§ 4 English and Foreign Jurisprudence
The use of the term jurisprudence to indicate exclusively that special branch of knowledge which we have termed theoretical jurisprudence, is a peculiarity of English nomenclature. In foreign literature jurisprudence and its synonyms include the whole of legal science and are never used in this specific and limited signification. The foreign works which correspond most accurately to the English literature of this subject are of three different kinds:—
1. Works devoted to the subject known as Juridical Encyclopædia, one of the best known examples of which is that of Arndts. He defines this department of legal science as comprising “a scientific and systematic outline or general view of the whole province of jurisprudence (Rechtswissenschaft), together with the general data of that science.” “Its purpose,” he adds, “is to determine the compass and limits of jurisprudence, its relations to other sciences, its internal divisions, and the mutual relations of its constituent parts.”5
2. Books of Pandektenrecht (that is to say, Modern Roman Law), and more especially the Introductory or General Part of these works. German jurists have devoted extraordinary energy and acumen to the analysis and exposition of the law of the Pandects, in that modern form in which it was received in Germany until superseded by recent legislation. Much of the work so done bears too special a reference to the details of the Roman system to be in point with respect to the theory of English law. The more general portions, however, are admirable examples of the scientific analysis of fundamental legal conceptions. Special mention may be made of the unfinished System of Modern Roman Law by Savigny, and of the similar works of Windscheid and Dernburg.
3. A third form of foreign literature which corresponds in part to our English books of jurisprudence, consists of those works of jurisprudentia naturalis which have been already referred to. These contain the theory of natural law and natural justice, while English jurisprudence is concerned with civil law, and with the civil or legal justice which that law embodies. Yet the relation between natural and civil law, natural and civil justice, is so intimate that the theory of the one is implicitly, if not explicitly, that of the other also. Widely, therefore, as they differ in aspect, we may place the French Philosophie du droit naturel and the German Naturrechtswissenschaft side by side with our own theoretical jurisprudence. It is, indeed, from the earlier literature of natural law, as represented by Pufendorf, Burlamaqui, Heineccius, and others,6 that the modern English literature of jurisprudence is directly descended.7