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Studies in history and jurisprudence, volume 1 (of 2)

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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