1902 Encyclopedia > Law > Jurisprudence - Principles and Practice. Historical vs Analytical Jurisprudence.

(Part 1)

Jurisprudence -- Principles and Practice. Historical vs Analytical Jurisprudence.

The present article will be limited to the consideration of the phenomena presented for study by positive laws. The objects which laws ought to subserve, the principles of legislation, the sphere of law, the province of government, and other topics of a similar which are generally to be found in writings professing to treat of law in the abstract have been discussed under the heading GOVERNMENT and elsewhere. It will be convenient, and it will be following the lines of a very remarkable development of English thought, to take actual laws as positive facts, without reference to their goodness or badness, and examine, so far as it can be done within the limits at our command, the character which they present when looked at from different points of view. This conception of the science of law, which is closely related to the scientific ideas of the time, has been developed by the efforts of the modern school of English jurists. In former times the science of law meant anything but science s we have been taught the conceive it by physical philosophers. It meant if anything a philosophy of legal principles not necessarily related to any system of actual law. A philosophy of laws actually existing in fact is what we in England at least should now consider the science of the law to be. By universal consent the somewhat shifting term jurisprudence has been limited to this meaning. Jurisprudence is the science of positive laws. The present article will attempt to present simply the leading principles and conclusions of jurisprudence.

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 this that they reveal on examination certain rules of conduct in accordance with which the relations of the members inter se are governed. Such rules we may for the present, without anticipating a somewhat difficult discussion, term laws. Each society has its own system of laws, and all the systems, so far as they are known, constitute and 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 defined 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 what is known in England as analytical jurisprudene. 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 his inquiry. Shifting our point of view, but still regarding 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 jurisprudence. In its ideal condition it would require an accurate record of the history of all legal systems as its material. As yet the record is exceedingly incomplete, and the results are proportionately limited. 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 law, it is evident that for the purposes of practical legislation the comparison of different systems may yield important result. 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 seves 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.

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