Weak health and a fastidious temperament partly account for his silence.After publishing his early lectures he could never be induced to bring out a second edition.He suffered from scholar's paralysis --preference of doing nothing to doing anything short of the ideal standard.He had not strength to satisfy the demands of German professors,and cared nothing for the applause of the British public.His 'estimate of men was low,'says Mrs Austin,'and his solicitude for their approbation was consequently small.'His want of success did not embitter,though it discouraged him;and he was constantly,we are told,'meditating on the sublimest themes that can occupy the mind of man.'He kept the results for his own circle of hearers.Utilitarian zeal for democracy was impossible for him.He had the scholar's contempt for the vulgar,and dreaded political changes which could increase the power of the masses.It is the more remarkable that Austin's Utilitarianism is of the most rigid orthodoxy.Athorough Benthamite training gave absolute immunity to even the germs of transcendental philosophy.He speaks with the profoundest respect of the great German professors,especially of Savigny.He cordially admires their learning and acuteness.But when they deviate into philosophy he denounces their 'jargon'as roundly as Bentham or James Mill.Austin became the typical expounder of Benthamite jurisprudence.His lectures long enjoyed a high reputation:partly,I cannot help guessing,because,good or bad,they had the field to themselves;partly,also,because their dry,logical articulation fits them admirably for examination purposes;and partly,I do not doubt,because they represent some rare qualities of mind.Their fame declined upon the rise of the 'historical school.'Austin's star set as Maine's rose.Yet Austin himself claimed that his was the really historical method.The historical school,he says,(2)is the school which appeals to 'experience,'and holds that a 'body of law cannot be spun out of a few general principles,considered a priori.'Bentham clearly falls under the definition,for Bentham considered the reports of English decisions to be 'an invaluable mine of experience for the legislator.'If this be an adequate criterion,how does Bentham differ from the school which claimed the historical method as its distinctive characteristic?Austin aims at giving a 'philosophy of law.'The phrase at once indicates two correlative lines of inquiry.A 'law'supposes a law-giver --an authority which lays down or enforces the law.We may then inquire what is implied by the existence of this authority,or what is its origin,growth,and constitution?That is a problem of 'social dynamics.'We may,again,take the existence of the state for granted;inquire what are the actual laws;how they can be classified and simplified;and what are the consequent relations between the state and the individual.That is a problem of 'social statics,'and corresponds to the ordinary legal point of view.The conception of 'law'is common to both,though it may be approached from opposite directions,and may require modification so as to bring the results of the two lines of inquiry into harmony.The problems,and therefore the methods of inquiry,must be distinct,but each may be elucidated by the other.
Austin's position is given by his definition of law.It implies what has been called the 'Austinian analysis,'and is considered by his followers to dissolve all manner of sophistries.It is already implied in Hobbes.(3)A law,briefly,is the command of a sovereign enforced by a sanction.The definition gives the obvious meaning for the lawyer.Murder is punishable by death.That is the law of England.To prove that is the law,we need only go to the statute-book.The statute rests upon the absolute authority of the legislature.It assumes the existence,then,of a sovereign;an ultimate authority behind which the lawyer never goes.It is for him infallible.The English lawyer accepts an act of parliament as a man of science accepts a law of nature.If there be any law which has not these marks it is for him no law.Conduct is illegal when the state machinery can be put in force to suppress it.Therefore the sphere of law is precisely marked out by the conception of the sovereign and the sanction.
The definition,then,may be true and relevant for all the lawyer's purposes.But a definition,as J.S.Mill would point out,is not a sufficient foundation for a philosophy.It may provisionally mark out some province for investigation;but we must always be prepared to ask how far the definition corresponds to an important difference.Now Austin's definition has important implications.It excludes as well as includes.Having defined a law,he argues that many other things which pass by that name are only 'metaphorically'or 'analogically'laws;and this raises the question,whether the fact that they do not conform to his definition corresponds to a vital difference in their real nature?Is he simply saying,'I do not call them laws,'or really pointing out an essential and relevant difference of 'kind'?An important point is suggested by one exclusion.We are not to confound the so-called laws proper with the 'laws of nature'of scientific phraseology.Such a law of nature is simply a statement of a general fact.The astronomer asserts that the motion of bodies may be described by a certain formula.In saying so,he does not assert,even if he believes the inference to be legitimate,that their motion is caused by a divine command or enforced by a sanction.The actual uniformity is all that concerns him.The uniformity produced by law proper led,as Austin holds,to a confusion between different conceptions.
