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Jurisprudence

law, plato, jurists, mind, political, esp, aristotle and mediaeval

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JURISPRUDENCE is the name given to those studies, researches and speculations which aim primarily at answering the plain man's question : What is Law? But because the law is a thing of so many aspects, those inquirers who keep that object foremost do not necessarily come quickest at the answer. Indeed the more promising the method pursued, the farther the goal re cedes. Thus at the head of English jurisprudence stands ad mittedly Sir Henry Maine. He more than others kept his purpose vividly in mind, yet when at last he came to lay aside his pen whole sciences had been generated, and all their paths diverged. Should however the inquirer turn first to what the bookseller's catalogue knows as jurisprudence his expectations will again be defeated. He will certainly come upon a definition, clear, logical and precise, but plain man or philosopher, it will have no meaning for him until he has himself become a master of the law. This perhaps comes nearer to the kind of study the Roman jurists de noted by the name, "Juris prudentia est divinarum atque human arum rerum notitia, iusti atque iniusti scientia" ; though this promise of connecting the lawyer's daily task with the true in wardness of all things human and divine was hardly fulfilled. The Roman jurists perhaps, marvellous science though they had, lacked the philosophic mind. Whatever the explanation, their work was done when they had given to the practical rules they employed a formal perfection; a perfection, be it added, that is still the envy of civil law and common law alike. Such elegantia was for them the last word in jurisprudence. Between these greatly opposing conceptions lie a number of methods which have all in one way or another enriched the study of the subject. There is pure philos ophy on the one hand, political theory on the other. There is the study of comparative institutions, the history of moral ideas. These and more border upon or overlap the jurist's field. But jurisprudence has an individuality of its own. The methods of social theory are not those of juristic speculation. There is more than political wisdom enshrined in the thought of Burke, but he does not speak the language of Blackstone. Nor does Savigny speak quite with the voice of Kant. And if such has been the case in the past, how much more is it true to-day. The inter relation of the relevant sciences is now so intricate that no gen eral statement can hope to give an adequate conception of the subject as a whole. Nor will any such statement be even at

tempted here. It is as a guide to the present position, an indica tion of the trend of interest, a suggestion of the more hopeful lines of inquiry that this sketch had best be regarded.

Plato and Aristotle.

Speculation as to the meaning of law rightly dates from the Greeks. Their answers to the question : "What is Law?" thrust upon them by endless political misfor tunes, will all be found discussed in the writings of Plato and Aris totle. Mention can only be made of one conception of Aristotle's, of law as a Rule, as an embodiment of Reason whether in the individual or the community : "mind unaffected by impulse" which harmonizes all conflicting elements and secures the well being of the whole. It would be a mistake to assume that the interest of Greek speculation is now purely historical. In an age of acute specialization there would be far less proportion or bal ance, were it not for the constant testing of theories in the light of what Plato suggested or Aristotle thought. For the jurist's occasional reading nothing could be more helpful. (The following passages may perhaps be cited. Plato, Gorgias 482e-484c, 515 517; Protagoras; Phaedrus 26o-262c, 273, 277 seq; Republic esp. bks. I.–IV. and X., 619b and c; Aristotle, Ethics V. esp. 1129b, 14-end; 1131a 25; caps. 6-8 1134-36; Politics I. caps. 2 and 3 ; III. and esp. cap. i6-end; cf. E. Barker, Political Theory of Plato & Aristotle.) Mediaeval.—To the mediaeval mind law was the law of God as revealed in the Bible, or rather, the Church. This law was im mutable. It was also not a little remote from the workaday world. Princes and rulers had but a limited capacity of interfering with it. Everyday affairs however call for regulation; this therefore had to be effected by means of ordinances. Hence positive law. Such was the great contribution of mediaeval thought to juris prudence (cf. Pollard, Evolution of Parliament, cap. xi. and John Dickinson's edition of John of Salisbury). The static character of the law in the minds of the great common lawyers of the 17th century may in part be traced to it ; but on the other hand the law-abidingness inherent in English institutions may owe much to it. Again when one hears a modern French lawyer say that his Government has the power but not the right, say, to confiscate the citizen's property without compensation, he is appealing probably to a distinction of this mediaeval origin.

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