Theories of Law and Government

Writing in 1905, A. V. Dicey famously defined the era from about 1825 to 1870 as a period in which legal and political thought was dominated by the ideas of Jeremy Bentham and his followers. Dicey was right to note the importance of Bentham, even if his characterization of Benthamism was open to debate.1 Bentham’s intellectual energy and range was enormous. He was a legal theorist, who challenged the woolly thinking of an earlier generation of common lawyers, and who sought to put jurisprudence on a new scientific foundation. By the 1820s, he was already recognized as the great philosopher of law reform, whose writings were to inspire repeated attempts to codify the English criminal law, and reform procedure. At the same time, he was a major political theorist, who developed a radical democratic theory, which found its fullest expression in his Constitutional Code. This work also embodied a third strand in Bentham’s thought, his ideas on how to create modern, accountable bureaucratic structures of government.

The three strands of Bentham’s thought formed part of an integrated whole. The Constitutional Codewas the radical culmination of a lifetime’s work. But if Bentham’s own thinking was joined-up, his legacy turned out to be a highly fragmented one. For the different strands of his work were taken up by different people, and they took them in different and often unBenthamic directions. The first strand, that of jurisprudence, fell into the hands of John Austin, who gave the world—reluctantly and posthumously—a version of Bentham’s analysis of sovereignty and other legal concepts, which filleted out both the politics and the criticism of the common law. By defining the ‘province of jurisprudence’ as excluding legislation, Austin’s jurisprudence laid the foundations for formalist works, which sought to draw principles and doctrines only from the material of (p.73) the common law. Such an approach perhaps reached its apogee at Harvard, in the works of C. C. Langdell, but its assumptions (and its vocabulary of concepts) also inspired generations of treatise writers in England from the 1860s onwards. Common lawyers found further ammunition for the intellectual defence of their system against the encroachments of a potentially interventionist sovereign legislature in the work of Henry Maine, who questioned Austin’s theory of sovereignty, and rooted legal ideas in evolutionary developments found in different kinds of community. By the end of the century, common law theorists such as Frederick Pollock—who came of age in 1866, before the passing of the second Reform Act, and who died in 1936, in an era of universal suffrage—felt content to write works which largely ignored legislation, and saw the common law develop as the reflection of the community’s values as interpreted by judges. They used Benthamic analytical tools for a highly unBenthamic purpose.

The science of legislation—what law ought to be—was generally regarded by jurists as a separate science to be cultivated by others. But since a purely formal science of legal concepts did little to indicate how the law should be developed, debates in moral and political philosophy were inevitably relevant not only for legislators, but also for judges. In this area, the legacy of Bentham was rather more mixed. To begin with, his successors did not share Bentham’s political radicalism. Universal suffrage would not be won thanks to the unanswerable power of genius, but thanks to political and social pressure on the part of the unenfranchised over the long term; and the Chartists and Suffragettes carried no banners bearing Bentham’s name. Bentham’s most important intellectual heirs, such as J. S. Mill, were rather more elitist, feeling that good government needed those with particular talents. Nor did utilitarian thought dominate. In the decades following Bentham’s death, judges and politicians, who had a range of political and moral outlooks, were able to draw on a range of moral theories, both intuitionist and utilitarian. For our purposes, a significant outcome of the debates on moral philosophy was the development of a consensus that there existed axioms of morality shared by the community, which were largely the result of common sense. Philosophers disagreed profoundly on the foundations of these axioms, and how to resolve disputes between them: but they did not ask judges, or citizens, to decide every moral issue on the basis of a direct utilitarian calculation, or seek the voice of inner intuition.

The question of the influence of Bentham’s ideas on the administrative state has been chewed over for decades by historians debating the nineteenth-century ‘revolution in government’.2 Clearly, some of Bentham’s followers played (p.74) central roles in developing areas of regulation, as Edwin Chadwick did in the area of poor law, sanitary, and police reform. At the same time, in many areas, key developments in regulation were driven by pragmatic responses by the state to emerging social problems, without any kind of administrative blueprint for guidance. Moreover, by the 1860s, if there was one intellectual colossus who most dominated the public sphere, it was Mill, whose most famous work, On Liberty, defended a view which held not only that the state should act in a laissez-faire way, but that public opinion should do so as well. Both as a moralist, and as a political economist, Mill defended the free-trade, non-interventionist state which Dicey celebrated so much. Indeed, Mill came close to defending ‘negative’ liberty as in itself being a value, something which was itself very unBenthamic.

As Dicey perceived, this mid-Victorian view of liberty was increasingly challenged after 1880. It was not just that the pressure of a new electorate was forcing governments to pass more interventionist legislation than they had before. At the same time, new schools of thinkers, influenced by idealist philosophy, theories of evolution, and new ideas on social utility, began to develop theories which saw the state much more in communitarian terms and which justified more state intervention.

1. The Thought of Jeremy Bentham

In 1820, Jeremy Bentham was 72 years old. It was more than 40 years since he had written An Introduction to the Principles of Morals and Legislation. This work had a limited impact when it was published in 1789, but by the time of its second edition, in 1823, Bentham’s name was far better known, and he had acquired a core of dedicated followers keen to propagate his views. Bentham’s interest in codification dated from the 1770s and early 1780s,3 when he had drafted not only the Introduction, but also a series of manuscripts on the nature of law and its classification.4 Asking himself, as a young man, whether he had a genius for anything, he had ‘fearfully and tremblingly’ answered that his genius was for legislation.5 (p.75) After the turn of the nineteenth century, some of his jurisprudential writings became known, thanks to Etienne Dumont’s French editions of his writings, Traités de législation civile et pénale. In Bentham’s view, these editions ‘paved the way for acceptance more or less favourable’ to codification.6 He began to offer to draw up a code of laws for any state which would accept his offer; though he was unwilling to commence the task of drawing up any code until his offer had been accepted. Finally, in April 1822, Bentham received notification that his offer had been accepted by the Cortes of Portugal, and he was finally ready to begin the task.7

Bentham’s commitment to the project of codification derived from his theories of law, originally developed in the 1770s, when he reacted to the vision of law found in Sir William Blackstone’sCommentaries on the Laws of England.8 In this work, Blackstone had sought to put English law into an institutional structure borrowed from continental civilian jurists. Like them, he opened the work with a theoretical discussion, which set out the natural law principles which were to be the key to the work. Blackstone’s work was not only hugely influential in the late eighteenth century, but continued to be republished well into the nineteenth century.9 Its prime use was in providing an elegant and comprehensive introduction to the rules of English law. But its popularity and influence—and the fact that it seemed to be the definitive statement of the common lawyer’s theory of his law—also made it an ideal target for Bentham, who had himself attended the lectures on which the work was based.

Bentham felt that Blackstone had used meaningless language when describing the law. His definitions of law produced nothing but a ‘labyrinth of confusion’.10 From an early period, Bentham was concerned to use language precisely. He was particularly worried about the use of fictions by common lawyers to explain and justify their system. Two fictions which stood at the heart of (p.76) Blackstone’s vision of the common law were the social contract—which was used to explain the grounds and extent of political obligation—and natural law, which was presented as the highest form of law, by which the validity of positive law was to be tested. At an early stage in his thinking,11 Bentham distinguished between real and fictitious entities. Real entities were those which could be perceived by the senses (such as pleasure and pain, or an apple). Fictitious entities, by contrast, could not be perceived by the senses (such as ‘power’ or ‘obligation’, or ‘ripeness’). They were the creation of language, or words which did not correspond to things. They could not be defined (as real ones could) per genus et differentiam. 12 They could only be defined by being related to real entities, though a process Bentham called paraphrasis.13 This entailed taking a sentence containing a fictitious entity and expounding it in another sentence, using real entities. In this way, a fictitious entity could be expounded by showing its relationship with the real entities of which it was ultimately composed. A phrase including the ‘fictitious’ entity of ‘duty’ could thus be expounded by being transmuted into a sentence using the ‘real’ entity of having pain inflicted. If it was not possible to do this with a fictitious entity, Bentham argued, then it was a ‘non-entity’, utterly devoid of meaning.

In Bentham’s view, when jurists such as Blackstone invoked concepts such as the law of nature, and when American and French revolutionaries used the language of natural rights, they were invoking ‘non-entities’ and talking nonsense. For Bentham, ‘nothing that is at once intelligible and true can be collected from anything said by our Author [Blackstone] or by anyone else of the phantom of the Law of Nature’. It was nothing but a ‘formidable non-entity’.14 Instead of invoking reason or rights, the jurist could only make sense of the concept of law by relating it to the real entities of commands and punishments, which ended in pleasure or pain. A law, in Bentham’s definition, was

an assemblage of signs 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 (p.77) prospect of which it is intended should act as a motive upon those whose conduct is in question.15

All legal concepts which had any function in a legal system—such as duty, obligation, power, or right—had to be similarly capable of being related to these real entities.16

Bentham’s definition of law posed a challenge for the common lawyers. First, he undermined their claim that English law was rooted in the law of nature, or reason. By definition, he argued, the law of nature could not be a genuine law, since ‘a real Law is a command, […] an expression of the will of some person, and there is no person of whose will the Law of Nature can be said to be the expression’.17Natural law could not be seen as God’s command: since no person had ever perceived God, Bentham argued that anyone claiming to have knowledge of God could only be speaking nonsense.18 When people invoked natural law as a standard by which to judge conduct, they were therefore doing no more than expressing their own ‘sentiments about what is right and what is wrong’.19 Instead of appealing to positive standards, they appealed only to their own subjective sentiments. What other theorists referred to as the moral sense or common sense, Bentham called ‘the principle of sympathy and antipathy’; and he argued that it was the negation of all principle, since it offered no ‘external consideration, as a means of warranting and guiding the internal sentiments of approbation and disapprobation’.20

Secondly, Bentham argued that English law could not be seen as a body of customary law. Those customs which existed in the community—what he called customs in pays—could not themselves be regarded as laws, since they lacked the obligatory force which came from command and threatened punishment. They became obligatory only when ‘legalized’ by judges, announcing that punishment would be inflicted on the party who failed to conform to the custom.21 (p.78) Instead of being a body of customs deriving their authority from the community, the common law was composed of a large series of individual judgments by different courts. It operated ex post facto and without the proper commands needed to guide conduct. It was a non-entity, something which did not exist.22 ‘As a system of general rules, the Common Law is a thing merely imaginary’, Bentham wrote, ‘and the particular commands, which are all that (in the way of command) there ever was of it that was real, can not every where, indeed can seldom, be produced.’23 The real commands found in the common law system were only those given by the judges to the officials—such as the executioner—who were to carry out the sentence.24 This was like the law a man made for his dog: he waited until the dog misbehaved, and then beat him for it. Like the dog, the public had to guess the rule which was to guide their conduct and to make their own predictions about how the judiciary might behave in future. Bentham admitted that people could infer rules from the common law, but these rules could never be authoritative, and were hence always unstable as guides.

It was Bentham’s critique of the common law which led him, early in his career as a jurist, to turn his mind to codification. In his view, only written law enacted by a legislator could be properly regarded as law. Nor was it enough merely to recast common law in statutory form. Instead, a complete body of law—a pannomion—had to be created. Bentham wished to see a code enacted which would be comprehensive and complete. Nothing would be law which was not contained in the code. The new code would leave no terrae incognitae. Under the system he had in view, ‘a man need but open the book in order to inform himself what the aspect borne by the law bears to every imaginable act that can come within the possible sphere of human agency’.25 Bentham realized that in order to construct such a code, he had first to create a perfect plan of legislation. The groundwork for this was an analytical exercise, by which Bentham clarified the meaning of legal terms and concepts, showing on the way how the common lawyers had confused them.26 In this process, he sought to uncover and explain the universal terms by which the particular jurisprudence of any country could be explained. In particular, he sought to explain the notion of ‘a law’. In his view, any ‘complete’ law comprised both civil and penal aspects, the former giving an exposition of the rights and titles protected by the sanction enforced by the latter. Every complete law ended in an offence. In Bentham’s system, the civil law would stand at the (p.79) heart of the code, and would be designed to maximize the four sub-sets of utility: subsistence, abundance, security, and equality.27 The penal law would give effect to the civil law. A complete code would set out all the rules of substantive law, removing any need for the judges to create law by judicial legislation.28 But it would be backed by a new form of ‘natural’ procedure, which would allow judges to hear all relevant evidence, hearing cases in the same natural way in which a father heard disputes between family members. In the early part of his career, Bentham believed that his complete code of penal and civil law could be enacted by any ruler under any form of government: it was for this reason that he was prepared to offer his services to any ruler, including Catherine the Great of Russia.29

Bentham also set out the principles on which the code should be constructed. The key to both morals and legislation was the principle of utility. Bentham grounded his moral theory in his materialist philosophy: ‘Nature has placed mankind under the governance of two sovereign masters, pain andpleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do.’30 The only way in which one could make sense of morals was by using the standard of the real sensations of pleasure and pain: it was in the end a matter of fact. It was this morality which was to guide the legislator:

[T]he happiness of the individuals, of whom a community is composed, that is their pleasures and their security, is the end and the sole end which the legislator ought to have in view; the sole standard, in conformity to which each individual ought, as far as depends on the legislator, to bemade to fashion his behaviour.31

In the second edition of the Principles of Morals and Legislation, Bentham restated the principle of utility as the ‘greatest happiness principle’, seeking the greatest happiness of the greatest number. Morality was therefore a matter of calculation, with the legislator having to take into account the numbers affected, and all the (p.80) pleasures and pains which would be experienced by all parties if certain legislation were enacted. This could, in theory, entail sacrificing the interests of a minority for those of the majority.32 This result might be rare, given the legislator’s duty to take into account factors such as the intensity, duration, and remoteness of pleasures and pains, which might result in the minority’s pains outweighing the majority’s pleasures. However, the result would always occur in the case of the delinquent who was to be punished: it was not that his happiness (in offending) counted for less, but ‘that it is necessary to the greatest happiness of the greatest number, that a portion of the happiness of that one be sacrificed’.33

As Bentham developed his theory of law, he also developed a theory of punishment,34 in writings published in French by Dumont in 1811 as La Théorie des Peines. In this work, Bentham developed a utilitarian theory of punishment, premised on the notion that punishment was designed to reform the criminal and to deter crime. Like Beccaria, Bentham favoured reforming criminal punishments and was an opponent of the death penalty. But unlike Beccaria, he did not base his views on humanitarian concerns for the prisoner, but rather on whether severe punishments were necessary. Dumont’s edition was widely read, and welcomed by criminal law reformers in England as a major contribution to the debate.35 To Bentham’s chagrin, this contribution turned out to be more theoretical than practical. For by the time of Dumont’s publication, Bentham had spent many years failing to persuade the government to adopt his scheme to build and run a Panopticon prison, and had become embittered by this failure.

In the circular prison which was Bentham’s Panopticon, the inspector would be able to see everything which was happening in the prison, while the prisoners themselves would be unable to see him. The Panopticon—that machine to ‘grind men good’—seemed to represent a strong, centralized supervisory state, where liberty had no value, but the state was to force people to conform to the dictates of utility:36

If it were possible to find a method of becoming master of everything which might happen to a certain number of men, to dispose of everything around them so as to produce on (p.81) them the desired impression, to make certain of their actions, of their connections, and of all the circumstances of their lives, so that nothing could escape, nor could oppose the desired effect, it cannot be doubted that a method of this kind would be a very powerful and a very useful instrument which governments might apply to various objects of the utmost importance.37

Bentham’s writings on the Panopticon, as well as his writings on the Poor Laws, have been taken as central to his developing ideas on how to organize the administrative state.38 A number of historians have seen Bentham’s writings as providing a theoretical blueprint for the institutions of social control—prisons, workhouses, and asylums—which were built in early Victorian England.39

Bentham’s failure to get his project off the ground helped radicalize him. He had long felt that the legislator was justified in setting rules of conduct, which would best promote utility, rather than leaving each individual to judge how to act for himself, since the legislator (as Philip Schofield has put it) was ‘capable of taking a more correct view of the future consequences of actions’.40 However, the failure of the Panopticon project helped to persuade him that the legislator could not simply be trusted to advance the greatest happiness of the greatest number, since he might have his own particular, sinister interest. The more Bentham reflected on this, the more he sought to develop a theory to resolve it. His turn to radicalism made him rethink his notion of sovereignty and the state. This also made him rethink his approach to codification, for he now saw codification of constitutional law as the key to the enterprise.

When Bentham had first outlined his ideas about law, he had rejected the fictions on which much English constitutional thought was based, but without making democratic accountability a central part of his theory. Following Hume, he ridiculed the notion that there had been an original contract of government. The Lockean idea that men entered into a contract to secure pre-existing rights was nonsense, for no rights could exist before governments were created. It was natural for men to seek the security offered by political society, since this best promoted their happiness; but there was no one moment when this had occurred. Rather, a habit of obedience to government had developed, echoing that found in the patriarchal family.41 A state existed when ‘a habit of submission to the punishments and (p.82) obedience to the commands of persons of a certain description among them’ had developed in a community.42 Bentham dismissed the Lockean notion that the people had a right to resist when the ruler broke the contract: instead, he pointed out, people would disobey the ruler when they were persuaded of the utility of doing so; and if a sufficient number reached this ‘juncture for resistance’, then the ruler would be overthrown.43 Bentham recognized, in his early writings, that there was a distinction between the commands of a legislator and the ‘investitive’ powers by which persons were appointed to offices,44 but he did not in these early writings talk much about how rulers were constituted, save by the ‘habit’ of their subjects. But he did speak of constitutional laws in principem, whereby rulers imposed obligations on themselves. Such ‘laws’ could not be enforced by legal or political sanctions—since there was no one who could judge or coerce the sovereign—but they could be enforced by the moral sanction, the force of public opinion. If that sanction were ignored, then the ruler risked being overthrown.

By the time he drafted his Constitutional Code in the 1820s, Bentham had revised his theory of sovereignty, thanks to his discovery of the power of sinister interests. A sinister interest was one which was in opposition to the interest of the whole community. Various powerful groups were prone to advance their own sinister interests at the expense of the community. Prime among them—indeed the first to be identified as such by Bentham—were the lawyers, whose sinister interest was to promote expense and delay in the law. By 1810, Bentham came to realize that rulers were also prone to follow their sinister interests, rather than the general interest, and began to argue for radical parliamentary reform. In his Constitutional Code, Bentham therefore sought to devise a structure which would prevent the development of sinister interests, to ensure that the interest of the rulers—and all officials in the system of government—coincided with the general interest, which they would feel it was their own interest to advance.

Where previously he had spoken of the ‘sovereign’ as the ruler whose commands were obeyed, he now stated that ‘[t]he sovereignty is in the people’. That sovereignty was exercised ‘by the exercise of the Constitutive authority’,45 by which the people invested the officials in the state with their powers. His reformulation reflected his later concern to create a system which promoted the security of the people, and thereby the greatest happiness. This could only be done if the ‘possessors of efficient power’—the rulers—were dependent on ‘the originative (p.83) power of the body of the people’.46 Nonetheless, the legislature so elected was to be omnicompetent and unlimited in its powers to make laws. It was not to be judged by any other power in the state. Bentham’s reformulation was in effect a refinement of his earlier ideas on the relationship between the sovereign and subject, rather than representing a different theory of law from that espoused in his earlier writings.47 However, the theory of theConstitutional Code was a radical one: it required a representative democracy, and one in which the entire machinery of government would be transparent, and under the ever watchful eye of the Public Opinion Tribunal. Bentham’s constitution would not be policed by a judiciary, with any power of judicial review. Rather, it was to be policed by the people, who invested the officials with their power and who would be able to see much more clearly under the new system of accountability how and when officials went wrong.

Bentham’s codification project had moved from being a theory of law and law reform to become a wider theory of government and how to control it. ‘In place of limits’, Bentham noted, the legislature ‘has checks […], securities, provided for good conduct on the part of the several members, individually operated upon.’48 Much of Bentham’s writings in the 1820s entailed developing a set of securities against misrule, an architecture of the state which would prevent sinister interests emerging in its fabric. The aim of constitutional law was to make the interests of the rulers and the ruled coincide. This entailed maximizing the aptitude of officials, and minimizing the expense of government. Officials would be accountable for their actions, both through lines of accountability to those who appointed them, and through publicity. For Bentham, only a fully democratic system could reconcile the tension between the job of the legislator in promoting the greatest happiness of the greatest number, and his belief that every individual was the best judge of his own pleasures and pains.

After his death in 1832, Bentham was dissected in the Webb Street school of anatomy, after an address had been given to all his fellow-disciples by the surgeon Thomas Southwood Smith. Bentham had wanted his body dissected for the sake of utility—to further medical knowledge—and his body, or Auto-Icon, was subsequently housed in University College London. But Bentham and his memory were not universally venerated, as Thomas Carlyle’s famous attacks demonstrated. Nor did his project for radical political reform find a receptive audience. Although a group of Philosophic Radicals continued to spread the message in (p.84) the 1830s, their importance and influence should not be exaggerated.49 Moreover, these followers were in practice far less radical than the master. The voices calling for the most radical reform remained an extra-parliamentary movement, who would in the decade after Bentham’s death call for universal adult male suffrage and the secret ballot in the Chartist movement. But their vision of political reform owed nothing to Bentham, having its roots in the political radicalism of Thomas Paine and the London Corresponding Society of the 1790s, and in the early socialism of the Owenites.50

If Bentham’s influence on the pace of political reform was small in the decades after his death, it was much greater when it came to administrative reform and law reform. Men who had come under Bentham’s influence, such as Chadwick and Southwood Smith, would play important parts in numerous areas of government growth in the 1830s and 1840s.51 Bentham’s work, which came to a wider audience when John Bowring produced an 11-volume edition of his writings (between 1838 and 1843), also exerted great influence in spurring law reform.52 Although Blackstone’s Commentaries continued to be republished, few by the 1830s shared his apparent complacency that all was well with the common law. Bentham’s attacks on Blackstone’s natural law theory had hit their target. Nonetheless, Bentham’s projects remained far too radical for most English stomachs, and his influence was indirect. In law reform, it would be the reformist Henry Brougham and his Law Amendment Society who would have most influence. In legal theory, it was John Austin who would present a more acceptable, politically neutered, form of the jurisprudence developed by Bentham.

2. John Austin’s Reformulation of the Province of Jurisprudence

In 1819, John Austin wrote to Bentham that he had ‘no violent desire for any other object than that of disseminating your doctrines’.53 The doctrines he had in mind were not Bentham’s ideas on political reform, or democratic accountability. (p.85) They were rather his ideas about the nature of law and legal reasoning. Dumont’s rescensions aside, Bentham’s own jurisprudential works were not published in the nineteenth century, and it was Austin who acquired a reputation as the most important English writer on jurisprudence in the nineteenth century. Austin’s politics were significantly different from Bentham’s. Whereas Bentham died in 1832 a democrat, whose dream was radically to recast the constitution, Austin died in 1859 a conservative, whose last work—A Plea for the Constitution—opposed any kind of political reform, and praised the ‘political aristocracy’ which had the time and talent to rule. Although Austin’s conservatism grew over the long and unproductive years before his death, his disagreement with Bentham’s radicalism dated from the late 1820s.54

Austin popularized a version of the jurisprudence Bentham had developed in the 1770s and 1780s—before his mind turned to constitutional law—and used it to explain the uncodified common law. In contrast to the hyper-productive Bentham, who never stopped writing all his life, Austin’s oeuvreconsisted of an incomplete set of Lectures on Jurisprudence, delivered at the University of London. Some of these lectures were published as The Province of Jurisprudence Determined in 1832, and the rest appeared posthumously in 1863 in an edition produced by his vivacious wife. Bentham was not the only influence on this work. While preparing his lectures, Austin spent six months in Bonn, in 1827–8, where he came to admire the Roman law scholarship of the German Pandectists, though without finding the Kantian philosophy on which it was based congenial. The lectures were delivered between 1829 and 1833, to audiences which were very small, but select, for they included John Stuart Mill, Edwin Chadwick, and John Romilly.

The Province laid out the bases of Austin’s positivist theory of law. According to his definition, every law ‘properly so called’ was a command issued by a determinate rational being, which was backed by the threat of a sanction which that being had the power to exert.55 The subject matter of jurisprudence was the positive laws ‘set by a sovereign person, or a sovereign body of persons, to a member or members of the independent political society wherein that person or body is sovereign or supreme’.56Just as Bentham had sought to distinguish between the task of the expositor and the censor, whereby the former expounded what the law was, and the latter evaluated and criticized it, so Austin distinguished the sphere of law and morals. The task of jurisprudence was to consider the positive laws(p.86) ‘without regard to their goodness or badness’.57 The task of exploring the relation of positive law and morals was to be left to the science of legislation. The jurist was not to confuse the law as it was, with the law as it ought to be.

Unlike Bentham, the Unitarian Austin felt that the laws of God were properly called laws, since they derived from a superior being with power to punish in the afterlife.58 However, he agreed that the laws which the jurist was to study were the positive laws enacted and enforced by the rulers in a political society. Such positive law did not include rules found in custom or international law: since they were enforced by indeterminate sanctions imposed by indeterminate bodies, they were defined as ‘positive morality’.59 Austin’s theory of the state and sovereignty echoed that of the early Bentham. The sovereign, who issued commands, was legally illimitable in any state, since he was the source of law. His sovereign nature was constituted by the fact that the bulk of any given society gave him habitual obedience, while he obeyed no superior himself.60 Although Austin did not spend much time developing the notion, he agreed with the early Bentham that the sovereign could be limited by the moral sanction, if the ruler feared arousing the resistance of subjects whose expectations had been thwarted.61 But unlike Bentham, he had little interest in developing a constitutional structure by which rulers could be held to account. For Austin’s theory, it made no difference whether the sovereign was an absolute monarch, a democracy, or a mixed constitution, even though there might be difficulties in exactly locating the sovereign in the latter case.

Instead of being an active legislator, Austin’s sovereign was the formal source of all positive law. He did not share Bentham’s abhorrence of judicial lawmaking, regarding it as ‘highly beneficial and even absolutely necessary’.62 Although he wanted to see English law codified—and played an important (if brief) role on the Criminal Law Commission of the 1830s—he did not share Bentham’s ambition to create a pannomion in which the role of the judge would be severely curtailed. Instead, his lectures offered a theory and justification of judicial law-making, which was congenial to a generation of jurists faced with the problem of developing principles of private law untouched by Parliament. In Austin’s view, the (p.87) judges were not ‘oracles of the law’, finding the law in reason or in the customs of the community, as Blackstone had seen them. Rather,

[t]he portion of the sovereign power which lies at [the judge’s] disposition is merely delegated. The rules which he makes derive their legal force from authority given by the state: an authority which the state may confer expressly, but which it commonly imparts in the way of acquiescence.63

The common law was a body of judge-made law. A judge developing the law could draw from sources which did not have the force of law within the system (such as custom or divine law), or simply use ‘his own views of what law ought to be (be the standard which he assumes, general utility or any other)’.64But the usual way judges operated, he argued, was to extend existing rules by ‘consequence and analogy’. These rules were capable of being found in a line of precedents, teased out of their rationes decidendi. While Austin had some difficulties in explaining how sovereign commands could be extracted from a developing case law composed of individual judgments, his was the most penetrating analysis of the common law method of judicial law-making yet attempted.65

Although Austin claimed not to be dealing with the science of legislation, three of the six lectures published as the Province were devoted to discussing the principle of utility. Austin’s concern in these lectures was particularly to reject the notion that a moral sense existed, by which right and wrong could be known. His denial of the existence of a moral sense was therefore part of his argument demonstrating the separation of law and morals. In these lectures, Austin offered a significantly different version of utilitarianism from Bentham’s. Following William Paley, he treated utility as an index to the divine will, rather than being itself the source of any moral obligation. The law of God was to be inferred from observing the tendency of general actions. This generated a form of rule-utilitarianism, which entailed making conduct ‘conform to rules inferred from the tendencies of actions’ rather than determining how to act ‘by a direct resort to the principle of general utility’.66 In Austin’s view, the only occasion for a direct resort to utility was in cases of disobedience to a government: for while it was a general rule dictated by utility that governments be obeyed, on occasion, the mischief of obedience might be outweighed by the utility of rebellion.

Austin’s rule-utilitarianism was premised on the view that it was far too difficult for the mass of people to infer the divine will from the tendency of an infinite variety (p.88) of acts. Discovering the best moral solution was a product of experience and expertise. Such correct and good moral rules as existed had been formed not by the reasoning of individual people, but from the observation and experience of generations of people. Insofar as current rules stood in need of correction and reformation, this was to be the task of experts in a position to study the principle of utility and observe the tendencies of action. Once the experts had obtained this knowledge, the leading principles could be taught to the poor and uneducated, who would no more be able to master the details than they could master the complexities of political economy. Austin’s rule-utilitarianism thus served to justify existing moral positions, while giving a role to experts to develop the moral rules to be followed by society. No doubt, for Austin, the judges would have been among that cadre.

However congenial this brand of utilitarianism might have been for the judiciary, many later commentators felt that Austin had violated his own strict separation of law and morality by even talking of utility. Instead, his fame was to rest primarily on his analysis of legal concepts. Austin defined general jurisprudence as the study of principles, notions, and distinctions which were common to every system of law. These principles, ‘abstracted from positive systems’, were ‘necessary’ notions, insofar as ‘we cannot imagine coherently a system of law (or a system evolved in a refined community), without considering them as constituent parts of it’.67 They included the notions of duty and right, person and thing, act, forbearance, and omission. Austin spent much time drawing distinctions—such as that between will, motive, intention, and negligence—which would prove of great use to lawyers seeking to develop legal rules in an age when the jury’s role was being diminished.

By getting the structure of concepts right, Austin intended to provide the conceptual materials for a systematic treatment of the content of the common law as a whole. This required him to relate his concepts to his fundamental positivist definition of what a law was. Like Bentham, Austin rejected the Lockean language of natural or absolute rights which Blackstone had used. ‘I have no right’, Austin noted, ‘independently of the injunction or prohibition which declares that some given act, forbearance or omission, would be a violation of my right.’68 This meant that Austin took a very Hobbesian view of liberty:69

Political or civil liberty is properly the mere liberty from legal obligation left by a Government to its own subjects, which liberty the Government may or may not couple with a legal right to it … If not, then the right to liberty is any right to do or forbear, which is not comprehended by any other specified right whatever.70

(p.89) It also meant that all the rights protected by the law of obligations—rights to property, person, and reputation—derived from duties imposed on others by the sovereign.

In Austin’s view, rights were generated indirectly, through duties imposed by the sovereign on others. But this did not mean that one could not describe rights without reference to commands or sanctions. Austin distinguished between ‘primary’ rights—‘which exist in and per se: which are, as it were, the ends for which the law exists’—and secondary rights, which gave remedies, and which arose out of injuries or wrongs. Strictly speaking, the only laws which were necessary in any legal system were those which gave remedies, or imposed punishments,71 for they were the ‘means or instruments for making the primary available’.72 Often, indeed, the ‘primary’ right was not defined or described at all, but was implied in the ‘secondary’ right which gave redress. But sometimes, these primary rights were more complex, and needed to be set out separately. For instance, if it were true theoretically that any person’s property rights were merely the product of an infinity of duties of non-interference imposed on others, the law was rendered more comprehensible if it set out the titles to property by which rights were conferred and extinguished, and duties imposed. In Austin’s view, the broad content of a right could be described and set out, as well as the means of acquiring it.

This analysis had echoes of Bentham’s division between the civil and penal parts of a law. However, unlike Bentham, his aim was not to create a complete code of laws enacted by legislation, but to explain the content of the common law. The more he focused on the rights and remedies of the common law, the more the notion of command slipped out of view. Instead of the commands of the sovereign, the rights of the subject came to take the prime place. Even the remedies identified by Austin were related more to the rights they protected than to the commands of the sovereign. Thus, the ‘secondary’ rights relating to civil injuries were classified by reference to the rights which were infringed.73 Austin divided the law of civil injuries into two parts. The first dealt with infringements of rights against the whole world (dealing with torts); the second with infringements of rights against particular people (dealing with contracts). Torts were further divided into rights of vindication, rights of satisfaction, and rights of prevention.74 The first of these concerned actions such as those to recover possession of a house, or to abate a nuisance. The second considered when the right (p.90) was ‘virtually annihilated’ and pecuniary compensation was required. The third dealt with injunctive relief. This was hardly a taxonomy of duties. It was merely an analytical relation of breaches back to the rights they protected. There was even some circularity here. Primary rights were largely defined by the secondary rights; but these secondary rights themselves only made sense if one knew what primary rights they protected. Later jurists continued to worry about Austin’s structure, and questioned whether it was correct to begin with rights, rather than duties. But the common lawyers who queried his structure did not seek to relate the ‘duties’ they had in mind to sovereign commands.75

Austin’s analytical jurisprudence was therefore helpful for the common lawyers—for it gave them new definitions and distinctions—and it did not challenge the common law way of thinking about the substance of law in the way Bentham did. Published in the year of the Great Reform Act, Austin’s jurisprudence neatly provided its readers with what they wanted to hear. On the one hand, his Hobbesian stress on the power of the state, locating sovereignty in the Crown-in-Parliament, offered a perfect constitutional theory for a new age of legislative activism. It is not insignificant that that great champion of parliamentary sovereignty, A. V. Dicey, was an admirer of Austin. In Dicey’s constitution, judges would be duly deferential to their sovereign masters. On the other hand, Austin had also drawn the political sting of Bentham’s attack on the common law, defending the standing of the judiciary, and portraying their task as a technical one. The common law was to be seen as a system of authoritative rules derived from case law which provided remedies for wrongs not given prior definition by the sovereign.

3. Intuitionists and Utilitarians, 1820–75

Although Dicey felt confident in characterizing the period after 1825 as the era of ‘Benthamism’, contemporaries were less convinced of the influence of the Philosophic Radicals.76 In hisAutobiography, J. S. Mill noted that ‘they had little (p.91) enterprise, little activity’ in Parliament in the 1830s.77 As late as 1861, he told a French correspondent that the principle of utility remained ‘very unpopular’ in England, where ‘the school of Bentham has always been regarded (I say it with regret) as an insignificant minority’.78 While Mill may have exaggerated this—for the influence of men like Chadwick on administrative reform was not inconsiderable—it is clear that the utilitarians did not have all of the argument in the 1830s. Indeed, Bentham’s mechanical utilitarianism was famously derided by Carlyle, who poked fun at ‘Bentham with his Mills grinding thee out morality’.79

Bentham’s moral theory was attacked by a school of conservative thinkers, whose intellectual inspiration was Samuel Taylor Coleridge. Coleridge was appalled that the ‘guess-work of general consequences’ should be ‘substituted for moral and political philosophy’.80 For him, true morality had to be rooted in religion. He rejected the empiricism of the utilitarians, and was strongly influenced by German idealist philosophy, much of which he had read in his youth. Like Kant, he felt that not all knowledge was derived from experience. Instead, knowledge was in part a priori, with the mind putting order into the data perceived by the senses, through ideas which were not derived from experience. He therefore distinguished between the ‘understanding’, which perceived and organized sensory data, and ‘reason’, which perceived the intuitional and abstract categories that allowed thinkers to perceive the underlying reality.

For Coleridge, moral knowledge derived from intuition, rather than from experience. Unlike beasts, humans were not driven by mere appetites, but had a will, which was the source of their moral sense, or the knowledge of right and wrong. Intuitive ideas of good and evil could be discovered by reason guided by the will. Such ideas were above understanding, since they were not to be empirically proved, and they took the form of conscience.81 Coleridge’s (p.92) moral intuitions had a transcendental independence, beyond the conception of subjects. This ‘knowledge, or sense, may very well exist, aye, and powerfully influence a man’s thoughts and actions, without his being distinctly conscious of the same, much more without his being competent to express it in definite words’.82 Coleridge’s moral theory was also teleological. Man was ‘the creature destined to move progressively towards that divine idea which we have learnt to contemplate as the final cause of all creation, and the centre in which all its lines converge’.83

For Coleridge, the institutions of a state were living forms, also guided by the teleological idea of its ‘ultimate aim’.84 A constitution, he argued, is ‘an idea arising out of the idea of State’. Our whole history demonstrated the continued influence of such an idea, and ‘the result has been a progressive, though not always a direct or equable, advance in the realization of the idea’. The science of history, he noted, ‘studied in the light of philosophy, as the great drama of an ever unfolding Providence, […] infuses hope and reverential thoughts of man and his destination’.85 In contrast to Bentham, he sought to develop a constitutional theory which could define and preserve the existing institutions. Coleridge’s idealistic interpretation of English history saw the development of the state as a balance of the permanent and the progressive.86 The former element was represented by landed property, the latter by the commercial classes: ‘in the first estate the permanency of the nation was provided for; and in the second estate its progressiveness and personal freedom’. But the moral health of the nation required the existence of a third estate, the clerisy or national church, whose task was ‘to secure and improve that civilization, without which the nation could be neither permanent nor progressive’.87

Coleridge’s moral philosophy was anything but democratic, for he argued that ‘it is the privilege of the few to possess an idea’.88 The poor, brutalized by their poverty, lacked the capacity for it, and so had to be guided by the elite. In his later work, he therefore advocated the establishment of a cultural elite, or ‘clerisy’, which would guide the community. They would be ‘at the fountain heads of the humanities, in cultivating and enlarging the knowledge already possessed and in watching over the interests of the physical and moral science’. They would provide a source of ethical guidance for the community. The clerisy ‘comprehended the learned of all denominations, […] all the so-called liberal arts and sciences, the possession and application of which constitute the civilization of a country, as well as the theological’. All these, who directed their studies to the ‘nobler (p.93) character of our nature’, would be ‘led by the supernatural in themselves to the contemplation of a power which is likewise superhuman’.89

Coleridge was the great Romantic philosopher of conservatism in the decades around Bentham’s death. He also provided intellectual inspiration for a group of theologians and moralists in Cambridge in the 1830s, who adopted a similar idealist position, openly critical of empiricism and utilitarianism. These thinkers stressed the development of moral knowledge over time, as human insights into the workings of divine providence developed. Much of the debate turned on the issue of whether scientific research had to be premised on the theological insights. In these debates, the Coleridgean F. D. Maurice (later one of the protagonists of Christian Socialism), argued that science demanded God as its foundation, since knowledge of God was essential for all other knowledge. Just as God was essential for any understanding of the physical world, so conscience, which transmitted to humans the law of God, was the rule of morality.90

The most important intuitionist philosophy developed at this time was William Whewell’s.91 Whewell agreed with the Coleridgean view that our knowledge developed historically on the basis of intuitions. Two elements were involved in every act of knowledge: ideas and perceptions. In each branch of scientific inquiry, fundamental ideas were supplied by the mind itself, independently of experience. These ideas formed the structure which made sense of the data obtained by experience and observation. While the ideas, or intuitions, were timeless, the human capacity to grasp them developed over time with scientific knowledge. Ideas provided the categories with which to make sense of the data obtained by induction; but in turn, the concepts were refined and clarified in the light of data obtained by induction. Whewell also developed an intuitionist theory of morals. He held that moral knowledge was acquired through the conscience, and that moral rules were self-evident necessary truths. Moral knowledge was progressive, in the same manner as scientific knowledge. Just as there were fundamental ideas in the sciences—such as space—which were refined over time, so there were fundamental ideas in morals—benevolence, justice, truth—which became better understood over time. These innate ideas helped us to make sense of the world, and structure our knowledge. The intuitionists’ attack on utilitarianism is significant, for it articulated a powerful counter-view as to the basis of moral obligation, which appealed to many conservatives.92

(p.94) This view of moral knowledge was likely to be congenial to many Tory judges, not least John Taylor Coleridge, the nephew of the poet. It was also significant for eliciting a response from John Stuart Mill, the dominant intellectual figure of the mid-nineteenth century. The son of the radical utilitarian James Mill, he had spent much of his youth in the company of Bentham, whose writings—much more than those of his father—opened his eyes to the principle of utility.93 He had also been taught Roman law and jurisprudence by Austin, both privately and in the classes at University College. Mill’s legal training was profound, his intellectual apprenticeship completed by his editing Bentham’s massive Rationale of Judicial Evidence between 1824 and 1826. By then, however, Mill had already given up the idea of a career in law, and he was only ever to turn his pen to the philosophy of law when reviewing the works of others, notably Austin. Instead, his name was made by the theoretical tomes, A System of Logic (1843) and The Principles of Political Economy (1848), and by the more popular works elaborating his political thought, On Liberty (1859), Considerations on Representative Government(1859), Utilitarianism (1861) and The Subjection of Women (1869). In these works, he sketched out his view of the grounds of morality, and the proper sphere of government. These were questions which Austin’s jurisprudence had not explored in any detail, but which had been central to Bentham’s theories. In politics, Mill stood on the radical wing of the Liberal party, sitting in Parliament from 1865–8. Less radical than Bentham, or his father, had been in the 1820s, his work also offered important modifications to the theory of Bentham.

By 1830, Mill had already suffered the most famous nervous breakdown in intellectual history, and had rebelled against the dry, soulless, calculating system drilled into him by his father.94 His realization that pleasure was not all a matter of calculation would make him rethink his brand of utilitarianism. In the decade which followed, he was in some degree influenced by Carlyle and Maurice. Mill acknowledged that the great seminal minds of the age were Bentham and Coleridge: ‘every Englishman […] is by implication either a Benthamite or a Coleridgean’.95 He rejected the idealist epistemology of Coleridge and his followers, setting out his views most fully in his System of Logic, a work widely regarded to have bettered Whewell’s approach. However, having engaged in the debate (p.95) with the rival school, Mill presented a highly modified version of the utilitarianism he had learned on the knees of his father and Bentham.

Mill felt that while Bentham was a great reformer, who had for the first time brought precision into moral philosophy, his system of thought had left much out. Bentham’s mechanical view of man was flawed. Dismissing Bentham’s view that the game of push-pin was equal in value to poetry, since both produced happiness,96 Mill pointed to the existence of higher pleasures and sentiments, which should be cultivated by education. ‘Next to selfishness’, he noted, ‘the principal cause which makes life unsatisfactory, is want of mental cultivation.’97 Bentham had not seen that man was ‘capable of pursuing spiritual perfection as an end’. Most strikingly, he had failed to recognize the existence of conscience.98 Mill did not share Coleridge’s views about the conscience, accepting the utilitarian view that the moral sense could not be a test of right and wrong. However, he noted—as Bentham had not—the existence of the conscience as a fact in human nature.99 It was (he noted in Utilitarianism) ‘a feeling in our own mind; a pain, more or less intense, attendant on violation of duty, which in properly-cultivated moral natures rises, in the more serious cases, into shrinking from it as an impossibility’.100For Mill, this feeling did not come from an innate moral sense, but was developed by social experience.

Just as Bentham failed to notice the nature of conscience, so he failed to see the factors which held a society together. If Bentham’s system may have taught how to best organize the material or business aspects of any social arrangement, the ‘Germano-Coleridgean’ school had been right to draw attention to the need to consider history. It was an error to fail to ‘acknowledge the historical value of much which had ceased to be useful’ and to fail to recognize ‘that institutions and creeds, now effete, had rendered essential services to civilization, and still filled a place in the human mind, and in the arrangements of society, which could not without great peril, be left vacant’.101 Coleridge and his antecedents had corrected this by seeking a philosophy of society and a philosophy of history. They had shown that societies were held together by systems of education which developed discipline, as well as feelings of allegiance and loyalty among the members of a community. Mill drew the conclusion that ‘[a] philosophy of laws and institutions, not founded on a philosophy of national character, is an absurdity’.102

(p.96) Mill’s interest in history was also sparked by his reading of the Saint-Simonians and Auguste Comte, whose anti-theological view was perhaps more to Mill’s personal tastes than Coleridge’s mysticism.103 Comte’s work in particular made him explore the question of whether it was possible to develop a social science. In the System of Logic, he explored the question of whether a science of society could be developed, by seeking uniformities in the different states of society. For Mill, the ‘state of society’ included the degree of knowledge, and moral and intellectual culture existing in the community, the state of industry, the common beliefs, and the state of its government and laws.104Mill did not accept Comte’s view that social science would show that all societies developed in the same way, but he did feel that there were empirical laws of society, which could be traced, some of which were ‘uniformities of coexistence, some of succession’.105

These views about human nature and the nature of society made Mill rework the principle of utility. This principle was to be treated as the ultimate criterion of morality, but did not have to be directly invoked in every moral decision. In Mill’s view, utility was ‘much too complex and indefinite an end to be sought except through the medium of various secondary ends’.106 In practice, the community was guided by ‘secondary principles’ or ordinary rules of moral action. Mill noted that both utilitarians and intuitionists agreed that such principles were needed since ‘morality of an individual action is not a question of direct perception, but of the application of a law to an individual case’. They also agreed on the content of these rules. Their disagreement lay in the foundations of these rules, or ‘the source from which they derive their authority’.107 If it was easy enough to agree on the nature of the ‘secondary principles’, things became more complicated when these principles came into conflict, when there had to be a direct appeal to a higher principle, the most effective of which was the principle of utility.108For Mill, theories of the moral sense could offer only generalities, which failed to descend into detail. Morality required a means of ascertaining what was right and wrong: as soon as this was sought, all moralists (Mill claimed), even Kant himself, in effect reverted to utilitarian forms of argument.

The secondary or intermediate principles were taught by experience. Coleridge had taught Mill that the fact people had held a belief for a long time showed that it could not be a fallacy, but had to be accounted for. In Utilitarianism, he reiterated the point that mankind had learned the tendencies of actions from experience (p.97) over time. Current established rules were to be presumed good, though they were open to being tested by the philosopher applying higher principles.109 Nor were these higher utilitarian principles simply ones of individual psychological hedonism. Like all moral principles, they looked to the public interest, considering the consequences of everyone being allowed to perform the act in question, and not merely the consequences for oneself.

This was to suggest that the rules of morality were to be found in the community’s practice, but that they could be tested and challenged by those more expert. Like many of his generation, Mill was attracted by the elitism of Coleridge’s clerisy. In his view, the conservative poet had vindicated against Bentham ‘the principle of an endowed class, for the cultivation of learning, and for diffusing its results among the community’.110 Mill doubted that it was good for mankind, in all places and at all times, to be ‘under the absolute authority of a majority of themselves’ or ‘under the despotism of Public Opinion’. The power of the majority was salutary as long as it was used defensively, and not offensively: as long as its ‘exertion is tempered by respect for the personality of the individual, and deference to superiority of cultivated intelligence’.111 Mill’s elitism was also seen in his Considerations on Representative Government, where he argued for a system whereby the task of governing and drafting legislation would be left to men of character and learning. It was also to be seen in his view that liberal, democratic forms of government were unsuitable for ‘barbarians’ or ‘those backward states of society’, whose members needed to be coerced rather than ‘guided to their own improvement by conviction or persuasion’.112 For Mill, the cultured and educated elite could help develop the higher moral feelings necessary for the greater happiness of society, acting as ‘public moralists’.113

While Mill did not develop a theory of law, he did famously discuss the nature of justice and the limits of coercion. In On Liberty, Mill argued that ‘[t]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others’.114In his view, harm occurred when one person injured another’s interests, ‘which, either by express legal provision or by tacit understanding, ought to be considered as (p.98) rights’.115 For Mill, where the interests of others were not affected, an individual should be left to make his own choices, though those choices might be influenced by that person’s education or by the advice of others. But ‘if he has infringed the rules necessary for the protection of his fellow-creatures, individually or collectively’, then, ‘society, as the protector of all its members, must retaliate on him: must inflict pain on him for the express purpose of punishment, and must take care that it be sufficiently severe’. 116

Scholars have long debated whether this view was consistent with his utilitarianism, given that it seemed to place the right to liberty above the good of utility. Mill himself insisted that he did not derive his argument from an abstract right, independent of utility.117 That the two notions were compatible can be seen from his discussion in Utilitarianism of justice and utility. In Mill’s view, the original notion of justice derived from the idea of conformity to law, that there were acts which were worthy of being punished, because they violated another’s rights. The notion of justice was social: it developed when ‘the animal desire to repel or retaliate a hurt or damage to oneself, or to those with whom one sympathizes, widened so as to include all persons, by the human capacity of enlarged sympathy, and the human conception of intelligent self-interest’. The right protected, according to this definition, was a claim which was considered sufficiently important by people to be guaranteed by society. The idea that rights existed which needed such protection derived from utility, having its root in the fundamental human need for security. It was people’s very awareness of their social nature which made them recognize rights:

Our notion, therefore, of the claim we have on our fellow creatures to join in making safe for us the very groundwork of our existence, gathers feelings round it so much more intense than those concerned in any of the more common cases of utility, that the difference in degree (as is often the case in psychology) becomes a real difference in kind. The claim assumes that character of absoluteness, that apparent infinity, and incommensurability with all other considerations, which constitute the distinction between the feeling of right and wrong and that of ordinary expediency and inexpediency.118

If, in Mill’s view (as outlined in On Liberty), purely self-regarding conduct should remain unregulated by rules imposed by legislators or moralists, it was not because there was an innate right to non-interference, but because utility demanded it. This was an altogether more subtle interpretation of the nature and derivation of rights from that to be found in Austin; and it was one which left the Austinian sovereign wholly out of the discussion.

(p.99) Mill did not outline exactly what the rights were which needed protection by law. To begin with, his argument was addressed not merely to legislators, but also to moralists, for he recognized the coercive force of both kinds of rules. Moreover, he noted that not all activities which could count as harms should be subject to legal control. In many cases, those who engaged in legitimate activity caused pain or loss to others. For example, society admitted no right not to suffer from trade competition, though it did provide a right to be protected from fraud or force.119 Equally, the state could, if it chose, interfere more to regulate trade: its choice not to do so, Mill asserted, was the result of a utilitarian view of what best promoted the efficient working of the economy.

At first glance, Mill’s On Liberty, which aimed to protect the individual from the tyranny of the majority, looked like a manifesto for the mid-century era of laissez-faire and individualism. Mill argued against using government action for the people’s benefit, feeling it was better to leave people to help themselves by their own voluntary or collective action. He seemed to be hostile to collectivism. One of his strategies to persuade his readers that the public had no jurisdiction over private concerns was to invoke the example of the ‘bad workmen’ in many industries, who employed ‘a moral police, which occasionally, becomes a physical one, to deter skilful workmen from receiving, and employers from giving, a larger remuneration for a more useful service’.120 Readers who were unsympathetic to workmen who wanted the bad to be paid as well as the good would see that the state had no business to interfere in other private matters. Moreover, Mill’s liberty seemed to be a commodity only for the independent, financially secure classes, for he took a tight view of the poor who were unable to maintain themselves or their children. In his view, laws which forbade marriage unless the couple could show that they were able to support a family were not an infringement of liberty, but were legitimate examples of the state forbidding mischievous acts which were injurious to others.121

At the same time, however, Mill’s works were replete with the language of altruism, of the need to cultivate fellow feeling and the development of social ties: indeed, the very notion of social feelings underpinned his version of utilitarianism.122 Mill’s utilitarianism was not the dry, calculating kind associated with Bentham. If the ultimate basis of his moral theory was utilitarian, he (p.100)acknowledged the role of moral rules recognized by the common sense of the community:

The moral rules which forbid mankind to hurt one another (in which we must never forget to include wrongful interference with each other’s freedom) are more vital to human well-being than any maxims, however important, which only point out the best mode of managing some department of human affairs. They have also the peculiarity, that they are the main element in determining the whole of the social feelings of mankind.123

This was a view which accorded significant weight to moral feeling and to altruism. It also opened the way for a more collectivist approach to politics. Writing before 1867, Mill had been anxious about the growth of democracy, and sought to qualify it with ‘fancy franchises’. Nonetheless, in his later life, he did begin to argue in favour of greater state intervention, noting that the abiding sins of the modern state were indolence and indifference. Now a passionate campaigner for women’s rights, he argued that female participation would ‘infuse into the legislature a greater determination to grapple with the great physical and moral evils of society’.124

Mill’s work elicited a conservative response from one prominent lawyer, James Fitzjames Stephen. He wanted to defend the notion of a state with a limited but efficient government, which would allow the flourishing of free individuals; while an elite set of men of character would improve the general tone of life in the community. In many ways, this was not a vision Mill would have found alien. However, after the passing of the Second Reform Act in 1867, lawyers like Stephen—and Henry Maine—felt that the forces of stability and order needed a stronger defence than Mill could offer. Coming from the Whiggish side of liberalism, they preferred forms of government which were guided by an experienced elite. They had both served as Law Member in India, and had sympathy for firm, bureaucratic government. Although they were both devotees of freedom of contract and individualism, they reacted strongly to Mill’s brand of liberalism, which by the 1870s appeared to them to open a dangerous door towards popular government.125

Stephen set out his views most fully in Liberty, Equality, Freedom. In it, he took Mill’s work as its target. He argued that in On Liberty, Utilitarianism, and The Subjection of Women, Mill had abandoned Benthamite utilitarianism in favour (p.101) of a version of Comtean positivism. Stephen claimed that the motto, ‘Liberty, Equality, Freedom’ was the creed of a religion, the Religion of Humanity. This religion (Stephen argued) held that ‘the human race collectively has before it splendid destinies of various kinds, and that the road to them is to be found in the removal of all restraints on human conduct, in the recognition of a substantial equality between all human creatures, and in fraternity or general love’.126 While considering himself to be Mill’s disciple in many respects, he regardedUtilitarianism and The Subjection of Women as embracing the forms of equality and fraternity to which he objected. Stephen disliked the stress on social feelings found in Utilitarianism, detecting in it a tinge of Comte. Against Mill’s belief that if all men were put on an equal footing, they would treat each other as brothers, Stephen argued that many men were bad, and most indifferent, and would often find themselves ‘compelled to treat each other as enemies’.127 Stephen dismissed Mill’s version of utilitarianism, though still claiming to be a utilitarian himself, in the sense that an external standard had to be appealed to, which might be best referred to as happiness, or expediency:

To say […] that moral speculation or legislation presupposes on the part of the moralist or legislator a desire to promote equally the happiness of every person affected by his system or his law is, I think, incorrect […] the happiness which the lawgiver regards as the test of his laws is that which he, after attaching to their wishes whatever weight he thinks proper, wishes his subjects to have, not that which his subjects wish to have.128

For Stephen, liberty was not in itself a value, as Mill had appeared to assume in his work. Like Hobbes and Bentham, he argued that it was nothing more than absence of restraint. All societies were held together by systems of coercion; the question for utility to determine was how far it was to be exerted. Mill’s attempt to draw the line by invoking the harm principle failed to convince Stephen. For Stephen, governments had to act ‘upon such principles, religious, political and moral, as they may from time to time regard as most likely to be true’.129 These needed enforcement by coercion. In his view, it was social morality which held (p.102) society together, and which had to be articulated and enforced by the state. In effect, it was for the government to articulate and enforce the prevailing morals which held the community together; something which entailed taking a position even on questions of religion.130If, in practice, Stephen did not wish for a more interventionist government than Mill, he did argue that intervention in matters Mill had sought to define as private was justifiable to reinforce cohesive social values. Moreover, while Stephen’s view was that the moral majority should be able to impose its view on the minority, that view was in practice to be articulated by an intellectual elite, which included himself.

Besides attacking Mill on liberty, Stephen also criticized his views on equality, considering that Mill regarded this (as he did liberty) as a higher value than utility. For Stephen, inequality was inevitable in society, and any attempts to legislate against it were futile. If there was a natural inequality in society, then the law should reflect it, rather than trying to work against the grain. Stephen was particularly worried by the notion that there might be class-based legislation. Liberty, Equality, Freedom was well received, and was later described by Ernest Barker as ‘the finest exposition of conservative thought in the latter half of the nineteenth century’.131 However, the work did not achieve the canonical status of Mill’s work, and it ran to no more than two nineteenth-century editions. Stephen landed some effective blows against Mill—notably on the harm principle—but the parameters of debate were moving elsewhere by the mid-1870s.

If Stephen’s work did not set the tone of a wider debate on politics, it does give a vivid insight into the mind of a prominent judge. Fear of democracy, resistance to the development of social rights, and a commitment to the role of an elite set of judges in developing the moral voice of the community were surely characteristic of the late nineteenth-century judiciary, many of whom liked the notion that judges were to articulate the values to guide the community, without being keen on a democratic conception of the community whose values they purported to apply.

4. Theories of Evolution

In the middle of the nineteenth century, scholars in all fields increasingly turned their attention to empirical studies of human development. There was a growing interest in social science and in theories of evolution. The work of Auguste Comte was particularly influential. His Cours de Philosophie Positivedescribed ‘sociology’ (p.103) as the highest of the sciences. He also set out a ‘positivist’ methodology, which held that only empirically verifiable facts could be possible objects of knowledge, and that science produced empirical laws connecting them. ‘Positivism’ became a key word in Victorian science and philosophy, and one whose meaning was wholly distinct from the legal positivism associated with Austin’s theory of law as the posited commands of a sovereign. Comte’s work also contained a theory of evolutionary progress. He argued that the development of the various sciences, and the human mind, always progressed through three stages: the theological, metaphysical, and ‘positive’, or scientific. The third stage—in which empirical laws would replace all theoretical or metaphysical speculation—was the goal towards which the philosopher and scientist aspired. This empirical theory was wholly secular, though in later work Comte sought to introduce a spiritual element through his notion of the Religion of Humanity.132 Comte’s work influenced Mill, when writing his System of Logic, and it was popularized in the 1840s and 1850s by G. H. Lewes.133 Indeed, the very term ‘social science’, which came into increasing use in the 1830s, and which obtained an organized expression in the name of the Social Science Association founded in 1857, may have been adopted by the English from its use by Comte.134

By the 1850s, a number of English writers were seeking to explore the science of society. In 1857, H. T. Buckle published a History of Civilization in England, which sought to do for history what had been done for the natural sciences: to discover whether ‘the actions of men, and therefore of societies, [are] governed by fixed laws, or are … the result either of chance or of superfluous influence’.135 He felt that the regularities of human conduct meant that a scientific history was possible. In the same year, Herbert Spencer began to look to evolution as the key to his system of philosophy.136 His life’s project was to create a Synthetic Philosophy, which would systematize the truths of each specific science. By 1857, he had come to see that the key to this was a general law of evolution. Spencer’s view of evolution owed more to physics than to biology: he ‘aimed at nothing less than a mechanical interpretation of the universe in which every event could be (p.104) explained in terms of the relations of cause and effect between incident forces’.137 Arguing that the first cause of the universe was unknowable, he derived a law of evolution from the physical laws of matter and motion. Evolution entailed growing complexity and concentration. Societies displayed tendencies to aggregate (as in the growth of towns and population) and then to become ever more heterogeneous (with the division of labour). Spencer continued to work on this great project for the rest of his life. His work was often aimed at a popular audience, rather than at the academy. Thanks to this, he acquired a very great influence in the later nineteenth century, even if, by the time of his death in 1903, his work was ‘already being exiled to the lumber-room of redundant Victoriana’.138

Throughout his career, Spencer was concerned with finding a scientific basis for ethics. In developing his view, he drew on a wide range of influences, including utilitarianism, Comtean positivism, and even moral intuitionism.139 In his early work, Social Statics (1851), he argued that instead of seeking happiness directly, the theorist should develop rules of action scientifically, by establishing the conditions leading to happiness.140 In his view, there were certain moral rights which were ‘necessary’ for the attainment of human happiness. Happiness came from the exercise of one’s faculties; and since this required the freedom to exercise them, each person had a right to exercise them freely, a right limited only by a similar right in all other people.141 Much of the rest of the book was devoted to an elucidation of these rights, which were of the purest laissez-faire type. After 1857, he began to rework his theories in light of his turn to evolution. In 1879, he published the Data of Ethics, which ‘became the definitive statement of the evolutionary approach to ethics’.142 In this work, he sought to explain the evolution of the moral consciousness. His approach was influenced by the theories of Jean-Baptiste Lamarck, who had argued that species mutated in response (p.105) to environmental change, and were able to pass on the higher characteristic they had acquired in their lives to their descendants. Spencer’s view of moral intuitions had little in common with either the Coleridgeans on the earlier schools of Shaftesbury or the Scottish school of common sense philosophy, led by Thomas Reid. He argued that

moral intuitions are the results of accumulated experiences of Utility, gradually organized and inherited … I believe that the experiences of utility organized and consolidated through all past generations of the human race, have been producing corresponding nervous modifications, which, by continued transmission and accumulation, have become in us certain faculties of moral intuition—certain emotions corresponding to right and wrong conduct, which have no apparent basis in the individual experiences of utility.143

For Spencer, each individual inherited the characteristics which had been acquired by the experience of his predecessors: the new-born baby was not a blank sheet who needed to learn moral lessons from his own experience of pleasure and pain. His vision of the development of moral ideas was thus distinct both from the version of the intuitionists and the utilitarians.

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