If one looks at Austin’s work – and, similarly, ifone prefers to trace the roots of legal positivism tothe early writings of Jeremy Bentham (1748–1832) (Bentham 1970; Bentham [1789] 1996)or the work of the English political theoristThomas Hobbes (Hobbes [1651] 1996) – thenthe purpose of proposing a legal positivist position seems straightforward: it is an effort to establish a study of the nature of law, disentangledfrom proposals and prescriptions for which lawsshould be passed or how legal practice should bemaintained or reformed.One might push a little further, and discusshow Austin ([1879] 2002, vol. 2: 1107–8), and,some decades later, Hans Kelsen (1881–1973),emphasized the objective of making law into a‘‘science’’ (though, as regards Kelsen’s work, itshould be noted thatWissenschaftin German hasa much broader extension, and fewer implications, than ‘‘science’’ in English). Kelsen wasreacting against sociologists of law; he sought a
way of studying law ‘‘as such,’’ purified of history,
social theory, and so forth (Kelsen [1934] 1992:
7–8). Kelsen was thereby taking the concerns of
Austin and Bentham a step further: to exclude not
only practical and theoretical disquisitions about
how governments should be organized, but also
to exclude more academic discussions about the
history or sociology of the law, and the like. These
were times when there was great optimism that
the same sort of rigor and objectivity could be
applied to the study of human behavior that had
been applied to the physical sciences, and that
perhaps the same level of progress could be
made. While this sort of optimistic ‘‘delusion’’
about the human sciences is at least as old as the
Enlightenment (e.g., Berlin 1997: 326–58), a
similar sort of optimism has dominated thinking
about law at various more recent periods – not
only in Christopher Columbus Langdell’s (1826–
1906) quasi-scientific thinking about law and
legal education that notoriously grounded his
new ‘‘case method’’ at the end of the nineteenth
century and the beginning of the twentieth century (see Twining 1985: 11–12), but also in the
writings of American legal realists (and the postrealists) of the early and middle decades of
the twentieth century, when these writers
offered ‘‘policy science’’ as the way to make law
‘‘modern’’ and ‘‘objective.’’ See AMERICAN
LEGAL REALISM.
We may treat such views as naı¨ve, or at least
misguided; we may think that it only tends to hide
or disguise the political aspects of law and the
inevitable biases of its commentators to use a
term like ‘‘science’’ which (in English at least)
implies a level of objectivity and disinterestedness
that we are unlikely to attain in the study of how
societies regulate their citizens through rules and
institutions. However, if we consider the search
for a ‘‘science’’ of law at a more general or more
metaphorical level, the objective is simply aseparate studyof law – a study in the ‘‘scientific spirit’’
of independent observation and analysis, separate
from the important, but quite different, striving
for legal reform and justice. And, so understood,
the objective seems neither misguided nor naı¨ve –
though it may yet turn out to be unobtainable.
There seems less significance (and less urgency)
today than there was two hundred years ago to an
argument urging the separate study of ‘‘law as it
is.’’ We are living at a time where we are surrounded by law schools – almost certainly too
many rather than too few – devoted to the
graduate-level study of law and legal practice,
and journals devoted to every aspect of law and
every conceivable approach to its investigation. It
should be remembered that things were much
different as recently as two hundred years ago
(around the time when legal positivism had its
beginnings) – a time when there was little university-based legal education, either in the United
States or in England. The first time a law school
appeared as a professional school within an
American university was in 1817 (at Harvard
University). Prior to that date, law schools were
largely proprietary institutions, set up independent of university education – though there was a
professorshipin law somewhat earlier, at the College of William and Mary in 1779 (Warren 1908,
vol. 1: 1). In England, the first university instruction in the common law came as late as 1753, with
Sir William Blackstone’s Oxford University lectures (Holdsworth 1903–38, vol. 12: 91); the
first Chair in Law outside of Oxford and Cambridge was given to John Austin at University
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