JURISPKUDENCK 343 JURISPBUDENCE. cognate social sciences, politics, ethics, economics, etc.; how law originates (jjopular customs, judi- cial usage, legislation), and how it ceases to exist (desuetude, change of usage, abrogation or re- peal) ; how it is applied (with reference to per- sons, time, and place ) , and how it is enforced (sanctions). Jurisprudence also analyzes and defines the principal conceptions with which law operates, e.g. legal relations, rights, and duties. It may undertake to classify law, and to construct a system or framework in which every rule of modern law (or perhaps of all law, past and present) shall find an appropriate place. It may — although it more rarely doe.s — attempt to clas- .sify all the relations which the law recognises or creates and which it regulates or orders, e.g. the relations of State and government to other forms of association and to the individual, and the relations of private associations and of individu- als to each other. It may — although it still more rarely does — analyze the fundamental conceptions, of the family, of property, and of succession. Such detailed investigations must ordinarily be sought in special treatises. English writers on juris- prudence usually confine themselves to what the Germans call "the general part' of legal theory. Another limitation ob.servable in works on jurisprudence is that they deal chiefly with pri- vate law, i.e. with the law which the courts administer in civil proceedings. It is sometimes affirmed (as by Pollock) that public or political law lies outside of the proper field of jurispru- dence and in the field of political science. When this is not aflirmed. it is nevertheless noticeable that the attention of writers on jurisprudence is mainly directed toward private law; that their definitions frequently ignore the public-law point of view: and that their categories are private- law categories. Thus Austin tries to force all public law into the law of fictitious and abnormal persons. The principal modern schools of jurisprudence are the natural-law school, the analytical school, the historical school, and the comparative school. The differences between the first three are mainly to be found in their views of the nature and origin of law and its relation to ethics. To the natural-law jurist law is antecedent to the State ; to the analytical jurist it is the crea- tion of the State; to the historical jurist State and law are social products, developing side by side, each influencing the other. To the natural- law jurist law is cognizable by pure reason ; to the analytical jurist it is the command of the sovereign : to the historical jurist it is the formu- lated wisdom of the race. To the natural-law jurist law is apjilied ethics, and in the extreme form of the theory, that which is not right is not law. To the analytical jurist a law which com- mands what is ethically wrong or forbids what is ethically right is not the less a law if it proceeds from the political sovereign. The historical jurists accept in this respect the position taken by the analytical school; but they point out that it is difficult for a law-maker to act otherwise than in accord with the contemporary sense of right, and that laws which run counter to that sense are not likely to be enforced. Historical ju- risprudence differs from analytical jurisprudence chiefly in emphasizing the great part played by social custom in developing and establishing law. To the anal,-tical jurists customary law. includ- ing judicial custom, is an anomaly. They do not like it; they try to explain it away; they would fain abolish it by covering the whole field of social relations with written codes. The natural- law school has its roots in the Stoic philosophy and the Roman jurisprudence; it was increas- ingly dominant in Europe from the Reformation to the close of the eighteenth century. (For the principal forms of the theory and the chief writers, see Xatl'BAL Law.) It has now few adherents : the largest number, probably, are in the United States. The theory of the analytical school was first sharply formulated by Hobbes in his Leviathan, but it became dominant in the English-speaking world mainly through the writings of Austin. The term 'analytical' is purely English ; but the views of this school neither originated in nor are they confined to that country. The tendency to exalt the function of the legislator appeared on the Continent at the close of the Jliddle Ages, and was associated with the efforts of the na- tional States, as they developed increasing ad- ministrative unity, to get rid of the chaos of varying provincial and local customs which had taken form during the Jliddle Ages — an end which could be attained only by national legisla- tion, and which has been fully attained only by the adoption of national codes. See the article Code. The historical school dates from the nineteenth century. Cujacius, in the sixteenth century, gave a powerful impulse to the historical study of law, and Jlontesquieu and Burke, in the eighteenth century, rejtresented the same reaction against natural-law ideas which Savigny represented in the nineteenth, but the last-named jurist first clearly defined the principles of historical juris- prudence in 1814. The historical method was naturalized in the English-speaking world chiefly by the writings of Henry Sumner ilaine. The substitution of historical investigation for a priori reasoning has been so fruitful of results that few European jurists at the present time would admit that they were not adherents of this school. There is no antagonism between it and the com- parative school. This latest school, or tendency, represents only a widening of the field of in- vestigation. Not only is each national law to be studied historically, but the various national systems are to be compared at similar stages of develo]iment. As a result of this process, not only may the normal course of legal development be discovered, but that which is universal and hiuiian may be separated from that which is par- ticular to a single nation or to a special stage of development ; and then, as .Thering hoped, it may eventually become possible to write a history of the law of the world. Thus far chief atten- tion has been given to early law. Some of the best-known names of workers in this field are those of Maine, Holmes, Fustel de Coulanges, Jhering, Kohler, and Post. The comparative work of legal historians has been extensively supplemented by that of eth- nologists; and especially interesting investiga- tions have been made in early family law. (See ^Marriage.) The tendency to hasty generaliza- tion which inevitably appears in all new lines of research is being checked. In particular it is coming to be recognized that the customs of savages at the present day do not always throw light upon the institutions of prehistoric Europe;
