country contain a common element; that they have been constructed in order to effect similar objects, and involve the assumption of similar moral phenomena as everywhere existing” - an assumption he regarded as true - the jurist could frame from those materials “a scheme of the purposes, methods, and ideas common to every system of law.”29 For Holland, jurisprudence was needed to put order into the chaos of the mass of legal rules; but it was the mass of those legal rules and the subjects they covered, which provided the material from which the jurist obtained his generalizations. Jurisprudence, by the 1880s, therefore had modest aims.30 Its province was to help the student classify and systematize law for himself, giving him (in Holland’s phrase) an index to the chaos of the common law; and to give clear definitions of notions such as possession, negligence and intention, which would help sharpen legal thinking when developing the law. But it said nothing about how the law was to develop. Instead, it was largely descriptive.The fact that analytical jurisprudence had become wholly disconnected from its Benthamic roots is evident in Holland’s modification of Austin’s structure.Although Austin’s positivist concept of law required him to set out a theory based on the imposition of duties, when he had provided a map of the law, he had inverted this by setting out a system of rights.This was uncomfortable for his theory, but a convenient way to look at the common law.31 Holland’s solution was quietly to drop the strong version of positivism, and to make the notion of rights the centre piece of his analysis. Instead of seeing all law as coming from moments of legislative commands, he saw law as those rules enforced by the state. For Holland, this meant as a matter of theory that rules which the community already regarded as binding by custom could be seen as law even prior to their incorporation in a legal decision.The content of rights came from the feelings of the community: it was the state which protected them by according them legal recognition. It was the legal protection given by the state which constituted a person’s right.Thus, quoting both Kant and Bentham, he noted that there could be no property rights until a re cht swi s s e n scha f t al s j ur i st i sch e dok t r i n 142 29 Holland, Elements of Jurisprudence, p. 7. 30 See e.g. John Salmond’s description of the nature of the task he was engaged in: Jurisprudence 2nd ed (London, 1907), p. 4. 31 See M. Lobban, A History of the Philosophy of Law in the Common LawWorld, 16001900, vol 8 of E. Pattaro, A Treatise of Legal Philosophy and General Jurisprudence (Dordrecht, 2007), pp. 183-6.
RkJQdWJsaXNoZXIy MjYyNDk=