Hence they have always a difficulty of conceiving of growth or 'evolution,'in which variation is supposed to be compatible with the existence of law,or to combine the two aspects of change and uniformity.That always appears to them to be 'mystical.'Though they deny 'freewill,'they give the widest possible range to the sphere of voluntary action.'Making'is radically distinguished from 'growing,'instead of being simply growth directed by conscious foresight.There is nothing really more 'mystical,'though there is something much more complex,in the growth of a society than in the growth of a natural species.But as it supposes a change due to something in the constitution of the man himself,not to merely 'external circumstances,'it has to be rejected as much as possible.Hence we get our omnipotent sovereign creating laws and customs and to be taken as an ultimate fact.
I need not point out at length the relation of these views to Utilitarianism in general,and to the belief in the indefinite modifiability of human nature and the transcendent importance of political machinery.It is enough to note that Austin's position involves one assumption remarkable in a Utilitarian.The empiricism of the Utilitarians is interpreted to mean that everything must be explained by circumstances,and conduct therefore by 'external'sanctions.Austin feels that,after all,some bond must be required to hold men together.The legislative sanctions cannot be quite ultimate.In fact,we want 'morality';and he therefore includes the 'laws of God'among the laws which are really,not metaphorically,laws.He thus accepts the Paley view,though with a certain reserve.Utility,is the sole criterion or 'index,'as he calls it,to the moral law.Still,the law requires a sanction.The sanction is left in judicious vagueness;but we are told that God must be benevolent,and must therefore be held to approve the conduct which promotes the happiness of his creatures.This,it would seem,is essential to Austin's position.(11)Whether he was practising some 'economy,'and what his fellow Utilitarians would have thought of it,and how precisely he would have justified his position logically,are questions which I cannot discuss.
The application of Austin's principles to the purely legal sphere lies beyond my purpose.His aim is to analyse the primary conceptions of jurisprudence in accordance with his principles,and to obtain a rational classification of law in general.
Whether the result was satisfactory,or how far satisfactory,Icannot inquire.The lectures were reviewed in the Edinburgh both by J.F.Stephen(12)and by J.S.Mill.(13)Both of them speak warmly of the merits of Sir Henry Maine,then beginning to be famous,and both regard the two methods as correlative rather than antagonistic.That they ought to be correlative is clear.Asound theory of origins and growth should be perfectly compatible with a sound theory of the actual order.But whether the two systems actually present that harmony is another question.
The political application of Austin's principles might be illustrated from the writings of his friend and disciple,Sir George Cornewall Lewis (1806-1863).(14)Strong sense,unflagging industry,and the highest integrity won for Lewis high authority in parliament.A boundless thirst for knowledge,supported by a remarkable,memory,enabled him to discuss many topics of historical criticism.He was intimate with Grote,who accepted his suggestions upon Greek history respectfully.and his intellect was of the true Utilitarian type.His writings are as dry as the most thoroughgoing Utilitarian could desire.He will not give his readers credit for understanding the simplest argument till it is set down at full length in plain black and white.He was sceptical,and practical experience had impressed him,even to excess,with the worthlessness of human testimony.
In politics scepticism naturally becomes empiricism;and as a thoroughgoing empiricist he rejects altogether James Mill's absolute methods.He is as convinced as Macaulay that political theories must be based upon observation,and is entirely free from the error of supposing that a constitution can be devised without reference to time,place,and circumstance.Yet he could write a dialogue upon the best form of government,which seems to imply that some real meaning can be given to the problem without reference to the stage of social development,that is,to the one condition which makes the problem intelligible.
