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jurisprudence:science

The science of jurisprudence

Jurisprudence as the Science of Civil Law

In a generic and primary sense jurisprudence includes e entire body of legal doctrine. It is jurisprudentia; knowledge of law; and in this sense all law books are books of jurisprudence. By law in this connection is meant exclusively the civil law, the law of the land, as opposed those other bodies of rules to which the name of law is been extended by analogy. If we use the term “science” in its widest permissible sense, as including the systematised knowledge of any subject of intellectual inquiry, we may define jurisprudence as the science of civil law.

Of jurisprudence in this sense there are three kinds; namely,

  1. legal exposition,
  2. legal history, and
  3. the science of legislation.

The purpose of the first is to set forth the contents of an actual legal system as existing any time, whether past or present. The purpose of the second is to set forth the historical process whereby any legal system came to be what it is or was. The purpose the third is to set forth the law, not as it is or has been, but as it ought to be. It deals not with the past or present of any legal system, but with its ideal future, and with the purposes for which it exists. The complete scientific treatment of any body of law involves the adoption of each of these three methods. The law must be dealt with systematically or dogmatically in respect of its contents, historically in respect of the process of its development, and critically in respect of its conformity with justice and the public interest. The first of these methods is that of expository or systematic jurisprudence; the second is that of legal history; while the third pertains to that branch of legal science which, for want of a better name, is commonly termed the science of legislation.

Theoretical or General Jurisprudence

From jurisprudence in its generic sense, as including the entire body of legal doctrine, it is necessary to distinguish jurisprudence in a more specific sense, in which it means a particular department of such doctrine exclusively. In this limited significance it may be termed theoretical or general jurisprudence to distinguish it from the more practical and special departments of legal study. It is with this only that the present treatise is concerned. How, then, shall we define it; and how distinguish it from the residue of legal science? 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 those first principles and the remaining portions of the law. 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 doctrine, cut off for reasons of practical convenience from the special portions which come after it, constitutes the subject-matter of this treatise. 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 scientific inquiry. Practical legal exposition acknowledges no call to rise to first principles, or to proceed to ultimate analysis. It takes for granted, as postulates and data, many things which it is the business of theoretical jurisprudence to inquire into. From the point of view of law as an art, the importance of conceptions and principles varies inversely with their abstractness and generality. 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.

It must not be supposed that the object of this branch of legal science is an elementary outline of the concrete legal system. It deals not with the outlines of the law, but with its ultimate conceptions. Theoretical jurisprudence is not elementary law, any more than metaphysics is elementary science.

This introductory portion of legal doctrine goes by divers names. It is called theoretical jurisprudence, as being concerned with the theory of the law; that is to say, its fundamental principles and conceptions; rather than its practical and concrete details. It is also, and for the same reason, known as general jurisprudence (jurisprudentia generalis or universalis). It is also called the philosophy of law (Rechtsphilosophie; philosophie du droit), the term “philosophy” being here used, not in the sense of metaphysics; though it is true that much of the Continental literature of jurisprudence has a metaphysical aspect very alien to English modes of legal thought; but in the sense of an inquiry into the first principles of any department of thought. It is also known as jurisprudence simpliciter, without any qualifying adjective to distinguish it from the residue of legal doctrine. This specialised use of the generic term cannot be justified from the point of view of philology; but it is of practical convenience, and may be regarded as well established in modern English speech. Indeed, it would be an improvement in legal nomenclature if the term “jurisprudence” were used exclusively in this specific sense as meaning the theory or philosophy of law, the use of the term in its original and generic sense, as meaning legal doctrine in general, being discontinued.

Analytical, Historical and Ethical Jurisprudence

Jurisprudence, in its specific sense as the theory or philosophy of law, is divisible into three branches, which may be distinguished as analytical, historical, and ethical. This distinction corresponds to that which has been already indicated as existing within the sphere of legal science in general; namely, the distinction between legal exposition, legal history, and the science of legislation. The philosophy of law, being the introductory portion of legal science in general, involves the same tripartite division. Analytical jurisprudence is the general or philosophical part of systematic legal exposition, historical jurisprudence is the general or philosophical part of legal history, and ethical jurisprudence is the general or philosophical part of the science of legislation.

These three aspects of the law; dogmatic, historical, and ethical; are so involved with each other that the isolated treatment of any one of them is necessarily inadequate. A complete treatise of jurisprudence would deal fully with all three branches of the subject. In fact, however, most treatises pertain primarily and essentially to one or other of them, and deal with the others only incidentally, and only so far as may be necessary to render adequate and intelligible the treatment of the central theme. It is not difficult, therefore, to classify most books of jurisprudence or legal philosophy as pertaining primarily either to the analytical, or to the historical, or to the ethical branch of the subject.

Analytical Jurisprudence

The purpose of analytical jurisprudence is to analyse, without reference either to their historical origin or development or to their ethical significance or validity, the first principles of the law. Since the distinction between jurisprudence and the practical exposition of a concrete legal system is merely one of degree, opinions may well differ to some extent as to the matters which deserve a place in the former department of legal science. Speaking generally, however, a book of analytical jurisprudence will deal appropriately with such subjects as the following:

  1. An analysis of the conception of civil law;
  2. An examination of the relations between civil law and other forms of law;
  3. An analysis of the various constituent ideas of which the complex idea of law is made up; for example, those of the state, of sovereignty, and of the administration of justice;
  4. An account of the legal (as opposed to the merely historical) sources from which the law proceeds, together with an investigation of the theory of legislation, judicial precedents, and customary law;
  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 this 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 legal conceptions which, by reason of their theoretical interest, significance, or difficulty, deserve special attention from the philosophical point of view : such as property, possession, obligations, contracts, trusts, personality, incorporation, acts, causation, intention, motive, negligence, and many others.

Historical Jurisprudence

That branch of legal philosophy which is termed historical jurisprudence is the general portion of legal history. It bears the same relation to legal history at large as analytical jurisprudence bears to the systematic exposition of the legal system. It deals in the first place with the general principles governing the origin and development of law. It deals in the second place with the origin and development of those legal conceptions and principles which are so essential in their nature as to deserve a place in the philosophy of law; the same conceptions and principles, that is to say, which are dealt with in another manner and from another point of view by analytical jurisprudence. Historical jurisprudence is the history of the first principles and conceptions of the legal system.

Ethical Jurisprudence

Ethical jurisprudence deals with the law from the point of view of its ethical significance and adequacy. It is concerned not with the intellectual content of the legal system or with its historical development, but with the purpose for which it exists and the measure and manner in which that purpose is fulfilled. Now the purpose and end of the law may be said generally to be the maintenance of justice within a political community by means of the physical force of the State. Ethical jurisprudence is concerned, therefore, with the theory of justice in its relation to law. It is the meeting point and common ground of moral and legal philosophy; of ethics and jurisprudence. Justice in its general aspect and relations pertains to ethics or moral philosophy. Justice in its special aspect, as the final cause of civil law, pertains to that branch of legal philosophy which we have distinguished as ethical jurisprudence.

A book of ethical jurisprudence, therefore, may concern itself with all or any of the following matters:

  1. The conception of justice.
  2. The relation between law and justice.
  3. The manner in which law fulfils its purpose of maintaining justice.
  4. The distinction, if any such there be, between the sphere of justice as the subject-matter of law, and those other branches of right with which the law is not concerned and which pertain to morals exclusively.
  5. The ethical significance and validity of those legal conceptions and principles which are so fundamental in their nature as to be the proper subject matter of analytical jurisprudence.

Further than this the proper scope of ethical jurisprudence does not extend. So far as any book goes beyond this general theory of justice in its relation to law, it passes over either into the sphere of moral philosophy itself, or else into the sphere of that detailed criticism of the actual legal system, or that detailed construction of an ideal legal system, which pertains not to jurisprudence or legal philosophy but to the science of legislation.

The present work in Lawpage is primarily and essentially a work of analytical jurisprudence. In this respect it endeavours to follow the main current of English legal philosophy rather than that which prevails upon the Continent of Europe, and which, to a large extent, is primarily ethical in its scope and method. But although the essential purpose of this work is an analysis of the first principles of the actual legal system, this purpose is not pursued to the total exclusion and neglect of the ethical and historical aspects of the matter. These are treated, however, as subsidiary, and are dealt with only so far as is thought necessary for the adequate treatment of the central subject-matter. A different method is doubtless possible. The writer of a book of analytical jurisprudence may say that the ethical and historical points of view are no concern of his. He may say that he is concerned exclusively with the intellectual content of the law as it actually exists, without reference to its end or purpose, the ethical quality or significance of its doctrines, or the historical process of its development. He may say that he is content to leave the history of law to the historian, and its ethical aspect to the moral philosopher. There are, indeed, some hooks of English jurisprudence which approach closely to this type, if they do not actually reach it. No adequate exposition, however, can so completely ignore the other branches of the subject. The total disregard of the ethical implications of the law tends to reduce analytical jurisprudence to a system of rather arid formalism; and the total disregard of historical origins and development is inconsistent with the adequate explanation of those principles and conceptions with which it is the business of this science to deal.

English and Foreign Jurisprudence

When an English lawyer with any knowledge of the terminology of Roman law comes to the study of a practical law-book of France or Germany he finds himself on ground not wholly unfamiliar. If, however, he ventures into the region of Continental legal philosophy, he finds himself a stranger in a strange land where men speak to him in an unknown tongue. For this divergence between the juristic thought and literature of England and that of the Continent there is more than one reason, but the most far reaching cause of it is to be found in a certain difference in legal nomenclature. The English word “law” means law and nothing else; but the corresponding terms in Continental languages are ambiguous, and mean not only law but also right or justice. Recht, droit, and diritto all have this double signification. An English lawyer is helped to an understanding of this ambiguity, if he reflects that a similar double meaning is possessed in England by the term “ equity/’ which means either natural justice or that particular branch of English law which was developed and applied by the Court of Chancery The union of these two distinct though related meanings in the same words in Continental speech, while there is in general no such union in English speech, has produced important divergences between the juristic thought and literature of England and that of the Continent.

In the first place any translation of Continental jurisprudence into the English language becomes largely unintelligible if, as is usually the case, the rough-and-ready device is adopted of translating as a matter of course the terms Recht, droit, and diritto into the term “law.” Such a version makes no distinction between those propositions which relate to law, those which relate to justice, and those which relate both to law and to justice by reference to some common element possessed or supposed to be possessed by each.

In the second place, the fact that in Continental languages law and justice are called by the same name serves on the one hand as a constant reminder of the real relation which exists between them, but tends on the other hand to create oblivion of the real distinction between them and to induce accordingly a certain confusion of thought by the identification of distinct things. In England the opposite effect is produced. On the one hand the fact that we have different words for law and justice, and cannot use the same word for both purposes, is a constant reminder that these are two different things and not the same thing. On the other hand the fact that they are never called by the same name tends to hide from view the real and intimate relation which exists between them. In other words, Continental speech conceals the difference between law and right, whereas English speech conceals the connection between them.

In the third place, and for the same reason, English jurisprudence tends naturally to assume the analytical and historical form to the exclusion of the ethical. Continental jurisprudence, on the contrary, tends naturally to assume the ethical form. In England there is readily and naturally evolved a theory of law which does not at the same time concern itself with justice. But on the Continent the theory of Recht and droit almost necessarily concerns itself with both senses of those terms and with the relation between the things so signified. The resulting predominance of the analytical method in England and of the ethical method on the Continent is a characteristic distinction between English and Continental jurisprudence in their typical forms.

Lastly, it is to be observed that Continental jurisprudence is distinguished from English not merely by its ethical, but also by its metaphysical, character. The latter quality has its source in the former, for ethics tends naturally to run into metaphysics, whereas the science of law itself is ready and willing to walk in lowlier paths.

The use of the term “jurisprudence” to denote exclusively that special branch of legal doctrine which we have termed theoretical or general jurisprudence is a peculiarity of English nomenclature. In foreign literature jurisprudence and its synonyms include the whole of legal knowledge, and are not used in this specific and limited signification.

The foreign works which correspond most accurately to the English literature of this subject are of the following kinds:

  1. Works devoted to the subject known as legal encyclopedia; that is to say, the general introductory treatment of the legal system, preparatory to the practical study of the corpus juris itself A good example is the Juristische Encyklopadie of Arndts, who defines this department of legal literature as comprising “a scientific and systematic outline or general view of the whole province of jurisprudence, together with the general data of that science.” “ Its purpose,” he adds, is to determine the compass and limits of jurisprudence, its relation to other sciences, its internal divisions, and the mutual relations of its constituent parts ” . Another example is Puchta’s Encyklopadie, being the introductory portion of his Cursus der Institutionen, and translated by Hastie under the title of Outlines of Jurisprudence (1887). The Rechts-Encyklopddie of Gareis has been translated by Kocourek under the title of The Science of Low (1911) The name “general jurisprudence” (allgemeinen Recht slehre) is sometimes given to this form of legal literature, as in the case of Merkel’s Elemente der allgemeinen Rechtslehre.
  2. The introductory and more general portions of books of Pandektenrecht; that is to say, modern Roman law. German lawyers have devoted great acumen to the analysis and exposition of the law of the Pandekts 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 Modem Roman Law by Savigny, and of the similar works of Windscheid and Dernburg.
  3. The introductory and general portions of the systematic treatises devoted to those codes of law which in modern times have superseded Roman law throughout the Continent of Europe. The better sort of such treatises are distinguished from the ordinary type of English law-book by a careful analysis of first principles, such as is commonly left in England to the labours of writers on theoretical jurisprudence.
  4. Books of Rechtsphilosophie or philosophic du droit. All of these, however divergent inter se in their philosophic standpoints or their methods, are essentially and generically of one and the same nature, as contrasted with the normal type of English analytical jurisprudence. They are primarily books of ethical jurisprudence. Their central subject-matter is not, as with English jurisprudence, the theory of civil law in itself, but the theory of justice treated with special reference to the civil law. They deal primarily with droit or Recht in the sense of right, and only in a secondary manner with droit or Recht in the sense of positive or civil law.

The history of this Continental literature of Rechtsphilosophie may be regarded as divided into two distinct periods. The earlier period is that of the jurisprudentia naturalis of the seventeenth and eighteenth centuries. The later is that in which, under the influence of Kant, jurisprudence and ethics were annexed as part of the domain of metaphysics. The earlier period is represented by such writers as Grotius, Pufendorf, Wolff, Thomasius, and Burlamaqui. This celebrated and influential literature was devoted to the theory and principles of natural justice conceived as a body of rules authoritatively laid down by natural law (lex naturae), just as civil justice consists of the rules authoritatively imposed by civil law. The commencement of the second and metaphysical period in the history of the Continental philosophy of law may be regarded with sufficient accuracy as commencing with the publication in 1796 of Kant’s Metaphysical First Principles of Jurisprudence. Since that date there has developed on the Continent a literature of this subject, formidable both in bulk and character. It is represented by typical examples translated and published in America by the Association of American Law Schools under the title of The Modern Legal Philosophy Series. An historical and critical account of it is to be found in one of the volumes of that series, being a translation of a work of Berolzheimer under the title of The World’s Legal Philosophies. Notable examples, contained in the same series, of this type of ethical-juristic speculation are The General Theory of Law, by Korkunov, and The Philosophy of Law, by Kohler. Most of this literature is remote from the main current of English legal thought. It is for the most part so far devoted to metaphysics rather than to science, and to ethics rather than to law, and condescends so little to the facts of the concrete legal system, as to have little direct bearing on the task and problems to which the traditional jurisprudence of England has been devoted. Rechtsphilosophie of this type, however, is not wholly unrepresented even in English literature. A notable example is the work of Lorimer called The Institutes of Law; a Treatise of the Principles of Jurisprudence as determined by Nature, of which a second edition was published in 1880.

On the other hand, the earlier Continental literature of natural law in the seventeenth and eighteenth centuries may fairly be regarded as one of the sources from which, in the nineteenth century, English analytical jurisprudence was derived. The theory of natural law and natural justice, as developed by Pufendorf and others of that school, is so connected with the theory of civil law and civil justice that jurisprudentia naturalis of this type is readily transmuted into jurisprudentia civilis. Indeed the very term jurisprudentia generalis or universalis, by which English analytical jurisprudence is distinguished, was originally a synonym of jurisprudentia naturalis itself.

The main current of modern English analytical jurisprudence may be said to have its source in the work of John Austin, who occupied the chair of Jurisprudence in the then recently established University of London, and who published in 1832 a work entitled The Province of Jurisprudence Determined. After his death this book was incorporated in a larger work including his unpublished manuscripts, and entitled Lectures on Jurisprudence or the Philosophy of Positive Law (1863). In this work Austin definitely departs from the earlier tradition of jurisprudentia naturalis and accepts the first principles of the civil law itself as the proper subject of scientific or philosophical investigation.


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