AUSTIN'S JURISPRUDENCE.* AMONG the thousand pleas by which vulgar minds
justify their own propensity to worship success and neglect merit none has acquired wider currency than the assertion that genius makes its own way. Those who honestly believe in the truth of this maxim should study Mr. Austin's career. His genius is now universally acknowledged, no less than the greatness of the work which he attempted to accomplish, yet his life was in a sense a failure. He was not encouraged to expound a science which he, alone of living Englishmen, was able to teach, and, conscious of unrivalled powers, was denied all opportunity of using them Ill the service of mankind. Even. fame, for which he cared little,
• Lectures in Jurisprudence. Being the sequel to "The Province of Jurisprudence Deterruihed." lip the late Juba Austin, Esg Vols. II. and IIL Murray was refused him during his life-time, and he has at last become illustrious when the universal recognition of his merits can neither give him pleasure nor benefit his countrymen. The generation who might have used his wisdom neglected to pay it honour, and the men who now honour his memory can scarcely gather the fruits of his genius. There are, indeed, few thoughts more melancholy than the reflection that the man who might have produced works on jurisprudence which would have benefited all ages was refused the slender encouragement he required, whilst now, when the nation is demanding systematic reform of the ltw, we can find no jurist capable of giving us even a code. If, however, posthumous fame be a recompense for a life passed in disappointment, Mr. Austin has at length his reward. The fidelity of his wife and friends has forced the world to do homage to his genius. The republication of his essay on "The Province of Jurisprudence " raised his name from oblivion to fame, and a book which, at its first appearance, could not attract the attention of the leading reviews, became when re- published the object of the general admiration. The present two volumes, though consisting chiefly of fragments, will add to Mr. Austin's reputation. They show, what any one who studied his first volume must have fully known, that he not only was able to execute, in all its details, the scheme sketched forth in his preface, but actually had accumulated the materials for Iii s work. The architect who had planned out the vast edifice had hewn and shaped the stones of which it was to be composed. He left his task unfinished bemire he found no encouragement to raise a temple to a science which the mass of his countrymen did not care to honour. The fragmentary character of the notes and lectures which fill up Mr. Austin's last two volumes actually conduces to his reputation. In his earliest volume be exhibited the nature of his work when fully completed. In his later volumes can be seen not only his work, but what is even more admirable, his manner of working. Unfinished notes and references, hastily jotted down, betray the extent of a knowledge which, in his book meant for publication, he almost concealed, and it is frequently made manifest, as in a note upon communism, that he bad fully weighed subjects not strictly lying within the province of a jurist, and could sum up thoughts to which other writers devote pages in the compass of a few lines. Moreover, what was, after all, the source of his strength, his intollectind con- scientiousness, comes forth in anew light. The beautifully exact definitions in which he delights are proved to have been produced by the most careful labour. Theories and suggestions as to the soundness of his own views are constantly occurring, and serve to remind careless readers that if Mr. Austin was able ivith matchless sagacity to expose the confusions and fallacies of other teachers, he gained his skill by the remorseless severity with which he examined his own notions and tracked out his own errors. Even his somewhat harsh and contemptuous expressions in speaking of other jurists wear a new appearance. If he called the theories of the most eminent persons "jargon," he did not hesitate to characterize his own errors as "preposterous," and candid critics feel that he speaks with apparent severity neither from arrogance nor ignorance, but from a directness of mind, which led him to blame his own faults as well as those of others in the simplest and most intelligible terms.
Though, however, Mr. Austin's fame is now secured, and though his works are likely now to meet with as much indiscrimi- nating eulogy as, thirty years ago, they met with indiscriminating neglect, it is not to be supposed that the circle of his genuine admirers is much larger now than when Mr. Mill and Mr. Lewis were drawing from his mouth the principles which they have since that time expounded to their countrymen.- Jurisprudence is not a science which will ever be generally studied, and Mr. Austin's writings are not of a kind ever to be popular, even in that sense of the term in which it may be applied to the works of Mill or of Whately. One of his greatest merits is a fatal bar to his popularity. He is the most systematic of authors—every chapter, every page, almost every line he wrote hes a definite reference to his whole work—each part has its fixed place, and its position cannot be changed without an injury to the whole scheme. To attempt to give a notion of the work by extracts is like attempting to convey a notion of a Roman bridge by exhibit- ing one of its stones. What idea can ordinary readers gather from such assertions as that, for instance," to impute rights to the sovereign is to talk absurdly," that "the mind is affected by physical compulsion ;" yet they each have in their place a per- fectly intelligible and an important meaning? Indeed, those who wish to know something about Mr. Austin's writings, and yet not to have the trouble of studying them, will indubitably
fall into errors worse than mere ignorance. Men of common sense, who "cast their eyes" down his pages, and see that'they are filled with endless definitions of such words as "duty," "right," "law," "property," "status," "sights in rem," &e., will almost certainly deem his speculations either useless or futile, and hold that he is one of those teachers who occupy one-half of their pupils' time in explaining what everybody understands, and the other in trying to explain what no practical man need care to understand. There is something absolutely irritating to ordinary minds in the insinuation that they do not understand the words they each moment employ, and it is hardly rational to expect that merchants rich in stocks and land should listen to a philo- sopher who intimates that they do not understand what is meant by property, or that gentlemen always ready to stand up for their "rights." should give ear to suggestions that it is by no means easy to say what a "right" is. Socrates began the game of Definitions, and so bored respectable Athenians that they silenced him by death. Respectable English gentlemen are more merciful, though less tolerant. The Greeks heard Socrates, though they killed him. Englishmen do not kill; but neither will they hear impertinent expounders of definitions.
The small class willing to study Mr. Austin's writings are not, however, long tempted to consider his speculations either useless or futile. Any one who sees how utterly at sea are not only the public, but also professional lawyers, when any question arises, such, for instance, as the inquiry as to the responsibility of the insane, which involves the first principles of law, will be little prone to charge investigations into the theory of jurisprudence with inutility. Nor will any one who has carefully digested even the pre- face to Mr. Austin's first volume doubt that be was able, beyond most men, to give clearness to legal terms by "snuffing them (to use an expression taken from Hobbes) with distinctions and definitions." But when Mr. Austin's extraordinary merits are fully acknowledged, and when it is conceded that, in a science like that of jurisprudence, in which accurate and precise ideas are as necessary as they are bard to obtain, this process of "snuffing" is of unspeakable value, it is scarcely possible not to desire some reply to questions which Mr. Austin apparently never asked himself, and certainly has not answered. How far is it possible, by the use of the most accurate of defi- nitions, or by the most perfect analysis of ordinary notions, to increase knowledge or arrive at the true nature of things ? Re- flection on the results of Mr. Austin's labours seems to us to supply at least a partial answer to this inquiry. All that can be done by definition he accomplished, and this was not little. Whatever branch of law he investigated, there he established clear conceptions in the place of somewhat vague ideas. Most men find their minds filled by certain indeterminate notions. Students of Mr. Austin soon replace these indistinct thoughts with ideas of the most definite description. What they mean by "rights," "property," "duty," and so forth, they know as distinctly as what they mean by chairs and tables. At first they conceive that they have gained not only clearer thoughts, but a great increase of knowledge. Reflection makes them question the amount of their gain. The use of definitions is great. They free the mind from confusion, and thus guard it against error, but they do not directly reveal truth. Mr. Austin gives his readers distinct notions by greatly restricting the meaning of common terms, and, some- times at least, in depriving ordinary conceptions of their vague- ness also deprives them of half their significance. The light which is snuffed is nearly " snuffed out." Moreover, he displays, we conceive, a tendency, almost inherent in his method of investi- gation, to turn away his pupils' attention from "the growth of ideas," and hence shows his weakest side when he touches on questions connected with the history of human thought. Thus, while be explains with lucid clearness what is meant by the ex- pression "law" in the nineteenth century, he almost confesses his inability to explain the growth of legal fictions. Let it, how- ever, be conceded that the instrument Mr. Austin employed could not cut quite so deep into the nature of things as be deemed, and he still remains a workman of unrivalled skill in his own art. As the science to which he devoted his whole mind gains more votaries, he will gradually receive the honour which is his due. "In the next generation," Bentham is reported to have said, "1 shall be seated on a throne and give laws to the world." The prophecy has been but half fulfilled. Bentham has given laws, but has not yet been enthroned. When the greatest of utilitarians receives the throne for which he looked, the greater Austin will be placed by his side, as chief among, his disciples and successors.
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