Elements of Right and of Law: To which is Added a Historical and Critical Essay Upon the Several Theories of Jurisprudence

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Callaghan, 1887 - Jurisprudence - 382 pages
 

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Contents

Definition of the terms liberty and jural liberty
27
A right consists in the power to act facultas agendi and not in the restraint upon others
28
13i Division of private rights into rights in rem and in personam 14 The right of property the type of rights in rem 15 Analysis and definition of the...
29
This definition inapplicable to rights in
30
Rights also defined by Austin and Amos as consisting in lib erty 32 Hobbes definition of rights
31
Burlamaqui8 definition
33
Puffendorfs definition
34
Kants definition
35
Herbert Spencers definition
36
Cousins views as to the limit of liberty
37
Definitions of Leibnitz and Grotius
38
Remarks upon these definitions
39
CHAPTER IV
42
Substantial conformity in the moral convictions of man kind
43
The jurist not concerned with the philosophy of morality
44
The definition of right the adjective not essential
45
Observations upon the signification of the term
46
Of moral and of jural liberty
47
Of the relation of jurisprudence and deontology
48
Of the moral standard
49
Of conscience
50
Of positive morality or nomos
51
Substantial concurrence of different systems of positive morality
52
Of scientific morality
53
Of the method and first principles of scientific morality
54
Of the relation between positive and scientific morality
55
Scientific morality a true deductive science 57 Its practical end the reformation of positive morality CHAPTER V
56
The immediate problem to determine the exceptional cases in which liberty may be restrained
59
The rightful liberty of the individual limited only by rights of other individuals or of the state
60
The presumption always in favor of liberty
61
6265 The equality of jural liberty
62
Of the right to restitution and compensation
66
All rights originate in events
67
Investitive and divestitive events
68
Classification of events
69
7071 Of contracts
70
Of laws or legislative acts
72
Laws not principles of right but mere events
73
Their efficacy depends upon principles of natural right
74
Laws give rise to rights only where precedent rights in
75
legislator 76 These propositions true whatever may be the power
76
Laws analogous to contracts grants
77
government
78
Of customs
79
Of custom as an element of contract
80
Of custom as an element in delicts
81
Of the force of custom generally
82
Customs mere elements in the determination of rights
83
Reconcilement of natural right with laws and customs
84
Of the principle of utility
85
Of the limit to the application of this principle
86
Of the argumentum inconvenienti
87
Right divided into private and public
88
Definition of the state
89
Of the distinction between the state and the government
90
Classification of public rights
91
Of the social rights of the state
92
Of the right to the maintenance of the public security
93
Of the right to the maintenance of public morality
94
Of the right to the lands of the state
95
96 97 The right of personal liberty the cause of the social rights
96
Political rights consist in the right of government or coer cion
98
Of the rights of the government
99
Usual division of these rights
100
Of the corresponding departments of the several American governments
101
Another division of the rights of the government sug gested
102
The right of personal liberty the cause of political rights
103
Of the limit to the rights of the government
104
Of the ultimate principle of right
105
The principle of liberty necessarily assumed
106
Of the principle of utility
107
The limit to the judicial right of the state
108
Of indeterminate rights
109
Indeterminate jural relations generally determined by cus
111
Functions of the state with reference to indeterminate rights
112
113 114 Of the limit to this function
113
The function of judicial legislation extremely limited
115
Of the right of personal liberty or of selfownership
116
117 What included in this right
117
Injuries to this right
118
The right includes the right to use material things
119
120123 Of the limit to the right to use material things
120
Distinction between direct and indirect interference with personal liberty
122
Of direct interference with personal liberty
125
Indirect interference inevitable
126
127129 Of the limit imposed upon such interference by the principle of the equality of jural liberty
127
130 181 Qualification of this right
130
Of the right of property
132
The right of property derived from the fact of occupation
133
Of the nature of occupation
134
135 136 Distinction between things naturally existing and artificial products
135
137 138 Of the opinion of Grotius that a title to property can not be acquired by labor
137
1 Bracton 2 Fortes
138
Movable property in general produced by labor
139
Of the right of property in land
140
Right of the state to regulate appropriation of land
141
The state can not give an irrevocable property in lands
142
Limit to the right of the state to resume the ownership of private lands
143
Of the measure of such compensation
144
Of rights in rem growing out of the family relations
145
A right in rem consists essentially in the relation between the subject of the right and third persons
146
Of rights arising from delict or tort
154
Of the right to restitution
155
Of the right to compensation
156
Demonstration of this right
157
Analysis of injury and of restitution
158
Analysis of injury to property and of restitution
159
The utilities of different things commensurate
160
Distinction between things fungible and nonfungible
161
Of fungible things
162
Of nonfungible things
163
Of the money value of things
164
Of things having a peculiar utility
165
Of compensation for the use of a thing
166
Of compensation for consequential damages
167
Of compensation for injury to other rights in
168
Restitution in kind and restitution in value or compensa tion
169
Of obligations ex contractu
170
Blackstones definition of contract
171
Parsons definition
172
Another definition suggested
173
Whartons definition
174
Objection to this definition
175
The definition amended
176
And adopted
177
The effect of this definition
178
179 180 An objection to this view considered
179
Extent and cause of obligations ex contractu
181
The agreement not the cause of the obligation
182
Cause of the obligation consists in detriment suffered by obligee
183
Consideration or cause of the contract and cause of the obligation
184
The cause of such obligations
193
Illustrations of this proposition
194
Compensation for labor or expense upon the property of another
195
Subject of the book stated viz the American
196
Of the nature of municipal
197
Of the definition of the law as consisting of laws leges or statutes
198
Of its definition as custom
199
Of its definition as justice
200
These definitions defective The true definition to be sought
201
Of the function of courts of justice
202
Of civil and criminal jurisdiction
203
The civil and the criminal law distinguished
204
05 Of the criminal law 206 The civil law defined and divided into the law of civil procedure and the law of private right
206
207212 Of the law of civil procedure
207
Of the definition of the law of private right
213
Definition of actions
214
Of the maxim Ubi jus ibi remedium
215
Rights and actions the two principal subjects of private right
216
217 218 Relation between rights in rem rights in personam and actions
217
Division of obligations and actions into ex contractu and ex delicto
219
220 Another division suggested viz into vindicative and commutative
220
Corresponding division of actionsinto actions in rem and in personam
221
Objection to the use of the terms actions in rem and in personam
222
223 The terms vindicative and commutative more
223
propriate 224 Division of actions in rem into restitutive and preventive 225 Actions in personam either actions for specific perform ance or compen...
225
Examples of the different kinds of actions
226
Division of actions into legal and equitable
227
Rights and actions and the corresponding sciences distin guished
228
Definition of right
229
Definition of
230
Original sense of the term
231
The term jus in its widest sense equivalent to the
232
Definition of jurisprudence
233
Right equivalent to justice and therefore a branch of morality
234
The problems presented by jus and right essentially dif ferent
235
These problems however intimately and indissolubly con
236
The correspondence between rights and actions necessarily
238
Of the definition of jus as the art of right
244
nected
245
The jus civile evanescent it its nature
249
Distinction between reasoning from principle and from
253
Illustrations of this proposition
262
391 Definition of these terms
263
Generally deleterious when based upon other grounds
267
Of the limit of the function of judicial legislation with re spect to actions
268
The problem purely historical
269
270 271 Of the theory of the American law on this point
270
The views of Aristotle adopted by the Roman lawyer
271
Of the nullification of unconstitutional laws by the courts
272
In America sovereignty vested in the courts
273
274276 Of the practical working of the American theory
274
The decision of the state within certain limits conclusive
277
Such legislation when erroneous does not affect rights but actions only
278
Illustration of this principle
279
Of the theory that judicial precedents are a species of
280
281283 Two propositions involved in this theory
281
Erroneous rules may be established by the force of prece dents
284
Such rules do not affect rights but actions merely
285
Precedents mere elements in the determination of rights
286
Conclusionjurisdiction in its nature a general power to administer justice
287
CHAPTER V
288
Of the practical importance of the distinction
289
290 291 A denial of the distinction subversive of morality
290
The distinction essential to the practical administration
292
of justice 293 The distinction essential also with reference to method
293
294 295 Past development of the law the result of this dis tinction
294
Its observance essential to the future development of the
296
297 The maxim Ubijus ibi remedium still received in the
297
The scientific method not consistently followed by the law yers
298
Resulting confusion and uncertainty in the
299
300301 And in the administration of justice
300
302 303 The adoption of the scientific method the only prac tical remedy
302
This method essential to the administration of justice
304
S05 And also to the cognoscibility of the law 306 The way prepared for the adoption of this method by the abolition of forms of action
306
The method peculiarly adapted to the American
307
The English law developed in the main by the courts
308
Of the courts of law and the court of equity
309
Corresponding division of the law into law and equity
310
History of the law consists in history of these courts
311
312 313 Jurisdiction of the courts derived from jurisdiction of the king
312
314 315 This principle true only of the historical origin of jurisdiction
314
True rights may arise out of slavery
315
The jurisdiction of the courts originally a mere temporary delegation of power from the crown
316
Of the county courts
317
Of the justices in eyre
318
The general administration of justice vested in the aula or curia regis
319
Of the history and constitution of this court
320
321 Of the functions of this court
321
Of the establishment of the court of exchequer
322
Of the establishment of the court of common pleas
323
Of the establishment of the court of kings bench
324
Of the jurisdiction of these courts
325
Of the development of the law down to the end of the reign of Edward I
326
Of the old Saxon
327
The Saxon law gradually disused after the Conquest
328
Of the contrary opinion of the lawyers
329
330331 The English common law originated with the Norman
330
The jurisdiction of the king originally general power to administer justice or right
332
The jurisdiction of the courts originally confined to par ticular cases referred to them by the king
333
Of the nature of the original writ
334
courts
335
This function strictly judicial
337
His function in this respect identical with that of the praetor under the Roman rule
338
Difference in other respects between their functions
339
Jurisdiction of the courts and of the chancellor mutually restrictive
340
Modification of jurisdiction resulting from this and from the doctrine of stare decisis
341
Corresponding modification of the
342
The law thus modified inadequate to the purposes of jus tice
343
The essential nature of the law not changed
344
In the main still rational in its character
345
Influence of the Roman law in the development of the English
346
The law then existing consisted mainly of the law of actions
347
The existence of the principles of natural right as part of the law necessarily assumed
348
Illustrations of this proposition
349
The existence of nonactionable rights recognized by the statute of Westminster 2
350
This act inadequate in its operation
351
Hence the law still continued inadequate to the adminis tration of justice
352
The law developed by the courts only part of the
353
354 355 Of the establishment of the court of ehancery
354
Its jurisdiction general to administer justice
356
Its exercise originally governed by natural right
357
358 353 Of the opinion that equity has since the chancellor
358
Of the reconcilement of individual and general utility 559 Of the method adopted by Bentham for this purpose 560 The remainder of Benthams arg...
360
It is the function of the court to determine and enforce
367
ship of Sir Heneage Finch undergone an essential change of nature
369
CHAPTER VIII
371
Jurists pass habitually and unconsciously from one school
375
Historical sketch of the jural theory
382
The same essential notion according to his view connoted
388
Of the influence of the doctrine of stare decisis upon the development of equity
398
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Page 369 - Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do.
Page 183 - We know of no case, in which a legislative act to transfer the property of A to B, without his consent, has ever been held a constitutional exercise of legislative power in any State in the Union. On the contrary, it has been constantly resisted as inconsistent with just principles, by every judicial tribunal in which it has been attempted to be enforced.
Page 133 - This kind of equitable action to recover back money, which ought not in justice to be kept, is very beneficial, and therefore much encouraged.
Page 296 - This natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature...
Page 240 - Truth, crushed to earth, shall rise again; The eternal years of God are hers; But Error, wounded, writhes in pain, And dies among his worshippers.
Page 290 - And this is another strong argument in law, nihil quod est contra rationem est licitum ; for reason is the life of the law, nay, the common law itself is nothing else but reason...
Page 25 - FOR the principal aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature ; but which could not be preserved in peace without that mutual assistance and intercourse which is gained by the institution of friendly and social communities. Hence it follows, that the first and primary end of human laws is to maintain and regulate these absolute rights of individuals.
Page 295 - And first of all, the science of jurisprudence, the pride of the human intellect, which, with all its defects, redundancies, and errors, is the collected reason of ages, combining the principles of original justice with the infinite variety of human concerns, as a heap of old exploded errors, would be no longer studied.
Page 81 - The powers of the government of the state of California shall be divided into three separate departments: The legislative, the executive, and judicial; and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any functions appertaining to either of the others, except in the cases hereinafter expressly directed or permitted.
Page 183 - It may well be doubted whether the nature of society and of government does not prescribe some limits to the legislative power; and if any be prescribed, where are they to be found, if the property of an individual, fairly and honestly acquired, may be seized without compensation?

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