Page images

CHAP. I. before the eyes of the later Roman jurists a vision of a 'ius

naturale”; a universal code, from which all particular systems are derived, or to which they all tend, at least, to approximate: a set of rules, the matter, or contents, of which is of universal application.

But in point of fact, and in the very pursuit of this material unity, they were led to elaborate a system of formal unity; to catalogue the topics with which every system of law has to deal, however each may differ from the rest in its mode of dealing with them. They performed for Law a service similar to that which was rendered to Language by the Greeks of Alexandria, when by observing and tabulating the parts of speech, the inflections, moods and syntax, they invented a grammar, under the formulae of which all the phenomena of any language find appropriate places?. Whether the possessive case of a noun substantive is expressed by a specific modification of its termination, or by prefixing to it a specific preposition, is a question of the matter of language ; but that the possessive idea, however variously expressed, yet finds some expression or other in every family of human speech, is a proposition which relates to linguistic form.

The assertion that Jurisprudence is a formal science may perhaps be made clearer by an example. If any individual should accumulate a knowledge of every European system of law, holding each apart from the rest in the chambers of his mind, his achievement would be best described as an accurate acquaintance with the legal systems of Europe. If each of these systems were entirely unlike the rest, except when laws had been transferred in the course of history from one to the other, such a distinguished jurist could do no more than endeavour to hold

quaedam membra dispertiat, tum propriam cuiusque vim definitione declaret, perfectam artem iuris civilis habebitis, magis magnam atque uberem quam difficilem atque obscuram.' De Orat. i. 42.

· Cf. Max Müller, Science of Language, edit. 3, p. 90.


fast, and to avoid confusing, the heterogeneous information CHAP. I. of which he had become possessed. Suppose however, as is the case, that the laws of every country contain a common element; that they have been constructed in order to effect similar objects, and involve the assumption of similar moral phenomena as everywhere existing; then such a person might proceed to frame out of his accumulated materials a scheme of the purposes, methods, and ideas common to every system of law. Such a scheme would be a formal science of law; presenting many analogies to Grammar, the science of those ideas of relation which, in greater or less perfection, and often in the most dissimilar ways, are expressed in all the languages of mankind.

To each of these formal sciences there ministers a science which supplies it with materials. Just as simi- . larities and differences in the growth of different languages are collected and arranged by Comparative Philology, and the facts thus collected are the foundation of abstract Grammar?; so Comparative Law collects and tabulates the legal institutions of various countries, and from the results thus prepared, the abstract science of Jurisprudence is enabled to set forth an orderly view of the ideas and methods which have been variously realised in actual systems. It is, for instance, the office of Comparative Law to ascertain what have been at different times and places the periods of prescription, or the requisites of a good marriage. It is for Jurisprudence to elucidate the meaning of prescription, in its relation to ownership and to actions; or to explain the legal aspect of marriage, and its connection with property

1 It is of course true, as is pointed out by Professor Pollock in commenting upon this passage (Essays in Jurisprudence and Ethics, p. 4), that, as a matter of fact, abstract grammar is not taught separately, but is given by implication in every systematic grammar of a particular language. This is probably a subject of regret to most persons who, after mastering one language, find many pages in the grammars of every other language devoted to a reiteration of the now familiar distinctions between a substantive and an adjective, a present and a future tense, direct and oblique narration.

CHAP. I. and the family. We are not indeed to suppose that Juris

prudence is impossible unless it is preceded by Comparative Law. A system of Jurisprudence might conceivably be constructed from the observation of one system of law only, at one epoch of its growth. Such, however, has not been in point of fact the mode of its evolution, which must have been extremely tardy but for the possibility of separating the essential elements of the science from its historical accidents, by comparing together laws enforced in the same country at different epochs, and indigenous laws with the differing, though resembling, laws of foreigners.

Jurisprudence is therefore not the material science of those portions of the law which various nations have in common?, but the formal science of those relations of mankind which are generally recognised as having legal consequences a.

It is a science of positive law,

In the next place, it must be sufficient at present merely to state, without further explanation, that Jurisprudence is not a science of legal relations à priori, as they might have been, or should have been, but is abstracted à posteriori from such relations as have been clothed with a legal character in actual systems, that is to say from law which has actually been imposed, or positive law. It follows that Jurisprudence is a progressive science. Its generalisations must keep pace with the movement of systems of actual law. Its broader distinctions, corresponding to deep-seated human characteristics, will no doubt be permanent, but, as time goes on, new distinctions must be constantly developed, with a view to the co-ordination of the ever-increasing variety of legal phenomena 3.

and is therefore progressive.

1 A subject which, under the description of the 'ius gentium,' largely occupied the attention of the Roman jurists.

2 Dr. Grueber, in his review of this work, prefers to describe the object of Jurisprudence as being die Gesammtheit der auf die verschiedenen Ver. hältnisse anwendbaren Rechtsvorschriften.' Krit. Vierteljahrschrift für Rechtswissenschaft, 1884, p. 180. But see Windsheid Pand. i. § 13, n. 2.

3 So Lord Hale: 'It cannot be supposed that humane laws can be wholly exempt from the common fate of humane things. Parliaments have taken off and abridged many of the titles about which the law was concerned : usage and disusage hath antiquated others, ... and it shall not be altogether impertinent to give some instances herein of several great titles in the Law, which upon those occasions are at this day in a great measure antiquated, and some that are much abridged and reduced into a very narrow compass and use' (he mentions, inter alia, tenures by knight-service, descents to take away entry, atturnment), ‘and as time and experience and use, and some Acts of Parliament, have abridged some and antiquated other titles, so they have substituted or enlarged other titles: as for instance, action upon the case, devises, ejectione firmae, election, and divers others.' Preface to Rolle's Abridgment, 1668. Cf. the interesting remarks of Sir Henry Maine on the probability that a general adoption of a system of Registration of title would render comparatively unimportant such topics as Possession, Bonitarian ownership, and Usucapio; although these have always been recognised as belonging to what may be called the osseous structure of Jurisprudence.' Early Law and Custom, p. 360.

[blocks in formation]

We have lastly to consider whether the science is rightly CHAP. 1. divided into several species, and especially to inquire into the Is it divisjustness of the distinction drawn between 'general' and 'general'

and 'par* particular' Jurisprudence. Particular Jurisprudence,' says ticular" ? Austin, 'is the science of any actual system of law or of any portion of it. The only practical Jurisprudence is particular. . . The proper subject of general, or universal, Jurisprudence is a description of such subjects and ends of laws as are common to all systems, and of those resemblances between different systems which are bottomed in the common nature of man, or correspond to the resembling points in these several portions 1.'

Now 'particular' Jurisprudence may mean either of two things.

It may mean: a science derived from an observation of the laws of one country only. If so, the particularity attaches, not to the science itself, which is the same science whencesoever derived, but to the source whence the materials for it are gained. A science of Law might undoubtedly be constructed from a knowledge of the law of England alone, as a science of Geology might be, and in great part was, con

1 Lectures on Jurisprudence, vol. iii. p. 356. Cf. Bentham, Works, i. p. 149.

CHAP. I. structed from an observation of the strata in England only:

yet as there is no particular science of Geology, so neither is there a particular science of Law. For a science is a system of generalisations which, though they may be derived from observations extending over a limited area, will nevertheless hold good everywhere; assuming the object-matter of the science to possess everywhere the same characteristics. Principles of Geology elaborated from the observation of England alone hold good all over the globe, in so far as the same substances and forces are everywhere present; and the principles of Jurisprudence, if arrived at entirely from English data, would be true if applied to the particular laws of any other community of human beings; assuming them to resemble in essentials the human beings who inhabit England. The wider the field of observation, the greater, of course, will be the chance of the principles of a science being rightly and completely enunciated ; but, so far as they are scientific truths at all, they are always general and of universal application. The phrase may however, and probably does, mean: an acquaintance with the laws of a particular people; and the impropriety of describing such merely empirical and practical knowledge by a term which should be used only as the name of a science has been already pointed out. In either sense therefore the term is a misnomer ;

and it follows that, the existence of a particular Jurisprudence' not being admitted, the employment of the opposed term ' general Jurisprudence' becomes unnecessary. Both expressions should be discarded, and the science should be treated as incapable of being divided into these two

branches. or into A distinction may also be suggested between historical and philo- and philosophical ’ Jurisprudence. It may be said that the sophical'? unity which makes Jurisprudence a science exists only in

idea ; that while it has a side upon which it is closely allied to Ethics and to Metaphysics, it is, on the other hand, no less intimately connected with Archaeology and History ; that its

« PreviousContinue »