enthusiasm as his view of criminal law, theTraité did contain much analytical discussion of legal concepts, which was a useful resource for lawyers before the publication of Austin’s Lectures on Jurisprudence in1863. After Bentham’s death, English jurists retreated ever further from philosophy in general, and utilitarianism in particular; and focused ever more attention on analytical jurisprudence. Perhaps because most of his important work on the nature of laws remained unpublished in his life,12 it was not Bentham but Austin who was to be known as the father of English jurisprudence. Following his master, who had divided ‘expository’ from‘censorial’ jurisprudence,Austin felt that the province of ‘jurisprudence’ - by which he meant the subject matter of existing positive law - was separate from that of morals or legislation.Austin did argue that there should be a proper study of the principles of legislation, and planned to write a treatise on ethics. However, he never completed the task. By writing only on what he defined as jurisprudence and by indicating (at least implicitly) that only this was a matter for the professional lawyer,Austin invited lawyers to ignore broader questions of philosophy.Austin’s project was to help the jurist identify what was valid law, and to classify and arrange it. Lawyers learned from Austin that law was the command of a sovereign, directly through his legislation or indirectly through his judges, which was enforced by his sanction. Any other kind of rule - whether moral or customary - was not really proper law at all. It is true that three of the six lectures which made up the Province of Jurisprudence Determined, which he published separately from the general course in 1832, were devoted to a discussion of utility. However, later jurists were puzzled by their inclusion. Sir Henry Maine famously commented that Austin’s theory was compatible with any moral theory.13 As he saw it, under the Austinian theory, which separated law and morals, whatever had been determined to be law was, as a matter of political fact, to be regarded as binding law which would be enforced. It did not matter what moral theory informed the lawmaker. In fact, the principle of utility had a very different role in Austin’s theory from that it had in Bentham’s. Unlike Bentham,Austin spent no time in exm i cha e l lob ban 135 12 Especially Of the Limits of the Penal Branch of Jurisprudence, ed. P. Schofield (Oxford, 2010); a new edition of the work edited by H.L.A. Hart in1970 as Of Laws in General. 13 Sir Henry Sumner Maine, Lectures on the Early History of Institutions (London, 1875), 369-70.
RkJQdWJsaXNoZXIy MjYyNDk=