《THE NATURE AND SOURCES OF THE LAW》

PART ⅠNATURE OF THE LAW1

INTRODUCTION1

Analytic study of legal conceptions1

Classification and definition3

Value of concrete instances4

CHAPTER ⅠLEGAL RIGHTS AND DUTIES7

Rights and duties in general7

Ambiguity of word "right"8

Relation of public opinion to rights9

Legal rights and duties12

Legal and moral rights12

"Legal duty"15

The term "just"16

Protected interests and rights17

Ways of protecting interests19

Right to a defence20

Intervention of administrative officers22

Free will and legal rights23

Free will and legal duties24

CHAPTER ⅡLEGAL PERSONS27

The term "person"27

Normal human beings28

Abnormal human beings29

Fictions in the Law30

In the Common Law31

Disuse of fictions35

Dogmatic fictions36

Attribution of will to abnormal human beings37

Unborn children38

Supernatural beings39

Animals as having rights42

Animals as subject to duties44

Inanimate things as having rights46

Inanimate things as subject to duties46

Juristic persons49

Corporations50

Is a corporation a real thing?52

Has a corporation a real will?54

Creation of corporations56

Corporations sole57

Stiftungen58

The fiscus60

Hereditas jacens61

Ihering's doctrine of passive rights61

CHAPTER ⅢTHE STATE65

The State an artificial person65

Creators of the State67

Power of the State69

Theory of divine origin of the State70

"Might is right"71

The social contract72

Sovereignty74

In the United States76

Idea of a Sovereign unnecessary79

Legal rights of the State79

Partial exercise of power to create rights81

CHAPTER ⅣTHE LAW84

Definition of the Law84

Law as the command of the Sovereign85

"A Law" and "The Law"87

Law in the consciousness of the people89

Opinions of jurists90

Judges as discoverers of the Law93

Only what the Judges lay down is Law93

Questions not previously decided96

No Law previous to decision98

Courts make ex post facto Law99

Law and the Natural Sciences101

Decisions as conclusive evidence of the Law101

Law distinguished from other rules for conduct104

The Law not always obeyed105

The Law consists of rules made by the State107

Laws of bodies other than the State108

The Church of England109

General administrative rules are laws110

CHAPTER ⅤThe Coubts113

Office of a Judge113

Power to enforce decisions not essential115

Difference ot opinion between courts116

Independent coordinate courts118

Independent courts for different matters118

Courts with limited right of appeal119

Limits of judicial power121

Indication of sources of Law123

Statutes as a source of Law124

CHAPTER ⅥTHE LAW OF NATIONS128

Relation between nations126

"International Law"127

"Private International Law"128

Is International Law really Law?130

Law in becoming131

CHAPTER ⅦJUBISPBUDENCE133

Particular Jurisprudence133

Comparative Jurisprudence134

General Jurisprudence135

Supposed necessary principles of Law136

Deontological or ethical element139

Ethical element necessary141

Ethical element in Comparative Jurisprudence143

Jurisprudence as a purely formal science144

Essence of Jurisprudence is method147

Principles common to two systems148

Historical Jurisprudence150

PART ⅡSOURCES OF THE LAW152

CHAPTER ⅧSTATUTES152

Legislatures152

Various designations of statutes153

Rules of bodies other than the State155

"Autonomy" in German Law158

Form of statutes159

Generality of statutes161

Foreign statutes162

Enactment of statutes: Civil Law162

English Law167

In the United States168

Interpretation of statutes170

The Judge has the last word171

Legislative intent frequently non-existent172

Rules of construction for deeds and wills173

Methods of interpretation of statutes176

Rules of the Common Law178

Interpretation of the Twelve Tables180

Power of courts over statutes181

When amendment is difficult, interpretation is free183

Interpretation of compilations186

Legislative interpretation187

Desuetude of statutes189

Civil Law190

Common Law193

English statutes in America196

Desuetude of statutes in the United States197

CHAPTER ⅨJUDICIAL PRECEDENTS198

Precedents in general198

Judicial Precedents as sources of Law200

Roman Law200

German Law205

French Law210

Scotch Law210

English Law211

The Year Books213

Early reporters215

Decisions in same or coordinate court216

House of Lords bound by its own decision217

Decision in higher court217

Are decisions sources of Law?218

Blackstone's theory219

Historically judges make Law224

Consequences of Blackstone's theory226

Municipal bond cases227

Sense in which rule must exist before decision230

Decisions often change the Law231

Mr. Carter's theory233

Judge-made Law and the Sovereign233

Law as created by custom235

Often no custom before decisions236

Part played by individual judges239

CHAPTER ⅩJUDICIAL PRECEDENTS IN THE UNITED STATES241

Decision in same or coordinate court241

No court bound absolutely by its own decision242

Decision in higher court243

Decision in another State243

English decisions244

Decisions as sources of Law: Federal and State Courts248

Swift v. Tyson251

Inconsistent with any theory254

Municipal bond cases256

CHAPTER ⅪOPINIONS OF EXPERTS260

Opinions of experts as sources of Law260

Obiter dicta of Judges261

Text writers262

Comparative weight of different jurists: In the Civil Law263

In the Common Law266

Necessity of some authority besides statutes267

Comparison of the Civil and the Common Law268

Practical differences of method272

Dangers of imaginary cases276

Multitude of theories in the Civil Law278

Advantages of judicial decisions as authorities279

Increasing importance of the jurist280

CHAPTER ⅫCustom282

Custom as a source of Law282

Mr. Carter's view283

Custom is not opinion285

Morality rather than custom the guide287

Adjective Law independent of custom291

Custom important: In interpretation292

In questions of negligence293

Judicial decisions most frequently lie at origin of Law294

Miners' customs296

Custom often arises from judicial decisions297

Custom as evidence of the Law299

Decisions often independent of custom300

CHAPTER ⅩⅢMORALITY AND EQUITY302

Morality a necessary source of Law302

Scope of term "morality"303

Morality as a topic for Jurisprudence303

The test of morality305

Equity307

Relation of Law to morality308

APPENDIX ⅠPII USUS IN THE LATEB ROMAN EMPIBE310

APPENDIX ⅡHEREDITAS JACENS315

APPENDIX ⅢReception of the Roman Law320

APPENDIX ⅣAutonomy325

APPENDIX ⅤDesuetude of Statutes in the United States329