Essays in Jurisprudence and Ethics
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page 11
PEEFACE.
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 publications 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
coherence.
it
a certain measure of
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 affected
by or affecting
the wider interests of history, politics, and practical
In the second I have endeavoured to
legislation.
bring to a better defined issue certain points of ethical discussion by the help of distinctions founded on
familiar legal conceptions, and by specifically applying
those conceptions and distinctions to admitted facts.
page 12
PREFACE.
Vlii
In both subjects I have used by preference the his-
method, taking that term in a wide, but,
think, not an unfairly wide sense.
torical
There
I
may be an apparent inconsistency in the
I
points of view taken in some of the legal essays.
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 legitimate, and that if their results
fault not of the instrument
fail to
agree, it
is
the
No
but of the worker.
doubt there exists a tendency to conflict between the
and the analytical manner of considering
The historical student is tempted
legal phenomena.
historical
to regard analytical jurisprudence as shallow sciolism,
while the analytical jurist is apt to charge the historical
and comparative method with laxity of thought
and antiquarian pedantry.
Both methods are in truth
and necessary, and either of them alone is
The modern developments of legal theory
imperfect.
useful
have shown them in their power and in their shortcomings.
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 accuracy the historical merit of his Commentaries
:
has
been too much overlooked in the
discussion of his
page 13
IX
PREFACE.
Montes-
faulty arrangement and inadequate theories.
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
Yet all this work remained unwriters of his time.
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
He seriously drafted specimens of
to be respected.
legislation in a style invented by himself as the most
appropriate for the purpose, and defying all the usages
A system proceeding from this
of common syntax.
habit of mind could not easily adapt itself to the facts
and societies.
of different ages
Its general proposi-
tions were in truth, like those of political
economy,
drawn from the conditions of a particular society at a
particular time,
would be
in
or rather those conditions as they
the
absence
These conditions have
of
still
disturbing
elements.
their peculiar value for
insomuch as they are those
which more and more tend to be realized in the proscientific jurisprudence,
gress
of
modern
communities.
civilized
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
Thus the Indian village
refractory elements of fact.
community shows us a
state
b
of society to which,
page 14
PREFACE.
X
though 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 practicIf it be asked whether analytical
able objects.
historical work are to go on
and
correcting one another for
all time, I am
disposed to say that probably 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
it, will ever
may come to grasping
escape our full possession.
page 15
CONTENTS.
PAGE
I.
THE NATURE OF JURISPRUDENCE, CONSIDERED IN RELATION TO SOME KECENT CONTRIBUTIONS TO LEGAL
.....
SCIENCE
II.
LAWS OF NATURE AND LAWS OF MAN
III.
SOME DEFECTS OF OUR COMMERCIAL LAW
IV.
THE LAW OF PARTNERSHIP IN ENGLAND
V. EMPLOYERS' LIABILITY
.
.
.
42
.
.
60
.
:
.
.
.
.
.
.95
.114
.144:
VI.
THE THEORY OF PERSECUTION
VII.
THE OATH OF ALLEGIANCE
VIII.
THE HISTORY OF ENGLISH LAW AS A BRANCH OF
POLITICS
.
.
.
.
.
.
.
.
IX.
THE SCIENCE OF CASE-LAW
X.
THE CASUISTRY OF COMMON SENSE
XL ETHICS AND MORALS
XII.
.
MARCUS AURELIUS AND THE STOIC PHILOSOPHY
XIII. MR. SPENCER'S DATA OF ETHICS
INDEX
.
.176
.198
.
.
.
237
.261
.....
.
1
287
.
314
.
352
379
page 17
I.
THE NATUKE OF JUKISPRUDENCE
CONSIDERED IN RELATION TO SOME RECENT CONTRIBUTIONS
TO LEGAL SCIENCE.
1
PROFESSOR HOLLAND of Oxford is to be congratulated
on having done a piece of work that was much called
years have passed since the
Universities and the Inns of Court proclaimed the
for.
Though
several
importance of jurisprudence as a part of legal education, 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 practical 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
i
The Elements of Jurisprudence.
Oxford Clarendon Press.
D.C.L., etc.
:
By Thomas Erskine Holland,
The Institutes of Law
1880.
:
a Treatise of the Principles of Jurisprudence as 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.
William Blackwood and Sons. 1880.
Edinburgh and London
By William
Edward Hall, M.A., Barrister-at-Law. Oxford
B
:
International Law.
:
Clarendon Press. 1880.
page 18
THE NATURE OF JURISPRUDENCE.
2
without improvement
yet he
seems to confine his praise to the introductory part,
of Jurisprupublished as "The Province
no one can read
it
;
originally
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 knowIt is, after
ledge available for our seats of learning.
faults
all, a fragmentary publication, and has the
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
Besides, the increase of general knowledge
and interest has a certain effect on the relative importbeginners.
ance of different parts of a great subject.
distinctions
upon which Austin, after
his
"Those
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
Austin's labours,
it
is
fervently to thank
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
Professor
Holland's
while
it
rest,
points out
preface,
with unquestionable truth that " works upon legal
system by English writers have hitherto been singularly
unsystematic,"
predecessors.
is
studiously
It is perhaps
courteous to his
an excess of courtesy to
mention Dr. Broom's work on
Legal Maxims, a
thing of neither fish nor flesh, on the same level with
page 19
THE NATURE OF JURISPRUDENCE.
I]
Smith's Leading Cases, which, though
it
3
never pre-
tended to be anything but technical, stands in the
first rank of our technical books.
Jurisprudence is defined by Professor Holland as
"
not the material science
the formal science of law
:
of those portions of the law which various nations
have in common, but the formal science of those
relations of
as
mankind which are generally recognized
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
4
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 ?
have never heard of its
We
professors or text-books.
No such teachers or books,
\
page 20
4
THE NATURE OF JURISPRUDENCE.
[l
as far as I can learn, have been called forth by the
development of modern philology. Nor is there in
Abstract grammar is given by
fact room for them.
implication in every systematic grammar of a particular language, and its generality appears as soon as
the grammatical structure of two different languages
When the English
is referred to a common type.
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-
"
forms in "I go a-fishing" and in
Lusum it
Maecenas" are homologous, he makes an application of
tive
abstract grammar.
When the comparative philologist
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 cannot be understood until the learner has mastered the
of at least one concrete
language ; and, if
the language be a tolerably developed one, and the
grammar
grammar arranged on a
learning the matter
tolerably rational plan, in
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
consists of what he knows
;
for in. this case the matter
already.
Not the less does
page 21
THE NATURE OF JURISPRUDENCE.
I]
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
Greek, Indian, and Arabic
have been constructed.
grammarians worked out their schemes in perfect
It would seem that philologists have
independence.
great opportunities
abstract grammar.
elaborating the science
What use they have made
for
them is more than I am competent to say
;
of
of
but 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-
He
brate structures.
learns
comparative anatomy,
whereby he comes to perceive the analogies of different
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 regard 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 ?
appears to me that jurisprudence, as more or
less vaguely understood in
English usage of the term,
It
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
v
page 22
THE NATURE OF JURISPRUDENCE.
6
a catalogue of blank forms
[out
;
in other words, to
the pure theory of legal classification.
'
[l
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
cannot be understood
scheme
against a particular
until the matter to be dealt with
extent familiar.
If,
by it is to some
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
some parcomparative or otherwise
This tendency appears more than
ticular system.
once in Professor Holland's work, as where he brings
of
exposition
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
Since the law of England
of England.
is,
by the consent of all
persons who have seriously thought about it, in sore
need of a systematic expounder, the best and most
profitable
way to prove
the value of jurisprudence
would perhaps be to show it in that specific application.
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
page 23
IJ
THE NATURE OF JURISPRUDENCE.
7
As it is, our young men hear
systematic lectures on jurisprudence and legal method
students to welcome.
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 arrangement.
Blackstone's work was an excellent one in his time
and according to his lights
;
we might honour him
better at this day than by a blundering lip-service
which, as a rule, effectually excludes the knowledge of
what Blackstone really wrote.
The modern editions
utterly spoil Blackstone as literature, without produc-
One conseing a good account of the modern law.
of
this
is that the historical value of Blackstone
quence
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, we shall find a state of things which Professor Holland mentions with a certain air of surprise.
Although the last thing that can be said against the
German school is that the philosophical and theoretical
consideration of legal conceptions fails to find expression 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 embodied by German writers in their extensive and
methodical treatises
known as Pandekten, of which
that is, so much of
the subject is modern Roman law,
the Roman civil law as has furnished, or may be considered capable of furnishing, the groundwork of the
modern law of German States. Most, if not all, of