John Austin's pseudo-utilitarianism

John Austin (1790–1859) was an influential British legal philosopher known for his legal positivism and his book The Province of Jurisprudence Determined. His legal theory has been described as utilitarian, but it might better be described as a hybrid of deontology and utilitarianism.

Austin described law as an extension of power. He described two types of laws: "Laws set by God to his human creatures, and laws set by men to men".

He perceived a duty that compelled subjects to comply with the laws set by their superiors such that commands and duties were correlative terms (p. 7). The system is enforced by the one with power who will ``inflict an evil in case his desire be disregarded'' (p. 7). The link between law and power was made explicit: "superiority signifies might: the power of affecting others with evil or pain'' (p. 19). God is the superior of man in this regard.

The chain of reasoning that leads to some utilitarian theory begins with Austin's theology. He believed that some of God's laws are revealed and some are not. The unrevealed ones are sometimes called "the law of nature" or "natural law or "the law manifested to man by the light of nature or reason (p. 32). Revealed laws are spoken by God or his servants (p. 32). Furthermore, God "has wisely endowed us with feelings, which warn us at every step; and pursue us, with their importunate reproaches, when we wander from the path of our duties" (p. 34). His belief in absolute obedience to divine law is clear: "we must infer that he forbids such acts, and forbids them {without exception (p 40).

Given Austin's belief in divine law and the obligation that subjects have to obey the laws of their superiors, Austin applies utilitarian theory only to the portion of acts that are not covered by the revealed will of God "The whole of our conduct should be guided by the principle of utility, in so far as the conduct to be pursued has not been determined by Revelation. For, to conform to the principle or maxim with which a law coincides, is equivalent to obeying the law" (p. 42). This diverges sharply from Bentham's utilitarianism that argues that the principle of utility should be applied to all acts.