Roger Cotterrell

Roger Cotterrell
THE POLITICS OF
JURISPRUDENCE
A Critical Introduction to
Legal Philosophy
Butterworths
For Ann, David and Linda, again
The Politics of Jurisprudence
A Critical Introduction to Legal Philosophy
Roger Cotterrell LLD. MSc (Soc)

Reader in Legal Theory in the University of London
(Queen Mary and Westfield College)
Butterworths
London and Edinburgh
1989
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Preface
This book aims to survey key theoretical contributions to the field

of modern Anglo-American legal philosophy in order to outline
debates about the nature of law which these contributions have
provoked. In this sense it is intended as a general introduction
to central areas of modern legal theory. However, it attempts
something more than most such general introductions. It seeks to
put the debates in the literature into a broader context than that
in which they are usually presented in introductory texts. It is
intended not just as a survey of central areas of the field but also,
more specifically, as a discussion of what Anglo-American legal
philosophy, in some of its dominant forms, is and has been for.
This involves examining approaches to legal philosophy in Britain
and the United States in the light of conditions in which those
approaches have emerged since the beginnings of modern legal
professionalisation in both countries. I argue in these pages that
the succession of dominant approaches in Anglo-American legal
philosophy since the nineteenth century - the approaches which
today make up much of modern jurisprudence - can usefully be
understood, to a large extent, as responses to particular political
conditions and also, especially, conditions of legal professional
practice. Thus, the book suggests that this legal philosophical
literature has helped to reinforce views about the nature of law
which have seemed important for the legal professions’ status and
objectives at particular times. And this legal philosophy has also
had some political significance insofar as it has promoted, reinforced
or reflected wider currents of political thought. The professional
and political roles of what is often seen as an esoteric region of
legal thought and literature ought not to be exaggerated. But it
is important to bring those roles to light.
This perspective may provide a way of showing that debates
in jurisprudence which tend to be portrayed as timeless, and which
often seem interminable and incapable of resolution, are better
understood as reflecting specific responses in legal philosophy to
pressures, developments and conditions arising in particular times
and places. Viewed in this perspective, such matters as the
v
vi Preface
controversies around modern theories of sovereignty, the enduring

(but problematic) appeal of legal positivism in its various forms,
the ebb and flow of natural law theory and the character of certain
varieties of sceptical theory in legal philosophy, appear quite
differently from the way they usually appear in standard textbook
treatments. This book claims that the patchwork of philosophical
views of the nature of law contained in modern Anglo-American
jurisprudence can be understood as a response to social and political
change - but a response shaped substantially by perceived problems
arising in the professionalisation of legal practice.
Such an interpretation is used here as an organising framework
for an introduction to major theoretical orientations in the subject.
Is it justifiable, then, to offer, as such a framework, what can be
no more than a tentative sketch of a way of looking at this material?
I think it is. First, this approach can suggest a structure or unity
in much of the vast, unwieldy mass of modern theoretical literature
on law which is not necessarily otherwise readily apparent. Secondly,
the approach may reveal this literature as more vital and engaged
in the practical affairs of law in society than it has sometimes seemed
to be and, indeed, than it has often presented itself as being. The
development of modern legal philosophy - at least in part - has
been a kind of running commentary on the changing conditions
of law in Western societies. If a limited attempt is made to put
legal philosophy ‘in context’ - particularly by bringing to light
assumptions contained within it about the social, political and
professional environment of law - it may be possible to appreciate
that some of legal philosophy’s central issues and debates have
a broader significance (for both lawyers and ordinary citizens) than
is often assumed. Finally, the question of what is and what has
been central’ in this field might be clarified and even reshaped
by the kind of approach adopted here. Indeed, in the case of most
major writers considered in these pages the ‘contextual’ approach
encourages a somewhat different assessment from that which
represents the current orthodoxy.
No attempt at comprehensiveness is made here, even within the
particular range of subject-matter highlighted. The book examines
contributions to theory which have been very influential in legal
philosophy in the Anglo-American common law world in the period
of modern professionalisation of law. It seeks to identify the general
orientations of each of these contributions, especially in the light
of their professional and political relevance. It is concerned with
detailed exegesis only insofar as this throws light on the central
issues with which the book is concerned. Most of the theory
discussed is indigenous to Britain or the United States but notably
Preface vii
influential imports from elsewhere are included where a knowledge

of them seems essential in understanding Anglo-American
developments. Each contribution is discussed insofar as it offers
a theory of law, that is, insofar as it tries to clarify theoretically
the nature of law, laws, or legal institutions in general. This emphasis
makes it possible to focus consistently on what I take to be a
unifying thread running through much of the diverse literature of
modern jurisprudence (while in no way denying the wide variety
of intellectual aims attributable to the theorists whose work is
discussed in these pages).
I hope that the book as thus conceived will provide a useful
introduction to the areas of theory it surveys and, at the same
time, a distinctive view of them. I hope also that its discussions
show why this theory needs to be studied in the light of its
professional and political ramifications, and how such a contextual
approach - far from undermining or ‘explaining away’ in
reductionist fashion what it examines - can actually demonstrate
the enduring value of this material more clearly than can most
traditional approaches to the subject. Legal philosophy, like law
itself, reveals its full significance only when considered in social
and political context.
These aims dictate the relatively straightforward organisation of
chapters. Chapter 1 elaborates the approach underlying the work
as a whole. Each of Chapters 2 to 7 then deals with a particular
cluster of contributions to legal theory, setting the discussion in
the context of wider problems to which that theory can be seen
as, in part, a response. Thus, these chapters focus on material which
has had great historical prominence in legal scholarship, and also
retains major significance in present-day jurisprudence. The final
chapter offers, in the light of the discussion contained in the previous
chapters, an assessment of the present position and likely destiny
of the approaches to legal theory with which this book is concerned.
I am especially grateful to my friend and colleague Dr David
Nelken for reading and commenting on several sections of the
manuscript, and for the stimulus of many productive conversations
on questions of legal theory. Parts of this book were written while
I was visiting professor and Jay H. Brown Centennial Faculty Fellow
in Law at the University of Texas, during the Spring Semester
1989. I benefited greatly from the research facilities and the
experience of teaching jurisprudence in that environment, both of
which have contributed significantly to this book. I am also grateful
to Queen Mary College for a term’s sabbatical leave during the
early stages of research on the project; and to Dr. M. W. Bryan
of Queen Mary College and Professor W. C. Powers of the University
viii Preface
of Texas Law School who also read and commented on parts of

the manuscript in draft. Parts of Chapter 6 are adapted from an
article which I previously published in the 1987 volume of the
American Bar Foundation Research Journal (pp. 509-24). The A.
B. F.’s permission for reproduction of some passages from that
essay is gratefully acknowledged. Finally, I owe thanks to my
children for putting up stoically with the disruption to their lives
which is caused by other members of the family writing books;
and to my wife, Ann Cotterrell, for her constant support and
encouragement through the whole period of researching and writing
this volume.
Roger Cotterrell
Faculty of Laws
Queen Mary College London
June 1989
Contents
1. Legal Philosophy in Context 1

Jurisprudence, Legal Philosophy and Legal Theory 1
Legal Philosophy and Legal Practice 4
Justifying Normative Legal Theory 6
Unity and System in Law 9
Professionalisation and Politics 12
Legal Philosophy in Social and Political Context 14
How Should Legal Philosophy be Interpreted
Contextually? 17
2. The Theory of Common Law 21

The Character of Common L^w Thought 22
The Common Law Judge 2^f
Can Common Law Thought Explain Legal
Development? 26
Common Law and Legislation 30
The Political and Social Environment 33
Savigny: A Theory for Common Law? 37
Maine’s Historical Jurisprudence 41
Maine on Politics and Society 44
Historical Jurisprudence and the Legal Profession 47
The Fate of Maine’s New Science 49
3. Sovereign and Subject: Bentham and Austin 52

_The Empire of Darkness and the Region of Light 54
^Positive Law and Positive Morality i 57|
The Coercive Structure of a Law
Sanctions and Power Conferring Rmes 63
/Sovereignty 67
Some Characteristics of Austin’s Sovereign 69
Must the Sovereign be Legally Illimitable? >^72
if The Judge as Delegate of the Sovereign ..757
Austin’s Theory of the Centralised State 77
Austin and the Legal Profession 79
ix
X Contents
4 . Analytical Jurisprudence and Liberal Democracy: Hart and

Kelsen 83
Empiricism and Conceptualism 85
Hart’s Linguistic Empiricism 87
The Character of Rule's 92
Sociological Drift 94
The Structure of a Legal System 96
The Existence of a Legal System 100
0 Hart’s Hermeneutics 101
^Judicial Decisions and the ‘Open Texture’ of Rules 103
Kelsen’s Conceptualism 106~
‘The Machine Now Runs By Itself 109
^Democracy and the Rule of Law 112
Conclusion 116
5. The Appeal of Natural Law 118

Legal Positivism and Natural Law 118
Is Natural Law Dead? 122
Natural Law and Legal Authority 125
The‘Rebirth’of Natural Law 127
^.Ânglo-American Lessons from the Nazi Era 129
The Ideal of Legality and the Existence of Law 132
A Purposive View of Law 136
Fuller and the Common Law Tradition 138
Politics and Professional Responsibility 142
Natural Law Tamed? 145
The Problem of the Creative Judge: Pound and Dworkin 150

pound’s Rejection of the Model of Rules 152
The Outlook of Sociological Jurisprudence 156
A Theory of Interests 159
The Search for a Measure of Values 162
The Wider Context of Pound’s Jurisprudence 164
(Dworkin and Pound '166
o
Pr’rinciples and Policies'~<4T68
TV
[The Closed World of Legal Interpretation 172
Politics, Professionalism and Interpretive
Communities 177
7. Varieties of Scepticism 182

Pragmatism and Realism 185
Realism and Normative Legal Theory 188
Llewellyn’s Constructive Doctrinal Realism 194
The Political Context of American Legal Realism 202
Contents xi
Post-Realist Policy-Science 206

Post-Realist Radical Scepticism 210
Legal Professionalism and the Legacy of Realism 213
8. The Uses of Theory 216

Some Political and Professional Uses of Theory 216
Who Is Listening? 220
Normative Legal Theory and Modern Legal Practice 223
Normative Legal Theory as a Partial Perspective 228
The Destiny of Legal Theory 231
Notes and Further Reading 236
References 258
Index 271
1 Legal Philosophy in Context
Most lawyers have little difficulty in recognising ‘law’ as a clearly

identifiable field. No deep reflection on the matter seems necessary.
Treated as the lawyer’s practical art or as the special expertise
possessed by a legal profession, law seems an area of knowledge
and practice with well understood unifying features and distinctive
character. In normal conditions of legal professional practice, there
may seem no need to think systematically about the character of
law-in-general, or to pose broad questions about the nature of legal
institutions. It may well seem enough for legal practice that the
lawyer has the expertise to deal with particular legal problems in
hand, knows or can find and interpret the specific areas of legal
doctrine - rules, principles and concepts of law - needed to give
clear legal answers to those problems, and has the appropriate
‘know-how’ to be able to recognise and make good use of
appropriate channels of influence and procedures by which the
legal resources of the state can be harnessed to clients’ interests.
Given the complexities of law and regulation, this kind of
understanding of law may seem as much as anyone could reasonably
ask of a legal specialist. In practice, the particular, the specific
and the appropriate are what count.
Jurisprudence, Legal Philosophy and Legal Theory
However, the legal realm can be looked at in ways that go beyond

the immediate experiences and needs of professional practice. Law
is assumed to be socially significant, although the nature of this
significance, and what kinds of study are appropriate to reveal
it, are always controversial matters. Law has long been thought
worth studying for its intrinsic philosophical or social interest and #
importance, which relates to but extends beyond its immediate
instrumental value or professional relevance. In this sense, law is
‘a great anthropological document’ (Holmes 1899: 444). In the
Anglo-American world the term most often used to refer to the
whole range of actual and possible inquiries concerned, in one way
or another, with this broader significance of law, is jurisprudence.

Jurisprudence is not united by particular methods or perspectives.
It includes work grounded in the diverse perspectives of the various
social and human sciences and of many kinds of philosophy (lay
and professional), as well as other intellectual disciplines.
Jurisprudence is, therefore, probably best defined negatively as
encompassing all kinds of general intellectual inquiries about law
which are not confined solely to doctrinal exegesis or technical
prescription. The qualification ‘general’ is important. If
jurisprudence is unified at all it is by a concern with theoretical
generalisation, in contrast to the emphasis on the particular and
the immediate which characterise most professional legal practice.
Thus, it has been described as the theoretical part of law as a
discipline (Twining 1984). But such a view is controversial insofar
as it ties jurisprudence firmly within a conception of some overall
disciplinary unity of law. Given the diversity of law and legal activity
and the sheer range of material and types of inquiry which can
be included within the scope of jurisprudence, this disciplinary unity
is perhaps a hypothesis to be examined rather than a postulate
to be assumed (Cotterrell 1986a).
The unwieldy category of jurisprudence can be further broken
down or even replaced with designations of more specific fields
or modes of inquiry. For example, legal philosophy can be taken
to encompass all philosophical speculation (rather than empirically-
based social scientific theory) on matters of law or related to law.
Thus, it excludes empirical social theories of law (such as those
associated with sociology of law) which would also be encompassed
by jurisprudence as defined above. Insofar as philosophy is
concerned with examining the conceptual apparatuses by which
human experience is interpreted, legal philosophy’s major focus
is on clarifying or analysing the ideas or structures of reasoning •
implicated in, presupposed by or developed through legal doctrine,
or which constitute the environment of thought and belief in terms
of which legal processes are justified and explained. It is not
concerned with empirical inquiries about law’s social effects and
about legal behaviour such as are pursued in sociological studies
of law. Legal philosophical inquiry in this sense cannot be clearly
demarcated from the kind of conceptual inquiries with which
sociology of law is concerned. The difference is perhaps primarily
one of emphasis. In legal philosophy generally, conceptual
clarification tends to be treated as much more important than -
and sometimes independent of — systematic empirical analysis of
Jurisprudence, Legal Philosophy and Legal Theory 3
legal institutions1 in their historical context and social environment.

By contrast, in sociology of law, analysis of law’s conceptual
structures is to be undertaken only in relation to this empirical
analysis.
This book is concerned with legal philosophy, but not the whole
of this huge field. The following chapters deal only with the part
of legal philosophy which contributes to what can be called legal
theory. Like the terms jurisprudence and legal philosophy, this term
is not used uniformly by different writers. Here, however, legal
theory is taken to refer to systematic theoretical analysis of the
nature of law, laws or legal institutions in general. It excludes, '
on this definition, those parts of legal philosophy concerned
primarily with the moral justification of particular aims or policies
related to or expressed in legal doctrine. Legal theory does not
directly address, for example, such matters as the nature of justice
as a general concept, the philosophical justification of particular
legal or governmental policies in relation to morally controversial
matters (such as abortion), or the general question of how far the
enforcement of moral principles as such is an appropriate task
of contemporary criminal law. Legal theory seeks specifically to
develop theoretical understanding^The nature of law as a social
phenomenon: While philosophical justifications of particular aims
ortask's of law are not irrelevant to this concern (and may follow
directly from certain types of legal theory, such as natural law
theory), they are not central to it.
It follows from this definition of legal theory that both legal
philosophy and sociology of law can and do contribute to it, the
latter in ways which are beyond the scope of this book (cf. Cotterrell
1984). For convenience, I term legal philosophy’s contributions
to legal theory normative legal theory and sociology of law’s
contributions to it empirical legal theory. Just as it was necessary
to note above that the distinction between legal philosophy’s
conceptual inquiries and those of sociology of law is often more
a matter of emphasis than of rigid demarcation, so the same is
true of these two kinds of legal theory. Discussion in subsequent
chapters will be directly concerned, however, only with those parts
of the literature of legal philosophy which in the past century or
1 By legal institutions I mean here patterns of official action and

expectations of action organised around the creation, application and
enforcement of legal precepts or the maintenance of a legal order. More
generally, throughout this book the word ‘institution’, in the sense of
social institution, refers to a system of patterned expectations with regard
to the behaviour of individuals fulfilling certain socially recognised roles.
Cf. Cotterrell 1984: 3.
so have sought to contribute to legal theory and, in doing so, have

exercised a dominant influence on the shape and outlook of modern
Anglo-American jurisprudence. Hence, this book’s focus is on the
development of normative legal theory in this context.
Legal Philosophy and Legal Practice
Since the 1960s, Anglo-American legal philosophy has become more

closely linked to academic philosophy in various ways. First, it
has been developed to a greater extent than previously by scholars
who see themselves as owing disciplinary allegiance to academic
philosophy, or dual allegiance to law and philosophy, rather than
to law. Secondly, issues and modes of inquiry in legal philosophy
have been increasingly influenced by the wider disciplinary concerns
of philosophy, rather than by issues close to the concerns of legal
practice. This drift towards academic philosophy threatens to make
legal philosophy esoteric in a way which - as this book seeks to
show - is at odds with its modern history. Indeed, it should be
kept firmly in mind that, apart from this very recent philosophical
professionalisation, legal philosophy, in the sense defined above,
has been an enterprise pursued, in modern times in the Anglo-
American environment, primarily by lawyers with little that today
would pass for professional philosophical training. Indeed, it may
be more appropriate to refer to them generally as jurists rather
than legal philosophers; as legal scholars with a speculative concern,
rather than members of any branch of a philosophical establishment.’
There is something puzzling about this state of affairs. What
have these speculating jurists, whose work today makes up a
considerable part of modern jurisprudence, seen as their role? What
has been the function of legal philosophy? What is its status as
an intellectual field in relation to other such fields and in relation
to the lawyer s professional knowledge of law? Clear answers to
these questions would help considerably in understanding the nature
and significance of issues and disputes which have arisen in the
literature of jurisprudence or legal philosophy. Yet, very rarely are
convincing answers given in general texts surveying the legal
philosophical components of jurisprudence. In this book, in
considering some areas of legal philosophy which dominate the
literature of modern jurisprudence, it will be necessary to try to
make some assessment of legal philosophy’s contribution to the
wider world of political and legal activities - including especially
the professional practice of law as it has developed since the mid-
Legal Philosophy and Legal Practice 5
nineteenth century during the period in which most of the theoretical

contributions discussed in this book were made.
Where could we begin to look for answers? Some relationships
between conceptual inquiries in legal philosophy and the concerns
of professional legal practice seem obvious. The everyday notions
which lawyers use include such concepts as justice, responsibility,
obligation, rights and duties, causation, validity, ownership,
possession, personality - all of them pregnant with philosophical
complexities and wide social significance. Insofar as legal philosophy
focusses attention on these kinds of concepts as they relate
specifically to legal settings in which lawyers have to play a role,
it seems merely a more general version of what lawyers do in
everyday practice in interpreting the complexities and contradictions
of legal doctrine. Further, a concern to identify conceptual inquiries
in jurisprudence specifically with issues relevant to professional legal
practice, may underlie the attempts of some writers clearly to
distance jurisprudence from (academic) philosophy. Thus, Julius
Stone writes that most of jurisprudence’s problems are in substance
different from those of philosophy, and that jurisprudence’s
classifications are acceptable to the extent that they allow its
concerns to be introduced to law students and discussed by lawyers
generally, in an orderly way (Stone 1964: 8, 16, 17). On this view,
jurisprudence’s major constituency is clearly a legal professional
one.
On the other hand, this legal professional constituency has long
tended to be distrustful of many aspects of the jurisprudential
enterprise, if not necessarily of all of them (cf. Cohen 1933: 327).
Even conceptual clarification in legal philosophy may not be valued
highly by those concerned with the practice of law, and sound
reasons can be constructed in defence of this attitude. First, much
legal practice does not involve issues of doctrinal interpretation
of sufficient depth to lead the lawyer into philosophical thickets.
The conceptual puzzles of legal philosophy, insofar as they deal
with issues of immediate practical significance, are usually puzzles
for appellate courts, not for most office lawyers or trial judges.
Issues of everyday practice are more often strategic or tactical than
conceptual; routine rather than innovative; issues of fact rather
than of law; and matters of care and competence rather than of
doctrinal creativity. But this is not always so, and some forms
of legal practice undoubtedly require high levels of conceptual
ingenuity and theoretical imagination.
Secondly, a more fundamental point can be made. Surely modern
Western law, by its nature, does not lend itself to broad conceptual
generalisation? It seems to be a mass of technicalities in no way
unified by broad principle or philosophically coherent concepts.

Certainly, lawyers seek rationality and system in legal doctrine.
Indeed, their ability to interpret that doctrine and predict the
outcome of litigation or the effects of legal documents and
transactions depends on this. But the rationality of modern law
is a piecemeal rationality. Legal doctrine is to be organised,
systematised and generalised just sufficiently to meet the needs of
the moment. Concepts are used pragmatically and not necessarily
with any concern for broad consistency of meaning (cf. Harris 1961).
Short-term strategy rather than broad-view conceptual rigour may
be what is significant. In complex modern legal systems, in which
doctrine undergoes rapid change and develops ever more technical
refinements of regulation, system and order in doctrine is something
to be created and recreated continually, as far as possible, to meet
the needs of professional practice. System and order - conceptual
clarity - is, however, produced (if at all) with the knowledge that
it cannot be more than provisional; valid until the next input of
new doctrine from legislation, judicial decisions, or administrative
rule-making.
These conditions of legal practice are not new, although the
complexity and scale of modern regulation has greatly increased.
They certainly raise doubts, however, as to why legal philosophy
should be thought significant for the professional world of law.
It seems necessary to look elsewhere for the functions legal
philosophy has fulfilled, at least in its contributions to legal theory,
unless we are to conclude that this legal philosophy has served
no functions in relation to the wider world of legal activities. If
the latter were true, however, it would still be necessary to explain
why an immense modern literature of the kind under consideration
in this book exists, and why some of that literature has had a
considerable impact on discussion and opinion among legal and
political elites. Finally, it would be necessary to explain why legal
philosophy’s contributions to modern legal theory have been,
predominantly and continuously, contributions by lawyers
addressed primarily to lawyers. Despite jurisprudence’s ostensibly
broad, open perspectives, the part of it under consideration here
has been very much a lawyer’s enterprise. Its whole intellectual
organisation has presupposed a single community within which
practising legal professionals and legal theorists are members.
Justifying Normative Legal Theory
The justifications which Anglo-American jurists have given for their

work in normative legal theory often emphasise its practical role

in improvement of law. For Jeremy Bentham, the English legal
reformer, this kind of theory was central to a science of law which
would provide a secure foundation for rational reform. Bentham’s
less radical follower John Austin, like many later writers, put more
emphasis on legal theory’s rationalising, systematising task - making
sense of the chaotic jumble of legal materials - and its educational
value in providing a ‘map of the law’ - a framework upon which
the detail of legal technicality could be arranged (Austin 1863: 379-
80; Clark 1885). For influential American theorists such as Roscoe
Pound and Oliver Wendell Holmes, legal theory could be justified
in even more explicitly instrumental terms. Pound refers to its
modern task as facilitating social engineering through law, with
the jurist cast in the role of expert in fair and efficient governmental
and judicial decision-making (see Chapter 6). For Holmes, the
engineering analogy gives way to an architectural one. ‘Theory is
the most important part of the dogma of the law, as the architect
is the most important man who takes part in the building of a
house’ (Holmes 1897: 477). Theory is the ally of the scientifically-
minded lawyer engaged in ‘the eternal pursuit of the more exact’,
the establishment of law’s principles ‘upon accurately measured
social desires’ (Holmes 1899: 452, 455).
Ronald Dworkin, one of the most influential of contemporary
legal philosophers, sees legal theory as justifying law and so guiding
and supporting the judge in the taslClsfTegaf interpretation: ‘If
a theory of law is to provide a basis for judicial duty, then the
principles it sets out must try to justify the settled rules by identifying
the political or moral concerns and traditions of the community
which, in the opinion of the lawyer whose theory it is, do in fact
support the rules’ (Dworkin 1977: 67, emphasis in original).
Other theorists are more ambiguous in asserting practical
relevance, subsuming this in wider intellectual justifications. For
both the English jurist H.L.A. Hart and the Austrian Hans Kelsen
- who worked for many years in the United States and has
significantly influenced modern Anglo-American jurisprudence -
legal theory could be justified as clarifying through conceptual
inquiries the nature of law as a social phenomenon. Thus Hart
(1961: vii) suggests that clarification of the nature of legal ideas
can cast light on the social contexts in which they are used. Kelsen
describes law as a ‘specific social technique’ (Kelsen 1941a) and
sees his task as, in part, to show clearly through an examination
of the nature of legal knowledge and reasoning where its specificity
lies. In both cases the reference to the ‘social’ should not mislead
the reader into thinking that the theory proposed is sociological
in orientation. It remains, like all normative legal theory, grounded

in abstract philosophical speculation, rather than in empirical
examination of actual patterns of legal behaviour or actual social
and historical contexts in which law exists. Nevertheless, where
serious attempts to understand the wider cultural resonance of law’s
conceptual frameworks are undertaken in legal philosophy, it may
become sensitive to sociological dimensions of law to an unusual
extent.
Finally, some other writers treat the appropriate role of legal
theory as a ‘debunking’ or demystifying one - not to rationalise,
justify, clarify or improve the conceptual structure of law, but to
expose it or explain it away. Certain tendencies in legal philosophy
which can be labelled ‘sceptical’ in one sense or other, seem in
their most radical manifestations to be concerned not to praise
law’s abstract conceptual structures but to bury them. The explicit
justification for these kinds of approach is usually that they offer
‘realism’; they explain realities about law which are obscured in
orthodox legal thought and other legal theory; they look behind
legal doctrine to the political positions, individual and social
interests, or personal value judgments (for example, of judges or
other legal decision-makers) which doctrine may hide. How deep
the radicalism of these approaches runs and whether they are to
be seen as providing a substantial rejection of (rather than a
supplement to) the more general characteristics of normative legal
theory outlined in this chapter, are matters to be explored later
in this book. Examples of these sceptical legal theories are discussed
in Chapter 7.
Given such a diversity of implicit or explicit aims underlying
modern Anglo-American legal philosophy’s contributions to legal
theory, generalisation becomes dangerous. As subsequent chapters
will suggest, the relationship between particular kinds of theory
and the political and legal professional environment of the time
in which they developed varies. Jurisprudence and legal philosophy
are made up of bodies of literature which have been intended to
serve different purposes at different times. Further, whatever the
motivations of particular theorists, any influence which their work
has actually had on professional or political life may be equally
varied. And the collecting together of this material in legal education
- as part of taught jurisprudence courses - often reflects yet other
considerations, expressed in such aspirations as to relate ‘the law
to the spirit of the time’ (Laski 1967: 577) or to provide in legal
education ‘an orderly view of the law’s “external relations’” with
other fields of knowledge (Stone 1966: 30). All these matters are
important in considering the nature of legal philosophy in general
and normative legal theory in particular. The latter is typically

treated as a cumulating corpus of knowledge focussed on a single
concern to ‘theorise law’. Indeed, by definition, this is what
normative legal theory is. But it would be unwise to assume more
consistency of aim and effect than is implied by this purely
definitional unity.
Unity and System in Law
So the puzzle still remains. What if anything can be said, in general

terms, about the significance in the practical world of affairs of
legal philosophy’s contributions to legal theory? What all of them
seem to have in common is that, in some way, they attempt to
offer a general perspective on the nature of law. This frequently
involves trying to demonstrate some kind of unity of law. The search
for unity can be pursued in many different ways, however. It may
involve trying to identify a consistent moral or cultural foundation
of legal regulation which validates and gives moral meaning and
social authority to laws. It may entail trying to show how the entirety
of legal rules and regulations can be seen as part of a single rational
structure, or how legal reasoning entails consistent methods or
epistemological assumptions, or how the diverse elements of legal
doctrine applicable in a particular jurisdiction (for example, England
and Wales, or the United States) link to form something which
can actually be understood as a system of elements organised in
a unified whole. It may involve a search for a purposive unity
of law, so that all its elements are to be interpreted and evaluated
in terms of some fundamental objectives (for example, social, moral,
economic or political) which they are thought to serve. Unity is
sometimes sought in a common source of authority of laws, or
in consistent patterns of legal reasoning which appear as law’s
unifying characteristics.
Unity may be sought in a universal sense, so that the law of
all times and places is seen as necessarily having common
foundations. In modern Anglo-American legal philosophy this
approach is rare but is exemplified in the claims of the American
jurist Lon Fuller that the very nature of rules as a legal mechanism
of government presupposes certain universal moral criteria of their
development and application in any social context (see Chapter
5). More typically, however, modern legal theory tries to explain
how the law of a particular nation, state or jurisdiction can be
thought of as a legal system, with all its diverse rules and regulations
somehow rationally or purposively interconnected and yet clearly

distinguished from the components of other such systems.
These kinds of inquiries may seem highly abstract, but they are
very relevant to practical legal reasoning and problem solving. This
is because they involve examining the background assumptions in
relation to which those practical activities take place. Thus, when
lawyers recognise uniform general tests which determine in a legal
system which rules are valid as (for example, English or American)
law or which decisions have legal force, they seem to presuppose
the distinct identity of the system as a whole; that there are conclusive
means of distinguishing the legal from the non-legal and marking
the boundaries of legal doctrine. Equally, some similar
presuppositions about the distinctiveness of ‘the legal’ are entailed
when it is necessary to develop a general conception of what can
count as legal arguments, or justiciable issues, in contrast with
non-legal or non-justiciable ones (see e.g. Craig 1983: 485-6).
Finally, legal reasoning links rules together and presupposes that
the legal relationship between them can be conclusively determined.
For example, it deals with such questions as: What is the position
if the rules conflict? What is their relative authoritativeness? In
what circumstances can one rule determine the validity of another?
In doing so, this reasoning presupposes an internal structure of
the legal system, and a theory of the relationship between its
elements. Thus, unity as a practical matter entails two things. It
entails predictably consistent internal relationships of elements
(rules, principles, concepts, decisions, etc.) within a legal system.
Equally, it entails predictably consistent external relationships
between the system and what lies outside it, so that the determination
of the legal from the non-legal (for example, legal rules from moral
rules; judicial decisions from political decisions) can be a reliable
one.
This need to mark out what is ‘internal’ to law and what ‘external’
shows itself in many different ways besides those just mentioned.
The internal-external dichotomy is complex and many-sided but
closely connected with the problem of demonstrating some kind
of unity of law or some kind of distinctiveness of legal thought
or reasoning. One writer notes: ‘the very unity of a field of knowledge
[such as law] is comprised in its delimitation from other fields
of knowledge’ (Tur 1978: 158). Given what has been said earlier
about normative legal theory’s typical concern with system and
unity in law it is unsurprising that the problem of the internal-
external relationship pervades it. This is explicit, for example, in
the influential work of H. L. A. Hart (1961), who distinguishes
what he calls internal and external views of legal (and other) rules.
Unity and System in Law 11
The internal view is that of legal ‘insiders’ who orient their thinking
in terms of legal rules treated as guides for conduct - whether
or not the rules are approved by such insiders. For Hart, however,
the internal view is certainly not restricted to lawyers. He defines
it in such broad terms that it encompasses many different kinds
of perspectives of citizens on law. The external view seems to be
restricted to those who cannot really reason with rules at all or,
for their own purposes, see no point in doing so (see Chapter 4).
Another way of looking at the internal-external dichotomy is
illustrated in the recent writings of Ronald Dworkin. Dworkin sees
legal questions as, essentially, questions of interpretation. One can
understand what the law is, in a particular community, only by
becoming involved as a participant in the ‘game’ of interpretation.
Judges and lawyers, of course, are so involved, and - according
to Dworkin - so also are legal philosophers. By contrast, on the
‘outside’ is anyone who rejects or avoids involvement in these
interpretive debates which determine the content and meaning of
law. Thus, Dworkin puts matters very differently from Hart. In
particular, because for Dworkin insiders - participants in the
interpretive exercise - actually determine the law, knowledge of
law is essentially restricted to these participants. They can and do
include ordinary citizens, as Dworkin (1977: 214-5) makes clear,
but it is hard to see that the citizen will usually be able to compete
effectively in interpretive debate with the professional community
of lawyers and judges on the meaning of laws. Consequently,
Dworkin’s image of the internal-external dichotomy seems to move
us closer to a parallel distinction between legal professional insiders
and other outsiders (see Chapter 6).
These brief remarks on areas of theory which will be considered
in later chapters at least suggest that the internal-external dichotomy
can refer to several different kinds of demarcation. It may focus
on the distinction of‘legal’ phenomena or characteristics from ‘non-
legal’ in many contexts - for example, with regard to rules, systems
of doctrine, types of reasoning, institutions or decisions. It may
focus on the idea of a distinctive Field of legal knowledge or
understanding, separable from other knowledge-fields; or on the
idea of a community of legal ‘insiders’, distinguishable from
outsiders in some consistent way; or on the idea of a distinct
professional practice of law, marking lawyers off from other
occupational groups or from lay citizens.
Professionalisation and Politics
The concern of normative legal theory with such matters as unity,

system and the internal-external dichotomy can, therefore, be linked
not only with practical problems in interpreting law within a legal
system but also with characteristics or conditions of legal
professional organisation. A sociologist viewing a legal profession
and its members’ practices might emphasise the profession’s
collective claim to possess special professional skills or knowledge
as central to its continuing assertion of distinct professional status
(e.g. Larson 1977: 231). The clear marking out of what count as
legal knowledge, legal reasoning and legal issues might be thought
of as the identification of an autonomous professional field, a field
of special legal expertise, belief in which helps to ground and
maintain the lawyer’s professional status. Undoubtedly, this
conscious identification of a distinctive legal realm in explicit terms
is not something lawyers normally need to worry themselves with.
It has often been taken for granted as has the idea of a secure,
distinctive and autonomous professional knowledge and expertise
centred on an identifiable field of law. Equally, the idea of this
autonomous legal field might not necessarily be important to all
forms of legal practice, or to professional practice in all times and
places. There might be more important conditions for securing and
maintaining status than the acceptance of the claim to possess
special, distinctive expertise and knowledge. But this claim has been,
and may still be important in certain contexts. In subsequent
chapters an attempt will be made to show that legal philosophy’s
varied images of law as unified or systematic have sometimes been
powerful, in particular conditions and at particular times in the
development of modern Anglo-American law, in helping to reinforce
the idea of a special professional knowledge and expertise
underpinning lawyers’ claims of professional status.
Equally, attempts in legal philosophy to explain a unity,
distinctiveness or systematic character of law may have a wider
political significance. They may suggest, for example, how far law
can be considered separate from politics. Obviously, some
provisional conception of ‘the political’ is necessary if this issue
is to be raised. Accordingly, for this limited purpose, we can take
politics to refer to the struggle to acquire and make use of power
(cf. Weber 1948: 78), especially through established institutions and
formal processes, and without resort to direct violence. On such
a view, the most widely visible and extensively organised politics
naturally centres on what is thought of as ‘government’ and the
state. Law is clearly related to the political. But what is the
Professionalisation and Politics 13
relationship? How far can legal reasoning and judicial decisions

be seen as different and distinct from policy argument and political
decisions? Are legal institutions to be thought of as special or
specialised, as regards their functions, forms, character or
controlling values, in comparison with (other) political institutions
associated with government, administration and the varied activities
of the state. If legal reasoning, decisions and institutions do have
particular unifying, distinguishing features, should law be
considered a distinct aspect of politics or government, or should
the ‘legal’ be counterposed to the ‘political’? How far should legal
institutions be treated as ‘independent’ of political institutions?
These issues are not unimportant when questions about the
legitimacy or authority of a legal system, its laws and its institutions,
are raised. They help to define law’s place in society and the degree
of autonomy which law can be considered to have in relation to
other aspects of society or political life. Hence, the kind of
demarcation of the sphere of law, which normative legal theory
tends to offer in terms of unity, system, distinctiveness and the
internal-external dichotomy, might be far from insignificant in
influencing views on the scope and limits of - and relationships
between - legal and political actions and issues.
A postulated relationship between normative legal theory’s
demonstrations of unity or system in law, on the one hand, and
legal professionalism and the political context, on the other, provides
a merely provisional framework within which to consider, in the
following chapters, some influential currents of Anglo-American
legal philosophy. Such a framework does, however, make it possible
to look at this material in a less abstract manner than is usual,
and to keep consistently in mind some relatively concrete questions:
what practical relevance in wider professional and political arenas
of law do legal philosophy’s contributions to legal theory have?
What insights do particular types of normative legal theory provide
for issues of legal and political practice? How can we best understand
the significance of ideas and debates in this literature? How do
they relate, if at all, to particular historical conditions, to changes
in Anglo-American law itself during the period in which the
literature has developed, and to changes in the situations of
professional practice? What assumptions about the nature of
societies are being made in these writings which purport to clarify
the nature of law? In this way a literature that often seems highly
abstract and whose concerns seem frequently ahistorical can be
confronted with the specific context and conditions which have
shaped it but which are rarely admitted explicitly and directly in
the theory itself.
Legal Philosophy in Social and Political Context
Objections might be raised to this kind of emphasis in interpreting

normative legal theory. Does this theory have no intellectual
significance in its own right? Why emphasise its professional or
political ramifications when its explicit concerns are not normally
these but are frequently expressed in terms of general philosophical
curiosity, a desire to understand law better, or to interpret it in
broader terms than those of everyday legal practice?
An answer might begin by noting some well recognised difficulties
in interpreting normative legal theory without a serious attempt
to locate its abstractions in specific historical contexts. The first
of these difficulties tends to be acutely felt by undergraduate students
of jurisprudence, whether or not generally admitted by legal
philosophers. There is often a sense that in the battle of abstract
arguments no-one ever wins, and, further, that there are no reliable
criteria by which one could recognise victory anyway. The disputes
seem timeless; the issues never resolved. Philosophy in this state
of affairs appears to lead nowhere. The jurist Tony Honore wrote
of one such fundamental theoretical dispute: ‘Decade after decade
Positivists and Natural lawyers face one another in the final of
the World Cup. . .. Victory goes now to one side, now to the other,
but the enthusiasm of players and spectators alike ensures that
the losing side will take its revenge’ (Honore 1973: 1-2; cf. Honore
1987: 32-3). Perhaps this interminable dispute (which will surface
in subsequent chapters) reflects issues of such supreme difficulty
and significance that agreement can never be obtained. But if so,
should the debate continue? Or should it be restructured with its
elements related to particular contexts, times and places, and the
causes and conditions of disagreement made the centre of attention,
rather than the abstract battles themselves? Otherwise, at legal
philosophy’s cup finals, perhaps ‘the legal theorist can only cheer
or jeer, label his opponent a moral leper or a disingenuous romantic’
(Honore 1987: 33).
Secondly, there seems good reason to suggest that the timelessness
of many debates in normative legal theory is not just due to the
intractability of abstract issues. Clearly legal philosophy must relate
at many points to what it treats as legal experience - that is to
lawyers’ and judges’ (and, to a lesser extent, citizens’) knowledge,
understanding and use of particular elements of legal doctrine and
particular legal processes. Inevitably, its claims are tested for
plausibility against this experience. Yet, still it seems that little
progress is made. Perhaps there is something suspect about the
testing process itself, or about the way legal experience is being
interpreted. One writer has recently suggested that although Hart’s

fundamental contribution to normative legal theory has been shown,
even by some of his staunchest defenders, to be replete with
uncertainties and difficulties, these defects have seemed irrelevant
to its immense reputation and influence (Campbell 1988). If this
is true it is, at least, puzzling.
Perhaps changing intellectual fashions related to the changing
social context of legal development have been relevant to the
assessment of some theories, as the legal scholar William Buckland
claimed in discussing John Austin’s mid-nineteenth century English
jurisprudence. At the age of 85, Buckland noted how attitudes in
the legal world to Austin had altered since Buckland’s late nineteenth
century youth: ‘He was a religion; today he seems to be regarded
rather as a disease’ (Buckland 1949: 2). The general point seems
strengthened when it is realised that, in Austin’s case as in some
others, a particular part of the writer’s theoretical enterprise - and
not necessarily that which he considered most fundamental - is
consistently treated in most later commentary as if it were his entire
theoretical contribution2. Such matters require explanation, as do
consistent misrepresentations of a jurist’s ideas, where such
misrepresentations are sufficiently widespread to assume the
proportions of myth. Again, Austin has been claimed as a victim
of this kind of misrepresentation (Morison 1982: 170-7).
These kinds of problems are clearly not unique to normative
legal theory. They suggest, however, that, if we are to try to
understand how legal philosophy has developed and how its debates
and disputes have been formed and conducted, the answers cannot
be found entirely in the logic of philosophical argument. They are,
in part at least, located in the wider context of ideas and activities
in which theories are developed and evaluated. Reasons have already
been suggested in this chapter for considering that context to be,
in part, professional and political. The approach to understanding
legal philosophy adopted in this book, therefore, in no way denies
the significance of the substantive content of legal philosophy’s
debates about the nature of law. It argues, however, that that content
is to be understood not as timeless but as a response to conditions
and problems existing at particular historical moments in Western
legal development.
By its nature, normative legal theory tends to exclude systematic
consideration of the social context of law. It does so in two ways.
First, unlike the empirical legal theory which is a major concern
of sociological studies of law, normative legal theory, as it has
2 See on this e.g. Moles 1987; Sugarman 1986: 43.

been defined in this chapter, attempts to explain the nature of law

almost exclusively through philosophical analysis and clarification
of the values, concepts, principles, rules and modes of reasoning
entailed in or presupposed by legal doctrine. Empirical legal theory,
by contrast, relies heavily on systematic empirical analysis of legal
institutions in their social environment and historical context. These
behavioural and contextual inquiries relating to law are largely
absent from normative legal theory.
Secondly, as argued earlier in this chapter, normative legal
theory’s concern to offer a general account of the nature of law
tends to entail the creation of some sharp internal-external
dichotomy, marking the legal from the non-legal. Since what is
being attempted is often a rigorous clarification of the concept
of law (or laws), it follows that this clarification seems to be attained
best if the concept is analysed to distinguish conclusively the legal
from the non-legal and so to show how the components of the
legal can be explained and interpreted without reference to non-
legal criteria. It should be said immediately that in most normative
legal theory no claim is made that this can be totally achieved.
If it could be the result would be a total ‘closure’ of the legal
as a self-contained realm of knowledge.
The view taken in this book is that legal theory, as the attempt
to understand law as a social phenomenon, should require that
the limited, partial perspectives of particular kinds of participants
in legal processes - for example, lawyers, judges, legislators,
administrators, various categories of citizens - be confronted with
wider theoretical perspectives on law which can incorporate and
transcend these more limited viewpoints in order to broaden
understanding of the nature of law. While there are many difficulties
in the way of pursuing this objective of transcending partial
perspectives, it may be the one which has guided most serious
attempts to advance knowledge. Normative legal theory has,
however, usually been produced from the perspectives of very
specific kinds of legal participants - especially lawyers. Thus, it
has often served systematically to express (rather than to challenge)
their outlook; to confirm and refine their view of the nature of
law while being influenced by their special practical needs with
regard to the ordering and interpretation of legal knowledge.
Normative legal theory is often said to be concerned to answer
the question ‘What is law?’. But if this were really so it would
surely explicitly seek to look at law from many perspectives: not
just in terms of unity and system and the internal-external
dichotomy, but also in terms of law’s social origins and effects;
not just philosophically but also sociologically; not just as concepts
but also as behaviour (cf. Chapter 7); not just in terms of logical
structures and rational foundations of doctrine but also through
rigorous historical study of legal institutions. Thus, it might be
said that normative legal theory in general has not seriously
addressed the question ‘What is law?’. It has more typically asked
how it is possible to organise, in an intellectually satisfactory way,
the diversity of doctrinal materials associated with legal regulation.
But, in trying to answer this question it has often implied a great
deal about the nature of law in society.
This book, therefore, is a discussion of normative legal theory
which tries to adopt a broader view of what is required for an
adequate legal theory than that which normative legal theory itself
often presupposes. To remain true to that broader view the
discussion seeks consistently to read normative legal theory ‘in
context’; to suggest the wider implications of some of this literature
and what has promoted or inspired it, as well as to discuss its
major claims and arguments about law.
How Should Legal Philosophy Be Interpreted Contextually?
The method advocated here is related to those now widely adopted

in several other intellectual fields. A recent writer on social theory
asserts the value of emphasising ‘the non-theoretical “conditions
of existence” of theory’ and the need to examine what he calls
theory’s ‘external and internal history’; that is, not only the pattern
of its intellectual development but also the pattern of events and
conditions which have provided the environment and stimulus of
that development (Elliott 1987: 8, 9). Equally, if the word ‘legal’
is substituted for ‘political’, Quentin Skinner’s influential
interpretive outlook on political theory has much relevance for
an understanding of normative legal theory: ‘[legal] life sets the
main problems for the [legal] theorist, causing a certain range of
issues to appear problematic, and a corresponding range of
questions to become the leading subjects of debate’. This view does
not entail that theoretical ideas are to be treated as ‘a straightforward
outcome of their social base’, but they are certainly to be read
in terms of their wider intellectual context (Skinner 1978: xi).
However, more is involved than just a reading of ideas in social
and intellectual context (cf. Stone 1964: 5). They are also to be
considered as far as possible in terms of their origins and effects.
This can be a highly complex matter but one which may be integral
to an understanding of the development of theories and their
interrelations. For example, it cannot be assumed that there is a
direct line of intellectual development which threads its way as

a kind of triumphal progress of increasing enlightenment as one
major theory or theoretical approach is refined and eventually gives
way to a later one. As suggested earlier, ideas and theoretical
orientations seem to be adopted and discarded in ways which cannot
simply be explained in terms of intellectual superiority or inferiority.
The great figures of Anglo-American normative legal theory do
not necessarily appear as a succession of writers diligently building
on their successors’ work in a continuous intellectual endeavour3.
It seems that the wheel is sometimes re-invented. Equally, central
concerns of earlier writers are sometimes simply discarded or
ignored by later ones. The impression is not one of continuity.
To try to link in a historical development the contributions of
a few major theorists is often like trying to see a route from one
mountain top to the next without casting one’s gaze down to the
valleys between the mountains where the travellers’ tracks actually
wind. This is not to deny that leading theorists explicitly relate
their ideas to what they take to be the ideas of their predecessors.
It is merely to assert that these relationships are much more complex
than they are often made to appear.
The sociologist Karl Mannheim well expressed some aspects of
this problem in writing of what he termed the ‘illusion of the
immanent flow of ideas’. ‘The works of the past appear to the
scholar as pictures in a gallery - an array of discrete entities. The
temptation to construe this array as an organic and continuous
growth is well-nigh irresistible to those who confine their interest
to the historical records of creative expression. What is ignored
in this imagery are the intervening areas in which men act as social
beings’ (Mannheim 1956: 30). Thus, while ideas have intellectual
origins and may exert intellectual influence, these relationships and
lines of development may be mediated by social factors - the acts
of people as ‘social beings’. In relation to legal ideas, these factors
may relate - as has been suggested earlier - to professional and
political considerations.
This is not, however, a book about intellectual history, but about
theories which are major components of contemporary Anglo-
Ameiican jurisprudence, or have provided essential foundations
of it. Thus, a concern with context is solely for its contribution
to a more satisfactory understanding of the nature of these theories.
How then, finally, is it possible to reconcile a concern for ideas
Cf. Collini, Winch and Burrow 1983: 4, noting parallel problems in

interpreting the development of what is now seen as political science.
How Should Legal Philosophy Be Interpreted Contextually? 19
on their own terms, with a concern to interpret them in terms

of their consequences and origins?
Earlier it was suggested that normative legal theory generally
propounds a sharp dichotomy between the legal and what is external
to law. The clear marking out of a realm of the distinctively legal
is characteristic of much of this literature. And certainly, from
particular points of view - especially those of the lawyer anxious
to know clearly what rules and regulations are valid as law - it
makes good sense to treat law as if it can be identified as a wholly
distinct realm. But it will be suggested in the following chapters
that normative legal theory has had only partial success in this
demonstration of legal distinctiveness (and related claims about
law’s unity or systematic character). To the extent that it has tried
to portray a distinct field of specifically legal knowledge it has
often failed to show the autonomy of that knowledge from
sociological, political or moral conditions or ideas. Indeed, partly
because ‘the legal’ can never be totally separated from such matters
which normative legal theory often treats as external to law, the
theory itself often implies interesting ideas about the very social
context which it apparently seeks to exclude from its concerns.
It will be important to highlight these ideas in subsequent chapters
since they often reveal very important presuppositions on which
normative legal theory is based.
Any study of law must make some provisional identification of
its subject-matter. Such a marking out does not, however, require
the kind of exclusory definitions of law which some normative
legal theory has defended. If a rigid internal-external dichotomy
is hard to accept in considering law, a productive replacement for
it is an approach which tries to understand both the insistent attempts
to defend an autonomous realm of legal knowledge and the
conditions which equally inspire and seem to defeat those attempts.
Hence, normative legal theory itself needs to be looked at from
the ‘inside’ and the ‘outside’ since each kind of viewpoint is
inadequate without the other. The theory should be viewed on
its own terms and in context. Each contribution to normative legal
theory should be assessed for the persuasiveness of its particular
explanation of the legal reality it chooses to emphasise. Equally,
it should be viewed as a reflection and expression of a climate
of thought, a particular perspective on law which is sociologically
interesting insofar as that perspective has been influential or an
important intellectual response to developments in law as a field
of practice or experience. Thus, a view of normative legal theory
in context is an attempt to relocate its perspectives on legal reality
within a broader perspective of a ‘larger’ social reality, of which
both the activity of philosophising about law and the particular

legal experience philosophised about form only a part.
The following chapters discuss particular contributions to theory
which have powerfully influenced Anglo-American ideas about the
nature of law in general. Their order of treatment seems to me
to correspond roughly to a progressive unfolding of the difficulties
normative legal theory has faced in attempting to portray, in
changing conditions, the unity, structure or autonomy of modern
law, especially in the Anglo-American world.
2 The Theory of Common Law
Any serious attempt to understand the dominant ideas which have

surrounded Anglo-American law must begin by confronting the
great tradition of thought and practice summed up in the words
‘common law’. The mere sound of them ‘thrills the hearts of all
good English lawyers’, according to an eminent French legal scholar
(Levy-Ullmann 1935: 3). However that may be, the common law
tradition is rooted in centuries of English history. It emphasises
the centrality of the judge in the gradual development of law and
the idea that thig-Ja y/ is found in thr. distillation and continual
course, modern law is predominantly legislative in origin. The

production or refinement of legal doctrine bv judges according to
time-honoured common law approaches is increasingly
subordinated to other ways of making or, statineiaw: for example
in atamior>L4LravisiQias, numemus, forms ol_dekgatedJlegislatiQa.
administrative regulations, directives, guidelines and.codes . of
Practice. Nevertheless, common law thought as a way of
conceptualising law and reasoning with it still exerts a fundamental
influence in those jurisdictions, which have inherited its historical
legacy. Comparative lawyers still refer to a common law ‘family’
of legal systems. And in English legal education and scholarship,
the ‘common law frame of mind continues to overshadow the way
we teach, write and think about law. Its categories and assumptions
are still the standard diet of most first-year law students; and they
continue to organise law textbooks and case-books’ (Sugarman
1986: 26).
This purpose of this chapter is to establish the general theoretical
ideas about the nature of law and its place in society which underpin
the common law tradition. By doing so it is possible to identify
some of the earliest and, in a sense, most fundamental normative
legal theory from which modern Anglo-American legal philosophy
has built its images of law. The theoretical problems which common
law thought poses have had to be confronted in this modern legal
philosophy, and, as later chapters of this book will argue, they
remain to haunt it. The place of the judge in the legal and political
order; the relative significance of community values and political

power as foundations of law; the relationship between interpretation
of law and legislative activity - these are some of the fundamental
problems which the theory of common law poses and attempts
to answer.
Although this book is concerned with the relevance of legal theory
for the situation of law in society today, common law thought
cannot be understood without taking a long historical view. Its
character has been shaped by centuries of English legal practice.
Consequently the picture of common law’s theoretical outlook
presented in this chapter has to be pieced together from ideas and
events widely scattered in time and place. Classical common law
thought certainly does not present a kind of legal theory comparable
with the explicit, systematic theories developed in modern legal
philosophy. But, as will appear, it has provided conceptual building
blocks for much later legal theory.
The Character of Common Law Thought
What is common law? A limited, but direct, historical answer might

be that it consists of the rules and other doctrine developed gradually
by the judges of the English royal courts as the foundation of
their decisions, and added to over time by judges of those various
jurisdictions recognising the authority of this accumulating doctrine.
Henri Levy-Ullmann notes that the expression la Commune ley,
is used, from the end of the thirteenth century onwards in the
ancient reports of legal arguments known as the year-books, ‘in
contra-distinction to terms denoting legal rules derived from sources
other than those upon which the King’s judges normally based
their decisions’ (Levy-Ullmann 1935: 4; cf. Blackstone 1809 I: 68).
So common law, as the law of common jurisdiction applied by
these courts, was distinguished from various kinds of special or
local law. Much later, the term came to refer frequently to judge-
made or judge-declared law in contrast to legislation.
But how far is this common law an affair of rules? Here, as
in many other inquiries about classical common law thought it
is important to avoid imposing on the common law tradition modern
interpretations reflecting views about law derived from wholly
different theoretical premises (especially those to be discussed in
Chapters 3 and 4). To write of common law as a system of rules
(cf. Neumann 1986:244-5) is to impose just such an alien conception
on it. A commentator remarks on the surface ‘chaos’ of judicial
decisions, underlying which is, however, ‘an internally coherent
The Character of Common Law Thought 23
and unified body of rules’. But he goes on to note that ‘principles’

of law stand behind these rules and, in common law thought, are
more important than them (Sugarman 1986: 26). In fact, however,
it is probably more true to common law tradition to see its essence
not in rules at all. ‘To represent it as a systematic structure of
rules is to distort it; it is to represent as static what is essentially
dynamic and constantly shifting’ (Postema 1986: 10). The idea of
common law as principles of law seems more appropriate for
capturing this shifting, dynamic character, if only because principles
suggest flexible guidelines for legal decision-making rather than
rules which control.
Much more lies behind all this than a terminological quibble.
As Brian Simpson has noted, if common law’s existence is thought
of in terms of a set of rules ‘it is in general the case that one
cannot say what the common law is’ (Simpson 1973: 16). This
is because it is impossible to mark out conclusively such a rule-
set corresponding to common law. While some continental writers
have interpreted the common law as a ‘complete, closed and logically
consistent’ system (Neumann 1986: 245), Simpson seems on much
firmer ground in saying: ‘As a system of legal thought the common
law. . . is inherently incomplete, vague and fluid’ (1973: 17). Thus,
for Jeremy Bentham, the great English legal reformer, who insisted
that law should be a matter of clear rules, common law was no
more than ‘mock law’, ‘sham law, ‘quasi-law’. Judicial development
of law exemplified ‘power everywhere arbitrary’ (quoted in Simpson
1973: 16).
Issues of the clarity and completeness of law therefore arise.
Common law resides in judicial decisions rather than rules. But
something stands behind the decisions, justifying them, guiding them
and giving them authority as law. For the American jurist Roscoe
Pound, common law is ‘a mode of treating legal problems’ rather
than rules. But principles of common law shape rules (Pound 1921:
1). Pound also identifies the spirit of common law in distinctive
institutions: ‘supremacy of law, case law and hearing of causes
as a whole in open court’ (1921: 2). Associated with these are the
institution of trial by jury and ‘judicial empiricism’ (Pound 1921:
ch 7) - pragmatic case-by-case decision-making guided by past
judicial precedents; a method of working that, for Pound, ‘combines
certainty and power of growth [of law] as no other doctrine has
been able to do’ (1921: 182). But still it can be asked what, if
anything, unifies these institutions and what gives them legal
authority or legitimacy.
Common law’s unity has been attributed to ‘the fact that law
is grounded in, and logically derived from, a handful of general
principles; and that whole subject-areas such as contract or torts

are distinguished by some common principles or elements which
fix the boundaries of the subject. The exposition and systematisation
of these general principles, and the techniques required to find
and to apply them and the rules that they underpin, are largely
what legal education and scholarship [in the common law
environment] are all about’ (Sugarman 1986: 26). Indeed, a long
tradition of thought sees the classical essence of common law in
broad legal guidelines, as much concerned with how to reach proper
judicial decisions (Simpson 1973: 21), as with the specific content
of them. On this view it is best seen as ‘a method of legal thinking’
(Cohen 1933: 333) or of deciding disputes. A.V.Dicey, using terms
similar to those of the eminent eighteenth century jurist Sir William
Blackstone (cf. Blackstone 1809 I: 67), wrote at the end of the
nineteenth century of common law as a ‘mass of custom, tradition
or judge-made maxims’ (Dicey 1959: 23-4).
Maxims of common law symbolised the broad guidelines which
could be considered to underlie and direct loosely individual
decisions. One writer examining a crucial period of common law
development in the first half of the seventeenth century remarks
that maxims ‘were the essential core of the common law, woven
so closely into the fabric of English life that they could never be
ignored with impunity’; as ‘high level general principles or
fundamental points of the law’ they were used in interpreting the
past decisions of the courts - evaluating their significance as
precedents to be applied to new cases (Sommerville 1986: 94).
Maxims, indeed, were far more important than precedents
themselves. In modern times, as legal doctrine became more detailed
and complex, these maxims lost their force and have ceased to
be of much practical significance. But they point to the enduring
idea that the heart of common law is not in specific decisions or
in rules distilled from them but in broad notions which are difficult
to unify or systematise, but which may, indeed, in some way, be
‘woven into the fabric of life’.
Because many of these notions are extremely hard to pin down,
the unifying element of common law often seems mystical.
Sometimes in classical common law thought it is portrayed as a
vague historical destiny, a working out in history of an obscure
but immanent logic of the law, or a kind of superhuman wisdom
reflected in the collective work of the common law judges
throughout the centuries but impossible for any single person to
possess. Thus, for Blackstone, law is ‘frought with the accumulated
wisdom of ages’ (quoted in Postema 1986: 63). And Coke CJ, early
in the seventeenth century, wrote: ‘we are but of yesterday. . . our
The Character of Common Law Thought 25
days upon the earth are but as a shadow in respect of the old
ancient days and times past, wherein the laws have been by the
wisdom of the most excellent men, in many successions of ages,
by long and continual experience. . . refined, which no one man
(being of so short a time) albeit he had in his head the wisdom
of all the men in the world, in any one age could ever have effected
or attained unto. And therefore. . . no man ought to take upon
him to be wiser than the laws’1.
The Common Law Judge
Though such statements date from long ago they express honestly
and directly a set of assumptions which underpin the classical
conception of common law judging. According to the declaratory
doctrine of common lajw, judges do not make law2. They are, in
Blackstone’s words, ‘the depositories of the laws, the living oracles,
who .must decide in'alTcases of doubt’ (Blackstone 1809 I: 69).
The authority of law is seen as a traditional authority. The judge
expresses a part of the total, immanent wisdom of law which is
assumed to be already existent before his decision. The judge works
from within the law which is ‘the repository of the experience of
the community over the ages’ (Postema 1986:32). Thus, even though
he may reach a decision on a legal problem never before addressed
by a common law court, he does so not as an original author
of new legal ideas but as a representative of a collective wisdom
greater than his own. He interprets and applies the law but does
not create it. for the law has no individual authors. It is the product
of the community grounded in its history. Judicial decisions,
according to Matthew Hale writing in the seventeenth century, do
not make law ‘for that only the king and parliament can do’ but
are evidence of law, and ‘though such decisions are less than a
law, yet they are a greater evidence thereof than the opinion of
any private persons, as such, whosoever’ (quoted in Levy-Ullmann
1935: 56). Thus the judge is spokesman for the community about
its law, but a particularly authoritative spokesman.
Such a viewpoint could lead to apparently radical conclusions.
A judge could mistake the law (Postema 1986: 9-11; 194-5).
Blackstone (1809 I: 70) writes: ‘The doctrine of the law then is
this: that precedents and rules must be followed, unless flatly absurd
1
Calvin’s Case (1608) 7 Co Rep 1, 3.
2 See e.g. per Lord Esher MR in Willis v Baddeley [1892] 2 QB 324,
326.
or unjust’. But law (wiser than any individual) is the perfection

of reason, so an unjust or absurd decision cannot be declaratory
of the law. It is not bad law but, in Blackstone’s view, no law
at all. It follows that the doctrine of precedent - the doctrine that
judges are bound to treat as binding on them the essential legal
grounds of decision adopted in similar cases previously determined
in courts of higher or perhaps equal status - is a complex one
in classical common law thought. It is also perhaps much more
flexible than it is typically portrayed as being. The judge must
attach great weight to previous decisions, not onjy^lQjr,,!piajQticsl
and political reasons (maintaining sufficient certainty in legal
doctrine, avoiding usurpation of the legislative function) but also
for thLQIdj^,a^£as.QXlS. Those decisions provide, in general, the
best available evidence of the collective wisdom of the common
law. An individual judge or court must subordinate individual
reasoning and values to those enshrined in the law. On the other
hand, the reasoning and values of the law are greater than those
not only of the presently deciding judges, but also of any of the
precedent-creating judges of the past. Hence the theory of common
law does not dictate a slavish adherence to precedent. Even where
prior judicial decisions can be considered to state accurately the
common law, a later judge is bound not by those decisions but
by the principles implicit or explicit in them (cf. Postema 194—
5). Further,' while classical common law thought, denies that the
judge is creative as a maker of law, he is not mêiyâ^slve*^--.
a finder or revealer (Levy-Ullmann' 1935: 54) of it. The judge is
the privileged representative of the community, entrusted with its
collective legal wisddm” which he is authorised to draw upon
constructively in order to produce solutions to novel issues raised
before the court.
Can Common Law Thought Explain Legal Development?
A paradox seems to lie at the heart of classical common law thought.

Common law as the embodiment of ancient wisdom is revealed
by judges, not created by them. It is, therefore, always already
existent. Yet obviously it develops with the accumulation,
reinterpretation and restatement of precedents and the adjustment
of legal doctrine to new circumstances reflected in the never-ending
succession of cases brought before courts (cf. Pocock 1957: 36-
7). How is the evolution of law explained in this conception? And
why is it not possible to assert openly that judges make law, even
if only within strict limits which would fix them as clearly
Can Common Law Thought Explain Legal Development? 27
subordinate to recognised legislators, such as (in the context of

English history) a parliament or the monarch?
The formal answer to this last question is that law embodies
an ancient wisdom which may, according to some conceptions of
common law, be considered timeless or, according to others, be
seen as continually evolving through collective experience. On either
view judges can only reflect this wisdom and not change it. In
some classical common law thought the claim of timelessness is
taken to fantastic lengths. Influential seventeenth century lawyers,
such as Sir Edward Coke, ‘argued on the flimsiest evidence that
the common laws, including their most detailed procedural
provisions, dated from the earliest times’ (Sommerville 1986: 90).
Even Magna Carta was treated as declaring ancient law, confirming
and making enforceable rights which had long existed (Sommerville
1986: 98). Coke claimed that in all its major parts the law and
constitution had remained unchanged since the Saxon era and even
before (Postema 1986: 19). These strange views were always
controversial but the reason for asserting them at times when the
authority of common law was seriously challenged (as in the early
seventeenth century) is not hard to see. This authority was
traditional in nature. Rooting it in a distant or even mythical past
emphasised that it was certainly not derived from the present power
of any monarch or other political authority.
The authority or legitimacy of common law as a legal order
entitled to the highest respect was seen as residing not in the political
system but in the community. If a judge made law this could only
be as an exercise of political power. The deliberate making of law
would be a political act. But according to common law theory,
the authority of the judge is not as a political decision-maker
(certainly not as delegate of the king or parliament) but as
representative of the community. Hence he has authority only to
state the community’s law, not to impose law upon the community
as if he were a political ruler or the servant of one. And the
community is to be thought of here as something uniting past and
present, extending back through innumerable past generations as
well as encompassing the present one. Clearly, if the term
‘community’ were to be defined rigorously in this context it would
be necessary to ask who exactly is within this community and what
is its nature. It would also be necessary to consider the compatibility
of this communitarian conception of law with the fact that the
judges referred to here are judges of the royal courts, the instruments
of a centralised justice promoted by kings. But such issues are
typically absent from classical common law thought. Thus, common
law is, for Coke, simply ‘the most ancient and best inheritance
that the subjects of this realm have’ (quoted Sommerville 1986:

103).
The usual way of conceptualising this apparently unchanging
inheritance in classical common law thought is as custom. As Brian
Simpson remarks, it is odd nowadays to think of law in this way
because lawyers are used to treating this law as posited by the
judges. But this is another example of the tendency to impose alien
modern theoretical conceptions on common law (Simpson 1973:
18). Just as common law is not strictly to be thought of, in the
classical conception, as rules, neither is it to be thought of as
decisions. To term it ‘a residue of immutable custom’ (Sugarman
1986: 40) is more accurate, but does not confront the fact that
common law thought embraces complex notions explaining and
justifying past practices (not just stating them as custom) and
providing guidance for future conduct. Equally common law
thought allows the development of new doctrines and ideas, so
has a dynamism which custom may lack. Because of these
characteristics Simpson (1973: 20) prefers to term common law
customary law, rather than custom. But this hardly seems to solve
the theoretical problem of its development. Customary^ law still
has the character of custom, looking back to the past rather than
guiding the future. It is concerned with stating established practice
rather than with means of developing legal doctrine to meet changing
times.
The problem here is not that custom is changeless. There is no
reason why it cannot be considered to change over time. Law as
an expression of custom can, therefore, also change. The problem
is that common law thought itself cannot really address this change
or explain it as a legal process. The mechanisms of change are
in society (or the community). Law changes solely through the
mysterious processes by which custom changes. To explain or even
recognise explicitly processes of legal change, classical common
law thought would require some kind of sociological or
anthropological insight. But the common lawyers were hardly
sociologists. Common law thought predated any modern social
science and, in any event, its practical case-by-case view of legal
development would have found little room for any explicit general
theory of social or cultural change. So classical common law thought
emphasised continuity (which it could interpret legally in terms
of precedents and fundamental principles), rather than change (for
which it could find no specifically legal criteria of evaluation).
Historically, the conundrum of law as changeless yet always
changing was avoided by devices made possible by cultural
conditions. Common law was considered to be unwritten.
Can Common Law Thought Explain Legal Development? 29
Blackstone (1809 I: 67), following Hale, distinguished ‘the common

law, or lex non scripta of this kingdom’ from the written law of
Acts of Parliament. Even though this unwritten law was eventually
reported in written form, the fact that the law itself was still
considered unwritten presumably allowed individual innovation to
be forgotten, subsumed in the image of a changeless collective legal
knowledge. As the anthropologist Jack Goody has noted about
societies lacking writing, it is not that the creative element is absent
in them or that ‘a mysterious collective authorship, closely in touch
with the collective consciousness, does what individuals do in literate
cultures. It is rather that the individual signature is always getting
rubbed out in the process of generative transmission’ (Goody 1977:
27). Certainly common law’s unwritten character was seen as one
of its strengths, making possible ‘a flexible system which had
developed along with the English people itself (Sommerville 1986:
91).
In the early ages of common law the lack of writing allowed
a convenient amnesia. Blackstone wrote in the eighteenth century
that ‘in our law the goodness of a custom depends upon its having
been used time out of mind; or, in the solemnity of our legal phrase,
time whereof the memory of man runneth not to the contrary.
This it is that gives its weight and authority’ (Blackstone 1809 I:
67). The traditional authority of common law required that its
customs be shrouded in antiquity. But in the Middle Ages two
or three lifetimes would be enough to make a principle of common
law immemorial (Pocock 1957: 37); ‘in ten or twenty years a custom
was of long standing; in forty years it was ’age-old” (Gough 1955:
14). Later the flexibility of memory was less satisfactory. When,
in the seventeenth century, lawyers such as Coke found it necessary
to assert with the greatest possible force the traditional authority
of common law against the king, the ‘idea of the immemorial
. . .took on an absolute colouring. . . It ceased to be a convenient
fiction and was heatedly asserted as literal historical truth’ (Pocock
1957: 37). It can easily be seen, therefore, that common law thought
eventually backed itself into a corner. First, the idea that the law
was unwritten eventually became a mere fiction as the common
law was recorded - preserved, explained and digested in written
form in public records, law reports and ‘the authoritative writings
of the venerable sages of the law’ (Maine 1861: 8; cf. Blackstone
1809 I: 73). Secondly, the purely traditional authority of the law
eventually demanded an utterly unrealistic claim of unbroken
continuity from ancient times. And, finally, the declaratory theory
of common law judging had to be maintained in the face of abundant
evidence of conscious judicial innovation in legal doctrine (cf Levy-

Ullmann 1935: 53).
Three responses to this situation were possible. One was to declare
that common law possessed no authority by which it could develop
further. Legal innovation could only come through Acts of
Parliament, or other legislative acts. Thus, as one judge put the
matter, ‘It is in my opinion impossible for us now to create any
new doctrine of common law’3. A second response was to embrace
openly the idea that judges sometimes make law, discard all fictions
and go on to ask serious questions as to how and under what
conditions they should make it. But this pragmatic approach also
involved discarding all the standard assumptions underpinning the
authority and legitimacy of common law. Traditional authority
would need to be replaced with something else - perhaps the
charismatic authority of individual wise judges, a conception of
delegated political power (see Chapter 3) or, as in the United States,
the authority of a specific constitutional document providing the
ultimate foundation of legal and judicial systems (Cotterrell 1984:
241-3). In any event such a new foundation of judicial authority,
if it could be found, would be something different from that
presupposed in classical common law thought.
A third solution was to discard the notion of common law as
custom and the formal idea of an unchanging ancient law, and
to emphasise instead the complex conception of the judge as
spokesman of the community - neither individual creator of law
nor mere restator of ancient truths, but representative of an evolving
collective legal consciousness4. As will appear later, this view of
common law thought, which maintains what might be considered
fundamental elements in it but avoids the cul-de-sac of an appeal
to custom, has been reflected in various forms of modern legal
philosophy. It is restated in the historical jurisprudence to be
discussed later in this chapter, and reworked in various ways in
the writings of certain modern authors, such as Roscoe Pound and
Ronald Dworkin, considered in Chapter 6.
Common Law and Legislation
So far legislation - the deliberate creation of new law by a formal
3 Per Farwell LJ in Baylis v Bishop of London [1913] 1 Ch 127, 137.

Cf. Mirehouse v Rennell (1833) 1 Cl & F 527, 546 (per Parke J).
Cf. Hale s interpretation of the evolution of common law discussed
in Postema 1986: 19-27.
law-making body such as Parliament - has received hardly any

mention in this discussion. But in classical common law thought
the relationship between legislation and the law-finding of the courts
had to be settled not just as a practical and political matterr but
as a theoretical one. How should legislation be viewed from the
standpoint of common law theory? Nowadays, English lawyers
generally have no doubt that in a conflict between statute law and
judge-determined law, the former prevails over the latter. It is of
superior-legal-authority. Equally most lawyers (and probably most
non-lawyers) have no doubt that judges in the higher courts
frequently make law through their decisions, whatever classical
common law theory may suggest. But there is much doubt as to
how far judges are justified in doing so. We have considered the
explanation of judicial authority which classical common law
thought gives. How does it explain the relationship between
legislation and common law?
In English history, statutes only gradually emerged as something
clearly distinct from common law. In medieval times, legal opinion
treated them as performing ‘in a more explicit and general way,
the same task which occupied the judiciary’ (Postema 1986: 15)
- stating customary common law. Early statute law could be
regarded as part of common law (Postema 1986:24). In an influential
study, Charles Mcllwain described the English parliament of the
Middle Ages as a court, with its statutes considered as no more
than affirmations of common law (Mcllwain 1910: ch 3; Levy-
Ullmann 1935: 232-3). Some of Mcllwain’s claims may be
exaggerated (Gough 1955: ch 1) but the general picture of a slow
historical separation of statute and common law and a gradual
emergence of the idea of deliberate law creation by a formal body
seems clear.
Concern here is not with historical events but with strands of
theory related to them. As such, it is possible to see a common
law theory of legislation emerging. In the seventeenth century, in
the great struggle between royal and parliamentary power which
culminated in the English Civil War and Revolution and its
consequences, common lawyers ‘elevated Parliament to a position
of near-sovereignty, while at the same time insisting that unwritten
custom was superior to statute law’ (Sommerville 1986: 95). As
Parliament’s supremacy in law creation was affirmed, common law
thought treated the authority to enact statutes as, itself, grounded
in common law. It followed that Parliament could not abolish the
whole of the common law without abolishing itself (Sommerville
1986: 95), although it could obviously overrule - with legal if not
necessarily moral force - particular principles of common law or
decisions founded on them. Thus, although an Act of Parliament

was ‘the exercise of the highest authority that this kingdom
acknowledges upon earth’ (Blackstone quoted in Manchester 1980:
33), common law authority, in a sense, ‘trumped’ that of Parliament.
Parliamentary supremacy over common law was claimed as given
by common law. Legislation could be thought of as an island or
archipelago in a broad sea of common law (Postema 1986: 18).
This suggests why it remained possible in common law thought
up to modern times to treat legislation as somehow peripheral to
common law despite the ever-increasing bulk of enactments.
Similarly, such a view justified a restrictive approach to legislation,
which should be interpreted so that it could be integrated into
the common law (Postema 1986: 17), at least where ambiguity or
uncertainty of legislative meaning allowed this.
This view of legislation could hardly be satisfactory in modern
times and always entailed inconsistencies. It certainly did not mean
that judges were superior to Parliament (Blackstone 1809 I: 91;
Levy-Ullmann 1935: 236-7). In Coke’s time, for example, the threat
of royal pressure on the judges would have made any such doctrine
dangerous to the image of law as the defence of the subject’s liberties
(Sommerville 1986: 96). Coke wrote of Parliament’s power as
‘transcendent and absolute’, although according to one view he
may have been thinking of Parliament in its old sense as the highest
court of the land and thus still the instrument of common law
(cf. Grey 1978: 856). But, in any case, common law thought had
to recognise that from early times ‘novel law’ in Acts of Parliament,
ordinances, provisions and proclamations ‘defeated’ common law
(Gough 1955: 14-5). It seems that the common law outlook could
not come to terms with modern legislation in a realistic way. It
offered a powerful defence of the jurisdiction of common law judges
as autonomous, while fully recognising the supremacy of
Parliament; and it explained the role of the judge in interpreting
legislation as one derived from his position as declarer of the
community’s law, not as the servant of a political legislator. But
it failed to provide an adequate theory of the political authority
underlying legislation. It remained firmly rooted in a social world
predating the modern legislative state. Conversely, as will appear
in the following chapters, the theories which challenged common
law thought and provided powerful justification for state law¬
making often remained ambiguous or unsatisfactory in their
explanation of the sources of judicial authority. The idea of judicial
authority rooted in community remains perhaps the strongest, most
vibrant, contribution of common law thought. Its explanations of
political law-making through legislation remain perhaps its weakest,

flimsiest elements.
The Political and Social Environment
So far, in this chapter, common law thought has been presented

merely as a set of abstract conceptions of law’s attributes. But
how does common law thought view the social and political
environment of law? How might it help to define the lawyer’s place
in society and the relationship between law and politics? Since no
attempt is being made here to present any part of the history of
common law thought as such, a few illustrations of very general
contextual considerations may be sufficient to suggest further
dimensions of what has been sketched here as the classical theory
of common law.
Legal Knowledge and Community

Common law thought has no rigorously developed conception of
the nature of law’s social environment. The term ‘community’ seems
to capture best the vague assumptions about the nature of this
social setting which are presupposed in common law thought. Yet,
although law is assumed to be deeply rooted in this environment
and to derive essential meaning from it, the nature of the
environment remains largely unelaborated. Gerald Postema sees
the common law image of community as entailing a ‘broad
consensus and an already constituted social unity’, which is
confirmed and maintained by common law decisions but not created
by them (Postema 1986: 19). But almost the only thing which can
be said with certainty about social life in common law terms is
that law is an aspect of it, inseparable from the rest. The American
jurist James Carter probably best expressed this in asserting that
‘Law, Custom, Conduct, Life - different names for almost the same
thing - true names for different aspects of the same thing - are
so inseparably blended together that one cannot even be thought
of without the other. No improvement can be effected in one without
improving the other, and no retrogression can take place in one
without a corresponding decline in the other’ (Carter 1907: 320;
cf Hale quoted in Postema 1986: 73). The common lawyers saw
society through the lens of law. In a sense, society was the structure
of relations, customs, claims and obligations expressed in legal
knowledge.
But what kind of knowledge is law? In the classical conception
common law is, above all, rational, excelling all other human laws
in rationality (Sommerville 1986: 89, 92-5). But there are probably
at least two conceptions of rationality at work here. Common law
entailed a kind of particularistic analogical reasoning making it
possible to link cases and compare precedents (Postema 1986: 31).
It could thus tolerate broad illogicalities arising out of particular
analogical linkages of ideas or cases. Equally, however, common
law is, for Blackstone, ‘a rational science’ of ‘general and extensive
principles’ (Blackstone 1809 I: 2, II: 425). Therefore, such a view
might permit illogicalities of detail within an overall framework
of broad principle5. Reason could, consequently, serve opposite
roles in linking detailed particularities or broad tendencies in legal
thought. There is, thus, no simple key to unlock the assumed
rationality of common law.
In particular, there is no key which an untrained person could
use. If the law is that of the community it is, nevertheless, inaccessible
to most members of the community, at least in detail. According
to common law thought, law is not natural reason but refined
or artificial reason which, as Coke asserted, ‘requires long study
and experience, before that a man can attain to the cognisance
of it’6. Although the law is reason, reason alone will not give mastery
of it. Experience of the practice of law (such as the common law
judge possesses) is also essential (Postema 1986: 33, interpreting
Hale), and apprenticeship is the most appropriate means of
acquiring it. Thus, obviously, actual knowledge of law is denied
to the community. This knowledge is necessarily - by its nature
- the monopoly of lawyers, who appear as the absolutely
indispensible representatives of the community in stating,
interpreting and applying the community’s law.
The point is strengthened by aspects of the linguistic history
of common law. ‘Legal ideas were transmitted largely orally, and
even the available literary sources were, as late as the seventeenth
century, written in a special and partly private language’ (Simpson
1973: 21). After the Norman conquest the language of the English
common law courts became Norman French and then a unique
‘Franco-English jargon’, long maintained as such by the lawyers
for documents, despite efforts to change the language to English
by statute (Levy-Ullmann 1935: 123-4). Only in 1731 was there
finally a conclusive enactment making English, rather than Latin
5 Cf. Lord Devlin’s remarks in Hedley Byrne & Co Ltd v Heller & Partners
Ltd [1964] AC 465, 516.
6 Prohibitions del Roy (1608) 12 Co Rep 63, 65. Cf. Pound 1921: 61 •
Sommerville 1986: 89, 93-4.
or French, the exclusive language of court proceedings, requiring

records to be made in legible writing rather than obscure ‘court
hand’, and forbidding abbreviation of words7.
There is, therefore, an apparently profound inconsistency
between, on the one hand, the thoroughly esoteric form in which
legal knowledge existed and, on the other, the way classical common
law thought understood law as having ‘developed along with the
English people itself (Sommerville 1986: 91); or as ‘a part of the
lives of men’ (Holmes 1897: 473). The assumed link between law
and community has a primarily symbolic significance in common
law thought, wholly different from any modern notions of
participation or popular justice. It would be wrong to characterise
common law knowledge as ‘professional knowledge’ since the
‘artificial reason’ of the law predates the emergence of an organised
legal profession in any modern sense. Nevertheless, the classical
common law conception of law was undoubtedly admirably suited
for the promotion of the collective status of lawyers as a group.
On the one hand, the implied deep community roots of law suggested
that legal knowledge was a central part of the collective wisdom
of society. It was therefore of the greatest social significance and
the possessor of it spoke with obvious authority. On the other
hand, what the historian Maitland called the ‘occult science’ of
law (Maitland 1893: 483) was defined in such a way that no-one
but legal practitioners could have access to it. Although all these
clairns about the community roots of common law and about the
inevitable ‘artificiality’ of its reason could be (and were) challenged
at various times, their forceful advocacy served very well the interests
of common lawyers as a group.
Common Law Thought and Political Authority

The relationship between law and politics in classical common law
thought derives directly from the ambiguous relationship between
law and community discussed above. Again, it will be sufficient
to illustrate some aspects of the political significance of common
law thought by taking a few themes from a very complex history.
How does common law thought view the political realm?
Essentially, it finds great difficulty in recognising such a realm in
any modern sense. English common law still has no definite and
elaborated concept of the state (Maitland 1901; cf. Buckland 1949:
ch 7) and refers instead to the Crown. Originating in a social order
in which political authority could be conceptualised as a set of
7
Statute 4 Geo. II, c. 26.
private property rights held by monarchs or their subordinates

(Cohen 1933: 41ff.), common law thought recognised royal
authority, and later parliamentary authority, as given by common
law or by some fundamental principles of reason underlying it.
Maitland made great play of the fact that, when the king died,
‘we see all the wheels of the State stopping or even running
backwards’ (for example, litigation stopped and had to be restarted;
military commissions had to be renewed) since there was no coherent
general conception of a continuing abstract political authority
(Maitland 1901: 253; cf. Stoljar 1958: 27-30). Today such problems
are of merely historical interest. The inadequacies of common law
conceptions were marginalised long ago by legal solutions reflecting
other theoretical views of law and politics, or by purely pragmatic
legal developments. But they illustrate again the fact that common
law thought cannot easily come to terms with the concept of the
modern legislative and administrative state with its complex network
of intersecting and self-renewing authorities.
Classical common law thought did not really produce a theory
of the relationship of law and politics either. In the great political
struggles of the seventeenth century in which common lawyers,
such as Coke, sought to protect the authority of common law against
the claims of monarch and parliament, the main theoretical effort
was, it seems, to elaborate and extend common law’s authority
claims. Thus, if the roots of its authority are in an intertwining
of reason and tradition, both of these elements were elevated or
exaggerated in ways which emphasise their centrality for any theory
of common law, and the fact that they are entirely independent
of political authority.
Common law’s reason was often claimed to be derived from
God’s reason (Sommerville 1986: 92). Certainly, as has been noted
earlier, it was considered to transcend the reason of individuals,
however wise. Thus a fundamental natural law of reason was held
to inform common law, allowing highly controversial claims to
be made in a few famous seventeenth century cases that ‘when
an Act of Parliament is against common right and reason, or
repugnant, or impossible to be performed, the common law will
control it, and adjudge such act to be void’8. On the other hand,
in the same period, the appeal to traditional authority became,
in the doctrine of the Ancient Constitution, the mythical idea that
8 Dr. Bonham’s Case (1610) 8 Co Rep 114, 118 (per Coke CJ). See also
Calvin’s Case (1608) 7 Co Rep 1; Day v Savadge (1615) Hob. 85; City
of London v Wood (1701) 12 Mod 669. And see further Chapter 5,
below, pp 121-2.
English common law remained essentially unchanged since a time

that predated all relevant political authorities, and so had a
transcendent authority unaffected by political change. Some
common lawyers even denied that there had been a military conquest
in 1066 which entailed any legal discontinuity. ‘To admit a conquest
was to admit an indelible stain of sovereignty upon the English
constitution’ (Pocock 1957: 53). Thus, with what now seem bizarre
claims about the authority of transcendent natural reason and the
significance of myths about the sources of common law in history,
common lawyers fought to maintain the independent force of
common law at a time when already it was preparing to give way
to types of authority rooted in political sources which it could
not theoretically comprehend.
Savigny: A Theory For Common Law?
The discussion in previous sections should suggest that the legacy

of classical common law thought in itself is seriously inadequate
to provide a convincing legal theory. In particular, although the
nature of law is seen as rooted in the nature of society, no explicit
conception of society or social development is offered in common
law thought. One consequence of this is that, insofar as law is
considered to be customary, it becomes extremely difficult to explain
or even clearly identify the processes of legal development in
common law. Secondly, the relationship between judge-declared
law and legislation - the dominant source of law in modern Western
societies - remains unclear. Thirdly, the sources of law’s authority
frequently appear mystical; grounded in myths about history or
in claims, unsupported by rigorous argument, about the character
of natural reason.
In the nineteenth century, various types of legal philosophy
developed which tried to take serious account, in an explicitly
elaborated legal theory, of the conditions of law in the modern
state. Some of these theories reflected ideas which had been in
currency long before, but all of them, in one way or another, had
to take account of obvious changes in the character of law and
legal institutions - and especially the increasing dominance of
legislation as a source of new law. The rest of this chapter will
be concerned with certain theories from this period which can be
interpreted as defences and elaborations of conceptions of law very
similar in important respects to the conception suggested in classical
common law thought. In an age of legislation - of extensive,
deliberate law-making by political authorities aimed at reshaping
society or its legal traditions - common law thought implied only

an ambiguous, undeveloped legal theory disdainful of rigorous
concepts and incoherent in fundamental respects. The nineteenth
century legal philosophy which came to be known as historical
jurisprudence can be seen as partly filling the need for a theoretical
defence of common law methods. Indeed, the following discussion
will argue that, today, in the Anglo-American context, the most
fruitful way of interpreting historical jurisprudence in relation to
normative legal theory is in these terms. But, as will appear, the
rich and complex literature of historical jurisprudence is in no way
confined in its concerns to Anglo-American common law.
The dominant original influence in historical jurisprudence is
usually traced to the Prussian jurist and statesman Friedrich Carl
von Savigny. Writing at the beginning of the nineteenth century,
Savigny opposed the political movement of the time pressing for
the codification of the law of the German states. Many of those
favouring codification saw it as an instrument for promoting
German political unity. However, the modern idea of codification
as an attempt to produce a complete statement of fundamental
principles of law in some systematic arrangement suggests a
culmination of legal development, the result of which can be
captured in perfected, rationally elaborated legal forms and
structures.
For Savigny, this idea denies the character of law as spontaneously
and continually evolving with the culture - the whole way of life
- of a people {Volk). The optimum time for codification of law
would be at the peak of cultural development, but then such a
fixing of law in final form would be unnecessary when law and
culture are vibrant and dynamic. Codification would be merely
for the benefit of ‘a succeeding and less fortunate age, as we lay
up provisions for winter’, and such foresight is rare (Savigny 1831:
43). Thus, in Savigny’s view, codes are usually made at the wrong
historical moments - in the early phases of cultural development
when legal development is lively but technical skill in distilling
fundamental concepts and principles from this changing law is likely
to be lacking; or in a time of cultural decline, as with the Emperor
Justinian’s remarkable codification of Roman law in the sixth
century A.D.. Savigny notes, of the efforts of this period, that
when ‘all intellectual life was dead the wrecks of better times were
collected to supply the demand of the moment’ (1831: 51).
Immediately, in these comments, a view of law is suggested which
emphasises the pervasiveness of change and which ties law firmly
to cultural evolution. Behind all this are ideas close to those which
underpin classical common law thought, although Savigny writes
Savigny: A Theory For Common Law? 39
in a different legal context. Thus, law is seen as an aspect of social

life, not something set apart from other social phenomena as
distinctive. For Savigny, law ‘has no self-dependent existence. . .
its essence is the life of man itself viewed from a certain standpoint
(1831: 46). In place of the ancient wisdom, rooted in a perhaps
mythical past, which grounds and guides common law, Savigny
puts ‘the common consciousness of the people’ (Volksgeist) as the
‘seat of law’ (1831: 28). In his descriptions of it there seems an
almost exact parallel with the elusive ideas of profound communal
sources of reason and authority, spanning the centuries, which are
presupposed in classical common law thought. ‘That which binds
them into one whole is the common conviction of the people, the
kindred consciousness of an inward necessity, excluding all notion
of an accidental and arbitrary origin’ (Savigny 1831: 24).
Because Savigny has no hesitation about describing culture
explicitly in evolutionary terms, his picture of law also is one of
continuous evolution. As language develops spontaneously by
essentially uncontrolled communal processes, so law develops ‘by
internal silently operating powers, not by the arbitrary will of a
lawgiver’ (Savigny 1831: 30). As in classical common law thought
legal ideas are assumed to have no individual authors. They are
a wholly collective product. Legislation, as deliberate lawmaking,
is definitely treated as subordinate to the demands of the common
consciousness.
Although much of the common lawyer’s mystical conception of
law’s origins remains in this theory, a much more explicit statement
of the stages of cultural change is offered and, with it, a more
definite view of the role of legislation and the state in aiding the
spontaneous processes of legal development. Savigny was writing
at the beginning of a new age in which legislation would have
a specific vocation (Savigny 1831). Although, like the common
lawyers, he sees law’s primary form as custom, he also recognises
that modern law cannot be thought of in such terms. He notices
at least some simple sociological considerations regarding social
development. With the development of societies to a certain level
of complexity, social classes emerge and society fragments into
different interest groups (cf. Savigny 1831: 28; Savigny 1867: 14,
36). One might imagine that this recognition would lead Savigny
to doubt whether any common consciousness could continue to
co-exist with such social divisions. However, it leads him only to
note the special role which lawyers now assume, and some special
tasks of legislation. The common consciousness still exists but it
is harder to focus it to produce new law directly. As the common
lawyers distinguished natural reason from the artificial reason of
law, so Savigny notes that law ‘perfects its language, takes a scientific
direction’ and ‘devolves upon the jurists, who thus, in this
department, represent the community’. Thus it becomes ‘artificial
and complex’ and leads a twofold existence as part of community
life and also as the specialised knowledge of lawyers (Savigny 1831:
28; 1867: 36-40). This idea closely parallels the uneasily ambiguous
common law view of law’s relationship with community. For
Savigny, as for the common lawyers, it is vital to affirm that the
link with community is not broken, however complex law becomes,
for where else is the source of law’s utility and authority to be
found?
As regards legislation, its task is explained by Savigny, in terms
reminiscent of Blackstone, as that of putting settled law into
systematic form and clarifying law in transitional phases where
new legal principles reflecting the developing common consciousness
are emerging but not yet crystallised (Savigny 1831: 33, 152-3; cf.
Blackstone 1809 I: 86-7). There seems to be an important difference
from classical common law ideas, however, in Savigny’s recognition
that legislation eventually becomes central to the task of developing
the law, not peripheral and supplementary as it often appears to
be in common law thought. The appropriate scope of legislative
activity seems to depend on the stage of development of culture
which has been reached. Cultures rise, flourish and then decline.
In certain late phases of cultural development conditions ‘are no
longer propitious to the creation of law by the general consciousness
of a people. In this case this activity, in all cases indispensable,
will in great measure of itself devolve upon legislation’ (Savigny
1867: 34). It seems to be implied, therefore, that the eventual
dominance of legislation as a legal form is inevitable - though
hardly to be taken as a sign of cultural vitality.
A consequence of this more definite view of the eventual
pervasiveness of legislation is that Savigny is forced to make explicit
the strange consequences of treating the authority of legislation
as deriving from the same communal and traditional sources as
other legal authority - such as, particularly, that of the law-declaring
judge. The legislator must, as Savigny puts it, stand in the centre
of the people or nation ‘so that he concentrates in himself their
spirit, feelings, needs, so that we have to regard him as the true
representative of the spirit of the people’ (1867: 32). This awkward
and unreal formulation probably points not so much to a democratic
assembly with a popular mandate as to an enlightened monarch
with the common touch. But Savigny’s need to address the legislative
role in direct terms at the dawn of the age of modern legal codes
does seem to lead him finally to a different emphasis from that
Savigny: A Theory For Common Law? 41
of classical common law thought. In the latter, law originated in

community life and became the esoteric knowledge of lawyers as
an independent occupational group, in which it found its ultimate
expression. For Savigny, writing in a German context in which
lawyers lacked the political independence and occupational
autonomy of the common lawyers, the development could not
realistically be seen to stop there. The most influential legal scholars
were the university jurists. With the threat of what Savigny
undoubtedly considered the legislative megalomania of codification
hanging over the Germanic ‘common law’ (Gemeines Recht) of his
time (a mixture of customary law and adopted principles of Roman
law), he seems to have felt the need to recognise the legislator
as central to future legal development in partnership with the jurists.
But, like the English common lawyers, he defines the scope of
legislative authority not in political terms but in cultural terms.
In this way the power of the state to impose law is restricted by
a clear obligation on the lawmaker to act as representative of the
community - in Savigny’s term, the Volk.
Savigny’s writings had considerable influence on legal scholarship
in Britain and America in the nineteenth century, especially since
the spectre of codification - the symbol of rational legislative law¬
making dominating over judicial law-finding - arose to challenge
common law thought in both countries. Because he offers a more
explicit theory of cultural development than did the common
lawyers, he supplies a conception of legal development largely
lacking in common law thought. Equally the role of legislation
is directly addressed in terms which clearly (if reluctantly) recognise
its modern importance. But there is no hint that culture itself might
be a complex, fragmented phenomenon; that cultural development
might vary immensely in different societies and that cultural change
itself has causes requiring explanation. Savigny’s legal theory makes
reference to culture, but only as a symbol which, merely by being
invoked, guarantees the integrity and legitimacy of legal doctrine
in evolution.
Maine’s Historical Jurisprudence
The immense influence in England and America of the work of

the English jurist Sir Henry Maine in the second half of the
nineteenth century may be partly because of its relevance in meeting
this need for a sound underpinning of common law methods in
an age of legislation. But Maine wrote relatively little on common
law thought as such in his most important books. His historical
jurisprudence was primarily concerned with examining legal ideas

and institutions in terms of their evolution in cultural history. It
might appear, therefore, that Maine’s work has little relevance to
normative legal theory as it was defined in Chapter 1. But its
importance here is to show one route which might be taken by
efforts to develop a general theory of the nature of legal doctrine
which is compatible with fundamental assumptions of classical
common law thought.
Maine’s major writings show vast geographical and chronological
range. Roman law, ancient Irish (Brehon) law, Hindu law and
Biblical law, as well as English law, provide many of his major
sources. Legal concepts such as contract, property, crime and delict
are traced through centuries of development or decay and across
several continents. One outcome of this broad comparative concern
is a general thesis about legal evolution expressed in his most
influential book Ancient Law, first published in 1861.
According to Maine, law originates not as custom but from
judgments handed down by human authorities (such as kings) or
attributed to superhuman ones (such as gods). These judgments
he terms ‘themistes’ (Maine 1861: 2-5; and cf. Maine 1883: ch 6).
The idea of a judgment thus arises in the legal history of the world
before the idea of a rule. The judge predates the lawmaker. But
the ‘epoch of kingly rule’ is succeeded by ‘an era of oligarchies’
(Maine 1861: 6) in which the purely charismatic authority of
particular rulers gives way to the rule of military, political, religious
or other elites. At this stage the authority to make ‘inspired’
judgments requiring no special justification has ceased to exist.
‘What the juristic oligarchy now claims is to monopolise the
knowledge of the laws, to have the exclusive possession of the
principles by which quarrels are decided. We have in fact arrived
at the epoch of Customary Law’ (Maine 1861: 7). Judgments are
no longer considered divinely inspired but are justified as being
based on established custom. Customary law may, however, be
viewed as having a divine origin. Law, in this stage of evolution,
is unwritten and so its knowledge can easily be monopolised by
a juristic elite. But, Maine is anxious to assert, this unwritten law
should not be confused with English common law which became
written - whatever classical common law thought might suggest
- once cases and legal arguments were recorded in the year books
and elsewhere.
The third stage of legal development comes with the era of codes.
Here Maine is writing particularly of the ancient codes (such as
the Twelve Tables of Roman law of the fifth century BC) which
Savigny had identified with the early stages of cultural development.
Maine’s Historical Jurisprudence 43
Codes became possible with the discovery and diffusion of the art
of writing and, in some contexts, gave rulers or communities a
means of breaking the knowledge-monopoly of juristic elites. Maine,
like Savigny, notes the generally unsystematic character and lack
of technical precision of these codes. They tended to mix ‘religious,
civil, and merely moral ordinances, without any regard to differences
in their essential character’ because the separation of law from
morality and from religion belongs ‘very distinctly to the later stages
of mental progress’ (Maine 1861: 9). But we should note that Maine
intends in writing of the era of codes merely to mark the transition
from unwritten to written law. Accordingly, English common law,
presented in the form of written reports and records, is ‘only different
from code-law because it is written in a different way’ (1861: 8).
The transition to written law in the evolution of civilisations
is fundamental. Without it, Maine suggests, there can be no further
significant legal development. Unwritten custom, arising perhaps
for good reasons, may degenerate into unreasonable and irrational
ritual and be distorted by extension through irrational analogies,
since the law exists, inseparably from numerous interpretations of
its meaning and purpose, only in collective memory. A reduction
of law to writing fixes rules in such a way that they must be changed,
if at all, deliberately. It marks the end of ‘spontaneous development’
of law and the beginning of the possibility of law’s purposive
development (Maine 1861: 13). Thus, like Savigny, Maine sees the
question of the point at which codification occurs in the evolution
of a culture as being of the utmost importance (1861: 9-10). If
custom has already degenerated by the time it is codified the result
will be very different from a codification of living custom animated
by manifest reasons intelligible from experience. But whereas
Savigny treats early codes as merely clumsy and primitive and later
systematic and comprehensive ones as of value only to preserve
legal achievements from future cultural decline, Maine treats codes
- in the sense of written compilations of customs - as the keys
to all future progress, as long as codification occurs while custom
retains its vitality.
Thus, all major civilisations reach the era of written law but,
while ‘stationary’ societies show little further legal development,
‘progressive’ societies - which for Maine certainly included those
of western Europe but not many others (1861: 13-4) - continue
to undergo substantial social and legal change. Three devices are
available to allow modification of law to follow social change. They
are legal fictions (maintenance of legal forms while concealing the
fact of their operation in new ways), equity (principles distinct from
ordinary law but claimed to be able to supersede it by virtue of
their superior authority) and legislation (enactments deriving

authority from some ‘external body or person’ creating them)
(Maine 1861: 15-8).
Maine’s use of evidence to support this general picture of legal
evolution is certainly restricted. The history of Roman law looms
large. But at least the need for evidence is clearly recognised and
Maine’s broad knowledge of legal and cultural conditions in a wide
range of periods and civilisations is evidenced throughout Ancient
Law. Culture, for Maine, has ceased to be the simple backcloth
of legal development which it is for Savigny. Maine’s historical
jurisprudence accepts, for virtually the first time in English legal
scholarship, the need for detailed knowledge of the specific cultural
settings of law if the development of legal doctrine is to be
understood. And, instead of the assertion in classical common law
thought that law is merely found in its cultural setting, Maine tries
to show the numerous devices by which law is made - not just
through legislation, but through the use of fictions, the development
of equity jurisdictions as competing legal authorities (in England
the Court of Chancery and the common law courts) jostle with
each other for prestige and power, and the use of conceptions of
some fundamental or natural law of reason. Common law, like
the law of all ‘progressive’ societies, is not spontaneous - merely
found in culture. It is constructed by technical devices validated
by long use in progressive societies generally. Thus, Maine tries
to show how law is inseparable from cultural development but
(after its reduction to writing) has its own mechanisms for regulating
legal change. It seems that the riddle of common law development
is solved.
Nowadays, many of Maine’s specific claims can be criticised and
the overall thesis of legal evolution is hard to defend in the face
of numerous exceptions and historical complexities. But for the
first time in English legal scholarship a theory is offered which
clearly links law and culture, does so with a wealth of specific
empirical reference, shows processes of law-making other than
legislation as of great historical significance, and emphasises the
gradual pace of legal development and the roots of modern legal
ideas in history.
Maine on Politics and Society
There is little reliable evidence that Maine was directly influenced

by Savigny (Burrow 1966: 142-3; cf. Stein 89), although he was
certainly affected by the ideas of the German historical school
generally. Further, although Ancient Law was published only two

years after Charles Darwin’s Origin of Species it does not seem
that Maine’s innovative empirical approach to the study of legal
evolution owed anything to Darwin’s evolutionary theory (Feaver
1969: 46; Burrow 1966: 139, 152-3; Stein 1980: 88). Darwin’s ideas
were quickly adapted by many writers in the second half of the
nineteenth century to explain social evolution in terms of some
kind of natural selection or ‘survival of the fittest’ thesis. And this
‘social Darwinism’ thesis was congenial to Maine as an explanation
of why some legal ideas and institutions flourished and others
withered. In his later writings he ‘hastened to borrow new weapons
from the armoury of Darwin’ (Barker 1928: 161). But the source
of Maine’s dramatically new approach to legal scholarship first
revealed in Ancient Law is obscure (Burrow 1966: 142).
It is tempting to see it, in part, as a timely response to a need
to put together in some orderly theory the immense traditional
and historical baggage attached to legal thought in the common
law environment. And Maine’s work did seem to provide possible
solutions to some of the difficulties which arise in attempting to
construct a normative legal theory consistent with common law
thought. It was seen earlier that, if common law is treated as judge-
made law, serious theoretical difficulties arise. The most important
difficulty is in explaining where judges get their authority to make
new law, and how far that authority extends. Maine’s work implies
an imaginative answer. The source of authority of judge-made law
is (as classical common law thought had suggested) no different
in essence from that of legislation. But Maine finds that source
in historical necessity demonstrated by the lessons of comparative
history. Social change in progressive societies demands that the
law change to keep in step. The methods of judicial innovation
(fictions, invocation of equity and natural law ideas), like those
of legislation, are shown in his work to be more or less common
to the entire civilised world. The implication is, thus, that they
can be treated as ‘natural’ elements in civilisation. Fictions, equity
and legislation, emerging successively in history, reinforce each other
as remedial devices to ensure law follows social progress.
Maine’s conception of the process of social change explains, for
him, not only the forms of law but also law’s changing content.
Progress depends on Darwinian competition. Social change is
governed by the principle of the survival of the fittest (Barker 1928:
161). Thus, in progressive societies, legal rights and duties gradually
cease to be based on rigid statuses of individuals (for example,
as member of a clan, head of a family, wife, son or daughter)
which, in general, are not freely chosen by them. Instead, law
increasingly recognises the dynamic nature of social life by treating

transactions, situations and arrangements as the result of deliberate
choice or decision. Status relationships cease to dominate law and
society and give way to contractual relationships. Hence the dictum
for which Maine is most famous: if status is taken to refer to personal
situations not the direct or indirect result of agreement ‘we may
say that the movement of the progressive societies has hitherto
been a movement from Status to Contract’ (Maine 1861: 100).
Maine’s image of modern society is, thus, clearly very different
from that of the close-knit communities which he associates with
the past. He welcomes the individualism of the present; the
movement from status to contract is progress. The guarantee of
the naturalness of laissez-faire individualism is in the great
evolutionary sweep of history from the ancient village communities
to the present.
But this conception of the nature of society also explains why,
for Maine, legislation is not a specially privileged type of law¬
making. A critic of his ideas, in the late nineteenth century as
now, could argue that legislation represents democratic law-making
in modern states in which representative democracy flourishes.
Hence it necessarily has a greater legitimacy and acceptability than
judicial law-making. In Maine’s view, however, this special
legitimacy evaporates on examination. Society is largely composed
of a mass who do not lead but only follow. Social competition
for survival does not seem to offer for most people ‘any guiding
thread of growing freedom’ (Barker 1928: 167). Like other late
nineteenth century jurists, Maine was interested in the bases of
popular obedience to authority and found them in habit and inertia
rather than reason or fear (Maine 1885: 63; Bryce 1901: ch 9).
Thus, authoritative prescription rather than coercive command is
the essential quality of law (cf. Maine 1875a: ch 12). Equally, society
(the mass who follow rather than lead) must be governed by elites
of some kind, whether the elites are considered to be judges or
legislators. Which are the most appropriate lawmakers should
depend simply on which have the best expertise.
One commentator has described Maine’s ‘administrative’
mentality: ‘cool, unsentimental, honest and just, but tending always
to identify with authority, and lacking in sympathy with the feelings
and aspirations of the mass of mankind’ (Burrow 1966: 174, 177-
8). While other writers, also seeing democracy as problematic, might
think that able natural leaders would emerge despite it to form
the inevitable governing elites (Bryce 1901: 29-43), Maine feared
demagogues as the enemy of efficient modern state administration.
His last book Popular Government (1885) is a polemical
condemnation of democracy. Thus, just as the common law concern

with community requires no popular participation in law-finding
(even if a jury might find the facts), and Savigny’s spirit of the
people does not demand democratic institutions to express it,
Maine’s picture of law’s evolution as part of civilisation as a whole
is of an evolution to be managed by elites, not by the democratic
representatives of the people.
Historical Jurisprudence and the Legal Profession
What can be said of the relevance of Maine’s work for the concerns
of lawyers as an occupational group within common law systems?
In considering the period when Maine wrote and the decades before
Ancient Law appeared, it is certainly possible to see a modern legal
‘profession’ self-consciously shaping itself and building its status,
whatever may have been the nature of the occupational group of
common lawyers in earlier times (Cocks 1983; cf. Duman 1983:
ch 7). In the nineteenth century fundamental issues about legal
education and training began to be seriously addressed9 and, with
them, difficult and controversial questions about the nature of the
lawyer’s professional knowledge and expertise, about what the
student of law should learn in order to be well equipped as a member
of a modern learned profession, about the possibility of a ‘science’
of law comparable with the other modern sciences then flourishing,
and about whether and in what ways legal knowledge could be
considered autonomous, unified and systematic.
Maine’s writings are of great importance in this context. As has
been seen, common law - as portrayed in classical common law
thought - can certainly be considered to be knowledge which is
both esoteric and of central social importance. But it cannot easily
be considered a ‘science’ in the nineteenth century sense of a rational
organisation of ideas. Such a rational science ‘could never hope
neatly to capture within its four corners the rich, living tradition
of Common Law’ (Postema 1986: 37). Equally, as noted earlier,
classical common law thought lacked grounding in any serious
historical inquiry10. It existed in substantial isolation from
knowledge of other legal systems or methods (Feaver 1969: 45;
Pocock 1957: ch 3). Finally, it lacked any rigorous intellectual
criteria separating it from other branches of learning. Its relationship
9 For a summary of developments see e.g. Manchester 1980: 54-63.

10 For discussion of this see e.g. Maitland 1888; Gordon 1981; cf.
Holdsworth 1928: 4-5.
with them was parasitic yet unsystematic (Sommerville 1986: 93).

The implication of all Maine’s major work is that a sound knowledge
of law as an intellectual field, rather than as merely a disordered
jumble of precedents and principles, demands comparative,
historical and philosophical studies. Other sources of influence -
such as the Select Committee appointed in 1846 to investigate the
state of legal education in England and Ireland - had reached similar
conclusions11, and Maine was active in campaigning for legal
education to be developed along these lines (Feaver 1969: ch 3).
‘The fault of our legal system’, he declared in 1855, ‘is that it is
exclusively practical. . . with us, law is not a science’ (quoted Feaver
1969: 24). Maine’s science of law was, thus, a ‘new sort of empirical
history that could nonetheless be fitted into a theoretical framework
explaining the general evolution of legal systems’ (Feaver 1969:
46).
Maine’s books and their methods had immense influence in the
latter part of the nineteenth century. By 1871 Ancient Law was
widely used in the law schools of Europe and America. Maine
reported that an eminent American lawyer had told him that ‘he
thought almost every attorney in the States had a copy’ (Feaver
1969: 128, 129). The book went through eleven editions in twenty
five years. The impact was not just on lawyers. ‘The extent and
profundity of Maine’s influence among the intellectual class would
be hard to exaggerate. . .’; his ‘method dominated a whole
generation’s reflections on politics’, reflecting ‘the immense prestige
and unimpeachable respectability of his achievement’ (Collini,
Winch and Burrow 1983: 10, 210, 252).
The reasons for Maine’s success in reaching the attention of the
legal profession are crucial here. He presents attractively something
which looks like a genuine science of law based on sound empirical
data, and, moreover, one which demonstrates both the impressive
weight of legal knowledge and its centrality in social life and the
history of civilisation. He offers ideas consistent with the inbuilt
conservatism of common law thought and its preference for gradual
legal adjustment through case law rather than wholesale legislative
reform. Finally, he seems to offer the comforting message that
the time-honoured methods of common law and the doctrine and
institutions it has produced are validated by the natural scientific
laws of social progress. And he connects legal scholarship neatly
with what were in his time widely seen as the most advanced ideas
in other social studies. Thus, in the late nineteenth century, as
an eminent public figure and an eloquent spokesman on legal
11 Report from the Select Committee on Legal Education no. 686 (1846).
Historical Jurisprudence and the Legal Profession 49
matters he could appear as a powerful force in promoting the status

of the legal profession and its knowledge in the wider world of
politics and intellectual life.
The Fate of Maine’s New Science
In 1875 Maine set out a programme for ‘a new science’,

foreshadowed by his already published work, which would apply
comparative methods, already used in other fields in illuminating
the evolution of civilisation, to the investigation of ‘laws,
institutions, customs, ideas, and social forces’ (Maine 1875b: 230).
Yet, despite his popularity and renown, the new science did not
produce a lasting influence on legal scholarship. Although a few
eminent jurists followed Maine’s lead to some extent, historical
jurisprudence did not reshape legal thinking in the common law
world. What went wrong?
In the previous chapter it was suggested that legal theory may
serve the professional needs of lawyers by clarifying the nature
of professional knowledge, demonstrating a unity or system in it,
and distinguishing the legal from the non-legal (the internal-external
dichotomy) in definite terms. But Maine’s jurisprudence is seriously
defective in this respect since it does not portray legal knowledge
as a well-defined, manageable field. Instead, it suggests that legal
studies consistent with a scientific reworking of common law
thought must embrace vast areas of cultural knowledge extending
over many nations and many centuries of history. The problem
from the standpoint of professional legal education is especially
clear. Maine’s books were prescribed for examinations of the Inns
of Court, universities in Britain and the colonies, and the Indian
Civil Competitive Examination. In the late nineteenth century brief
‘nutshell’ books for students offered simplified versions of major
law texts (Sugarman 1986: 52). The preface to one of these, dealing
with Maine’s works, declares: ‘In these works there is a great deal
of writing that is absolutely useless to the student for examination
purposes, and page after page has to be waded through in the
search for a criticism or a theory; and to discover any complete
theory or criticism on any one question or theory, it is often
necessary to search through not only each one of the books, but
also many different chapters or lectures in each of those books.
This necessitates a great waste of time and mental energy on the
part of the student, there being over two thousand pages in all’
(Evans 1896: v-vi). No matter that Maine’s writings offered a sincere
attempt to turn legal study into a pursuit of real cultural value.
and to escape the idea that law was no more than an ‘occult science’
vastly inferior to the real sciences explaining the nature and progress
of civilisation. His work did not offer a conception of a manageable
professional knowledge.
Thus, with the eclipse of historical jurisprudence, the problem
of finding a normative legal theory compatible with common law
thought seems no nearer solution. Maine’s writings pointed not
towards normative legal theory but instead to the value of what
has been called, in the previous chapter, empirical legal theory
- theory aimed at explaining the nature of law in terms of its social
origins and effects. Maine is, to this day, treated as a significant
figure in the history of anthropology and his work exerted major
influence on the development of sociology, including sociology of
law.
Even here, however, we should keep clearly in mind that he
was, first and foremost, a jurist. To some extent, Maine is closer
to Savigny, to whom culture appeared merely as the motif which
made sense of law’s claims to doctrinal integrity, than he is to
modern social science. He was not a ‘thorough sociologist’ (Burrow
1966: 151) and many writers have commented on his unreliable
use of empirical evidence. Adherents of historical jurisprudence
distanced themselves from the writings and outlook of sociologists
(Collini, Winch and Burrow 1983: 213, 220). Equally, historical
jurisprudence in England had a different orientation from
anthropology. Whereas the latter appeared to take all mankind
as its province, the former, as Maine established it, was concerned
only with those peoples whose cultural history fed into what was
seen as the evolution of civilisation (Collini, Winch and Burrow
1983: 212). Historical jurisprudence traced a line of descent of
civilisation, validated essentially in terms of the historical
development of comparable legal ideas and institutions and
grounded in assumptions about an original Aryan family of peoples.
Maine wrote: ‘Civilisation is nothing more than a name for the
old order of the Aryan world, dissolved but perpetually re¬
constituting itself under a vast variety of solvent influences’ (1875b:
230). It is almost as though the seventeenth century appeal to an
ultimate timeless and mystical cultural foundation of common law
in the idea of the ‘ancient constitution’ is resurrected in the idea
of the timeless cultural unity of the Aryan world. The unity
underpinning Maine’s thought, like that of common law thought,
is a unity of culture.
If such a unity is hardly satisfactory to ground a normative legal
theory, where else might one look for foundations? Having followed
assumptions of classical common law thought to what may seem
The Fate of Maine’s New Science 51
their ultimate consequences without finding adequate solutions

perhaps it might be fruitful to start from virtually opposite positions:
to treat legislation as central to law and judicial law-making as
peripheral and to see the foundations of law in political power
rather than in community. The theory to be considered in the next
chapter does exactly that. In leaving classical common law thought
and historical jurisprudence it is important, however, not to lose
sight of their strengths. Despite much ambiguity and some
incoherence, the theory of common law, and the nineteenth century
legal philosophy which developed ideas consistent with it, emphasise
the vital importance of maintaining law’s link with community life.
By implication they pose a warning against the arrogance of
legislators who treat law as no more than an affair of efficient
rules organised as an instrument of coercion.
3 Sovereign and Subject: Bentham and Austin
John Austin’s wife wrote that he lived ‘a life of unbroken

disappointment and failure’1. Yet Austin, more than any other
writer, provided the compact and systematic formulation of a
conception of law which allowed an escape from the tradition-
bound theory implicit in classical common law thought. Equally,
Austin provided what historical jurisprudence could not: a clear
designation of the scope of legal knowledge, an orderly theory of
law which allowed the legal to be distinguished from the non-legal
and the logical connections between legal ideas to be made explicit.
Finally, he offered a way of looking at law which made legislation
central rather than peripheral. Thus, his legal theory recognised
the reality of the modern state as a massive organisation of power.
It tried to show law’s relationship with this centralised and extensive
power structure. It seemed in tune with modern times in which
government, not community, was the apparent source of law. Thus,
noting Sarah Austin’s comment quoted above, one of Austin’s most
important successors goes on to remark that ‘within a few years
of his death it was clear that his work had established the study
of jurisprudence in England’ (Hart 1955: xvi). Austin died in 1859,
believing that his neglected writings and unsuccessful lectures had
made no mark whatsoever. Four years later all of his most important
work had been republished, largely through the efforts of his widow.
For reasons to be considered in this chapter, it caught the legal
mood of the times. It established or clarified ideas about the nature
of law which still provide basic elements in the vocabulary of
concepts which lawyers in the Anglo-american world use (cf.
Dworkin 1977: 16).
Austin’s legal theory is contained primarily in the lectures he
prepared as the first professor of jurisprudence in what was to
become the University of London. Much of his legal philosophy
is heavily indebted to earlier writers. It represents the packaging
of a set of ideas distilled from a long tradition of political theory
concerned with the concept of sovereignty, together with a selective
plundering of the legal theory of Austin’s original mentor, the
1
In a letter quoted in Rumble 1985: 56.
Legal Philosophy in Context 53
English philosopher and law reformer, Jeremy Bentham. Today,

the received wisdom is that Austin’s work is much less important
than Bentham’s and, indeed, there is no doubt that its intellectual
range is far more limited. But, partly because of the accidents of
publication, Austin exerted an influence on the development of
legal theory and on wider concerns in legal scholarship far beyond
that of Bentham.
The fact that all of Austin’s major work in legal theory was
in print from the 1860s, whereas the major writings of Bentham
which cover similar ground were not, is, however, only part of
the explanation. The form of Austin’s legal theory and the ordering
of its concerns enable it to offer a normative legal theory which
was particularly appropriate to the political and legal professional
concerns of its time. Further, it exemplifies a certain general
conception of law in an extremely concise and straightforward
manner. In fact, Austin’s ‘failure’ in so many worldly things may
have been the condition of his success in this. He pursued with
apparently total singlemindedness a distinct image of how a ‘science’
of law might be possible. Lacking Bentham’s restless intellectual
curiosity - which diverted the greater writer into an immense
diversity of projects - Austin meticulously worked on the theory
of law which had been merely a part of Bentham’s concerns. Where
his ideas differ from Bentham’s it is often because he prefers a
stubborn logic (for example, on the nature of sovereignty) or a
hard-headed realism (for example, in discussing judicial law¬
making), where Bentham equivocates or tries to develop more
radical analyses in the cause of legal or political reform.
For the moment it will be necessary to keep an open mind about
the relative merits of Bentham and Austin in their development
of normative legal theory - the theory which is the exclusive concern
of this book. But it will be argued in the following pages that
a strong defence can be made on Austin’s behalf against many
of the most serious criticisms which are routinely made of his legal
theory. In this chapter he occupies centre stage simply because
it is he rather than Bentham who has exerted by far the greater
influence on later jurists and on legal scholarship generally, and
he who offers a version of normative legal theory which in its
clear (even dogmatic) pronouncements provides an effective contrast
to the vague theory underpinning the common law tradition. In
considering Austin’s ideas and their political and professional
consequences, however, comparisons with Bentham’s theories will
be made. And it will be necessary to trace the roots of Austin’s
thinking beyond Bentham to make the point that the evolution
of common law thought, considered in Chapter 2, is parallelled
by a long tradition of quite different thinking about the nature

of law.
The Empire of Darkness and the Region of Light
A key to understanding the motivation behind and orientation of

the legal theories of Austin and Bentham is to recognise the profound
hostility of both writers to the methods and outlook of English
common law, and the profound difference between their reactions
to it. Towards the end of his life Austin may well have modified
his views but his London University lectures on jurisprudence,
originally written for presentation at the end of the 1820s and the
basis of his reputation in legal philosophy, are full of vitriolic
comments on the absurdities of common law thought and the
irrationality of a legal system - if system it could be called -
developed primarily by piecemeal judicial interventions. Bentham
viewed judge-made law as like waiting for one’s dog to do something
wrong and then beating it (cf. Stein 1980: 70). Austin, however,
was not opposed to judicial law-making. What offended him was
the total lack of systematic organisation or of a structure of clearly
definable rational principles in common law. In his lectures he
was determined to map out a rational, scientific approach to legal
understanding - a modern view of law which would replace archaic,
confused, tradition-bound common law thought but would be able
to encompass both legislation and judge-made law.
This aim immediately distinguishes Austin from Bentham. Always
the more radical thinker, Bentham has no patience in his writings
with the idea that judicial decisions are an appropriate source of
law. He pins his faith on the kind of codification Savigny despised.
All law should be purposively, deliberately, rationally created by
legislative means. As far as possible, law should be expressed in
rational, systematically organised codes. Austin also favoured
codification and writes extensively in his lectures of its merits and
of the absurdity of most of Savigny’s objections to it. But he also
shows a cool realism about the possibilities. Austin’s views on judge-
made law, or ‘judiciary law’ as he prefers to call it, will be discussed
later. For the moment it is enough to say that he recognises that
judge-made law is an inevitable component of a modern legal system,
and that - despite many disadvantages - it has some virtues and
is often the only practical means of legal development at certain
times and in certain fields. Codification is admirable in theory but,
in practice, requires immense legislative skill, juristic knowledge
and political vision. What is needed, therefore, is a view of law
The Empire of Darkness and the Region of Light 55
which can accommodate realistically all these aspects but present

them within the framework of the rational, centralised governmental
structure of the modern state.
Although the matter is often ignored or underemphasised in
commentaries on Austin, it is important to note that he found
models of legal scholarship, to help in this task, quite outside
Benthamite influences. Austin saw in Roman law - especially as
interpreted and developed by continental civil law jurists - the
epitome of a rational legal order vastly superior to English common
law in its logical organisation. ‘Turning from the study of the English
to the study of the Roman Law, you escape from the empire of
chaos and darkness, to a world which seems, by comparison, the
region of order and light’ (Austin 1885: 58). The ‘extraordinary
merit’ of Roman law scholarship was in the way scholars had ‘seized
its general principles with great clearness and penetration, . . .
applied these principles with admirable logic to the explanation
of details, and. . . thus reduced this positive system of law to a
compact and coherent whole’ (Austin 1832: 188). By contrast,
English law was full of ‘useless and misleading jargon’ often
employed inconsistently (Austin 1885: 686). While distancing
himself in his writings from the legal philosophies informing Roman
law and, indeed, from that law’s actual content, Austin rarely fails
to sing the praises of Romanist legal scholarship. He spent several
months in Germany, studying the writings of the German scholars
of Roman law and German legal philosophy, in preparation for
his own lectures.
How important is this in understanding the orientation of Austin’s
legal philosophy? It suggests that, although he ‘was accepted as
the heir apparent of Bentham in the special department of
jurisprudence’ (Stephen 1900: 317) and undoubtedly saw himself,
at the time he wrote his lectures, as a disciple (though a critical
one) of Bentham, his model of a science of law was not wholly
Benthamite. He quoted with approval other writers’ praise of the
‘scientific method’ of the Romanists which had made them ‘models
to all succeeding ages’ (1832: 377). As already indicated, for Austin
this method - which could allow the rationalisation of law from
many sources, including judicial decisions and custom, as well as
legislation - involved identifying general principles, applying them
logically to explain detail, and so demonstrating order and coherence
in law.
Certainly, Bentham had already supplied many other elements
needed. He had recognised the need for a coherent doctrine to
guide the rational reform of law and to dispose of common law
archaism and had found this in the principle of utility. Utility
required that law-making and legal institutions be designed to

promote the greatest happiness of the greatest number of people.
Utility would replace traditional, self-serving or subjectively moral
evaluations with a rational evaluation of the worth of particular
practices, institutions and policies in terms of how far they served
the common good, measured in terms of maximisation of
satisfaction of the actual desires of the greatest possible number
of the population. Austin’s lectures presuppose the doctrine of utility
as elaborated by Bentham and warmly - even fanatically - defend
it. But Austin’s course was devoted to the theory of law as it is
(which he called the science of law), not the theory of law as it
should or might be (which he termed the science of legislation).
Consequently, although several of Austin’s lectures directly discuss
the principle of utility, it does not occupy the central place in the
body of his writings which it does in Bentham’s. Bentham’s
‘expository jurisprudence’ (his term for the science of law), upon
which Austin drew extensively, was an offshoot of his concern with
the working out of the principle of utility in its application to
law reform. Thus, the science of legislation (he calls it censorial
jurisprudence) is central to Bentham and expository jurisprudence
is a necessary basis of knowledge upon which censorial jurisprudence
can be pursued. By contrast, Austin is known through a set of
lectures devoted to elaborating a theory of existing law. In them
he apologetically justifies bringing in the principle of utility as
necessary to help to explain why law has taken particular forms
(Austin 1832: 59; 1863: 373). In the particular context of Austin’s
lectures, therefore, the science of legislation is subordinate to the
science of law.
This, in itself, suggests Austin’s less radical view of law as
compared with Bentham’s, for Austin plainly considered that despite
all its defects English common law had often approximated to what
utility demanded. Thus, while Bentham sought an instrument to
reform the law in numerous respects and found it in the utility
principle, Austin sought, above all, a means of rationalising existing
law; organising and logically relating its elements; putting it into
systematic form; clarifying the reasoning entailed in it; and finding
a set of concepts through which it could be ‘scientifically’
understood. Such a task could be carried out in relation to a
particular legal system. But a more fundamental theoretical inquiry
- the real foundation of legal science - would be to carry out
this task in relation to legal systems generally. Thus, what Austin
calls general jurisprudence would be ‘the science concerned with
the exposition of the principles, notions and distinctions which are
common to systems of law’ or, at least, mature systems (Austin
The Empire of Darkness and the Region of Light 57
1863: 367). In practice, enough illumination of such matters is

obtainable, Austin asserts, by concentrating on the writings of his
revered Romanist jurists, the modern decisions of English judges,
and (with regard to arrangement and systematic organisation of
law) the provisions of the French and Prussian codes (1863: 373).
In this programme the influences of the German Roman law
jurists and of Bentham seem to come together less uneasily than
is often supposed. The three sources of comparison Austin
emphasises neatly summarise the three contending forces which
needed to be somehow reconciled in contemporary legal thought
as he understood it: the untidy raw material provided by common
law judicial decisions, the Romanist example of how to rationalise
order out of gradually evolved legal doctrine, and the modern
experience of systematic codification. But Austin’s rigour required
him to undertake the preliminary inquiry on the basis of which
the exposition of ‘principles, notions and distinctions common to
systems of law’ could be founded as a science. That preliminary
inquiry was into the meaning of the ultimate concept of ‘a law’
itself. Bentham, and before him, the seventeenth century English
political philosopher Thomas Hobbes had provided ideas which
could be developed for this purpose. In the event, it is this preliminary
inquiry which has come to be treated as Austin’s legal philosophy
(cf. Buckland 1949: 3). His contributions to the much broader
‘general jurisprudence’ have remained relatively neglected.
Positive Law and Positive Morality
From one viewpoint, the most valuable contribution of Austin’s

legal theory is its attempt to distinguish clearly law from other
phenomena (for example, moral rules, social customs) with which
it could be confused. As has been seen in the previous chapter,
classical common law thought did not do this. For Austin, clear
thinking about law necessitates such a demarcation of the subject-
matter of legal science. Bentham had poured scorn on the way
moral notions and legal principles were mixed up in Blackstone’s
Commentaries, the famous eighteenth century treatise on English
law (Bentham 1977: 3-33). To Bentham the result seemed
thoroughly unscientific, allowing Blackstone to preach moral
sermons or indulge his prejudices under cover of stating the law.
Thus, when Austin - strongly influenced by Bentham’s critique
of Blackstone - came to write his lectures it seemed obvious to
him that the starting point for the science of law must be a clear
analytical separation of law and morality. Such a strategy would
in no way imply that moral questions were unimportant (although

for Austin, like Bentham, they were mostly to be answered by
applying the principle of utility). Indeed, the separation would make
clear the independent character of legal and moral arguments and
the special validity and importance of each.
So Austin’s lectures begin with the assertion that the subject-
matter of jurisprudence, as he understands it, is positive law, ‘law,
simply and strictly so called: or law set by political superiors to
political inferiors’ (Austin 1832: 9). Immediately law is defined as
an expression of power. In its widest proper sense a law is ‘a rule
laid down for the guidance of an intelligent being by an intelligent
being having power over him’ (Austin 1832: 10). Austin’s view
of law recognises it, not as something evolved or immanent in
community life - as in the implicit common law conception, but
as an imposition of power. The lectures then embark on a rather
tedious classification, some of which, however, is of the greatest
importance in understanding key points of Austin’s legal theory.
Austin distinguishes laws ‘properly so called’ from those phenomena
improperly labelled law (1832: 10). There are two classes of laws
properly so called: divine laws (laws set by God for mankind) -
which quickly appear in Austin’s jurisprudence to be largely the
dictates of utility - and human laws (laws set by human beings
for human beings). The most significant category of human laws
comprises what Austin calls positive law. These are laws set by
political superiors acting as such or by people acting in pursuance
of legal rights conferred on them by political superiors (that is, /
acting as the delegates of political superiors in making laws). The '
term ‘positive’ refers to the idea of law placed or laid down in
some specific way and, as such, could apply to divine law, which
Austin conceives as God’s commands. But he wants to reserve
the term positive law for human laws laid down by, or on the
authority of, political superiors - the true subject of the science
of law. Thus, the word ‘positive’ indicates a positing or setting
of rules by human creators.
The other category of human law consists of rules laid down
by persons having power over others but not as political superiors
or in pursuance of legal rights. This would seem to cover numerous
rules which the lawyer would not usually regard as law, although
Austin has no doubt that the term ‘law’ can be used here ‘with
absolute precision or propriety’ (Austin 1832: 140). Since he uses
the word ‘power’ in a general sense, it would seem to include the
capacity of any authority figures - for example, priests or religious
leaders, employers, teachers, parents, guardians or political orators
- to control or influence the actions of followers, dependents or
Positive Law and Positive Morality 59
those in their charge. Austin clearly regards rule-making in such

cases as significant in contributing to shape the attitudes, opinions
or moral sentiment of individuals or groups. Indeed, it forms part
of what he calls positive morality. As morality it is distinguished
from positive law; and it is positive because laid down by human
beings for human beings. Positive morality also contains another
category of rules: those without particular creators but set by the
opinion or sentiment of an indeterminate body of people - that
is, by public opinion or community opinion. Austin terms these
rules without authors ‘laws by analogy’ - they are not laws ‘properly
so called’, even though we sometimes talk of laws of fashion or
etiquette or the laws of honour (1832: 140-1).
Finally, for completeness, Austin mentions one other category
of laws ‘improperly so called’. Scientific laws are not laws in the
jurisprudential sense. They are the regularities of nature which
science discovers but which are not laid down as laws. He terms
them ‘laws by metaphor’. We can say, therefore, that for Austin:
(i) the term law is often improperly applied to rules or regularities
which are in no strict sense ‘legal’; but (ii) the concept of law can
properly embrace more than most lawyers would accept. Austin,
like many sociologists writing long after him, seems to recognise
that rules created ‘privately’ outside the particular provisions or
procedures of the legal system of the state can usefully be recognised
as law. On the other hand, (iii) only positive law is the appropriate
concern of what Austin considers to be jurisprudence.
From this dissection of the field of rules in the broadest sense
what is most important is the establishment of the concepts of
positive law and positive morality. As will appear, the interplay
between them provides, for Austin, solutions to some of the most
serious problems which his critics think they see in the elaboration
of his theory of law.
The Coercive Structure of a Law
What then is a law? Like Hobbes before him, Austin defines a

law as a species of command. Bentham, as so often, surrounds
his basic assertions with a complex, exploratory excursus - in this
case on various forms of expression of will - and for various reasons
prefers to talk of law as ‘an assemblage of signs declarative of
a volition’ (Bentham 1970: 1, 10). But he, too, essentially treats
laws as a species of commands and the thrust of his conception
turns out to be much the same as Austin’s direct and straightforward
characterisation. Again power is made central to law. Thus Austin
states: ‘A command is distinguished from other significations of

desire, not by the style in which the desire is signified, but by
the power and purpose of the party commanding to inflict an evil
or pain in case the desire be disregarded’ (Austin 1832: 14). Thus,
the power to inflict punishment (sanction) in case of non-compliance
is what makes an expression a command. There is no need for
any imperative form. Obviously the nature of the sanction and
of the power to inflict it needs further consideration, as does the
question of whose commands will constitute law.
However, not every command constitutes a rule or law. Austin
often uses the words ‘law’ and ‘rule’ apparently interchangeably
(e.g. 1832: 18-9; 141) but is inconsistent in this since, for example,
as has been seen above, he distinguishes moral rules set by public
opinion from law strictly so-called. What they certainly have in
common, however, is the requirement of generality. A particular
command - say, a directive issued to a particular government
department or administrative agency and requiring that it reconsider
a particular case - would not constitute a rule. How much generality
is necessary for a law? As Austin notes, generality can be of two
kinds: as to acts required or prohibited and as to persons addressed
by the command. Generality as to acts indicates that the command
refers to a class of actions or situations, not a single, specific action
or case. Generality as to persons indicates a class of people, or
people generally, as subject to the command - not a particular
individual or organisation, or a number of specified individuals
or organisations.
It will be seen in later chapters that this question of generality
becomes of great importance in relation to the familiar doctrine
of the Rule of Law, which usually insists on both kinds of generality.
It is highly significant, however, that Austin considers that generality
as to acts is the only generality necessary for a command to be
a law (1832: 21ff.). Thus, law can consist of rules addressed, for
example, to particular individuals, business firms or administrative
agencies, as well as rules addressed to the population generally
or to specific categories of it. This is one of several aspects of
his legal theory which indicate that his view of law is very different
from that of many liberal theories. The latter tend to see law as
a set of rules whose purpose should be to mark out a general
sphere of liberty of the individual guaranteed against the risk of
arbitrary state power. Austin, by contrast, sees law as a technical
instrument of government or administration, which should,
however, be efficient and aimed at the common good as determined
by utility.
The Coercive Structure of a Law 61
Law as Government
Since the consequences of this view of law are important to many
aspects of Austin’s legal theory it is worth commenting further
on it before considering Austin’s other claims with regard to the
idea of law as a species of command. In a sense, law is, for him,
effective government. Certainly a directive relating to a particular
occasion would not be a law. Even here, however, Austin recognises
that particular commands issued by a law-making authority may,
in practice, sometimes be called laws. The lectures hardly suggest
that this incorrect usage raises an important issue of principle for
him (Austin 1832: 19; cf. Neumann 1986: 220). When, later, he
discusses civil and political liberties, the contrast with liberal theories
is made very explicit. Like Bentham, Austin has no patience with
the ideas of natural or fundamental rights. There are no rights
or laws which are somehow inherent in the human condition, in
human nature, or in the very essence of social or community life.
All laws, rights and duties are created by positing rules, the laying
down of rules as an act of government. Consequently there can
be nothing inherently sacred about civil or political liberties. To
the extent that they are valuable they are the by-product of effective
government in the common interest.
Austin’s lectures are generally dry and laden with cold, precise
definition and classification. But occasionally a fierceness breaks
through; a vehemence that reveals deep feelings normally hidden.
The discussion of liberties is one such place: ‘To the ignorant and
bawling fanatics who stun you with their pother about liberty,
political or civil liberty seems to be the principle end for which
government ought to exist’. Such liberty ‘has been erected into
an idol, and extolled with extravagant praises by doting and fanatical
worshippers’ (1832: 269). But, writes Austin, the purpose of
government is to serve the common good. The promotion and
protection of civil or political liberties is of value only insofar as
it serves that end. Limitation of liberty may in some circumstances
be more conducive to the common good than maximisation of
it. Austin obviously thinks that the word ‘liberty’ is a slogan which
can easily get out of hand.
Several things follow from this ‘governmental’ view of law. One
is that duties are more fundamental than rights. The individual’s
ability to make specific claims on others through the legal system
is derivative from the law’s commands. Austin’s command theory
of law produces this result analytically. Command and duty are
treated as correlative terms: ‘wherever a duty lies a command has
been signified, and wherever a command is signified, a duty is
62 Sovereign and Subject: Bent ham and Austin
imposed’ (Austin 1832: 14). We have seen that the threat of

punishment (sanction) is an essential component of the notion of
command for Austin. Duty then becomes the automatic
consequence of being addressed by a potentially enforceable
command: ‘Being liable to evil from you if I comply not with a
wish that you signify, I am bound or obliged by your command,
or I lie under a duty to obey it’ (1832: 14). Duty thus appears
as a fundamental component or consequence of a law. By contrast,
every right presupposes a duty in someone else. Rights are derivative
from duties. I can claim a right against X because the law has
imposed a duty on him towards me.
Sanctions
Austin’s governmental view of law is also reflected clearly in the

emphasis he attaches to punitive sanctions in the structure of a
law. Since sanctions, as has been seen, are essential to the existence
of commands, they are, for Austin, essential to the existence of
laws. There must be ‘power and purpose of the party commanding
to inflict an evil’ (1832: 14) in case of non-compliance. There is
here an important difference from Bentham’s legal theory, which
also treats sanctions as essential to law. Bentham (and other writers)
saw no reason why legal sanctions could not include rewards as
well as penalties. Austin, after considering this possibility,
deliberately rejects it. A reward held out for compliance would
indicate a promise or inducement but not a command, on the basis
of ordinary usage of the word, which specifies non-optional conduct.
Thus the idea of law as a species of command necessarily entails
the availability of negative (punitive) sanctions.
Be that as it may, serious doubts can be raised about the direction
in which Austin’s view of sanctions pushes his theory. If his idea
is really to maintain a realistic view of modern government through
law, there are good reasons for recognising a whole range of devices
including positive inducements as well as negative sanctions
available to support rules. Terence Daintith has written of
government’s powers of imperium - much like Austin’s coercive
commands - being supplemented or supported by its dominium
powers - powers to distribute benefits of many kinds as inducements
to promote compliance with its policies (Daintith 1982). Law’s
sanctioning techniques may involve complex combinations of both
imperium and dominium (cf. Summers 1971). Nevertheless, if Austin
fails to recognise the variety of forms which power can take, the
stress on coercive sanctions at least keeps the relationship between
law and power firmly in the forefront of attention. It has even
The Coercive Structure of a Law 63
been suggested that Austin’s five years of army service coloured

his parade-ground view of law as negatively sanctioned command
(cf. Rumble 1985: 12-3). But, as will be argued later, a more
satisfactory explanation of Austin’s outlook on governmental
coercion is to be found elsewhere, in his wider view of the nature
of society and the state.
Although every law must by definition provide for a sanction,
according to Austin’s theory, a sanction can be ‘the smallest chance
of incurring the smallest evil’ (Austin 1832: 16). Austin’s views
on the possible role of sanctions in securing obedience will be
considered later but it is important to note that the prominent
place which sanctions occupy in his definition of law entails, in
itself, no sociological claims about the significance of sanctions
in ensuring compliance with law. Such claims are ‘foreign to the
matter in question’ (1832: 16). The role of sanctions in the definition
of law is purely formal. Laws, by their nature, provide for sanctions.
Sanctions are analytically essential to laws, whether or not they
are sociologically necessary. Thus, any disadvantage formally
specified directly or indirectly by a law as to be imposed in case
of non-compliance can serve as that law’s sanction. Mere
inconvenience or the fact that a transaction or document is rendered
null and void by law would count as sufficient sanctions. A sanction
can be a further legal obligation. Thus, breach of one law (say,
a traffic offence) might lead to a further obligation (to appear in
court to answer charges). Breach of that further legal obligation
might entail the threat of a direct legal sanction or, perhaps, would
render the offender subject to yet another legal obligation. Thus,
a chain of obligations is possible. At the end of the chain, however,
there must be a sanction (Austin 1885: 444-5). ‘Imperfect laws’,
lacking sanctions completely, cannot be considered laws in the
Austinian sense. Similarly, declaratory or repealing ‘laws’ are not
strictly laws since they command nothing (Austin 1832: 26-8).
Sanctions and Power Conferring Rules
The most serious problem for Austin’s conception of the relationship

between laws and sanctions is usually considered to be that of
so-called power conferring rules. These include legal rules which
enable people to make wills or contracts, or to enter into other
desirable transactions or arrangements which would lack security
without legal guarantee (private power conferring rules). They also
include rules giving powers to officials (public power conferring
rules). A now standard criticism of Austin emphasises that these
kinds of rules cannot be assimilated to coercive commands. They

often provide facilities for desirable activities. They are not
concerned primarily with imposing duties supported by penalties.
They enable officials or private citizens to act. How can the
command conception of law encompass these kinds of rules?
A full attempted defence of Austin must wait until his theory
of sovereignty - and especially the concept of delegation entailed
in it - has been outlined in the next section. Nevertheless some
preliminary remarks can be made here. Austin deals directly with
the question of private power conferring rules and clearly does
not see it as the problem that later writers have identified. As
mentioned above, he includes nullity of transactions as a sanction.
Thus, a will executed in improper form will not achieve the intended
legal effect since it will be held void in whole or part. A contract
made in breach of the Statute of Frauds may be unenforceable.
The loss of an expected advantage is the sanction in such cases.
Critics have considered that such ‘sanctions’ are quite different
from others Austin recognises (for example, damages, imprisonment
or fines) and that to equate them distorts the radically different
social functions of ‘power conferring’ and ‘duty imposing’ rules
(Hart 1961: 38). But it is important to remember that Austin’s
analytical concern with sanctions is purely formal. The differences
in social functions of laws are not pertinent here. Equally, since
any disadvantage (the smallest threat of the smallest evil) is enough
to constitute a sanction if it is directly or indirectly provided for
by law, the difference in the character of sanctions (for example,
the nullity of a transaction as against the requirement to pay a
Fine or monetary compensation) is not analytically important either
in this particular context (though, of course, it may be of
considerable sociological, political or other interest).
Austin’s prominent critic H. L. A. Hart, who has stressed the
problem of power conferring rules, admits that such rules can be
incorporated within an overall framework of law as a coercive
phenomenon. The problem Hart identifies is that to force all legal
rules into a single coercive model denies the variety of kinds of
laws (Hart 1961: 27-41). But it is vital to recognise that Austin’s
position does not require such a forced distortion. His ‘only claim
is that the features he indicates are relevant to all laws’ (Moles
1987: 66). Austin wishes to stress the coercive basis of law which
he considers is reflected in all its rules. There is no suggestion
that all rules have the same functions or the same form or the
same kinds of sanctions.
Where so-called public power conferring rules addressed to legal
‘officials’ are concerned, the nullity-as-sanction argument may
Sanctions and Power Conferring Rules 65
equally apply. The relevant sanction in such cases is likely to be

against an official in his ‘official capacity’, rather than in a personal
capacity. Thus, if a judge exceeds his jurisdiction, his decision is
liable to be overturned by an appellate court. An improper direction
to a jury by the judge in a criminal trial is liable to result in the
conviction being quashed on appeal. The legal system as a whole,
by providing means of correcting legal errors also provides for
indirect sanctions because it enables (professional or social)
sanctions of inconvenience, ridicule or lessening of reputation to
attach to the official concerned. As has been seen earlier, Austin’s
‘smallest chance’ of ‘the smallest evil’ encompasses a wide range
of possible sanctions. All that is required by the theory is that
they be provided for directly or indirectly by the law (a guilty
conscience would not count as a legal sanction). It would seem
that in cases of public power conferring rules where no direct penalty
is attached to an official failing to comply with these rules, the
legal nullity-sanction harnesses social sanctions which may be
important to someone whose job security, prospects and
effectiveness depend significantly on reputation.
In one sense, it is misleading to attach great significance to
arguments centring on the sanction of nullity in considering the
Austinian view of power conferring rules. The discussion here has
done so largely because, given that Austin’s critics tend to make
so much of this matter, it seems worthwhile to show that Austin’s
arguments about nullity do have something to be said for them.
In fact, however, the nullity sanction would only be relevant, if
at all, to that aspect of power conferring rules which imposes duties
or conditions on the power holder (for example, the duty of the
judge not to exceed his jurisdiction, of the administrative official
not to act ultra vires, or the requirement that the testator sign
the will if it is to be recognised as valid). It is absurd to seek
sanctions attaching to the power holder with regard to the power
conferring element itself - that is, the element of freedom to act.
But Austin’s theory enables us to see where, according to his
viewpoint, the relevant sanctions lie. It will be recalled that, for
Austin, rights in one person (which, in this context, he does not
distinguish from powers or liberties) are merely the consequence
of duties attaching to other people. Thus, insofar as a rule confers
powers on X it is to be understood as a command to all other
people concerned to recognise and respect the authority of X. Thus,
the relevant sanctions attached to the rule giving X power are those
sanctions which support the duty of others to accept X as having
authority within the scope of the rule.
It should be added, to complete the Austinian picture, that many
procedural rules can be seen as no more than technical devices

to make possible the direct sanctioning processes of law. Thus,
for Austin, all ‘laws or rules determining the practice of courts,
or all laws or rules determining judicial procedure, are purely
subsidiary to the due execution of others’ (Austin 1832: 235). The
argument here, as in other contexts, is that strings or combinations
of rules can exist, linking obligations to each other, and ultimately
connected to some prescribed sanction. Otherwise, laws without
sanctions are parts of others which do have sanctions. In fact,
a difficult analytical problem is hidden in this kind of thinking:
what counts as a single law or rule? Bentham wrestled with the
problem of‘individuation’ of laws (Bentham 1970: ch 14; cf. James
1973) but Austin largely ignores it. Again, it can be said that for
Austin this is a detail. What is essential for him is to demonstrate
the structures of power, expressed in complex and interwoven legal
forms, to which each crucial element in the legal order is tied by
provisions for sanctioning in the event of non-compliance.
Austin’s concern with power conferring rules is merely to give
them a place within a theory which sets out to portray law (in
stark contrast to its portrayal in common law thought) as an
expression of modern centralised governmental power. For some
later writers - perhaps including Hart - power conferring rules
have become a special focus of attention for reasons which do
not particularly concern Austin; reasons related to certain liberal
legal theories and conceptions of the Rule of Law which will be
discussed in Chapter 4. These theories and conceptions tend to
stress law’s role in marking out areas of guaranteed freedom in
life (such as civil or political liberties and economic freedoms).
A pre-eminently important matter for them is the freedom or power
conferred by legal rules. By contrast, Austin’s legal theory
emphasises that these areas of freedom are only what the legally
directed power of the state defines them to be through the imposition
of duties on people. Because law dominates through its coercive
force, areas of liberty are merely what law creates and guarantees
through this force. Thus, for Austin, emphasis is not on the powers
themselves but on the coercive structure which surrounds them
and on which they are wholly dependent. Law gives and takes
away powers: of people generally, of particular categories of people,
or even (given the limited requirement of generality of rules discussed
earlier) of specific individuals.
The crucial point is that Austin is not necessarily wrong because
he does not share the emphases of these later writers. As the general
approach of this book seeks to show, questions in legal philosophy
are asked - and made meaningful - in the context of their time
Sanctions and Power Conferring Rules 67
and place. Austin answers questions as to how power conferring

rules fit within the coercive model of laws and, for his purposes,
in the context of his theoretical project, the answers are less
inadequate than is often claimed.
Sovereignty
Consideration of other criticisms and possible defences of the

command theory must wait until its most crucial component -
the concept of the sovereign - has been discussed. If law is a type
of command, the identity and character of the commanders and
what enables them to issue legal commands must be established.
If laws provide for sanctions, the authority to impose sanctions
must be explained. The theory of sovereignty which Austin adapts
from Hobbes’ political philosophy and, to a lesser extent, from
Bentham’s commentaries on Blackstone is intended to serve these
purposes.
What makes commands rules is the element of generality in them;
what makes rules laws - in the sense of positive laws, the subject
of Austin’s jurisprudence - is the fact that they are direct or indirect
commands of the sovereign of an independent political society. These
commands are addressed to the members of that society, who are
thus subjects of that sovereign. Austin writes of the sovereign as
a person (for example, an absolute monarch) or a body of persons
(for example the lawmakers or electorate of a democracy, or the
members of an established ruling elite). It is essential, however,
to note that he always means by the sovereign the office or institution2
which embodies supreme authority; never the individuals who
happen to hold that office or embody that institution through their
relationships at any given time (e.g. Austin 1832: 146-7, 261).
Austin’s sovereign is an abstraction - the location of the ultimate
power which allows the creation of law in a~s5Slt:lv. As will-apoear
latej^his. point impQrlanc^sinceJre:has_ often
been criticised for describing sovereignty, and the source of legal
authority, in ‘personal’ terms.-'
Undoubtedly he felt no need to labour the matter for, in the
tradition of political theory which he relies on, sovereignty is
explicitly ‘abstract’. Hobbes, writing in the context of Cromwellian
England, describes sovereignty as the ‘artificial soul’ of ‘an artificial
man’, the latter being the state or commonwealth. The sovereign
2 For the meaning I attach to the word ‘institution’ in this context see
p 3, above.
is an office, not a particular person or particular people (Hobbes

1962: 59, ch 30). In the seventeenth century, Hobbes transformed
English discussion of the authority of the ruler by substituting for
the power of the king the abstract notion of the state as expressed
in the concept of sovereignty (cf. Hinsley 1986: 142); although,
eventually, faced with the difficulty of locating sovereignty in
England, he found it (prudently, after the royal Restoration) in
the institution of the monarch (Yale 1972: 137-8). No doubt it
was Hobbes’ image of sovereignty which predominantly shaped
Austin’s (his admiration for the earlier writer is very clear in the
lectures). By contrast, Austin distances himself in important
respects, as will appear, from Bentham’s tentative and somewhat
confusing discussion of sovereignty.
What is the sovereign of an independent political society? Hobbes
had defined such a society as one which could defend itself, unaided,
against any attacks from without. Austin realistically notes that
few if any societies would qualify on this basis. Accordingly, it
is the existence of sovereignty which defines independence, assuming
the society is of a certain minimum size (Austin 1832: 198, 207-
8,213). Political independence and sovereignty are correlative terms.
Sovereignty exists when two conditions are satisfied: first, the bulk
of the society are in a habit of obedience or submission to a
determinate and common superior (whether an individual or a body
of individuals) and, secondly, that individual or body is not, itself,
in a habit of obedience to a determinate human superior. The idea
of a habit of obedience introduces a factual, indeed sociological,
criterion of the existence of sovereignty and, in this, Austin follows
Bentham rather than Hobbes. Hobbes founded the existence of
sovereignty in an assumed ‘social contract’ by which individuals
could be thought of as joining together to form a society and
entrusting the absolute power of government to a sovereign who
would provide peace and physical protection for them. The ‘war
of all against all’ which would exist without government would
be replaced by the domination of the sovereign to whom all are
subject. But this analysis presupposed that individuals have natural
rights which, by the social contract, they agree to forego so as
to institute a sovereign power over them. As has been seen earlier,
neither Bentham nor Austin was prepared to accept ideas of natural
rights, treating them as irrational dogma. Thus Bentham, and Austin
following him, discard Hobbes’ social contract basis of sovereignty
and replace it with the idea of a factual basis of sovereignty in
actual habitual obedience. One consequence of this is that while
Hobbes’ social contract gave the sovereign the right to rule, both
Bentham and Austin deny that it makes any sense to talk of a
Sovereignty 69
right in this context (see Hart 1982: 221; Austin 1832: 277-8). The
existence of sovereignty is merely a political fact, not a matter
of right and wrong.
On one view, the ‘weak side of the “Austinian analysis” is this
transference of a legal conception to a sociological problem’
(Stephen 1900: 329) and certainly the grounding of the ultimate
authority to create law in a sociological consideration stores up
problems for normative legal theory. Nevertheless, it is easy to
see here the utilitarian attempt to be realistic, to avoid dogma and
abstract talk about arbitrarily assumed natural rights, and to avoid
sanctifying authority. Austin cannot resist speculating on why people
might habitually obey but for the moment that matter can be left
aside. Like the sociological question of how far state sanctions
induce compliance with law, it is not important to the analytical
issue of the location of sovereignty. All that is necessary for the
latter is the fact that habitual obedience by the majority of the
population exists. Where there is no such obedience there is either
anarchy (no recognised sovereign at all) or revolution (the
population is divided into groups rendering habitual obedience to
different authorities).
Some Characteristics of Austin’s Sovereign
Two important characteristics of the Austinian sovereign have

already been noted. It must be common (that is, only one sovereign
can exist in any single political society; the sovereign is, in that
sense, indivisible although it can be made up of several components).
And it must be determinate (that is, the composition of the sovereign
body or the identity of the sovereign person must be clear). A
further characteristic has produced more controversy than any other
aspect of Austin’s conception of sovereignty. This is that the
sovereign is illimitable by law. This follows directly from Austin’s
definition of law. Every law is the direct or indirect command of
the sovereign of an independent political society. But a sovereign
cannot issue enforceable commands to itself - or at least, even
if such an idea is conceivable, the sovereign can abrogate them
at any time. And no laws other than the sovereign’s own commands
can exist to bind it. ‘Supreme power limited by positive law, is
a flat contradiction in terms. . . Every supreme government is legally
despotic’ (Austin 1832: 254, 271).
Many critics have considered that Austin’s view of sovereignty
conjures up the image of a despotic monarch - an archaic and
wholly inappropriate way of thinking upon which to found an
analysis of the authority of law in modern Western societies. But

if we look more closely this is not necessarily so. First, Austin
does not suggest the sovereign is free of limitations but only legal
limitations. Thus positive morality (reflected in public opinion,
widespread moral or political expectations, and ultimately the threat
of rebellions) may provide important constraints. Secondly, most
of Austin’s discussions of sovereignty relate primarily to the
conditions of representative democracies (especially Britain and the
United States). Thirdly, Austin’s concept of delegation by the
sovereign, which will be considered below, is used by him to express
the possibility (which has become a reality in most complex modern
industrialised societies) of very extensive dispersion of legislative,
adjudicative and administrative authority within the overall
hierarchical framework of a centralised state.
Nevertheless, it is widely considered that Austin’s conception
of an indivisible and legally illimitable sovereign quickly runs into
the most serious analytical difficulties. The problems seem to begin
as soon as one seeks to identify the sovereign in particular societies.
In orthodox British constitutional law the sovereign is said to be
the Queen in Parliament: that is, the sovereign is made up of the
monarch and the two houses of Parliament. Constitutional law
supports the claim that such a sovereign is legally illimitable.
Parliament cannot bind itself or its successors by legislation3. Since
the House of Commons is the representative of the electorate,
however, Austin locates sovereignty in the monarch, the House
of Lords and the electorate of the Commons (Austin 1832: 230-
0.
Many critics have seen this as either problematic or utterly
misleading. In particular, Austin has been seen as confusing legal
and political sovereignty (Dicey 1959: 76; Buckland 1949: ch 9).
Popular sovereignty may well reside in the electorate, but for legal
purposes surely Parliament is sovereign. In fact, there is no
confusion. Austin does not write of legal sovereignty or treat
sovereignty as supreme legal competence. As C.A.W. Manning
points out, Austin’s sovereignty is not a legal but a pre-legal notion.
It is ‘the logical correlate of an assumed factual obedience’ (Manning
1933: 192, 202). In modern terms, we can say it is the locus of
legitimate ultimate political authority. It is not ‘a specified organ
or complex of organs, but. . . that individual or collectivity at whose
pleasure the constitution is changed or subsists intact’ (Manning
1933: 192). But if this is so how can the electorate as subjects
3 E.g. Vauxhall Estates Ltd. v Liverpool Corporation [1932] 1 KB 733;

Ellen Street Estates Ltd. v Minister of Health [1934] 1 KB 590.
Some Characteristics of Austin’s Sovereign 71
be in a state of habitual obedience to themselves as sovereign?

The answer is that the members of an independent political society
as individuals can be in a state of habitual obedience to a sovereign
which is the abstract institution defined as monarch, Lords and
the collectivity represented by the electorate of the Commons. The
distinction between the subject population and the electorate
forming part of the sovereign (and made up of essentially the same
people) is a distinction between subject individuals and a sovereign
collectivity. There is nothing incoherent in claiming that the
individual is subject to the authority of the collectivity as an
institution, or that the collectivity as a whole retains authority
because the bulk of individuals continue to accept its authority.
What of the case of written constitutions and those where the
distribution of governmental authority is especially complex; as,
for example, in federal systems? Austin considers at some length
the location of sovereignty in the United States to illustrate his
approach. The sovereign must be a person or body of persons,
but the ultimate authority of the American polity appears to be
a document - the Constitution. Where then does sovereignty lie.
Of course, in the Austinian analysis it must lie with that body
of people that has ultimate authority to alter the Constitution
(Austin 1832: 250-1). The Constitution itself provides in Article
5 that amendments to it must, to be valid, be ratified by the
legislatures of (or conventions in) three quarters of the states. Again,
in an Austinian analysis, where representatives are involved, it is
the electors of these representatives who form the sovereign body.
Critics note that the Austinian sovereign in such a context is
‘a despot hard to arouse’, ‘a monarch who slumbers and sleeps’,
since constitutional amendments are rare (Dicey 1959: 149). But
this situation matters only if we are seeking (as Austin is not) a
legal sovereign - that is, an active, ultimately authoritative
lawmaker. By contrast Austin is identifying only the location of
ultimate authority underlying the constitutional order; the
institution which is recognised as having authority to confirm or
amend that order. Suppose that in a political society with a written
constitution there is no such institution; no means of constitutional
amendment. Sovereignty would then seem to lie in those
governmental and legislative institutions which the constitution
recognises as ultimately authoritative, since nothing capable of
changing their authority stands behind them. In an Austinian view,
however, sovereignty resides in these authorities not because of
their designation by the constitution, but because the authorities

so designated are themselves habitually accepted4.
Must the Sovereign be Legally Illimitable?
We have noted that Austin insists that by definition the sovereign

cannot be subject to legal limitations. Blackstone (1809 I: 49) had
earlier claimed that in every legal system there is a supreme, absolute
and unlimited legislative power. Bentham, however, thought
differently. While claiming that there are no a priori theoretical
limits on sovereign power, he nevertheless considered that legal
limits on such power were practically possible. Like Austin, he
grounds the existence of sovereignty in the fact of habitual
obedience. Hence he sees the possibility of conditional habitual
obedience; that is, obedience might be habitually rendered to
sovereign acts within certain limits. The ‘obedience of the governed
is susceptible of every modification of which human conduct is
susceptible: and the rules which mark it out, of every diversity
which can be clearly described by words’ (Bentham 1970: 69; cf.
Bentham 1977: 489).
4 Consider a further problem arising in a full parliamentary democracy

in which, in Austin’s terms, the electorate alone is the sovereign. The
parliament may pass legislation altering the composition of the electorate
(for example, by enfranchising people who previously had no legally
recognised right to vote). This seems to be a case of the sovereign
purporting to alter itself by law. Yet, for Austin, the sovereign is above
law; its creator, not the creature of law. Can Austinian theory be applied
to explain such a situation? Austin himself provides no satisfactory
solution but the matter could be argued as follows. The legislation
changing the composition of the electorate is certainly law (as the
sovereign’s command). The issue is as to whether it is, in itself, effective
to alter the sovereign. Austin must say it is not, for the sovereign’s
identity depends not on law but on recognition by the bulk of the
population. The identification and limits of the sovereign and its
authority are essentially governed by what Austin would term positive
morality. But the new electoral law does, at least, have the authority
of law and as such may strongly influence positive morality towards
the acceptance of a redefined sovereign. Obviously the legitimacy of
future law which claims authority as the commands of the redefined
sovereign depends, on this analysis, on popular acceptance of the
redefinition, not on the fact that the redefinition has been enshrined
in law. If the redefinition of the sovereign is accepted, however, the
redefining law will, no doubt, be treated as legally expressing the new
understanding of sovereign authority.
Must the Sovereign be Legally Illimitable? 73
This is plausible, but seems to run into problems when it is

suggested that the limitations on sovereign power are legal. In Of
Laws in General Bentham does suggest this by terming some of
these limitations leges in principem (1970: 64). But where does their
legal quality come from? He recognises that leges in principem,
like all other laws, must derive from the sovereign but his
explanations of how the sovereign can bind itself are far from
satisfactory, relying on suggestions about the invocation of external
pressures of popular opinion, religious or moral sanctions, or
international relations (Bentham 1970: 67-70). For Austin, of course,
these kinds of sanctions are characteristic not of law but of positive
morality. It is by no means apparent how Bentham’s leges in
principem acquire their legal character. His apparently inconclusive
discussion seems motivated here primarily by the desire to recognise
clearly the variety of constitutional structures which do indeed
distribute authority within states in complex ways - for example,
through federal arrangements, provision for judicial review of
legislation, entrenched constitutional clauses, or the explicit
separation of governmental powers.
Austin’s simpler and clearer conception of legally unlimited
sovereignty is not incapable of dealing with these complexities. It
has been seen that for Austin the sovereign is always an institution
- for example, the monarch, not the person who is king at any
given time; the body which can change the constitution, not the
particular individuals who may form that body. How is the
institution defined or identified? It would seem that two kinds of
rules may do this: rules of positive law and rules of positive morality
(for example, public opinion expressed in customary, moral or other
rules, conventions or expectations). Only positive morality can
actually bind the sovereign so as to fix its institutional character.
Positive law cannot do this since the sovereign can alter this law
at will. But even if it does not bind the sovereign it can have the
status of law if commanded by the sovereign and addressed to
any part or agent of the sovereign body (for example, to the British
parliament - perhaps defining its procedures; to judges - perhaps
specifying jurisdiction; or to the monarch within a constitutional
monarchy - perhaps defining the monarch’s powers as well as the
right of succession to the throne). Positive law can bind each part
of such a sovereign body as ‘the Queen in Parliament’ since each
part is not itself sovereign.
Nevertheless, the considerations which fix the nature of
sovereignty in general in a particular political society must be
founded in positive morality, not law. Sovereignty is, as has been
seen, a pre-legal concept. In an Austinian view no law can confer
or validate sovereignty. Austin asserted that much of constitutional

‘law’ must, in fact be merely positive morality for this reason. This
is a much less unrealistic view than has often been claimed, once
it is appreciated that, on the basis of the arguments above, laws
directed to distinct parts of the sovereign body (or, perhaps more
accurately, distinct institutions through which sovereignty is
expressed) can certainly be accepted as laws in Austinian terms,
even though they cannot bind the sovereign as a whole.
The acceptance of the sovereign as an institution seems to remove
much of the difficulty which has been thought to exist for Austinian
attempts to explain the persistence and continuity of laws (cf. Hart
1961: 50-64). Laws can remain in force as long as the institutional
sovereign remains, perhaps for centuries. Equally, the problem of
succession to authority (for example, how one king succeeds another
in a recognised line of succession) and the continuity of laws which
accompanies it may be explained in Austinian terms by the existence
of rules of positive morality or of positive law as described above.
Where sovereignty appears to reside entirely in a single person
such as an absolute monarch it would seem that that the rules
governing succession to the throne can only be rules of positive
morality. But Austin would consider this a wholly realistic view
of the matter. Whatever may be written in ‘legal’ form (as statutes,
for example), succession in such a situation depends on political
loyalties, traditional beliefs, and ideological notions which only
a most narrow-minded jurist could try to reduce to purely ‘legal’
determinants of succession.
The Judge as Delegate of the Sovereign This defence of Austin
is far from claiming that law must be interpreted in something
like his terms. He offers only a particular partial perspective which
emphasises a certain relationship between law and the modern state,
viewed in terms of sovereign power. Writers who have argued
forcefully against his interpretation have usually wanted to see the
legal system as being governed by rules, even in its highest regions
of authority, rather than - as Austin’s theory so starkly claims
- governed by people, mere human decision-makers with all their
frailties and potential for arbitrary or tyrannous exercise of power.
As noted earlier, Austin’s theory is not a theory of the Rule of
Law - of government subject to law. It is a theory of the ‘rule
of men’ - of government using law as an instrument of power.
Such a view may be considered realistic or merely cynical. But
it is, in its broad outlines, essentially coherent.
The Judge as Delegate of the Sovereign 75
The Judge as Delegate of the Sovereign
The concept of delegation of sovereign power is fundamental to

Austin’s thinking. It is obvious that the theory of sovereignty applied
to modern conditions must entail such delegation among numerous
agencies, empowered to transact the business of the state in one
way or another. Indeed, the idea of delegation in this sense is the
element necessary to complete the discussion of power-conferring
rules which was begun earlier in this chapter. The sovereign, in
Austinian terms, delegates legislative and administrative functions
to many institutions - including, significantly, the judiciary. Equally,
law-making power is delegated to private citizens who exercise it,
for example, in the creation of contracts according to terms chosen
by the contracting parties, but which the sovereign’s institutions
will enforce (cf. Bentham 1970: 22ff). Each dispersion of sovereign
power in this way is a delegation, not a release of it. Each legitimate
exercise of such power to create legal obligations (for example,
when a court lays down a new rule in a case or when an official
establishes a rule on the basis of statutory authority conferred on
him) must be treated as an exercise of the sovereign’s power of
command. Hence, insofar as such an act is not revoked or
invalidated by higher authority representing the sovereign, it can
be considered a tacit command of the sovereign (Austin 1832: 31-
2; 1885: 642).
Many critics have claimed that this notion of tacit command
- which is present also in the theory of Hobbes (1962: 248) - is
unrealistic as regards law-making through judicial decisions (e.g.
Maine 1875a: 364-5; Rumble 1985: 112). Are not judges independent
in such democracies as, for example, Britain and the United States?
How can they be considered mere delegates of some other authority?
The difficulty again arises from treating Austin’s sovereign as a
legal sovereign - an ultimate legislating institution. Thus, the legal
doctrine of parliamentary sovereignty in Britain - which recognises
Parliament as the highest law-creating authority - does not, of
course, entail that judges are delegates of Parliament. Austin’s
theory does not, however, suggest that they are. It claims merely
that they must act as representatives of the constitutional order
of which they are a part. In Austinian terms that constitutional
order is the consequence of the pre-legal sovereign authority
embodied in monarch, Lords and the electorate of the Commons.
Logically, it would seem to follow that delegation of sovereign
power, insofar as it is accomplished by law, must itself be
accomplished by means of the sovereign’s commands - whether
as specific requirements for action or prohibitions imposing limits
on action, whether addressed to holders of an office or to those

people who are to be subject to the power of the office-holder,
and whether express or tacit.
Many important consequences follow from Austin’s way of
looking at the distribution of political and legal authority in the
state in this way. For example, his view of the judge as delegate
of the sovereign entails a straightforward recognition that judges
legislate no less than do legislatures. Judges make law insofar as
their decisions embody what can be considered to be the sovereign’s
tacit commands. Austin’s carefully expressed views on judicial law¬
making have often been misinterpreted and are certainly very
different from Bentham’s. Bentham sought a rational, codified legal
system which would make not only judicial law-making but
probably also judicial interpretation of law unnecessary and
inappropriate. The role of the judge would be to decide cases not
by appeal to legal precedent but by following the demands of utility
in the particular case, and seeking to reconcile differences between
the parties where possible (Postema 1986: ch 10). Judicial decision¬
making would thus be radically separated from the rational code
structure of the law itself. Such a position follows from Bentham’s
conviction that rational law could only be constructed through
purposive legislation, not by judicial pronouncements inspired only
by the accidents of litigation. As Bentham’s recent interpreter Gerald
Postema admits, it is hard to construct a coherent theory of the
place of the judiciary in the legal order from such ideas (Postema
1986: 453-9).
Austin is the model of cautious moderation beside Bentham’s
radicalism. But he does claim that judges ‘of capacity, experience
and weight’ have generally been insufficiently active in developing
the law (Austin 1885: 646-7). He argues against the idea that judicial
law-making (or, as he calls it, ‘judiciary law’) is arbitrary or
undemocratic, taking as his primary point that judiciary law is
no different in this respect from any other form of subordinate
legislation and, in all such situations, positive law and public opinion
must provide the necessary safeguards. The most radical theme
which emerges is that insofar as judges make law there is no reason
to treat their law-making role as necessarily and essentially different
from that of other delegates (officials, administrators, boards and
committees) of the sovereign entrusted with rule-making functions.
Thus, Austin’s criticisms of judiciary law are entirely technical ones.
It tends to be made in haste; it is inevitably established ex post
facto', it ‘exists nowhere in fixed or determinate expressions’; it
tends to be vague and inconsistent; its rules are ‘never or rarely
comprehensive’; there is no clear test of its validity; its existence
The Judge as Delegate of the Sovereign 77
tends to make accompanying statute law ‘imperfect, unsystematic,

and bulky’ (Austin 1885: 649-59). Hence code systems are, as
Bentham had argued, better than common law systems. But, whereas
Bentham rests the matter squarely on unshakeable assumptions
about where perfect legal rationality resides and would, it seems,
like to sweep away the law-making judge into the museum of archaic
curiosities, Austin painstakingly weighs up the practical
considerations and on balance confirms the purely technical virtues
of codification and legislation.
Austin’s Theory of the Centralised State
Austin’s view of the judge as essentially just one variety of state

functionary among many others leads us into a wider consideration
of his image of the modern state. Austin’s political and social theory
is ignored in most jurisprudential discussions of his work, yet it
provides the essential context in which his concept of delegation
of sovereign power is given significance. In his early political writings
he made clear his belief in the virtues of political centralisation.
Austin’s top-down image of law reflects a top-down image of the
polity. Like the other major nineteenth century writers discussed
so far in this book he was far from from being a democrat (though
Bentham, towards the end of his life, came to advocate a kind
of democratic government: see Dinwiddy 1975). Austin viewed
government as a matter of rational management to be guided by
principles of utility. As such - and rather like Maine - he viewed
it as a matter for experts. John Stuart Mill wrote that after Austin’s
return from Germany in 1828, ‘he acquired an indifference,
bordering, on contempt, for the progress of popular institutions’
(quoted in Dicey 1905: 163). As time went on, his views became
increasingly conservative and in his last published writings he
polemicised against any constitutional reforms which would extend
democracy.
These views should be understood in the context of the intellectual
climate of his times. At the time Austin wrote his lectures his view
of government was undoubtedly elitist in the most literal sense.
The real security for good government would be not popular
participation but an enlightened population, which, understanding
the rational principles which governing elites should follow, would
not obey government blindly but on the basis of a critical recognition
of its rational purposes. Both John and Sarah Austin believed
fervently in the need for universal education, which would make
it possible for the broad population to distinguish sound policy
78 Sovereign and Subject: Bent ham and Austin
and scientific principles (for example, of political economy) ‘from

the lies and fallacies of those who would use them for sinister
purposes, and from the equally pernicious nonsense of their weak
and ignorant well-wishers’ (Austin 1832: 66). While most ordinary
subjects lacked both time and inclination to master the knowledge
that would make acquiescence in government a fully rational affair,
Austin considered that they could learn at least the ‘leading
principles’ of those matters (such as social ethics and economics)
which concern government, and ‘if they were imbued with those
principles, and were practiced in the art of applying them, they
would be docile to the voice of reason, and armed against sophistry
and error’ (Austin 1832: 65). Thus, Austin’s view of the bases of
obedience is not like that of Maine who, as noted in the previous
chapter, saw the role of reason as strictly circumscribed and
emphasised the irrational, customary foundations of the acceptance
of authority.
All this suggests that to see Austin’s view of law (as commands
supported by sanctions) as much like a view of mere orders backed
by threats (such as those of a gunman pointing his gun at the
person addressed) is misleading (cf. Hart 1961: ch 2). The relation
between sovereign and subject is far more than one founded on
coercion. The habit of obedience to the sovereign is, according
to Austin, rooted in custom, prejudices and ‘reason bottomed in
the principle of utility’ - that is, a recognition of the expediency
of government (Austin 1832: 300). In a soundly educated people,
reason would play a most important role. Equally, when we consider
the significance of the sanctions attaching to law in actually securing
obedience to law, Austin notes that fear of state (legal) sanctions
is not likely to be more powerful as a deterrence against deviance
than is ‘the fear of public disapprobation, with its countless train
of evils’ (1832: 69). In forming moral character the latter is far
more significant than the former.
Thus, Austin s image of the centralised state, making extensive
use of coercion through law in the matter of government, is also
an image of a state which can be based on reason; guided in
governmental activity by utility, and securing the allegiance of
subjects to the sovereign ideally through their rational
understanding, not prejudice, fear or blind habit. Nevertheless,
Austin considers that it must realistically be recognised that
populations are kept largely unenlightened by their rulers. Hence
much government, in fact, relies on irrational, habitual acquiescence
by the population. Universal education is thus the Austinian
prescription for a sound and enlightened polity.
A need for acquiescence in a centralised source of state authority
Austin’s Theory of the Centralised State 79
in the sovereign goes along with the need for extensive delegation
of sovereign powers, as has been seen. Austin praised the institutions
of local government and recognised the appropriateness of judicial
law-making and extensive rule-making in administrative contexts.
Nevertheless, in his writings on the virtues of centralisation he insists
that none of this delegation must be allowed to defeat the central
co-ordination of government by which rational utilitarian policies
can be consistently brought into effect.
In later life, Austin changed many of his political views, replacing
much of his optimism about the prospects for rationality in politics
and social organisation with a Maine-like pessimism. Centralisation
seemed less attractive to him with his fading belief in the potential
of government to direct society rationally, and with a growing fear
of its control by despots or mobs (Hamburger and Hamburger
1985: 185-6). Most fundamentally, Sarah Austin tells us that her
husband decided some time after 1832 that ‘until the ethical notions
of men were more clear and consistent, no considerable
improvement could be hoped for in legal and political science, nor,
consequently, in legal or political institutions’ (Austin 1885: 16).
Apparently, education remained the key to advance but the struggle
was now seen as a far harder one than had originally been envisaged;
perhaps, indeed, an impossible one.
Austin’s late and profound pessimism should not affect the
assessment of the ideas contained in his lectures. It should alert
us only to the fact that his ‘timeless’ concepts of ‘sovereign’,
‘command’, ‘sanction’ and ‘habitual obedience’ are not formulated
in isolation from specific political conditions. Like most elements
of normative legal theory they are conceptual reflections of a
particular time and place, transformed in a way that gives them
the potential to speak to other generations in other legal conditions.
In Austin’s case, however, these concepts are formulated with a
clear awareness of the sociological questions they entail. This
dimension of his thought has been almost totally ignored by his
critics in the field of normative legal theory.
Austin and the Legal Profession
Austin’s legal philosophy, like Maine’s historical jurisprudence with

which it was effectively contemporaneous, reflected the political
conditions of a state gradually forming modern capacities for
deliberate direction of economic and social life. But it was far more
influential on professional legal thinking, in the long run, than
was Maine’s work. Austin explicitly addressed his work to lawyers.
His concern for systematisation and rationalisation of legal doctrine

was noted at the beginning of this chapter. He seemed to offer
a means of working towards the neat and ‘scientific’ organisation
of professional legal knowledge which historical jurisprudence and
the common law tradition apparently could not provide. Austin
wrote of the possibility of supplying a ‘map of the law’ for the
newcomer student; a map based on broad rational principle and
demonstrating the structure of a legal system (Austin 1863: 379).
His theory of law and sovereignty seemed to show how even the
most basic notions of law could be explained in terms of their
logical structure and their unifying authority. Thus, when the second
edition of Austin’s Province of Jurisprudence Determined was
published it ‘was immediately welcomed as the only English work
which offered a methodology for the scientific textbooks on English
law required by the new courses’ in legal education beginning in
the universities and the Inns of Court (Stein 1980: 85-6). Austin’s
jurisprudence, whatever its faults, showed a serious attempt to
analyse the character of law without appeal to the vague, romantic
images of common law thought. It seemed to offer a theory for
the times which would explicitly recognise the modern dominance
of legislation, the active law-making of the modern state, and the
idea of law in flux as a purposive human creation.
But, it may be suggested, Austin’s most important professional
contribution was to show, at the same time, that despite the potential
changeability of law and the fact that political powers - not judges
- now made the running in legal development, law could still be
considered a unified field of professional knowledge. Austin’s
jurisprudence, as has been seen, clearly distinguishes law from
morality. It asserts also that custom is not law unless adopted as
such by the courts (that is, by the sovereign’s tacit command).
It marks out the field of law - the province of the lawyer’s concerns
- with a rigour which is quite impossible within the framework
of classical common law thought. Thus, intellectually-minded
lawyers could see that Austin might be offering the basis for
elaborating legal knowledge as a well organised subject respectable
within the environment of university education and as the special
learned expertise of a modern profession of lawyers. Law would
be ‘neither a trade, nor a solemn jugglery, but a science’ (Pollock
quoted in Sugarman 1986: 36).
Austin’s work left unanswered questions about the nature and
method of this science which, as will be seen in the next chapter,
have troubled later writers. However, the professional
considerations to which his work relates explain, to some extent,
why it is the theory of law and sovereignty in The Province, and
Austin and the Legal Profession 81
not the broader elements of Austin’s ‘general jurisprudence’

developed in the other lectures, which has attracted continuing
attention. While the latter lectures dwell on the substance of law
- the notions common to mature systems of law such as ‘property’
and its numerous aspects and categories - the theory of The Province
is primarily concerned with the form of law and the structure of
legal authority. Perhaps, it can be suggested, professional knowledge
of law in an era of continuous legal change promoted by the
directive, legislative activity of the state, could only be unified
around ideas about the form and structure of law, and not around
ideas about law’s substantive content. The content of law was not
only potentially in constant flux, but was beyond lawyers’ control
(unlike the situation in earlier eras when judges both explained
and controlled legal development). It was the result of political
considerations which could not themselves easily be brought within
the professional knowledge field of lawyers.
Of course, these political considerations intrude into Austin’s
lectures in The Province in those passages where he discusses the
principle of utility. But it has been noted earlier in this chapter
that Austin’s emphasis is always on rationalisation of law as it
is - as a lawyer or law student needs to understand it. The ‘science
of legislation’, which had been fundamental to Bentham, is
portrayed by Austin as something for the ordinary student to avoid.
There are passages in Austin’s writings where his caution proscribes
any flights of the imagination. He explains (1863: 374) that a teacher
might properly occasionally spice his exposition with references
to issues of legislative policy but should do so only on matters
‘which do not try the passions’. And there is always a need for
a narrow focus, for limiting the range of what is studied. Most
people must be content with putting together no more than the
limited package of knowledge they need for immediate practice.
‘I am sorry it is so’, he writes (1863: 388).
This is a far cry from Bentham’s urgent commitment to legal
reform and to a legal science which would continually serve the
needs of legal improvement. But Austin’s outlook pointed the way
towards what has been called the expository tradition in legal
education and scholarship. It suggested that a viable science of
law could be built around the task of rationalising law as it is
without much concern for how it ought to be, even in the modern
era of never-ending legislative change.
On the other hand, the elements of Austin’s theory discussed
in this chapter also explain some primary reasons why it evokes
so much hostility among many writers concerned with normative
legal theory today. Discussion here has tried to suggest that it may
be not the general logic of Austin’s jurisprudence which is primarily

at fault, for many of the matters which critics have most strongly
emphasised were well understood by Austin and dealt with by him
in the context of his theory. A main - if usually unstated - reason
for condemnation of Austin may be that the emphases of his thought
seem politically inappropriate. Austin’s theory, as has been seen,
does not deny the possibility of constitutional controls on
government. But, as an optimistic utilitarian at the time he wrote
his lectures, he, like Bentham, saw strong government as a virtue
as long as that government was guided by the rational principles
of utility. The theory of sovereignty and the political theses of
centralisation and delegation which inform and fulfil it are inspired
by this opinion. Equally, Austin’s lack of an overriding concern
for the value of liberty except as part of the utilitarian calculus
of advantages offends modern sensibilities. The apparent reduction
°f judges, in Austin’s portrayal, to merely one type of rule-creating
or rule-interpreting state official among others also rankles, as does
the related lack of patience with orthodox theories of the separation
of governmental powers. Finally, Austin’s view of international
law (which will be left for comment until the next chapter) as positive
morality rather than law seems inappropriate in a modern world
of increasingly intricate international ties.
These political and constitutional matters seem specially relevant
for lawyers’ professional outlook and concerns and the different
view of them in some post-Austinian normative legal theory will
be considered in the next chapter. The concern of discussion here
has been to suggest that, interpreted in its own context and in
terms of its own emphases, Austin’s jurisprudence remains a
valuable contribution to normative legal theory and one which
grasped the problem of recognising realistically the phenomenon
of centralised modern state power in a way that classical common
law thought seemed wholly ill-equipped to do.
4 Analytical Jurisprudence and Liberal
Democracy: Hart and Kelsen
Although Austin’s legal theory may still have much to teach, given
its serious attempt to view law realistically as an instrument of
state power, it is obvious that much has changed since he wrote.
The confident utilitarianism that emphasised social benefits to be
brought about by rational government and rational law was typically
also an unashamedly elitist view of government. It was seen in
Chapter 3 that the virtues of democracy do not enter into Austinian
calculations. The limitation of governmental power is not viewed
as an especially important concern. Liberty is seen as a by-product
of rational government, rather than as potentially threatened by
state power. The doctrines of the Rule of Law and the Rechtsstaat
- the state defined by and subject to law - are not reflected or
prefigured in Austin’s legal philosophy to any notable extent.
Constitution building and the careful legal separation of
governmental powers - matters which were of considerable
importance to Bentham - play little part in Austin’s thinking irv
his lectures. In the modern Anglo-American world, however, all
of these matters are regarded as politically of great importance.
They are also, typically, matters of serious professional concern
to lawyers. Thus, it is not necessarily only the defective logic of
earlier legal philosophy which has inspired different approaches
in the literature to be considered in this chapter. These newer
writings may also reflect different concerns from Austin’s, different
fears, different political experiences and a changed social (and legal)
environment.
This chapter is concerned with the work of two writers both
of whom can be seen, in terms of the theses of this book, as trying
to transcend - in radically contrasting ways - the approach to
legal philosophy adopted in Austin’s lectures. One of them, H.L.A.
Hart - Professor of Jurisprudence at Oxford University from 1953
to 1968 - explicitly builds his ideas in normative legal theory on
a critique of Austin’s jurisprudence. Of Hart’s work it has been
appropriately said that it ‘provides the foundations of contemporary
legal philosophy in the English-speaking world and beyond’ (Hacker
and Raz eds. 1977: v). The other major writer to be considered
84 Analytical Jurisprudence and Liberal Democracy
here is the Austrian Hans Kelsen, perhaps the most illustrious and
widely discussed figure in twentieth century legal philosophy. Kelsen
originally developed his theories in a continental European tradition
without reference to Austinian thought, but arrived at positions
which he himself recognised as having an affinity with Austin’s
analytical jurisprudence. Thus he wrote in the 1940s, three decades
after having laid the foundations of what has become known as
the ‘pure theory’ of law, that this theory ‘corresponds in important
points with Austin’s doctrine’ (Kelsen 1941b: 271). ‘Where they
differ, they do so because the pure theory of law tries to carry
on the method of analytical jurisprudence more consistently than
Austin and his followers’ (Kelsen 1945: xv).
Kelsen’s willingness to recognise these parallels is generous. His
work is far wider in intellectual scope than Austin’s and, outside
the Anglo-American world, has been much more influential. It is
based on a rigorous epistemology and a sophisticated philosophical
view of the nature of legal theory - matters which Austin never
seriously addressed in any comparable fashion. Kelsen’s writings
demonstrate his familiarity with literature in such fields as
psychoanalytic theory, political and social theory and anthropology,
as well as law and philosophy. Hart’s normative legal theory does
not show a comparable range. As will appear, it was constructed
primarily in conscious reaction to Austin’s jurisprudence, and has
since been refined and revised largely in the context of commentary
on and criticism of Bentham’s normative legal theory. Given the
contrasting intellectual contexts of Hart’s and Kelsen’s work it is
interesting that, while Kelsen draws significant parallels between
his own and Austin’s work despite fundamental philosophical
differences, Hart asserts unequivocally the need for ‘a fresh start’
and a total rejection of Austin’s jurisprudence (‘the record of a
failure’) in order to advance legal philosophy (Hart 1961: 78).
Kelsen’s legal theory was shaped in a legal and cultural
environment significantly different from that of the Anglo-American
common law world. His ideas are relevant to this book insofar
as they have had a significant impact on legal thought in the Anglo-
American context but also because they help to put Hart’s work
into a broader intellectual perspective in two ways. First, parallels
between Hart’s and Kelsen’s ideas help to show how themes in
Hart’s jurisprudence may reflect wider political concerns about
modern law which are not confined to the Anglo-American
tradition. Secondly, a consideration of Kelsen’s methods of
constructing his legal philosophy - methods which are radically
different from Hart’s - helps in evaluating ideas about the nature
and appropriate methods of normative legal theory which are often
Analytical Jurisprudence and Liberal Democracy 85
taken for granted in the Anglo-American context, but not necessarily

shared outside it. Indeed, the root of the most fundamental
difference between Hart’s and Kelsen’s theoretical approaches is
in two different ideas of the very nature of theory itself. It will
be necessary to outline the contrast between these ideas about theory
before proceeding further.
Empiricism and Conceptualism
The contrast emerges clearly from recent discussions of Austin’s

work. Quite apart from any particular merits or demerits Austin’s
jurisprudence has in clarifying the nature of modern Western law,
it has apparently left a deep ambiguity at its core; one which
continues to puzzle later writers. The ambiguity relates to Austin’s
aims and methods of analysis.
One view claims, in essence, that Austin’s purpose was to produce
in his general jurisprudence a systematic and orderly account of
the key components of modern legal systems. Austin’s concern was
empirical in the sense that he wished to represent or describe in
theoretical terms the reality of actually existing legal systems,
identifying elements common to these modern systems of law and
organising them into a body of scientific knowledge. Thus, Austin
sought, in W. L. Morison’s words, ‘to represent law empirically,
as something we can readily understand in terms of observable
occurrences’ (Morison 1982: 2) - observable at least, for example,
in the form of actual statutes, judicial decisions and instances of
other official action, and the habitual behaviour of subjects. So
Morison argues that ‘all the evidence indicates that when Austin
made general factual statements about independent political
communities, he believed them to be universally true’ (Morison
1958: 231). They could be tested for their truth against the
circumstances of particular legal systems. The idea that theory is,
in some such way, a direct representation of empirical reality, with
its concepts derived from observation of and generalisation about
that reality and so corresponding with it and testable for truth
against it, will be called here empiricism.
There is, however, another view of theory which, in fact, has
been more widely attributed to Austin by recent commentators
on his work. It can be explained as follows. Empirical reality -
the world of objects and experiences ‘out there’ - does not, in
fact, present us with evidence which we can merely package together
or generalise about to arrive at scientific truth. Concepts need to
be formed in advance - a priori - in order to organise empirical
evidence. The previously established concepts not only determine

what is empirically relevant but also reflect a view of why it is
relevant. Thus, theory aiming at a scientific explanation of any
object of knowledge cannot take its concepts from observed
experience but must deliberately construct concepts as a means of
interpreting experience, of imposing order on it. A theory is not
an attempted representation of observable reality but an intellectual
construction - a logically worked out model - which can be used
to organise the study of what can be observed in experience. This
idea of the nature of theory will be termed here conceptualism.
Thus, Julius Stone, rejecting the view of Austin as an empiricist,
argues that he should be understood as a conceptualist, ‘presenting
an apparatus for seeing as clearly as possible the aspect of a legal
order with which his analytical system was concerned’; he ‘sought
the starting-points which would enable him to construct definitions
and classifications on the basis of which he could, to a maximum
extent, show the logical inter-relations of the various parts of the
law to each other, and the subordination of the less general to
the more general parts’ (Stone 1964: 68, 69). Whereas an empiricist
view would say that a theory’s truth can be tested in the light
of experience, a conceptualist would claim that it is usefulness,
not truth, which is the issue. Do the ideas of the theory make
it possible to interpret and organise what we know about actual
legal systems in a clearer and more illuminating fashion?
Ultimately the methods-debate around Austin’s legal philosophy
is unfruitful since there seems good reason for an uncommitted
reader of his lectures to conclude not only that Austin did not
recognise the conceptualism-empiricism dichotomy but also that
he wrote in ways which will support either interpretation of his
theoretical methods. Nonetheless, the matter is important for at
least two reasons. First, some of those writers (notably Hart) who
in various ways follow the empiricist approach to theory also tend
to see Austin as an empiricist, and this interpretation seems to
go along with an emphasis on Austin’s theoretical indebtedness
to Bentham and an underestimate of other influences on him.
Austin’s methodological ambiguity may, however, reflect the odd
mixture of influences which shaped his jurisprudence: that is, on
the one hand, Bentham’s ‘pseudo-realistic mystery-dispelling
analytical technique’ (Manning 1933: 212), empiricist in orientation
and, on the other, continental Roman law scholarship. In the latter
tradition the deliberate construction of abstract legal concepts by
jurists to organise the empirical detail of legal doctrine was an
admired skill. Such an outlook on law seems compatible in various
respects with a conceptualist view of theory. But this possible pull
Empiricism and Conceptualism 87
towards conceptualism in Austin’s thinking tends to be ignored

in the common view of him as merely a disciple of Bentham.
Secondly, an excessively empiricist view of Austin may make
it harder to appreciate the character of some of the key concepts
he uses. Thus, Hart’s apparent failure to recognise the ‘abstract’,
institutional character of Austin’s sovereign may result from a too
literal, empiricist interpretation of Austin’s claim that the sovereign
is a person or body of people. The tendency may be to assume
that Austin’s concept must directly represent something observable
(for example, an individual person who is king) rather than operating
as a means of conceptualising the ultimate authority by which
positive law is made (for example, the institution of monarch).
Equally, an excessively empiricist interpretation may be at the root
of the common tendency of Austin’s critics to seek the sovereign
(and inevitably not find it) in sources of legal authority existing
within actual legal systems (as elements of constitutional structure
which a lawyer can recognise), rather than in an abstract institution
‘standing behind’ the constitution and legal system and presupposed
by it.
However that may be, the empiricism-conceptualism dichotomy
in normative legal theory is important. A tendency to adhere to
one approach rather than the other pushes legal theory in distinct
directions. Each tends to lead to different kinds of concepts being
used and certainly to different ways of evaluating these concepts.
Kelsen’s legal philosophy exemplifies a sophisticated and rigorous
elaboration of an avowedly conceptualist approach to normative
legal theory. On the other hand, Hart’s ‘fresh start’ in legal
philosophy built from his criticisms of Austin is best seen - so
this chapter argues - as an attempt to adopt empiricist methods
more satisfactory than those which he attributes to Austin.
Hart’s Linguistic Empiricism
Most English legal philosophy was empiricist (in the particular sense
used above) in orientation between the time when Austin’s
jurisprudence became influential (from the 1860s) and 1953 when
Hart was elected to the Oxford chair of jurisprudence. Its dominant
approaches had come to be called analytical jurisprudence. They
adhered to Austin’s view that law and morality should be kept
analytically separate and that the appropriate subject of
jurisprudence was positive law. Analytical jurisprudence thus viewed
law as a human creation established through political power. A
primary object of analytical jurisprudence was to clarify the meaning
of legal concepts, to try to establish what such concepts represent

or refer to. The idea of corporate personality, for example, although
fundamental to legal thought, seemed puzzling. What does the
concept of ‘corporation’ represent? Does it refer to a real group
entity? Is it just a kind of legal shorthand form used to refer to
a complex of legal rules defining certain relationships between
individuals linked in some common enterprise? In an empiricist
perspective, concepts arise from and represent some observable
reality. Analytical jurisprudence concerned itself, therefore, with
trying to discover the meaning of concepts such as possession,
ownership, intention, legal personality, right and duty, generally
by trying to ascertain what actual legal state of affairs each of
these terms necessarily referred to.
It may be supposed, with hindsight, that an important reason
why English legal philosophy generally declined in influence and
interest as far as lawyers were concerned in this period was that
the English empiricist approach to analysis of legal concepts
appeared increasingly unrealistic and fruitless. The endless debate
on the nature of corporate personality, for example, sought to fix
the meaning of the concept without adequate reference to the
immense variability of the circumstances in which it could be
invoked, and of the legal consequences which could follow from
it. In the United States, some jurists tried to develop an approach
to analytical jurisprudence which showed elements of the
conceptualist, as opposed to empiricist, outlook. Wesley Hohfeld,
who taught at Stanford and Yale Universities before his premature
death in 1917, analysed a set of ‘fundamental legal conceptions’
- rights, duties, privileges, ‘no-rights’, powers, liabilities, immunities
and disabilities - as what he called the lowest common denominators
of law. While some of these concepts were obviously taken directly
from lawyers’ established usage, Hohfeld’s development of them
was a creative one. The concepts were rigorously defined theoretical
constructions which, whether or not actually reflected in existing
judicial practice in the way he described them, were intended by
him to organise and clarify legal reasoning by giving it a more
precise set of conceptual distinctions. Thus, analytical jurisprudence
in this form was intended to aid clarification of law by devising
concepts as a ‘logical frame built according to specifications drawn
from an actual body of law’ (Stone 1964: 138).
The value of Hohfeld’s work is perhaps especially in a kind of
limited reconciliation between conceptualism and empiricism. It
combined a deliberate, creative development of illuminating
concepts - with their logical relationships precisely worked out
- and an insistence that the concepts should relate directly to and
be grounded in actual judicial reasoning as expressed in reported

cases. Some other American writers, notably Albert Kocourek of
Northwestern University, took a more clearly conceptualist
approach to legal analysis (Kocourek 1928: 228,234, 236), inventing
such new organising and interpretive concepts as ‘ectophylactic’,
‘zygnomic’ or ‘mesonomic’ relations and ‘autophylaxis’. The danger
of such an approach - a danger which Hohfeld largely avoided
- is that its conceptual originality can seem as far removed from
actual practical legal reasoning as does excessively broad empiricist
generalisation about the meaning of lawyers’ notions.
Hart’s very influential inaugural lecture (Hart 1953) was clearly
intended to mark a sharp break with all of these previous tendencies
in analytical jurisprudence and to call in aid new resources for
a more realistic analysis of legal concepts. In the lecture Hart
presents the futility of the corporate personality debates as one
of several reasons why new methods are needed. Legal words, he
explains, must be understood in the context of whole sentences
in which they play their characteristic role. They cannot be defined
in isolation as if they represented some specific entity. Their use
presupposes the existence of an entire legal system 'and that
particular rules are valid within it. Furthermore, legal statements
may have a different status in different contexts; for example, a
statement’s status when made by a judge in the course of deciding
a case in court may be wholly different from its status when made
outside the courtroom in various situations. Equally, legal concepts
do not necessarily relate to a uniform, invariable set of
circumstances, because legal rules may attach the same legal
consequences to a variety of factual situations.
The viewpoint of Hart’s lecture suggests an attack on empiricism
because concepts are no longer to be seen as representing anything
in a one-to-one fashion. The meaning of a legal concept, according
to this view, cannot be defined as if the concept represented some
invariant state of affairs. Butrin fact, Hart institutes a new kind
of empiricism in place of the old; an empiricism grounded in the
linguistic philosophy associated especially with Ludwig Wittgenstein
at Cambridge University and J.L. Austin (not to be confused with
the jurist John Austin) at Oxford. Hart brought to jurisprudence
the methods and enthusiasms of English linguistic philosophy. When
appointed to the Oxford chair of jurisprudence he had no law degree
but had practiced at the Chancery Bar and then, after the 1939-
45 war, taught philosophy at Oxford for seven years. During the
latter period he became closely involved with the Oxford
development of linguistic philosophy, sometimes termed ‘ordinary
language philosophy’. Hart has said of this that it was ‘inspired
by the recognition of the great variety of types of human discourse

and meaningful communication, and with this recognition there
went a conviction that longstanding philosophical complexities
could often be resolved not by the deployment of some general
theory but by sensitive piecemeal discrimination and
characterisation of the different ways, some reflecting different
forms of human life, in which human language is used’ (Hart 1983:
2). Linguistic philosophy, in this form, focussed not on the meaning
of words in some definitional manner, but on clarifying the way
in which words are used in various linguistic contexts. The method
could be used to illuminate ‘the discourse of everyday life’ or of
any intellectual discipline - such as law - where a failure to
appreciate its distinctive character and its differences from other
discourses might result in ‘perplexity or confusion’ (Hart 1983: 3).
Three insights from this kind of philosophy have been especially
important in the development of Hart’s normative legal theory.
First, language has many meaningful forms apart from empirical
description or the statement of logical propositions. A significant
characteristic of legal language is its ‘performative’ aspect, ‘where
words are used in conjunction with a background of rules or
conventions to change the normative situation of individuals and
so have normative consequences and not merely causal effects’ (Hart
1983: 4). The point here is that words used in legal contexts can
actually change legal situations and all the expectations which attach
to them. For example, when a contractual offer is accepted by
the offeree the legal relationship between offeror and offeree is
fundamentally changed. And this function of language applies not
just to law. Words said in a christening ceremony, or in the making
of vows, are also performatives.. They change expectations,
obligations and relationships through their use in a specific context.
A second important insight from linguistic philosophy is that
of the ‘open texture’ of language. As will appear, this is basic to
Hart’s ideas on judicial decision-making and legal interpretation.
Linguistic philosophy could not admit a general indeterminacy of
language, otherwise philosophical study of its meaning in use could
not proceed. Within specific contexts linguistic meaning is asserted
to be, potentially, definitely ascertainable. At the same time,
however, language has a ‘porosity’ or partial indeterminacy so that
the relationship between the core of certainty and the penumbra
of uncertainty in even the most precisely stated rules requires
philosophical examination.
Thirdly, perhaps the most important claim of linguistic
philosophy, as far as Hart’s legal theory is concerned, is that the
‘elucidation of the multiple forms and diverse functions of language’
(Hart 1983: 3) is assumed to be capable also of illuminating the

social context in which language is used. This claim about the social
insights to be gained from linguistic analysis is one which Hart
does not hesitate to make. Thus, ‘the suggestion that inquiries into
the meaning of words merely throw light on words is false. Many
important distinctions, which are not immediately obvious, between
types of social situation or relationships may best be brought to
light by an examination of the standard uses of the relevant
expressions and of the way in which these depend on a social context,
itself often left unstated’ (Hart 1961: vii).
How then would analysis proceed on such a basis? Instead of
asking what the legal term ‘corporation’ designates we should
‘characterise adequately the distinctive manner in which expressions
for corporate bodies are used in a legal system’ (Hart 1953: 42).
And this is - although Hart never calls it such - a new kind of
empiricism because what is required is ‘a close examination of the
way in which statements e.g. of legal rights or of the duties of
a limited company relate to the world in conjunction with legal
rules’ (Hart 1983: 3). It is, thus, necessary to examine the actual
conditions under which such statements are regarded as true. The
observable reality which legal statements represent is not a range
of identifiable entities which are referred to by words such as
‘corporation’. It is the reality of the linguistic practices of people
living within a legal system and orienting their conduct and
expectations in relation to it. In the 1953 lecture there could be
little doubt that Hart was thinking of lawyers’ practices. The
emphasis on actual judicial and legal professional usage in all its
variety and complexity seemed to breathe a healthy realism into
legal philosophy.
The idea of ‘performatives’ entails, however, that statements can
be practices in themselves. One can ‘do things with words’ in J.L.
Austin’s phrase; ‘words are also deeds’ as Wittgenstein put it (cf.
Hart 1970: 275). Thus, Hart’s form of linguistic philosophy does
not necessarily claim to be concerned with words or statements
as representations of a social reality. The statements are, in
themselves, the social reality. They constitute it. Adopting this
viewpoint it is not difficult to slip into the position of arguing
that philosophical analysis of ordinary language use amounts to
a kind of empirical explanation of aspects of social life. Thus, Hart
claims in the preface of his most important work in normative
legal theory, that the book is not only an essay in analytical
jurisprudence but also in ‘descriptive sociology’ (1961: vii). This
controversial claim must await evaluation later. For the moment
it is enough to note that Hart’s legal philosophy firmly rejects
conceptualism (see e.g. Hart 1970: 271, 274) and seeks to find its
concepts in the actual linguistic practices of lawyers, judges and
citizens.
The Character of Rules
Given what has been said above about Hart’s methods it is

unsurprising that he rejects any attempt, such as Austin’s, to define
‘law’ or ‘a law’ and seeks instead a concept of law which treats
it as a complex of social practices. He makes no attempt to specify
these practices exhaustively in a definitional manner. His concern
is, apparently, only to try to clarify those which seem central to
the way law is generally perceived. They are to be identified primarily
by studying distinctive linguistic practices typically associated with
law in ordinary usage.
These methods of proceeding are obviously very different from
Austin’s. Instead of defining a set of concepts (command, sanction,
sovereign, habitual obedience) and exploring their relationships,
Hart takes certain distinctions which seem to be drawn in everyday
language, and then considers their implications. The starting point
is to identify the idea of a ‘rule’ as the central idea in ordinary
discourse about law. Hart’s method of doing this is through a
critique of an Austinian model of law, which concludes that Austin’s
failure to examine the concept of rule and to make it central to
his jurisprudence was the root cause of the inadequacies of his
view of law (Hart 1961: 78). Austin’s supposed inability to explain
the continuity and persistence of law is traced to his inadequate
acknowledgement that the sovereign is itself defined by rules,
acquires and exercises authority through them and can be limited
by them. The problem of power-conferring rules and the difficulty
of assimilating them to commands are held to show that Austin’s
jurisprudence was incapable of recognising the variety of types of
legal rules. Equally Austin’s tracing of the source of all law to
the sovereign’s command is considered to ignore the fact that
customary law and judge-made law may arise from and derive
independent authority from sources different from that of
legislation.
In Chapter 3 it was suggested that at least some of these criticisms
of Austin may be misguided. Nevertheless they are important in
Hart’s major work The Concept of Law as the device by means
of which the concept of ‘a rule’ is installed as the self-evidently
appropriate starting point for an ordinary language analysis of the
nature of law. As will be seen in later chapters, it is certainly possible
The Character of Rules 93
to argue that law is best analysed theoretically as something other

than, or at least something involving much more than, a set of
rules. Nevertheless, the lengthy attempt to demonstrate the
inadequacies of a version of the command theory in the first four
chapters of Hart’s book (taking up a third of its text) provides
a kind of tableau in which the terms of debate are set and in which
the missing element of rules emerges to solve most difficulties.
In ordinary language we often talk of doing things ‘as a rule’,
that is habitually: ‘I play my saxophone at weekends, as a rule’.
When the word ‘rule’ is used in other types of statement, however,
it is often accompanied by expressions such as ‘should’, ‘ought
to’, ‘ought not’ which suggest something other than the regularities
of habit: ‘You shouldn’t make so much noise late at night. There
are rules of law about causing a nuisance’. Words such as ‘should’
and ‘ought’ are normative terms; that is, they imply evaluation,
criticism, or judgments regarding behaviour and not merely
description or prediction as do words indicating merely habitual
behaviour. The fact that my habitual saxophone playing can also
be interpreted normatively - here, in terms of its conformity or
lack of conformity with legal rules about nuisance - illustrates the
point that events, activities and occurrences can be spoken about
in two radically different ways. They can be discussed in predictive
terms (Am I so attached to my saxophone that I shall keep on
playing it whatever happens? Will the neighbours actually sue? In
practice what kind of sanction is usually imposed on people who
disturb the neighbours at three o’clock in the morning?). Or these
matters can be discussed in normative terms (Do the neighbours
have a legal right to complain? According to law, ought the nuisance
to stop? What order can a judge properly make if the nuisance
continues and the case comes to court?)
Normative language about rules thus entails evaluations,
judgments about what is proper or right according to the relevant
rules, or criticism of deviations from the rule. Such deviation is
considered good reason for criticism by those who accept the rule
which has been broken as legitimate. Words such as ‘ought’ and
‘should’ are commonplace in normative statements. But they have
no place in purely predictive statements. In the later cases it is
not a matter of what ‘should’ or ‘ought to’ be done, but what
‘is’ or what ‘will be’ the situation (Will the noise stop? Will the
neighbours sue? What penalties are the courts in practice imposing?).
This linguistic distinction between normative and predictive
language is fundamental to Hart’s concept of law. Insiders within
a legal order, people who understand and act upon the normative
content of the law, can reason critically with legal rules. They have
an ‘internal’ view of the rules, or view the rules in their ‘internal

aspect’. Equally it is possible for people to adopt a purely external
or predictive view of aspects of the legal order (‘It’s sensible not
to drive at 80 miles per hour along Mile End Road. It is very
likely that you will be stopped by the police if you do’). One of
the most important characteristics of rules, in Hart’s analysis, is
that they lend themselves to both an internal and external
understanding. The internal view of rules obviously involves a
certain specific mental attitude - a critical, reflective attitude to
one’s own conduct and that of others in the light of the rules (Hart
1961: 56) - but Hart insists that it is not equivalent to a psychological
feeling of being bound by the rules. A person enthusiastically
engaging in tax evasion may understand perfectly well that his
activities are wrong in law and, indeed, may be well versed in the
relevant rules and their legal meanings. But he may feel no
compulsion to obey the law as long as he can avoid detection.
Beyond this insistence on what the internal view or aspect of rules
does not entail, Hart does not offer much further clarification of
its nature.
Sociological Drift
Hart’s distinguishing of the two aspects of rules is important for

several reasons. One is that it marks a serious attempt to break
with Austin’s methods. As has been seen, Austin tried to identify
the field of law by defining essential elements of law as rigorously
as he could in contradistinction to moral ideas or to matters
‘improperly’ termed legal. The field of law is marked out in
descriptive fashion. Hart, however, avoids marking out the legal
field as such but, instead, distinguishes between the states of mind
(with regard to legal rules) of ‘insiders’ of the legal system and
‘outsiders’. The outsiders (adopting an external view of legal rules)
might be not just those calculating in purely predictive terms their
practical chances of avoiding punishment or gaining some benefit,
but also, for example, behavioural scientists only concerned with
studying the patterned behaviour of people and unconcerned with
their critical, reflective attitudes to rules. Hart argues that lawyers,
judges and other legal officials must, however, take an insider’s
internal view of at least those rules which regulate their own official
/ activities within the legal system. Many ordinary citizens may
similarly take an internal view of some or all legal rules. People
presumably may be insiders or outsiders in different circumstances
or on different occasions or with regard to different legal rules.
Sociological Drift 95
Even before looking at the way this dichotomy is further

developed in Hart’s concept of law some odd features of it can
be noted. The opposition Hart initially develops is between habits
and rules. But it is not made clear what kinds of entities are being
compared. It may be that Hart’s method of linguistic philosophy
prevents this (concepts only have meaning in use) but since the
concept of a rule is being treated as fundamental it is surely
appropriate to ask what this concept means in general use.
Presumably the only way of treating habits and rules as directly
comparable is to view both as impulses or motivations towards
action (habits give rise to habitual behaviour; rules inspire rule-
governed behaviour). Rules are, it seems, therefore, understood
by Hart only in terms of their social functions or potential social
effects.
That this is the way Hart views them seems to be confirmed
by what he says about the concept of obligation. The idea of
obligation presupposes rules though some rules (for example, those
relating to etiquette or grammar) are not spoken of as imposing
obligations (Hart 1961: 84). Obligation-imposing (or duty-imposing)
rules are distinguishable from others, according to Hart, in three
ways. First, in the case of obligation-imposing rules ‘the general
demand’ for conformity is insistent and great social pressure is
brought to bear against actual or potential non-conformity with
them. Second, these rules are considered important as ‘necessary
to the maintenance of social life or some highly prized feature
of it’. Third, compliance with them is thought of as characteristically
requiring some sacrifice; duty and interest often being in conflict
(1961: 84-5). The most interesting aspect of these distinguishing
marks is that all relate to ideas about the relationship between
the rules and the social conditions in which they exist. They are
concerned with assumptions about the social function or effects
of the rules or of compliance or non-compliance with them.
Thus, Hart’s legal philosophy identifies the fundamental
component of law, obligation-imposing rules, not by organising
the familiar material of legal study in terms of concepts such as
command and sovereign, but by speculating about widely held
attitudes to various kinds of rules. This is, it must be said, not
descriptive sociology (cf. Hart 1961: vii), which should presumably
be based in substantial empirical study. It is speculative philosophy
not grounded in any consideration of actual social conditions. The
conceptualisation of obligation-imposing rules does not explain or
even consider the conditions under which general agreement on
the matters indicated might exist in a society; or, if agreement does
not exist, which members of a population must hold the views
specified; or what kind of evidence would be appropriate and

sufficient to enable us to reach conclusions about these matters.
The root of the problem is this: Hart seeks to provide a general
explanation of the character of law on an empiricist basis - in
other words, the concepts which he seeks to link theoretically are
to be drawn from actual experience or observation of law. But
he rejects the idea that legal doctrine itself provides the empirical
materials for theory, because there is no necessary fixity of meaning
of legal ideas. They do not necessarily represent anything
consistently so theory cannot concern itself exclusively with their
meaning and the logic of their relationships in legal doctrine.
Therefore, the empirical reality to be reflected in theory is the reality
of people’s (linguistic) practices - the way they talk and think around
notions such as ‘obligation’. But this should involve actually finding
out how people talk and think and such an inquiry is not normative
legal theory but sociology or social psychology. As long as empiricist
approaches in normative legal theory were satisfied with analysing
legal doctrine (the concept of ‘corporate personality’, for example)
as the relevant empirical reality (asking what is a ‘corporation’),
they did not lead normative legal theory’s inquiries into a study
of society at large. But Hart’s empiricist approach leads in just
such a direction. There is a kind of sociological drift (but no serious
sociology) in Hart’s normative legal theory. It will be necessary
to return to this matter after considering further claims he makes
about the nature of legal rules.
The Structure of a Legal System
In Chapter 3 it was noted that Hart insists that Austin’s command

theory cannot accommodate satisfactorily the existence of power-
conferring rules in a legal system. These cannot, in his view, be
treated as having essentially the same character as duty-imposing
rules. Both kinds of rules are present in a legal system and the
distinction and relationship between them becomes the central idea
of Hart’s concept of a legal system. In a simple society it might
be possible to maintain social order solely through duty-imposing
rules such as rules restricting violence, protecting property, or
punishing deceit. Such duty-imposing rules Hart terms primary rules.
A regime of primary rules alone could maintain itself in practice
only if the vast majority of people subject to these rules viewed
them from an internal perspective, in the sense discussed earlier;
that is, normatively as guides to conduct, rather than merely
predictively. Any such regime, however, is subject to obvious defects.
First, the primary rules will not constitute a system but merely
a set of separate standards, so doubts as to how the rules relate
to each other or how far they extend cannot be resolved. They
suffer from the defect of uncertainty. Second, they have a static
quality since no means are available for changing them in deliberate
fashion, either generally or in their applicability to particular
individuals. Third, there is no means of establishing conclusively
when a violation of the rules has occurred or of systematically
enforcing them.
Behind this fictitious idea of what Hart terms a pre-legal society
can be sensed not only a vision of some simple changeless society
which an anthropologist might discover but also, perhaps, the image
of unguided, culturally determined legal evolution suggested in
classical common law thought, as discussed in Chapter 2. Such
an image has no conception of law as positive, deliberately created
and so subject to human interpretation and development. This
conception of doctrine as subject to positive development, which
Austin found in the idea of sovereignty. Hart finds in a further
set of rules beyond the primary duty-imposing rules. Their
introduction or evolution marks, for Hart, the transition from a
pre-legal to a legal order.
These secondary rules are generally portrayed as parasitic on
primary rules, power-conferring rather than duty-imposing, and
of three kinds which correspond with the three major defects of
a regime of primary rules alone. Thus, the secondary rule of
recognition is the simplest remedy for the uncertainty of the regime
of primary rules. It specifies what particular features a rule must
have to be recognised as a rule of the society. The rule of recognition
may be simple or complex. An example of a complex one could
be that rules are to be recognised as rules of the society if created
through a certain legislative procedure, or declared by a judge in
certain conditions, or supported by long customary practice. The
limbs of such a complex rule of recognition could be hierarchically
ordered so that the limb recognising legislative rules takes priority
over those recognising customary rules and rules declared injudicial
decisions. Secondly, rules of change remedy the static quality of
a regime of primary rules because they regulate procedures for
creating or changing other rules or altering their operation. For
example, they include rules governing the composition and
procedures of a legislative body, as well as rules allowing individuals
to alter their own legal circumstances: for example, by making
wills or contracts. Finally, rules of adjudication arenecessary to
remedy the inefficiency in operation of a regime of primary rules.
They specify means by which a final authoritative decision can
be reached as to whether in a particular case a primary rule has

been broken. These rules specify who has the authority to adjudicate
and the procedures to be followed. They specify, for example, the
jurisdiction and procedures of courts and the qualifications of
judges.
When a close look is taken at the secondary rules, as Hart discusses
them, considerable uncertainty is seen to surround their nature.
They are identified originally as power-conferring in contrast to
the duty-imposing primary rules. Hart has, however, now admitted
in effect that the rule of recognition can be duty-imposing or power-
conferring depending on how it is viewed (Hart 1982: 258-9). Other
writers have noted more generally that the distinction between
primary and secondary rules is not necessarily consistent in Hart’s
discussions. As well as the distinction between duty-imposing rules
and power-conferring rules it may be a distinction betweenjnon-
parasitic’ rules - that is, ones which can in principle exist as
meaningful social standards quite apart from any systematic
relationship they may have with other rules - and ‘parasitic’ rules
which have meaning only in relation to others; or between rules
concerning actions involving physical movement and change and
others leading to the creation or variation of obligations. These
varied distinctions are not necessarily mutually consistent. Several
commentators have noted that secondary rules are not necessarily
power-conferring (MacCormick 1981a: 106; Raz 1980: 199). Hart
himself has suggested that most lawyers would accept the view
that with regard to rules relating to the power to appoint judges
there are two relevant types of law, one fixing the duties of judges
(and their powers) and the other conferring on some person the
power to appoint them (Hart 1972: 215). The conferring of powers
and the determination of duties are thus (as Austin well understood)
typically intertwined. One commentator has suggested that ‘there
is simply no such thing as the distinction which we may understand
Hart as having made between primary and secondary rules’
(Sartorius 1966: 167). Hart himself has referred to his ‘own previous
inadequate approach to the subject’ and admitted that The Concept
of Law contains ‘no close analysis either of the notion of a power
or of the structure of the rules by which they were conferred, save
to insist that they were different from rules which imposed
obligations or duties’ (Hart 1972: 196).
This is, if taken at face value, extremely puzzling. Austin’s failure
to put the distinction between power-conferring and duty-imposing
rules in a central place in his theory is the focus of some of Hart’s
fiercest attacks on him. Yet the distinction remains vague and
undeveloped in Hart’s major work on normative legal theory. Hart
accepts that some such distinction as he makes has long been

recognised; but ‘perhaps my claim that this distinction could throw
light on many dark places in jurisprudence was novel’ (Hart 1965:
358). Yet no rigorous analysis is offered to cast that light. As Hart’s
sympathetic critic Neil MacCormick remarks, given ‘the centrality
of this topic to Hart’s theory of law, it is regrettable indeed that
such vagueness and imprecision attends his distinction’ between
primary and secondary rules (MacCormick 1981a: 106).
What explains this vagueness at perhaps the most fundamental
part of Hart’s legal theory? The explanation is surely that the need
to distinguish primary and secondary rules is not dictated by
considerations of analytical rigour in normative legal theory but
by a political concern to emphasise aspects or perhaps ideals of
law which Austin was thought to have underemphasised. Joseph
Raz hints at the truth in asserting that the ‘fundamental reason
■Which moved Hart to adopt his doctrine of the rule of recognition’
is his assumption that the answer to the question of whether a
legal rule is valid must be found in a criterion of validity provided
by some other rule (Raz 1980: 199-200). Putting it another way,
Hart’s legal theory portrays law as a self-regulating system of rules.
The rule of recognition and the other secondary rules are seen
as governing the entire process of production, interpretation,
enforcement, amendment and repeal of rules within the legal system.
In contrast to Austin’s picture of a legal order as the expression
and instrument of all-too-human political power (the power of the
sovereign and its delegates), Hart’s image of law is that of a system
in which rules govern power-holders; in which rules, rather than
people, govern. What is, indeed, implied here is an aspect of the
deeply resonant political symbol so obviously missing from Austin’s
jurisprudence - the symbol of the Rule of Law, a ‘government
of laws and not of men’ (cf. D’Entreves 1967: 69ff).
i The concept of secondary rules can be seen, therefore, as an
attempt to devise an analytical category which can serve as the
umbrella under which an appropriate emphasis can be given to
power-conferring functions of legal rules. These secondary rules,
insofar as they are ‘public’ in character, are the ones which typify
the modern constitutional state (Rechtsstaat) in which the powers
of officials are not arbitrary but defined by rules of law. Equally,
rules conferring ‘private’ powers (such as rules governing the making
of wills, contracts and other transactions and arrangements) allow
individuals to adjust their personal legal positions in deliberate,
freely chosen and purposive action. These rules mark an individual’s
autonomy as a citizen within the legal order, participating in it
as a member of a legal community. To make use of such private
/
power-conferring rules the individual presumably must be a legal

‘insider’, someone who adopts an internal view of the rules. Thus,
while the stress on public power-conferring rules builds the
normality of the ideal of the Rule of Law - in the sense of government
subject to law - into Hart’s theory, the parallel stress on private
power-conferring rules builds into it the normality of the ideal of
autonomous citizenship, a very different perspective from that
entailed in Austin’s notion of subjection to a sovereign and
undoubtedly a much more attractive one, politically, in a modern
democracy.
The Existence of A Legal System

I
The rule of recognition of a legal system, according to Hart’s concept

of law, determines which other rules in the system are valid as
law. It does this, of course, insofar as it is, itself, recognised or
presupposed as a valid rule. One minimum condition, therefore,
for a legal system to be in existence is that the rule of recognition
and the other secondary rules are accepted as binding by those
persons (whom Hart calls ‘officials’) having the task within the
legal order of creating, changing, interpreting, applying, enforcing,
or advising on legal rules. This acceptance is essential because the
secondary rules are the means by which the legal system governs
the fulfilling of these tasks. It follows that the officials must adopt
an internal view (in Hart’s sense) of the secondary rules. They
must view them as meaningful guides for their own conduct and
j that of others. The other minimum condition for a legal system
i to exist is that citizens, in general, regularly obey the primary rules.
It is not necessary that they should view the primary rules from
an internal viewpoint. Obedience merely because of the fear of
I punishment would be sufficient. Thus, for a legal system to exist
I there must be general obedience to the primary rules, coupled with
an acceptance by officials of the secondary rules from an internal
viewpoint.
As some critics have pointed out, it is not entirely clear what
Hart intends to convey by this claim about the minimum conditions
of existence of a legal system (cf. Campbell 1988: 11-2). The claim
does, however, seem to be important insofar as it links, like a
buckle, the two fundamental oppositions (primary as against
secondary rules; internal as against external aspects of rules) around
which the whole of his normative legal theory revolves. But the
giving of sociological hostages to fortune seems even more
pronounced here than in the instances of sociological drift noted
The Existence of A Legal System 101
earlier in relation to Hart’s theory. One writer refers to Hart’s

claims about the necessary attitudes of officials as a ‘bizarre piece
of prescriptive psychology’ (Goodrich 1983: 260). A point reiterated
frequently by Hart’s more sociologically oriented critics since the
first publication of his theory has been that to describe officials’
views of the secondary rules in terms of a Hartian internal attitude
is highly inadequate to represent the complex reality of official
motivations (e.g. Hughes 1962). A defender of Hart might insist
that the idea of the internal aspect of rules is intended not to
represent the complexities of official compliance with secondary
rules but merely to establish an analytical distinction between the
discourse of ‘insiders’ and ‘outsiders’ in relation to a rule system.
That those who understand rules ‘internally’ can reason with them
in particular ways, using normative language which makes their
discourse significantly different from that of outsiders is what is
important here; motivations for obedience to the rules, and whether
or not citizens or officials approve or disapprove of them, are wholly
different matters.
Hart’s Hermeneutics
Up to a point this is a plausible answer. Hart uses his internal-

external distinction to assert that law cannot be explained adequately
in purely behavioural (external) terms. The essential distinguishing
character of rules is that they can be understood in normative terms
(from an internal aspect). Law is to be understood not through
any purely behavioural social science (observing and measuring
behaviour) but by entering its mode of discourse and its ways of
reasoning. This kind of empathetic understanding is sometimes
referred to as hermeneutic understanding. There is, however, an
ambiguity in Hart’s original presentation of the internal and external
aspects of rules. In order to understand rules from an internal
standpoint must one actually be a committed insider within the
legal system; that is, someone who personally accepts the rules
as guides to conduct? Is the only other possible position that of
the external observer who does not even recognise the normative
character of legal rules? Or can one be an ‘outside’ observer (not
actually, oneself, committed as a citizen within the legal order)
who can nevertheless interpret and understand the rules, as if
personally accepting them as guides to conduct?
Neil MacCormick, in a valuable analysis of Hart’s ideas, has
suggested the need for a third position, between the strict internal
and external views of rules, to take account of the situation of
an uncommitted observer who can nevertheless interpret law

normatively and make what Raz has called ‘detached statements’
(Raz 1980: 236); that is, normative statements entailing no personal
normative commitment to the legal system to which they relate.
MacCormick (1981a: 38) terms this third position the hermeneutic
point of view. Various passages in The Concept of Law might suggest
that Hart assumed all along that the internal view of rules was
one which could be understood by a hermeneutic observer (a legal
theorist, for example) as well as by an official or citizen personally
adopting the rules as guides for his and others’ conduct (e.g. Hart
1961: 87). Yet Hart has recently recognised Raz’s distinction between
committed and detached statements as an important supplement
to the ideas expressed in The Concept of Law (Hart 1982: 153—
5). Further, he has adopted MacCormick’s proposed third point
of view as well as the term ‘hermeneutic’ to describe it (1983: 14).
These apparent concessions on Hart’s part are significant. In
1961, when The Concept of Law was published, he saw, as the
chief theoretical enemies which the idea of the internal aspect of
rules was intended to address, all views of the legal system which
tried to describe law (and especially judicial decision-making) in
behavioural terms, that is from a viewpoint emphasising only the
external aspect of rules'. The idea of the internal aspect entailed
an insistence that a purely behavioural description of law was wholly
inadequate. Yet Hart has always assumed that a descriptive account
of the nature of law is possible (even, as noted earlier, a ‘descriptive
sociology’); the point being, however, that such a description must
focus on law as having both internal and external aspects. Linguistic
philosophy would provide the key to an understanding of the
internal aspects. In 1961 it was perhaps not necessary to point
out that a legal theory entailing understanding of the internal aspect
of rules (the insider’s perspective) could nevertheless be ‘detached’,
uncommitted and concerned only with description, as regards the
normative meaning of those rules. The only kind of analytical
detachment Hart felt it necessary to argue for explicitly was the
one Austin had insisted on: the analytical separation of law and
morals - a matter to be considered in more detail in the next chapter.
Recently, however, various writers and especially the American
jurist Ronald Dworkin, have challenged the assumption that
normative legal theory should aim at ‘detached’, objective
description of law. An internal view of legal rules - that is,
participation in the enterprise of legal interpretation - is viewed
1 Some main types of theory which Hart interprets as adopting this

viewpoint on law are discussed in Chapter 7, below.
Hart’s Hermeneutics 103
in these post-Hart theories as providing, in itself, knowledge of

the nature of law. The only view of rules to be taken account
of by the legal theorist thus becomes the internal view.
Dworkin s theses will be considered in Chapter 6. For the moment
it is enough to recognise that the legal theory Hart advocates must
now fight on a different front from that which existed when The
Concept of Law was first published. The challenge to his approach
i now comes not from writers who advocate exclusive emphasis on
the external (behavioural) aspect of law since it would be hard
now to find any influential jurist (if ever there was one) who seriously
argues that law can be understood in purely behavioural terms.
The challenge which Hart now recognises is from theories which
put exclusive emphasis on the internal (normative) aspect of law
(cf. Hart 1987). Hence his need to make explicit what was always
implicit in his thinking: that the hermeneutic point of view (the
view appropriate to a Hartian legal theorist) is not identical with
the committed internal view of a participant in the legal system.
The legal theorist is not simply engaged in legal reasoning, but
tries to describe and objectively explain the nature of legal reasoning.
Hart’s theory is most interesting and praiseworthy, indeed, for the
balancing act it tries to sustain: the insistence that legal theory
must be simultaneously ‘inside’ and ‘outside’ the law as a system
of ideas. In Hart’s approach, normative legal theory adopts the
-perspective of the legal insider, but it does so only in order to
enable an objective, detached view of legal activities to recognise
fully the normative character of law.
Judicial Decisions and the ‘Open Texture’ of Rules
Unfortunately, this favourable image of theoretical balance is not

the one with which we can leave a discussion of Hart’s concept
of law. The defence that his various major categories and distinctions
are purely analytical and therefore immune from sociological
critique (cf. Hacker 1977: 12) is unsupportable. This is because
Hart’s method, as has been seen, is founded on the claim of linguistic
philosophy that analytical categories and distinctions are to be given
meaning only in the context of actual linguistic usages which
themselves reflect social practices. Hart’s empiricist method entails
that concepts reflect social practices. What becomes important then
is to ask how successfully conceptual analysis, in illuminating
linguistic practice, helps reveal aspects of social reality. Adopting
this yardstick it must be recognised that Hart’s minimum conditions
of existence of a legal system and the claims about officials’ attitudes
to secondary rules are ultimately sociological claims about the way

people think and behave. Hart’s minimum conditions of existence
of a legal system are actually hypotheses about the sociological
conditions under which a legal system maintains legitimacy or
acceptance. These matters are addressed with a wealth of historical
detail and empirical illustration in some of the most influential
writings in the history of sociology2. In Hart’s writings, however,
they remain at the level of brief, highly generalised, and empirically
unsupported philosophical speculation.
Again, therefore, it seems that Hart’s empiricism directs him
towards inquiries beyond the scope of normative legal theory. A
further example of this tendency can be seen in his analysis of
judicial decision-making and the ‘open texture’ of rules. Hart adopts
the philosopher Friedrich Waismann’s idea of the porosity or open
texture of concepts to try to analyse the degree of certainty with
which rules can be interpreted and applied. In considering the task
of judicial decision-making this must be a vital concern for any
theory such as Hart’s which treats law as, in essence, an affair
of rules. Surely, insofar as judges through their interpretations of
law develop new law they cannot be bound by pre-existing rules?
Rules may govern the means by which judicial law-making proceeds
(for example, rules of precedent or jurisdiction) but the substantive
content of judge-made law, by definition, is not covered by rules
predating the relevant judicial decisions. Thus, Hart’s theory admits
that judges in certain circumstances may and do exercise discretion
irTTegal interpretation. Existing rules plus judicial discretion are,
therefore, themgrecCents oFiudge-made law.
It then becomes essential to determine~tR'e relationship between
rule and discretion. If it were to be admitted that judicial discretion
is very extensive, or unpredictable, the model of law in terms of
rules would collapse. Hart’s empirical orientation forces him to
recognise that rules are often, in practice, open to widely varying
interpretations. But a theorist not wedded to the idea that rules
are the central element of law might suggest that legal rules are
effects or consequences of judicial or other official decisions, rather
than the reverse. Thus, for Austin, as has been seen in Chapter
3, law consists, strictly speaking, not of rules but of commands,
and judicial decisions are a species of delegated sovereign
commands. Whether these decisions embody wide or severely
limited discretion they can be seen as having a uniform character.
Discretion is not a fundamental problem for Austin in the way
it tends to be for a model of law in terms of rules.
2
See Weber 1978: Part I ch 3, Part II chs 10, 11, 14, 15.
Judicial Decisions and the ‘Open Texture’ of Rules 105
Hart tries to solve the problem of maintaining the centrality

of rules in his concept of law by identifying two components of
them - a ‘core’ of settled meaning and a ‘penumbra’ of uncertainty
(Hart 1958: 63-4). The ‘life of the law consists to a very large
extent’ in guidance by ‘determinate rules’ (1961: 132). But in
penumbral cases ‘it is clear that the rule-making authority must
exercise a discretion, and there is no possibility of treating the
question raised by the various cases as if there were one uniquely
correct answer to be found, as distinct from an answer which is
a reasonable compromise between many conflicting interests’ (196T
128).
As with the question of whether legal theory should view law
‘internally’ or ‘externally’, Hart seeks a balanced mid-position on
the question of interpretation. Law is neither the ‘noble dream’
of a consistent, complete set of rules whose meaning is ultimately
conclusively determinable; neither is it the ‘nightmare’ of rule-free
judicial discretion (Hart 1977). But this ‘reasonable’ position betrays
the tension between Hart’s analytical objectives and the empiricist
manner in which they are pursued. His analytical model impels
him to put rules in centre position in his theory. Consequently
the core of certainty in them is strongly emphasised in The Concept
of Law. the result of the English doctrine of precedent has been
to produce a set of rules ‘of which a vast number. . . are as
determinate as any statutory rule’; the operations of courts are
‘unquestionably rule-governed. . . over the vast, central areas of
the law’ (1961: 132, 150).
On the other hand, what determines the areas of core and
penumbra - of certainty and uncertainty - in rules? Hart’s empirical
method entails that this can be determined only by actual social
(linguistic) practices. Concepts, as has been seen earlier, are not
considered to have meaning in isolation from the specific contexts
in which they are used. Particular situations ‘do not await us already
marked off from each other, and labelled as instances of the general
rule. . . nor can the rule itself step forward to claim its own instances’
(1961: 123). Thus, certainty in rules is not a feature of rules
themselves but of the social practices in which they are used. It
follows that the distinction between core and penumbra is not an
analytical distinction referring to aspects of the structure of rules;
it is a representation of social practices.
The important point, then, is that it is not rules which govern
and provide certainty according to this line of thinking; certainty
derives from the relatively settled conventions of usage and practice
which reflect a degree of social consensus. As with most aspects
of Hart’s legal theory, categories which are presented as analytical
ultimately reveal themselves as references to presumed social facts.

But there is still no concern to examine the relevant matters
sociologically rather than in terms of philosophical speculation.
Thus there is no real clarification of the relationship between rule
and discretion, certainty and uncertainty in law. While portraying
the problem as an analytical one, Hart actually sets it up as a
sociological one. Yet no sociological inquiry is made into the actual
conditions (relating, for example, to the organisation and character
of the judiciary) under which interpretive agreement about the
meaning of legal rules becomes possible or becomes problematic.
Kelsen’s Conceptualism
Hart’s work has had and continues to have great influence in Anglo-
American legal philosophy. The same is true also of the prolific
writings of Hans Kelsen. Yet they have never had the same centrality
despite being among the most profound contributions to legal theory
in the present century. One reason is that Kelsen’s writings are
informed to a considerable extent by the traditions of continental
civil law thought rather than the specific experiences of Anglo-
American common law. This can be only a partial explanation,
however. After fleeing from Nazi Germany to Switzerland in the
1930s, KelsenTevenfually settled in the United States and spent the
remaining three decades of his life there (he died in 1973), holding
the position of professor of political science at the University of
California until his retirement in 1952. Thus, he worked for a
considerable period - writing prolifically - in an Anglo-American
environment. Equally, he made considerable efforts to explain and
interpret his ideas in relation to Anglo-American legal and political
institutions and the major tendencies of Anglo-American legal
philosophy.
The main reason why Kelsen has remained an outsider is that
his approach to theory is a thoroughly conceptualist one, in the
sense explained earlier in this chapter. In this respect it runs counter
to ideas rooted in the common law tradition, as well as, perhaps,
counter to broader cultural tendencies in Britain and America.
Whatever view we take of classical common law thought, it remains
the case that the Anglo-American common law tradition emphasises
piecemeal, case-by-case legal development, and what the sociologist
Max Weber termed ‘empirical law-finding’ (cf. Weber 1978: 785—
8). That is to say, concepts in common law are not imposed on
the law but are assumed to be drawn from the detail of case-by¬
case legal experience. Legal ideas are found empirically in the
Kelsen’s Conceptualism 107
practical business of deciding cases. Thus, the kind of empiricism

in legal theory which has been treatecTas a theme of the earlier
part of this chapter, actually reflects in a direct way major underlying
assumptions about common law methods - even if in analytical
jurisprudence it gives rise to theories which appear to supplant
classical common law thought.
Yet Kelsen is a most instructive outsider. Given this book’s
exclusive concern with Anglo-American legal philosophy, the
importance of his normative legal theory is in the contrast of
methods which it offers when set against Hart’s empiricism. As
will appear, Kelsen’s conceptualism avoids some of the dilemmas
which we have seen Hart’s normative legal theory led into by its
empiricist outlook. In addition, some political and professional
ramifications of Hart’s theory can be clarified by noting parallels
in Kelsen’s thinking and drawing on the rich and detailed political
theory which accompanies Kelsen’s legal philosophy. The following
sections will be concerned with these matters.
Kelsen’s conceptualism reflects the influence of continental neo-
Kantian philosophy. Knowledge, according to this tradition, is not
simply given by experience. We only begin to understand empirical
reality by imposing concepts on it which enable us to organise
as meaningful what we observe. Concepts do not reflect experience;
they organise it and make it intelligible. Every science, every
knowledge-field, must, therefore, create its own conceptual
apparatus. Because of this necessity, each science, or form of
systematic knowledge, is unique and distinct from all others.
Consequently, legal science must have its own unique framework
of concepts which cannot be shared or integrated with those of
other sciences. It follows, therefore, that Kelsen wholly rejects what
he calls syncretism of methods; the ‘uncritical mixture of
methodically different disciplines’ (Kelsen 1967: 1). The unique
nature of legal science is determined by its subject-matter, law,
and Kelsen, like Hart, sees one of the most important characteristics
of law as its normativity. Law is a matter of ‘ought-propositions’
or norms. ‘By “norm” we mean that something ought to be or
ought to happen, especially that a human being ought to behave
in a specific way’ (Kelsen 1967:4). Legal science must be a normative
science.
Several consequences of these positions immediately highlight
differences from Hart’s approach. First, whereas, as has been seen,
Hart’s normative legal theory continually drifts towards sociology
(yet holds back from serious sociological inquiries), Kelsen’s
rejection of syncretism entails that there can be no link of any
kind between the legal theory he develops, as the theory of a purely
legal science, and sociology. They are totally different conceptual

frameworks appropriate to different subject-matter. Legal theory,
as Kelsen understands it, must therefore be purified of all foreign
concepts and methods. Indeed the name which Kelsen gives to
his normative legal theory is the pure theory of law. It is unconcerned
with law as it should or might be - for that would be the concern
of politics or moral philosophy. Its subject-matter is positive law
in general. Kelsen’s conceptualism entails that the purpose of the
pure theory of law is to provide a set of interpretive concepts which
make it possible to organise knowledge about the law of particular
legal systems. The theory does not itself provide that knowledge.
The pure theory of law merely provides the concepts which
normative legal science can use in describing the actual norms of
a particular legal system. But this task is, in Kelsen’s view,
nonetheless essential. It provides the framework of ideas on which
law as an intellectual discipline and professional practice is based.
Thus, there is no suggestion that the concepts of the pure theory
of law are derived from or reflect empirical reality - the
circumstances of actual legal systems. Empiricism, together with
the syncretism of methods which tends to go with it, is firmly
rejected. In other respects, however, the thrust of Kelsen’s theory
is similar to Hart’s. Both are committed to the idea of a legal
theory which provides objective, detached explanation of the
character of law and both see the recognition of law’s normative
character (in Hart’s terms, the internal aspect of rules) as essential
to that theoretical explanation. Originally Kelsen wholly rejected
behavioural (which he equates with sociological) explanations of
law. Thus, in his early writings a sociology of law is treated as
impossible and misguided since it fundamentally mistakes the nature
of law, ignoring its essential normative character.
Later, however, he adopted a view more in keeping with his
neo-Kantian outlook. Treating sociology as the science whose
methods and concepts are created specifically to interpret causes
and effects of social behaviour, he came to recognise that a sociology
of law is possible and important insofar as it concerns itself with
explaining ‘the actual conduct of the individuals who create, apply
and obey the law’; it ‘must investigate the ideologies by which
men are influenced in their law-creating and law-applying activities’
(Kelsen 1941b: 271). Among its most important and promising tasks,
in Kelsen’s view, is the critical analysis of the idea of justice as
an ideology. But such investigations would be wholly distinct from
those framed by the pure theory of law. While the latter treats
law as norm and constructs concepts appropriate to that subject
matter, sociology of law takes behaviour in legal contexts as its
Kelsen’s Conceptualism 109
concern and constructs the wholly different concepts appropriate

to causal analysis of that material.
One important virtue of Kelsen’s method is that by recognising
explicitly that normative legal theory’s task is to construct concepts
to make possible the interpretation of law as a structure of norms
he avoids the persistent ambiguities of many of Hart’s conceptual
formulations. Kelsen’s work emphasises the need for conceptual
rigour because it recognises straightforwardly that normative legal
theory is deliberately constructed to provide a means of interpreting
actual law. By contrast, because Hart’s concepts are presented as
discovered in actual linguistic practices or social situations they
inherit the vagueness and indeterminacy of many of those practices
and situations or are dogged by controversy whenever sociological
evidence of the nature of the practices and situations is demanded.
‘The Machine Now Runs By Itself
In many respects, Kelsen’s image of law, as portrayed through

his pure theory, is similar to Hart’s, despite the radical differences
in methods adopted by the two jurists. Frequently, in his writings,
Kelsen remarks on the ‘most significant peculiarity’ of law that
it regulates its own creation3. That is, the creation of legal norms
is authorised by other legal norms. The decision of a judge, creating
a norm governing the circumstances to which the decision relates,
is authorised by norms defining the court’s jurisdiction. Such norms
may be expressed in a statute, the enactment of which was authorised
by other, more fundamental norms, defining the proper procedures
for legislation. Those norms may be contained in a constitution,
which was itself established on the authority of the norms contained
in an earlier constitution. The process by which ‘higher’, more
general norms authorise the creation of ‘lower’, more specific ones
is termed, in Kelsen’s theory, ‘concretisation’.
There is no suggestion that the process of norm creation is
governed only by other norms. Just as Hart recognises judicial
discretion as the ‘non-legal’ element which necessarily supplements
the legal element of rules injudicial interpretation and development
of law, so Kelsen notes that ‘every law-applying act is only partly
determined by law and partly undetermined’ (1967: 349). Law
regulates its own creation but does not determine conclusively its
own content: ‘There is simply no method. . . by which only one
of several meanings of a norm may gain the distinction of being
3
See e.g. Kelsen 1967: 71, 221; 1945: 124, 126, 132, 198, 354.
the only “correct” one’ (1967: 352). Nevertheless the non-legal

determinants of new law (for Hart, discretion; for Kelsen, politics)
are beyond the scope of the pure theory of law. Its concern is
only to know law, not politics or any of the miriad considerations
that may shape legal change or legal interpretation.
This is a wholly uncompromising position. Like Hart’s concept
of law in terms of primary and secondary rules, Kelsen’s view of
law as a structure of norms authorising their own creation,
modification and destruction provides a picture of law from which
human beings have almost disappeared.
At the pinnacle of Hart’s legal system of rules is the rule of
recognition validating all other legal rules. The actions and attitudes
of officials and citizens are taken into account in Hart’s theory
merely to identify the system of rules as being in existence. Hart’s
empiricism forces him to identify the rule of recognition as an
actual legal or constitutional rule or cluster of rules found in actual
legal systems. Viewed externally the rule of recognition is a social
fact; the observable fact that officials are acting on the basis of
uniform presuppositions about what counts as valid law. Viewed
internally it is the presupposition made by ‘insiders’ of the legal
system of the validity of legal rules.
By contrast, Kelsen’s conceptualism requires no such search for
some ultimate legal rule, in each actually existing legal system,
providing validity for all other rules in the system. Kelsen postulates
a ‘basic norm’ (Grundnorm) which gives validity to (authorises the
creation of) all legal rules. But this is, as with all the concepts
of the pure theory of law, deliberately created as a theoretical idea
(not found in experience) for a specific theoretical purpose. The
purpose of Kelsen’s basic norm is to portray the unity of the legal
system, the fact that all its norms trace validity from a single source
and must do so if they are to be considered part of the same legal
system. Thus, if the sequence of authorisation of norms is traced
back from the court’s decision, through the statutory norms
providing jurisdiction, through the constitutional norms authorising
enactment of the statute, to the original constitution, the pure theory
of law deliberately postulates a further single norm ‘standing behind’
and giving validity to the original constitution. The basic norm
is, thus, explcitly, a presupposition or hypothesis (Kelsen 1967:
204) - a theoretical necessity. In later writings Kelsen terms it a
fiction.
It is not appropriate in a book devoted specifically to Anglo-
American legal theory to discuss in detail the complexities
surrounding Kelsen’s ideas. It is enough to note some contrasts
between the basic norm and the rule of recognition which illustrate
‘The Machine Now Runs By Itself 111
the different results of Kelsen’s conceptualism as compared with

Hart’s empiricism. The basic norm is postulated by Kelsen as pre-
legal, like Austin’s sovereign, rather than legal as with Hart’s rule
of recognition. For Kelsen this is obviously the case because the
basic norm is nothing more than the assumption on the basis of
which an original constitution, or whatever is the highest legal source
of the particular legal system, is treated as valid. Legal norms derive
their validity from other legal norms. Eventually this process of
attributing validity must come to a halt. The basic norm is the
necessary theoretical postulate of the validity of the norms of the
original constitution.
Because it is only a conceptualisation of the pre-legal sources
of validity of law its exact formulation as a theoretical matter is
not very important and is likely to be purely formal: for example,
‘coercion of man against man ought to be exercised in the manner
and under the conditions determined by the historically first
constitition’ (Kelsen 1967: 50). The content of the basic norm
becomes significant only when the pure theory of law is applied
to analyse an actual legal system. Then, of course, it may be
important to try to identify the exact content of the normative
presupposition on which the ultimate validity of the legal system
depends. For a legal system to exist its basic norm must be actually
presupposed to be valid (1967: 208-12), that is, presupposed or
acted upon in much the same way that Hart’s rule of recognition
is assumed to be. But the crucial point is that for Kelsen there
is no necessity to identify an actual fundamental rule of the legal
system which provides the system’s unifying criterion of validity.
Hart’s attempt to ground concepts in empirical experience
necessitates this identification. For Kelsen all that is necessary is
to recognise that legal science must treat law as a unity, since legal
practice and law as an intellectual discipline presuppose the
possibility of relating in terms of legal logic all the norms of a
single legal system. Because of this necessity the pure theory of
law must create the concept of the basic norm to represent the
unity of a legal system. To say that a basic norm is effective means
only that this unity is actually being presupposed in legal thought
and practice.
Beyond these methodological differences the parallels in Hart’s
and Kelsen’s thinking are clear. Austin’s idea of law as an expression
of political power has been replaced in both theories with the idea
of law as a relatively self-contained system of rules or norms. In
Kelsen’s theory the unity of the legal system, expressed in a single
basic norm from which all other legal norms derive, entailed, until
the last phase of his work, that no contradiction between norms
within the same system was possible. If norms contradicted each

other, one of them, at least, could not be valid. Equally Kelsen
denies the possibility of gaps in the law (1967: 245-50). Where
the norms of the legal system make no provision they can be treated
as permitting what they do not proscribe. At the same time, if
a matter relating to a supposed gap in the law is brought before
an appropriate law-interpreting agency, such as a court, the court
can determine the legal position relating to that matter. Hence
the supposed gap is closed. Thus law, as portrayed by Kelsen’s
normative legal theory, becomes a web of normative ideas from
which human agency is excluded. Neither Kelsen nor Hart deny
the human, creative element in law. But in neither theory is there
a place to analyse it. In Hart’s case this is because it is pushed
outside the model of rules and designated as discretion; in Kelsen’s
case it is because the pure theory of law develops concepts only
for the purpose of analysing law as norms and assigns all concern
with human behaviour to other disciplines (such as sociology,
political science or psychology) whose concepts and methods are
seen as having no possibility of influencing or interacting with those
of legal science.
What has appeared to happen in this twentieth century normative
legal theory is well expressed by the German jurist Carl Schmitt:
‘The sovereign. . . the engineer of the great machine [of law], has
been radically pushed aside. The machine now runs by itself
(Schmitt 1985: 48).
Democracy and the Rule of Law
Plainly, in any realistic view of law, the machine does not run
by itself. There are, no less than in Austin’s time, people in positions
of power pulling its levers. What is the real significance, then, of
this emphasis on the self-regulating character of modern law? Its
purpose surely is to demonstrate law’s integrity as an independent
intellectual field and as a specialised field of professional practice.
The ideas of unity and system in law, which were noted in Chapter
1 as having considerable importance for the conception of law as
a field of professional knowledge and practice, are presented in
both Hart’s and Kelsen’s theories in ways which make strenuous
efforts to exclude political considerations or any explicit recognition
that law is an expression of political power. Admittedly, neither
theory is concerned to prescribe how law ought to be; both purport
only to describe (in Hart’s case) or provide the conceptual means
of interpreting (in Kelsen’s) law as it is. Thus, neither theory claims
Democracy and the Rule of Law 113
that law should be ‘above’ politics. They do not explicitly advocate

the ideal of the Rule of Law - that governmental action should
be controlled by known rules preventing arbitrariness - as something
which should guide legal and political practice. But because both
theories present a de-politicised image of law and claim that such
an image is an appropriate way to view law, they implicitly suggest
that law can have a unity, system and integrity independent of
politics and, therefore, that the idea of the Rule of Law is in some
sense built into the very notion of law.
In Kelsen’s theory this is obvious. He refuses to recognise ‘the
state’ as an entity standing above law and creating law. The state
is merely the legal order itself viewed from a certain standpoint.
State functions, offices and jurisdictions are all defined by legal
norms insofar as legitimate authority attaches to them. They have
no identify apart from the content of the legal norms defining them.
Thus, Kelsen makes the, at first surprising, claim that every state
is a Rechtsstaat, a state governed by law (1967: 313). To this extent
the notion of the Rule of Law is reduced to a pure issue of semantics.
There is, however, much more to the matter than that. Reading
both Hart’s and Kelsen’s work one gains the impression that the
need for legal controls on arbitrary powers of government is a
matter of great political concern to both of them. When Kelsen
writes (1955: 77-80) of the Rule of Law as a substantive idea of
effectively controlling governmental arbitrariness he has no illusions
about the difficulties of doing so. A major reason why he refuses
to accept the state as an entity above law is because, when it is
recognised as such, appalling things can be done in its name:
‘whereas the individual as such is in no way thought entitled to
coerce others, to dominate or even kill them, it is nevertheless his
supreme right to do all this in the name of God, the nation or
the state, which for that very reason he loves, and lovingly identifies
with, as “his” God, “his” nation and “his” state’ (Kelsen 1973:
67).
These sentiments, expressed in an article first published at the
beginning of the 1920s, suggest a firm rejection of all supra-
individual forms - such as the state - insofar as these are treated
as entities possessing independent significance; that is, a significance
beyond that of the individual human beings who make use of these
forms in one way or another. Thus, Kelsen adds that, if the masks
are stripped away from actors on the political stage and we no
longer see the impersonal state ‘condemning and making war’, what
is revealed is the reality of ‘men putting coercion on other men’
(1973: 67). Such comments reveal something of Kelsen’s
commitment to political freedom and his hostility to all forms of
Jthtbcracy justified by appeals to an entity - state, God, nation
- transcending mere individuals and claiming dominion over them.
Given such an outlook it is hardly surprising that his political theory
forcefully defends the ideal of democracy as government (directly
or by means of representatives) by the people as individual citizens.
This side of Kelsen’s thinking, expressed eloquently in his political
writings, is totally ignored in almost all Anglo-American discussions
of his legal philosophy. Yet it provides an essential context for
understanding the full significance of the methods underlying his
pure theory of law. Kelsen’s conceptualism assumes, as has been
seen, that each science or intellectual discipline must create its own
concepts by which to secure knowledge of its subject-matter. All
‘truth’ is therefore relative to the particular science concerned,
because knowledge-claims can only be evaluated within the context
of the particular science within which they are made. Each separate
science alone provides the concepts which give meaning to, and
allow evaluation of, the knowledge-claims made within it. Thus,
the method of the pure theory of law denies that there is such
a thing as ‘absolute’ truth. But it asserts that the knowledge produced
within particular sciences, for their particular purposes, is no less
valuable as a result. And Kelsen claims that philosophical relativism
of this kind, with its denial of absolutes, correlates in many
important ways with political relativism - the idea that there are
no absolute political values (Kelsen 1955jkD£gmcracy is the most
appropriate practical recognition of politicalrej^îiffit Democracy
accepts that a conflict between political values can only properly
be resolved by taking the majority view for the time being. But
democracy equally protects the minority’s right to oppose that view
because today’s minority may be tomorrow’s majority which will
be no less entitled to insist on the ‘correctness’ of its views.
Underlying democracy is a commitment to tolerance - an ideal
to which Kelsen frequently refers. Democracy is the political
embodiment of the tolerance of opposed views.
Thus, the pure theory of law portrays a legal system not as the
expression of supreme political values but as a framework of norms
which ‘always has more or less the character of a compromise’
(Kelsen 1973: 76). To the extent that law forms itself as a system
of norms whose integrity as a system can be recognised by an
independent legal science (founded on the concepts of the pure
theory of law) it is not the mere servant of politics but a structure
governed by its own logic which makes possible the compromise
of individual wills. To this extent, law is the essential social technique
available to harness coercion to make possible civilised co-existence
of individuals within a society (Kelsen 1941a). From the point of
Democracy and the Rule of Law 115
view of the pure theory of law, therefore, the political authority

of the state is a mere derivative of law. The pure theory of law
dissolves away the state’s legitimacy as a potential agency of
intolerance. It insists that the state is properly seen as merely the
effect of the structure of norms governing the relationships of
individual human beings. For Kelsen the doctrine of sovereignty
is harmful precisely because it asserts the existence of a supreme
entity above law (1973: 71).
Equally, the pure theory of law does its best to dissolve away
the nation, as a supreme entity, too. Kelsen argues that the logic
of the pure theory leads to the recognition of international law
as a single supreme legal system; one in which the norms presented
as the basic norms of national or municipal legal systems now
appear in a new light - as subordinate norms within the international
legal order whose validity is ultimately governed by a basic norm
of international law. By contrast, Austin’s theory of law as the
sovereign’s command denied that international law should be
considered law at all, but only positive morality, because only
independent political societies (states) have sovereigns to command
law. No sovereign of an international community exists. Kelsen’s
rejection of sovereignty as a concept entails not only a rejection
of the claim that the state is above law but also of the claim that
there can be no higher political allegiance and legal obligation than
to the nation state.
As for the appeal to ‘God on our side’, the third source (with
‘state’ and ‘nation’) of autocracy and intolerance specifically
mentioned by Kelsen in the passage quoted earlier, it is firmly
excluded by the pure theory of law because, as its author never
tires of insisting, the pure theory is not concerned with debates
about justice. It cannot be so concerned because, in Kelsen’s view,
such debates do not lend themselves to scientific resolution. ‘If
the history of human thought proves anything, it is the futility
of the attempt to establish, in the way of rational considerations,
an absolutely correct standard of human behaviour, and that means
a standard of behaviour as the only just one, excluding the possibility
of considering the opposite standard to be just too’ (Kelsen 1957:
21). Again Kelsen’s message is the same: a denial of absolutes;
a denial which in many circumstances enjoins tolerance as the wise
and courageous response to the relativity of values. The pure theory
of law tries to provide concepts for an autonomous science of law
(the systematic professional knowledge of lawyers) which is not
the servant of autocracy but dignifies law by insisting on its integrity
as a normative system.
No comparable explicit political theory is contained in Hart’s
major writings. Nevertheless a commitment to liberal individualism

and an aversion to authoritarianism - attitudes not dissimilar to
Kelsen’s - are apparent; for example, in his writings on responsibility
and the functions of criminal law (Hart 1963; Hart 1968). Some
of Hart’s warmest praise for Bentham is with regard to Bentham’s
discussions of elements of the Rule of Law and the liberal
constitutional state: ‘One by one in Bentham’s works you can
identify the elements of the Rechtsstaat. . . Here are liberty of speech,
and of press, the right of association, the need that laws should
be published and made widely known before they are enforced,
the need to control administrative agencies, and the importance
of the principle of legality, nulla poene sine lege' (Hart 1958: 51).
The list might be considered a summary of the standard concerns
of many lawyers in mid-twentieth century Britain, at the time Hart
was developing his normative legal theory, about the legal
framework of the interventionist welfare state. Kelsen’s pure theory
purports to demonstrate the integrity of legal science - lawyers’
methods of analysis of law - in opposition to the twentieth century
absolutisms (for example, fascism or Stalinism) which have claimed
it as merely an appendage of politics. In a parallel manner, Hart
provides the reassurance of a concept of law entirely in terms of
rules. He gives an implicit theoretical promise that despite the
proliferation of discretionary regulation and administrative
structures of the modern state it is still possible to distinguish from
them the rules which constitute not only the familiar stock of
lawyers’ knowledge, but also the formal political guarantees of
autonomous citizenship and the Rule of Law.
Conclusion
How, finally, should we assess the developments in legal philosophy

which have been discussed in this chapter? In Kelsen’s case it can
be said that the sophistication of method which underpins his theory,
the range of its reference and his single-minded devotion to
explaining the possibility of an autonomous science of law, ensure
that his writings address illuminatingly a host of issues which found
no place in Austin’s thought. The scope of Kelsen’s work is simply
different from that of Austin’s. Yet, as has been seen, Kelsen’s
political theory and his particular conception of the professional
and intellectual requirements of an autonomous discipline of law,
may help significantly to illuminate major points at which his claims
appear to conflict directly with those of Hart or Austin.
It is harder to assess Hart’s advance on Austin. Most
Conclusion 117
commentators today have no doubt that his theory is better - in

the sense of having more explanatory power. But the content and
approach of this chapter should suggest that the question of what
makes a theory ‘better’ is a complex one within the field of normative
legal theory. Hart’s progress beyond Austin has been portrayed
here primarily as the construction of theory which highlights a
set of political and professional concerns about law which are
significantly different from those of Austin. Dicey defined the central
political problem of his late-nineteenth century era (in which
Austin’s theory had its greatest impact) as how ‘to give constitutions
resting on the will of the people the stability and permanence which
has hitherto been found only in monarchical or aristocratic states’
(quoted in Sugarman 1983: 109). This concern to contain the
potentially disruptive effects of democracy seems to explain the
shape of much of Austin’s theory, which puts questions of political
power in central place through the concept of sovereignty, sees
liberty as a by-product of rational government, and is developed
in the context of a belief in the virtues of government by elites.
Equally, in legal professional terms, the need Austin recognised
was that of establishing a scientific foundation of legal knowledge
which would replace classical common law thought and firmly relate
the structure of professional legal knowledge to the reality of the
political authority of the centralised modern state. The themes of
liberal individualism, democracy and citizenship, and the
importance of the Rule of Law as a demarcation of law from politics
are not Austin’s. Their reflection in Hart’s (and Kelsen’s) work
obviously marks a significant political advance on Austin in the
sense of a recognition of vitally important modern concerns.
Much of normative legal theory has ‘progressed’ by emphasising
felt concerns of its time, rather than by providing theories that
can be considered better than earlier ones in some absolute sense.
Thus, if Hart and Kelsen can be interpreted as addressing lacunae
in the range of Austin’s concerns, the theory to be considered in
the next chapter appears, correspondingly, to address important
political and professional concerns beyond those reflected in their
work.
5 The Appeal of Natural Law
It might seem that analytical jurisprudence has made redundant

the ideas and perspectives of classical common law thought with
which Chapter 2 was concerned. But this book’s discussion of the
development of English analytical jurisprudence in the writings of
Bentham, Austin and Hart and the associated development reflected
in Kelsen’s work has tried to show that normative legal theory
does not necessarily progress through a straightforward superseding
of inadequate theory by better theory addressing the same concerns.
Rather, it sometimes shows important shifts of emphasis and altered
concerns. These, in turn, may be the result of felt political or
professional necessities. Analytical jurisprudence can be understood
in part as reflecting a demand for a systematic, rational legal science
to underpin modern legal professionalism and to accommodate
the political idea of law as a technical instrument of government
in modern western states. Classical common law thought flourished
in a different era with different preoccupations. Nevertheless,
analytical jurisprudence has not necessarily provided a fully
adequate perspective from which to view contemporary Anglo-
American law. The modern so-called ‘natural law’ theory to be
considered in this chapter can be viewed as, in part, an attempt
to push the methods of analytical jurisprudence to conclusions more
satisfactory in various ways than those the analytical jurists
themselves typically reach. At the same time it can be seen as,
in part, a means of recovering certain themes in classical common
law thought which analytical jurisprudence seems to have largely
relegated to the sidelines of theoretical concern.
Legal Positivism and Natural Law
One aspect of the aspiration towards a ‘science’ of law reflected

in the work of such different writers as Bentham, Austin, Hart
and Kelsen is the insistence on an analytical separation of law
from morality. In no case does this imply that morality is
unimportant. But it does entail the claim that clear thinking about
the nature of law and its analytical structure necessitates treating

it as a distinct phenomenon capable of being analysed without
invoking moral judgments. Hence, as Austin explains in a famous
passage: ‘The existence of law is one thing; its merit or demerit
is another. Whether it be or be not is one enquiry; whether it
be or be not conformable to an assumed standard, is a different
enquiry. A law, which actually exists, is a law, though we happen
to dislike it. . . This truth, when formally announced as an abstract
proposition, is so simple and glaring that it seems idle to insist
upon it. But simple and glaring as it is. . . the enumeration of
the instances in which it has been forgotten would fill a volume’
(Austin 1832: 184).
So Austin, like Bentham before him, criticises Blackstone for
continually confusing legal and moral analysis in his Commentaries',
for treating as law what he thought ought to be law; for declaring
that human laws are invalid if contrary to the laws of God; for
asserting that all human laws derive validity only from God’s
superior law (cf. Blackstone 1809 I: 41). The invocation of moral
precepts - whether or not linked to a supra-human authority such
as the will or law of God - as part of the criteria of the validity
of man-made law seemed to Bentham and Austin to be dangerous.
It prevented an objective, ‘scientific’ analysis of the nature of law
as a human creation, and a clear set of indisputably objective criteria
for determining which regulations should be recognised as
possessing the authority of law. It left such matters to ethical
speculation. Since ethical views vary, the way is opened for anyone
to claim the right to ‘second guess’ the authority of law and state.
Danger lies also in another direction, according to Bentham. To
confuse legal and moral authority allows reactionaries to claim
‘this is the law; therefore it must be right’; existing law is assumed
to possess not only authority as law but also moral authority.
Blackstone’s primary failing in Bentham’s eyes was, thus, his
tendency to merge legal and moral authority, which went along
with a complacency implying that English law as expounded in
the Commentaries was the best of all law for the best of all possible
worlds (Bentham 1977: 498-9; Hart 1958: 53).
This chapter is concerned with the claim of the major analytical
jurists that law and morality should be clearly separated for purposes
of analysis, and with some important challenges to that claim. Since
the term analytical jurisprudence refers only to an aspiration and
effort to analyse systematically law’s conceptual structures, on the
basis that they are worthy of study in their own right as distinct
objects of analysis, it does not necessarily demand this law-morality
separation. So, although writers who have considered themselves
or been considered to be analytical jurists have typically subscribed

to the separation of law and morality, it is convenient to use a
more specific term to refer to the adoption of this analytical
separation. As has been seen, Austin treated positive law as the
appropriate focus of legal science and distinguished it from all moral
rules or principles not specifically ‘set down’ (posited) or legislated
in some form but merely accepted, as well as from (religious) rules
or principles attributed to some supra-human authority. Thus, the
term now generally used to refer to insistence on the separation
of law and morality is legal positivism. It is sometimes used
imprecisely to refer also to a number of actual or supposed
characteristics of analytical jurisprudence (cf. Hart 1958: 57-8).
In this chapter, however, legal positivism will be taken to mean
specifically the insistence by Bentham, Austin, Hart, Kelsen and
many other jurists on the necessity of analytically separating
normative legal theory’s inquiries into the nature of law from
inquiries into its moral worth.
In contrast to legal positivism stands a tradition of thought
adopting an apparently diametrically opposed position - that law
cannot be properly understood except in moral terms; that it is
fundamentally a moral phenomenon; that questions of law’s nature
and existence cannot be isolated from questions about its moral
worth. This tradition is usually termed natural law theory. Its history
extends through at least 2,500 years of Western philosophy. One
of its most powerful themes (though an ambiguous one, as will
appear) is expressed in the declaration that lex iniusta non est lex
- an unjust law is no law at all. It may well be that statements
like this in the history of natural law theory have never meant
what they seem, at face value, to mean (Finnis 1980: 363-6).
Nevertheless, they do suggest the persistent claim that questions
about the nature of law and the conditions of its existence as an
authoritative normative order cannot be treated in isolation from
questions about its moral foundations. Thus typically, in many
different ways throughout its long history, natural law theory has
postulated the existence of moral principles having a validity and
authority independent of human enactment, and which can be
thought of as a ‘higher’ or more fundamental law against which
the worth or authority of human law can be judged. This
fundamental ‘natural law’ is variously seen as derived from human
nature, the natural conditions of existence of humanity, the natural
order of the universe, or the eternal law of God. The method of
discovering it is usually claimed to be human reason. Natural law
thus requires no human legislator. Yet it stands in judgment on
the law created by human legislators.
Natural Law and Classical Common Law Thought
Why might this dispute about the relations of law and morality
bear on the question of whether any of the perspectives or concerns
of classical common law thought survive their displacement by
positivist analytical jurisprudence, from Bentham onwards? As was
seen in Chapter 2, classical common law thought assumed various
sources of law’s authority. Law was seen as rooted in immemorial
custom, or community life; in a transcendent reason, or the
accumulation of ancient wisdom greater than that of any individual.
By contrast, Bentham’s and Austin’s writings ground law’s authority
in the existence of habitual obedience to a sovereign, a purportedly
objective ‘test’ to distinguish law from non-law and identify legal
authority. Hart and Kelsen focus on the fact of social acceptance
of a rule of recognition or a basic norm as the fundamental pre¬
requisite for a determination of legal authority. Positivist theories
attempt to provide criteria of the ‘legal’ and of law’s authority
in specific formal conditions which avoid vague ideas of the nature
of the community or of social organisation, or of some transcendent
reason. Because common law thought identified the source of legal
( authority, not in the state or sovereign or in rule-governed
procedures of legal enactment but in reason or community, it
1 allowed at various times, as has been seen, for the possibility that
' - in theory, at least - some legislation or judicial decisions could
j be void either as abuses of legal authority or as misstatements
of the law.
Given this facet of classical common law thought it is unsurprising
that at times it related closely to natural law ideas (Gough 1955:
ch 3; Haines 1930: ch 2), which also claimed the possibility of
evaluating law’s authority before the tribunal of reason. The notion
of common law as something not residing in rules but in more
fundamental principles expressing a transcendent reason or ancient
wisdom had close affinities with natural law doctrines asserting
the existence of some higher (moral) law governing and providing
ultimate authority for the ordinary rules of human (positive) law.
On the other hand, natural law theory was always a two-edged
sword. In English history it was used to defend the divine right
of the monarch, as expressed in prerogatives, against the claims
of common law (Pocock 1957: 55). Equally, it could be used to
assert limits on, or a limiting interpretation of, the powers of
Parliament, as in Coke’s famous pronouncements in Calvin’s Case
(1608) (Gough 1955: 44-5). But appeals to natural law as a set
of principles which could control the substance of human law ceased
to be practically significant in England once parliamentary
sovereignty was recognised. As classical common law thought had

to accommodate and eventually give way to a view of law as created
by political authority, so natural law thought gave way to legal
positivism.
In the United States, natural law ideas proved important in the
formative era of judicial interpretation of the Constitution, since
the temptation to fill out the meaning of a written fundamental
constitutional document by appealing to an unwritten fundamental
natural law proved irresistible to the courts. Constitutional
adjudication entrusted to a Supreme Court which assumed the
authority to pronounce on the constitutional validity of legislation1
raised special issues. Indeed, this may be one consideration which
has made legal positivism somewhat less secure in modern American
legal philosophy (as exemplified by Lon Fuller’s work discussed
later in this chapter, and the literature considered in Chapter 6)
than it has been in England (but cf. Fuller 1940: 116-21).
Today, in the Anglo-American context, the fate of common law
thought is not unconnected with that of natural law thought
(although, outside the Anglo-American context, natural law’s
history must necessarily be understood in different terms). Common
law thought has had to find a place, if at all, in an environment
dominated by conceptions of law as posited by sovereign law-makers
of various kinds or their delegates or agencies. Equally, natural
law theory, insofar as it has survived at all in the Anglo-American
legal world, has tended to locate itself in the interstices of legal
positivism, accepting much in positivist analytical jurisprudence
and seeking to supplement or correct, rather than dismiss out of
hand, many of the ideas which have been the concern of Chapters
3 and 4.
Is Natural Law Dead?
Our concern is not with the long history of natural law theory
in Western civilization but with its particular appearances in the
modern Anglo-American legal context. In this perspective the
decline of natural law theory can be dated conveniently from
Bentham’s attack on natural law ideas in Blackstone’s
Commentaries. Bentham’s view that natural law was a ‘formidable
non-entity’, and natural law reasoning a ‘labyrinth of confusion’
(Bentham 1977: 17, 20) based on moral prejudices, or unprovable
speculations about human nature, went along with a profound
1 Marbury v Madison (1803) 1 Cranch 137.

Is Natural Law Dead? 123
political distrust of resonant phrases about the ‘rights of man’

enshrined in constitutional documents such as those inspired by
the French Revolution of 1789. In a single line of positivist legal
thinking in England, running from Bentham to A. V. Dicey’s late
nineteenth century work on The Law of the Constitution, specific
positive rules of law providing clearly defined rights enforceable
in the ordinary courts are contrasted favourably with ‘practically
worthless’ (Dicey 1959: 256) broad declarations of the rights of
man grounded in natural law conceptions but unenforced in
practice. The rise of legal positivism is often associated with the
nineteenth century prestige of ‘science’ in general and the aspiration
to produce a specific legal science which has been noted in previous
chapters. But more is at stake than that. It is not a change in
attitudes to science, morality or religion which should be held
primarily accountable for the decline of natural law thinking and
the rise of modern legal positivism but a change in the nature
of law itself and its political and professional environment.
Insofar as law became seen as an instrument of state policy -
and in the utilitarian view an instrument of progress, if used with
caution - it was revealed as an amoral and infinitely plastic device
of government. Insofar as it regulated increasingly complex and
differentiated Western societies it could be seen as, above all, a
means of controlling the interplay of conflicting interests. The social
theorist Max Weber, writing of nineteenth century developments,
noted that: ‘In consequence of both juridical rationalism and
modern intellectual scepticism in general, the axioms of natural
law have lost all capacity to provide the fundamental basis of a
legal system. . . The disappearance of the old natural law
conceptions has destroyed all possibility of providing the law with
a metaphysical dignity by virtue of its immanent qualities. In the
great majority of its most important provisions, it has been
unmasked all too visibly, indeed, as the product or the technical
means of a compromise between conflicting interests’ (Weber 1978:
874-5). Such an interpretation of law as a compromise (above all,
of economic interests) could be offered even for constitutions, such
as that of the United States, which expressed principles purportedly
grounded in ideas of ‘natural rights’ - truths declared to be self-
evident because founded in the nature of mankind or of human
society (see e.g. Levy 1987).
Classical natural law theory (broadly, that developed before the
nineteenth century) sought a grounding for human law in
unchanging principle, derived from ‘nature’ in some sense - the
natural order of things, and usually held to be discoverable by
reason. But two legal developments in Western societies have made
it especially hard to accept any such approach to understanding

the general character of law. One is legal doctrine’s ever-increasing
technicality and complexity. This is partly the result of law’s methods
of compromise between conflicting interests being extended to cover
more and more sectors of social life, and being invoked in support
of more, and more diverse, interests within the regulated
populations. The other development is the deliberate use of law
as a steering mechanism in society. This presupposes that law can
change rapidly and continuously but also that it does so not as
a reflection of enduring principle but as a mechanism aimed at
creating principles of social order. These principles are, however,
time-bound; pragmatic principles for the moment and the context,
quite unlike timeless principles of natural law. As the social theorist
Niklas Luhmann has written, ‘it is increasingly questionable whether
principles and ultimate perspectives [such as those of natural law]
withdrawn from all variation and relativity’ can ‘provide an apt
instrument for stabilisation and control’ in modern societies
(Luhmann 1982: 103).
Thus, the issue is not exactly that of being unable to agree about
ultimate values; or that it is impossible any longer to accept that
reason can discover universal ‘truths’ about human nature, or God’s
plan, or the hidden order of the universe or any such postulated
foundation of natural law. The fact that agreement is difficult to
reach does not show that principles of natural law are non-existent
(cf. Finnis 1980: 24). As the political philosopher Leo Strauss
remarks, ‘by proving that there is no principle of justice that has
not been denied somewhere or at some time, one has not yet proved
that any given denial was justified or reasonable’ (Strauss 1953:
9). The problem is that even if there are universal principles of
natural law they may not offer a convincing guide or grounding
for complex, highly technical and ever-changing modern law. After
all, legal positivism does not deny that the substance of law can
be subject to moral criticism2. The issue is not whether law can
be morally evaluated but whether its essential character must be
explained in moral terms. As an effort to provide such an
explanation, natural law ideas are, in the view of many writers,
‘devoid of any and every convincing theoretical justification’
(Habermas 1974: 113).
2 Although for Kelsen, it would be not the law as such but the content
of its norms which could be re-evaluated from a moral perspective:
cf. Kelsen 1945: 374-5.
Natural Law and Legal Authority 125
Natural Law and Legal Authority
None of this should necessarily lead to the conclusion that the

problems which natural law theory addressed in the past have
disappeared. Different kinds of classical natural law theory
confronted a variety of issues. Among the most important are the
following: what is the ultimate source of authority or legitimacy
of human law and of human lawmakers; assuming this authority
to be in essence a moral one is it limited and, if so, what are
the limits and whence do they derive; by what criteria is it possible
to evaluate the moral worth and authority of laws; how should
one view laws created by abuse of lawmaking authority; in what
circumstances, if any, do governments and laws cease to command
moral authority with the result that any obligation to obey them
ceases? If the word ‘moral’ is replaced in these questions with the
word ‘legal’, all of them are ones which positivist analytical jurists
have sought to answer in various ways. The concern which links
positivist analytical jurisprudence and natural law theory is a
concern with the nature of legal authority, with identifying its sources
and its limits.
In positivist theory this concern is treated as raising technical
issues. It is, above all, a matter of adequately conceptualising the
highest authority of a legal system - for example, in terms of
sovereignty, rule(s) of recognition, or basic norm - and determining
the logical or practical relations between this authority concept
and the other conceptual components of legal analysis and legal
practice. For natural lawyers, however, the issues raised are moral
ones. Almost inevitably, however, they turn into - or serve as cloaks
for - political issues. This is because, while moral reasoning as
applied to matters of private conscience may produce a coherent
ethics to govern an individual’s life, moral reasoning applied to
such a social and public matter as legal regulation will typically
produce prescriptions as to how the power of the state should be
exercised or limited in controlling citizens’ actions. Natural law
theory, when taken seriously, becomes a force in political struggle
- usually in defence of existing legal and political systems (by
demonstrating their legitimacy grounded in ‘reason’ or ‘nature’),
but occasionally as a weapon of rebellion or revolution (cf. Kelsen
1945: 416-7).
As regards law’s authority, therefore, the primary difference
between positivist theory and natural law theory is not a polar
opposition but a difference as to how far inquiries about law’s
ultimate authority should be taken, insofar as positivists are
prepared to admit that law’s authority over the individual can be
evaluated in moral terms and natural lawyers are prepared to

recognise political authorities (such as the state) as having general,
inherent law-making authority. The medieval theologian St. Thomas
Aquinas, whose writings are one of the primary sources of natural
law theory, recognised the state’s authority to legislate on numerous
morally neutral matters about which natural law - the part of God’s
eternal law which can be grasped by mankind’s unaided reason
- would have nothing directly to say. The moral significance of
this legislation would be only as part of the state’s overall system
of regulation which must, in Aquinas’ view, serve the common
good in order to conform with natural law.
Even as regards exercises of state authority which transgress
dictates of natural law, issue is not necessarily clearly joined between
classical natural law theory and legal positivism. Aquinas does not
declare that all such laws lack validity or force. The philosopher
John Finnis has argued that the ‘central tradition of natural law
theorising’ - essentially that grounded in Aquinas’ ideas and their
antecedents - recognises the legal validity of unjust laws. That is,
it recognises them as laws according to criteria (such as Hartian
rules of recognition) that positivist theorists would emphasise
(Finnis 1980: 364-5). Certainly, where laws represent an abuse of
the authority indicated by natural law (as where they are not created
for the common good but for the vain whim of the law-maker)
one should, in Aquinas’ view, obey God rather than the human
lawmaker. But where laws are unjust merely because they do not
conform to the established norms of human welfare (for example,
because they impose an unjust distribution of burdens on those
subject to the law) he suggests that it might be better to obey.
Even if the laws do not bind in conscience one should avoid the
corrupting example and civil disorder attendant on law-breaking
(cf. Finnis 1980: 360).
This apparent hedging of bets on the moral obligation to obey
unjust laws can be understood as an attempt to work out realistically
the idea that the authority of a legal system as a whole is founded
on its dedication to the ‘common good’. Hence even where some
laws are unjust, obligation to the system as a whole may remain
insofar as it is of sufficient worth to justify its being protected
against adverse effects arising from the corrupting example and
disorder of law-breaking. The conflict between natural law and
positivism thus tends to become a dispute as to whether the authority
of a legal system as a whole can only be understood and judged
in relation to some specific moral purpose (such as promotion of
the common good) for which all legal systems exist. In general,
the answer of natural lawyers is yes, and of positivists, no.
The ‘Rebirth’ of Natural Law 127
The ‘Rebirth’ of Natural Law
The key to the debate around natural law is thus the issue of the
nature of legal authority. Natural law theory seems to become
significant in debate at times when political and legal authority
are under challenge. In times of stability positivist criteria of legal
authority typically seem sufficient. In times of political turmoil
or rapid political change they frequently seem inadequate; legal
understanding seems to demand not merely technical guidance
about the nature of valid law but moral or political theory. Questions
as to what rules are valid as law become elements of ideological
struggle; a matter of winning hearts and minds for or against
established regimes. Some of the material in Chapter 4 hinted at
this dimension of the determination of legal validity. Kelsen’s efforts
to establish a pure theory of law are, in part, an attempt to protect
law from politicisation; an attempt made in full awareness of the
difficulties of doing so ‘when in great and important countries,
under the rule of party dictatorships, some of the most prominent
representatives of jurisprudence know no higher task than to serve
- with their “science” - the political power of the moment’ (Kelsen
1945: xvii). Indeed, Kelsen recognises that acceptance of a positivist
science of law, such as his own, may be possible only ‘in a period
of social equilibrium’ (1945: xvii).
Thus, it is tempting to suggest that the enduring appeal of natural
law arises precisely from its willingness to confront directly the
moral-political issues of legality which arise in times of disorder
and conflict, while positivist analytical jurisprudence presupposes
a political stability which it cannot, itself, explain or even consider
as a subject within the concerns of legal philosophy. However,
the situation is more complex than that because modern versions
of natural law theory have been developed in relatively stable
societies such as those of twentieth century Britain and the United
States. This suggests that legal positivism is seen by natural law
writers as inadequate even where political authority is not being
seriously challenged. Perhaps the best way to understand the matter
is to recognise that a degree of ‘instability’ as regards law-making
authority is actually built into the structure of stable legal systems
as portrayed by positivist analytical jurisprudence. This is because
key questions about how law changes remain apparently impossible
to address in modern positivist theory. This has been seen in Chapter
4 where it was noted that judicial law-making is, for Hart, the
exercise of ‘discretion’, which his normative legal theory cannot
really analyse, and is, for Kelsen, explicitly a matter of politics
outside the compass of the pure theory of law.
Certain processes of law-making are, therefore, ‘unstable’ in the

sense that what determines their outcome is a matter which positivist
theory cannot subject to rational legal analysis. Given this state
of affairs it is not surprising that natural law began to become
a focus of attention again precisely at the time when modern legal
positivism might be thought to have consolidated its victories. In
1911, the American jurist Roscoe Pound wrote: ‘It is not an accident
that something very like a resurrection of natural law is going on
the world over’ (Pound 1911: 162; cf. Pound 1921: 82) and Charles
Grove Haines, analysing this twentieth century rebirth, saw, as
an important reason for it, the felt need to elaborate principles
of ‘higher law’ to guide the actions of judges in developing law
(Haines 1930: 323-30). In the common law world where,
traditionally, the role of the judge has seemed central within the
legal system this matter is, no doubt, of special importance. It
returns us to the link, noted earlier, between common law thought
and natural law theory.
Nevertheless, part of the motivation for rethinking the relative
virtues of legal positivism and natural law theory has come from
twentieth century experience of tyranny and political instability,
and especially from ex post facto reflection by jurists on the legal
history of the German Third Reich (1933-45). Here issues of the
ultimate authority of law are thrown into sharp relief and the theme
of the Rule of Law, which was identified in Chapter 4 as an important
political preoccupation informing modern analytical jurisprudence,
is highlighted in a new form. In this context, the Rule of Law
appears not just as a matter of protecting the autonomy of legal
structures, processes and professional knowledge against
politicisation by overweening state direction, but as a defence against
uncontrolled terror and arbitrary violence. In the light of the Nazi
experience, professional legal knowledge founded on a separation
of law and morals - the positivist science of law - can be portrayed
in a natural law perspective as, itself, a weapon of tyranny. This
is precisely because it refuses to confront ultimate questions about
the necessary moral criteria which state regulation must conform
to in order to possess authority which a lawyer, or any other citizen,
must recognise. The debate between positivists and natural lawyers,
in this context, becomes a debate about the meaning of the Rule
of Law. Should it be understood as the positivist aspiration to
remove political and moral choices as far as possible from the
determination of rights and duties; or should it be seen as the
natural lawyer’s insistence that morally acceptable purposes must
govern the unavoidably political decisions as to what rights and
duties will be held to exist?
Anglo-American Lessons From the Nazi Era 129
Anglo-American Lessons From the Nazi Era
The historical legacy of the Nazi era has explicitly influenced modern
Anglo-American debates between legal positivists and natural
lawyers. One of the most direct confrontations, between the
positivist H. L. A. Hart and the American natural lawyer Lon
Fuller, centred in part on discussion of the way in which post¬
war German courts were apparently evaluating the legality of acts
done during the Nazi period and which were claimed to be lawful
on the basis of Nazi law (Hart 1958; Fuller 1958). More generally,
the influence of emigre scholars, who fled from Germany during
the 1930s and, in many cases, settled eventually in the United States,
helped to feed into Anglo-American legal and political
consciousness insights and dilemmas about the nature and authority
of legal regulation which experience of Nazi practices and policies
inspired (e.g. Neumann 1944; Neumann 1986; Kirchheimer 1961).
In addition, reflection on the character of war crimes trials and
their basis of legitimacy and on the ultimate foundation of the
principles applied to judge guilt in them, undoubtedly made the
issue of the nature and authority of Nazi regulation a matter of
direct concern in the Anglo-American world and, at the same time,
informed wider speculation about legal methods and reasoning (e.g.
Shklar 1964: Part 2) and the adequacy of legal positivism (Paulson
1975).
The 1958 Hart-Fuller debate is a good starting point in
considering the recent confrontation of legal positivism and modern
natural law in the Anglo-American context, and especially as an
introduction to Fuller’s influential ideas which will be the concern
of much of the remainder of this chapter. At the time of his exchange
with Hart, Fuller was professor of jurisprudence at Harvard
University, where he taught, with a break during the 1940s, for
more than thirty years until his retirement in 1972. As his biographer
notes, he is ‘unquestionably the leading secular natural lawyer of
the twentieth century in the English-speaking world’ (Summers 1984:
151).
Hart argues that the positivists’ analytical separation of law and
morality is an aid to clear thinking; it avoids confusing legal and
moral obligation. To say that a rule is a valid law (judged by such
positivist criteria as its being the sovereign’s command, authorised
by a rule of recognition or imputed from a basic norm) merely
asserts the existence of legal obligation. Whether one ought morally
to disobey an unjust law is a matter about which positivist analytical
jurisprudence can remain uncommitted, for moral issues are not
within its province. For Fuller, however, such a view is both
unrealistic and dangerous. It oversimplifies problems of obligation

under a manifestly unjust regime and it sets up an unreal opposition
- a legal obligation to obey as against a moral obligation to disobey;
as if one can keep them separate. It assumes that there can be
order in a legal system without any moral content in it. For Fuller,
the legal obligation to obey laws does not automatically follow
from their enactment by a recognised, formal procedure. It depends
on the legal system’s claim, and ability to command, what Fuller
calls fidelity to law. When certain minimum moral qualities cease
to exist in a legal system, it ceases to command fidelity; that is,
it ceases to have a claim to citizens’ obedience. The order and
coherence of a legal system (its ability simply to go on functioning)
depend on a minimum moral content. Without this it ceases to
be a legal system at all.
It is not very clear what is involved in this last claim. It seems
to relate to the question of the definition or specification of law;
to what it is to be able to say that law exists. In terms of normative
legal theory’s concerns, therefore, the claim is that a general concept
of law necessarily entails moral elements of some sort. If, however,
the criticism is raised that - as suggested earlier in this chapter
- much of modern regulation is technical and conventional (for
example, a requirement that a will must be attested by two witnesses
to be valid; or the rule that in England one must drive on the
left hand side of the road) rather than the expression of moral
values - Fuller’s answer is that law’s existence depends on its
authority (its capacity to demand fidelity) and this authority
ultimately depends on certain elements of moral worth. Again,
however, a positivist critic could deny that legal authority requires
any moral component. As Austin noted: ‘The most pernicious laws,
and therefore those which are most opposed to the will of God,
have been and are continually enforced as laws by judicial
tribunals. . . An exception, demurrer, or plea, founded on the law
of God was never heard in a Court of Justice. . .’ (Austin 1832:
185). Must we say, therefore, that the positivist view offers hard-
headed realism about the way legal systems actually function (with
no necessary direct dependence on moral principle), whereas Fuller’s
thesis is merely wishful thinking about values which ought to be,
but are not necessarily, built into law?
In his 1958 paper, as in earlier writings (1940: 101, 110; 1946),
Fuller distances his thinking from classical natural law theory. As
has been noted, this classical theory was generally vulnerable to
the positivist criticism that modern law - in Weber’s terms, a
technical means of compromising or managing conflicting interests
- is no longer usefully analysed in terms of moral absolutes and
Anglo-American Lessons From the Nazi Era 131
requires a ‘science’ explicitly recognising its human origins and

instrumental political character. Fuller’s strategy is to emphasise
that the necessary morality of law is a procedural one, relating
to the way law is created, expressed, interpreted and applied, rather
than to any particular substantive content of legal rules. Looked
at this way, even purely technical rules, such as the one requiring
two witness attestations for a valid will, have a moral dimension.
Everything depends on how the rule operates, how it comes into
being, is expressed, interpreted or enforced.
The historical example of Nazi Germany provides material to
illustrate Fuller’s thesis. To assume, as Hart does, that the only
difference between Nazi law and English law was that the Nazis
used their laws to achieve purposes odious to English people is,
Fuller argues, to ignore the much more fundamental moral
differences between the two legal regimes. Nazi law made frequent
and pervasive use of methods which show, in terms of Anglo-
American standards, a most serious perversion of procedural
regularity. For example, frequent use was made of retroactive
statutes to cure irregularities. A notorious example occurred after
the Roehm purge of June 30th and July 1st 1934 when, on Adolf
Hitler’s orders, more than seventy members of the Nazi party were
shot. On July 3rd, a law was passed ratifying the massacre as a
series of lawful executions. Hitler apparently later declared that
at the time of the purge ‘the supreme court of the German people
consisted of myself (Fuller 1958: 650). Secondly, Fuller notes
‘repeated rumours’ of secret laws and regulations making it
impossible for most people even to discover the rules upon which
officials were supposed to act. More generally, however, since
‘unpublished instructions to those administering the law could
destroy the letter of any published law by imposing on it an
outrageous interpretation, there was a sense in which the meaning
of every law was “secret”’ (Fuller 1958: 652). Thirdly, when legal
formalities and procedures became inconvenient to the Nazi regime
they could be bypassed by means of Nazi gangs taking action ‘on
the street’ and achieving the required objective by violence.
Fourthly, ‘the Nazi-dominated courts were always ready to
disregard any statute, even those enacted by the Nazis themselves,
if this suited their convenience or if they feared that a lawyer¬
like interpretation might incur displeasure “above”’ (Fuller 1958:
652).
Assuming this picture of Nazi law in action is correct, what should
be said of a legal system like this? The first point is that it seems
less like a system of legal order than of discretions in policy-
implementation organised around the furtherance of political aims
of the regime in power (cf. Kirchheimer 1941). Not only is it

inefficient, as a functioning system of rules, but it lacks all procedural
fairness and propriety. These latter deficiencies point to a decline
in what Fuller terms the internal morality of law. Thus, for him,
they involve not just issues of efficiency but moral issues. We should
be prepared to say (irrespective of the substantive content of Nazi
laws) that the way the laws were applied was not merely procedurally
inefficient but manifestly unjust. Fuller argues (1958: 642) that the
authority of law (its capacity to demand fidelity) derives from a
moral understanding3 between rulers and ruled, such that citizens
accord moral respect to the constitution which governs them as
‘necessary, right, and good’. In the 1958 paper this is inadequately
analysed because there is no clear indication of the criteria to be
satisfied to ensure this recognition by citizens.
The best way to support Fuller’s argument about a link between
the moral authority of law and its procedural proprieties would
be to suggest that a gross and cynical discarding of formal and
predictable procedure constitutes a kind of ‘fraud’ on those who
must obey. There can be no moral understanding between rulers
and ruled in such circumstances. The ruled have no chance to orient
themselves to the dictates of the ruler’s authority. Although they
must obey, they are not given a reasonable chance to do so in
an orderly and rational manner. This is not, however, spelled out
in Fuller’s 1958 paper, though related arguments appear in his
later writings (cf. Fuller 1969a: 153, 159-62). Instead he claims,
without any real justification, that a decline in the moral aims
or purposes of law, which he calls law’s ‘external’ morality and
which determine the authority and respect attaching to the legal
system, is likely to be accompanied by a decline in the (procedural)
internal morality, and vice versa (Fuller 1958: 645).
The Ideal of Legality and the Existence of Law
However, the important point being made from the Nazi example
is that the stable forms and procedures of law and the nature of
its authority are linked and Fuller is specific in his claims about
the consequence of disintegration of these forms and procedures
in practice in Nazi Germany. He suggests that the decline in
procedural propriety, in the internal morality of law, was so serious
that a legal system, as such, ceased to exist in Germany during
3 In later writings Fuller refers to this, following the social philosopher

Georg Simmel, as a ‘kind of reciprocity’: see Fuller 1969a: 39.
the Nazi period. Hence, post-war courts should not recognise Nazi
law. Matters of legality in the Nazi period should be clarified, where
necessary, by retroactive legislation. This claim about the non¬
existence of law in Nazi Germany is, indeed, one which other writers
had already made, and on the basis of similar arguments about
the effects of the procedural arbitrariness of the Nazi regime. Franz
Neumann, a distinguished jurist who practiced law in Germany
during the years leading to the Nazi accession to power in 1933,
wrote, observing Nazi Germany from exile in America, that ‘there
is no realm of law in Germany, although there are thousands of
technical rules that are calculable’ (Neumann 1944: 468). Another
eminent German scholar, Otto Kirchheimer, wrote to similar effect:
‘With the access to power of National Socialism the common legal
bond of a generally applicable civil law disappeared more and
more. . .’ (Kirchheimer 1941: 89).
Obviously a specific definition of the word ‘law’ is involved here
and Nazi regulation is being tested against it. But, in Fuller’s 1958
essay, no such definition is made explicit. In Kirchheimer’s and
especially Neumann’s writings, however, the concept of law
employed is elaborated. Indeed Neumann used it in major writings
of the 1930s and 1940s as the criterion for assessing general changes
in the character of twentieth century regulation and as the organising
concept for the most detailed historical analysis available in English
of the notion of the Rule of Law (Neumann 1986).
Neumann writes bluntly: ‘the National Socialist legal system is
nothing but a technique of mass manipulation by terror’ (1944:
458). If law is merely the sovereign’s command such a system must
be recognised as legal. But if law ‘must be rational either in form
or in content’ Nazi regulation definitely does not deserve the name
of law. For Neumann, law is both voluntas (the expression of
sovereign power) and ratio (the expression of reason, or rational
principle grounded in general ethical postulates) and the legal history
of Western civilization is a history of the attempt to reconcile these
typically incompatible yet essential components of legality
(Neumann 1986: 45-6; 1944: 451-2). The component of ratio insists
that law be a matter of general rules, not special individualised
commands. It requires also that these general rules be clear and
predictable in application, not vague general norms providing broad
authority for virtually free official discretion. Hence, although Nazi
regulation made considerable use of technical rules, it lacked the
character of law.
Kirchheimer elaborates similar arguments. He sees Nazi
regulation as guided wholly by policy demands. These necessitated
technically rational norms of a purely provisional character which
could be changed quickly to meet the needs of the moment, without

notice and, if necessary, retrospectively. Such requirements
precluded the existence of a stable body of general laws which
could only hamper governmental freedom to shape, adjust and
implement policy. The aim of adjudication and rule application
in such a regime is not to maximise legal stability but to execute
given commands ‘so as to have the maximimum effect in the shortest
possible time’ (Kirchheimer 1941: 99). Thus, the legal regime of
contract is largely replaced by a system of private command and
administrative order; that of family law becomes a regime of policy
regarding population development and social organisation. Even
the idea of the state, as the abstract source or structure of regulation,
is discarded in favour of the ultimate ‘total and all-embracing’
personal authority of the leader (Krausnik et al. 1968: 128; Neumann
1944: 467-70)
For Fuller, the point of referring to evidence from a grossly
pathological regulatory system is to try to show that legality is
a more complex notion than legal positivism understands it to be.
For rules to be ‘legal’ it is not enough that they conform to the
legal criteria expressed in a rule of recognition, or can be imputed
from some basic norm of the legal system. Legality is a matter
also of the way rules operate, of how they are drafted, promulgated,
applied, interpreted and enforced. Neumann and Kirchheimer had
already offered a broadly similar message. Neumann, however,
rejects natural law theory in his writings as a mystification usually
adopted to justify the status quo. He is concerned only to confront
positivist analytical jurisprudence with political and social realities
and to demonstrate its descriptive inadequacy in failing to take
account of them. Fuller, by contrast, eventually chooses the terrain
of natural law on which to fight (cf. Fuller 1969a: 96-7). The message
of Nazi experience for him is that legal positivism cannot appreciate
the moral conditions under which legality is possible. Legal order
must be ‘good order’ so as to create conditions for fidelity to law.
Good order demands conformity, at least a minimum extent, with
the internal morality of law. Legality, for Fuller, is thus a special
kind of morality.
Before considering Fuller’s ideas expressed in other writings it
is appropriate to take stock, in a preliminary way, of this critique
of legal positivism, since it remains substantially unchanged in his
later work4. A familiar positivist reaction to Fuller is to express
approval of all the procedural proprieties upon which he insists
while denying their moral character, and denying also that Fuller’s
4 And see generally the extensive criticisms of positivism in Fuller 1940.

conception of legality in any way invalidates positivist analyses

of law. The positivist claim is that the theoretical relationships
between legal rules (in Hart’s concept of law) and legal norms
(in Kelsen’s theory) are not invalidated by procedural impropriety.
They exist even if denied in practice. Indeed, as has been seen,
part of Kelsen’s objective is to defend a rational legal science (as
professional legal reasoning) in the face of political manipulation
of law. The proper framing, application and interpretation of law
are thus not moral matters for Kelsen and Hart, but consequences
of adherence to a coherent positivist view of a legal system and
of the necessary relationships between its doctrinal elements.
Fuller’s claims are symptomatic of an impatience with legal
positivism’s silences - with what it refuses to say about law - rather
than with its explicit tenets. In Chapter 4 it was noted that modern
analytical jurisprudence contributes to lawyers’ professional
concerns by attempting to establish a coherent concept (Hart) or
science (Kelsen) of law which adequately reflects the normative
view of rules of norms held by legal ‘insiders’; in other words,
above all, by lawyers. At the same time, a political dimension to
these theories was noted. They suggest an image of the Rule of
Law as somehow inbuilt in the very concept of law or legal system,
because of their portrayal of law as a self-regulating system. But
Fuller’s procedural natural law theory seeks to show the inadequacy
of this formal Rule of Law conception. Legality is typically reduced
in the implicit positivist conception to a professional understanding
of the doctrinal consequences of a logically integrated system of
rules. The actual operation of rules is ignored and, indeed, is largely
irrelevant to this conception. Fuller, however, passionate about
the evils of Nazism (Summers 1984: 7, 152), insists on the inadequacy
of any such abstract and formal view of legality and the Rule of
Law and emphasises the need to examine the practical conditions
of the making and application of rules.
Nevertheless, if the legal professional concern for a coherent
portrayal of doctrine in its logical relationships is the concern which
analytical jurisprudence as a type of normative legal theory is
attempting to meet, its failure to address wider political and ethical
dimensions of law in action is not necessarily inimical to the
achievement of its objectives. Its silences on the moral issues of
Nazi law do not, in themselves, invalidate its theses or render them
incoherent. On this view, Fuller’s natural law approach merely
strains at the limits of normative legal theory as a rationalisation
of legal professional knowledge; it asserts a need to infuse a more
profound political awareness into normative legal theory. As will
appear later, even legal positivists have realised that this might
be desirable.
A Purposive View of Law
Fuller’s other writings make it clear, however, that his main concerns
about law’s morality are not with such questions of legal pathology
as whether Nazi law was too evil to be law, but with constructive
issues as to how to infuse the highest legal virtues into systems,
such as those of Anglo-American law, which he would regard as
far from pathological. The internal morality of law - the procedural
criteria by which Nazi legal tyranny is measured in the 1958 essay
- are discussed in Fuller’s most influential book The Morality of
Law, first published in 1964, as criteria also of possible legal
excellence.
In The Morality of Law Fuller distinguishes between two kinds
of morality or moral judgment. The morality of duty refers to
the basic moral demands of order without which mere existence
(whether of a society or of a legal system) becomes impossible.
The morality of aspiration, by contrast, refers not to a moral
minimum, but a maximum. ‘It is the morality of the Good Life,
of excellence, of the fullest realisation of human powers’ (1969a:
5). Duty and aspiration constitute the ends of a moral scale rising
from the bare moral necessities for any human achievement, through
to the highest moral ideals. Moral demands can be pitched at various
points on this scale. For example, a judgment about the morality
of gambling could stress that extensive gambling directly harms
society, the individual and the individual’s family in economic,
psychological and other ways. These ‘duty’ considerations might
suggest that gambling should be legally prohibited. On the other
hand, gambling on a small scale and for low stakes might not
seem harmful in these basic ways but only a matter for regret that
the individual can find no better use of time and energy. The
aspiration that people should live ‘good lives’ is not something
to which they should be compelled. We assume that law should
require the moral minimum, not try to force citizens to become
saints.
This idea of a moral scale enables Fuller to pose, as a fundamental
problem of all legal regulation, that of deciding where the pressures
of duty stop and the excellences of aspiration begin. Law’s
impositions must be sufficient to sustain duty but they become
tyrannous if they seek to impose excellence. Hence one of the most
important arts of law-making is that of judging for each issue,
A Purposive View of Law 137
each law and each activity or situation, what level of moral demands
law should operate with. But the demand for legality is itself a
moral demand. Therefore, it is necessary to decide how far it relates
to the morality of duty and how far to that of aspiration. Where
on the moral scale is the internal morality of law to be located?
In The Morality of Law law’s internal morality is first presented
negatively as ‘eight ways to fail to make law’. These are (i) a failure
to achieve rules at all, so that every issue must be decided on an
ad hoc basis; (ii) a failure to publicise the rules to be observed;
(iii) the abuse of retroactive legislation ‘which not only cannot itself
guide action, but undercuts the integrity of rules prospective in
effect, since it puts them under the threat of retrospective change’;
(iv) a failure to make rules understandable; (v) enactment of
contradictory rules or (vi) rules requiring conduct beyond the powers
of the affected party; (vii) introducing such frequent changes in
the rules that those addressed cannot orient their conduct by them;
and (viii) a failure of congruence between the rules and their actual
administration (Fuller 1969a: 39). Total failure in any one of these
directions, or a pervasive general failure in them (as with Nazi
regulation) would, for Fuller, result in the non-existence of a legal
system (1969a: 39). At this basic level, therefore, the internal
morality of law provides a minimum morality of duty without which
the existence of a legal system is impossible.
Beyond such rare pathological cases, however, the internal
morality of law is primarily a morality of aspiration; the aspiration
to maximise legality, to make legal order as good an order as can
be. The internal morality can then be expressed as eight excellences
which are the reverse of the ‘eight ways to fail to make law’:
government always by rules, which are always publicised,
prospective, understandable, non-contradictory, etc. Yet Fuller
stresses that it would be counterproductive to try to realise fully
all eight excellences in a working legal system. No system of rules
could function on such a basis but would collapse in chaos or
paralysis. For example, retroactive laws are sometimes inevitable,
not all legal disputes can be solved by existing rules, and rules
cannot achieve perfect clarity in advance of all applications of them.
Thus, the achievement of legality is not merely the acceptance of
a set of moral principles. It is a matter of judging the point on
the moral scale between duty and aspiration where each component
of legality, as related to each concrete problem of legal regulation
in the particular legal system concerned, should be set. And the
point on the scale will vary with circumstance and time. The
achievement of legality is, thus, a task requiring all the skills of
legislator and jurist. It is the heart of ‘the enterprise of subjecting

human conduct to the governance of rules’ (1969a: 91, 96).
The use of this last mentioned phrase is the closest Fuller comes
to defining law (cf. 1969a: 106), but the definition, such as it is,
is instructive. It emphasises that law is a purposive activity (not
merely rules or norms which are the product of the activity). Equally
Fuller’s definition reflects his view (readily acceptable to many legal
sociologists but sometimes less so to lawyers and legal philosophers)
that the term ‘law’ need not be limited to refer only to rules enforced
by state agencies. Fuller’s purposive concept of law allows it to
be applied to rule structures governing numerous social institutions
- such as schools, hospitals or business corporations - and social
groups. The internal morality of law provides criteria of legality
by which rule systems of many kinds can be judged. Indeed, this
concept of legality has been used in sociological studies in such
fields as industrial relations (Selznick 1969) and policing (Skolnick
1975).
There is much of value in these ideas. Nevertheless, it is clear
that we have moved on to different terrain from that of positivist
analytical jurisprudence. What is now offered by Fuller no longer
appears as a direct critique of legal positivism but as a different
enterprise concerned with the examination of law in purposive terms.
Although Fuller presents his ideas as an attack on legal positivism,
they cannot be defended as a critique of the logic of positivist
analytical jurisprudence but only of the inappropriateness,
narrowness or political and social irrelevance of its projects. His
claims are strong ones. But they amount to saying: you should
have devoted your researches to this rather than that. And the
positivist can still reply: maybe so, but your arguments are no
criticism of what I have done in seeking to rationalise the legal
knowledge which is important to lawyers.
Fuller and the Common Law Tradition
One further line of attack on legal positivism presents itself in

Fuller’s work and, though it is usually the least discussed, it is
the strongest attack mounted in his writings. In an important 1946
article Fuller attacks positivist analytical jurisprudence at what has
already been identified in this and earlier chapters as one of its
weakest points - its understanding of the judicial process and the
practice of judicial development of case law. Using a dichotomy
very similar to Neumann’s contrast between ratio and voluntas,
he argues that judicial development of law necessarily involves both
reason and fiat or ‘order discovered and order imposed’ and ‘to
attempt to eliminate either of these aspects of the law is to denature
and falsify it’ (Fuller 1946: 382). Classical natural law theory cannot
convince us that law can actually be pure reason; it cannot supplant
the need ‘for authority, for a deciding power’ (1946: 388)5. But,
equally importantly, positivism cannot convincingly portray law
as pure fiat (that is, a formal structure of authority) because the
legal outcomes of judicial decisions cannot be understood except
in the light of reasons for the decisions. In case law, reason and
fiat are inseparably intertwined. The judicial decision is an exercise
of authority but is also a search for, and attempt to construct,
reason in legal doctrine. The common law method entails an
appreciation of both fiat and reason in case law. At its best, it
keeps these aspects of law in balance.
Thus, Fuller suggests that an extreme positivism, which sees law
only as fiat, is ‘essentially alien to the American spirit’ (1946: 394).
It cannot adequately represent the common law method of legal
development. Hence the emphasis on ‘reason’, which in Fuller’s
later writings develops into the procedural version of natural law
represented by the internal morality of law, connects with a defence
of common law methods.
There is, however, more to this defence than a device for attacking
legal positivism. In Chapter 2 the image in classical common law
thought of law’s deep roots in community life was discussed. Fuller,
also, asserts in his writings that the case law of the common law
tradition projects its roots ‘more deeply and intimately’ into the
actual patterns of human interaction than does statute law (Fuller
1969b: 26). His concern over the years to understand these social
patterns and their relationships with legal procedures and
institutions gradually led him to deeper study of sociology,
anthropology and social psychology. What resulted was a body
of writing examining the social roots and consequences of particular
forms of law and of particular kinds of legal procedures and
institutions.
The most interesting aspect of all this for the concerns of this
book is the way in which Fuller’s researches led him to a kind
of restatement of elements of classical common law theory, but
in a sophisticated form which replaces the mystical images of
5 No doubt it is this point which, several years later, makes Fuller in
The Morality of Law - now explicitly accepting the label natural law
for his own theory - address that theory primarily only to the procedural
forms by which the deciding power expresses and implements its
decisions, and not directly to the substance of the decisions (as classical
natural lawyers typically have done).
community encountered earlier in Chapter 2 with specific

sociological claims about law in society. For Fuller, the necessity
of human interaction is what gives purpose to law, and the principle
of reciprocity is a major foundation of social interaction and social
institutions (1969a: 20-1, 61). His writings portray social life as
a kind of collective endeavour; a matter of co-operation (for
example, in maintaining legality: 1969a: 91); ideally, the
collaborative working out of a reasoned view of human affairs.
The overriding task of law is, thus, to keep open lines of
communication between members of society (1969a: 185-6), by
means of which disputes can be resolved, projects planned, and
individual and group objectives achieved. Fuller’s image of social
life is one in which a network of free individual initiatives sorts
most matters out. Governmentally imposed solutions to social
problems may often be of limited use. Thus, for Fuller, negotiation,
arbitration and mediation are specially important means of resolving
social difficulties. He served for twenty years as an industrial
relations arbitrator of grievances under collective bargaining
agreements and devoted much energy to this role (Summers 1984:
7) .
Such a view of social life and its ordering does not, therefore,
lead to the simplistic conclusion, so often associated with classical
common law thought, that the wise judge as repository and distiller
of communal knowledge and custom is always the ideal regulator.
Fuller plainly considers this often to be the case (Fuller 1940: 131—
8) . But courts cannot, for example, deal well with polycentric
problems - those where the interconnections of the problem posed
with other problems of practical social ordering are sufficiently
complex to make attempted solutions counterproductive unless their
ramifications in a variety of contexts are systematically considered
(Fuller 1978). Beyond this, the criteria of legality - the internal
morality of law - are not necessarily appropriate to all kinds of
government action, for example in economic planning and
allocation (Fuller 1969a: 171), or to private rule making by
negotiation between the parties. Different kinds of social order
and organisation require different kinds of regulation and regulatory
mechanisms and procedures. Much of Fuller’s later work is
concerned with exploring the relationships between the inherent
character of various means of regulation (for example, custom,
contract, adjudication, legislation, managerial direction, and
democratic collective decision-making) and the types of social order
for which they are appropriate (cf. Summers 1984: ch 6).
Nevertheless, Fuller’s later writings attach special significance
to a kind of social order which seems close to that suggested by
the idea of the community in classical common law thought. Fuller

terms it the relationship of ‘friendly strangers’ (1969b: 27). It is
neither the relationship of intimacy which is the ideal of family
life, nor that of antagonism as between hostile nations. It seems
to be the social order in which individuals pursue their own
objectives in a spirit of co-operation through social relationships
of reciprocity. In discussing the ideal legal framework for such
a social order. Fuller distinguishes between three types of law.
Customary law derives directly from patterned interaction between
individuals and it changes as the patterns of interaction change.
What Fuller calls ‘enacted law’ is any officially imposed law.
Between these two categories stands contractual ordering or the
‘law of the contract’. This refers to the rules which interacting
parties make as between themselves and for themselves by
negotiation; the rules of private ordering which lawyers would call
terms of the contract. Contractual ordering is ill-suited to the
ordering of intimate or hostile relations but ideally suited to ‘the
habitat of friendly strangers, between whom interactional
expectancies remain largely open and unpatterned’ (Fuller 1969b:
27, 29). Customary law can operate across the whole spectrum
of social contexts from intimacy to hostility, but enacted law (the
kind of regulation which must demonstrate legality in the sense
of Fuller’s internal morality of law) is, like contractual ordering,
most appropriate within the social order of friendly strangers. Its
task is, indeed, for Fuller, above all that of facilitating contractual
ordering of relationships.
Striking similarities with the orientation of classical common law
thought can be seen in these ideas. First, there is the somewhat
unclear legitimacy of enacted law which, as in classical common
law thought, is seen as in partnership with and even subordinate
to other regulatory structures which emerge in the conditions of
everyday social life (contractual negotiation, custom). For Fuller,
even enacted law must find its roots in the conditions of human
interaction. The internal morality of law - legality - helps to ensure
this since it expresses the moral relationship of reciprocity between
rulers and ruled (1969b: 24). Secondly, customary law, which Austin
did not even recognise as law (Austin 1832: 31) and which plays
little role in positivist legal thinking, re-emerges in Fuller’s later
writings with all the centrality which classical common law theory
gave it. Customary law, for Fuller, consists of the established
patterns of social interaction which provide the stable structure
of expectations within which people can co-operate, negotiate, plan
and act. Social science shows how important these stable structures
are - often much more important than those provided by enacted
law. Finally, Fuller’s writings emphasise the autonomous,

spontaneous processes by which regulation (especially contractual
ordering and custom) develops. They challenge the positivist
emphasis on creation of law by fiat. Again this is strongly
reminiscent of the evolutionary picture of law offered in classical
common law thought. Thus, a sociological perspective on regulation
allows Fuller to demystify some old themes of classical common
law thought. In the modern dress of social science they confront
the legal science of positivist analytical jurisprudence.
Politics and Professional Responsibility
In earlier chapters, an attempt has been made to show why positivist

analytical jurisprudence has been potentially significant as the basis
of a science or a concept of law demonstrating the intellectual
autonomy and unity of professional legal knowledge. Fuller’s
theories seem to have none of the qualities which would make
them professionally useful in this respect: they deny any sharp
demarcation between law and non-law and claim instead that the
existence of law (as measured by the criteria of legality) can be
a matter of degree (Fuller 1969a: 122). Equally, Fuller refuses to
see ‘lawyers’ law’ as uniquely distinctive and is happy to apply
the term ‘law’ to the rule systems and processes of social groups
and social institutions of many kinds. None of this seems very
promising as support for the thesis that influential varieties of legal
theory have been relevant for the clarification of problems of legal
professionalisation. Yet a colleague of Fuller wrote that he ‘reached
more American law students and stimulated more speculative
thought about the law than any other American law teacher’ (quoted
in Summers 1984: 15).
In fact, it is not necessary to read far into Fuller’s work to see
that his concerns are very strongly organised around the dilemmas
and responsibilities of legal professional practice6. This is, for
example, obviously the case with his attack on legal positivism
in relation to the Nazi regime. One of the failures of positivism,
as seen by Fuller, is that of not making clear the moral
responsibilities of legal practice. The lawyer is not, because of his
or her professional allegiance to the legal system as a part of the
state apparatus, absolved from moral responsibilities to other
6 For Fuller, ‘the task of the legal philosopher is to decide how he and
his fellow lawyers may best spend their professional lives’: Fuller 1940:
2. And see generally Fuller 1940: 2-4, 12-5.
Politics and Professional Responsibility 143
individuals; or from a political responsibility to defend the liberty

of others, which is the price to be paid for the privilege of living
in a democracy. Yet German legal positivism, in Fuller’s view,
encouraged lawyers to accept as law anything that called itself by
that name, was printed at government expense, and seemed to come
from higher authority (Fuller 1958: 659).
Fuller has no doubt that such passive views of legality helped
the rise of Nazi tyranny. ‘The first attacks on the established order
were on ramparts which, if they were manned by anyone, were
manned by lawyers and judges. These ramparts fell almost without
a struggle’ (1958: 659). Thus, legal forms and structures were
instruments in establishing the legitimacy of Nazi tyranny (Bracher
1971: 350-1). The notion that legal positivism blinds lawyers and
others to the moral issues that may surround governmental action
when that action is dressed in the garb of ‘law’ is a common theme
in discussion of the Nazi period and the years preceding it. The
Protestant theologian Emil Brunner wrote: ‘The totalitarian state
is simply and solely legal positivism in political practice. . . the
inevitable result of the slow disintegration of the idea of justice’.
And he adds: ‘If there is no justice transcending the state, then
the state can declare anything it likes to be law; there is no limit
set to its arbitrariness save its actual power to give force to its
will’ (Brunner 1945: 15-6). To similar effect, Neumann (1944: 47)
writes of Kelsen’s theory that ‘it is virginal in its innocence. . .
it paves the way for decisionism, for the acceptance of political
decisions no matter where they originate or what their content,
so long as sufficient power stands behind them’.
The issue seems to come down to whether the separation of
law and morality necessarily, in practice, leads to a neglect of the
moral aspects of regulation. It has been seen earlier that, in theory,
there is no reason why it should and, further, that the fusion of
legal and moral issues has been asserted by legal positivists to be
a potential weapon of reactionaries or authoritarians (claiming ‘this
is the law; therefore, it must be right’). Nazi writers did, indeed,
claim that a fusion of law and morality had finally been achieved
in Germany by National Socialism (Kirchheimer 1941: 88). And
Kelsen affirms that the totalitarian state is founded on the assertion
of ‘absolute’ values inseparable from its law (Kelsen 1955: 42).
By contrast, legal positivism can co-exist (as in Kelsen’s own work)
with a relativistic approach to values which requires the individual
to face the dilemmas of conscience without moral solutions
‘legislated’ by moral authorities (whether those of the state, the
nation or the churches) considered to be absolute and infallible.
Equally, it can co-exist with a belief in moral absolutes as long
as legal analysis is seen as in no way dependent on these absolutes.

Either way, positivism today is defended as a means of keeping
‘the final sovereignty of conscience’ separate from claims of legal
validity (MacCormick 1985: 10).
Thus, there is nothing in positivist analytical jurisprudence as
such that guarantees moral myopia. But there is a sense that
positivism does not actively encourage a concern with the moral
responsibilities of legal practice. Fuller’s belief in a humanistic and
broad approach to legal scholarship and legal education is part
of his reaction against professional narrowness of moral vision.
He wrote extensively on questions of legal education, supported
broad curricula, loathed mechanical rule manipulation by the
‘black-letter mind’, and emphasised that basic problems of law and
government can be solved by ‘reason’ (Summers 1984: ch 11). Thus,
reason - the lodestar of classical natural law - remains an object
of faith. The lawyer should refuse to accept fiat without reason.
Fuller’s dissatisfaction with positivist analytical jurisprudence
may, thus, be inseparable from a dissatisfaction with the limited
technocratic image of legal professionalism which it seems to
support. Excluding moral issues from the professional sphere of
legal knowledge is unsatisfactory, from a standpoint such as Fuller’s,
if it seems to make these issues of less concern to the lawyer than
to other citizens. Further, treating law as wholly distinct from non¬
law is unsatisfactory if it disguises the fact that lawyers are in the
job of creating legality, of building law from non-law and preventing
legality declining or slipping away into arbitrariness. Finally, criteria
of legal validity provided by definitions of the sovereign’s command,
by rules of recognition or a basic norm, are inadequate if they
make lawyers think that the practice of law does not involve them
in a political responsibility when they recognise the formal authority
claimed for laws and regulations. Fuller’s image of the requirements
of legal professionalism in modern conditions does not, therefore,
deny the image which legal positivism sets up or implies. As in
all his confrontations with legal positivism. Fuller’s position is,
in essence, that positivism is not enough, and that twentieth century
history should have warned us clearly of its inadequacy.
Natural Law Tamed?
No other natural law theory in the Anglo-American context in

modern times has been widely seen as posing a stronger challenge
to modern positivism than has Fuller’s. And this despite the fact
that his claims constitute only a modest and cautious version of

natural law theory - essentially related to the procedural proprieties
of law and not the substance of its rules which concerns most
classical natural law theories. Has, therefore, natural law really
become obsolete, as Weber seemed to suggest at the beginning
of this century?
Certainly, in recent times, natural lawyers’ demonstrations of
legal positivism’s inadequacies when a broader understanding of
law is required in modern political and ethical conditions have
been influential. Even such an eminent positivist legal philosopher
as Neil MacCormick has seen a convergence between natural law
and legal positivism once it is recognised that ‘those who exercise
power and discretion within a legal system must always at least
purport to be acting on the basis of seriously held and seriously
considered values’ (MacCormick 1981b: 144; cf. MacCormick
1981a: 161-2). Even Hart (1961: 194) has accepted a ‘core of good
sense’ in the doctrine of natural law, in that the very conditions
of all human existence necessitate certain kinds of social rules in
any society if it is assumed that its members have a common aim
of survival. Five features of the human condition - vulnerability,
approximate equality of physical power, limited altruism, limited
resources and limited understanding and strength of will - are such
that society would be impossible without some rules protecting
persons, property, promises and exchanges, and providing for
sanctions to ensure compliance (Hart 1961: 189-95). This minimum
content of natural law, as Hart calls it, is far from the natural
law which has has been discussed in most of this chapter. It provides
no significant criteria for criticism or justification of the substance
or procedure of positive law (since survival may be achieved ‘even
at the cost of hideous misery’: Hart 1961: 188), but only a set
of truisms which indicate broad areas in which some kind of
regulation must, as a matter of natural necessity, exist.
Tendencies among legal positivists towards rapprochement with
natural law typically amount to a recognition that principles to
guide or structure legal development are necessary but are not to
be found through positivist analysis of legal doctrine alone. Indeed,
the increasing technicality of modern law and its apparent character
as a mere compromise of interests may make the identification
of guiding principles seem more relevant and important, not less.
Thus, Hart has treated the Oxford philosopher John Finnis’ recent
natural law philosophy (Finnis 1980) as ‘in many respects
complementary to rather than a rival of positivist legal theory’
(Hart 1983: 10). This seems fair. Finnis’ theory rejects any claim
to judge the legal validity of rules and so avoids any confrontation
with legal positivism. It essentially offers a moral philosophy to

provide guidance as to what law’s substance and purposes should
be, rather than a normative legal theory seeking to explain the
actual doctrinal components or characteristics of particular legal
systems. Thus, it cannot be central to the concerns of this book.
But some features of Finnis’s theory are important here as
illustrating the role which natural law theory seems to be coming
to play as an adjunct to positivist analytical jurisprudence.
Finnis is concerned with what he understands, following Aristotle,
as a ‘focal’ conception or the ‘central case’ of law. This focal
conception is an ideal or pure form, of which actually existing
forms are mere derivatives or imperfect examples. Hence Finnis
is less interested in the law present in actual legal systems than
in the law (in a focal sense) which can be philosophically deduced
as necessary and appropriate from certain moral postulates revealed
by speculative analysis. It is this method of analysis which is Finnis’
most important contribution to modern natural law theory. As
noted earlier, most earlier natural law theory sought to reason out
philosophical consequences from observed characteristics of the
human condition, or to deduce moral principles from rational
argument, or from imagined states of nature existing before societies
or governments came into being. These approaches have usually
been considered vulnerable to the criticism that an unacceptable
sleight of hand is involved in seeking to deduce what morally ought
to be from speculation about what is (for example, what the state
of nature or the human condition actually is). Indeed, as has been
seen, even in Fuller’s procedural version of natural law theory the
procedural criteria which ought to govern a system of legal rules
are derived from speculation on what a working (efficient) system
of rules actually involves.
Finnis’ approach appears to bypass these traditional difficulties
by grounding natural law not in reason but in intuition; in what
is ‘self-evident’, requiring no rational justification. In this, his
method follows and develops that of Aquinas. Thus, For Finnis,
seven objects of human striving are self-evidently good. These basic
human goods are life (every aspect of vitality which makes possible
human self-determination), knowledge (for its own sake and not
merely as a means to an end), play (activity with no purpose beyond
the activity itself), aesthetic experience (the appreciation of beauty),
sociability or friendship (acting for the sake of friends and their
wellbeing), practical reasonableness (being able to bring one’s
intelligence and judgment to bear in choosing how to live one’s
life) and religion (understanding something of what life is for).
It is not necessary here to assess Finnis’ claim that these are indeed
self-evident and that all other goods can be understood as

combinations or derivatives of them. But his attempt to avoid the
derivation of ‘ought’ from ‘is’ marks a methodological advance
over many other expositions of natural law. The basic human goods
are not derived from rational speculation on what is the case in
nature. As intuitively recognised goods they are already normative
in effect: because they are self-evidently ‘good’ it is equally self-
evident that they should be pursued and promoted. Practical
reasoning (itself one of the basic goods) provides, in Finnis’ view,
general prescriptions of reason (‘basic methodological
requirements’) which should guide the pursuit of these goods.
Further, since they cah only be sought in communal life, in
interaction with other people, a legal system to secure them is
necessary.
From Finnis’ detailed filling out of this analytical framework,
three matters, related directly to the themes of this chapter, can
be mentioned. They are the discussions of ‘community’, ‘authority’
and the Rule of Law. A link between the idea of community implicit
in classical common law thought and the purposive view of law
reflected in natural law theory has been noted earlier - as has
the appeal to reason which characterises them both. Indeed, modern
literature on the basis of moral authority often strongly emphasises
the concept of community (cf. Weinreb 1987: 249-59). So it is not
surprising that Finnis, like Fuller, attaches much importance to
analysing the nature of the moral community (in Fuller’s case the
collectivity of‘friendly strangers’) to which law relates most directly.
Finnis notes that part of the unity of community is physical and
biological (for example, in family ties), part in intelligence and
shared modes of understanding, part in common technology and
cultural unity, and part in common action or interaction. While
the last of these is most relevant to the analysis of practical reasoning
in human communities, it presupposes the other elements.
Finnis acutely notes the different character of business, play and
friendship relationships and that political communities combine
elements of all of these (1980: 149). This complex variety of
relationships is typical of ‘complete’ communities - the ones to
which law in its focal sense relates. A complete community is thus
‘an all-round association’ in which are co-ordinated ‘the initiatives
and activities of individuals, of families, and of the vast network
of intermediate associations’. Its point is ‘to secure the whole
ensemble of material and other conditions, including forms of
collaboration, that tend to favour, facilitate, and foster the
realisation by each individual of his or her personal development’
(Finnis 1980: 147). This is obviously, for Finnis, a philosophical
ideal. But like any group, a community in this sense has definite
conditions of existence. It can be said to exist ‘wherever there is,
over an appreciable span of time, a co-ordination of activity by
a number of persons, in the form of interactions, and with a view
to a shared objective’ (1980: 153). It is enough to note here that,
like the exponents of classical common law thought, Finnis sees
the moral and rational strength of law as grounded in its purposive
contribution to the continuance and fulfilment of a complete
community. Unlike the classical common lawyers, however he also
sees the need to make some effort to elaborate rigorously what
this concept entails.
Finnis’ ideas about authority and the Rule of Law can be
considered together. Influenced here, as elsewhere, by Max Weber,
he sees the basis of the authority of rulers not, for example, in
the consent of the governed nor in a notional social contract such
as Hobbes or John Locke described, but merely in the likelihood
of compliance by those over whom authority is claimed (1980: 249).
The existence of constitutional structures and the issue of whether
the ruler has the consent of the governed are relevant in asking
whether someone guided by practical reason ought to obey the
claimed authority; but this does not derogate from Finnis’s
surprisingly Austinian position that authority depends on the ‘sheer
fact’ of likely obedience (1980: 250).
On the other hand, a Fullerian view of the Rule of Law and
its demands is built on to this positivist conception of political
authority. Acknowledging Fuller’s influence, Finnis stresses
reciprocity between rulers and ruled as the foundation of the moral
demands of legality (1980: 274). Elaborating the main features of
legal order, Finnis produces a general picture strikingly like Fuller’s.
Thus, law is a coercive structure but, more fundamentally, a system
of rules. It brings clarity and predictability to human interactions,
regulates its own creation and modification, allows individuals to
adjust their circumstances rationally within a rule governed
environment, provides reasons for future actions, and postulates
a gapless framework of regulation. Finnis’ descriptive emphasis
on these characteristics seems to reflect a recognition of the
importance of technical imperatives in the application of legal rules
which no modern legal positivist could quarrel with. The Rule of
Law, then, as in Fuller’s characterisation of legality, is the
requirement to make these elements of rule-governed reliability and
predictability as pervasive as possible in a legal order. And, like
Fuller, Finnis emphasises the reciprocal relationship between ruler
and ruled (together with the virtue of maximising the dignity of
individuals as free, responsible agents) as the foundation of the
Rule of Law and the conditions which make it a component of

political virtue.
At the point at which Finnis’ natural law theory meets legal
positivism’s direct concern with working systems of legal rules,
it restricts itself, like Fuller’s theory, to elaborating and lauding
the virtues of the Rule of Law. But, whereas Fuller attacks positivism
at this point, Finnis seems to offer no challenge to positivism on
its own ground. Natural law has, it seems, become an ally and
supplement to legal positivism. In times of social and political
stability it does not seem to displace the reassuring picture of orderly
legal knowledge and uncontroversial, professionally understood
structures of authority in legal systems, which positivist analytical
jurisprudence offers. If Western political arrangements become
significantly less stable, however, natural law theory may well
become powerful again, enlisted for or against the status quo.
Only in one area of analysis does the natural law theory considered
in this chapter seem to have found a general and major analytical
weakness in the theories it opposes. The judicial function still
remains problematic within the tradition of modern analytical
jurisprudence. In the common law world, lawyers and non-lawyers
alike are reluctant to accept that the judge is merely the delegate
of an Austinian sovereign and that judge-made law is merely what
Fuller terms fiat. But post-Austinian legal positivism, as represented
by Hart’s and Kelsen’s theories, offers little or no analysis of how
judges reach decisions in controversial cases and what the nature
of their authority as legal innovators is. Fuller’s work, echoing
older common law conceptions, at least reopens this question, while
Finnis’ re-examination of community points towards sources of
legal authority independent of political structure. But different
approaches, free of the controversies of natural law and firmly
focussed on felt professional concerns of lawyers, have seemed
necessary to take these inquiries further. They will be considered
in the following two chapters.
6 The Problem of the Creative Judge: Pound and
Dworkin
Looked at in relation to legal environments beyond that of England,

legal positivism as embodied in analytical jurisprudence has
sometimes seemed ridiculous. How can law be understood in
isolation from politics and social values when so much of it is
a matter of judicial interpretation (of constitutional and legislative
provisions, and of earlier judge-made law) and of interpretation
of what judges say? Throughout the Anglo-American legal world
this question is significant but in the United States it has seemed
especially pressing (cf. Hart 1958: 49-50). The American legal
environment (which has inspired much of the theory to be considered
in this chapter and the next) is framed by a written constitution
explicitly recognised as the repository of fundamental political
values, and by a heritage of common law which, it is assumed,
*must continually reflect currently held social attitudes’; in this
context a recognisedTrole'of judges is Tto Integrate constitutional
principles with changing social attitudes and values’ as manifested
in common law and other legal doctrine (White 1976a: 18). Law
seems hardly recognisable by applying litmus-like tests but is rather
argued over, or teased out of judicial pronouncements by creative
interpretation. Classical common law thought, however, seems no
more able than positivist, analytical jurisprudence to take account
of this reality of creative legal development. Seeing law as reason,
classical common law thought ignored the ‘fiat’ side of the equation
(to use Fuller’s terms). Deaying that judges make law, it portrayed
legal processes not as purposive, innovative and creative, but. as
passive, responsive and evolutionary. Whether or not judges
legislate, they are clearly significant actors in managing the processes
of legal development . Neither positivist analytical jurisprudence nor
cms^caTconîohmw seems capable of explaining the nature of
this activity and the principles governing it.
The problem of developing a normative legal theory explicitly
recognising, as a principled enterprise, the activity of judges and
other officials in developing law is the focus of this chapter.
Although this is a task of normative legal theory in relation to
any legal system, it should be a special concern in the context
The Problem of the Creative Judge 151
of Anglo-American law where the tradition of common law thinking

elevates the judge to a central position in the legal system. In
England, however, positivist analytical jurisprudence, as has been
seen, met legal professional needs for rationalisation of legal
knowledge while reflecting the political realities of a centralised
state, and a concentration of law-making power subsuming special
jurisdictions (cf. Arthurs 1985). Perhaps the only fully explicit
political theory of the judge’s role offered by English positivist
analytical jurisprudence is Austin’s explanation of the judge as the
sovereign’s delegate, an official theoretically much like any other
charged with governmental decision-making. This, however
inadequate, does at least purport to explain the character of the
activity in which a judge is involved in creating new law and the
authority (that of the sovereign) which justifies this law-making.
Hart’s theory, by contrast, explains (in terms of secondary rules)
the legal powers and constraints within which the judge operates,
but treats the exercise of judicial discretions (the activity itself)
as beyond the concern of legal theory. Both Hart and Kelsen explain
what makes a judge’s decision bffltjipZaLEw: but not where the
judge obtains authority specifically to develop law. To
ww■*****»+ wSiwjgumimum'■dnrr'yihiinirprwU» liffWwW
stress, as
vgpiUmmi ■Yill
Kelsen and - by implication - Hart do, that law regulates its own.
creation does not solve the problem since while law regulates this
process it does not control it. Human agencies are at work reaching
beyona tr^pfeSgmly stated rules of law. What directs and impels
them?
Two American writers, whose work is rarely compared, are the
most important twentieth century contributors to the attempt to
solve this problem within the scope of Anglo-American normative
legal theory. Despite major differences in methods and approaches
to theory construction, the writings of Roscoe Pound and Ronald
Dworkin show similar practical concerns and a fundamentally
similar restructuring of common law thought in defence against
positivist analytical jurisprudence. Yet very little attention has so
far been paid in jurisprudential literature to the parallels between
them (cf. Burnet 1985).
A partial explanation lies in the fact that, despite an important
closeness in the broad theoretical aims of their writings, the form
in which the substance is presented differs considerably between
them. Pound, who was dean of Harvard Law School from 1916
to 1936 and whose immensely prolific writings span almost the
entire period from the first years of the twentieth century until
his death in 1964, directed his criticisms broadly against a wide
range of competing approaches to legal thought in the twentieth
century Anglo-American context. Constructively, his writings seek
152 The Problem of the Creative Judge
to develop a self-proclaimed ‘sociological’ jurisprudence presented

as an amalgam of largely continental European influences and
indigenous American tendencies in philosophy. Pound’s theories
thus appear as syntheses marshalling the strengths of a diversity
of pre-existing legal philosophies. This apparent Catholicism and
openness carries the risk of producing a hotchpot of ideas lacking
unity and rigour (what Kelsen castigates as syncretism of methods).
Indeed the criticism that Pound failed to integrate and systematise
the diverse trends of his thought has often been levelled against
his contributions to legal theory. By contrast, Dworkin elaborated
his original theory by systematically developing a sustained attack
on positivist orthodoxy as represented in Hart’s work, but with
little direct reference tq other major theoretical predecessors.
Dworkin’s present institutional position is, indeed, that which Hart
previously held. He replaced Hart as professor of jurisprudence
at Oxford University after the latter’s retirement in 1968 and
continues to hold that post together with other academic
responsibilities in the United States.
Interestingly, while Dworkin is now one of the most influential
and widely discussed contemporary legal philosophers, Pound’s
intellectual reputation, once unassailable as that of the unquestioned
doyen of American legal scholarship (cf. Wigdor 1974: ix), has
fallen considerably so that his ideas no longer play a significant
role in the mainstream of debate in normative legal theory. In
this chapter it will be necessary to account for this dramatic change
in evaluation of Pound’s significance, as well as for the immense
disparity between the present statuses of Pound’s and Dworkin’s
theories. The situation is only partly explicable in terms of the
unquestionably greater rigour and philosophical sophistication of
Dworkin’s work. This chapter will argue that the explanation lies,
in part, in a widespread misunderstanding of the nature of Pound’s
enterprise, which obscures both his achievement and the true nature
of the problems of his theory. This, in turn, raises the possibility
that Dworkin is actually retracing by very different means some
of the ground which Pound travelled and that a somewhat similar
ultimate assessment of the broad import of both theorists’ work
will emerge with time. But Dworkin’s work is still developing so
that any general assessment of it can only be provisional.
Pound’s Rejection of the Model of Rules
It is customary to approach discussion of Pound’s writings by taking

seriously the label which he himself gave to his theoretical outlook.
Pound’s Rejection of the Model of Rules 153
Pound called it sociological jurisprudence and it is true that -

especially in the first decade of the century, when he taught in
Chicago at Northwestern University and the University of Chicago
- he was significantly influenced by social scientists working in
the city, and by the sociologist Edward Ross who had been a
colleague at the University of Nebraska (Wigdor 1974: 111-3, 141—
6; cf. Reuschlein 1951: 127-8). Ross and others offered ideas about
the organic nature of social development and about the nature
of social control (of which law could be considered one aspect)
which aided Pound’s efforts to escape the constraints of both
positivist analytical jurisprudence and traditional common law
thinking. But, if the main themes of Pound’s normative legal theory
- those which make him a significant figure in the progression
of legal ideas with which this book is concerned - are to be
understood, it is necessary to discount heavily any suggestion that
his major theoretical work is sociologically informed to a
significantly greater degree than that of other writers so far discussed
in these pages.
In essence, for Pound, the label ‘sociological’ was a banner to
symbolise and rally serious efforts to view law in a broader, more
dynamic perspective than that which positivist analytical
jurisprudence offered, and in a more realistic, practically oriented
and reformist perspective than that which much other legal
philosophy (such as classical natural law theory) provided1. A
prerequisite for establishing a dynamic view of law - one which
could recognise law as something developed and interpreted and
in continuous flux - would be to discard the idea that it could
be understood merely as rules or norms. For Pound, the concept
of law must include not only the ‘static’ elements of law expressed
as rules, but also those elements which direct and propel legal
development. He writes: ‘Law, as distinguished from laws, is the
system of authoritative materials for grounding or guiding judicial
and administrative action recognized or established in a politically
organized society’ (Pound 1959 II: 106). Law, in this broad view,
is not merely a model of rules but a doctrinal system in movement.
Thus, even if we consider only legal doctrine in a strict sense (what
Pound terms ‘precepts’ of law) this is not exhausted by rules
(‘precepts attaching a definite detailed legal consequence to a definite
1 Holmes J in Lochner v New York (1905) 198 US 45 refused to follow
the mechanistic reasoning of the majority of the United States Supreme
Court in striking down as unconstitutional a statute limiting employees’
working hours. Pound hailed Holmes’ dissent as ‘the best exposition
of . . . sociological jurisprudence’ extant in America. Cf. White 1972:
1004.
detailed state of facts or situation of fact’). Precepts also include

principles (‘authoritative starting points for legal reasoning’),
conceptions (‘authoritatively defined categories’, such as trust, sale,
bailment), and standards (‘defined measures of conduct, to be
applied according to the circumstances of each case’, such as the
standard of due care, or of fiduciary responsibility). Beyond this,
however, law in Pound’s broad sense includes also ‘an authoritative
technique of developing and applying the precepts, and a body
of received ideals as to the end or purpose of the legal order, and
hence to what legal precepts ought to be and how they ought to
be applied’ (Pound 1941: 256-7).
It might seem that this includes not only what positivist analytical
jurisprudence typically treats as legal, but also much of what natural
lawyers would wish to include in an understanding of law. But
Pound’s writings show little sympathy for classical natural law.
They emphasise that law is an affair of values, and of techniques
for elaborating and applying values to the solution of particular
problems. The values themselves are, however, never timeless and
universal as classical natural law sought to prove, but only values
for the time and place, related specifically to the conditions of
a particular legal system and to the kinds of claims and expectations
brought to it for recognition and satisfaction. Pound was sometimes
prepared to see an affinity between natural law ideas and his
emphasis on values underlying law, but the latter would be a
‘practical natural law’. Insofar as he approved of the revival of
natural law thought in the twentieth century this was because it
brought a renewed emphasis, like his own, on values in law, and
only to the extent that it denied (as a natural law with a ‘changing
or a growing content’) that any absolute values underlie law (Pound
1923: 149). On this matter - unlike much else - Pound’s views
seem to have remained fairly constant throughout his career.2
What inspires Pound s very different approach to normative legal
theory as compared with that of positivist analytical jurisprudence?
His early writings show an obvious impatience to reform archaic
legal procedure and extend professionalisation of law. The
impatience is strangely like Austin’s, half a century earlier in
England — the irritation of a highly able and imaginative, if
conservatively minded lawyer at the unsystematic and irrational
practices of his own profession. Like Austin’s, Pound’s reform
impulses were limited, largely focussed on making existing legal
institutions work better, and tended to evaporate with the passing
years.
2 But cf. Wigdor 1974: 167, 274, 276.

Pound’s Rejection of the Model of Rules 155
Both men saw their legal theory as an aid in developing and

providing direction for a modernising legal profession. When Pound
was a boy of ten in Nebraska in 1880 the American legal profession
was relatively unorganised. During the nineteenth century the public
image and status of the legal profession had fluctuated considerably.
Wigdor claims that ‘[throughout the country, no legitimate
profession had a more tarnished reputation’ and in Nebraska, when
Pound entered practice in 1890, ‘almost anyone willing to read
law for a few weeks could become a lawyer’ (Wigdor 1974: 81:
cf. Stevens 1983: 25). Elsewhere, legal professionalism had strongly
reasserted itself but had not yet put behind it a nineteenth century
history of decline and disorder. There was an urgent need for a
strong rational foundation of legal education and scholarship to
aid this professional consolidation (Stevens 1983: chs 1 and 2).
Parallels with Austin end here, however, for Pound saw Austin’s
kind of legal science as a wholly inadequate theoretical basis for
professional development and institutional reform in the legal
system. As will appear, Pound’s odyssey in legal theory is, in essence,
an effort to secure, purify and develop in the twentieth century
context, the tradition of common law which Bentham and Austin
had so impatiently brushed aside.
In a country just emerged from pioneer times when Pound’s
ideas were being first formulated, it plainly made sense to treat
courts (dispersed widely through states and territories) as the focus
of legal authority, rather than to think in terms of lines of delegated
authority derived from some centralised Austinian sovereign. Even
much later, however, - and Pound continued through to one of
his last, posthumously published, articles in 1967 (Pound 1967)
to praise common law methods and defend them - his most
illuminating legal theory is primarily a vehicle for exploring ways
of revitalising common law techniques of legal development in the
face of challenges to them presented by the immense legislative
and administrative power exercised by a modern twentieth century
state. By the same token it is a context for defending and developing
the common law conception of reason in law in the light of modern
forms of systematic knowledge (especially social science) which have
become increasingly important in the forming of legislative and
judicial policy (cf. Rosen 1972). Pound’s sociological jurisprudence,
viewed in this perspective as a serious attempt to refurbish common
law thought in twentieth century terms, is an important contribution
to the themes of this book, however misleading the label
‘sociological’ which he gave it (cf. Hunt 1978: ch 2; Cotterrell 1984:
76-8).
The Outlook of Sociological Jurisprudence
An attempt to explain the basis on which judges develop law could

move in one of two directions - emphasising either instrumental
or organic aspects of the judicial role. David Wigdor has
demonstrated clearly Pound’s original ambivalence between these
directions of analysis and explanation (Wigdor 1974: ch 9). An
instrumentalist approach would argue that the determinants of
judicial creativity derive from outside law or legal doctrine as such
- in a variety of policy considerations, social pressures, political
factors or economic imperatives. Pound’s use of the adjective
‘sociological’ to describe his jurisprudence in contrast to analytical
jurisprudence (which he tended to associate with mechanical, blindly
deductive legal reasoning), and his frequent advocacy of social
science as an aid in developing the law, suggest an instrumentalist
outlook. So does his reiterated view that law’s task is ‘social
engineering’. But when a closer look is taken at what is being
suggested in his writings, and especially when his ideas are viewed
in the light of their evolution over the decades, it becomes clear
either that - as Wigdor argues - Pound eventually deserted the
instrumentalist ideas of his early career, or (the reading I prefer)
that instrumentalism was never for Pound more than a minor
supplement to, or perhaps just a useful form of rhetoric in aid
of, a clearly organicist view of law. This organicist view can be
expressed in the following ideas: that (i) law contains within itself
the doctrinal resources for its own development in the form of
values and principles capable of giving content and shape to evolving
law (rather than relying inevitably on inputs of change from ‘outside’
through deliberate political action resulting in legislation or
administrative rule-making); (ii) law has a natural momentum for
change, an inbuilt tendency to develop (it is inherently dynamic
rather than static); (iii) legal development is a matter of orderly
adjustment within the legal system to the changing patterns of
human demands being registered within it (a process of adjustment
to be managed primarily, if not exclusively, by lawyers and judges
in the context of established legal techniques and principles); and
(iv) the task of the jurist is to keep these orderly processes of legal
development working freely.
To think of the lawyer s task as one of social engineering did
not mean, for Pound, the engineering of reform (Wigdor 1974:
230) except insofar as the fourth of the above principles required
it. Certainly in his early writings Pound is much concerned with
the failure of lawyers and others to keep the orderly processes
of legal development working. These are seen by him as natural
processes much like those assumed by classical common law

thought. Hence procedural reforms in the legal system are urgently
advocated. Pound made his name, ironically, as a radical critic
of the legal profession with a famous address to the American
Bar Association in 1906 at St. Paul, Minnesota, on ‘The Causes
of Popular Dissatisfaction with the Administration of Justice’. The
central concern of Pound’s paper is, indeed, with practical defects
of procedure and organisation in the administration of justice. It
carefully notes, however, that in all legal systems, causes for popular
dissatisfaction exist. They include the mechanical operation of legal
rules; the inevitable divergences of law and public opinion; the
popular assumption that the administration of justice is an easy
task which does not require high professional skills; and popular
impatience with legal restraints. Equally, the Anglo-American
common law system (quite apart from particular procedural and
organisational problems) is not blameless. Its individualist spirit
‘agrees ill with a collectivist age’; it arouses impatience and
resentment by turning great social or economic issues into private
legal disputes; it lacks general ideas or legal philosophy and so
encourages ‘petty tinkering where comprehensive reform is needed’;
the adversary system ‘turns litigation into a game’; and ‘defects
of form’ arise from ‘the circumstance that the bulk of our legal
system is still case law’ (Pound 1906: 185).
These remarks caused a storm in the American legal profession
at a time when blunt, even if carefully modulated, criticism of law’s
inadequacies was unusual. And they show that Pound’s original
defence of common law, and his critique of the conception of law
as fiat which positivist analytical jurisprudence suggested, is not
an attempt to turn the clock back. Some of his early writings strongly
defend legislation against mindlessly destructive interpretations by
the courts, castigate the sterility of case law, and argue that only
legislation can provide a new starting-point for legal development
(Pound 1908: 614, 621). Analytical jurisprudence in its Austinian
form is criticised not because it seems to make legislation central
to its conception of law but because it considers only the formal
authority by which law is made and not the purposes for which
that authority should be exercised.
On the other hand, Pound’s defence of legislation has some
Savignian overtones. Legislation is implied to be the handmaid
of spontaneous legal development through the courts - clarifying
doctrine where it has become confused, consolidating it, and
suggesting lines of development where none clearly emerges from
current case law. Legislation is necessary to provide a restatement
of law ‘from which judicial decision shall start afresh’ (Pound 1908:
622). But this involves ‘new rules, then new premises, and finally
a systematic body of principles as a fresh start for juristic
development’ (1908: 612), so there is no suggestion that legislation
is restricted merely to consolidation. For Pound its role is dynamic,
not passive; to move law forward in the light of modern social
needs when other forces of legal development are failing. Reading
Pound s early essays one is made to see legislative action as a kind
of shock treatment to get the heart of common law beating regularly
again. It follows that, given this importance of legislation, lawyers
must become knowledgeable in its techniques and effective
professional advocates in debates about its content. Hence, in the
twentieth century, according to Pound, such a role demands lawyers’
attention to social science which provides important material in
these debates.
It is also clear from these essays that, for Pound, the reason
why legal doctrine as developed by the courts has reached an impasse
is that the essence of common law method has not been followed.
Courts have adopted blindly deductive reasoning - ‘mechanical
jurisprudence - antithetical to the common law concern with
precepts in relation to their ‘conditions of application’ (1980: 611-
2). The time-honoured methods of common law require in modern
conditions that lawyers make use of the sources of knowledge of
community values and needs which modern social science can
provide.
The St. Paul address, although atypical of Pound’s work in its
sharp criticism of professional practices, usefully highlights some
of his early, central, practical reformist concerns which help to
explain the direction which his normative legal theory takes. The
address notes criticism of common law methods for their
individualist emphasis in a society which attaches increasing
attention to broad social interests. It seems to follow, then, that
a theory in defence of common law methods in contemporary
conditions should direct attention systematically to these social
interests and show how they are and should be taken into account
m the adjudicative and lawmaking processes. Equally, if a cause
o dissatisfaction is the distortion of broad social issues into matters
of private dispute, it is surely necessary to show how individual
and social concerns can be kept analytically distinct, considered
on their own separate planes: individual against individual, social
against social; with disputes of broad consequences being considered
primarily in terms of the social issues raised, rather than confused
wdh private or individual concerns. Again, if litigation seems too
much like a game, perhaps what is needed is a theory of the
adjudicative process emphasising its objective character: as a
balancing process in which opposing interests are systematically

identified, weighed and compared. Finally, if the common law
system is a bewildering mass of case law, what is surely required
is a theoretical scheme by which its contents can be systematically
ordered - not just in terms of the chaotic doctrine thrown up by
the mechanical jurisprudence of modern courts3, but in terms of
the general interests, demands and claims of individuals, groups
and society generally, reflected in case law and recognised and
protected by law. If common law lacks appropriate theory such
theory must presumably be true to the ideal character of common
law as a legal expression of the life of the community. Hence it
must be a theory of law’s substance - of the elements of community
life expressed in legal claims and conflicts, not (as with positivist
analytical jurisprudence) a formal theory of law’s structure.
Whether or not there is a direct link between the complaints
registered in the St. Paul address and the central tenets of Pound’s
sociological jurisprudence as it gradually took shape, it is easy to
see the theoretical positions sketched above - all of which are,
as will appear, directly expressed in Pound’s legal theory - as a
natural outcome of the list of practical dissatisfactions which caused
such a sensation in the American legal profession in 1906.
A Theory of Interests
Pound’s programme for sociological jurisprudence, reiterated many

times in his writings (e.g. Pound 1941: 261), involves a set of juristic
tasks which clearly ally jurist, judge and practising lawyer in the
same enterprise of making the legal system work with - to use
one of Pound’s favourite phrases - the minimum of friction and
waste. The first task is to list and classify all interests (claims,
demands or expectations which people individually or collectively
seek to satisfy) pressing for recognition by law, so that in the task
of deciding which should be protected, and to what extent, none
will be ignored. At first sight this appears to entail a definite
sociological basis for Pound’s project. Surely the identification of
interests in society is a task for the social scientist. But here, as
in all other aspects of Pound’s theoretical outlook, social science
is firmly subordinated to the lawyer’s professional skills. Pound
3 Though Pound also ardently supported the project of the American

Law Institute to produce Restatements of the law in the form of
codifications of principles distilled from systematic analysis of case law:
see Stevens 1983: 136.
sees social scientific surveying of interests as impractical, at least

for the foreseeable future. Interests are to be identified by noting
the claims actually brought before courts and so reflected to some
extent in case law, or those lobbied before legislatures. Legal and
legislative records thus reveal the presence of interests, whatever
the extent of legal protection of these interests. In Pound’s outlook,
therefore, pressures for change in law arising from changing social
needs become relevant to the legal system, its theorists and
practitioners only when the pressures are registered in legislative
or judicial processes. The picture offered is one of a legal system
waiting for change to be brought to it, not used as an engine to
promote or direct social change.
It was suggested in the previous section that an emphasis on
interests as the units of legal theory reflects the need to keep central
the common law idea of law’s intimate relationship with social
life or community needs and problems. It is important to notice
that for Pound the base units of legal theory are only potentially
legal in a strict sense. When interests are legally protected they
become legal rights. As claims pressed upon the legal system for
recognition they are the raw material of law. They express patterns
of social interaction and structures of social relationships, and
changes in the interests pressing for legal recognition reflect changes
in the patterns of social interaction and relationships. Thus, it can
be argued that interests are the practical components of the idea
of community identified in earlier chapters of this book as at the
heart of classical common law thought.
Pound’s writings contain exhaustive classifications and
taxonomies of interests. Three kinds (social, individual and public)
are identified. Social interests are those generalised as claims of
society as a whole, treated as a collectivity. They include interests
in the moral health of society, in general security and the security
of social institutions, the conservation of social and natural
resources, and in economic, political and cultural progress. Public
interests are those asserted by the state as the legal embodiment
ol politically organised society. Individual interests include all
interests in private security of the person, of transactions, of
property, family relations, privacy, reputation and belief. Since there
is according to Pound, a social interest in the maximisation of
individual wellbeing it follows that the general promotion to the
greatest possible extent of individual interests is a social interest
too - perhaps the most important social interest of all.
Pound seemed to delight in elaborating this scheme of interests
classifying and sub-classifying, and documenting the categories with
a mass of illustration from Anglo-American case law. But what
A Theory of Interests 161
is it really for? The objective is, it seems, to demonstrate order

and unity in law (an objective seen in earlier chapters to be a major
theme running through the modern development of normative legal
theory) in a way compatible with the common law outlook. Such
an approach requires, as Austin suggested, a ‘map of the law’,
but not - as he understood this - a map of its formal structures
demonstrating the top-down patterns of authority conveyed by the
idea of sovereignty4. The map should presumably rather be of law’s
content in relation to actual community needs - the interests
reflected in and constituting social life.
Once such an overall view of legal concerns is in place the rest
of the programme of sociological jurisprudence can be attempted.
Pound sets this out explicitly as (i) selecting the interests law should
recognise, (ii) fixing the limits of the protection of those interests
which law should provide, (iii) deciding how and to what extent
law can effectively provide that protection and (iv) formulating
principles of valuation by which the three previously stated tasks
are to be accomplished (Pound 1941: 261). All these tasks are clearly
very different from the descriptive objectives of analytical
jurisprudence. They are prescriptive - specifying how legal
development is to take place. At the same time they can be
understood as an explication (description) of the prescriptive
guidelines actually adopted in a working common law system. In
that sense the enterprise is also descriptive. Hence an ambiguity
is written into Pound’s project. Prescription and description of legal
processes and adjudicative practices go together; it becomes difficult
to distinguish one from the other. What is becomes inseparable
from what ought to be. Again, this position is closely compatible
with that of classical common law thought (custom being
simultaneously what is and what ought to be), although wholly
opposed to the outlook of positivist analytical jurisprudence.
Interests are to be balanced ‘on the same plane’ (Pound 1943:
2); that is, individual against individual, and social against social
(public interests eventually seem to disappear from Pound’s major
concerns). Individual interests are never to be balanced directly
against social interests, and, where possible, interests are to be
compared in ‘their most generalised form’; that is, as social interests
(Pound 1943: 3). It can be inferred that what really lies behind
Pound’s insistence on this point is his wish to enable the adjudicative
processes of common law to deal effectively with the clashes of
social interests which seem so fundamental to twentieth century
life, and so avoid the criticism of common law as excessively
4
Cf. Chapter 3, above, p. 80.
individualistic. At the same time, since Pound sees protection of

the individual life and its aspirations as perhaps the pre-eminent
social interest, the new theoretical elevation of social interests does
not destroy the traditional particularistic focus of common law
case development but affirms its social importance within the larger
field of social conflicts and the balancing of social interests.
The Search for a Measure of Values
Viewed in this way, Pound’s sociological jurisprudence - in its

overall shape and emphasis - is a not-unsophisticated refurbishment
of the common law outlook in the light of modern conditions.
Looked at in detail, however, as a practical (prescriptive) guide
for legal development or as an explanatory (descriptive) theory
of the way Anglo-American law evolves, it reveals serious problems
which go to the heart of the project being attempted in this kind
of normative legal theory.
Pound’s theory is a kind of ‘bootstraps’ theory of law, by which
I mean that to explain the character of law it relies on concepts
which are themselves constructed from what is to be explained.
This is true of the concept of interests itself. What counts as a
distinct interest for the purposes of the theory is far from clear
(Llewellyn 1930a: 14) and depends on possibly controversial
interpretations of the body of existing legal doctrine (which is what
the theory is meant to illuminate). The identification of the ‘measure
of values’ which the theory demands to provide guidance in the
balancing of interests (that is, deciding how far interests should
be recognised, and how far legally protected in each particular
case, when they conflict with others) is equally problematic. Like
classical common law thought, Pound sees this measure of values
as somehow implicit in law itself - secreted in the developing patterns
of legal doctrine.
A great deal of Pound’s writing is devoted to the search for
this elusive evaluative measure which can provide guidance for
future legal development. In Chapter 2 it was noted that classical
common law thought avoided the difficulty by assuming legal
change to be merely an aspect of cultural change - expressed in
the idea of custom as evolving spontaneously without direction
by any explicit guiding principle. But this position remains wholly
unsatisfactory as a basis for legal theory appropriate to common
law since it suggests no legal basis for change and removes the
evolutionary development of law (central to the common law
concept of law) entirely from the ambit of legal explanation Pound’s
The Search for a Measure of Values 163
theory tries to replace this mystical core of classical common law

thought with an explicit set of evaluative principles.
Following the German writer Josef Kohler, he terms them the
jural postulates of the time and place. They are ‘ideas of right to
be made effective by legal institutions and legal precepts’ (Pound
1923: 148). They are in no sense absolute values, but merely those
recognised or implied in a particular society at a particular time.
Kohler wrote of the postulates as underlying values of civilisation.
Pound asserts: ‘There is no eternal law. But there is an eternal
goal - the development of the powers of humanity to their highest
point. We must strive to make the law of the time and place a
means towards that goal in the time and place, and we do that
by formulating the presuppositions of civilisation as we know it.
Given such jural postulates, the legislator may alter old rules and
make new ones to conform to them, the judges may interpret, that
is, develop by analogy and apply, codes and traditional materials
in the light of them, and jurists may organise and criticise the
work of legislatures and courts thereby’ (Pound 1923: 148).
But where are the jural postulates to be discovered? The answer
for Pound is in law itself. Legal doctrine reveals its immanent values.
Again, although the postulates are theoretical devices to enable
us to understand law better, we rely on study of law itself in order
to understand its postulates. This is less absurd than it appears.
Pound seems to see the jural postulates as merely the most abstract
and generalised normative components of a particular legal system
at a particular time. As such they provide its fundamental internal
structure of values, reflected in numerous detailed decisions made
within the system. For example, Pound’s original identification of
the postulates of Anglo-American law early in the twentieth century
presented them as a general affirmation of the wrongfulness of
intentional aggressions, of the importance of good faith in a wide
variety of contexts, of the sanctity of private property, of the
importance of due care to avoid injury to others, and of the
obligation to prevent potentially dangerous things which one owns
from getting out of hand (cf. Pound 1942: ch 4).
In many ways the list of postulates which Pound elaborates is
an odd one; a strangely cramped and myopic view of the scope
of civilised values, seen through the prism of professional legal
practice. That, however, is less important than the point that the
postulates have little explanatory or prescriptive power. They
provide broad generalisations from the doctrine of a legal system
at a certain time. Yet, as Pound recognised, they need continual
revision as law and civilisation evolve and change their character
(Pound 1959 III: 11-4; 1940: 83); and this revision can only be
in the light of legal change which is already complete and not

of that which is to come. Because of this, the postulates cannot
guide or explain the future development of law in reliable ways
because no theoretical explanation is offered as to how they
themselves alter or are developed. And in an age of change it may
be impossible to discover what existing postulates are (Pound 1942'
133-4; 1959 III: 14-5).
In defence of Pound it can be said that there is no suggestion
that the jural postulates are the key to understanding all present
and future legal development. The vague aim of avoiding friction
and waste in human affairs is offered as the primary key (Pound
1942: 133-4). ‘No matter what theories of the end [i.e. purpose]
of law have prevailed, this is what the legal order has been doing,
and as we look back we see has been doing remarkably well’ (1940:
76). The postulates represent merely an effort to identify the most
abstract and intractable components of law as understood in terms
of the broad, multifacetted conception of it which Pound
counterposes to the restricted positivist conception of law as rules
or norms. And they can be seen as the product of a serious effort
to make explicit those components of the inherently dynamic
character of common law which are located within legal doctrine
itself. That the product is so limited might suggest, however, that
the attempt to explain any of law’s processes of development in
terms of the character of legal ideas themselves (that is, as something
internal to law, rather than imposed upon it by external forces,
as an instrumentalist might argue) could, itself, be misguided.
The Wider Context of Pound’s Jurisprudence
Pound’s continual reference to the avoidance of friction and waste

as a basic aim of legal ordering suggests an enduring instrumentalist
tinge to his thinking, despite the dominance of the organic common
law conception of law. But his failure to devote any attention to
serious theoretical elaboration of what might count as friction and
waste and what would actually be entailed in their avoidance
confirms that this strand in his thought, for all its prominence,
is essentially a rhetorical supplement to a fundamentally organicist
view of legal development.
Wigdor is no doubt correct to argue that in Pound’s early career
his outlook appeared, to himself and to others, as fully compatible
with various political positions and reform movements sympathetic
to instrumentalist views of law (Wigdor 1974: chs 8 and 9). Pound
supported the Progressive movement in American politics early
The Wider Context of Pound’s Jurisprudence 165
in the twentieth century. This advocated rational and deliberate

government action for social reform within the framework of and
in support of what were considered fundamental established values
of American life. If the Progressive movement had had an explicit
legal theory it ‘almost certainly would have been instrumentalist
and pragmatic’ (Summers 1982: 29). Pragmatism, as a philosophical
movement, undoubtedly appealed to Pound and some of his early
writings express unequivocal support for it as a basis for modern
legal thought. This too, has been apt to mislead some commentators
on Pound’s jurisprudence into overemphasising its instrumentalist
aspects and the compatibility between Pound’s ideas and those of
younger American scholars who wholeheartedly adopted
instrumentalist approaches to law (cf. Summers 1982; Rumble 1968:
13-20; and see Chapter 7, below). Pragmatism implied a distrust
of fundamental values and a belief that values (including the value
of truth) are realised only in practice, as the successful means of
achieving deliberately chosen ends. But, for Pound, the word
‘pragmatism’ is, it seems, no more nor less useful than the word
‘sociological’. Both are labels for approaches which emphasise law’s
purposes rather than its abstract logic. ‘The sociological movement
in jurisprudence is a movement for pragmatism as a philosophy
of law; for the adjustment of principles and doctrines to the human
conditions they are to govern rather than to assumed first principles;
for putting the human factor in the central place and relegating
logic to its true position as an instrument’ (Pound 1908: 609-610).
For Pound, that instrument is to be used not, as jurists unequivocally
inspired by pragmatism would later insist, for planning and social
reform by means of government and law, but for realising the destiny
of common law as a continuous expression of the changing patterns
of community life. Indeed, the clearest proof of Pound’s outlook
is in the fact that as soon as it became clear to him that pragmatism
was being taken seriously as a basis for thoroughly instrumentalist
views of law, he opposed this tendency with a fervour reserved
for few other objects of his criticism (Pound 1931: cf. Twining
1973: ch 5).
Through the nine decades of Pound’s life his view of the destiny
of common law methods seems to have changed very significantly.
In his early writings at the beginning of the century the problem
is seen as one of freeing these methods from the stagnation which
mechanical jurisprudence - formalistic, abstract legal logic -
produced. Legislation and administrative action are seen as aids
in solving the problem and Pound’s writings have an open,
progressive tone in their advocacy of modern methods of legal
development and the use of a wide range of resources from the
social sciences to set legal development on an appropriate course

to meet twentieth century challenges. In his later work the tone
is quite different. Administrative rule-making, in particular, is seen
as a fundamental threat; part of the broader threat of political
‘absolutism’ - uncontrollable governmental power (Pound 1940:
ch 1) which eventually, for Pound, comes to include most
governmental programmes of social reform (Pound 1950: ch 3).
Common law is now portrayed as embattled; threatened from all
sides by governmental legislative and administrative action inimical
to the natural processes of common law development. Judges appear
no longer in Pound’s writing as objects of criticism but as the
heroic defenders of legal reason (e.g. Pound 1963). It is frequently
implied by his actions (for example, in opposing the appointment
of social scientists to law faculties: cf. Wigdor 1974: 223-4, ch 10)
and in his writings that the legal profession must close ranks against
threats to the professional world of law, which has the judiciary
at its centre and is defined by its custody of the immanent reason
of common law. On such a gloomy note. Pound’s modern rethinking
of common law thought evaporates, with the conservatism of age
and perhaps under the sheer weight of the positive law and
administrative regulation created by the modern state, into a narrow
defence of old professional prerogatives.
Dworkin and Pound
Dworkin s writings hardly refer to Pound5, yet have many similar

concerns. However, they adopt methods which hold out the
possibility of avoiding many of the thickets into which Pound’s
sociological jurisprudence falls. Much of Dworkin’s early writing
which began to become influential in the late 1960s, a few years
after Pound’s death, is concerned to attack the positivist model
of rules in a much more rigorous and systematic manner than Pound
adopted. While Pound merely asserted that law should be
understood in the broad sense of precepts (including rules
principles, conceptions and standards), techniques and ideals’
Dworkin tries to show exactly why the model of rules isinadefliiate’
timately, however, the demonstration comes down to an assertion
ot much the same truths about law as those which Pound sought
There is a brief discussion in Dworkin 1967. Of Dworkin’s three major
books only the first (Dworkin 1977) contains index references to Pound,
these identify two brief and peripheral comments early in the text
one of which (p. 4) seems to indicate that Dworkin thinks of Pound
primarily as an instrumentalist.
Dworkin and Pound 167
to emphasise. Analysis in terms of rules alone, Dworkin insists,

cannot explain the full range of legal materials which a judge uses
in deciding a ‘hard’ case; that is, one for which an answer is not
gt^^m^^^^^^P^P^plication of existing rules.
On the other hand. Dworkin’s worries about the model of rules
seem significantly different from Pound’s. Dworkin’s focus is not
on interests - the elements which for Pound are the key to
understanding those roots of law in community ignored by positivist
analytical jurisprudence - but on rights. This emphasis signals
Dworkin’s preoccupation with positivism’s inability to give a clear
legitimacy to judicial decision-making. According to positivist
analytical jurists, judges in hard cases cannot apply law to reach
their tiecisions but necessarily exercise discretion. Since theiuthoritY
for this exercise ofaiscretTon cannot easily be explained in legal
terms, the judge as ‘legislator’, is a highly problematic figure unless
seen in Austinian terms as the delegate of a sovereign electorate.
Such a judge must, in a democracy, defer always to the democratic
will as expressed in legislation. Consequently, the judge’s tendency
will always be to favour the majority will so expressed. He will
lack the authority to protect minorities through the exercise of
creative discretion against the^majority (cf. Dworkin 1971: 158—
9). Yet rights are precisely those legal entitlements which should
be enforceable against anyone - even .an. oppose4j[Mj£y^ Must
it be sajuJâiJnJiarxLca&es there are no rights to be relied on?
Looked at in this way, Dworkin’s concern to escape the limitations
of positivism is part of a strategy to affirm law’s capacity to defend
broad liberal _values of individual^ freedom and autonomy^ if
necessary against .majority wishes reflected in government policies.
Like many earlier writers he sees a central task of law as to prevent,
not aid, the ‘tyranny of the majority’ (cf. e.g. Mill 1859:~clTT).
Pound’s preoccupations are, as has been seen, with the professional
autonomy of the common lawyer faced with the threat of imposition
of law by political authorities; a threat especially great because
in the twentieth century Anglo-American environment these
authorities possess the unquestionable (and, therefore, absolute)
legitimacy of democracy (or ‘King Demos’ as Pound sometimes
refers to it: cf. Wigdor 1974: 227, 230). Dworkin does not share
Pound’s general suspicion of democracy although he is obviously
concerned at its tyrannous possibilities. Nor does he share Pound’s
belief in government by (legal) experts (cf. Wigdor 1974: 199).
Equally, Dworkin’s position is not so explicitly framed as a defence
of common law thought. His emphasis is on the protection of rights
and on the moral autonomy of the citizen. Pound seemed to
re'c0gnise the former, If at all, only in terms of a general defence
of common law methods and the latter in terms of the professional

autonomy of the lawyer.
Rights, for Dworkin, are thus antecedent to and give meaning
to legal rules. His rejection of the model of rules is not expressed,
like Pound’s, as a claim that law contains more than rules. It is
a claim that law is more fundamental than rules and that rules
are incomplete and problematic expressions of the content of law.
This position is very close indeed to that of classical common law
thought. As noted in Chapter 2, the classical common law
conception recognises the essence of law in principles expressing
the reason of law, not in rules.
Dworkin’s ideas on the place of principles in law will be elaborated
below. For the moment it is important to note that once the task
of the judge has been defined as that of enforcing ‘rights and
obligations whose present power is independent of the majority
will’ XDworkin 1971: 159) judges are for Dworkin - and contrary
to the positivist analytical jurists’ view - in no sense legislators
They db) not ^derive authority, like a democratic legislature, from
their representing the will of the majority. Nor is the judge’s task
one of implementing thaT*wilTjTKowever it is to be understood.
Judicial authority, for Dworkin, must derive from a different source
and support a different role from that of a legislature. Like Pound
he sees the judge as deriving both the authority to develop law
and the resources to do so from within law itself, not from some
external source such as an Austinian sovereign whose policies define
this authority and the resources available to'the judge in the task
of interpreting hard cases. As will appear, however, Dworkin’s
explanation of what it is, internal to law, which provides resources
and authority for the judge’s interpretive activities is significantly
different from, and richer than, Pound’s discussion in terms of
precepts, techniques (left vague in his discussions) and a measure
of values centred on the jural postulates of the time and place.
Principles and Policies

r
In the rare general comments which Dworkin offers on Pound’s

work, he praises the earlier writer’s recognition of the legal
significance of principles but criticises Pound for having stopped
short of an effective critique of legal positivism since he fails to
show that principles are a part of law ‘in the sense that particular
rules are, that they in fact control and regulate officials’ (Dworkin
1967: 217). Without this demonstration, positivist analytical jurists
could agree that principles and other general ideas associated with
Principles and Policies 169
law are significant for the interpretation of rules but deny that
the model of rules needs amendment to accept these elements as
essential components of law. In effect, much of what Pound treats
as precepts other than legal rules could be seen by positivist
analytical jurists as merely a segment of the discretionary (non-
legal) considerations which judges or other officials take into
account in making decisions in hard cases. The positivist image
of law would remain inviolate. The judge’s creative role would
remain legally inexplicable and legally unjustifiable.
Dworkin’s strategy is, therefore, to show that principles, whj^
as legal aut horities which cannot be ignored; that .they are essential
(not optional_ptL.discretlQoar,vi elements in reaching, decisions in
hard cases. Indeed, Dworkin seeks to arnue..lh.amimJili..cases a
structure of legal principles stands behind and informs the applicable
rules. The only difference, then, between a hard and simpTe~case
is that in the latter the relationship between applicable principles
and relevant rules is seen byTHe deciding court ar interpreters
of the courfs decision as clear and unproblematic.
A favourite illustration, in Dworkin s writings, of legal principles
is the American case of Riggs v Palmer6 in which the New York
State Court of Appeals refused to allow Elmer Palmer to inherit
property as a beneficiary under the will of his grandfather, whom
he had murdered by poisoning. The applicable legal rule appears
to be that legacies contained in legally valid testamentary
dispositions are to be guaranteed by law in accordance with the
wishes of the testator. Yet the court in Riggs v Palmer consciously
decides not to apply the rule and does scrby-relying” on a general
principle that a wrongdoer should not be allowed to profit from
hl$ own wrori^TTfis not judicial discretion which oaerates to defeat
TTvT^dma^juje as to legacies but an-interpretation of the rule
in the light of a governing principle. ' And the principle here is
legal since If l^not-taken Qut.oftfmmr as amurelv discretionary
invention of the court but is one which has its own legal history
as something developed, applied and interpreted in earlier cases
and,in reiationJîffieientJegairules and circumstances.
This is not to say that because law contains principles as well
as rules, the former are to be equated with the latter. While legal
rules mav be identifiable bv using some positivist test expressed
in terms of rules of recognition, basic norm or sovereign command,
legal principles cannot be so identified. They emerge, flourish and
decline gradually through their recognition, elaboration and perhaps
6
(1889) 115 NY 506. See Dworkin 1977: 23; 1986: 15-20.
eventual discarding over time in the ongoing history of the legal

system concerned. As such, they reflect and express the legal system’s
underlying values or traditions - in a sense, its underlying political
philosophy. Constitutional principles, and principles underpinning
the basic structures of private law (for example, expressing the
basic values of the enforceability of agreements or good faith),
show these characteristics. Because they defy positivist tests which
neatly distinguish law from non-law they cast doubt on the whole
structure of positivist explanation. And this is fundamental because,
as Riggs v Palmer shows, principles control the applicability of rules
- those elements of the legal system which, according to positivist
analytical jurisprudence, lend themselves to definite tests of legal
validity.
The direction of Dworkin’s argument at this point might seem
to suggest the conclusion that the internal-external dichotomy
dividing law from non-law, or - in another aspect - legal insiders
from legal outsiders, is to be discarded. But this is far from his
position7. The recognition that principles governing cases can be
legal principles merely enlarges law’s scope but does not, in-
Dworkin s view, render the idea of law as a distinct phenomenon
incoherent. Equally, as will be seen later, he maintains a sharp
distinction between legal insiders and outsiders. Insiders are those
participating in the interpretation of legal rules and principles and
so involved in determining creatively (rather than mechanically
through the application of positivist tests) what is and is not law,
while outsiders are those uninterested in or unable to play the
interpretive game.
Principles differ from rules in other fundamental ways. They
do not apply in an all-or-nothing fashion, as rules do (Dworkin
1977: 24). Rules are either applicable or not; principles have what
Dworkin calls a dimension of weight. Legal rules cannot logically
conflict — if they seem to do so one rule must be an exception
to the other and can be written into it. Otherwise one of the rules
must be invalid (1977: 25). But there may be conflicting principles
applicable in the same case. The task of legal interpretation, then,
involves a weighing of the principles against each other as they
relate to the case in hand. The parallel with Pound’s balancing
of interests in the specific case is obvious. One might consider i
equitable principles as examples. The maxims ‘equity regards as
done that which ought to be done’, ‘equity will not perfect an
imperfect gift’ and ‘equity will not allow a statute to be used as
Cf. Dworkin’s critique as ‘illogical’ of Fuller’s idea that the existence

of law can be a matter of degree: Dworkin 1965: 677-8.
Principles and Policies 171
an instrument of fraud’ may suggest different results when applied

to the same case. The judge’s task would be to assess their relative
weight in the particular circumstances, so as to reach a conclusion
by applying them.
Why should we not say, as a positivist would, that a judge merely
exercises discretion or adopts a certain policy in making such a
judgment? Dworkin does not deny the need for ‘weak’ discretion
- by which he means merely creative judgment irTthe application
ofTegaT^doctrine, whether rules or principles. But he denies'TRe
existence of ‘strong’ (that is, legally uncontrolled) judicial discretion
in essentially the same way that classical common law thought
would deny it. Judges do not make law because all the resources
law as
correctly understood._.A judge does not decide a case in a legal
vaSCT^nS^^^^^^bas^ of existing rules which express, and, at
the same time, are informed by, underlying legal principles. The
task of the judge faced with a hard case is, therefore, to understand
what decision is required by the whole doctrinal structure of existing
law. Even if rules, understood in positivistic fashion, seem to give
the judge no guidance, a broader understanding of the patterns
of values which have gradually developed in the legal system and
are expressed in the combination of rules and principles, does offer
that guidance. The task of the judge is to understancLihe- content
of the legal svsUanJn this broad sense and give effect to if in his
task is undoubtedly a
creatiY£_one _ _Properly understood,
the judicial role is not the dynamic one of making law like a
legislator, nor is it the purely passive one of ‘finding’ Jaw. The
judge must make the law the best tfertfi c^bejfei>h hifi CTfOim
interpretation of existing legal resources. But he uses, according
To TJ^rû^^ô^^^matenalsindoing this. Thus, Dworkin
is able to make the claim, which has long puzzled many of his
critics, that existing law provides an answer for every hard case
(althouglTjudges andTaTvyerrm^^giLleîn^mmahly as to what
that answer is). There is simply no room for the exercise of strong
judicial discretion (Dworkin 1985: ch 5).
While the application of principle is fundamental to the judicial
function, this is, for Dworkin (1977: 22; 1986: 221-4), to be
distinguished clearly from the invocation of policiesstandards
setting out economic, political, or. social goals, to be reached. The
latter are normally nol_a_malter for judges, but for legislatures.
WEThTthe law which the Dworkinian judge is required creatively
to apply will have been influenced by policy matters, policy shojild
not shape his 1 egal..judgments.Jil-the.,wav. That principles - the
expression of the community’s moral and political values reflected

in law - must (Dworkin 1986: 244).
Many critics have doubted that principle and policy can be clearly
distinguished in the manner Dworkin seems to require, but the
distinction is fundamental to his thinking. The reason for this can
best be understood by referring back to the controversy surrounding
the organicist and instrumentalist dimensions of Pound’s thought.
While ultimately, as has been seen, Pound’s conception of law is
thoroughly organicist, his failure to distinguish principle from policy
leaves ambiguities which have misled some commentators. In
Dworkin s writings there is no such ambiguity. He never expresses
the matter in terms of the organicist-instrumentalist opposition;
nevertheless, by making principle central to adjudication Dworkin
affirms implicitly that judges must operate with an organicist
conception of law, developing it from within. Through its own
resources, creatively interpreted, law can ‘work itself pure’,
according to the strange phrase of classical common law thought8.
Policy, by contrast, is a matter for instrumentalists. It relates
to pressures from outside the legal system directing law towards
specificôals. Dworkin’s position is here considerably clearer and
less conservative than Pound’s, for there is no suggestion that law
must essentially develop itself by its own ‘internal’ resources of
common law reason, with legislation (reflecting policy) no more
than a handmaid. Dworkin has no doubt of the necessity for
instrumentalist approaches to law providing essential policy input
(as a liberal he favours considerable government intervention to
protect, extend and realise in practice the promise of equality of
citizen s rights, see e.g. Dworkin 1985: ch 14). His position, however,
asserts a quite clear division of labour between a policy-driven
-legislature and a principle-driven judiciary. For Dworkin, in effect,
Pound s common law image of twentieth century law holds good
for courts and their responsibilities. But it does not hamper wide-
ranging legislative activity to promote social change.
The Closed World of Legal Interpretation
Such a neat reconciliation of organicist and instrumentalist

conceptions of law is, unfortunately, ultimately unstable and
llusory, because Dworkin, like Pound, must decide between two
8 Omychundv Barker (1744) 1 Atk 21 at p. 33 (argument of Solicitor-

General Murray, later Lord Mansfield). Cf. Dworkin 1982: 187; 1986:
The Closed World of Legal Interpretation 173
opposite views. Can law control its own destiny from its own
resources - is it morally and politically autonomous in that sense;
or is it essentially an instrument of political power, subject to control
and direction from beyond its own doctrinal resources?
In Dworkin’s recent writings it is made clear that the organicist
conception triumphs. In other words, for Dworkin, as for Pound,
the common law judge should still dominate the legal system. One
might be forgiven for thinking that as long as rules can be
distinguished from principles and understood in positivist fashion,
they import into the arena of judicial interpretation normative
material which the judge cannot but give effect to; the material
controls him. Thus, insofar as law consists of policy-shaped
legislative rules, the judge can only be an instrument of policy
without independent creativity. Yet, as has been seen, for Dworkin,
principles control the interpretation of rules. Hence, the rule-
principle distinction has lost much significance in his recent writings.
Principles are expressed through rules; rules derive their meaning
from principles. Law is entirely a matter of interpretation. In this
specific sense, no law is imposed on the judge. All law which comes
out of the judge’s decisions is the result of his creative interpretation,
whether of legislation, prior case law or ultimate constitutional
provisions (such as in the written United States Constitution).
It follows that, in a sense, principle trumps policy because the
interpretation of law derived from policy considerations must be
conducted in accordance with the judge’s obligation to fulfil the
elements of principle in law. There is no law other than that which
results from creative interpretation of existing legal materials guided
by the attempt of the interpreter to make the law the best it can
be.
Law as Interpretation
In recent writings Dworkin has used analogies with literary
int^rpretationuto^xplain the mdge’s obligation in creative legal
interpretation (e.g. 1982: 166-8; 1985: ch 6; 1986: 228-38). A judge
TsTTke a writer trying to continue a story started by earlier writers.
The writer must make the story as good as it can be. This necessitates
tfiM^lKTTâclSsTSu^TSe^m^Knrv^rwhat went before (the
requirement of‘fit’), and must make the best of that existing material
by interpreting it irTHie most plausible and attractive way and
then adding a contribution which will further enhance it. Since
the task of the writer is to continue the story, he canoaLsitopiy
go off on his own literary troIic~but must create his own contribution
in a way that is consistent with the best interpretation of thetttSSdfing
of what went before. Of course, the writer must supply that

interpretation. What will determine whether it is the best possible?
Ultimately this will be a matter of whether it shows the previous
contributions plus his own as an integrated whole, consistent and
rich in meaning and clear in development. Similarly, a judge must
tell the best story - construct the best legdmeanmr^-from^tK
**wii*?>iiiimmiiiiiiiw.qarait-iOTMimt —-Turramnurrmnun nr*—irrTTrrmiiiMH~»iiiiiii>iimiiiIiiiiiii'i'i hi'iiHn uni ij n, t-7
work ol previous contributors to legal doctrine. In adding his own

contribution (the new decision in the ^case before^ himj"*~he“”is
constrained by the need for Tit’ with existing legal materials. Some
interpretations which he might as a matter of personal preference
ljFe to adopt and act on are ruled outbecause they wouIcTnot
jt with the need to portray law as anintegratecl,
principled whole.
Thus, Dworkin claims that his theory does not give judges the
freedom of legislators, as the positivist idea of judicial discretion
seems tp.do. They, are constrained by the entire stTuHureôTvalues
Which the legal system reiESSlTfi^
in WM§Jhat__will further those values and portray legal doctrine
gs A. whole, as an integrated and consistent expression of them.
The need for consistency requires that a judge will-put rBTv^riip
9a precedent and on the~~need to give effect to clearly expressed
legislative provisions, quite apart from the fact that the legal system
he serves may well have principles of stare decisis cind of deference
to tETwill of democratic legislatures as jiart ofthTlundamental
structure ()flegalvaliJ^Tvfiicfrthg^jmIgem^T?TTyf^^nlêT DwofTTi n
At the same time, as in classical common law thought9, Dworkin’s

AfeSQUUfl-lows a judge to assess critically the work of his preHpressor^
even to the extent of declaiSgrand refusiri|31aTîqw
mis takes-. Similarly, Igfliftla tkve..,gi^.yisians are to be considered in
relation to the whole environment .of relevant legis1^th7e ~hiAt77?v
In some instances this approach could leadâ jpclge to conclusfons
be very m^mm^^t^m
straightforward application of statutory words (Dworkin 19804T-
The overall shape of Dworkin’s theory is, therefore, remarkably

like that of classical common law-thought, as described in Chapter
2. Pound’s sociological jurisprudence can be seen as prescriptive
but also presents itself as an attempt to describe the common law
system in objective terms as a sejkxiL balancing operations and
fi£S£lsiyyyEfs informed by a meagure of values. As has been seen,
the attempt at description runs into serious difficulties when the
See Chapter 2, above, pp. 25-6.

measure of values has to be objectively identified, and, perhaps,

even when the initial task of identifying, listing and classifying
interests is attempted. Classical common law thought was, however,
never a descriptive theory of law but always a set ofjgrescriptions
and expectations as to how judges should go about their job. From
this standpoint Dworkin’s theory is more in harmony with classical
common law thought than is Pound’s because Dworkin effectively
discards any claim to be offering objective description of law from
some detached._ohsejmer’s standpoint. Once it is recognised that
law is entirely a matter of interpretation it follows that all who
areThydlved i,^ it must be engagedj^the same interpretive
exercise. Otherwise they cannot communicate information about
law amongst themselves. The .jmfc,
philosopher thus become, for Dworkin, participants in the same
‘game’ of interpretation. They are all involved in debates about
what law is (whether for the purposes of arguing a particular casej
or of understanding a line of precedents, or developing a theory
of a specific legal field or of the legal system as a whole). But
what law is depends on how the values understood as informing
a legaForderlire do be interpreted. Thus, all participants in legal
interpretation, according to Dworkin, are concerned also with what
law ought to be. They cannot be describers of some objectively
existing datum of law. They must be full participants in the discourse
of legal argument of the particular legal system with whieft mey
are concerned.
One great advantage of this approach over Pound’s is that the
problem of objectively identifying a measure of values in the legal
system disappears. Instead it is recognised that this measure is
continually being constructed and reconstructed by participants in
the system and makes sense only from a participant perspective.
It is to be understood as the ongoing interpretive project of
participants in the legal order and not as a set of postulates to
be described from some external theoretical standpoint.
Law’s Community
But there is a price to be paid for this apparent theoretical advance.
What happens, for example, to the relationship hetweeaJaw j£d
community.wfpeh has been identified in this book as central to
classical common law thought? It becomes, for Dworkin, what it
is for classical common law thought: something wRTcFTannot be
examined empirically but only taken for granted. Thj&.is
the..theory offers no., external or
law’s relationship with community can be analysed. Here is an
illustration of the inherent and admitted limitations of Dworkin’s

theory arising from its wholly internal, insiders’ perspective on law.
All of the other major theorists so far considered in this book
have sought to hold open the possibility of an external, uncommitted
view of law, even if (as with Hart’s concept of law) the quest for
objective description of a legal system is combined with a proper
insistence that an understanding of the internal, insiders’ viewpoint
on law is essential to any such objective description.
Dworkin writes extensively about community as the basis of law
and about how it can be conceptualised (1986: 195-215), yet he
can never offer any analysis of the actual social conditions under
which a community can exist, of what the concept means when
related to actual patterns of social life, or of the specific political
and social circumstances in which it is useful to think of law as
an expression of community values. Since previous chapters in this
book have sought to suggest that these are important questions
and that more sociologically sensitive theorists such as Fuller
(pp. 139-42, above) have made valuable efforts to address them,
Dworkin’s silence about the empirical significance of a concept
which is inevitably important to his theory is frustrating, even if
understandable.
Equally, if we consider only the possibility of a philosophical
analysis of the concept of community, Dworkin sees it as a moral-
politjcal structure of human interaction in which the collective
development and furiyimenf of values ofjustlce7faifnesshhdintogritv
are sought. But this is merely a projection of his image of what
it is to participate in a legal system. Just as the classical common
lawyers glimpsed community as an extension or projection of what
they understood law to be, so for Dworkin the image of community
is seen through a legal prism, as something implicit in the outlook
of legal insiders participating in legal interpretation. For Dworkin,
participants in legal interpretation within a legal system are, by
virtue of their participation, the community.
This can be constrasted with Finnis’ consideration of community
which, although equally lacking empirical grounding in a study
of actual social conditions, does proceed philosophically from first
principles (pp. 147-8, above). The contrast here between Finnis
and Dworkin is easily understood. Like Hart, but unlike Dworkin,
Finnis asserts the possibility of a descriptive, rather than prescriptive
or committed, legal theory (Finnis 1980: ch 1), even though it must
accept the inevitability of moral evaluations and be founded on
assumed universal moral intuitions. Hence Finnis’ starting point
is not Dworkin’s wholly internal legal perspective but one in which
both law and morals can be viewed from a standpoint which is
not just that of participants in practical legal interpretation.

Community is, therefore, something which can and should, for
Finnis, be analysed for its moral significance as such. It does not
appear merely as a projection of the outlook of legal ‘insiders’
on their law.
For Dworkin, therefore, the attempt to explain judicial creativity,
in terms of law itself, leads to the conclusion that this can be done
only by becoming a participant - adopting the standpoint of a
lawyer or judge - in interpretation of law in the particular legal
system concerned. But it will be seen in the final section of this
chapter that ultimately Dworkin’s approach leads to serious
problems for normative legal theory as an explanation of judicial
decision-making and processes of doctrinal development.
Politics, Professionalism and Interpretive Communities
Throughout this book normative legal theory has been consistently

interpreted as, in part, a response to specific problems of legal
professionalisation. There is little difficulty in interpreting Pound’s
defence of common law methods and the role of legal experts in
these terms. But Dworkin seems to make some determined efforts
to avoid his theory becoming a defence of professional prerogatives
or of the intellectual or moral autonomy of professional legal
knowledge. Thus he insists that the community of participants in
legal interpretation is not just a community of lawyers. Anyone
living within a society and actively committed to the values - the
moral and political foundation - of its legal system is properly
seen as a participant in the task of interpretation of that society’s
law. It follows that a citizen can quite properly disagree with the
interpretation of the law offered by the highest court of the legal
system. ‘A citizen’s allegiance is to the law, not to any particular
person’s view of what the law is, and he does not behave unfairly
so long as he proceeds on his own considered and reasonable view
of what the law requires’ (Dworkin 1977: 214). What is reasonable
is a matter of interpretive debate, like everything else entailed in
deciding what the law is. But lawyers and judges have no necessary
monopoly of such judgments. Thus, Dworkin provides a
justification for civil disobedience; not one justifying breach of law,
but one which justifies, following a reasonably held interpretation
of law which happens to differ from that made by official legal
authorities. For Dworkin, this is not a licence to disobey but an
assertion that there can be cases where the meaning of law - judged
not just as rules, but as the whole structure of legal doctrine including
the particular moral and political values crystallized in the doctrinal

and institutional history of the legal system - is a matter of legitimate
dispute. In such cases the view of citizen dissenters should be
respected and their acts, based on such a view, should be judged
with official tolerance. Dworkin has consistently maintained this
view (see 1985: ch 4). Yet it seems profoundly unrealistic to ask
for official toleration of acts which will be seen by, those who
control the coercive power of a legal system, as law-breaking, not
as alternative legal interpretation. It is also profoundly unrealistic
to consider non-lawyer citizens, on the one hand, and lawyers or
judges, on the other, as part of the same community of legal
interpreters. For example, are we somehow to imagine the views
expressed in scholarly law review articles on the meaning of current
legislation as part of a debate with the opinions of poor people
in decaying inner city neighbourhoods as to whether the
fundamental values and principles of the legal system are accurately
expressed in recent judicial pronouncements? This image of
community is hardly convincing. If law is to be understood as
interpretation, it is important to recognise clearly in legal theory
that lawyers almost entirely monopolise that interpretation. Any
other view seems either naively idealistic or a wilful refusal to
recognise evidence from social experience. And it is tempting to
suggest that Dworkin’s strange lack of realism here derives from
what was noted in the previous section - the impossibility of
seriously examining the actual conditions of existence of a
community within the terms of a theory expressing only the
perspective of participants in that community. Since the participant
perspective is inevitably that of the lawyer within a community
of legal interpreters it becomes hard to see realistically, in terms
of such a theory, the position of other social groups in their
relationship with the professional group of lawyers.
Despite Dworkin’s wish to defend a basis of citizen participation,
his major writings in normative legal theory are almost entirely
concerned with judicial interpretation of law. They consistently
assume the judge to be the central figure in the interpretive
community. Interpretation of legal meaning is treated as a matter
for professionals. Hence we can consider what Dworkin’s theory
tells us about this professional interpretive community and the way
it works. Here surely are to be found the answers to questions
about the principles which guide legal development and judicial
creativity?
But the theory cannot provide these answers. If law is entirely
a matter of interpretation, as Dworkin now insists, the meaning
of legal provisions cannot be controlled by any objective historical
Politics, Professionalism and Interpretive Communities 179
documents, conditions or events. This uncompromising position

allows Dworkin to deny that any objectively existing legal or social
conventions (such as Hart’s rule of recognition or any other
positivist criterion of law) determine what is valid as law. Equally
it avoids Pound’s problem of needing to identify jural postulates
as objectively existing components of a legal system. But, of course,
something must control legal interpretation. One radical answer
as to what that might be is given by the literary theorist Stanley
Fish in a law review debate with Dworkin. Fish agrees with Dworkin
that law - like any literary text - is a matter of interpretation.
He goes on to argue, however, that what is interpreted (a literary
text or historical legal materials) cannot be distinguished from the
interpretation itself - that the interpretation constitutes what is
interpreted (Fish 1982; 1983). On Fish’s view the controls that
operate to limit possible interpretations are in no way given by
the item interpreted itself (the statute or the precedent case, for
example, does not, ‘by its nature’, rule out certain interpretations).
The actual controls on interpretation arise from the conventions,
expectations, shared understandings and structure of the
interpreting community (for example, a legal profession, or a
judiciary) and the skill in argument of the interpreters. Thus, it
would seem to follow that in order to understand law-as-
interpretation we must understand the social structure of the
interpretive community and the pressures, constraints, modes of
consensus formation, and conditions of conflict which actually exist
within it and determine how the business of interpretation of law
actually goes on. In other words, what seems to be required is
a sociological view of the interpretive community of legal
professionals and of their practices.
Although Fish’s view preserves the idea of law as interpretation
it appears to entail that constraints on interpretation can only be
understood sociologically. But this denies the utility of what
Dworkin advocates - a normative legal theory developed entirely
from a legal insider’s perspective. A sociological view of lawyers
patently refuses to be restricted to such a perspective. Thus, Dworkin
(1985: 176) rejects as ‘extravagant’ Fish’s view that interpretation
constitutes what is interpreted. In some way the historical legal
record must be the foundation of legal interpretation, not the other
way around. Therefore, he relies on the requirement of ‘fit’. Legal
interpretations must fit the historical materials of the legal system
- the body of existing constitutional provisions, statutes, judicial
precedents, etc. But this begins to look like legal positivism. What
can determine the legal significance of these materials except some
objective positivist criteria of law? Finally, therefore, to escape this
positivist conclusion Dworkin is forced to the position that what

constrain judicial interpretations are not historical legal materials
in some objective sense but the judges’ convictions about fit - again
a matter of interpretation.
In what sense do these convictions constrain? Dworkin cannot
rely, like Fish, on claims about the collective constraints exercised
on judges (and lawyers) by their membership within the professional
community. To understand why and how those constraints are
collective (that is, arise within the professional group) it would
be necessary, again, to understand the sociology of the interpretive
community10. Thus, Dworkin’s position is that the constraint on
judges arises from their personal need as individuals to integrate
their convictions about fit with their convictions about whether
the interpretation they plan to adopt will show the interpreted legal
practices or doctrine in the best light. The constraint is ‘a structural
constraint of different kinds of principle within a system of principle’
(1986: 257).
But is this a constraint at all? Dworkin does, at least, recognise
the obvious question: will a judge’s convictions as to which
interpretation shows legal practices and doctrine in the best light
shape that judge’s convictions about fit so that no constraining
tensions between these two sets of convictions arise? (cf. Dworkin
1986: 236-7). But he gives no answer except to suggest that this
depends on the complexity and structure of the individual judge’s
pertinent opinions as a whole. We are thus pushed into a realm
of speculation about judges’ personal philosophies in which realistic
examination (for legal participants no less than for sociological
observers) of the nature and effects of general constraints on judicial
interpretation becomes impossible. The reason lies in Dworkin’s
refusal to abandon his vision of a self-contained arena of legal
philosophical discourse which preserves intact a watertight
separation of ‘internal’ (legal insiders’) and ‘external’ (sociological)
perspectives.
The lesson to be learned from this is surely that the search for
legal principles governing judicial creativity can lead to at least
three distinct projects. The most modest is Pound’s - a rather
unsystematic attempt to observe and describe the value elements
and other considerations which, according to settled legal practice,
the judge should take into account in deciding a hard case. Much
more ambitious is Dworkin’s singleminded attempt to see law and
10 Cf. Karl Llewellyn’s discussion of ‘steadying factors’ in judicial

interpretation arising out of judges’ professional and institutional
environment: Llewellyn 1960, and see Chapter 7, below.
Politics, Professionalism and Interpretive Communities 181
rationalise its components exclusively from the perspective of the

conscientious judge and lawyer. Once it appears, however, that
such an exclusively ‘inside’ perspective reduces to purely personal
judicial convictions, only one possibility seems to remain open.
This is to examine sociologically the structure and environment
of the interpretive community which may determine how collective
professional interpretations of law are possible. It is this remaining
possibility which will be the central focus of the next chapter.
7 Varieties of Scepticism
Previous chapters have related developments in Anglo-American

normative legal theory to a search for theoretical unity and system
in law, as a body of knowledge and as a professional practice.
In that perspective a kind of progression appears. We have observed
classical common law theory struggling to come to terms with the
emergence of the modern sovereign state and its centralised law¬
making authorities (Chapter 2). Historical jurisprudence was seen
as offering some kind of support to the common law outlook in
the nineteenth century through its attempts to specify theoretical
links between law and culture. But this hardly seemed to solve
the difficulties and positivist analytical jurisprudence appeared as
a more realistic framework for confronting the relationship between
law and political power. Later, as the utilitarian faith in rational
government waned or assumed more complex forms, legal
philosophy was pressed into service to explain law, not as the
consequence of political power, but as its master or controlling
normative framework. The assumed theoretical problems of
sovereignty and, more fundamentally, the need to portray law in
terms fitting for democratic government, in which regulatees are
to be citizens rather than subjects, could be seen to inspire, at
least in part, the transformations of analytical jurisprudence noted
in Chapter 4. But the problem of the role of the judge remained
in this theory and its inadequacy encouraged efforts - exemplified
in different ways by main themes in Fuller’s, Pound’s and Dworkin’s
writings — to find a justification and explanation of judicial creativity
(and legal interpretation more generally) in values inherent in Anglo-
American law.
In one sense the wheel turns full circle because the virtues of
classical common law thought - its insistence on the inseparability
of law from an idea of community or communal values of some
kind, its concern with underlying principle as much as with technical
rule, its image of law as continuously and steadily developing -
are now apparently what the writers considered in the previous
two chapters are especially concerned to recapture. It seems as
though the positivist revolution in legal thought in the nineteenth
Varieties of Scepticism 183
century failed; that it did not replace classical common law thought
but merely confirmed the inadequacy of the common law outlook.
At the same time, what might be called neo-classical common law
thought, of which Dworkin’s legal philosophy is the best example,
raises difficulties of its own, explained in Chapter 6. Above all,
it seems forced to give up any prospect of a science of law - in
the sense of a search for something more systematic and objective
than the participant perspective of a practical legal interpreter. Yet
it was precisely that search for systematic theoretical explanation
of the nature of law as a body of professional knowledge and as
a distinctive professional practice which, as has been seen, first
inspired and gave original legitimacy to modern Anglo-American
legal philosophy in Bentham’s and Austin’s work.
Is there a way out of this impasse? Suppose we were to retrace
our steps and go back to Austin’s original starting point for legal
science: the idea that a law is the result of a distinctive action
(in his theory the act of commanding), and is to be understood
in terms of those who perform the action (for Austin, the sovereign
or sovereign body) and the means available to make the action
effective (sanctions). Suppose that, without becoming embroiled
again in arguments about sovereignty or the specific form of law,
we were to treat these behavioural dimensions of law as the focus
of scientific inquiry in legal theory. And suppose further, finally,
that in order to avoid the problems encountered in Chapter 6 about
guiding values and traditions inherent in a legal system and
determining appropriate judicial innovations in doctrine, it were
to be assumed as a starting point for analysis that innovations
in legal doctrine are nothing more nor less than expressions of
the wishes, policies, or preferences of the decision-makers (for
example, judges) who create law. What would follow from such
positions?
At least initially, taken without qualification or elaboration, these
points of departure suggest a profound scepticism about normative
analysis of law. They suggest that doctrine is less important than
those who create it; that what judges do is more important than
the reasoning with which they justify their decisions; that values
are relevant to legal analysis only insofar as they represent the
particular preferences of influential decision-makers; that legal
outcomes reflect configurations of political power, not overarching
social or political values. But this approach might also be called
realistic, and seen as adopting the only starting points which make
it possible to do full justice to the original motivating assumption
of the analytical jurists - that law is a human creation, to be
understood as it is and not as it might or should be. On this view,
then, law is a matter of people doing the jobs of governing, resolving

or containing disputes, allocating benefits or detriments and
channelling state power to achieve specific purposes. It is not ‘a
brooding omnipresence in the sky’ (Howe, ed, 1953 II: 822).
In such a ‘realist’ perspective it is possible to recognise that
political authorities such as legislatures and administrative agencies
are primary producers of legal rules and doctrine. At the same
time the full extent of judicial power to develop law through creative
interpretation can also be recognised, as a practical matter. Indeed,
judges and courts - viewed merely as decision-makers determining
disputes - might not look very different in character from
administrative regulators or legislative rule-makers (cf. Llewellyn
1930a: 29-31). It will be recalled that Austin, too, was not convinced
that the distinction between courts and other political agencies
concerned with legal interpretation, adjudication and application
of doctrine should be as sharply drawn as many lawyers and others
would claim1.
Anglo-American legal scholarship in the twentieth century has
produced a broad current of writing which adopts such sceptical
or realist premises as those suggested. This chapter will be concerned
with the relevance of this literature, and its ‘post-realist’ legacy,
for normative legal theory. But in discussing ‘legal realism’ it
becomes necessary, for the first time in this book, to recognise
a development in Anglo-American legal philosophy occurring on
one side of the Atlantic which has had virtually no parallel on
the other. In the literature of Anglo-American legal thought legal
realism is almost exclusively American legal realism, and is known
by that name. Although, in Britain, attention has been paid,
alongside discussion of American developments, to the writings
of some Scandinavian jurists who developed ideas comparable in
some respects with those of the American realists, no similar realist
movement in legal thought emerged in Britain as a significant
indigenous development. Indeed, it has often proved difficult for
British legal scholars to understand the immense significance of
the realist movement in the United States. What, in America, became
for a time (especially during the 1930s and 1940s) a set of
presuppositions pervading legal scholarship and a tradition of
thought which still informs much of the intellectual context of legal
debate in the United States, has appeared to many legal philosophers
in Britain as an almost incomprehensible naivety in thinking and
writing about law; something thoroughly alien and to be accounted
1
See Chapter 3, above, pp 75-7.
Varieties of Scepticism 185
for only by unique features of American law and legal history,

of little relevance for legal philosophy in Britain.
Pragmatism and Realism
This situation needs explanation and there is no shortage of analyses

of the social, economic and political conditions which provided
the context for the loosely identifiable, broad and diverse American
realist movement to flourish. Unlike much of the theory considered
earlier in this book, legal realism actually encourages a contextual
interpretation of itself and has been developed with explicit reference
to its political and professional context. The reasons for this are
clear. An attempt to explain law in behavioural terms entails
examining its causes or origins in the decisions or directives of
human actors, and its effects in terms of social consequences of
those decisions or directives. Law is to be viewed instrumentally,
not as doctrine deriving worth from its integrity or normative unity
as a system of abstract ideas but as a means to practical ends,
an instrument for appropriate governmental purposes (Llewellyn
1930a: 25-7). If law is understood in such terms, it should follow
that legal scholarship and legal theory are also, in a realist
conception, means to the ends of explaining and improving law
as an efficient technology of regulation in its time and place. Hence
a realist view of legal theory is likely to view developments in legal
philosophy in terms of their functional relevance, or lack of
relevance, to the legal needs of the time and place.
A particular philosophy, usually called pragmatism, underpins
this outlook. In an orthodox pragmatist conception knowledge is
‘true’ to the extent that it is useful - that is, validated in experience.
Indeed, there may perhaps be no better criterion of truth, in a
pragmatist perspective, than the practical success of ideas in action;
in this sense, knowledge is successful practice. Early in the twentieth
century, such American philosophers as William James and John
Dewey developed pragmatist philosophy in forms which seemed
immediately relevant to legal issues (cf. Dewey 1924). Consider,
for example, the problem of the nature of corporate personality
raised earlier in Chapter 4. As noted there, H. L. A. Hart, in his
Oxford inaugural lecture, takes this issue as an illustration of the
sterility of much conceptual analysis in legal philosophy. His
solution, as has been seen, is to consider legal statements in their
specific linguistic contexts. Hence the legal meaning of‘corporation’
can be understood only by considering linguistic contexts in which
the concept is invoked. There is no ‘thing’ which can be identified
with what law treats as a corporation or as corporate personality.

Instead there are usages of legal language which lawyers can examine
and (usually) make sense of in practical legal discourse.
From a realist-pragmatist perspective this is not sufficient. Legal
discourse is not to be treated as self-validating. What determines
legal usage? What is really meant when a court declares that a
corporation has ‘moved’ its location from one city or state to
another? What, in terms of actual practices, must have happened
for the statement to be correct or meaningful? What is actually
taking place when a corporation (not individual human beings such
as its directors or employees, but the abstract entity itself) is held
liable for a tort, crime or breach of contract? For lawyers none
of these ideas or situations is necessarily odd or difficult, but if
one seeks to consider law in terms of behaviour, as ideas which
gain their validity as successful practice - that is, instrumentally
- the particular forms of legal language may be intelligible (if at
all) only as peculiarly complex and oblique ways of organising
and expressing certain policies in regulatory form.
In one of the classic essays of legal realism, Felix Cohen
reconsiders issues of corporate personality in just this way (Cohen
1935). Cohen s main point is that although legal language obtains
significance and meaning only as a means to practical ends, much
of it is expressed in forms which almost wholly obscure this
instrumentality. Hence, instead of asking how particular social or
economic goals are best to be served through a certain regulatory
decision - for example, whether a trade union should be subject
to liability in tort for the actions of its members - courts in Britain
and the United States considered whether a trade union is a ‘person’
in law2, an issue which, when phrased in abstract terms, is akin
to the apocryphal scholastic dispute as to how many angels can
stand on the point of a needle (Cohen 1935: 35, 38). The abstract
question of personality is apparently treated as determining whether
or not there can be liability. Frequently other concepts fill what
Cohen sees as similar roles. They include the notion of ‘property
right (serving as a kind of red light against interference with a
private benefit or the status quo)\ ‘fair value’, ‘due process’, ‘title’,
contract’, ‘conspiracy’, ‘malice’ (all suggesting objective conditions
rather than policy evaluations) ‘and all the rest of the magic “solving
words” of traditional jurisprudence’ (Cohen 1935: 45)
What is in issue here? Can it not be said that what Cohen castigates
Tha£!^J;e Railway Co v Amalgamated Society of Railway Servants [19011

259 US 344 ^ MinS Workers °fAmerica v Coronado Coal Co (1922)
Pragmatism and Realism 187
in his 1935 paper as ‘transcendental nonsense’ is merely the special

discourse of law, which is not that of politics or policy? Is it not
absurdly naive to assert, as Cohen does, that all concepts ‘that
cannot be defined in terms of the elements of actual experience
are meaningless’ and to demand as an ultimatum of modern
jurisprudence that any word ‘that cannot pay up in the currency
of fact, upon demand, is to be declared bankrupt, and we are to
have no further dealings with it’ (Cohen 1935: 48, 52)? Critics of
realism among analytical jurists lost patience long ago with any
such reductionist view of concepts and have usually treated
statements such as Cohen’s as textbook illustrations of legal
realism’s naive inability to appreciate the specific character of law’s
normative language. Why should legal ideas somehow be defined
in terms of actual experience? And what is ‘actual experience’ for
this purpose? A strict behaviouralist view ignores the reality of
ideas; the possibility that legal reasoning should, in itself, be treated
as part of social reality.
Although these criticisms are powerful they do not address the
central questions raised. Why should the distinctiveness or
autonomy of legal reasoning and language be accepted as
appropriate or natural? Why should any line of demarcation
between legal reasoning, on the one hand, and policy argument,
on the other, be treated as self-evidently realistic or justifiable?
Suppose we were to accept, with Cohen and other realists, that
a judge is a type of policy-maker or policy-implementer; suppose
we were to refuse to treat as self-evident that judges are not merely
gowned politicians or administrators; suppose we remain
unconvinced that when a judge decides a ‘hard case’ the decision
is anything other than a legislative act (and not, as in Dworkin’s
view, something specially judicial and non-legislative in character);
and suppose, finally, that we see the judge not as a delegate (as
Austin suggested) of any identifiable sovereign, but rather
(especially, perhaps, in the United States) as a functionary exercising
power as part of a complex political system - a system characterised
less by centralisation and delegation than by a network of law¬
making and law-applying jurisdictions offering considerable leeway
to many judicial decision-makers. On the basis of such suppositions
it makes sense to ask why legal language is expressed in forms
which often obscure policy choices and present them as technical
issues in the elaboration of legal logic. Requiring legal words to
‘pay up in the currency of fact’ then means requiring legal doctrine
to reveal its politics on its face. And the dramatic, if philosophically
clumsy, way in which the demand is made is perhaps a reflection
of how urgent it seemed to many leading American lawyers in
the early and mid-1930s that courts, as political agencies, should

be seen to act as responsible political agencies, providing reasoned,
intelligible policy-grounds for decisions with significant policy-
impact on American society.
At another level, what is in issue is a matter much stressed by
members of the recent Critical Legal Studies movement - one of
the modern descendants of realism to be considered later in this
chapter. Cohen’s discussion highlights the aspect of language and
thought (especially legal language and thought) which critical legal
scholars term reification (see e.g. Gabel 1980). Legal ideas seem
to take on a life of their own. They appear reified - ‘thing-like’,
and are treated as having a reality distinct from the social, political
or other functions which first gave them life and meaning. Hence
legal reasoning becomes a kind of mystification. It becomes possible
to theorise about the meaning of ‘corporate personality’, ‘title’ or
‘contract’ without considering as a central matter the policy,
functions or settled practices which these concepts reflect, or, at
least, once reflected in their origins.
Realism and Normative Legal Theory
Beyond a certain point, quickly reached, it becomes

counterproductive to generalise about American legal realism. One
of its most prominent figures, Karl Llewellyn, then a professor
at Columbia University, declared in 1931: ‘There is no school of
realists. There is no likelihood that there will be such a school.
There is no group with an official or accepted, or even with an
emerging creed. . . There is, however, a movement in thought and
work about law’ (Llewellyn 1931a: 53,54). Llewellyn himself claimed
to have introduced the term ‘realistic jurisprudence’ into the modern
legal literature in 1930 (Llewellyn 1930a; 1960: 512), and asserted
three decades later that realism had always been merely a method
or technology, not a legal philosophy. It embraced diverse work
linked only by the vague injunctions ‘see it fresh’, ‘see it as it works’
(Llewellyn 1960: 509-10).
Llewellyn’s 1931 defence of realism against Roscoe Pound (cf.
Pound 1931) and other critics summarised the realists’ ‘common
points of departure’ as (i) a conception of law in flux, and of judicial
creation of law; (ii) a conception of law as a means to an end,
and not an end in itself; (iii) a conception of society in flux and
of the need to re-examine law to keep it up to date with social
need; (iv) temporary separation of study of law as it is from
speculation as to what it should (ethically) be; (v) ‘distrust of
traditional legal rules and concepts insofar as they purport to

describe what either courts or people are actually doing’; (vi) distrust
of the idea that rules as expressed in the form of legal doctrine
‘are the heavily operative factor in producing court decisions’; (vii)
‘belief in the worthwhileness of grouping cases and legal situations
into narrower categories than has been the practice in the past’;
(viii) insistence on evaluating law in terms of its effects and on
the importance of trying to discover these effects; and (ix) insistence
on ‘sustained and programmatic attack’ on legal problems in these
various ways (Llewellyn 1931a: 55-7).
Despite the vagueness of several components of this list, it is
useful as indicating not only important preoccupations of Llewellyn
himself, to which special attention will be devoted in the following
pages, but as suggesting the divergent paths realist scholarship could
take and the resulting possibility that different realist approaches
could have differing relationships with normative legal theory, the
concern of this book. If normative legal theory is theory attempting
to explain the nature of law as a structure of legal ideas or legal
doctrine - that is, in terms of the unity, autonomy, rationality,
moral justification or systematic character of legal ideas or doctrine
- it might appear that legal realism would necessarily deny the
whole project of normative legal theory. In some of realism’s most
radical forms this would seem to be the case: law is to be considered
in terms of behaviour and not doctrine. Item (viii) on Llewellyn’s
list indicates the realist concern with law’s effects. Indeed, some
legal realists concerned to examine seriously the social and economic
effects of particular laws and legal institutions (for example Charles
Clark on civil and criminal procedure; William Douglas on business
failures and bankruptcy; and especially Underhill Moore on banking
law and practice) did take very seriously a social science model
of legal scholarship in which doctrinal analysis sometimes appeared
relatively insignificant beside ‘fact research’ on the behaviour of
lawyers and laymen.
Nevertheless, as J. H. Schlegel has shown, this serious activity
of legal realists in conducting empirical research on law as a cluster
of governmental activities and social and economic practices was
a relatively shortlived matter and very much a minority concern
(Schlegel 1979; 1980). For those realists most sympathetic to social
science, research on legal institutions and practices^came to be seen
(with Moore perhaps remaining the only significant exception: see
Schlegel 1980) as an aid to realistic policy analysis, to provide
guidance and rational justification for legal doctrine. It would not
displace lawyers’ practical concerns with systematic doctrinal
analysis and the rational development of legal thought but would
bring those concerns into appropriate relationship with policy

debate and pressing social need. This entailed a recognition that
policy as an essential component of law imported social, economic
and political concerns into any realistic analysis. But it did not
necessarily lead to a commitment to what was called in Chapter
1 empirical legal theory - theory concerned to provide systematic
explanation of the character of legal doctrine and institutions in
general in terms of historical and social conditions. Policy-oriented
realism suggested the inadequacy, for any realistic understanding
of law, of all orthodox forms of normative legal theory, but not
necessarily their replacement with any other coherent theoretical
view of law.
At the same time, items (v) and (vi) on Llewellyn’s list,
representing what among British legal scholars, at least, are often
seen as the core propositions of realist thought, suggest either a
radical challenge to the whole enterprise of normative legal theory
or, at least, a significant attack on the approaches to it which have
been the concern of most previous chapters of this book. They
suggest a greatly reduced significance of legal doctrine and its
analysis as a basis for any serious understanding of the nature
of law. Item (v) foreshadows Cohen’s concern with the ‘unreality’
of legal concepts and implies that doctrine may provide little help
in a realist enterprise concerned with explaining or describing law
as socially significant practices. Item (vi) suggests legal doctrine’s
limited relevance for the prediction of behaviour - especially in
predicting how judges will decide cases, not just in recognised ‘hard
cases’ but even when they purport to be following or bound by
established legal rules or precedents.
These elements of the realist outlook suggest not merely the need
to supplement normative, doctrinal inquiries about law with reliable
data about law’s effects, but the apparently limited relevance of
doctrine for an understanding of judicial practice or of social order.
Thus, elsewhere, Llewellyn (1930a) contrasts ‘paper’ rules (such
as those expressed in judicial opinions, statutes and law books)
with ‘real’ rules (the actual patterns of decision by courts; what
judges do as a matter of regular practice, as opposed to the doctrinal
rationalisation of their decisions). ‘One seeks the real practice on
the subject, by study of how the cases do in fact eventuate. One
seeks to determine how far the paper rule is real, how far merely
paper’ (1930a: 24). Llewellyn claims that, looking at the matter
in realistic, behavioural terms, judges can be seen to have numerous
opportunities, at least in the higher levels of judicial systems in
appeal courts, to narrow or extend, apply or distinguish, restate
or rephrase precedent and apparently established rules. The
significance of legal doctrine and its analysis as a basis for

understanding law is thus seriously put in issue.
An explicit, central concern with predictability of judicial
decisions, which is a pervasive theme in much of Llewellyn’ work
and in many other realist writings, is not generally found in the
theoretical writings considered earlier in this book. The theme is
often traced to an 1897 speech in Boston by Oliver Wendell Holmes,
later an Associate Justice of the United States Supreme Court and,
in Llewellyn’s (1931b: 103) words, the man ‘from whom we [realists]
all derive’. Holmes polemically declared: ‘The prophecies of what
the courts will do in fact, and nothing more pretentious, are what
I mean by the law’ (Holmes 1897: 461) and explained this as the
realistic standpoint of a ‘bad man’ who cares nothing for ethical
rules but merely wants to know what, if any, consequences will
follow from law for him.
Holmes’ ‘bad man’ standpoint was a useful one for deflating
legal rhetoric and focussing on practical outcomes of law but it
should not mislead a student of legal realism into thinking that
the focus of concern is with lay rather than professional views
of law, or that ultimately the focus on predictability suggests
concerns any different from those which have been seen in earlier
chapters as underpinning the development of normative legal theory.
The predictability of judicial decisions sought by Holmes’ realist
followers is generally that required by professional lawyers: first,
in order to be able to interpret - and so, to a reasonable extent,
control - judicial development of law; and, secondly, so as to be
able to claim convincingly to possess a body of systematic legal
professional knowledge capable of providing reliable, practical
guidance on the legal consequences of specific situations and
transactions. The concern here as with other theory discussed in
this book is the problem of convincingly maintaining a claim to
a secure corpus of distinct professional knowledge in a situation
in which law threatens to dissolve away into no more than the
exercise of governmental discretions.
Llewellyn’s concept of paper rules emphasises that analysis of
legal doctrine could not produce knowledge of law without
corresponding analysis of judicial behaviour. At no point, however,
does Llewellyn deny that rules or other elements of legal doctrine
are important matters for analysis. The essay in which paper rules
are put in their place also contains the statement ‘that I feel strongly
the unwisdom, when turning the spotlight on behaviour, of throwing
overboard emphasis on rules, concepts, ideology, and ideological
stereotypes or patterns. . . a jurisprudence which was practically
workable could not have been built in terms of them if they had
not contained a goodly core of truth and sense’ (Llewellyn 1930a:

37). This statement alone should invalidate the still common
caricature of Llewellyn as a behaviouralist denying the importance
of legal doctrine. But the threat here posed to normative legal theory
is the equally forceful assertion that no reliable knowledge of law
can come from examination of doctrine alone - as if it constituted
or reflected the reality of law as practical activity.
Some realists, however, notably Jerome Frank, appeared virtually
to abandon concern with legal doctrine in some of their theoretical
writings. While Llewellyn’s early writings emphasised behavioural
factors which produced uncertainty and unpredictability in the way
appeal courts applied rules and precedents, Frank found a more
fundamental source of uncertainty in trial courts’ fact-finding
processes. Declaring himself a ‘fact sceptic’ in contrast to the ‘rule
sceptics’ such as Llewellyn (Frank 1930: x-xi), he asserted that
the rule sceptics’ focus on appeal courts’ interpretations of legal
doctrine blinded them to the more basic uncertainties arising in
trial courts’ ascertainment of facts. The fallibility of witnesses, the
prejudices or preconceptions of judges or jurors, the relative
persuasiveness of counsel, and numerous other aspects of the
courtroom environment made the process of fact-finding
unscientific and unpredictable, with the result that unpredictability
affected the establishment of material facts even before the trial
court came to apply rules of law to them. In such circumstances
appeal courts could generally do little to correct this fundamental
source of unpredictability (Frank 1949: ch 3).
Frank’s frequent claims that certainty was impossible to achieve
in the judicial process were accompanied by the assertion that the
childish quest for certainty should be replaced with an explicit
concern for a clearly articulated justice of outcomes (e.g. Frank:
1930: xi). Yet Frank’s legal philosophy seems to suppose that such
justice can exist in isolation from certainty, and to ignore the
possibility that the former might be no less elusive than the latter.
Given these views it seems somewhat amazing that he became in
1941, after a series of significant governmental positions during
the New Deal era of the 1930s, a judge of the United States Second
Circuit. The appointment was likened in some quarters to the
appointment of a heretic to serve as a bishop in the Roman Catholic
Church (White 1976b: 275).
Thus, at least the following contrasting types of realist thought
in relation to normative legal theory can be identified. The first,
which could be labelled policy-science realism, emphasises ‘fact
research’ (Nussbaum 1940) - empirical social scientific or
behavioural studies - to inform and supplement doctrinal analysis
and puts a related stress on the need to guide doctrinal development

with a more sophisticated understanding of policy matters. Such
an approach does not necessarily deny the utility of normative
legal analysis or of normative legal theory as long as policy can
be treated as something objectively recognisable or discoverable
and incorporated into legal doctrine as a set of ideas susceptible
(like rules) to rational interpretation and elaboration. A second
type of realist orientation (which can be termed radical scepticism)
is profoundly dubious about the value of orthodox doctrinal analysis
and suggests that this kind of analysis offers no more than
rationalisations or mystifications of legal reality as embodied in
the actual practices of officials such as judges and other participants
in legal processes. In this view judicial decisions or other legal
outcomes may appear fundamentally unpredictable because
grounded in unfathomable, or at least unfathomed, personality
characteristics or preferences of the decision-maker; or they may
appear intelligible only by treating them as political decisions
uncontrolled by normative structures of legal doctrine or
institutional or procedural constraints. Thirdly, a ‘moderate’
position, which might be called constructive doctrinal realism, does
not deny the significance of analysis of legal doctrine in gaining
an understanding of the nature of legal reality. But it asserts the
hopeless inadequacy of any such understanding which does not
take account of the behavioural factors which determine how and
to what extent legal doctrine is significant in the production of
judicial and other official decisions.
The crucial variable by which I distinguish these three realist
orientations here is their attitude to normative legal analysis; that
is, to the rational interpretation of legal doctrine. Policy-science
realist writing could adopt any of a variety of positions: for example,
that legal doctrine is socially insignificant or merely uninteresting,
or indeterminate in its effects and therefore of unknown
instrumental significance, or significant but harmful in its effects,
or significant but created and applied in ignorance of its specific
social consequences. On the basis of any of these positions the
importance of social scientific ‘fact research’ on law could be
asserted. By contrast, radical sceptical realism is directly concerned
with doctrine but in a negative, sceptical way, denying explicitly
the traditional claims made for doctrinal rationality and its
significance. Its concern is to demystify or debunk legal doctrine
and traditional forms of legal reasoning. Law in this radical view
is, in essence, not doctrine but policy, politics, personal preferences
of powerful decision-makers - or (ideally) justice.
Finally, from what I characterise as a constructive doctrinal realist
position, doctrine is viewed as important and (at least potentially)

socially valuable yet its character is asserted to be greatly
misunderstood by orthodox doctrinal analyses and normative legal
theory. New ways should be found to make normative analysis
of law realistic by examining the institutional settings and social,
economic and political contexts in which legal doctrine operates
and is developed and by reorganising or reinterpreting doctrine
in the light of these inquiries. It should be noted, also, that policy-
science realism is compatible with either of the other two realist
orientations, but, as noted earlier, serious social scientific policy
research was always very much a minority pursuit among realist
legal scholars. On the other hand, radical sceptical realism and
constructive doctrinal realism are plainly mutually incompatible,
although some realists might be considered to have wavered between
the two; and some may have matured (or, from another viewpoint,
weakened) from a radical to a constructive outlook over time.
In the remaining sections of this chapter aspects of the
development of these three positions in realist and post-realist
American legal thought will be traced. In important respects the
third (constructive doctrinal) position (especially represented by
the evolution of Llewellyn’s jurisprudence) offers the most direct
and sustained engagement with orthodox forms of normative theory
(neither polemically dismissing it in favour of purely behavioural
inquiries as Frank’s fact scepticism sometimes seemed to advocate,
nor merely supplementing or elaborating it through policy analysis
of the actual or potential content of legal doctrine). Consequently,
while the policy-science and radical sceptic approaches are, as will
appear, the foundation of important modern attempts in legal
scholarship to come to terms with the legacy of realist thought
constructive doctrinal realism, exemplified in Llewellyn’s work has
generally been treated, by serious scholars of realism concerned
with legal theory, as the variety of realist thought offering the most
direct and productive confrontation with orthodox forms of
normative legal theory.
Llewellyn s Constructive Doctrinal Realism
Hart (1961: 133) refers to ‘rule scepticism’ as ‘the claim that talk
of rules is a myth, cloaking the truth that law consists simply of
the decisions of courts and the prediction of them’. If, as seems
Sethis is intended to refer to Llewellyn’s theories (cf. Hart
1961: 232, 250; Twining 1968: 6), it is a serious distortion, yet
typical of the misunderstandings of realism often found, at least
until recently, among analytical jurists in Britain. Llewellyn

expressed regret that a single sentence (‘What these officials do
about disputes is, to my mind, the law itself) in one of his early
works, taken out of context, ‘was enough to characterise a whole
man and his whole position’ for many critics of realism3. As noted
earlier, Llewellyn’s belittling of paper rules in 1930 was accompanied
by a firm insistence in the same essay (Llewellyn 1930a) that an
emphasis on legal behaviour certainly did not make the study of
legal doctrine unimportant. In Llewellyn’s view, however, a
sensitivity to what courts are doing (decisions and their practical
consequences), as well as to the way judges rationalise their actions
through legal rules and principles, ought to make legal scholars
view doctrine much more cautiously and critically.
Llewellyn’s writing does not usually show the kind of cynicism
about orthodox conceptual thought in law which is suggested by
Felix Cohen’s essay on the ‘transcendental nonsense’ of legal ideas,
or Thurman Arnold’s analogies between legal reasoning and
theological debate (Arnold 1935: 59-67), or Frank’s deliberately
provocative talk of ‘modern legal magic’ (Frank 1949: chs 4 and
5). Instead, Llewellyn consistently emphasises the need to narrow
the scope of legal concepts, using more specific, particularised
categories in doctrinal classification which reflect actual distinctions
patterned injudicial practice but not necessarily recognised in paper
rules and text-book concepts (Llewellyn 1930a: 27-8; 1931a: 56-
7).
Thus, Llewellyn’s influential Cases and Materials on the Law of
Sales, first published in 1930, breaks down the concept of ‘title’
by reference to doctrinal categories reflecting specific stages at which
distinct sales issues arise. And he makes explicit the way behavioural
study should be integrated with study of the paper rules: ‘study
of the actual use of the title concept by the courts in contracts
for future sale results in the conclusion that the allocation of title
is in fact determined repeatedly by features of the contract which
serve equally well to solve the problem without recourse to the
title concept itself (Llewellyn 1930b: xiv; cf. Wiseman 1987: 476-
7). This does not mean that the ‘paper’ legal concept is to be
discarded in a behavioural view but that ‘the student can come
to see title for what it really is: a concept historically conditioning
the etiquette of sales discussion; a wholly unnecessary major premise
introduced as a matter of inertia or of etiquette in perhaps half
the cases; in other cases, a convenient bridge for moving from
3 See Llewellyn 1951: 8-10, 12; 1960: 511; Twining 1973: 148-50; cf. Hart
1977: 124.
one aspect of the contract to some other in regard to which the

contract is not equally explicit; lastly, a concept so hallowed by
tradition that it must be reckoned with as sometimes obscuring
a sensible solution of the case in hand. To get along without the
title concept, to get along without learning to use it, reason with
it, argue from it is impossible’ but to treat it in isolation from
its actual practical use (or non-use) ‘is to lose perspective on modern
developments’ (Llewellyn 1930b: xiv-xv). This goes beyond Hart’s
insistence that concepts are to be understood in their legal linguistic
context. Llewellyn requires that concepts be interpreted not just
as elements in specific statements made by judges or lawyers. They
are to be understood in relation to the outcomes which they may
aid, or obstruct. Doctrine may constitute a practical problem, no
less than a solution, in official decision-making.
The general issue of the relationship between judging as a problem
of efficient administrative behaviour and legal doctrine as an ideal
structure of rational guidance for conduct is the central focus of
much of Llewellyn’s most important work both as a legal theorist
and as an eminent American commercial lawyer, who was primarily
responsible for determining the original shape and structure of the
United States Uniform Commercial Code which now provides the
general framework for much American commercial law4.
Llewellyn’s method ‘is to take accepted doctrine, and check its
words against its results. . . If a doctrine [legal rule, principle,
concept] does not, in and by itself do all that it purports to do,
then what else is at work helping the doctrine out’ (1940: 135).
Thus, by 1940, at least, Llewellyn’s consistent emphasis is not (as
was Frank’s) on the factors promoting uncertainty and
unpredictability in law, but on those producing a remarkable
predictability of legal outcomes, despite the ‘leeways of precedent’,
the indeterminacy of doctrine or its inability to remove the human
and subjective character of judging (cf. Frank 1949: 31; Llewellyn
1960: 4, 45). Equally, by this time, Llewellyn has the germ of an
answer as to what else is at work helping doctrine out. ‘There
is the tradition of the judge’s craft, stabilising the work of our
judges, and guiding it; and there are the ideals of that craft, which
also stabilise and guide’ (1940: 135). Llewellyn’s behavioural
perspective on law becomes a perspective on courts and judiciaries
(and other components of the legal world) as institutions (Llewellyn
1941; cf. Twining 1973: 176-7) - stable patterns and structures of
behaviour operating within a set of normative expectations about,
for example, the right way to do the job of judging, the right way
4 See generally Wiseman 1987, and literature cited therein.

to organise a court and a hearing, the right way to read precedent

cases, the right way to reach and justify decisions.
In the writings of the last two decades of Llewellyn’s career,
and especially in his richly imaginative book The Common Law
Tradition published just over a year before his death in 1962, this
institutional view of judging is elaborated in depth. Llewellyn gained
very important insights into the social and institutional conditions
under which judicial craftsmanship could be developed through
his collaboration in the 1930s and 1940s with the anthropologist
E. A. Hoebel in studying social control and dispute resolution
processes in several native American tribes. Of these studies the
most important in its general influence on Llewellyn’s theoretical
ideas about legal institutions was that of the Cheyenne Indians
(Llewellyn and Hoebel 1941; Twining 1973: ch 8). Though most
of the fieldwork was done by Hoebel, Llewellyn developed a very
strong sympathy with the communally based judicial wisdom which
he saw reflected in the case histories of problem solving in traditional
Cheyenne life collected by the researchers. The study of a small
scale society in its past glory5 was of profound concern to Llewellyn,
otherwise devoting much of his time as an American commercial
lawyer to intricate problems of regulation in one of the world’s
most complex and advanced societies.
In what he and Hoebel portrayed as well-ordered traditional
Cheyenne society, Llewellyn thought he saw the simple essence
of juristic method - not as the rational organisation and application
of legal doctrine but as performance of a social task of good
government: ‘the search for serviceable forms and devices. . . the
quest for their skilful use. . . the seeking to keep vital and vigorous
under any form, any formula, any “rule”, its living reason, its
principle’ (Llewellyn and Hoebel 1941: 307). For Llewellyn, doctrine
is the product of a certain way of working. As such it reflects
a particular behavioural style pervasive within the legal institutions
of the time and place. ‘Juristic method is not dissimilar in nature
from style in art - an extremely complex and subtle set of somethings
which affect in varying degree a whole range of craftsmen at once,
yet allow huge divergencies. . .’ (Llewellyn and Hoebel 1941: 308).
And because the style of working and its social context is more
fundamental than the doctrine to which it gives rise, legal doctrine
alone does not express the whole of legal life or even its most
fundamental elements.
5 Much of the case material consisted of informants’ recollections of events

and practices from at least half a century earlier.
Period-Style
In The Common Law Tradition, published nearly two decades after

the Cheyenne study, Llewellyn develops in detail, and specifically
in relation to American appellate courts, the idea of a behavioural
style of judging pervasive among judiciaries in a certain time and
place. ‘It is the general and pervasive manner, over the country
at large, at any given time, of going about the job, the general
outlook, the ways of professional knowhow, the kind of thing the
men of law are sensitive to and strive for, the tone and flavour
of the working and of the results. It is well described as a “period-
style”’(Llewellyn 1960: 36; and see Llewellyn 1942). The importance
of this idea in relation to the critique of orthodox forms of normative
legal theory is that it makes possible for Llewellyn (and justifies
as absolutely essential) a fusion of behavioural analysis of judicial
work and normative analysis of legal doctrine (Llewellyn 1941).
Doctrine is the expression and reflection of a style of working -
not the cause of it but the consequence; it makes no sense to try
to understand law as a structure of ideas without recognising and
analysing the institutional settings and wider social and professional
environments which, in determining the general period-style of the
judiciary, shape the form and content of those ideas. At the same
time, period-style is revealed most clearly in the judicial reasoning
preserved in law reports. Indeed, The Common Law Tradition relies
on the examination ol vast numbers of cases from many American
state jurisdictions to plot changes in period-style over time.
Llewellyn identifies two contrasting period-styles. Grand Style
judging (or the Style of Reason) treats precedents as welcome and
very persuasive but tests them against (i) the reputation of the
opinion-writing judge, (ii) principle, which is understood as ‘no
mere verbal tool for bringing large-scale order into the rules’ but
‘a broad generalisation which must yield patent sense as well as
order , and (iii) policy ‘in terms of prospective consequences of
the rule under consideration’ (1960: 36). Grand Style allows ‘on¬
going renovation of doctrine’ but (at its best) with no hint of
revolution in the law or even of campaigning reform. It involves
a constant quest for the best law for the future but the ‘best law
is to be built on and out of what the past can offer; the quest
consists in a constant re-examination and reworking of a heritage’
(I960: 36). Parallels with Dworkin’s description of appropriate
judicial methods (see Chapter 6) are clear, and it is unsurprising
that Llewellyn explicitly associates Grand Style with what he sees
as the ideal tradition of common law judging. But, unlike Dworkin,
Llewellyn does not characterise this judicial approach as something
inbuilt in the value system and doctrinal traditions of Anglo-

American law (as something internal to law as a system of ideas)
but portrays it as a style which waxes and wanes in American
legal history as a result of complex historical causes. These operate
as institutional pressures on behaviour which (presumably) demand
sociological explanation.
In contrast to Grand Style stands Formal (or Authoritarian)
Style, which Llewellyn describes as ‘the orthodox ideology’ in the
American context since the late nineteenth century (1960: 38),
though displaced to some extent by a renaissance of Grand Style
from the early decades of the twentieth century. In Formal Style
‘the rules of law are to decide the cases; policy is for the legislature,
not for the courts, and so is change even in pure common law.
Opinions run in deductive form with an air or expression of single-
line inevitability. “Principle” [here meaning something quite
different from what it means in Grand Style judging] is a
generalisation producing order which can and should be used to
prune away those “anomalous” cases or rules which do not fit,
such cases or rules having no function except, in places where the
supposed “principle” does not work well, to accomplish sense -
but sense is no official concern of a formal-style court’ (1960: 38).
Much of The Common Law Tradition is concerned with plotting
the historical movement in actual judicial practice in a variety of
American state jurisdictions between these two styles. Later writers
have challenged Llewellyn’s periodisation and offered more
sophisticated accounts of the processes of transition between broad
styles of legal thought (e.g. Horwitz 1977). What is important here,
however, in examining the progress of debates in normative legal
theory in the Anglo-American context is that Llewellyn’s writings
not only express realism’s behavioural critique of ‘pure’ doctrinal
analysis in law (and of normative legal theory presupposing the
possibility of explaining law as a system of ideas) but suggest means
of viewing law behaviourally (or institutionally) in such a way as
to clarify and enhance analysis of doctrine. Just as Stanley Fish’s
critique of Dworkin6 suggests the need to examine sociologically
the nature of the actual community of legal interpreters (primarily
judges) and the forces at work promoting or disrupting conformity
and consensus within it, Llewellyn’s identification of the historical
importance of specific period-styles among particular judiciaries
points towards the need for empirical inquiry into social, economic,
6 See Chapter 6, above, pp 179-80.

political and professional conditions which give rise to the

dominance of particular, pervasive judicial styles7.
The institutional orientation of Llewellyn’s study is further
reinforced by his identification elsewhere in The Common Law
Tradition of a range of ‘steadying factors’ which, together with
the period-style of the time and place, promote consistency and
predictability in appeal court decision-making. These include the
common training and experience of judges in a professional legal
environment, the constraints of group decision-making and of the
professional environment as a whole, shared judicial values, the
public character of the judicial office, and a range of procedural
factors limiting the variables to be considered in the decision-making
process. Thus, doctrine is to be understood, and can only be
understood, in its institutional setting. Normative legal theory,
insofar as it denies the need for systematic behavioural analysis,
misrepresents the character of doctrine and prevents realistic
understanding of the nature of law. In the light of all this, some
analytical jurists’ caricature of legal realism as uniformly denying
the fundamental significance of rules and other elements of legal
doctrine appears as no more than a smokescreen obscuring the
need to confront constructive doctrinal realism.
The Recapture of Grand Style
Llewellyn sought to make his version of realism a practical

contribution to better, more predictable judicial practice. In his
writings, Grand Style judging is advocated as far more conducive
to certainty and predictability in law than Formal Style because,
unlike the latter, it reveals the instrumental purposes of doctrine
within judicial reasoning itself. The Grand Style invocation of
principle and policy makes explicit what a particular newly
formulated element of legal doctrine is for. By contrast, the air
of ‘single-line inevitability’ conveyed by Formal Style deductive
reasoning is likely to obscure reasons for doctrinal developments
with the result that the real motivations behind judicial decisions
remain hidden or ambiguous and so likely paths of judicial
development of doctrine are harder to predict. Grand Style is more
likely to produce ‘rules which make sense on their face, and which
Llewellyn describes (1960: 24-5), for example, the ‘single right answer’
outlook (now strongly associated with Dworkin’s legal philosophy: see
above, p. 171) as one such matter of judicial style to be considered
sociologically.
can be understood and reasonably well applied even by mediocre

men’ (Llewellyn 1960: 38).
There is much room for debate about the claimed virtues of
Grand Style. Behind these positions, however, lies Llewellyn’s
conviction that doctrine cannot, and should not attempt to control
judges, but should be framed to guide them (cf. 1931b: 110). A
creative and conscientious judge constrained by Formal Style
expectations may well seek to escape the limitations of deductive
logic by ingenious manipulation of the precedents, fine distinctions
and covert reinterpretations of established rules. Judges hamstrung
by rules which give no leeway to do justice are likely to behave
unpredictably (Llewellyn 1940: 144). The vital point is that the
effectively operating pressures for conformity in judging are not
produced primarily by rules but by the whole institutional
environment in which the job of judging is done. Doctrine, for
Llewellyn, should guide judges in appropriate directions while giving
them creative freedom within the constraints inherent in their role
as part of the judiciary as an institution.
Thus, Llewellyn’s drafts in the 1940s for what became the
American Uniform Commercial Code assumed that the Code would
provide a framework of concepts and principles by means of which
commercial law within the Code’s scope would be standardised.
But its provisions should be ‘purposive statements of principles
based on facts of commercial transactions and designed to guide
flexible decisionmaking’ (Wiseman 1987: 497). The aim would be
to provide doctrinal guidance easily intelligible in terms of the
purposes it was intended to serve (Twining 1973: 305). Courts would
be encouraged to develop the rules of the Code in the light of
these purposes. Lengthy ‘Official Comments’ in the Code would
elaborate its underlying reasons, purposes and policies as an aid
to judicial interpretation and application. Judges could not be forced
to reason in Grand Style but the means of doing so could be made
available to them in statutory form (Wiseman 1987: 498-502;
Twining 1973: 321-30). At the same time, the Code, in Llewellyn’s
view, had to embody the realist insistence that doctrinal concepts
and categories be made more functional by breaking them down
into less abstract and generalised ideas more representative of the
variety and complexities of practical conditions. Hence the Code
would incorporate ‘merchant rules’ expressing the better standards
and practices, understandings and needs of merchants (trade usage
could, for example, be assumed to provide the shared factual and
normative assumptions underlying a merchant transaction).
Equally, the Code would distinguish merchant from non-merchant
contexts; and it would provide for issues of mercantile fact arising
under the merchant provisions to be tried by a merchant tribunal

possessing expert knowledge of the field (Wiseman 1987: 503-4,
505). While important parts of Llewellyn’s scheme did not survive
the lengthy period of development of the Uniform Commercial
Code, his proposals are a clear example of the effort to make
constructive doctrinal realism serve practical professional needs for
a rational system of legal doctrine.
The Political Context of American Legal Realism
Why has realism in this and other forms had little impact on
normative legal theory in Britain, while it received, and still receives,
much attention in the United States? It is important to note, first,
that the idea of realism’s limited impact in Britain needs to be
qualified by recognition that post-realist developments in legal
theory, to be mentioned in the remaining sections of this chapter,
are having an increasingly powerful influence on legal thought on
both sides of the Atlantic. Is it merely a matter of a long delayed
reception of realist ideas in Britain, rather than dismissal of them?
Orthodox contextual explanations of American legal realism
encourage an image of it as a product of distinctive historical and
political conditions in the United States. It is seen as a consequence
of the extraordinary historical role of courts in American
government (Hart 1977: 124), and especially of a constitutional
framework allowing judicial review of the validity of legislation.
This emphasis on courts reflects a more general view of political
power as appropriately decentralised and dispersed; institutionally
through the federal system and the doctrine of separation of powers,
and geographically and culturally through the sheer practical
impossibility of imposing uniform solutions to all governmental
problems in a nation of such size and diversity.
More detailed analyses along the same lines seek to explain why
the realist movement arose in the early decades of the twentieth
century. It was a response to a crisis of ‘overload’ in legal doctrine
and the resultant inability of courts to operate a system of judicial
precedent on the traditional common law model. ‘Toward the end
of the nineteenth century the rate of acceleration in printed case
reports became nightmarish. Digests of all reported cases decided
Irom the institution of courts in the American colonies until 1896
- a period of over two hundred years - take up three shelves in
l,nLLarW Llbrary- Di§ests of cases decided since 1896 [and up to
I960] fill more than thirty shelves’ (Gilmore 1961: 1041). As Grant
Gilmore explains, not only were many more cases being decided
from the late nineteenth century as both the population and the
number of courts and state jurisdictions grew, but a higher
proportion of cases was being reported, especially as a result of
the establishment of the West National Reporter system in the 1870s.
When the number of reported cases ‘becomes like the number of
grains of sand on the beach’ a precedent system cannot work
(Gilmore 1961: 1041). And the problem in the American context
was exacerbated by the fact that most private law problems were
left to the individual states, and were left by the states to courts.
This now familiar explanation of the crisis which produced the
origins of American realism is usually supplemented, at least in
modern American histories, with a more specific political
explanation. Justice Oliver Wendell Holmes’ famous dissenting
opinions in the United States Supreme Court8 are typically seen
as a protest against the mindlessly mechanical legal logic of the
majority of the court at a time when (at the turn of the century)
American government was faced with immense problems of
adapting to social and economic change. What Pound saw as
‘mechanical jurisprudence (see Chapter 6) to be remedied by
legislative inspiration and a renewal of the traditional evolutionary
practice of common law judging, Holmes saw as judicial frustration
of the popular will for legal change by judges who imported their
own prejudices into their decisions under cover of legal logic. But
Holmes’ view was not realist in the sense of those legal realists
who adopted him as their mentor. While he claimed9 that courts
could operate objectively and leave the expression of policy
convictions to democratically elected legislators, the legal realists
tended to see courts as inevitably involved in policy decision. The
issue became what policies they promoted and how open they were
in admitting value preferences.
Thus, the orthodox story of legal realism sees its flowering as
a dominant legal theory in the 1930s as an almost inevitable
expression in legal thought of the political demands which gave
rise to Franklin Roosevelt’s ‘New Deal’ government in the same
period. These demands were for clear policy uniting all government
agencies to attack the fundamental social and economic crises of
the Depression era beginning with the Wall Street stock market
crash of 1929. Thus, for some writers, legal realism is essentially
the jurisprudential analogue of the New Deal (White 1972; Murphy
1972: ch 4). There is, undoubtedly, much truth in this. The urgent
need for new approaches to legal scholarship which would provide
8 Especially Lochner v New York (1905) 198 US 45, 75-6.

9 As shown clearly in his Lochner dissent.
guidance for ‘social planning and perspective’ to lift America from

‘the social and economic debacle’ was the theme of the 1932
presidential address to the Association of American Law Schools
(Harno 1932). Equally, the shrill political criticisms which realism
as a whole attracted from some extreme critics were exactly those
applied to the Roosevelt New Deal; it was held to exhibit totalitarian
or fascist tendencies and a contempt for the Rule of Law (cf. Purcell
1973: ch 9). Many leading realists were fervent supporters of, and
in several cases active partipants in, the governmental activities
of the New Deal (see e.g. Twining 1973: 58). In this regard, as
so often, the most arresting statement is Jerome Frank’s. In 1934
he described himself and other ‘experimental jurisprudes’ as ‘humble
servants to that master experimentalist, Franklin Roosevelt’ (quoted
in White 1976b: 275). Thus, the problem of justice as the aim of
judicial (and administrative) practice was solved for some realists
by a belief in the inherent correctness of certain policies or of
particular means of reaching them.
Two major conclusions follow if these kinds of explanations of
American realism are treated as comprehensive. First, realism is
essentially a parochial concern of American law and lawyers. Hence
it has little, if any, wider jurisprudential significance. Secondly,
realism was a response to legal and political crises which have
now passed. Gilmore (1961), for example, argues that various
developments helped to defuse the American legal crisis of precedent
‘overload’. Especially significant were the American Law Institute’s
systematic Restatements of common law doctrine, which were
widely relied upon by courts, certain changes in approaches to
precedent, to judicial interpretation of legislation and to legislative
drafting, the use of codification in important areas of American
law, and the federalisation of private law.
These orthodox explanations of realism are not wrong. But they
may not tell the whole story. First, the explanation in terms of
the special role of courts in American government makes it hard
to see why forms of legal realism developed independently in other
countries having very different judicial systems. As mentioned
earlier in this chapter, a form of legal realism developed in the
Scandinavian countries in the first half of the twentieth century.
At the turn of the century in Germany a movement known as
the ‘Free Law’ (Freirechtslehre) school, uniting legal practitioners
such as Ernst Fuchs and jurists such as Hermann Kantorowicz,
similarly stressed the indeterminacy of legal rules - taken alone
- as predictions of judicial decisions, the inevitably creative role
of the judge, and the importance of explicitly recognising and
responsibly developing this role - with its relative freedom from
doctrinal restraint - to meet the needs of the time. A major impetus

behind the Free Law movement seems to have been the perceived
excessive abstraction and formalism of the German Civil Code
which came into force in 1900 and which was seen as hampering
judicial resolution of pressing problems arising from rapid social
and economic change (see e.g. Nussbaum 1940: 187-8). In
Scandinavia, also, legal realism seems to have been popularised
in reaction to abstractions in legal reasoning and doctrine which
appeared socially irrelevant or failed to address policy demands
directly (Castberg 1955: 389-90).
Secondly, although there is much plausibility in Gilmore’s tracing
of American realism to the problem of precedent overload, it is
doubtful whether the problem has been largely solved, as he seems
to suggest, or that it can be regarded as uniquely American. It
seems more likely that the undoubtedly acute form of this problem
in the United States at a certain time (together with the major
political and social crises of the Depression era) highlighted in a
specially dramatic way a difficulty endemic to common law systems
in the twentieth century. This is the difficulty of interpreting and
justifying judicial decision-making in a context of increasing
governmental steering of social and economic life; a context in
which courts’ attitudes to problems of policy-making and policy-
implementation appear increasingly crucial.
Finally, to describe American legal realism as the jurisprudential
analogue of the New Deal ignores the fact that arguably its most
important theorist, Karl Llewellyn, was not a New Deal supporter
(Twining 1973: 125) and regarded the events and issues of the New
Deal as largely irrelevant to realism’s primary contributions to legal
analysis. The New Deal era was an ‘accident’ which ‘threw the
whole emerging line of inquiry off-centre’ and, if anything,
hampered its development (Llewellyn 1960: 14). For Llewellyn, at
least, realism was a response to dilemmas which long antedated
the New Deal and in no way disappeared with the passing of the
Roosevelt era.
What all of this suggests is that, while American legal realism
did become a major movement at a certain time as a response
to distinctively American legal, political and social circumstances,
it can also be seen as a particularly explicit, unrestrained expression
of much more general problems in the development of Western
law, which have remained unsolved in the forms of Anglo-American
normative legal theory discussed earlier in this book. At the heart
of those problems is the one which all attempts to portray law
as an integrated system of ideas have failed to hide - that of the
unrestrained power of the judge, or other legal decision-maker.
as a political actor. Various rationalisations have been offered but

none has really solved the problem. Modern positivist analytical
jurisprudence postulates a clear distinction between a ‘core’ and
‘penumbra’ of meaning of legal rules10. As long as the existence
of a core of indisputable meaning of legal doctrine could be accepted,
judicial decision-making could be seen to have at least some realm
distinct from the expression of personal judicial values or
preferences, or from policy-making judicial legislative activity. But
it was noted in Chapter 4 that this claim could be maintained
only through sociological inquiries into the nature of the judicial
role which Hart’s analytical jurisprudence was not prepared to
undertake. Much other modern theory discussed in this book has
tried to find the solution to the problem of explaining the judicial
role within the confines of normative legal theory by postulating
an overarching structure of legal values within which judicial
decisions in hard cases are to be made. But, as has been argued
in previous chapters, it may require a leap of faith to recognise
these values and see them controlling actual judicial behaviour.
Legal realism has been marginalised in Britain partly because
much of its literature does, indeed, reflect a distinctively American
context and distinctively American problems while making little
serious effort to address its arguments to wider issues and theoretical
debates about Anglo-American law. But its most rigorous and least
parochial writings have performed the invaluable service of
demonstrating the problematic character of any attempt by
normative legal theory to explain the character of law as doctrine
without serious empirical examination of the social and political
conditions within which that doctrine is developed and invoked.
Post-Realist Policy-Science
Llewellyn’s work offers perhaps the most instructive form of

constructive doctrinal realism. The critique of normative legal
theory which it implies will be considered further in the last chapter
of this book. It remains to consider briefly the way in which the
other two types of realism - which I call its policy-science and
radical sceptical forms — have evolved in recent legal scholarship.
Las-dougalism
As noted earlier, policy-science realism is compatible with a variety

10
See Chapter 4, above, pp. 105-6.
of attitudes to legal doctrine. In the 1940s, the Yale law professor

Myres McDougal and his political scientist colleague Harold
Lasswell began a long term collaboration founded in the conviction
that the discipline of law should become a policy science - a
technology for achieving social goals and realising democratic values
in practice through the use of legal doctrine and institutions. In
this way legal realism’s critique of traditional legal analysis for
failing to see doctrinal logic’s subservience to considerations of
policy could be made constructive. It could become a prescription
for realistic legal education, scholarship and advocacy in which
the rational elaboration of techniques of policy-formulation and
implementation would be central (Lasswell and McDougal 1943).
‘Las-dougalism’ (cf. Schlegel 1979: 461) has been appropriately
described by William Twining as ‘a combination of utilitarianism
and Freudian psychology, supplemented by some of the insights
of American social science, and encased in an elaborate terminology’
(Twining 1973: 385). Perhaps partly because of the last of these
elements, McDougal and Lasswell’s policy-science of law has had
little enduring or widespread influence, except among some scholars
of international law. Probably a more important reason for its
limited impact is that it did not really address the practical problems
of doctrinal rationality and predictability which realism had
emphasised, but rather tried to persuade lawyers to avoid them
by adopting new and unfamiliar modes of analysis.
Law and Society

Much more important in its scale and influence is the ‘law and
society’ movement which developed in the United States and other
countries from the 1960s as an multidisciplinary movement
committed to social scientific research on law. In its broadest sense
this is a modern phase in the continuing international development
of sociology of law - sociologically informed empirical and
theoretical research on law - which has a long history and a rich
and varied theoretical tradition (see generally Cotterrell 1984). But,
in the context of this chapter’s concerns, an important unifying
element in the early development of law and society researches
was their (relatively atheoretical) concern with legal ‘impact’ or
effectiveness; that is, with studies of the effects on behaviour of
particular legal rules or other doctrine, or the effects of legal
institutions in practice. This kind of ‘impact’ study of law in action
is a direct successor of the pioneer empirical researches of legal
realists such as Underhill Moore, Charles Clark and William
Douglas in the 1920s and 1930s. Law and society research in this
form - not directly concerned with the nature of legal doctrine

in general or with engaging with general theories of the nature
of law - has little direct bearing on the concerns of normative
legal theory. Thus, much law and society research has posed no
challenge to this theory. It has restricted its concern to behaviour
and left the theoretical analysis of the nature of legal doctrine to
legal philosophers. Until relatively recently, the long tradition in
the sociology of law of what I call empirical legal theory - concerned
to explain theoretically the nature of law as doctrine and behaviour
in historical and social context — has not been a central concern
for law and society studies, at least in the homeland of American
realism.
Economic Analysis of Law
Finally, among policy-science realism’s successor movements it is

important to mention the recent rapid development of economic
analysis of law; a form of legal scholarship now widely established
and recognised in American law schools and of increasing
significance in the British academic legal world. That the application
to law of the theories and methods of economics has achieved
a significant penetration of the law school world is a tribute to
the versatility of economic analysis. Thus, techniques of positive
(that is, essentially explanatory rather than prescriptive) economic
analysis can be used in legal impact studies by considering law’s
contribution to shaping the behaviour choices which rational, self-
interested individuals are likely to make in particular situations.
For example, to the extent that crime is an option rationally chosen
by the criminal, economic analysis can ask in what circumstances
law can provide disincentives which make the choice for criminal
behaviour no longer a rational one (weighing up likely benefits
and detriments) for the potential offender.
Beyond this kind of inquiry, normative (or welfare) economics
assumes a goal of allocative efficiency - optimum allocation of
resources for the maximum overall benefit of those amongst whom
the allocation is to be made - and seeks to identify situations of
inefficiency and prescribe means of correcting them. Thus, legal
doctrine can be examined for its contribution to this kind of
allocation. Much literature considers the allocative efficiency of
liability rules in tort law and a variety of other doctrinal fields.
In this kind of writing, policy analysis from a social scientific field
is being used to supplement established types of justifications in
legal logic for existing doctrine. Thus, economic analysis appears
exceptionally useful in doctrinal analysis. It does not undermine
legal discourse. It provides a parallel commentary of justification

or critique which seems to provide a powerful answer to realist
claims about the inadequacy of doctrinal rationality. Economics
is invoked to provide the rationality which realism found wanting.
The high point of this is probably found in the descriptive theory
that the implicit goal of judicially developed common law doctrine
is to promote an efficient allocation of resources in society. This
is a kind of ‘invisible hand’ theory insofar as it claims that, whether
or not the judges knew what they were doing in terms of economic
rationality in developing common law rules, the case-by-case
evolution of common law has in fact led to outcomes with a high
degree of allocative efficiency (Posner 1972). Thus, a kind of
unstated and often unrecognised economic rationality is claimed
to lie beneath the rationality of legal logic. The invisible hand of
economic reality is portrayed as guiding judicial development of
common law rules. This kind of analysis has some affinities with
constructive doctrinal realism insofar as it seeks to supplement and
enhance ordinary doctrinal analysis by reinterpreting it in a wider
social scientific context. But economic analysis of law is probably,
in general, better seen as a kind of modern policy-science approach
insofar as much of it seems little concerned to illuminate through
behavioural study the way doctrine is actually developed, interpreted
and applied in legal contexts. The logic of economic analysis is
considered to explain important aspects of the way law is or should
be, irrespective of empirical study of the range of determinants
of judicial behaviour in relation to doctrine.
Economic analysis of law has attracted strong criticism: for
example, that its emphasis on cost-benefit efficiency is inappropriate
or inadequate in explaining or evaluating legal policy; that its
postulates of rational action are too unreal to provide the basis
of explanatory models or theories; that its adherents tend to claim
far more significance for economic analysis than is justified by
its narrow inquiries; that while claiming to be empirical it does
not actually examine people’s preferences but deduces them from
premises of rationality which sometimes lead to tautologies; that
it is biased towards market solutions and unable to attach sufficient
weight to non-market relationships. And the matter is complicated
by the fact that several competing schools of economic analysis
of law exist. But the merits of this burgeoning movement need
not be considered here. What is important is to recognise that
in the United States, and to an increasing extent in Britain, economic
analysis of law has seemed to offer to many legal scholars a means
of confronting a post-realist world in which legal logic no longer
seems sufficient.
Post-Realist Radical Scepticism
Radical sceptical realism - wholly rejecting traditional forms of

legal doctrinal analysis as pointless and mystificatory - can be seen
as having two strongly contrasting post-realist successor
movements, one in the law school environment and one almost
entirely outside it in American political science.
Judicial Behaviouralism
The latter has come to be called judicial behaviouralism. In essence,

it involves efforts to predict or explain the outcome of judicial
decisions through systematic analysis of the behavioural
characteristics of the judges involved. Computer analyses of the
interrelations of such variables as judges’ educational backgrounds,
religious and political attitudes and a vast array of specific
characteristics are used. Legal doctrine may provide variables for
this kind of analysis insofar as published judgments in previous
cases decided by the judges being studied, may be thought to provide
important sources of information on their personal values. But
otherwise judicial behaviouralism is best seen as an effort to bypass
doctrinal analysis and treat what judges do as all-important and
what they say as a triviality to be left for analysis to the lawyers.
Since judicial behaviouralism does not at any point address any
of the concerns of normative legal theory it is of little relevance
here, except insofar as it seems to hold doggedly to the view that
law (as a socially significant phenomenon) is behaviour and not
doctrine.
Critical Legal Studies
A much more significant form of radical scepticism in this context

is represented by some of the work of what has come to be known,
since the 1970s, as the American Critical Legal Studies (CLS)
movement. The first of the annual meetings of the Conference on
Critical Legal Studies took place in 1977 as a result of a circular
letter proposing a gathering of colleagues who are pursuing a critical
approach toward the study of law in society’ (Kelman 1987: 297).
CLS writing reflects a diversity of influences from modern radical
philosophy and social theory (Schlegel 1984) but is also ‘in many
ways. . . a direct descendant’ of legal realism (Tushnet 1986: 505).
It has taken to heart the realist idea that general concepts in
legal doctrine do not determine outcomes. As Holmes put it:
‘General propositions do not decide concrete cases’11. Just as Felix

Cohen saw much of the general conceptual apparatus of legal
doctrine as transcendental nonsense, CLS writers tend to see it
as mystification. Arguments purporting to follow the logic of
concepts could lead in diametrically opposed directions. In CLS
jargon, concepts are ‘flippable’ equally in one direction or another;
they lack ‘tilt’. Some CLS writers go further to argue that, because
of the manipulability of concepts, legal texts are infinitely
interpretable; there simply is no way of deciding that one reading
is necessarily better than another (Tushnet 1983). Everything
depends on how one wishes to string together doctrinal logic in
arguments in which all the crucial concepts used are subject to
a variety of possible interpretations. The interesting question is
what determines ‘possible’ interpretations, and for most CLS writers
this is not something determined by doctrine itself but by the political
context in which the interpretations are being offered.
To this extent CLS is consistent in its outlook with radical
sceptical realism and shares with it an active interest in pouring
scorn on lawyers’ faith in legal logic (Kelman 1984). But this
scepticism has not caused CLS writers to lose interest in doctrine.
The general CLS position is that while orthodox legal reasoning
often seems to produce radically indeterminate, even arbitrary,
outcomes, legal doctrine is not as a result insignificant. Quite the
opposite. It is one of the important means by which social life
is constituted; that is, it provides categories of thought (for example,
property, liability, binding agreement, good faith, crime,
corporation, fiduciary relationship) by means of which we make
sense of the social world and impose a kind of moral and intellectual
order on it. So legal doctrine has important ideological and
legitimating effects, helping to ‘teach’ us how to think about society
and convincing us of the ‘naturalness’ of the social relationships
which law defines (e.g. Gabel 1980). The legal historian Morton
Horwitz, reacting to some extent against the oversimple idea of
the ‘flippability’ of legal concepts, has argued that particular
conceptions of corporate personality - the highly abstract legal
idea to which we have returned several times in discussions in this
book - had special importance in legitimating the concentration
of economic wealth and power in big business in the United States
in the late nineteenth century. The ‘natural entity’ conception, which
saw the corporation not as a legal creature of the state or as the
agent of its members but as an autonomous abstract entity in law,
made it possible, Horwitz argues, to justify freeing corporations
11
Lochner v New York (1905) 198 US 45, 76.
from legal restraints, for example on their ability to own the stock
of other corporations. In this manner doctrinal development cleared
the way for corporate economic concentration, without ever
admitting that this was what really lay behind the changes in legal
ideas and the abstract arguments used to justify them (Horwitz
1985).
Horwitz’ essay is a good example of the most productive kind
of work which has arisen from the CLS movement. Doctrine and
its development is taken very seriously, but the motor of doctrinal
development is not considered to lie in legal logic, or overarching
values or traditions of the legal system (Pound, Dworkin), or mere
judicial discretion as proposed by positivist analytical jurisprudence.
The impetus for change in doctrine comes from outside the
professional legal domain, especially in political struggle and the
economic conditions, changes or crises of capitalist society. But
these real forces are not usually revealed in doctrine itself nor in
legal reasoning. Part of CLS’ objective is to reveal ‘hidden motives
that the judges themselves would treat as illegitimate if forced to
confront them’; it ‘requires the analysis of the coherence of judicial
explanations of outcomes. . .. But the goal is neither an alternative
rationale nor a criticism of the outcome’ (Kennedy 1979: 219, 220).
Instead it is to show how a judge’s formal rationale of the decision
(which presents itself as mere legal reasoning) obscures the real
political significance of what is being decided.
Another example of this kind of analysis is found in Karl Klare’s
examination of American judges’ interpretation of the 1935 National
Labor Relations Act, ‘perhaps the most radical piece of legislation
ever enacted by the United States Congress’ (Klare 1978: 265) and
one which ostensibly gave major rights to employees as against
employers and greatly strengthened the role of collective bargaining
in American labour law. Klare shows how, in a series of decisions
widely regarded as employee victories, courts applied the Act to
shape an institutional structure of collective bargaining which gave
unions power at the expense of individual workers and helped shape
‘the modern administered, and regulated system of class relations’
(Klare 1978: 336). Again the essence of the CLS method here is
to show that what doctrine appears to say is not what it does;
the narrow ‘logic’ of the cases is exploded by revealing in detail
the economic and political context in which it is developed and
how case outcomes relate to wider tendencies in American society
and politics.
To the extent that this kind of inquiry is intended to increase
understanding of the role and character of legal doctrine it can
be seen as related to constructive doctrinal realism and certainly
to the effort to develop empirical legal theory. But in much CLS

work the analysis of doctrine is destructive rather than constructive.
CLS is not concerned to make of doctrine a rational system or
structure; or to make case outcomes more predictable; or even,
in general, to develop any general theories about the nature of
doctrine in its institutional contexts. Its broad aim is to expose
the hollowness of claims for legal doctrinal rationality. This is seen
as important because orthodox legal reasoning and the doctrine
it produces hide the repressions, contradictions and alienating
conditions of life of contemporary Western societies. At the heart
of these problems is the ‘fundamental contradiction’ which Western
‘liberalism’ tries to obscure (Kennedy 1979: 211-3; cf. Gabel and
Kennedy 1984) - the contradiction that individual freedom and
autonomy is possible only under conditions of collective constraint
and coercion. The project of CLS is to demystify the legal ideas
which obscure the contradictions of liberal capitalist society. Often,
in CLS writing, these contradictions (as well as the concept of
liberalism which is the focus of most CLS attack) remain
frustratingly vague; it is probably significant that critical legal
scholarship in Britain (which has developed contemporaneously
with and for the most part independently of the American
movement) has generally avoided reliance on such concepts. But
at least it can be said that CLS gives legal doctrine (and presumably
the normative legal theory which helps to rationalise it) the
backhanded compliment of asserting its great social importance
- an importance which makes a concerted attack on its pretentions
all the more necessary.
Legal Professionalism and the Legacy of Realism
It would be pointless to try to offer here a general evaluation of

the vast range of ‘sceptical’ approaches to legal inquiry which have
been discussed in this chapter. Their importance in the context
of this book is, first, in their confrontations with normative legal
theory and, secondly, in the insight they offer into relationships
between normative legal theory and the political and professional
environment of Anglo-American law. The former matter has been
discussed throughout this chapter; but what of the professional
ramifications of legal realism?
It has often been said in the American context that ‘we are all
realists now’ (cf. Schlegel 1979: 460). The most plausible meaning
to give to this is that, whatever normative legal theory might suggest,
many practicing lawyers find no difficulty in accepting much of
the substance of realism’s scepticism about legal logic and general

legal concepts, as well as its view that law as doctrine cannot be
understood without seriously analysing the behavioural contexts
in which doctrine is developed and applied. Lawyers (in Britain
no less than in the United States) cope with the indeterminacy
of rules; they are well aware of the ‘human factors’ in judging,
the personality characteristics of judges, the importance of advocacy
styles in affecting decisions, and the ‘leeways of precedent’. For
many lawyers, everyday experience of practice teaches that law
in operation is much more a matter of behaviour (threat and
compromise, negotiation and confrontation, bluff and counterbluff,
timing and strategy) and economics (the relative cost to opposing
parties of particular legal strategies) than of doctrinal logic.
But throughout this book it has been argued that law as a
profession and as an intellectual discipline has often sought to
present itself in quite different terms and normative legal theory
has aided in the effort to portray law as an integrated structure
of ideas, as a body of distinct, esoteric knowledge. The flourishing
of American legal realism in the late 1920s and 1930s seems like
a moment when ‘the dam broke’ and the uncertainties over law’s
rational systematic structures of knowledge became a crisis of
confidence in law as an intellectual field and a profession. In the
early 1930s there was already a relatively well developed structure
of university legal education in the United States, staffed by a
substantial number of scholars ready and competent to think
through the theoretical implications of this crisis. By contrast, in
Britain, university legal education at that time was in a fledgling
state. It held nervously to a vaguely Austinian conception of legal
science (cf. Dowdall 1926) and was presumably hardly ready to
face the challenges of realism, even if they had presented themselves
in the stark form in which they appeared in the United States.
Only much later, from the 1960s, when a sizeable profession of
full-time academic lawyers had been established in British
universities, was a belated start made in addressing the challenges
posed by American realism and its aftermath. Thus, now, in Britain
as in the United States normative legal theory is confronted by
a variety of scepticisms which fundamentally challenge the idea
that law can be understood as a systematic structure of doctrine.
Normative legal theory was portrayed in the earlier chapters of
this book as a unifying element in the intellectual world of law.
Now, in the form of modern legal philosophy’s theories of law,
it tends to appear increasingly, in a post-realist context, as a
marginalised outpost of speculation on law’s ultimate rationality.
Legal Professionalism and the Legacy of Realism 215
The consequences and the significance of this situation remain to

be considered in the final chapter of this book.
8 The Uses of Theory
Previous chapters have traced the outlines of the most influential

types of Anglo-American normative legal theory which have
established themselves in the period of modern professionalisation
of law. And this theory has been considered, to some extent, in
the context of the political and professional conditions in which
it arose. In addition, the book has discussed what might be called
the pre-history of normative legal theory in classical common law
thought (Chapter 2), and various modern challenges to normative
legal theory which are represented by realist and post-realist currents
of legal thought (Chapter 7). In this last chapter it remains to
offer some general assessment of the intellectual path which has
been traced.
Some Political and Professional Uses of Theory
This book has argued that normative legal theory has not been
able to give a convincing explanation of judicial creativity and of
legal development generally. This theory has tried to explain law
as a structure or system of doctrine without being able to dismiss
difficult empirical questions about the behavioural conditions under
which it makes sense to think in terms of such a system or structure.
Realist and post-realist legal thought is a recognition and expression
of this continuing problem for any theory which attempts to treat
law merely as doctrine or ideas. It can be argued that, in this respect,
normative legal theory has not provided an adequate theoretical
basis for understanding the nature of Anglo-American law.
To leave that as the sole conclusion here would, however, be
unduly negative, misleading and unfair. A major claim made in
Chapter 1 was that, despite normative legal theory’s frequent
pretensions to the contrary, it should not be understood as seriously
attempting to provide general theories of the nature of law.
Typically, normative legal theory assumes that law is centrally, and
perhaps exclusively, legal doctrine. It does not address the possibility
that law as an object of inquiry might better be considered to be
a field of experience, a rather heterogeneous subject of study centred

on a variety of types and problems of regulation potentially
involving a wide diversity of practices, techniques, modes of thought
and forms of knowledge (Cotterrell 1986b: 83). Hence it sets itself
an agenda different from that which would need to be adopted
if a genuinely open, provisional concept of law were taken as the
starting point for inquiry; if the assumption that law is to be equated
with legal doctrine were not treated as virtually sacrosanct.
Normative legal theory rules out most systematic behavioural
inquiries about law; it treats legal theory as largely distinct from
social scientific inquiry; it commits itself to discussion of the integrity
of legal ideas and legal reasoning because treating doctrine as almost
the sole object of inquiry virtually dictates the necessity of trying
to prove some rational structure or systematic unity of that doctrine.
Most of the material in the previous chapters of this book has
been concerned with normative legal theory’s search for this
structure or unity.
If the real importance and value of normative legal theory are
to be appreciated, this theory must be understood in relation to
the primary tasks which it has actually attempted, which are
narrower than the ones often attributed to it. Anglo-American
normative legal theory has focussed almost exclusively on legal
doctrine because it has tended to see law from the standpoint of
a lawyer concerned directly with the question of the rationality
and integrity of legal doctrine. Thus, one of its most important
roles has been to provide a rational framework within which legal
doctrine can be ordered and presented as the systematic knowledge
of a learned profession and as a distinctive intellectual field or
an intellectual discipline. In addition, as previous chapters have
sought to demonstrate, it has often provided the means of
rationalising the place of legal knowledge and legal practice in a
broader political context. One very important aspect of this has
been the effort to show how law and politics can remain distinct
fields; how judging is not like legislating; how legal advocacy is
different from political activity; how legal principle differs from
mere policy; how courts can remain impartial in protecting the
political rights and freedoms of citizens although in the Anglo-
American world they are indisputably agencies of state power.
Insofar as law can be portrayed as distinct from politics, politics
can in some degree be conducted in such a way as avoid interference
with the stable structures of legality. Hence law as the embodiment
of stability can co-exist with politics as the means of change. In
this way, normative legal theory’s efforts to demonstrate the
independence of law from politics are also, as has been seen1,

attempts to provide justifications and explanations of the idea of
the Rule of Law.
Of course, contributors to normative legal theory have not
necessarily viewed their work in these terms. But the writings of
most of the theorists discussed in this book show clearly the specific
professional and political concerns which have animated them.
Austin viewed his theory of law and sovereignty as the key to
a science of law upon which modern legal practice could be securely
based (Austin 1863: 379-85). Bentham saw expository jurisprudence
as a prerequisite for systematic reform to enable the legal system
to meet the need for rational and efficient government in the modern
state. While he had generally little commitment to legal professional
prerogatives and spent much of his career attacking them, he was
acutely aware of the political uses of legal theory. The writings
of Pound and Fuller continually reveal their concern with the status
and condition of the legal profession. Pound’s work, as has been
seen, shows an anxiety about the risk of the legal profession being
displaced from its central place among the governing elites of
American society. The refurbishment of common law methods in
new, enlightened forms appears in Pound’s writings as a means
to retrieve the situation and re-establish the role of legal ‘experts’.
For Fuller, a concern with professionalism is not so much
celebratory and defensive of prerogatives as critical and exhortatory.
Fuller’s discussions of the morality of law can be seen as inspired
by a passionate belief in the need for heightened professional
awareness of the moral responsibilities of legal practice in the mid-
and late twentieth century, when arbitrariness in government and
abuse of official power have not disappeared with Nazi tyranny
but surface also in various forms in the Anglo-American world.
Accordingly, Fuller’s theory seeks to demonstrate how law must
be interpreted to realise within it the potential of reason as a moral
and not merely intellectual virtue.
Hart and Dworkin, locked in combat over the model of rules
and the place of principles in legal analysis, are also justifiably
seen as defenders of a professional faith; above all, faith in the
distinctiveness of the intellectual world of the lawyer and the
separation of law from politics. Of all the theorists discussed in
this book Hart seems the least ‘contextual’; the one who writes
least, or least concretely, about the political and social consequences,
presuppositions and concerns of his major contributions to
normative legal theory. Hart’s commitment to a liberal legal and
1
See Chapter 4, pp 99-100, 112-7; and Chapter 5, pp 135, 148-9.
social order is made clear in his writings on punishment and

responsibility in criminal law (Hart 1968). His defence of a form
of utilitarianism is probably best expressed in debate with Lord
Devlin on the role of law in enforcing morality (Hart 1963). But
his elaboration of a concept of law within the traditions of positivist
analytical jurisprudence is the part of Hart’s work of primary
concern in this book. It can be seen, with regard to its political
and professional relevance, partly as a defence of the outlook of
earlier English analytical jurisprudence and partly as an attempt
to replace important elements in that outlook.
Thus, Hart’s defence of legal positivism allies him with Bentham
and Austin in insisting on precision in legal argument, which is
seen to depend on an absolute defence of the distinctiveness of
a realm of positive law and positive legal analysis separate from
moral or political argument. To this extent, the central
presupposition grounding Austin’s science of law - that is, the
science which represents the special systematic knowledge and
methods of the lawyer - is carried down to the present day. But,
if a political view of the transition from Austin’s jurisprudence
to Hart’s is taken, the most important aspect of it is Hart’s rejection
of Austin’s deliberate vagueness in distinguishing judicial from
legislative or administrative functions. It seemed realistic to Austin
to see judges as political decision-makers within the state. He was
content merely to emphasise that they are subordinate decision¬
makers; delegates of the sovereign. The judge, for Austin, is a
political actor but, as Fuller puts it, only the ‘little sovereign’ (Fuller
1940: 29). In Hart’s concept of law, however, the emphasis switches
from judges as subordinate law-makers to judges as rule-bound
officials. The union of primary and secondary rules as a model
of law removes a substantial political inconvenience of Austin’s
jurisprudential legacy - its lack of concern with the idea of the
Rule of Law. For Hart, the most important point to make in
normative legal theory about the role of the judge is that this role
is defined and constrained by secondary rules. And the most
important point (politically) to make about rules is that, properly
drafted, they really can constrain the judge. They have, potentially,
at least a core of settled meaning which cannot properly be ignored
or misinterpreted2.
Dworkin’s work adopts a different, very sophisticated approach
to the question of the relationship between law and politics. He
discards the positivist separation of law and morals - a risky strategy,
one might think, if, like most other theorists considered in this

book, Dworkin is concerned to defend the intellectual autonomy

of law. But the rejection of the separation of law and morals clears
the way for a kind of legal imperialism. The lawyer is to be seen
(and to see himself or herself) as far more than a technician who
knows how to find and interpret vast numbers of rules and
regulations. The lawyer is a moral entrepreneur entrusted with the
wellbeing of the community’s law, which is also the repository of
its most important political values. Hence, the lawyer’s
responsibility for the law is also a moral and political responsibility
to engage in the development and fulfilment of those values which
morally define the community. Yet law does not dissolve into
politics; legal practice is not, in this conception, merely political
activity in the sense of struggles over the control and use of power3.
The distinction between principle and policy marks, for Dworkin,
the boundary between the lawyer’s interpretation of existing law
and the legislator’s creation of new law.
Politically, the significance of Dworkin’s work is to suggest how
law can still be considered to control politics (that is, the Rule
of Law can prevail) and yet, at the same time, the Rule of Law
itself can be considered a creative, flexible notion of evolving values
expressed in regulatory forms. Seen in this way the law which rules
politics and society is not merely something for lawyers to identify
(as through the use of such positivist tests as Hart’s rule of
recognition) but something for lawyers and judges to build out
of the best legal traditions of their society. In this outlook, Dworkin
seems to encompass something of what Fuller struggled to grasp
- how it is that law can be described as a distinctive professional
and intellectual field and, at the same time, one which requires,
above all, that its practitioners remain permanently sensitive to
certain moral and political demands. These are demands which
citizens assume must be met through law and which, if not met,
make it, a pure abstraction instead of. . . an effective discipline
of wills’ (Durkheim 1933: 427).
Who is Listening?
In suggesting these political and professional uses of normative

legal theory no claim is made here that they exhaust its significance,
but only that they have powerfully shaped its scope and its priorities'
As will be argued later in this chapter, the theories considered
in this book have a value not dependent on any influence they
3 Cf. Chapter 1, above, pp 12-3.

Who is Listening? 221
may have had on professional thought about law, or on wider

currents of thought about the relations of law and politics and
about the status of legal professions. But what professional and
political influence have they had? It might be suggested that there
is little evidence that normative legal theory has had any significant
influence on practising lawyers in the Anglo-American world.
Further, this esoteric literature has generally inhabited an
intellectual milieu of its own in which few connections have been
made between legal philosophy and broader intellectual currents.
How could it have had any significance either professionally or
politically?
To some extent this question needs to be answered differently
for each of the types of theory which have been considered in
this book. It seems clear, for example, that Maine’s historical
jurisprudence connected relatively easily with broader intellectual
currents in Victorian British society. It could be treated as ‘a species
of the theories of social evolution which became popular in the
1850s and 1860s. They were attractive to Victorians who were
conscious, and a little apprehensive, despite optimistic assertions
of confidence, of the great social changes taking place around them,
and who were ready to embrace theories that ascribed these changes
to inevitable impersonal laws’ (Stein 1980: 99). Historical
jurisprudence, in the form Maine presented it, seems to have had
considerable cultural influence. Yet, as shown in Chapter 2, it failed
to provide a solution to the more specific problems of legal
professionalisation of its time and quickly lost professional influence
as a result.
Most of the other theory discussed in this book seems much
more clearly to have reflected lawyers’ professional interests in the
rational organisation or systematic explanation of legal doctrine.
It has avoided the kind of broad cultural reference which gave
Maine’s work its wide interest and resonance outside the legal
professional world. Hence, if this narrower theory has, itself, had
influence, it is likely to have been primarily an influence in the
professional world of law, and through that, perhaps beyond into
the wider political arena. But it is important to recognise that if
influence has been exerted this is likely to have been in oblique,
highly indirect ways. Austin, for example, undoubtedly influenced
the English legal scholar A. V. Dicey’s conception of legal science,
its scope, components and methods (Cosgrove 1980: 23-8). Dicey
and like-minded academic lawyers, in turn, produced textbooks
and other writings reflecting these ideas and which offered models
of legal analysis adopted by numerous other lawyers (cf. Sugarman
1986: 42-3). In more recent times, academic lawyers writing and
teaching in many different fields have sometimes adopted the

concepts and theoretical outlook of jurists such as Pound, Kelsen,
Hart or Dworkin. These theories, even if appropriated in piecemeal
form or merely plundered for plausible rhetoric, have presumably
been of some help in defining a kind of intellectual universe within
which serious scholarly discussion of law can take place. They have
formed part of an available, presupposed storehouse of ideas for
organising legal knowledge.
As Anglo-American academic lawyers have sought to establish
their credentials as primary interpreters, organisers, critics and
teachers of legal doctrine they have often felt, collectively as a
professional community, the need for such general frameworks of
legal thought. Academic commentators and expositors have
frequently adopted ideas (for example, those such as sovereignty
or Grundnorm conceptualising the ultimate authority of a legal
system) which have received full elaboration in legal theory and
which can be relied upon without further explanation simply because
of this. The modern law school in both Britain and the United
States provides analysis and explanation at many levels: precise
technical examination of the legal-logical relationships of rules;
formulation and exemplification of general legal principles;
discussion of policy from a variety of standpoints; examination
of legal issues or institutions in terms of a variety of ‘external’
disciplines, such as economics, sociology or philosophy; essentially
political debate on constitutional issues (especially in the American
context); and broad jurisprudential inquiries about the nature of
law in general, or in particular kinds of society. The teaching and
the study of law thus embrace a wide continuum of legal thought
from the most narrow and precise issues of rule application to
the most general speculation on legal affairs. Within this continuum,
normative legal theory, at least in its most discussed and widely
publicised forms considered in this book, has reflected and indirectly
reinforced - and in some measure helped to crystallise and elaborate
- assumptions about the character of law and legal thinking which
have exerted, through the education and training of lawyers,
influence on the intellectual outlook of lawyers as a professional
group.
In one sense, the effort to develop normative legal theory remains
central to the notion of law as an intellectual discipline. As the
scope of law and the mass of its technical detail increase at what
is often considered to be an alarming rate, normative legal theory
continues the task of trying to impose rational order on legal
doctrine as a whole. Much of it still seeks conceptualisations of
law in general which will make it possible to continue to treat
Who is Listening? 223
law as a unified, coherent intellectual discipline, and not just as

a mass of unconnected regulations, practices or procedures. It still
commits itself to the demonstration that lawyers possess a body
of structured, principled and distinctive knowledge which entitles
them to claim to be members of a scholarly profession. It attempts
to provide some overall sense of direction within the bewildering
complexities of legal thought.
Normative Legal Theory and Modern Legal Practice
In another sense, however, as suggested at the end of the previous

chapter, normative theory seems in various respects marginalised
in relation to professional legal knowledge and to the progress
of law as professional practice and intellectual field (cf. Brunet
1988). It is surely significant that, in Britain and the United States
since the 1960s, legal philosophy has become increasingly
sophisticated and self-consciously professionalised as a branch of
the discipline of philosophy rather than as a continuing integral
part of academic legal studies.
What has really changed in this respect? No-one could suggest
that legal theory has at any time been necessary to help the lawyer
earn a living in everyday practice. But has it now ceased to be
significant in helping to define an overall conception of law’s
character as intellectual discipline or professional field? I suggest
that two somewhat related historical developments in the Anglo-
American legal world have gradually contributed to an increased
marginalisation of normative legal theory in this context. The result
is not that theoretical ideas have been, in any way, banished from
legal thinking but that the kind of theoretical ideas which normative
legal theory has worked with seem, in some important respects,
less helpful than at various times in the past.
One significant development is, simply, the remarkable
proliferation of legal rules and regulations. The bulk of legal doctrine
expands inexorably and rapidly, and seemingly irrespective of the
political ideologies of governments. A consequence is that the task
of explaining some overall, rational structure of legal doctrine has
seemed increasingly difficult to many lawyers. It was seen in Chapter
7 that the strain put on the American case-law system by the vast
increase in the number and range of potential precedents can be
considered to be one of the significant contributing causes of the
realist crisis of confidence in normative legal analysis. But the
proliferation is not only, or even mainly, one of judicial precedents.
It affects numerous types of legislation and regulation at all levels

of government.
Considered in isolation, however, this development might suggest
that normative legal theory is more necessary than ever to provide
some general framework of thought within which to encompass
this mass of doctrinal minutiae. Here the second historical
development comes into play. Law has not only increased in
doctrinal bulk but it has appeared to change its general character
and its fundamental relationship with the legal professions which
serve and depend upon it. And these changes, as will appear, may
have helped to make theoretical justifications of a unified or
structured legal sphere seem unnecessary and even impossible.
Today, the lawyer’s professional claim is primarily a claim to
be able to find, interpret, advise about, creatively invoke, warn
or defend against, or pre-emptively avoid governmental regulations
of numerous kinds and affecting an immense range of social and
especially economic arrangements and relationships. This claim may
not depend on possession of an apparently integrated body of
distinctive knowledge expressed in systematic form, or identifiable
as a special professional field, or organised around fundamental
principles of one kind or another. Perhaps, indeed, the very idea
of law as a profession is giving way to the idea that the practice
of law is a business of selling a very varied range of facilitative
or defensive technical services, or performing them as employee
of a business corporation or government agency (see e.g. Abel 1986).
Law, as a cluster of techniques for achieving certain purposes, is
eminently useful. Maybe legal practice seeks no grander justification
to maintain its status and prerogatives than its obvious utility in
an immense diversity of seemingly unrelated contexts.
At the same time, academic legal studies are now apparently
secure in higher education in both Britain and the United States.
Conditions have changed very markedly since Thorstein Veblen,
the iconoclastic American social critic, was able to declare, early
in this century, that a school of law no more belongs in the university
than a school of dancing (cf. Stevens 1983: 51). In the United States,
in many universities, the scale of legal studies in terms of numbers
of students and resources dwarfs that of studies in many other
disciplines. Again, law can apparently justify its status as a field
of study purely in terms of its unquestionable practical utility. It
may not need the luxury of demonstrated ultimate theoretical
foundations of an intellectual discipline. It may not depend for
its intellectual status on theoretical justification of its methods,
of its scope and structure, or of its underlying principles and
rationale. Its vocational relevance is self-evident.
However, the idea of the obvious utility of legal knowledge and

practice is maintainable only because certain relatively stable
conceptions of the nature of law are widely accepted and acted
upon by lawyers and those whom they represent. It is unlikely
that the specific theories discussed in this book have directly
influenced legal practice. Nevertheless, the broad dichotomy in legal
thought which has been drawn from these theories in these pages
may well have practical significance. The dichotomy is between,
on the one hand, views of law (reflected, for example, in classical
common law thought and in the theories of Fuller, Pound and
Dworkin) which understand it primarily or essentially as an
expression of values derived from natural reason, community life,
political history or some such source and, on the other hand,
positivist approaches to law which treat it essentially as the
regulatory expression of political power. Broadly speaking, for most
legal practitioners in complex industrialised societies it is usually
convenient and realistic to think of modern law, for practical
purposes, in the latter sense, as the directives of numerous
governmental agencies which include legislatures, courts, regulatory
and administrative boards and agencies and individual officials.
The material discussed in this book essentially provides a
theoretical commentary on the historical transformation of law,
and the dilemmas arising from that transformation, which have
encouraged this kind of legal outlook in the Anglo-American
environment. The emergence of modern positivist analytical
jurisprudence described in Chapters 3 and 4 is a recognition in
theory of a historical fact around which modern lawyers organise
their practice: the power of the modern state and its numerous
governmental agencies acting by means of many kinds of regulation.
The change in lawyers’ outlook necessary to accept the idea of
legal doctrine as a deliberate political creation, theoretically
unlimited in scope, was a switch from the classical common law
emphasis on the content or substance of legal doctrine as its defining
essence, to an emphasis on the form of law. For classical common
law thought the essence of law lay in the idea that the content
of legal doctrine represented community values, experience or
wisdom, as interpreted by lawyers. By contrast, positivist legal
thought finds the essence of law in its form (as sovereign’s command,
rule or norm). In this way the essence of law is divorced from
substantive rationality (the elaboration of values) and reduced to
a formal rationality (each element of legal doctrine is identifiable
as law because of its distinctive form and the distinctive formal
source of its authority).
As has been seen, positivist theory could not explain (and
therefore legally control) how the content of legal doctrine is

determined. Positivist analytical jurisprudence admits that the
making of law is a political act; that what determine the content
of legal doctrine are legislatures’ choices and judges’ discretions.
And so legal analysis has to become, strictly speaking, technical
analysis of the regulatory forms through which government acts.
Hence the lawyer’s domain of useful knowledge becomes essentially
this technical knowledge. There is no reason why the legal
professional must avoid any concern with policy or values.
Nevertheless, the broad outcome to which the positivist recognition
of law as an instrument of government tends to lead is a conception
of legal practice as one of neutral technicality. Such a practice
may - but, most importantly, need not - make any judgments about
the fundamental rationality of the substance of legal doctrine (the
consistency or appropriateness of its values, principles or underlying
policy). Its obvious utility is a purely technical one.
Law was clearly an instrument of governmental power even in
the heyday of classical common law thought. But the lawyer’s
understanding of law in this way has surely been made less
ambiguous, first, by the establishment of modern positivist legal
thought with the growth of modern state power and, secondly,
by the proliferation of forms of legislation and regulation and the
vast production of modern legal doctrine.
The result may be that this purely technical conception of law
has progressively freed legal practice from an often unstated but
important earlier dependence on theory. Classical common law
thought depended on the idea that the content of legal doctrine
embodied reason. It had to address the theoretical problem that
this reason was supposed to be rooted in community life and, at
the same time, accessible only to lawyers. The idea of the ‘artificial
reason’ of the law4, was an essential theoretical underpinning of
common law practice, as was the broader idea of some necessary
fundamental relationship between law and the values of the
community. The combination of these ideas gave common lawyers
(especially judges) the authority to control the rational content of
legal doctrine. But with the positivisation of law - the recognition
of law as a purely political creation having no necessary connection
to a consistent framework of values - the primary concern with
substantive reason found in the rhetoric of classical common law
thought disappears. Thereafter it returns only in critical guise as
in the theories of Fuller, Finnis and Dworkin.
Ultimately, it seems that, in a practical, positivist, legal

professional view, the essential systematic rationality of law can

be reduced to a capacity to identify the formal origins of each
rule or regulation in some specific, unambiguous and accepted
governmental source. As regards the substance of legal doctrine,
law’s rationality appears merely ‘piecemeal’ or localised5. If the
substantive rationality of law, in classical common law thought,
was assumed to lie in stable, enduring principles grounded in the
community’s values, a positivist outlook treats that rationality only
as the pragmatic explanations of particular legislative policies of
the moment and the temporary reconciliations of the content of
numerous unrelated legislative interventions. Hence, the effect of
this positivisation of law is that the ‘obvious utility’ of legal practice
tends to appear as one of atheoretical technique, rather than
theoretically justified reason.
In relatively stable legal and political conditions, such as the
Anglo-American legal professions have enjoyed for a considerable
time, a particular professional conception of law may be increasingly
self-sustaining. In unstable conditions the situation may be
otherwise. In Chapter 5 it was suggested that crises of political
and legal authority are often associated with the emergence of
natural law theories which demand that a theoretically justified
reason be included in legal technique. The historical conditions,
discussed in Chapter 7, which gave American legal realism its
greatest prominence in the 1930s were those of political and social
instability which made it seem no longer realistic to many lawyers
to treat legal and judicial practice as concerned merely with
regulatory techniques for policy implementation. At a time when
correct policy seemed all-important, and highly elusive, some
lawyers and legal scholars saw legal technique as unimportant, at
least if considered to be somehow separate from policy-formation.
Apart from such crises of confidence, the problem of explaining
how change in legal doctrine occurs has certainly been relevant
to the world of legal practice. The most pressing aspect of this
problem for the legal practitioner is that of predicting how doctrine
will be interpreted by judges and other legal authorities faced with
the task of applying it in new situations. In the previous chapter
it was suggested that many of the lessons of at least some versions
of legal realist thought are likely to be very familiar to legal
practitioners. But the problem of explaining doctrinal change is
centrally significant in everyday practice only for certain kinds of
lawyers: for example, those involved in appellate advocacy, or in
long term legal planning where much is at stake; or for those
5 Cf. Chapter 1, above, pp 5-6.

academic lawyers concerned to explain long-run trends of legal

development. For many other lawyers it may be possible, in times
of political and legal stability, to work pragmatically with legal
doctrine as it stands at any given time. They may not need to
be concerned with the difficulties which processes of doctrinal
change and interpretation raise for the idea of law as a systematic
rational structure of doctrine.
Thus, the idea of legal practice’s obvious utility does presuppose
certain theoretical views of law. But, today, historical conditions
of legal development may have inspired practical legal notions
which, by their nature, make explicit reference to normative theory
less important than in the past. One such development, I have
argued, is the positivisation of law which has removed from legal
professions (including, for this purpose, professional judges) a great
deal of control over the rational content of doctrine and encouraged
a purely technical view of law. But another, related development,
the vast and continuous proliferation of regulation in modern times,
has intensified this technical outlook. The content of legal doctrine
often changes so quickly and is so complex and extensive that
lawyers tend to assume that no more than a piecemeal, localised
rationality can be imposed on it. Further, the sources of law in
governmental agencies are so numerous and varied that its formal
rationality tends to appear merely as the requirement that a specific
rule be traceable to some decision or procedure of an ostensibly
authoritative governmental agency.
Normative Legal Theory as a Partial Perspective
If, as a result of these developments, normative legal theory seems

professionally marginalised in some important respects, its search
tor reason in law is not thereby invalidated. It remains what it
has always been: the preserve of the doubters, the seekers after
something more, the intellectually curious who are restless at the
suggestion that obvious utility provides, in itself, sufficient
intellectual and moral foundation for the field they profess.
Indeed, this kind of stance which unites, despite all other
differences, the theorists discussed in this book, may suggest to
some readers that normative legal theory has been a rather noble
enterprise even if its broader claims to general explanation or
illumination of the nature of law have been much overstated. And
this is the message I want this book to convey. The effort to explain
the possibility of system and structure in legal ideas is not just
an effort to give status to legal practice and legal analysis as
something distinctive and autonomous. It is also an attempt to

show how law can be envisaged as a great human achievement
of reason, and how lawyers must work and think with it to strengthen
the potential of rationality within it. Normative legal theory is,
from this point of view, an effort to examine seriously how law
can gain integrity as the means by which human beings impose
reason, to the limits of their ability, on the otherwise chaotic
conditions of their social existence.
The reason why this may sound pretentious is that normative
legal theory has too often been presented as if it represented truth
about the nature of law, when what it actually represents is a certain
partial perspective or cluster of closely related perspectives on law.
Primarily, but certainly not exclusively, the perspective of Anglo-
American normative legal theory has been simply that of a lawyer
trying to make sense of legal doctrine. Seen in that light, normative
legal theory has been of considerable value insofar as it has tested,
in a great variety of ways, the rationality of lawyers’ ways of
developing, interpreting and applying legal doctrine. It has made
explicit many commonly implicit assumptions of legal thought; for
example, with regard to the systematic character of legal doctrine,
the nature of judicial creativity, the essence of common law method,
the place of policy and principle in legal reasoning, the ultimate
criteria of legal validity, the distinctions between legal and political
argument, and the basis of the Rule of Law. Insofar as these
assumptions actually are widely made they are important
foundations of legal practice. It follows that the elaboration and
analysis of them in normative legal theory is not mystification but
rather clarification and explication of certain existing facets of the
reality of legal practice in the Anglo-American world. Equally,
normative legal theory’s failures are often no less interesting than
its successes in explaining the rational structures and systematic
character of doctrine. Failures may indicate with special clarity
the limits of reason in legal ideas, and the incoherences of doctrine.
Normative legal theory’s examination of these matters becomes
mystificatory only when it is assumed that what is being discussed
is not primarily the particular mode of thought of lawyers about
law in a certain context but, in some general and timeless sense,
the nature of law. Then, normative legal theory, assuming itself
to be not a specific, partial perspective or limited range of
perspectives on law but a somehow complete perspective, turns
into professional ideology. It purports to explain the way law is,
rather than the way lawyers may think of it. It is ideological precisely
because it does not even notice that its own perspective is inevitably
limited and incomplete (cf. Cotterrell 1984: 121, 127, 238). It
understands its limited view as a total one; the royal route to legal
understanding.
To write of the lawyer’s perspective is, of course, to gloss over
the fact that lawyers’ perspectives on law can themselves be very
varied, that judges’ perspectives may be significantly different from
those of practising lawyers, that those of appellate judges may be
significantly different from those of trial judges, and that the
viewpoints of academic lawyers may also show much diversity and
vary widely from those of practitioners. Since most normative legal
theory has been produced by academic lawyers these points are
important. Nevertheless, what unifies all of these legal professionals
of different kinds is their generally substantial interest in and
knowledge of law as doctrine; an interest which suggests a broadly
different general perspective from that of many social scientists,
for example, whose focus might be primarily on behaviour, and
patterns of social relations, associated with law as a field of
experience and practice.
Many contributors to normative legal theory have been aware,
in one way or another, of a need to transcend a perspective which
treats law as structured and systematised doctrine in order to extend
understanding of law as a social phenomenon. Normative legal
theory represents often only a part of these writers’ work in the
field of legal theory. Fuller, for example, seeking to understand
better the range of regulatory mechanisms available in Western
societies and to discover some of their inherent limitations and
potentialities, was drawn increasingly to the study of sociology and
anthropology, as noted in Chapter 5. Kelsen recognised in a clearer,
more rigorous manner than have most other writers discussed in
this book, the partial nature of normative legal theory’s perspective.
He came to accept sociology of law as a parallel but quite distinct
enterprise of inquiry about the legal field, alongside what he viewed
as legal science - the normative analysis of legal doctrine guided
by the concepts of the pure theory of law. Kelsen’s writings recognise
that normative legal theory cannot merely collect the data of law
and put it in systematic order. It must deliberately construct a
perspective on reality appropriate to its object. Hence his
conceptualism, discussed in Chapter 4, presupposes that each science
constructs its own methods and its own way of seeing reality. Indeed
its special perspective determines what that reality is, since for
Kelsen, there is no way of understanding reality except through
a structure of concepts devised for that purpose. While Kelsen’s
position suggests no way of linking different sciences or disciplines
his intellectual curiosity led him to researches in several of themi
including especially anthropology and political theory, alongside

normative legal theory.
The Destiny of Legal Theory
The claim made here that normative legal theory represents a partial
perspective on law does entail the further claim that different
perspectives can be related in some way. For something to be partial,
after all, it must relate to a larger whole of which there are other
parts. Thus we reach the extremely difficult question of how the
insights of normative legal theory can somehow be integrated with
ideas developed by viewing law from other perspectives. Indeed,
what other perspectives might these be? In Chapter 1 a broad
distinction was drawn between normative legal theory and empirical
legal theory. By empirical legal theory I mean theory which seeks
to explain the character of law in terms of historical and social
conditions and treats the doctrinal and institutional characteristics
of law emphasized in normative legal theory as explicable in terms
of their social origins and effects (Cotterrell 1983: 241-2). Empirical
legal theory is concerned with the systematic explanation of law
as a field of experience; as behaviour as well as doctrine, with
both of these being treated as components and determinants of
each other. Adopting this definition it is clear that several of the
writers whose work has been considered in this book for its relevance
to normative legal theory have also directly contributed to the
development of empirical legal theory in various ways.
Perhaps the most interesting link figure is Karl Llewellyn whose
constructive realist critique of orthodox legal doctrinal analysis was
considered in Chapter 7. Llewellyn’s commitment to the orthodox
lawyer’s quest for integrity and rationality of doctrine is clear. At
the same time, a realist perspective which refuses to accept that
legal analysis can only be analysis of doctrine frees Llewellyn to
suggest ways in which the processes of development, interpretation
and application of legal doctrine can be viewed behaviourally. The
insights of normative analysis are not to be overthrown. But it
is made clear that they represent, at best, a partial perspective on
the ‘reality’ of law. And, perhaps what is most important about
this constructive realist claim is that it makes clear that it is not
enough for the lawyer to be satisfied with the partial perspective
which a focus on doctrinal rationality represents, and to leave other
perspectives to other observers of law (for example, social scientists
or politicians). Once the partial character of the doctrinal rationality
focus is revealed, the incompleteness of the knowledge which it
offers is thereby also revealed. Unless it can be shown in what

respects that knowledge is reliable and in what respects it is not,
its utility is wholly undermined. And the only way to determine
the extent of its reliability is to examine and understand (from
various behavioural perspectives) the conditions under which
doctrine is developed and applied.
If the normative legal theory discussed in this book can be
considered, despite its variety, to represent one kind of perspective
or perhaps a cluster of closely related perspectives on law it is
still very much an open question how far any productive dialogue
or integration of normative legal theory with empirical legal theory
is possible. It seems significant, however, that the ideas of many
of the theorists discussed in this book have led them beyond
normative legal theory itself into inquiries about the social or
political context in which legal doctrine exists. Again, Fuller’s
serious involvement with social science is an excellent example.
In earlier times, as discussed in Chapter 3, Austin, with his single-
minded commitment to the development of a science of law which
would show the distinctive structure of legal doctrine, saw the need
for a theoretical understanding of the character of the modern state.
Equally, he made some effort to analyse the actual conditions which
determine the obedience of a population to political authorities.
So did Maine, who located the unity of legal doctrine in a conception
of culture and set out to study it from historical and anthropological
standpoints. Bentham, too, recognised the need for some kind of
speculation on psychology and behaviour to complement and fulfil
the conceptual analysis of his jurisprudence. By contrast, Hart
largely ignores inquiries about actual social or political conditions
and tries to avoid making his conceptual analysis dependent on
specific empirical claims about existing societies. Yet, in Chapter
4, it was seen that the method of his normative legal theory demands
a concern with these matters and the lack of it undermines the
clarity of some of his most important concepts. Thus, there might
be good grounds for suggesting that the kind of perspective which
normative legal theory usually reflects is not self-sufficient and
when developed in a rigorous and open-minded fashion, tends to
provoke questions which encourage a broadening of view and a
concern with empirical questions about the social and political
environment of legal doctrine.
In this respect, Kelsen’s and Dworkin’s approaches to normative
legal theory represent the sole exceptions to this tendency among
the theories discussed in this book. Dworkin’s method presupposes
a participants’ discourse of law. It sees the legal world entirely
through the eyes of practical interpreters of legal doctrine and refuses
explicitly to admit any other perspective on law into its field of

concerns. In this way it firmly excludes all external (sociological)
perspectives. As has been seen, the price paid for this is a theory
of judicial interpretation which necessarily cannot rely at all on
sociological information about the nature of judiciaries as
interpretive communities. Thus, it cannot really recognise social
constraints on judges arising from the institutional settings of
judging.
Kelsen’s legal philosophy, unlike Dworkin’s interpretive theory,
retains a concern to develop an objective ‘scientific’ explanation
of the nature of law as doctrine. Like Dworkin, however, Kelsen
claims the total irrelevance of sociological inquiries to his legal
theory, and sets it up in such a way as to justify this. As noted
earlier, Kelsen’s conceptualism makes possible a distinct and self-
contained normative legal theory because it can postulate the
concepts upon which such a theory can be founded. It does not
seek to find them in experience and it claims that, being deliberately
constructed for theoretical purposes, they are in no way dependent
upon specific empirical conditions. Because Kelsen is clear that
the pure theory of law is not concerned with behaviour, such as
the judicial activity of deciding cases, but solely with the logic of
norms, the separation of normative legal theory from empirical
theory in this form seems largely unassailable. What Kelsen offers
is a pure science of normative logic. By explicitly and firmly
separating this science from all others which might aid the
understanding of law, he marks out a distinct field for normative
theory. While its scope is narrow and its integrity is defended by
excluding most of the practical life of the law which enters into
other theories discussed in this book, this is, for Kelsen, the price
which must be paid for analytical rigour.
Various kinds of theory discussed in this book, therefore, suggest
a resistance to or denial of the possibility of integrating normative
and empirical legal theory, while other kinds seem to push towards
a broadening perspective on law. But unless one is prepared to
accept the limitation of view inherent in Dworkin’s or Kelsen’s
approaches (and Kelsen’s work in anthropology and political theory
shows that he was not willing to accept such a limitation), there
seem good reasons to seek to broaden or transcend the perspectives
of normative legal theory. Quite apart from any general intellectual
justification for attempting this, the current situation of legal
practice may demand it if the virtues of normative legal theory
are not to be undervalued in the professional world of Anglo-
American law.
Normative legal theory’s most important failing, according to
this book’s argument, has been its inability to explain the processes
of legal change. Yet it has been suggested in this chapter that it
is precisely legal change (change in the character of doctrine and
forms of regulation, and corresponding changes in the conditions
of legal practice and legal education) which seem to suggest the
danger of normative legal theory being marginalised insofar as it
continues to claim that law does or should exhibit something more
than what I call a piecemeal rationality. Empirical legal theory,
which has a rich and varied literature and which now flourishes
in a wide variety of forms, treats law as a social phenomenon to
be examined through systematic empirical analysis of the political,
economic and social conditions in which it exists. I have described
much of its central literature elsewhere (Cotterrell 1984).
Examination of it here would be out of place. It is enough to
say that empirical legal theory potentially offers the means of
examining legal change in systematic fashion. It recognises that
the impetus for change is not usually to be found in legal doctrine
but in the social, economic and political conditions in which that
doctrine exists. Empirical legal theory is, thus, necessary to explain
the changing situation of law (and perhaps of normative legal theory
itself) in a way that normative legal theory is unable to do.
But this is not to supersede normative legal theory. The heritage
of this theoretical literature provides a storehouse of ideas about
the nature of law viewed from a certain standpoint. That standpoint
is not rendered inappropriate by the fact that there are others which
must be taken into account in order to achieve a more adequate
understanding. Debate rages in modern philosophy and elsewhere
as to what adequate can mean in this kind of context. No answer
has been given in these pages to the general question of how, in
general terms, it is possible to confront partial perspectives ’ on
experience with others so as to extend knowledge. Some writers
doubt that this is possible because no partial perspective can
necessarily provide the means of declaring any other ‘wrong’. Can
empirical legal theory show that normative theory is wrong? I make
no claim here that it can or that there is any reason why it should
try to do so. For the purposes of this book it is enough to say
that taken on its own terms, judged in terms of what it has apparently
attempted to do in clarifying and making explicit the rational
structure or system of legal doctrine, normative legal theory has
certain strengths and weaknesses. Its weaknesses seem to open the
way to types of theory, drawing on social scientific traditions and
methods, which offer the prospect of explaining what, according
to the arguments of this book, it apparently cannot explain.
Its greatest strengths, however, have been its commitment to
make legal knowledge a system of reason; a great structure of

thought which does justice as an intellectual creation to the efforts
of multitudes of legal minds which have been occupied with
providing solutions to practical problems of social regulation
through the ages. The primary purpose of this book has been to
describe some of the most valuable products of that commitment.
Notes and Further Reading
In the following notes sources included in the list of text references are
cited by author and date only.
Chapter 1: Legal Philosophy in Context
JURISPRUDENCE, LEGAL PHILOSOPHY AND LEGAL THEORY:

The definitions of jurisprudence, legal philosophy and legal theory given
in the text are controversial but convenient for the purposes of demarcating
this book s concerns. There is, indeed, no clear uniformity in general usage
of these terms. Lor different usages from those adopted here see e.g. Twining
1984; and the useful discussion in E.W. Patterson, Jurisprudence 1953,
pp. 7-10. Tur 1978 adopts a definition of jurisprudence which treats it
as broadly similar to what is described in the text as normative legal theory.
The idea that jurisprudence is concerned with generalisation in contrast
with particularistic legal studies is emphasised in e.g. J. Hall, Foundations
of Jurisprudence 1973, pp. 11-4. The designations ‘normative legal theory’
and empirical legal theory’ roughly parallel Kelsen’s designations of
normative and sociological jurisprudence (Kelsen 1941b) but, unlike Kelsen,
I see these not as different sciences with different subject-matter but as
elaborations of different perspectives on law as a field of experience. Both
are concerned, in one way or another, with the nature of law as a normative
and empirical phenomenon. Typically, however, they conceptualise this
phenomenon differently, seek knowledge of it in different ways and use
this knowledge for different purposes.
LEGAL PHILOSOPHY AND LEGAL PRACTICE: On legal philosophy

and legal practice see also R. H. S. Tur, ‘Jurisprudence and Practice’ (1976)
14 Journal of the Society of Public Teachers of Law (n.s.) 38; W. Lriedmann,
‘Legal Theory and the Practical Lawyer’ (1941) 5 Modern Law Review
103. On the utility of legal philosophy in clarifying essential concepts used
in legal practice see e.g. A.L. Goodhart, ‘An Apology for Jurisprudence’
in P. Sayre (ed), Interpretations of Modern Legal Philosophies 1947.
JUSTIFYING NORMATIVE LEGAL THEORY: On the functions of

legal philosophy see also W. Twining, ‘Some Jobs for Jurisprudence’ (1974)
1 British Journal of Law and Society 149; Stone 1964, pp. 53-5. P Soper
‘Making Sense of Modern Jurisprudence’ (1988) 22 Creighton Law Review
Chapter 1: Legal Philosophy in Context 237
67 is a helpful recent discussion. On lawyers as legal philosophers see

W. Friedmann, Legal Theory 5th ed. 1967, pp. 3-4, noting that the
dominance of lawyers in this enterprise has occurred since the nineteenth
century: ‘The decisive shift from the philosopher’s or politician’s to the
lawyer’s legal philosophy is of fairly recent date. It follows a period of
great developments in juristic research, technique and professional training.
The new era of legal philosophy arises mainly from the confrontation
of the professional lawyer, in his legal work, with problems of social justice.’
I should want to modify this only by suggesting also (i) that legal philosophy
may have aided as well as reflected some of the developments Friedmann
refers to and (ii) that problems of explaining the integrity of law as an
intellectual field and as the basis of a learned professional practice may
have been as important as those of social justice in determining the shape
and influence of modern Anglo-American legal philosophy. On philosophy
in relation to jurisprudence see Stone 1964, pp. 7-10.
LEGAL PHILOSOPHY IN SOCIAL AND POLITICAL CONTEXT: A

contextual view provides its own special criteria of relevance. Since the
context with which this book is concerned is an Anglo-American one it
follows that discussion in these pages is confined to theory which has
had most prominence in this legal professional and political context. The
fact that intellectual quality certainly does not guarantee wide political
and professional influence is amply demonstrated by the fate of the
jurisprudential teachings of Adam Smith, as of much other advanced,
legally-relevant literature of the Scottish Enlightenment (for example,
writings by Adam Ferguson and John Millar). Smith’s Glasgow lectures
in the 1760s on jurisprudence have, until relatively recently, suffered
unjustified neglect in jurisprudential discussion in Britain. First published
from student notes in 1896, they are now available in A. Smith, Lectures
on Jurisprudence 1978.
HOW SHOULD LEGAL PHILOSOPHY BE INTERPRETED

CONTEXTUALLY? : On related ‘contextual’ approaches in other
intellectual fields, see e.g. James Tully ed.. Meaning and Context 1988.
Karl Mannheim’s writings on the sociology of knowledge also contain
many invaluable guides to productive interpretation of currents of ideas
in social context: see e.g. Ideology and Utopia 1936; Essays on the Sociology
of Knowledge 1952; Mannheim 1956; Structures of Thinking 1982. Properly
used, the sociology of knowledge should not require that ideas be reduced
to - or explained away in terms of - social conditions. It should force
us to keep in mind at all times the dialectic between intellectual imagination
and determining conditions. The possible relevance of approaches such
as Quentin Skinner’s for the study of legal philosophy is noted in W.
Twining, ‘Talk About Realism’ (1985) 60 New York University Law Review
329, at p. 336.
238 Notes and Further Reading
Chapter 2 : The Theory of Common Law
THE CHARACTER OF COMMON LAW THOUGHT: By far the best

recent discussion of classical common law thought is in Postema 1986.
While Postema’s emphasis on the importance in common law thinking
of the idea of community as the foundation of law parallels an important
theme in the text, his interpretation differs from mine in two ways. First,
it suggests a relatively explicit appeal to community as characteristic of
common law reasoning. But it seems to me that this appeal is usually
implicit and many terms (for example, realm, commonwealth, subjects,
people, nation) are used to indicate the social entity from which law draws
authority and relevance. Secondly, Postema’s discussion tends to imply
a more developed conception of the nature of community and of the
relationship between law and community than the limited theoretical vision
of common law thought in general might warrant. Common law thought
does not present a theory of law. It merely provides the elements from
which a rudimentary theory can be constructed.
THE COMMON LAW JUDGE: See generally Levy-Ullmann 1935, Part

1 ch 3. For Blackstone’s views on precedent and the judge’s role see
especially Blackstone 1809 I, pp. 69-71.
CAN COMMON LAW THOUGHT EXPLAIN LEGAL

DEVELOPMENT?: On common law as custom see Simpson 1973; Postema
1986, pp. 4-13. On records and reporting of common law see F. Pollock
Essays in the Law 1922, chs 9 and 10; Levy-Ullmann 1935, Part 1 ch 4.
COMMON LAW AND LEGISLATION: See Levy-Ullmann 1935, Part

2, Postema 1986, pp. 15-9; C. K. Allen, Law in the Making 7th ed 1964
pp. 444-69; Sommerville 1986, pp. 95-100; Mcllwain 1910, ch 4; T. F.
T. Plucknett, Statutes and Their Interpretation in the First Half of the
Fourteenth Century 1922.
THE POLITICAL AND SOCIAL ENVIRONMENT: Sommerville 1986

summarises the typical outlook of common lawyers during the crucial
years of the early seventeenth century in which modern conceptions of
the sovereignty of Parliament began to establish themselves firmly in legal
theory. Also of considerable value on the political significance of common
law ideas of immemorial custom is Pocock 1957. See also J U Lewis
“Coke’s Theory of Artificial Reason’ (1968) 84 Law Quarterly Review 33()!
Gough 1955 is the standard modern account of the use of natural law
conceptions in English legal history. See also T. F. T. Plucknett, ‘Bonham’s
Case and Judicial Review’ (1926) 40 Harvard Law Review 30; S. E. Thorne
Dr. Bonham’s Case’ (1938) 54 Law Quarterly Review 543; C. M Gray'
Bonham’s Case Reviewed’ (1972) 116 Proceedings of the American
Philosophical Society 35; Grey 1878. An important discussion of political
authority from within the tradition of classical common law thought is
Chapter 2 : The Theory of Common Law 239
Matthew Hale’s neglected mid-seventeenth century critical analysis of

Hobbes’ ideas on sovereignty and legal authority. See on this, Yale 1972.
SAVIGNY: A THEORY FOR COMMON LAW?: On historical

jurisprudence generally see Stein 1980. Savigny’s general influence was
enormous ‘due not only to the power of his intellect, his aristocratic birth
and bearing, the key positions that he held (professor in the University
of Berlin, later Prussian minister of legislation), but above all to the
timeliness of the ideas he advanced’: J. P.Dawson, The Oracles of the
Law 1968, p. 451. See also E.W. Patterson, ‘Historical and Evolutionary
Theories of Law’ (1951)51 Columbia Law Review 681. For the background
and consequences of the codification controversy in Germany see Dawson,
above, ch 6, and J. W. Jones, Historical Introduction to the Theory of
Law 1940, ch 2.
In England, Bentham advocated codification as a means of banishing
what he saw as the archaism and irrationality of common law methods:
see text Chapter 3, pp. 54, 76-7. The German codification controversy
was substantially replayed in the United States, ultimately with results
very different from those in Germany (codification did not finally gain
much of a foothold, whereas the major German codification of civil law
occurred - despite Savigny’s powerful delaying influence - with effect from
1900). Harold Reuschlein notes: ‘No more significant warfare has ever
been waged in the history of American juristic thought than the bitter
warfare between codification and custom which ranged over the second
half of the nineteenth century’: Reuschlein 1951, p. 69. For general
discussions see Reuschlein 1951, pp. 63-71; Patterson, above, pp. 295-8;
P. J. King, Utilitarian Jurisprudence in America 1986, ch 5.
On Savigny’s influence in England see Stein 1980, pp. 72ff. For an
illustration of the reflection of his ideas in some American legal scholarship
see Carter 1907, which bears the imprint of Savigny’s thinking throughout.
See also, on the influential American Savignian legal scholar T.M. Cooley,
Reuschlein 1951, pp. 58-63.
MAINE’S HISTORICAL JURISPRUDENCE: See e.g. Stone 1966, ch

3 part 1; P. Vinogradoff, ‘The Teaching of Sir Henry Maine’ (1904) 20
Law Quarterly Review 119; W. A. Robson, ‘Sir Henry Maine Today’ in
W. I. Jennings (ed). Modern Theories of Law 1933; R. Cocks, ‘Sir Henry
Maine: 1822-1888’ (1988) 8 Legal Studies 247. Feaver 1969 is an excellent
biography. R. Cocks, Sir Henry Maine: A Study in Victorian Jurisprudence
1988, was not available to me in time for account to be taken of it in
the text. It provides a concise but detailed account of Maine’s jurisprudence
and is of special interest in attempting to assess both the relevance of
Maine’s work for later legal theory and its connections with issues of
legal practice and professionalisation in his times.
MAINE ON POLITICS AND SOCIETY: See e.g. Collini, Winch and

Burrow 1983, ch 7; Burrow 1966, ch 5; G.A. Feaver, ‘The Political Attitudes
of Sir Henry Maine’ (1965) 27 Journal of Politics 290; B. Smith, ‘Maine’s
Concept of Progress’ (1963) 24 Journal of the History of Ideas 407; Barker

1928, ch 6. Maine’s ‘administrative’ view of legal problems was no doubt
influenced by his experience in colonial government in India from 1862-
9 as legal member of the Governor-General’s Council. One consequence
of it was his clear appreciation of the value of codification of law as
an instrument of modernisation in the Indian context (See Feaver 1969,
pp. 76-7). Understandably, James Carter, adhering closely to orthodox
common law thought, criticises Maine for being too prepared to see law
as a political creation. See Carter 1907, pp. 187-90.
HISTORICAL JURISPRUDENCE AND THE LEGAL PROFESSION:

On the relative conservatism of common law thought see e.g. Dicey 1905,
p. 367. Professionalisation of law can mean various things and some writers
confidently assert that by the seventeenth century ‘the English bench and
bar had become professionalised’: White 1976a, p. 19. What seems to
be meant is that specialised legal tasks allocated to barristers, attorneys
and solicitors had become established. My concern with professionalisation,
however, centres on the self-conscious development of modern professional
organisation entailing the claim to esoteric but scientific knowledge,
associated training and well defined qualifications for entry into the
professional group.
THE FATE OF MAINE’S NEW SCIENCE: With regard to Maine’s

influence in sociology, Ferdinand Toennies was apparently first led to
the idea of his classic work on Gemeinschaft and Gesellschaft, one of the
foundations of modern sociology, by his reading of Ancient Law, and spoke
of Maine as his teacher: see Feaver 1969, pp. 58, 282. For a modern
anthropological assessment see R. Redfield, ‘Maine’s Ancient Law in the
Light of Primitive Societies’ (1950) 3 Western Political Quarterly 574. See
generally G. Stocking, Victorian Anthropology 1988.
Chapter 3: Sovereign and Subject: Bentham and Austin
Bentham’s most important work of normative legal theory is Bentham

1970. The manuscript, substantially completed by 1782 but put aside by
its author, lay buried among the mass of Bentham’s papers for one and
a half centuries until rediscovered by Charles Everett in 1939. Everett
edited the work and published it as The Limits of Jurisprudence Defined
in 1945. The story of the origins of Bentham’s manuscript and the scholarly
detective work which led to its identification and publication is told in
Everett’s preface to the 1945 edition and H. L. A. Hart’s introduction
to the revised and expanded 1970 version, published as Of Laws in General.
Austin was a member of Bentham’s circle and a profound admirer of
his ideas, although the personal relationship between the two seems to
have cooled by the time Austin gave his London University lectures between
1829 and 1833 (cf. Rumble 1985, pp. 15-8, 34-5). On the general relationship
between Bentham’s and Austin’s work see Morison 1982, pp. 38-48, 130.
Chapter 3: Sovereign and Subject: Bentham and Austin 241
The first few lectures of Austin’s course were published in expanded form
as The Province of Jurisprudence Determined in 1832. The rest remained
unpublished until after his death in 1859. In 1861 a second edition of
The Province was published by Sarah Austin and in 1863 she published
the remaining lectures insofar as they could be reconstructed from Austin’s
notes. There are three contrasting recent full-length studies of Austin’s
work. Rumble 1985 deals with Austin’s career as a whole including his
later political writings and his work as a Royal Commissioner in Malta.
It contains profound discussions of many aspects of Austin’s thought.
Hamburger and Hamburger 1985 is a more conventional biography,
providing a valuable portrait of both John and Sarah Austin. Morison
1982 is perhaps most closely geared to the interests of students of normative
legal theory, but tends to adopt a rather narrow interpretation of Austin’s
aims and methods.
THE EMPIRE OF DARKNESS AND THE REGION OF LIGHT: For

Bentham’s views on codification see Postema 1986, ch 12. For Austin’s
views on the subject see Austin 1885, pp. 660-81, 1098-1100. On German
influences on Austin, see especially A. B. Schwarz ‘John Austin and the
German Jurisprudence of his Time’ (1934) 1 Politica 178; Morison 1982,
pp. 60-3; Rumble 1985, pp. 31-4. It should be noted that despite Austin’s
dismissal of most of Savigny’s criticisms of codification as absurd and
irrational (Austin 1885, pp. 675-80), he had the highest regard for some
of Savigny’s other writings, especially his influential book on the concept
of possession. For Austin, this exemplified the kind of rational, systematic
German Romanist juristic scholarship which he admired for the manner
in which it distilled succinct logical principles from historically developed
doctrine. Austin viewed Savigny’s Of the Vocation as an unfortunate,
emotionally inspired aberration. Bentham’s principle of utility is expounded
in his An Introduction to the Principles of Morals and Legislation, originally
published in 1789 (Athlone Press edn. 1970). See also e.g. R. Harrison,
Bentham 1983, ch 7; A. J. M. Milne, ‘Bentham’s Principle of Utility and
Legal Philosophy’ in M.H. James (ed), Bentham and Legal Theory 1973.
POSITIVE LAW AND POSITIVE MORALITY: The insistence on treating

positive law as the sole or distinct object of study for legal scholarship
is characteristic of the approach to legal thought known as legal positivism.
See below, Chapter 4.
THE COERCIVE STRUCTURE OF A LAW: The now classic critique

of Austin’s command theory of law is in Hart 1961, chs 2-4. On Austin’s
discussion of sanctions see C. Tapper, ‘Austin on Sanctions’ [1965]
Cambridge Law Journal 271.
SANCTIONS AND POWER CONFERRING RULES: Hart 1961 provides

by far the most influential modern critique of Austin’s treatment of power
conferring rules. See also the thoughtful discussion of the nature of power
conferring rules in MacCormick 1981 a, ch 6. For a recent attempt to provide
elements of a defence of Austin see Moles 1987, pp. 65-70. While Moles’
approach seems to me to be, in this respect, broadly along the right lines
it does not address major criticisms which Hart and others raise and fails
to make clear the particular crucial difference of aims (reflecting different
political philosophies) as between Austin and Hart which I try to bring
out in the text of this chapter and the next. See also R. Ladenson, ‘In
Defense of a Hobbesian Conception of Law’ (1980) 9 Philosophy and
Public Affairs 134.
SOVEREIGNTY: Hinsley 1986 offers a useful general account of the

development of the concept of sovereignty. See also M. Francis, ‘The
Nineteenth Century Theory of Sovereignty and Thomas Hobbes’ (1980)
1 History of Political Thought 517; W. J. Rees, ‘The Theory of Sovereignty
Restated’ (1950) 59 Mind 495; S. I. Benn, ‘The Uses of “Sovereignty”’
(1955) 3 Political Studies 109. On the abstract character of Austin’s
sovereign see also Manning 1933, p. 207; Moles 1987, p. 71; and cf. Fuller
1940, p. 46 insisting on Austin’s ambiguity. On Bentham’s ideas see also
J. H. Burns, ‘Bentham on Sovereignty: An Exploration’ in M. H. James
(ed), Bentham and Legal Theory 1973.
SOME CHARACTERISTICS OF AUSTIN’S SOVEREIGN: For a sample

of commentary and criticism see e.g. Buckland 1949, ch 9; Maine 1875a,
chs 12 and 13. Despite the apparent problems stressed by many critics
in applying Austin’s theory of sovereignty to the case of the United States,
American Austinians of the nineteenth century seemed to find no great
difficulty in doing so. See P. J. King, Utilitarian Jurisprudence in America
1986, ch 7. For critiques see ibid, ch 8 and J. Dewey, ‘Austin’s Theory
of Sovereignty’ (1894) 9 Political Science Quarterly 31.
MUST THE SOVEREIGN BE LEGALLY ILLIMITABLE?: On

Bentham’s views see Postema 1986, pp. 237-56; Hart 1982, ch 9.
THE JUDGE AS DELEGATE OF THE SOVEREIGN: For Austin’s

views on ‘judiciary law’ see especially Austin 1885, pp. 641-60. See also
the detailed, sympathetic examination in Rumble 1985, ch 4. For Bentham’s
views on the matter see the excellent in-depth analysis in Postema 1986
chs 10-13.
AUSTIN’S THEORY OF THE CENTRALISED STATE: Austin’s views

on centralised state organisation and delegation (which he saw as its
correlate) are expressed in his review essay ‘Centralization’ (1847) 85
Edinburgh Review 221. For a thoughtful discussion of his later political
ideas see Rumble 1985, ch 6. A general discussion of the relevance of
changes in Austin’s outlook for the ideas expressed in his lectures is
contained in Hamburger and Hamburger 1985, ch 9.
AUSTIN AND THE LEGAL PROFESSION: For general background

see the excellent discussion of relationships between trends in jurisprudence
Chapter 3: Sovereign and Subject: Bentham and Austin 243
and legal professionalism in England in Sugarman 1986. Also of interest

is W. Twining, ‘1836 And All That: Laws in the University of London
1836-1986’ (1987) 40 Current Legal Problems 261. For illustration of
Austin’s influence on legal scholarship see Cosgrove 1980, pp. 23-8.
Chapter 4: Analytical Jurisprudence and Liberal Democracy:

Hart and Kelsen
EMPIRICISM AND CONCEPTUALISM: For Kelsen’s own comparison

of his work with Anglo-American analytical jurisprudence see Kelsen 1941b.
For the methods-debate around Austin’s work see Morison 1958 and
Morison 1982; Hart 1958, especially at p. 65 (broadly empiricist
interpretations); Manning 1933; Stone 1964, ch 2; Moles 1987, ch 1;
Campbell 1988 (broadly conceptualist interpretations). Rumble 1985 wisely
equivocates: while Austin would have tended to adopt the empirically
oriented view typical of the utilitarians, ‘his actual approach to the problems
of jurisprudence is not nearly as empirical as Morison suggests’ (p. 96).
It should be noted that often the antagonists in this debate seem to be
talking of a variety of ambiguities in Austin’s methods and not necessarily
of the specific methodological distinction around which this chapter is
organised. Hart’s own rejection of conceptualism is made clear in Hart
1970.
HART’S LINGUISTIC EMPIRICISM: Hohfeld’s major work is

Fundamental Legal Conceptions as Applied in Judicial Reasoning 1923. For
a detailed discussion of his contribution to analytical jurisprudence see
Stone 1964, ch 4, in which some of Kocourek’s ideas are also discussed.
On Kocourek see also Reuschlein 1951, pp. 173-9. The best study of Hart’s
work as a whole is MacCormick 1981a, which also contains biographical
details, and generally adopts a sympathetic and constructively critical view.
See also W. Twining, ‘Academic Law and Legal Philosophy’ (1979) 95
Law Quarterly Review 557. Leith and Ingram (eds) 1988 is a valuable
collection of essays offering a generally much less sympathetic critique.
Moles 1987 is also strongly critical of the methods and orientation of
Hart’s work. See also e.g. M. Kramer, ‘The Rule of Misrecognition in
the Hart of Jurisprudence’ (1988) 8 Oxford Journal of Legal Studies 401.
THE CHARACTER OF RULES: See Hart 1961, pp. 54-60 on the nature
of rules, and pp. 79-88 on obligation. On the internal aspect of rules see
also especially D. N. MacCormick, Legal Reasoning and Legal Theory 1978,
pp. 275-92.
SOCIOLOGICAL DRIFT: There is now a considerable literature which

attacks, in one way or another, the lack of sensitivity of Hart’s legal
philosophy to the sociological questions it suggests. See e.g. Hughes 1962;
J. P. Gibbs, ‘Definitions of Law and Empirical Questions’ (1968) 2 Law
and Society Review 429; S. Roberts, Order and Dispute 1979, pp. 24-5;
M. Krygier, ‘The Concept of Law and Social Theory’ (1982) 2 Oxford

Journal of Legal Studies 155; B. Edgeworth, ‘Legal Positivism and the
Philosophy of Language’ (1986) 6 Legal Studies 115. A serious attempt
to meet these criticisms would, however, force Hart’s normative legal theory
to become integrated with empirical legal theory of the kind associated
with sociology of law. See, however, E. Colvin, ‘The Sociology of Secondary
Rules’ (1978) 28 University of Toronto Law Journal 195. That such
criticisms have been made continuously with little effect on the reputation
of Hart’s theory despite the lack of satisfactory answers to many of them
may be testimony to the appeal, among legal scholars, of a normative
legal theory which apparently provides unity and system in legal ideas
while doing so in the explicitly ‘legal common sense’ terms of conformity
with ordinary legal linguistic usage.
THE STRUCTURE OF A LEGAL SYSTEM: See Hart 1961, pp. 89-

107. Doubts about the viability or utility of the distinction between primary
and secondary rules as Hart describes them have long been expressed.
See e.g. L. J. Cohen, Book Review (1962) 71 Mind 395; C. Tapper, ‘Powers
and Secondary Rules of Change’ in A. W. B. Simpson (ed) Oxford Essays
in Jurisprudence, second series, 1973; Fuller 1969a, pp. 134-7. For an
argument that law should be understood in terms of duty-imposing and
duty-excepting rules see J. W. Harris, Law and Legal Science 1979, pp.
92-106.
THE EXISTENCE OF A LEGAL SYSTEM: See Hart 1961, pp. 107-
HART’S HERMENEUTICS: See also the excellent discussion in J. Jackson,

‘The Concept of Fact’ in Leith and Ingram (eds) 1988.
JUDICIAL DECISIONS AND THE ‘OPEN TEXTURE’ OF RULES:

See Hart 1961, ch 7; Hart 1977; MacCormick 1981a, ch. 10. See also
S. Livingston, ‘Of the Core and The Penumbra’ in Leith and Ingram (eds)
1988; E. Hunter Taylor, ‘H. L. A. Hart’s Concept of Law in the Perspective
of American Legal Realism’ (1972) 35 Modern Law Review 606.
KELSEN S CONCEPTUALISM: The current lack of an adequate

biography of Kelsen in English is a serious and regrettable gap in the
literature of legal scholarship. For a biography in German see R. A. Metall,
Hans Kelsen: Leben und Werk 1969. Among studies of Kelsen’s work see
e.g. W. Ebenstein, The Pure Theory of Law 1945; R. Moore, Legal Norms
and Legal Science 1978; R. Tur and W. Twining (eds), Essays on Kelsen
1986. The periodical literature on Kelsen’s work is immense and ever¬
growing.
THE MACHINE NOW RUNS BY ITSELF’: On the concept of the basic

norm (Grundnorm) see Kelsen 1945, pp. 115-22; Kelsen 1967, ch 34; and
the revised formulation in Kelsen, ‘The Function of a Constitution’ in
Chapter 4: Analytical Jurisprudence and Liberal Democracy: Hart
and Kelsen 245
Tur and Twining, above. On Kelsen’s views on contradiction between norms

see e.g. J. W. Harris, ‘Kelsen and Normative Consistency’ in Tur and
Twining, above.
DEMOCRACY AND THE RULE OF LAW: For Kelsen’s ideas on

democracy see Kelsen 1945, pp. 284-300 and, especially, the brilliant
discussion of democracy as an ideal in Kelsen 1955, a remarkable and
unjustly neglected essay. The link between philosophical and political
relativism is elaborated also in ‘Absolutism and Relativism in Philosophy
and Politics’ in Kelsen 1957. For Kelsen’s conception of the identity of
the state and the legal order see Kelsen 1967, pp. 284-319; and Kelsen
1945, pp. 181-92: ‘The result of our analysis is that there is no sociological
concept of the state different from the concept of the legal order’ (Kelsen
1945, p. 192). Kelsen’s rejection of God as well as the state as transcendent
entities may suggest a straightforward atheism. In fact, however, issues
raised in theological literature are frequent concerns of his writings. Kelsen’s
insistence, here as elsewhere, seems to be that the responsibility for actions
and the consequences of beliefs, including issues of conscience and faith,
should be borne directly and personally by individuals, not assigned
elsewhere.
On concerns about the legal frameworks of modern state intervention
in Western societies see e.g. W. G. Friedmann, ‘The Planned State and
the Rule of Law’ (1948) 22 Australian Law Journal 162 and 207; H. W.
Jones, ‘The Rule of Law and the Welfare State’ (1958) 58 Columbia Law
Review 153; Friedmann, The State and the Rule of Law in a Mixed Economy
1971; Cotterrell 1984, pp. 168-87; T. Lowi, ‘The Welfare State, the New
Regulation and the Rule of Law’ in A. C. Hutchinson and P. Monahan
(eds). The Rule of Law 1987; Cotterrell, ‘The Rule of Law in Corporate
Society’ (1988) 51 Modern Law Review 126.
Chapter 5: The Appeal of Natural Law
LEGAL POSITIVISM AND NATURAL LAW: The best-known concise

summation of the legal positivist tradition is Hart 1958. See also generally
on the issues discussed in this chapter, S. I. Shuman, Legal Positivism
1963. Austin’s views on natural law are in Austin 1885, lecture 32. For
the history of natural law theory see e.g. A. P. D’Entreves, Natural Law
2nd edn, 1970; M. B. Crowe, The Changing Profile of the Natural Law
1977; H. A. Rommen, The Natural Law 1948, Part 1; H. McCoubrey,
The Development of Naturalist Legal Theory 1987; Weinreb 1987. For a
highly distinctive treatment see E. Bloch, Natural Law and Human Dignity
1986. D. Beyleveld and R. Brownsword, Law as a Moral Judgment 1986
is an ambitious if sometimes tortuous work containing discussions of the
implications for many issues of modern legal theory of rejection of the
analytical separation of law and morality. On natural law and common
law see Gough 1955; J. C. H. Wu, Fountain of Justice 1955, Part 1, Section
1. On natural law in American constitutional development see Haines 1930

(which contains a valuable bibliography of the older literature); E. S.
Corwin, ‘The “Higher Law” ’ Background of American Constitutional Law’
(1928-9) 42 Harvard Law Review 149 and 365; Wu, above. Part 1, Section
2; Grey 1978.
IS NATURAL LAW DEAD?: See e. g. Rommen, above, ch 6. On the

piecemeal rationality’ of modern law see Cotterrell, ‘English Conceptions
of the Role of Theory in Legal Analysis’ (1983) 46 Modern Law Review
681 at pp. 691-2, 698-9; and on conditions which make possible,
nevertheless, a frequent denial of this state of affairs and the claim that
legal science is a unified and autonomous field, see Cotterrell 1986a, pp.
15-20. See further Chapter 8, below.
NATURAL LAW AND LEGAL AUTHORITY: Among convenient recent

British and American discussions of Aquinas’ legal theory see e.g. Crowe,
above, chs 6 and 7; W. E. May, ‘The Meaning and Nature of the Natural
Law in Thomas Aquinas’ (1977) 22 American Journal of Jurisprudence
168 (and literature cited therein); A. Battaglia, Toward a Reformulation
of Natural Law 1981; N. Kretzmann, ‘Lex Iniusta Non Est Lex’ (1988)
33 American Journal of Jurisprudence 99; and the very valuable
commentary in Finnis 1980.
THE REBIRTH’ OF NATURAL LAW: See generally J. Stone, Human

Law and Human Justice 1965, ch 7; Haines 1930, especially Parts 2 to
5, and on the rebirth of natural law in continental Europe especially around
the beginning of the twentieth century see also J. Charmont, La renaissance
du droit naturel 2nd edn, 1927; and Rommen, above, ch 7.
ANGLO-AMERICAN LESSONS FROM THE NAZI ERA: On the Hart-

Fuller debate see e.g. P.Soper, ‘Choosing a Legal Theory on Moral Grounds’
in J. Coleman and E. F. Paul (eds), Philosophy and Law 1987. On post¬
war legal problems arising from the legacy of the Nazi regime see H.
O. Pappe, ‘On the Validity of Judicial Decisions in the Nazi Era’ (1960)
23 Modern Law Review 260; McCoubrey, above, ch 7; Oppenheimer v
Cattermole [1975] 1 All. E. R. 538 (HL). On the Nazi legal order see,
among convenient sources in English, K. Loewenstein, ‘Law in the Third
Reich’ (1936) 45 Yale Law Journal 779; E. Fraenkel, The Dual State 1941
(which argues that a regime of legality existed as a cloak for the parallel
regime of arbitrariness); Kirchheimer 1941; Neumann 1986, ch 16 (originally
written in the 1930s); Neumann 1944, pp. 440-58; N. S. Marsh, ‘Some
Aspects of the German Legal System Under National Socialism’ (1946)
62 Law Quarterly Review 366; Krausnik et al 1968, especially ch 2. There
is also much valuable translated material in S. P. Simpson and J. Stone,
Cases and Readings on Law and Society 1949, vol 3. On legal positivism
in Nazi Germany see also A. Kaufmann, ‘National Socialism and German
Jurisprudence from 1933 to 1945’ (1988) 9 Cardozo Law Review 1629
which argues persuasively (pp. 1644-5) that legal thought pragmatically
Chapter 5: The Appeal of Natural Law 247
combined a positivist attitude to Nazi law with an anti-positivist view

of the surviving remnants of pre-Nazi law. Kaufmann also shows the
widespread prostitution of legal philosophy to support the aims of the
regime. I am grateful to Judith Koffler for bringing this essay to my
attention.
THE IDEAL OF LEGALITY AND THE EXISTENCE OF LAW: Franz

Neumann’s major work on the Rule of Law (Neumann 1986) was written
as a London University Ph.D. thesis after he left Germany in 1933. It
was published in German translation in 1980, but the original English
version appeared in book form only in 1986. The major themes of the
thesis are, however, reiterated in Neumann’s other published works,
especially ‘The Change in the Function of Law in Modern Society’
(originally published in German in 1937) in F. Neumann, The Democratic
and the Authoritarian State 1957, and Behemoth, his classic wartime study
of the Nazi political order (Neumann 1944). On Neumann’s ideas see
Cotterrell, ‘The Rule of Law in Corporate Society’ (1988) 51 Modern Law
Review 126. For an interesting discussion of the consequences for the
German civil service of the kind of legal conditions which Neumann and
Kirchheimer highlight see J. Caplan, ‘Bureaucracy, Politics and the National
Socialist State’ in P. Stachura (ed), The Shaping of the Nazi State 1978.
A PURPOSIVE VIEW OF LAW: Summers 1984 is a clear and thoughtful

study of Fuller’s work as a whole, and includes much helpful biographical
information and a bibliography of his writings. See also the posthumously
published The Principles of Social Order (K. Winston, ed) 1981 which
collates many of Fuller’s important later papers. There is an extensive
periodical literature by and about Fuller. Some discussions of Fuller’s
The Morality of Law are listed in the revised edition: see Fuller 1969a,
pp. 188-9, 243-4. For recent discussion see e.g. K. I. Winston, ‘Is/Ought
Redux’ (1988) 8 Oxford Journal of Legal Studies 329; P. R. Teachout,
‘The Soul of the Fugue’ (1986) 70 Minnesota Law Review 1073 which
argues that Fuller should be understood not as a system-building theorist
but as an ethical critic; and the symposium in (1978) 92 Harvard Law
Review, no. 2.
FULLER AND THE COMMON LAW TRADITION: For Fuller’s

conception of the varieties of social ordering see also e.g. his ‘Some
Unexplored Social Dimensions of the Law’ in A. E. Sutherland (ed). The
Path of the Law from 1967 1968; ‘Two Principles of Human Association’
in J. R. Pennock and J. W. Chapman (eds), Voluntary Associations 1969;
‘The Law’s Precarious Hold on Life’ (1969) 3 Georgia Law Review 530;
‘Law as an Instrument of Social Control and Law as a Facilitation of
Human Interaction’ [1975] Brigham Young University Law Review 89;
‘Mediation: Its Forms and Functions’ (1971) 44 Southern California Law
Review 305; ‘Some Presuppositions Shaping the Concept of ’Socialization’
in J. L. Tapp and F. J. Levine (eds). Law, Justice and the Individual in
Society 1977.
POLITICS AND PROFESSIONAL RESPONSIBILITY: On legal

positivism’s moral myopia in other contexts see M. Tushnet, The American
Law of Slavery 1810-1860 1981, pp. 54-65; R. M. Cover, Justice Accused
1975. Among Fuller’s other writings on law and political values are
‘Freedom: A Suggested Analysis’ (1955) 68 Harvard Law Review 1305;
‘Irrigation and Tyranny’ (1965) 17 Stanford Law Review 1021; ‘Freedom
as a Problem of Allocating Choice’ (1968) 112 Proceedings of the American
Philosophical Society 101; ‘Some Reflections on Legal and Economic
Freedoms’ (1954) 54 Columbia Law Review 70.
NATURAL LAW TAMED?: On Hart’s ‘minimum content of natural law’

see also Hart 1958, pp. 78-81 and his further remarks in Law, Liberty
and Morality 1963, p. 70: ‘It is indeed arguable that a human society in
which. . . [such universal values as individual freedom, safety of life, and
protection from deliberately inflicted harm] are not recognised at all in
its morality is neither an empirical nor a logical possibility. . .’. For
commentary and criticism see e.g. Fuller 1969a, pp. 184-6; D’Entreves,
above, pp. 185-203. On Finnis see e.g. J. W. Harris, ‘Can You Believe
in Natural Law?’ (1981) 44 Modern Law Review 729; D. N. MacCormick,
‘Natural Law Reconsidered’ (1981) 1 Oxford Journal of Legal Studies
99; McCoubrey, above, pp. 179-86; Weinreb 1987, pp 108-15. R. Hittinger,
A Critique of the New Natural Law Theory 1987 is a study of the work
of Finnis and of that of the theologian Germain Grisez upon which he
relies substantially.
Chapter 6: The Problem of the Creative Judge: Pound and

Dworkin
POUND’S REJECTION OF THE MODEL OF RULES: Wigdor 1974

is a superb biography of Pound, providing not only a richly detailed account
of his career but also an incisive study of the evolution of his ideas. Paul
Sayre s The Life ofRoscoe Pound 1948, is idiosyncratic, sometimes eloquent,
richly anecdotal, written in an attractively warm and personal style, and
unashamedly biased towards its subject. There are bibliographies by F.
C. Setaro (1942) and G. A. Strait (1960) of Pound’s writings through
six decades of prolific scholarship. For his own account of the antecedents
and development of sociological jurisprudence see Pound 1911 and the
other parts of this essay in 24 Harvard Law Review 591 and 25 Harvard
Law Review 489. In ‘The Need of a Sociological Jurisprudence’ (1907)
19 Green Bag 607, sociological jurisprudence is advocated as a response
to popular disrespect for law and the need to keep legal processes in tune
with popular aspirations of the time; if this is not achieved lawyers may
lose ‘their legitimate hegemony in legislation and politics to engineers and
naturalists and economists’ (p. 612). For Pound’s views on positivist
analytical jurisprudence see e.g. Law and Morals 1924, ch 2. For a late
statement of his views on natural law see ‘The Revival of Natural Law’
(1942) 17 Notre Dame Lawyer 287. Pound was careful to distinguish
Chapter 6: The Problem of the Creative Judge 249
sociological jurisprudence from sociology of law, which he recognised as

a branch of social science concerned with explanation of law as a natural
phenomenon in terms of behaviour. See his introduction to G. Gurvitch,
Sociology of Law 1947; and Pound, ‘Sociology of Law’ in G. Gurvitch
and W. E. Moore (eds), Twentieth Century Sociology 1945.
THE OUTLOOK OF SOCIOLOGICAL JURISPRUDENCE: On Pound’s

St. Paul address and its consequences see Wigdor 1974, pp. 123-30; J.
H. Wigmore’s celebrated account of the event is reprinted in Sayre, Life
of Roscoe Pound, pp. 146-51; and in A. Kocourek, ‘Roscoe Pound as a
Former Colleague Knew Him’ in P. Sayre (ed), Interpretations of Modern
Legal Philosophies 1947, pp. 424-7. For Pound’s early firm defence of
legislation as entitled to full recognition as a source of principle in common
law reasoning see also ‘Common Law and Legislation’ (1908) 21 Harvard
Law Review 383; and ‘Liberty of Contract’ (1909) 18 Yale Law Journal
454.
A THEORY OF INTERESTS: See also Pound 1959 III, ch 14 and e.g.

Patterson, ‘Pound’s Theory of Social Interests’ in Sayre (ed). Interpretations
of Modern Legal Philosophies. Pound acknowledged the influence of the
German jurist Rudolf von Jhering in developing a theory of interests as
a foundation for legal theory. See on the relationship between Pound’s
and Jhering’s ideas, Reuschlein 1951, pp. 107-12. For the broader European
development and context of Jhering’s ideas see e.g. Stone 1964, pp. 227-
9. M. Schoch (ed), The Jurisprudence of Interests 1948 provides translations
of some of the major works of this movement.
THE SEARCH FOR A MEASURE OF VALUES: The view that legal

philosophy must not desert the task of establishing and systematising values
is developed in Pound 1940, ch 2. On relationships between Kohler’s theories
and Pound’s sociological jurisprudence see e.g. Reuschlein 1951, pp. 117-
20. For statements of the content of the jural postulates of Anglo-American
law at various times in Pound’s career see Pound 1942, ch 4; Pound 1959
III, pp. 8-10 and references there to earlier writings.
THE WIDER CONTEXT OF POUND’S JURISPRUDENCE: On Pound’s

essentially conservative political views see Sayre, Life of Roscoe Pound,
ch 6. On the reform philosophies of the Progressives see e.g. R. M. Crunden,
Ministers of Reform 1984. M. White, Social Thought in America 1949 is
widely cited as authority for the existence of a general ‘revolt against
formalism’ in American intellectual life from the beginning of the twentieth
century and including - as its legal aspect - a rejection in legal thought
of the apparently exclusively legal-logical concerns of positivist analytical
jurisprudence. I remain unconvinced that the anti-positivist writings
considered in this chapter are best understood as part of this general
intellectual trend. Rather they may be merely specific responses to the
inadequacies of positivist analytical jurisprudence’s explanations of legal
change in the context of the American legal system, especially in periods
of rapid social change. Conflation of diverse intellectual developments

is often misleading even though it may well be instructive and important
to identify cross-influences. A comparably misleading result certainly arises,
in my view, from attempts (especially in Summers 1982) to link Pound
with many other influential mid-twentieth century American jurists as part
of a relatively unified school of ‘pragmatic instrumentalists’.
DWORKIN AND POUND: Burnet 1985 is a rare attempt to compare

the two writers systematically, although it does not link them specifically
to a common defence of the common law outlook as does the text of
this chapter. Dworkin seems more ready to acknowledge a debt to Fuller
than to Pound if only in the most general terms: ‘But for the example
of his dissatisfaction, others would have been content with the positivist’s
truism that the validity of law is one thing and its morality another’:
Dworkin 1965, p. 668.
PRINCIPLES AND POLICIES: For criticism of and commentary on

Dworkin’s work see e.g. M. Cohen (ed), Ronald Dworkin and Contemporary
Jurisprudence 1984. There is an already large and rapidly growing periodical
literature discussing his legal philosophy. The key passage in Earl J.’s
judgment in Riggs v Palmer notes that ‘all laws as well as all contracts
may be controlled in their operation and effect by general, fundamental
maxims of the common law. No one shall be permitted to profit by his
own fraud, or take advantage of his own wrong, or to found any claim
upon his own iniquity, or to acquire property by his own crime. These
maxims are dictated by public policy, have their foundation in universal
law administered in all civilised countries, and have nowhere been
superseded by statutes.’ (1889) 115 NY 506 at pp. 511-2. This suggests
that applicable principles are the maxims of common law as discussed
in Chapter 2, above. Further, these principles are seen as founded in policy,
a view not obviously compatible with Dworkin’s attempted separation
of policy and principle (but cf. Dworkin 1977, pp. 22-3). Finally, their
roots are in universal (natural?) law beyond that of the legal system which
the court serves, whereas Dworkin sees legal principles as grounded in
the historical values of the legal system to which they belong.
For an interesting attempt to defend a version of positivist analytical
jurisprudence founded on Hart’s ideas, while recognising much of the
substance of Dworkin’s claims about the significance of principles, see
D. N. MacCormick, Legal Reasoning and Legal Theory 1978. MacCormick
argues that in hard cases judges are constrained by what he calls persuasive
legal sources (pp. 163-4). When deductive legal logic runs out, judicial
arguments are consequentialist in nature, but within the constraints of
overriding institutional demands for coherence and consistency of values.
Further, like Dworkin, MacCormick claims that no clear analytical line
can be drawn between hard and clear cases (p. 197). Against Dworkin,
however, MacCormick claims (i) that a descriptive legal theory of principles
no less than of rules - is possible, since legal principles have a positive
source in legislation and reported judgments of courts; (ii) because of this.
Chapter 6: The Problem of the Creative Judge 251
the legal validity of principles can be tested in the same way as that of
any legislative provision or judicial rule; hence (iii) Hart’s idea of an ultimate
rule of recognition within a legal system is not rendered incoherent by
an acceptance of the analytical importance of legal principles. Finally,
(iv), principle and policy are part of, implicated in, and the basis of legal
rules; they are not separate components of a legal system: ‘to explicate
the principles is to rationalize the rules’ (p. 157).
Although MacCormick’s thesis is a valuable attempt to remedy the
absence in Hart’s legal philosophy of an analysis of judicial reasoning
in hard cases, it seems open to the objection that principles governing
coherence and consistency are not given by rules of law, as MacCormick
seems to suggest, but must be imposed on them. Thus, for Dworkin, the
process of applying and developing principles is creative and constructive;
it is not already bounded by a criterion of legal validity but is part of
the ongoing process of determining legal validity. MacCormick seeks to
retain the positivist idea of discretion, but to bound it with principle:
‘It is the interaction of arguments from principle and consequentialist
arguments which fully justifies decisions in hard cases’ (p. 194). This seems
to be to have one’s cake and eat it if, for MacCormick, discretion beyond
rules is to be controlled by principles derived from rules. If it is not so
controlled, the positivist problem of the inability legally to explain discretion
remains. On the other hand, if principles are admitted not to be derived
from rules validated by a rule of recognition, MacCormick’s positivist
defence of the centrality of this ultimate validating rule seems hard to
sustain.
THE CLOSED WORLD OF LEGAL INTERPRETATION: Dworkin has

long recognised the frequent vagueness of the rule-principle distinction.
See Dworkin 1977, pp. 27-8. As regards the idea of community, there
is no doubt about the kind of community Dworkin favours, even though
his legal theory does not give him a direct means of analysing it. It is
one strongly committed to both individual autonomy and social justice
for all its members. Thus, he is explicit that the social order of Britain
since the fundamental change of government philosophy in 1979 is ‘better
off as measured by national economic indicators and worse off, in my
view, in most other ways’. See Dworkin, ‘The New England’ New York
Review of Books, October 27 1988, at p. 59; and cf. Dworkin 1986, ch
11.
POLITICS, PROFESSIONALISM AND INTERPRETIVE

COMMUNITIES: See also the similar conception of the citizen’s right
of civil disobedience in J. Rawls, A Theory of Justice 1972, especially pp.
382-91 (citizen’s right in a ‘nearly just’ society to judge the legal rendering
of basic principles on which the political order as a whole is founded).
Unlike Dworkin, Rawls sees civil disobedience as a breach of law to assert
higher political principle, not as an alternative interpretation of the proper
legal situation (p. 365). His statement that the ‘final court of appeal is
not the court, nor the executive, nor the legislature, but the electorate
as a whole’ (p. 390) seems to be meant in a looser, more rhetorical sense

than Dworkin might argue for. But the closeness of the two writers’ positions
is striking. On the Dworkin-Fish debate see also S. Fish, Is There a Text
in This Class'! 1980; Dworkin 1985, chs 6 and 7; Fish, ‘Dennis Martinez
and the Uses of Theory’ (1987) 96 Yale Law Journal 1773; J. M. Schelly,
‘Interpretation in Law: The Dworkin-Fish Debate (or Soccer Among the
Gahuka-Gama)’ (1985) 73 California Law Review 158.
Chapter 7: Varieties of Scepticism
Scepticism about normative analysis of law: for the parallel Scandinavian

literature see especially, A. Hagerstrom, Inquiries Into the Nature of Law
and Morals 1953; K. Olivecrona, Law as Fact 1939, and the completely
rewritten second edition 1971; A. V. Lundstedt, Superstition and Rationality
in Action For Peace 1925, Law and Justice 1952 and Legal Thinking Revised
1956; A. Ross, On Law and Justice 1958 and Directives and Norms 1968.
American legal realism has often been criticised for an indifference to
values (e.g. Pound 1931, p. 703), but this hardly applies to some of its
most eminent theorists, such as Felix Cohen and Karl Llewellyn. Most
realists denied the existence of any moral absolutes. Cohen, however,
claimed insistently that the relativity of moral values in no way undermined
their importance as guides to law in a particular time and place. See
generally, his Ethical Systems and Legal Ideals 1933, and L. K. Cohen
(ed) The Legal Conscience 1960. Llewellyn expressed sympathy for natural
law theory’s search for legal ideals but rejected its attempts to demonstrate
moral absolutes and its claims that law and morality could not be
analytically separated. See ‘One “Realist’s” View of Natural Law for Judges’
in Llewellyn 1962; and Twining 1973, pp. 185-8. These positions suggest
no greater indifference to legal values than is exhibited in the writings
of many positivist analytical jurists.
On views of American legal realism in Britain see Twining 1968, pp.
5-7 discussing dismissive attitudes at Oxford University and in legal
literature in the 1950s. That this approach is still current in some circles
is suggested by a recent, and otherwise excellent, brief primer on legal
studies in which the only guidance offered, about the massive and diverse
literature of American legal realism, is: ‘The flavour of American realism
is best caught from Jerome Frank’s Law and the Modern Mind (London,
1949), and if you read it you need to know that Frank, in spite of his
odd views, was a very good judge’ (A. W. B. Simpson, An Invitation to
Law 1988, p. 216). But the example of American legal realism seems to
have provided significant inspiration among the small group of progressive
academic lawyers who founded the Modern Law Review in 1937 to
invigorate legal scholarship in Britain; see C. Glasser, ‘Radicals and
Refugees: The Foundation of the Modern Law Review and English Legal
Scholarship’ (1987) 50 Modern Law Review 688. For Hart’s views on
American legal realism see Hart 1961, ch 7; Hart 1977; and for criticism
Chapter 7: Varieties of Scepticism 253
of these views see references under the heading ‘Judicial Decisions and
the “Open Texture” of Rules’ in notes to Chapter 4, above.
For valuable general assessments of realism see especially L. Kalman,
Legal Realism at Yale 1927-1960 1986; Twining 1973; Rumble 1968; Stevens
1983.
PRAGMATISM AND REALISM: C. S. Peirce introduced pragmatism

as a philosophical term and doctrine in the late nineteenth century. For
James’ doctrines see his Pragmatism 1907. Dewey’s synthesis of Peirce’s
and James’s ideas is reflected in his Reconstruction in Philosophy 1920,
Experience and Nature 1925 and The Quest for Certainty 1929. See generally
e.g. E. C. Moore, American Pragmatism 1961; J. Passmore, A Hundred
Years of Philosophy 2nd ed 1966, ch 5. On Felix Cohen’s essay see also
G. Peller, ‘The Metaphysics of American Law’ (1985) 73 California Law
Review 1151, at pp. 1227-32; and on Cohen generally, M. P. Golding,
‘Realism and Functionalism in the Legal Thought of Felix S. Cohen’ (1981)
66 Cornell Law Quarterly 1032. Close parallels with Cohen’s discussion
of ‘transcendental nonsense’ and ‘magic solving words’ in law can be found
in the Swedish philosopher Axel Hagerstrom’s discussions of ‘word magic’
in his Inquiries, above, and in the works by Lundstedt and Olivecrona.
On the Marxist notion of ‘reification’, appropriated in much recent critical
legal studies literature, see especially the classic analysis in G. Lukacs,
‘Reification and the Consciousness of the Proletariat’ in his History and
Class Consciousness 1971.
REALISM AND NORMATIVE LEGAL THEORY: On the background

to Pound’s ‘spring offensive of 1931 against the realists’ (cf. Llewellyn
1931a, p. 54), and Llewellyn’s reply which supplies the nine generalisations
discussed in the text, see also N. E. H. Hull, ‘Some Realism About the
Llewellyn-Pound Exchange Over Realism’ [1987] Wisconsin Law Review
921. On Moore’s approach to empirical research on law see also e. g.
W. U. Moore and C. C. Callahan, ‘My Philosophy of Law’ in Julius
Rosenthal Foundation 1941. Schlegel’s essays on realism (Schlegel 1979;
1980) are superbly rich and detailed accounts of the fate of some of the
most significant legal realist efforts at serious social scientific research.
On Holmes’ ‘bad man’ see W.Twining, ‘The Bad Man Revisited’ (1973)
58 Cornell Law Quarterly 275. On caricatures of Llewellyn’s view of the
significance of rules see Twining 1968, ch 2, and for a clear statement
of his actual position, in mid-career, on their importance within the broader
concept of law as an institution see Llewellyn 1941.
Jerome Frank’s enigmatic character has inspired several studies: see J.
Paul, The Legal Realism of Jerome N. Frank 1959; W. Volkomer, The
Passionate Liberal 1970; R. J. Glennon, The Iconoclast as Reformer 1985.
Probably the best known source of radical realist claims about the
impenetrability of subjective psychological factors ultimately determining
how a judge reaches his decision is J. C. Hutcheson, ‘The Judgment
Intuitive’ (1929) 14 Cornell Law Quarterly 274. Written by an experienced
American judge, it stressed in the most direct terms the central role of
‘hunches’ or ‘intuitions’ in deciding cases. This kind of radical realism

naturally had the effect of emphasising the special importance of
psychology, among the human sciences, in helping to explain judicial and
administrative behaviour. Cf. E. S. Robinson Law and the Lawyers 1935,
p. v: ‘This book attempts to show that jurisprudence is certain to become
one of the family of social sciences - that all its fundamental concepts
will have to be brought into line with psychological knowledge’. See also
Frank 1949, chs 10 and 11; also the appeal to psychoanalytic theory in
Frank 1930, and to psychiatry in Arnold 1935, pp. 269-70.
Peller, in ‘The Metaphysics of American Law’, above, characterises
Llewellyn’s approach as ‘constructive realism’ in contrast to the
‘deconstructive realism’ exemplified by Felix Cohen’s attack on
transcendental nonsense’. The constructive-deconstructive opposition
might, however, be somewhat too stark, taken alone. Cohen’s essay, for
example, seeks to deconstruct existing legal doctrine in order to construct
more realistic functional doctrinal forms. I prefer to treat as the basic
variable the degree of seriousness with which orthodox doctrinal reasoning
is taken by the writers in question. Those realists who attach substantial
significance to it can be called ‘constructive’ merely insofar as their efforts
are directed towards a better understanding of its working, or to
improvements in the manner of using legal doctrine.
LLEWELLYN’S CONSTRUCTIVE DOCTRINAL REALISM: On

Llewellyn’s work the best general source is Twining 1973, an excellent,
deeply sympathetic intellectual biography. There is also an interesting
personal account of Llewellyn in Twining 1968, pp. 5-23. Many of his
most important papers are collected in the posthumously published
Jurisprudence (Llewellyn 1962). Llewellyn’s important contributions to the
sociology of law, while not directly the concern of this book, are discussed
in Cotterrell 1984, ch 3 and in more detail in Twining 1973, ch 9.
THE POLITICAL CONTEXT OF AMERICAN LEGAL REALISM:

Purcell 1973 locates the development of legal realism as part of a broader
range of political and cultural developments in the United States. See also,
generally, Kalman, above, and for legal realism’s place in the development
of American legal education Stevens 1983 and Twining 1973, Part 1. On
the involvement of lawyers in the New Deal see P. Irons, New Deal Lawyers
1982 and G. E. White’s review essay ‘Recapturing New Deal Lawyers’
(1988) 102 Harvard Law Review 489. The movement for ‘free judicial
decision’ associated with the German Freirechtslehre advocates was not
confined to Germany. See generally, The Science of Legal Method: Select
Essays by Various Authors 1917, especially essays by Eugen Ehrlich and
Francois Geny.
POST-REALIST POLICY-SCIENCE: On the collaboration of McDougal

and Lasswell see Kalman, above, pp. 176-87; J. N. Moore, ‘Prolegomenon
to the Jurisprudence of Myres McDougal and Harold Lasswell’ (1968)
54 Virginia Law Review 662. Among general statements and applications
Chapter 7: Varieties of Scepticism 255
of the McDougal-Lasswell approach see Lasswell and McDougal, ‘Legal

Education and Public Policy’ (1943) 52 Yale Law Journal 203; McDougal,
‘The Law School of the Future’ (1947) 56 Yale Law Journal 1345, and
‘Law as a Process of Decision’ (1956) 1 Natural Law Forum 53; Lasswell,
Power and Personality 1948; R. Arens and H. D. Lasswell, In Defense
of Public Order 1961. Cf. J. H. Schlegel’s description of legal realists as
‘forging a more contemporary notion of the law professor’s role, that
of the policy maker - the omni-competent member of the academic-
governmental “Commissions to Study the Causes of Almost Anything”’
(Schlegel 1980, pp. 315-6). For examples and criticisms of legal impact
studies in the law and society literature see Cotterrell 1984, pp. 37-8, 337.
On the law and society movement in the United States see L. M. Friedman,
‘The Law and Society Movement’ (1986) 38 Stanford Law Review 763;
R. L. Abel, ‘Redirecting Social Studies of Law’ (1980) 14 Law and Society
Review 805. The standard American text on economic analysis of law
is R. A. Posner, Economic Analysis of Law (3rd edn) 1986. P. Burrows
and C. G. Veljanovski (eds). The Economic Approach to Law 1981 offers
a good introduction to alternative approaches developed by British writers.
M. Kuperberg and C. Beitz (eds), Law, Economics, and Philosophy 1983
collects together some seminal papers expounding and applying economic
approaches to law.
POST-REALIST RADICAL SCEPTICISM: On judicial behaviouralism

see further Cotterrell 1984, pp. 230-4, 359-60. On the American Critical
Legal Studies movement see generally the very useful collection of papers
in (1984) 36 Stanford Law Review, no. 1 (special issue on CLS); Kelman
1987; R. Unger, ‘The Critical Legal Studies Movement’ (1983) 96 Harvard
Law Review 563; and other symposia in (1984) 52 George Washington
Law Review, (1985) 6 Cardozo Law Review and (1985) 34 American
University Law Review. There is a bibliography, by D. Kennedy and K.
Klare, of American CLS work in (1984) 94 Yale Law Journal 461, and
a shorter one by A. Hunt in (1984) 47 Modern Law Review 369. D. Kairys
(ed) The Politics of Law is a useful introduction to and, in a sense, manifesto
of CLS ideas. Important philosophical underpinnings of the movement
are expressed in R. Unger, Knowledge and Politics 1975. For the controversy
provoked by Karl Klare’s essay on the Wagner Act (Klare 1978) see (1984)
43 Maryland Law Review 23, (1985) 44 Maryland Law Review 731, 1100,
1111.
For representative samples of writing from Britain which adopt broadly
critical approaches to legal scholarship see R. Fryer et al (eds), Law, State
and Society 1981; D. Sugarman (ed), Legality, Ideology and the State 1983;
W. Twining (ed). Legal Theory and Common Law 1986 (especially papers
by Sugarman, Cotterrell, Lewis, Collins, Stokes and O’Donovan); P.
Fitzpatrick and A. Hunt (eds). Critical Legal Studies 1987 (also published
as 14 Journal of Law and Society, no. 1, special issue); R. Cotterrell and
B. Bercusson (eds), Law, Democracy and Social Justice 1988 (also published
as 15 Journal of Law and Society, no, 1, special issue). Much of this
British writing has a different orientation from American CLS and reflects
different influences and priorities. It generally shares, however, a scepticism

about any idea of a pure legal logic divorced from the specific social contexts
of its use; and, like the American movement, it tends to focus on the
ideological importance of legal doctrine and to emphasise the inseparability
of law and politics.
As in the case of legal realism, it is dangerous to generalise about
American CLS. Some recent American writing has seemed concerned to
examine professional constraints on judicial behaviour in a manner clearly
compatible with constructive doctrinal realism. See e.g. D. Kennedy,
‘Freedom and Constraint in Adjudication’ (1986) 36 Journal of Legal
Education 518.
LEGAL PROFESSIONALISM AND THE LEGACY OF REALISM: A

good idea of the bewilderment which realism caused among some sections
of the legal profession in America can be gathered from P. Mechem, ‘The
Jurisprudence of Despair’ (1936) 21 Iowa Law Review 669. A comparable
anguish about the ‘nihilism’ of critical legal studies is expressed in P.
Carrington, ‘Of Law and the River’ (1984) 34 Journal of Legal Education
222. On the situation of legal education in Britain at the time of the realist
‘ferment’ in America see e.g. Glasser, ‘Radicals and Refugees’, above.
Chapter 8: The Uses of Theory
The idea that normative legal theory’s professional role is made problematic
by the changing forms of Western law is discussed also in Cotterrell, ‘English
Conceptions of the Role of Theory in Legal Analysis’ (1983) 46 Modern
Law Review 681. The idea that one discourse, or one perspective on reality,
cannot necessarily provide a grounding for, invalidate or even evaluate
another originating in a different practice (in other words, that all ‘truth’
claims are specific to the discourse in which they are made) is a theme
of much modern writing in philosophy and social theory. Within recent
Anglo-American philosophy one of the clearest and most influential
statements is R. Rorty, Philosophy and the Mirror of Nature 1979. See
also e. g. J.-F. Lyotard, The Postmodern Condition 1984. For a broad
view of important parts of the relevant European continental tradition
see A. Megill, Prophets of Extremity 1985.
I have tried to suggest, with reference to the disciplines of law and
sociology, some conditions under which fields of knowledge can sometimes
confront each other directly in the specific historical circumstances of
particular intellectual and professional practices: see Cotterrell 1986a.
Elsewhere I have tried to defend the view that knowledge can and does
progress by the overcoming of partial perspectives, through their
confrontation with other perspectives which come to be widely accepted
as having more explanatory power. Broader perspectives can subsume
(interpret and incorporate) narrower ones and so give rise to explanations
which seem to have greater overall plausibility, richness, range and rigour
in the light of historical experience and competing theories. See e.g.
Chapter 8: The Uses of Theory 257
Cotterrell 1984, p. 4; 1986b, p 84-5. But this confrontation of perspectives

will always be a social and, in some sense, political confrontation; never
a purely intellectual one: see generally Cotterrell 1986a.
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Index
American Law Institute, 159, 204 Bentham, Jeremy - continued

Aquinas, St. Thomas 126, 146 natural law, view of, 122
Aristotle, 146 sovereignty, theory of, 68, 72, 76
Arnold, Thurman, 195 Blackstone, Sir William, 24, 25, 29,
Austin, J.L., 89 40, 57, 72, 119, 122
Austin, John Brunner, Emil, 143
advances of theory 116, 117 Buckland, William, 15
centralised state, theory of, 77-9,
232 Carter, James, 33
change in attitude to, 15 Centralised state
codification, favouring, 54 Austin’s theory of, 77-9
common law, hostility to, 54 Clark, Charles, 189, 207
delegation, on, 75-6 Codification
doctrine, view of, 232 Austin, view of, 54, 76-7
empiricist, as, 85-7 Bentham, view of, 54, 76
government, law as, 61, 62 Roman law, of, 38
influence of, 53, 79-82, 221 Savigny, opposition of, 38, 54
influences on, 55 Cohen, Felix, 186, 187, 188, 195, 211
judges, on, 76-7, 151, 184 Coke, Sir Edward, 24, 27, 29, 32, 121
law— Common law
defining, 59, 104 ancient wisdom in, 27
distinguishing, 57 Austin and Bentham, hostility
generality, requirement of, 60 of, 54
merit or demerit of, 119, 130 authority of, 27-30
legal theory, 7, 52, 183, 218 concepts in, 106
legal profession, and, 79-82, 154 custom, as, 28-30
liberty, on, 61 Dworkin, theories of, 30, 174, 175
positive law, on, 57-9, 120 Fuller, views of, 138-42
positive morality, on, 59 history of, 22
power-conferring rules, view judges, 25, 26
of, 63-7 judicial decisions, in, 23, 25, 26
rules, concept of, 92 knowledge, as, 33, 34
sanctions, view of, 62-7 law of community, as, 27, 33-5
sovereignty, theory of, 67-77 legal development, role in, 26-30
utility, principle of, 55, 56 legal doctrine, content of, 225, 226
Austin, Sarah, 52, 77, 79 legislation, and, 30-3
linguistic history of, 34
Bentham, Jeremy maxims, importance of, 24
codification, on, 54, 76 meaning, 22
common law, hostility to, 23, 54 natural law, and, 36, 121, 122
empiricism, 86 neo-classical thought, 183
law and morals, opinion on, 57, 119 Parliamentary supremacy over, 31,
legal theory, 7, 53, 218 32
272 Index
Common law - continued Economic analysis

political and social environment, law, of, 208, 209
in, 33-7 Empiricism
political authority, and, 35-7 Austin, theory of, 85-7
reason, as, 34 conceptualism, and, 85-7
rules, in, 22-3 linguistic, 87-92
Savigny, theory of, 37-41
state, and, 35-6 Finnis, John, 126, 146-9, 176, 177,
thought, character of, 22-5 226
tradition of, 21 Fish, Stanley, 179, 180, 199
unity of, 23, 24 Frank, Jerome, 192, 195, 204
unwritten, being, 28, 29 Fuchs, Ernst, 204
written law, transition to, 43 Fuller, Lon
Conceptualism common law tradition, and, 138-42
empiricism, and, 85 Hart debate, 129-32
Critical Legal Studies, 188, 210-3 law—
Custom customary, 141-2
common law as, 28-30 definition of, 138, 225
internal morality of, 137, 138
Daintith, Terence, 62 non-law, demarcation from, 142
Darwin, Charles, 45 purposive view of, 136-9, 226
Democracy types of, 141,142
political relativism, recognition legal positivist theory, arid, 135,
of, 114 138, 139, 142, 143
rule of law, and, 112-6 legality of rules, 134, 148-9
suspicion of, 77, 167 professionalism, concern with, 142—
Dewey, John, 185 3, 218
Dicey, A.V., 24,117,123,221 social life, views of, 140, 141
Douglas, William, 189, 207 social science, and, 230, 232
Dworkin, Ronald
civil disobedience, justification Gilmore, Grant, 202, 204, 205
of, 177 Goody, Jack, 29
common law thought, and, 30, Government
167-8, 174-5 law as, 61,62
community as basis of law, 175-7
225 Haines, Charles Grove, 128
early writings, 166 Hale, Matthew, 25, 29, 30
inadequacy of model of rules, Hart, H.L.A.
showing, 166, 167 Austin, and, 64, 86-7, 116, 117
interpretive communities, Concept of Law, 92, 93, 102
and, 177-81, empiricist approach, 96, 104
law and politics, relationship Fuller debate, 129-32
of, 219, 220 hermeneutics, 101-3
legal interpretation, 172-7, 232-3 inaugural lecture, 89
legal questions, view of, 11 insiders and outsiders of legal
legal theory, 7, 102, 103, 232, 233 system, distinguishing, 94, 95
organicist conception, 172, 173 101
Pound, and, 151-2, 166-8, judge’s decisions, and, 151, 219
positivism, attack on, 152,467. Kelsen contrasted, 84, 85
principles and policies, -U68-72 linguistic philosophy, 102, 103
professionalism, and, 177-8, 218 legal positivism, defence of, 219
rights, view of, 168 legal realism, and, 194
Index 273
Hart, H.L.A. - continued Jurisprudence - continued

legal system, rule of, recognition definition, 2
of, 100, 101 fields of, 2
legal theory, justification of, 7 historical, 38-51
linguistic empiricism, 87-92, 185 materials of, 8
linguistic philosophy, 89-91 Maine’s, 41-4, 221
natural law, acceptance of, 145 philosophy, differing from, 5
normative and predictive realistic, 188
language,use of, 93, 94 sociological, See pound, roscoe
political theory, 115,116 Jurists
professionalism, and, 218 work of, 4
Rule of Law, and, 99, 100
rules— Kantorowicz, Hermann, 204
internal and external views, Kelsen, Hans
distinguishing, 10, 93-4 Anglo-American environment,
obligation imposing, 95 in, 84, 106
open texture of, 103-6 Austin, and, 84
power-conferring, 64, 66
basic norm, postulating, 110, 111
primary, 96-8
conceptualism, 106-9, 230, 233
recognition, of, 97, 100-1, 110,
concretisation, 109
111
democracy, on, 114
secondary, 97-100
doctrine of sovereignty, view
theory of, 92-4
of, 115
sociological drift, 94-6
Hart contrasted, 84, 85
utilitarianism, 219
intellectual scope of work, 84
work of, 83
judge’s decisions, and, 151
Hobbes, Thomas, 57, 59, 67, 68, 75,
legal theory, 7, 84, 143, 232, 233
148
politicisation, protection of law
Hoebel, E.A., 197
from, 127
Hohfeld, Wesley, 88
Holmes, Oliver Wendell, 7, 191, 203,
professional relevance, 108
210 sociology of law, on, 108-9, 230
Honore, Tony, 14
state, view of, 113
Horwitz, Morton, 211-2 syncretism, rejection of, 107
theories, development of, 84
James, William, 185 Kirchheimer, Otto, 133, 134
Judges Klare, Karl, 212
common law, 25, 26 Kocourek, Albert, 89
delegates of sovereign, as.JZifcJ Kohler, Josef, 163
discretion, exercising, £tM, 171j)
formal style judging, 199 Lasswell, Harold, 207
grand style judging, 198, 200-2 Law
intrumentalist approach, 156 character of, 1
interpretation by, 173-5 codification, time for, 38
jurisdiction, exceeding, 65 coercive structure of, 59-63
organicist approach, 156 changes in, 28
predictability of decisions, JL&L- common, See common law
principle, application of, (171, 172 community, relationship with, 175—
Judicial behaviouralism, 210 7
Jural postulates contractual ordering, 141, 142
law, in, 163, 164, 179 customary, 141, 142
Jurisprudence economic analysis, 208, 209
analytical, 87-9 enacted, 141
274 Index
Law - continued Legal positivism - continued

fiat, as, 139 inadequacies, 145
generality, requirement of, 60 legal decisions, no analysis of
government, as, 61, 62 making, 149
hermeneutic understanding legal doctrine, content of, and, 225,
of, 101-3 226
intellectual discipline, as, 222 natural law, and, 118-22, 129, 149
internal and external matters, 10- natural law writers, view of, 127,
11 128
internal morality, 132, 137 other legal environments, in, 151
interpretation, as, 173-5 use of term, 120
knowledge, as, 33, 34
values, approach to, 143
“law and society” movement, 207, Legal practice
208
legal philosophy, and, 4-6
legality, ideal of, 132-6
Legal profession
morality, separation, of, 119
Austin, influence of, 79-82
Nazi, 131-4
Legal realism
other phenomena, and, 57-9
American, 184,202-6
own creation, regulating, 109-12
causes of, 202-6
politics, and, 12, 13, 217, 219-20
positive, 58 certainty, abandonment of, 192
precepts of, 153, 154 common points of departure, 8,
reason, as, 34 188
sanction attached to, 62-7 constructive doctrinal, 193-202
scientific, 59 corporate personality, issues
social practices, complex of, 92 of, 186
species of command, as, 59 Germany, in, 204, 205
systematic rationality, 227 Las-dougalism, 206, 207
unity of, 9 legal professionalism, and, 213-5
Legal authority New Deal, effect of, 203-5
natural law, and, 125-7 normative legal theory, and, 188-
Legal doctrine 94
organisation of, 6 policy-science, and, 192, 193, 206-9
technicality of, 5-6, 124 pragmatism, and, 185-188
Legal institutions radical scepticism, 193, 210-213
meaning, 3 Scandinavian, 184, 205
Legal philosophy
conceptual clarification, importance Legal system
of, 2 moral content of, 130
contextual interpretation, 17-20 recognition, rule of, 100, 101
legal practice, and, 4-6 Legal theory
legal theory, contribution to, 3, 9 empirical, 3, 15, 16, 208, 234
materials of, 8 legal philosophy, contribution
matters encompassed by, 2 of, 3,9
modern state, law in, 3 normative, See normative legal
political significance, 12, 13 THEORY
sceptical tendencies, 8 sociology of law, contribution of, 3
social and political context, in, 14- use of term, 3
17 Legislation
Legal positivism common law, and, 30-3
Fuller, views of, 135, 138, 139, 142 development in English law, 31
143 role of, 40
Hart, defence of, 219
Levy-Ullmann, Henri, 22
Index 275
Llewellyn, Karl Natural law - continued

behavioural perspective on rebirth of, 127-9
law, 196, 198 taming of, 145-9
Cases and Materials on Sales, 195 theory, 120
Common Law Tradition, 197, 198, United States, in, 122
199, 200 weaknesses, 149
constructive doctrinal realism, 194— Nazi Era
202, 231-2 Anglo-American lessons,
doctrine, view of, 231 from 129-32
formal style, 199-201 law, use of, 131, 132
grand-style, 198, 200-2 legal system, non-existence of, 133
native tribes, study of, 197 passive view of legality, effect
New Deal, not supporting, 205 of, 143
paper rules, concept of, 191, 195 rule of law, and, 128
period-style, 198-200 Neumann, Franz, 133, 134, 138, 143
realism, defence of, 188-90 Normative legal theory
realistic jurisprudence, 188 Austin, contribution of, 53
title, concept of, 195 clarification of concept of laws,
Luhmann, Niklas, 124 making, 16
destiny of, 231-5
Maine, Sir Henry failing of, 233, 234
historical jurisprudence, 41-4,232 interpretation, difficulties in, 14
legal profession, and, 47-9, 79, 221 judges, role of, 150, 151
new science, 49-51 justifying, 6-9
politics and society, on, 44-7, 77, lawyers, perspectives of, 16
78 meaning, 3
MacCormick, Neil, 101, 102, 145, 250-1 modern legal practice, and, 223-8
McDougal, Myres, 207 partial perspective, as, 16-7, 19-20,
Mcllwain, Charles, 31 228-31
Maitland, Frederic, 35, 36 political and professional uses
Mannheim, Karl, 18 of, 9-13, 216-20
Manning, C.A.W. 70 presumptions, 216
Mill, John Stuart, 77 professional context, in, 12, 13,
Moore, Underhill, 189, 207 217-9, 220-8
Morality realism, and, 188-94
social context of law,
aspiration, of, 136
excluding, 15, 16, 217
duty, of, 136
value of, 220-3
law, separation from, 119
positive, 59
Morison, W.L., 85
Parliament
Natural law supremacy of, 31, 32
appeal of, 127 Philosophy
classical common law thought, legal. See legal philosophy
and, 121, 122 linguistic, 89-91, 102, 103
decline of, 122-4 pragmatist, 185
Finnis, philosophy of, 146-9 Politics
Fuller, strategy of, 131 common law thought, and, 35-7
legal authority, and, 125-7 professionalism, and, .12, 13, 142-4
legal positivism, and, 118-22, 127— Postema, Gerald, 33, 76
9, 149 Pound, Roscoe
minimum content of, 145 administration of justice, attack
politics, in, 125 on, 157
276 Index
Pound, Roscoe Rule of Law - continued

common law, and, 23, 155, 157, doctrine of, 60, 83, 133
161, 162, 165-6 Hart’s theory, and, 99, 100
democracy, suspicion of, 167 Rules
Dworkin, and, 151-2, 166-8 centrality, 105
early writings, 154, 155 certainty, governing, 105
intellectual reputation, 152 character of, 92-4
jural postulates, view of, 163, 164 core and penumbra, 105
law, definition of, 153-4 determinate, 105
legal development, view of, 153, insiders and outsiders, 94
154, 225 legality of, 134
legal profession, status of, 154-5, normative language about, 93
218 obligation-imposing, 95
legal theory, 7 open texture of, 103-6
legal realism, attack on, 165, 188 paper and real, 190
legislation, defence of, 157-8 power conferring, 63-7
natural law, view of, 128, 154 predictive terms, 93
pragmatism, appeal of, 165 principles controlling applicability
Progressive movement, of, 170
supporting, 164, 165 primary, 96-8
social engineering, 156 procedural, 66
sociological jurisprudence— secondary, 97-100
development of, 151, 152
label, use of, 152, 153, 165 Sanctions
measure of values, identification Austin, view of, 62-7
of, 162-64 power conferring rules, and, 63-67
outlook of, 7, 156-9 punitive, 62
programme for, 159, 161 requirement of, 63
wider context, in, 164-6 Savigny, Friedrich Carl, von, 38-41,
theory of interests, 159-62 44, 54
Pragmatism Scepticism,
legal realism, and, 185-8 fact and rule, 192
philosophy, 185 normative analysis of law, of, 183
Pound, view of, 165 post-realist radical, 210-3
Progressive movement radical, 193
legal theory, 165 rule, 194
Schlegel, J.H. 189
Raz, Joseph, 99 Schmitt, Carl, 112
Realism Simpson, Brian, 23, 28
legal. See legal realism Skinner, Quentin, 17
policy-science, 192, 193, 206-9 Sociology of law, 2, 3
Roman law Sovereign
Austin, influencing, 55 characteristics of, 69-72
codification of, 38 commands of, 67
Roosevelt, Franklin
constitutional law, in, 70
New Deal, 203-5 illimitable, to be, 69, 72-4
Ross, Edward, 153
independent political society, of, 68
Rule of Law
institution, acceptance as, 74
alternative meanings, 128, 129 135 Sovereignty
148-9, 220 Austin’s theory of, 67-77
Austin and, 60, 74, 83 delegation of, 75-7
defence, as, 128
Kelsen, view of, 115
democracy, and, 112-6 location of, 71
Index 277
Sovereignty - continued Uniform Commercial Code, 196, 201-2

pre-legal notion, as, 70 Unity
social contract, 68 common law, of, 23, 24
United States, location in, 71 culture, of, 50
Stone, Julius, 86 law, in, 9
Strauss, Leo, 124 Utility
principle of, 55, 56
Theory
legal, See legal theory: normative Veblen, Thorstein, 224
LEGAL THEORY
Twining, William, 207 Waismann, Friedrich, 104
Weber, Max, 106, 123, 130, 145, 148
United States Wigdor, David, 156, 164
natural law ideas, 122 Wittgenstein, Ludwig, 89, 91
realist movement, 184
sovereignty, location of, 71

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A Critical Introduction to Legal Philosophy

Roger Cotterrell LLD. MSc (Soc)

Australia Butterworths Pty Ltd, SYDNEY, MELBOURNE, BRISBANE,

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USA Butterworth Legal Publishers, AUSTIN, Texas; BOSTON,

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© RBM Cotterrell 1989

Typeset by Kerrypress Ltd, Luton

This book aims to survey key theoretical contributions to the field

controversies around modern theories of sovereignty, the enduring

influential imports from elsewhere are included where a knowledge

of Texas Law School who also read and commented on parts of

1. Legal Philosophy in Context 1

2. The Theory of Common Law 21

3. Sovereign and Subject: Bentham and Austin 52

4 . Analytical Jurisprudence and Liberal Democracy: Hart and

5. The Appeal of Natural Law 118

The Problem of the Creative Judge: Pound and Dworkin 150

7. Varieties of Scepticism 182

Post-Realist Policy-Science 206

8. The Uses of Theory 216

Notes and Further Reading 236

Most lawyers have little difficulty in recognising ‘law’ as a clearly

Jurisprudence, Legal Philosophy and Legal Theory

However, the legal realm can be looked at in ways that go beyond

or another, with this broader significance of law, is jurisprudence.

legal institutions1 in their historical context and social environment.

1 By legal institutions I mean here patterns of official action and

so have sought to contribute to legal theory and, in doing so, have

Legal Philosophy and Legal Practice

Since the 1960s, Anglo-American legal philosophy has become more

nineteenth century during the period in which most of the theoretical

unified by broad principle or philosophically coherent concepts.

Justifying Normative Legal Theory

The justifications which Anglo-American jurists have given for their

work in normative legal theory often emphasise its practical role

in orientation. It remains, like all normative legal theory, grounded

and normative legal theory in particular. The latter is typically

Unity and System in Law

So the puzzle still remains. What if anything can be said, in general

somehow rationally or purposively interconnected and yet clearly

Professionalisation and Politics

The concern of normative legal theory with such matters as unity,

relationship? How far can legal reasoning and judicial decisions

Legal Philosophy in Social and Political Context

Objections might be raised to this kind of emphasis in interpreting

interpreted. One writer has recently suggested that although Hart’s

2 See on this e.g. Moles 1987; Sugarman 1986: 43.

been defined in this chapter, attempts to explain the nature of law

How Should Legal Philosophy Be Interpreted Contextually?

The method advocated here is related to those now widely adopted

direct line of intellectual development which threads its way as

Cf. Collini, Winch and Burrow 1983: 4, noting parallel problems in

on their own terms, with a concern to interpret them in terms