The Province of Jurisprudence Redetermined (Concluded)*
| Published date | 01 November 1944 |
| DOI | http://doi.org/10.1111/j.1468-2230.1944.tb00982.x |
| Date | 01 November 1944 |
| Author | Julius Stone |
THE
MODERN
LAW
REVIEW
VOl.
VII
NOVEMBER,
1944
No.
4
THE PROVINCE
OF
JURISPRUDENCE
REDETERMINED
(Concluded)*
IV.
TOWARDS
A
TWENTIETH
CENTURY
TRIOLOGY
URISPRUDENCE in effect, wrote the late Professor Vinogradoff in
1920,
must face the problems of law in its own way by such help as
it
can derive from those branches of special knowledge which have
a
direct bearing
on
legal questions.82 He then devoted four chapters to the
topics: “Law and Logic,” “Law and Psychology,” “Law and Social
Science,” and “Law and Political Theory,” indicating some of the
possible inter-actions under each respective head.E3
Two assumptions behind this treatment seem to the writer to provide
the nearest approach to
a
satisfactory basis for redetermining the province
of jurisprudence in the twentieth century. They are: first, that juris-
prudence
is
the examination of law in the light of other disciplines than
the law
;a4
and second, that jurisprudence must make its
own
classification
for legal purposes of the fruits
of
such examination.
J
*
The first part was published in the last number, pp.
97-112
n2
Historical Jurisprudence,
1920,
5.
8s Ibid.,
1-95.
Cf.
the approach within the sociological field in Cairns,
Law
and
the
Social Sciences,
1935. and the Introduction thereto by Roscoe Pound,
at xiv.
Bentham
(Principles
of
Morals and Legislation,
1879,
323) spoke truer
than his own development of his words would indicate when he said:
“
Juris-
prudence is a fictitious entity; nor can any meaning be found for the word
but by placing it in company with
some
word that shall be significative of a real
entity.” The above criterion completes the description and, it is submitted,
gives an answer to Dr. C.
K.
Allen’s apparent view
(“
Jurisprudence-What
and Why,” in
Legal Duties,
IZ
ff.
(1931)
)
that there can only be one branch
of
jurisprudence and that adjectives are out
of
place, since you cannot separate
“the kinds”
of
jurisprudence until
the
“jurisprudence” itself is isolated. By
the above definition jurisprudence is isolated. But from the very terms
of
the
definition it is apparent that it can have no existence apart from its various
branches.
I
78
MODERN
LAW
REVIEW
Nov.,
1944
A.
Jurispudence
is
the Examination
of
the Law in the
Light
of
Other
Jurisprudence, in the present writer’s hypothesis,
is
the lawyer’s
extroversion.
It
is
the lawyer’s examination of the precepts, ideals, and
techniques
of
the law in the light derived from present knowledge in
disciplines other than the law.
It
is an attempt, which must always remain
imperfect, to fulfil for the law the object strikingly posed by the
late
Mr. Justice Holmes of showing “the rational connection between your
fact
and%he frame of the Universe.
To
be master
of
any branch
of
know-
ledge you must master those which lie next
to
it.”“
On the one hand,
all
the major branches which are generally admitted
to
the halls
of
jurisprudence are admissible by this
test.
Analytical juris-
prudence
is
admissible
as
essentially
a
critique
of
law in terms
of
logic.86
With great respect to one
of
the greatest of lawyers, the solvent
it
uses
Disciplines
“The Law as a Profession,”
20
Am.
L.
Rev.,
741. 742 (1886).
This
may be
viewed as an extension beyond its own field of the definition given to sociological
jurisprudence, e.g. in Kantorowice,
Rechtswissenschaft und
Soziologie,
IQI
I,
as
a
yvey of the relation between law and other social spheres.
Cf.
Timasheff,
This is
so
whether the insular (particular) or the universalist
(a
Lectures
on Jurisprudence,
3rd ed.,
1107)
trends in Austin and his followers is regarded
;
whether the system produced be that
of
a Holland, requiring new editions with
each important change in the law, or that
of
a
Kelsen, a Hohfeld or a Kocourek,
whose systems aspire to validity independent of the state
of
the law
to
which
it
may be rfpplied. For a discussion of the disfpction in the English literature
see Allen, Jurisprudence-What and Why? in
Legal Duties,
5-11 (1931).
This
definition is implicit throughout Austin’s work, but
it
is strange how rarely
he is explicit
on
the matter. See, however, his consideration of it
in
a
Lectwes,
2rd ed., 1122-1123, where appropriately enough he draws comfort from Leibniz
:
With regard to lawyers in particular
. . .
the study of the rationale of law is.
as
well (or nearly
as
well) fitted as that of the mathematics to exercise the mind
tb
the mere process of deduction from given hypotheses.”
It
is too clear to
warrant citations for modem analytical writers, yho even when like Kocourek,
fhey arrogate the adjectives “legal” or “juristic to their analysis, mean simply
logical.” The rendering explicit of this nature
of
analytical jurisprudence in
Holland ax$I Salmond is what really seems to be troubling Professor
A.
H.
Campbell, A Note
on
thy, Word
‘
Jurisprudence,”’,,56
L.Q:R.
334:339 (19421;
The distinction between legal exposition
”
and analytical lurisprudence
which the learned writer seeks to make by the terms “practical study” and
“theoretical inquiry” is,
it
is submitted, only possible
on
this basis. See also
Kocourek, “Classification of Law,”
11
N.Y.
Univ.
L. Qu. Rev.,
319,
322
(1934).
Insofar as
Pollock.
The Methods
of
Jurisprudence,
loc.
cit., supra,
p.
110,
n.
60
seems to negative the view in the text, it is submitted that thought in the field
of logic and the law since 1882 has not supported that lamented and distinguished
writer.
So
also it is submitted that Hohfeld’s assumption
(Fundamental Legal
Conceptions,
1923, 351)
that
whereas the test of logic applied by analytical
jurisprudence is “intrinsic” tc the law, while that of teleology is extrinsic to the
law, is surely not tenable to-day. In one way, both logic. and ethics are intrinsic
to the law
:
in another they both are
extrinsic.
But
in
150
way can one be intrinsic
and the other extrjnsic. The followers of Kelsen clearly recognise that the logic
they use in their science” is extrinsic to the law itself. See J.
W.
Jones,
His-
torical Introduction to the Theory
of
Law,
1940.
232.
It is obviously only the
syllogistic logic which bears this relation to analytical jurisprudence. The newer
so-called
“
experimental,”
“
non-Euclidean
”
or
“
non-Aristo)dian
”
logics (see
for brief statements, John Dewey, “Logical Method yd Law,
10
Cornell
L.
Qu.
(1g24), in Hall,
Readings,
343
ff.,
and
M.
R.
Cohen, The Place
of
Logic in the
Law,” zg
Haw. L.
Rev.,
622, 636
ff.
(1916)
),
since they derive their conclusions
and their premises from existential and ideological factors extraneous to the
assumed body of propositions, do not give rise to analytical jurisprudence. Their
importance is rather as a description of the synthesis of syllogistic, empirical and
What
is
Sociology of Law,” 43
Am.
Jo.
of
Sociology,
228
ff.
(1937).
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