7. An investigation of the theory of legal liability, civil and criminal.
8. An examination of any other juridical conceptions which by reason of their fundamental character, or their theoretical interest, significance, or difficulty, deserve special attention from the abstract point of view; for example, property, possession, obligations, trusts, incorporation, and many others.[[3]]
It may avoid misconceptions, and assist us in understanding what theoretical jurisprudence is, if we state shortly what it is not.
1. In the first place it is not an elementary outline of the concrete legal system. It deals not with the outlines of the law, but with its ultimate conceptions. It is concerned not with the simplest and easiest, but with some of the most abstruse and difficult portions of the legal system. Theoretical jurisprudence is not elementary law, any more than metaphysics is elementary science.
2. In the second place it is not, as the name general jurisprudence suggests, and as some writers have held,[[4]] the science of those conceptions and principles which all or most systems of law have in common. It is true, indeed, that a great part of the matter with which it is concerned is to be found in all mature legal systems. All these have the same essential nature and purposes, and therefore agree to a large extent in their fundamental principles. But it is not because of this universal reception, that such principles pertain to theoretical jurisprudence. Were it a rule of every country in the world that a man could not marry his deceased wife’s sister, the rule would not for that reason be entitled to a place in this department of legal science. Conversely, as universal reception is not sufficient, so neither is it necessary. Even if no system in the world, save that of England, recognised the legislative efficacy of precedent, the theory of case-law would none the less be a fit and proper subject of the science in question.
3. Finally, this branch of knowledge has no exclusive claim to the name of jurisprudence or of legal science. It is not, as some say, the science of law, but is simply the introductory portion of it. As we have already seen, it is not even capable of definite and logical separation from the residue of legal learning. The division is one suggested by considerations of practical convenience, not demanded by the requirements of logic.
The divisions of legal science, as they have been stated and explained in the foregoing pages, may be exhibited in tabular form as follows:
| Jurisprudence, or the Science of Law in General. | Civil | Theoretical. The Theory of Civil Law—The Science of the First Principles of Civil Law. | |
| Practical | Systematic—Legal Exposition. | ||
| Historical—Legal History. | |||
| Critical—The Science of Legislation. | |||
| International. The Science of the Law of Nations. | |||
| Natural. The Science of Natural Law and Justice. | |||
§ 4. English and Foreign Jurisprudence.
The use of the term jurisprudence to indicate exclusively that special branch of knowledge which we have termed theoretical jurisprudence, is a peculiarity of English nomenclature. In foreign literature jurisprudence and its synonyms include the whole of legal science and are never used in this specific and limited signification. The foreign works which correspond most accurately to the English literature of this subject are of three different kinds:—