Introductory material
Reading edition
xvii
VOLUME II
ESSAY IX
Obedience 1-48
Different Theories of the Nature of Political Obedience 1
The grounds of compliance in general: Indolence 6
Deference and Sympathy 9
Reason and Fear 12
Respective strength of these springs of Obedience 14
Will as a political force: Illustrations from the East 15
Formation of the habit of Obedience in the individual 19
Influences forming Obedience in early societies 21
Slight interest of men in liberty for its own sake 24
Is the tendency to obey likely to decrease? 26
Influences apparently making for subordination 28
What may be hoped for the future of democratic government 31
How a pessimist might view existing conditions 33
Conclusion: The disposition to obey will be permanent 41
Note on the application to the definitions of Jurisprudence of a theory of Obedience 44
ESSAY X
The Nature of Sovereignty 49-111
Confusions regarding the term Sovereignty 49
Sovereignty de iure and de facto must be distinguished 51
Sovereignty de iure exists in the sphere of law only, and is not concerned with obedience 56
Sovereignty de facto: concrete instances 59
Relations of Sovereignty de iure to that de facto 64
Action and reaction of each on the other 68
The Roman doctrine of Sovereignty: the people are the source of political power 73
Mediaeval views of Sovereignty: Emperor and Pope 79
New theories of the sixteenth and seventeenth centuries 82
Bodin, Althaus, Hobbes 84
Relation of Hobbes’ system to the events of his time 86
Bentham revives Hobbes’ doctrine 88
xviiiViews of John Austin: illustrations of their unsoundness 89
Confusion of various questions regarding Sovereignty which are really distinct 94
Rights in the moral sphere of Sovereignty de iure and Sovereignty de facto 98
Sovereignty in International Relations 101
Sovereignty in a Federation 104
Conclusion: Theoretical Controversies regarding Sovereignty have mostly had their origin in current politics 108
ESSAY XI
The Law of Nature 112-171
Origin of the notion of Nature as a ruling force 112
It is different from modern conception of the Laws of Nature 117
Nature as a force in human society 120
The term ‘Natural’ as applied to Customs and Laws 122
St. Paul and the Greek philosophers on Natural Law 124
The Roman Law of the Nations (Ius Gentium) 128
How the ‘common law of the nations’ was formed 131
Cicero on the Law of the Nations and Law of Nature 135
Growth of the idea of Natural Law among the jurists 138
Practical identification of Ius Gentium and Ius Naturae 142
Points of difference which remained: Slavery 144
Extension of Roman citizenship removes the need for a Ius Gentium 147
Senses in which the jurists use the term ‘Nature’ 148
Value and practical influence of the notion of Natural Law 151
The Law of Nature and Law of God in the Middle Ages 157
The Law of Nature in Modern Times 161
Its relation to the Law of England 164
Its influence on the rise of International Law 167
‘Natural Law’ as meaning a Philosophy of Law 169
Conclusion: Comparative quiescence of the idea in recent times 170
ESSAY XII
The Methods of Legal Science 172-208
No Philosophy of Law among the Roman Jurists; is such a Philosophy necessary or serviceable? 172
Four Methods employed in Legal Science 174
xixThe Metaphysical Method: German Naturrecht 174
The Analytic Method: the Benthamites 178
Errors in John Austin’s use of it 180
The Historical Method 184
The Comparative Method 186
Value of these four Methods respectively 190
How they may best be applied to Legal Study 193
Did the Romans suffer from having no general Philosophy of Law? 197
Merits observable in the Roman Jurists: comparison of their treatises with those of English lawyers 199
Summary: The Roman Jurists are philosophical in spirit and in their practical handling of law 207
ESSAY XIII
The Relations of Law and Religion 209-246
Apparent Antagonism of Law and Religion 209
Close connexion of Law and Religion in early states of Society 211
Differences in this respect between different peoples 215
The Jews in Roman times: primitive Christianity 216
Islam; identification of Law with Religion 218
Illustrations from a Musulman University: the Mosque El Azhar at Cairo 219
Description of El Azhar and its Teaching 220
Course of Instruction: Graduation: Endowments 225
Resemblances of El Azhar to the European Universities of the Middle Ages 229
Causes of the arrested development of Musulman Universities 233
Nature and consequences of the Musulman identification of Law and Religion 234
Identity of State and Church under Islam 240
How Christianity avoided a similar identification 242
ESSAY XIV
Methods of Law-making in Rome and in England 247-338
Relations of the History of Law to the Constitutional or Political History of a Country 247
Law-making Authorities in general 249
xxThree main sources of Law: the Ruling Authority, the Magistrate, and the Legal Profession 253
The Jurists as makers of Law in earlier times 255
Changed position of the Jurists under the Empire 257
Differences between the action of Roman and English Jurists 261
Roman Treatises compared with English Reports 266
Magistrates and Judges: in what sense Law-makers 269
The Praetor at Rome 273
Nature and Working of the Praetor’s Edict 275
The English Chancellor 278
Praetorian Edicts compared with English Case-Law 281
Further observations on Praetorian methods 287
Strong and weak points in the English Case-System 289
Direct Legislation at Rome: its Organs 293
The Popular Assembly: its method of legislating 297
Merits of the Roman Statutes 300
Legislation by the Senate: its characteristics 303
Direct legislation by the Emperor 308
Vast powers of the Emperor: his Privy Council 313
Defects in Imperial legislation 315
Profusion and inferiority of legislation under the later Emperors 318
Direct legislation in England: its history 321
Advantages of Parliament and Congress for legislation 323
Strictures commonly passed on English and American Statutes 325
Difficulties incident to Parliamentary legislation 327
Reflections suggested by the history of English compared with that of Roman legislation 332
Some branches of law better fitted than others to be handled by direct legislation 333
ESSAY XV
The History of Legal Development at Rome and in England 339-380
Roman and English Law have both been developed in a comparatively independent way 339
Conspicuous epochs of legal change at Rome and in England 341
Forces and influences chiefly active in determining legal changes 344
Roman Legal History during the republican period 345
xxiEffect on the law of the establishment of the imperial autocracy 350
Rise of Christianity: dissolution of the Empire in the West 352
The decline in legal learning induced Codification 354
Political events and External Influences are the chief sources of changes in Roman Law 357
Causes of legal change operative in England: the periods of Henry II and Edward I 358
The Reformation and the Civil War 361
The Reform Act of 1832 and the Victorian Epoch 364
The Law of Family and Inheritance at Rome and the Law of Land in England 367
Effects of Territorial Expansion on Roman and on English Law 369
Economic influences more generally potent in England: political in Rome 371
Observations on France and Germany 375
Private law is the branch least affected by political changes 377
Legal topics in which further advances may be looked for 379
ESSAY XVI
Marriage and Divorce in Roman and in English Law 381-474
Diversity of the Law of Marriage in different countries 381
Features generally characteristic of the institution in the ancient Mediterranean World 383
Early Marriage law of the Romans 386
Subordination of the Wife: the ‘Hand Power’ (Manus) 387
Transition to a freer system 389
Later Marriage Law: nature of the personal relation it creates 392
Relation of the Consorts as respects Property 395
General character of the Roman Conception of Marriage: its freedom 400
Roman doctrine and practice regarding Divorce 402
Influence of Christianity on Imperial Legislation 406
Other Roman rules: prohibited degrees: Concubinatus 409
Marriage under the Canon Law 416
The English Law: jurisdiction of the Spiritual Courts 420
Relations of the Consorts as respects Property under English Law 424
Amendment of English Matrimonial Law by courts of Equity and by Legislation 427
Personal Liberty of the Wife now well established 430
xxiiEnglish law has wavered between different theories of the relation 431
Divorce under the Canon Law 433
History of Divorce in England 436
Divorce Laws in the United States 439
Laxity of Procedure in Divorce Cases 441
Statistics of Divorce in the United States: causes for which it is granted 443
Illustrations from the ‘Western Reserve’ counties of Ohio 446
Divorce in modern European countries 450
Comparison of the phenomena of Divorce in the Roman and in the Modern World 453
Causes now tending to weaken the permanence of the Marriage Tie 457
Does the growth of Divorce betoken a moral decline? 461
Influence of the Church and of the Law 464
Does the English Divorce Law need amendment? 465
Changes in Theory and in Sentiment regarding Marriage 469
Inaugural Lecture 475
Valedictory Lecture 504
Index 527
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