10 



JUDGE GEORGE H. SMITH^ ON 



been thought that its solution " is not possible unless and until 

 we have a complete theory of the nature and functions of 

 human society." (Sir Frederick Pollock, First Book of 

 Jurisioruclence, p. 4.) 



In this I agree, except that I think we already have such a 

 theory sufficiently complete to serve our purposes ; and that 

 the definition of " the Law " is, even now, quite practicable. 

 But for the present, the task must be deferred, in order that 

 the necessary preliminary matters (all of which fall within the 

 province of Jurisprudence) be first considered. In the mean- 

 while, it will be understood, when not otherwise indicated, that 

 the term, the Law, will be used to denote merely the aggregate 

 of the rules and principles customarily observed by the courts 

 in the exercise of jurisdiction ; which is the sense now, perhaps, 

 the most familiar. 



I. Of Jurisprudence. 



Jurisprudence Defined, 



Three definitions of Jurisprudence obviously suggest them- 

 selves : 



(1) In the first, as suggested by the etymology of the 



term — Jurisprudence may be defined as the science of 

 Jus or the Law, i.e., of the content of the Law. 



(2) In the second, which is the sense in which the term 



was universally received by jurists prior to the 

 advent of Bentham and Austin, it is defined simply 

 as the Science of Justice {justi atgue injusti scientia). 

 This, I conceive, is to be taken as the proper sense of 

 the term. 



(3) In the third. Jurisprudence is defined as the Science of 

 nights; or substituting for the plural, the corres- 

 ponding collective term, the Science of Bight. 



These several senses of the term, have been thought by 

 Mr. Holland, and jurists of his school, to be essentially 

 different. But obviously, with regard to the second and third 

 of the definitions given, this is not the case. For according to 

 the received definition, and the universal acceptation of the 

 terms, Justice consists merely in the observance of rights (jus 

 suum cuique trihuere) ; and Jurisprudence may, therefore, 

 be defined as the Science of Eights. 



So, if we have regard to the terms used, and assume the 

 term, jus, to retain, in the composite term, its original sense, 



