date

Procedure 5 July 1804 Ch. Non
Procedure

5 July 1804

Ch. Non-homologation

''.3 Import uncertain

''.3-2. Import uncertain

2. In the next place, from the indeterminateness of the words of which any given mass of the matter of jurisprudential law is composed, follows by necessary consequence the uncertainty of the import. Compare it in this respect with its [...?] and rival. Obscurity, ambiguity, and delusiveness are imperfections to which law in the form of statutory law is but too liable: for statutory law is but a species of human discourse, applying itself to that particular subject, and the above are imperfections to which all human discourse is liable. But in statutory law these are but individual and casual imperfections, imperfections capable of being lessened, and actually lessening every day, as the human mind advances in practice, and in that strength which is increased in practice. In /To/ jurisprudential law on the other hand they are essential, and (as will be seen more particularly under another head) incurable: the portion of them which results from our ill-adopted choice words bearing in proportion to that which arises from the absolute want of determinate words. The words of which the matte of jurisprudential is composed, those words indeterminate as they are, are still words: and to the several imperfections above-mentioned these words whatever they are, are still in no less a degree, but as will be seen in the much greater degree liable, than those determinate words of which the statutory law is composed. To all the imperfections, and those curable ones to which statutory law is exposed, all which it is loaded with and in a much higher degree jurisprudential law add its own essential, peculiar, and incurable ones.
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    The speaking of jurisprudential law the following distinctions or division will require to be observed - the one taken from /grounded on/ its connection or disconnection with statutory law; the other from the consideration of the country in which it took its rise.

    1. Division of jurisprudential law into self-rooted, and engrafted. When the import and application of a clause or portion of the matter of statutory law has been the subject of contestation in the court of judicature, and the Judge, on the occasion of the decision he pronounces, signifies the sense he ascribes to such clause, the interpretation or construction so put may in so far s it is considered as distinct from the portion of law which it thus interprets, and as constituting in that respect a portion of the matter of jurisprudential law termed a portion of jurisprudential engrafted upon such or such a portion of statutory law. It may be termed self-rooted in the opposite case; viz word has no portion of statutory law to stand upon.

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    What in a distillery the wash is to the spirit, the words that are formed in such unhappy abundance in the books written on /[...?] to/ the subject of jurisprudential law are to the words which if they had but the seal /stamp/ of a legislator offered to /stamped upon/ them, would like a portion /mass/ of statutory law to the same effect, constitute a portion of law. /In the manufactory of jurisprudential law,/ Any /every/ man that pleases as to the wash, but the spirit that is extracted, each man is left to extract for himself - for his own use, and at his own peril, as above.

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    Not but that the terms jus, droit, diritto, derecho, recht, are applicable to portions of statutory as well as to portions of jurisprudential law: the distinction is that they are applicable to both, whereas it is only to statutory law that the opposite /contrasted/ and corresponding works, lex, loi, lege, leige and [ ] are applicable.