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Was there a nineteenthcentury ‘english school ofjurisprudence’?Michael Lobban aa Lecturer in the Law department , DurhamUniversityPublished online: 30 Jul 2007.

To cite this article: Michael Lobban (1995) Was there a nineteenth century‘english school of jurisprudence’?, The Journal of Legal History, 16:1, 34-62, DOI:10.1080/01440369508531116

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Was there a Nineteenth Century'English School of Jurisprudence'?

MICHAEL LOBBAN

It is generally agreed that there was, in the nineteenth century, a distinctly'English' school of jurisprudence, which rejected the metaphysicalapproaches followed on the continent of Europe, in favour of a command-based positivism as articulated particularly by Jeremy Bentham's disciple,John Austin.1 English jurisprudence was characterised by a number ofdistinct features: first, by the definition that nothing was law which entailedno command or sanction imposed by a superior sovereign; second by thestrict separation of law and morals; and third by the influence of utility as apractical guide to legislator and judge. These features made it clearlydifferent in particular from the German tradition, which saw law as suigeneris, as supplementing morality and making it possible, and whichlooked to a community's sense of right for the standard.2

This distinct shape of jurisprudence has been seen to have been reflectedin the way the English approached their law. In general, the change in theEnglish legal mind away from natural law and in favour of positivism hasbeen seen to provide a context for the rise of a hard-nosed and formalisticapproach to law. David Sugarman has written of the 'vulgar Austinianism'which dominated the English legal mind of the late nineteenth century.3

Atiyah and Summers have argued that the Austinian influence resulted inthe 'eliminating [of] substantive moral notions ... from the law' and theseparation of law from other 'non-legal' or 'extra-legal' factors.'4 The newhard-hearted approach is said to have had concrete effects, seen perhapsmost clearly in the rise of an ideology of freedom of contract which rejectedmoral notions of fairness.

The model of the 'English school' is a powerful one: and from the mid-nineteenth century, jurists began to define their positions relative to this'school'.5 Nevertheless, it is a difficult school to pin down. To begin with,on closer examination, its substantive influence appears more questionable.After all, in the later nineteenth century, moral judgments did constantlyenter legal reasoning,* codification was sternly resisted both by judges andby the legislature, and the apparent hegemony of utilitarian thought came

Michael Lobban, Durham University

Legal History, Vol.16, No.l (1995), pp.34-62PUBLISHED BY FRANK CASS, LONDON

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under constant challenge. Judges did not follow simply what 'vulgarAustinian' theory dictated. Rather, they often responded much more closelyto the expectations and needs of the community they served, and looked tofind principles as much as rules.

Equally important, it is difficult to find jurists who accepted the 'crude'version of Austinianism. Of course, Austin's formal theory gained universalacceptance,7 becoming the compulsory diet for law students, the best ofwhom 'usually knew that part of Austin which was set in their year almostas well as they knew the Lord's Prayer'.8 Yet this aspect of Austin's thoughtwas clearly not English, but Germanic, in style: indeed, one might go so faras to suggest that if most students gained access to jurisprudence via Austinin the late nineteenth century, it was because the German texts were toodifficult to handle.9 If English jurists liked Austin for his clear concepts,they often liked the pandectists better.10 What even his closest followersdisliked about Austin were the substantive implications of his discussions ofsovereignty and of the division of law and morals. As we shall see, it wasnot merely Maine and his 'historical school' who attacked this aspect ofAustin's thought. A generation of jurists before the publication of AncientLaw sought to challenge the view that all law was mere positive commandby reiterating classical natural law arguments, while a later generationlooked to the 'new' natural law lying in the community. Yet to some degree(as we shall see) the 'crude' version they were attacking was a straw man,for Austin's himself had a much more subtle vision of the sources ofpositive law than was - and is - sometimes realised. This vision saw law asderiving much more from the community's needs and expectations thanfrom legislative fiat.

It will be argued in this piece that the Germanic influence was to befound not merely in the formal aspects of English legal thought, but that italso haunted the debates about the sources of law. This is not to suggest thatthe English embraced the metaphysical methods of continental thinkers, orthat they argued with the sophistication of their German counterparts.Jurisprudence in England was a distinctly minority pursuit, engaged in oftenby little known law teachers, whose impact on the profession was minimal.However, it is to suggest that the direction in which their formaljurisprudence took them was one which took them away from the crudepositivism usually associated with nineteenth century legal thought - andaway from a Benthamic view of a legislating sovereign" - and towards thekind of 'new' natural law which had emerged in early nineteenth centuryGermany. Such an argument, moreover, may have more than merelyjurisprudential importance: if the 'English school', as we have conceived it,did not exist, there may be important implications for the study ofnineteenth century law, insofar as our understanding and interpretation of

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36 LEGAL HISTORY

nineteenth century legal developments have been informed by the notion ofan 'English School'.

In what follows, we will first seek to explore the nature of Austin'sjurisprudence, by putting it into the Germanic context. It will be argued thatthe kind of analytical exercise engaged in by the Germans, and adopted byAustin, implied the existence of 'natural' concepts. It will be seen thatAustin was very influenced by Gustav Hugo's methodology of finding anatural law in positive law. We will see that Austin's analyticaljurisprudence did not foresee an activist role for a legislating sovereign:rather, like the German professors, he imagined jurists would tease conceptsand principles out of the materials of legal practice. In the followingsections, it will be shown that this was indeed the very kind of visionEnglish jurists desired in the mid century. These jurists - Austin'ssuccessors teaching in law schools in London - were seeking principleswhich could be extracted from the common law, rather than rules to beimposed by a sovereign. For this enterprise, they made use of Austinian(and Germanic) analytical jurisprudence; but still remained unhappy withthe substantive implications of Austin's concept of the sovereign and thesource of laws, as expounded in The Province of Jurisprudence Determined.We will see that many minor writers of the mid century, who got theiranalytical jurisprudence not directly from the pandectists, but via Austin,either clung to a traditional version of natural law or attempted to developintuitionist arguments. After the publication of Maine's Ancient Law,however, English jurists looked increasingly towards the voices ofexperience, arguing that law had its substantive source in what thecommunity expected or practised: to that extent, Maine's influenceextended as much to the 'analysts' as to the 'historians'.

AUSTIN'S GERMAN INHERITANCE

Austin visited Bonn in the two years following his appointment to the Chairin Jurisprudence and the Law of Nations at the University of London in1826, and at that time became familiar with the works of A.F.J. Thibaut,F.C. von Savigny, Gustav Hugo and N.N. Falck. While this visit to Germanywas clearly very important for Austin, most historians have followedAndreas Schwarz's view that there were clear limits to the Germaninfluence on Austin. It is held that while he accepted their systematicpandectist approach, he rejected the historical sensibility of Germanscholars, and the philosophical speculations that lay behind their works.12 Itis a view apparently confirmed by Austin's own words," for while he wasparticularly fulsome in singing the praises of Thibaut and Savigny,14 hecondemned the 'vague and misty abstraction' of German philosophy.15

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When it came to his philosophy of law, Austin acknowledged his primedebts to Hobbes and Bentham rather than to Kant.16

Nevertheless, in seeking to create a 'general jurisprudence' which wouldbe a 'pure' theory of law, formal and devoid of content, Austin was to somedegree engaged in an enterprise which owed much to Kantian methodology,if not to Kant's moral epistemology.17 Austin was less of a legal philosopherthan a pandectist, and he spent little time discussing either hismethodological assumptions or his view of Kant's Critiques." But he drewon the definitions and concepts of German jurists whose work wasinfluenced by Kantian methodology; and he wanted overall to create 'agood institutional treatise, philosophical, historical, and dogmatical, on thewhole of the English law'," after the manner of the Germans.20 Given thisbackground, we will see that it is less easy to demarcate the influences onAustin than has sometimes been assumed: and that the 'philosophy ofpositive law' and its methodology Austin encountered in Germany was veryimportant for his project. In this section, we will examine some of the workof German jurists, and in the next we will examine Austin's reactions to thiswork.

For German jurists who sought to make systematic legal treatises, Kant's'metaphysics of experience' was a vital breakthrough, though many rejectedhis ethical philosophy. Where the mathematical natural law deductivism ofChristian Wolff and his followers had seemed artificial and cut off fromreality, Kant had built a vital bridge between the realms of reason andexperience, in his distinction between intuitions and concepts. For Kant,neither abstract reason alone nor experience gave true knowledge, forintuitions in isolation gave formless content, while concepts in themselveswere empty. True knowledge came from a union of the two. Moreover, theywere interdependent: the fact that men understood or made sense of theirexperiences suggested that a priori concepts of understanding existed; but itwas experience which called them forth.21 For Kant, categories existedwhich were pure concepts of understanding, to which every experience hadto conform: 'they are the conditions under which alone objects for ourintuitions can be thought.'22 For many late eighteenth century Germanjurists, the object of their science was to find 'pure' legal concepts, whichmade sense of and helped explain the positive laws in real societies. Suchconcepts could then be used in turn to test particular parts of positive law,to see how appropriate or rational they were.

The pioneering work in the legal field was that of Gustav Hugo, whosought to build a jurisprudence from empirical bases, by examining thehistorical and positive foundations particularly of Roman law, rather thancalculating law from metaphysical first principles. Hugo was influencedboth by German historiography,23 and by Kant's Critiques.24 He took from

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Kant's critical philosophy the notion that the forms of thought wereknowable a priori, but that in non-mathematical sciences, the content couldonly be known empirically.23 Hugo felt the jurist should observe and analysewhat was, and what historically had been, valid law. However, Hugo's'philosophy of positive law' was no mere description of laws which hadevolved, but was 'die Vernunftserkenntnis aus Begriffen, von dem, was(juristisch) Rechtens sein kann.'26 The 'new' natural law of Hugo was thusone lying within positive institutions, to be evolved and developed, but notseen as an abstract.

This approach may also be seen in the work of Niels Nikolaus Falck.27

Falck was concerned with looking at systems of law as they existed inparticular communities, not in the abstract, and he spoke of positive law asa system of rules which the inhabitants of a society were compelled to obey.Moreover, while acknowledging that the legal systems of all states werebased on universal nature, he pointed to the necessary diversity of legalsystems, insofar as human nature appeared nowhere in its 'essentialuniversality', but was always found within characteristic peculiarities of apeople among whom it appeared.28 This was a pragmatic science, for legalprinciples had to be connected to particular States.

However, having rejected a traditional natural law, he felt it was 'stillpossible to establish the existence of a system of Natural Law in the widersense of Universal Jural Truths'.29 He distinguished the study of the positivepropositions of law from these universal principles. Positive law consistedof doctrines and rules known by external evidence - thus embracing bothlegislation and custom. However, there was another area of legal science:'[i]n so far ... as jural propositions do not rest upon the testimony ofwitnesses, but have to be discovered from an examination of Civil Society,and the various circumstances and relations of life that appear in it, or haveto be derived by inference from these facts, the sum-total of such rules maybe called natural law in contrast to positive law'.™ This 'natural law' wasnot discovered by considerations of final purpose or moral dignity, but by alogical analysis of given conceptions: and it was thus governed by existingfacts.31

Falck's universal truths were of practical importance. Positive law andcustom, he argued, were incomplete, failing to present a principle of rightfor every case. Nevertheless, a right and just decision was expected for eachcase. 'Every system of Law, just because it is incomplete,' he said, 'thusinvolves the silent assumption that there exist universally knowable anduniversally valid Principles of Law that may be applied to all undeterminedcases ... . The problem which has to be solved in the ascertainment ofgeneral Rules of Law that will be applicable to undetermined cases, can beno other than to establish the universal recognition of a Rule as a juristic

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truth.'32 For Falck, the necessity of a rule was known in a twofold way:either through historical examination of the legislative will, or by logicalinference from recognised facts.

If German jurists were largely united on the methodology ofjurisprudence, they were famously divided in the years after the NapoleonicWars over the question of the source of law. In the debate over thedesirability of codification, Savigny and his followers argued that historywas 'the only way to true knowledge of our own condition'" and saw theseat of law as lying in the 'common consciousness of the people' .J4 ForSavigny, law developed by custom and by the work of jurists: and not bypositive legislation. This historical version was resisted strongly by A.FJ.Thibaut, not because he opposed historical investigation, but because inpractice, the conservative vision was counter-productive. For Thibaut, thework of Savigny and his followers sought to resolve all questions bylooking at sources in the Roman or Canon Law, which were unsatisfactoryrepositories for solving contemporary legal problems: even the most learnedprofessor could not truly understand the Volksideen of the Romans.35 Hesaw legal scholarship falling deeper and deeper into erudite researches inphilology and history, but thereby becoming indifferent to questions of thepeople's needs, of right and wrong.36 He therefore favoured a code, designedfor the conditions and needs of the German people, accessible to all, butcreated 'mit deutscher Kraft im deutschen Geist'.

Thibaut lost the debate, and by the 1830s, the historical school hadgained ascendancy, its vision most clearly expressed in the highlyconservative vision of G.F. Puchta. For Puchta, customary law had to be theproduct of a 'common conviction',37 and was discovered ultimately byrevelation or the workings of the inner sense: if there was a sovereign whichcommanded and was obeyed, that sovereign embodied the the spiritualunity of the people. Puchta, then, did not see legislation as the foundation oflaw, but rather the Volksgeist, as interpreted by jurists. Puchta was thus themost 'metaphysical' of German jurists, the least favourable to codification.His work was clearly far from Austin's. Yet this final development of thehistorical school passed Austin by, for he had left Germany by the timePuchta's most influential work was published.38 In any case, it is significantthat Austin never really understood the dispute between the codifiers(followers of Thibaut) and the historians (the followers of Savigny). Thefact that he could pass over the differences between the two implies at leastthat he was unfamiliar with the arguments of the historical school, stated intheir fullest and most idealised form.

Austin's lectures were thus written under the influence of Germanmethodology, but before the historical school had articulated its vision insuch a form as to invite the kind of positivist rebuttal put up by Rudolf von

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40 LEGAL HISTORY

Jhering in the 1870s. The contrast between Jhering and Austin is instructive.Like Austin, Jhering talked of the state as being the only source of law,capable of legislating as it saw fit, and of coercion as being the backbone ofthe law." For Jhering, this point had to be made to counter Puchta's idea thata custom remained law which had been deprived of its enforceability by thelegislature, an idea not encountered by Austin. Unlike Austin, however,Jhering also attacked the jurisprudence of concepts - Begriffsjurisprudenz -which sought the juridical refinement of concepts into their purest form, andin place of this, espoused a sociological view, seeing law as thedevelopment of social struggles, not as inherent in the community.40

Begriffsjurisprudenz for Jhering was associated with Puchta's vision, in allits conservative glory. Austin, writing in an earlier era, looked at thejurisprudence of concepts more from Thibaut's point of view: as a tool toassist the legislator digesting the law.

AUSTIN'S 'PHILOSOPHY OF POSITIVE LAW

It was Austin's positivist sovereign which most seemed to distinguish hiswork - and that of the English - from the German school. And yet Austin'ssovereign was a highly paradoxical creature. As a formal definition, hisconcept of sovereignty was hardly original.41 What made it controversialwas that (like Bentham) he sought to identify it in real, sociological terms;but unlike Bentham (or Jhering), he did not seek to make the sovereignpurposive or active. This sovereign would not have a reformist programme:he had already 'legislated' (or implicitly accepted) all laws which existed.More paradoxically, the laws which were thus 'legislated' were explainedand given shape by analytical jurisprudence. This created a dilemma inAustin's work: if the positivism suggested that all law was imposed fromabove, the analytical jurisprudence implied that the structure of the legalsystem could be suggested by juridical science.42 Austin's system workedwell if it was accepted that the sovereign was a formal source of law only:Austin's difficulties arose insofar as he sought to make the sovereign real.

In his analytical jurisprudence, Austin seemed to follow the school ofHugo in seeking 'das Naturrecht als einer positiven Recht'. Austin's interestin legal concepts sought to investigate 'the principles, notions, anddistinctions which are common to all systems of law,' the principles whichwould allow a lawyer who had mastered the law of his own country tomaster that of all others. This explained his interest in Roman law, whichbore 'the same relation to law and morals, which the school logic bears tophilosophy'.43 Like the German jurists he had read, Austin saw universaljurisprudence as abstracted from what countries actually did; while stillacknowledging that each country would be different. As he saw it, universal

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jurisprudence was drawn from experience: it was the 'science of the JusGentium of the Roman Lawyers' ,u which was a common law of all nations:'an abstractum (gathered by comparison and induction) from the peculiarLaw of Rome herself, and the various peculiar systems of the subject ordependent nations'.45 Austin concluded that this law had such a 'characterof universality' that it it had been incorporated into the laws of Europeannations: 'And here I would remark that a common law or jus aequum, nearlyresembling the jus gentium in question, has obtained in almost every nationwith which we are acquainted.'46

When discussing the law of nature, Austin commented that 'modernwriters on jurisprudence', when they spoke of 'natural laws' usually meantpositive laws which were common to all political communities, and whichwere 'universally and palpably useful'. He added,

the natural law in question when considered as positive law, is closelyanalogous to the jus gentium of the earlier Roman Lawyers, and toany of the systems of common or general law which resemble their jusgentium. For the natural law in question is the common positive lawof all independent nations; and the jus gentium of the earlier RomanLawyers, or any of the systems of general law which resemble theirjus gentium, is a common positive law of a comparatively restrictedextension: being common to a limited number of independent nations,or common to all the members of a single independent nation.47

However, Austin rejected the view that there was a universal natural lawthat would be the same in each place. He rather argued (following Bentham)that 'the provisions of different systems are never precisely alike; the onlyparts in which they agree exactly, being those leading expressions whichdenote the necessary parts of every system'.48 For Austin, then, there werenecessary principles and concepts that were common to all systems, whichwere suggested by experience, and abstracted from the local positiveinstitutions in which they were embedded. The ideas were universal andimmanent, but they needed to be abstracted from the maturer systems whichhad most experience, for they could not be 'conceived with equal exactnessand adequacy in every particular system'.49

When it came to talking about the content of laws, Austin, like theGermans, seemed to suggest a natural law, but one rooted in communities,as opposed to being deductive. Addressing the question of whether thereexisted positive rules which were so universal that one could presume theywere copied from divine originals, he conceded that the distinction was notwithout meaning: for as some of the dictates of general utility were exactlythe same in all places and all times, there were concomitant positive ruleswhich were universal. The problem was that it was very hard to tell which

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rules were universal, and which particular. Austin rejected theconceptualisation of universal natural laws in this way:

[E]very human rule (be it universal or particular) which accords withthe principle of utility, must accord with the Divine Law of which thatprinciple is the exponent. So that all positive rules, particular as wellas universal, which may be deemed beneficent, may also be deemednatural laws, or laws of Nature or the Deity which men have adoptedand sanctioned.50

From here, Austin rejected the notion that any law could be indifferent- a local law in one area might be no less useful to that area than a 'natural'law that was universal. Austin's position thus appeared to be that there were'natural' laws to be striven for in every area, but that they differed accordingto context and found their expression in local positive institutions.

Austin's use of utility must thus be seen in a different context fromBentham's. Austin in effect used utility to get at the 'natural law' embeddedin the community. Austin's utilitarianism, which sought divine rules,51

placed emphasis not on the felicific calculus, the rational estimation of theconsequences of individual acts, but rather on observation and inductionfrom the tendencies of classes of human action. Austin's ideas on how theserules evolved was to a large degree anti-rationalist: as he put it, the scienceof ethics 'has been formed, through a long succession of ages, by many andseparate contributions from many and separate discoverers. No single mindcould explore the whole of the field, though each of its numerousdepartments has been explored by numerous inquirers.' Instead, most wouldhave to be taken on 'authority, testimony, or trust'.32 Indeed, if people'sconduct were truly adjusted to the principle of general utility, they would beguided by moral sentiments associated with the rules which emanated fromthe Deity - and it would continue to operate even though 'I advert not to thereason in which my belieffs] originated, nor recall the Divine rule[s] whichI have inferred from that reason.'53 Austin's evolving 'science of ethics' thusled not to the creation of a new moral world, but to the pruning of oldideas.54 It is therefore important to note that the moral theory which Austinattacked was Butler's notion that there existed an innate moral sense,55 andthat he denied any fundamental difference in the approaches of theutilitarians and the German historical school of jurisprudence, both byclaiming that Bentham belonged to the historical school since he appealedto experience,56 and by implying that the Germans used general utility intheir determinations.37

Austin's communitarian concept of the content of law is also seen in hiswriting on how laws evolved. In his view, the judges played a very majorrole: but they did not decide cases by direct reference to the principle of

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utility. Instead, he spoke of judiciary law being fashioned 'upon pre-existingrules observed spontaneously, or wholly deriving their imperfect obligatoryforce from the religious or moral sanctions'.58 To counter the objection thatjudicial legislation was ex post facto, he noted that 'the decisions of theCourts are often anticipated by private practitioners' - so that, in anindividual case, the parties would have been forewarned, if not by thelegislature, then by the 'opinions and practices the tribunals commonlyfollow'.59 At the same time, Austin held that lawyers and jurists played alarge part in judicial lawmaking: and people could therefore safely guidetheir conduct according to the opinions of lawyers even if no judicialdetermination had yet been made.60 Moreover, Austin (referring in passingto Savigny's opinions) contended that judiciary law was in effect the jointproduct of judges and skilful lawyers, who ensured that the new rules wereconsonant with one another, with existing legislation, and with the interestsof their profession and the community. Judges were thus limited both byhaving to progress by reasoning by analogy on old law, and by having to payregard to 'the interests and expectations which have grown up underestablished rules'.!1 Indeed, the function of the jurist was central, given thatAustin's judges created rules not by direct legislation, but rather in theprocess of judging.62 Jurists were needed to abstract the ratio decidendi ofcases, a rule abstracted out of many cases.61

Austin's definition of judges as 'subordinate legislators' thereforeilluminated the formal status of the rules they articulated, much more thantheir content. He defined judges in this way to avoid certain problems whichmight be raised by holding that customs were spontaneously binding oncourts. These included the facts that not all customs were recognised aslaws, that the people needed telling by courts what were legal customs andwhat were not, and that much 'judicial' law was of recent origin, and notfounded on any specific customs.64 But these were not strong objectionsagainst Hugo or Savigny. For them, legal customs were not simply what thepeople felt in some nebulous common consciousness: rather, as societiesprogressed, the jurist became the crucial arbiter, the technical expert whoarticulated what had the force of law from what did not.65 Nor was this justthe wishful thinking of German law professors, for, in the fragmentedGermany of the late eighteenth and early nineteenth centuries, the mostimportant authoritative sources of law were the professors, articulating anddeveloping a complex system of legal dogma.66 England, on the other hand,conspicuously lacked a developed legal literature and professoriate, but hada developed centralised system of courts. Austin's judges were legislators,not merely men who articulated what was law, since in England there wasno settled written system for them to interpret or articulate. Thus, it was asmuch context as principle which divided Austin from the Germans when it

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came to judicial legislation: and in practice, the way Austin would have thejudges behave, and the concepts he would have them use, were perhaps notvery different from those Savigny wanted for his professors.

In a number of key areas, therefore, Austin's approach was parallel tothat of the German jurists he encountered in the 1820s. His premise thatthere existed universal abstract principles drawn from experience, whichwere common to all legal systems, but that the content of law varied in eachlocation, seemed to parallel Germanic ideas on the existence of a naturallaw finding varying expression in positive laws. Similarly, his ideas on thefunction of the jurist and jurisprudence echoed theirs. It was theseconceptions which were most readily taken up by later jurists, who rejectedthe Austinian concept of sovereignty and command in so far as it purportedto describe reality. Later jurists drew out, far more explicitly than Austinhad, the idea that what was law derived from the needs and desires — andultimately the morality - of the community.

In many ways, writers who followed Austin failed to see these currentsin his work, for they were blinded by the vision of the sociologicalsovereign. However, English jurists in the later nineteenth century(concerned, as most were, with private law) did not want a powerfullegislator. As we shall now see, they wanted a search for the principles ofthe common law: for which analytical jurisprudence was very helpful, butfor which Austin's sovereign was not.

Contemporary interpretations of Austin's work were largely based onthe positivist image of the sovereign presented in The Province ofJurisprudence Determined, the only part of Austin's work published in hislifetime. But (as we have seen) the view put forward there masked manyother current in his work, which led to different conclusions. Jurists wouldspend another half century rejecting the crudely positivist vision of thesovereign, while seeking to swim in the current of analytical jurisprudenceto find principles which made sense of the common law. In the followingsection, we will see that in the middle and later nineteenth century, juristsdid not seek a codifying legislator or a positivistic sovereign, but rather ajurisprudence to make sense of the law.

ANALYTICAL JURISPRUDENCE AND THE SEARCH FOR PRINCIPLE

By the 1840s, when the science of special pleading had reached its apogee,the common law seemed in desperate need of articulation in terms ofprinciples.67 The desire for a principled science of law was reflected in thecampaign for better legal education.68 It was also reflected in works forscholars which either showed them the underlying principles of thecommon law,69 or urged them to seek principles in the study of Roman law.70

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By the 1850s, the Benthamite rage for codifiction had cooled: now, eventhose who favoured codification did not seek a Benthamic Pannomion, butrather a collection of legal principles extracted from the common law.71

It was in this context of a search for principle that the interest inanalytical jurisprudence mushroomed. A generation of writers onjurisprudence after Austin stressed how the science of law was formal andanalytical, not material, bearing the same relation to law, as grammar did tolanguage.72 Those who sought to develop such a jurisprudence recognisedthe importance of German jurisprudence: it had 'enabled Austin to see in therules of English law, covered as they were by the rubbish of ages,institutions common to all systems and having a deeper reason than meretradition'.73 What they derived from this method was the notion that '[t]hereis no system of law, and no part of a system, which is not pervaded byuniversal principles, whatever may be the form into which it is moulded bypositive rules'.74

In acknowledging that there were universal concepts which were to befound in all systems,75 jurists were led (as Austin had been) to acknowledgethat there were underlying natural rules found in all societies.76 To thatextent, the very use of analytical jurisprudence appeared to imply theexistence of an underlying order. For T:E. Holland, the analytical sciencesuggested that the systems of law in all countries were constructed to effectsimilar objects 'and involve[d] the assumption of similar moral phenomenaas everywhere existing'. The formal jurist was therefore able to 'frame outof his accumulated materials a scheme of the purposes, methods, and ideascommon to every system of law'.77 Sheldon Amos similarly noted that theBenthamic battering ram of pure reason, when directed at the chaoticcustomary law 'necessarily involved a recognition of the principle thatcertain immutable logical and ethical principles underlie the laws of everycountry'.78 The science of law when properly studied would be found to becomposed 'of elements as permanent and universal as the elements ofhuman nature itself'.7" Like Holland, Amos felt that the classifications ofjurisprudence grew from the observations of positive law.80 This could haveimportant practical effects. 'It is probable that an increasingly clearapprehension of the logical relations of different branches of law', he said,'will produce the effect of assimilating the substance as well as the form ofthe rules of law forming the so-called Private International Law of differentcountries.'81 Some writers even suggested that the abstract science ofjurisprudence could create ideal patterns for legislation to pursue.82

However, these writers did not reject the Austinian formal division oflaw and morals.83 Even Frederick Pollock, whose dislike of Austin ran sodeep that he lectured (and published) on jurisprudence 'deliberately burningthe gods of the so-called English School',84 and who had grave reservations

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about the use of an abstract formal science of jurisprudence, argued thatthere had to be a clear conception of the borders of law and morals, to showwhat conduct was fit for coercive rules, and what not. Nevertheless, this wasa formal division: for those who called it 'unscientific and illogical toconfound' the study of law and morals also stressed that it would be 'a greatpractical mistake to lose sight of their intimate connexion with each other'.For, as the Quarterly Review noted in 1861, it 'should never be forgottenthat the Science of Jurisprudence, regarded as a whole, comprises not onlya study of what the law is and has been, but of what it would be, if theprinciples to be extracted from it were correctly worked out'.85

THE SEARCH FOR THE SOURCES OF LAW

If the analytical jurisprudence espoused by English jurists implied that therewas a universal system to be striven for, the question remained of how thesubstantive law actually developed. Given their beliefs about the need todevelop the principles of law, English jurists of the later nineteenth centurydid not look to a utilitarian legislator to supply their laws,86 or to utilitarian-minded judges acting in a discretionary way.87 Instead, jurists looked todifferent sources. Particularly in the decades around mid-century before thepublication of Maine's Ancient Law, we can see jurists seeking to defendviews of law which looked to the reason or moral sense of the individual: tothat extent, they were either modifications of the older a priori tradition, orattempts to appeal to new views of intuitionism. However, insofar as theywere returning to the older traditions of natural law — which had beenthemselves rejected by the pandectists - they attracted little critical acclaim.After the 1860s, the emphasis changed, largely in response to Maine'sprovocation. Now, jurists who looked to the analytical exercise embraced acommunitarian vision of law. In the end, this was to excise Austin'ssovereign, but to leave his system of concepts, and to 'rediscover' by adifferent route the 'new' natural law lying in the community.

In the middle of the nineteenth century, we can perceive universalacceptance of Austin's Begrijfsjurisprudenz among the teachers of lawcoupled with the persistence of a traditional form of natural law thinking.Thus, in the 1850s, a number of works appeared which drew on the writingsof Grotius and Domat.88 These works were often unsophisticated, andwritten by minor figures, who were drawing on such traditional moraltheories because they were not well read in the modern continental texts.However, what is notable is that they were not badly received by theprofession. The Law Magazine, for instance, gave a favourable review toGeorge Bowyer's Commentaries on Universal Public Law, which drewheavily on Domat, its main criticism being that the work had not gone far

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enough. We should not, it said, seek a source of obligation external toourselves, in the way the traditional natural lawyers did, in God'scommands: the 'real source is to be found in our conscience, which is aprinciple of our own moral nature ... the source of obligation is purelysubjective'. The review was conclusive: '[i]t is our moral sense, thepractical reason of Kant, pointing out to us our duty, independently ofinclination and will, that creates obligation'.89

In addition, there were other jurists who felt uneasy with traditionaldeductive natural law, and who sought to evolve a more intuitionist view ofjustice. One such writer was C.S.M. Phillipps, who argued in 1863 thatjustice was an instinct, not a science, and who felt that the relationshipbetween jurisprudence and justice was the same as that between languageand thought. Arguing against a utilitarian view, he said '[i]ts first principlesmust be taught by the conscience, not by the intellect, and they are oftenmost thoroughly felt and comprehended by men utterly incapable of tracingtheir remote consequences, or of applying them to any intricate combinationof facts'.90 Phillipps is interesting for the way he linked his epistemology tothe jurist's role. He held that if the jurist succeeded wholly, every questionof right which could possibly arise between people could be stated in itsproper connection and 'a method of analysis would thus be provided bywhich any conceivable system of law might at once be arranged in preciseand perfect logical order'.91 The juristic method of analysis could becoherent since its materials were the common relations of human life andsince its basis was conscience and reason. As he put it,

What every jurist has first to do is to make himself master, not of theLaw itself, which may be pernicious and must be imperfect, but of thatgreat system of Jural problems which form the framework of all Law,and which, as it arises out of the conditions of human existence, mustretain its importance while the human race survives ... Let him oncethoroughly comprehend what is to be done, and the inquiry how it hasbeen done will become an easy one.92

Phillipps' use of natural law was not a retreat to the eighteenth century:rather, he felt it was something which needed development. He chastisedutilitarians for allowing assumption to replace the careful deduction ofprinciples," and called on judges to improve the science of natural law intheir judgements. He contended that until the eighteenth century, no systemof natural law operated in England, but that judges either made 'an arbitraryguess at justice, or a verbal criticism upon some dogma of Positive Law'.This natural law was best developed through the development ofprecedents, for it was only through the infinite variety of fact that theflexibility of principle could be developed.94 It is interesting to note the

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reaction of the Law Magazine and Review to this work: it called it 'a cleverattempt to construct a system of jurisprudence on the antiquated principle ofnatural justice'. Though arguing that the book failed in its objective - andincidentally defending the utilitarian and historical schools as compatible -the reviewer recommended the book as being of great interest.95

The mid-century writer who most closely grappled with the Austinianproject from a natural law perspective was D.C. Heron.96 Like Austin, herejected the confusion of law and a priori morals, as well as the concept ofleges legum. At the same time, his view of how a jurist could find positivenatural law echoed some of the themes we have seen in Austin. For if thescience of jurisprudence gave the concepts of law, experience could give thecontent. '[Discussing laws upon the inductive method,' he said, 'we, by theobservation of facts and the use of reason, selecting the good, eloigning thebad, may gradually arrive at that system of law which is most in conformitywith natural justice.' It was therefore progressively encroaching on thekindred sciences of ethics and theology, embracing 'an ever-widening rangeof social rights and obligations'.''7

In other respects, Heron's work echoed Austin's. He had high hopes fora science of ethics: 'Could we, indeed, shut out human volition, and theaction of disturbing fancies,' he said, 'mankind would no more differ aboutthe conclusions to be drawn from the primary elements of Ethics than aboutthe deductions from geometrical postulates and definitions.'98 This sciencecould be elaborated by experts, and then taught to the community.99 UnlikeAustin, however, Heron espoused a moral sense epistemology,100

ultimately subscribing to Kant's notion of the categorical imperative - astandard of moral perfection which existed even if man did not act inaccordance with it. Feeling that law should be a compromise betweenhistory and philosophy, he argued that jurists should seek to unite the twoschools of analytical jurisprudence — under which he classified bothBentham and Kant - and historical jurisprudence. In that context, Heronpraised Savigny as 'the most distinguished jurist of the nineteenthcentury'.101

The direct impact of Germanic approaches, seeking law from within thecommunity, was limited to those with detailed knowledge of the Germantexts. One such jurist was James Reddie, writing in the 1840s.102 Reddiespoke of a law of nature which was founded in experience, and but whichwas not to be discovered in the a priori way of old natural law thinkers, wholooked at man abstracted from society. Reddie progressed to arguing that anobjective law of nature did exist, but one which was inductive, and not apriori. The jurist should, he said, contemplate

the various systems of laws, customs, and establishments, which have

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grown up in the course of time among different nations, seizing thosecommon and general principles, which pervade all these systems, andthen applying the principles derived from and ascertained byexperience to the practical improvement of the institutions ofparticular countries.103

It was pointless to attempt to transfer the details of a code from onecountry to another; but what could be achieved was the application ofcertain general principles which had been observed by induction in othercountries. Reddie was not hostile to the analytical school: however, he feltthat it attributed too much to the legislator, and was too insensitive to whatan historical approach could bring. Reddie was therefore a champion of thecommon law, which he saw as a real, living law. In making decisions, andin reconciling precedents, the judge had 'to ascertain what views have beenusually entertained by the great body of the community, in point of justiceor reciprocity between individuals, and in point of general expediency andconvenience, as a rule of action, and to decide accordingly'.104

However, Reddie was largely an isolated voice, and his arguments werenot taken up by those uneasy with Austin's view. This should not come as asurprise. To begin with, legal education in the 1840s was rudimentary, andthe number of jurists discussing these issues was very small. While Englishjurists were vaguely familiar with German works, they tended to beunfamiliar with the context in which German debates took place, and of thewider significance of the historical school. It was the publication of AncientLaw which opened the eyes of the English to an historical method,developed by an English scholar in an Anglophone context. Maine's workgave a new direction to scholars uneasy with Austin's sovereign, and hiswork on the sociological development of law opened a wide debate on howcommunity consciousness helped to develop law.105

After the 1860s, English jurists looked less at the old style of natural lawwhich had still been urged in mid-century.106 The influence of a school ofnatural law continued in Scotland, but it was received with little enthusiasmsouth of the border.107 Instead, English jurists looked more to forms ofexperience. It was Maine's work which gave the greatest impetus to thistrend: and he had a ready audience in jurists who were seeking for principlesin law, and who were hostile to codification for over-simplifying theexperience of the law.108

Maine's importance was less in creating his own jurisprudential vision,than in debunking the crude vision of the Austinian sovereign. In so doing,however, he drew attention to the importance of custom and history in theevolution of law, in a way that could not be ignored. Maine's intervention —at the same time that Austin's work was republished - came at a timely

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moment, since the expansion of legal education spawned more scholarlyjurisprudential texts. For these texts, which propagated the analytical view,now had an English influence to counter the vision of the omnipotentsovereign.

In the later nineteenth century, jurists who accepted the Austiniansystem were now able to modify his definitions in such a way as to removethe notion that the sovereign legislated irrespective of the popular will.Many shared Maine's doubts about Austin's view of the origins of law. E.C.Clark, for instance, declared himself convinced by Savigny's arguments onthe origins of law, and insisted on 'a historical connexion between thecommon consciousness and the common law of a state, different from theexpress or implied injunction by a sovereign or supreme power upon whichthe analysts insist'.109 However, he rejected Savigny's view that law had amoral aim, seeing this as confusing 'is' and 'ought'. Clarks' final definitionwas a heavily modified Austinian one:

The law of a state is the aggregate of rules administered mediately orimmediately by the state's supreme authority, or regulating theconstitution and functions of that supreme authority itself: theultimate sanction being, in both cases, disapproval by the bulk of themembers of that state.110

Clark's view was controversial, insofar as it made displeasure, ratherthan force, the root of law. Nevertheless, even those who criticised Clarkmodified Austin: 'the Crown and Parliament command the Common Lawbecause they enforce, not because they merely permit' it."1

This was a modification accepted by Holland, whose definition of lawwas a general rule of action regarding external acts 'enforced by adeterminate authority'."2 'It is convenient,' he added, 'to recognise as lawsonly such rules as can reckon on the support of a sovereign politicalauthority, although there are states of society in which it is difficult toascertain as a fact what rules answer to this description' ."3 This was in effectto separate the substantive source of laws from its purely formal source. Theoldest form of law was hence usage, which marked the transition betweenmorality and law.114 For Holland, custom only became law when it wasrecognised by the courts: but the courts recognised custom retrospectively,'so far implying that the custom was law before it received the stamp ofjudicial authentication'. Holland went on,

The contrary view supported by Austin is at variance with fact. Theelement of truth in his view, which he has done good service bybringing into prominence, is that usage, though it may make rules,cannot, without obtaining for them the recognition of the State, make

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laws. The element of mistake in his view is to date the Staterecognition from the moment that the usage has been called inquestion and allowed to be good in a court of justice.115

Holland concluded that in the absence of positive rules, judges shouldlook to custom or equity. 'A good custom or an intelligible Act ofParliament either exists or does not exist objectively, before the case comesinto Court,' he added, 'although it is from the decision of the Court in theparticular case that a subjective knowledge is first possible for the people ofthe existence, or non-existence of the alleged custom, or that this or that isthe meaning of the Act of Parliament.'116

The later nineteenth century thus sees an increasing reconciliationbetween historical, moral and Austinian approaches. This can be seensimplified in B.R. Wise's Outlines of Jurisprudence. Taking his cue fromSheldon Amos' and T. E. Holland's work, Wise argued that law was closelyconnected with moral progress, because law marked the stages of moralgrowth by giving a permanent form to the moral ideas already evolved.117

Like Holland and Clark, his final definition of the sovereign came down tothe power of enforcing, not making the law.118

What we see in the late 1880s, therefore, is a move away from Austin'scommand theory by even those who followed broadly Austinian analyses.At the same time, a number of jurists continued to argue an intuitionist case,against Austin.119 Moreover, with the late century philosophical revival ofinterest in the works of German idealist philosophers - something reflectedin the legal field by W. Hastie's translations of German jurists - a numberof legal commentators began to smudge over the differences between thepositivists and the intuitionists, to obtain a position of broadly commonground. The fact that these arguments lacked theoretical clarity is lessimportant than the fact that lawyers sought to make them; for it shows howuneasily the command theory sat with them. The approach can be seen inthe publication in 1888 of W. H. Rattigan's Science of Jurisprudence, a textaimed at Indian students. It began with a survey of a large number ofEuropean jurists, including Bluntschli, Ahrens and Lioy120 who had deniedthe Austinian division of law and morals. Rattigan noted that the state hada duty to promote morals, and that law could never be in opposition tomorals, but argued that jurisprudence was not concerned with ethics per se,'but rather with that form of Justice which is realisable by means or rules oflaw'.121 In his survey of the historical origin of law, he referred not only toMaine and Spencer, but also to Puchta and Hastie's translations of theGerman texts. Rattigan followed the trend of English jurists in the 1880s toacknowledge Austinian formalism, but to deny his substantive ideas on thesources of law, for Rattigan noted that 'Courts of Justice do not make Laws;

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their province is to ascertain and declare what the Law is'.122 What isnotable about the book is the favourable reception it got for the texts it drewattention to.123 Particularly notable was the reaction of the Law Magazineand Law Review. This journal noted that Rattigan had not removed theimperative idea of law, which the reviewer associated not just with Austin,but with Kant:

When Kant tells us in his Philosophy of Law'24 that 'morally practicalLaw is a proposition which contains a Categorical Imperative orCommand,' does he not substantially lay down Austin's canon? Andis there really an essential as distinguished from a formal differencebetween Austin and the majority of the Modern School of EnglishJurists who profess to criticise and improve upon him?125

Like other reviewers, this one particularly liked the comment that judgesdeclared custom, and did not make law.

Nor was it only minor writers who smudged over the line betweenpositivism and intuitionism. It can be seen equally in the work of FrederickPollock.126 Pollock rejected a crude version of Austin, saying that we wouldhardly give the name of 'law' to a series of inconsistent and unrelatedcommands. A definition of law which was based on the 'capricious ordersof a crazy despot' was not a good one, particularly since law was in mostadvanced societies founded on precedent. He sought to draw a parallelbetween the laws of the natural world and the laws of man in the idea ofuniformity. As the physical laws of nature showed uniformities, so positivesystems aimed at uniformities of conduct. In early ages, this parallel was astrong one: 'to early observers', he said, 'the uniformity of nature, so far asit was ascertainable with their means of observation, would in no way seemto be in contrast with human conduct, such as it was or ought to have beenaccording to the standards of conduct they were familiar with, but wouldrather offer a singular harmony with it'.'27 Laws of nature and of man onlydiverged later. Pollock saw continuous and persistent forces in nature andsociety, 'the apparent discontinuity and irregularity of many events beingcaused only by our ignorance'. He defined a law of nature as the expressionof the uniform manner in which some portion of the physical forces of theuniverse produced its effects. 'May we not say likewise that a law in thestricter sense expresses the regular effect of some portion of the socialforces at work amongst some definite part of mankind?', he asked. Fromhere, he could argue that '[p]ositive law is the culminating point of a seriesof uniformities ascending from stage to stage in speciality andcomplexity'.128 He therefore reworked the Austinian definition:

Law in its widest sense is a condition, or assemblage of conditions,

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under which the evolution of things proceeds; law in the special senseis a condition, or assemblage of conditions, under which the evolutionof a society proceeds, and the determination of which is part of thecollective consciousness of that society.

Moreover, this consciousness was a form of natural law.129

For Pollock, the voice of the collective consciousness was the judges.Although he argued that it was 'wholly conventional',150 he held that thedecisions of courts were not arbitrary, but that the final court of appeal 'isguided by an ideal standard of scientific fitness and harmony'. This idealwas found in the collective consciousness of legal experts, and was not tobe found in any one book. Modern decisions could modify the idealstandard, but only in a limited way. Pollock wrote,

On the whole, the effect of the mutual reaction of professional opinionand decided cases is to prevent the ideal conceptions and the actualresults from ever becoming inconveniently remote from one another.Now the fiction of a perfect and uniform system of law which isgradually discovered by the judges has been the subject of muchcriticism and some contempt. But it is in truth only a strong andsomewhat crude way of representing this same ideal standard of case-law, which is, indeed, modified from time to time, but may be takenas nearly constant for the time over which the search for authoritiespractically extends.131

For Pollock, lawyers made inductions from particulars to particulars.The function of general propositions was to be seen in the working of legalmaxims: they were symbols, or a technical shorthand, which stood forcertain facts, but could not substitute them.

CONCLUSION

English jurisprudence remained unsophisticated in the nineteenth century,and English jurists were a small circle, particularly when compared withtheir German counterparts. Nevertheless, from what has been said, it shouldbe evident that the English were hardly united in positing a distinct view ofjuridical science. Indeed, the closer one looks, the harder it is to find the'English School of Jurisprudence'. The jurists who succeeded Austin wereunanimous in rejecting the crude positivism they associated with Austin'sname: and, as has been shown, even Austin did not subscribe to that view.Austin's project was influenced very deeply by the German writers he readin the 1820s, and this in itself was likely to lead him away from a Benthamicview of the sovereign legislator. Later jurists were not as familiar as Austin

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with the German school, and the German historical school never took rootin England. However, they, too, looked for the sources of law in thecommunity, and not in positive command, and thereby echoed thecontinental trend. They were led in this direction by Maine, rather than theGermans.

The result was that English jurists were less radically different fromcontinental jurisprudence than has been perceived. Judges were not seen assubordinate legislators with a free discretion to decide cases, by a directappeal to utility: rather, they were to be the developers and articulators of adeeper common law.1" English jurists were not utilitarians to a man, theydid not see law as cut off from morals, and they did not conceive of law asa series of commands issuing from a Hobbesian and Benthamite sovereign.If that is so, however, there may be little left of a distinctly 'English Schoolof Jurisprudence'.

NOTES

1. This view had its origins in the nineteenth century: see Frederic Harrison, "The EnglishSchool of Jurisprudence', Fortnightly Review (NS) 24 (1878), 475-92, 682-703,Fortnightly Review (NS) 25 (1879), 114-30, and [anon.] 'The Science of Law,' LawMagazine and Review (NS) 3 (1874), 691-702. The view is often restated in describingnineteenth century jurists: thus, P.S. Atiyah and R.S. Summers write, 'positivism of abroadly Benthamite character dominated English legal theory and the English legal system'in the nineteenth century: Form and Substance in Anglo-American Law, Oxford, 1987,240. See also Atiyah's The Rise and Fall of Freedom of Contract, Oxford, 1979, 492. OnAustin's influence, see Stefan Collini, Public Moralists, Oxford, 1991, 258, 267-8; K.J.M.Smith, James Fitzjames Stephen: Portrait of a Victorian Rationalist, Cambridge, 1988,46-7; W.L. Morison, John Austin, London, 1982, 151 ff; Philip Schofield, 'JeremyBentham and Nineteenth Century English Jurisprudence', 12 JLH (1991), 58-88; DavidSugarman, 'Legal Theory, the Common Law Mind, and the Making of the TextbookTradition: Some Aspects of the Intellectual History of Modern Legal Thought andEducation', in W. Twining (ed.), Legal Theory and the Common Law, Oxford, 1986,25-61at 43ff. Contemporary legal theorists and lawyers also note the influence of Austin'scommand theory: see H.L.A. Hart, The Concept of Law, Oxford, 1961, 6.

2. This summary of the differences is that of J.M. Lightwood, The Nature of Positive Law,London, 1883, 253-4.

3. 'Legal Theory', 48.4. Form and Substance in Anglo-American Law, 242.5. Charles James Foster, Professor of Jurisprudence at University College London, stated at

the outset in his Elements of Jurisprudence (London, 1853) that he disagreed 'toto caelo'with the founder of the English School of Jurisprudence - Austin.

6. This can be seen, for example, in the insistence in mid-nineteenth century discussions ofthe tort of deceit, that there was no such thing as 'legal' fraud, but that to be actionable, ithad to be a 'moral' fraud.

7. This is the common ground between the apparently rival historical and analytical schools;even Maine did not challenge Austin's formal theory: H.S. Maine, 'Sovereignty', inLectures on the Early History of Institutions, London, 1875. See R.C.J. Cocks, Sir HenryMaine: A Study in Victorian Jurisprudence, Cambridge, 1988, 118-22. Austin's discipleSir William Markby thus noted that analytical jurisprudence was not hostile to the

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historical method, commenting that if all law actually emanated from the sovereign, it wassurprising 'to find how little has been done in the most advanced societies towardsdeclaring with precision what the rules of law are to which we are subject'. The commandtheory was more an analytical tool: Markby therefore argued against Maine that even in thePunjab of Runjeet Singh, since what was custom could be uncertain, it was more useful insolving disputes for a court to assume that what the sovereign permitted he tacitlycommanded - 'that the custom of the people recognised by the decision of the Courts over-rides every other rule because it has the force of a command emanating from the sovereignhimself. 'Analytical Jurisprudence", Law Magazine and Review (4th Series) 1 (1875-6),617-30, at 626, 629. Attempts to reconcile Maine and Austin continue: Wilfrid Rumble,'John Austin and his Nineteenth Century Critics: the Case of Sir Henry Sumner Maine,' 39Northern Ireland Legal Quarterly (1988), 119-49.

8. G. Glover Alexander, 'Legal Education at Cambridge', 2 The Jurist (1888), 252. Lawstudents at the University of London took jurisprudence examinations which wereconcerned almost entirely with discussing arguments and concepts to be found in Austin'swork. Thus, in the two papers in jurisprudence for the Intermediate Examination in Lawstaken in January 1889, 11 out of 20 questions mentioned Austin by name. See The JuristExamination Supplement, March 1889. A 'B.A., LLB (London)' wrote a Handbook to theIntermediate and Final LLB of London University (Pass and Honours) (2nd edn, London,1889), which included a lengthy precis and summary of Austin's lectures for the students.Barristers who had to sit examinations after 1872, took no papers in jurisprudence unlessthey were sitting for a scholarship. If they were sitting for scholarships, a familiarity withBentham, Austin and Maine was expected. See for example the questions for theexamination for the Barstow scholarship in Trinity Term 1878, in The Bar ExaminationJournal, 4 (1878-80).

9. English jurisprudence was notable for its rarity: one review of C.S.M. Phillips'Jurisprudence (London, 1863) commented that '[a]ny treatise upon jurisprudence by anEnglishman must naturally excite attention, from the rarity of such a performance': 15 LawMagazine and Review (1866), 394. See Sir Richard Bethell's comments in Papers Readbefore the Juridical Society 1855-8, London, 1858, 1-6; J.F. Stephen, 'EnglishJurisprudence', 114 Edinburgh Review (1861), 456-86. Lectures at the inns of court in thelate 1850s and early 1860s thus used Warnkoenig's Institutiones Juris Romani Privati,Nathaniel Lindley's Introduction to the Study of Jurisprudence (based on Thibaut's Systemdes Pandekten-Recht), and Mackeldey's Systema Juris Romani hodie Usitati, as well asJustinian's Institutes: The Jurist, March 15, 1856, p.119; March 12 1859, p.93; 9 April1859, p. 137. These books were clearly up to date - Mackeldey's being published in Leipzigin 1847, and Lindley's in London in 1855. The use of German texts continued after thepublication of Austin's Lectures: indeed, in 1864, the year after Austin's Lectures had beenpublished, his work was still not included in the readings for jurisprudence, though Maine'sAncient Law was: The Jurist, 19 March 1864, p.95. However, German books were notpopular among the students: G. Glover Alexander noted in 1889 that the reading list onjurisprudence at Cambridge included Savigny's System and various translations of it, 'butwe never yet heard of a student who made use of these books even for reference': Jurist 3(1889), p.3. On German influences see Enid Campbell, 'German Influences in EnglishLegal Education and Jurisprudence in the Nineteenth Century', 4 University of WesternAustralia Annual Law Review (1957-59), 357-90.

10. A critical review of W. Hastie's Outlines of the Science of Jurisprudence in the LawQuarterly Review of 1888 noted that for systematic arrangement 'we could hardly haveanything more complete than the various editions of Pandektenrecht, for which theGermans are deservedly famous, and to which perhaps, more than anything else, we oughtto look for actual help in arranging and simplifying our own law'. 4 Law Quarterly Review(1888), 95.

11. Contrast Schofield's analysis of the reasons for Bentham's relative unpopularity amongnineteenth century jurists, in 'Jeremy Bentham and Nineteenth Century Jurisprudence'.

12. Andreas B. Schwarz, 'John Austin and the German Jurisprudence of his Time', 1 Politica(1934), 178-99 at 180; Wilfrid E. Rumble, The Thought of John Austin, London, 1985, 31;

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E.M. Campbell, 'John Austin and Jurisprudence in Nineteenth Century England'(unpublished Duke University Ph.D., 1958), 25. Rumble, The Thought of John Austin,31-2; Morison, John Austin, 18-19; Wilfried Löwenhaupt, Politischer Utilitarismus undBürgerliches Rechtsdenken: John Austin (1790-1859) und die 'Philosophie des PositivenRechts', Berlin, 1972, 99-100.

13. He wrote to George Grote in December 1827: '[t]hough the Philosophy of Law is in abackward state amongst the Germans, such of their expository books (particularly on theRoman Law) as I have run though appear to me to be models of arrangement, and toabound with learning'. Quoted in Janet Ross, Three Generations of Englishwomen:Memoirs and Correspondence of Mrs John Taylor, Mrs Sarah Austin and Lady DuffGordon, 2 vols, London, 1888, 1, 51.

14. Savigny's Das Recht des Besitzes (translated by Sir Erskine Perry as Treatise onPossession, London, 1848) was praised as 'of all books upon law, the most consummateand masterly,' while Thibaut's System des Pandekten-Rechts (translated in part asNathaniel Lindley's An Introduction to the Study of Jurisprudence; being a translation ofthe General Part of Thibaut's System des Pandekten Rechts, London, 1855) was praised as'masterly': Austin, Lectures on Jurisprudence, London, 1885, 53, 30. See also 706, 747 &804.

15. Lectures, 325n. He similarly castigated German philosophers for 'the thick coat ofobscuring jargon' which they used in their work, Lectures 714.

16. Of Hobbes, he said, 'I know of no other writer (excepting our great contemporary JeremyBentham) who has uttered so many truths, at once new and important, concerning thenecessary structure of supreme political government, and the larger of the necessarydistinctions of positive law': Lectures, 281n. Of Kant's Groundwork of the Metaphysic ofMorals, he wrote that it was '[a] treatise darkened by a philosophy which, I own, is myaversion, but abounding, I must needs admit, with traces of rare sagacity': Lectures, 940.

17. Gustav Radbruch has described the influence on Austin of 'the ideas of Kant and ofGerman idealism and liberalism in general': 'Anglo-American Jurisprudence throughContinental Eyes', 52 LQR (1936), 530-45 at 535. See also Roscoe Pound, Interpretationsof Legal History, Gloucester Mass., 1967, 99. Recent commentators have spent little timediscussing the Kantian connections, but see Morison, John Austin, 144-6. See also J. L.Montrose, 'Return to Austin's College', 13 Current Legal Problems (1960), 1-21. It maybe noted that Hans Kelsen, whose jurisprudence was in many ways parallel to Austin's, sawhimself as a Kantian, and has been seen as one by others. See, eg., Alida Wilson, 'Is KelsenReally a Kantian?', Hillel Steiner, 'Kant's Kelsenianism', and Richard Tur, "The KelsenianEnterprise', all in Richard Tur and William Twining (edd.), Essays on Kelsen, Oxford, 1986.

18. Austin did have copies of both the Critique of Pure Reason and the Critique of PracticalReason, and made passing comments in his lectures suggesting some familiarity withKant's critical philosophy, though not enough to suggest a deep influence. Lectures, 643,713. Schwarz, who saw Austin's library, commented that his readings of Kant were notvery deep: 'Austin and the German Jurisprudence of his time', 191-2.

19. Lectures, 1091.20. Austin drew heavily on German texts in this enterprise. Thus, 'I shall happily be able to

borrow from a celebrated treatise by Von Savigny, entitled Das Recht des Besitzes, or DeJure Possessions: of all books upon law, the most consummate and masterly; and of allbooks which I pretend to know accurately, the least alloyed with error and imperfection':Lectures, 53.

21. As Kant put it, 'The possibility of experience is ... what gives objective reality to all our apriori cognitions. Experience, however, rests on the synthetic unity of appearances, that is,on a synthesis according to concepts of an object of appearances in general. Apart fromsuch synthesis it would not be knowledge, but a rhapsody of perceptions which would notfit into any content according to rules of a completely interconnected possibleconsciousness . . . . Experience, therefore, depends upon a priori principles of form, that it,upon universal rules of unity in the synthesis of appearances.' Quoted in L. W. Beck, EarlyGerman Philosophy: Kant and his Predecessors, Cambridge, MA, 1969, 479.

22. Quoted in Beck, Early German Philosophy, 479.

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23. See P.H. Reill, The German Enlightenment and the Rise of Historicism, Berkeley and LosAngeles, 1975.

24. See R. Stintzing and Ernst Landsberg, Geschichte der Deutschen Rechtswissenschaft, 3vols, Leipzig and Munich, 1893-1910, III, 33, and Giuliano Marini, L'opera di GustavHugo nella crisi del giusnaturalismo tedesco, Milan, 1969, 115ff.

25. See Landsberg, Geschichte, III, 36-7.26. Quoted in Landsberg, Geschichte, III, 34.27. Some, like C.A.W. Manning have held that Falck was an influence on Austin: 'Austin

Today: or The Province of Jurisprudence Re-examined', in Modern Theories of Law,London 1933, 180-226. Others, however, have doubted any influence: Löwenhaupt,Politischer Utilitarismus, 99n. Austin did refer to Falck as one 'of the most eminent Juristsof modern times': Lectures, 1080, and had a copy of his Juristische Encyklopädie (Kiel,1825) in his library. In what follows, I will draw from Falck's, "The Scientific Study ofJurisprudence', translated in W. Hastie, Outlines of the Science of Jurisprudence,Edinburgh, 1887. Hastie claimed that this work was known since the time of Austin: andthat 'their merits as a practical guide to the study of jurisprudence have been everywhereacknowledged'.

28. Hastie, Outlines, 190.29. Hastie, Outlines, 175.30. Hastie, Outlines, 186.31. Hastie, Outlines, 178.32. Hastie, Outlines, 176-7.33. Quoted in Georg G. Iggers, The German Conception of History, Middletown, Ct, 1968, 66.34. The Vocation of our Age for Legislation and Jurisprudence, trans. A. Hay ward, London,

1832, 28.35. Über die Nothwendigkeit eines allgemeinen bürgerlichen Rechts für Deutschland,

Heidelberg, 1840, 9. For a discussion, see James Q. Whitman, The Legacy of Roman Lawin the German Romantic Era, Princeton, 1990, 102-12.

36. Über die Nothwendigkeit, 17-18.37. See Whitman, The Legacy of Roman Law, 122.38. The first volume of Puchta's Das Gewohnheitsrecht was published in 1828 - just after

Austin left Bonn, while the second was published in 1837. Austin has no copy of Puchta'sworks, and he does not quote the German in his Lectures.

39. Law as a Means to an End, trans. Isaac Husik, New York, 1924, 238-41.40. See W. Friedmann, Legal Theory, 5th edn., London, 1967, 321-5.41. See, e.g., S. Pufendorf, On the Law of Nature and Nations, Oxford and London, 1934,

VIII.l.i., p.1131, who said that the ability of natural and divine laws 'to have the full forceof law in a civil court arises from civil sovereignty, whose task it is to define what crimesare to find their punishment in a civil court, and what are to be left to the vengeance ofGod'. See Alan Watson's discussion in Failures of the Legal Imagination, Edinburgh,1988, 124.

42. The dilemma was not unique to Austin, for it can also be found in Bentham's unpublishedmanuscripts. But the dilemma was less evident in Bentham, since his sovereign was to bea reformist legislator. See M. Lobban, The Common Law and English Jurisprudence,1760-1850, Oxford, 1991. 155-84. For Bentham's natural jurisprudence, see DavidLieberman, The Province of Legislation Determined, Cambridge, 1989, 257-90.

43. Austin, Lectures, 1081.44. Lectures, 1073n.45. Lectures, 556.46. Lectures, 562.47. Lectures, 569.48. Lectures, 1073n.49. Lectures, 1073.50. Lectures, 571.51. 'Adverting to the known wisdom and the known benevolence of the Deity, we infer that he

enjoins or forbids them by a general and inflexible rule': Lectures, 114.

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52. Lectures, 124.53. Lectures, 116.54. Lectures, 139.55. Lectures, 144ff.56. Lectures, 679.57. Austin wrote: 'Taking the principle of general utility as the only index to the will of God,

every useful law set by the sovereign accords with the law set by God, or (adopting thecurrent and foolish phrase) with the law set by nature' (Lectures, 548). The reference to the'current' phrase may have referred to the use by German jurists of the phrase 'Naturrecht'.For another jurist who grouped Bentham, Austin, Hugo, Savigny and Puchta together (andin opposition to 'the rational universality of Kant'), see W. Hastie's preface to histranslation of Kant's The Philosophy of Law: An Exposition of the Fundamental Principlesof Jurisprudence as the Science of Right, Edinburgh, 1887, xix-xx.

58. Austin, Lectures, 543.59. Lectures, 652.60. Lectures, 547: 'In consequence of this relation, it is probable that it will be recognised

should a question ever arise, and it is therefore acted upon with almost as much assuranceas if it had actually received the judicial approbation.'

61. Lectures, 645-6.62. In discussing this, Austin referred to the distinction between legislating 'gesetzgebend' -

professedly legislating - and 'richtend' - professedly judging, discussed in Thibaut'sTheorie der logischen Auslegung der Römischen Rechts (Altona, 1806), a book aboutwhich he wrote, 'I am scarcely acquainted with any book which, within so small acompass, contains so much original thinking': Lectures, 632, 531-2.

63. Lectures, 627-8, 650.64. Lectures, 539.65. See Whitman, The Legacy of Roman Law, 109. Savigny particularly admired the Roman

situation: 'With the Romans, all depends on the jurist, by his thorough mastery of thesystem, being placed in a condition to find the law for every case that may arise. This iseffected by the precise individual perception of particular legal relations, as well as by thethorough knowledge of the leading principles, their connection and subordination': TheVocation, 108.

66. See Whitman's discussion of the Aktenversendungen in The Legacy of Roman Law,100-101, 135-50.

67. See,e.g., 'Special Pleading in England and ScotIand,'Law Magazine (NS)7 (1847) 141-2;'English and Scottish Judicature,' Law Magazine (NS) 10 (1849), 48-69.

68. In its report, 1846 Select Committee on Legal Education stated the function of a universitylaw school to be above all the study of 'the great and enduring principles on which all Law,whatever may be its local or temporal modifications, should rest, and which is no more thanthe highest morality, directed by the highest philosophy in action': Report from the SelectCommittee on Legal Education, Parliamentary Papers 1846 (686) X 1, at xlviii. Those whogave evidence before the committee, like E.S. Creasy, conceded that Roman law wasconsidered by many to be the most perfect system for philosophic clearness, but noted thatthe same could not be said of the common law. That was not a science, but an art: Report,p.30.

69. W.M. Best, 'The Common Law of England; with an examination of some false principlesof law reform,' Papers read before the Juridical Society 1855-1858, London, 1858,399-434; Herbert Broom, A Selection of Legal Maxims, London, 1845; George Harris,Principia Prima Legum; or an enunciation and analysis of the elementary principles oflaw, London, 1865.

70. E.g., J.G. Phillimore, Letter to the Lord Chancellor on the Reform of the Law, London,1847; Thoughts on Law Reform, London, 1847; and Introduction to the Study and Historyof the Roman Law, London, 1848; George Bowyer, Readings delivered before theHonourable Society of the Middle Temple, London, 1851.

71. See Saturday Review 2 (1856), 615. See also Saturday Review 11 (1861), 111. The questionnow was whether this was a feasible proposition: see Sir William Markby, 'Codification

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and Legal Education', Law Magazine and Law Review (Fourth Series) 3 (1878), 259-92 at276, 284.

72. T.E. Holland thus wrote 'it deals rather with the various relations which are required bylegal rules than with the rules themselves which regulate those relations'. Jurisprudence,13th edn, London, 1924, 6 (he referred here to Jhering's Geist, I, 334-5). See also A.V.Dicey's review of the first edition in 'The Study of Jurisprudence', Law Magazine and LawReview (Fourth Series) 5 (1880), 382-401.

73. Review of Sheldon Amos' The Science of Law, in Law Magazine and Review 3 (1874),691-702 at 693.

74. George Long, Two Discourses delivered in the Middle Temple Hall, London, 1847, 21.Long was one of the lecturers who recommended his students to read Thibaut and Savigny,but gave them lectures drawing largely on Austin.

75. See A.V. Dicey, 'The Study of Jurisprudence', Law Magazine and Review (Fourth Series)5 (1880), 382-401. Dicey noted (at 383) that judges would come to the same conclusionsthey arrived at via cases more quickly if they understood abstract concepts: 'It is indeedwith a sense of astonishment that persons who have once mastered Savigny's well-knowntreatise, find that a subject apparently so remote from it as English decisions on the natureof domicil exactly illustrates and confirms his account of the elements which are involvedin the term "possession".'

76. J.G.W. Sykes wrote in 1875 reviewing R. Campbell's students' edition of Austin'sLectures, that 'the ideal system of jurisprudence should embrace the permanent anduniversal facts in every system of law': 'Jurisprudence: a Review', Law Magazine andReview (NS) 4 (1875), 486-514 and 575-604, at 494.

77. Jurisprudence, 7. Holland cited Max Müller's Science of Language.78. The Science of Law, London, 1874, 7.79. Science, 19. Amos's view was premised on the assumption of 'the identity of man's

physical, logical, and ethical structure in all times and in all parts of the world'; Science,23.

80. A Systematic View of the Science of Jurisprudence, London, 1872, 11-15.81. Systematic View, 27.82. See Sir Edward Creasy, 'Jurisprudence: its leading Principles and Characteristics', Law

Magazine and Law Review (4th Series) 1 (1875-6), 63-88 at 69, and R.M. Pankhurst, "TheStudy of Jurisprudence', Law Magazine and Review (NS) 4 (1875), 730-51.

83. This was true of both those who were disciples of Austin and those who were not. See SirWilliam Markby, Elements of Law, Oxford, 1871,42; S. Amos, The Science of Law, 43-4,and D.C. Heron, Introduction to the History of Jurisprudence, London, 1860, 45.

84. The Pollock-Holmes Letters: Correspondence of Sir Frederick Pollock and Mr. JusticeHolmes. 1874-1932, ed. Mark De Wolfe Howe, 2 vols., Cambridge, 1942, 1, 51-2 (letterdated 11 May 1894). He later referred to Austin as 'that clever but very narrow and grosslyoverrated dialectitian": II, 263 (letter dated 17 April 1930).

85. 'Maine's Ancient Law', Quarterly Review (1861), 114-38 at 136.86. Austin's utlitarianism was widely criticised. See Maine, Early History of Institutions,

369-70. J.G.W. Sykes argued not only that Austin's chapters on utility were irrelevant, butthat they were themselves unconvincing in providing an index to the divine Will, as Austinhad hoped: Law Magazine and Review, (NS) 4 (1875, 501-8. Pollock also said that Austinerred in linking the utilitarian (ethical) discussions to the jurisprudence: Essays inJurisprudence and Ethics, London, 1882, 23. See also J. Bryce, Studies in History andJurisprudence, Oxford, 1901, 613, and The Pollock-Holmes Letters, I, 94 (letter fromPollock to Holmes 5 July 1899), and J.L. Montrose, 'Return to Austin's College'.

87. One apparent exception was W.T.S. Daniel, who told the Juridical Society in 1856 that heregarded 'the proper exercise of judicial discretion as the main spring of the law', and thatthe judges should be allowed 'the unfettered exercise of this discretion'. However, Daniel'sutility turned out to be the utility of the Bible, and argued that laws were drawn 'from theliving fountains of morality springing forth from revelation". 'On Change as an InherentNecessity in every system of Municipal Law; and on the means which exist in this countryfor influencing and regulating such change', in Papers read before the Juridical Society

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1855-58, London, 1858, 95-114 at 112.88. George Bowyer, Commentaries on Universal Public Law, London, 1854; Charles Francis

Trower, The Anomalous Condition of English Jurisprudence, considered with reference toa proposed fusion of law and equity, London, 1851; J.G. Phillimore Principles and Maximsof Jurisprudence, London, 1856; and An Inaugural Lecture on Jurisprudence and on theInfluence of the Canon Law, delivered in the Hall of the Middle Temple, London, 1851.

89. 'Public Law,' Law Magazine 52 (1854), 97-116 at 106. Not all natural law works were wellreceived, but the journals only tended to pan works which were inarticulate and confused,like Charles James Foster's Elements of Jurisprudence, London, 1853, which the LawMagazine called 'a tissue of abstrusities in thought and expression': Law Magazine 51(1854), 369-70.

90. C.S.M. Phillipps, Jurisprudence, London, 1863, 3.91. Jurisprudence, 23.92. Jurisprudence, 26.93. He wrote, 'Nothing has ever struck me as more unacceptable than the manner in which

some very able utilitarian writers have taken for granted that, according to the theory whichthey dispute, the nicest and most intricate questions of Right are to be decided by mereintuition. It is no wonder that Justice is treated as matter of experiment, if the onlyalternative is to treat it as matter of guesswork': Jurisprudence, 43.

94. Jurisprudence, 69-70.95. Law Magazine and Review 15 (1866), 394-5.96. Introduction to the History of Jurisprudence, 41. He quoted (at p.6) Henry Hallam's

Literature of Europe, 3rd edn, 1847, 586: 'if it is meant that ... the laws of each separatecommunity ought to be regulated by any universal standard in matters not depending uponeternal justice, we must demur to receiving so very disputable a proposition'.

97. Introduction to the History of Jurisprudence, 44, 61. His view was thus not of a fixedsystem of law, but a growing one, in which judges developed the common law, andlegislators pursued the greatest happiness of the greatest number (pp.66-7, 136-8).

98. Introduction, 19.99. Introduction, 35.

100. He therefore quoted Sedgwick: 'Every political as well as every moral principle practicallyinvolves the determination of the will, and thereby becomes at once separated from thatclass of investigations in which we consider the immutable relations of physicalphenomena': Introduction, 7.

101. Introduction, 777. For another work which mixed Austinian influences with the voice ofinner reason, see W.A. Montriou, Institutes of Jurisprudence, Calcutta, 1866. This workwas well-received: Law Magazine and Law Review 21 (1866), 326-7.

102. Inquiries on the Science of Law, London, 1847.103. Inquiries, 81-2.104. Inquiries, 91, 117.105. See Richard A. Cosgrove, "The Reception of Analytic Jurisprudence: the Victorian Debate

on the Separation of Law and Morality, 1860-1900', Durham University Journal 43(1981), 47-56. He argues for the importance of public opinion to later Victorian jurists: aswe shall see, their commitment to law lying in the community went even deeper than hesuggests.

106. There were still some intuitionists, however: see H.R. Fink, 'Law Philosophy: the RivalSchools', Law Magazine and Review (NS) 2 (1873), 541-53.

107. See James Lorimer, Institutes of Law, Reasons for the Study of Jurisprudence as a Science,Edinburgh, 1868; W.G. Miller, Lectures on the Philosophy of Law, London, 1884; W.A.Watt, An Outline of Legal Philosophy, Edinburgh, 1893. For critiques, see e.g., T.E.Holland, 'The Literature of International Law in 1884', 1 LQR (1885), 100-105, and F.Pollock, Essays in Jurisprudence and Ethics.

108. Thomas Chambers, 'Law, as Reflecting and as Moulding the Opinions and Habits of thePeople', Papers read before the Juridical Society 1855-58, London, 1858, 114-31, at115-20; W.M. Best, 'The Common Law of England; with an examination of some falseprinciples of law reform', Papers read before the Juridical Society 1855-58, 399-434. For

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another hostile approach to codification, see W.D. Lewis, 'Some Popular Errors concerningLaw', in ibid, 555-94.

109. Practical Jurisprudence - a Comment on Austin, Cambridge, 1883, 152. He referred toSavigny's System, 1.2.s7. Noting the existence of law before the rise of the state, he added,'I cannot perceive the gain of assuming a sort of transubstantiation, of which no one hasever been conscious, at a date which no one can fix, from the customary rule of positivemorality to the judiciary rule of positive law': ibid., 167.

110. Practical Jurisprudence, 172.111. The definition is that of F.M. Maxwell: 'Austin's Jurisprudence and its latest critic', Law

Magazine and Law Review 4th Series 10 (1884-5), 167-193 at 193. This was a revision ofMaine's characterisation of Austin, Early History, 313, 381.

112. Jurisprudence, 41.,113. Jurisprudence, 54.114. 'Morality plus a State-organisation enforcing the observance of certain parts of it is

customary law': Jurisprudence, 57.115. Jurisprudence, 60-61.116. Jurisprudence, 61-2.117. Outlines of Jurisprudence for the Use of Students, Oxford, 1881, 5.118. This meant that the 'sovereign' could be a loose concept, for Wise said it was not for the

jurist to determine what form the sovereignty took: 'Sometimes it has been the force of theentire society, sometimes the force of a portion, sometimes the force of the whole, wieldedby a portion; at times the primary sanction has been moral, at times religious, and at timeslegal; but some power has always existed which was able to execute the prevalent ideas ofright and wrong conduct towards others': Outline, 16.

119. J.M. Lightwood in The Nature of Positive Law, London, 1883, argued (at p.26) that '[t]heobject of Law is to regulate the relations existing between men in such a way as to satisfythe sense of Right residing in the community'. For Lightwood, there were certain classesof actions which affected the welfare of the community, which were governed by rules ofmorality evident to all. Subsidiary legal rules were necessary as society grew morecomplex; but for the author 'the rules thus formed are obeyed by the community naturally'(p.385).

120. Diodato Lioy's The Philosophy of Right with special reference to the Principles andDevelopment of Law, 2 vols., London, 1891, was translated by W. Hastie.

121. The Science of Jurisprudence Chiefly Intended for Indian Students, 2nd edn London, 1892, 8.122. Science, 62.123. He was praised for drawing 'on the works of Ihering, which notwithstanding the

praiseworthy exertions of Mr. Lightwood and others are not yet sufficiently known in theircountry': Law Quarterly Review 4 (1888), 469.

124. The Philosophy of Law, an Exposition of the Fundamental Principles of the Science ofJurisprudence as the Science of Right, trans. W. Hastie, Edinburgh, 1887, 27.

125. Law Magazine and Law Review (New Series) 13 (1887-8), 382-93 at 385-6.126. Richard A. Cosgrove writes, 'Pollock's ability to synthesis positivist and natural-law

doctrines into a single legal creed placed him in the forefront of Victorian jurists': OurLady the Common Law: An Anglo-American Legal Community, 1870-1930, New York andLondon, 1987, 146. However, Victorian philosophers found little of interest in Pollock'sjurisprudence, which was often confused. See W.L. Courtenay, 'Modern Ethics',Edinburgh Review (1881), 423-59 at 446-7.

127. 'Laws of Nature and Laws of Man' in Essays in Jurisprudence, 42-59 at 57.128. 'Law and Command' in Law Magazine and Review (NS) 1 (1872), 189-205, at 205.129. See The Expansion of the Common Law, London, 1904, 128: '[T]he Law of Nature is not,

as the English utilitarians in their ignorance of its history supposed, a synonym for arbitraryindividual preference, but ... on the contrary it is a living embodiment of the collectivereason of civilized mankind, and as such is adopted by the Common Law in substancethough not always by name'.

130. '[W]e might, if we chose, absolutely limit the field of observation to reported cases ...without any loss to the scientific character of our work': 'The Science of Case Law' in

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Essays in Jurisprudence, 237-60 at 244.131. 'The Science of Case Law', 252.132. Even A. V. Dicey, who argued so strongly for the influence of public opinion on the

development of law, noted that judges were not free in their use of opinion. For he arguedthat judges were not arbitrators: they did not decide what was fair between two parties, butdetermined 'what, according to some definite principle of law, are the[ir] respective rights'.For Dicey, the common law could reform and develop by the application to actual andvarying circumstances of clear principles. Lectures on the Relation between Law andPublic Opinion in England during the Nineteenth Century, 2nd edn, London, 1914, 483and 396.

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