Jurisprudence

Jurisprudence is the science of law which professes to discuss the principles on which legal rights should be protected and enforced; or it may be called the philosophy of law. In its literal sense the term means merely knowledge of the law, and seems to have been so used in the Roman law, from which it has been borrowed. The word is often used in a popular sense in Britain as synonymous with law, and it is also so used in France; but it is more correctly used in contradistinction to law, as implying the system or supposed methodical scheme embracing the principles on which positive law is founded. The Institutes of Justinian define jurisprudence, with a certain pompousness, as being the knowledge of things divine and human, the science of right and wrong. A distinction is sometimes made between general jurisprudence, which investigates the principles common to various systems of positive law, divesting these of their local, partial, and other accidental peculiarities; and particular jurisprudence, which confines itself to the particular laws of any country, say England, or France, or Scotland, as an independent system taken by itself. Jurisprudence thus embraces a wide range, as treating of all those duties which are enforced between man and man; and yet it may be safely said that lawyers, though dealing with the results of the science every day of their lives, seldom give any attention to the latent and general principles on which these results are founded. The science has been cultivated rather by students of philosophy than by lawyers; and the distinctive colours of the characteristic philosophies of England and Scotland have tinged the jurisprudence of the several countries. The utilitarianism of Locke and Mill has given a practical or empirical character to English jurisprudence, which may be seen in the legal works of Hobbes and Bentham, and at its hardest in the 'cast-iron' system of Austin, whose lectures were long the first English authority on this subject. In Scotland, on the other hand, a constant tradition of another tendency has been maintained among scientific jurists since the time of Lord Stair. Scottish jurisprudence has always had a closer affinity with the systems of the philosophical writers of France and Germany, and bases its conclusions upon the law of nature rather than upon experimental comparisons of varying systems of positive law. It is developed in the works of Ferguson, David Hume, Adam Smith, Dugald Stewart, and Professor Lorimer. The recent tendency of scientific jurists in England has been to abandon the empirical methods of treatment for the historical method, of which the most prominent and successful follower was Sir Henry Maine. In his work the elementary principles of jurisprudence are drawn from a study of the history of legal conceptions and institutions as they appear in remote ages and among peoples at a primitive stage of civilisation.