THE THEORY OF JURISPRUDENCE. 



19 



more familiar sense as denoting the phenomenon known to us 

 by that name. 



In the above disquisition upon Jurisprudence, we have sought 

 to express dogmatically the matured results of human thought 

 (operating during a period of some twenty-five centuries) — as 

 these have been, more or less clearly expressed by jurists, from 

 the time of Aristotle, including the classical jurists, and the 

 modern civilians, and especially the great jurists of our own 

 Law. 



11. Of the Law. 



Of the Bdation of Jurisprudence to the Law. 



We now use the term Law, it will be remembered, in the 

 more familiar sense, as denoting the aggregate of rules and 

 principles by which the Courts are governed in the exercise of 

 Jurisdiction. 



In this sense of the term, the Law consists of several hetero- 

 geneous parts, but these may all be distributed into two 

 categories : The first, being the Doctrine of Eights ; the second, 

 the Doctrine of Actions ; under which last head will be 

 included, both civil and loeacd actions, and civil and penal pro- 

 cedure. 



With actions and procedure, Jurisprudence, regarded as a 

 science, is not concerned. But unless in the Law, we use the 

 term Rights in a sense entirely inadmissible, the Doctrine of 

 Eights must be regarded as but another name for the Science 

 of Eights, or Jurisprudence. And this, in fact, as we have 

 stated, is the way the subject has been viewed, more or less 

 clearly, and always more or less explicitly asserted, by the 

 jurists of our own Law, as well as by those of the Eoman Law 

 and the Modern Civilians. The relation of Jurisprudence to 

 the Law is, therefore, apparent; it constitutes, simply, the 

 substantive, as distinguished from the adjective part of the Law. 



Certain apparent objections to this view, indeed, present 

 themselves, but these are clearly explained, and removed, by 

 the consideration of the distinction betw^een the Positive and 

 the Instituted Law. To the mere practitioner, the Doctrine of 

 Actions, constitutes the more prominent aspect of the Law ; 

 and to him. Jurisprudence or the Doctrine of Eights is merely 

 subsidiary. But though subsidiary, it is none the less essen- 

 tially necessary to make the complete Lawyer or Judge ; a fact 

 of which, at least here in America, we have had a very 

 melancholy experience. 



