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THE METHODS OF JURISPRUDENCE
JURISPRUDENCE, juris prudentia or peritia, Rechtswissenschaft—these are terms current among lawyers and scholars, and imply the existence of a systematic body of doctrine; of a special kind of knowledge which can be and is methodically treated, and possesses methods and ideas proper to itself.
A body of such special knowledge is a science, unless it depends only on the application of other and more general sciences. Thus there are scientific treatises on gunnery, navigation, and railway engineering. But we should hardly say that seamanship, or gunnery, or the construction of locomotives, is a science of itself. The application of the seaman's, or gunner's, or locomotive engineer's knowledge is a distinct art in itself, having in each case its own distinct practical end, and needing to be separately studied by those who would be skilled in it. But the knowledge that guides the art is obtained by the application to a particular kind of cases of general physical truths, and the methods are applications of those discovered
1 An introductory lecture delivered at University College, London, October 31, 1882.
In this usage
and used in mathematics and mathematical physics. Therefore we may speak for some purposes of the science of seamanship for instance, but if we are speaking with attention to the exact use of words, we shall say that seamanship is an art depending on certain branches of mathematical and physical science. As regards our own case, there is no doubt that the practice of the law is a perfectly distinct art. It is constantly spoken of as such in our older books. The lawyer's technical words are called terms of art, and in our own day an ill-drawn instrument may still be described by the judge as inartificial. the word has probably the larger sense in which the “ liberal arts were understood in the mediæval university course, covering what we now understand by both art and science; but at all events it includes art in the modern sense. Indeed, the lawyer's is a manifold art. As counsel he is called on to form a practical judgment on the legal effect of the facts laid before him ; as advocate, to present in the most forcible and persuasive manner that view of the case which is most favourable to his client's interest; as draftsman, to express in apt and sufficient words the intention of the parties who instruct him. Nor can a draftsman, in particular, produce really good work, whether the instrument to be framed is an ordinary lease or an Act of Parliament, unless he has a share of artistic feeling in the eminent sense, and takes a certain artistic pride in the quality of his workmanship, apart from the reward he will get for it.
Art, then, we certainly have. And we have a body of doctrine which in most civilised countries is systematic, and in England is at least capable of being made so, which is the peculiar and technical study of lawyers—so much so that laymen complain of it for being too technical—and which cannot be regarded as the application of any other and more general science or sciences. Legal ideas have as clear a generic stamp of their own as mathematical or physical ideas; and in law, no less than in physics, the terms of commonest use have a widely different import for the trained and for the untrained mind. A man of what is called good general education will talk of Obligation or Possession as he will talk of Energy or Mass, thinking he knows what he means, but in truth having only a vague shadow of a meaning. The physicist will tell him in one case, the lawyer in the other, that he is using words which it has taken generations of strenuous thought and discussion to bring to their full and clear significance. In either case he may put us off, if he chooses, with ridicule—the last refuge of obstinate ignorance in its lighter moods, as the will of Providence is in its serious ones.
We also find that competent lawyers are substantially at one in their methods and their terminology, though they might have some trouble in explaining either to lay people, and English lawyers, for a variety of reasons, for the most part anxiously shrink from verbal definition. Law, then, has all the marks of a distinct science; and, seeing that legislatures and courts of justice notoriously exist, it cannot be charged with being a science falsely so