Imágenes de páginas
PDF
EPUB

and general ideas to the pressing and practical needs of the day. Moreover we may consider the form of laws as well as their matter; this leads us to such topics as codification, draftsmanship, and even parliamentary procedure. Shall the province of jurisprudence be deemed to embrace all these lines of inquiry, or some and which of them? Let us see what number and variety of possible species of legal science we have obtained.

First consider laws as the actually existing and operative rules under which justice is administered. A man may study the system of his own land in order to know how things stand with his own property and business, or to qualify himself as a skilled adviser in the affairs of others. This is what we mean in common speech by being learned in the law. By a good lawyer we signify, speaking among Englishmen, a man well acquainted with the laws of England as they now are and concern our present affairs. We may call such knowledge practical or empirical jurisprudence. In England it has to be sought in a clumsy and laborious fashion, and has got a forbidding reputation. It may be not useless to say that, in spite of all repulsive appearances, the student can commit no greater mistake than despising it.

A bare account of existing laws may be sufficient for common practice; but at many points it must leave unsatisfied curiosity in a mind that is curious at all. Doubts and anomalies force us to inquire how the particular legal system and its various parts came to be what they are. And if we pursue the inquiry

races.

far, we shall find that, as many things in existing law were explicable only through history, so the history of one system is not complete in itself. Sooner or later we break off in a region of tradition and conjecture where we can guide ourselves only by taking into account the kindred institutions of other nations and

Thus we are led to historical and comparative jurisprudence, a line of study which forms a bond of alliance between the scientific lawyer on the one side and the historian, the archæologist, and the ethnologist on the other, and enables legal science to claim an assured place among the Humanities.

Again, comparative study discloses a certain amount of groundwork and typical conceptions which are common to all legal systems, or to all that have made any considerable way towards completeness. The Romans discovered, or thought they discovered, such a common groundwork of legal institutions in the various commonwealths that became subject to Rome. What remained, after deducting local and technical peculiarities, was called by them the common law of nations, ius gentium. Human society is so far alike in all tolerably advanced nations that the same kind of dealings have to be regulated and the same kind of interests protected. Marriage and the custody

. of children ; sale, hiring, loan, and pledge; liability for voluntary or involuntary acts causing injury; the punishment of theft and homicide—these matters, under whatever names or forms, must be provided for in every community where a settled order is to be preserved. Thus we get a common stock of general ideas, the study of which, so far as we can pursue it or imagine it to be pursued apart from the study of any actual system of law, may be called General Jurisprudence. But these general ideas of law may be approached from another direction. The endeavour may be made, not only or chiefly to recognise them as being in fact common to different systems, but to exhibit them as necessary; to deduce them from the general conditions of human society and action, and define their exact import without reference to their actual treatment by legislators or courts of justice. Thus we may attempt a general definition of such ideas as Duty, Intent, Negligence, Ownership, Possession, or (boldest ambition of all) of Law itself. Speculation of this kind (for it is essentially a speculative study) has of late years been conveniently named Analytical Jurisprudence. It is apt to run up into speculations on the theory of politics and government which really form a sort of political prolegomena to legal science, or borderland between jurisprudence and politics. To this region belongs the theory of Sovereignty which is so conspicuous in Bentham and Austin.

We have then already four branches or methods of jurisprudence, practical, historical, comparative, and analytical (for what I have called General Jurisprudence is hardly more than a name for the collective result of the two latter), and these are all concerned with laws, not as they might be or as we should like them to be, but as they are.

If now we take in the consideration of laws as they

ought to be, we pass into ground which belongsaccording to English notions at any rate—to the statesman more than to the lawyer. Still it belongs to lawyers in some sort, as technical knowledge is needful to give definition to the statesman's ideas, and express them in an appropriate and sufficient form. This department of jurisprudence is marked off from the others in that it does not examine facts, but aims at an end or ideal. This

may

be expressed by calling it, as I have elsewhere called it, Final Jurisprudence, by analogy to the well-known term Final Cause. The consideration of it may be approached in two ways. In England Bentham has taught us to approach it with a view to practice. If we consider what laws ought to be, it is because we want to make them such as they ought to be.

We conceive our ideal for the purpose of realising it by reforms. The instrument of reforming laws is legislation ; and we must further study the powers and the handling of the instrument if we would use it with effect. We must learn how to apply it to the best advantage.

Our good intentions must be executed by the best possible workmanship; and if we find that the technical methods in use themselves need reforming, they also must be reformed. Thus our Final Jurisprudence assumes the shape of a Theory of Legislation, with special branches treating of the formal structure of laws, codification, revision of codes, and legal procedure. If we want to see a good practical exposition of the theory of legislation as understood by enlightened Englishmen, we cannot

1

[ocr errors]

do better than study the principal chapters of the Indian Penal Code with the notes annexed by its authors to their original draft. And if anybody were to challenge me to say what is the use of a theory of legislation, I should think it a sufficient reply to point to the Anglo-Indian codes.

Bentham was in many ways an unpractical or impracticable reformer, but his work gave a fruitful impulse to practical mirds such as Macaulay's and Macleod's in the following generation.

But there is another way of considering what laws ought to be.

The perfect and ideal law may be regarded as a kind of pattern existing in the constitution of man's social nature, or in the minds of philosophers, and consisting of principles which, as being absolutely reasonable, ought of right to be followed by all reasonable men, though, because of man's weakness and the local diversities and historical accidents of existing governments, the laws which are in fact enforced by princes and rulers can be only more or less rude approximations to them. Similarly the law which in given historical circumstances a perfectly wise legislator would enact may be conceived as a pattern from which the law that is actually made unavoidably deviates to a greater or less extent; and the former may be deemed to be, in the ideal sphere of reason though not in fact, not only a law in some sense, but more truly the law for the given circumstances than the imperfect production we have to accept in practice. The general principles of legis

1 These notes are included in Lady Trevelyan's edition of Macaulay's

works.

« AnteriorContinuar »