20 



JUDGE GKORGE H. SMITH, OX 



To the Jurist, however, the important aspect of the Law is 

 the Theory of Eights ; and this can be scientifically treated 

 only by disregarding all rules and supposed principles which 

 run counter to the common natural rule of Eight ; or in other 

 words, by disregarding what is called by the Eoman Jurors 

 jus singulm^e ; or if he be also a practitioner, by simply noting 

 such abnormal elements as exceptions. 



By the term "jurists," I do not mean to exclude all Lawyers ; 

 for in fact it is among them that all the great jurists are to be 

 found. But 1 include in the term, all Lawyers who set them- 

 selves to study the Law as a science. For of the actually 

 Instituted Law, taken as a whole, as including these accidental 

 and arbitrary rules, there cannot be any science. 



Definition of the Laiu. 



The relation of Jurisprudence to the Law, in the wider sense 

 of the latter term, as we have seen, is simply that of a theory 

 to its attempted application. 



Hence, as in other cases of a science and its practical appli- 

 cation {Episteme and Practike, eirLarrjiJbr] et irpaKTiKrj), the Law 

 cannot be defined otherwise than as what it is in theory. Tor 

 the Law is, in its essential nature, a theory of what onght to be 

 observed, and hence, however we may define it, a theory of 

 right. 



Hence, also, follows the necessary and essential distinction, 

 which must always exist between the Instituted and the 

 Positive Law. 



To this usage, the popular use of the term, the Law, in effect, 

 though confusedly, conforms. For such is the constitution of 

 the human mind that we can hardly conceive of a phenomenon 

 merely as such, without more or less consciously conceiving of 

 its cause or nature. Hence, when we refer to the Law we 

 commonly, if not universally, form a conception also of its 

 nature, as being right or justice, or legislation, or custom, or 

 something else more or less clearly defined. 



Hence, for the lawyer, as well as for the jurist, this is the 

 true definition, and the Instituted Law, in so far as it cannot be 

 brought under this definition, is to be regarded as quasi law 

 only. And so, in fact, the Law has been commonly regarded, 

 more or less consciously, by the great jurists of our own, as of 

 the Civil Law. 



This was substantially the view taken of the law by the 

 Classical Eoman Jurists. 



For Americans it is obviously the only possible view that can 



