phenomena grow from many independent roots, and are formed and coloured according to the character of the various soils from which they have sprung. But to say this is only to say that the facts from which Jurisprudence generalises are furnished by History, the record of human actions. Identical human needs have been satisfied by various means, and all the means of satisfying each of these needs have not been in simultaneous use in every part of the world and in every age. In the satisfaction of their needs mankind have seldom seen clearly the ends at which they were aiming, and have therefore in reaching after those ends invented a vast variety of perverse complications. The unity, in short, which it is the business of Jurisprudence to exhibit as underlying all the phenomena which it investigates, is the late discovery of an advanced civilisation, and was unperceived during much of the time during which those phenomena were accumulating. The facts can only be presented by History, and History may be studied with the sole view of discovering this class of facts. But this is not the task of Jurisprudence, which only begins when these facts begin to fall into an order other than the historical, and arrange themselves in groups which have no relation to the varieties of the human race. The province of Jurisprudence is to observe the wants for the supply of which laws have been invented, and the manner in which those wants have been satisfied. It then digests those actual wants, and the modes in which they have actually been satisfied, irrespectively of their historical or geographical distribution, according to a logical method. One work on Jurisprudence may contain more of historical disquisition, while in another philosophical argument may predominate; but such differences are incidental to the mode of treatment, and afford no ground for a division of the science itself.

But though the science is one, it may have as many heads or departments as there are departments of law. It would therefore be unobjectionable to talk of criminal' and 'civil,' 'public' and 'private' Jurisprudence.

CHAP. I.

Juris

defined.

CHAP. I. To sum up. The term Jurisprudence is wrongly applied to actual systems of law, or to current views of law, or to suggestions for its amendment, but is the name of a science. This science is a formal, or analytical, rather than a material one. It is the science of actual, or positive, law. It is wrongly divided into 'general' and 'particular,' or into 'philosophical' and 'historical.' It may therefore be defined provisionally as 'the formal science of positive law.' The full import of this definition will not be apparent till the completion of an analysis of the all-important term 'Law.'

CHAPTER II.

LAW.

the term

'LAW, or the law,' says Bentham, 'taken indefinitely, is an Meaning of abstract or collective term, which, when it means anything, Law. can mean neither more nor less than the sum total of a

number of individual laws taken together 1.'

of Ius,

This simple statement is in striking contrast with a multitude of assertions upon the subject; which however are less frequently made with reference to the English term Law than to its equivalents in other languages. The terms Ius, Recht, Ambiguity Droit, cannot, in fact, be said to express nothing more than Recht, 'the sum total of a number of individual laws taken together.' Droit. It so happens that all these terms denote not only the sum total of Laws, but also the sum total of Rights (Iura, Rechte, Droits), and the sum total of all that is just (iustum recht, droit). When therefore we say that Jurisprudence is the science of Ius, Recht, or Droit, we may mean in each case that it is the science of any one of three things, viz.

(1) of Law,

(2) of Rights,
(3) of Justice;

1 Works, i. p. 148. Cf., among the meanings of ' Ius' enumerated by Puffendorf, i. i. § 20, 'complexus seu systema legum homogenearum.'

CHAP. II. and, unless this ambiguity be borne in mind, many expressions having apparent reference to law will be quite unintelligible 1. But a coherent science cannot be constructed upon an idea which has complex or shifting meanings. One or other meaning must be chosen, and when chosen must be made the sole foundation of the edifice. It is therefore a piece of good fortune that when we say in English that Jurisprudence is the science of law, we are spared the ambiguities which beset the expression of that proposition in Latin, German, and French, and have greatly obscured its exposition in those languages.

Meaning of

the term 'a law.'

Its earliest use.

But if the English abstract term 'Law' is free from any suggestion of the aggregate of Rights, or of the aggregate of just things, it is of course suggestive of all the meanings in which the concrete term 'a law' is employed in our language; and these have unfortunately been so numerous as to involve the abstract idea in considerable obscurity. Hence it is that so many of the definitions which have been given of that mysterious non-entity strike us as being vague or merely eulogistic. Many of them have reference to that divine order which pervades the inanimate universe even more than the actions of rational beings; and those of them which have reference to human action deal quite as often with the voluntarily observed maxims of society as with rules which are supported by the authority of the State.

Heterogeneous however as the senses of the term 'a law' may at first sight appear, the connection between them is not hard to trace; nor is the earliest use widely different from the latest and most accurate.

The shepherd who guides his flock, or, on a larger scale, the head of a family who regulates its encampments and employments, seems to have been the earliest 'lawgiver,'

1 So Lord Westbury was at the pains to explain that the word ius, in the maxim ignorantia iuris haud excusat, is used in the sense of 'general law, the ordinary law of the country,' not in the sense of a private right.' Cooper v. Phibbs, L. R. 2 H. L. 170.

and his directions, as orders given by one who has power to enforce their observance, are the earliest 'laws'.' The original, and still the popular, conception of a 'law,' is a command prescribing a course of action, disobedience to which will be punished. In this conception there is of course implied that of a lawgiver, who has power to enforce his commands. From this vague original use of the term has arisen that large development of uses, some proper, some merely metaphorical, out of which the jurist has to select that which he admits into his science.

CHAP. II.

uses.

The strongest intellectual tendency of mankind is the Derivative anthropomorphic. If man is a mystery to himself, external nature is a still greater mystery to him, and he explains the more by the less obscure. As he governs his flock and his family, so he supposes that unseen beings govern the waters and the winds. The greater the regularity which he observes in nature, the fewer such beings does he suppose to be at work in her; till at length he rises to the conception of one great being whose laws are obeyed by the whole universe; or it may be that, having thus arrived at the notion of a universe moving according to law, he holds fast to it, even while he loses his hold on the idea of the existence of a supreme lawgiver.

1 So Homer says of the Cyclopes, Θεμιστεύει δὲ ἕκαστος παίδων ἠδ ̓ ἀλόχων, Odyss. ix. 114; and Plato, Οὗτοι ἄρα τῶν παλαιῶν ἄριστοι νομοθέται γεγόνασι, νομεῖς τε καὶ ποιμένες ἀνδρῶν, Minos, p. 320 Β. It may be worth while to notice that vópos (as distinguished from vouós) does not occur in Homer. Hesiod uses it twice, both times in the singular number, in the Op. et Dies, 276, 388; and it occurs in the Theogonia. The Homeric word most nearly expressive of laws is Oéuores, which however really signifies rather decrees made for special cases. Grote, Hist. ii. p. 111; Maine, Ancient Law, ch. i. Cicero derives vóμos 'a suum cuique tribuendo,' De Legg. i. 6. It is surely reversing the order of ideas to suppose that the use of vópos in the sense of a chant' is the original one, as does, e. g., Fustel de Coulanges, La Cité Antique, p. 227.

2 Max Müller appears to think that, among the Hindoos at all events, the order of ideas was the converse, showing that in the Vedic Hymns, Rita, from meaning the order of the heavenly movements, became in time the name for moral order and righteousness. Hibbert Lectures, 1878, p. 235.