558
The Green Bag
Juristic Methodology by Dr. Ahrens, translated from the German by Hastie : By the keen edge of the dialectic, developed in Hegel's treatment of the Philosophy of Right, there fell, as if cut down with one blow, a whole forest of misunderstandings regarding the relation of Jurisprudence and positive practical Law to Philosophy. And no sooner was this done than the most diflicult problem in the sphere was solved, in the classification of juristic Science according to one leading principle, and juristic Encyclopedia became what it ought to be, an artistic system construed upon the solid foundation of one supreme principle!
Adopting one principle of division does not imply that no other could be
made use of for some other purpose, only that for the specific purpose in hand the one adopted is preferable;
but it is necessary, if the arrangement is to be complete, consistent and bar
monious, that the one adopted be applied
careful to keep in mind the principle of division with which you set out, mg. whether you begin dividing books according to their matter, their language or their size, all these being so many cross-divisions. And when anything is capable, as in the above instance, of being divided in several difierent ways, we are not to reckon one of these as the true, or real, or right one, without specifying what the object is which we have in view;
for one mode of dividing may be the most suitable for one purpose, as, e.g. one of the above modes of dividing books would be the most suitable to a bookbinder, another in a philosophical, and the other in a philological view. . . . When you have occasion to divide anything in several difl'erent ways,—that is on several principles of division,—you should take care to state distinctly how many principles of division you are making, and on what prin ciple each proceeds.
A subject may be treated under as
many cross-divisions as there are view points, but subdivision is quite differ
throughout—there must be no clashing of subdivisions. Cross-divisions may
ent from cross-division.
overlap, but not so subdivisions.
The subjects in which estates may subsist are commonly subdivided into lands, tene ments and hereditaments: which is a cross division, of which the subclasses are by no means mutually exclusive. Lands are treated as a separate class, by reason of their promi nent importance and peculiar physical charac teristics. Tenements require special mention,
Archbishop Whateley’s" rules for the logical division of subjects are: 1. Each of the parts [of a subject] or any of them short of all, must contain less, i.e., have a narrower signification than the thing divided [the subject]. 2. All the parts together must be exactly equal to the thing divided [the subject]; therefore, we must be careful to ascertain that the summum genus may be predicated of every term placed under it, and of nothing else. 3. The parts or members must be opposed, i.e., must not be contained in one another,
e.g., if you were to divide the word [the subject] “book" into poetical, historical, folio, quarto, French, Latin, etc., the members would be contained in each other; for a French book may be a quarto or octavo, and a quarto, French or English, etc. Therefore [continues the Archbishopal you must be 0 Outlines of Jurisprudence. Hastie'a Translation, p. 270.
1 Logic. p. 93. ‘Quoted from Journal of Jurisprudence. Edin burgh. 1864. A further illustration is furnished
For example,
Challis says :
because they alone are entailable [being held in tenure]. Hereditaments is a convenient class-name for uniting together everything which may be the subject of estates of in heritance.’
The various points of view under which Blackstone and others treat by the following. from a lecture delivered by Mr. Justice Brewer to the students of Haverford College. He says: "We classify nations in various ways, as for instance. by their form of government. One is a lcingdom, another an empire, and still another a republic. Also by race. Great Britain is an Anglo-Saxon nation, France a Gallic. Germany a Teutonic, Russia a Slav. And still again by religion. One is a Mohammedan nation, others are Heathen, and still others are Christian nations." Here the learned Justice mentions three cross divisions. Another cross-division of the races is the one used in ethnology. 0 Challis, Real Property, pp. 32, 24.
