192
The Green Bag
institution, to be taken up wholly by
itself, with a view to examining its internal structure, but by studying it as the component part of an aggregate of institutions, and considering it in its external relations with subjects with
which it is closely connected. In this case the standpoint is not simply that of the legal practitioner, but is that of a student of the general problems of human society.
The law, however, is
the real object of study, in this case as much as in the other. The science based upon this study is likewise legal science, but in a broader sense. As distinguished from jurisprudence in the specialized sense, there is another science of juris prudence which is concerned with the law only in what I will call, for want of a better term, its extralegal relations.
One might suppose, at a superficial glance, that the antithesis between these two modes of study might be expressed by the terms “general” and “special” jurisprudence,
and
they
might
well
answer, if the only controlling considera tion were that of the availability or non availability of a particular method for the circumscribed purposes of the legal specialist. The word “general” how ever, is not descriptive, for it suggests emphasis on general rules formulated by induction from a great number of special instances, and the science of law in the narrower sense is quite as fruitful of
is a formal, or analytical, as opposed to a material‘ one; that is to say, that it deals rather with the various relations which are regulated by legal rules than
with the rules themselves which regu late those relations."l I confess that while this definition is clear as to substance, I find it somewhat
confusing in its terminology. For it is not quite clear why certain relations regulated by legal rules should be de scribed as formal and the rules them selves as material, when the contrary might equally or more readily appear to be true. The term “formal" science
of jurisprudence, to me, suggests a science of legal formulas or formal rules
quite as readily as a science of the mate rial out of which such legal forms might be supposed to be constituted. I hold Professor Holland's abilities in too high esteem to maintain that he is not justified in regarding the relations comprehended in the “grammar" of the law, to use his own metaphor, as belong
ing to the form rather than to the sub stance of the law. My criticism is only that an ideal terminology should be entirely free from ambiguity, and self explanatory, and that the distinction between the external and internal methods of study of the law is not ex pressed with sufiicient clearness merely by treating the difference as one between form and substance.
It is reasonably
tinctly misleading, for it might seem to
plain, from his definition, that by “formal jurisprudence" Professor Hol land means the study of the law in its
bring the science of comparative juris prudence within the scope of “general"
broader aspect, from a standpoint not purely legal; that it is, in fact, a study
jurisprudence, though it may really be
of fundamental principles underlying and not included in the visible structure of prudence" the law, isand thus his evidently term "formal meant juris~ to
such general rules as the broader science of law.
The term “general” is also dis
long quite as well to the special science
of law. If the nomenclature is adopted, therefore, it can be accepted only with reservations. Prof. Holland's definition of jurispru dence, in the broader sense, is that “it
be synonymous with jurisprudence in the broader sense in which I have de ‘The Elements of Jurisprudence, 11th ed.. p. 6.
