thomas erskine holland and elements of jurisprudence and roscoe pound and oliver wendell holmes and jeremy bentham

It is dawning on me gradually how I ultimately want to teach a jurisprudence course. You can check out my syllabus here to see how I do it now. Because I am a historian, even a radical historian, I believe that every statement of a problem and every proposed answer is only "provisional" and may say as much or more about the person who proposes/writes than about the problem itself. Every jurisprudential statement, therefore, is an example of the history of jurisprudence. It comes out of its own time, is defined by its own time, and is useful primarily as an expression of its time.

Thus, a useful approach to a course on jurisprudence, actually, would be to have two courses on it. The first would describe the classical and civil law tradition in jurisprudence (ending around 1900) and the second would describe the Anglo-American tradition, beginning probably with Blackstone. We would read texts and see how people defined the general concepts of justice and law over time. We would see how categories were invented and by whom and for what reasons. And, we will ask ourselves if these categories are useful for us today. This would avoid a problem I first encountered a few years ago when I began to teach jurisprudence. I ran across a work, which I had students use, called Analytical Jurisprudence, edited by Anthony d'Amato. It was an anthology of readings describing various themes that fit under this heading. But the students hated the book (as did I), and d'Amato never answered the primary question that any good book should answer: why he divides his book into such topics. That is, why does/did he think that jurisprudence was to be divided into analytical and substantive categories (we didn't use his second volume)? And, what does he mean by both? What he didn't tell us, and which would have been crucial to understand, is that his use of the term "analytical" jurisprudence goes back to Austin, the one whom earlier generations of jurisprudes read because Bentham's works were still in a shambles, and they needed someone to define the problems as he saw them in Anglo-American jurisprudence.

But, d'Amato just assumed that Austin's categories were useful, and I am sort of offended by that. Why is Austin a good guide? What would have been much more useful would have been a book going through how Anglo-Americans had decided to divide the field of jurisprudence. Tell me about Austin if you wish, but only tell me about him as a person who fits into a tradition that started with Bentham, who himself was reacting to Blackstone. By assuming that jurisprudence is just something that can be divided into analytical and substantive, without looking at why people think so is adding more confusion to light. There is no jurisprudence, but only the history of jurisprudence, and even that doesn't exist, but only its historiography.

My Anglo-American Jurisprudence Course

Thus, a good introduction to Anglo-American jurisprudence would probably begin with Blackstone. We wouldn't read his entire four volumes. But we certainly would read excerpts and especially try to understand how he arranges his material and which categories are derived from which previous works. We would get into his mind, therefore, in two ways: (1) see how he arranges his material in general and (2) how he understands the meaning of various doctrines he presents. We then would have to develop a well-orbed view of Bentham, beginning with close reading of this 1776 Fragment on Government, and ample exposure to some of his subsequent works. I think acquaintance with his Principles (written in 1780, published in 1789), his Of Laws in General (1782) and then some of his work on Constitutional Codes as well as his work on evidence law, would be necessary. We then, and only then, would try to understand the classificatory scheme of Austin in his 1832 work Province of Jurisprudence Defined. Thus, by the time we get to the mid 19th century, we would have placed Austin in a tradition of how English folk were thinking about law. He would only be one expression of the tradition, and probably a rather limited and easily-criticized author. Then, and only then, would we approach the subject of our essay, Thomas Erskine Holland (1835-1926). And we must understand Holland in order to comprehend some of the intellectual moves that Roscoe Pound made in his jurisprudential thinking. Let's turn to Holland.

What We Would Learn From Holland

Holland is to Pound in jurisprudence as Langdell was to Holmes in their respective understandings of law. Holland and Langdell were of the same generation (b. 1835 and 1826, respectively), where the same intellectual demand was placed on those who would organize the field(s) of law. Those with the ambition to organize it would have to make law into a "science." Law as a science meant that it had a systematic character to it. As Holmes said in reviewing Langdell's second edition of Cases on Contracts, "Langdell is our greatest living legal theologian." In other words, Langdell arranged his material as a systematic theologian would. An indication of how a theologian in the mid-19th century would arrange his work can be gleaned from studying the most prominent American theologian at the time, Charles Hodge (d. 1878) of Princeton. The task of theology was putting in order the "system of doctrine taught in Holy Scripture."

Thus, when Holland put out the first edition of his work in 1880, he was, like every leading thinker of his day, under the sway of the scientifice paradigm. In order for your field to be taken seriously, it had to be scientifically arranged--it had to be systematized. This view of the matter would change dramatically for the most progressive thinkers within a generation, educated as they were in the Darwinian (developmental) view of things. But Holland was shaped by another spirit, and that spirit would be reflected in his Elements of Jurisprudence. By understanding the context in which he wrote, then, we are in a much better position to understand what he was trying to do.

Conclusion

Thus, my understanding of Holland, and of jurisprudence in general, is to "put him in his place." Once you do this you no longer ask what is true or what is jurisprudence. You simply look at what he said it was, and realize how much he is a product of his times.

With these desks cleared, let's see how he defines jurisprudence.

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