The Age of Bentham and Austin

Abstract

Hobbes’s attack on the common lawyers had presented jurists with the problem of how to reconcile a view which conceived of law in terms of authority, rather than reason, with the existence of a body of rules which were developed by courts over a period of time. Hale’s answer to Hobbes was to agree with his positivist conception of law, but to argue that the foundational rules of English law had originated in a past agreement, and were subsequently developed by judges. He had shown that judges, who had expertise in the law and experience of the world, could apply the rules of law to the new facts which came before them, judging when an old rule should be extended by analogy, and when there had to be resort to reason. However, while he spoke of the law as growing, Hale did not give a very detailed account of the methods judges were to use in developing the law, particularly in novel cases. Nor did his successor, Blackstone, add a great deal of enlightenment. Indeed, if the commentator was able to show that the fundamental rules of property could be clearly summarised and applied, in many other areas of crucial importance in a commercialising society, he was unable to explain how judges developed law, save by referring to ideas of natural equity.