gislature had allowed the common lawyers to cut free of utilitarian moral theory.Maine’s theory, which saw the law as articulating the values of the community over the long term,might have posed the question for the judges as to how they should uncover the popular will in the shorter term. But men like Pollock had no interest in developing such a theory. Having abandoned the Benthamic notion of a philosophic code, and having failed to take up Maine’s new method, late nineteenth-century jurists were happy to leave it to the judges to develop the law, without giving any guidance on how it should be done.The answers they gave to how the law developed were entirely pragmatic: the judge would simply look to what the community wanted, and would develop the law accordingly.Where the community got its moral ideas from was neither here nor there.26 Rather than exploring the nature or purposes of law, English jurists in the generations after Austin’s death continued to focus largely on the analytical study of legal concepts. Moreover, if there is room for disagreement over whether Austin’s own analytical jurisprudence, which spoke of “necessary” principles, notions and distinctions,27 was an empirical or a conceptual venture,28 English jurists who had read Maine’s comments that legal ideas were generalised from the facts of history accepted that the science was empirical.As Holland put it, jurisprudence was not an a priori form of reasoning, but operated a posteriori, being drawn from those relations which were clothed with legal character in different places.Working on the assumption “that the laws of every m i cha e l lob ban 141 left judges a large degree of discretion; for he said that the judge could derive a rule from“a custom not having force of law, but obtaining throughout the community, or in some class of it; [or] a maxim of international law; [or] his own views of what law ought to be (be the standard which he assumes, general utility or any other” Lectures, 4th ed., p. 660. 26 It should be noted that nineteenth-century moral philosophers were complicit in drawing philosophy out of law. Neither utilitarian nor intuitionist philosophers devoted much time to exploring the nature of law and legal obligation.Moreover, as writers like Mill pointed out, disagreements between moral philosophers centred on the ultimate foundations of morality rather than on practical moral rules, which for the most part followed the community’s expectations.These points are more fully explored inW. R. Cornish et al, The Oxford History of the Laws of England, vol. XI (Oxford, 2010), pp. 90-100. 27 Austin, Lectures, p. 1073. 28 See esp.W.L.Morison,JohnAustin(London,1982) and Julius Stone,Legal System and Lawyers’ Reasonings (London, 1964), pp. 66-92. See also Cotterrell, Politics of Jurisprudence, pp. 65-7.
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