« PreviousContinue »
books, or of Abridgments,' or so-called 'Digests,' arranged under alphabetical titles.
It was a step in advance when it occurred to Mr. J. W. Smith to publish a series of • Leading Cases,' selected almost at random, and to group round each a collection of subordinate decisions, in which the rule recognised in the principal case is deviously tracked in its various applications. Of a somewhat similar nature is Dr. Broom’s ‘Selection of Legal Maxims' which explains the workings in different departments of law of a string of principles, such as those which are collected in the title of the Digest de Regulis Iuris.' It may be remarked that the principles to which reference is made, alike in the • Leading Cases, and in the ‘Maxims, are but what Bacon would call “ media axiomata,' which neither work attempts to exhibit in their mutual relations, or to deduce from the higher principles of which they are corollaries ; also that the search for these principles is an enquiry into the ethical reasons by which English law ought to be moulded, not an analysis and classification of legal categories.
There have been of late years signs of a change in the mental habit of English lawyers. Distaste for comprehensive views, and indifference to foreign modes of thought, can no longer be said to be national characteristics. The change is due partly to a revival of the study of Roman law, partly to a growing familiarity with continental life and literature, partly to such investigations as those of Sir H. Maine into the origin of
PREFACE TO THE FIRST EDITION.
legal ideas, but chiefly to the writings of Bentham and Austin. To the latter especially most Englishmen are indebted for such ideas as they possess of legal method. The · Province of Jurisprudence Determined,' is indeed a book which no one can read without improvement. It presents the spectacle of a powerful and conscientious mind struggling with an intractable and rarely handled material, while those distinctions upon which Austin after his somewhat superfluously careful manner bestows most labour are put in so clear a light that they can hardly again be lost sight of
The defects of the work are even more widely recognised than its merits. It is avowedly fragmentary. The writer is apt to recur with painful iteration to certain topics; and he leaves large tracts of his subject wholly unexplored, while devoting much space to digressions upon questions, such as the psychology of the will, codification, and utilitarianism, which have no necessary connection with his main argument. It may be asserted, without injustice either to Bentham or to Austin, that works upon legal system by English writers have hitherto been singularly unsystematic.
It is long since the author formed the hope of attempting to write a treatise upon legal ideas which should at least be free from this particular fault, and the objects which he proposed to himself differed so considerably from those aimed at in Mr. Justice Markby's · Elements of Law' that the appearance of that very
valuable work did not dissuade him from the prosecution of his design. In carrying it out he has not gained so much assistance as he expected from the legal literature of the continent. He soon discovered not only that the name of Austin was unknown in Germany, but that very little had been written in that country with a direct bearing upon analytical jurisprudence. The latter fact is not so surprising as it may appear, if it be remembered that the continental jurists find in Roman law a ready-made terminology and a typical method, upon which they are little inclined to innovate. From treatises
upon Naturrecht,' which may be described as 'Jurisprudence in the air,' he has derived next to nothing; and works upon 'Encyclopädie’and Methodologie' are generally too brief, and too much infected with a priori conceptions, to have been consulted with much profit. More help has been found, where it might not at first be looked for, in the numerous works, usually entitled 'Pandekten,' in which the Germans bave set forth the Roman law as it has been modified with a view to modern convenience. Foremost among these must be mentioned von Savigny's System des heutigen Römischen Rechts.'
Still less has been derived from the other modern literatures ; and after a general survey of the subject the author set to work to think it out for himself, resolving to traverse the whole of it, and to hold a straight course through it, turning neither to the right hand nor to the left into any digression however tempting. He now offers the result of his labours, which has
PREFACE TO THE SECOND EDITION.
been much delayed by other and more pressing engagements, to the indulgence of those who best know the extent and difficulty of the topic of which he has attempted to give a complete and consistent view.
T. E. H.
OXFORD, March 20, 1880.
TO THE SECOND EDITION.
This edition has been carefully revised, and contains a good deal of new matter. The author has to thank several of his reviewers, whose articles form in themselves valuable contributions to the literature of the subject, especially Mr. A. V. Dicey and Mr. F. Pollock. He is also indebted to previously unknown correspondents, such as Mr. R. Foster of the New York Bar, who have been good enough to favour him with private communications upon points suggested by their reading of the book. He takes this opportunity of explaining, with particular reference to an able article by Mr. A. Tilley, that the method which he has followed, as best exhibiting the scientific order of legal ideas, is not, in his opinion, necessarily that which would be found most convenient for the arrangement of a Code. He has elsewhere pointed out that logical division should be to the codifier what anatomy is to the painter. Without obtruding itself upon the surface, it should underlie and determine the main features of every systematic exposition of law.
T. E. H. OXFORD, August 25, 1882.
TO THE THIRD EDITION.
In preparing this edition for the press, the author has throughout taken account of the development both of positive law and of legal theory, in this and other countries, during the last three years, so far as he has been able to follow it. He has also worked out in greater detail than before, though it is hoped without detriment to the general proportions of the book, the difficult topics dealt with in Chapter VIII, and what he ventures to think the important question, raised in Chapter XII, as to the necessity of agreement in contract.
Upon many points he has found help in the elaborate reports upon foreign law which some of the governments of the continent are careful to have drawn
before proposing serious legislative changes. No one can consult these reports without wishing that something of the kind were more usual in this country, where a legal principle which has elsewhere long been discussed from every point of view, is not unfrequently treated in Parliament, and even by the Courts, as a novelty.
T. E. H. OXFORD, January 31, 1886.