Legal Theories in England and America: The Nineteenth and Twentieth Centuries
In this and the next section we shall briefly survey developments in the nineteenth century. Our treatment in no way professes to be a full discussion of nineteenth-century legal thought: our main concern is rather with the 'fit' between English legal theory and the formal character of the English legal system. It is therefore enough to note here that in England the Benthamite positivist tradition took hold and waxed most vigorous. Because much of Bentham's work was wrapped in obscurities and jargon of his own invention, and because indeed so much of it remained (and still remains) unpublished, it was through the work of his disciple John Austin, rather than through Bentham's own work, that his views were propagated. But although Austinian positivism did differ in a number of respects from the Benthamite version, it was solidly cast in the same mould.
From the time of Bentham and Austin, English lawyers and jurists increasingly subscribed implicitly, if not explicitly, to many of their leading tenets. Precisely what those tenets were, and what some thinkers later took them to be, may well have become somewhat different things over the years. One of us has previously noted that some discussions of positivism often attribute views to Bentham and Austin which they did not hold and, indeed, in some cases, vigorously repudiated.1 Nevertheless, positivism of a broadly Benthamite character dominated English legal theory and the English legal system. Whether everything that was attributed to Bentham or Austin can truly be fathered on them is not, for this purpose, wholly material. Certainly, some of the central tenets of positivist thought must be attributed to them. In particular, the command or imperative theory of the nature of law took a firm hold, and this, as we have suggested, involved use of a purely formal standard for identifying (valid) law itself. What was law could only be identified by asking if it was something which had been commanded by the sovereign; what he commanded, and only what he commanded, was law. Law was not, therefore, something to be identified by reference to its substantive____________________
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Publication information: Book title: Form and Substance in Anglo-American Law:A Comparative Study of Legal Reasoning, Legal Theory, and Legal Institutions. Contributors: P. S. Atiyah - Author, Robert S. Summers - Author. Publisher: Clarendon Press. Place of publication: Oxford. Publication year: 1991. Page number: 240.
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