JURISPRUDENCE.
CHAPTER I.
THE SCIENCE OF JURISPRUDENCE.
§ 1. Jurisprudence as the Science of Law.
In the widest of its applications the term jurisprudence means the science of law, using the word law in that vague and general sense in which it includes all species of obligatory rules of human action. Of jurisprudence in this sense, there are as many divisions as there are kinds of law which have been deemed sufficiently important and well developed to serve as the subject-matter of distinct branches of learning. They are at least three in number:
1. Civil Jurisprudence.—This is the science of civil law, that is to say, the law of the land. Its purpose is to give a complete and systematic account of that complex body of principles which is received and administered in the tribunals of the state.
2. International Jurisprudence.—This is the science of international law or the law of nations. It is concerned not with the rules which are in force within states, but with those which prevail between states. Just as the conduct of the subjects of a single state is governed by the civil law, so international law regulates the conduct of states themselves in their relations towards each other.
3. Natural Jurisprudence.—This is the science of that which our forefathers termed natural law or the law of nature (jus naturale). By this they meant the principles of natural justice—justice as it is in itself, in deed and in truth, as contrasted with those more or less imperfect and distorted images of it which may be seen in civil and international law. Whether these principles of natural justice are rightly entitled to the name of law—whether natural law, so called, can be rightly classed along with civil and international law as a species of the same genus—is a question which it is not needful for us here to discuss. It is sufficient for our present purpose to note the historical fact, that there is a very extensive literature in which the law of nature is given a place side by side with civil law and the law of nations (jus naturale, jus civile, and jus gentium), and in which the resulting threefold division of jurisprudence into natural, civil, and international, is recognised as valid.
Books of natural jurisprudence are in their essence books of ethics or moral philosophy, limited, however, to that department which is concerned with justice, as opposed to the other forms of right, while the method and the point of view are those of the lawyer rather than of the moral philosopher. Experience has shown, however, that this abstract theory of justice in itself, this attempt to work out in abstracto the principles of natural right, is a sufficiently unprofitable form of literature. In England both name and thing have become in recent years all but obsolete. Yet there are not wanting even at this day examples of the earlier way of thought. The most notable of these is the late Professor Lorimer’s Institutes of Law, a Treatise of the Principles of Jurisprudence as determined by Nature. On the Continent, on the other hand, the literature of natural law, though no longer as flourishing as it was, is still of importance. One of the best known works of this class is Ahrens’ Cours de Droit Naturel. A typical example from an earlier epoch is Pufendorf’s once celebrated but now neglected work, De Jure Naturae et Gentium (1672).[[1]]
§ 2. Jurisprudence as the Science of Civil Law.
In a second and narrower sense, jurisprudence, instead of including all three of the foregoing divisions, is limited to one only, namely, that which we have distinguished as civil. It is the science of civil law. A similar specific application belongs to the term law also, for when we speak of law without any qualifying epithet, we commonly mean that particular form which is administered in the tribunals of the state. So when we speak of jurisprudence without more, we usually intend the science of this special kind of law and this alone.[[2]]