the policy choices they might have, as Oliver Wendell Holmes later would.Thirdly, Maine did not offer a normative theory of development, but rather sought to tease out the path of legal evolutionary development from examining societies at different stages of development. Jurists could therefore read and learn from it, without it seriously challenging their own views of their daily work. Maine’s influence on later English jurists was one which led them to qualify their reading of Austin.Most immediately, jurists had to accept that custom could be regarded as legally binding before it was pronounced to be so by a judge. More generally, they accepted Maine’s empiricism. Like Maine, they felt that the jurist need not look at broad philosophical questions, but should simply draw on social facts.One jurist who modified Austin to take account of Maine was T. E. Holland, holder of the Chichele chair of international law in Oxford from1874 to 1910, and author of The Elements of Jurisprudence, which first appeared in 1880 and reached a thirteenth edition in 1924. Holland, who was well read in continental jurisprudence, began with various definitions of the word ‘law’, and considered how one should draw the line between the science of ethics, which dealt with internal states of the mind, and ‘nomology’, which dealt with outward behaviour. Discussing the role of theory, Holland noted that it was not the business of the jurist Discussing ‘nomology’,Holland noted (in Austinian fashion) that there was a division between rules which were enforced by ‘indeterminate’ authority - or opinion - and rules which were enforced by a determinate authority - the state. In his view, drawing the line between the two was a pragmatic question, not to be determined by theory. m i cha e l lob ban 139 22 T. E. Holland, The Elements of Jurisprudence, 2nd ed. (Oxford, 1882), pp. 25-6. “to decide whether the criterion of virtue be conduciveness to utility, or accordance with nature; nor need he process his belief, or disbelief, either in an innate moral sense, or in a categorical imperative of the practical reason.These are hard questions of Metaphysics.The business of the jurist is, in the first place, to accept as an undoubted fact the existence of moral principles in the world, differing in many particulars in different nations and at different epochs; and, in the second place, to observe the sort of sanction by which these principles are made effective.”22
RkJQdWJsaXNoZXIy MjYyNDk=