[5]. Arndts, Juristische Encyklopädie und Methodologie, p. 5. 9th ed. 1895. See also Puchta’s Encyklopädie, being the introductory portion of his Cursus der Institutionen, translated by Hastie (Outlines of Jurisprudence, 1887). The term general jurisprudence (allgemeine Rechtslehre) is occasionally applied to this form of literature. See Holtzendorff’s Encyklopädie der Rechtswissenschaft, 5th ed. 1890. (Elemente der allgemeinen Rechtslehre, by Merkel.)
[6]. Jurisprudentia universalis or generalis was originally merely a synonym for jurisprudentia naturalis.
[7]. The term jurisprudence is used by French lawyers as the equivalent of that which English lawyers call case-law—the development of the law by judicial decisions. “Jurisprudence—la manière dont un tribunal juge habituellement telle ou telle question” (Littré). Jurisprudence in this sense is contrasted with doctrine, i.e., extrajudicial legal literature.
[8]. On the distinction between law in the concrete and law in the abstract senses, see Pollock’s Jurisprudence, pp. 15–19, and Bentham’s Principles, p. 324, n. (Works I. 148 n.)
[9]. Tractatus Politicus, I. 5.
[10]. The term sanction is derived from Roman law. The sanctio was originally that part of a statute which established a penalty, or made other provision in respect of the disregard of its injunctions. D. 48. 19. 41. By an easy transition it has come to mean the penalty itself.
[11]. It is to be noted, therefore, that the distinction between law and fact depends not on the person by whom, but on the manner in which, the matter is determined. Yet, although this is so, an illogical and careless usage of speech sometimes classes as questions of law all those which are for the decision of judges, irrespective of the existence or non-existence of legal principles for their determination.
It is worth notice that questions of fact, left to the determination of judges, tend to be transformed into questions of law, by the operation of judicial precedent. In the hands of judges decisions of fact beget principles of law, while the decisions of juries have no such law-creating efficacy. This is a matter which we shall consider at length in connection with the theory of precedent.
The distinction between law and fact, with special reference to trial by jury, is very fully considered by Thayer in his Preliminary Treatise on the Law of Evidence, pp. 183–262. See also Terry’s Leading Principles of Anglo-American Law, pp. 53–62.
[12]. Ductor Dubitantium (Works XII. 209. Heber’s ed.).