The Province of Jurisprudence Redetermined1
| Date | 01 July 1944 |
| DOI | http://doi.org/10.1111/j.1468-2230.1944.tb00973.x |
| Published date | 01 July 1944 |
| Author | Julius Stone |
THE
MODERN
LAW
REVIEW
VOl.
VII
JULY,
1944
No.
3
THE
PROVINCE
OF
JURISPRUDENCE
REDETERMINED’
I.
THE
AUSTINIAN
REVELATION
HE
English-speaking world has moved uneasily into its second
century of the teaching
of
jurisprudence. Within the ranks of those
who
have
known the subject to be worthy of study, great progress
has
been
made.
The
field opened up by Anglo-American legal scholarship
is impressive.
It
is
impressive even when compared with that
of
Contin-
ental Europe, though with one exception Anglo-American initiative has
operated from
the
rear
of
the advancing juristic forces. Analytical juris-
prudence
is
of
course
the
notable exception.2 A movement which
mono-
polised
the
field
of
English jurisprudence for
a
half-century
after
Austin
scarcely came
to
self-awareness in Germany
until
the work
of
Binding in
1872,~
in France until the work of Roguin in
188g,4
and on the Continent
‘’Being the Introduction to a projected textbook on jurisprudence (First Part).
a
Even this might be challenged if the achievements
of
the glossators and
commentators and the learning following Savigny‘s
System des Heiitigelr Roemischen
Rechls,
1840-1849,
be given their due weight. The German influences on Austin
himself (see Schwarz, “Austin and the German Jurisprudence of his Time,”
Politica,
1934.
and the list
of
Austin’s books, in Austin,
Lectures
on
Jurisprudence,
3
ed.,
ix-Xiii, and the heavy reliance of the English analysts at the end of the
century on German scholarship confirmed this comment. See Markby,
Elements
of
Law,
5
ed.,
1896, 155;
Holland,
Jurisprudence,
Preface to first edition,
1880
(for heavy reliance on the
Pandekten).
The writer does
not
suggest that
in
many
of its features analytical jurisprudence is not to be traced much further back.
See for many suggestions and bibliography
on
this point
:
I
saacs, “The Schools
of Jurisprudence,”
31
Huru.
L.
Rev.,,
373,
esp.
396-400
(I
917)
:
Pound, “The
Scope and Purpose of Sociological Jurlsprudence,”
24
Haru.
L. Rev.,
591, 594-98
(I~I!)
;
Berolzheimer,
World’s Legal Philosophies.
The present paper 1s
dealing with identifiable trends of the nineteenth and twentieth centuries.
a
Die
Normen
und ihve Uebertrelung,
Vol.
I,
1872,
Vol.
11,
1877.
T
Le
Rkgle
de DYoct.
1889.
98
MODERN
LAW
REVIEW
July,
1944
generally
until
the work
of
Kelsen and
his
school beginning the second
decade
of
the present
century.&
Clearly the Anglo-American contribution has been pre-eminently
in
the
analytical field.
This
may,
in
part,
explain
the
English lawyer’s
belief
that
analytical jurisprudence
is
“The Jurisprudence
”
as
clearly and
indubitably
as
Aristotle
was “The Philosopher”
for
the medievals.
For
the purpose
of
training practitioners,
at
any
rate,
jurisprudence
is
still
an approximation
to
Holland’s “formal science
of
positive law.”
It
consists
more
or
less exclusively
of
the definition
of
legal
concepts and
precepts
with
a
view to ascertaining the
logical
relations between them,
and
to
arranging them
in
an orderly system
or
systems.a
This
stranglehold of the logical science
of
legal relations
is
not
to
be
explained solely by
its
profitability,
or
by
the enthusiasm of
its
devotees.’
See
Kelsen,
Hauptpbleme der StaatsrecMlsehre.
1911.
For
selected
biblio-
graphy
see
Lauterpacht, Kelsen’s Pure Science of Law,” in
Modern Theories
of
Law (1933).
p.
104,
and for a,pelection of the Anglo-American commentaries
on
Kelsen’s theory see Kelsen. The Pure Theory of Law and Analytical Juris-
prudence” in
55
Haw.
L. Rev., 4411. (1942).
The most recent and perhaps fullest
survey of the whole school is Ebenstein.
Die Rechtsphilosophische Schule der
Rmnen Rechtslehre, 1938.
Nevertheless,
it
is
of some signiiicance
that
these
analytical trends
on
the Continent appeared quite independently of the English
analytical school. For instance, both
Roguin
and Kelsen underwent
in
their
turn the ordeal of discovering somewhat belatedly
that
John Austin’s work
might have some relevance for systems they
had
enunciated
as
novel.
See
the
somewhat amusing apologia for oversight in
Roguin,
La
Science
Juridque Pure,
3
vols.,
1923.
Vol.
I,
p.
6511.
On
Kelsen and Austin
see
Ehrlizh,
Fundurnenfd
Principles
of
the Sociology
of
Law,
transl. Moll,
1936, 484,
Stone, Book Review,”
47
Haw.
L.
Rev. 719,
725
(1934).
and Kelsen,
The Pure Theory
of
Law and Analy-
tical
Jurwprudence, ctt. supra,
p.
44.
In the latter article
(at
p.
54)
Kelseh tells
us
that “while the pure theory of law arose independently of Austin’s famous
Lectures
on
Genera Jurisprudence
it
corresponds in important points with Austin’s
doctrine.
It
is submitted that where they differ the pure theory of law has
carried out the method of analytical jurisprudence more consistently than Austin
and his followers have continued in doing.”
a
We are not here concerned with the different though related question of
the place of logic in legal thought generally. The use of syllogistic logic in law
and even the building of a jurisprudence of conceptions may proceed without
any attempt to render the entire system entirely self-consistent. Analytical
jurisprudence, as above defined, involves essentially such
a
stulate of
self-
consistency, either in the whole body of the law or iy, some suctantial parts
of
it.
At the same time, Professor Dewey’s point
that
As
a
matter of fact, men
do not begin thinking with premises.
. . .
Premises only gradually emerge from
the total situation.
. . .
The problem is to
find
statements
of
general principle
and of particular fact, which are worthy to serve as premises” is applicable
:fortiori
as
an objection to any exclusivist claims of analytical jurisprudence.
Logical systemisation with a view to the utmost generality and consistency of
ygmitions is indispensable, but is not ultimate.
It
is
a
means of improving;
ac’
‘taeg,
clarifying the inquiry that leads up to concrete decisions.
.
. .
Dewey, Logical Method and Law,”
10
Cornell L.Q.
17ff.
(1924)
quoted in
Hall,
Readings
in
Jurisprudence, 345, 34.8. Cf.
on
the dominance of the analytical
approach
in
England,
J.
W.
Jones,
Aims and Methods of Legal Science,”
47
L.Q.R., 62, 62-63 (1931).
Conversely, shifts of juristic interest to other
:pproaches have produced denials that analytical jurisprudence merits the name
science.“ See Willard,
The Nature
of
Institutional Law,
p.
41 (1882)
;
cf.
Ehslich,
Grundlegung der Soziologie des Rechts, 1913,
p.
384,
Moll’s transl.
474
ff.
The
present writer
has
felt
it
necessary not to encumber the subject with discussion
of the merits of the various claims to the hall-mark
of
science.
7
On
the lack of the “enthusiasm” of the devotees of analytical jurisprudence,
see Jennings, “A Plea for Utilitarianism,”
2
MOD.
L.
R.
22
(1938).
at p.
33,
and
of Dr.
C.
K.
Allen, “Jurisprudence, What and Why.” in
Legal Duties, 1931.
PP.
25.
27.
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