ploring the foundations of his epistemology. His discussion of utility was not to be the key to the whole theory, but was rather included to fight off any notion that there could be innate ideas of right and wrong, derived from a moral sense.14 It was part of the project of showing the separation of law and morals to disprove intuitionist ideas of moral reasoning. Austin may have spent time in Bonn and drunk from the fountain of Pandectism, but he had little time for the philosophy of Kant. Like Bentham, Austin stood in the tradition of Locke, seeing all knowledge as derived from experience. But unlike his teacher, he did not ground his theory in direct calculations of pains and pleasures. Instead, he argued that the lessons of experience were complex and took time and leisure to digest. Where Bentham’s utility took him in a radical direction,Austin’s version took him in the conservative direction mapped out in the late eighteenth century byWilliam Paley.15 According to this view, utility was an index to the divine will, which operated by setting rules, governing classes of actions. Discovering which actions tended to promote human happiness and which did not was a complex business, requiring knowledge and leisure. Austin held out some hope that the poor and ignorant might, through education, begin to be taught the leading principles of morality and economics. But he concluded, This was to suggest that the science of ethics and of legislation was an empirical science of morals, which required specialist knowledge. Although Austin felt that judges were subordinate legislators who could develop the law for the sovereign in new cases, he did not spend time in his work in exploring how they would acquire knowledge of the utilitarian principles with which to develop law. He seems to have assumed that the moral or political principles on which the law would develop were to be left to other experts to elaborate.The result was that, re cht swi s s e n scha f t al s j ur i st i sch e dok t r i n 136 14 J.Austin, Lectures on Jurisprudence, or the Philosophy of Positive Law4th ed., 2 vols, (ed. R. Campbell, London, 1873), pp. 148-59. 15 William Paley, The Principles of Moral and Political Philosophy (London, 1785). 16 Austin, Lectures, p. 136. “If ethical science must be gotten by consulting the principle of utility, if it rest upon observation and induction applied to the tendencies of actions, if it be matter of acquired knowledge and not of immediate consciousness, much of it (I admit) will ever be hidden from the multitude, or will ever be taken by the multitude on authority, testimony, or trust.”16
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