(4) It emphasizes the independent character of law in social development. Political history, economic development, cultural progress have each a different story to tell. These factors may have changed pari passu and incontestably they have all reacted on the law. But the law has a history of its own and there is only a limited correspondcace between the stages of legal devel opment and those of any of the other social factors.
(5) It is in keeping with a widespread movement in jurispru dence for the development of judge-made law, for enlarging the scope of the judge's functions and liberalizing the influences which condition his work. This is much in evidence in the United States.
The following (among other) authorities should be consulted: J. W. Salmond, Jurisprudence (1908) and the authors mentioned in the bibliography; E. Picard, Le Droit Pur (1899) ; C. del Vecchio, I Presupposti (1905) ; R. Pound, Opera Omnia (Outlines of Juris prudence, 1914, has a useful bibliography) ; F. Somlo, Juristz:sche grundlehre (Leipzig, 1917) ; H. Goitein, Primitive Ordeal and Modern Law (1924) • The most prolific if not the principal rule-making organization in the modern world is the State, but as it happens the theory of the State is the peculiar concern of the political thinker. For forms of government let philosophers contend. When the jurist steps in the whim of Caligula may be as much law as an act of parliament. The supreme need of the lawyer is to be assured of the authenticity of his rules. This topic is traditionally dis posed of under the heading of Sovereignty and little need have been said about it but for the stir it caused some hundred years ago. The law had become petrified and reform all round was long overdue. The reformer was found in Jeremy Bentham, a man of extraordinary parts. No wonder he gained disciples and Austin offered him a Boswell's devotion. Now Austin had con ceived his idea of law in the army, so at least Mrs. Austin's biog
raphy would indicate. Law was a command, the command of the sovereign. For centuries legal sovereignty (i.e., the final authenti cation of rules to be applied in the English courts) had lain with king, lords and commons. That is still the theory of English law. Now if anything the sovereign chooses to command is law, popu lar legislation can usher in the Benthamite era. It did ; and Austin was all for furthering the good work. He analysed the theory of English law and found the real sovereign to be king, lords and— electors. A little Procrustean perhaps but next morning the political sovereign (i.e. the community [electors] politically or ganised) arose from his bed as the legal sovereign. No wonder the Germans called Austin 'tendentious.' The following are among the more important recent discussions of the subject. L. Duguit (Bordeaux) Law in the Modern State (1913, transl. F. & H. Laski 1921) ; H. L. R. vol. XXXI pp. 51-185, F. Geny, Rev. Trim. de Droit Civil no. 4 P. 779-829; H. Laski (Oxford) Studies in the Problem of Sovereignty (1917), Authority in the Modern State (1919), A Grammar of Politics (1925) ; H. Kelsen (Vienna), Der Soziologische and der juristische Staatsbegriff (1922), The Conception of the State of Social Psychology, in the Internat. J1. of Psycho-Analysis vol. V, p. 1 (1924), and Theorie Generale de l'itat, in Revue du Droit Public, vol. XLIII no. 4, pp. 561-646 (1926) ; J. Krabbe (Leiden) The Modern Idea of the State (The Hague, 1915 transl. G. H. Sabine and W. J. Shepard 1922) ; F. Som16 (Kolozsvar) Juristische Grundlehre pp. ; C. Schmitt (Bonn),'Soziologie des Souveriinitiitsbegriffes in Erinnerungsgabe fiir Max Weber (edit. M. Palyi 1923) ; and a most valuable essay by John Dickinson (Prince ton, U.SA.) A Working Theory of Sovereignty in Pol. Sc. Qu. vol. XLII pp. 524-548 (2927) and vol. XLIII pp. 32-63 (1928).