This paper first recapitulates the objections by H.L.A. Hart to the ways in which John Austin’s command model of law obfuscated the importance and the very existence of power-conferring laws. Although those objections are familiar in the world of contemporary legal philosophy, their insightfulness is highlighted here because they contrast so sharply with Hart’s own neglect of power-conferring laws at some key junctures in his theorizing. In the second half of this paper, I ponder a few of the junctures where Hart failed to heed the admonitions which he had so deftly leveled against Austin.

Jefferson appears to have conceived of natural law rather differently from his predecessors - namely, Saint Thomas Aquinas, Richard Hooker, Hugo Grotius, Samuel von Pufendorf, John Locke, and, among others, William Blackstone. This particular pedigree looked to divine decree or moral order to anchor natural law philosophy. But Jefferson’s various writings, most notably the Declaration and Notes on the State of Virginia, champion the thinking of a natural historian, a man who celebrated reason and scientific method, who extolled fact over fancy, material over the immaterial, observation over superstition, and experiment over divine revelation. They reveal, in other words, an Enlightenment homme du monde, a veritable encyclopedia of knowledge, able to discourse on any number of topics and to confront, as it were, his overseas counterparts, George Louis Leclerc and Comte de Buffon. Jefferson’s jurisprudence pivots on the dual valence of law and science. Jurisprudes have mostly ignored the sometime symbiotic relationship of law and science, just as they have downplayed or altogether ignored Jefferson’s unique contributions to legal philosophy. How does Jefferson’s natural philosophy conceptualize law? Science is all about studying objects and predicting their behaviors. If law is more than bills or statutes or glorified pieces of paper - if it is intangible but somehow immanent - how does one collect or observe it in nature? What is its ontology? Its epistemology? How do we discover it? How do we experiment with it? In what way is it, as Jefferson apparently believed, innate to humankind? This article will consider all of these questions while arguing for the inclusion of Jefferson into what I call the “natural law canon” of jurisprudence. I submit that Jefferson’s ideas about nature are tied to his ideas about reason and that his scientific approach to jurisprudence was not only innovative but nearly unprecedented. I have divided the article into two sections, the first dealing with Jefferson as a counteractive force to the positivist jurisprudence of Jeremy Bentham and John Austin, and the second dealing with such issues of materiality, reason, and experiment that make Jefferson’s jurisprudence truly distinctive. I am less concerned with tracing snippets of Jefferson’s writing back to Newton’s precise works or quotes than I am with demonstrating how Jefferson’s jurisprudence appropriates science, what makes that appropriation unique, and why that appropriation matters to a 21st century audience. These concerns alone should merit Jefferson’s inclusion in jurisprudence textbooks.

Allan Hutchinson’s recent book, The Province of Jurisprudence Democratized, is regarded as presenting the opportunity for considering what is involved in seeking to establish the province of jurisprudence as a distinctive field of inquiry. The scale of Hutchinson’s ambition matches John Austin’s original efforts to determine the Province of Jurisprudence, but seeks to replace an analytical approach to jurisprudence he associates with Austin by a theoretical approach committed to advancing “strong” democracy. This provokes an initial reflection on the nature of theoretical disageement, and in particular disagreement which goes beyond trivial theoretical contestability so as to contest the nature of the subject matter that is being investigated by establishing an appropriate field of inquiry for it. Three different techniques are introduced which are capable of demarcating the subject matter of jurisprudence through establishing a field of inquiry favouring a particular theoretical viewpoint: axiomatic disengagement, ambitious insight, and a split field of inquiry.

Hutchinson’s principal concern with the democratization of law, legal theory, and the province of jurisprudence is examined in detail. The process of democratization and its anti-elitist character is traced through Hutchinson’s opposition to the aloof philosophical analysis of the universal in favour of an engagement with local and particular issues. However, the weight Hutchinson places on his conception of strong democracy, so as to provide a different understanding of the the law-power nexus and of the relationship between law and morality operating in strong democracies, is shown to be misplaced. Two related failings are pointed out. First, there is a failure to recognize competing groupings within the people, which contradict the uniform collective body Hutchinson associates with those formerly governed by elites and then constituting those liberated to exercise self-governance. Secondly, this links into Hutchinson’s exclusive preoccupation with the participatory axis of democracy – which he regards as the core feature of strong democracy, and at the same time the basis for the law-power nexus and the law-morality relationship within a strong democracy. This is revealed as an inadequate and impoverished understanding of democracy once the presence of competing groupings within the people is acknowledged. Hutchinson’s one-dimensional representation of democracy along a participatory-representational continuum is rejected for failing to recognize a distinct fiduciary-beneficiary axis, which a richer understanding of “for the people” conveys. These corrections have important consequences for a role for law that cannot be reduced solely to politics, and for a broader sweep to analytical jurisprudence than Hutchinson allows.

Hutchinson’s own efforts to capture the province of jurisprudence are then assessed. These are recharacterized as seeking to establish within a split field of inquiry a theory of strong democratic law, but, in the absence of a convincing account of the nature of democracy and its relationship with law, the project is judged to be unfulfilled.