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ELEMENTS OF JURISPRUDENCE.

CHAPTER I.

JURISPRUDENCE,

The present treatise is an attempt to set forth and explain the need

of a science those comparatively few and simple ideas which underlie the of Law. infinite variety of legal rules.

The search for these ideas is not merely a matter of scientific curiosity. The ever-renewed complexity of human relations calls for an increasing complexity of legal detail, till a merely empirical knowledge of law becomes impossible. The evil has been partially remedied by the formation of Codes, by means of which legislators, more or less imbued with legal principles, have grouped the legal chaos under genera and species. But an uncodified system of law can be mastered only by the student whose scientific equipment enables him to cut a path for himself through the tangled growth of enactment and precedent, and so to codify for his own purposes. In this, as in other departments of knowledge, the difficulty of the subject is due less to the multiplicity of its details than to the absence of general principles under which those details may be grouped. In other words, while

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CHAP. I. legal science is capable of being intelligently learnt, isolated

legal facts are capable only of being committed to memory.

For the beginnings of the science which reduces legal phenomena to order and coherence the world is indebted to the Romans. It is also from their language that the science derives its name.

Iurisprudentia,' in its original use, was merely one among several phrases signifying a knowledge of the law, just as * rei militaris prudentia' signified a knowledge of the conduct of warfare 1. The sort of knowledge which the term denoted may be gathered from Cicero's description of a jurisconsult as one who must be skilled in the laws, and in the usages current among private citizens, and in giving opinions and bringing actions and guiding his clients aright 2.'

From this thoroughly practical conception of legal knowledge the Roman jurists subsequently rose to a far higher one. The rudiments of this may already be traced in the writings of Cicero, who enumerates the civil law, along with astronomy, geometry, and dialectic, among the arts which have to do with the pursuit of truth 3. He tells us that the study of law must be derived from the depths of philosophy, and that, by an examination of the human mind and of human society, principles may be discovered in comparison with which the rules of positive law are of but trivial importance 4.

'Habebat enim magnam prudentiam, tum iuris civilis tum rei militaris.' Nep. Cim. 2. The following terms are used synonymously with 'iuris prudentia': ‘legum prudentia,' Cic. Rep. ii. 36.; ‘legum scientia,' Inst. Prooem. 3 ; legitima scientia,' ib. 2 ; 'iuris notitia,' Tac. Orat. 31; ‘cognitio iuris,' Cic. de Orat. i. 44; ‘iuris scientia,' ib. 55, Pompon. Dig. i. 2. 2. 40; 'civilis scientia,' Cic. de Orat. i. 43 ; 'iuris peritia,' Ulp. Dig. i. 1. 1. Knowledge of a particular department of law is described by such phrases as 'iuris civilis' (Cic. de Orat. i. 44), 'iuris publici' (ib. 60), 'prudentia.'

* Cic. de Orat. i. 48. The same persons who were called 'iurisconsulti' or 'iure periti' were also described as 'prudentes in iure civili,' Cic. Amic. 2; more briefly as 'prudentes,' Gai. i. 7. The phrase 'iuris prudens' is employed by Pomponius (Dig. xxxviii. 15. 2). “Legum prudens' occurs in Ennius (Gell. xii. 4) and “imprudens iuris' in Iust. Inst. iv, 2. 3 Cic. de Off, i. 6.

4 Id. de Leg. i. 5.

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Thus the way was prepared for Ulpian's well-known Chap. I. definition of jurisprudence as 'the knowledge of things human and divine, the science of the just and unjust 1.' Jurisprudence was conceived of as a branch of philosophy; and such an elevation of the idea of legal study was naturally accompanied by a corresponding elevation of its professors. Ulpian claims for himself and his learned brethren that they are the priests of Justice, engaged in the pursuit of a philosophy that is truly such and no counterfeit?' The Romans had, in fact, attained by this time to the idea of a science of those legal principles which exist independently of the institutions of any particular country. No technical term could be borrowed from the Greek language to denote what was of purely indigenous growth ?, and thus it happened that a phrase which at first had been but one among several signifying, in a homely and quite unscientific sense, a “knowledge of law, came at length by an accident of Latin philology to express the new idea of a legal science,

The nations of modern Europe are fortunately in the habit of calling the various branches of knowledge by nonvernacular names, adopted by common consent from the classical languages; so that a science is generally known by the same Greek or Latin term wherever Western civilisation extends. It is therefore natural and convenient that most of the European nations should express the idea of a science of law by a word which they have borrowed

1 • Iurisprudentia est divinarum atque humanarum rerum notitia, iusti atque iniusti scientia.' Dig. i. 1. 10. This is nearly a translation of the Stoic definition of σοφία as being θείων τε και ανθρωπίνων επιστήμη (Plut. Plac. Phil. i. pr. ; cf. Cic. de Off, i. 43), modified by the addition of a clause specifying the par. ticular kind of wisdom intended. The first clause of Ulpian's definition has been, with little reason, thought by some to have reference to the distinction between ius sacrum and the other branches of law; see Glück, Pandekten, i.

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Dig. i. 1. 1. 1. 3 Iurisprudentia is represented in the Basilika, ii. 1. 1, and in Harmen. opulus, Prompt. i. 1. 18, by copia vóuov.

uses of the

CHAP. I. from the language of those by whom the idea was first

conceived 1. Improper But the term is unfortunately also borrowed by the term. modern languages to express other ideas, which might be

much better expressed in the vernacular. Thus, upon the analogy of certain loose expressions of the Roman writers, who sometimes use 'iurisprudentia' to denote a current view of the law, there has sprung up in French the use of such phrases as 'jurisprudence constante,' jurisprudence des arrêts de la Cour de Cassation’; in the sense of the view which the courts are in the habit of taking of certain questions

Still less justifiable is the use, so frequent both in French and in English, of 'Jurisprudence' as the equivalent of 'Law. The imposing quadrisyllable is constantly introduced into a phrase on grounds of euphony alone. Thus we have books upon · Equity Jurisprudence,' which are nothing more nor less than treatises upon the law administered by Courts of Equity; and we hear of the Jurisprudence of France or Russia, when nothing else is meant than the law which is in force in those countries respectively 4. This sacrifice of sense to sound might more readily be pardoned, had it not misled serious and accurate thinkers.

Bentham, for instance, divides Jurisprudence into 'expository, which ascertains what the law is, and 'censorial,' which ascertains what it ought to be". Now an exposition of existing law is obviously quite another thing from a science of law, and criticisms upon the law with a view to

1 Even the Germans, who have vernacular names for so many of the sciences, recognise “ Jurisprudenz' as well as ‘Rechtswissenschaft.'

Media iuris prudentia,' Iust. Inst. iii. 2. 3. 3 'La manière dont un Tribunal juge habituellement telle ou telle question.' Dict. de l'Académie.

* Perhaps the least pardonable application of the term is when a treatise upon such medical facts as may incidentally become important in legal proceedings is described as a book upon 'Medical Jurisprudence.' Such a work is more properly described as dealing with 'Forensic Medicine,' or Médecine légale'

5 Works, i. p. 148.

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its amendment are the subject, not of Jurisprudence, but, as Bentham himself states in the next paragraph, of the art of Legislation. Bentham carries the confusion further by proceeding to sub-divide expository Jurisprudence into authoritative' and 'unauthoritative?' By "authoritative expository jurisprudence' he means nothing more nor less than law emanating from the legislative power ; under "unauthoritative' he would apparently include both text-books upon the laws of any one country, or, as he would say, upon * local jurisprudence,' and works upon law without special reference to any one country, or, to use his own phrase, upon ‘universal jurisprudence. If we are right in considering It is the that 'censorial jurisprudence' should be called the art of legislation, that authoritative jurisprudence' is nothing more nor less than a body of law, and that “unauthoritative local jurisprudence' is mere commentary ; it is obvious that what Bentham makes the sub-department of unauthoritative universal jurisprudence' is alone entitled to bear the name of the science; and should bear the name simply, without the addition of epithets intended to distinguish it from departments of the subject which are non-existent. • Jurisprudence' ought therefore to be used, and used without any qualifying epithet, as the name of a science.

name of a science.

We have next to inquire what kind of a science it is; and This

science is a we shall find that it is a formal, or analytical, as opposed to formal one. 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 regulate those relations.

This was not indeed the whole scope of the science as conceived of by its founders. There floated also always

1 Works, i. p. 148.

? Although we find in Cicero the clearest possible description of an analytical science of law. "Sunt notanda genera et ad certum numerum paucitatemque revocanda ... si autem aut mihi facere licuerit quod iam diu cogito, aut alius quispiam aut me impedito occuparit, aut mortuo effecerit, ut primum omne ius civile in genera digerat, quae perpauca sunt, deinde eorum generum quasi

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