The Age of Maine and Holmes

Abstract

Building on the ideas of Bentham, John Austin developed an analytical jurisprudence which was to prove highly influential in the later nineteenth century. Although based on a command theory, Austin’s version was made more palatable to common lawyers since he argued against Bentham that law could be generated from the decisions of judges, and since he did not call for the abolition of the common law and its replacement by a code. While being the clearest exposition yet published of how the common law might generate rules, tensions remained in Austin’s theory. For although his analytical jurisprudence was premised on a definition of law as command, many of the rights and remedies he described were not clearly related to commands, while the closer one looked, the harder it was to see the rules which came from judicial decisions in terms of commands.