The Province of Jurisprudence (Really) Redetermined

Abstract

When Julius Stone published his famous essay, The Province of Jurisprudence Redetermined, in 1944, he had reasonable cause for genuine optimism. English jurisprudence had been in the doldrums since the initial flurry of activity and excitement following Austin's launch of the modern project of analytical jurisprudence in 1832 with his The Province of Jurisprudence Determined. Most of the subsequent scholarship had simply refined and riffed unimaginatively on the basic Austinian themes. Yet, as the Second World War came to a close, there were signs that the time was ripe for a different and more vibrant approach to jurisprudential study. Julius Stone was at the forefront of such a spirited revival. Unfortunately, history has not been kind to Stone's optimistic obituary for analytical jurisprudence. Within a decade of his famous essay's publication, Hart's revival of legal positivism had restored the flagging fortunes of analytical jurisprudence. More sociologically-based efforts to expand the province of jurisprudence continued to be treated as marginal and secondary. This is an unfortunate state of affairs. Accordingly, in this essay, I want to do three things - to chronicle the hold that analytical jurisprudence still exerts as the 'default theory' of much legal thought and practice; to explore how Stone may have unintentionally contributed to that state of affairs; and to suggest how that continuing influence can be arrested and perhaps reversed. I intend to push through on an unconditional critique of analytical jurisprudence and to recommend an alternative approach that derives its rationale and motivation from a robust commitment to what I will term 'strong democracy'.