131 * Professor of Legal History, Queen Mary, University of London. I am grateful to Dag Michalsen and the other participants in the seminar on Jurisprudence and Legal Doctrine for their comments on the paper when it was presented there. Many of the themes outlined in this paper are explored at greater length in my contributions to W.R. Cornish, J. S. Anderson, R. Cocks, M. Lobban, P. Polden and K. Smith, The Oxford History of the Laws of England, vols. XI-XIII (Oxford, 2010). he n i nete e nth century saw the transformation of much of Tthe English common law, as a system organized around forms of action developed in the middle ages and in the early modern era was replaced by one in which jurists sought to rethink substantive categories of law.The nature of the transformation raises the question of how far it was informed by a theoretical vision about the nature and purposes of law, or about how one should best structure a system of law; and how far it was shaped (as it were) from below, by judges and practitioners reacting to new problems as they came before the courts, through the process of making courtroom arguments. In what follows, it will be argued that the motor of English legal development in this era was forensic discussion; and that legal theory played a relatively minor role in this transformation. By comparison with the continental experience, legal theory was relatively weak in England after 1832, a year which saw the publication of John Austin’s The Province of Jurisprudence Determined, and the death of Austin’s intellectual mentor, Jeremy Bentham. Austin’s work became widely known only after his death in 1859; but instead of inspiring deeper theoretical insights into the nature of positivism, it was used in large part to teach generations of law students a set of dry classifications and analyses to Theory and Practice in the Development of the Nineteenth Century Common Law m i cha e l lob ban1 *
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