HOLLAND'S "ELEMENTS OF JURISPRUDENCE."*
MB scientific study of Law has made considerable progress in England of late years, and the remarkable work before us
will probably form a distinct and important stage in its advance.
It is possible that the very difficulties under which the English lawyer labours may in the end promote, by the stimulus which they give to thought, a greater clearness in the classifica- tion of our legal system. Continental jurists work upon the material bequeathed by the great Roman lawyers, taking it, for the most part, as they find it. It provides them, as Professor Holland remarks in his preface, "with a ready-made termin- ology and a typical method, upon which they are little inclined to innovate." But the English lawyer has no such guide. Our legal system has been formed by a series of judicial decisions based upon the needs of successive ages, and has been modified from time to time, not always to its advantage, by legislation. It is something like a country-house which has belonged to the same family for centuries. One generation after another has added something for the sake of elegance or comfort, and the result is a rambling structure, possessing many charms and much convenience, for one who knows his way about it, but full of adventure for the new arrival, who traverses many passages and makes many disastrous blunders on his way to his bed-room or his dinner.
The effort for a scientific method must be considered to have originated with Austin. Doubtless, Blackstone, by throwing the entirety of our legal system into a form at once compre- hensive and readable, did better service to the cause of legal study than is often admitted by his modern critics ; and his graceful optimisms stimulated alike the efforts of Bentham for legal reform, and the penetrating analysis of Austin. But it is to the latter that we owe the definition of the field of juris- prudence, and suggestions more or less valuable for mapping it out. Austin himself is a writer to whom it is not easy to do justice. His cumbrous and pedantic style, his wearisome repe- titions, his arrogance, and his intolerance of the work or thought of any time or school but his own, make his book repulsive reading, even to the keenest student of analytical jurisprudence. Yet we must not forget our debt to Austin,—a debt the nature of which is not always clearly understood. It is com- monly assumed that Austin took from Hobbes his conception of sovereignty as the source of positive law, but this is not precisely the case. The doctrine of Hobbes forms part of the long controversy as to the grounds of political obligation which began with the break-up of the media3val Empire and Church. Whether our obedience to the State is conditional
• The Elements of Jortsprodenee. By T. H. Holland, D.C.L., Chiohele Professor of International Law and Diplomacy in the University of Oxford, Follow of Al! Souls' College. Oxford: University Press. 1880. upon its conformity with the so-called Law of Nature, and the security to us of those rights which an ideal polity would con- fer, or whether we obey the State of necessity, as representing the stored-up force of the community, was a question which might well interest the political student, but which had no bearing upon jurisprudence. When Blackstone tells us that no human law is of any validity if contrary to the law of nature, we see that he is confusing two ideas,—the moral propriety of resistance to an established government, and the characteristics of positive law. It was Austin who saw that the view of Hobbes, whether satisfactory or not as a ground of political obligation, must needs form the basis of jurisprudence, if we are ever to distinguish law from morality. The jurist has nothing to do with political ideals, or the reasons for our obedience to the State. Grant him a sovereign power, independent and habitually obeyed, and the commands of such a power con- stitute positive law. Fix here the limits of the province of jurisprudence, and we are for ever warned off the cloudland of natural or abstract rights.
We owe this to Austin ; and further, we owe to him a strenuous attempt to map out the field of law in such a way that legal ideas should henceforth be called by their right names and set in their right places, should be given a terminology and a system. Bat here his work becomes fragmentary and obscure; the two bulky volumes of his Jurisprudence do no more than lead us to the threshold of the subject.
Professor Holland has left us no reason to regret that Austin's work was barely begun. He has enriched the literature of English Law with a treatise which sets forth with admirable clearness, and in their logical order, "those comparatively few and simple ideas which underlie the infinite variety of legal rules." After defining Jurisprudence as "the formal science of posi- tive law," "the science which reduces legal phenomena to order and coherence," he brings us by a series of distinctions to posi- tive law. Law as the order of nature is distinguished from law as a rule of conduct, and those rules of conduct which are established by indeterminate or divine authority are marked off from those which depend upon a determinate human authority paramount in a political society,—in other words, upon the Sovereign. The characteristics of sovereignty, and the various sources of law, are noted with a lucid brevity ; and we come next to the analysis of Rights, the creation and protection of which constitute, from the jurist's point of view, the objects of law.
His analysis of a right, and his assumption, which we believe to be perfectly justifiable, that the State may have self-con- ferred rights and self-imposed duties, give great clearness and coherence to his system. Every right involves at least two parties ; one of these, "the person of inherence," is he who has the right, and is entitled to acts or forbearances in respect of it ; the other, who may be one or many, is "the person of in- cidence," from whom these acts or forbearances may be exacted. Where these two persons are both subjects, we are in the region of private law ; where one of them is the State, we are dealing with public law, and this is regarded by Professor Holland as the main division of the field of law. Where the persons of inherence and incidence are both States, the right in question is matter of international law ; and here we have passed out of the province of jurisprudence, and are dealing with "the moral code of nations." Nevertheless, Professor Holland gives us an ingenious and interesting chapter on the topic to which his researches are now more particularly devoted. In this division of law, based upon his analysis of right, we find the key-note of Professor Holland's system; and it is a division which, in our judgment, greatly promotes completeness and congruity in the working-out of the subject. We get rid of the "absolute duties" of Austin, for such of these as fall within the compass of positive law correspond to rights possessed by the State; and we find a convenient place for criminal law, in the self-con- ferred right of the State to the maintenance of order.
Other classifications of rights are important in the region of Private Law. One of these is dependent on the unlimited or limited extent of the person of incidence; the person of inherence may have a right to the observance of a duty by all, or the per- formance of an obligation by one. Another corresponds to the ancient division of law into that of persons and of things which reappears under the guise of the law of abnormal, as opposed to that of normal status. The law of persons exhibits the diver- gence of status from that of the normal citizen, as exemplified in the case of infancy, coverture, or those wholly artificial
creatures of law, corporations. Again, rights may be classified as existing prior to wrong-doing or arising out of it, as "ante- cedent or remedial." And here Professor Holland would differ from the Romans and agree with Austin, in so far as he includes certain rights, such as those arising from contract or quasi-contract, under the head of rights " antecedent" or sane- tioned ; he differs from Austin and agrees, we should imagine, with the Romans, in assigning to the " jus actionnm," pro- cedure, or adjective law a wholly distinct place in his system.. Remedial rights then would be co-extensive with rights of action, as opposed, on the one hand, to antecedent rights, and, on the other, to the procedure by which the remedy is enforced. The importance of this last department of law is in part purely technical, in part historical. Professor Holland points oat with some force that the historical interest of the topic has over, balanced the judgment of some writers, and inclined them to assume, what cannot be the case, that law is more concerned with remedies than rights; but it is, nevertheless, true that while every remedy presupposes a right, the attention of men in rude times was mainly fixed upon the procedure which gave substance to their rights, and substituted a peaceful arbitration for an appeal to force. In fact, it is by a study of• remedies that we learn the character of rights in past times, and it was often by modification of remedies that rights were created or extended. Such in outline is the scheme of the work. Throughout it we find ourselves in substantial agreement with the author. On one or two points we wish that he could have given us fuller explanation. In the chapter on" abnormal rights," for instance, we should have been grateful for a test or definition of status, as well as an indication of its place in a legal system. Infancy or felony constitute a status ; not so, in our opinion, nor, so far as we can see, in that of Professor Holland, does trusteeship or agency. But he gives us no analysis of status, a topic on which Austin's inquiries are singularly confused and futile. Again, although Professor Holland states, with great fairness, the point at issue between Sir H. Maine and Austin, we venture to think that he is somewhat too easily satisfied with his pro- posed explanation of the suggested difficulty. The criticisms of the great historical jurist upon the doctrine of sovereignty as entertained by Austin are twofold. There have been and are societies, practically independent, in which customs are observed as law, though enforced by no political sanction, nor indeed by any force save conventional morality or public opinion. Further, the public opinion, which is the only sanction for rules of con- duct in early societies, forms in modern times a very substantial check upon the sovereign. In some societies, therefore, the Austinian sovereign is non-existent, in none is he absolute; "a despot with disturbed brain," an autocrat mad enough to disregard the moral limitations of power, would alone satisfy the requirements of the analytical jurist as depicted by Austin.. The difficulties which these criticisms suggest have received no adequate solution. It is in truth not easy to determine the pre- cise point at which a society attains to the organisation of a State, with a recognised machineri for the protection of rights. Still less is it easy to say when the sovereign force comes to be regarded as of superior authority to the customs for the protec- tion of which it exists. There may well be a political society with a Legislature which dare not innovate upon existing cus- tom, though technically empowered to do so. Perhaps Professor Holland is right in leaving the discussion of questions of this nature to the inquirer into the history of legal ideas, or the political student who analyses the disposition of forces in the various constitutions of the present and the past. It is enough for his purposes to assume that every independent political society, at any rate in modern times, possesses a central power which is habitually obeyed, and that the matter of positive law must be limited to those rules of conduct which this power com- mands or enforces. But the difficulty of making this assump- tion exactly accord with the facts is more real than our author seems to allow, and would need a longer discussion than space admits here.
The student of the future is fortunate in having a guide through the maze of legal rules, whose work possesses at least three important qualities in which Austin is deficient. One of these is the graceful clearness of its literary style. If we are confronted with some new characters, such as the "abnormal person" and the "person of inherence," we can well forgive the strangeness of the phrases, as we recognise their fitness and convenience. Professor Holland possesses, together with a rare clearness of thought, a corresponding clearness of expression, and is consequently able to say what he means in the fewest possible words. Hence another merit of the work, its concise- ness. A is free from those circumlocutions and repetitions which are due, sometimes to mere slovenliness, sometimes to confusion of thought, sometimes, as perhaps in the case of Austin, to an over-anxiety for exactitude. When the pages of our text-books are numbered by thousands, and when our Judges are perhaps too apt to forget that, in deciding the points before them, they are also swelling the bulk of legal literature, crne is grateful to an author who, with no sacrifice of clearnesr, has gathered the thought and learning of years into the compass of three hundred pages.
And lastly, one cannot fail to be struck with the complete- ness with which the work is done. The entire field of legal ideas lies before us like a map, and the student of any branch of Law may find in the Elements of jurisprudence the place of the objects of his inquiry in relation to other parts of the legal system. It will not be the fault of Professor Holland, if our text-books do not henceforth improve in coherence and relevancy.
Previous page
