Abstract
John Stuart Mill reviewed John Austin’s posthumously published Lectures on Jurisprudence in the Edinburgh Review in 1863. He compared Bentham with Austin, assigning an essentially destructive role to the former and a constructive role to the latter. Bentham had carried out the necessary task of sweeping away the absurdities and irrationalities which characterized the study of the law, while Austin had then carried out the equally indispensable task of classifying, defining, and distinguishing legal ideas. This is puzzling, since Mill, who had edited Bentham’s Rationale of Judicial Evidence, must have been aware of Bentham’s extensive proposals for legal reform and of his commitment to classification and definition. Moreover, while Mill had been critical of aspects of Bentham’s thought in the immediate aftermath of his mental crisis in the 1830s, there is evidence that he later regretted these remarks. Indeed, he reaffirmed his commitment to Benthamite utilitarianism in Utilitarianism which appeared in 1861. This paper investigates the following question: why did Mill lavishly praise the inferior and derivative work of Austin, and go on to suggest that Bentham’s work was of no relevance to legal reform?
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Notes
- 1.
John Stuart Mill, Autobiography and Literary Essays ed. by John M. Robson and Jack Stillinger (Toronto: University of Toronto Press, 1981) in Collected Works of John Stuart Mill [hereafter CWJSM], I, at 75–9.
- 2.
Additional Letters of John Stuart Mill ed. by Marion Filipiuk, Michael Laine, and John M. Robson (Toronto: University of Toronto Press, 1991) in CWJSM, XXXII, at 3 fn.
- 3.
Mill, Autobiography and Literary Essays in CWJSM, I, at 67.
- 4.
The Earlier Letters of John Stuart Mill: 1812–1848 ed. by Francis E. Mineka (Toronto: University of Toronto Press, 1963) in CWJSM, XII, 13.
- 5.
The Correspondence of Jeremy Bentham: Volume 12: July 1824 to June 1828 ed. by Luke O’Sullivan and Catherine Fuller (Oxford: Clarendon Press, 2006) in Collected Works of Jeremy Bentham [hereafter CWJB]), at 146 and 368.
- 6.
Earlier Letters of John Stuart Mill: 1812–1848 in CWJSM, XII, at 55.
- 7.
See “Walking Tour of Cornwall 3–9 October 1832”, in John Stuart Mill, Journals and Debating Speeches ed. by John M. Robson (Toronto: University of Toronto Press, 1988) in CWJSM, XXVII, at 613–37.
- 8.
He later claimed that he had missed only one lecture: see The Later Letters of John Stuart Mill: 1849–1873 ed. by Francis E. Mineka and Dwight N. Lindley (Toronto: Toronto University Press, 1972) in CWJSM, XVI, at 1143.
- 9.
Earlier Letters of John Stuart Mill: 1812–1848 in CWJSM, XII, at 51–3. For the failure of Austin to attract students to his lectures see Wilfrid E. Rumble, “Austin in the Classroom: Why were his Courses on Jurisprudence Unpopular?” (1996) XVII Journal of Legal History 17–39.
- 10.
Earlier Letters of John Stuart Mill: 1812–1848 in CWJSM, XII, at 134.
- 11.
Ibid. at 141.
- 12.
Mill, Autobiography and Literary Essays in CWJSM, I, at 185–7.
- 13.
In the mid-1840s Mill encouraged Austin to publish a reprint of Province of Jurisprudence Determined, together with its continuation, but to no avail. See The Earlier Letters of John Stuart Mill: 1812–1848, in CWJSM, XIII, at 655, and 711–12.
- 14.
John Stuart Mill, Newspaper Writings: January 1835–June 1847 ed. by Ann P. Robson and John M. Robson (Toronto: University of Toronto Press, 1986) in CWJSM, XXIV, 1062–6, esp. at 1063, 1066.
- 15.
John Stuart Mill, Essays on Politics and Society ed. by John M. Robson (Toronto: University of Toronto Press, 1977) in CWJSM, XIX, at 341–70, esp. at 343–4.
- 16.
Mill, Autobiography and Literary Essays in CWJSM, I, at 268.
- 17.
John Stuart Mill, Essays on Equality, Law, and Education ed. by John M. Robson (Toronto: University of Toronto Press, 1984) in CWJSM, XXI, 51–60, esp. at 53–7.
- 18.
This imagery echoes Blackstone’s famous description of the English constitution as a Gothic castle: see William Blackstone, Commentaries on the Laws of England, 4 vols. (Oxford: Clarendon Press, 1765–9), III, at 268.
- 19.
Mill, Essays on Equality, Law, and Education in CWJSM, XXI, at 167 and 168.
- 20.
Ibid. at 167–8.
- 21.
Ibid. at 168–9.
- 22.
Mill perhaps feared that Austin might be interpreted in this way, or indeed that he had been more influenced by German thought than he wished to admit.
- 23.
Mill, Essays on Equality, Law, and Education in CWJSM, XXI, at 169–70.
- 24.
Ibid. at 171.
- 25.
Ibid. at 172.
- 26.
Ibid. at 173. It is unclear why any one system should be more suited to the task than any other, especially if all that remained, following Bentham’s demolition of the existing structures, were ruins. It might have been more plausible to say that a particular student might find his task facilitated by dealing with a system with which he was more familiar, than with one with which he was less familiar. To be fair to Mill, he did note that the advantage with Roman Law lay in the superior quality of the commentaries.
- 27.
Ibid. at 181–2.
- 28.
Ibid. at 192–4.
- 29.
A third point of disagreement was in relation to Austin’s view that the technical part of legislation was incomparably more difficult than the ethical – that it was far easier to conceive what would be useful law, than to construct that same law in such a way that it accomplished the will of the law-giver – though Mill admitted that the “qualifications” necessary to accomplish the two tasks were different. See ibid. at 191–2.
- 30.
Ibid. at 179–81.
- 31.
Ibid. at 194–7.
- 32.
Ibid. at 174.
- 33.
Mill here seems to be adopting the former division, despite his claim that the two divisions coincided.
- 34.
Mill, Essays on Equality, Law, and Education in CWJSM, XXI, at 198–200. The phrase “not best fitted for the purpose” appears at ibid. at 174.
- 35.
Ibid. at 200–1.
- 36.
Mill, Autobiography and Literary Essays in CWJSM, I, at 67.
- 37.
Jeremy Bentham, Rationale of Judicial Evidence. Specially applied to English Practice ed. by John Stuart Mill (London: Hunt & Clarke, 1827) 5 vols.
- 38.
The bulk of the text had been first printed in 1780.
- 39.
Jeremy Bentham, An Introduction to the Principles of Morals and Legislation ed. by J. H. Burns and H. L. A. Hart (London: Athlone Press, 1970) in CWJB, at 4.
- 40.
Ibid. at 6 and fn.
- 41.
Jeremy Bentham, Of the Limits of the Penal Branch of Jurisprudence ed. by Philip Schofield (Oxford: Clarendon Press, 2010) in CWJB, at 16–18.
- 42.
Bentham, Introduction to the Principles of Morals and Legislation in CWJB, at 9.
- 43.
Ibid. at 299–300 fn.
- 44.
Bentham, Of the Limits of the Penal Branch of Jurisprudence in CWJB, at 115–41. Reading Mill’s reviews, one would think that there had been no such attempt prior to Austin.
- 45.
See A Comment on the Commentaries and A Fragment on Government ed. by J. H. Burns and H. L. A. Hart (London: The Athlone Press, 1977) in CWJB, at 494–6 fn.
- 46.
Bentham, Of the Limits of the Penal Branch of Jurisprudence in CWJB, at 24–5: “A law may be defined an assemblage of sings declarative of a volition conceived or adopted by the sovereign in a state, concerning 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 accomplishment 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.” The notion of a law is explained in terms of persons performing actions that result in changes to the physical world, whether internal or external to those same or other persons.
- 47.
Bentham, Introduction to the Principles of Morals and Legislation in CWJB, at 11, 34–7, 84–9, and 96–124.
- 48.
Bentham, Of the Limits of the Penal Branch of Jurisprudence in CWJB, at 79–80.
- 49.
Bentham, Introduction to the Principles of Morals and Legislation in CWJB, at 187–280.
- 50.
Bentham, Of the Limits of the Penal Branch of Jurisprudence in CWJB, at 300–3. Bentham arguably went much farther than Austin in developing an exposition of legal concepts; there is no argument about the extent of their respective use of them in producing codes of law. To take just one example: Bentham had virtually completed his massive Constitutional Code by his death in 1832.
- 51.
Bentham, Fragment on Government in CWJB, at 417 and fn.
- 52.
Ibid. at 415–16.
- 53.
Ibid. at 416–18.
- 54.
“First Lines of a proposed Code of Law for any Nation complete and rationalized”, in Jeremy Bentham, “Legislator of the World: Writings on Codification, Law, and Education” ed. by Philip Schofield and Jonathan Harris (Oxford: Clarendon Press 1998) in CWJB, at 191–2. Bentham also referred to the remuneratory branch, which operated by assigning rewards.
- 55.
Ibid. at 208 and 209.
- 56.
Ibid. at 223–4.
- 57.
Ibid. at 229–30.
- 58.
The Later Letters of John Stuart Mill: 1849–1873 in CWJSM, XIV, at 4 fn.
- 59.
Mill, Autobiography and Literary Essays in CWJSM, I, at 186.
- 60.
Mill told Helen Taylor that a letter had arrived from Sarah “which seems to involve the unpleasant necessity of writing to her”: The Later Letters of John Stuart Mill in CWJSM, XV, at 670–1. When supplying his lecture notes for Sarah’s projected edition of Lectures on Jurisprudence, and which, following her death, finally appeared in 1869, he preferred to deal with Sarah’s nephew Henry Reeve, rather than directly with Sarah herself: ibid. at 822 and fn.
- 61.
Ibid. at 658.
- 62.
See Philip Schofield, Utility and Democracy: the Political Thought of Jeremy Bentham (Oxford: Oxford University Press, 2006) at 1–27.
- 63.
In his “Inaugural Address delivered to the University of St. Andrews” in 1867 (Essays on Equality, Law, and Education, now in CWJSM, XXI, at 245–6), Mill put forward a more complementary view of Bentham in comparison with Austin. Having defined the scope of jurisprudence according to Bentham’s broader, as opposed to Austin’s narrower, understanding of the subject, Mill argued that at the head of the “writers of our own or of a very recent time” who had provided “admirable helps” in the study of Jurisprudence stood Bentham, “undoubtedly the greatest master who ever devoted the labour of a life to let in light on the subject of law; and who is the more intelligible to non-professional persons, because, as his way, he builds up the subject from its foundation in the facts of human life, and shows by careful consideration of ends and means, what law might and ought to be, in deplorable contrast with what it is.” Here, then, Mill praised Bentham for building up the subject from its foundation, rather than for merely demolishing existing legal systems. He went on to describe the work of two other “enlightened jurists,” who had made “contributions of two kinds,” the one being Maine in Ancient Law, and the other Austin. In Lectures on Jurisprudence. Austin had taken the Roman Law for his basis, identified “the principles and distinctions which are of general applicability, and employs the powers and resources of a most precise and analytic mind to give those principles and distinctions a philosophic basis, grounded in the universal reason of mankind, and not in mere technical convenience.”
- 64.
See Philip Schofield, “Jeremy Bentham and H. L. A. Hart’s ‘Utilitarian Tradition in Jurisprudence’” (2010) I Jurisprudence 147–67.
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Schofield, P. (2013). John Stuart Mill on John Austin (and Jeremy Bentham). In: Freeman, M., Mindus, P. (eds) The Legacy of John Austin's Jurisprudence. Law and Philosophy Library, vol 103. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4830-9_12
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