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Scholars of the Law: English Jurisprudence From Blackstone to Hart

Richard A. Cosgrove
Copyright Date: 1996
Published by: NYU Press
Pages: 272
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    Scholars of the Law
    Book Description:

    Law has been the missing link in modern British studies. Richard Cosgrove has begun single-handedly to change that. In unpretentious prose Cosgrove expertly guides the reader through the major works of half a dozen 'greats' as well as shrewdly assessing their current reputations. Scholars of the Law should inspire many more!--John V. Orth, The University of North Carolina School of Law Richard Cosgrove's Scholars of the Law begins with the emergence of the positivist belief that jurisprudence can solve the important social issues of the day. Legal theory in the twentieth century has become narrow and abstract, and contemporary theory, ever anxious to debunk elitism, ironically has become elitist itself. Charting the history of English jurisprudence through its key figures--William Blackstone, Jeremy Bentham, John Austin, Henry Maine, Thomas Erskine Holland, and H. L. A. Hart--Richard Cosgrove argues that jurisprudence must return to its interdisciplinary roots and draw upon economics, politics, and sociology. In short, theory and practice must be recombined.

    eISBN: 978-0-8147-2368-5
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-x)
  4. Chapter One From Jurisprudence to Legal Philosophy
    (pp. 1-20)

    The study of jurisprudence as a specialized branch of intellectual history has matured during the last two decades in conjunction with a renewed interest in legal history. In a letter to American jurist Oliver Wendell Holmes in 1880, A. V. Dicey, soon to revive the Vinerian professorship of English law at Oxford, wrote about the nuances of legal scholarship: “A work on law may, it seems to me, be concerned with any or all of three questionsfirstWhat is the law? (practical lawyer),secondlyWhat ought to be law? (Jurist or legislator),thirdlyWhat is the history of the...

  5. Chapter Two Sir William Blackstone: The Intersection of Positivism and Natural Law Theory
    (pp. 21-50)

    For much of the period since his death in 1780 Sir William Blackstone has fallen into that special category of intellectual whose works, although widely popular in his lifetime, gradually decline in influence in succeeding decades. This fate has befallen intellectuals from all disciplines and eras. In the passage from one generation to another their reputations hang increasingly upon mere phrases, and their complex arguments become trivialized. Where as historians of modern Britain know of Blackstone’s most famous work, theCommentaries on the Laws of England, as well as the fame it commanded, few intrepid scholars have examined the four...

  6. Chapter Three Jeremy Bentham: The Light of Utility
    (pp. 51-88)

    Jeremy Bentham took great pains to emphasize his differences with Blackstone. Bentham portrayed himself as the great advocate of legal positivism in opposition to the natural law assumptions of Blackstone. H. L. A. Hart has described the salient traits of Bentham’s jurisprudence that mark his radical departure from existing traditions:

    His imperative theory of law according to which laws are the explicit or tacit commands and prohibitions, standardly supported by coercive sanctions, issued by a sovereign legislator or legislative body or their subordinates, and the permissions to act or refrain from acting issuing from these same sources. The second of...

  7. Chapter Four John Austin: “The Matter of Jurisprudence Is Positive Law”
    (pp. 89-118)

    If Jeremy Bentham, in one guise or another, is well known to historians, John Austin, his most famous disciple in the field of jurisprudence, has languished in obscurity until recently. This indifference has been undeserved because Austin at one time exercised considerable influence, and he was “the most truly erudite jurist of the nineteenth century.”¹ An individual of decidedly modest reputation in his lifetime, Austin enjoyed a posthumous vogue that made him the leading figure in late Victorian jurisprudence. By the 1880s this brief ascendancy had already come under attack, and his reputation languished in the limbo of arcane footnotes...

  8. Chapter Five Sir Henry Maine: Historical Jurisprudence and Social Reform
    (pp. 119-146)

    Blackstone, Bentham, and Austin, though frequently thought of as so opposed to one another on many crucial issues, shared the belief that legal speculation served as an important medium for extensive social and political theorizing. The study of Sir Henry Maine and historical jurisprudence introduces, so it is usually argued, another significant example of the diversity of law’s empire. The conventional interpretation of Maine’s relationship to his learned predecessors has argued that an un bridgeable chasm separated the radically different approaches of natural law and of analytical and historical jurisprudence. This assessment specified a relatively simple process by which Maine...

  9. Chapter Six Sir Thomas Erskine Holland: The Transition to Modern Academic Law
    (pp. 147-178)

    The central position occupied by Sir Thomas Erskine Holland in the development of modern English jurisprudence may occasion some surprise. Not only has Holland’s reputation declined to the point of absolute neglect (indeed, it had suffered precipitously in his own lifetime), he was perhaps the least well known of the Oxford law professoriate that included Sir William Anson, James Bryce, A. V. Dicey, and Sir Frederick Pollock. This group attempted collectively to place English law and jurisprudence on a scientific basis, primarily along the lines first enunciated by Bentham and Austin. Unlike the majority of his Oxford colleagues, Holland had...

  10. Chapter Seven H. L. A. Hart: Law and Morality Reconsidered
    (pp. 179-206)

    In the first half of the twentieth century, as the generation of academic lawyers at Oxford who had matured in the 1880s eventually retired, their successors found little room for creativity. The paths into which Holland had turned jurisprudence now required learned commentaries on previous writings without concern for the discipline’s potential, and certainly far removed from the censorial role that Bentham had defined for himself. Scholars such as John W. Salmond, Paul Vinogradoff, William Holdsworth, and Carleton Allen earned solid reputations, and their careers do not deserve cavalier dismissal. Yet it must be said that their jurisprudence has never...

  11. Chapter Eight Conclusion
    (pp. 207-216)

    Twentieth-century historians of law and jurisprudence have altered dramatically the approach to their craft. The documentation of doctrinal evolution has given way to increased sophistication about the many influences that affect the study of law in its historical contexts. Increased emphasis on the importance of a wide range of extralegal factors added useful perspectives from areas such as economics, politics, and sociology. To the extent that these additions to traditional legal analysis provided new alternatives, legal history since 1960 has reasserted its claim as a fundamental field of historical inquiry as well as an important adjunct to the new social...

  12. Notes
    (pp. 217-238)
  13. Bibliography
    (pp. 239-258)
  14. Index
    (pp. 259-262)
  15. Back Matter
    (pp. 263-263)