Law philosophy in Mansfield Park
by Odile Sjostrand
Modern Research, seeking Jane Austen's sources of inspiration for Mansfield Park should consider the relationship between eighteenth-century philosophy, religions and law philosophy in England. To keep in mind her position as a woman writer is the prerequisite key to Mansfield Park. To explore the world of law in eighteenth-century England could be the additional key to "her most profound novel" (22). The politicians of her time had that key and good reason to suspect her of having particular intentions, failing to realize the extent of them. She became gradually anxious to escape their too keen awareness. The most famous of them was the Prince Regent, whom she took great pains to mislead about the meaning of the novel. After the trial of her Aunt Leigh-Perrot, Austen's interest in law increased. This contradicts her nephew J. E. Austen-Leigh's assertion that she never approached the world of law, about which she knew nothing (2). His assertion is absurd since we know that one of her brothers was involved in several lawsuits to keep or recover his property and other brothers, as naval officers of the higher ranks, were acting as magistrates on ships. The French Revolution, with its debates about government, is another motivation (19). The world of law philosophy can be detected in Mansfield Park in its satire, which tone fits Moler's description of Austen's art of allusion (18). It must be stressed that the philosophers of Austen's time were initially lawyers. One must count Austen among them in this context. All recent research proves that she had access to that way of thinking. Austen's language is the result of her education in a religious family and is at the very base of the judicial language. One can perceive in her texts the desire for equilibrium, for relativity, and the harmony of thought. To bring this kind of language into the novel is a parody bordering on caricature of others' novels (cf. Richardson's Grandison) (Moler 18). Laughter alone was not her goal. She created deeply feminist works for the benefit of mankind, never losing the idea of a simple novel. 
One is confronted with a feminine Voltaire, having the wit of clever people, pointing out faults just for fun (many a time did this cost Voltaire his liberty). Austen accepted mankind without accepting the values that can destroy dignity, harmony, humanity, intelligence, reason, and judgement. A confidence in mankind without much hope of humanity is preferable to theories, especially those which exclude individuals in their rationalizations. This wit is enchanting for a woman reader and deliciously mysterious for a male reader. The form of Austen's novel sustains philosophical thinking and is intimately associated with it. She followed the philosophical trends of the eighteenth century, but if her characters took on life, it is also because she is already in the nineteenth century, between Romanticism and Realism. Her position give great coherence to her achievement, and avoids the extremes of her followers. This synthesis give to her work the impression of universality.
Tanner says of Austen's work: "Jane Austen deftly set before us a basic truth that to be fully human, then to the energy of performance must be added the wisdom of reflection." That is what her characters are about: discussion, reorganizing, interpreting feelings. The novel rewards your own self. Austen makes you feel in the right and fortifies your very own defences; she helps you to construct your own judgement. The novel always ends happily, but she could not care less. It is often swept away briskly as a bothersome business. All possibilities have been studied; the apparently bad are punished, the good rewarded. But we never really know her opinion. The reader is satisfied by one novel more than another depending on his or her motivations. That is the first level: the psychological and moral satisfaction. The second level, intellectually more satisfying, is a structure based on reflection and discussion about government, social setting, or the condition of women. That Austen can say, "[t]wo or three families in a little village, that is what I like best" convinces us of the mechanical character of her novel writing. One translates the statement: "Those families are interchangeable as a function of what I want to discuss. My characters follow preconceived logic and consequences." She is aware of changes at work in human beings in Pride and Prejudice. Darcy: "The country can in general supply but few subjects for such a study [of characters]. In a country neighbourhood you mive in a very confined and unvarying society." Elizabeth: "But people themselves alter so much, that there is always something new to be observed in them forever." The love story is perfect for discussing feelings, for judging, for comparing; marriage is a subject of "never failing interest": women were considered as economic objects and legally irresponsible. The life of English gentlewomen was mainly decided by men. The legal system contributed to strengthen men's power over women's property. Austen insists heavily on that subject. She was aware of a great deal about the legal system since she was a victim of it. It is a crucial issue for research.
The only way to be recognized in society and to earn a living was to be married, if you were a woman (cf. The Watsons). This mentality survived even more cruelly for gentlewomen in the nineteenth century. To work became totally improper. The structure of society could create ferocious situations (read Trollope or Thackeray to be convinced of women's predicament). Austen foresees this in Mansfield Park.
The philosophy of law as the science of how to judge, or value, is a natural field of reflection for Austen as it is at the crossroads of philosophy, law, religion, and morals. English law did not distinguish clearly between the different levels. It is a pragmatic philosophy of action. For historical reasons, it was essentially based on ancient Greek thought, common to two distinct judicial worlds and giving them a unity: common law and Roman law. Greek thought is the law of reason. All English lawyers had first studied Greek and Latin as part of the common education of any gentleman. The judges, even those of the higher courts, had not necessarily followed courses at a law school until the end of the nineteenth century. H. Jeager (15): "For an English lawyer of the period, the law consisted in procedural rules that, if followed faithfully, would presumably give the judges a solution to the question submitted to them. That also meant, "no precedent, no case." The first collection of judicial precedents, called the Year Books (1290-1536) was essentially focused on procedures.
The English judge wanted to come to a solution rather than to invoke principles. H. Jeager: "What it is all about is the common concern
which animated both ancient Greek philosophers and the judges of ancient precedence. This concern is the art of the judging
, thinking principle understood as the judging principle." The ancient Greeks consistently found in the act of judging a very
decisive act of the human mind in spite of the possibilities for error that exist in any judgement (see Sophocle's
tragedies, based on the structure of a trial and judgement). 
Plato says:
"What are the qualities required to judge rightfully, correctly? Is it not experience, intelligence,
and reasoning?" For him, reasoning is the best instrument of a philosopher. This art of judging in eighteenth-century England was not the prerogative of judges. Any gentleman or landowner who had the trust of his fellow creatures was included in the process of justice; as also were clergymen, especially for litigation related to the family or marriage. These men judged in harmony with custom and in accordance with their reason, "in equity." For questions related to private or penal affairs they had a legal right and duty to act (14) the 1361 Act. Austen uses the word "equity" with its legal meaning in Mansfield Park Chapter V: "Miss Bertram's engagement made him [Henry Crawford] in equity the property of Julia, of which Julia was fully aware; and before he had been at Mansfield a week, she was quite ready to be fallen in love with." There are further instances when Austen uses legal language in her novels. Johnson, a popular philosopher of the period, is considered Austen's moral and philosophical source. His interest in law was obvious and well known says Roscoe (20). Johnson wished for a better adjustment of punishment to crime, more ration and "in equity." In the second part of Mansfield Park, the increasing use of the words pains and pleasures gives a clear reference to Johnson. However, those words for the basis of Bentham's philosophy (4). Was Austen suggesting that Bentham's idea of Pains and Pleasures was not new?
"Johnson wanted the principles of Christian religion to be connected to the administration of justice" (20). This denotes the close relationship between literature and law. It also shows the religious foundation of English thinking until the middle of the nineteenth century. This was familiar ground for Austen. She used it to develop the logic of her novels. Lord Mansfield (1705-1793), the greatest English judge of the eighteenth century, was born a Scot, faithful to the Stuart cause. He had a natural affinity for France. He took an active part in political life for forty years and defended the government in the House of Commons. As a judge (1756-1788), he had a deep influence upon English law. He studied Scottish law, seeking a principle which could be applied to individual cases instead of the English method, that compensates the silence of texts, by artificial procedures using the technique of analogy. Lord Mansfield introduced the idea of legal action based on reason, and gave a large place to equity in common law courts.
Lord Mansfield's precepts were equity and fundamental principles which imposed themselves on the conscience as being right beyond any kind of legislation. He defined "the right" as being the capacity of man to judge. This attitude led to logical thought with inevitable legal consequences. Lawsuits were more rapidly treated; Burke's opinion on Mansfield: "He wanted to perfect the law by coordinating its liberality with justice and the problems of today's world. He didn't want to contain infinitely diversified situations of the human being and the rules of natural justice within an artificial framework but rather to five full force to principles." This pragmatic method was not appreciated by lawyers and judges who benefitted from the system of long and costly suits. In Mansfield's time, the polemic was raging.
To remedy abuse, other law philosophers were elaborating simple, abstract laws, covering all situations. Lord Mansfield saw the interest in such a project, but also its limits. Austen may have been aware of his thought: Mansfield became famous on the occasion of his famous judgement in the Somersett case of 1771. His decision recognized the identity of coloured people, the protection of their rights on English soil, and their liberty in the name of human rights. He claimed the English law did not recognize slavery on English territory. Mansfield was harshly criticized in the newspapers. He was a jurist and concerning slavery his decisions were audacious. The economic consequences of the abolition of slavery implied in his decisions were overwhelming – 15,000 slaves were freed. This greatly annoyed people using slaves in the colonies (as Sir Thomas does in Antigua in Mansfield Park). Armstrong (1) points out interesting correlations between slavery and the feminine condition in Austen's novels. Mansfield's legal protection of Roman Catholics and Dissenters resulted in his house and library being set on fire during the Gordon Riots in 1780. He is famous for his decisions concerning commercial and maritime law, and this is worth noticing in relation to Austen's sailor brothers; Mansfield's decisions were based on a blend of good faith, equity, and Roman law. He might well have been discussed at home by Austen's father and brothers.
Jeremy Bentham (1748-1832) theorized, in a collection of writings, the ideas of men like Mansfield and found fundamental principles upon which could be based simple, abstract, efficient laws that would be deeply just and would lead to logically juridical consequences; those laws would be compulsory, learned, and used in everyday life. Here we see the differences between ideas like judicial and juridical: the word juridical implying a structure of society rather than a judicial codification. This idea was revolutionary in England.
This thought is illustrated by the French juridical system. Bentham (4) tends to see himself as the defender of the people for their good: "the principle of the greatest happiness for the greatest number." It is a moral theory on which all of Bentham's concepts are founded: "Nature has placed mankind under the governance of two sovereign masters: Pain and Pleasure. It is for them to point out what we ought to do as well as to determine what we shall do on the one hand, the standard of right and wrong on the other, the chain of causes and effects are fastened to their throne."
The principle of utility is another: "In morals, as in legislation, the principle of utility is that which holds up to view as the only sources and tests of right and wrong, human suffering and enjoyment, pain and pleasure. It is by experience, and that alone, that the tendency of human conduct in all its modifications, to give birth to pain and pleasure is brought to view. It is by reference to experience, and to that standard alone, that the tendency of any such modifications to produce more pleasure than pain, and consequently to be right, or more pain than pleaure, and consequently to be wrong – is made known and demonstrated." Bentham pointed out the shortcomings of common law and praised codification. He is categorized among the early utilitarians. Bentham's writings had very little echo in England. Those who like Mansfield best, thought Bentham's ideas rigid, remote from English thinking. He, however, inspired the French revolutionaries' juridical discussions about institutions (the word juridical should be accepted with a wider meaning than judicial and include philosophical discussions about laws). Bentham is at the very foundation of the great revolutionary constitutional laws of France, some of which are still in force. Dumont (9) performed an admirable task in reorganizing Bentham's very messy writings. The French civil code of 1804 was possibly influenced by Bentham's philosophy. The discussion among law philosophers about common law versus codification was sharp. On the whole, the reasons were political: The French Revolution was on everybody's mind; the war with France had economic and political consequences in English society. Ideas such as Bentham's were disturbing.
The paradox was the terror of being contaminated by the French Revolution initiated by the admiration of people such as Voltaire (Voltaire's philosophical letters) for the English system, considered as astonishingly democratic.
Austen was aware of the polemic; more private facts tend to prove her personal acquaintance with Bentham's thinking. She had personal friends such as the Lefroy family. We know of one Tom Lefroy, who became no less than Chief Justice of Ireland. Such a friend could not fail to be of consequence in Austen's thinking; he might have acquainted her with Bentham's ideas, especially since Bentham was a native of Hampshire, had connections with the Craven family (one of Bentham's letters to his brother gives some clues about the latter), and with the people taking care of Austen's infirm brother George. He became a parishioner of Austen's niece Anna's husband. From 1810, Bentham had a country house at Hendon and knew the Allen family who ran the girl's school there. The Allens were also friendly with the Austen family. All of these connections make us certain they at least knew each other indirectly and maybe personally.
When planning Mansfield Park, Austen might have had in mind a philosophical novel in Voltaire's style for in this novel she did not compare two values, two feelings, but two systems of thought. We have a system based on abstract law, founded on a theory with its effects and judicial consequences and a system based on human judgement, founded on the principle of equity and human reason. How can this be detected in Mansfield Park? Two young women, Mary Crawford and Fanny Price, are in love with Edmund Bertram, the second son of a genteel family at Mansfield Park. They can both be considered as victims. They are fighting for Edmund's love each with the means most appropriate to serve her cause. The fight is never an open one; even its reality is doubtful (the same situation is less well mastered in Sense and Sensibility, between Elinor and Miss Steele). The fight is subconscious, lurking below the surface. Who is going to win and by which method? That is how one can sum up the novel. Austen, never forgetting her reader, puts the elements into place and they follow their logical course and arrive naturally at a solution. This solution may not obtain the reader's approval who may, in "whole equity," choose some other solution.
With Austen's help, one is favorably impressed by Mary. An orphan, she is left in the company of her degenerate uncle from whom her aunt did not know how to protect her. He makes her a witness to his dissolute life. Her brother, good to her, follows in his uncle's footsteps. Mary is confirmed as lawless in Mansfield Park by Austen when she speaks of "Mary's feminine lawlessness." Mary has no references except social ones. Worldly considerations distort her emotional instincts. She is lawless, but she finds peace of mind in the orderly conduct of her sister and friends at Mansfield Park. There she develops her true qualities: a vivacious mind, sweetness, gaiety, activity. These are indisputably positive qualities. She is pretty and rich, but has no independence. The Misses Bertram find her a pleasant girl. She is no rival for them. Mary, willing to please, without strategy and hope for reward, shows Fanny real kindness in spite of the competition "behind the scenes." We are constantly informed of Fanny's intimate thoughts. How else would we notice her? It would, indeed, be interesting to count the number of times Fanny speaks. Paradoxically, she is to be the prominent heroine (Austen's niece Anna would have sid "which is the heroine?").
A poor relation in the Mansfield Park family, Fanny is subjected to the tyranny of her unbearable Aunt Norris who forces on her the most rigid principles. Aunt Norris humiliates Fanny constantly. She reminds her of her debt of gratefulness to the family. Fanny appears as a silent, elegant slave. She is repressed, sickly, and passive, developing a secret personality (so delightful in a gentlewoman in the nineteenth century). These are indeed very negative qualities if one compares her to the healthy Elizabeth Bennet. Fanny is described as intelligent, not very accomplished, and possessing good judgement. She is said to have a warm and impassioned heart. She is governed by solid moral principles and her reasoning follows the logic implicit in them. She reflects her uncle's morality and conforms to it (cf. the parallel between Mary's uncle and Fanny's uncle). Her uncle's laws are well established and give security. She uses them naively, unlike the rest of the family who allow themselves to break the law, feeling the restraint too powerful but not fearing for their survival. Fanny has to sick to that high moral standard for survival; the pressure is too much for her and she develops sickly complaints, sickness to which she does not even have a right and which she might not have developed in an affectionate environment. Edmund becomes a clergyman. He too faithfully reflects his father's strict morality. While his sisters try to escape and only maintain a formal expression of it, Edmund, worldly-wise and consequently better acquainted with the reality of the expression of morality, is, like Fanny, obliged to stick to high moral standards for survival. He is accomplished and intelligent, attentive to others' feelings.
In the novel we get the impression that there are two heroines. And the novel strongly suggests that the reader should have an opinion, should choose between the two girls and be a sort of jury. The reader has to reason upon the possible solutions.
In the novel, Fanny gets her reward. She proves Mary's villainy.
She knows the law and refers to it constantly. This law is well-known to Edmund and he is taken in by its logic. For Fanny it is enough to let that logic take its course to prove her rival's lack of morals and therefore her unworthiness. One can see here morality as a defence, rather than as religious conduct. In our society, this is the role of law. Faced with Fanny, Mary has no chance; she is not a conscious villain, but rather a product of her world. While Mary is living in a difficult world where she has little control over he own destiny, Fanny is not able to participate in life processes and renounces life itself (which is not the case with Edmund). She thinks, judges in silence, giving a few hints. Her answers to life's demands are often negative. To convince the reader, Fanny is obliged to put Mary down heavily. Each of Mary's acts is analyzed and compared with her own moral standards. Health, charm, sweetness, gaiety, music, innocent lies, all is checked and rejected. Fanny's logic does not fail her. One day or another, Mary will commit the mistake that is going to ruin her in Edmund's esteem; his eyes will be opened. The irony of the situation makes the reader slightly conscious of Mary's state as a victim. It is her brother, with the help of Fanny, who triggers off the mechanism that slowly makes her sink in Edmund's regard. Austen suggests other possible endings to the story.
Edmund marries Mary: Austen could have fixed it that way. Would it not have been pleasing to see Mary bright, happy, tempered by Edmund with his reassuring laws? Couldn't Edmund benefit from Mary's enthusiastic personality? (One can see this sort of solution in Pride and Prejudice; Mr. Darcy is charmed by Elizabeth's liveliness.)
Fanny married Henry, Mary's brother: Austen suggests that this could have been the case after Mary and Edmund's marriage. Fanny ("the little shade needed") could have been awakened to life. She could have tempered Henry and given him the stability he needed. The novel ends on a note that favours stability, stagnation, a world directed by strict, abstract laws with logical consequences.
When one reads Pride and Prejudice, one is struck by the desire for a society that would change and provide wider psychological and social space.
In Mansfield Park this solution is not adopted. The reader may perceive Fanny as a spider weaving her web. Those who like Fanny are happy when she married Edmund. They do, however, regret Henry Crawford whom she might have profitably married. Austen leaves this discussion in the reader's hands. She suggests "in equity" that Law tempered by human judgement could have led to another solution.
The novels' message could be that an abstract law system, such as Bentham praised, found in the French legal system, favours solutions that tend to stiffen society but are nevertheless efficient, as proved by Fanny. She is happy, rewarded; she is mistress of her life by following strong principles; this is the one way to win. Paradoxically, this system does not benefit "the greatest number" as Bentham hoped to demonstrate with the application of his theories. For, many in this story are made very unhappy in the process.
But laws based upon human judgement and equity, itself founded upon natural principles of justice, would lead to more dynamic solutions and would permit an evolution in people's mand; laws tempered by equity. One can see how such a conclusion might have been considered subversive in that era's legal polemic.
During the French Revolution, it is the people (the proles) who triggered off the ideological process. They used law to take power. Armstrong remarks the importance of servants in Mansfield Park. They are almost invisible, mute, but knowing the law, they could use it against their masters who do not respect the rules themselves and use law as a plaything. The feeling of injustice could inspire revenge, using those very weapons which have been blunted by their masters. The English gentry understood the danger quickly enough and usurped this possibility of revenge, denying themselves in the process the benefits of the eighteenth-century tradition of fear of a revolution (19).
This eighteenth-century English tradition was more liberal, gayer and in harmony with a humanism such as Lord Mansfield's. The gentry did this to protect itself from a dangerous class rising after the Napoleonic wars. Morality was safe; gentlewomen started to take care of the poor and became protectors of morals at different levels. Victorian society became progressively more suffocating for women.
Knowing Austen's work, one cannot believe that she would totally agree with a "harmonious stagnation." Her Fanny is no heiress of Mansfield Park. One wonders if her sister Susan would not answer the purpose better (See [5] – the way she collected the remarks that her family made after reading Mansfield Park. She was not offended as would be a person who believed in his or her theory; on the contrary, she was amused about what her friends though of her M.P.). In Mansfield Park she might have been willing to tease somebody like Bentham with no other purpose in mind (the mand was simply worth teasing, just as Voltaire would tease Rousseau). Austen introduced structures that have a juridical and judicial aspect, both. She was on the way to developing a theory on the form of the novel: take three of four families in a little village, introduce a problem that deals with judgement and reason, blend. Austen to her niece Anna: "make full use of them [these families] while they are so favourably arranged."
Notes and Glossary:
Justices of the Peace Act, year 1361: "Who shall be justices of the peace . . . . That in every county of England shall be assigned for the keeping of the peace, one Lord, and with him three or four of the most worthy of the county, with some learned in the law, and they shall have power to restrain the offenders, . . . and chastise them according to their trespass or offence; . . . according to the law and customs of the realm.
Common law: Origin – the Norman Conquest (1066) that contributed to unify the local customs into one system of law common to all men and for that reason termed "common law." A writ is a sealed document from the king's court which gives a right to a plaintiff. The writs were registered as a sort of precedent that could be enforceable in the king's courts. The year books (the registered lawsuits' judgements over the years that are regarded as precedents) show concern with procedural points. From the fourteenth century onwards, common law became bound to these formalities and was therefore rigid, inflexible. If a plaintiff could find a precedent to his suit and if he could also master the complexities of the ensuing plea (the civil procedures in common law are of great importance: as a matter of fact, a common law right only exists if there is a procedure for enforcing it. Substantive law is inextricably bound up with procedure), he had the right to redress, independently of his conduct or character.
Equity: Equity is not the law, but a moral virtue, which qualifies, moderates, and reforms the rigour and edge of the law, and is a universal truth. It does also assist the law where it is defective (which is the life of the law) and defends the law from crafy invasions, whereby such as have undoubted right are made remediless. It is equity's function to protect the common law from contrivances against the justice of the law. Equity does not destroy the law or create it; it assists it. Equity provides alternative solutions to legal problems. In England, equity is not synonymous with natural justice but partly based on the concept of justice to correct unfair treatment under common law.
Statute law: Statute law is the work of Parliament and is voted upon by the M Ps. Statute laws are rather few but are increasing in number since the nineteenth century. They take the form of assizes, constitutions, provisions and charters. Statute law must prevail over equity as well as over common law.
1. Isobel Armstrong: 1988, "Mansfield Park, a critique."
2. J. E. Austen-Leigh: 1870, A Memoir of Jane Austen.
3. Henry Austen: Introduction to Persuasion, 1818.
4. J. Bentham: 1968, The Collected Works (London/Oxford).
5. R. W. Chapman: The Minor Works of Jane Austen (Oxford).
—: 1969, Jane Austen's Letters (Oxford).
6. J. R. Coates: 1969, Persuasion (Basil Blackwell).
7. R. David: 1969, revue philosophie du droit.
8. John Dinwiddy: Bentham: Past Masters, ed. Keith Thomas.
9. Dumont: Traduction "principes de legislation."
10. C. Fifoot: 1936, Lord Mansfield
11. E. Halevy: 1901, Formation du radicalisme philosophique (Paris).
12. D. W. Harding: Introduction to Persuasion, (Penguin).
13. Edmund Heward: 1979, Lord Mansfield.
14. D. Howarth and S. Wilson: Blackstone's Statutes on English Legal System (Blackstone Press).
15. H. Jeager: 1970, Revue philosophie du droit.
16. Elizabeth Jenkins: 1964, Jane Austen.
17. Maggie Lane: 1984, Jane Austen's Family through Five Generations (London/Hale).
18. Kenneth Moler: 1968, Jane Austen's Art of Allusion (London/U of Nebraska P).
19. Warren Robert: 1979, Jane Austen and the French Revolution (MacMillan).
20. Roscoe: 1930, Dr. Johnson and the Administration of Justice.
21. Myra Stokes: 1991, The Language of Jane Austen.
22. Tony Tanner: 1972, Introduction to Pride and Prejudice.
—. 1986, Jane Austen.
23. R. Walker: 1985, The English Legal System (London/Butterworths).
24. J. Walvin: 1992, Black Ivory, a History of British Slavery.