learn by rote. It would take H.L.A.Hart’s 1961 Concept of Lawto give English positivism a fresh start. By the time Austin’s Lectures were published, Henry Maine’s Ancient Law(1863) had appeared - to great critical acclaim - and promised a new form of historical and sociological jurisprudence. However, while Maine’s work had an immediate and significant impact on mid-Victorian intellectual life in general, it did not inspire common lawyers to develop in new theoretical directions. Instead, it simply reassured them about the legitimacy and status of their system of customary law; so that after his death, Maine’s work was seen as largely peripheral to the interests of jurists and lawyers.1 As shall be seen, English jurists who followed Austin and Maine were interested neither in broader questions about the nature of law and legal obligation, nor in developing philosophically informed treatises on substantive law. Instead of embracing the strong philosophical traditions which had developed in Britain during the Enlightenment, and which writers like John Stuart Mill sought to bring to a wider public, jurists focused on a narrow form of analytical jurisprudence.2 This meant that when it came to thinking about the common law, English lawyers remained stoutly pragmatic, finding solutions to problems when they presented themselves, and worrying about the theory later, if ever.At the very time that the forms of action were being reformed, and English common lawyers turned to develop the bodies of substantive law, so they paradoxically became decreasingly interested in questions of broad theory. To modern eyes, the most sophisticated English legal theorist of the nineteenth century was Jeremy Bentham. Bentham developed a utilitarian jurisprudence on the philosophical foundations of a materialist epistemology. Standing strongly in the tradition of Locke and Hume, he rejected the notion that there could be any innate ideas, seeing all knowledge as derived from sense-perceptions, particularly those of pleasure and pain. As Philip Schofield has recently shown, Bentham’s project of analyzing legal concepts, such as law, right and obligation, re cht swi s s e n scha f t al s j ur i st i sch e dok t r i n 132 1 He remains a peripheral figure in jurisprudence, though there are some notable exceptions: see R. Cotterrell, The Politics of Jurisprudence: a Critical Introduction to Legal Philosophy, 2nd ed. (London, 2003), pp. 40-8. 2 For an overview, see Neil Duxbury, ‘English Jurisprudence between Austin and Hart’,Virginia Law Review91 (2005), pp. 1-92. I
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