in Austin’s view, one did not need to be a philosopher to be a jurist. It was with this perspective in mind that Austin was able to borrow so heavily from the German Pandectist writers, whose work rested on epistemological foundations quite alien to his own. Austin’s work became best known after the publication of the second edition of the Province in 1861.This was the year in which Sir Henry Maine’s Ancient Lawwas published, bringing a revolutionary new vision to the study of law and legal development. Unlike Austin, Maine looked at the relation between law and society.He showed that doctrinal developments - such as the evolution of contracts or wills - were often haphazard, and were shaped by their social contexts. Just at a time when the publication of Austin’s lectures, and the revival of legal education of the Inns of Court, were generating new interest among English lawyers in Roman law, Maine showed that the lessons to be learned from that ancient repository were far more complex than Austin appeared to assume. Much of Maine’s history - both of Rome in Ancient Lawand of India, Ireland and eastern Europe in a number of works which he published in the following decades - challenged the very bases of Austin’s assumptions.The history of doctrinal categories traced in Ancient Law showed that there were no ‘necessary notions’, as Austin had assumed. Moreover,Austin’s concept of law as the command of a sovereign, which might be an adequate tool with which to analyze nineteenth century England, was hopelessly inadequate to explain societies such as India. Austin’s theory was “perfectly defensible as a theory,” Maine noted in 1875,“but its practical value and the degree in which it approximates to truth differ greatly in different ages and countries.”17 Most crucially, the jurist could not simply discount custom as a form of ‘positive morality’ which had no binding force until it had been incorporated into positive law by the decree of the sovereign’s judge. In ancient societies, “the great bulk of men derive their rules of life from the customs of their village or city.” If these customs were invariably followed, it made no sense at all to say they were “obeyed”.18 The very notion of rights and duties inhering in individuals made no sense in primitive communities. Maine’s writing was fluent, his style eloquent, and his appeal broad. His theory, tracing the development of legal concepts from a society m i cha e l lob ban 137 17 Lectures on the Early History of Institutions, p. 364. 18 Ibid., 392.
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