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 (1 )

JURISPRUDENCE.

INTRODUCTION.
THE SCIENCE OF JURISPRUDENCE.

11. Jurisprudence as the Science of Civil Law.

In a generic and primary sense jurisprudence includes
the entire body of legal doctrine. It is jurisprudentia-
the knowledge of law-and in this sense all law books are
books of jurisprudence. By law in this connection is meant
exclusively the civil law, the law of the land, as opposed
to those other bodies of rules to which the name of law
has been extended by analogy. If we use the term
" science" in its widest permissible sense, as including
the systematised knowledge of any subject of intellectual
inquiry, we may define jurisprudence as the science of
civil law.
Of jurisprudence in this sense there are three kinds-
namely, (1) legal exposition, (2) legal history, and (3) the
science of legislation. The purpose of the first is to set
forth the contents of an actual legal system as existing
at any time, whether past or present. The purpose of the
second is to set forth the historical process whereby any
legal system came to be what it is or was. The purpose
of the third is to set forth the law, not as it is or has
been, but as it ought to be. It deals not with the past
or present of any legal system, but with its ideal future,
and with the purposes for which it exists. The complete
scientific treatment of any body of law involves the adoption
s.J. 1

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 2 THE SCIENCE OF JURISPRUDENCE. [§
of each of these three methods. The law must be dealt
with systematically or dogmatically in respect of its
contents, historically in respect of the process of its develop-
ment, and critically in respect of its conformity with justice
and the public interest. The first of these methods is
that of expository or systematic jurisprudence; the second
is that of legal history; while the third pertains to that
branch of legal science which, for want of a better name,
is commonly termed the science of legislation.

§ 2. Theoretical or General Jurisprudence.

Yrom jurisprudence in its generic sense, as including
the entire body of legal doctrine, it is necessary to
distinguish jurisprudence in a more specific sense, in which
it means a particular department of such doctrine
exclusively. In this limited significance it may be termed
theoretical or general jurisprudence to distinguish it from
the more practical and special departments of legal study.
It is with this only that the present treatise is concerned.
How, then, shall we define it; and how distinguish it
from the residue of legal science? 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
those first principles and the remaining portions of the
law. 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 intro-
ductory and general portion of legal doctrine, cut off for
reasons of practical convenience from the special portions
which come after it, constitutes the subject-matter of this
treatise. 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

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 § 2] THE SCIENCE OF JURISPRUDENCE. 3

and separate treatment as a distinct department of

scientific inquiry. Practical legal exposition acknowledges
no call to rise to first principles, or to proceed to ultimate
analysis. It takes for granted, as postulates and data,
many things which it is the business of theoretical juris-
prudence to inquire into. From the point of view of law
as an art, the importance of conceptions and principles
varies inversely with their abstractness and generality.
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.
It must not be supposed that the object of this branch
of legal science is an elementary outline of the concrete
legal system. It deals not with the outlines of the
law, but with its ultimate conceptions. Theoretical juris-
prudence is not elementary law, any more than metaphysics
is elementary science.
This introductory portion of legal doctrine goes by divers
names. It is called theoretical jurisprudence, as being
concerned with the theory of the law-that is to say, its
fundamental principles and conceptions-rather than its
practical and concrete details. It is also, and for the
same reason, known as general jurisprudence (jurisprudentia
generalis or universalis). It is also called the philosophy
of law (Rechtsphilosophie; philosophie du droit), the term
" philosophy " being here used, not in the sense of meta-
physics-though it is true that much of the Continental
literature of jurisprudence has a metaphysical aspect very
alien to English modes of legal thought-but in the sense
of an inquiry into the first principles of any department
of thought. It is also known as jurisprudence simpliciter,

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 4 THE SCIENCE OF JURISPRUDENCE. E§2

without any qualifying adjective to distinguish it from the

residue of legal doctrine. This specialised use of the
generic term cannot be justified from the point of view
of philology; but it is of practical convenience, and may
be regarded as well established in modern English speech.
Indeed, it would be an improvement in legal nomenclature
if the term " jurisprudence " were used exclusively in this
specific sense as meaning the theory or philosophy of law,
the use of the term in its original and generic sense, as
meaning legal doctrine in general, being discontinued (a).

§ 3. Analytical, Historical and Ethical Jurisprudence.

Jurisprudence, in its specific sense as the theory or
philosophy of law, is divisible into three branches, which
may be distinguished as analytical, historical, and ethical.
This distinction corresponds to that which has been already
indicated as existing within the sphere of legal science in
general-namely, the distinction between legal exposition,
legal history, and the science of legislation. The philo-
sophy of law, being the introductory portion of legal
science in general, involves the same tripartite division.
Analytical jurisprudence is the general or philosophical
part of systematic legal exposition, historical jurisprudence
is -the general or philosophical part of legal history, and

(a) The term " general jurisprudence " involves the misleading suggestion
that this branch of legal science is that which relates not to any single
system of law, but to those conceptions -and principles that are to be found
in all developed legal systems, and which are therefore in this sense general.
It is true that a great part of the matter with which it is concerned is
common to all mature systems of law. All of these have the same essential
nature and purposes, and therefore agree to a large extent in their first
principles. But it is not because of universal reception that any principles
pertain to the theory or philosophy of law. For this purpose such reception
is neither sufficient nor necessary. Even if no system in th6 world save that
of England recognised the legislative efficacy of judicial precedents, the
theory of case-law would none the less be a fit and proper subject of general
jurisprudence. Jurisprudentia generalis is not the study of legal systems
in general, but the study of the general or fundamental elements of a
particular legal system.

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 § 3] THE SCIENCE OF JURISPRUDENCE. 5

ethical jurisprudence is the general or philosophical part

of the science of legislation.
These three aspects of the law-dogmatic, historical, and
ethical-are so involved with each other that the isolated
treatment of any one of them is necessarily inadequate. A
complete treatise of jurisprudence would deal fully with
all three branches of the subject. In fact, however, most
treatises pertain primarily and essentially to one or other
of them, and deal with the others only incidentally, and
only so far as may be necessary to render adequate and
intelligible the treatment of the central theme. It is not
difficult, therefore, to classify most books of jurisprudence
or legal philosophy as pertaining primarily either to the
analytical, or to the historical, or to the ethical branch
of the subject.
Analytical Jurisprudence.-The purpose of analytical
jurisprudence is to analyse, without reference either to
their historical origin or development or to their ethical
significance or validity, the first principles of the law.
Since the distinction between jurisprudence and the
practical exposition of a concrete legal system is merely
one of degree, opinions may well differ to some extent
as to the matters which deserve a place in the former
department of legal science. Speaking generally, however,
a book of analytical jurisprudence will deal appropriately
with such subjects as the following:-
(1) An analysis of the conception of civil law;
(2) An examination of the relations between civil law
and other forms of law;
(3) An analysis of the various constituent ideas of which
the complex idea of law is made up-for example,
those of the state, of sovereignty, and of .the
administration of justice;
(4) An account of the legal (as opposed to the merely
historical) sources from which the law proceeds,

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 6 THE SCIENCE OF JURISPRUDENCE. [§ 3

together with an investigation of the theory of

legislation, judicial precedents, and customary law;
(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 this
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 legal conceptions
which, by reason of their theoretical interest, signifi-
cance, or difficulty, deserve special attention from the
philosophical point of view: such as property, pos-
session, obligations, contracts, trusts, personality,
incorporation, acts, causation, intention, motive,
negligence, and many others.
Historical Jurisprudence-That branch of legal philo-
sophy which is termed historical jurisprudence is the
general portion of legal history. It bears the same relation
to legal history at large as analytical jurisprudence bears
to the systematic exposition of the legal system. It deals
in the first place with the general principles governing the
origin and development of law. It deals in the second
place with the origin and developme'nt of those legal con-
ceptions and principles which are so essential in their
nature as to deserve a place in the philosophy of law-the
same conceptions and principles, that is to say, which are
dealt with in another manner and from another point of
view by analytical jurisprudence. Historical jurisprudence
is the history of the first principles and conceptions of the
legal system.
I Ethical Jurisprudence.-Ethical jurisprudence deals with

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 § 3] THE SCIENCE OF JURISPRUDENCE. 7

the law from the point of view of its ethical significance

and adequacy. It is concerned not with the intellectual
content of the legal system or with its historical develop-
ment, but with the purpose for which it exists and the
measure and manner in which that purpose is fulfilled..
Now the purpose and end of the law may be said generally-
to be the maintenance of justice within a political com-
munity by means of the physical force of the State.
Ethical jurisprudence is concerned, therefore, with the
theory of justice in its relation to law. It is the meeting-
point and common ground of moral and legal philosophy-
of ethics and jurisprudence. Justice in its general aspect
and relations pertains to ethics or moral philosophy. Jus-
tice in its special aspect, as the final cause of civil law,
pertains to that branch of legal philosophy which we have
distinguished as ethical jurisprudence.
A book of ethical jurisprudence, therefore, may concern
itself with all or any of the following matters: -
(1) The conception of justice.
(2) The relation between law and justice.
(3) The manner in which law fulfils its purpose of main-
taining justice.
(4) The distinction, if any such there be, between the
sphere of justice as the subject-matter of law, and
those other branches of right with which the law is
not concerned and which pertain to morals exclu-
sively.
(5) The ethical significance and validity of those legal
conceptions and principles which are so funda-
mental in their nature as to be the proper subject-
matter of analytical jurisprudence.
Further than this the proper scope of ethical juris-
prudence does not extend. So far as any book goes beyond
this general theory of justice in its relation to law, it
passes over either into the sphere of moral philosophy itself,
or else into the sphere of that detailed criticism of the

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 8 THE SCIENCE OF JURISPRUDENCE. [§

actual legal system, or that detailed construction of an ideal

legal system, which pertains not. to jurisprudence or legal
philosophy but to the science of legislation.
The present treatise is primarily and essentially a book
of analytical jurisprudence. In this respect it endeavours
to follow the main current of English legal philosophy
rather than that which prevails upon the Continent of
Europe, and which, to a large extent, is primarily ethical
in its scope and method. But although the essential pur-
pose of this book is an analysis of the first principles of the
actual legal system, this purpose is not pursued to the total
exclusion and neglect of the ethical and historical aspects
of the matter. These are treated, however, as subsidiary,
and are dealt with only so far as is thought necessary for
the adequate treatment of the central subject-matter. A
different method is doubtless possible. The writer of a
book of analytical jurisprudence may say that the ethical
and historical points of view are no concern of his. He
may say that he is concerned exclusively with the intellec-
tual content of the law as it actually exists, without
reference to its end or purpose, the ethical quality or signifi-
cance of its doctrines, or the historical process of its
development. He may say that he is content to leave the
history of law to the historian, and its ethical aspect to the
moral philosopher. There are, indeed, some books of
English jurisprudence which approach closely to this type,
if they do not actually reach it. No adequate exposition,
however, can so completely ignore the other branches of
the subject. The total disregard of the ethical implications
of the law tends to reduce analytical jurisprudence to a
system of rather arid formalism; and the total disregard
of historical origins and development is inconsistent with
the adequate explanation of those principles and concep-
tions with which it is the business of this science to deal (b).
(b) What is known as comparative jurisprudence-namely, the study
of the resemblances and differences between different legal systems-is not

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 § 4] THE SCIENCE OF JURISPRUDENCE. 9

§ 4. English and Foreign Jurisprudence.

When an English lawyer with any knowledge of the
terminology of Roman law comes to the study of a practical
law-book of France or Germany he finds himself on ground
not wholly unfamiliar. If, however, he ventures into the
region of Continental legal philosophy, he finds himself a
stranger in a strange land where men speak to him in an
unknown tongue. For this divergence between the juristic
thought and literature of England and that of the Con-
tinent there is more than one reason, but the most far-
reaching cause of it is to be found in a certain difference in
legal nomenclature. The English word " law " means law
and nothing else; but the corresponding terms in Con-
tinental languages are ambiguous, and mean not only law
but also right or justice. Recht, droit, and diritto all have
this double signification. An English lawyer is helped to
an understanding of this ambiguity, if he reflects, that a
similar double meaning is possessed in England by the term
" equity," which means either natural justice or that parti-
cular branch of English law which was developed and
applied by the Court of Chancery. The union of these two
distinct though related meanings in the same words in
Continental speech, while there is in general no such union
in English speech, has produced important divergences
between the juristic thought and literature of England and
that of the Continent.
In the first place any translation of Continental juris-
prudence into the English -language becomes largely

a separate branch of jurisprudence co-ordinate with the analytical, historical,

and ethical, but is merely a particular method of that science in all its
branches. We compare English law with Roman law either for the purpose
of analytical jurisprudence, in order the better to comprehend the concep-
tions and principles of each of those systems; or for the purpose of historical
jurisprudence, in order that we may better understand- the course of develop-
ment of each system; or for the purpose of ethical jurisprudence, in order
that we may better judge the practical merits and demerits of each of them.
Apart from such purposes the comparative study of law would be merely
futile.

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 10 THE SCIENCE OF JURISPRUDENCE. [§4
unintelligible if, as is usually the case, the rough-and-ready
device is adopted of translating as a matter of course the
terms Recht, droit, and diritto into the term " law." Such
a version makes no distinction between those propositions
which relate to law, those which relate to justice, and those
which relate both to law and to justice by reference to some
common element possessed or supposed to be possessed by
each.
In the second place, the fact that in Continental lan-
guages law and justice are called by the same name serves
on the one hand as a constant reminder of the real relation
which exists between them, but tends on the other hand
to create oblivion of the real distinction between them and
to induce accordingly a certain confusion of thought by the
identification of distinct things. In England the opposite
effect is produced. On the one hand the fact that we have
different words for law and justice, and cannot use the
same word for both purposes, is a constant reminder that
these are two different things and not the same thing.
On the other hand the fact that they are never called by
the same name tends to hide from view the real and
intimate relation which exists between them. In other
words, Continental speech conceals the diffe'rence between
law and right, whereas English speech conceals the con-
nection between them.
In the third place, and for the same reason, English
jurisprudence tends naturally to assume the analytical and
historical form to the exclusion of the ethical. Continental
jurisprudence, on the contrary, tends naturally to assume
the ethical form. In England there is readily and naturally
evolved a theory of law which does not at the same time
concern itself with justice. But on the Continent the
theory of Recht and droit almost necessarily concerns itself
with both senses of those terms and with the relation
between the things so signified. The resulting predomin-
ance of the analytical method in England and of the ethical

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 § 4] THE SCIENCE OF JURISPRUDENCE. 11

method on the Continent is a characteristic distinction

between English and Continental jurisprudence in their
typical forms.
Lastly, it is to be observed that Continental jurisprudence
is distinguished from English not merely by its ethical,
but also by its metaphysical, character. The latter quality
has its source in the former, for ethics tends naturally to
run into metaphysics, whereas the science of law itself is
ready and willing to walk in lowlier paths.
The use of the term " jurisprudence " to denote exclu-
sively that special branch of legal doctrine which we have
termed theoretical or general jurisprudence is apeculiarity of
English nomenclature. In foreign literature jurisprudence
and its synonyms include the whole of legal knowledge, and
are not used in this specific and limited signification.
The foreign works which correspond most accurately to
the English literature of this subject are of the following
kinds:-
1. Works devoted to the subject known as legal encyclo-
pedia-that is to say, the general introductory treatment
of the legal system, preparatory to the practical study of
the corpus juris itself. A good example is the Juristische
Encyklopadie of Arndts, who defines this department of
legal literature as comprising " a scientific and systematic
outline or general view of the whole province of juris-
prudence (Rechtswissenschaft), together with the general
data of that science." " Its purpose,"
he adds, "is to
determine the compass and limits of jurisprudence, its
relation to other sciences, its internal divisions, and the
mutual relations of its constituent parts " (c). Another
example is Puchta's Encyklopddie, being the introductory
portion of his Cursus der Institutionen, and translated by
Hastie under the title of Outlines of Jurisprudence (1887).
The Rechts-Encyklopadie of Gareis has been translated by

(c) Juristische Encyk1opidie und Methodologie, p. 5 (9th ed.), 1895.

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 12 THE SCIENCE OF JURISPRUDENCE. E§ 4

Kocourek under the title of The Science of Law (1911) (d).

The name "general jurisprudence " (allgemeine Recht-
slehre) is sometimes given to this form of legal literature,
as in the case of Merkel's Elemente der allgemeinen
Rechtslehre (e).
2. The introductory and more general portions of books
of Pandektenrecht-that is to say, modern Roman law.
German lawyers have devoted great acumen to the analysis
and exposition of the law of the Pandekts 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 (f).
3. The introductory and general portions of the sys-
tematic treatises devoted to those codes of law which in
modern times have superseded Roman law throughout the
Continent of Europe. The better sort of such treatises are
distinguished from the ordinary type of English law-book
by a careful analysis of first principles, such as is commonly
left in England to the labours of writers on theoretical
jurisprudence (g).
4. Books of Rechtsphilosophie or philosophie du droit.
All of these, however divergent inter se in their philosophic
standpoints or their methods, are essentially and generically

(d) See also Bierling's Juristische Principienlebre (1894).

(e) Holtzendorff's Encyklopddie der Rechtswissenschaft (5th ed.), 1890.
(f) In 1855 Lord Lindley published, under the title of An Introduction
to the Science of Jurisprudence, an annotated translation of the General
Part of Thibaut's Pandektenrecht.
(g) See, for example, Gierke's Deutsches Privatrecht (1895), which con-
tains an admirable exposition of the first principles of legal theory.

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 §4] THE SCIENCE OF JURISPRUDENCE. 13

of one and the same nature, as contrasted with the normal

type of English analytical jurisprudence. They are
primarily books of ethical jurisprudence. Their central
subject-matter is not, as with English jurisprudence, the
theory of civil law in itself, but the theory of justice
treated with special reference to the civil law. They deal
primarily with droit or Recht in the sense of right (droit
naturel, Naturrecht), and only in a secondary manner with
droit or Recht in the sense of positive or civil law (h).
The history of this Continental literature of Rechts-
philosophie may be regarded as divided into two distinct
periods. The earlier period is that of the jurisprudentia
naturalis of the seventeenth and eighteenth centuries. The
later is that in which, under the influence of Kant, juris-
prudence and ethics were annexed as part of the domain of
metaphysics. The earlier period is represented by such
writers as Grotius, Pufendorf, Wolff, Thomasius, and
Burlamaqui (i). This celebrated and influential litera-
ture was devoted to the theory and principles of natural
justice conceived as a body of rules authoritatively laid
down by natural law (lex naturae), just as civil justice
consists of the rules authoritatively imposed by civil
law. The commencement of the second and meta-
physical period in the history of the Continental philosophy
of law may be regarded with sufficient accuracy as com-
mencing with the publication in 1796 of Kant's Meta-

(h) In the words of Ahrens, a noted representative of this school of

ethical and legal speculation (Cours de droit naturel on de philosophie du
droit (1st ed.), 1837, (8th ed.), 1892, vol. I., p. 1), " La philosophie du droit,
ou le droit naturel, est la science qui expose les premiers principes du droit
congus par la raison et fondds dans la nature de 1'homme, consid~r6e en
elle-mime et dans ses rapports avec 1'ordre universel des choses."
(i) Grotius, De Jure Belli ac Pacis, 1625; Pufendorf, De Jure Naturae
et Gentium, 1672; De Officiis Hominis et Civis, 1673; Elementa Juris
Universalis, 1660; Thomasius, Fundamenta Juris Naturae et Gentium,
1705; Institutiones Jurisprudentiae Divinae, 1702; Wolff, Jus Naturae,
1740-1748, 8 vols.; Burlamaqui, Principes du droit de la Nature et des
Gens, 1766.

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 14 THE SCIENCE OF JURISPRUDENCE. [§4
physical First Principles of Jurisprudence (k). Since that
date there has developed on the Continent a literature of
this subject, formidable both in bulk and character. It is
represented by typical examples translated and published
in America by the Association of American Law Schools
under the title of The Modern Legal Philosophy Series. An
historical and critical account of it is to be found in one of
the volumes of that series, being a translation of a work of
Berolzheimer under the title of The World's Legal Philo-
sophies. Notable examples, contained in the same series,
of this type of ethical-juristic speculation are The General
Theory of Law, by Korkunov, and The Philosophy of Law,
by Kohler. Most of this literature is remote from the main
current of English legal thought. It is for the most part
so far devoted to metaphysics rather than to science, and to
ethics rather than to law, and condescends so little to the
facts of the concrete legal system, as to have little direct
bearing on the task and problems to which the traditional
jurisprudence of England has been devoted. Rechtsphilo-
sophie of this type, however, is not wholly unrepresented
even in English literature. A notable example is the wotk
of Lorimer called The Institutes of Law-a Treatise of the
Principles of Jurisprudence as determined by Nature, of
which a second edition was published in 1880 (1).
On the other hand, the earlier Continental literature of
natural law in the seventeenth and eighteenth centuries
may fairly be regarded as one of the sources from which, in
the nineteenth century, English analytical jurisprudence
was derived. The theory of natural law and natural jus-
tice, as developed by Pufendorf and others of that school,
is so connected with the theory of civil law and civil justice

(k) Metaphysische Anfangsgriinde der Rechtslehre; translated by Hastie

under the title of The Philosophy of Law, 1887.
(1) Other English examples are :-Lectures on the Philosophy of Law,
by Miller, 1884; An Outline of Legal Philosophy, by Watt, 1893; Lectures
on the Philosophy of Law, by Stirling, 1873; The Theory of Law and Civil
Society, by Pulszky, 1888.

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 § 4] THE SCIENCE OF JURISPRUDENCE. 15

that jurisprudentia naturalis of this type is readily trans-

muted into jurisprudentia civilis. Indeed the very term
jurisprudentia generalis or universalis, by which English
analytical jurisprudence is distinguished, was originally a
synonym of jurisprudentianaturalis itself (m).
The main current of modern English analytical juris-
prudence may be said to have its source in the work of
John Austin, who occupied the chair of Jurisprudence in
the then recently established U-niversity of London, and
who published in 1832 a work entitled The Province of
Jurisprudence Determined. After his death this book was
incorporated in a larger work including his unpublished
manuscripts, and entitled Lectures on Jurisprudence, or the
Philosophy of Positive Law (1863). In this work Austin
definitely departs from the earlier tradition of juris-
prudentia naturalis and accepts the first principles of the
civil law itself as the proper subject of scientific or
philosophical investigation (n), (o), (p).
(m) One of the last examples in England of the literature of natural
jurisprudence in the form familiar to the eighteenth century is A Treat4se
of Universal Jurisprudence, by John Penford Thomas, of Queens' College,
Cambridge, of which a second edition appeared in 1829. It expounds the
first principles of the law of nature, the civil law, and the law of nations.
The traditional doctrine of natural law in the form received from Aquinas
and the Schoolmen is still the subject of modern literature within the Roman
Catholic Church. An excellent example is the work entitled Moral Philo-
sophy or Ethics and Natural Law, by Joseph Rickaby (3rd ed.), 1892.
(n) The doctrine so established by Austin of a science of analytical
jurisprudence distinct from historical or ethical jurisprudence has been
followed since his day by a series of English writers, including the follow-
ing : Markby, Elements of Law (6th ed.), 1905; Holland, Elements of
Jurisprudence (12th ed.), *1916; Hearn, The Theory of Legal Duties and
Rights, 1883; Amos, The Science of Jurisprudence, 1872; Lightwood, The
Nature of Positive Law, 1883; Rattigan, The Science of Jurisprudence
(2nd ed.), 1891; Sir Frederick Pollock, First Book of Jurisprudence
(5th ed.), 1923; Gray, The Nature and Sources of the Law, 1909; Terry,
Leading Principles of Anglo-American Law, 1884; Goadby, Introduction
to the Study of Law (3rd ed.), 1921; Brown, The Austinian Theory of
Law, 1906.
(o) A good account of the various schools of jurisprudence is to be found
in a series of articles by Professor Roscoe Pound in the Harvard Law

(p) See note (p), p. 16.

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 16 THE SCIENCE OF JURISPRUDENCE. [§4

Review - The Scope and Purpose of Sociological Jurisprudence, H. L. R.,

vol. 24, p. 591; vol. 25, p. 140 and p. 489. See also the same writer's
Introduction to the Philosophy of Law (1922), and Sir Paul Vinogradoff's
Outlines of Historical Jurisprudence (1920), vol. I., Introduction.
(p) In the text I have dealt with jurisprudence as the science of civil
law exclusively. But just as the term " law " has been extended by analogy
to include other bodies of rules than the civil law, so the term " jurispru-
dence " has suffered a similar analogical extension, though in a smaller degree.
Being jurisprudentia-theknowledge of jus-it may be regarded as including
any form of law in the sense of jus. Thus, we may speak of international
jurisprudence dealing with the jus gentium, as well as of civil jurisprudence
dealing with the jus civile. It is more convenient, however, and more
conducive to accuracy of thought and speech, to disregard all such analogical
extensions of this term, and to confine jurisprudence to the science or
doctrine of the civil law alone.

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 BOOK I.

THE NATURE AND SOURCES OF LAW.

s.J. 2

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Reproduction by Permmission of Buffalo & Erie County Public Library Buffalo, NY