reduced into a code, would be incomplete, so is it incomplete as not so reduced. For codification is the re-expression of existing law. It is true that the code might be incomplete, owing to an oversight of redactors. But this is an objection to codification in particular. . .
Repetition and inconsistency are far more likely, where rules are formed one by one (and, perhaps, without concert, by many distinct tribunals), than where all are made at once by a single individual or body, who are trying to embrace the whole field of law, and so to construct every rule as that it may harmonize with the rest.
And here I would make a remark which the objection in question suggests, and which to my understanding is quite conclusive.
Rules of judiciary law are not decided cases, but the general grounds or principles (or the rationes decidendi) whereon the cases are decided. Now, by the practical admission of those who apply these grounds or principles, they may be codified, or turned into statute laws. For what is that process of induction by which the principle is gathered before it is applied, but this very process of codifying such principles, performed on a particular occasion, and performed on a small scale? If it be possible to extract from a case, or from a few cases, the ratio decidendi, or general principle of decision, it is possible to extract from all decided cases their respective grounds of decisions, and to turn them into a body of law, abstract in its form, and therefore compact and accessible. Assuming that judiciary law is really law, it clearly may be codified.
I admit that no code can be complete or perfect. But it may be less incomplete than judge-made law, and (if well constructed) free from the great defects which I have pointed out in the latter. It may be brief, compact, systematic, and therefore knowable as far as it goes.
(Vol. II, pp. 374-7.)
The “Notes on Codification” contain, in substance, all that is required to meet any of the objections against codification generally, or in the abstract,* but their form is too completely that of a mere syllabus, to be acceptable to the general reader. We shall quote, however, as a specimen, and for its practical importance, one excellent passage, containing the author’s view of the real difficulties of codification, and the conditions necessary for rendering it advisable.
The great difficulty is, the impossibility that any one man should perform the whole. But if done by several, it would be incoherent, unless all were imbued with the same principles, and all versed in the power of applying them. The great difficulty, therefore, is to get a sufficient number of competent men, versed in common studies and modes of reasoning. This being given, codification is practicable and expedient.
Peculiarly technical and partial knowledge of English lawyers. No English lawyer is master even of English law, and has, therefore, no notion of that interdependency of parts of a system, on which its successful codification must depend.
A code must be the work of many minds. The project must be the work of one, and revised by a commission. The general outline, the work of one, might be filled up by divers.
All-importance in codification of the first intention. Till minds are trained, it will scarcely succeed. How the difficulty is to be surmounted. Necessity for men versed in theory, and equally versed in practice, or rather, of a combination of theorists and practitioners. Necessity for preliminary digests, or for waiting till successful jurists and jurisprudence are formed through effectual legal education.
(Vol. III, pp. 278-9.)
Having concluded the subject of Law in general, regarded under its different aspects, Mr. Austin proceeds to consider the parts of which a corpus juris is necessarily composed, and the mutual relations of those parts.[*] As already observed, he adheres in the main, though with some not unimportant improvements, to the classification and arrangement of the Roman law, or rather of its modern expositors, who have carried out the ideas of the classical jurists with a precision still greater than theirs.
Mr. Austin gives excellent reasons for rejecting their primary division, followed by most modern writers, into public and private law, and shows how the various parts which compose the former of these should be disposed of.* This being set aside, the leading division is into what are termed by the Roman lawyers, Law of Persons and Law of Things—jus personarum and jus rerum, strangely mistranslated by Hale and Blackstone into rights of persons and rights of things.[†] The original expressions are extremely ill-chosen, and have been an ignis fatuus to law writers, both in ancient and modern times. The Law of Persons (agreeably to one of the meanings of the word persona) is the law of Status or conditions—of the rights and obligations peculiar to certain classes of persons, on whom a peculiar legal stamp has been set. And, in contradistinction, the Law of Things is the law common to all persons, together with the peculiar laws relating to other classes of persons not so specially marked out from the rest. But this has seldom been properly understood by law writers. They have imagined that persons (personae), in this acceptation, meant persons in the ordinary sense—human beings; and forgetting that in this sense all law, and all rights and obligations, relate to persons, they supposed that the Law of Persons, as distinguished from that of Things, ought to contain all law which deals with those interests of persons which have no (or but slight) reference to things. Hence Blackstone places in the Law of Persons what he calls Absolute Rights, being those which belong to all persons without exception, such as the right to life, to personal security, to reputation—rights which, looked at from the point of view of the Roman lawyers, belong even more pre-eminently than any others to the Law of Things.[*]
Those jurists who have understood the meaning of the Roman lawyers more correctly than Blackstone, have exhausted their ingenuity in search of metaphysical reasons why some peculiarities of legal position have been accounted Status, and included in jus personarum, while others, equally marked and equally important, have been retained in the Law of Things. Mr. Austin minutely examines and criticizes these subtleties, and, after a full review of them, decides that the division has no logical or metaphysical basis at all.[†] It rests solely on convenience. Executors, heirs, trustees, proprietors, contractors, &c., are as much classes of persons as parents, guardians, infants, magistrates, and the like; yet they are never accounted status, and the laws which concern them are always included in the Law of Things. No reason can be given why the one group should, and the other should not, be detached from the general body of the law and placed apart, except that the laws relating to the one “have no necessary coherency with the bulk of the legal system,” and need not, generally speaking, be taken into consideration in order to understand the law as a whole; while the others “have such a coherency with the bulk of the legal system, that if they were detached from it the requisite continuity in the statement or exposition of it would be lost.”*
As much of the law, then, as relates to certain peculiar legal positions, is remanded to a separate branch, which naturally should be placed after the general law, or jus rerum. The Roman institutional writers, by placing the Law of Persons first, gave one among several proofs that even they had not a perfectly clear conception of the distinction which they had themselves drawn.
In proceeding to subdivide the Law of Things, Mr. Austin adopts from the Roman lawyers their principle of grounding the general division of the corpus juris upon a classification of rights. But he selects as his primary division of rights (and of the corresponding duties) a distinction not specially recognised by those writers.
The Roman lawyers primarily divided rights into jura in rem, or rights availing against all the world, and jura in personam, or rights availing against determinate persons only.‡ Of the former, the right of dominion or property is the most familiar instance. My right of ownership in a thing, is constituted by a duty or obligation imposed on all persons not to deprive me of the thing, or molest me in its enjoyment. Of rights in personam, the most prominent example is a right by virtue of a contract. If B has contracted with A to deliver certain goods, A has a right, answering to the legal obligation on B, but the right is against B alone. Until they are delivered, A has acquired no right to the goods as against other persons. If the goods came into the possession of a third party, through (for example) a wrongful resale by B, A would still have his original right as against B, and might have a right to damages besides, but he could not by process of law recover the goods themselves from the new possessor. A’s right, therefore, is not in rem, but in personam, meaning in personam determinatam. The distinction between these two classes of rights belongs to universal jurisprudence, for every system of law must establish rights of both kinds; and the difference between them is connected with practical differences in the legal remedies. Among rights in rem must be reckoned the right to life, to reputation, to the free disposal of one’s person and faculties, to exemption from bodily harm or indignity, and to any external thing of which one is the legal owner. To these must be added the limited right in a thing owned by some one else, which is called servitus or easement, such as a right of way over another person’s land.
Rights in personam, or availing against a determinate person or persons, are divided by Roman jurists into rights (in their unhappy phraseology obligationes) ex contractu, and rights (or obligationes) ex delicto, with two miscellaneous appendages, rights quasi ex contractu and quasi ex delicto. By quasi-contracts are not to be understood implied contracts, differing from express ones only in that the engagement is signified by conduct instead of words. Such tacit engagements are real contracts, and are placed in the law of contract. The term quasi-contract applies to cases in which there has not been, and is known not to have been, any engagement, either express or tacit, but in which the ends of legislation require that the same legal obligations shall be imposed as if the party had entered into an engagement. The case commonly used as an illustration is solutio indebiti—the obligation of a person to whom a payment has been made under a mistake, to refund the amount. Obligations quasi ex contractu are, therefore, simply miscellaneous obligations which cannot be reduced to any of the other classes. The third class, obligations (or rights) arising from offences, is, we venture to say, a stumbling-block to all clear-headed persons when they begin the study of the Roman law. Mr. Austin retains it, but suppresses the fourth class, quasi ex delicto, it being quite needless to have two repositories for merely miscellaneous obligations without any positive feature in common. The term quasi-contracts, rightly understood, includes them all. As Mr. Austin expresses it, “one fiction suffices.” “The terms are merely a sink into which such obligatory incidents as are not contracts, or not delicts, but beget an obligation as if, &c., are thrown without discrimination. And this is the rational view which Gaius has taken of the subject.”*
Though Mr. Austin retains the class of rights ex delicto, it is here that his classification most materially deviates from that of the Roman jurists. Instead of making rights ex delicto a secondary, he makes them a primary class. Instead of co-ordinating them with rights from contract and from quasi-contract, as species of jura in personam, he opposes them to all other rights, in rem and in personam taken together. His division of rights in general, is into Primary, and what he terms Sanctioning, Rights.[*] The characteristic of these is, that they exist only for the sake of the primary. Primary rights and duties have a legal existence only by virtue of their sanctions. But in order that the sanctions may be applied, legal provisions are necessary, by which other rights are created and duties imposed. These secondary rights and duties are the subject-matter of Penal Law and of the Law of Procedure. They correspond partly (though, as we shall see, not entirely) with the obligationes ex delicto of the Romans, and admit of being classed as rights and duties arising out of offences. As such, they are again divided by Mr. Austin into “Rights and Duties arising from Civil Injuries,” and “Duties and other Consequences arising from Crimes.”[†] The basis which the Roman jurists assumed for their division of rights in general—the distinction between rights in rem and in personam—is retained by Mr. Austin only for primary rights. The following table,[‡] abridged from one annexed to the author’s Outline, will serve as a rough ground-plan of his distribution of the field of law:
The remaining Lectures are devoted to the examination and elucidation of the particulars included under these heads. And, with all their incompleteness (which, as with the broken arches in Addison’s “Vision,” becomes greater as we approach the point where they cease altogether),[*] their value to the student will be found to be very great. We would particularly direct attention to the treatment of Dominium or Property, in its various senses, with the contrasted conception of servitus or easement.[†] The nature and boundaries of these two kinds of rights are made so transparently clear, that it requires some acquaintance with the speculations of jurists to be able to believe that any one could ever have misunderstood the subject.
But is the division and arrangement of law in general, expressed in the table, wholly unimpeachable? We do not mean in point of mere correctness. It satisfies the fundamental rules of logical division. It covers the whole subject, and no one part overlaps another. It affords an arrangement in which it is at least possible to lay out perspicuously the whole of the matter; and if the proper mode of ordering and setting out a body of law is to ground it upon a classification of rights, no better one for the purpose could probably be made.
But the purely logical requisites are not the only qualities desirable in a scientific classification. There is a further requisite—that the division should turn upon the most important features of the things classified; in order that these, and not points of minor importance, may be the points on which attention is concentrated. A classification which does this, is what men of science mean when they speak of a Natural Classification. To fulfil this condition may require, according to circumstances, different principles of division; since the most important properties may either be those which are most important practically, by their bearing on human interests, or those which are most important scientifically, as rendering it easiest to understand the subject—which will generally be the most elementary properties.
In the case now under consideration, both these indications coincide. They both point to the same principle of division. Law is a system of means for the attainment of ends. The different ends for which different portions of the law are designed, are consequently the best foundation for the division of it. They are at once what is most practically important in the laws, and the fundamental element in the conception of them—the one which must be clearly understood to make anything else intelligible. Is, then, this requirement, of distinguishing the parts of the corpus juris from one another according to the ends which they subserve, fulfilled by a division which turns entirely upon a classification of rights?
It would be so, if the ends of different portions of the law differed only in respect of the different kinds of Rights which they create. But this is not the fact. The rights created by a law are sometimes the end or purpose of the law, but are not always so.
In the case of what Mr. Austin terms Primary Rights,[*] the rights created are the very reason and purpose of the law which creates them. That these rights may be enjoyed is the end for which the law is enacted, the duties imposed, and the sanctions established.
In that part of the law, however, which presupposes and grows out of wrongs—the law of civil injuries, of crimes, and of civil and criminal procedure—the case is quite otherwise. There are, it is true, rights (called, by Mr. Austin, Sanctioning Rights)[†] created by this portion of the law, and necessary to its existence. But the laws do not exist for the sake of these rights; the rights, on the contrary, exist for the sake of the laws. They are a portion of the means by which those laws effect their end. The purpose of this part of the law is not the creation of rights, but the application of sanctions, to give effect to the rights created by the law in its other departments. The sanctioning rights are merely instrumental to the sanctions; but the sanctions are themselves instrumental to the primary rights. The filiation of the ideas, proceeding from the simple to the more complex, is as follows:
1. Primary Rights, with the correlative Duties.
3. Laws determining the mode of applying the Sanctions.
4. Rights and Duties established by those laws, for the sake of, and as being necessary to, the application of the Sanctions.
It appears from these considerations, that however suitable a groundwork the classification of rights may be for the arrangement of that portion of the law which treats of Primary Rights (commonly called the Civil Code)—in the Penal Code and Code of Procedure the rights thereby created are but a secondary consideration, on which it is not well to bestow the prominence which is given to them by carrying out into those branches the same principle of classification. We do not mean that rights ex delicto can be left out of the classification of rights for the purposes of the Civil Code. They are rights, and being so, cannot be omitted in the catalogue. But they should, we apprehend, be merely mentioned there, and their enumeration and definition reserved for a separate department, of which the subject should be, not Rights, but Sanctions. If this view be correct, the primary division of the body of law should be into two parts. First, the Civil Law, containing the definition and classification of rights and duties. Secondly, the law of Wrongs and Remedies. This last would be subdivided into Penal Law, which treats of offences and punishments, and the law of Procedure. If this were a mere opinion of our own, we should hesitate to assert it against a judge in all respects so much more competent as Mr. Austin; but if his great authority is against us, we have with us that of Bentham, James Mill, and the authors of, we believe, all modern codes.[*]
Not only does this more commonplace distribution and arrangement of the corpus juris appear to us more scientific than Mr. Austin’s; we apprehend that it is also more convenient. Mr. Austin, in fact, has been driven, by the plan he adopted, to the introduction of a logical anomaly, which he himself acknowledges. There are, as he rightly holds, legal duties which are absolute, that is, which have not only for their ultimate but for their immediate and direct object the general good, and not the good of any determinate person or persons, and to which, therefore, there are no correlative rights. Now, in a classification grounded wholly on rights, there is no place for duties which do not correspond to any rights. It being impossible to class these duties with jura in rem or in personam, Mr. Austin treats of them under the head of Sanctioning Rights. The difficulty, however, is not in knowing under what kind of rights to place them, but in placing them under rights at all. Duties which answer to no rights, have no more natural affinity with Sanctioning than they have with Primary rights. Why then is this, as it undoubtedly is, their proper place in the classification? Because, though the duties have no affinity with rights, the wrongs which are violations of those duties have an affinity with the wrongs which are violations of rights. Violations of absolute duties are Crimes; many violations of rights are also Crimes; and between crimes of these two sorts there is no generic difference which it is necessary that either penal law or criminal procedure should recognise. Now, if the second great division of the law is regarded (which we think it ought to be) as conversant not directly with Rights, but with Wrongs, the wrongs in question, which are violations of absolute duties, take their place among other wrongs as a matter of course. But in a classification grounded on Rights, they are altogether an anomaly and a blot. There is no place marked out for them by the principle of the classification; and to include them in it, recourse must be had to a second principle, which, except for that purpose, the classification does not recognise. It has been seen in the table, that, in the second division of Mr. Austin’s Sanctioning Rights, he drops rights altogether, and speaks of “duties and other consequences.”
But this is not the only, nor the greatest objection which may be made, both on the ground of scientific symmetry and of practical convenience, against the place assigned by Mr. Austin to the law of Wrongs and Remedies. A still stronger objection is manifest from a mere inspection of the table. It interpolates the entire subjects of Penal Law and Procedure between the general Civil Law of Things and the Law of Status; that is, between two subjects so closely allied, that after a strenuous application of his powerful intellect to the subject, Mr. Austin was unable to draw a definite line, or find any essential or scientific difference between them; and was induced to separate them at all, only by the convenience of treating the genus first, and a few of its more complex species afterwards. As he himself says, the law of any and of all Status is “indissolubly connected with that more general matter which is contained in the Law of Things.”* These two portions of law are conversant with the same general ideas—namely, rights and their definitions (to a great degree even with the same kinds of rights), and one of them is but a kind of appendix or extension of the other, so that there is often a doubt in which compartment a particular chapter or title of the law may best be placed; yet the one is put at the beginning of the corpus juris, the other at the end, and between them lies all that great portion of the law which has to do with the subsequent considerations of Offences, Punishments, Judicature, and Judicial Procedure. We cannot think that this is a mode of arrangement which would have approved itself to Mr. Austin’s, on such subjects, almost infallible judgment, had he ever completed his Course.
It may be remarked that, though the arrangement which we have criticized was founded on that of the classical Roman jurists, the criticism is not fairly applicable to those jurists themselves. According to the plan of their treatises, they had no alternative. They could not treat of delicts under any other form than that of “obligationes quae ex delicto nascuntur.”[*] For, as Mr. Austin himself observes, their institutional writings were solely on private law.[†] Public law was, it is uncertain for what reason, excluded. But crimes, and criminal procedure, belonged to their conception of Public law. Of these, therefore, they had not to treat.† Civil procedure they did treat of; but they placed it in a branch apart, which was neither jus rerum nor personarum, but a third division co-ordinate with them, called Jus Actionum. There remained only the law of civil injuries. Now, the specific character which distinguishes civil injuries from crimes is that, though the sanction is in both cases the leading idea, the mode in which, in the case of civil injuries, the sanction is applied, is by giving to the injured party a right to compensation or redress, which, like his other rights, he may exercise or forego at his pleasure. It is evident that there is not in this case the same impropriety as in the case of crimes or of procedure, in considering the right created as the real purpose of the law. It is true that, even in this case, another purpose of the law is punishment, but the law is willing to forego that object, provided the injured person consents to waive it. The right, therefore, of the injured person, in this particular class of injuries, might without absurdity be treated as the principal object. Being a right availing only against determinate persons—namely, the offender or his representatives—it is a right in personam, or, in the language of the classical jurists, an obligatio; and its particular nature afforded no reason why it should not, in an arrangement in all other respects dictated by the exigencies of the civil code, take its place where alone, in such an arrangement, a place could be assigned to it—namely, under the general head of Jura in Personam, as a sub-species. But this, though it accounts for the place assigned in the Roman law to “obligationes quae ex delicto nascuntur,” forms no reason for applying the same arrangement to the whole law of wrongs and remedies, and making it the basis of a division including the entire field of the corpus juris—crimes, punishments, civil and criminal procedure, among the rest.
After treating of dominium in the narrower sense in which it is opposed to servitus—a right to use or deal with a thing in a manner which, though not unlimited, is indefinite, as distinguished from a right to use or deal with a thing in a manner not only limited but definite—Mr. Austin proceeds to treat of rights limited or unlimited as to duration; of rights vested and contingent; and of dominium or property in the more emphatic sense in which it denotes the largest right which the law recognises over a thing—a right not only indefinite in extent and unlimited in duration, but including the power of aliening the thing from the person who would otherwise take it by succession.[*] The Lectures finally break off, where they were interrupted by ill health, in the middle of the important subject of Title. There is no finer specimen of analytical criticism in these volumes than the comment (in the Notes to the Tables) on the erroneous and confused notions which the Roman jurists connected with their distinction between Titulus and Modus Acquirendi.[†]
It cannot be too deeply regretted that, through the combined effect of frequently-recurring attacks of depressing illness, and feelings of discouragement which are vividly reproduced in the touching preface of the editor,[‡] Mr. Austin did not complete his Lectures in the form of a systematic treatise. We are fully persuaded that, had he done so, the result would have proved those feelings of discouragement to be ill grounded. The success of the first volume, by no means the most attractive part of the Course, is a proof that even then there was in the more enlightened part of the legal profession a public prepared for such speculations; a public not numerous, but intellectually competent—the only one which Mr. Austin desired. Had he produced a complete work on jurisprudence, such as he, and perhaps only he in his generation, was capable of accomplishing, he would have attracted to the study every young student of law who had a soul above that of a mere trader in legal learning; and many non-professional students of social and political philosophy (a class now numerous, and eager for an instruction which unhappily, for the most part, does not yet exist) would have been delighted to acquire that insight into the rationale of all legal systems, without which the scientific study of politics can scarcely be pursued with profit, since juristical ideas meet, and, if ill understood, confuse the student at every turning and winding in that intricate subject. Before the end of the period to which Mr. Austin’s life was prolonged, he might have stood at the head of a school of scientific jurists, such as England has now little chance of soon possessing. But the remains which he has left, fragmentary though much of them be, are a mine of material for the future. He has shown the way, solved many of the leading problems, and made the path comparatively smooth for those who follow. Among the younger lawyers of the present time, there must surely be several (independently of the brilliant example of Mr. Maine) who possess the capacity, and can acquire the knowledge, required for following up a work so well begun; and whoever does so will find, in the notes and miscellaneous papers which compose the latter part of the third volume, a perfect storehouse of helps and suggestions.
It remains to say a few words on the question of execution. A work left unfinished, and never really composed as a book, however mature and well-digested its thoughts, is not a proper subject for literary criticism. It is from the first volume only that we are able to judge what, in point of composition, Mr. Austin would have made it. But all the merits of expression which were found in that volume reappear in quite an equal degree in the remainder, and even, as far as the case admitted, in the looser memoranda. The language is pure and classical English, though here and there with something of an archaic tinge. In expression as in thought, precision is always his first object. It would probably have been so, whatever had been the subject treated; but on one in which the great and fatal hindrance to rational thought is vague and indefinite phrases, this was especially imperative. Next after precision, clearness is his paramount aim; clearness alike in his phraseology and in the structure of his sentences. His pre-eminent regard to this requisite gives to his style a peculiarity the reverse of agreeable to many readers, since he prefers, on system, the repetition of a noun substantive, or even of an entire clause, in order to dispense with the employment of the little words it and them, which he is quite right in regarding as one of the most frequent sources of ambiguity and obscurity in composition. If there be some excess here, it is the excess of a good quality, and is a scarcely appreciable evil, while a fault in the contrary direction would have been a serious one. In other respects Mr. Austin’s style deserves to be placed very high. His command of apt and vigorous expression is remarkable, and when the subject permits, there is an epigrammatic force in the turn of his sentences which makes them highly effective.
Some readers may be offended at the harsh words which he now and then uses, not towards persons, to whom he is always, at the lowest, respectful, but towards phrases and modes of thought which he considers to have a mischievous tendency. He frequently calls them “absurd,” and applies to them such epithets as “jargon,” “fustian,” and the like.[*] But it would be a great injustice to attribute these vehement expressions to dogmatism, in any bad sense of the word—to undue confidence in himself, or disdain of opponents. They flowed from the very finest part of his character. He was emphatically one who hated the darkness and loved the light. He regarded unmeaning phrases and confused habits of thinking as the greatest hindrance to human intellect, and through it to human virtue and happiness. And, thinking this, he expressed the thought with corresponding warmth: for it was one of his noble qualities that while, whatever he thought, he thought strongly, his feelings always went along with his thoughts. The same perfervidum ingenium made him apply the same strong expressions to any mistake which he detected in himself. In a passage of the Lectures, he says, referring to a former lecture, “I said so and so. But that remark was absurd; for it would prove,” &c.* And in an extemporaneous passage, which some of his hearers may remember, he rated himself soundly for an erroneous opinion which he had expressed, and conjectured, as he might have done respecting a complete stranger to him, what might have been the causes that led him into so gross a misapprehension. That the occasional strength of his denunciations had its source in a naturally enthusiastic character, combined in him with an habitually calm and deliberate judgment, is shown by the corresponding warmth which marks his expressions of eulogium. He was one in whom the feelings of admiration and veneration towards persons and things that deserve it, existed in a strength far too rarely met with among mankind. It is from such feelings that he speaks of “the godlike Turgot;”[†] that, in mentioning Locke, he commemorates “that matchless power of precise and just thinking, with that religious regard for general utility and truth, which marked the incomparable man who emancipated human reason from the yoke of mystery and jargon;”† that he does homage, in many passages of the Lectures, to the great intellectual powers of Thibaut and Von Savigny,[‡] and that, in a note at page 248 of his first volume, he devotes to Hobbes perhaps the noblest vindication which that great but unpopular thinker has ever received. That Mr. Austin was capable of similar admiration for the great qualities of those from whose main scheme of thought he dissents, and whose authority he is oftener obliged to thrust aside than enabled to follow, is shown in many passages, and in none more than in some remarks on Kant’s Metaphysical Principles of the Science of Law.* We may add that his praises are not only warm, but (probably without exception) just, that such severity as is shown, is shown towards doctrines, very rarely indeed towards persons, and is never, as with vulgar controversialists, a substitute for refutation, but always and everywhere a consequence of it.
[[*] ]The Province of Jurisprudence Determined (London: Murray, 1832), 2nd ed., ed. Sarah Austin (London: Murray, 1861), republished (3rd ed.) as Vol. I of the Lectures.
[a-a]+67 [corrected by JSM in SC copy of 632]
[* ][James Fitzjames Stephen, “English Jurisprudence,”] Edinburgh Review, CXIV [(Oct., 1861)], p. 474 b(not by the present writer)b [The review (pp. 456-86) is of the 2nd ed. of Austin, and of Henry Maine, Ancient Law: Its Connection with the Early History of Society, and Its Relation to Modern Ideas (London: Murray, 1861).]
[[*] ]Jeremy Bentham, Papers Relative to Codification and Public Instruction (1817), in Works, ed. John Bowring, 11 vols. (Edinburgh: Tait; London: Simpkin, Marshall, Dublin: Cumming, 1843), Vol. IV, p. 454.
[* ]Province of Jurisprudence [Lectures, Vol. I], p. 14.
[d-d]63 part [corrected by JSM in SC copy of 632]
[[*] ]Edward Coke, The First Part of the Institutes of the Lawes of England (London: Society of Stationers, 1628).
[* ]In the outline of his Course of Lectures, prefixed to The Province of Jurisprudence. Mr. Austin seems to rest the logical superiority of the Roman over the English legal system mainly on the absence of the darkening distinction between real and personal property—a distinction which has no foundation in the philosophy of law, but solely in its history, and which he emphatically characterizes as “a cause of complexness, disorder, and darkness, which nothing but the extirpation of the distinction can thoroughly cure.” ([Lectures, Vol. I,] p. xciv n.) The following passage shows at once his opinion of the English law, considered as a system, and of the reasons for preferring the Roman law to it, as a guide to general jurisprudence.
[[*] ]See, e.g., Principles of Judicial Procedure (1839), in Works, Vol. II, p. 6.
[[*] ]I.e., The Province of Jurisprudence Determined.
[[†] ]Lectures, Vol. I, pp. 109-67 and 168-327.
[[‡] ]See The “Art” of Rhetoric (Greek and English), trans. J.H. Freese (London: Heinemann; New York: Putnam’s Sons, 1926), p. 15 (I, 2).
[e-e]631,2 reviewed only two years ago in our own pages
[[*] ]See Republic (Greek and English), trans. Paul Shorey, 2 vols. (London: Heinemann, Cambridge, Mass.: Harvard University Press, 1946), esp. Bk. I (Vol. I, pp. 2-107).
[[†] ]Lectures, Vol. I, pp. 1-74.
[[*] ]Ibid., pp. 75-108.
[[†] ]Ibid., pp. xxxix, 112n-16n.
[[*] ]Ibid., pp. 163-4, with reference to Richard Hooker, Of the Lawes of Ecclesiastical Polity, 2 vols. (London: Windet, -97), Vol. I, Bk. I, “Concerning Lawes, and Their Severall Kindes in Generall,” esp. pp. 51-5, 91-6. William Blackstone, Commentaries on the Laws of England, 4 vols. (Oxford: Clarendon Press, 1765-69), Vol. I, pp. 38-62; and Charles Louis de Secondat, baron de la Brède et de Montesquieu, De l’esprit des loix, 2 vols. (Geneva: Barrillot, 1748), Vol. I, p. 163.
[* ]Vol. II (first of the new volumes), p. 56.
[[*] ]Ibid., pp. 32-4.
[* ]Ibid., p. 52.
[† ]Ibid., p. 395.
[‡ ]Ibid., p. 423.
[[*] ]Ibid., p. 231.
[* ]Ibid., p. 79.
[[*] ]Ibid., Vol. III, pp. 326-32.
[[†] ]Ibid., Vol. II, p. 189.
[[‡] ]Ibid., pp. 190-1.
[[*] ]Ibid., pp. 195-212.
[[†] ]Ibid., p. 195.
[[*] ]Ibid., pp. 222-4.
[[†] ]Ibid., p. 221.
[[‡] ]See Johann Gottlieb Heineccius, Elementa juris civilis, secundum ordinem pandectarum (1727), 6th ed. (1747), in Operum ad universam juris prudentiam. 8 vols. (Geneva: Cramer Heirs and Philibert Bros., 1744-49), Vol. V. pp. 1-812.
[[*] ]Austin, Lectures, Vol. II, p. 235.
[[†] ]Ibid., p. 236.
[* ]Ibid., p. 241.
[[‡] ]Ibid., pp. 241-3.
[[*] ]Ibid., Vol. I, p. 58.
[[†] ]In Lectures 31, 34, and 36, Vol. II, pp. 250, 282-9, and 312-15.
[* ]“I could point,” says Mr. Austin, “at books and speeches, by living lawyers of name, wherein the nature of the Equity administered by the Chancellor, or the nature of the jurisdiction (styled extraordinary) which the Chancellor exercises, is thoroughly misunderstood,—wherein the anomalous distinction between Law and Equity is supposed to rest upon principles necessary or universal, or (what is scarcely credible) wherein the functions of the Chancellor, as exercising his extraordinary jurisdiction, are compared to the arbitrium boni viri, or to the functions of an arbiter released from the observance of rules.” (Ibid., pp. 273-4.)
[* ]Ancient Law, p. 52.
[[*] ]Austin, Lectures, Vol. II, pp. 249, 254; Ancient Law, p. 54. For the precept, see Diogenes Laertius, Lives of Eminent Philosophers (Greek and English), trans. R.D. Hicks, 2 vols. (London: Heinemann; New York: Putnam’s Sons, 1925), Vol. II, p. 194 (VII, 87).
[† ]Ancient Law, p. 56.
[‡ ]Lectures, Vol. II, p. 261.
[§ ]Ibid., p. 260.
[¶ ]Ancient Law, p. 97.
[* ]Ibid., p. 80.
[[*] ]Samuel Taylor Coleridge, The Friend, 3 vols. (London: Rest Fenner, 1818), Vol. I, pp. 308-9.
[[†] ]Ancient Law, p. 92.
[[*] ]Vol. II, pp. 321-47. The discussion continues through Lectures 38 and 39, from the latter of which Mill takes the long extract below.
[[*] ]Samuel Romilly, “Bentham on Codification,” Edinburgh Review, XXIX (Nov., 1817), 231.
[[*] ]Lectures, Vol. II, p. 362, quoted at p. 188 above.
[* ]Lectures, Vol. II, pp. 359-70. [For an explanation of the square-bracketed passages, which were added by Sarah Austin, see her “Preface,” ibid., p. ii.]
[[†] ]Ibid., p. 370.
[[‡] ]Ibid., p. 373.
[* ]Ibid., p. 371.
[[*] ]Ibid., p. 373.
[[†] ]Ibid., Vol. III, pp. 275-98.
[[‡] ]William Murray, Speech for the Plaintiff in the Case of Omychund v. Barker, 1744, in 26 English Reports 22-3.
[* ]The most popular, though one of the most superficial, of the objections, is the supposed failure of existing codes, especially the French and the Prussian. To this Mr. Austin answers, substantially, two things. First, that the failure of the French and Prussian codes has been greatly exaggerated, and that, with all their defects, they are still vastly superior to the state of things which preceded them. Secondly, that in so far as those codes do fall short of what is required in a code, it is owing to defects which are obvious and avoidable, and, above all, because they are not really codes, for the Code Napoleon is without a single definition, and the Prussian Code has none that are adequate, so that the meaning of all the law terms had either to be fixed by judiciary law, or ascertained by referring back to the old law which was supposed to have been superseded. Far from being any evidence against a code, those compilations are a most satisfactory proof of the great amount of good which can be done even by the merest digest. [See Austin, Lectures, Vol. III, pp. 292-4. For the French and Prussian Codes, see Code civil des Français. (Paris: Imprimerie de la république, 1804, and Allgemeines Landrecht fur die Preussischen Staaten (5 Feb., 1794).]
[[*] ]Lectures, Vol. II, p. 381.
[* ]Lecture 44 [ibid., pp. 435-9].
[[†] ]See ibid., pp. 381-449. The references are to Matthew Hale, An Analysis of the Law (London: Walthoe, 1713), p. 1, and Blackstone, Commentaries, Vol. I, p. 118.
[[*] ]Commentaries, Vol. I, pp. 119ff., Austin, Lectures, Vol. III, pp. 179-80.
[[†] ]Lectures, Vol. II, pp. 400-18.
[* ]Ibid., p. 413.
[‡ ]These phrases were devised by the modern civilians. The classical jurists expressed the same distinction by the ambiguous terms dominium (in the largest sense in which that word was employed) and obligatio, a name which, in the Roman law, is unfortunately given to rights as well as to obligations. [See Austin, Lectures, Vol. II, p. 33, Vol. III, p. 190.]
[* ]Ibid., pp. 134-5. [For the reference to Gaius, see Heineccius, Elementa juris civilis secundum ordinem pandectarum, in Operum, Vol. V, p. 660 (XLIV, vii, 380).]
[[*] ]Austin, Lectures, Vol. II, pp. 450-63.
[[†] ]Ibid., pp. 189-9.
[[‡] ]Ibid., Vol. III, Table VIII.
[[*] ]Joseph Addison, “The Vision of Mirzah,” Spectator, No. 160 (1 Sept., 1711), p. 1.
[[†] ]Austin, Lectures, Vol. III, pp. 2-3, 13.
[[*] ]Ibid., Vol. I, pp. lxxv-lxxix, xcviii, Vol. II, pp. 450-63.
[[*] ]See Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (1789), in Works, Vol. I, pp. 150-4; James Mill, “Jurisprudence,” in Essays (London: printed Innis, n.d. ), p. 9.
[* ]Lectures, Vol. II, pp. 439-40.
[[*] ]Heineccius, Elementa juris civilis, secundum ordinem institutionum (1726), 6th ed. (1747), in Operum, Vol. V, p. 263 (IV, i, title).
[[†] ]Lectures, Vol. II, p. 442.
[† ]The single title appended to Justinian’s Institutes, De Publicis Judicus, is supposed to have been an afterthought, and to have had no chapter corresponding to it in the institutional treatises of the classical jurists. [See Heineccius, “De publicis judicus,” Elementa juris civilis, secundum ordinem institutionum, Bk. IV, Title xviii, in Operum, Vol. V, pp. 333-40.
[[*] ]Austin, Lectures, Vol. III, pp. 69-89.
[[†] ]Ibid., pp. 209-13.
[[‡] ]Sarah Austin, his wife.
[[*] ]Austin, Lectures, Vol. II, p. 409, Vol. I, pp. 150n, 164.
[* ]Ibid., Vol. III, pp. 24-5.
[[†] ]Ibid., Vol. I (i.e., Province of Jurisprudence), p. 274.
[† ]Ibid., p. 150n.
[[‡] ]For Thibaut, see Lectures, Vol. III, pp. 294-8, for Von Savigny, ibid., Vol. II, pp. 65, 395-7, and Vol. III, pp. 296-8.
[* ]“A treatise darkened by a philosophy which, I own, is my aversion, but abounding, I must needs admit, with traces of rare sagacity. He has seized a number of notions, complex and difficult in the extreme, with distinctness and precision which are marvellous considering the scantiness of his means. For, of positive systems of law he had scarcely the slightest tincture, and the knowledge of the principles of jurisprudence which he borrowed from other writers, was drawn, for the most part, from the muddiest sources: from books about the fustian which is styled the ‘Law of Nature.”’ (Ibid., Vol. III, p. 167.) [Immanuel Kant, Metaphysische Anfangsgrunde der Rechtslehre (1797), in Sammtliche Werke, ed. Karl Rosenkranz and Friedrich Wilhelm Schubert, 14 vols. in 12 (Leipzig Voss, 1838-42), Vol. IX, pp. 1-214.]
[* ][James Fitzjames Stephen, “English Jurisprudence,”] Edinburgh Review, CXIV [(Oct., 1861)], p. 474 b(not by the present writer)b [The review (pp. 456-86) is of the 2nd ed. of Austin, and of Henry Maine, Ancient Law: Its Connection with the Early History of Society, and Its Relation to Modern Ideas (London: Murray, 1861).]