A similarly sceptical view of the role of grand theory was taken by Frederick Pollock. In1882, Pollock published a book review in which he discussed both Holland’s work, and the Scot James Lorimer’s Institutes of Natural Law. He liked Holland’s modified Austinianism, but disliked Lorimer’s brand of Naturrecht. Almost the whole book, Pollock said, dealt with philosophical questions which English lawyers felt had no place in jurisprudence. It was a mistake in his view to preface “the study of legal conceptions”with“an exposition of transcendental ethics” - “I do not see that a jurist is bound to be a moral philosopher more than other men.”23 For Pollock,“[t]he special sciences” - including law - “furnish the data of philosophy; they do not need a complete philosophy to stand on their own ground.”The toiler in the practical field did not need to address the more abstract questions. For instance, Pollock asked,“Where would physics be if the physicist had to explain the existence of matter?”24 While the jurist had to make some assumptions about morality, they were the essentially pragmatic ones, that a settled society existed, with a fairly settled opinion about what was right and wrong, and with a general understanding that some rules were fit to be enforced by means of definite compulsion, and that some were not.There had also to be some consensus on where to draw the line.This was good old-fashioned English empiricism: the foundations of the legal system were to be found, as a matter of practical fact. The result of these developments was that by the 1880s, English jurists took a very pragmatic view of their job.They did not consider it their task as jurists to engage in philosophical speculation on moral questions, as might be required by a utilitarian science of legislation. This was demanded of those who embraced Bentham’s system, since it was premised on the existence of a utilitarian legislator who would create a complete code enforced by judges. It was arguably also demanded by Austin’s modification, which allowed the judges to develop the law as subordinate legislators, presumably informed by the lessons of the science of legislation.25Yet Maine’s dethroning of the sovereign lere cht swi s s e n scha f t al s j ur i st i sch e dok t r i n 140 23 F. Pollock, ‘The Nature of Jurisprudence,’ in his Essays in Jurisprudence and Ethics (London, 1882) p. 23. 24 Ibid., pp. 26-27. 25 Austin had allowed judges to act as subordinate legislators, who could flesh out the law as they saw fit. He did not speak much of how they would do this, though his discussion of rule-utility would suggest he might expect them to apply the lessons of the science of legislation. Nonetheless, the few notes in his lectures suggest he
RkJQdWJsaXNoZXIy MjYyNDk=