14 Roscoe Pound 



While German jurists were coming back to the imperative 

 idea, English jurists were engaged in getting away from it. The 

 century from Blackstone to the Judicature Act was one of legis- 

 lation. The growing-point of our law has been shifting slowly 

 but surely to legislation for a long time. Nevertheless the dom- 

 inant element is still case law, and common-law legislation is still 

 very largely a mere outline, to be filled in by a judicial gloss. 

 In consequence legislation has been so active that English jurists 

 could not overlook the imperative element, and yet the other ele- 

 ment has been too conspicuous to make it possible for an ex- 

 clusively imperative theory to remain current. At the beginning 

 of the reform-movement we find Bentham, the founder of the 

 science of legislation, in a treatise on the principles of legisla- 

 tion, saying that "a law is either a command or the revocation 

 of one." 1 His disciple Austin, writing when the reform-move- 

 ment was in full career and was producing all manner of arti- 

 ficial changes, so that such parts of the law as remained in their 

 original condition did so, as it were, by the grace of parliament, 

 worked out this idea rigorously in all its consequences and 

 founded his system upon it. The general and almost blind ad- 

 herence to Austin's theories at one time, and the no less general 

 and perhaps at times little less blind repudiation which has come 

 by way of reaction, have obscured his true position in the history 

 of jurisprudence. In many respects he marks the end of a period 

 rather than a starting point. But the exactness and severity 

 with which he summed up and restated what had long been the 

 English theory of law made an issue on which the historical 

 school could and did join. Blackstone had said already that law 

 was a "rule of action which is prescribed by some superior, and 

 which the inferior is bound to obey;" likewise, that it was a 

 ''rule of action dictated by some superior being." 5 But along 

 with these statements Blackstone laid down, with no apparent 

 thought of inconsistency, the most extreme views of Natural 

 Law. Austin saw the inconsistency, and was never weary of 

 pointing it out. Having to choose between the two ideas, in 



1 Principles of Morals and Legislation, 330 (1789). 

 2 1 Comm., 38, 39. 



262 



