3. Difference between jurisprudential and legislative science.—Positive law may be viewed in the two following aspects. First, it may be considered as an organic system, consisting of coherent rules, expressed in a technical vocabulary. Secondly, its rules may be considered singly, with reference to their tendency to promote the happiness of the com munity; in other words, their expediency or utility. Law viewed in the former aspect is properly the subject of the science of juris prudence. [Jummel:me:zee.] Law viewed in the latter aspect is the subject of a department of political science which is generally termed legislative science. (Legislation,' in strictness, is concerned about the technical form, as well as the utility, of a law ; but the term legislative science, as just defined, is sufficiently accurate for our present purpose.) It is important to bear in mind the distinction, just pointed out, between the scientific or technical excellency of a system of law, and the expediency or utility of the rules of which it is composed. The distinction, however manifest, has been frequently overlooked, even by lawyers. Thus Sir W. Blackstone, in describing the struggle made by the clergy to substitute the Roman law for the common law of England, gives the preference to the latter system on the ground of the imperial government of Rome being despotic. The excellence of a system of law, considered in a scientific point of view, has no connection with the form of the government by which the laws were established. Law may be, and has been, cultivated as a science with admirable success under very bad governments. The scientific cultivation of laW iu Rome scarcely began until the Empire ; and the great legal writers of France lived in times of political anarchy or despotism. A system of law of which the practical tendency may be most pernicious, may have the highest scientific> or technical excellence. A code of laws establish ing slavery, and defining the respective rights and duties of master and slave, might be constructed with the utmost juristical skill ; but might, on that very account, be the more mischievous as a work of legis lation. On the other hand, a system of law may be composed of rules having a generally beneficial tendency, but may want the coherency and precision which constitute technical excellence. The English system of law affords an example of the latter case. Owing to the popular character of the legislature by which its rules were enacted or sanctioned, it has a generally beneficial tendency; but considered in a scientific point of view it deserves little commendation. The writings of Mr. Bentham, in like manner, are far more valuable contributions to legislative than to jurisprudential science. The remains of the writings of the Roman lawyers, on the other hand, are of little assistance to the modern legislator, but they abound with instruction to the jurist.
The distinction between the technical excellence of a law and its expediency, or (in other words) between its form and its substance, is also important with reference to the question of codification, that is, the making of a code of laws.
The making of a code of laws may Involve any one of the three following processes :-1. The formation of a new system or body of laws. 2. The digesting of written laws, issued at various times, and without regard to system. 3. The digesting of unwritten law, con tained in judicial decisions and authoritative legal treatises. The Ancient codes of law were, for the most part, works of new legislation ; such were, for example, the codes of Solon and Draco, the Twelve Tables, the code of Diodes of Syracuse, and others. The codices of Theodosius and Justinian afford examples of the digesting of written laws. The Digest or Pandect of Justinian affords an example of the digesting of unwritten law. The French codes were not digests of the existing law of France, either written or unwritten ; but they were in great measure founded on the existing law. The same may be said of the Prussian Landrecht. The statutes for consolidating various branches of the criminal law of England, the bankruptcy laws, the customs laws, &a., are instances of the digesting of the written law of England. The specimens hitherto furnished by different commissions of a digest of the English common (or unwritten) law have only been such as to prevent their being thrown into the shape of written law.
The digesting of existing law, whether written or unwritten, requires merely juristical ability ; the making of new laws requires in addition to the knowledge and skill of the jurist, that ability which we have termed legislative. In other words, the making of new laws requires both attention to their utility or expediency, and technical skill in the composition or drawing of them. Popular forms of government secure a tolerably careful examination of• laws, with reference to their expediency; but they do not secure attention to the technical or scientific department of legislation. Indeed nearly all the principal codes of laws have emanated from despotic governments, namely the House, Pruasian, Austrian, and French codes. The difficulty of pawing an extensive measure through a popular legislature has been urged by those who have been reproached with failure, as dimeoulaging any attempt at a systematic digesting of the law. But the digest of the law of the state of New York, and other American codifications, afford instance. that such difficulty is not Insurmountable.
The inconveniences arising from too great prolixity or too great condemns. in the phraseology of laws are stated by Lord Bacon, in the 66th and 67th aphorisms 9f his eighth book ' De Augment's.' If an attempt be made, by an enumeration of specie!, to avoid the obscurity which arises from the use of large generic terms, doubts are created as to the comprehensiveness of the law ; for, as Lord Bacon well observes, " Ut exceptio fimuit vim legis in ca'ibus non exceptis, its enumeratio infirrnat eam in easibus non enumemtis." (' lb.,' mph. 17.) On the other hand, vague and extensive terms, if unexpLsined, are obscure and frequently ambiguous. The beet mode of producing a law which shall at once be comprehensive, perspicuous, and precise, probably is, to draw the text of the law in abstract and concise Language, and to illustrate the text with a commentary, in which the grounds, and meaning of the several parts of the law arc ined. Such a commentary WM suggested by Mr. Bentham. ("it& de Legislation,' torn. iii., p. 284; De In Codification,' 8. 4.) Doubts will arise in practice respecting the interpretation of the most skilfully drawn laws; and the best guide to the interpretation of a law is an authentic declaration, made or sanctioned by the legislature which enacted it, of its scope or purpose. The want of such a com mentary frequently causes the scope of a law to be unknown; and hence the tribunals often hesitate about enforcing laws which may be beneficial. (' Dig.,' lib. L, t. 3, fr. 21, 22.) It seems scarcely necessary to say that laws ought, where it Is possible, to be composed in the language most intelligible to the persons whose conduct they are to regulate. In countries where the great majority of the people speak the same language (as in England or France), no doubt about the choice of the language for the com position of the laws can exist. In countries however where the people speak different languages, or where the language of the governing body differs from that of the people, or where the bulk of the people speak a language which has never received ane,literary cultivation, a difficulty arises as to the language in which the laws shall be written. Where the people speak different languages, authentic translations of the original text of the laws should be published. Where the language of the governing body differs from that of the people (which is generally the case in newly-conquered countries), the laws ought to be issued in the language of the people. It is comparatively easy for a small number of educated persona to learn a foreign language ; whereas it is Impossible for the people at largo speedily to unlearn their own, or to learn a new tongue. Where the language of the bulk of the com munity has not received a literary cultivation, the language used by educated persons for literary purposes must be employed for the composition of the laws. Thus In Wales, the Highlands of Scotland, and the west of Ireland, the language of the laws and the government is not Celtic, but English ; and in Malta, where the bulk of the people speak a dialect of Arabic, the laws are pub babel and administered in Italian, ishich is the literary language of he island.