What is Jurisprudence?
Bill Long 10/30/05
Reading Holland And Pound
One of the tasks of any teacher of jurisprudence is to define the concept at the outset of the class. Over the years I have focused on the three-fold definition in Webster's Unabridged Dictionary, have concluded that there are several adequate definitions of the term but then have retreated generally from precise formulation by saying that, for me, it means "thinking about law." Thus, I have not been that interested until today in probing the historical meaning of the term with any seriousness or skill. But some reading in Roscoe Pound's (1870-1964) biography has stimulated me to work more patiently through the historical literature in the field. Let's begin with some statements from Pound, then delve into Holland, the first major work of systematic analytical jurisprudence in English and then return to Pound. I think this will take me a few essays.
Pound on Pound and Holland
Roscoe Pound was a most precocious student, graduating from U of NE in 1888 at age 18. During 1887, thinking that he would send his son to law school, Pound's father gave him to read, among other books, Thomas E. Holland's Elements of Jurisprudence (1st ed., 1880). Later, when he got to Harvard, John Chipman Gray fired his imagination on things jurisprudential by suggesting he read R. Sohm's Institutionen des romischen Rechts. This got Pound into the whole world of German thinking, and before long he had read Puchta and Savigny before returning to Austin so that he said he left law school (in 1890) a "convinced utilitarian and follower of Austin."
Yet as early as 1892, when he was back in NE doing botanical work, he couldn't get the idea of jurisprudence out of his mind. Many letters between him and Harvard classmate Owen Hershey (a future Baltimore lawyer) in 1892 explain his approach to Holland and his developing understanding of that field--jurisprudence--to which he would make such a large contribution. He writes that Holland was the most widely used textbook in the common law world on jurisprudence in the last decade of the 19th century (references to the exchange of letters are derived from NEH Hull, Roscoe Pound and Karl Llewellyn, 43ff.) but he had a growing aversion to Holland's method. He referred to Holland and others like him as "comparative Histologists of modern law." When we realize that Pound was on his way to earning a Ph. D. in botany, we realize that we ought to take the word "histologist" seriously. According to Pound, Holland was desirous of using a "Scientific system under which the final word is said where all the parts or elements are properly labeled and classified." Thus he is like the scientist who cuts out living tissue and "dissects it with litle regard to what it was or what it will be" (Hull, 44).
But Pound was a biologist, and he knew that science had to be a living concept, a concept where the rich variety of life was described. What he said he found in Holland was a classificatory or purely philosophical scheme that explained little and predicted nothing. Pound was already experimenting with the concept of law as a "living developing thing and when studied as such must be intensely interesting to one who can get interested in a living thing."
Thomas Erskine Holland (1835-1926)
Perhaps, because Holland also lived into his 90s, the study of jurisprudence is the key to long life, but the life lived by Holland was shaped by fully different ideas that those that moved Pound. Pound was a "post-Darwinian," a person who believed that organic growth and dynamic change was characteristic both of the natural and legal world. Holland, in contrast, was shaped by the doctrines of John Austin, who had published his The Province of Jurisprudence Determined in 1832. Holland wanted to use Austin's analytic approach (see next essay), divest it of some of the emphasis on utilitarianism, and systematize things in a more comprehensive way than Austin had done. I will only focus here (and the next essay) on the introduction and first chapter of his work.
Holland contrasts the common and civil law traditions by stressing that the latter was derived largely from Roman law and had categories and documents defining the tradition going back to the digests of Imperial Rome. In contrast, the common law was a confusing welter of cases and doctrines without any systematization to them and little chance that they could be brought together in a systematic form. Though some had tried to bring order to English law through publication of digests or by trying to extract doctrinal material from cases, these "Leading Cases" or "Legal Maxims" books were far from adequate. Even Austin is guilty of "painful iteration" and "digressions upon questions, such as the psychology of the will, codification, and utilitarianism" (p. vii). "It may be asserted, without injustice either to Bentham or to Austin, that works upon legal system by English authors have hitherto been singularly unsystematic" (Id.).
And, Holland sets himself out to correct that. Some of the chapter headings are indicative of his interest. After discussing various definitions of jurisprudence, he will define law, laws as rules of human action, positive law, the sources of law, the object of law, rights, private law, public law, international law and the application of the law.
However, it is when he defines jurisprudence in ch. 1 that we are brought into his method more precisely. The next essay will probe Holland's approach to and definition of jurisprudence.
Copyright © 2004-2008 William R. Long