Australian Dictionary of Biography

William Jethro Brown (1868-1930), by unknown photographer

State Library of South Australia, SLSA: B 21984

William Jethro Brown (1868-1930), political thinker, academic, and jurist, was born on 29 March 1868 at Mintaro, South Australia, son of James Brown, farmer, and his wife Sophia Jane, née Torr. James had migrated from Devon in 1847; of humble background, he became a substantial property-owner. Young 'Willie' worked hard on the family farm, but did well at Stanley Grammar School, Watervale. He spent 1882-86 as a pupil-teacher at Moonta Mines State School. Thence he transferred with remarkable ease and success to St John's College, Cambridge, graduating B.A., and LL.B. with first-class honours, in 1890. F. W. Maitland was among his teachers, and became a friend. Brown's complete degrees were M.A. and LL.D. (Cambridge), LL.D. and Litt.D. (Dublin). In 1891 he was called to the Bar at the Middle Temple, London.

In January 1893 Brown was one of three foundation lecturers in the University of Tasmania, teaching law and modern history. In 1896 he was promoted professor, and in 1898 temporarily occupied the chair of law at Sydney. In May 1900 he left Hobart to return to England, and on 14 August married Aimée Marie Loth. Brown was professor of constitutional law at University College London, in 1900-01, living the while at an East End 'settlement'. In 1901-06, he was professor of constitutional and comparative law at the University College of Wales, Aberystwyth, and in 1906-16, professor of law at the University of Adelaide. Then, as a wartime sacrifice, he became president of the Industrial Court of South Australia; new legislation in 1920 added the conjoint presidency of the Board of Industry.

Brown wrote four major books: The New Democracy (1899), The Austinian Theory of Law (1906), The Underlying Principles of Modern Legislation (1912), and The Prevention and Control of Monopolies (1914). His many articles appeared in major English and American journals, although in the 1920s he wrote too for the nascent Australian academic press. As chairman, he prepared the report of the Federal royal commission on the sugar industry (1912). His judgments in the South Australian Industrial Reports were subtle and scholarly.

Brown is one of the few Australians to have proposed a deeply thought political philosophy. Owing much to T. H. Green and other Idealists, he responded also to concepts of pragmatic social engineering. Brown saw the modern state as an organic, indeed psychical, entity whose members ought to join in selfless service and thus find a humanitarian faith to fill the vacuum created by hedonist materialism. Government, guided by society's most enlightened members, should secure welfare and efficiency. 'In the reconstructed doctrine of individual rights', he argued, 'the common good takes the place of consent as the justification for the exercise of authority'.

New Democracy and Prevention and Control of Monopolies suggested how Australian experience might help secure these aims. The former book included a paper in which Brown enthused over Tasmania's experiment with proportional representation, presenting it as an antidote to corruption and apathy in the electorate and mediocrity among politicians. Conversely he criticized the referendum, then popular with many radicals, because it would encourage 'popular despotism' in opposition to skilled and strong leadership from above. The chief interest of New Democracy lies in Brown's advocacy of Australian Federation. Thereby, he argued, the country would find peace, prosperity, and 'an inspiring faith in the splendour of the future …'. Hitherto, Brown believed, Australia had suffered the modern malaise of lack of purpose and honour.

Prevention and Control of Monopolies argued for the outlawing of predatory trade practices and for requiring business to disclose its dealings. In some extreme cases nationalization might be appropriate. Brown's loudest call was for the establishment of expert tribunals to control tariffs, wages, and, most important of all, prices. He cited Australia's experiments with New Protection and repeated much of his sugar commission report. The Interstate Commission, enjoying its brief heyday, appealed to him as a splendid example of the kind of expert tribunal which might secure socio-economic justice.

Brown's major contributions to the philosophy of jurisprudence were published in his Austinian Theory of Law, the bulk of which comprised an edition of the major teachings of the Englishman, John Austin. There was some paradox here, as Austin was the supreme representative of the positivist-utilitarian school which viewed law as essentially and always the will of the ruler, whereas Brown had a much more fluid view of that issue. He interpreted law 'as a process, as an activity, not merely as a body of knowledge or a fixed order of construction'; it must adapt to meet the changing needs and nature of society. Roscoe Pound and Rudolph von Ihering were jurists whom he particularly admired.

For a man of these beliefs the role of industrial arbiter had much appeal, for thereby the law could serve social welfare and harmony. Brown put this case with skill and passion in the Industrial Court, hoping to inspire workers with a sense of social adhesion and purpose. Especially interesting was his espousal (1920) of a scheme of co-operative councils, which might unite employers and employees; the idea had affinities with Britain's Whitley councils and even Mussolini's corporativism.

Brown was a thoughtful and creative educator. From Maitland he had learned that academic history centred on documents, while Harvard and other American schools provided his model for the complementary notion of case-study in law. 'In truth it is relatively unimportant how much a student knows when he leaves his University', said Brown in his inaugural lecture at Aberystwyth. 'It is of incalculable importance that he should have … learnt to give a reason for the faith that is in him, that he should have won his way to freedom of thought'. All this put him in tune with contemporary 'progressive' thought; he traced his attitudes in both education and law to Giambattista Vico. Brown taught by seminar and continuous assessment. He strove to make law a liberal, autonomous study, free from both traditional 'Arts' teaching (his major antagonist in Wales) and narrow professional demands (which confronted him in Adelaide). Brown encouraged other fledgling disciplines. He himself introduced political science (specifically so called) at both Hobart and Aberystwyth, and also urged that a full place be given to economics and commerce. As with jurisprudence, he stressed that these subjects must recognize social change and assist in human welfare.

Similar attitudes shaped Brown's attitude to religion. His mother, whom he revered, was a Methodist fundamentalist. Abandoning formal belief in favour of an ethical pragmatism, he called upon Christians to recognize that theirs was an historical religion, which should ever be ready to shape itself afresh.

Brown had considerable feeling for beauty, both in art and nature—he owned works by Hans Heysen. While, like many of his peers, he argued for eugenic controls and for the glory of family life, yet he upheld feminist ideas. His major piece of imaginative writing, Who Knows? (1923), was a post-Ibsenesque drama of woman's revolt. At least in earlier days Brown achieved notable rapport with students, and always retained personal appeal. 'He was a man who hid beneath an armor of whimsical gaiety, adventure, courage and loyalty', wrote W. Harrison Moore. He had slight build, fine features, and clipped tones.

Poor health and a dismal marriage increasingly darkened Brown's life. Having originally welcomed World War I as a stimulus to social union, he came to see that it fomented hatreds and tensions. Australian federalism, still earlier among his ideals, vitiated his work as industrial arbiter. Neither employers, employees, nor society at large responded to his hopes. Overwhelmed by work, Brown retired in 1927 and died on 27 May 1930. He was buried in West Terrace cemetery, Adelaide, and his wife and son survived him.