§ 3 Theoretical Jurisprudence
There is yet a third and still narrower sense, in which jurisprudence includes not the whole science of civil law, but only a particular part of it. In this limited signification it may be termed abstract, theoretical, or general, to distinguish it from the more concrete, practical, and special departments of legal study. It is with this form only that we are concerned in the present treatise. How, then, shall we define it, and how distinguish it from the residue of the science of the civil law? It is the science of the first principles of the civil law. It is not possible, indeed, to draw any hard line of logical division between these first principles and the remaining portions of the legal system. The distinction is one of degree rather than of kind. Nevertheless it is expedient to set apart, as the subject-matter of a special department of study, those more fundamental conceptions and principles which serve as the basis of the concrete details of the law. This introductory and general portion of legal science, cut off for reasons of practical convenience from the special portions which come after it, constitutes the subject-matter of our inquiry. It comprises the first principles of civil jurisprudence in all its three divisions, systematic, historical, and critical. The fact that its boundaries are not capable of being traced with logical precision detracts in no degree from the advantages to be derived from its recognition and separate treatment as a distinct department of juridical science. Practical legal exposition acknowledges no call to rise to first principles, or to proceed to ultimate analysis. From the point of view of law as an art, the importance of conceptions and principles varies inversely with their abstractness or generality. Practical jurisprudence proceeds from below upward, and ascends no further than the requirements of use and practice demand. Theoretical jurisprudence, on the contrary, attributes value to the abstract and the general, rather than to the concrete and the particular. Even when these two departments of knowledge are coincident in their subject-matter, they are far apart in their standpoints, methods, and purposes. The aim of the abstract study is to supply that theoretical foundation which the science of law demands, but of which the art of law is careless.
Opinions may well differ to some extent as to the matters which are fit, by reason of their generality or their theoretic and scientific interest, to find a place among the contents of abstract jurisprudence. Speaking generally, however, it may be said that this science appropriately deals with such matters as the following:
1. An analysis of the conception of civil law itself, together with an examination of the relations between this and other forms of law.
2. An analysis of the various subordinate and constituent ideas of which the complex idea of the law is made up; for example, those of the state, of sovereignty, and of the administration of justice.
3. An account of the sources from which the law proceeds, with an investigation into the theory of legislation, precedent, and customary law.
4. An examination of the general principles of legal development, as contrasted with the historic details of the growth of the individual legal system, this last pertaining to legal history.
5. An inquiry into the scientific arrangement of the law, that is to say, the logical division of the corpus juris into distinct departments, together with an analysis of the distinctions on which the division is based.
6. An analysis of the conception of legal rights together with the division of rights into various classes, and the general theory of the creation, transfer, and extinction of rights.
7. An investigation of the theory of legal liability, civil and criminal.
8. An examination of any other juridical conceptions which by reason of their fundamental character, or their theoretical interest, significance, or difficulty, deserve special attention from the abstract point of view; for example, property, possession, obligations, trusts, incorporation, and many others.3
It may avoid misconceptions, and assist us in understanding what theoretical jurisprudence is, if we state shortly what it is not.
1. In the first place it is not an elementary outline of the concrete legal system. It deals not with the outlines of the law, but with its ultimate conceptions. It is concerned not with the simplest and easiest, but with some of the most abstruse and difficult portions of the legal system. Theoretical jurisprudence is not elementary law, any more than metaphysics is elementary science.
2. In the second place it is not, as the name general jurisprudence suggests, and as some writers have held,4 the science of those conceptions and principles which all or most systems of law have in common. It is true, indeed, that a great part of the matter with which it is concerned is to be found in all mature legal systems. All these have the same essential nature and purposes, and therefore agree to a large extent in their fundamental principles. But it is not because of this universal reception, that such principles pertain to theoretical jurisprudence. Were it a rule of every country in the world that a man could not marry his deceased wife’s sister, the rule would not for that reason be entitled to a place in this department of legal science. Conversely, as universal reception is not sufficient, so neither is it necessary. Even if no system in the world, save that of England, recognised the legislative efficacy of precedent, the theory of case-law would none the less be a fit and proper subject of the science in question.
3. Finally, this branch of knowledge has no exclusive claim to the name of jurisprudence or of legal science. It is not, as some say, the science of law, but is simply the introductory portion of it. As we have already seen, it is not even capable of definite and logical separation from the residue of legal learning. The division is one suggested by considerations of practical convenience, not demanded by the requirements of logic.
The divisions of legal science, as they have been stated and explained in the foregoing pages, may be exhibited in tabular form as follows:
| Jurisprudence, or the Science of Law in General. | Civil | Theoretical. The Theory of Civil Law—The Science of the First Principles of Civil Law. | |
| Practical | Systematic—Legal Exposition. | ||
| Historical—Legal History. | |||
| Critical—The Science of Legislation. | |||
| International. The Science of the Law of Nations. | |||
| Natural. The Science of Natural Law and Justice. | |||