Page images
PDF

It is in this light that I propose to make a few criticisms upon it, and if Mr. Holland were to object—as he fairly might—that he had no intention of building up the framework of a Code, and that I am proposing to criticise his book from an entirely wrong stand-point, my reply would be, that the object of this paper is not to pick holes in his work, but simply to consider how far the classification of Law proposed in it would be suitable to an English Code, a matter which I have at heart as deeply as Mr. Holland himself.

The first part of the book consists of an investigation into the general nature of Law and Rights, and is enriched by various leading definitions, such as should stand at the head of every Code, and the absence of which in the French Code and those modelled upon it, is so conspicuous a fault. Thus after the definition of Jurisprudence as the “ Formal science of Positive Law,” a Law is defined to be “ a general rule of external human action enforced by a sovereign political authority." The phrase “ external human action ” is important, for it brings out, what is hardly more than implied in Austin's analysis of the term Law, the difference between Jurisprudence and Ethic. Ethic, says Mr. Holland, deals with states of will, irrespective of their outward manifestation in act, but the science, of which Jurisprudence is a sub-species, deals with states of will only so far as they are manifested in action. This science which has hitherto had no received name is called by Mr. Holland “ Nomology," a term invented, I believe, by Bentham. Chapter IV. is occupied with an inquiry into Austin’s well-known theory that all Law is enforced by a sovereign political authority.

While admitting Sir Henry Maine's objections to the theory

in so far as they relate to its inapplicability to archaic or semi-civilised societies, Mr. Holland claims for it a basis of essential truth, and says most truly that in England at the present day or in any firmly-established political society, such as that of Athens or Lacedaemon, the obligation of Law does rest upon a sovereign political authority. I may, perhaps, be allowed to point out that the difference in opinion between our two great jurists, Austin and Sir Henry Maine, on this question as well as some others, would seem to arise solely from the difference in the point of view from which they regard the subject. The observations of Austin were confined to fully-developed legal systems,'such as those of Rome or the highly-civilised States of modern Europe, while our great living jurist has entered upon a new field of inquiry by turning his attention to archaic forms of society, whether as preserved in historical documents or as existing at the present day.

Another point on which these two great jurists differ is the question whether custom is Law or not, Austin denying, and Sir Henry Maine asserting its claim. The latter view is now recognised to be the correct one, but Mr. Holland does justice to Austin’s view by showing that it contains an important element of truth, namely, that custom cannot become Law, until it is recognised by the State. The mistake in his view is that this recognition does not take place until the custom has been allowed to be good in a Court of justice.

In distinguishing between “ written’ and “ unwritten” Law, Mr. Holland, following Hale and Blackstone, confines the term “ written ” to statute Law. His explanation is rather obscure, but apparently he means that in “ written” Law, or Law made by legislation, the sovereign authority gives force to the actual words of the rule, while in “ unwritten " Law, or Law made by tribunals, it is only the principle to be gathered from the words that is enforced. This is a fair explanation of the terms as used in ordinary Law treatises but it is not their proper meaning, the meaning in which they were used by the Romans. By “written ” Law the Romans meant Law put into writing at its

[ocr errors]

origin and in this, the literal sense of the term, custom is, as Sir Henry Maine says, the only real unwritten Law.

In Chapter VI. we are told that “the objects of Law are the creation and protection of legal rights ”* and in Chapter VII. a legal right is well defined to be “ a capacity residing in one man of controlling, with the assent and assistance of the State, the actions of others.”

Chapter VIII. is occupied with the analysis of a rigl1t, which is shown to consist in most cases of four elements: —(1.) A person entitled to the right; (2.) An object over which the right is exercised ; (3.) Acts or forbearances which the person in whom the right resides is entitled to exact; (4.) A person obliged. The person entitled and the person obliged are called by Mr. Holland respectively “ the person of inl1erence ” and “ the person of incidence,” terms which may be convenient in a scientific treatise, but which will hardly do for everyday wear. It is indeed one of the greatest difficulties which beset English writers on jurisprudence, that they have to deal with a science which is greatly deficient in a proper terminology, and to express themselves in a language which does not lend itself easily, like the German, to the creation of new compounds. Compared however with writers on some other sciences, such as metaphysics, the jurist has much to be thankful for on this head. On the whole, the new terms which Mr. Holland has coined, though not particularly happy, have none of the grotesqueness and cumbrousness which makes Bentham’s nomenclature so peculiarly repulsive.

But returning to the analysis of a right, I would point out that Mr. Holland has forgotten to call attention to the important fact that the object of a right may be a person as well as a thing. Thus the whole of his second division of the antecedent rights in rem (p. 109), which he calls rights to the society and control of one’s family and dependents, have a person for their object. From disregarding this distinction, Mr. Holland has, I think, missed a very useful classification of rights in rem, which is fully brought out by Austin, and to which I shall allude hereafter. It may be useful to note here that what Mr. Holland, following the Germans, calls the Object of a Right, is spoken of by many English writers as the Subject. The analysis and definition of' the term “ Person” is very satisfactory, but the definition of “Thing,” to be complete, should run thus: “A permanent cause of sensation which is not a Person.” I am afraid I cannot agree that the fiction by which certain rights are regarded as “Things” is either harmless or indispensable. With regard to the account of Fact and its sub-divisions, I have also some objections to make. “Fact" is defined as “a transient cause of sensation,” as opposed to Thing, which is a permanent cause of sensation. Now it is quite true that the chief distinction between Facts and Things is that Facts are transient while Things are permanent, but can it be said that all Facts are causes of sensation? Are “lapse of time” and “change of place” perceptible by sense? Facts are then divided into “ Events” and “Acts.” “ Events,” it is said,“ may be either movements of external nature, or may be acts of a human being other than the human being whose rights are under consideration.” An “Act” is defined to be “a determination of the will, producing an effect in the visible world." This definition is essentially correct; but in his account of the elements of an Act (i.e., an Act which has legal consequences) Mr. Holland, * has strangely substituted the word “ will"

*“The object of Jurisprudence is the protection of rights,” says James Mill in his remarkable essay on Jurisprudence, an essay which should be read and re-read by every student of this subject.

‘ Mr. Holland in this part closely follows Savigny (see Sav. System, p. 104), but Savigny is here considering Acts in a special light, as sources of legal relations, as titles to rights.

for “intention.” All human beings are capable of movements of the will or volitions, it is “intention” which is wanting to lunatics and infants. Mr. Holland has apparently been misled by the fact that German jurists invariably use the word “ Wille ” to express what we call “intention.” The confusion however between “ will” and “intention " is unfortunately not uncommon in English writers.

I must also disagree with Mr. Holland’s definition of the term “ Event.” In the first place, why, if events are contrasted with acts, should they be made also to include acts? An act is equally an act whether it be the act of the person whose rights are under consideration, or of some other person. Moreover, in one class of rights, in those which the Romans called “ Obligations,” it is not the acts of the person whose rights are under consideration which are important, but the acts of the other party to the obligation, i.e., of the “ person of incidence.”

Secondly, in this definition no account is taken of those motions of the body which are not determinations of the will. To take Austin’s instance, if I throw myself into the water, it is an act, but if I tumble in, it is not an act, but an event or incident. Austin uses “ Event ” as the name of the species, answering to Mr Holland’s “Fact,” and he says that the terms “ Fact ” and “ Incident," though often used as synonymous with “ Event ” are ambiguous. Considering however the strong hold which “ Fact” has obtained in our legal phraseology, I would prefer to retain it ; but I would sub-divide it into (I) Act = movements of the body consequent upon determinations of the will ; (2) Event or Incident comprising movements of the body not consequent upon determinations of the will and movements of external nature.

Mr. Justice Stephen in his “ Digest of the Law of Evidence" makes Fact include any mental condition of

« PreviousContinue »