Frederick Pollock and the English Juristic Tradition (review)

A typical English academic lawyer, in the middle years of the twentieth century, was a member of the bar, but not a practising barrister; had some knowledge of the legal past, but was not primarily a historian; knew something of legal and political theory, but was neither a philosopher nor a political scientist; favoured intellectual order in the law, but was suspicious of simple, neat, or elegant explanations; appealed to legal principle, but frequently mixed principle with considerations of convenience, common sense, and pragmatic judgement. Legal academic writing consisted of articles and occasional books but also of frequent short comments in law reviews on recent judicial decisions. The style of writing was a mixture of advocacy, prescription, description, and prediction, the four running together in an appeal to the reader, and indirectly to the court, to adopt the 'better' view of a disputed question in the light of 'authorities' as 'properly understood.' Writing took the conventional form of an address to the English judges, in tones of compliment or respectful remonstrance as the case might be, staking a claim on the part of the writer to be a participant in, as well as an observer of, the process of judicial law-making.

This model did not come into production without a prototype. In this excellent study Neil Duxbury shows convincingly that the prototype was Frederick Pollock (1845–1937), author of books on contracts, torts, and other subjects, professor of jurisprudence at Oxford for twenty years, and editor of the Law Reports and of the Law Quarterly Review. His Principles of Contract at Law and in Equity (1876) was the first English book on contract law that could reasonably claim to be an academic work.

Why, then, is Pollock not better known at the beginning of the twenty-first century? Part of the answer is that Pollock's recognition of the complexity of legal questions prevents the reduction of his views to readily quotable or memorable aphorisms. As Duxbury says, 'he was inclined to distrust all grand schemes and systems, be they created by philosophers, anthropologists, or anyone else' (88–9). His jurisprudential perspective was 'nuanced and resists categorisation' (7). He found merit in apparently opposite perspectives, thinking, for example, that both 'the historical and the analytical manner of considering legal phenomena … [were] in truth useful and necessary' (106–7). 'The older I get,' he declared (at the age of seventy-eight), 'the less inclined I am to trust any general theories of jurisprudence' (88).

Pollock's books on contracts and torts both include the word 'principles' in their titles. However, it is not so simple a matter as it might seem to discern or to articulate legal principles. As Duxbury says, 'jurists, when they dedicate themselves seriously to determining principles of law, will almost inevitably discover instances where those principles are ambiguous, incoherent, insufficiently developed, or even absent' (191). In respect of contract law, for example, Pollock was attracted by the civilian idea that contractual obligation arises from mutual consent, but he found that the idea of consent neither explained all past decisions nor led in every case to a result that he judged to be acceptable. Even in the first edition of Principles of Contract he found it necessary to dissent from R.J. Pothier's view on this question,¹ and he was rewarded by the almost immediate judicial endorsement of his opinion in Byrne & Co. v. Leon Van Tienhoven & Co.,² where Lindley J. (to whom, incidentally – or perhaps not so incidentally – Pollock had dedicated the book) rejected Pothier's opinion, expressly preferring the view taken 'by Mr Pollock in his excellent work on Principles of Contract.' One could hardly devise a better demonstration of the efficacy of academic participation in judicial law-making.

As Duxbury shows, Pollock, in successive editions of his book, moved towards an explanation of contract law in terms of protection of the reasonable expectations of the promisee, rather than the consent of the promisor. He did not, however...