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Jeremy Bentham and
nineteenthcentury English
jurisprudence
Philip Schofield
a
a
Bentham Project, University College London
Published online: 30 Jul 2007.
To cite this article: Philip Schofield (1991) Jeremy Bentham and
nineteenthcentury English jurisprudence , The Journal of Legal History, 12:1,
58-88, DOI: 10.1080/01440369108531028
To link to this article: http://dx.doi.org/10.1080/01440369108531028
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Jeremy Bentham and
Nineteenth-Century English
Jurisprudence
1
PHILIP SCHOFIELD*
Two main schools of jurisprudential thought emerged in England in the
second half of the nineteenth century. The analytical school, founded on
the work of John Austin, who had in turn taken the leading features of his
theory from the ideas of Jeremy Bentham, was the more influential. It
was characterized by the logical analysis of 'universal' legal concepts, by a
theoretical distinction between law and morality, and by a definition of
law as the command of a sovereign. But just as in Germany in the early
nineteenth century the philosophical school came to be opposed by the
historical school associated with Savigny, so in England the analytical
school came under increasing attack from a historical school which took
its inspiration from Henry Sumner Maine.
2
Its exponents disputed the
view that all law could be resolved into the command of a sovereign, and
instead laid stress on custom, religion and opinion as original and more
important sources of law. They claimed that logical analysis, though a
necessary tool of the jurist, did not sufficiently explain the nature of law;
a full understanding required careful investigation into the origin and
evolution of legal practices. This would reveal the ways in which moral
ideas were connected, as social fact, with actual legal rules. Nevertheless,
influenced by prevailing positivist ideas, both schools were united in their
aim to develop a science of law.
3
In this endeavour they had superficially
much in common with Bentham: yet the story of nineteenth-century
English jurisprudence is essentially one of reaction against Bentham.
Bentham's self-appointed task had been to develop a science of human
action, by the application of which he had hoped to increase the greatest
happiness of the greatest number:
any . . . work of mine that has been or will be published on the
subject of legislation or any other branch of moral science is an
attempt to extend the experimental method of reasoning from the
physical branch to the moral. What Bacon was to the physical
* Bentham Project, University College London
THE JOURNAL OF LEGAL HISTORY, Vol.12, No.l, May 1991, pp.58-88
PUBLISHED BY FRANK CASS, LONDON
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JEREMY BENTHAM 59
world, Helvetius was to the moral. The moral world has therefore
had its Bacon, but its Newton is yet to come.
4
He aimed to be the Newton of the moral world, and his jurisprudence was
central to this undertaking. The starting point was an accurate definition
and precise understanding of the meaning of certain fundamental legal
terms. Having achieved this, he would then be in a position to show what
the law should be and how existing institutions might be reformed to
bring them into line with that vision. Accordingly, Bentham's conception
of jurisprudence had two branches: the first expository, and the second
censorial, or the art of legislation. 'To the province of the Expositor it
belongs to explain to us what, as he supposes, the Law is: to that of the
Censor, to observe to us what he thinks it ought to be.'
5
He divided
expository jurisprudence into authoritative, when it was the product of
the 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, and
universal jurisprudence, concerned with the laws of all nations. Though
in substance no two nations had exactly the same laws, while others
possibly had none in common, there were certain words corresponding to
concepts, for instance power, right, obligation, liberty, which could be
found in all. It followed that universal expository jurisprudence had very
narrow limits: it could not apply to the substance of laws, but 'must
confine 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 nations
to introduce into their laws.
6
At the root of Bentham's philosophy, and underpinning his conception
of jurisprudence, was the principle of utility or, as he later preferred to
call it, the greatest happiness principle.
7
An action was accordingly good
or bad, right or wrong, insofar as it increased or diminished the happiness
of the persons affected by it, happiness being composed of an excess of
pleasure over pain. Men's actions were necessarily directed towards
increasing their own pleasure, so the greatest happiness principle was not
merely an ethical principle, did not merely explain how an agent ought to
conduct 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 of
interests which existed between different members of the community. In
practice, each individual, left to himself, would merely pursue his own
greatest happiness without regard to the effect his actions might have on
the happiness of the greatest number. The legislator had to provide
sufficient 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 be
replaced by an artificial identification of interests. This was achieved by
the promulgation of laws, which, by the application of sanctions, whether
punishments or rewards, to certain actions, would either encourage or
discourage their performance. The point of applying linguistic analysis to
legal terms was to aid the legislator in this task: he could not otherwise
understand what he had to do, or know when he had accomplished his
end. It was therefore necessary to ascertain:
what sort of a thing a law is; what the parts are that are to be found in
it; what it must contain in order to be complete; what the connection
is between that part of a body of laws which belongs to the subj ect of
procedure; 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 the
actions of human beings to the end of utility.
9
Legal terms which enjoyed only a linguistic reality, and were in
Bentham'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 real
entities which were the essential elements of a law were acts of the will
and acts of the body.
10
Hence,
A law may be defined as an assemblage of signs declarative of a
volition conceived or adopted by the sovereign in a state, concern-
ing the conduct to be observed in a certain case by a certain person
or class of persons, who in the case in question are or are supposed
to be subject to his power: such volition trusting for its accomplish-
ment to the expectation of certain events which it is intended such
declaration should upon occasion be a means of bringing to pass,
and the prospect of which it is intended should act as a motive upon
those whose conduct is in question.
A law, or mandate, therefore was the expression of a sovereign will (and
thus imperative), and applied to acts of persons subject to that sovereign;
this expression of will received its force from the apprehension of those
subject to it that should they disobey it they would be liable to suffer
certain sanctions; such sanctions operated as motives or inducements to
them 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 implied
that of a state - a sovereign was a person or aggregate of persons to whose
will a whole political community was in the habit of obedience. It was
quite 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 as
forming one sovereign.
12
A law might be that of the sovereign in one of
two ways: firstly by conception, where the sovereign in question himself
first issued it; secondly by adoption, where it was first issued by some
person other than the sovereign himself, but where it was known that it
was his will that if the issuing body in question should express a will
concerning 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 the
sovereignty and that is not illegal, is in one sense or the other the
mandate of the sovereign. Take any mandate whatsoever, either it
is of the number of those which he allows or it is not: there is no
medium: if it is, it is his; by adoption at least, if not by original
conception: if not, it is illegal, and the issuing it an offence.
Thus it was that conveyances and covenants acquired validity - adopted
by the sovereign, they were converted into mandates.
13
An accurate analysis of terms would, amongst other things, guide the
legislator in such a way that he would avoid the opposite evils of weakness
and tyranny in the law; it would restrain the discretion of judges, whose
decisions would be made subservient to the ends of utility; it would
exhibit a common standard to which the actual systems of law existing in
particular countries could be compared,
to the end that what is excellent in one system may be transferred
into 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 of
his neighbours and contemporaries. . .
and it would give impetus to the teaching of the art of legislation, and
thereby lead to a wider diffusion of its principles.
14
The expositor was to
be the servant of the censor, who in turn would be the adviser of the
legislator.
Bentham's conception of jurisprudence was wide-ranging. Yet English
jurisprudence in the second half of the nineteenth century, influenced by
the 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. Even
the analytical school, which was associated by friends and foes alike
with Bentham, came to concentrate on the mere exposition of legal
terminology. This was partly a result of the way in which Bentham's ideas
were interpreted by John Austin, for it was Austin, and not Bentham,
who was the major influence on nineteenth-century jurisprudence.
15
Austin was a friend and admirer of Bentham, but it is now generally
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62 THE JOURNAL OF LEGAL HISTORY
accepted that his theory of law was, compared with that of Bentham, a
narrow one.
16
And it was also a result of the social and political forces
influencing those who were trying to develop jurisprudence as a subject
worthy of academic study. There was of course a more general reaction
against the utilitarian ethic and its political manifestations, but more
significant for the reception of Bentham's jurisprudence were the con-
straints imposed upon the law dons of the second half of the century by
the 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 first
part of the lectures he had delivered at University College London, had
been published as early as 1832, he had refused to allow any reprint on the
grounds that the work contained many uncorrected defects.
17
It was left to
his wife, Sarah, to publish a second edition in 1861, and then to edit his
remaining lecture notes to publish in 1863 an expanded work, Lectures on
Jurisprudence or the Philosophy of Positive Law. Later editions, a third
being published in 1869, a fourth in 1873 and a fifth in 1885, were edited
and revised by Robert Campbell, who collated the author's original
manuscripts with notes taken by John Stuart Mill at the original delivery
of 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.
19
This in turn suggests that Bentham was not being studied in any great
depth. Bentham's thought was usually approached through Fragment on
Government and IPML, and the recension of this latter work and other
material written at about the same time, edited by Etienne Dumont,
published in 1802 in French under the title of Traites de legislation. This
amounted to a very small sample of his total writings. Nor did the eleven-
volume edition of his works prepared by John Bowring and published in
1843 seem to stimulate any great scholarly interest.
21
Moreover, though
the Bowring edition included several previously unpublished essays, it
did not unfortunately include Of Laws in General, which has emerged
as 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 at
University College London by Charles Warren Everett in 1939.
22
It is
Professor Hart's conjecture that had Bentham himself published Of Laws
in General,
it, rather than John Austin's later and obviously derivative work,
would have dominated English jurisprudence, and that analytical
jurisprudence, 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 since
Bentham's days.
23
This assessment gains support from the view expressed at the beginning
of the present century by James Bryce:
24
though very much a critic of
Bentham, he regarded his work as fertile and inventive, whereas he felt
that of Austin was barren.
25
The theory of law which Austin developed was very much derived from
Bentham, but he defined the proper province of jurisprudence in a much
narrower way and drew a firmer distinction between analysis of legal
terms and reform of the law, between jurisprudence and legislation. The
role of the jurist was equated with that of the expositor, and the censorial
dimension was pushed into the background. To some extent this may
have been due to Austin's more conservative political outlook, which was
reflected in the version of the theory of utility he espoused. This was
essentially that developed by William Paley in his popular and influential
Principles of Moral and Political Philosophy (1785), and now known as
'theological utilitarianism'. It was the will of God that his creatures
should 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 an
action to promote human happiness was a test of its coincidence with the
will of God. Observation of the tendencies of classes of actions would
produce laws or rules, by which conduct would on most occasions be
guided. The principle of utility had in practice commonly guided the
legislator.
In so far as law and morality are what they ought to be (or in so far as
law and morality accord with their ultimate test, or in so far as law
and morality accord with the Divine commands), legal and moral
rules have been fashioned on the principle of utility, or obtained by
observation and induction from the tendencies of human actions.
26
Austin seems to have believed that legislators had in fact been guided by
the general interest; Bentham had contended, at least after his 'con-
version' to political radicalism in 1809, that they had acted according to
their 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 them
wanting, Austin's theological utilitarianism tended to see those same
practices and institutions as embodying utility.
27
The value of existing
institutions, and therefore of expository jurisprudence, which was of
course concerned with those institutions, was in this way enhanced by
Austin's moral theory.
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64 THE JOURNAL OF LEGAL HISTORY
If what was accorded in the main with what ought to be, a separate study
of the latter could come to be regarded as of little relevance: once one had
explained what was, one had also explained what ought to be. Austin
himself never went so far (in fact this attitude was more characteristic of
the historical school) but such a tendency was implicit; and the tendency
to marginalize the study of the ought was very much strengthened by
Austin's demarcation of Bentham's censorial jurisprudence, the art of
legislation, from what he regarded as the proper subject-matter of juris-
prudence. In order to show what belonged strictly to the science of
jurisprudence, Austin made a clear distinction between positive laws and
other sorts of 'laws' with which they were connected by analogy, namely
the 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 a
rule 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 his
human creatures, and laws set by men to men: of these latter, those which
were established by political superiors were called positive laws, and
formed the subject-matter of jurisprudence; others were established and
enforced by opinion, 'the opinions or sentiments held or felt by an
indeterminate body of men', and included the law of honour, the law of
fashion, and much of international law - this class of law could be called
positive morality. Where the term law was applied in a case where there
was no will, the use was metaphorical - as in the laws of the physical
sciences, or where applied to the behaviour of the lower animals.
29
Every
law was a command, that is the expression of a wish that the party to
whom it was addressed did, or forbore to do, some act, and in case of his
not so complying with the wish, he was liable to suffer some evil, called a
sanction, at the hands of the party by whom it was addressed. Commands
however were of two sorts: those which referred generally to a class
of acts or forbearances; and occasional or particular commands which
referred to a specific act or forbearance. Only the former were laws
proper.
30
Thus a law was 'a command which obliges a person or persons
to a course of conduct'. The term command implied a relationship
of superior and inferior: superiority was the power of enforcing com-
pliance with a wish, and the expression or intimation of a wish, with the
power and purpose of enforcing it, were the constituent elements of
a command.
31
This relationship was that of sovereign and subject. A
positive law was set by a sovereign, whether a person or body of persons,
to a member or members of the independent political society wherein
that person or body was sovereign or supreme. The source of the law was
irrelevant, since it was a law by the institution of that sovereign in the
character of political superior. The idea of sovereignty and independent
political 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 of
obedience to any other determinate human superior. The other members
of 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 amongst
mankind should accord completely and correctly with the laws established
by the Deity'. Positive law and morality, fashioned on the principle of
utility, were discovered by observation and induction from the tendencies
of human actions, and such observation and classification could never be
perfectly complete. Nevertheless as the experience of mankind increased,
legal and moral rules would be improved and approach closer to, though
they could never be totally in unison with, the dictates of general utility.
33
Austin thus distinguished by the epithet 'positive' those rules of law
and morality which had a human source from those which had a divine
source. This at the same time severed them from any necessary normative
content: 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 positive
laws, or with laws strictly so called, as considered without regard to their
goodness or badness.' The study of morality and law as they ought to be
belonged to the science of ethics, which had two corresponding branches:
that which related to morality was the science of morals, and that which
related to law was the science of legislation.
34
Austin therefore took from
Bentham certain essential elements: a distinction between law as it is and
as it ought to be; the conception of law as a command; a notion of political
sovereignty which rested on a habit of obedience. Rumble points out that
Austin did disagree with Bentham on a number of other matters, such as
the use of rewards as sanctions, the need for judicial legislation, and
the uses of the study of Roman law, but concludes that 'he owed a
substantially 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 the
relationship of morality and law, and did not himself entirely repudiate a
critical role for the jurist, but he did stress that the peculiar province of
the science of jurisprudence wire exposition: there was in practice little
room left for the censor. His followers in the analytical tradition in turn
drew a rigid line between jurisprudence in this sense and the systematic
criticism of existing legal institutions, the science of legislation. A corollary
of this process of separating exposition from criticism was the separation
of law from morality: law as a science was seen to be independent of any
ethical basis. The censor disappeared entirely. Charles James Foster,
36
himself unusual amongst English jurists in championing a theory of
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66 THE JOURNAL OF LEGAL HISTORY
natural law, adroitly commented that his 'opponents' in the analytical
school
contend that Law ought to be, and is not, the enforcement of perfect
morality; and they regard the 'ought to be' as something practically
so different from the 'is' as to require a separate line of scientific
investigation 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 jurisprudence
arose from the same source, but differed merely in regard to the sanctions
which it was proper to apply to them.
The science of Morality 'teaches men their duty, and the reasons of
it.' Jurisprudence accepts equally the duties and the reasons, but
acts within a narrower range. Morality concerns itself with all that
ought to be done - Jurisprudence with that only which ought to be
enforced.
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 question
of what law is, as opposed to what law ought to be, was necessarily
deficient.
39
Foster rejected 'the currently received basis', that law was a
species of command, on the ground that it reduced the bulk of the internal
law of every community - its customs and popular morality - to the
'abnormalism' of ex post facto legislation, and excluded international law
altogether. Customs and recognized principles were not made law by
being judicially adopted, but had to be judicially adopted because they
were law. In its place, the writings of Grotius would furnish a basis for
jurisprudence.
40
Grotius had shown that the idea of right and wrong, and
as a necessary consequence the idea of lawfulness and unlawfulness,
attached itself to all actions which affected others besides the agent; and
that men's perception of actions as right and wrong was intuitive.
Accordingly, morality and law were independent of command, but
depended upon the sense of duty, responsibility, right, oughtness, which
arose in the mind when contemplating human conduct which affected
others. Duty was the sense of 'moral necessity', that is the notion that one
acts in a certain way because one feels it to be right. The fundamental law
of 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'. But
this 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 you
would see done to yourself, was the foundation of morals and juris-
prudence, the science of morals concerned the course of conduct which
ought voluntarily to be pursued, while that of jurisprudence concerned
only a portion of this same conduct, namely that which ought to be
enforced. The principle which determined whether the law should inter-
fere was that of 'the preservation of the status quo'. In every instance in
which 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 provinces
of Morals and Legislation, that while you are morally bound to take
all 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 of
what you do may be to raise his condition even immeasurably higher
than 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 'the
voluntary conduct of human beings, altering the status quo of others
without their consent'.
42
Austin, said Foster, had distinguished law as it ought to be from law as
it is, but 'I regard Law "as it is," and Law "as it ought to be," as one and
the same thing.' This statement however required modification. Though
there was a perfect moral standard, in practice different communities
would exhibit different moral standards, each approaching more or less
closely to the perfect standard, according to the moral feeling which
prevailed there. The moral propriety of the law of each community was
tested by its conformity with the state of the prevailing moral feeling:
while a perfect system of jurisprudence would provide for the protection
of all the rights of nature, such rights did not exist where the desires upon
which 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 of
morality as it actually exists. In this sense we hold that Law is what it
blight to Be.
1
*
The development of jurisprudence in the direction recognized by
Foster, the abandonment of the investigation into the ought, and the
consequent attitude of jurists towards Bentham, was not only due to
Austin's influence, but also a product of the relationship of jurists to the
academic and legal establishments. One of the greatest difficulties facing
the 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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68 THE JOURNAL OF LEGAL HISTORY
learned as a trade in the offices of barristers, conveyancers and equity
draughtsmen - and what had served well in the past was regarded as good
enough for the present and the future. The problems for jurisprudence
were even more acute, since practitioners of the law were on the whole
uninterested in it: its study was therefore left mainly to those with
academic appointments. Yet provision for academic legal education in
general was scanty, and jurisprudence could command only a small part
of the available resources. There had traditionally been some form of
legal education at the Inns of Court and at the universities of Oxford and
Cambridge, but in the early nineteenth century none of these institutions
were teaching English law in a systematic manner.
44
There was some
optimism for the future of legal education at the foundation of University
College London in 1826, but hopes that the courses would attract intend-
ing solicitors and civil servants proved unfounded.
45
Austin, having been
appointed first Professor of Jurisprudence in the summer of 1827, began
his first series of lectures in the 1829-30 session auspiciously enough with
about 30 auditors, including such distinguished men as John Stuart Mill,
Edwin Chadwick, John Romilly, George Cornewall Lewis and Charles
Buller, but in November 1830 he had so few students that he postponed
his class to January 1831, whereupon he lectured to a handful. Austin,
disappointed, ceased to lecture altogether in June 1833 and resigned his
chair in January 1835.
46
The chair remained vacant until the appointment
in 1839 of John Thomas Graves, who was more interested in mathematics
than in jurisprudence.
47
The lamentable state of English legal education was highlighted by
a Select Committee Report of 1846 which criticized both Oxford and
Cambridge and the legal profession for their neglect of 'the science of
law'. It called on the universities to extend the teaching of law, and
recommended that entry to the Inns and qualification for the Bar should
be subject to examination. The response of the Inns to this and later calls
for reform was slow and grudging. In 1852 they established the Council of
Legal Education in order to regulate the legal education of students
before admission to the Bar, and five readerships were endowed. A
Royal Commission, which reported in 1856, and subsequent threats of
Parliamentary intervention, were required before a nominal entrance
examination was introduced in 1872.
48
Further half-hearted attempts
were periodically made to achieve a major reform in legal education,
but by the end of the century little had become of them.
49
The Select
Committee felt that the universities should concentrate on the theoretical
and philosophical study of law: they were to leave the teaching of practi-
cal skills to the profession. The Royal Commissioners appointed in
1850 to report on the universities of Oxford and Cambridge found no
immediate improvement in the teaching of law, but they did provoke
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JEREMY BENTHAM 69
some response: at both universities, new chairs were endowed and degree
courses instituted. However, the stimulus given to legal studies seems to
have been meagre.
50
The situation at London remained equally dismal. Part of the problem
was the lack of adequate financial provision for the teachers - they
were guaranteed a small sum, but were then expected to make up their
salaries from fees from students.
51
Unfortunately the number of students
remained pitiably small, and teachers therefore tended to be part-time,
making up their income from other sources.
52
With the notable exception
of Sheldon Amos,
53
the nineteenth-century professors of jurisprudence at
University College published very little on the subject, and were often
more 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 for
ever', could only agree: 'Judging by the silence of our press, the neglect of
our universities, the slight recognition of our Inns of Court, and the public
indifference, the reproach seems only too just.' Little that had been
published on the subject had attracted attention since James Mackin-
tosh's lectures on the law of nature and nations
54
except Austin's Province
of Jurisprudence, and this had long been out of print and no second
edition had yet appeared. Students who desired scientific training in law
had to go to foreign universities: as for the English universities, at Oxford
and Cambridge jurisprudence was 'unheard of, while at London it was
struggling to maintain itself. Finally, though each of the main branches of
English law had been made the subject of a separate appointment in the
readerships established by the Inns of Court, jurisprudence had been
lumped together with civil law.
5S
But some advance was eventually made: in the final third of the century
the new posts and courses, particularly at Oxford and Cambridge, led to
the emergence of a group of eminent academic lawyers - men such as
Maine, Bryce, Anson, Markby, Holland and Dicey. However, the new
law dons faced the difficult task of establishing a role for themselves
without provoking hostility. They had two sets of potential critics to
appease: on the one hand they had to convince their university colleagues
of their academic respectability, and this ruled out a strictly vocational
course, which would at least have had some merit in the eyes of intending
practitioners;
56
on the other hand, they could not afford to alienate the
Bench and the Bar by taking a too critical stand towards the existing
practices of English law. According to David Sugarman, their solution lay
in 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 expound
and analyse those general principles and concepts which underlay the
science but which were not easily apparent to those involved in the every-
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70 THE JOURNAL OF LEGAL HISTORY
day practice of law. The subject was worthy of serious academic study and
did 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 legal
education and scholarship'. There were notable successes with this
approach: an opportunity was provided by the abolition of the forms of
action and the merging of law and equity to rethink the conceptual
framework of the common law, and the law dons were able to compose a
number of influential law texts. Yet a difficulty still remained in that the
exposition of general principles had in the past been the preserve of the
Bar and the Bench. Unable or unwilling to challenge these 'traditional
oracles of the law', they instead made a distinction between form and
substance - the jurists refrained from criticizing the content of the law,
but concentrated instead on its formal organization. Their main point of
complaint was not the common law, but the ever-increasing volume
of legislation which seemed at times to threaten the coherence of the
common law. Criticism of the common law was not to be looked for in the
law departments of the universities.
58
The factors which promoted this approach to the study of the law also
shaped their attitude to Bentham. Because the jurists felt the need to
make themselves acceptable to the legal establishment, and because
Bentham was regarded as the most furious critic of that establishment,
they distanced themselves from him.
59
In short, Bentham's radicalism was
unacceptable to a body of men who by both inclination and situation
tended to be politically conservative. The strategy they adopted was to
suggest that though Bentham's criticisms of English law were just when
they were made, they were no longer appropriate thanks to the reforms of
the mid-nineteenth century. The keynote seems to have been set by
John Stuart Mill's essay in the Edinburgh Review of 1863 on Austin's
Lectures on Jurisprudence. Mill assigned an essentially destructive role to
Bentham, and a constructive one to Austin. In Bentham's time, the state
of the legal system had required a 'battering ram' rather than a 'builder's
trowel'. The absurdities and irrationalities by which the study of the law
had been characterized had needed to be swept away; what remained
had then to be carefully reconstructed. Bentham had carried out the
necessary initial task - his purpose had been to discover what laws ought
to exist - while Austin in his turn had classified, defined and distinguished
legal ideas - work which was equally indispensable, for it was only by
means of clear analysis that the legislator could be made to understand
how he might effect his purposes. Hence, 'Mr. Austin's subject was
Jurisprudence, Bentham's was Legislation.' Bentham had done 'what can
only be done once' - in short, he was no longer relevant.
60
Mill's views on
Bentham'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 no
longer mattered, a result of his very success, since 'many of Bentham's
legislative proposals have now been practically adopted'; while as a
moralist, his ethical conclusions had been 'largely modified, if not super-
seded'. His writings were valuable as 'educational treatises', likely to
instil in the student a 'true cross-questioning spirit'.
61
Bryce, 40 years after
Mill's review, remarked that Bentham's influence in the middle of the
century had been due to his being the first 'to denounce the artificialities,
absurdities, and injustices of the unreformed law and procedure of
England', while Austin's had been due to his combining a desire of
teaching and systematizing the law with a desire for reform, and this had
'not unnaturally received the sympathy and the deference of the eager
youth who believed, and rightly believed, that the practice of the law, as
well as its substance, would gain from the application of an independent
and fearless criticism to it'. Bentham's purpose had been the practical
reform of the law, and his school 'rendered a service to legal study in
England by the keen east wind of criticism which they unloosed to play
upon our law, and which ended by uprooting a good many old and
probably rotten trees'. However, 'the legal writings of Bentham and his
disciples have now only a historical interest'.
62
Bentham was therefore
rendered impotent. He had served his purpose. He was cast in the role of
censor, whose science was that of legislation. The modern jurist was
concerned with exposition. A more detailed consideration of the views of
some of the jurists from both of the main schools (which of course
regarded themselves as advocating competing theories) reveals a startling
uniformity in their attitude to Bentham, and in particular in their desire to
exclude his art of legislation from the subject-matter of jurisprudence.
The jurists of the analytical school were certainly more sympathetic to
Bentham than those of the historical school, yet they tended to regard
Austin as a clearer and more systematic writer. One reason for this was
precisely Austin's demarcation of positive law and morality, which they
felt Bentham had left confused. Such a separation, such a marking of
conceptual boundaries, was a necessary prerequisite to the treatment of
jurisprudence as a science. As such, it had to concern itself with universal
relations; the art of legislation, in contrast, depending as it did upon some
abstract moral theory, was primarily concerned with substance - though it
was felt that an ethical science would eventually emerge, this was as yet
an area of controversy and one which the jurist could, and should, avoid.
Nathaniel Lindley,
63
for instance, in the copious notes he added to his
translation of Thibaut's System Des Pandekten Rechts, merely gave a
pr&cis of Austin's position, and indeed referred his readers to Province of
Jurisprudence as 'a work wholly free from those mists which too often
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72 THE JOURNAL OF LEGAL HISTORY
prove impenetrable to the student of writings on the philosophy of law'.
Lindley contrasted the metaphorical use of the term 'law' when applied in
the physical sciences, where it stated what was found to be true under
certain conditions and admitted of no infringement, with its proper use,
when it meant 'a command, actual or inferred, obliging intelligent beings
to some acts or forbearances of a class'. Such laws were capable of
infringement - a person to whom the law was addressed could not law-
fully disobey the command, but physically he could act in a contrary
manner, in which case he would have to suffer some consequence. But
the jurist did not deal with all laws understood even in this restricted
sense. Laws were again divisible according to the source of the command:
divine laws were commands proceeding, or supposed to proceed, from
God; human laws proceeded from some person or body of persons.
Human laws could be further divided into improper, when issued by
persons who were not political superiors (such as the laws of honour
and 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 Markby
65
likewise unequivocally accepted Austin's command
theory. He admitted that the topic of jurisprudence had been 'elaborately
discussed by Austin in his lectures', and that he had 'only stated his con-
clusions', many of which rested upon arguments developed by Hobbes
and Bentham. Law could only be understood in the framework of politi-
cal society, that is where a person or number of persons possessed the
power of issuing commands to the rest, and where those commands were
generally received with obedience. Law was composed of the general
body of rules addressed by the rulers of a political society to the members
of that society, and which were generally obeyed. The aggregate of
powers possessed by the rulers was called sovereignty. Though Markby
regarded himself as a Benthamite utilitarian, he felt that one of the great
merits of Austin's conception of law was that it did not rest upon any
particular theory of theology, morals or politics. Austin's major achieve-
ment had been to distinguish between law and morals. Bentham had
mistakenly classed legislation under jurisprudence, whereas, as Austin
had shown, it clearly belonged to ethics. Austin had shown that there was
no necessary connection between law and morality - laws had to be
legally binding, but they might at the same time be unjust. Resistance to
authority could not be a legal right, yet it might be a virtue.
Into whatever discussion the words 'right' and 'justice' enter we are
on the brink of a confusion from which a careful observance of the
distinction 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 as
to what the law actually was - there could only be, as Austin had shown,
one source in each political community from which laws derived their
imperative force.
66
Perhaps the most influential writer in the Austinian tradition was
Thomas Erskine Holland,
67
whose textbook Elements of Jurisprudence,
first published in 1880, had run to nine editions by 1900. He followed
Markby in rejecting Bentham's conception of jurisprudence, arguing that
only one branch of it as defined by Bentham could be regarded as a
science. 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. Though
Holland 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 our
undertaking to discuss the question how far Law may properly go in its
endeavours to promote the well-being of those within its sphere'. Juris-
prudence was not concerned with the purposes of law, which was the
province of the politician, but with the means it used to achieve them.
Moreover expository jurisprudence as such, the exposition of existing
law, did not quadrate with the idea of law as a science. Bentham had
compounded 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 the
laws of a particular country, which he termed 'local jurisprudence', and
those upon law without special reference to any one country, 'universal
jurisprudence'. Authoritative jurisprudence then was nothing more nor
less than a body of law, and unauthoritative local jurisprudence mere
commentary: this left what Bentham called 'unauthoritative universal
jurisprudence' as the science of jurisprudence.
68
The task of the jurist was to analyse the concepts with which every legal
system had to deal, even though they might deal with them in different
ways. This was to make a sharp distinction between form and substance -
jurisprudence dealt with the various relations which were regulated by
legal rules, and not with the rules themselves which regulated those
relations. Legal relations were not discovered or studied a priori, as they
might or should have been, but a posteriori from actual systems of law,
from law which had actually been imposed. A dynamic element was
therefore introduced, since generalizations might be altered in the light of
new 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 being
in essence a command prescribing a course of action, disobedience to
which would be punished. This conception implied a lawgiver, who had
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74 THE JOURNAL OF LEGAL HISTORY
power to enforce his commands. Holland, again following Austin, was
keen to distinguish the various senses in which the term 'law' had been
used, some of which were proper and some metaphorical. The use of the
term in the theoretical sciences, to indicate the observed relations of
phenomena, was metaphorical; its proper use was to indicate the idea of
rules of human action, and this was the sense in which it was used in the
practical sciences, and thus in jurisprudence. Such rules could be defined
as precepts addressed to the will of a rational being. But there were
two classes of precepts: the first, which belonged to the wider field of
morality, were counsels, where obedience followed from a recognition of
the reasonableness of the advice; the second, which implied a sanction,
were commands, where obedience followed directly from the will of him
who commanded. Only the second class were strictly 'laws'. Furthermore
laws were general commands, relating to courses of conduct, as opposed
to special commands, which enjoined only a particular action.
Laws, therefore, in the vague sense of rules of human action, are
propositions commanding the doing, or abstaining from, certain
classes of actions; disobedience to which is followed, or is likely to
be 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 the
sanction in the case of an infraction. The moral sciences were divided into
ethics and nomology: the former dealt with 'states of the will' irrespective
of their outward manifestation in action; the latter with 'states of the
will' only in so far as they were manifested in action. This distinction
echoed that of Austin's between divine, or abstract, morality and positive
morality. Nomology, the science of external action, was therefore con-
cerned with the conformity of outward actions to rules of conduct, and
so included jurisprudence within its province. It was itself divided on
the basis of whether the authority by which the rules which formed its
subject-matter were enforced was indeterminate or determinate. There
was no definite authority that could be appealed to in the case of the
infraction of moral laws. Laws properly so-called were rules set by a
determinate authority, a political sovereign, and enforced by it. Thus
every state or political society had one part that was sovereign, and
another that was subject. Until the state was formed there could be no law
in the strict sense of the term, though there might be rules of morality and
customary rules of conduct. Before such rules were properly laws, they
had to be recognized by the state, either expressly or tacitly.
71
Holland's
jurisprudence was in a crucial respect a very impoverished version of the
theory which Bentham had developed a century before. For Bentham
the purpose of jurisprudence had been the reform of the existing law;
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JEREMY BENTHAM 75
Holland excluded this notion altogether from its subject-matter: he
elevated logical analysis, the instrument to this end, into the end itself.
This produced a jurisprudence which was avowedly apolitical - one which
had developed, via Austin, from Bentham's methodology, but which had
rejected his critical utilitarianism and the demands for reform which that
implied.
The analytical jurists in practice excluded any normative element from
the study of jurisprudence. The historical school however attempted to
show that the relationship between law and morality was more than
contingent, and thereby to claim a place for morals in jurisprudence. The
political implications of this approach were conservative. Their theory of
the evolution of law gave a prescriptive legitimacy to existing practices
and institutions, which they saw as reflecting moral ideas and feelings.
There was no need for the censor in a radical Benthamite sense, for law as
it is was linked to law as it ought to be by social fact. The seminal work for
the historical school was Maine's Ancient Law, published in 1861. Maine,
while accepting the need to develop a science of law, and the contribution
which 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 of
jurisprudence, and so general a conviction that they do not really
solve the questions they pretend to dispose of, as to justify the
suspicion that some line of inquiry necessary to a perfect result has
been incompletely followed or altogether omitted by their authors.
They failed to take account of what law actually had been 'at epochs
remote from the particular period at which they made their appearance'.
Their proponents observed carefully the institutions of their own age and
civilization, and those of other ages and civilizations with which they
had some degree of intellectual sympathy, 'but, when they turned their
attention to archaic states of society which exhibited much superficial
difference from their own, they uniformly ceased to observe and began
guessing'. Observation had not yet taken the place of assumption as it had
in the natural sciences. By beginning with the simplest societies, one
could more easily identify the basic ideas and institutions which modern
complex societies tended to obscure: though primitive societies at first
sight appeared strange and uncouth, and thus difficult to understand, a
study of them would reveal 'the germs out of which has assuredly been
unfolded every form of moral restraint which controls our actions and
shapes our conduct at the present moment'.
72
This had been Bentham's
failing, for he had 'neglected and perhaps despised' historical enquiry.
73
According to Maine, Bentham and Austin had resolved every law into
the command of a lawgiver, an obligation being imposed thereby on the
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76 THE JOURNAL OF LEGAL HISTORY
citizen, and a sanction threatened in the event of disobedience; further-
more it was predicated of a command that it must prescribe not a single
act, but a series or number of acts of the same class. (This was indeed
Austin's view; Bentham however allowed that a mandate which had
reference to a single action was in fact a law.) This interpretation tallied
'exactly with the facts of mature jurisprudence' and 'by a little straining of
language' it could be made 'to correspond in form with all law, of all
kinds, at all epochs'. However the further back into primitive thought one
took one's enquiries, the less did Bentham's conception of law appear
correct. Maine's major criticism was that law in the earliest societies was
not the command of a legislator: neither a legislator, nor still less a
legislature, was contemplated or conceived of. Law had not even taken
the form of custom, but amounted to a judicial sentence after the facts: it
consisted of ad hoc decisions made by kings who were supposed to be
acting under the influence of some supernatural power. The decision did
not presuppose a law which had been violated, nor did the judgments
themselves become laws in the sense that they were afterwards applied to
all citizens in similar circumstances, but was restricted to the prescription
of a single act.
74
A period of 'true customary law' followed when the
administration of law passed out of the hands of kings and was appro-
priated by military and political aristocracies, who claimed to have an
expert knowledge of the rules. Because of their need to remember past
rulings and pass this knowledge on to their successors, tradition and
precedent were introduced systematically into the law. The next stage of
development took place when these rules were written down or codified.
The point in the evolution of the society in question at which such
codification occurred was crucial to its subsequent legal development. It
marked the end of the 'natural' evolution of the legal system, and further
progress depended upon 'artificial' means - the conservatism of fixed
legal rules had to be reconciled with progressive social opinion by such
means as, in chronological order of appearance, legal fictions, equity and
legislation. Hence it was only late in the career of legal systems, and only
in those few which became progressive, that legislatures came to play a
prominent role.
75
At the turn of the century, James Bryce was similarly critical of the
analytical jurists for their neglect of history. However his characteriza-
tion of Bentham's theory of law was much less fair than Maine's, and
sounded almost like parody:
According to Bentham and his followers, there is in every State
a Sovereign who enjoys unlimited physical, and therefore also
unlimited legal, power. His might makes his right. He rests on Force
and 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 are
obeyed in respect of the apprehension of physical harm to follow on
disobedience.
Bryce accepted that in the last resort physical force had to be used to
coerce those who wished to do harm to the community, but argued that
many other factors were necessary to the formation of political states.
76
He posited three objections to the command theory of law. Firstly, it
suggested an inaccurate view of the origin of law and was inapplicable to
the laws of many communities. In some communities there had been
laws but no state capable of imposing any sanction in the event of
disobedience, while in all communities there had been laws which had
been obeyed but had not emanated from the state. The greater part of the
rules which determined the relations of individuals or groups to one
another had in most countries 'until comparatively recent times' rested
upon custom, that is long-settled practice which everyone understood
and in which everyone acquiesced, and which did not require formal
promulgation in order to secure observance.
Secondly, even in mature states where regular legislative authorities
existed, most laws did not belong, either in form or meaning, to the
category of commands. Statute law, for instance, took the form of a
command 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 largest
and most important part of the law, which determined the private rights
of citizens - such matters as contract, succession and trust - was com-
posed of doctrines which the courts had applied in certain circumstances
and would apply in future in similar circumstances, and thus became
instructions to the citizens as to how far they might get the law, and
physical force, on their side in civil disputes. The only branch of law which
was properly covered by the command theory was penal or criminal law,
for this branch did consist of express orders or prohibitions accompanied
by threats of punishment.
It may be conjectured that the Benthamites took their notion of law
in general from this particular department of it, or perhaps from the
Ten Commandments in the Book of Exodus, which, though no
doubt good examples of the categorical imperative, are anything
but typical of law in general.
Thirdly, fear was not primarily or chiefly the cause of obedience Civil
society had its source in the tendency of men to aggregate, imitate,
comply and submit:
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78 THE JOURNAL OF LEGAL HISTORY
it is by the natural or providential order of things, and in virtue of
the constitution of man as a social being, that men are grouped into
communities under leaders who judge among them.
Force was necessary to the state to ensure that the law was obeyed, but
the state was only able to apply that force because the same gregarious
influences which had drawn men into society in the first place continued
to operate to keep them together - they willingly gave to the state the
means on which its physical force depended. The Benthamite theory was
simplistic because it ignored the lessons of history and the conclusions of
psychology and sociology on the question of the grounds of obedience.
77
Bryce noted that anyone writing about law could not but use the
analytical method, indeed it 'may possibly have been used in Egypt
under the Fourth Dynasty'. However, in the form in which it had been
developed by Bentham and his school, it had fallen into two 'grave
errors'. Firstly, it had laid the foundations of legal science in the theory of
utility, which, whether sound or not, had nothing to do with the analytical
method, nor with positive law. In the first place, it was a theory of human
action which properly belonged to ethics or psychology; and in the second
place, in so far as it could be said to affect law, it affected neither the
classification and exposition, nor the application of law, but the making
of law: 'That is to say, it belongs not to the jurist but to the legislator. Its
place is that of a practical guide to the science we call the Principles of
Legislation.' Utility, or expediency, had always guided legislators, but it
would have a dangerous practical effect if the courts were to apply it as the
standard of judgment: this would give too great a latitude to judges, who
would be prone to abuse their position. Ironically, Bryce was criticizing
Bentham on the same grounds that Bentham had criticized the common
law - the dangers of judge-made law. Secondly, the analytical school
relied too much upon current English terms and notions. Its proponents
did not extend their view far enough either into the past, or over the legal
systems of other times and countries. Austin went to Roman law for ideas
which he thought English law lacked, but he did not fully understand the
Roman system nor appreciate the full extent of some of the legal diffi-
culties he attempted to overcome. 'Hence his solutions are sometimes
crude, and his efforts, in themselves most laudable, after exactitude, are
apt to fail for want of subtlety.' On several fundamental questions,
moreover, such as the origin and essence of law and the nature of
sovereignty, Austin was 'palpably wrong'.
78
Although there were two distinct traditions in English jurisprudence in
the second half of the nineteenth century, some writers did attempt to
reconcile them.
79
These writers were closer in spirit to the analytical
school in that their aim was an accurate definition and classification of
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JEREMY BENTHAM 79
legal terms, to which a historical understanding of the evolution of those
terms was an aid. Yet they tried to integrate the findings of the historical
school into their theory, and in particular hoped to establish some sort of
necessary connection between morality and law. Denis Caulfield Heron,
for instance, in his Introduction to the History of Jurisprudence, suggested
that it was the task of the science of jurisprudence to unite the historical
and analytical schools of legislation, which he associated respectively
with Savigny and Bentham: 'For actual legislation ought always to be a
compromise between history and philosophy.'
80
Sheldon Amos made a
serious attempt to achieve some sort of synthesis. He wished to build on
the work of Bentham and Austin, but take account of the findings and
criticisms of the historical school. Austin had developed one vital aspect
of the science of law, but the other aspect had to be supplied by the
historical method. Amos noted that until the beginning of the nineteenth
century law had been studied only as an art, the application of rules to
practice, but it had then come to be appreciated that law could also be
studied 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 general
logical principles, and partly due to the writings of Bentham and Austin.
Bentham's remorseless criticism had produced a feeling that if English
law was not the perfection of reason, 'then there must be some reasonable
standard to which the law of every country logically must, and morally
ought, to conform'. This stimulated a desire to search for and ascertain
what this standard might be.
81
Bentham himself had not been aware of the
importance of his work in this respect. He had been distracted by his
business as a revolutionary reformer, and too impatient to make purely
historical inquiry, to develop intentionally and bring to maturity such a
science, but he had employed 'the true analytical and inductive methods
by which alone the Science of Jurisprudence could be brought into
existence'. It was to Austin that 'the true foundation of the Science
of Jurisprudence must be attributed'.
82
Austin's influence had been 'very
extensive', and was 'likely to be of a permanent sort'. Like Bentham,
Austin had 'established a new method of exact reasoning in reference to
all the leading notions with which law is concerned', but he had gone
beyond Bentham in that 'he conceived the existence of a distinct branch
of study, of a severely scientific character, and conversant with the
logical principles which necessarily and invariably underlie every possible
system of law'. There was much which Austin left incomplete - his ethical
analysis was inadequate, his logical definitions were sometimes need-
lessly subtle, and he was often pedantic - but these criticisms must not be
allowed to overshadow his achievement in identifying and developing
jurisprudence as a true science.
83
In what, then, did this science consist? Amos, while accepting that
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80 THE JOURNAL OF LEGAL HISTORY
laws could be reduced to the form of a command,
84
rejected the idea
put forward by Austin that laws of human conduct were qualitatively
different from 'laws' in nature. Greatly influenced by the positivism of
Comte, he attempted to place the study of law on the same 'scientific'
basis as all other branches of human knowledge. He explained that there
was no sharp distinction between the 'physical' and 'moral' sciences - all
sciences 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 and
politics belonged to one end of the scale; political economy, sociology
and mental physiology to the middle; and the rest of the sciences to the
other end. Those which depended more on the action of the human mind,
and were expressed by means of language, as opposed to those which
depended merely on observation and recording of facts perceptible to
the senses, required 'a profound investigation of the mode of evolution of
every term . . . as a preliminary to a careful definition of the term for
future use'. The phenomena dealt with by the science of law were not only
changing, but had also to be expressed in a language that itself was
changing. The student of law as science had therefore to trace back the
meaning of leading terms to their origin in the historical and ethical
development of man, and in man's social and political necessities. A
detailed analysis of the meaning of terms was necessary to distinguish
what was permanent and universal in legal notions from what was transi-
tory and partial. Hence the importance of the work of Maine - 'the
history of early law, and of primitive states of society. . . has added to the
structure of the Science of Law a most essential wing'.
85
Amos did not see
the 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 and
universal concepts he discovered in his particular examples also revealed
something general and universal about ethics, politics and other related
sciences of man.
86
The Science of Jurisprudence may be said, broadly, to deal with the
necessary and formal facts expressed in the very structure of civil
society, as that structure is modified and controlled by the facts of
civil government and of the constitution of human nature and the
physical universe.
To claim that jurisprudence was a science was to claim that it dealt with
sequences of facts which were invariable for all times and places. Now
since law was a body of commands formally published by a sovereign
political 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 facts
invariably present in all countries which had some form of government.
The presence of law also implied the existence of two different sets of
persons in the community: firstly, those who devised and imposed the
law; secondly, those to whom the law was addressed and whom the first
set of persons punished in the event of the law being disobeyed. The
relation of lawgivers and law-receivers, though possible of a great variety
of forms, involved certain permanent and invariable sequences. For
instance, every law contemplated the possibility of an act of disobedience
to it, and every act of alleged disobedience entailed certain inevitable
consequences: (1) allegation by the lawgiver, or his representative, that
the act complained of was forbidden by law, which involved interpreta-
tion of the law and the production of evidence; (2) allegation of moral
responsibility in the offender, that is an allegation that the breach in the
law was intentional; (3) adjudication; and (4) punishment. These
sequences, which it was the province of the science of jurisprudence to
discover and explain, existed to some degree or other in every particular
system 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 actual
controversies that had arisen from men's moral claims and moral situa-
tions, and which had called for decision at the hands either of the
governing authority or of umpires selected to resolve a single dispute. 'It
is because men are doubtful about what is and what ought to be that law
comes in to determine what shall be.' Thus moral claims were converted
into legal rights, and moral ties into legal duties.
88
However it was
important to keep legal and moral notions conceptually distinct. Morality
took account both of men's thought and feeling as well as acts, whereas
law was primarily interested in men's acts, and thought and feeling only
so far as was necessary to explain the 'real character' of those acts. Law
could 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 man
at the crisis of action to determine his own conduct.
He might be guided by previous examples, by the exhortations of moral
teachers, and by maxims and rules; but no rule could be universally
applicable. Responsibility for action rested with the agent alone. Law on
the other hand dealt in general rules, and providing these were properly
published there was no room for doubt whether a contemplated act would
be legal or illegal.
89
This was not to say however that the science of law
rested upon any particular moral theory - rather it took concepts which
were common to all moral theories, conscience, right, duty, will, wrong,
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82 THE JOURNAL OF LEGAL HISTORY
injury, intention - 'eternal moral terms expressive of facts which no
controversialist denies' - which were the subject-matter of law, and were
capable of identification and classification.
90
Hence he criticized both 'the school of Bentham' for 'allowing but a
hair's-breadth of separation between Morals and Law', and 'their more
ignorant opponents', the school of natural law writers, for attempting 'to
deluge Law with Morality'.
91
According to Amos, Bentham's method was
to approach all moral and all legal rules in exactly the same way, and to
test their value by one identical method - their conduciveness to the
greatest happiness of the greatest number. The difference between a legal
rule and a moral rule was, by this account, merely one of degree, and not
of 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 persons
and its infringement was only punishable at the hands of some of them in
some indefinite way. Moral rules only differed from law in the character
of the imposing authority, and in the cogency of the sanction or penalty.
The direct effect of this mode of reasoning was to lose sight
altogether of any permanent distinction and relation between law
and morality, and thus to merge the Science of Law into the Science
of 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 - in
short he confounded the science of jurisprudence with the science of
legislation. It had been left to Austin, 'the true founder of the Science of
Law', to separate law 'from the dead body of morality that still clung to
it'. Austin recognized the use of the utilitarian test as applied to the
political value of laws, and that the proper use of this test was an essential
ingredient in the ethical judgment of the value of human actions. But he
tried 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 ideas
which, being permanent and universal, gave substance to the science of
law. Fortunately Austin did not get entangled in metaphysics: 'he was just
broad enough to free himself from Bentham, and just narrow enough to
save himself from Kant and Hegel."
2
Alexander Henry, a successor of Amos in the chair of Jurisprudence at
University College London,
93
seems in many respects to have taken a
similar view, though his short pamphlet is not detailed enough to give a
comprehensive account of his ideas. Jurisprudence was the science of
positive 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 by
which they affirm good laws can be distinguished from bad ones'. The
greatest writer on the science of legislation was Bentham, 'who, taking
"utility" as his test, has left us a noble monument of accurate and
exhaustive reasoning in almost every branch of this important subject'.
Bentham however could not be described as a writer on the science of
jurisprudence. As for the relationship of law to morality, no system of
laws attempted to enforce all moral duties, while every system enforced
legal duties which found no place in any moral code. Nevertheless the
'positive morality' of a nation, in Austin's sense, that is the general view
of the people as to right and wrong, had 'a transcendent influence on the
laws of that people'.
The science of law consisted of two parts, the first 'an analysis and a
classification of the general principles which are to be found in advanced
systems of law', and the second 'the discovery of the origin and growth of
legal notions'. The analysis of general principles, and the classification
and arrangement of legal notions, had been treated very fully by such
writers as Austin, Amos, Holland and Markby. The study of the origin
and growth of legal notions however was not so advanced: Maine had
been a pioneer in this field, but Savigny and the historical school of
Germany, by confining their attention to the study and development of
Roman and German law, had not provided a wide enough basis for a
general system. The facts on which this part of the science would be
based would be derived from study of the customs and laws of all
nations, whether barbarous or civilized, whether past or present, and
from symbols and survivals.
94
John Salmond,'
5
like Amos and Henry, while in general accepting the
idea of law as a command, argued that neither logical analysis nor the
conclusions of the historical school were in themselves sufficient, and that
some sort of combination of the two was necessary. Salmond explained
that jurisprudence, as the science of law, included in its widest sense all
species of obligatory rules of human action: its three categories were civil
jurisprudence, international jurisprudence and natural jurisprudence. In
a narrow sense, however, and this was the sense in which Salmond treated
it, jurisprudence was the science of civil law (a term he considered
more accurate than 'positive' law), which in turn he divided into three
branches: systematic, historical and critical.
The first deals with the present; its purpose is the exposition of the
legal system as it now is. The second deals with the past; it is
concerned with the legal system in the process of its historical
development. The third deals with the ideal future; it expounds the
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84 THE JOURNAL OF LEGAL HISTORY
law not as it is or has been, but as it ought to be. Systematic
jurisprudence is legal exposition; historical jurisprudence is legal
history; while critical jurisprudence is commonly known as the
science of legislation.
96
Salmond made an important distinction between abstract justice and
law, a distinction which corresponded to that made by Austin between
abstract morality and positive law. The law amounted to the rules recog-
nized and acted on in courts of justice,
97
but this did not necessarily
coincide with abstract justice: 'Legal justice may conflict with natural
justice. A legal wrong may not be also a moral wrong, nor a legal duty a
moral duty.' The primary purpose of a judicature was not to enforce law,
but to maintain justice. Indeed the existence of law was not necessary to
the administration of justice - there was no logical necessity for fixed
principles: these brought certain advantages - uniformity and certainty,
and the exclusion of partiality and error on the part of judges - against
which certain disadvantages had to be offset - rigidity, conservatism,
formalism and complexity.
98
The imperative theory did express an important part of the truth about
law - 'the central fact that law is based on physical force'. Moreover
the criticism of the historical school, that the theory, plausible enough
when applied to modern, developed societies, was inapplicable to more
primitive communities, because early law had its source in custom,
religion or opinion and was not the command of the state, missed the
mark. For instance, Salmond commented, Austin might reply that this
was to replace logic with history - the historical approach was a valuable
supplement to the logical and analytical, but was not a substitute. Indeed
such a view failed to distinguish between the formal and material sources
of law - the material source of law might be custom and religion, and in
early times legislation might have been unknown. Nevertheless, 'Its
formal 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 and
inadequate - the product of an incomplete analysis of juridical con-
ceptions'. A first criticism was that imperative rules, while constituting
the 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, for
instance permissions and rules of judicial procedure. Most importantly
the command theory failed to explain the connection between morality
and 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 the
state 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 by
the state in the exercise of its essential function of administering
justice.
The established law in a particular state might fall far short of what was
truly right, though this did not impugn its legal validity.
Nevertheless in idea law and justice are coincident. It is for the
expression and realisation of justice that the law has been created,
and like every other work of men's hands it must be defined by
reference to its end and purpose."
Salmond had to an extent restored the censor to jurisprudence, but he
was 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 they
belonged, refused to treat his work seriously and often misunderstood it:
the story might have been different if Of Laws in General had been
available, but still they would have been repelled by his radicalism. They
had in a sense to exorcize his ghost. His criticisms had been valid when
they were made; the law had been reformed accordingly; he had become
a figure of no more than historical interest. He was given some credit for
the development of an analytical method, but even here his thinking
had been confused. The jurists argued that Bentham, because his objec-
tives had been primarily political, had mistakenly included the art of
legislation, the reform of the law, within the subject-matter of juris-
prudence; the proper province of jurisprudence however, as Austin had
demonstrated, was the exposition of universal legal relations. This
demarcation of the subject not only adapted it to the prevailing paradigm
of scientific knowledge, but also proved to be politically expedient. The
jurists were able to advance their claims to academic respectability in the
universities while at the same time proving their usefulness to a conserva-
tive legal establishment. Yet in a more indirect way Bentham probably
had a much greater influence than the jurists were ready to admit: for
it was his very division of jurisprudence into expository and censorial
branches, the consequent separation of law and morality, and his inter-
pretation of law as the command of a sovereign, that dominated much of
the jurisprudential debate in the later nineteenth century. Austin may
have been recognized as the father of jurisprudence, but it was really the
bastard child of Bentham.
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86 THE JOURNAL OF LEGAL HISTORY
NOTES
1. The author is especially indebted to Professor William Twining, Mr Andrew Lewis and
Professor 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 of
the High Court of Justice, London, 1895, p. 204: 'Austin's authority has declined as the
historical 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 and
H.L. A. Hart, London, 1977, p.397.
6. See An Introduction to the Principles of Morals and Legislation, ed. J.H. Burns and
H.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 Legal
Theory, 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', in W. L. Twining, ed., Legal Theory and Common Law, Oxford,
1986, pp. 42-4; William Twining, '1836 and All That: Laws in the University of London
1836-1986', Current Legal Problems, xl (1987), 267-71.
17. A.D.E. Lewis, 'John Austin (1790-1859): Pupil of Bentham', The Bentham News-
letter, ii (1979), 19.
18. Ibid., 19. For the reception of Lectures on Jurisprudence see Rumble, John Austin,
pp. 3-4, and Lotte and Joseph Hamburger, Troubled Lives: John and Sarah Austin,
Toronto, 1985, pp.196-8.
19. P. Stein, 'Legal Theory and the Reform of Legal Education in mid-nineteenth century
England', in L'Educazione Giuridica II: Profilistorici, ed. A. Giuliani and N. Picarda,
Perugia, 1979, pp. 193-4.
20. For the early reception of Bentham's ideas see J. R. Dinwiddy, 'Early Nineteenth
Century Reactions to Benthamism', Transactions of the Royal Historical Society, xxxiv
(1984), 47-69.
21. The Works of Jeremy Bentham, ed. John Bowring, 11 vols., Edinburgh, 1843.
22. It was first published in 1945 under the title of The Limits of Jurisprudence Defined.
23. Hart, Essays on Bentham, p. 108. For a comparison of Bentham's and Austin's legal
theories see pp. 108-14. W. L. Morison, John Austin, Stanford, 1982, mounts a defence
of Austin in response to Hart's criticisms.
24. Bryce (1838-1922) was Regius Professor of Civil Law at Oxford University 1870-1893.
25. James Bryce, Studies in History and Jurisprudence, 2 vols., Oxford, 1901, ii. 182.
26. John Austin, The Province of Jurisprudence Determined and The Uses of the Study of
Jurisprudence, introduced by H.L. A. Hart, London, 1954, pp.33-60.
27. See my 'A Comparison of the Moral Theories of William Paley and Jeremy Bentham',
The Bentham Newsletter, xi (1987), 4-22.
28. Austin, The Province of Jurisprudence Determined, pp. 1-2.
29. Ibid., pp. 10-13.
30. Ibid., pp. 13-19.
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JEREMY BENTHAM 87
31. Ibid., pp.24-6.
32. Ibid., pp. 193-4.
33. Ibid., pp.79-80.
34. Ibid., pp. 124-8.
35. Rumble, John Austin, pp.24-6.
36. Foster (1818-C.1895) was Professor of Jurisprudence at University College London
1849-1858.
37. Charles James Foster, Elements of Jurisprudence, London, 1853, p. 113.
38. Charles James Foster, Natural Law. A Lecture, introductory to the course of Juris-
prudence, delivered at the opening of the course in University College, London, on
Tuesday, Novembers, 1850, London, 1851, pp.22-3.
39. Ibid., p. 17.
40. Foster, Elements of Jurisprudence, pp.iii-iv, vi.
41. Ibid., pp.23, 28, 39, 44-5, 60.
42. Ibid., pp.67-9, 72, 75-7.
43. Ibid., pp. 109-14.
44. Brian Abel-Smith and Robert Stevens, Lawyers and the Courts: A Sociological Study of
the English Legal System 1750-1965, London, 1967, p. 63.
45. H. Hale Bellot, University College London 1826-1926, London, 1929, p. 54.
46. Ibid., pp.96-9; Rumble, John Austin, pp.34-5.
47. Bellot, University College, pp. 105-6.
48. Abel-Smith and Stevens, Lawyers and the Courts, pp. 64-8.
49. Ibid., pp.71-6, 171-4.
50. Ibid., pp.69-71; F.H. Lawson, The Oxford Law School 1850-1965, Oxford, 1968,
pp.32-3, 55-6.
51. J.H. Baker, 'University College and Legal Education 1826-1976', Current Legal
Problems, xxx (1977), 5.
52. Bellot, University College, pp.327-8,331, 387,405; Twining, '1836 And All That', 274-
6.
53. Amos (1836-1886), Professor of Jurisprudence 1869-1878, was a younger son of
Andrew Amos, first Professor of English Law at London University.
54. Mackintosh had delivered a course of lectures on this subject at Lincoln's Inn in 1799
and again in 1800.
55. Foster, Elements of Jurisprudence, pp. 1-2.
56. Abel-Smith and Stevens, Lawyers and the Courts, p. 168.
57. Sugarman, 'Legal Theory', pp.29-30; cf. Lawson, Oxford Law School, pp.36-9.
58. Sugarman, 'Legal Theory', pp. 31-5, 37-8.
59. Ibid., p.35.
60. [John Stuart Mill], 'Austin on Jurisprudence', The Edinburgh Review, or Critical
Journal, cxviii (1863), 439-41.
61. Sheldon Amos, A Lecture on the best modes of studying the Science of Jurisprudence.
Being introductory to a course of lectures on the science of jurisprudence, to be delivered
in University College, London, during the session 1870-1871, London, 1870, pp. 18-19.
See also A Systematic View of the Science of Jurisprudence, London, 1872, p. 15: "The
sagacious and almost revolutionary measures demanded by Bentham' had been 'mostly
carried out since his time'.
62. Bryce, History and Jurisprudence, ii. 179, 183-4.
63. Lindley (1828-1921), later Lord Lindley, was a Lord Justice of Appeal 1881-1897,
Master of the Rolls 1897-1900 and a Lord of Appeal in Ordinary 1900-1905.
64. Nathaniel Lindley, An Introduction to the Study of Jurisprudence; being a translation of
the general part of Thibaut's System Des Pandekten Rechts, London, 1855, pp. i-ii. The
question of whether international law did or did not belong to jurisprudence was a
source of disagreement amongst the analytical school.
65. Markby (1829-1914) was puisne Judge of the High Court of Calcutta 1866-1878 and
Fellow and Bursar of Balliol College, Oxford 1883-1914.
66. William Markby, Elements of Law considered with reference to Principles of General
Jurisprudence, 3rd edn., Oxford, 1885, pp. 1-6 (the first edition was published in 1871).
67. Holland (1835-1926) was Chichele Professor of International Law and Diplomacy at
Oxford University 1874-1910.
68. Thomas Erskine Holland, The Elements of Jurisprudence, Oxford, 1880, pp. 4-5,53-4.
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88 THE JOURNAL OF LEGAL HISTORY
69. Ibid., pp.5, 7-8.
70. Ibid., pp. 11, 13-19.
71. Ibid., pp.22-4, 32-4, 38, 43-4.
72. Henry Sumner Maine, Ancient Law. Its Connection with the Early History of Society
and its Relation to Modern Ideas, London, 1861, pp.2-3, 98-9.
73. Maine, Popular Government, London, 1885, p.84. Cf. Bryce, History and Juris-
prudence, ii. 88: 'Bentham was a man of extraordinary ingenuity, fertility, and bold-
ness, but he was sometimes heedless; he lived before the days of what we call the
historical method, and he had a hearty contempt, if not for history, yet for the legal
institutions it had produced, which indeed he thought mostly wrong.' Bentham for his
part noted that the use of the history of jurisprudence was to furnish examples for the
art of legislation: see IPML, p. 298. The view that Bentham had a contempt for history
has
not been challenged by recent scholarship.
74. Maine, Ancient Law, pp. 6-7.
75. George Feaver, From Status to Contract: A Biography of Sir Henry Maine 1822-1888,
London, 1969, pp.45-7, 49.
76. Bryce, History and Jurisprudence, ii. 3-6.
77. Ibid., ii. 44-8.
78. Ibid., ii. 178-81.
79. Cf. P.G. Stein, Legal Evolution: the Story of an Idea, Cambridge, 1980, p. 75: 'By
the mid-1840s it was generally recognised that there were two opposing schools of
legal thinking, the historical school and the analytical school, the latter composed of
utilitarian codifiers. Some writers saw them as extremes which could perhaps be
brought closer together.'
80. D. Caulfield Heron, An Introduction to the History of Jurisprudence, London, 1860,
pp. 10-11. This work was published before the second edition of Austin's Province of
Jurisprudence. Interestingly, Heron, who had studied Bentham in some detail, but did
not mention Austin, did not make a conceptual distinction between jurisprudence and
legislation.
81. Sheldon Amos, Law as a Science and as an Art. An Introductory Lecture delivered at
University College at the commencement of the session, 1874-5, London, 1874, pp. 7-10.
See also The Science of Law, London, 1874, pp.8-9.
82. Sheldon Amos, An English Code: its difficulties and the modes of overcoming them. A
Practical Application of the Science of Jurisprudence, London, 1873, p. 201.
83. Amos, Law as Science and Art, pp. 10-12.
84. Amos, Systematic View, pp.25, 73-6.
85. Amos, Law as Science and Art, pp. 12-17.
86. Amos, Lecture on Jurisprudence, pp. 4-6: see also Systematic View, pp. 17-18.
87. Amos, Systematic View, pp. 1-4.
88. Amos, Science of Law, p. 43.
89. Ibid., pp.32-4.
90. Amos, Lecture on Jurisprudence, pp. 15-16.
91. Amos, Systematic View, pp. 77-8.
92. Amos, Science of Law, pp. 3-5.
93. Henry was professor from 1883 to 1895.
94. Alexander Henry, Jurisprudence: or, The Science of Law, its objects and methods. An
Introductory Lecture, delivered at University College, London, on 2nd November, 1883,
London, 1884, pp.5-17.
95. Salmond (1862-1924) was Professor of Law at Adelaide University 1897-1906 and later
Solicitor General of New Zealand. He was a student at University College London
when Henry was Professor of Jurisprudence.
96. John W. Salmond, Jurisprudence or The Theory of the Law, London, 1902, pp. 1-4.
97. Ibid., p. 11.
98. Ibid., pp.23-32.
99. Ibid., pp.52-9.
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