Practical Jurisprudence: A Comment on Austin - Edwin Charles Clark - Google Books

Books

CONTENTS.

Jurisprudence. Uses of the historical study of Roman Law. Historical
and Analytical Jurists. Scheme of the present volume. Books referred to.

PART I. pp. 11-195.

THE DEFINITION AND ORIGIN OF LAW.

Unconscious definition as shewn in early names of law.

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Early names of Law: Roman. Jus not jussum. True derivation of jus.

Early usage of jus. Judex and judicare. Summary. Jura. Jus=right.

Derivation of Jus=right. Justus.

Early names of Law: Roman (continued). Lex. Derivation of lex.

Lex publica, legare, lex mancipi. Summary as to lex and lex publica. Lex=

Early names of Law Greek. Antiquity of Hellenic literature.

θέμιστες. Summary. δίκη in early usage. Derivation of δίκη. νόμος or

vouós. Conclusion.

Early names of Law: Teutonic. Moeso-Gothic: Witoth. Early English
laws. æ, domas, asetnissa. a. Dom. Dom-boc. Domas and θέμιστες.
Law, lagu, laga. Lagu, "Common law." Common law from folc-riht.
Modern meanings of "common law." Conclusion.

Early names of Law: Right and Wrong. Austin's Right and Wrong.
Blackstone. Derivation of Right. Relation of Right to rex, &c.
of Wrong, &c. Right and Wrong. Summary. Droit and Tort.

Derivation

Unconscious definition: Summary. Pervading idea of Law. Austin's

Definitions of Law. Unsatisfactory character of Definitions. Chrysippus.

Demosthenes. Papinian, Bracton, Plato, Aristotle. Cicero. Modern defi-

nitions. Grotius. Hobbes. Austin.

Definition Law as a rule of human conduct. Blackstone. Montes-

quieu. Hooker. Austin. Ulpian. Generality of a rule. Capito. Black-

Definition Law as to the motive for obedience. An ulterior motive to

action. Motive, what? The Law of Nature. Austin's Law of Nature.

Philosophical Law of Nature. Paulus. Modern Emotional Intuitionism.

Grotius. Hobbes. Blackstone. Bentham's Physical Sanctions. Utilita-

rianism. Summary.

Definition : Law as to its Sanction.

Grotius' Voluntary law. Grotius

compared with Hobbes and Blackstone. Law of God not law in the ordinary
Positive law, what? Sanction not remuneratory. Explanation of

the term Sanction. Conclusion.

Definition: Austin. Law proper, positive, and strictly so called. Positive

moral rules proper and improper. Conclusion.
pp. 135-140

Law, as between the Elements of a State. State or Nation. The Social

Contract: Grotius, Hobbes. The Family. From Family to Gens. Austin's

subordinate political society. General course of national or political associa-

tion. First common rules of conduct. The popular Assembly. The Council

and Judges. Sir H. Maine.

Law, as between the Members of a State. What constitutes a State?

Sovereignty of all impossible. Sovereign not necessarily sole. Sovereignty

not primary or original. Analysts' definition good, for a fully formed State.

Origin of Legislation. Subdivision of Sovereignty. Definition of a State.

The objection to Austin's definition of Law. Customary and Constitutional

Law. Blackstone's Municipal Law. Conclusion. "Civil" or Municipal

Law. Ambiguous meaning of "Sovereign."

Law, as between States. International Law Ancient and Modern.

Amphictionies. Fetiales. Jus Gentium. Name of International Law.

Public and Private International Law. Law or not Law. Hobbes.

Grotius. Blackstone. Austin on International Law. Practical sanctions

of International Law.

Definition of Law: Conclusion. The general object of Law. The Sanc-

tion of Opinion. Locke. Law in and between States. "Laws" of Honour

PART II., pp. 196–394.

THE FORM OF LAW.

Source, Mode and Form.

Austin's Sources and Modes. Written and

Unwritten Law. The "Modes in which Law begins and ends." Form of

Statute Law. English Statutes. Faults of classification by "Sources."

1. "Source" properly legislative. 2. Legislation by a judicial "Source."

Conclusion. Austin's Statute Law. Actual Enactment. Publication.

Case-Law: its general character, history and authority. Case or "ju-

diciary" Law. Authority of Case-Law with the Romans. Cicero. Digest.

Imperial Constitutions. Blackstone on the Rescripts. Authority of modern

Special Characteristics of Case-Law: the Grounds of Judicial Decision.

Hale's Constituents of the Common Law. Application of existing rules.

Interpretation Authoritative or Doctrinal. Mode and means of Interpreta-

tion. Context. Ratio Legis. Intrinsic Merit. Spurious Interpretation.

Austin on Spurious Interpretation. Its history. The term Equity as

applied to Interpretation. The "Reason of the thing" or Equity. Pre-

cedents.
pp. 227-246

Special characteristics of Case-Law: the Application of a Precedent.

Austin's Judiciary Law. Practical application of Precedents. Cessante

ratione legis, cessat lex ipsa. Analogy. Competition of opposite ana-

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