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ESSAYS IN JURISPEUDENGE AND ETHICS



ESSAYS



IN



JUEISPEUDENCE AND ETHICS



FREDERICK POLLOCK, M.A., LL.D.

LATE FELLOW OF TRINITY COLLEGE, CAMBRIDGE



ILontJon

MACMILLAN AND CO.

1882



9 177 1



Printed by R. & R. Clakk, Edinburgh.



A I P7e



TO



ERNEST EENAK



PREFACE.

The substance of the following Essays has appeared
in divers journals and reviews in the course of the last
seven years. My first duty is to return my best
thanks to the proprietors and editors of those publica-
tions for the consent they have freely given to the
present reproduction. Some additions and rearrange-
ments have been made, and a few passages have been
worked in from articles on kindred subjects which for
one or another reason did not seem worth reprinting
separately.

No unity of design will be expected in a work thus
composed of occasional pieces ; but I hope that so
much unity of purpose and ideas may nevertheless
be found in it as will give it a certain measure of
coherence. The essays fall into two divisions, in the
first of which legal topics predominate, in the second
ethical. In the first it has been my aim to consider
legal ideas and institutions as aff'ected by or afi"ecting
the wider interests of history, politics, and practical
legislation. In the second I have endeavoured to
bring to a better defined issue certain points of ethi-
cal discussion by the help of distinctions founded on
familiar legal conceptions, and by sj^ecifically applying
those conceptions and distinctions to admitted facts.



Vlll PREFACE.

In both subjects I have used by preference the his-
torical method, taking that term in a wide, but, I
think, not an unfairly wide sense.

There may be an apparent inconsistency in the
points of view taken in some of the legal essays. I
have started sometimes from the pure analysis of the
modern English school of jurisprudence, sometimes
from history, sometimes from practical expediency.
My own opinion is that all these methods are legiti-
mate, and that if their results fail to agree, it is the
fault not of the instrument but of the worker. No
doubt there exists a tendency to conflict between the
historical and the analytical manner of considering
legal phenomena. The historical student is tempted
to regard analytical jurisprudence as shallow sciolism,
while the analytical jurist is apt to charge the histori-
cal and comparative method with laxity of thought
and antiquarian pedantry. Both methods are in truth
useful and necessary, and either of them alone is
imperfect. The modern developments of legal theory
have shown them in their power and in their short-
comings.

The history of law was by no means neglected
before the rise of modern critical jurisprudence ; but
its results were of little value so long as they could
not be read in the light of general ideas and principles.
Blackstone gives the history of English law from the
thirteenth century onwards with sufficient fulness for
all ordinary purposes, and, as a rule, with great ac-
curacy : the historical merit of his Commentaries has
been too much overlooked in the discussion of his



PREFACE. IX

faulty arrangement and inadequate theories. Montes-
quieu not only collects a great quantity of materials
for legal history, but has a notion of historical method
and comparative research far in advance of other
writers of his time. Yet all this work remained un-
fruitful for the best part of a century. It had to be
fertilized by the ideas of the analytical school. Ben-
tham, on the other hand, had no room in his mind for
history. He would have liked to make a clean sweep
of all the laws and customs of Europe, and start
afresh with a code warranted to secure the greatest
happiness. Even language had for him no continuity
to be respected. He seriously drafted specimens of
legislation in a style invented by himself as the most
appropriate for the purpose, and defying all the usages
of common syntax. A system proceeding from this
habit of mind could not easily adapt itself to the facts
of different ages and societies. Its general proposi-
tions were in truth, like those of political economy,
drawn from the conditions of a particular society at a
particular time, or rather those conditions as they
would be in the absence of disturbing: elements.
These conditions have still their peculiar value for
scientific jurisprudence, insomuch as they are those
which more and more tend to be realized in the pro-
gress of modern civilized communities. But this )
value cannot be rightly perceived and set on its true /
footing until the extreme claims of abstract analysis
have broken down in the presence of unforeseen and
refractory elements of fact. Thus the Indian village
community shows us a state of society to which,

h



X PREFACE,

tliougli it is an orderly and well-settled one, Bentham's
or Austin's definitions are applicable only by doing
extreme violence to language ; and the consideration
of such phenomena has led Sir Henry Maine to apply
the needful correction to the analytical theory. Again,
in the art of legislation the analytical intellect is in-
dispensable to give us the power of expressing clearly
what we intend, while the historical view comes in to
help our choice of immediately desirable and practic-
able objects. If it be asked whether analytical and
historical work are to go on correcting one another for
all time, I am disposed to say that j)robably they will.
All scientific definition is really provisional and ap-
proximative ; and all applications of our knowledge to
the actual conduct of life are endeavours towards an
ideal which, however near we may come to grasping
it, will ever escape our full possession.



CONTENTS.



II.

HI.

IV.

V.

VI.

VII.

VIII.

IX.
X.

XL

XII.

XIII.



The Nature of Jurisprudence, considered in rela-
tion TO SOME Recent Contributions to Legal
Science

Laws of Nature and Laws of Man

Some Defects of our Commercial Law

The Law of Partnership in England

Employees' Liability

The Theory of Persecution

The Oath of Allegiance



The History of English Law as
Politics



A Branch of



The Science of Case-Law .

The Casuistry of Common Sense

Ethics and Morals .

Marcus Aurelius and the Stoic Philosophy

Mr. Spencer's Data of Ethics

Index .....



1

42

60

95

lU

U4

176

198
237
261
287
314
352
379



I.

THE NATURE OF JURISPRUDENCE

CONSIDERED IN RELATION TO SOME RECENT CONTRIBUTIONS
TO LEGAL SCIENCE.^

Professor Holland of Oxford is to be congratulated
on having done a piece of work that was much called
for. Though several years have passed since the
Universities and the Inns of Court proclaimed the
importance of jurisprudence as a part of legal educa-
tion, nobody has taken up Austin's unfinished work
in a serious or satisfactory manner, or succeeded in
making it very clear what jurisprudence really is.
To English students it means at present, for all prac-
tical purposes, the two volumes of Austin's Lectures,
or the one volume into which their matter has been
more lately condensed by his able editor. It may be
true of Austin's work, as Professor Holland says, that

^ Tlie Elements of Jurisprudence. By Thomas Erskine Holland,
D.C.L., etc. Oxford: Clarendon Press. 1880. The Institutes of Law :
a Treatise of the Principles of Jurisprudence cts determined by Nature.
By James Lorimer, Advocate, Regius Professor of Public Law and of
the Law of Nature and Nations in the University of Edinburgh, etc.
Second edition, revised and enlarged. Edinburgh and London :
William Blackwood and Sons. 1880. International Law. By William
Edward Hall, M.A., Barrister-at-Law. Oxford : Clarendon Press. 1880.

' B



2 THE NATURE OF JURISPRUDENCE. [l

no one can read it without improvement ; yet lie
seems to confine his praise to the introductory part,
originally published as " The Province of Jurispru-
dence Determined," and so far I am quite of one
mind with him. In any case, it is not desirable that
Austin's should remain for an indefinite time the only
means of improvement in this department of know-
ledge available for our seats of learning. It is, after
all, a fragmentary publication, and has the faults
incidental to this character, in addition to the others
with which it is chargeable. As I am not now criti-
cizing Austin, I will only say that these are precisely
of the kind which make a book less fit for the use of
beginners. Besides, the increase of general knowledge
and interest has a certain eff'ect on the relative import-
ance of diff'erent parts of a great subject. "Those
distinctions upon which Austin, after his somewhat
superfluously careful manner, bestows most labour are
put in so clear a light that they can hardly again be
lost sight of;" and if there is one thing more than
another for which we ought fervently to thank
Austin's labours, it is that at this time of day no
rational being could or would occupy six lectures with
the discussion of what positive law is not. For the
rest, Professor Holland's preface, while it points out
with unquestionable truth that " works upon legal
system by English writers have hitherto been singu-
larly unsystematic," is studiously courteous to his
predecessors. It is perhaps an excess of courtesy to
mention Dr. Broom^s work on Legal Maxims, a
thinof of neither fish nor flesh, on the same level with



l] THE NATURE OF JURISPRUDENCE. 3

Smith's Leading Cases, which, though it never pre-
tended to be anything but technical, stands in the
first rank of our technical books.

Jurisprudence is dfi^ned by Professor Holland as
the formal science ®9fa!w: " not the material science
of those portions of the law which various nations
have in common, but the formal science of those
relations of mankind w^hich are generally recognized
as having legal consequences." It stands towards
actual legal systems, past or present, in a relation like
that of grammar to particular languages. As a matter
of fact, its construction has been suggested by the
comparison of different systems ; but such comparison
is not in itself a necessary condition for the existence
of such a science. " Just as similarities and differ-
ences in the growth of different languages are collected
and arranged by Comparative Philology, and the facts
thus collected are the foundation of abstract Grammar,
so Comparative Law collects and tabulates the legal
institutions of various countries ; and from the results
thus prepared the .abstract science of Jurisprudence is
enabled to set forth an orderly view of the ideas and
methods which have been variously realized in actual
systems."

The parallel is felicitous, and only too felicitous.
If it be just, it goes a little too far for the writer's
purpose. Abstract grammar, in the sense here speci-
fied, is evidently a conceivable science. But is it an
actual science in the sense of being explicitly taught
or learnt by any one ? We have never heard of its
professors or text-books. No such teachers or books.



4 THE NATUEE OF JURISPRUDENCE. [l

as far as I can learn, liave been called forth by the
development of modern philology. Nor is there in
fact room for them. Abstract grammar is given by
implication in every systematic grammar of a parti-
cular language, and its generality appears as soon as
the grammatical structure of two different languages
is referred to a common type. When the English
schoolboy who has learnt Latin learns (if he ever does,
which, with our existing methods, is uncertain) enough
of his own language to know that the verbal-substan-
tive forms in "I go a-fishing" and in " Lusum it
Maecenas" are homologous, he makes an application of
abstract grammar. When the comparative j)hilologist
performs a like process on a larger scale, he must
either come to his task equipped with a scheme of
abstract grammar or make one as he goes along. But
neither boys nor men learn abstract grammar by itself
The reason, I conceive, is that the subject-matter can-
not be understood until the learner has mastered the
grammar of at least one concrete language ; and, if
the language be a tolerably developed one, and the
grammar arranged on a tolerably rational plan, in
learnino; the matter he has learnt the form also.
There is no need for his learning it over again in the
abstract. In order to appreciate its importance as
form, he has only to await the occasion of applying it
to new matter. Perhaps it may be said that a person
who, being empirically master of his own language,
takes up the grammar of it for the first time, is really
learning abstract grammar ; for in. this case the matter
consists of what he knows already. Not the less does



l] THE NATURE OF JURISPRUDENCE. 5

he acquire the abstract system through the concrete
application. We may observe in passing that Phil-
ology is considerably richer than Jurisprudence both
in the variety of actual types to be observed and in
the number of distinct systematic arrangements that
have been constructed. Greek, Indian, and Arabic
grammarians worked out their schemes in perfect
independence. It would seem that philologists have
great opportunities for elaborating the science of
abstract grammar. What use they have made of
them is more than I am competent to say ; l^ut one
cannot help suspecting that our leaders in philology
would not think such an operation very profitable.

Again, the student of medicine learns vertebrate
anatomy, which is the knowledge of particular verte-
brate structures. He learns comparative anatomy,
whereby he comes to perceive the analogies of difi'erent
vertebrate structures. Hence he forms the idea of a
general vertebrate type, which is not the image of any
existing skeleton, but is a generic symbol of a certain
disposition and relation of parts which any specific
vertebrate skeleton embodies and makes visible.
Shall we reo;ard this as a new and distinct knowledge
or science, and call it abstract vertebrate anatomy ?
And, if we do, can it be taught or learnt in its
abstract character 1

It appears to me that jurisprudence, as more or
less vaguely understood in English usage of the term,
and now clearly defined by Professor Holland, is
doomed to vacillate between two alternatives, of which
both are unsatisfying. It may confine itself to making



6 THE NATURE OF JURISPRUDENCE. [l

out a catalogue of blank forms ; in other words, to
the pure theory of legal classification. I do not for a
moment deny that the scientific arrangement of the
law is a subject worthy of the most careful discussion.
But I do not think it a good subject to be dwelt upon
by students at an early stage. The reasons for or
against a particular scheme cannot be understood
until the matter to be dealt with by it is to some
extent familiar. If, on the other hand, jurisprudence
undertakes to explain and illustrate the blank forms
of its classification by showing how they are filled up,
its constant tendency is to slide into the partial
exposition — comparative or otherwise — of some par-
ticular system. This tendency appears more than
once in Professor Holland's work, as where he brings
in a statement of the peculiar and by no means ele-
mentary English doctrine of contributory negligence.
One feels, again, that his broad mention of the results
educible from the tangle of statutes that make up our
law of copyright is either too much or too little, — too
much for a treatise on the general form of laws, too
little for a treatise on the laws of England.

Since the law of England is, by the consent of all
persons who have seriously thought about it, in sore
need of a S3^stematic expounder, the best and most
profitable way to prove the value of jurisprudence
would perhaps be to show it in that specific applica-
tion. If Professor Holland, or some other equally
competent worker, or two or three such together,
would give us a good book of Institutes of English
Law, that would indeed be a boon for lawyers and



l] THE NATURE OF JURISPRUDENCE. 7

students to welcome. As it is, our young men hear
systematic lectures on jurisprudence and legal method
in general, and have meanwhile to pick up their first
notions of the law of their own country from mauled
and tinkered editions or imitations of Blackstone put
together in defiance of all rational arrano-ement.
Blackstone's work was an excellent one in his time
and accordins^ to his lio-hts : w^e mi^ht honour him
better at this day than by a blundering lip-service
which, as a rule, eS"ectually excludes the knowledge of
what Blackstone really wrote. The modern editions
utterly spoil Blackstone as literature, without produc-
inor a good account of the modern law. One conse-
quence of this is that the historical value of Blackstone
in his genuine form is apt to be sadly underrated.

And, in fact, if we turn to Germany, where the
academic teaching of law is more fully developed than
with us, w^e shall find a state of things which Profes-
sor Holland mentions with a certain air of surprise.
Although the last thing tJiat can be said against the
German school is that the philosophical and theoretical
consideration of legal conceptions fails to find expres-
sion in it, there are no distinct organs or departments
for the purely formal science of law. What in
England we have lately called jurisprudence is em-
bodied by German writers in their extensive and
methodical treatises known as PandeMen, of which
the subject is modern Roman law, — that is, so much of
the Roman civil law as has furnished, or may be con-
sidered capable of furnishing, the groundwork of the
modern law of German States. Most, if not all, of



8 THE NATURE OP JURISPEUDENCE. [l

these works contain a certain amount of matter of a
highly general nature ; but this is treated, and as I
think rightly so, as preliminary to the study of the
particular system.

At the same time, I am far from saying that under
the peculiar conditions of English legal literature the
study of legal ideas in their most abstract form is not
useful and necessary. But I think a scientific exposi-
tion of English law would be still better, and should
be regarded as the end to which our provisional study
of abstract jurisprudence is to lead up. This position
may be illustrated by returning to the philological
comparison which has already been used. Let us
supj)ose that the English language, instead of being
the simplest member of a group, stands apart from all
others, and is exceedingly complex in structure and
full of anomalies. Let us also suppose that the litera-
ture relating to it — comprising grammars, dictionaries,
and philological works of all kinds — is of enormous
bulk, and contains much matter of great value, but is
terribly diffuse, and arranged partly on wrong systems,
and mostly on no system at all. In this state of con-
fusion it mio;;ht well be that the cultivation of abstract
grammar would precede the actual reform of English
grammar, and it is even conceivable that this might
be the only way to it. And this imaginary case is
roughly parallel to the real state of English laws and
law-books. A general view of the field of Positive
Law, with only just so much concrete illustration as is
needed to make it intelligible, may do much to clear
the heads of learners, and beget in them a just discon-



l] THE NATURE OF JURISPRUDENCE. 9

tent with the crude and formless condition in which
the details of almost every topic are still left. To
make a cosmos out of this chaos of disjointed particu-
lars is a task which a later generation, prepared by
such teaching as Professor Holland's in this book, and
Mr. Markby's in his Elements of Laiv, may be able to
attempt with good hope of success.

It remains to say a few words of the manner in
which Professor Holland handles in detail the subject
which he has defined as the formal science of law.
His exposition is clear and careful throughout, and the
work is, for law students' purposes, a great improve-
ment on Austin. Though considerably less bulky, it
is more complete, more symmetrical, and more intel-
ligible. As literature it is almost incomparably better.
Austin's painfully laboured style has an efi'ect amount-
ing to repulsion on some persons, of whom I confess
myself to be one. Professor Holland's is concise with-
out abruptness, flowing without tediousness, and dis-
tinct without wearisome repetitions.

The subjects discussed at the outset are naturally
the definition of law and the theory of sovereignty.
The two chapters on the various usages of the word
laiv might perhaps bear to be yet further shortened.
I should doubt, indeed, whether their subject is
properly within the scope of jurisprudence. Professor
Holland's definition of law runs thus: — "A generahj
rule of external human action enforced by a sovereign |
political authority," — or, should we say, purporting to
be enforced ? for not every sovereign can make sure
of enforcing his commands ; and sometimes laws are



10 THE NATURE OF JURISPRUDENCE. [l

made without even any great intention of enforcing
them. I do not see wliy this should not come at the
very beginning, with the statement that only such
laws as answer this description are the subject of legal
science. However, the opening chapters as they stand
form a good introduction to the modern terminology.
Proceeding to the theory of sovereignty, Professor
Holland confesses and avoids Sir Henry Maine's
criticism of the extreme analytical doctrine, which is
or ought to be by this time well known, and sums up
his own result in these words : — " It is convenient to
recognize as laws only such rules as are enforced by a
sovereign political authority, although there are states
of society in which it is dilhcult to ascertain as a fact
what rules answer to this description." But the
qualification seems not quite adequate. In the states
of society specified by Sir Henry Maine, and to this
day prevailing over a large part of the earth, the
difficulty is not merely to ascertain what rules of con-
duct are true laws, but to find any person or body
answering the description of a sovereign political
authority in the sense required by the analytical
school. The half-dozen pages on customary law strike
us as particularly good. Professor Holland brings
out and harmonizes the elements of truth in the
opposed views of the English analytical and the
German historical jurists. Austin's contention that
customary law " is nothing but judiciary law founded
on an anterior custom," is disallowed as being re-
pugnant to the facts. The Courts decide whether an
alleged custom is or is not binding, not at their



l] THE NATURE OF JURISPRUDENCE. 11

pleasure, but according to settled rules. The condi-
tions on which the validity of a custom depends must
be present, if they are present, before the case occurs
for decision ; just as the text of an Act of Parliament
has the force of law when the Act is passed, though it
may afterwards call for judicial interpretation. In
this case the retrospective application of the construc-
tion arrived at by the Court is obviously necessary ;
and what takes place when a custom is allowed is
essentially the same. Indeed similar considerations
might be shown to apply largely, though not univer-
sally, to the declaration of rules of common law ; so
that in this sense, though not in the sense intended by
Austin, his dictum above cited may be accepted.

In the chapter on Eights a series of definitions is
carefully and elegantly worked out ; the distinction
between might, moral right (as sanctioned by existing
positive morality), and legal right, is exceedingly well
put, and ought to nip in the bud a good many fine
flowers of confused thinking. The only point on
which a little more explanation might be useful is the
difierence between positive morality and ideal moral-
ity, which is not expressly noticed. Legal right is
defined as a capacity residing in one man (we should
rather say " person," as man does not include artificial
persons) of controlling, with the assent and assistance
of the State, the actions of others. In popular usage
we speak elliptically of a man having a right to use
his property as he likes, and so forth ; whereas his
right is, accurately speaking, to prevent other people
from interfering with his use. This does not, how-



12 THE NATURE OF JURISPRUDENCE. [l

ever, affect the correctness of the definition. With
regard to persons as subjects of rights and duties
(" Trager der Rechtsverhaltnisse/' as the Germans
more neatly have it), Professor Holland has invented
two new terms ; he calls the person entitled " the



Online LibraryFrederick PollockEssays in jurisprudence and ethics → online text (page 1 of 26)