Index
Abstract promise [262], [263]
Acquisition
by creation [195]
by discovery [195], [201]
by occupation [196], [211]
civil [196-197]
derivative [207]
in Roman law [194-200]
Kant's theory of [210-213]
natural [195]
things not subject to [197]
Act, as basis of liability [158]
Acting at one's peril [167], [178]
Action
de deiectis et diffusis [162]
de recepto [162]
in factum [160]
in personam [151]
noxal [162]
Adjudication
administrative element in [122-123]
steps in [100]
Administration [108]
adjustment with law [137]
Administrative tribunals [130], [136]
Ames, James Barr [178]
Analogy, reasoning by [32]
Analysis [53]
Analytical application [123-125]
reasoning [105]
theory [53-54]
Anglo-Saxon Law [148]
Application of Law [100] ff.
agencies of individualizing [129-138]
analytical [123-125]
equitable [122], [126-129]
historical [125-126]
latitude of [120], [129]
margin of [112]
rules [142]
theories of [123-129]
Aquilian culpa [156], [159], [162]
Aquinas, St. Thomas [25-26]
Aristotle [25], [38], [76], [82], [138]
on application of law [109-110]
threefold classification of governmental powers [15]
Austin, John [172-174], [259]
Bacon [258]
Bailment [170], [270], [275]
Bartolus [37]
Baty, T. [166]
Bentham [54], [84]
Bergson [141]
Bills of Rights [43], [53], [216]
Binding [164]
Blackstone [26], [180], [208], [268], [278]
Buckland, W. W. [161]
Callings, restrictions on engaging in [88]
Camden, Lord [119]
Canon law [252], [254]
Carrier, liability of [186]
Casuists [254]
Catholic jurist-theologians [39]
Causa [259]
civilis [248], [250], [251]
debendi [251], [254], [255]
Causation [162], [164]
Certainty [142-143]
Change, reconciliation with stability [30], [38]
Cicero [27], [30], [31], [117]
Civilization, as a measure of value [98]
jural postulates of, [56], [169-179], [284]
Civil law, [237-240]
Classes, social, [91]
Codification, [46-47], [139-140]
Coke, Sir Edward, [133]
Commentators, the, [37]
Common Law, the, and legislation, [139-140]
professional view as to, [278]
types of delictal liability in, [168]
Community property, [229]
Composition, [149], [241-242]
Compromises, [94-95]
Conceptions, legal, [116]
Conditions "implied in law", [259]
Conduct, application of law to, [137-139]
expectations arising from, [189]
Consciousness, as starting point, [84]
Consideration, [240], [258-259], [267], [268], [271-273], [278-279]
adequacy of, [273-274]
circumstances keeping doctrine alive, [278-282]
in equity, [258-259], [277]
meanings of, [276-277]
meritorious, [259]
Contract
analogy of real transactions, [242]
Anglo-American law of, [257-259]
anomalies in law of, [282]
bargain theory of, [269], [271-273]
by estoppel, [187]
categories of, [248]
civil-law enforcement of, [238-240]
common-law categories of, [274-275]
common-law enforcement of, [240]
consensual, [249]
equivalent theory of, [255-256], [257-259], [269], [273-277]
Fichte's theory of, [261-262]
formal, [245-271]
Hegel's theory of, [263]
historical background of law of, [241] ff.
historical category of, [172]
historical theory of, [266-269]
injurious-reliance theory of, [261]
innominate, [249], [261]
Kant's theory of, [261]
metaphysical theories of, [260-265]
natural-law theory of, [260]
"natural principle of", [45-46]
objective theory of, [264-265]
oral, [282]
philosophy of, [253]
philosophical theories of, [241]
positive theory of, [265]
real, [249], [275]
religious origins of, [242-247], [252]
Roman categories of, [45], [253], [260], [266]
Romanist theory of, [263-265]
simple, [275]
specific enforcement of, [238-240]
Spencer's theory of, [265]
subjective theory of, [271]
theory of basis in personality, [263-265]
theory of inherent moral force, [259-260], [261]
third-party beneficiaries of, [273]
will theory of, [264-265], [269-271], [281-282]
Corpus Iuris Canonici, [252]
Court and jury, [111]
Courts, contest with Crown, [53]
Culpa, [170], [175]
abstract standard of, [177]
concrete standard of, [178]
contractual, [170]
delictal, [170]
Culpability [158]
as basis of liability [184]
fiction of [158], [178]
Custody [222-223]
D'Aguesseau [254]
Debt [174], [244], [275]
Defamation [280], [281]
Delicts, equitable [159]
historical category of [172]
nominate [162], [169-170], [175]
Demosthenes [22]
Depositum [249]
Derivative acquisition [207]
Derry v. Peek [281]
Dicey, A. V. [184]
Digest of Justinian [107]
Discovery [195], [201]
Discretion [117], [119], [129]
margin of [132]
of the chancellor [130-133]
relation of to rule [112], [141-143]
Dispensing power [113]
Distributions, Statute of [142]
Division of labor [56], [176], [191]
Doctor and Student [252], [259]
Doe, Chief Justice [185]
Dolus [156], [159], [169], [175]
Dominium [199], [225]
Due care [170], [175]
standard of [119-120]
Duguit, L. [98], [232]
Dumoulin [39]
Dunedin, Lord [276]
Duress [159]
Duties [173]
relational [85]
Economic interpretation [66-67], [179-180]
Eldon, Lord [47]
Empiricism, judicial [34], [283]
juristic [34]
End of law [54], [59-99]
as a measure of value [96]
Greek conception of [74-77]
ideals of as basis of juristic theories [71-72]
keeping the peace as [72-74]
maximum individual self-assertion as [84-87]
medieval conception of [78-80]
nineteenth-century conception of [83-85]
preserving social status quo as [74-81]
rise of new ideas as to [87-99]
Roman conception of [77-78]
theories of [72-99]
English juristic theory [64]
Englishmen, common-law rights of [43], [53]
Enterprises, conduct of [137-189]
Equality [82-85]
Equitable application of law [122], [126-129]
Equities [121]
Equity [28], [47], [57], [59], [117], [130-133], [137-138], [258-259], [271]
and natural law [41], [102], [112], [114], [153], [178]
of the tribunal [102]
provision for a child as consideration in [272], [274]
securing a creditor as consideration in [272]
settlement on a wife as consideration in [272], [274]
will not aid a volunteer [272]
Ethical interpretation [266]
Familia [200]
Fichte, theory of contract [261-262]
Fictions [102-108], [115]
dogmatic [179], [180], [274]
of culpability [178-179]
of negligence [179]
of representation [166], [179]
of undertaking [171]
Fiducia cum amico [249]
Fifth Amendment [51]
Finding law [100], [104-105]
Form and intention [154-155]
Formal contracts, [245], [271], [275]
historical origin of, [245-247]
Formal undertaking, [155]
Forms in primitive thinking, [247-248]
Formulas, elasticity of, [121]
Fortescue, [38]
Fourteenth Amendment, [51]
Freedom of contract, [191], [265], [267-269]
Freedom of industry, [191]
French Civil Code, [48], [162], [163]
law of delictal liability, [167-168]
monarchy, legal theory under, [64]
Functional attitude, [91]
Generalizations, [145]
General security, [72], [96], [149-150], [171], [175], [176], [179], [193], [282]
how infringed, [177]
Germanic law, [36], [41], [79], [251], [254]
Gifts, reformation of, [273]
Gloss, The, [37]
Glossators, [40]
Good faith, [153], [155], [157], [170]
corollaries of, [188-189]
Gray, J. C., [102]
Greek city, problem of order in, [75]
security of social institutions in, [75]
Greek law, [20-27], [151], [175]
Greek philosophers, conception of the end of law, [35], [74-77]
conception of the nature of law, [81]
conception of the general security, [74]
on subjects of litigation, [97], [241]
Grotius, [196], [205-207], [260]
Hammurapi, [60]
Hard bargains, [132]
Hegel, [84], [216], [274]
theory of contract, [262]
theory of property, [214-216]
Heraditus, [76]
Hindu law, [226-227], [243-245]
Hippodamus, [241]
Historical application of law, [125-126]
Historical categories, [172]
Historical school, [279]
Holmes, Mr. Justice, [166]
Household, partition of, [226-227]
Husband and wife, [188]
matrimonial property regime, [229]
Hybris, [77]
Idealism, juridical, [41-42], [91]
Idealistic interpretation, [266]
Imperium, [199]
"Implied" undertakings, [158], [171]
Individual free self-assertion, [54]
Individualization, [111], [113-114]
by juries, [133-134]
in criminal procedure, [138]
in punitive justice, [134-135]
judicial, [120-121]
moral element in, [137]
of penal treatment, [129-130]
Individual life, [96]
Inheritance, [139]
Innkeeper, liability of, [186]
Insult, [151]
Intention, [189]
as source of liability, [157]
Interdependence, [56]
Interdicts, [200]
Interests, [89-90]
compromises of, [94-95]
delimitation of, [192]
giving effect to, [90]
group, [225]
harmony of, [96]
individual, in promised advantages, [236]
intrinsic importance of, [95]
inventory of, [90]
of substance, [139], [237]
recognition of, [90], [192]
securing of [96], [97]
valuing of [89], [95-99]
weighing of [89], [94]
Interpretation [51-52], [100]
fiction of [102-108]
genuine [105], [124]
relation to law making [105]
Jessel, Sir George [268]
Judicial, contrasted with administrative [108]
Jural postulates [169-179], [188], [192-193], [193-194], [237], [249], [284]
Juridical idealism [41-42], [91]
Jurisconsults [30], [43-44]
Jurisprudence, problems of [111]
Juristic theories, nature of [69]
Jurists, metaphysical [52], [68]
search for the more inclusive order [145]
seventeenth and eighteenth-century [43-44]
Jurist-theologians [39]
Spanish [81-82], [83]
Jury [129], [133-134]
lawlessness of [138]
Jus [31]
Jus disponendi [221]
Just, the, by nature or by convention [25], [27], [31], [55]
Justice, Aristotle on [25], [77]
definition of in the Institutes [77]
executive [137]
idea of [65]
without law [102], [113]
Justinian, Institutes of [77-78]
Kant [84], [202], [219], [260]
theory of contract [260-261]
theory of property [210-214]
Kenyon, Lord [47]
Kin organization [74]
Laesio enormis [274]
Langdell, C. C. [259]
Law, adjustment with administration [137]
and morals [27], [30], [41], [111], [112]
application of [100] ff.
as an aggregate of rules [110]
as a body of agreements [63]
as a body of commands [64]
as a body of divinely ordained rules [60]
as a keeping of the peace [72-74]
as a reflection of divine reason [63]
as a system of principles [62], [66]
as custom [61], [62]
as declaratory of economic or social laws [67-68]
as precepts discovered by experience [65]
as recorded traditional wisdom [61]
as restraint on liberty [60]
as rules imposed by dominant class [66]
as standing between the individual and society [53]
as unfolding an idea of right [65]
basis of authority of [19], [23-24], [27], [28-29], [38], [69-72]
Byzantine theory of [110]
distinguished from rules of law [24]
elements of [115-116]
end of [35-36], [59] ff.
effectiveness of [193]
finding [100], [104-105]
forms of [27-28]
government of [136]
historical theory of [65], [68]
how far made [107-108]
idea of self-sufficiency of [17], [67]
judge made [35]
jurist made [35]
maturity of [48], [59], [102]
merchant [155], [271], [275]
nature of [59], [91], [111]
nature of theories of [68-69]
political theory of [68]
restatement of the [282]
science of [101]
soft spots in the [282]
theories of the nature of [60-68]
Law making, judicial [105]
presuppositions of [59]
Legal standards [51], [114], [116-120], [129], [141]
Legal transactions [153]
bonae fidei [248]
categories of [247]
formal [249]
stricti iuris [248]
Lending [150]
Letters of credit [275], [276-277]
Lex [31]
Lex Aquilia [159]
Liability, absolute [179]
act as basis of [158], [182]
analytical theory of [152-153]
as corollary of fault [163-164], [166], [168], [181], [187], [283-284]
basis of delictal [177]
delictal [163], [167-169]
elements of [162-163]
employer's [163]
fault as basis of [160], [163-164], [167]
for cattle going on vacant lands [180-181]
for injury by animal [163], [164], [180]
for injury by child [159]
for injury by minor [162]
for injury by a res ruinosa [162]
for injury by slave [159]
for intentional harm [168]
for negligence [175], [180]
for non-restraint of agencies [176]
for tort, basis of [167]
for tort, common-law theory of [168-169]
for trespassing cattle [180]
for unintended non-culpable harm [168]
for unintentional culpable harm [168]
for vicious animals [182], [186]
from culpability [184]
from legal transactions [187]
fundamentals of [174]
historical anomalies in [166], [179], [186]
in French law [161-164]
intention as basis of [157], [160]
justifiable reliance as basis of [189]
meaning of [147]
natural sources of [156]
noxal [159]
of carrier [186]
of innkeeper [159], [160], [186]
of master of ship [159], [160]
of stable keeper [159], [160]
on "implied" terms of transaction [170]
philosophical theories of [193-194]
primitive grounds of [149-151]
quasi-contractual [156]
quasi-delictal [156]
relational [186-188]
to make restitution [187]
theories of [148]
will-theory of [157], [177], [179], [189]
without fault [156], [162], [166], [177], [179]
Liberty [84-85]
idea of [65], [267]
idea of as source of liability [157]
law and [60]
Locke, John [208]
Lorimer, James [218]
Louis IX [128]
Magistrate, power of [112]
Maine, Sir Henry [208]
Mala prohibita [26]
Mandate [272]
Mansfield, Lord [47], [260], [262], [273]
Manu [60]
Maturity of law [48], [59], [102]
Maxims [34]
Metaphysical jurists [92]
Metus [159]
Middle Ages, conception of end of law in [78-80]
idea of law in [77-81]
juristic need in [36]
Miller, W. G. [216-217]
Mining customs [195]
law [201], [222]
Minos (pseudo-Platonic dialogue) [24]
Mosaic law [60]
Mutuum [249]
Narada [244]
Nationalism in law [39]
Natural, meaning of in philosophy of law [31-32]
Natural law [25], [31], [35], [40], [41], [45-52], [55], [154], [166], [209], [253], [278], [280]
American variant of [50]
as a theory of growth [33-34]
as deduced from "a free government" [52]
as ideal critique [52]
economic [205]
theory of [42]
Natural obligation [250]
Natural reason [202]
Natural rights [15], [42-43], [55], [83], [92-93], [146], [204], [205]
historical-metaphysical theory of [52]
theories of [44-45]
to produce of labor [209]
Nature, meaning of in Greek philosophy [31-32]
state of [45]
Necessary distinctions [172], [174]
Negative community [207]
Negligence [119-120], [165], [168], [177], [179], [270], [280]
fiction of [179], [180]
in speaking [280], [281]
per se [179]
Neo-Hegelians [94], [98]
Neo-Kantians [93], [98]
New York, Code of Civil Procedure [105]
Nexum [249]
Nomos, meanings of [22]
Noxal liability [159]
Nudum pactum [246], [254], [273], [280]
Oaths and vows [251]
Obligation, civil [252]
ex contractu [146], [172]
ex delicto [146], [172], [174]
ex uariis causarum figuris [16], [172]
meaning of [147]
moral basis of [250]
natural [250], [252-253]
nature of [145]
oaths as basis of [251-252]
quasi ex contractu [257]
religious [244]
will as basis of [250]
Occupation [196], [211]
as a legal transaction [213-214]
Office or calling, duties attached to [173]
Options [272], [274]
Ownership, analytical theory of [222-224]
development of the idea of [221-231]
dogma that everything must be owned [199]
things excluded from [199]
Pacta donationis [272]
Pacts [248], [250], [261], [275]
Partition [226-227], [228]
Part performance [282]
Paul, St. [77]
Peculium [227-228]
Pecunia credita [249]
Pedis possessio [222]
Penal treatment, individualizing of [129-130]
Penalty, for delict [149]
of reparation [149]
Personal government [135-136]
Personality [191]
Pessimism, juristic [57]
Petty courts [130], [138]
Philosophers, attempt to unify law and law making [19]
attempt to reconcile authority with need of change [19]
quest for an ultimate solving idea [19]
Philosophical thinking, achievements of in law [16-18]
as a force in administration of justice [16]
needs determining as to law [18]
possibilities of in law of contracts [284]
Plato [24], [76]
Pledge [251]
Political interpretation [266]
Positivism [54-56]
Possession [233-234]
Post-Glossators [37]
Pothier [45]
Primitive law [72-74]
faith of in verbal formulas [154]
Primogeniture [50]
Principles [34], [53], [116]
Procedure [111]
Proculians [196]
Promised advantages [191]
Promises, abstract [255], [262], [263]
an element in wealth [236]
exchange of [254]
"from ostentation" [256], [280], [281]
moral duty to keep [262]
philosophical theory of enforcing [283]
simple [275]
theories of enforcing [269-276]
theory of inherent force of [259-260]
Promissory oath [150-151], [251]
Property, acquisition of [194-200], [204]
analytical theory of [221-224]
basis in creation [209]
basis in division by agreement [205]
basis in economic nature of man [205], [209]
community [229]
effectiveness of law as to [193]
Grotius' theory of [205-207]
Hegel's theory of [214-216]
historical development of law of [224-232]
historical theory of [219], [221-232]
household [226-227], [229]
inequalities in [215], [221]
in natural media of life [201-202]
jural postulates of [193], [194]
Kant's theory of [210-214]
law of [141]
Lorimer's theory of [218]
medieval theory of [202]
metaphysical theories of [210-218]
modes of acquiring [194-202]
"natural" acquisition of [195]
natural-law theories of [204-210]
natural limits of right of [195]
negative community in [207]
philosophical theories of [194] ff.
positive theory of [219-221]
psychological theory of [209], [23], [234]
restrictions on appropriation of [88]
restrictions on use and disposition of [87-88]
self-acquired [227-228]
seventeenth-century theory of [202]
socialization of [233]
social-utilitarian theory of [225]
sociological theories of [232]
Spencer's theory of [219]
theories of [202-225]
theory of in Anglo-American law [208]
theory of in antiquity [202]
things not subject to [197]
titles to [195-197], [211]
twentieth-century theories of [232]
Protestant jurist-theologians [39]
Psychology [90], [94], [279-280]
Publicists, French [110]
Public utilities [117], [136]
exemption of from competition [88-89]
power to contract [187]
Pufendorf [207-208]
Punitive justice [111]
individualization of [134-135]
Quasi-delict [161], [162]
Ratio legis, doctrine of [32], [46]
Reason, excessive faith in [39], [46-47]
Reform movement, legislative [47], [85]
Relations [171]
duties attached to [173]
economic value of [192]
interference with [192]
legal protection of [193]
Release [272], [274]
Religion [242] ff.
Reparation [149]
Representation [179]
Res communes [197], [198], [199], [207], [210]
extra commercium [197], [201], [216], [217]
ipsa loquitur [180], [185-186]
nullius [199], [205]
publicae [198], [210]
religipsae [198]
ruinosa [162-163]
sacrae [198]
sanctae [198]
Responsibility at one's peril [167]
Right, idea of [65]
natural and conventional [15], [25-26], [31]
Rights, in personam [146]
in rem [147]
Roman conception of end of law [77-78]
jurisconsults [30], [43]
Roman law [26], [36], [41], [45], [105-106], [145], [151], [155], [170], [173-174], [195], [199], [200], [225], [228], [245-250], [254], [275]
as basis of medieval law [40]
as basis of law in XVII and XVIII centuries [41]
contribution of to legal philosophy [36]
Rousseau [214]
Rules [115-116]
adapted to commercial transactions [141]
adapted to property [141]
and discretion [141-143]
application of [142]
as guides [121]
mechanical application of [142-143]
Rylands v. Fletcher [168], [182-186]
Sabinians [196]
Sale [249]
Satisfaction of wants, as an ideal [98-99]
Savigny, F. C. von [213]
Scholastic philosophy [36]
permanent contribution of [38]
Seals [240], [271], [275]
contract under seal [255]
Security of transactions [193], [237]
Seisin [225]
Self help [73]
Seller's talk [280]
Separation of powers [102-103], [107]
Set off [250]
Social contract [204]
Social control [99], [225]
Social engineering [99]
Social ideal [56]
as a measure of values [98]
Social interdependence [232]
as a measure of values [98]
Social interests [99]
in peace and order [148]
in security of transactions [237]
Social laws [54-55]
Social order, feudal [79-80]
idealized form of the [35]
static [85]
Social sciences, unification of [91]
Social status quo, as end of law [35-36]
Social utilitarianism [92-98]
Socialists [209]
Society, Greek conception of [79]
jural postulates of civilized [169-179]
kin-organized [73-74]
medieval conception of [79]
Sociology [94]
Sophrosyne [77]
Sovereignty, Byzantine theory of [40]
Specification [195]
Specific performance [131-132], [238-240]
Spencer, Herbert [84], [97], [201], [265]
his law of equal freedom [219]
his theory of property [219-221]
Spirit and letter [154]
Standards, legal [51], [114], [116-120], [129], [141]
Stare decisis [140]
Status to contract [266]
Statute of Frauds [282]
Statute of Uses [277]
Stipulation [246]
of counsel [273], [274]
Stoics [197]
Strict law [33], [101], [112-113], [153], [155], [165], [280]
Substance, interests of [139], [225]
Super constitution [15], [51]
Symbols [248]
Teleology, legal [92]
Theories of law, elements in [70-71]
Third-party beneficiaries [273]
Title, by creation [195]
by discovery [195]
by occupation [196], [211]
"natural" [195]
"Tort of negligence" [105]
Torts [283]
development of liability for [164-167]
generalization of liability for [167]
law of [117], [167]
nominate [164], [165], [170], [175], [283]
Traditio [249]
Trust, constructive [173]
gratuitous declaration of [272], [274]
Twelve Tables [249]
Unjust enrichment [173], [187]
Utilitarians [267], [268]
Utility [53]
Value, criteria of [89], [95-99]
Vrihaspati [243]
Waiver [272], [274]
Wants, as juristic starting point [89-90]
limitations on satisfaction of [97-98]
satisfaction of [89-90]
Warranties [174], [249]
Whale fishing [195]
Will, as basis of liability [157], [169]
as basis of obligation [250]
as juristic starting point [84], [89]
Will theory [189]
of contract [264-265]
Williston, S. [282]
Wills, harmonizing of [84], [90], [92-93]
Workman's compensation [167]
STORRS LECTURES
Published by Yale University Press
The Reform of Legal Procedure. By Moorfield Storey.
The Judiciary and the People. By Frederick N. Judson.
Concerning Justice. By Lucilius A. Emery.
Woman's Suffrage by Constitutional Amendment. By Henry St. George Tucker.
The Nature of the Judicial Process. By Benjamin N. Cardozo.