SCHOFIELD, Philip, « Jeremy Bentham and Nineteenth-Century English Jurisprudence », 1991

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Jeremy Bentham andnineteenthcentury EnglishjurisprudencePhilip Schofield aa Bentham Project, University College LondonPublished online: 30 Jul 2007.

To cite this article: Philip Schofield (1991) Jeremy Bentham andnineteenthcentury English jurisprudence , The Journal of Legal History, 12:1,58-88, DOI: 10.1080/01440369108531028

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Jeremy Bentham andNineteenth-Century English

Jurisprudence1

PHILIP SCHOFIELD*

Two main schools of jurisprudential thought emerged in England in thesecond half of the nineteenth century. The analytical school, founded onthe work of John Austin, who had in turn taken the leading features of histheory from the ideas of Jeremy Bentham, was the more influential. Itwas characterized by the logical analysis of 'universal' legal concepts, by atheoretical distinction between law and morality, and by a definition oflaw as the command of a sovereign. But just as in Germany in the earlynineteenth century the philosophical school came to be opposed by thehistorical school associated with Savigny, so in England the analyticalschool came under increasing attack from a historical school which tookits inspiration from Henry Sumner Maine.2 Its exponents disputed theview that all law could be resolved into the command of a sovereign, andinstead laid stress on custom, religion and opinion as original and moreimportant sources of law. They claimed that logical analysis, though anecessary tool of the jurist, did not sufficiently explain the nature of law;a full understanding required careful investigation into the origin andevolution of legal practices. This would reveal the ways in which moralideas were connected, as social fact, with actual legal rules. Nevertheless,influenced by prevailing positivist ideas, both schools were united in theiraim to develop a science of law.3 In this endeavour they had superficiallymuch in common with Bentham: yet the story of nineteenth-centuryEnglish jurisprudence is essentially one of reaction against Bentham.

Bentham's self-appointed task had been to develop a science of humanaction, by the application of which he had hoped to increase the greatesthappiness of the greatest number:

any . . . work of mine that has been or will be published on thesubject of legislation or any other branch of moral science is anattempt to extend the experimental method of reasoning from thephysical branch to the moral. What Bacon was to the physical

* Bentham Project, University College LondonTHE JOURNAL OF LEGAL HISTORY, Vol.12, No.l, May 1991, pp.58-88PUBLISHED BY FRANK CASS, LONDON

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JEREMY BENTHAM 59

world, Helvetius was to the moral. The moral world has thereforehad its Bacon, but its Newton is yet to come.4

He aimed to be the Newton of the moral world, and his jurisprudence wascentral to this undertaking. The starting point was an accurate definitionand precise understanding of the meaning of certain fundamental legalterms. Having achieved this, he would then be in a position to show whatthe law should be and how existing institutions might be reformed tobring them into line with that vision. Accordingly, Bentham's conceptionof jurisprudence had two branches: the first expository, and the secondcensorial, or the art of legislation. 'To the province of the Expositor itbelongs to explain to us what, as he supposes, the Law is: to that of theCensor, to observe to us what he thinks it ought to be.'5 He dividedexpository jurisprudence into authoritative, when it was the product ofthe legislator himself, and unauthoritative, the work of any other person.He then made a further distinction between local jurisprudence, con-cerned with the laws of one nation or a particular group of nations, anduniversal jurisprudence, concerned with the laws of all nations. Thoughin substance no two nations had exactly the same laws, while otherspossibly had none in common, there were certain words corresponding toconcepts, for instance power, right, obligation, liberty, which could befound in all. It followed that universal expository jurisprudence had verynarrow limits: it could not apply to the substance of laws, but 'mustconfine itself to terminology'. Censorial jurisprudence on the other hand,considering both substance and terminology, was much wider in scope:there were 'leading points' which it would be advantageous for all nationsto introduce into their laws.6

At the root of Bentham's philosophy, and underpinning his conceptionof jurisprudence, was the principle of utility or, as he later preferred tocall it, the greatest happiness principle.7 An action was accordingly goodor bad, right or wrong, insofar as it increased or diminished the happinessof the persons affected by it, happiness being composed of an excess ofpleasure over pain. Men's actions were necessarily directed towardsincreasing their own pleasure, so the greatest happiness principle was notmerely an ethical principle, did not merely explain how an agent ought toconduct himself, but alsd how human agents actually did conduct them-selves.8 The problem for the legislator, whose proper end was the well-being of the community in the aggregate, lay in the natural opposition ofinterests which existed between different members of the community. Inpractice, each individual, left to himself, would merely pursue his owngreatest happiness without regard to the effect his actions might have onthe happiness of the greatest number. The legislator had to providesufficient motives for those subject to him to pursue the greatest happi-

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60 THE JOURNAL OF LEGAL HISTORY

ness, the general interest, instead of their own particular happiness,their own sinister interest: the natural opposition of interests had to bereplaced by an artificial identification of interests. This was achieved bythe promulgation of laws, which, by the application of sanctions, whetherpunishments or rewards, to certain actions, would either encourage ordiscourage their performance. The point of applying linguistic analysis tolegal terms was to aid the legislator in this task: he could not otherwiseunderstand what he had to do, or know when he had accomplished hisend. It was therefore necessary to ascertain:

what sort of a thing a law is; what the parts are that are to be found init; what it must contain in order to be complete; what the connectionis between that part of a body of laws which belongs to the subj ect ofprocedure; and the rest of the law at large. . . .

Hence the role of analytical jurisprudence was subservient to that of the'art or science of legislation', in other words the art of directing theactions of human beings to the end of utility.9

Legal terms which enjoyed only a linguistic reality, and were inBentham's terminology 'fictitious entities', such as liberty, property,power, duty, right, were to be analysed and related to the 'real entities'which gave rise to them, that is to actual physical phenomena. The realentities which were the essential elements of a law were acts of the willand acts of the body.10 Hence,

A law may be defined as an assemblage of signs declarative of avolition conceived or adopted by the sovereign in a state, concern-ing the conduct to be observed in a certain case by a certain personor class of persons, who in the case in question are or are supposedto be subject to his power: such volition trusting for its accomplish-ment to the expectation of certain events which it is intended suchdeclaration should upon occasion be a means of bringing to pass,and the prospect of which it is intended should act as a motive uponthose whose conduct is in question.

A law, or mandate, therefore was the expression of a sovereign will (andthus imperative), and applied to acts of persons subject to that sovereign;this expression of will received its force from the apprehension of thosesubject to it that should they disobey it they would be liable to suffercertain sanctions; such sanctions operated as motives or inducements tothem to make their actions conform to the declared will of the sovereign."The idea of a law, then, implied that of a sovereign, which in turn impliedthat of a state - a sovereign was a person or aggregate of persons to whosewill a whole political community was in the habit of obedience. It wasquite possible that one person or set of persons was sovereign in some

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JEREMY BENTHAM 61

cases, another in others - all together might therefore be conceived asforming one sovereign.12 A law might be that of the sovereign in one oftwo ways: firstly by conception, where the sovereign in question himselffirst issued it; secondly by adoption, where it was first issued by someperson other than the sovereign himself, but where it was known that itwas his will that if the issuing body in question should express a willconcerning the act in question, such will should be regarded as his own.

It is thus that every mandate that is issued within the limits of thesovereignty and that is not illegal, is in one sense or the other themandate of the sovereign. Take any mandate whatsoever, either itis of the number of those which he allows or it is not: there is nomedium: if it is, it is his; by adoption at least, if not by originalconception: if not, it is illegal, and the issuing it an offence.

Thus it was that conveyances and covenants acquired validity - adoptedby the sovereign, they were converted into mandates.13

An accurate analysis of terms would, amongst other things, guide thelegislator in such a way that he would avoid the opposite evils of weaknessand tyranny in the law; it would restrain the discretion of judges, whosedecisions would be made subservient to the ends of utility; it wouldexhibit a common standard to which the actual systems of law existing inparticular countries could be compared,

to the end that what is excellent in one system may be transferredinto every other, that improvements in the most important art of all,the art of legislation, may like other arts make the tour of the globe,and that each legislator may add to his own wisdom the wisdom ofhis neighbours and contemporaries. . .

and it would give impetus to the teaching of the art of legislation, andthereby lead to a wider diffusion of its principles.14 The expositor was tobe the servant of the censor, who in turn would be the adviser of thelegislator.

Bentham's conception of jurisprudence was wide-ranging. Yet Englishjurisprudence in the second half of the nineteenth century, influenced bythe desire to include all knowledge within a scientific framework, self-consciously rejected any concern with reform, with iaw as it ought to be -the science of legislation was demarcated as a separate subject. Eventhe analytical school, which was associated by friends and foes alikewith Bentham, came to concentrate on the mere exposition of legalterminology. This was partly a result of the way in which Bentham's ideaswere interpreted by John Austin, for it was Austin, and not Bentham,who was the major influence on nineteenth-century jurisprudence.15Austin was a friend and admirer of Bentham, but it is now generally

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accepted that his theory of law was, compared with that of Bentham, anarrow one.16 And it was also a result of the social and political forcesinfluencing those who were trying to develop jurisprudence as a subjectworthy of academic study. There was of course a more general reactionagainst the utilitarian ethic and its political manifestations, but moresignificant for the reception of Bentham's jurisprudence were the con-straints imposed upon the law dons of the second half of the century bythe academic and legal communities to which they belonged.

Austin's thought became influential only after his death in 1859.Though The Province of Jurisprudence Determined, a version of the firstpart of the lectures he had delivered at University College London, hadbeen published as early as 1832, he had refused to allow any reprint on thegrounds that the work contained many uncorrected defects.17 It was left tohis wife, Sarah, to publish a second edition in 1861, and then to edit hisremaining lecture notes to publish in 1863 an expanded work, Lectures onJurisprudence or the Philosophy of Positive Law. Later editions, a thirdbeing published in 1869, a fourth in 1873 and a fifth in 1885, were editedand revised by Robert Campbell, who collated the author's originalmanuscripts with notes taken by John Stuart Mill at the original deliveryof the lectures.18 The success of this work was in part due to default.At a time when legal education was being revived in the universities,Austin's was seized upon as the only available appropriate textbook.19This in turn suggests that Bentham was not being studied in any greatdepth. Bentham's thought was usually approached through Fragment onGovernment and IPML, and the recension of this latter work and othermaterial written at about the same time, edited by Etienne Dumont,published in 1802 in French under the title of Traites de legislation. Thisamounted to a very small sample of his total writings. Nor did the eleven-volume edition of his works prepared by John Bowring and published in1843 seem to stimulate any great scholarly interest.21 Moreover, thoughthe Bowring edition included several previously unpublished essays, itdid not unfortunately include Of Laws in General, which has emergedas perhaps Bentham's most important contribution to analytical juris-prudence. Substantially completed in 1782, having grown from a defini-tional problem which Bentham had encountered while composing IPML,it remained unknown until discovered amongst the Bentham Papers atUniversity College London by Charles Warren Everett in 1939.22 It isProfessor Hart's conjecture that had Bentham himself published Of Lawsin General,

it, rather than John Austin's later and obviously derivative work,would have dominated English jurisprudence, and that analyticaljurisprudence, not only in England, would have advanced far more

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JEREMY BENTHAM 63

rapidly and branched out in more fertile ways than it has sinceBentham's days.23

This assessment gains support from the view expressed at the beginningof the present century by James Bryce:24 though very much a critic ofBentham, he regarded his work as fertile and inventive, whereas he feltthat of Austin was barren.25

The theory of law which Austin developed was very much derived fromBentham, but he defined the proper province of jurisprudence in a muchnarrower way and drew a firmer distinction between analysis of legalterms and reform of the law, between jurisprudence and legislation. Therole of the jurist was equated with that of the expositor, and the censorialdimension was pushed into the background. To some extent this mayhave been due to Austin's more conservative political outlook, which wasreflected in the version of the theory of utility he espoused. This wasessentially that developed by William Paley in his popular and influentialPrinciples of Moral and Political Philosophy (1785), and now known as'theological utilitarianism'. It was the will of God that his creaturesshould be happy, and therefore the theory of utility and the will of God,which was the measure of right and wrong, coincided - the tendency of anaction to promote human happiness was a test of its coincidence with thewill of God. Observation of the tendencies of classes of actions wouldproduce laws or rules, by which conduct would on most occasions beguided. The principle of utility had in practice commonly guided thelegislator.

In so far as law and morality are what they ought to be (or in so far aslaw and morality accord with their ultimate test, or in so far as lawand morality accord with the Divine commands), legal and moralrules have been fashioned on the principle of utility, or obtained byobservation and induction from the tendencies of human actions.26

Austin seems to have believed that legislators had in fact been guided bythe general interest; Bentham had contended, at least after his 'con-version' to political radicalism in 1809, that they had acted according totheir own particular and sinister interests, to promote their own happi-ness rather than that of the community in general. Whereas Bentham's'scientific' version of utilitarianism subjected existing practices and insti-tutions to the scrutiny of the principle of utility and usually found themwanting, Austin's theological utilitarianism tended to see those samepractices and institutions as embodying utility.27 The value of existinginstitutions, and therefore of expository jurisprudence, which was ofcourse concerned with those institutions, was in this way enhanced byAustin's moral theory.

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If what was accorded in the main with what ought to be, a separate studyof the latter could come to be regarded as of little relevance: once one hadexplained what was, one had also explained what ought to be. Austinhimself never went so far (in fact this attitude was more characteristic ofthe historical school) but such a tendency was implicit; and the tendencyto marginalize the study of the ought was very much strengthened byAustin's demarcation of Bentham's censorial jurisprudence, the art oflegislation, from what he regarded as the proper subject-matter of juris-prudence. In order to show what belonged strictly to the science ofjurisprudence, Austin made a clear distinction between positive laws andother sorts of 'laws' with which they were connected by analogy, namelythe laws of God and the laws of positive morality, and merely meta-phorical or figurative laws.28 In its most comprehensive sense, a law was arule laid down for the guidance of an intelligent being by another intelli-gent being having power over him. This included laws set by God to hishuman creatures, and laws set by men to men: of these latter, those whichwere established by political superiors were called positive laws, andformed the subject-matter of jurisprudence; others were established andenforced by opinion, 'the opinions or sentiments held or felt by anindeterminate body of men', and included the law of honour, the law offashion, and much of international law - this class of law could be calledpositive morality. Where the term law was applied in a case where therewas no will, the use was metaphorical - as in the laws of the physicalsciences, or where applied to the behaviour of the lower animals.29 Everylaw was a command, that is the expression of a wish that the party towhom it was addressed did, or forbore to do, some act, and in case of hisnot so complying with the wish, he was liable to suffer some evil, called asanction, at the hands of the party by whom it was addressed. Commandshowever were of two sorts: those which referred generally to a classof acts or forbearances; and occasional or particular commands whichreferred to a specific act or forbearance. Only the former were lawsproper.30 Thus a law was 'a command which obliges a person or personsto a course of conduct'. The term command implied a relationshipof superior and inferior: superiority was the power of enforcing com-pliance with a wish, and the expression or intimation of a wish, with thepower and purpose of enforcing it, were the constituent elements ofa command.31 This relationship was that of sovereign and subject. Apositive law was set by a sovereign, whether a person or body of persons,to a member or members of the independent political society whereinthat person or body was sovereign or supreme. The source of the law wasirrelevant, since it was a law by the institution of that sovereign in thecharacter of political superior. The idea of sovereignty and independentpolitical society implied, first, that the bulk of the given society were in a

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JEREMY BENTHAM 65

habit of obedience or submission to a determinate and common superior,and second, that that determinate superior was not in the habit ofobedience to any other determinate human superior. The other membersof society were thus subject to this superior.32

However, positive law and positive morality would always be defec-tive: 'it is impossible that the rules of conduct actually obtaining amongstmankind should accord completely and correctly with the laws establishedby the Deity'. Positive law and morality, fashioned on the principle ofutility, were discovered by observation and induction from the tendenciesof human actions, and such observation and classification could never beperfectly complete. Nevertheless as the experience of mankind increased,legal and moral rules would be improved and approach closer to, thoughthey could never be totally in unison with, the dictates of general utility.33

Austin thus distinguished by the epithet 'positive' those rules of lawand morality which had a human source from those which had a divinesource. This at the same time severed them from any necessary normativecontent: a study of positive morality might amount merely to a descrip-tion of the moral laws prevalent in a certain nation at a certain time.Similarly, 'The science of jurisprudence . . . is concerned with positivelaws, or with laws strictly so called, as considered without regard to theirgoodness or badness.' The study of morality and law as they ought to bebelonged to the science of ethics, which had two corresponding branches:that which related to morality was the science of morals, and that whichrelated to law was the science of legislation.34 Austin therefore took fromBentham certain essential elements: a distinction between law as it is andas it ought to be; the conception of law as a command; a notion of politicalsovereignty which rested on a habit of obedience. Rumble points out thatAustin did disagree with Bentham on a number of other matters, such asthe use of rewards as sanctions, the need for judicial legislation, andthe uses of the study of Roman law, but concludes that 'he owed asubstantially larger intellectual debt to Bentham than to anyone else'.35

Yet in the crucial sense outlined above Austin's conception of juris-prudence was narrower than that of Bentham. He had much to say on therelationship of morality and law, and did not himself entirely repudiate acritical role for the jurist, but he did stress that the peculiar province ofthe science of jurisprudence wire exposition: there was in practice littleroom left for the censor. His followers in the analytical tradition in turndrew a rigid line between jurisprudence in this sense and the systematiccriticism of existing legal institutions, the science of legislation. A corollaryof this process of separating exposition from criticism was the separationof law from morality: law as a science was seen to be independent of anyethical basis. The censor disappeared entirely. Charles James Foster,36himself unusual amongst English jurists in championing a theory of

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natural law, adroitly commented that his 'opponents' in the analyticalschool

contend that Law ought to be, and is not, the enforcement of perfectmorality; and they regard the 'ought to be' as something practicallyso different from the 'is' as to require a separate line of scientificinvestigation to explain it. That investigation they abandon; con-tenting themselves solely with the latter.37

Foster's central concern was to show that morality and jurisprudencearose from the same source, but differed merely in regard to the sanctionswhich it was proper to apply to them.

The science of Morality 'teaches men their duty, and the reasons ofit.' Jurisprudence accepts equally the duties and the reasons, butacts within a narrower range. Morality concerns itself with all thatought to be done - Jurisprudence with that only which ought to beenforced.

Even though Austin had rendered essential service to the science of juris-prudence 'by his comprehensive conception of it, and rigorous develop-ment into the minutest details', his insistence on treating only the questionof what law is, as opposed to what law ought to be, was necessarilydeficient.39 Foster rejected 'the currently received basis', that law was aspecies of command, on the ground that it reduced the bulk of the internallaw of every community - its customs and popular morality - to the'abnormalism' of ex post facto legislation, and excluded international lawaltogether. Customs and recognized principles were not made law bybeing judicially adopted, but had to be judicially adopted because theywere law. In its place, the writings of Grotius would furnish a basis forjurisprudence.40 Grotius had shown that the idea of right and wrong, andas a necessary consequence the idea of lawfulness and unlawfulness,attached itself to all actions which affected others besides the agent; andthat men's perception of actions as right and wrong was intuitive.Accordingly, morality and law were independent of command, butdepended upon the sense of duty, responsibility, right, oughtness, whicharose in the mind when contemplating human conduct which affectedothers. Duty was the sense of 'moral necessity', that is the notion that oneacts in a certain way because one feels it to be right. The fundamental lawof duty, and the fundamental principle of morals and jurisprudence, was'doing as you would be done by': this law was necessary, immutable,universal and absolute.41 The subject-matter of the science of juris-prudence could therefore be defined as 'the voluntary conduct of man,considered as affecting others, and as capable of being controlled'. Butthis still did not distinguish it from morality, and so a further distinction

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JEREMY BENTHAM 67

had to be introduced. Though the same law, do that to others which youwould see done to yourself, was the foundation of morals and juris-prudence, the science of morals concerned the course of conduct whichought voluntarily to be pursued, while that of jurisprudence concernedonly a portion of this same conduct, namely that which ought to beenforced. The principle which determined whether the law should inter-fere was that of 'the preservation of the status quo'. In every instance inwhich the law properly interfered, its action was grounded upon a dis-turbance of the status quo by the person with whom it interfered.

I venture, then, to state it as the principle which severs the provincesof Morals and Legislation, that while you are morally bound to takeall such opportunities as offer of doing good to your fellow-man,and are not the less bound to act in his behalf, because the effect ofwhat you do may be to raise his condition even immeasurably higherthan it is now; while such is your moral duty, the Law's require-ments are exactly fulfilled, so long as you abstain from any conduct(act or omission) which, without his assent, would make his con-dition other than it actually is.

Thus the subject-matter for jurisprudence could finally be defined as 'thevoluntary conduct of human beings, altering the status quo of otherswithout their consent'.42

Austin, said Foster, had distinguished law as it ought to be from law asit is, but 'I regard Law "as it is," and Law "as it ought to be," as one andthe same thing.' This statement however required modification. Thoughthere was a perfect moral standard, in practice different communitieswould exhibit different moral standards, each approaching more or lessclosely to the perfect standard, according to the moral feeling whichprevailed there. The moral propriety of the law of each community wastested by its conformity with the state of the prevailing moral feeling:while a perfect system of jurisprudence would provide for the protectionof all the rights of nature, such rights did not exist where the desires uponwhich they were founded were not felt. Law was not, and ought not to be,the enforcement of perfect morality, but 'ought to be the enforcement ofmorality as it actually exists. In this sense we hold that Law is what itblight to Be.1*

The development of jurisprudence in the direction recognized byFoster, the abandonment of the investigation into the ought, and theconsequent attitude of jurists towards Bentham, was not only due toAustin's influence, but also a product of the relationship of jurists to theacademic and legal establishments. One of the greatest difficulties facingthe development of legal education was the resistance of the legal pro-fession to the idea of a formal course of study. Law had traditionally been

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learned as a trade in the offices of barristers, conveyancers and equitydraughtsmen - and what had served well in the past was regarded as goodenough for the present and the future. The problems for jurisprudencewere even more acute, since practitioners of the law were on the wholeuninterested in it: its study was therefore left mainly to those withacademic appointments. Yet provision for academic legal education ingeneral was scanty, and jurisprudence could command only a small partof the available resources. There had traditionally been some form oflegal education at the Inns of Court and at the universities of Oxford andCambridge, but in the early nineteenth century none of these institutionswere teaching English law in a systematic manner.44 There was someoptimism for the future of legal education at the foundation of UniversityCollege London in 1826, but hopes that the courses would attract intend-ing solicitors and civil servants proved unfounded.45 Austin, having beenappointed first Professor of Jurisprudence in the summer of 1827, beganhis first series of lectures in the 1829-30 session auspiciously enough withabout 30 auditors, including such distinguished men as John Stuart Mill,Edwin Chadwick, John Romilly, George Cornewall Lewis and CharlesBuller, but in November 1830 he had so few students that he postponedhis class to January 1831, whereupon he lectured to a handful. Austin,disappointed, ceased to lecture altogether in June 1833 and resigned hischair in January 1835.46 The chair remained vacant until the appointmentin 1839 of John Thomas Graves, who was more interested in mathematicsthan in jurisprudence.47

The lamentable state of English legal education was highlighted bya Select Committee Report of 1846 which criticized both Oxford andCambridge and the legal profession for their neglect of 'the science oflaw'. It called on the universities to extend the teaching of law, andrecommended that entry to the Inns and qualification for the Bar shouldbe subject to examination. The response of the Inns to this and later callsfor reform was slow and grudging. In 1852 they established the Council ofLegal Education in order to regulate the legal education of studentsbefore admission to the Bar, and five readerships were endowed. ARoyal Commission, which reported in 1856, and subsequent threats ofParliamentary intervention, were required before a nominal entranceexamination was introduced in 1872.48 Further half-hearted attemptswere periodically made to achieve a major reform in legal education,but by the end of the century little had become of them.49 The SelectCommittee felt that the universities should concentrate on the theoreticaland philosophical study of law: they were to leave the teaching of practi-cal skills to the profession. The Royal Commissioners appointed in1850 to report on the universities of Oxford and Cambridge found noimmediate improvement in the teaching of law, but they did provoke

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some response: at both universities, new chairs were endowed and degreecourses instituted. However, the stimulus given to legal studies seems tohave been meagre.50

The situation at London remained equally dismal. Part of the problemwas the lack of adequate financial provision for the teachers - theywere guaranteed a small sum, but were then expected to make up theirsalaries from fees from students.51 Unfortunately the number of studentsremained pitiably small, and teachers therefore tended to be part-time,making up their income from other sources.52 With the notable exceptionof Sheldon Amos,53 the nineteenth-century professors of jurisprudence atUniversity College published very little on the subject, and were oftenmore interested in other aspects of law or studies outside law altogether.As late as 1853, Foster, quoting the French jurist Lerminier's view that,'As regards the science of law, properly so called, England sleeps on forever', could only agree: 'Judging by the silence of our press, the neglect ofour universities, the slight recognition of our Inns of Court, and the publicindifference, the reproach seems only too just.' Little that had beenpublished on the subject had attracted attention since James Mackin-tosh's lectures on the law of nature and nations54 except Austin's Provinceof Jurisprudence, and this had long been out of print and no secondedition had yet appeared. Students who desired scientific training in lawhad to go to foreign universities: as for the English universities, at Oxfordand Cambridge jurisprudence was 'unheard of, while at London it wasstruggling to maintain itself. Finally, though each of the main branches ofEnglish law had been made the subject of a separate appointment in thereaderships established by the Inns of Court, jurisprudence had beenlumped together with civil law.5S

But some advance was eventually made: in the final third of the centurythe new posts and courses, particularly at Oxford and Cambridge, led tothe emergence of a group of eminent academic lawyers - men such asMaine, Bryce, Anson, Markby, Holland and Dicey. However, the newlaw dons faced the difficult task of establishing a role for themselveswithout provoking hostility. They had two sets of potential critics toappease: on the one hand they had to convince their university colleaguesof their academic respectability, and this ruled out a strictly vocationalcourse, which would at least have had some merit in the eyes of intendingpractitioners;56 on the other hand, they could not afford to alienate theBench and the Bar by taking a too critical stand towards the existingpractices of English law. According to David Sugarman, their solution layin claiming for the jurist the monopoly of 'a special body of expertise'.Law could be treated as a science, the task of the jurist being to expoundand analyse those general principles and concepts which underlay thescience but which were not easily apparent to those involved in the every-

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day practice of law. The subject was worthy of serious academic study anddid not trespass on the province of the practitioner.57 In consequence,'exposition, conceptualization, systematization and the analysis of exist-ing legal doctrine became equated with the dominant tasks of legaleducation and scholarship'. There were notable successes with thisapproach: an opportunity was provided by the abolition of the forms ofaction and the merging of law and equity to rethink the conceptualframework of the common law, and the law dons were able to compose anumber of influential law texts. Yet a difficulty still remained in that theexposition of general principles had in the past been the preserve of theBar and the Bench. Unable or unwilling to challenge these 'traditionaloracles of the law', they instead made a distinction between form andsubstance - the jurists refrained from criticizing the content of the law,but concentrated instead on its formal organization. Their main point ofcomplaint was not the common law, but the ever-increasing volumeof legislation which seemed at times to threaten the coherence of thecommon law. Criticism of the common law was not to be looked for in thelaw departments of the universities.58

The factors which promoted this approach to the study of the law alsoshaped their attitude to Bentham. Because the jurists felt the need tomake themselves acceptable to the legal establishment, and becauseBentham was regarded as the most furious critic of that establishment,they distanced themselves from him.59 In short, Bentham's radicalism wasunacceptable to a body of men who by both inclination and situationtended to be politically conservative. The strategy they adopted was tosuggest that though Bentham's criticisms of English law were just whenthey were made, they were no longer appropriate thanks to the reforms ofthe mid-nineteenth century. The keynote seems to have been set byJohn Stuart Mill's essay in the Edinburgh Review of 1863 on Austin'sLectures on Jurisprudence. Mill assigned an essentially destructive role toBentham, and a constructive one to Austin. In Bentham's time, the stateof the legal system had required a 'battering ram' rather than a 'builder'strowel'. The absurdities and irrationalities by which the study of the lawhad been characterized had needed to be swept away; what remainedhad then to be carefully reconstructed. Bentham had carried out thenecessary initial task - his purpose had been to discover what laws oughtto exist - while Austin in his turn had classified, defined and distinguishedlegal ideas - work which was equally indispensable, for it was only bymeans of clear analysis that the legislator could be made to understandhow he might effect his purposes. Hence, 'Mr. Austin's subject wasJurisprudence, Bentham's was Legislation.' Bentham had done 'what canonly be done once' - in short, he was no longer relevant.60 Mill's views onBentham's redundancy as a critic of the law were echoed by other writers.

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JEREMY BENTHAM 71

Sheldon Amos, writing several years later, felt that Bentham's con-temporary importance lay in his analytical method: as a reformer he nolonger mattered, a result of his very success, since 'many of Bentham'slegislative proposals have now been practically adopted'; while as amoralist, his ethical conclusions had been 'largely modified, if not super-seded'. His writings were valuable as 'educational treatises', likely toinstil in the student a 'true cross-questioning spirit'.61 Bryce, 40 years afterMill's review, remarked that Bentham's influence in the middle of thecentury had been due to his being the first 'to denounce the artificialities,absurdities, and injustices of the unreformed law and procedure ofEngland', while Austin's had been due to his combining a desire ofteaching and systematizing the law with a desire for reform, and this had'not unnaturally received the sympathy and the deference of the eageryouth who believed, and rightly believed, that the practice of the law, aswell as its substance, would gain from the application of an independentand fearless criticism to it'. Bentham's purpose had been the practicalreform of the law, and his school 'rendered a service to legal study inEngland by the keen east wind of criticism which they unloosed to playupon our law, and which ended by uprooting a good many old andprobably rotten trees'. However, 'the legal writings of Bentham and hisdisciples have now only a historical interest'.62 Bentham was thereforerendered impotent. He had served his purpose. He was cast in the role ofcensor, whose science was that of legislation. The modern jurist wasconcerned with exposition. A more detailed consideration of the views ofsome of the jurists from both of the main schools (which of courseregarded themselves as advocating competing theories) reveals a startlinguniformity in their attitude to Bentham, and in particular in their desire toexclude his art of legislation from the subject-matter of jurisprudence.

The jurists of the analytical school were certainly more sympathetic toBentham than those of the historical school, yet they tended to regardAustin as a clearer and more systematic writer. One reason for this wasprecisely Austin's demarcation of positive law and morality, which theyfelt Bentham had left confused. Such a separation, such a marking ofconceptual boundaries, was a necessary prerequisite to the treatment ofjurisprudence as a science. As such, it had to concern itself with universalrelations; the art of legislation, in contrast, depending as it did upon someabstract moral theory, was primarily concerned with substance - though itwas felt that an ethical science would eventually emerge, this was as yetan area of controversy and one which the jurist could, and should, avoid.

Nathaniel Lindley,63 for instance, in the copious notes he added to histranslation of Thibaut's System Des Pandekten Rechts, merely gave apr&cis of Austin's position, and indeed referred his readers to Province ofJurisprudence as 'a work wholly free from those mists which too often

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prove impenetrable to the student of writings on the philosophy of law'.Lindley contrasted the metaphorical use of the term 'law' when applied inthe physical sciences, where it stated what was found to be true undercertain conditions and admitted of no infringement, with its proper use,when it meant 'a command, actual or inferred, obliging intelligent beingsto some acts or forbearances of a class'. Such laws were capable ofinfringement - a person to whom the law was addressed could not law-fully disobey the command, but physically he could act in a contrarymanner, in which case he would have to suffer some consequence. Butthe jurist did not deal with all laws understood even in this restrictedsense. Laws were again divisible according to the source of the command:divine laws were commands proceeding, or supposed to proceed, fromGod; human laws proceeded from some person or body of persons.Human laws could be further divided into improper, when issued bypersons who were not political superiors (such as the laws of honourand fashion), and proper, when they were issued by political superiors.The subject-matter of jurisprudence was human laws proper and inter-national law, which formed a section of human laws improper.64

William Markby65 likewise unequivocally accepted Austin's commandtheory. He admitted that the topic of jurisprudence had been 'elaboratelydiscussed by Austin in his lectures', and that he had 'only stated his con-clusions', many of which rested upon arguments developed by Hobbesand Bentham. Law could only be understood in the framework of politi-cal society, that is where a person or number of persons possessed thepower of issuing commands to the rest, and where those commands weregenerally received with obedience. Law was composed of the generalbody of rules addressed by the rulers of a political society to the membersof that society, and which were generally obeyed. The aggregate ofpowers possessed by the rulers was called sovereignty. Though Markbyregarded himself as a Benthamite utilitarian, he felt that one of the greatmerits of Austin's conception of law was that it did not rest upon anyparticular theory of theology, morals or politics. Austin's major achieve-ment had been to distinguish between law and morals. Bentham hadmistakenly classed legislation under jurisprudence, whereas, as Austinhad shown, it clearly belonged to ethics. Austin had shown that there wasno necessary connection between law and morality - laws had to belegally binding, but they might at the same time be unjust. Resistance toauthority could not be a legal right, yet it might be a virtue.

Into whatever discussion the words 'right' and 'justice' enter we areon the brink of a confusion from which a careful observance of thedistinction between law and morals can alone save us.

The point was that although different people might appeal to different

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JEREMY BENTHAM 73

standards in regard to what law ought to be, there could be no dispute asto what the law actually was - there could only be, as Austin had shown,one source in each political community from which laws derived theirimperative force.66

Perhaps the most influential writer in the Austinian tradition wasThomas Erskine Holland,67 whose textbook Elements of Jurisprudence,first published in 1880, had run to nine editions by 1900. He followedMarkby in rejecting Bentham's conception of jurisprudence, arguing thatonly one branch of it as defined by Bentham could be regarded as ascience. Holland noted that what Bentham had called censorial juris-prudence, criticism of law as it was with a view to its amendment,belonged to the art of legislation, and not to jurisprudence. ThoughHolland accepted that the ultimate object of the law was 'the highest well-being of society', the jurist was not to be a censor: it was 'no part of ourundertaking to discuss the question how far Law may properly go in itsendeavours to promote the well-being of those within its sphere'. Juris-prudence was not concerned with the purposes of law, which was theprovince of the politician, but with the means it used to achieve them.Moreover expository jurisprudence as such, the exposition of existinglaw, did not quadrate with the idea of law as a science. Bentham hadcompounded the confusion by sub-dividing expository jurisprudence into'authoritative', that is law emanating from the legislative power, and'unauthoritative', in which he seemed to include textbooks both upon thelaws of a particular country, which he termed 'local jurisprudence', andthose upon law without special reference to any one country, 'universaljurisprudence'. Authoritative jurisprudence then was nothing more norless than a body of law, and unauthoritative local jurisprudence merecommentary: this left what Bentham called 'unauthoritative universaljurisprudence' as the science of jurisprudence.68

The task of the jurist was to analyse the concepts with which every legalsystem had to deal, even though they might deal with them in differentways. This was to make a sharp distinction between form and substance -jurisprudence dealt with the various relations which were regulated bylegal rules, and not with the rules themselves which regulated thoserelations. Legal relations were not discovered or studied a priori, as theymight or should have been, but a posteriori from actual systems of law,from law which had actually been imposed. A dynamic element wastherefore introduced, since generalizations might be altered in the light ofnew experience, though the 'broader distinctions, corresponding to deep-seated human characteristics, will no doubt be permanent'.69

Jurisprudence then was 'the formal science of positive law', a law beingin essence a command prescribing a course of action, disobedience towhich would be punished. This conception implied a lawgiver, who had

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power to enforce his commands. Holland, again following Austin, waskeen to distinguish the various senses in which the term 'law' had beenused, some of which were proper and some metaphorical. The use of theterm in the theoretical sciences, to indicate the observed relations ofphenomena, was metaphorical; its proper use was to indicate the idea ofrules of human action, and this was the sense in which it was used in thepractical sciences, and thus in jurisprudence. Such rules could be definedas precepts addressed to the will of a rational being. But there weretwo classes of precepts: the first, which belonged to the wider field ofmorality, were counsels, where obedience followed from a recognition ofthe reasonableness of the advice; the second, which implied a sanction,were commands, where obedience followed directly from the will of himwho commanded. Only the second class were strictly 'laws'. Furthermorelaws were general commands, relating to courses of conduct, as opposedto special commands, which enjoined only a particular action.

Laws, therefore, in the vague sense of rules of human action, arepropositions commanding the doing, or abstaining from, certainclasses of actions; disobedience to which is followed, or is likely tobe followed, by some sort of penalty or inconvenience.70

Positive law and positive morality were not distinguished on any sub-stantive basis, but simply according to the authority which enforced thesanction in the case of an infraction. The moral sciences were divided intoethics and nomology: the former dealt with 'states of the will' irrespectiveof their outward manifestation in action; the latter with 'states of thewill' only in so far as they were manifested in action. This distinctionechoed that of Austin's between divine, or abstract, morality and positivemorality. Nomology, the science of external action, was therefore con-cerned with the conformity of outward actions to rules of conduct, andso included jurisprudence within its province. It was itself divided onthe basis of whether the authority by which the rules which formed itssubject-matter were enforced was indeterminate or determinate. Therewas no definite authority that could be appealed to in the case of theinfraction of moral laws. Laws properly so-called were rules set by adeterminate authority, a political sovereign, and enforced by it. Thusevery state or political society had one part that was sovereign, andanother that was subject. Until the state was formed there could be no lawin the strict sense of the term, though there might be rules of morality andcustomary rules of conduct. Before such rules were properly laws, theyhad to be recognized by the state, either expressly or tacitly.71 Holland'sjurisprudence was in a crucial respect a very impoverished version of thetheory which Bentham had developed a century before. For Benthamthe purpose of jurisprudence had been the reform of the existing law;

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Holland excluded this notion altogether from its subject-matter: heelevated logical analysis, the instrument to this end, into the end itself.This produced a jurisprudence which was avowedly apolitical - one whichhad developed, via Austin, from Bentham's methodology, but which hadrejected his critical utilitarianism and the demands for reform which thatimplied.

The analytical jurists in practice excluded any normative element fromthe study of jurisprudence. The historical school however attempted toshow that the relationship between law and morality was more thancontingent, and thereby to claim a place for morals in jurisprudence. Thepolitical implications of this approach were conservative. Their theory ofthe evolution of law gave a prescriptive legitimacy to existing practicesand institutions, which they saw as reflecting moral ideas and feelings.There was no need for the censor in a radical Benthamite sense, for law asit is was linked to law as it ought to be by social fact. The seminal work forthe historical school was Maine's Ancient Law, published in 1861. Maine,while accepting the need to develop a science of law, and the contributionwhich analysis could make to this, felt that previous legal theories,including the analytical, did not fully explain the nature of law:

There is such wide-spread dissatisfaction with existing theories ofjurisprudence, and so general a conviction that they do not reallysolve the questions they pretend to dispose of, as to justify thesuspicion that some line of inquiry necessary to a perfect result hasbeen incompletely followed or altogether omitted by their authors.

They failed to take account of what law actually had been 'at epochsremote from the particular period at which they made their appearance'.Their proponents observed carefully the institutions of their own age andcivilization, and those of other ages and civilizations with which theyhad some degree of intellectual sympathy, 'but, when they turned theirattention to archaic states of society which exhibited much superficialdifference from their own, they uniformly ceased to observe and beganguessing'. Observation had not yet taken the place of assumption as it hadin the natural sciences. By beginning with the simplest societies, onecould more easily identify the basic ideas and institutions which moderncomplex societies tended to obscure: though primitive societies at firstsight appeared strange and uncouth, and thus difficult to understand, astudy of them would reveal 'the germs out of which has assuredly beenunfolded every form of moral restraint which controls our actions andshapes our conduct at the present moment'.72 This had been Bentham'sfailing, for he had 'neglected and perhaps despised' historical enquiry.73

According to Maine, Bentham and Austin had resolved every law intothe command of a lawgiver, an obligation being imposed thereby on the

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citizen, and a sanction threatened in the event of disobedience; further-more it was predicated of a command that it must prescribe not a singleact, but a series or number of acts of the same class. (This was indeedAustin's view; Bentham however allowed that a mandate which hadreference to a single action was in fact a law.) This interpretation tallied'exactly with the facts of mature jurisprudence' and 'by a little straining oflanguage' it could be made 'to correspond in form with all law, of allkinds, at all epochs'. However the further back into primitive thought onetook one's enquiries, the less did Bentham's conception of law appearcorrect. Maine's major criticism was that law in the earliest societies wasnot the command of a legislator: neither a legislator, nor still less alegislature, was contemplated or conceived of. Law had not even takenthe form of custom, but amounted to a judicial sentence after the facts: itconsisted of ad hoc decisions made by kings who were supposed to beacting under the influence of some supernatural power. The decision didnot presuppose a law which had been violated, nor did the judgmentsthemselves become laws in the sense that they were afterwards applied toall citizens in similar circumstances, but was restricted to the prescriptionof a single act.74 A period of 'true customary law' followed when theadministration of law passed out of the hands of kings and was appro-priated by military and political aristocracies, who claimed to have anexpert knowledge of the rules. Because of their need to remember pastrulings and pass this knowledge on to their successors, tradition andprecedent were introduced systematically into the law. The next stage ofdevelopment took place when these rules were written down or codified.The point in the evolution of the society in question at which suchcodification occurred was crucial to its subsequent legal development. Itmarked the end of the 'natural' evolution of the legal system, and furtherprogress depended upon 'artificial' means - the conservatism of fixedlegal rules had to be reconciled with progressive social opinion by suchmeans as, in chronological order of appearance, legal fictions, equity andlegislation. Hence it was only late in the career of legal systems, and onlyin those few which became progressive, that legislatures came to play aprominent role.75

At the turn of the century, James Bryce was similarly critical of theanalytical jurists for their neglect of history. However his characteriza-tion of Bentham's theory of law was much less fair than Maine's, andsounded almost like parody:

According to Bentham and his followers, there is in every Statea Sovereign who enjoys unlimited physical, and therefore alsounlimited legal, power. His might makes his right. He rests on Forceand rules by Fear. He has the sole right of issuing Commands.

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JEREMY BENTHAM 77

His Commands are Laws. They are enforced by Threats, and areobeyed in respect of the apprehension of physical harm to follow ondisobedience.

Bryce accepted that in the last resort physical force had to be used tocoerce those who wished to do harm to the community, but argued thatmany other factors were necessary to the formation of political states.76He posited three objections to the command theory of law. Firstly, itsuggested an inaccurate view of the origin of law and was inapplicable tothe laws of many communities. In some communities there had beenlaws but no state capable of imposing any sanction in the event ofdisobedience, while in all communities there had been laws which hadbeen obeyed but had not emanated from the state. The greater part of therules which determined the relations of individuals or groups to oneanother had in most countries 'until comparatively recent times' restedupon custom, that is long-settled practice which everyone understoodand in which everyone acquiesced, and which did not require formalpromulgation in order to secure observance.

Secondly, even in mature states where regular legislative authoritiesexisted, most laws did not belong, either in form or meaning, to thecategory of commands. Statute law, for instance, took the form of acommand more often than other kinds of law, yet in England administra-tive statutes were usually couched in the form of an authorization,making action legal which might otherwise have been illegal. The largestand most important part of the law, which determined the private rightsof citizens - such matters as contract, succession and trust - was com-posed of doctrines which the courts had applied in certain circumstancesand would apply in future in similar circumstances, and thus becameinstructions to the citizens as to how far they might get the law, andphysical force, on their side in civil disputes. The only branch of law whichwas properly covered by the command theory was penal or criminal law,for this branch did consist of express orders or prohibitions accompaniedby threats of punishment.

It may be conjectured that the Benthamites took their notion of lawin general from this particular department of it, or perhaps from theTen Commandments in the Book of Exodus, which, though nodoubt good examples of the categorical imperative, are anythingbut typical of law in general.

Thirdly, fear was not primarily or chiefly the cause of obedience Civilsociety had its source in the tendency of men to aggregate, imitate,comply and submit:

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it is by the natural or providential order of things, and in virtue ofthe constitution of man as a social being, that men are grouped intocommunities under leaders who judge among them.

Force was necessary to the state to ensure that the law was obeyed, butthe state was only able to apply that force because the same gregariousinfluences which had drawn men into society in the first place continuedto operate to keep them together - they willingly gave to the state themeans on which its physical force depended. The Benthamite theory wassimplistic because it ignored the lessons of history and the conclusions ofpsychology and sociology on the question of the grounds of obedience.77

Bryce noted that anyone writing about law could not but use theanalytical method, indeed it 'may possibly have been used in Egyptunder the Fourth Dynasty'. However, in the form in which it had beendeveloped by Bentham and his school, it had fallen into two 'graveerrors'. Firstly, it had laid the foundations of legal science in the theory ofutility, which, whether sound or not, had nothing to do with the analyticalmethod, nor with positive law. In the first place, it was a theory of humanaction which properly belonged to ethics or psychology; and in the secondplace, in so far as it could be said to affect law, it affected neither theclassification and exposition, nor the application of law, but the makingof law: 'That is to say, it belongs not to the jurist but to the legislator. Itsplace is that of a practical guide to the science we call the Principles ofLegislation.' Utility, or expediency, had always guided legislators, but itwould have a dangerous practical effect if the courts were to apply it as thestandard of judgment: this would give too great a latitude to judges, whowould be prone to abuse their position. Ironically, Bryce was criticizingBentham on the same grounds that Bentham had criticized the commonlaw - the dangers of judge-made law. Secondly, the analytical schoolrelied too much upon current English terms and notions. Its proponentsdid not extend their view far enough either into the past, or over the legalsystems of other times and countries. Austin went to Roman law for ideaswhich he thought English law lacked, but he did not fully understand theRoman system nor appreciate the full extent of some of the legal diffi-culties he attempted to overcome. 'Hence his solutions are sometimescrude, and his efforts, in themselves most laudable, after exactitude, areapt to fail for want of subtlety.' On several fundamental questions,moreover, such as the origin and essence of law and the nature ofsovereignty, Austin was 'palpably wrong'.78

Although there were two distinct traditions in English jurisprudence inthe second half of the nineteenth century, some writers did attempt toreconcile them.79 These writers were closer in spirit to the analyticalschool in that their aim was an accurate definition and classification of

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legal terms, to which a historical understanding of the evolution of thoseterms was an aid. Yet they tried to integrate the findings of the historicalschool into their theory, and in particular hoped to establish some sort ofnecessary connection between morality and law. Denis Caulfield Heron,for instance, in his Introduction to the History of Jurisprudence, suggestedthat it was the task of the science of jurisprudence to unite the historicaland analytical schools of legislation, which he associated respectivelywith Savigny and Bentham: 'For actual legislation ought always to be acompromise between history and philosophy.'80 Sheldon Amos made aserious attempt to achieve some sort of synthesis. He wished to build onthe work of Bentham and Austin, but take account of the findings andcriticisms of the historical school. Austin had developed one vital aspectof the science of law, but the other aspect had to be supplied by thehistorical method. Amos noted that until the beginning of the nineteenthcentury law had been studied only as an art, the application of rules topractice, but it had then come to be appreciated that law could also bestudied as a science. This had been partly due to the fashion for codifi-cation in Europe, which had led to the recognition in the law of generallogical principles, and partly due to the writings of Bentham and Austin.Bentham's remorseless criticism had produced a feeling that if Englishlaw was not the perfection of reason, 'then there must be some reasonablestandard to which the law of every country logically must, and morallyought, to conform'. This stimulated a desire to search for and ascertainwhat this standard might be.81 Bentham himself had not been aware of theimportance of his work in this respect. He had been distracted by hisbusiness as a revolutionary reformer, and too impatient to make purelyhistorical inquiry, to develop intentionally and bring to maturity such ascience, but he had employed 'the true analytical and inductive methodsby which alone the Science of Jurisprudence could be brought intoexistence'. It was to Austin that 'the true foundation of the Scienceof Jurisprudence must be attributed'.82 Austin's influence had been 'veryextensive', and was 'likely to be of a permanent sort'. Like Bentham,Austin had 'established a new method of exact reasoning in reference toall the leading notions with which law is concerned', but he had gonebeyond Bentham in that 'he conceived the existence of a distinct branchof study, of a severely scientific character, and conversant with thelogical principles which necessarily and invariably underlie every possiblesystem of law'. There was much which Austin left incomplete - his ethicalanalysis was inadequate, his logical definitions were sometimes need-lessly subtle, and he was often pedantic - but these criticisms must not beallowed to overshadow his achievement in identifying and developingjurisprudence as a true science.83

In what, then, did this science consist? Amos, while accepting that

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laws could be reduced to the form of a command,84 rejected the ideaput forward by Austin that laws of human conduct were qualitativelydifferent from 'laws' in nature. Greatly influenced by the positivism ofComte, he attempted to place the study of law on the same 'scientific'basis as all other branches of human knowledge. He explained that therewas no sharp distinction between the 'physical' and 'moral' sciences - allsciences rested 'upon facts and notions permanent as well as universal'and only differed in regard to the place they occupied on a scale measur-ing their susceptibility to human control - metaphysics, ethics, law andpolitics belonged to one end of the scale; political economy, sociologyand mental physiology to the middle; and the rest of the sciences to theother end. Those which depended more on the action of the human mind,and were expressed by means of language, as opposed to those whichdepended merely on observation and recording of facts perceptible tothe senses, required 'a profound investigation of the mode of evolution ofevery term . . . as a preliminary to a careful definition of the term forfuture use'. The phenomena dealt with by the science of law were not onlychanging, but had also to be expressed in a language that itself waschanging. The student of law as science had therefore to trace back themeaning of leading terms to their origin in the historical and ethicaldevelopment of man, and in man's social and political necessities. Adetailed analysis of the meaning of terms was necessary to distinguishwhat was permanent and universal in legal notions from what was transi-tory and partial. Hence the importance of the work of Maine - 'thehistory of early law, and of primitive states of society. . . has added to thestructure of the Science of Law a most essential wing'.85 Amos did not seethe analytical and historical schools as opposed, but rather as comple-mentary. An understanding and knowledge of the history and develop-ment of institutions provided the data for the jurist, and the general anduniversal concepts he discovered in his particular examples also revealedsomething general and universal about ethics, politics and other relatedsciences of man.86

The Science of Jurisprudence may be said, broadly, to deal with thenecessary and formal facts expressed in the very structure of civilsociety, as that structure is modified and controlled by the facts ofcivil government and of the constitution of human nature and thephysical universe.

To claim that jurisprudence was a science was to claim that it dealt withsequences of facts which were invariable for all times and places. Nowsince law was a body of commands formally published by a sovereignpolitical authority, the presence of law implied the presence of govern-

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JEREMY BENTHAM 81

ment - jurisprudence therefore dealt with certain sequences of factsinvariably present in all countries which had some form of government.The presence of law also implied the existence of two different sets ofpersons in the community: firstly, those who devised and imposed thelaw; secondly, those to whom the law was addressed and whom the firstset of persons punished in the event of the law being disobeyed. Therelation of lawgivers and law-receivers, though possible of a great varietyof forms, involved certain permanent and invariable sequences. Forinstance, every law contemplated the possibility of an act of disobedienceto it, and every act of alleged disobedience entailed certain inevitableconsequences: (1) allegation by the lawgiver, or his representative, thatthe act complained of was forbidden by law, which involved interpreta-tion of the law and the production of evidence; (2) allegation of moralresponsibility in the offender, that is an allegation that the breach in thelaw was intentional; (3) adjudication; and (4) punishment. Thesesequences, which it was the province of the science of jurisprudence todiscover and explain, existed to some degree or other in every particularsystem of positive law.87

Amos argued that legal notions often gave expression to moral ones.At the beginning of society, legal rules had developed out of the actualcontroversies that had arisen from men's moral claims and moral situa-tions, and which had called for decision at the hands either of thegoverning authority or of umpires selected to resolve a single dispute. 'Itis because men are doubtful about what is and what ought to be that lawcomes in to determine what shall be.' Thus moral claims were convertedinto legal rights, and moral ties into legal duties.88 However it wasimportant to keep legal and moral notions conceptually distinct. Moralitytook account both of men's thought and feeling as well as acts, whereaslaw was primarily interested in men's acts, and thought and feeling onlyso far as was necessary to explain the 'real character' of those acts. Lawcould be formulated into rules or logical propositions, but not morality.

Every moral principle is tested and described solely by the circum-stances which surround its application. It must rest with every manat the crisis of action to determine his own conduct.

He might be guided by previous examples, by the exhortations of moralteachers, and by maxims and rules; but no rule could be universallyapplicable. Responsibility for action rested with the agent alone. Law onthe other hand dealt in general rules, and providing these were properlypublished there was no room for doubt whether a contemplated act wouldbe legal or illegal.89 This was not to say however that the science of lawrested upon any particular moral theory - rather it took concepts whichwere common to all moral theories, conscience, right, duty, will, wrong,

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injury, intention - 'eternal moral terms expressive of facts which nocontroversialist denies' - which were the subject-matter of law, and werecapable of identification and classification.90

Hence he criticized both 'the school of Bentham' for 'allowing but ahair's-breadth of separation between Morals and Law', and 'their moreignorant opponents', the school of natural law writers, for attempting 'todeluge Law with Morality'.91 According to Amos, Bentham's method wasto approach all moral and all legal rules in exactly the same way, and totest their value by one identical method - their conduciveness to thegreatest happiness of the greatest number. The difference between a legalrule and a moral rule was, by this account, merely one of degree, and notof kind: a legal rule proceeded from a political sovereign and its infringe-ment was punishable by that authority in a definitely prescribed way,while a moral rule proceeded from an indeterminate number of personsand its infringement was only punishable at the hands of some of them insome indefinite way. Moral rules only differed from law in the characterof the imposing authority, and in the cogency of the sanction or penalty.

The direct effect of this mode of reasoning was to lose sightaltogether of any permanent distinction and relation between lawand morality, and thus to merge the Science of Law into the Scienceof General Ethics. . . . But the indirect effect was very different.It was the annihilation of morality as a region permanently inde-pendent of law.

Bentham had failed to keep law and morality conceptually distinct - inshort he confounded the science of jurisprudence with the science oflegislation. It had been left to Austin, 'the true founder of the Science ofLaw', to separate law 'from the dead body of morality that still clung toit'. Austin recognized the use of the utilitarian test as applied to thepolitical value of laws, and that the proper use of this test was an essentialingredient in the ethical judgment of the value of human actions. But hetried to discriminate between the region of law and that of morality,claiming for the region of law a peculiar and distinct scientific character.From his comparative study of English and Roman law evolved the ideaswhich, being permanent and universal, gave substance to the science oflaw. Fortunately Austin did not get entangled in metaphysics: 'he was justbroad enough to free himself from Bentham, and just narrow enough tosave himself from Kant and Hegel."2

Alexander Henry, a successor of Amos in the chair of Jurisprudence atUniversity College London,93 seems in many respects to have taken asimilar view, though his short pamphlet is not detailed enough to give acomprehensive account of his ideas. Jurisprudence was the science ofpositive law, and as such was to be differentiated from the science of

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JEREMY BENTHAM 83

legislation, which dealt with laws as they ought to be, 'or more accurately,as those who write on this subject say they ought to be - using some test bywhich they affirm good laws can be distinguished from bad ones'. Thegreatest writer on the science of legislation was Bentham, 'who, taking"utility" as his test, has left us a noble monument of accurate andexhaustive reasoning in almost every branch of this important subject'.Bentham however could not be described as a writer on the science ofjurisprudence. As for the relationship of law to morality, no system oflaws attempted to enforce all moral duties, while every system enforcedlegal duties which found no place in any moral code. Nevertheless the'positive morality' of a nation, in Austin's sense, that is the general viewof the people as to right and wrong, had 'a transcendent influence on thelaws of that people'.

The science of law consisted of two parts, the first 'an analysis and aclassification of the general principles which are to be found in advancedsystems of law', and the second 'the discovery of the origin and growth oflegal notions'. The analysis of general principles, and the classificationand arrangement of legal notions, had been treated very fully by suchwriters as Austin, Amos, Holland and Markby. The study of the originand growth of legal notions however was not so advanced: Maine hadbeen a pioneer in this field, but Savigny and the historical school ofGermany, by confining their attention to the study and development ofRoman and German law, had not provided a wide enough basis for ageneral system. The facts on which this part of the science would bebased would be derived from study of the customs and laws of allnations, whether barbarous or civilized, whether past or present, andfrom symbols and survivals.94

John Salmond,'5 like Amos and Henry, while in general accepting theidea of law as a command, argued that neither logical analysis nor theconclusions of the historical school were in themselves sufficient, and thatsome sort of combination of the two was necessary. Salmond explainedthat jurisprudence, as the science of law, included in its widest sense allspecies of obligatory rules of human action: its three categories were civiljurisprudence, international jurisprudence and natural jurisprudence. Ina narrow sense, however, and this was the sense in which Salmond treatedit, jurisprudence was the science of civil law (a term he consideredmore accurate than 'positive' law), which in turn he divided into threebranches: systematic, historical and critical.

The first deals with the present; its purpose is the exposition of thelegal system as it now is. The second deals with the past; it isconcerned with the legal system in the process of its historicaldevelopment. The third deals with the ideal future; it expounds the

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law not as it is or has been, but as it ought to be. Systematicjurisprudence is legal exposition; historical jurisprudence is legalhistory; while critical jurisprudence is commonly known as thescience of legislation.96

Salmond made an important distinction between abstract justice andlaw, a distinction which corresponded to that made by Austin betweenabstract morality and positive law. The law amounted to the rules recog-nized and acted on in courts of justice,97 but this did not necessarilycoincide with abstract justice: 'Legal justice may conflict with naturaljustice. A legal wrong may not be also a moral wrong, nor a legal duty amoral duty.' The primary purpose of a judicature was not to enforce law,but to maintain justice. Indeed the existence of law was not necessary tothe administration of justice - there was no logical necessity for fixedprinciples: these brought certain advantages - uniformity and certainty,and the exclusion of partiality and error on the part of judges - againstwhich certain disadvantages had to be offset - rigidity, conservatism,formalism and complexity.98

The imperative theory did express an important part of the truth aboutlaw - 'the central fact that law is based on physical force'. Moreoverthe criticism of the historical school, that the theory, plausible enoughwhen applied to modern, developed societies, was inapplicable to moreprimitive communities, because early law had its source in custom,religion or opinion and was not the command of the state, missed themark. For instance, Salmond commented, Austin might reply that thiswas to replace logic with history - the historical approach was a valuablesupplement to the logical and analytical, but was not a substitute. Indeedsuch a view failed to distinguish between the formal and material sourcesof law - the material source of law might be custom and religion, and inearly times legislation might have been unknown. Nevertheless, 'Itsformal source is that from which it obtains the nature and force of law.This is essentially and exclusively the power and will of the state.' How-ever the imperative theory was itself deficient, being 'one-sided andinadequate - the product of an incomplete analysis of juridical con-ceptions'. A first criticism was that imperative rules, while constitutingthe most important part of the law, did not constitute the whole of it.There were various kinds of non-imperative rules in a legal system, forinstance permissions and rules of judicial procedure. Most importantlythe command theory failed to explain the connection between moralityand law. The full conception of law included not only the idea of force,but also that of right or justice.

If rules of law are from one point of view commands issued by thestate to its subjects, from another standpoint they appear as the

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JEREMY BENTHAM 85

principles of right and wrong so far as recognised and enforced bythe state in the exercise of its essential function of administeringjustice.

The established law in a particular state might fall far short of what wastruly right, though this did not impugn its legal validity.

Nevertheless in idea law and justice are coincident. It is for theexpression and realisation of justice that the law has been created,and like every other work of men's hands it must be defined byreference to its end and purpose."

Salmond had to an extent restored the censor to jurisprudence, but hewas a sort of secular natural lawyer and not a utilitarian critic.

Bentham's direct influence on nineteenth-century English juris-prudence was limited because jurists, to whichever school of thought theybelonged, refused to treat his work seriously and often misunderstood it:the story might have been different if Of Laws in General had beenavailable, but still they would have been repelled by his radicalism. Theyhad in a sense to exorcize his ghost. His criticisms had been valid whenthey were made; the law had been reformed accordingly; he had becomea figure of no more than historical interest. He was given some credit forthe development of an analytical method, but even here his thinkinghad been confused. The jurists argued that Bentham, because his objec-tives had been primarily political, had mistakenly included the art oflegislation, the reform of the law, within the subject-matter of juris-prudence; the proper province of jurisprudence however, as Austin haddemonstrated, was the exposition of universal legal relations. Thisdemarcation of the subject not only adapted it to the prevailing paradigmof scientific knowledge, but also proved to be politically expedient. Thejurists were able to advance their claims to academic respectability in theuniversities while at the same time proving their usefulness to a conserva-tive legal establishment. Yet in a more indirect way Bentham probablyhad a much greater influence than the jurists were ready to admit: forit was his very division of jurisprudence into expository and censorialbranches, the consequent separation of law and morality, and his inter-pretation of law as the command of a sovereign, that dominated much ofthe jurisprudential debate in the later nineteenth century. Austin mayhave been recognized as the father of jurisprudence, but it was really thebastard child of Bentham.

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NOTES

1. The author is especially indebted to Professor William Twining, Mr Andrew Lewis andProfessor David Sugarman for help and advice in the preparation of this paper.

2. Cf. Leslie Stephen, The Life of Sir James Fitzjames Stephen Bart., K. C.S.I. A Judge ofthe High Court of Justice, London, 1895, p. 204: 'Austin's authority has declined as thehistorical method has developed.'

3. For the wider intellectual context see Stefan Collini, Donald Winch and John Burrow,That Noble Science of Politics: A study in nineteenth-century intellectual history, Cam-bridge, 1983, pp. 207-46.

4. Jeremy Bentham's Economic Writings, ed. W. Stark, 3 vols., London, 1952-4, i. 100-1.See Douglas Long, 'Bentham as Revolutionary Social Scientist', Man and Nature/L'Homme et Nature, vi (1987), 115-45.

5. A Comment on the Commentaries and A Fragment on Government, ed. J. H. Burns andH.L. A. Hart, London, 1977, p.397.

6. See An Introduction to the Principles of Morals and Legislation, ed. J.H. Burns andH.L. A. Hart, London, 1970 [hereafter IPML], pp.293-5.

7. Ibid.,p.lln.8. Ibid., pp. 11-12.9. Ibid., pp.282-3, 293.

10. See M.H. James, 'Bentham on the Individuation of Laws', in Bentham and LegalTheory, ed. M. H. James (reprint of Northern Ireland Legal Quarterly, xxiv (1973)),pp. 93-4.

11. Of Laws in General, ed. H.L. A. Hart, London, 1970, pp. 1-2.12. Ibid., p. 18.13. Ibid., pp.21-5.14. Ibid., pp. 232-3. See also H. L. A. Hart, Essays on Bentham: Studies in Jurisprudence

and Political Theory, Oxford, 1982, p. 125.15. See Wilfrid E. Rumble, The Thought of John Austin: Jurisprudence, Colonial Reform,

and the British Constitution, London, 1985, p.4.16. David Sugarman, 'Legal Theory, the Common Law Mind and the Making of the

Textbook Tradition'

SCHOFIELD, Philip, « Jeremy Bentham and Nineteenth-Century English Jurisprudence », 1991

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