Jurisprudence

§ 1. Jurisprudence as the Science of Law.

In the widest of its applications the term jurisprudence means the science of law, using the word law in that vague and general sense in which it includes all species of obligatory rules of human action. Of jurisprudence in this sense, there are as many divisions as there are kinds of law which have been deemed sufficiently important and well developed to serve as the subject-matter of distinct branches of learning. They are at least three in number:

1. Civil Jurisprudence.—This is the science of civil law, that is to say, the law of the land. Its purpose is to give a complete and systematic account of that complex body of principles which is received and administered in the tribunals of the state.

2. International Jurisprudence.—This is the science of international law or the law of nations. It is concerned not with the rules which are in force within states, but with those which prevail between states. Just as the conduct of the subjects of a single state is governed by the civil law, so international law regulates the conduct of states themselves in their relations towards each other.

3. Natural Jurisprudence.—This is the science of that which our forefathers termed natural law or the law of nature (jus naturale). By this they meant the principles of natural justice—justice as it is in itself, in deed and in truth, as contrasted with those more or less imperfect and distorted images of it which may be seen in civil and international law. Whether these principles of natural justice are rightly entitled to the name of law—whether natural law, so called, can be rightly classed along with civil and international law as a species of the same genus—is a question which it is not needful for us here to discuss. It is sufficient for our present purpose to note the historical fact, that there is a very extensive literature in which the law of nature is given a place side by side with civil law and the law of nations (jus naturale, jus civile, and jus gentium), and in which the resulting threefold division of jurisprudence into natural, civil, and international, is recognised as valid.

Books of natural jurisprudence are in their essence books of ethics or moral philosophy, limited, however, to that department which is concerned with justice, as opposed to the other forms of right, while the method and the point of view are those of the lawyer rather than of the moral philosopher. Experience has shown, however, that this abstract theory of justice in itself, this attempt to work out in abstracto the principles of natural right, is a sufficiently unprofitable form of literature. In England both name and thing have become in recent years all but obsolete. Yet there are not wanting even at this day examples of the earlier way of thought. The most notable of these is the late Professor Lorimer’s Institutes of Law, a Treatise of the Principles of Jurisprudence as determined by Nature. On the Continent, on the other hand, the literature of natural law, though no longer as flourishing as it was, is still of importance. One of the best known works of this class is Ahrens’ Cours de Droit Naturel. A typical example from an earlier epoch is Pufendorf’s once celebrated but now neglected work, De Jure Naturae et Gentium (1672).^[1]

In a second and narrower sense, jurisprudence, instead of including all three of the foregoing divisions, is limited to one only, namely, that which we have distinguished as civil. It is the science of civil law. A similar specific application belongs to the term law also, for when we speak of law without any qualifying epithet, we commonly mean that particular form which is administered in the tribunals of the state. So when we speak of jurisprudence without more, we usually intend the science of this special kind of law and this alone.^[2]

Civil jurisprudence is divisible into three branches, which may be distinguished as Systematic, Historical, and Critical. The first deals with the present; its purpose is the exposition of the legal system as it now is. The second deals with the past; it is concerned with the legal system in the process of its historical development. The third deals with the ideal future; it expounds the law not as it is or has been, but as it ought to be. Systematic jurisprudence is legal exposition; historical jurisprudence is legal history; while critical jurisprudence is commonly known as the science of legislation.

There is yet a third and still narrower sense, in which jurisprudence includes not the whole science of civil law, but only a particular part of it. In this limited signification it may be termed abstract, theoretical, or general, to distinguish it from the more concrete, practical, and special departments of legal study. It is with this form only that we are concerned in the present treatise. How, then, shall we define it, and how distinguish it from the residue of the science of the civil law? It is the science of the first principles of the civil law. It is not possible, indeed, to draw any hard line of logical division between these first principles and the remaining portions of the legal system. The distinction is one of degree rather than of kind. Nevertheless it is expedient to set apart, as the subject-matter of a special department of study, those more fundamental conceptions and principles which serve as the basis of the concrete details of the law. This introductory and general portion of legal science, cut off for reasons of practical convenience from the special portions which come after it, constitutes the subject-matter of our inquiry. It comprises the first principles of civil jurisprudence in all its three divisions, systematic, historical, and critical. The fact that its boundaries are not capable of being traced with logical precision detracts in no degree from the advantages to be derived from its recognition and separate treatment as a distinct department of juridical science. Practical legal exposition acknowledges no call to rise to first principles, or to proceed to ultimate analysis. From the point of view of law as an art, the importance of conceptions and principles varies inversely with their abstractness or generality. Practical jurisprudence proceeds from below upward, and ascends no further than the requirements of use and practice demand. Theoretical jurisprudence, on the contrary, attributes value to the abstract and the general, rather than to the concrete and the particular. Even when these two departments of knowledge are coincident in their subject-matter, they are far apart in their standpoints, methods, and purposes. The aim of the abstract study is to supply that theoretical foundation which the science of law demands, but of which the art of law is careless.

Opinions may well differ to some extent as to the matters which are fit, by reason of their generality or their theoretic and scientific interest, to find a place among the contents of abstract jurisprudence. Speaking generally, however, it may be said that this science appropriately deals with such matters as the following:

1. An analysis of the conception of civil law itself, together with an examination of the relations between this and other forms of law.

2. An analysis of the various subordinate and constituent ideas of which the complex idea of the law is made up; for example, those of the state, of sovereignty, and of the administration of justice.

3. An account of the sources from which the law proceeds, with an investigation into the theory of legislation, precedent, and customary law.

4. An examination of the general principles of legal development, as contrasted with the historic details of the growth of the individual legal system, this last pertaining to legal history.

5. An inquiry into the scientific arrangement of the law, that is to say, the logical division of the corpus juris into distinct departments, together with an analysis of the distinctions on which the division is based.

6. An analysis of the conception of legal rights together with the division of rights into various classes, and the general theory of the creation, transfer, and extinction of rights.

7. An investigation of the theory of legal liability, civil and criminal.

8. An examination of any other juridical conceptions which by reason of their fundamental character, or their theoretical interest, significance, or difficulty, deserve special attention from the abstract point of view; for example, property, possession, obligations, trusts, incorporation, and many others.^[3]

It may avoid misconceptions, and assist us in understanding what theoretical jurisprudence is, if we state shortly what it is not.

1. In the first place it is not an elementary outline of the concrete legal system. It deals not with the outlines of the law, but with its ultimate conceptions. It is concerned not with the simplest and easiest, but with some of the most abstruse and difficult portions of the legal system. Theoretical jurisprudence is not elementary law, any more than metaphysics is elementary science.

2. In the second place it is not, as the name general jurisprudence suggests, and as some writers have held,^[4] the science of those conceptions and principles which all or most systems of law have in common. It is true, indeed, that a great part of the matter with which it is concerned is to be found in all mature legal systems. All these have the same essential nature and purposes, and therefore agree to a large extent in their fundamental principles. But it is not because of this universal reception, that such principles pertain to theoretical jurisprudence. Were it a rule of every country in the world that a man could not marry his deceased wife’s sister, the rule would not for that reason be entitled to a place in this department of legal science. Conversely, as universal reception is not sufficient, so neither is it necessary. Even if no system in the world, save that of England, recognised the legislative efficacy of precedent, the theory of case-law would none the less be a fit and proper subject of the science in question.

3. Finally, this branch of knowledge has no exclusive claim to the name of jurisprudence or of legal science. It is not, as some say, the science of law, but is simply the introductory portion of it. As we have already seen, it is not even capable of definite and logical separation from the residue of legal learning. The division is one suggested by considerations of practical convenience, not demanded by the requirements of logic.

The divisions of legal science, as they have been stated and explained in the foregoing pages, may be exhibited in tabular form as follows:

§ 4. English and Foreign Jurisprudence.

The use of the term jurisprudence to indicate exclusively that special branch of knowledge which we have termed theoretical jurisprudence, is a peculiarity of English nomenclature. In foreign literature jurisprudence and its synonyms include the whole of legal science and are never used in this specific and limited signification. The foreign works which correspond most accurately to the English literature of this subject are of three different kinds:—

1. Works devoted to the subject known as Juridical Encyclopædia, one of the best known examples of which is that of Arndts. He defines this department of legal science as comprising “a scientific and systematic outline or general view of the whole province of jurisprudence (Rechtswissenschaft), together with the general data of that science.” “Its purpose,” he adds, “is to determine the compass and limits of jurisprudence, its relations to other sciences, its internal divisions, and the mutual relations of its constituent parts.”^[5]

2. Books of Pandektenrecht (that is to say, Modern Roman Law), and more especially the Introductory or General Part of these works. German jurists have devoted extraordinary energy and acumen to the analysis and exposition of the law of the Pandects, in that modern form in which it was received in Germany until superseded by recent legislation. Much of the work so done bears too special a reference to the details of the Roman system to be in point with respect to the theory of English law. The more general portions, however, are admirable examples of the scientific analysis of fundamental legal conceptions. Special mention may be made of the unfinished System of Modern Roman Law by Savigny, and of the similar works of Windscheid and Dernburg.

3. A third form of foreign literature which corresponds in part to our English books of jurisprudence, consists of those works of jurisprudentia naturalis which have been already referred to. These contain the theory of natural law and natural justice, while English jurisprudence is concerned with civil law, and with the civil or legal justice which that law embodies. Yet the relation between natural and civil law, natural and civil justice, is so intimate that the theory of the one is implicitly, if not explicitly, that of the other also. Widely, therefore, as they differ in aspect, we may place the French Philosophie du droit naturel and the German Naturrechtswissenschaft side by side with our own theoretical jurisprudence. It is, indeed, from the earlier literature of natural law, as represented by Pufendorf, Burlamaqui, Heineccius, and others,^[6] that the modern English literature of jurisprudence is directly descended.^[7]