thomas erskine holland and elements of jurisprudence and system of doctrine and defining jurisprudence and cicero and ulpian

"The term jurisprudence is wrongly applied to actual systems of law, or to current views of law, or to suggestions for its amendment, but is the name of a science. The science is a formal, or analytical, rather than material one. It is the science of actual, or positive, law...It may therefore be defined provisionally as 'the formal science of positive law' (Elements of Jurisprudence, 8th Ed (1900), 12-13).

Let's take the issues one at a time: a "science," an "analytical" task, and then, something that is to be distinguished from "wrong" applications. Positive law is simply "enacted" law or law as passed by legislatures.

Deep History and Jurisprudence as Science

Holland begins with Cicero (1st century B.C.) and says that "jurisprudentia" in its original use really had a very practical meaning: a knowledge of the law. Just as rei militaris prudentia signified a knowledge of military things, so iuris prudentia or legum prudentia indicated a knowledge of the law. But already in the time of Ulpian a few centuries later the word jurisprudence receive a broader signification. It might be helpful to give the Latin words and then a translation:

"Jurisprudentia est divinarum atque humanarum rerum notitia, iusti atque iniusti scientia" (Digest 1.1.10). "Jurisprudence is the knowledge of things divine and human, the science of the just and the unjust."

Thus we have two things here: a broader approach to jurisprudence as relating to the "just and the unjust," and not simply to knowledge of law, and the designation of jurisprudence as a "science." Certainly the meaning of "science" was not the same in the 3rd as in the 19th century, but Holland had no difficulty implying the 19th century definition of science (as a system) into Ulpian's definition. Thus, jurisprudence is the "science of law." First step.

Second Step: Some Preliminary Distinctions

Holland then mentions ways that the term is "unfortunately" used. The French use it to descibe the "view which the courts are in the habit of taking of certain questions." This definition actually is preserved in the Webster's 3rd Int'l (unabridged), but is not there derogated. Then, he gives a third way it is used, as the equivalent of "law." He mentions that there are books on the "Equity of Jurisprudence" and that there are treatises on "Architectural Jurisprudence" (the laws relating to architecture). He even mentions a sort of quaint title--the "Chair of Dental Jurisprudence" in the "Dental School of Chicago." We can understand the human desire to make things more complex than they need be (the substitution of the word methodology for method in academic discourse may be the clearest example), and so the word "jurisprudence" may simply have been replaced the seemingly simpler word "law." Holland will have none of it. He also criticizes Jeremy Bentham's categories of expository and censorial jurisprudence, but his discussion need not detain us.

The Analytical Task

This is the big move for Holland, as it was for Austin, for once you conceive of your task as scientific and analytical, you have pretty much said it all. But what does he mean by "analytical?" In a nutshell, and with due regard to our aforementioned dentist, the analytical task of jurisprudence, for Holland, is an extractive one. It extracts from comparing legal systems the basic principles or assumptions on which every legal system operates and then subjects these assumptions or principles to scrutiny. In this way jurisprudence is a "formal" science. It is formal because it isn't interested in the "material" of any particular legal system. It wants to extract from systems the principles or even the doctrines, compare them with those from other systems and come up with an explanation of the common underlying thing that is being described.

An example might help. There are such things as grammars of individual languages. But the Alexandrian scholars of the Hellenistic Era decided that when you start comparing languages you can tablulate parts of speech, inflections, moods, and syntax, and they invented the science of Grammar. Whether the possessive case of a noun substantive is expressed by a specific modification of its termination, or by prefixing to it a specific preposition, is a question that each language has to face. But the possessive idea finds expression in every human language, and is a proposition that relates to linguistic form. The "science of Grammar" would be interested in the idea of possession and how it is expressed, while comparative grammar would put various possessive expressions next to each other, and an individual language grammar would show how it worked for one particular language. Thus, jurisprudence is like the "science of Grammar," as I called it.

Thus, the field of 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 realised in actual systems" (p. 8). If Comparative Law ascertained what at different times and places was a doctrine of prescription in the legal systems of many countries, jurisprudence would "elucidate the meaning of prescription, in its relation to owenership and to actions" (Id.). But Holland hastens to add that jurisprudence isn't necessarily built upon comparative law, as if you had nothing to say in the former unless you had mastered all systems of law. "A system of jurisprudence might conceivably be constructed from the observation of one system of law only, at one epoch of its growth" (Id.). I don't really follow Holland here, but I think he adds this because he may have just priced himself out of the market so to speak--no one is able to master more than a system or two--and therefore if you take his definition seriously there really would never be something called jurisprudence.

Conclusion

I am out of space here, but must close with two observations. First, he differentiates what he does from Austin's work on "particular" and "universal" jurisprudence. Holland doesn't believe that the former exists. Second, he is aware of the "historical" and "philosophical" jurisprudes of Europe at the time, but sees history and philosophy not as competitive understandings regarding different ways of doing jurisprudence but as helpful methods to give us the data to do scientific, analytical jurisprudence. Thus, we have his approach to jurisprudence, as a science (read 'system') of law, focusing on principles that can be extracted from the comparative study of legal systems. I think he is dead wrong, but we need to give him his due.

[Next]

1453