« AnteriorContinuar »
to avoid calling upon them for a vigorous effort of attention, and that without such an effort, no ideas can be imbibed but such as are loose
And knowing that there are many persons who are competent to explain popularly, all that can be popularly explained; for one who can follow out a long train of thought, and conceive and express it at once with clearness and with precision ; that the former may teach the people, but it belongs to the latter only to teach the teachers of the people. Our author has chosen for himself the higher, and more difficult, though less conspicuous and less honoured part.
He has accordingly produced a work which requires to be read, in the antique sense of that term, not as we read a novel, but rather as men read for honours at the University. But the work will repay those who shall so read it. As all know who have ever really learnt any thing, real knowledge never comes by easy reading. Nobody ever set about learning Latin by running through the Latin Grammar. Mr. Austin's work is part of the grammar of a science. As such, it is not a book for any but persons who are really anxious to learn ; but to them, it is such a book as they delight in. The author's style is a model of perspi. cuity : the concatenation of his propositions is free from all obscurity; and the reader will find no difficulty but that which is inseparable from the attempt to communicate precise ideas.
The volume consists of the preliminary lectures of a course delivered by Mr. Austin at the University of London, and which we had the good fortune of hearing. An outline of the entire course is annexed to the present publication.
We shall endeavour to give as sufficient a conception as can be given in a few words, of what our author understands by Jurisprudence, as distinguished from the philosophy of Legislation.
Both these sciences are conversant with laws; namely, laws in the strict sense, laws set to man by man, in the character of a political superior. But though the subject-matter of both sciences be the same, both do not look at it under the same aspect.
The philosophy of legislation is conversant with laws, as a contrivance for accomplishing certain ends. It considers what are the purposes of law; and judges of the means, according as they are well or ill adapted to the accomplishment of those purposes. It teaches the requisites of a good law; and what particular laws would be good or bad, either universally, or under any supposable set of circumstances.
Jurisprudence, on the other hand, does not take any direct cognizance of the goodness or badness of laws, nor undertake to weigh the motives which lead to their establishment: it assumes their existence as a fact, and treats of their nature and properties, as a naturalist treats of any natural phenomenon. It furnishes an analytical exposition, not indeed of any particular system of existing laws, but of what is common to all or most systems of law.
In the first place, the very notion of a law is an extremely complex idea: that of a body of laws, still more so. These ideas have to be analyzed. The component elements of a law, and of a body of laws, and the suppositions which they involve, must be precisely determined and
For instance, a law supposes a political superior from whom the law emanates : what is a political superior? All laws create obligations, and are clothed with sanctions; all laws (certain peculiar cases excepted) create rights: but what is meant by an obligation, a sanction, a right ? Every body of laws recognises a distinction between
civil law and criminal law, between private law and constitutional law : is there any rational foundation for these distinctions, and what is it?
Further, laws operate only by creating rights, and duties, or obligations. The rights and duties which the law of any country creates, are the law itself. Now these rights and duties fall so naturally into certain classes, form themselves so naturally into certain groups, that in all or almost all bodies of law, which men have tried to reduce into any thing like a systematic order, an effort has been made to grasp these very groups, and bind them together by appropriate technical terms. But the attempt has generally been a most lame and impotent one, partly for want of what may be called the coup d'ail of a practised logician, which enables him, like an experienced general, to survey an entire field at once, and either comprehend an actual arrangement, or frame an imaginary one, without being bewildered by the multitude of details ; and still more for want of mastery over the casual associations connected with familiar terms, and of the capacity to wield every word as a mere instrument to convey a thought ; an instrument which may be taken up and laid down at pleasure. The classes which have been formed are not properly classes at all, for they are not separated by plain wellmarked boundaries, but cross one another in all directions. It is im. possible to define them, because no property can be found common to an entire class; or none but what may also be found in something that is absurdly left out of the class. Yet, as before observed, the authors of these unskilful classifications have always had indistinctly before their eyes certain natural groups, which they have been ineffectually attempting to hit, and to find some means of circumscribing within the bounds of a general expression. Hence, if we were to strip off from the arrangement and technical language of each system of law, whatever is purely accidental, and (as it may be termed) historical, having a refer. ence solely to the peculiar history of the institutions of the particular people ; if we were to take the remainder, and regularize and correct it according to its own general conception and spirit; we should bring the nomenclature and arrangement of all systems of law existing in any civilized society, to something very nearly identical.
Now the science of jurisprudence, as an author conceives it, endeavours to disentangle these natural groups (with which all classifications coincide in the gross, and none accurately) from the environment which surrounds them, of terms without any precise meaning, except perhaps a historical one; and distinctions answering to no difference, except, per. haps, one which has ceased to exist. The natural groups are thus brought into strong relief; a distinct conception is gained of their boundaries; and compact and precise names may be obtained to designate them by. When this is done, a commanding view may be taken of the detailed provisions of any existing body of law, the rights and duties which it establishes :
: they may be rendered cognoscible, as Mr. Bentham would say; a common framework is obtained, into the compartments of which all bodies of law may be distributed; and a systematic exposition might be given with comparative ease, either of one or of any number of legal systems, in parallel columns.
Thus prepared, the student of any existing system of law would no longer find it a mass of inextricable confusion; he would be enabled, in a comparatively short time, to obtain a far more perfect mastery of the system than was ever possessed by those who made it. An expository law book would then be so constructed as to be a lesson of clear ideas,
instead of being almost enough to incapacitate the mind from ever forming one. And the legislator who would either reduce any existing body of laws into a code, or draw up an improved system, would reap two benefits. The whole of the rights and duties which past legislators have thought it desirable to create, would be brought compendiously under his view ; and he would have an arrangement, and a technical language ready made, which would be an excellent basis for him to start from in framing his own. For though classification is not made by nature, but is wholly an affair of convenience, one most important part of the con-. venience of any classification is, that it shall coincide, as far as possible, with the mode in which the ideas have a natural tendency to arrange themselves.
Unfortunately, the science of jurisprudence as thus conceived, mostly remains still to be created. No person, however, is qualified to do more towards creating it than the author whose work is now before us. Whatever assistance is to be derived on the one hand from the Roman lawyers and their German successors; on the other, from our own immortal Bentham, he has thoroughly possessed himself of. And his course of lectures, if it were completed as it has been begun, would, we think, leave little for any successor in the same field. The present work, however, is merely an introduction ; and even in his oral lectures, the Professor had not space to complete more than a small part of his in. tended scheme. There are portions, however, of what he has actually delivered (and which we hope may one day be published) still more instructive and interesting than what is here given.
The volume now published is occupied in “ determining the province of jurisprudence,” by analyzing the notion of a law, in the strict sense of the term ; namely, a law set by a political superior ;-and discriminating it from whatever else has received the name of law; whereof our author distinguishes three kinds, namely, laws set to man by God; laws (analogically so called) which may be said to be prescribed by opinion ; and laws so called only by metaphor, as when we speak of the law of gravitation.
These various notions are defined and discriminated from one another with rare logical power, and superiority over the trammels of language. In addition to this main object of the work, it abounds in valuable discussions on incidental topics. To mention only one of these discussions, (the largest, and most important,) that great question which has occupied so many of the most gifted minds, the foundation of moral obliga. tion, and the nature of the standard or test of right and wrong, whether it be utility or an instinctive principle, forms the principal subject of no less than three lectures; being introduced under the head of the Divine Law, in the form of an inquiry, in what way the unrevealed portion of that law is made known to us. This investigation will be the most in. teresting part of the present volume to the general reader. Mr. Austin is a strong partisan of the doctrine which considers utility as the test or index to moral duty. Though he has stated some, he has omitted others of the essential explanations with which we think that this doctrine should be received; but he has treated the question in a most enlarged and comprehensive spirit, and in the loftiest tone of moral feeling; and has discussed certain branches of it in a manner which we have never seen equalled.
Valuable as this work is in the intrinsic merits of its contents, its greatest value, after all, is, we think, as a logical discipline to the mind.
We hardly ever read a book which appears to us, if duly studied, to have so great a tendency to accustom the mind to habits of close and precise thinking; of using every word with a meaning, or meanings accurately settled, rigidly adhered to, and always present to the mind ; of never leaving off with a half-solution of a doubt or difficulty, but sticking to it till nothing remains unexplained.
Mr. Austin's style is more remarkable for clearness and precision than ease ; but it is perfectly unaffected; and his language is the rich, expressive, homely English, of his favourite writers, Hobbes and Locke.
It would be injustice to our author to conclude this notice without affording him an opportunity of speaking for himself ; but it would be still greater injustice to exhibit a mere fragment of a philosophic investigation, the merit of which must of course be mainly dependent upon its connected and systematic character. Our specimens must necessarily be selected from the merely parenthetical passages. The following may perhaps serve, as well as any others, to give a conception of our author's general turn of thought and expression.
The first passage that we shall quote is a Pisgah view of the future improvement of the moral sciences :
“ If there were a reading public, numerous, discerning, and impartial, the science of ethics, and all the various sciences which are nearly related to ethics, would ad. vance with unexampled rapidity.
“ By the hope of obtaining the approbation which it would bestow upon genuine merit, writers would be incited to the patient research and reflection, which are not less requisite to the improvement of ethical, than to the advancement of mathematical science.
“ Slight and incoherent thinking would be received with general contempt, though it were cased in polished periods, studded with brilliant metaphors. Ethics would be considered by readers, and, therefore, treated by writers, as the matter or subject of a science ; as a subject for persevering and accurate investigation, and not as a theme for childish and babbling rhetoric.
“ This general demand for truth, (though it were clothed in homely guise,) and this general contempt of falsehood and nonsense, (though they were decked with rhetorical graces,) would improve the method and the style of inquiries into ethics, and into the various sciences which are nearly related to ethics. The writers wonld attend to the suggestions of Hobbes and of Locke, and would imitate the method so successfully pursued by geometers : though such is the variety of the premises which some of their inquiries involve, and such are the complexity and ambiguity of some of the terms, that they would often fall short of the perfect exactness and coherency which the fewness of his premises, and the simplicity and definiteness of his expressions, enable the geometer to reach. But, though they would often fall short of geometrical exactness and coherency, they might always approach, and would often attain to them. They would acquire the art and the habit of defining their leading terms; of steadily adhering to the meanings announced by the definitions ; of carefully examining and distinctly stating their premises; and of deducing the consequences of their premises with logical vigour. Without rejecting embellishments which might happen to fall in their way, the only excellencies of style for which they would seek are precision, clearness, and conciseness ; the first being absolutely requisite to the successful prosecution of inquiry, whilst the others enable the reader to seize the meaning with certainty, and spare him unnecessary fatigue.
“ And, what is equally important, the protection afforded by this public to diligent and honest writers would inspire into writers upon ethics, and upon the nearly related sciences, the spirit of dispassionate inquiry : the indifferency'or impartiality in the pursuit of truth, which is just as requisite to the detection of truth as continued and close attention, or sincerity and simplicity of purpose. Relying on the discernment and the justice of a numerous and powerful public, shielded by its countenance from the shafts of the hypocrite and the bigot, indifferent to the idle whistling of that harmless storm, they would scrutinize established institutions, and current or received opinions, fearlessly but coolly, with the freedom which is imperiously demanded by general utility, but without the antipathy which is begotten by the dread of persecution, and which is scarcely less adverse than the love of things ancient’to the rapid advancement of science.
“ This patience in investigation, this distinctness and accuracy of method, this freedom and indifferency in the pursuit of the useful and the true, would thoroughly dispel the obscurity by which the science is clouded, and would clear it from most of its uncertainties. The wish, the hope, the prediction of Mr. Locke, would, in time, be accomplished; and “ethics would rank with the sciences which are capable of demonstration. The adepts in ethical, as well as in mathematical science, would commonly agree in their results ; and, as the jar of their conclusions gradually subsided, a body of doctrine and authority, to which the multitude might trust, would emerge from the existing chaos. The direct examination of the multitude would only extend to the elements, and to the easier, though more momentous of the deriva. tive practical truths. But none of their opinions would be adopted blindly, nor would any of their opinions be obnoxious to groundless and capricious charge. Though most or many of their opinions would still be taken from authority, the authority to which they would trust might satisfy the most scrupulous reason. In the unanimous or general consent of numerous and impartial inquirers, they would find that mark of trustworthiness which justifies reliance on authority, wherever we are debarred from the opportunity of examining the evidence for ourselves.”—Pp. 81-4.
We had marked several passages for quotation : but space presses, and we must conclude with the following estimate of Dr. Paley :
“ The treatise by Dr. Paley on Moral and Political Philosophy exemplifies the natural tendency of narrow and domineering interests to pervert the course of inquiry from its legitimate purpose.
“ As men go, this celebrated and influential writer was a wise and a virtuous man. By the qualities of his head and heart, by the cast of his talents and affections, he was fitted, in a high degree, to seek for ethical truth, and to expound it successfully to others. He had a clear and a just understanding; a hearty contempt of paradox, and of ingenious but useless refinements; no fastidious disdain of the working peo. ple, but a warm sympathy with their homely enjoyments and sufferings. He knew that they are more numerous than all the rest of the community, and he felt that they are more important than all the rest of the community to the eye of unclouded reason and impartial benevolence.
“ But the sinister influence of the position, which he unluckily occupied, cramped his generous affections, and warped the rectitude of his understanding.
“ A steady pursuit of the consequences indicated by general utility, was not the most obvious way to professional advancement, nor even the short cut to extensive reputation. For there was no impartial public, formed from the community at large, to reward and encourage with its approbation an inflexible adherence to truth.
“ If the bulk of the community had been instructed, so far as their position will permit, he might have looked for a host of readers from the middle classes. He might have looked for a host of readers from those classes of the working people, whose wages are commonly high, whose leisure is not inconsiderable, and whose mental powers are called into frequent exercise by the natures of their occupations or callings. To readers of the middle classes, and of all the higher classes of the working people, a well-made and honest Treatise on Moral and Political Philosophy, in his clear, vivid, downright, English style, would have been the most easy and attractive, as well as instructive and useful, of abstract or scientific books.
“ But those numerous classes of the community were commonly too coarse and ignorant to care for books of the sort. The great majority of the readers who were likely to look into his book, belonged to the classes which are elevated by rank or opulence, and to the peculiar professions or callings which are distinguished by the name of liberal.' And the character of the book which he wrote, betrays the po. sition of the writer. In almost every chapter, and in almost every page, his fear of offending the prejudices, commonly entertained by such readers, palpably suppresses the suggestions of his clear and vigorous reason, and masters the better affections which inclined him to the general good.
“ He was one of the greatest and best of the great and excellent writers, who by the strength of their philosophical genius, or by their large and tolerant spirit, have given imperishable lustre to the Church of England, and extinguished or softened the hostility of many who reject her creed. He may rank with the Berkeleys and Butlers, with the Burnets, Tillotsons, and Hoadleys.
“ But in spite of the esteem with which I regard his memory, truth compels me to add, that the book is unworthy of the man. For there is much ignoble truckling to the dominant and influential few. There is a deal of shabby sophistry in defence or extenuation of abuses which the few are interested in upholding."-Pp. 79-81.