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PRACTICAL JURISPRUDENCE;

A COMMENT ON AUSTIN.

INTRODUCTION.

Jurisprudence may, for the purposes of this work, be briefly defined as the science of law in general. The name has sometimes been applied to the knowledge of a particular body or system of law: but Professor Holland' appears to be perfectly right in objecting to this application, and in consequently discarding the division of Jurisprudence into general and particular. The meaning of the adjective practical, which, though not a perfectly satisfactory expression, has been employed for want of a better, will be seen from the first pages of Chapter I.

Uses of the historical study of Roman Law. To some English students of Roman Law, as perhaps to Englishmen in general, the only practical use of the study will at first sight appear to lie in the two facts, that many rules of the Corpus Juris have been, as was always acknowledged, adopted into Continental Law, and that a few of such rules-more than was, until recent times, imagined—have been adopted into our own. Under this point of view, the attention will natu

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C. J.

1 Jurisprudence, p. 9.

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rally be directed, almost exclusively, to the results of Justinian's legislation, as constituting the only body of Roman Law known, in any extent, to its adopters into our modern systems. But it will soon be found that a thorough understanding of the complicated organism, or rather the congeries of unorganised matter, which the Byzantine emperor has left us, is perfectly impossible without reference to an earlier stage-to a more logical developement of the whole and a more natural correlation of the parts, which were to some extent obscured by the arrangement of Justinian's compilers. Hence the value justly attached to Niebuhr's great discovery of the older Institutes of Gaius: hence the continual attempts to reconstruct even a skeleton of the Praetor's Edict, out of the fragments scattered through the Digest. Again, the Edict itself was in the main an amplification of the Twelve Tables; while the Twelve Tables were a partial codification of customary law dating from the very commencement of the Roman polity. For much of that customary law, too, which subsisted to the end in an uncodified form, we depend, as in the case of England, upon very general statements of Institutional writers, needing to be helped out by such scanty record of form and procedure as has been incidentally preserved in the works of historians or antiquaries. With a view, then, to the mere knowledge of the law as left by Justinian, no study of that law per se can altogether dispense with the historical method, which traces each rule as far as possible from its original source. Such a method is no mere unpractical curiosity or dilettante antiquarianism, but a needful study of the elements composing that vast and vague structure whose fragments are built into every legislature of the civilised world.

Thus much for Roman Law, as the source of rules actually existing at the present day: from which point of view, I must however admit that the utility of this study is less in

England than it is in Scotland, in most of the Continental nations, and in several of our colonies. Into the latter systems considerable portions of the Roman law (at least of the civil, as distinguished from the criminal, part) have been transferred without much alteration. With us, the generalisations upon particular classes of cases, worked out before our eyes in the Digest, are models of practical good sense, so that the reasoning upon which they are based must be of use in similar circumstances. Not, however, being recognised as authoritative, they are but slightly employed by our textwriters and still less by our practising lawyers. Amongst the former, perhaps, an increasing deference to the dicta of the classical jurists is perceptible. But, on the whole, if individual rules in detail were all that we got from the study of Roman Law, it might be justly questioned si le jeu vaut la chandelle.

By far the wider utility of the subject lies in its connexion with Jurisprudence, from which the study of Roman Law can never be separated without the greatest detriment to both; coupled with which, that study is most profitable towards the acquisition of sound principles and clear ideas as to law in general. In order to such acquisition there appears to me to be, at the present time, special need of that historical method which I have just advocated.

The historical school of modern jurists, dating from Savigny and Hugo, apparently arose by way of revolt against a previous philosophical school, whose members were represented as cutting themselves adrift from experience, and preferring the evolution of a system out of principles dependent merely on their own consciousness. The synthetic method, which starts from assumed first principles and prime agents, working down to what is, whether attributed with perfect justice or not to the particular philosophers of whom I speak, has always had its adherents among the earlier jurists. Even

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