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called and versed in unreal matter, such as astrology or the Chinese doctrine of auspicious and inauspicious sites. It may be suggested, perhaps, that legal science is nothing but the application of logic (at all events if logic be taken to include the systematic use of induction and analogy) to a special aspect of human life. My answer to this would be that every science is equally an application of logic to some class of facts. Logic is not a special science or art at all, but the condition or instrument of all knowledge alike. With metaphysics, and perhaps pure mathematics, it stands apart, presupposed in every science, but specially attached to none. It may be said, again, that Jurisprudence is one of a group of special studies which all come under Politics in the wide sense, and that some parts of what is called legal knowledge are really quite as much political. To this I should not gravely object, or not at all. Political science as a whole, however, cannot be said to be much organised at present; and the special branches, jurisprudence, political economy, and whatever others there may be, must meanwhile exist on their own footing if they are to exist at all, and even encroach on the general theory of politics when they find it convenient.
If it is certain that jurisprudence or legal science is the name of a real and distinct scientific study, no less is it certain that learned men have found it by no means an easy task to define its contents and scope. At this day widely different accounts of these are given by different schools. A student who has received an English training is at first bewildered by the Continental treatment of theoretical jurisprudence. It is not merely that the terminology differs from his own; there is a radical diversity of conception and handling. Perhaps it may help us to understand such a divergence if we go back to the earliest classical definition of Jurisprudence, and see to what questions it gives rise. I mean Ulpian’s, which is not only preserved in the Digest, but conspicuously adopted at the beginning of the Institutes, and is therefore familiar to every student of Roman law. The words of Ulpian are
as follows:- Iurisprudentia est rerum divinarum atque humanarum notitia, iusti atque iniusti scientia.
iniusti scientia. We need not now trouble ourselves, I think, to discuss the exact meaning attached to this expression by Ulpian or the Greek theorists whom he followed. It will be more for our present purpose to see if, without doing violence to the words, we can find a meaning acceptable enough to lead us to definite issues. “ Jurisprudence is the discernment of things divine and human, the knowledge of what is just and unjust.” At first sight this is but an unpromising rhetorical description, covering, as it seems to do, the whole field of human conduct without distinction between legal and moral duty. But if we look closer, we see that the scientia here in question is a discriminative, not a collective knowledge. To know what is just and unjust is to know the difference between just and unjust. What if the notitia spoken of in the first clause be likewise a discernment not so much of the things themselves as of the distinction between them? If so, we may read it thus : "the discernment of that which concerns the gods and that which concerns human authority," the separation, in other words, of the province reserved for religion and morality from the province of law. That is not yet jurisprudence, but it is a preface to jurisprudence; it is the knowledge of what jurisprudence is not, and, to that extent, of what it may be. The res divinae are to be left aside for the theologian or the moralist. And this is a distinction which is not merely formal, but goes deep into the practical working of law. Thus the motive of any given action, as distinct from its intention, is for the most part a res divina in the sense we have put upon Ulpian's definition. For many purposes, the law regards intention but not motive. It makes a great moral difference (to take a stock example) whether a man breaks a baker's window and snatches a loaf as a mere piece of mischief, or because his children are starving; but the legal offence is the same. Intention is a necessary element in the facts constituting theft; but when all the elements are there, they no less amount to theft because the motive may be such as to extenuate or all but abolish the moral demerit. Practically the result may be tempered by judicial discretion, which (not being bound to give reasons in detail) supplies the more subtle adaptations required by moral feeling. This is just the kind of point on which even intelligent laymen are apt to stumble; law-makers seem to them unjust because they leave the refinements of administration to the administrator. I leave you to consider for yourselves, from this point
of view, the spirit of our English criminal justice ; the wide range of possible sentences (in the case of manslaughter for instance anything from one day's imprisonment to penal servitude for life), the power of suspending sentence altogether by taking security to come up for judgment, the extreme rarity of minimum sentences, and the like.
To return to our general topic: we have set off the proper field of legal study, namely res humanae in the sense of institutions of human ordinance. Then the definition specifies further: iusti atque iniusti scientia, the knowledge of what is just and unjust. Here just and unjust must mean something within the sphere of res humanae, something allowed or disallowed by rules which are administered, or conceived so to be, by a definite human authority. Just is that which is, actually or potentially, upheld in a court of justice; unjust is its contrary. Justice, legal as well as moral justice, is no doubt conceived as antecedent to any particular tribunal. Nevertheless if we want to know in practice what legal justice means, we must look to the usage of existing lawgivers and judges. So far we have traced in the rough the distinction between law properly so called and opinion or morality. The remark is obvious that Ulpian seems to omit the peculiar relation of positive law to the State. But the Latin word ius really includes this, if we may forget the unhappy term ius naturale, which seems to be a mere external ornament borrowed from Greek philosophers in excess of zeal to make a show of philosophical culture, and inconsistent
with the proper Roman use of the word. Indeed the Roman vocabulary for these general notions was almost too good. A Roman, possessing such apt and clearly distinguished words as fas, mos, ius, lex, and aequum and bonum to fall back on when he came to the region of moral discretion, could not feel much occasion for further verbal analysis. He could scarcely have been made to understand our modern ambiguities and flounderings with Law, Recht, and so forth. We analyse to supply our want of clear terms and correct instinct. Our science, then, is a knowledge of human laws. But of what laws, or what species of them? Are the laws or legal conceptions we study to be actual or ideal, general or particular ? There are many distinct systems of rules by which the tribunals of civilised countries actually profess to be guided. They have the family likeness which belongs to the corresponding institutions of all civilised States, but they have considerable specific differences. We find one body of legal doctrine and form of legal proceedings here, another at Edinburgh, another in the Isle of Man, and another in Jersey; this by merely looking round us at home. If we go beyond our own seas, we may count up a dozen or more distinct bodies of law without quitting the dominions of the British Crown. And then there are several distinct systems of speculation and argument by which philosophers have endeavoured to make out what the laws of civilised States, in their general features at any rate must be or ought to be. This kind of discussion may range from the most abstract