THE NATURE AND SOURCES OF THE LAWPDF电子书下载

PART Ⅰ NATURE OF THE LAW 1

INTRODUCTION 1

Analytic study of legal conceptions 1

Classification and definition 3

Value of concrete instances 4

CHAPTER Ⅰ LEGAL RIGHTS AND DUTIES 7

Rights and duties in general 7

Ambiguity of word "right" 8

Relation of public opinion to rights 9

Legal rights and duties 12

Legal and moral rights 12

"Legal duty" 15

The term "just" 16

Protected interests and rights 17

Ways of protecting interests 19

Right to a defence 20

Intervention of administrative officers 22

Free will and legal rights 23

Free will and legal duties 24

CHAPTER Ⅱ LEGAL PERSONS 27

The term "person" 27

Normal human beings 28

Abnormal human beings 29

Fictions in the Law 30

In the Common Law 31

Disuse of fictions 35

Dogmatic fictions 36

Attribution of will to abnormal human beings 37

Unborn children 38

Supernatural beings 39

Animals as having rights 42

Animals as subject to duties 44

Inanimate things as having rights 46

Inanimate things as subject to duties 46

Juristic persons 49

Corporations 50

Is a corporation a real thing? 52

Has a corporation a real will? 54

Creation of corporations 56

Corporations sole 57

Stiftungen 58

The fiscus 60

Hereditas jacens 61

Ihering's doctrine of passive rights 61

CHAPTER Ⅲ THE STATE 65

The State an artificial person 65

Creators of the State 67

Power of the State 69

Theory of divine origin of the State 70

"Might is right" 71

The social contract 72

Sovereignty 74

In the United States 76

Idea of a Sovereign unnecessary 79

Legal rights of the State 79

Partial exercise of power to create rights 81

CHAPTER Ⅳ THE LAW 84

Definition of the Law 84

Law as the command of the Sovereign 85

"A Law" and "The Law" 87

Law in the consciousness of the people 89

Opinions of jurists 90

Judges as discoverers of the Law 93

Only what the Judges lay down is Law 93

Questions not previously decided 96

No Law previous to decision 98

Courts make ex post facto Law 99

Law and the Natural Sciences 101

Decisions as conclusive evidence of the Law 101

Law distinguished from other rules for conduct 104

The Law not always obeyed 105

The Law consists of rules made by the State 107

Laws of bodies other than the State 108

The Church of England 109

General administrative rules are laws 110

CHAPTER Ⅴ The Coubts 113

Office of a Judge 113

Power to enforce decisions not essential 115

Difference ot opinion between courts 116

Independent coordinate courts 118

Independent courts for different matters 118

Courts with limited right of appeal 119

Limits of judicial power 121

Indication of sources of Law 123

Statutes as a source of Law 124

CHAPTER Ⅵ THE LAW OF NATIONS 128

Relation between nations 126

"International Law" 127

"Private International Law" 128

Is International Law really Law? 130

Law in becoming 131

CHAPTER Ⅶ JUBISPBUDENCE 133

Particular Jurisprudence 133

Comparative Jurisprudence 134

General Jurisprudence 135

Supposed necessary principles of Law 136

Deontological or ethical element 139

Ethical element necessary 141

Ethical element in Comparative Jurisprudence 143

Jurisprudence as a purely formal science 144

Essence of Jurisprudence is method 147

Principles common to two systems 148

Historical Jurisprudence 150

PART Ⅱ SOURCES OF THE LAW 152

CHAPTER Ⅷ STATUTES 152

Legislatures 152

Various designations of statutes 153

Rules of bodies other than the State 155

"Autonomy" in German Law 158

Form of statutes 159

Generality of statutes 161

Foreign statutes 162

Enactment of statutes: Civil Law 162

English Law 167

In the United States 168

Interpretation of statutes 170

The Judge has the last word 171

Legislative intent frequently non-existent 172

Rules of construction for deeds and wills 173

Methods of interpretation of statutes 176

Rules of the Common Law 178

Interpretation of the Twelve Tables 180

Power of courts over statutes 181

When amendment is difficult, interpretation is free 183

Interpretation of compilations 186

Legislative interpretation 187

Desuetude of statutes 189

Civil Law 190

Common Law 193

English statutes in America 196

Desuetude of statutes in the United States 197

CHAPTER Ⅸ JUDICIAL PRECEDENTS 198

Precedents in general 198

Judicial Precedents as sources of Law 200

Roman Law 200

German Law 205

French Law 210

Scotch Law 210

English Law 211

The Year Books 213

Early reporters 215

Decisions in same or coordinate court 216

House of Lords bound by its own decision 217

Decision in higher court 217

Are decisions sources of Law? 218

Blackstone's theory 219

Historically judges make Law 224

Consequences of Blackstone's theory 226

Municipal bond cases 227

Sense in which rule must exist before decision 230

Decisions often change the Law 231

Mr. Carter's theory 233

Judge-made Law and the Sovereign 233

Law as created by custom 235

Often no custom before decisions 236

Part played by individual judges 239

CHAPTER ⅩJUDICIAL PRECEDENTS IN THE UNITED STATES 241

Decision in same or coordinate court 241

No court bound absolutely by its own decision 242

Decision in higher court 243

Decision in another State 243

English decisions 244

Decisions as sources of Law: Federal and State Courts 248

Swift v. Tyson 251

Inconsistent with any theory 254

Municipal bond cases 256

CHAPTER ⅪOPINIONS OF EXPERTS 260

Opinions of experts as sources of Law 260

Obiter dicta of Judges 261

Text writers 262

Comparative weight of different jurists: In the Civil Law 263

In the Common Law 266

Necessity of some authority besides statutes 267

Comparison of the Civil and the Common Law 268

Practical differences of method 272

Dangers of imaginary cases 276

Multitude of theories in the Civil Law 278

Advantages of judicial decisions as authorities 279

Increasing importance of the jurist 280

CHAPTER Ⅻ Custom 282

Custom as a source of Law 282

Mr. Carter's view 283

Custom is not opinion 285

Morality rather than custom the guide 287

Adjective Law independent of custom 291

Custom important: In interpretation 292

In questions of negligence 293

Judicial decisions most frequently lie at origin of Law 294

Miners' customs 296

Custom often arises from judicial decisions 297

Custom as evidence of the Law 299

Decisions often independent of custom 300

CHAPTER ⅩⅢ MORALITY AND EQUITY 302

Morality a necessary source of Law 302

Scope of term "morality" 303

Morality as a topic for Jurisprudence 303

The test of morality 305

Equity 307

Relation of Law to morality 308

APPENDIX Ⅰ PII USUS IN THE LATEB ROMAN EMPIBE 310

APPENDIX Ⅱ HEREDITAS JACENS 315

APPENDIX Ⅲ Reception of the Roman Law 320

APPENDIX Ⅳ Autonomy 325

APPENDIX Ⅴ Desuetude of Statutes in the United States 329