REVIEWS
| Published date | 01 May 1955 |
| DOI | http://doi.org/10.1111/j.1468-2230.1955.tb00302.x |
| Date | 01 May 1955 |
REVIEWS
THE
PROVINCE
OF
JURISPRUDENCE DETERMINED,
ETC.
By
JOHN
AUSTIN.
Introduction
by
H. L.
A.
Hart,
Professor
of
Juriti
prudence
in
the University
of
Oxford. [London: Weiden-
feld and Nicholson.
1954.
xxi
and
896
pp.
12s.
6d.l
THE
republication of Austin’s
Province
of
Jun’sprudence Determined
in
this
new series, which will present to the more general public
a
number of signi-
ficant works
in
the history of thought and ideas,
is
a
most welcome event
AS Professor
Hart
remarks in his introduction, Austin’s work has been
criticised almost incessantly since
its
appearance yet “never since his death,
has it been ignored.” Indeed, some of the most significant contemporary
works
in
the field
of
analytical jurisprudence, in particular the doctrines
of
Kelsen, Hohfeld,
Soml4
Kocourek, have served to underline the lasting signi-
ficance of Austin’s attempt to define the necessary concept of
a
science
of
law. At the same time, the struggle of
our
generation for an effective inter-
national order has underlined the significance of Austin’s distinction between
positive law and positive morality.
As
a
standard of reference, Austin’s work
remains indispensable although it is sincerely to be hoped that the science
and teaching
of
jurisprudence,
in
England and elsewhere,
will
never revert to
the sterile illusion that the analysis of concepts
is
the entire domain
of
juris-
prudence. Professor Hart-whose short introduction, partly biographical and
partly analytical, unfortunately gives no more than
a
few critical comments
on
Austin’s system, instead of
a
comprehensive contemporary appreciation-
observes that “English jurisprudence has been and still is predominantly
analytical in character,” and that
‘I
other influences
.
. .
have been secondary.”
The correctness
of
this assertion seems to depend very much on the scope
we give to the science of jurisprudence. If we go by titles
of
books, then the
Austinian tradition has, until well into
this
century, almost
a
monopoly
of
“jurisprudence” (Markby, Holland, Salmond, etc.). But if the areas that
Austin
or
Kelsen-neither of them quite consistently-exclude from the
pro-
vince of jurisprudence, namely the study
of
the interrelation
of
law and ideas,
law and social changes, public policy, etc., are regarded
as
a
vital part of the
study
of
jurisprudence, then surely the influence
of
such writers
aa
Maine,
Dicey, Bryce
or
Maitland,
is
at
least equal if not greatly superior to the
dfective influence of the analytical jurists. Nor should we be unduly
impressed by the countless repetitions
of
the well-worn platitude that judges
are only concerned with the law
as
it
is
and not the law
&s
it ought
to
be.
Perhaps the most interesting section in this most attractive edition
is
Austin’s lecture on
“
The Uses
of
the Study of Jurisprudence,” published after
his
main work. This was an introduction to the course
of
lectures which
Austin gave
at
the University
of
London from
1828
to
1832.
In this lecture
he outlined the reasons for teaching jurisprudence and-a matter
of
particular
interest to readers
of
this review-the reasons why there should be fully
fledged law faculties
at
universities, and why London possessed particular
qualifications for such
a
faculty (it took nearly
a
century for the realisation
of this suggestion). One hundred and twenty-five years later, Austin’s plea
for
the advantages which
a
law faculty would bring, such as
“a
juridical
literature worthy
of
the English Bar,” good legal treatises,
or
the advance-
ment of law and legislation
as
sciences by
a
body of men “specially devoted
to teaching them
as
sciences,”
is
by no means out of date. Following similar
pleas, made about the same time
(e.g.,
by the New York Attorney-General
306
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