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Philosophers of law ask "what is law?" and "what should it be?"

Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal philosophers, hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions. Modern jurisprudence began in the 18th century and was focused on the first principles of the law of nature, civil law, and the law of nations.[1] General Jurisprudence can be broken into categories both by the types of questions scholars seek to address and by the theories of jurisprudence or schools of thought regarding how those questions are best to be answered. Contemporary philosophy of law, which deals with general jurisprudence, addresses problems in two rough groups:[2]

  • 1.) Problems internal to law and legal systems as such
  • 2.) Problems of law as a particular social institution as it relates to the larger political and social situation in which it exists.

Answers to these questions come from four primary schools of thought in general jurisprudence:[3]

  • Natural law is the idea that there are rational objective limits to the power of legislative rulers. The foundations of law are accessible through human reason and it is from these laws of nature that human created laws gain whatever force they have.[4]
  • Legal Positivism, by contrast to natural law, holds that there is no necessary connection between law and morality and that the force of law comes from some basic social facts although positivists differ on what those facts are.[5]
  • Legal Realism is a third theory of jurisprudence which argues that the real world practice of law is what determines what law is; ie the law has the force that it does because of what legislators, judges, and executives do with it.
  • Critical Legal Studies is a younger theory of jurisprudence that has developed since the 1970s which is primarily a negative thesis that the law is largely contradictory and can be best analyzed as an expression of the policy goals of the dominant social group.[6]

Also of note is the work of the contemporary Philosopher of Law Ronald Dworkin who has advocated a constructivist theory of jurisprudence that can be characterized as a middle path between natural law theories and positivist theories of general jurisprudence.[7]

The English term is based on the Latin word jurisprudentia: juris is the genitive form of jus meaning "law", and prudentia means "knowledge". The word is first attested in English in 1628[8], at a time when the word prudence had the now obsolete meaning of "knowledge of or skill in a matter". The word may have come via the French jurisprudence, which is attested earlier.

Contents

History of jurisprudence

The Central Criminal Court of England and Wales at the Old Bailey

Jurisprudence already had this meaning in Ancient Rome, even if at its origins the discipline was a (periti) in the jus of mos maiorum (traditional law), a body of oral laws and customs verbally transmitted "by father to son". Praetors established a workable body of laws by judging whether or not singular cases were capable of being prosecuted either by the edicta, the annual pronunciation of prosecutable offense, or in extraordinary situations, additions made to the edicta. A iudex then would judge a remedy according to the facts of the case.

Their sentences were supposed to be simple interpretations of the traditional customs, but effectively it was an activity that, apart from formally reconsidering for each case what precisely was traditionally in the legal habits, soon turned also to a more equitable interpretation, coherently adapting the law to the newer social instances. The law was then implemented with new evolutive Institutiones (legal concepts), while remaining in the traditional scheme. Praetors were replaced in 3rd century BC by a laical body of prudentes. Admission to this body was conditional upon proof of competence or experience.

Under the Roman Empire, schools of law were created, and the activity constantly became more academic. In the age from the early Roman Empire to the 3rd century, a relevant literature was produced by some notable groups including the Proculians and Sabinians. The degree of scientific depth of the studies was unprecedented in ancient times and reached still unrivaled peaks of skill.

After the 3rd century, Juris prudentia became a more bureaucratic activity, with few notable authors. It was during the Byzantine Empire (5th century) that legal studies were once again undertaken in depth, and it is from this cultural movement that Justinian's Corpus Juris Civilis was born.

Natural law

Natural law theory asserts that there are laws that are immanent in nature, to which enacted laws should correspond as closely as possible. This view is frequently summarised by the maxim an unjust law is not a true law , lex iniusta non est lex, in which 'unjust' is defined as contrary to natural law. Natural law is closely associated with morality and, in historically influential versions, with the intentions of God. To oversimplify its concepts somewhat, natural law theory attempts to identify a moral compass to guide the lawmaking power of the state and to promote 'the good'. Notions of an objective moral order, external to human legal systems, underlie natural law. What is right or wrong can vary according to the interests one is focused upon. Natural law is sometimes identified with the maxim that "an unjust law is no law at all", but as John Finnis, the most important of modern natural lawyers has argued, this maxim is a poor guide to the classical Thomist position.

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Aristotle

Aristotle is often said to be the father of natural law.[9] Like his philosophical forefathers, Socrates and Plato, Aristotle posited the existence of natural justice or natural right (dikaion physikon, δικαίον φυσικόν, Latin ius naturale). His association with natural law is due largely to the interpretation given to him by Thomas Aquinas.[10] This was based on Aquinas' conflation of natural law and natural right, the latter of which Aristotle posits in Book V of the Nicomachean Ethics (= Book IV of the Eudemian Ethics). Aquinas's influence was such as to affect a number of early translations of these passages,[11] though more recent translations render them more literally.[12]

Aristotle's theory of justice is bound up in his idea of the golden mean. Indeed his treatment of what he calls "political justice" derives from his discussion of “the just” as a moral virtue derived as the mean between opposing vices, just like every other virtue he describes.[13] His longest discussion of his theory of justice occurs in Nicomachean Ethics and begins by asking what sort of mean a just act is. He argues that the term “justice” actually refers to two different but related ideas: general justice and particular justice.[14][15] When a person's actions are completely virtuous in all matters in relation to others, Aristotle calls her "just" in the sense of “general justice;” as such this idea of justice is more or less coextensive with virtue.[16] "Particular" or "Partial justice", by contrast, is the part of "general justice" or the individual virtue that is concerned with treating others equitably.[17] Aristotle moves from this unqualified discussion of justice to a qualified view of political justice, by which he means something close to the subject of modern jurisprudence. Of political justice, Aristotle argues that it is partly derived from nature and partly a matter of convention.[18] This can be taken as a statement that is similar to the views of modern natural law theorists. But it must also be remembered that Aristotle is describing a view of morality, not a system of law, and therefore his remarks as to nature here are about the grounding of the morality enacted as law not the laws themselves. The passage here is silent as to that question.

The best evidence of Aristotle's having thought there was a natural law comes from the Rhetoric, where Aristotle notes that, aside from the "particular" laws that each people has set up for itself, there is a "common" law that is according to nature.[19] The context of this remark, however, suggests only that Aristotle advised that it could be rhetorically advantageous to appeal to such a law, especially when the "particular" law of ones' own city was adverse to the case being made, not that there actually was such a law;[20] Aristotle, moreover, considered two of the three candidates for a universally valid, natural law suggested in this passage to be wrong.[21] Aristotle's theoretical paternity of the natural law tradition is consequently disputed.

Sharia and Fiqh in Islam

The first sura in a Qur'anic manuscript by Hattat Aziz Efendi.

Sharia (شَرِيعَةٌ) refers to the body of Islamic law. The term means "way" or "path"; it is the legal framework within which public and most private aspects of life are regulated for those living in a legal system based on Islamic principles of jurisprudence. Fiqh is the term for Islamic jurisprudence, made up of the rulings of Islamic jurists. A component of Islamic studies, Fiqh expounds the methodology by which Islamic law is derived from primary and secondary sources.

Mainstream Islam distinguish fiqh, which means understanding details and inferences drawn by scholars, from sharia that refers to principles that lie behind the fiqh. Scholars hope that fiqh and sharia are in harmony in any given case, but this cannot be assured.[22]

Early forms of logic in Islamic philosophy were introduced in Islamic jurisprudence from the 7th century with the process of Qiyas. During the Islamic Golden Age, there was a logical debate among Islamic philosophers and jurists whether the term Qiyas refers to analogical reasoning, inductive reasoning or categorical syllogism. Some Islamic scholars argued that Qiyas refers to reasoning, which Ibn Hazm (994-1064) disagreed with, arguing that Qiyas does not refer to inductive reasoning, but refers to categorical syllogism in a real sense and analogical reasoning in a metaphorical sense. On the other hand, al-Ghazali (1058-1111) (and in modern times, Abu Muhammad Asem al-Maqdisi) argued that Qiyas refers to analogical reasoning in a real sense and categorical syllogism in a metaphorical sense. Other Islamic scholars at the time, however, argued that the term Qiyas refers to both analogical reasoning and categorical syllogism in a real sense.[23]

Thomas Aquinas

Thomas Aquinas was the most important Western medieval legal scholar

Saint Thomas Aquinas [Thomas of Aquin, or Aquino] (c. 1225 – 7 March 1274) was a philosopher and theologian in the scholastic tradition, known as "Doctor Angelicus, Doctor Universalis". He is the foremost classical proponent of natural theology, and the father of the Thomistic school of philosophy, for a long time the primary philosophical approach of the Roman Catholic Church. The work for which he is best-known is the Summa Theologica. One of the thirty-three Doctors of the Church, he is considered by many Catholics to be the Church's greatest theologian. Consequently, many institutions of learning have been named after him.

Aquinas distinguished four kinds of law. These are the eternal, natural, human, and divine law. Eternal law is the decree of God which governs all creation. Natural law is the human "participation" in the eternal law and is discovered by reason.[24] Natural law, of course, is based on "first principles":

. . . this is the first precept of the law, that good is to be done and promoted, and evil is to be avoided. All other precepts of the natural law are based on this . . .[25]

The desire to live and to procreate are counted by Aquinas among those basic (natural) human values on which all human values are based. Human law is positive law: the natural law applied by governments to societies. Divine law is the law as specially revealed in the scriptures and teachings of the apostles.

Thomas Hobbes

Thomas Hobbes was an English Enlightenment scholar

In his treatise Leviathan, (1651), Hobbes expresses a view of natural law as a precept, or general rule, found out by reason, by which a man is forbidden to do that which is destructive of his life, or takes away the means of preserving the same; and to omit that by which he thinks it may best be preserved. Hobbes was a social contractarian[26] and believed that the law gained peoples' tacit consent. He believed that society was formed from a state of nature to protect people from the state of war between mankind that exists otherwise. Life is, without an ordered society, "solitary, poore, nasty, brutish and short". It is commonly commented that Hobbes' views about the core of human nature were influenced by his times. The English Civil War and the Cromwellian dictatorship had taken place, and he felt absolute authority vested in a monarch, whose subjects obeyed the law, was the basis of a civilized society.

Lon Fuller

Writing after World War II, Lon L. Fuller notably emphasised that the law must meet certain formal requirements (such as being impartial and publicly knowable). To the extent that an institutional system of social control falls short of these requirements, Fuller argues, we are less inclined to recognise it as a system of law, or to give it our respect. Thus, law has an internal morality that goes beyond the social rules by which valid laws are made. Fuller and scholar H.L.A. Hart were colleagues at Oxford University. One of the disagreements between Fuller, a natural lawyer, and Hart, a positivist, was whether Nazi law was so bad that it could no longer be considered law.

John Finnis

Sophisticated positivist and natural law theories sometimes resemble each other more than the above descriptions might suggest, and they may concede certain points to the other "side". Identifying a particular theorist as a positivist or a natural law theorist sometimes involves matters of emphasis and degree, and the particular influences on the theorist's work. In particular, the older natural lawyers, such as Aquinas and John Locke made no distinction between analytic and normative jurisprudence. But modern natural lawyers, such as John Finnis claim to be positivists, while still arguing that law is a basically moral creature...

Analytic jurisprudence

Hume made the famous is-ought distinction

Analytic, or 'clarificatory' jurisprudence is using a neutral point of view and descriptive language when referring to the aspects of legal systems. This was a philosophical development that rejected natural law's fusing of what law is and what it ought to be.[27] David Hume famously argued in A Treatise of Human Nature[28] that people invariably slip between describing that the world is a certain way to saying therefore we ought to conclude on a particular course of action. But as a matter of pure logic, one cannot conclude that we ought to do something merely because something is the case. So analysing and clarifying the way the world is must be treated as a strictly separate question to normative and evaluative ought questions.

The most important questions of analytic jurisprudence are: "What are laws?"; "What is the law?"; "What is the relationship between law and power/sociology?"; and, "What is the relationship between law and morality?" Legal positivism is the dominant theory, although there are a growing number of critics, who offer their own interpretations.

Legal positivists

Positivism simply means that the law is something that is "posited": laws are validly made in accordance with socially accepted rules. The positivist view on law can be seen to cover two broad principles: Firstly, that laws may seek to enforce justice, morality, or any other normative end, but their success or failure in doing so does not determine their validity. Provided a law is properly formed, in accordance with the rules recognized in the society concerned, it is a valid law, regardless of whether it is just by some other standard. Secondly, that law is nothing more than a set of rules to provide order and governance of society. No legal positivist, however, argues that it follows that the law is therefore to be obeyed, no matter what. This is seen as a separate question entirely.

  • What the law is - is determined by social facts (or "sources')
  • What obedience the law is owed - is determined by moral considerations.

Bentham and Austin

Bentham's utilitarian theories remained dominant in law till the twentieth century

One of the earliest legal positivists was Jeremy Bentham. Bentham was an early and staunch supporter of the utilitarian concept (along with Hume), an avid prison reformer, advocate for democracy, and strongly atheist. Bentham's views about law and jurisprudence were popularized by his student, John Austin. Austin was the first chair of law at the new University of London from 1829. Austin's utilitarian answer to "what is law?" was that law is "commands, backed by threat of sanctions, from a sovereign, to whom people have a habit of obedience".[29] Contemporary legal positivists have long abandoned this view, and have criticised its oversimplification, H.L.A. Hart particularly.

Hans Kelsen

Hans Kelsen is considered one of the preeminent jurists of the 20th century. He is most influential in Europe, where his notion of a Grundnorm or a "presupposed" ultimate and basic legal norm, still retains some influence. It is a hypothetical norm on which all subsequent levels of a legal system such as constitutional law and "simple" law are based. Kelsen's pure theory of law described the law as being a set of social facts, which are normatively binding too. Law's normativity, meaning that we must obey it, derives from a basic rule which sits outside the law we can alter. It is a rule proscribing the validity of all others.

Kelsen was a Professor at several universities in Europe, notably the University of Vienna and the University of Cologne. In 1940, he moved to the United States, giving the Oliver Wendell Holmes Lectures at Harvard Law School in 1942 and becoming a full professor at the department of political science at the University of California, Berkeley in 1945. During those years, he increasingly dealt with issues of international law and international institutions such as the United Nations.

H. L. A. Hart

In the Anglophone world, the pivotal writer was H. L. A. Hart, who argued that the law should be understood as a system of social rules. Hart rejected Kelsen's views that sanctions were essential to law and that a normative social phenomenon, like law, can not be grounded in non-normative social facts. Hart revived analytical jurisprudence as an important theoretical debate in the twentieth century through his book The Concept of Law.[30] As the chair of jurisprudence at Oxford University, Hart argued law is a 'system of rules'.

Rules, said Hart, are divided into primary rules (rules of conduct) and secondary rules (rules addressed to officials to administer primary rules). Secondary rules are divided into rules of adjudication (to resolve legal disputes), rules of change (allowing laws to be varied) and the rule of recognition (allowing laws to be identified as valid). The "rule of recognition", a customary practice of the officials (especially judges) that identifies certain acts and decisions as sources of law. A pivotal book on Hart was written by Neil MacCormick [31] in 1981 (second edition due in 2007), which further refined and offered some important criticisms that led MacCormick to develop his own theory (the best example of which is his recently published Institutions of Law, 2007). Other important critiques have included that of Ronald Dworkin, John Finnis, and Joseph Raz.

In recent years, debates about the nature of law have become increasingly fine-grained. One important debate is within legal positivism. One school is sometimes called exclusive legal positivism, and it is associated with the view that the legal validity of a norm can never depend on its moral correctness. A second school is labeled inclusive legal positivism, a major proponent of which is Wil Waluchow, and it is associated with the view that moral considerations may determine the legal validity of a norm, but that it is not necessary that this is the case.

Joseph Raz

Some philosophers used to contend that positivism was the theory that there is "no necessary connection" between law and morality; but influential contemporary positivists, including Joseph Raz, John Gardner, and Leslie Green, reject that view. As Raz points out, it is a necessary truth that there are vices that a legal system cannot possibly have (for example, it cannot commit rape or murder).

Joseph Raz defends the positivist outlook, but criticised Hart's "soft social thesis" approach in The Authority of Law.[32] Raz argues that law is authority, identifiable purely through social sources, without reference to moral reasoning. Any categorisation of rules beyond their role as authoritative is best left to sociology, rather than jurisprudence.[33]

Ronald Dworkin

Ronald Dworkin sought a theory of law which would justify judges' ability to strike down democratically decided laws.

Ronald Dworkin is a leading philosopher. In his book Law's Empire[34] Dworkin attacked Hart and the positivists for their refusal to treat law as a moral issue. Dworkin argues that law is an 'interpretive' concept, that requires judges to find the best fitting and most just solution to a legal dispute, given their constitutional traditions. According to him, law is not entirely based on social facts, but includes the morally best justification for the institutional facts and practices that we intuitively regard as legal. It follows on Dworkin's view that one cannot know whether a society has a legal system in force, or what any of its laws are, until one knows some moral truths about the justifications for the practices in that society. It is consistent with Dworkin's view—in contrast with the views of legal positivists or legal realists—that *no one* in a society may know what its laws are (because no one may know the best justification for its practices.)

Interpretation, according to Dworkin's law as integrity theory, has two dimensions. To count as an interpretation, the reading of a text must meet the criterion of fit. But of those interpretations that fit, Dworkin maintains that the correct interpretation is the one that puts the political practices of the community in their best light, or makes of them the best that they can be. But many writers have doubted whether there is a single best justification for the complex practices of any given community, and others have doubted whether, even if there are, they should be counted as part of the law of that community.

Legal realism

Oliver Wendell Holmes was a self-defined legal realist

Legal realism was a view popular with some Scandinavian and American writers. Skeptical in tone, it held that the law should be understood and determined by the actual practices of courts, law offices, and police stations, rather than as the rules and doctrines set forth in statutes or learned treatises. It had some affinities with the sociology of law. The essential tenet of legal realism is that all law is made by human beings and, thus, is subject to human foibles, frailties and imperfections.

It has become quite common today to identify Justice Oliver Wendell Holmes, Jr., as the main precursor of American Legal Realism (other influences include Roscoe Pound, Karl Llewellyn and Justice Benjamin Cardozo). Karl Llewellyn, another founder of the U.S. legal realism movement, similarly believed that the law is little more than putty in the hands of a judge who is able to shape the outcome of a case based on personal biases.[35] The chief inspiration for Scandinavian legal realism many consider to be the works of Axel Hägerström. Despite its decline in facial popularity, realists continue to influence a wide spectrum of jurisprudential schools today, including critical legal studies (scholars such as Duncan Kennedy and Roberto Unger), feminist legal theory, critical race theory, law and economics and law and society.

The Historical School

Historical jurisprudence came to prominence during the German debate over the proposed codification of German law. In his book On the Vocation of Our Age for Legislation and Jurisprudence, [36] Friedrich Carl von Savigny argued that Germany did not have a legal language that would support codification because the traditions, customs and beliefs of the German people did not include a belief in a code. The Historicists believe that the law originates with society.

Normative jurisprudence

In addition to the question, "What is law?", legal philosophy is also concerned with normative, or "evaluative" theories of law. What is the goal or purpose of law? What moral or political theories provide a foundation for the law? What is the proper function of law? What sorts of acts should be subject to punishment, and what sorts of punishment should be permitted? What is justice? What rights do we have? Is there a duty to obey the law? What value has the rule of law? Some of the different schools and leading thinkers are as follows.

Virtue jurisprudence

Plato (left) and Aristotle (right), a detail of The School of Athens

Aretaic moral theories such as contemporary virtue ethics emphasize the role of character in morality. Virtue jurisprudence is the view that the laws should promote the development of virtuous characters by citizens. Historically, this approach is associated mainly with Aristotle or Thomas Aquinas later. Contemporary virtue jurisprudence is inspired by philosophical work on virtue ethics.

Deontology

Kant was a pre-eminent Enlightenment thinker

Deontology is "the theory of duty or moral obligation."[37] The philosopher Immanuel Kant formulated one influential deontological theory of law. He argued that any rule we follow must be universalisable: we must be willing to will everyone to follow that rule. A contemporary deontological approach can be found in the work of the legal philosopher Ronald Dworkin.

Utilitarianism

Mill believed law should create happiness

Utilitarianism is the view that the laws should be crafted so as to produce the best consequences. Historically, utilitarian thinking about law is associated with the great philosopher, Jeremy Bentham. John Stuart Mill was a pupil of Bentham's and was the torch bearer for utilitarian philosophy through the late nineteenth century.[38] In contemporary legal theory, the utilitarian approach is frequently championed by scholars who work in the law and economics tradition.

John Rawls

John Rawls was an American philosopher, a professor of political philosophy at Harvard University and author of A Theory of Justice (1971), Political Liberalism, Justice as Fairness: A Restatement, and The Law of Peoples. He is widely considered one of the most important English-language political philosophers of the 20th century. His theory of justice uses a device called the original position to ask us which principles of justice we would choose to regulate the basic institutions of our society if we were behind a `veil of ignorance.' Imagine we do not know who we are - our race, sex, wealth status, class, or any distinguishing feature - so that we would not be biased in our own favour. Rawls argues from this 'original position' that we would choose exactly the same political liberties for everyone, like freedom of speech, the right to vote and so on. Also, we would choose a system where there is only inequality because that produces incentives enough for the economic well-being of all society, especially the poorest. This is Rawls' famous 'difference principle'. Justice is fairness, in the sense that the fairness of the original position of choice guarantees the fairness of the principles chosen in that position.

There are many other normative approaches to the philosophy of law, including critical legal studies and libertarian theories of law.

See also

References

  1. ^ “Jurisprudence”, Black's Law Dictionary
  2. ^ Shiner, “Philosophy of Law”, Cambridge Dictionary of Philosophy
  3. ^ Ibid.
  4. ^ Ibid.
  5. ^ Soper, "Legal Positivism", Cambridge Dictionary of Philosophy
  6. ^ Moore, “Critical Legal Studies", Cambridge Dictionary of Philosophy
  7. ^ Brooks, “Review of Dworkin and His Critics with Replies by Dworkin”, Modern Law Review, Vol. 69 No. 6
  8. ^ Oxford English Dictionary, 2nd edition 1989
  9. ^ Shellens, "Aristotle on Natural Law."
  10. ^ Jaffa, Thomism and Aristotelianism.
  11. ^ H. Rackham, trans., Nicomachean Ethics, Loeb Classical Library; J. A. K. Thomson, trans. (revised by Hugh Tedennick), Nicomachean Ethics, Penguin Classics.
  12. ^ Joe Sachs, trans., Nicomachean Ethics, Focus Publishing
  13. ^ "Nicomachean Ethics" Bk. II ch. 6
  14. ^ Terrence Irwin, trans. Nicomachean Ethics, 2nd Ed., Hackett Publishing
  15. ^ Nicomachean Ethics, Bk. V, ch. 3
  16. ^ "Nicomachean Ethics", Bk. V, ch. 1
  17. ^ Nicomachean Ethics, Bk. V, ch. 3
  18. ^ Nicomachean Ethics, Bk. V, ch. 7.
  19. ^ Rhetoric 1373b2–8.
  20. ^ Shellens, "Aristotle on Natural Law," 75–81
  21. ^ "Natural Law," International Encyclopedia of the Social Sciences.
  22. ^ On the Sources of Islamic Law and Practices, The Journal of law and religion [0748-0814] Souaiaia yr: 2005 vol: 20 iss: 1 pg: 123
  23. ^ Wael B. Hallaq (1993), Ibn Taymiyya Against the Greek Logicians, p. 48. Oxford University Press, ISBN 0198240430.
  24. ^ Louis Pojman, Ethics (Belmont, CA: Wadsworth Publishing Company, 1995).
  25. ^ Summa, Q94a2.
  26. ^ Basically meaning: the people of a society are prepared give up some rights to a government in order to receive social order.
  27. ^ See H L A Hart, 'Positivism and the Separation of Law and Morals' (1958) 71 Harv. L. Rev. 593
  28. ^ David Hume, A Treatise of Human Nature (1739)Etext
  29. ^ John Austin, The Providence of Jurisprudence Determined (1831)
  30. ^ H.L.A. Hart, The Concept of Law (1961) Oxford University Press, ISBN 0-19-876122-8
  31. ^ The University of Edinburgh
  32. ^ Joseph Raz, The Authority of Law (1979) Oxford University Press
  33. ^ ch. 2, Joseph Raz, The Authority of Law (1979)
  34. ^ Ronald Dworkin, Law's Empire (1986) Harvard University Press
  35. ^ “Jurisprudence”. West’s Encyclopedia of American Law. Ed. Jeffrey Lehman, Shirelle Phelps. Detroit: Thomson/Gale, 2005.
  36. ^ Friedrich Carl von Savigny, On the Vocation of Our Age for Legislation and Jurisprudence (Abraham A. Hayward trans., 1831)
  37. ^ Webster's New World Dictionary of the American Language, p. 378 (2d Coll. Ed. 1978).
  38. ^ see, Utilitarianism at Metalibri Digital Library

Further reading

  • Austin, John (1831). The Province of Jurisprudence Determined.  
  • Freeman, M.D.A. (2001). Lloyd’s Introduction to Jurisprudence. 7th ed. London: Sweet and Maxwell.
  • Hart, H.L.A. (1961). The Concept of Law. Oxford University Press.  
  • Hartzler, H. Richard (1976). Justice, Legal Systems, and Social Structure. Port Washington, NY: Kennikat Press.
  • Hutchinson, Allan C., ed. (1989). Critical Legal Studies. Totowa, NJ: Roman & Littlefield.
  • Kempin, Jr., Frederick G. (1963). Legal History: Law and Social Change. Englewood Cliffs, NJ: Prentice-Hall.
  • Llewellyn, Karl N. (1986). Karl N. Llewellyn on Legal Realism. Birmingham, AL: Legal Classics Library. (Contains penetrating classic "The Bramble Bush" on nature of law).
  • Murphy, Cornelius F. (1977). Introduction to Law, Legal Process, and Procedure. St. Paul, MN: West Publishing.
  • Rawls, John (1999). A Theory of Justice, revised ed. Cambridge: Harvard University Press. (Philosophical treatment of justice).
  • Zinn, Howard (1990). Declarations of Independence: Cross-Examining American Ideology. New York: Harper Collins Publishers.

External links


Source material

Up to date as of January 22, 2010

From Wikisource

Jurisprudence (Essay)
by James Mill
Information about this edition

Contents

I. The End of Jurisprudence, viz. the Protection of Rights.
II. The Protection of Rights.
III. What is Required for the Perfection of the Civil Code.
IV. What is Necessary to the Perfection of the Penal Code.
V. The Doctrine of Punishment.
VI. The Code of Procedure.
VII. The Judicial Establishment.
PD-icon.svg This work published before January 1, 1923 is in the public domain worldwide because the author died at least 100 years ago.

1911 encyclopedia

Up to date as of January 14, 2010

From LoveToKnow 1911

JURISPRUDENCE (Lat. jurisprudentia, knowledge of law, from jus, right, and prudentia, from providere, to foresee), the general term for " the formal science of positive law " (T. E.

Holland); see LAW. The essential principles involved are discussed below and in Jurisprudence, Comparative; the details of particular laws or sorts of law (Contract, &c.) and of individual national systems of law (English Law, &c.) being dealt with in separate articles.

The human race may be conceived as parcelled out into a number of distinct groups or societies, differing greatly in size and circumstances, in physical and moral characteristics of all kinds. But they all resemble each other in that they reveal on examination certain rules of conduct in accordance with which the relations of the members inter se are governed. Each society has its own system of laws, and all the systems, so far as they are known, constitute the appropriate subject matter of jurisprudence. The jurist may deal with it in the following ways. He may first of all examine the leading conceptions common to all the systems, or in other words define the leading terms common to them all. Such are the terms law itself, right, duty, property, crime, and so forth, which, or their equivalents, may, notwithstanding delicate differences of connotation, be regarded as common terms in all systems. That kind of inquiry is known in England as analytical jurisprudence. It regards the conceptions with which it deals as fixed or stationary, and aims at expressing them distinctly and exhibiting their logical relations with each other. What is really meant by a right and by a duty, and what is the true connexion between a right and a duty, are types of the questions proper to this inquiry. Shifting our point of view, but still regarding systems of law in the mass, we may consider them, not as stationary, but as changeable and changing, we may ask what general features are exhibited by the record of the change. This, somewhat crudely put, may serve to indicate the field of historical or comparative jurisprudence. In its ideal condition it would require an accurate record of the history of all legal systems as its material. But whether the material be abundant or scanty the method is the same. It seeks the explanation of institutions and legal principles in the facts of history. Its aim is to show how a given rule came to be what it is. The legislative source - the emanation of the rule from a sovereign authority - is of no importance here; what is important is the moral source - the connexion of the rule with the ideas prevalent during contemporary periods. This method, it is evident, involves not only a comparison of successive stages in the history of the same system, but a comparison of different systems, of the Roman with the English, of the Hindu with the Irish, and so on. The historical method as applied to law may be regarded as a special example of the method of comparison. The comparative method is really employed in all generalizations about law; for, although the analysis of legal terms might be conducted with exclusive reference to one system, the advantage of testing the result by reference to other systems is obvious. But, besides the use of comparison for purposes of analysis and in tracing the phenomena of the growth of laws, it is evident that for the purposes of practical legislation the comparison of different systems may yield important results. Laws are contrivances for bringing about certain definite ends, the larger of which are identical in all systems. The comparison of these contrivances not only serves to bring their real object, often obscured as it is in details, into clearer view, but enables legislators to see where the contrivances are deficient, and how they may be improved.

The " science of law," as the expression is generally used, means the examination of laws in general in one or other of the ways just indicated. It means an investigation of laws which exist or have existed in some given society in fact - in other words, positive laws; and it means an examination not limited to the exposition of particular systems. Analytical jurisprudence is in England associated chiefly with the name of John Austin, whose Province of Jurisprudence Determined systematized and completed the work begun in England by Hobbes, and continued at a later date and from a different point of view by Bentham.

Austin's first position is to distinguish between laws properly so called and laws improperly so called. In any of the older writers on law, we find the various senses in which the word is used grouped together as variations of one common meaning. Thus Blackstone advances to his proper subject, municipal laws, through (I) the laws of inanimate matter, (2) the laws of animal nutrition, digestion, &c., (3) the laws of nature, which are rules imposed by God on men and discoverable by reason alone, and (4) the revealed or divine law which is part of the law of nature directly expounded by God. All of these are connected by this common element that they are " rules of action dictated by some superior being." And some such generalization as this is to be found at the basis of most treatises on jurisprudence which have not been composed under the influence of the analytical school. Austin disposes of it by the distinction that some of those laws are commands, while others are not commands. The so-called laws of nature are not commands; they are uniformities which resemble commands only in so far as they may be supposed to have been ordered by some intelligent being. But they are not commands in the only proper sense of that word - they are not addressed to reasonable beings, who may or may not will obedience to them. Laws of nature are not addressed to anybody, and there is no possible question of obedience or disobedience to them. Austin accordingly pronounces them laws improperly so called, and confines his attention to laws properly so called, which are commands addressed by a human superior to a human inferior.

This distinction seems so simple and obvious that the energy and even bitterness with which Austin insists upon it now seem superfluous. But the indiscriminate identification of everything to which common speech gives the name of a law was, and still is, a fruitful source of confusion. Blackstone's statement that when God " put matter into motion He established certain laws of motion, to which all movable matter must conform," and that in those creatures that have neither the power to think nor to will such laws must be invariably obeyed, so long as the creature itself subsists, for its existence depends on that obedience, imputes to the law of gravitation in respect of both its origin and its execution the qualities of an act of parliament. On the other hand the qualities of the law of gravitation are imputed to certain legal principles which, under the name of the law of nature, are asserted to be binding all over the globe, so that " no human laws are of any validity if contrary to this." Austin never fails to stigmatize the use of " natural laws " in the sense of scientific facts as improper, or as metaphorical.

Having eliminated metaphorical or figurative laws, we restrict ourselves to those laws which are commands. This word is the key to the analysis of law, and accordingly a large portion of Austin's work is occupied with the determination of its meaning. A command is an order issued by a superior to an inferior. It is a signification of desire distinguished by this peculiarity that " the party to whom it is directed is liable to evil from the other, in case he comply not with the desire." " If you are able and willing to harm me in case I comply not with your wish, the expression of your wish amounts to a command." Being liable to evil in case I comply not with the wish which you signify, I am bound or obliged by it, or I lie under a duty to obey it. The evil is called a sanction, and the command or duty is said to be sanctioned by the chance of incurring the evil. The three terms command, duty and sanction are thus inseparably connected. As Austin expresses it in the language of formal logic, " each of the three terms signifies the same notion, but each denotes a different part of that notion and connotes the residue." All commands, however, are not laws. That term is reserved for those commands which oblige generally to the performance of acts of a class. A command to your servant to rise at such an hour on such a morning is a particular command, but not a law or rule; a command to rise always at that hour is a law or rule. Of this distinction it is sufficient to say in the meantime that it involves, when we come to deal with positive laws, the rejection of particular enactments to which by inveterate usage the term law would certainly be applied. On the other hand it is not, according to Austin, necessary that a true law should bind persons as a class. Obligations imposed on the grantee of an office specially created by parliament would imply a law; a general order to go into mourning addressed to the whole nation for a particular occasion would not be a law.

So far we have arrived at a definition of laws properly so called. Austin holds superiority and inferiority to be necessarily implied in command, and such statements as that " laws emanate from superiors " to be the merest tautology and trifling. Elsewhere he sums up the characteristics of true laws as ascertained by the analysis thus: (r) laws, being commands, emanate from a determinate source; (2) every sanction is an evil annexed to a command; and (3) every duty implies a command, and chiefly means obnoxiousness to the evils annexed to commands.

Of true laws, those only are the subject of jurisprudence which are laws strictly so called, or positive laws. Austin accordingly proceeds to distinguish positive from other true laws, which are either laws set by God to men or laws set by men to men, not, however, as political superiors nor in pursuance of a legal right. The discussion of the first of these true but not positive laws leads Austin to his celebrated discussion of the utilitarian theory. The laws set by God are either revealed or unrevealed, i.e. either expressed in direct command, or made known to men in one or other of the ways denoted by such phrases as the " light of nature," " natural reason," " dictates of nature," and so forth. Austin maintains that the principle of general utility, based ultimately on the assumed benevolence of God, is the true index to such of His commands as He has not chosen to reveal. Austin's exposition of the meaning of the principle is a most valuable contribution to moral science, though he rests its claims ultimately on a basis which many of its supporters would disavow. And the whole discussion is now generally condemned as lying outside the proper scope of the treatise, although the reason for so condemning it is not always correctly stated. It is found in such assumptions of fact as that there is a God, that He has issued commands to men in what Austin calls the " truths of revelation," that He designs the happiness of all His creatures, that there is a predominance of good in the order of the world - which do not now command universal assent. It is impossible to place these propositions on the same scientific footing as the assumptions of fact with reference to human society on which jurisprudence rests. If the " divine laws " were facts like acts of parliament, it is conceived that the discussion of their characteristics would not be out of place in a scheme of jurisprudence.

The second set of laws properly so called, which are not positive laws, consists of three classes: (1) those which are set by men living in a state of nature; (2) those which are set by sovereigns but not as political superiors, e.g. when one sovereign commands another to act according to a principle of international law; and (3) those set by subjects but not in pursuance of legal rights. This group, to which Austin gives the name of positive morality, helps to explain his conception of positive law. Men are living in a state of nature, or a state of anarchy, when they are not living in a state of government or as members of a political society. " Political society " thus becomes the central fact of the theory, and some of the objections that have been urged against it arise from its being applied to conditions of life in which Austin would not have admitted the existence of a political society. Again, the third set in the group is intimately connected with positive laws on the one hand and rules of positive morality which are not even laws properly so called on the other. Thus laws set by subjects in consequence of a legal right are clothed with legal sanctions, and are laws positive. A law set by guardian to ward, in pursuance of a right which the guardian is bound to exercise, is a positive law pure and simple; a law set by master to slave, in pursuance of a legal right, which he is not bound to exercise, is, in Austin's phraseology, to be regarded both as a positive moral rule and as a positive law.' On the other hand the rules set by a club or society, and enforced upon its members by exclusion from the society, but not in pursuance of any legal right, are laws, but not positive laws. They are imperative and proceed from 1 This appears to be an unnecessary complication. The sovereign has authorized the master to set the law, although not compelling him to do so, and enforces the law when set. There seems no good reason why the law should be called a rule of positive morality at all.

a determinate source, but they have no legal or political sanction. Closely connected with this positive morality, consisting of true but not positive laws, is the positive morality whose rules are not laws properly so called at all, though they are generally denominated laws. Such are the laws of honour, the laws of fashion, and, most important of all, international law.

Nowhere does Austin's phraseology come more bluntly into conflict with common usage than in pronouncing the law of nations (which in substance is a compact body of well-defined rules resembling nothing so much as the ordinary rules of law) to be not laws at all, even in the wider sense of the term. That the rules of a private club should be law properly so called, while the whole mass of international jurisprudence is mere opinion, shocks our sense of the proprieties of expression. Yet no man was more careful than Austin to observe these properties. He recognizes fully the futility of definitions which involve a painful struggle with the current of ordinary speech. But in the present instance the apparent paralogism cannot be avoided if we accept the limitation of laws properly so called to commands proceeding from a determinate source. And that limitation is so generally present in our conception of law that to ignore it would be a worse anomaly than this. No one finds fault with the statement that the so-called code of honour or the dictates of fashion are not, properly speaking, laws. We repel the same statement applied to the law of nature, because it resembles in so many of its most striking features - in the certainty of a large portion of it, in its terminology, in its substantial principles - the most universal elements of actual systems of law, and because, moreover, the assumption that brought it into existence was nothing else than this, that it consisted of those abiding portions of legal systems which prevail everywhere by their own authority. But, though " positive morality " may not be the best phrase to describe such a code of rules, the distinction insisted on by Austin is unimpeachable.

The elimination of those laws properly and improperly so called which are not positive laws brings us to the definition of positive law, which is the keystone of the system. Every positive law is " set by a sovereign person, or sovereign body of persons, to a member or members of the independent political society wherein that person or body is sovereign or superior." Though possibly sprung directly from another source, it is a positive law, by the institution of that present sovereign in the character of a political superior. The question is not as to the historical origin of the principle, but as to its present authority. " The legislator is he, not by whose authority the law was first made, but by whose authority it continues to be law." This definition involves the analysis of the connected expressions sovereignty, subjection and independent political society, and of determinate body - which last analysis Austin performs in connexion with that of commands. These are all excellent examples of the logical method of which he was so great a master. The broad results alone need be noticed here. In order that a given society may form a society political and independent, the generality or bulk of its members must be in a habit of obedience to a certain and common superior; whilst that certain person or body of persons must not be habitually obedient to a certain person or body. All the italicized words point to circumstances in which it might be difficult to say whether a given society is political and independent or not. Several of these Austin has discussed - e.g. the state of things in which a political society yields obedience which may or may not be called habitual to some external power, and the state of things in which a political society is divided between contending claimants for sovereign power, and it is uncertain which shall prevail, and over how much of the society. So long as that uncertainty remains we have a state of anarchy. Further, an independent society to be political must not fall below a number which can only be called considerable. Neither then in a state of anarchy, nor in inconsiderable communities, nor among men living in a state of nature, have we the proper phenomena of a political society. The last limitation goes some way to meet the most serious criticism to which Austin's system has been exposed, and it ought to be stated in his own words. He supposes a society which may be styled independent, which is considerable in numbers, and which is in a savage or extremely barbarous condition. In such a society, " the bulk of its members is not in the habit of obedience to one and the same superior. For the purpose of attacking an external enemy, or for the purpose of repelling an attack, the bulk of its members who are capable of bearing arms submits to one leader or one body of leaders. But as soon as that emergency passes the transient submission ceases, and the society reverts to the state which may be deemed its ordinary state. The bulk of each of the families which compose the given society renders habitual obedience to its own peculiar chief, but those domestic societies are themselves independent societies, or are not united and compacted into one political society by habitual and general obedience to one common superior, and there is no law (simply or strictly so styled) which can be called the law of that society. The so-called laws which are common to the bulk of the community are purely and properly customary laws - that is to say, laws which are set or imposed by the general opinion of the community, but are not enforced by legal or political sanctions." Such, he says, are the savage societies of hunters and fishers in North America, and such were the Germans as described by Tacitus. He takes no account of societies in an intermediate stage between this and the condition which constitutes political society.

We need not follow the analysis in detail. Much ingenuity is displayed in grouping the various kinds of government, in detecting the sovereign authority under the disguises which it wears in the complicated state system of the United States or under the fictions of English law, in elucidating the precise meaning of abstract political terms. Incidentally the source of many celebrated fallacies in political thought is laid bare. That the question who is sovereign in a given state is a question of fact and not of law or morals or religion, that the sovereign is incapable of legal limitation, that law is such by the sovereign's command, that no real or assumed compact can limit his action - are positions which Austin has been accused of enforcing with needless iteration. He cleared them, however, from the air of paradox with which they had been previously encumbered, and his influence was in no direction more widely felt than in making them the commonplaces of educated opinion in this generation.

Passing from these, we may now consider what has been said against the theory, which may be summed up in the following terms. Laws, no matter in what form they be expressed, are in the last resort reducible to commands set by the person or body of persons who are in fact sovereigns in any independent political society. The sovereign is the person or persons whose commands are habitually obeyed by the great bulk of the community; and by an independent society we mean that such sovereign head is not himself habitually obedient to any other determinate body of persons. The society must be sufficiently numerous to be considerable before we can speak of it as a political society. From command, with its inseparable incident of sanction, come the duties and rights in terms of which laws are for the most part expressed. Duty means that the person of whom it is predicated is liable to the sanction in case he fails to obey the command. Right means that the person of whom it is predicated may set the sanction in operation in case the command be disobeyed.

We may here interpolate a doubt whether the condition of independence on the part of the head of a community is essential to the legal analysis. It seems to us that we have all the elements of a true law present when we point to a community habitually obedient to the authority of a person or determinate body of persons, no matter what the relations of that superior may be to any external or superior power. Provided that in fact the commands of the lawgiver are those beyond which the community never looks, it seems immaterial to inquire whether this lawgiver in turn takes his orders from somebody else or is habitually obedient to such orders when given. One may imagine a community governed by a dependent legislatorial body or person, while the supreme sovereign whose representative and nominee such body or person may be never directly addresses the community at all. We do not see that in such a case anything is gained in clearness by representing the law of the community as set by the suzerain, rather than the dependent legislator. Nor is the ascertainment of the ultimate seat of power necessary to define political societies. That we get when we suppose a community to be in the habit of obedience to a single person or to a determinate combination of persons.

The use of the word " command " is not unlikely to lead to a misconception of Austin's meaning. When we say that a law is a command of the sovereign, we are apt to think of the sovereign as enunciating the rule in question for the first time. Many laws are not traceable to the sovereign at all in this sense. Some are based upon immemorial practices, some can be traced to the influence of private citizens, whether practising lawyers or writers on law, and in most countries a vast body of law owes its existence as such to the fact that it has been observed as law in some other society. The great bulk of modern law owes its existence and its shape ultimately to the labours of the Roman lawyers of the empire. Austin's definition has nothing to do with this, the historical origin of laws. Most books dealing with law in the abstract generalize the modes in which laws may be originated under the name of the " sources " of law, and one of these is legislation, or the direct command of the sovereign body. The connexion of laws with each other as principles is properly the subject matter of historical jurisprudence, the ideal perfection of which would be the establishment of the general laws governing the evolution of law in the technical sense. Austin's definition looks, not to the authorship of the law as a principle, not to its inventor or originator, but to the person or persons who in the last resort cause it to be obeyed. If a given rule is enforced by the sovereign it is a law.

It may be convenient to notice here what is usually said about the sources of law, as the expression sometimes proves a stumblingblock to the appreciation of Austin's system. In the corpus juris of any given country only a portion of the laws is traceable to the direct expression of his commands by the sovereign. Legislation is one, but only one, of the sources of law. Other portions of the law may be traceable to other sources, which may vary in effect in different systems. The list given in the Institutes of Justinian of the ways in which law may be made - /ex, plebiscitum, principis placita, edicta magistratuum, and so on - is a list of sources. Among the sources of law other than legislation which are most commonly exemplified are the laws made by judges in the course of judicial decisions, and law originating as custom. The source of the law in the one case is the judicial decision, in the other the custom. In consequence of the decisions and in consequence of the custom the rule has prevailed. English law is largely made up of principles derived in each of those ways, while it is deficient in principles derived from the writings of independent teachers, such as have in other systems exercised a powerful influence on the development of law. The responsa prudentum, the opinions of learned men, published as such, did undoubtedly originate an immense portion of Roman law. No such influence has affected English law to any appreciable extent - a result owing to the activity of the courts of the legislature. This difference has profoundly affected the form of English law as compared with that of systems which have been developed by the play of free discussion. These are the most definite of the influences to which the beginning of laws may be traced. The law once established, no matter how, is nevertheless law in the sense of Austin's definition. It is enforced by the sovereign authority. It was originated by something very different. But when we speak of it as a command we think only of the way in which it is to-day presented to the subject. The newest order of an act of parliament is not more positively presented to the people as a command to be obeyed than are the elementary rules of the common law for which no legislative origin can be traced. It is not even necessary to resort to the figure of speech by which alone, according to Sir Henry Maine (Early History of Institutions, p. 314), the common law can be regarded as the commands of the government. " The common law," he says, " consists of their commands because they can repeal or alter or restate it at pleasure." " They command because, being by the assumption possessed of uncontrollable force, they could innovate without limit at any moment." On the contrary, it may be said that they command because they do as a matter of fact enforce the rules laid down in the common law. It is not because they could innovate if they pleased in the common law that they are said to command it, but because it is known that they will enforce it as it stands.

The criticism of Austin's analysis resolved itself into two different sets of objections. One relates to the theory of sovereignty which underlies it; the other to its alleged failure to include rules which in common parlance are laws, and which it is felt ought to be included in any satisfactory definition of law. As the latter is to some extent anticipated and admitted by Austin himself, we may deal with it first.

Frederic Harrison (Fortnightly Review, vols. xxx., xxxi.) was at great pains to collect a number of laws or rules of law which do not square with the Austinian definition of law as a command creating rights and duties. Take the rule that " every will must be in writing." It is a very circuitous way of looking at things, according to Harrison, to say that such a rule creates a specific right in any determinate person of a definite description. So, again, the rule that " a legacy to the witness of a will is void." Such a rule is not " designed to give any one any rights, but simply to protect the public against wills made under undue influence." Again, the technical rule in Shelley's case that a gift to A for life, followed by a gift to the heirs of A, is a gift to A in fee simple, is pronounced to be inconsistent with the definition. It is an idle waste of ingenuity to force any of these rules into a form in which they might be said to create rights.

This would be a perfectly correct description of any attempt to take any of these rules separately and analyse it into a complete command creating specific rights and duties. But there is no occasion for doing anything of the kind. It is not contended that every grammatically complete sentence in a textbook or a statute is a command creating rights and duties. A law, like any other command, must be expressed in words, and will require the use of the usual aids to expression. The gist of it may be expressed in a sentence which, standing by itself, is not intelligible; other sentences locally separate from the principal one may contain the exceptions and the modifications and the interpretations to which that is subject. In no one of these taken by itself, but in the substance of them all taken together, is the true law, in Austin's sense, to be found. Thus the rule that every will must be in writing is a mere fragment - only the limb of a law. It belongs to the rule which fixes the rights of devisees or legatees under a will. That rule in whatever form it may be expressed is, without any straining of language, a command of the legislator. That " every person named by a testator in his last will and testament shall be entitled to the property thereby given him " is surely a command creating rights and duties. After testament add " expressed in writing "; it is still a command. Add further, " provided he be not one of the witnesses to the will," and the command, with its product of rights and duties, is still there. Each of the additions limits the operation of the command stated imperatively in the first sentence. So with the rule in Shelley's case. It is resolvable into the rule that every person to whom an estate is given by a conveyance expressed in such and such a way shall take such and such rights. To take another example from later legislation. An English statute passed in 1881 enacts nothing more than this, that an act of a previous session shall be construed as if " that " meant " this." It would be futile indeed to force this into conformity with Austin's definition by treating it as a command addressed to the judges, and as indirectly creating rights to have such a construction respected. As it happens, the section of the previous act referred to (the Burials Act 1880) was an undeniable command addressed to the clergy, and imposed upon them a specific duty. The true command - the law - is to be found in the two sections taken together.

All this confusion arises from the fact that laws are not habitually expressed in imperative terms. Even in a mature system like that of England the great bulk of legal rules is hidden under forms which disguise their imperative quality. They appear as principles, maxims, propositions of fact, generalizations, points of pleading and procedure, and so forth. Even in the statutes the imperative form is not uniformly observed. It might be said that the more mature a legal system is the less do its individual rules take the form of commands. The greater portion of Roman law is expressed in terms which would not misbecome scientific or speculative treatises. The institutional works abound in propositions which have no legal significance at all, but which are not distinguished from the true law in which they are embedded by any difference in the forms of expression. Assertions about matters of history, dubious speculations in philology, and reflections on human conduct are mixed up in the same narrative with genuine rules of law. Words of description are used, not words of command, and rules of law assimilate themselves in form to the extraneous matter with which they are mixed up.

It has been said that Austin himself admitted to some extent the force of these objections. He includes among laws which are not imperative " declaratory laws, or laws explaining the import of existing positive law, and laws abrogating or repealing existing positive law." He thus associates them with rules of positive morality and with laws which are only metaphorically so called. This collocation is unfortunate and out of keeping with Austin's method. Declaratory and repealing laws are as completely unlike positive morality and metaphorical laws as are the laws which he describes as properly so called. And if we avoid the error of treating each separate proposition enunciated by the lawgiver as a law, the cases in question need give us no trouble. Read the declaratory and the repealing statutes along with the principal laws which they affect, and the result is perfectly consistent with the proposition that all law is to be resolved into a species of command. In the one case we have in the principal taken together with the interpretative statute a law, and whether it differs or not from the law as it existed before the interpretative statute was passed makes no difference to the true character of the latter. It contributes along with the former to the expression of a command which is a true law. In the same way repealing statutes are to be taken together with the laws which they repeal - the result being that there is no law, no command, at all. It is wholly unnecessary to class them as laws which are not truly imperative, or as exceptions to the rule that laws are a species of commands. The combination of the two sentences in which the lawgiver has expressed himself, yields the result of silence - absence of law - which is in no way incompatible with the assertion that a law, when it exists, is a kind of command. Austin's theory does not logically require us to treat every act of parliament as being a complete law in itself, and therefore to set aside a certain number of acts of parliament as being exceptions to the great generalization which is the basis of the whole system.

Rules of procedure again have been alleged to constitute another exception. They cannot, it is said, be regarded as commands involving punishment if they be disobeyed. Nor is anything gained by considering them as commands addressed to the judge and other ministers of the law. There may be no doubt in the law of procedure a great deal that is resolvable into law in this sense, but the great bulk of it is to be regarded like the rules of interpretation as entering into the substantive commands which are laws. They are descriptions of the sanction and its mode of working. The bare prohibition of murder without any penalty to enforce it would not be a law. To prohibit it under penalty of death implies a reference to the whole machinery of criminal justice by which the penalty is enforced. Taken by themselves the rules of procedure are not, any more than canons of interpretation, complete laws in Austin's sense. of the term. But they form part of the complete expression of true laws. They imply a command, and they describe the sanction and the mode in which it operates.

A more formidable criticism of Austin's position is that which attacks the definition of sovereignty. There are countries, it is said, where the sovereign authority cannot by any stretch of language be said to command the laws, and yet where law manifestly exists. The ablest and the most moderate statement of this view is given by Sir Henry Maine in Early History of Institutions, p. 380:- " It is from no special love of Indian examples that I take one from India, but because it happens to be the most modern precedent in point. My instance is the Indian province called the Punjaub, the country of the Five Rivers, in the state in which it was for about a quarter of a century before its annexation to the British Indian Empire. After passing through every conceivable phase of anarchy and dormant anarchy, it fell under the tolerably consolidated dominion of a half-military half-religious oligarchy known as the Sikhs. The Sikhs themselves were afterwards reduced to subjection by a single chieftain belonging to their order, Runjeet Singh. At first sight there could be no more perfect embodiment than Runjeet Singh of sovereignty as"conceived by Austin. He was absolutely despotic. Except occasionally on his wild frontier he kept the most perfect order. He could have commanded anything; the smallest disobedience to his commands would have been followed by death or mutilation; and this was perfectly well known to the enormous majority of his subjects. Yet I doubt whether once in all his life he issued a command which Austin would call a law. He took as his revenue a prodigious share of the produce of the soil. He harried villages which recalcitrated at his exactions, and he executed great numbers of men. He levied great armies; he had all material of power, and he exercised it in various ways. But he never made a law. The rules which regulated the lives of his subjects were derived from their immemorial usages, and those rules were administered by domestic tribunals in families or village communities - that is, in groups no larger or little larger than those to which the application of Austin's principles cannot be effected on his own admission without absurdity." So far as the mere size of the community is concerned, there is no difficulty in applying the Austinian theory. In postulating a considerably numerous community Austin was thinking evidently of small isolated groups which could not without provoking a sense of the ridiculous be termed nations. Two or three families, let us suppose, occupying a small island, totally disconnected with any great power, would not claim to be and would not be treated as an independent political community. But it does not follow that Austin would have regarded the village communities spoken of by Maine in the same light. Here we have a great community, consisting of a vast number of small communities, each independent of the other, and disconnected with all the others, so far as the administration of anything like law is concerned. Suppose in each case that the headman or council takes his orders from Runjeet Singh, and enforces them, each in his own sphere, relying as the last resort on the force at the disposal of the suzerain. The mere size of the separate communities would make no sort of difference to Austin's theory. He would probably regard the empire of Runjeet Singh as divided into small districts - an assumption which inverts no doubt the true historical order, the smaller group being generally more ancient than the larger. But provided that the other conditions prevail, the mere fact that the law is administered by local tribunals for minute areas should make no difference to the theory. The case described by Maine is that of the undoubted possession of supreme power by a sovereign, coupled with the total absence of any attempt on his part to originate a law. That no doubt is, as we are told by the same authority, " the type of all Oriental communities in their native state during their rare intervals of peace and order." The empire was in the main in each case a tax-gathering empire. The unalterable law of the Medes and Persians was not a law at all but an occasional command. So again Maine puts his position clearly in the following sentences: " The Athenian assembly made true laws for residents on Attic territory, but the dominion of Athens over her subject cities and islands was clearly a tax-taking as distinguished from a legislating empire." Maine, it will be observed, does not say that the sovereign assembly did not command the laws in the subject islands - only that it did not legislate.

In the same category may be placed without much substantial difference all the societies that have ever existed on the face of the earth previous to the point at which legislation becomes active. Maine is undoubtedly right in connecting the theories of Bentham and Austin with the overwhelming activity of legislatures in modern times. And forma' legislation, as he elsewhere shows, comes late in the history of most legal systems. Law is generated in other ways, which seem irreconcilable with anything like legislation. Not only the tax-gathering emperors of the East, indifferent to the condition of their subjects, but even actively benevolent governments have up to a certain point left the law to grow by other means than formal enactments. What is ex facie more opposed to the idea of a sovereign's commands than the conception of schools of law ? Does it not " sting us with a sense of the ridiculous " to hear principles which are the outcome of long debates between Proculians and Sabinians described as commands of the emperor ? How is sectarianism in law possible if the sovereign's command is really all that is meant by a law ? No mental attitude is more common than that which regards law as a natural product - discoverable by a diligent investigator, much in the same way as the facts of science or the principles of mathematics. The introductory portions of Justinian's Institutes are certainly written from this point of view, which may also be described without much unfairness as the point of view of German jurisprudence. And yet the English jurist who accepts Austin's postulate as true for the English system of our own day would have no difficulty in applying it to German or Roman law generated under the influence of such ideas as these.

Again, referring to the instance of Runjeet Singh, Sir H. Maine says no doubt rightly that " he never did or could have dreamed of changing the civil rules under which his subjects lived. Probably he was as strong a believer in the independent obligatory force of such rules as the elders themselves who applied them." That too might be said with truth of states to which the application of Austin's system would be far from difficult. The sovereign body or person enforcing the rules by all the ordinary methods of justice might conceivably believe that the rules which he enforced had an obligatory authority of their own, just as most lawyers at one time, and possibly some lawyers now, believe in the natural obligatoriness, independently of courts or parliaments, of portions of the law of England. But nevertheless, whatever ideas the sovereign or his delegates might entertain as to " the independent obligatory force " of the rules which they enforce, the fact that they do enforce them distinguishes them from all other rules. Austin seizes upon this peculiarity and fixes it as the determining characteristic of positive law. When the rule is enforced by a sovereign authority as he defines it, it is his command, even if he should never so regard it himself, or should suppose himself to be unable to alter it in a single particular.

It may be instructive to add to these examples of dubious cases one taken from what is called ecclesiastical law. In so far as this has not been adopted and enforced by the state, it would, on Austin's theory, be, not positive law, but either positive morality or possibly a portion of the Divine law. No jurist would deny that there is an essential difference between so much of ecclesiastical law as is adopted by the state and all the rest of it, and that for scientific purposes this distinction ought to be recognized. How near this kind of law approaches to the positive or political law may be seen from the sanctions on which it depended. " The theory of penitential discipline was this: that the church was an organized body with an outward and visible form of government; that all who were outside her boundaries were outside the means of divine grace; that she had a command laid upon her, and authority given to her, to gather men into her fellowship by the ceremony of baptism, but, as some of those who were admitted proved unworthy of their calling, she also had the right by the power of the keys to deprive them temporarily or absolutely of the privilege of communion with her, and on their amendment to restore them once more to church membership. On this power of exclusion and restoration was founded the system of ecclesiastical discipline. It was a purely spiritual jurisdiction. It obtained its hold over the minds of men from the belief, universal in the Catholic church of the early ages, that he who was expelled from her pale was expelled also from the way of salvation, and that the sentence which was pronounced by God's church on earth was ratified by Him in heaven." (Smith's Dictionary of Christian Antiquities, art. " Penitence," p. 1587.) These laws are not the laws of the jurists, though they resemble them closely in many points - indeed in all points except that of the sanction by which they are enforced. It is a spiritual not a political sanction. The force which lies behind them is not that of the sovereign or the state. When physical force is used to compel obedience to the laws of the church they become positive laws. But so long as the belief in future punishments or the fear of the purely spiritual punishments of the church is sufficient to procure obedience to them, they are to be regarded as commands, not by the state, but by the church. That difference Austin makes essential. In rejecting spiritual laws from the field of positive law his example would be followed by jurists who would nevertheless include other laws, not ecclesiastical in purpose, but enforced by very similar methods.

Austin's theory in the end comes to this, that true laws are in all cases obeyed in consequence of the application of regulated physical force by some portion of the community. That is a fair paraphrase of the position that laws are the commands of the sovereign, and is perhaps less objectionable inasmuch as it does not imply or suggest anything about the forms in which laws are enunciated. All rules, customs, practices and laws - or by whatever name these uniformities of human conduct may be called - have either this kind of force at their back or they have not. Is it worth while to make this difference the basis of a scientific system or not? Apparently it is. If it were a question of distinguishing between the law of the law courts and the laws of fashion no one would hesitate. Why should laws or rules having no support from any political authority be termed laws positive merely because there are no other rules in the society having such support?

The question may perhaps be summed up as follows. Austin's definitions are in strict accordance with the facts of government in civilized states; and, as it is put by Maine, certain assumptions or postulates having been made, the great majority of Austin's positions follow as of course or by ordinary logical process. But at the other extreme end of the scale of civilization are societies to which Austin himself refuses to apply his system, and where, it would be conceded on all sides, there is neither political community nor sovereign nor law - none of the facts which jurisprudence assumes to exist. There is an intermediate stage of society in which, while the rules of conduct might and generally would be spoken of as laws, it is difficult to trace the connexion between them and the sovereign authority whose existence is necessary to Austin's system. Are such societies to be thrown out of account in analytical jurisprudence, or is Austin's system to be regarded as only a partial explanation of the field of true law, and his definitions good only for the laws of a portion of the world ? The true answer to this question appears to be that when the rules in any given case are habitually enforced by physical penalties, administered by a determinate person or portion of the community, they should be regarded as positive laws and the appropriate subject matter of jurisprudence. Rules which are not so enforced, but are enforced in any other way, whether by what is called public opinion, or spiritual apprehensions, or natural instinct, are rightly excluded from that subject matter. In all stages of society, savage or civilized, a large body of rules of conduct, habitually obeyed, are nevertheless not enforced by any state sanction of any kind. Austin's method assimilates such rules in primitive society, where they subserve the same purpose as positive laws in an advanced society, not to the positive laws which they resemble in purpose but to the moral or other rules which they resemble in operation. If we refuse to accept this position we must abandon the attempt to frame a general definition of law and its dependent terms, or we must content ourselves with saying that law is one thing in one state of society and another thing in another. On the ground of clearness and convenience Austin's method is, we believe, substantially right, but none the less should the student of jurisprudence be on his guard against such assumptions as that legislation is a universal phenomenon, or that the relation of sovereign and subject is discernible in all states of human society. And a careful examination of Maine's criticism will show that it is devoted not so much to a rectification of Austin's position as to correction of the misconceptions into which some of his disciples may have fallen. It is a misconception of the analysis to suppose that it involves a difference in juridical character between custom not yet recognized by any judicial decision and custom after such recognition. There is no such difference except in the case of what is properly called " judicial legislation " - wherein an absolutely new rule is added for the first time to the law. The recognition of a custom or law is not necessarily the beginning of the custom or law. Where a custom possesses the marks by which its legality is determined according to well understood principles, the courts pronounce it to have been law at the time of the happening of the facts as to which their jurisdiction is invoked. The fact that no previous instance of its recognition by a court of justice can be produced is not material. A lawyer before any such decision was given would nevertheless pronounce the custom to be law - with more or less hesitation according as the marks of a legal custom were obvious or not. The character of the custom is not changed when it is for the first time enforced by a court of justice, and hence the language used by Maine must be understood in a very limited sense. " Until customs are enforced by courts of justice " - so he puts the position of Austin - they are merely " positive morality," rules enforced by opinion; but as soon as courts of justice enforce them they become commands of the sovereign, conveyed through the judges who are his delegates or deputies. This proposition, on Austin's theory, would only be true of customs as to which these marks were absent. It is of course true that when a rule enforced only by opinion becomes for the first time enforceable by a court of justice - which is the same thing as the first time of its being actually enforced - its juridical character is changed. It was positive morality; it is now law. So it is when that which was before the opinion of the judge only becomes by his decision a rule enforceable by courts of justice. It was not even positive morality but the opinion of an individual; it is now law.

The most difficult of the common terms of law to define is right; and, as right rather than duty is the basis of classification, it is a point of some importance. Assuming the truth of the analysis above discussed, we may go on to say that in the notion of law is involved an obligation on the part of some one, or on the part of every one, to do or forbear from doing. That obligation is duty; what is right? Dropping the negative of forbearance, and taking duty to mean an obligation to do something, with the alternative of punishment in default, we find that duties are of two kinds. The thing to be done may have exclusive reference to a determinate person or class of persons, on whose motion or complaint the sovereign power will execute the punishment or sanction on delinquents; or it may have no such reference, the thing being commanded, and the punishment following on disobedience, without reference to the wish or complaint of individuals. The last are absolute duties, and the omission to do, or forbear from doing, the thing specified in the command is in general what is meant by a crime. The others are relative duties, each of them implying and relating to a right in some one else. A person has a right who may in this way set in operation the sanction provided by the state. In common thought and speech, however, right appears as something a good deal more positive and definite than this - as a power or faculty residing in individuals, and suggesting not so much the relative obligation as the advantage or enjoyment secured thereby to the person having the right. S. Mill, in a valuable criticism of Austin, suggests that the definition should be so modified as to introduce the element of " advantage to the person exercising the right." But it is exceedingly difficult to frame a positive definition of right which shall not introduce some term at least as ambiguous as the word to be defined. T. E. Holland defines right in general as a man's " capacity of influencing the acts of another by means, not of his own strength, but of the opinion or the force of society." Direct influence exercised by virtue of one's own strength, physical or otherwise, over another's acts, is " might " as distinguished from right. When the indirect influence is the opinion of society, we have a " moral right." When it is the force exercised by the sovereign, we have a legal right. It would be more easy, no doubt, to pick holes in this definition than to frame a better one.' The distinction between rights available against determinate persons and rights available against all the world, jura personam and jura in rem, is of fundamental importance. The phrases are borrowed from the classical jurists, who used them originally to distinguish actions according as they were brought to enforce a personal obligation or to vindicate rights of property. The owner of property has a right to the exclusive enjoyment thereof, which avails against all and sundry, but not against one person more than another. The parties to a contract have rights available against each other, and against no other persons. The jus in rem is the badge of property; the jus is a mere personal claim.

1 In English speech another ambiguity is happily wanting which in many languages besets the phrase expressing " a right." The Latin " jus." the German " Recht," the Italian " diritto," and the French " droit " express, not only a right, but also law in the abstract. To indicate the distinction between " law " and " a right " the Germans are therefore obliged to resort to such phrases as " objectives " and " subjectives Recht," meaning by the former law in the abstract, and by the latter a concrete right. And Blackstone, paraphrasing the distinction drawn by Roman law between the " jus quod ad res " and the " jus quod ad personas attinet," devotes the first two volumes of his Commentaries to the " Rights of Persons and the Rights of Things." See Holland's Elements of Jurisprudence, 10th ed., 78 seq.

That distinction in rights which appears in the division of law into the law of persons and the law of things is thus stated by Austin. There are certain rights and duties, with certain capacities and incapacities, by which persons are determined to various classes. The rights, duties, &c., are the condition or status of the person; and one person may be invested with many status or conditions. The law of persons consists of the rights, duties, &c., constituting conditions or status; the rest of the law is the law of things. The separation is a mere matter of convenience, but of convenience so great that the distinction is universal. Thus any given right may be exercised by persons belonging to innumerable classes. The person who has the right may be under twenty-one years of age, may have been born in a foreign state, may have been convicted of crime, may be a native of a particular county, or a member of a particular profession or trade, &c.; and it might very well happen, with reference to any given right, that, while persons in general, under the circumstances of the case, would enjoy it in the same way, a person belonging to any one of these classes would not. If belonging to any one of those classes makes a difference not to one right merely but to many, the class may conveniently be abstracted, and the variations in rights and duties dependent thereon may be separately treated under the law of persons. The personality recognized in the law of persons is such as modifies indefinitely the legal relations into which the individual clothed with the personality may enter.

E. Holland disapproves of the prominence given by Austin to this distinction, instead of that between public and private law. This, according to Holland, is based on the public or private character of the persons with whom the right is connected, public persons being the state or its delegates. Austin, holding that the state cannot be said to have legal rights or duties, recognizes no such distinction. The term " public law " he confines strictly to that portion of the law which is concerned with political conditions, and which ought not to be opposed to the rest of the law, but " ought to be inserted in the law of persons as one of the limbs or members of that supplemental department." Lastly, following Austin, the main division of the law of things is into (I) primary rights with primary relative duties, (2) sanctioning rights with sanctioning duties (relative or absolute). The former exist, as it has been put, for their own sake, the latter for the sake of the former. Rights and duties arise from facts and events; and facts or events which are violations of rights and duties are delicts or injuries. Rights and duties which arise from delicts are remedial or sanctioning, their object being to prevent the violation of rights which do not arise from delicts.

There is much to be said for Frederic Harrison's view (first expressed in the Fortnightly Review, vol. xxxi.), that the rearrangement of English law on the basis of a scientific classification, whether Austin's or any other, would not result in advantages at all compensating for its difficulties. If anything like a real code were to be attempted, the scientific classification would be the best; but in the absence of that, and indeed in the absence of any habit on the part of English lawyers of studying the system as a whole, the arrangement of facts does not very much matter. It is essential, however, to the abstract study of the principles of law. Scientific arrangement might also be observed with advantage in treatises affecting to give a view of the whole law, especially those which are meant for educational rather than professional uses. As an example of the practical application of a scientific system of classification to a complete body of law, we may point to W. A. Hunter's elaborate Exposition of Roman Law (1876).

It is impossible to present the conclusions of historical jurisprudence in anything like the same shape as those which we have been discussing. Under the heading Jurisprudence, Comparative, an account will be found of the method and results of what is practically a new science. The inquiry is in that stage which is indicated in one way by describing it as a philosophy. It resembles, and is indeed only part of, the study which is described as the philosophy of history. Its chief interest has been in the light which it has thrown upon rules of law and legal institutions which had been and are generally contemplated as positive facts xv. 19 merely, without reference to their history, or have been associated historically with principles and institutions not really connected with them.

The historical treatment of law displaces some very remarkable misconceptions. Peculiarities and anomalies abound in every legal system; and, as soon as laws become the special study of a professional class, some mode of explaining or reconciling them will be resorted to. One of the prehistorical ways of philosophizing about law was to account for what wanted explanation by some theory about the origin of technical words. This implied some previous study of words and their history, and is an instance of the deep-seated and persistent tendency of the human mind to identify names with the things they represent. The Institutes of Justinian abound in explanations, founded on a supposed derivation of some leading term. Testamentum, we are told, ex eo appellatur quod testatio mentis est. A testament was no doubt, in effect, a declaration of intention on the part of the testator when this was written. But the -mentum is a mere termination, and has nothing to do with mens at all. The history of testaments, which, it may be noted incidentally, has been developed with conspicuous success, gives a totally different meaning to the institution from that which was expressed by this fanciful derivation. So the perplexing subject of possessio was supposed in some way to be explained by the derivation from pono and sedeo - quasi sedibus positio. Posthumi was supposed to be a compound of post and humus. These examples belong to the class of rationalizing derivations with which students of philosophy are familiar. Their characteristic is that they are suggested by some prominent feature of the thing as it then appeared to observers - which feature thereupon becomes identified with the essence of the thing at all times and places.

Another prehistorical mode of explaining law may be described as metaphysical. It conceives of a rule or principle of law as existing by virtue of some more general rule or principle in the nature of things. Thus, in the English law of inheritance, until the passing of the Inheritance Act 1833, an estate belonging to a deceased intestate would pass to his uncle or aunt, to the exclusion of his father or other lineal ancestor. This anomaly from an early time excited the curiosity of lawyers, and the explanation accepted in the time of Bracton was that it was an example of the general law of nature: " Descendit itaque jus quasi ponderosum quid cadens deorsum recta linea vel transversali, et nunquam reascendit ea via qua descendit." It has been suggested that the " rule really results from the associations involved in the word descent." It seems more likely, however, that these associations explained rather than that they suggested the rule - that the omission of the lineal ancestor existed in custom before it was discovered to be in harmony with the law of nature. It would imply more influence than the reasoning of lawyers is likely to have exercised over the development of law at that time to believe that a purely artificial inference of this kind should have established so very remarkable a rule. However that may be, the explanation is typical of a way of looking at law which was common enough before the dawn of the historical method. Minds capable of reasoning in this way were, if possible, farther removed from the conceptions implied in the reasoning of the analytical jurists than they were from the historical method itself. In this connexion it may be noticed that the great work of Blackstone marks an era in the development of legal ideas in England. It was not merely the first, as it still remains the only, adequate attempt to expound the leading principles of the whole body of law, but it was distinctly inspired by a rationalizing method. Backstone tried not merely to express but to illustrate legal rules, and he had a keen sense of the value of historical illustrations. He worked of course with the materials at his command. His manner and his work are obnoxious alike to the modern jurist and to the modern historian. He is accused by the one of perverting history, and by the other of confusing the law. But his scheme is a great advance on anything that had been attempted before; and, if his work has been prolific in popular fallacies, at all events it enriched English literature by a conspectus of the law, in which the logical connexion of its principles inter se, and its relations to historical facts, were distinctly if erroneously recognized.

While the historical method has superseded the verbal and metaphysical explanation of legal principles, it had apparently, in some cases, come into conflict with the conclusions of the analytical school. The difference between the two systems comes out most conspicuously in relation to customs. There is an unavoidable break in the analytical method between societies in which rules are backed by regulated physical force and those in which no such force exists. At what point in its development a given society passes into the condition of " an independent political society " it may not be easy to determine, for the evidence is obscure and conflicting. To the historical jurist there is no such breach. The rule which in one stage of society is a law, in another merely a rule of " positive morality," is the same thing to him throughout. By the Irish Land Act 1881 the Ulster custom of tenant-right and other analogous customs were legalized. For the purposes of analytical jurisprudence there is no need to go beyond the act of parliament. The laws known as the Ulster custom are laws solely in virtue of the sovereign government. Between the law as it now is and the custom as it existed before the act there is all the difference in the world. To the historical jurist no such separation is possible. His account of the law would not only be imcomplete without embracing the precedent custom, but the act which made the custom law is only one of the facts, and by no means the most significant or important, in the history of its development. An exactly parallel case is the legalization in England of that customary tenant-right known as copyhold. It is to the historical jurist exactly the same thing as the legalization of the Ulster tenant right. In the one case a practice was made law by formal legislation, and in the other without formal legislation. And there can be very little doubt that in an earlier stage of society, when formal legislation had not become the rule, the custom would have been legalized relatively much sooner than it actually was. Customs then are the same thing as laws to the historical jurist, and his business is to trace the influences under which they have grown up, flourished and decayed, their dependence on the intellectual and moral conditions of society at different times, and their reaction upon them. The recognized science - and such it may now be considered to be - with which historical, or more properly comparative, jurisprudence has most analogy is the science of language. Laws and customs are to the one what words are to the other, and each separate municipal system has its analogue in a language. Legal systems are related together like languages and dialects, and the investigation in both cases brings us back at last to the meagre and obscure records of savage custom and speech. A great master of the science of language (Max Miller) has indeed distinguished it from jurisprudence, as belonging to a totally different class of sciences. " It is perfectly true," he says, " that if language be the work of man in the same sense in which a statue, or a temple, or a poem, or a law are properly called the works of man, the science of language would have to be classed as an historical science. We should have a history of language as we have a history of art, of poetry and of jurisprudence; but we could not claim for it a place side by side with the various branches of natural history." Whatever be the proper position of either philology or jurisprudence in relation to the natural sciences, it would not be difficult to show that laws and customs on the whole are equally independent of the efforts of individual human wills - which appears to be what is meant by language not being the work of man. The most complete acceptance of Austin's theory that law everywhere and always is the command of the sovereign does not involve any withdrawal of laws from the domain of natural science, does not in the least interfere with the scientific study of their affinities and relationships. Max Miller elsewhere illustrates his conception of the different relations of words and laws to the individual will by the story of the emperor Tiberius, who was reproved for a grammatical mistake by Marcellus, whereupon Capito, another grammarian, observed that, if what the emperor said was not good Latin, it would soon be so.

" Capito," said Marcellus, " is a liar; for, Caesar, thou canst give the Roman citizenship to men, but not to words." The mere impulse of a single mind, even that of a Roman emperor, however, probably counts for little more in law than it does in language. Even in language one powerful intellect or one influential academy may, by its own decree, give a bent to modes of speech which they would not otherwise have taken. But whether law or language be conventional or natural is really an obsolete question, and the difference between historical and natural sciences in the last result is one of names.

The application of the historical method to law has not resulted in anything like the discoveries which have made comparative philology a science. There is no Grimm's law for jurisprudence; but something has been done in that direction by the discovery of the analogous processes and principles which underlie legal systems having no external resemblance to each other. But the historical method has been applied with special success to a single system - the Roman law. The Roman law presents itself to the historical student in two different aspects. It is, regarded as the law of the Roman Republic and Empire, a system whose history can be traced throughout a great part of its duration with certainty, and in parts with great detail. It is, moreover, a body of rationalized legal principles which may be considered apart from the state system in which they were developed, and which have, in fact, entered into the jurisprudence of the whole of modern Europe on the strength of their own abstract authority - so much so that the continued existence of the civil law, after the fall of the Empire, is entitled to be considered one of the first discoveries of the historical method. Alike, therefore, in its original history, as the law of the Roman state, and as the source from which the fundamental principles of modern laws have been taken, the Roman law presented the most obvious and attractive subject of historical study. An immense impulse was given to the history of Roman law by the discovery of the Institutes of Gaius in 1816. A complete view of Roman law, as it existed three centuries and a half before Justinian, was then obtained, and as the later Institutes were, in point of form, a recension of those of Gaius, the comparison of the two stages in legal history was at once easy and fruitful. Moreover, Gaius dealt with antiquities of the law which had become obsolete in the time of Justinian, and were passed over by him without notice.

Nowhere did Roman law in its modern aspect give a stronger impulse to the study of legal history than in Germany. The historical school of German jurists led the reaction of national sentiment against the proposals for a general code made by Thibaut. They were accused by their opponents of setting up the law of past times as intrinsically entitled to be observed, and they were no doubt strongly inspired by reverence for customs and traditions. Through the examination of their own customary laws, and through the elimination and separate study of the Roman element therein, they were led to form general views of the history of legal principles. In the hands of Savigny, the greatest master of the school, the historical theory was developed into a universal philosophy of law, covering the ground which we should assign separately to jurisprudence, analytical and historical, and to theories of legislation. There is not in Savigny's system the faintest approach to the Austinian analysis. The range of it is not the analysis of law as a command, but that of a Rechtsverhdltniss or legal relation. Far from regarding law as the creation of the will of individuals, he maintains it to be the natural outcome of the consciousness of the people, like their social habits or their language. And he assimilates changes in law to changes in language. " As in the life of individual men no moment of complete stillness is experienced, but a constant organic development, such also is the case in the life of nations, and in every individual element in which this collective life consists; so we find in language a constant formation and development, and in the same way in law." German jurisprudence is darkened by metaphysical thought, and weakened, as we believe, by defective analysis of positive law. But its conception of laws is exceedingly favourable to the growth of a historical philosophy, the results of which have a value of their own, apart altogether from the character of the first principles. Such, for instance, is Savigny's famous examination of the law of possession.

There is only one other system of law which is worthy of being placed by the side of Roman law, and that is the law of England. No other European system can be compared with that which is the origin and substratum of them all; but England, as it happens, is isolated in jurisprudence. She has solved her legal problems for herself. Whatever element of Roman law may exist in the English system has come in, whether by conscious adaptation or otherwise, ab extra; it is not of the essence of the system, nor does it form a large portion of the system. And, while English law is thus historically independent of Roman law, it is in all respects worthy of being associated with it on its own merits. Its originality, or, if the phrase be preferred, its peculiarity, is not more remarkable than the intellectual qualities which have gone to its formation - the ingenuity, the rigid logic, the reasonableness, of the generations of lawyers and judges who have built it up. This may seem extravagant praise for a legal system, the faults of which are and always have been matter of daily complaint, but it would be endorsed by all unprejudiced students. What men complain of is the practical hardship and inconvenience of some rule or process of law. They know, for example, that the law of real property is exceedingly complicated, and that, among other things, it makes the conveyance of land expensive. But the technical law of real property, which rests to this day on ideas that have been buried for centuries, has nevertheless the qualities we have named. So too with the law of procedure as it existed under the " science " of special pleading. The greatest practical law reformer, and the severest critic of existing systems that has ever appeared in any age or country, Jeremy Bentham, has admitted this: " Confused, indeterminate, inadequate, ill-adapted, and inconsistent as to a vast extent the provision or no provision would be found to be that has been made by it for the various cases that have happened to present themselves for decision, yet in the character of a repository of such cases it affords, for the manufactory of real law, a stock of materials which is beyond all price. Traverse the whole continent of Europe, ransack all the libraries belonging to all the jurisprudential systems of the several political states, add the contents together, you would not be able to compose a collection of cases equal in variety, in amplitude, in clearness of statement - in a word, all points taken together, in constructiveness - to that which may be seen to be afforded by the collection of English reports of adjudged cases " (Bentham's Works, iv. 460). On the other hand, the fortunes of English jurisprudence are not unworthy of comparison even with the catholic position of Roman law. In the United States of America, in India, and in the vast Colonial Empire, the common law of England constitutes most of the legal system in actual use, or is gradually being superimposed upon it. It would hardly be too much to say that English law of indigenous growth, and Roman law, between them govern the legal relations of the whole civilized world. Nor has the influence of the former on the intellectual habits and the ideas of men been much if at all inferior. Those who set any store by the analytical jurisprudence of the school of Austin will be glad to acknowledge that it is pure outcome of English law. Sir Henry Maine associated its rise with the activity of modern legislatures, which is of course a characteristic of the societies in which English laws prevail. And it would not be difficult to show that the germs of Austin's principles are to be found in legal writers who never dreamed of analysing a law. It is certainly remarkable, at all events, that the acceptance of Austin's system is as yet confined strictly to the domain of English law. Maine found no trace of its being even known to the jurists of the Continent, and it would appear that it has been equally without influence in Scotland, which, like the continent of Europe, is essentially Roman in the fundamental elements of its jurisprudence.

The substance of the above article is repeated from Professor E. Robertson's (Lord Lochee's) article " Law," in the 9th ed. of this work.

Among numerous English textbooks, those specially worth mention are: T. E. Holland, The Elements of Jurisprudence (1880; 10th ed., 1906); J. Austin, Lectures on Jurisprudence (4th ed., 1873); W. Jethro Brown, The Austinian Theory of Law (1906); Sir F. Pollock, A First Book on Jurisprudence (1896; 2nd ed., 1904).


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Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal philosophers, hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions. As jurisprudence has developed, there are three main aspects with which scholarly writing engages:

  • natural law is the idea that there are unchangeable laws of nature which govern us, and that our institutions ought to match this natural law
  • analytic jurisprudence asks questions like, "what is law?" "What are the criteria for legal validity?" or "what is the relationship between law and morality?" are other questions that legal philosophers may engage with
  • normative jurisprudence asks what law should be like. It overlaps with moral and political philosophy, and includes questions of whether we should obey the law, on what grounds law-breakers might properly be punished, the proper uses and limits of regulation

Modern jurisprudence and philosophy of law is dominated today primarily by Western academics. The ideas of the Western legal tradition have become so pervasive throughout the world that it is tempting to see them as universal. Historically, however, many philosophers from other traditions have discussed the same questions, from Islamic scholars to the ancient Greeks.

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