Page images
PDF
EPUB

superiority in point of system and style, it is evident that from a literary point of view, it is a great improvement on its predecessor. At the same time it must not be forgotten-and Mr. Holland would, I am sure, be the first to acknowledge it—that the labours of Austin have prepared the way for Mr. Holland and considerably lightened his task. Without Austin not only would he have had to contend against all the difficulties which are the necessary portion of every explorer in untrodden fields, and which were in fact Austin's portion, but he would also have had Austin's reward-the reward of most pioneers in science-contempt and neglect. It was Austin, in short, who broke up the barren soil upon which Mr. Holland has been enabled to sow his seed; it was Austin who laid the strong foundation upon which Mr. Holland has been enabled to build his graceful superstructure.

The improvements, however, which Mr. Holland has introduced are not merely in point of form. Much of the matter is entirely original; as the author tells us in his preface, he has thought out the subject for himself, owing little or nothing to the speculations of modern continental jurists. His leaning to Roman Law is of course manifest ; it were impossible that anyone who had studied it so long and so carefully as Mr. Holland should not be potently impressed by it, but I do not find that he is blind to its defects, and on the whole it cannot be said that he is unduly influenced by it. In one case especially–in the adoption of Private and Public Law as the primary division of all Law, he most successfully defends the Roman method against the criticisms of Austin.

One welcome feature in the book is, that the majority of the illustrations are taken from English Law. It may therefore be with advantage considered in the light of a formal science not of all Positive Law, but of English Law, in short, as a contribution to the formation of an English Code. 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 Lacedæmon, 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

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 right, 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 inherence” 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.

« PreviousContinue »