J. W. S.
Adelaide,
March 1902
PREFACE TO THE FOURTH EDITION
This edition is substantially a reprint of the third, which was published in 1910.
J. W. S.
London,
May 1913
CONTENTS
| CHAPTER I | ||
| THE SCIENCE OF JURISPRUDENCE | ||
| PAGE | ||
|---|---|---|
| § 1. | Jurisprudence as the Science of Law | [1] |
| § 2. | Jurisprudence as the Science of Civil Law | [3] |
| § 3. | Theoretical Jurisprudence | [4] |
| § 4. | English and Foreign Jurisprudence | [7] |
| CHAPTER II | ||
| CIVIL LAW | ||
| § 5. | The Definition of Law | [9] |
| § 6. | The Administration of Justice | [10] |
| § 7. | Law logically subsequent to the Administration of Justice | [12] |
| § 8. | Law and Fact | [15] |
| § 9. | The Justification of the Law | [19] |
| § 10. | The Defects of the Law | [23] |
| § 11. | General and Special Law | [28] |
| § 12. | Common Law | [32] |
| § 13. | Law and Equity | [34] |
| CHAPTER III | ||
| OTHER KINDS OF LAW | ||
| § 14. | Law in General—A Rule of Action | [40] |
| § 15. | Physical or Scientific Law | [41] |
| § 16. | Natural or Moral Law | [43] |
| § 17. | Imperative Law | [47] |
| § 18. | Conventional Law | [54] |
| § 19. | Customary Law | [55] |
| § 20. | Practical Law | [56] |
| § 21. | International Law | [56] |
| § 22. | The Law of Nations as Natural Law | [59] |
| § 23. | The Law of Nations as Customary Law | [60] |
| § 24. | The Law of Nations as Imperative Law | [61] |
| CHAPTER IV | ||
| THE ADMINISTRATION OF JUSTICE | ||
| § 25. | Necessity of the Administration of Justice | [65] |
| § 26. | Origin of the Administration of Justice | [67] |
| § 27. | Civil and Criminal Justice | [70] |
| § 28. | The Purposes of Criminal Justice: Deterrent Punishment | [75] |
| § 29. | Preventive Punishment | [75] |
| § 30. | Reformative Punishment | [76] |
| § 31. | Retributive Punishment | [80] |
| § 32. | Civil Justice: Primary and Sanctioning Rights | [84] |
| § 33. | A Table of Legal Remedies | [87] |
| § 34. | Penal and Remedial Proceedings | [88] |
| § 35. | Secondary Functions of Courts of Law | [89] |
| CHAPTER V | ||
| THE STATE | ||
| § 36. | The Nature and Essential Functions of the State | [93] |
| § 37. | Secondary Functions of the State | [98] |
| § 38. | The Territory of the State | [99] |
| § 39. | The Membership of the State | [99] |
| § 40. | The Constitution of the State | [105] |
| § 41. | The Government of the State | [110] |
| § 42. | Independent and Dependent States | [111] |
| § 43. | Unitary and Composite States | [114] |
| CHAPTER VI | ||
| THE SOURCES OF LAW | ||
| § 44. | Formal and Material Sources | [117] |
| § 45. | Legal and Historical Sources | [117] |
| § 46. | A List of Legal Sources | [120] |
| § 47. | The Sources of Law as Constitutive and Abrogative | [123] |
| § 48. | Sources of Law and Sources of Rights | [124] |
| § 49. | Ultimate Legal Principles | [125] |
| CHAPTER VII | ||
| LEGISLATION | ||
| § 50. | The Nature of Legislation | [127] |
| § 51. | Supreme and Subordinate Legislation | [129] |
| § 52. | Relation of Legislation to other Sources | [132] |
| § 53. | Codification | [136] |
| § 54. | The Interpretation of Enacted Law | [137] |
| CHAPTER VIII | ||
| CUSTOM | ||
| § 55. | The Early Importance of Customary Law | [143] |
| § 56. | Reasons for the Reception of Customary Law | [144] |
| § 57. | The Requisites of a Valid Custom | [146] |
| § 58. | Conventional Custom | [153] |
| § 59. | Theories of Customary Law | [154] |
| § 60. | Custom and Prescription | [157] |
| CHAPTER IX | ||
| PRECEDENT | ||
| § 61. | The Authority of Precedents | [159] |
| § 62. | Declaratory and Original Precedents | [160] |
| § 63. | Authoritative and Persuasive Precedents | [163] |
| § 64. | The Absolute and Conditional Authority of Precedents | [164] |
| § 65. | The Disregard of a Precedent | [165] |
| § 66. | Precedents Constitutive, not Abrogative | [168] |
| § 67. | Grounds of the Authority of Precedents | [170] |
| § 68. | The Sources of Judicial Principles | [174] |
| § 69. | Respective Functions of Judges and Juries | [176] |
| CHAPTER X | ||
| LEGAL RIGHTS | ||
| § 70. | Wrongs | [179] |
| § 71. | Duties | [180] |
| § 72. | Rights | [181] |
| § 73. | The Elements of a Legal Right | [185] |
| § 74. | Legal Rights in a wider sense of the term | [190] |
| § 75. | Libertie | [190] |
| § 76. | Powers | [192] |
| § 77. | Duties, Disabilities, and Liabilities | [194] |
| CHAPTER XI | ||
| THE KINDS OF LEGAL RIGHTS | ||
| § 78. | Perfect and Imperfect Rights | [197] |
| § 79. | The Legal Nature of Rights against the State | [199] |
| § 80. | Positive and Negative Rights | [201] |
| § 81. | Real and Personal Rights | [202] |
| § 82. | Proprietary and Personal Rights | [207] |
| § 83. | Rights in re propria and Rights in re aliena | [212] |
| § 84. | Principal and Accessory Rights | [216] |
| § 85. | Legal and Equitable Rights | [217] |
| CHAPTER XII | ||
| OWNERSHIP | ||
| § 86. | The Definition of Ownership | [220] |
| § 87. | Corporeal and Incorporeal Ownership | [221] |
| § 88. | Corporeal and Incorporeal Things | [225] |
| § 89. | Sole Ownership and Co-ownership | [226] |
| § 90. | Trust and Beneficial Ownership | [227] |
| § 91. | Legal and Equitable Ownership | [231] |
| § 92. | Vested and Contingent Ownership | [232] |
| CHAPTER XIII | ||
| POSSESSION | ||
| § 93. | Introduction | [236] |
| § 94. | Possession in Fact and in Law | [237] |
| § 95. | Corporeal and Incorporeal Possession | [239] |
| § 96. | Corporeal Possession | [240] |
| § 97. | The Animus Possidendi | [242] |
| § 98. | The Corpus of Possession | [244] |
| § 99. | Relation of the Possessor to other Persons | [244] |
| § 100. | Relation of the Possessor to the Thing Possessed | [250] |
| CHAPTER XIV | ||
| POSSESSION (continued) | ||
| § 101. | Immediate and Mediate Possession | [252] |
| § 102. | Concurrent Possession | [256] |
| § 103. | The Acquisition of Possession | [256] |
| § 104. | Possession not essentially the Physical Power of Exclusion | [258] |
| § 105. | Incorporeal Possession | [261] |
| § 106. | Relation between Possession and Ownership | [264] |
| § 107. | Possessory Remedies | [267] |
| CHAPTER XV | ||
| PERSONS | ||
| § 108. | The Nature of Personality | [272] |
| § 109. | The Legal Status of the Lower Animals | [273] |
| § 110. | The Legal Status of Dead Men | [275] |
| § 111. | The Legal Status of Unborn Persons | [277] |
| § 112. | Double Personality | [278] |
| § 113. | Legal Persons | [279] |
| § 114. | Corporations | [281] |
| § 115. | The Agents, Beneficiaries, and Members of a Corporation | [285] |
| § 116. | The Acts and Liabilities of a Corporation | [287] |
| § 117. | The Uses and Purposes of Incorporation | [289] |
| § 118. | The Creation and Extinction of Corporations | [293] |
| § 119. | The State as a Corporation | [294] |
| CHAPTER XVI | ||
| TITLES | ||
| § 120. | Vestitive Facts | [299] |
| § 121. | Acts in the Law | [301] |
| § 122. | Agreements | [305] |
| § 123. | The Classes of Agreements | [307] |
| § 124. | Void and Voidable Agreements | [309] |
| CHAPTER XVII | ||
| LIABILITY | ||
| § 125. | The Nature and Kinds of Liability | [319] |
| § 126. | The Theory of Remedial Liability | [320] |
| § 127. | The Theory of Penal Liability | [321] |
| § 128. | Acts | [323] |
| § 129. | Two Classes of Wrongful Acts | [327] |
| § 130. | Damnum sine Injuria | [329] |
| § 131. | The Place and Time of an Act | [330] |
| § 132. | Mens Rea | [332] |
| CHAPTER XVIII | ||
| INTENTION AND NEGLIGENCE | ||
| § 133. | The Nature of Intention | [335] |
| § 134. | Intention and Motive | [338] |
| § 135. | Malice | [340] |
| § 136. | Relevance and Irrelevance of Motives | [341] |
| § 137. | Criminal Attempts | [343] |
| § 138. | Other Exceptions to the Irrelevance of Motives | [346] |
| § 139. | Jus necessitatis | [347] |
| § 140. | Negligence | [348] |
| § 141. | Objection Considered | [352] |
| § 142. | The Standard of Care | [354] |
| § 143. | Degrees of Negligence | [358] |
| § 144. | Other Theories of Negligence | [361] |
| CHAPTER XIX | ||
| LIABILITY (continued) | ||
| § 145. | Wrongs of Absolute Liability | [366] |
| § 146. | Mistake of Law | [368] |
| § 147. | Mistake of Fact | [369] |
| § 148. | Accident | [371] |
| § 149. | Vicarious Responsibility | [374] |
| § 150. | The Measure of Criminal Liability | [377] |
| § 151. | The Measure of Civil Liability | [382] |
| CHAPTER XX | ||
| THE LAW OF PROPERTY | ||
| § 152. | Meanings of the term Property | [385] |
| § 153. | Kinds of Property | [387] |
| § 154. | The Ownership of Material Things | [387] |
| § 155. | Movable and Immovable Property | [390] |
| § 156. | Real and Personal Property | [394] |
| § 157. | Rights in re propria in Immaterial Things | [395] |
| § 158. | Leases | [397] |
| § 159. | Servitudes | [400] |
| § 160. | Securities | [402] |
| § 161. | Modes of Acquisition: Possession | [406] |
| § 162. | Prescription | [408] |
| § 163. | Agreement | [412] |
| § 164. | Inheritance | [416] |
| CHAPTER XXI | ||
| THE LAW OF OBLIGATIONS | ||
| § 165. | The Nature of Obligations | [422] |
| § 166. | Solidary Obligations | [424] |
| § 167. | The Sources of Obligations | [427] |
| § 168. | Obligations arising from Contracts | [427] |
| § 169. | Obligations arising from Torts | [428] |
| § 170. | Obligations arising from Quasi-Contracts | [432] |
| § 171. | Innominate Obligations | [435] |
| CHAPTER XXII | ||
| THE LAW OF PROCEDURE | ||
| § 172. | Substantive Law and the Law of Procedure | [437] |
| § 173. | Evidence | [440] |
| § 174. | The Valuation of Evidence | [444] |
| § 175. | The Production of Evidence | [449] |
| § 176. | Criticism of the Law of Evidence | [452] |
| APPENDICES | ||
| I. | The Names of the Law | [457] |
| II. | The Theory of Sovereignty | [467] |
| III. | The Maxims of the Law | [474] |
| IV. | The Divisions of the Law | [481] |
| V. | The Literature of Jurisprudence | [487] |
| INDEX | [497] | |