The first vol ume. Preface (by Sarah Austin)

..

CONTENTS

OF

THE FIRST VOL UME.

PREFACE (by Sarah Austin) .

OUTLINE OF THE COURSE OF LECTURES .

Page 1

31

THE PROVINCE OF JURISPRUDENCE DETERMINED.

ANALYSIS OF LECTURES L-VI.

79

LECTURE i.

i

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The purpose of the following attempt to determine the province of jurispro­dence, stated or suggested.-The manner of the following attempt to

determine the province of jurisprudence.-Law : what,in most comprehen­sive literal sense.-Law of God.-Human Law8.-Two classes: lst. Laws set öy political superiors; 2ndly, Laws set by men not political superiors. -Objects improperly, but by dose analogy, termed laws.-The two last placed .in one class under the name positive morality.-Objects meta­phorically terrned laws.-Laws or roles, properly so called, are a species of commands.-The meaning of the term command.-The meaning of the term duty.-The terms command and dutyare correlative.-The meaning of the term sanction.-To the existence of a command, a duty, and asanetion, a violent motive to compliance i8 ıIlohequisite.-Rewards arenotsanctions.-Themeaning of the term command, briefly re-stated.­The inseparable connectiOill of the three terms, command, duty, and sanction.-Themanner of that connection.-Laws or rmes distinguished from commands which are occasional or particular.-The definitiOill of a law or rule, properly so called.- The meaning of the correlative terms superior and injerior.-Laws (improperly so called) which are not com­mands.-Laws (properly so called) which may seem not imperative.-' Laws which are not commands, enumerated .

86

LECTURE II.

The connection of the second with the first lecture.-The Divine laws, or the laws of God.-Of the Divine laws, some are revealed, and othera are unrevealed.-Such of the Divine law8 as are revealed.-Such of the Divine law8 a8 are unrevealed.- What is the index to such of the Divine

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Contents 0./ the First Volume

laws as are unrevealed ?-The hypotlıeses or tl,eories which regard the'

nature of that index.-The hypothesis or theory of a moral sense, orj innate practical principles; of a practical reason " of a common sense,j etc. etc.-The theory or hypothesis of utility.-A brief summary of the1

theory of utility.-The following explanations of that summary brieflyl

introduced.-The true tendeney of a human action, and the true test ofı that tendency.-According to the theory of utility, God's commands arej mostly rules.-It does not follow from the theory of utility, that every

useful action is the object of a Divine injunction; and every pernicious! action, the object of a Divine prohibition.-A current and specious objection to the theory of utility, introduced and stat€d.-The two apt i answers to the foregoing objection briefly introduced.-The first a.nswer to the foregoing objection stated.-The second answer to the foregoing objection briefiy introduced.-If our condnct were truly adjusted to the'

principle of general utility, our conduct would conform, for the most ı

part, to rules; rules which emanate from the Deity, and to which the tendencies of human actions are the guide or index.-T heory and practice i are inseparable.-If our conduct were truly adjusted to the principle of ı general utility, our conduct would be guided, for the most part, by

sentiments associated with rules; rules which emanate from the Deity, !

and to which the tendencies of human actions are the guide or index.­if our conduct were truly adjusted to the principle of general utmty,

our conduct would conform, for the most part, to Divine rules, and 1

would also be guided, for the most part, by sentiments associated with

those rules. But, in anomalous and excepted cases (of comparatively i

rare occuITenpe), our conduct would be fashioned directly on the prin­

ciple of general utility, or guided by a conjecture and comparison of ıspecific or partitular coosequences.- The second answer to the foregoing i

objection, briefiy resumed . Page ~

LECTURE III.

Apology for introducing the principle of utility.-The connection of the third i

with the second lecture.-A second objection to the theory of utility, i stated.-An answer to that second objection, introduced.-An objection j to the foregoing ıı-nswer, stated.-The foregoing objection to the fore-I going answer solved or extenuated.-The second objection to the theory

1

of utility, together with the foregoing answer to that second objection .

briefly re-stated 1

LECTURE IV.

The connection of the fourth with the third lecture.-The 8€cond objectian to the theory of utility, resumed.-A further answer to thatsecond objection.-The hypothesis of a moral sense, briefly introduced.-'A moral sen8€,' 'a common sense,' 'a moral instinct,' 'a principle of reflec­tion or conscience,' 'a prnetical reason,' 'innate practical principles,' 'connate practical principles,' etc. etc., are varioua expressions for one and the same hypothesis.-The hypothesis in question involves two


Contents of the First Volume

XV II

assumptions.-The first of the two assumptions involved by the hypo­thesis in question stated in general exp~sions.-The foregoing statement of the first assumption, exemplified and explained by an imaginary case. -The. first of the two assumptions involved by the hypothesis in question, briefly re-stated in general expressions.-The second of the two assumptions involved by the hypothesis in question briefly stated. -As an index to God's commands, a moral sense were less faHible than the principle of gep.eral utility.-But is there Mly evidence to sustain the hypothesis in question ?-The hypothesis in question is disproved

by the negative state of our comıciousness.-The two current arguments in favour of the hypothesis in question, briefly stated.-The first argu­me.nt in favour of the hypothesis in question, examined.-The second argurnent in fıwour of the hypothesis in question, examined.-A brief statement of the fact whereon the second argument in favour of the hypothesis in question is founded.-The fact accords exactly with the hypothesis or theory of utility.-A brief statement of the intermediate

hypothesis which is compounded of the hypothesis of utility and the hypothesis of a moral sense.-The division of positive law into law natural and law positive, and the division of jUB ci.vile into jUB gentium and jUB civile, suppose or involve the i.ntermediate hypothesis which is compounded of the hypothesis of utility and the hypothesis of a moral sense.-The foregoing disquisitions on the index to God's commands, closed with an endeavour to clear the theory of utility from two current though gross misconceptions.- The two misconceptions stated.- The firat

misconception examined.-The second misconception examined. Page 140

LECTURE V.

Laws. proper or properly so caHed, and .laws improper or improperly so called.-Analogy and metaphor as used in common parlance defined.­Law8 improper are of two kinds: ı. Laws closely analogous to laws proper; 2. Laws metaphorical or figurative.-Divisioll' of laws proper, and of such improper laws as are closely analogous to the proper.­Distribution of laws proper, and of such improper laws as are closely analogous to the proper, under three capital classes : ı. The law of God, or the laws of God; 2. Positive law, or positive laws; 3. Positive morality, rules ofpositive morality, or positive moral rules.-Digression tc explain the expressions positive lawand pOBitive morality.-Explana­tion of the following expressions, viz. Bcience of junBpudence and Bcience of pOBitive morality; science of eth.icB or deontology, Bcience. of legis/ation and science of moralB.-Meaning of the epithet good or bad as applied to a human law.-Meaning of the epithet good as applied to the law of God.-The expression law of nature, or naturallaw, has two

disparate meanıngs. it signifies the law of God, or aportion of positive lawand positive morality.-The connection of the present (the fifth) lecture with the first, second, third, fourth, and sixth.-The essenHals of a law properly so caUed, together with certain consequenees whieh those essentials import. The laws of God, and positive laws, are laws properly so eaUed.-The generie character of positive moral rules.-Of

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Contents of the First Volume

positive moral rules, some are laws proper, but others are laws impro~

The positive moral rules, which are laws properIy so called, are co!

mands.-Laws set by men, as private persons, in pursuance of le~ rights.-The positive moral rules, which are laws improperly BO cana

are laws set or ımposed by general opinion.-A law set or imposed i

general opinion, is merely the opinion or sentiment of an indeterminq body of persons in regard to 30 kin d of conduct.-A brief statement j . the analogy between a law proper and a law Bet orimposed by generi

opinion.-Distinction between 30 determinate and an indeterminate b4

of single or individual persoııs.-Laws set by general opiniOJl, ~

opinions or sentiments of indeterminate bodies, are the only opinions J

j

sootiments that have gotten the name of laws. But an opinion o

sentiment held or felt by an individual or by all the members Of

~

certain aggregate, may be as closely analogous to a law proper as tlı' opinion or sentiment of an indeterminate body.-The foregoing distrib tion of laws proper, and of such improper laws as are closely analogou to the proper, briefly recapitulated.-The sanctions, proper and im

~

proper, by which those laws are respectively enforced ; the duties, prope and improper, which those laws respectiveIy impose; and the rights proper and improper, which those laws respectively confer.-The la

of God, positive law, and positive morality, sometimes eoincide, some.,

times do not coincide, and sometimes c.onflict.-The acts 8ind forbear ances, which, accor,ding to the theory of utility, are objects of the 130'\1 of God; and other acts and forbearances, which, according to the samE theory, ought to be objects respectively of positive morality and law.­

The foregoing distributioaı of laws proper, and of such improper law i . as are closely analogous to the proper, tanies, in the main, with '30 division of laws which is given incidentally by Locke in his 'Essay on Human U nderstanding.' -Laws metaphorical or figurati ve.- The c(}mmon and negative nature of laws of the class.-The common and negative nature of laws metaphorical or figurative, shewn by examples.­Laws metaphorical or figurative are of ten blended and confounded with laws imperative and proper.-Physical or natural sanctions.-In strict. ness, declaratory law, laws repealing laws, and laws of imperfect obligation (in the sense of the Roman jurists), ought to be classed respectively with laws, metaphorical or figurative, and rules of positive morality.-Note on prevailing tendency: ı'st, to confound positive law with the ecienca of legislation, and poeitive morality with deontology : Examples from Blackstone, Paley, the writers on international law: 2ndly, to confound poeitive law with positive morality, and both with legislation ood deontology ; Examples from the Roman jurists and Lord

Mansfield Paga ı,

LECTURE VI.

The connection of the sixth lecture with the first, second, third, fourth, and fifth.-The distinguishing marks of sovereignty and independent political society.-The relation of sovereignty and subjection.-Strictly speaking, the sovereign portion of the society, and not the society itself,

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XiX

is independent, sovereign, or supreme.-In order that a given society may f(jrm a society political and independent, the two distinguishing marks which are mentioned above must unite.-A society independent but naturaı.-Society formed by the intercourse of independent political s(jcieties.-A society political but subordmate.-A socİety not political, but forming a limb or member of a society politieal and independent. -The definition of the abstract term independent political society (in­cluding the definition of the correlatJive term so ı:ereignty) cannot be

rendered in expressions of perfectly precise import, and is therefore a

fallible test of specific or particular cases. In order that an independent society may form a society political, it must not fall short of a number which eMmot be fixed with precilSion, but which may be called con­siderable, or not extremely minute.-Cerlain of the definitions of the term soı:ereignty, and of the. implied or correlative term independent politıcal Bociety, which have been given by writers of celebrity.-The ensuing portion of the present lecture is concenıed with the follomng topies :-1. The form s of supreme govenıment; 2. The limits of sovereign power j 3. The origin of government, or the origrn of politieal soeiety.-The forms of Bupreme government.-Every supreme govern­ment is a monarchy (properly so ealled), or an aristocracy (in the generic msaning of the expression). In other words, it is a government of one, or a government of a number.-Of such distinetions between arista­cracies as are founded on differences between the proportions whieh the illUmber of the sovereign body may bear to the number of t~e eom­munity. Of such distinetions between aristocracies as are founded on differences between the modes wherein the sovereign number may share the sovereign powenı.-Of such aristoerae:es as are styled limited monarchies.-Various meaniiDgs of the following terms :-1. The term 'sovereign,' or 'tlı e sovereign;' 2. The term 'republic,' or 'commonwea1th;' 3. The term 'state,' or 'the state;' 4. The term 'nation.'-Of the exercise of sovereign powers by a monareh or sovereign body, through political subordinates or delegates representing their sovereign author. Of the distiiDetion of sovereign, and other political powers into such as are legiBlative, and such as are executi'ce or administrative. The tme natures of the communities or governments which are styled by writanı on positive international law half Bovereign states.-The nature of a

coınpoBite state or a Bupreme fedeml govermnent: with the iDature of a system of confederated states, or a permanent confederacy of sııpreme '

governments.-The limits of sovereign power.-The essential differenee of a positive law.-It follows from the essential differenee of a positive law, and from the nature of sovereignty and independent political society, that the power of a monareh properly SO called, or the power of a sovereign number in its eollegiate and sovereign capacity, is ineapable of legal limitation.-Attempts of sovereigns to oblige themaelves, or to oblige the successors to their sovereign powers.-The meaningtl of the epithet unconstitutional, as it is eontradistinguished to the epithet

illegal, and as it is applied to conduet of a monareh, or to eonduct of a sovereign number in its eollegiata and sovereign eapacity.-The meaning


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Contents of the Fı'rst Volume

of Hobbes's proposition, that 'no law elldl be unjust.'-lust or unjusl justice or injustice, is a temı of relative and varying import.-Consi dered severally, the members of a sovereign body are in a state o; subjection to the body, and may therefore be lega!ly bound, even aı

members of the body, by laws of whieh it is the author.-The nature ol politiea! or eivilliberty, together with the Bupposed differenee betwOO11 free and despotie governments.-Why it has been doubted, that the power of a sovereign is ineapable of legallimitation.-The proposition is asserted expressly by renowned political writers of opposite parties or sects.-A sovereign government of one, or a sovereign government of

a number in its collegiate and sovereign capacity, has no legal rights (inı the proper acceptation of the term) agmnst its own subjects.-'Right is might.' -'Right' as meaning 'faculty,' and 'right' as meaning 'justiee.' -'Right' as meaning 'faculty,' and 'right' as meaning 'law.'-From an appearance of a sovereign government before a tribuna! of its own, we cannot infer that the government lies under legal duties, or has legal rights against its own subjects.-Though a sovereign government of one, or a sovereign government of a number in its collegiate and sover­

eign capacity, cannot have legal rights against its ow;ıı subjects, it may ,

have a lega! right against" a subject or subjects of another sovereign government.-The origin or causes of political government and 6Ociety. -The proper purpose or end of political government and society, or the purpose or end for which they ought to "exist. The position 'that every

government continues through the people's consent,' and the position i

'that every governmant arises through the people's consent,' examined

and explained.-The hypothesis of the original covenant or the funda- \

?Mntal civil pact.-The distinction of sovereign governments into governments de jure and governments de facto.-General statement of

I

the province of jurisprudence as defined in the foregoing lectures. Page 2

ANALYSIS OF PERV ADING NOTIONS.

LECTURE XII.

Recapitulation.-Natural and moral rights, or rights which are merely sanctioned religiously or morally.-Ideas, the analysii! of which is inevitably involved in that of right. Obligations or duties are positive or negative.-Forbearances cannot be styled with propriety negative services.-Obligatİons are relative or ahsolute.-Rights imply persons, things, acts, and forbearances.-Persons, natural or fictitious.-Meaning of 'physical person,' or "'person' simply.-'Person' frequently synony­

moua with 'status' or 'condition.'-Fictitious or legal persons. . Page 34

LECTURE XIII.

Recapitulation.-Meaning of 'thing.'-Distinctions between things.-Things signifying acts and forbearances.-Corporeal a.nd incorporeal things.­

Distinction between jura rerum IIdld jura personorum briefly introdueed 357

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XXI

LECTURE XIV,

Persons and things.-Persons and things distinguished.-Events.-Events are simple or complex.-Import of 'fact' and 'incident.'-Acts and for­bearances.-Act.-Forbearance.-Introduction to the distinction between

jus in rem and jus in per8onam.-DistiJlction between jU8 in rem and

jm in personam.-Illustrations of the distinction betweenjus in rem and

jus in personam.-Property.-Servitus.-Examploo of rights in per­

sonam:-lst. A right arising out of a contract; 2ndly. A right founded

on an injury , 364

LECTURE XV.

Further illustrations of the distinction between jus in rem and jus in per­8onam.-lus in rem restricted by certain writers to jus in rem over or

in things.-Rights in rem over persons.-A person who is the subject of

jU8 in rem is placed in a position like the position of a thing which if!

the subject of a, simila,r right. And ma,y be styled (by ana.logy) a thing.--Ju& realiter personale.-Rights in rem, without determinate

subjeets . 3S1

,.'

LECTURE XVI.

Purpore and order of the present lecture.-Common nature of rights.­

Certa,in definitions of a, right examined . . 393

LECTURE XVII.

Import of 'right' in abstract.-,-Duties are relative or absolute.-Absolute

dumes deooed by exhaustive enumeration. Order in which i shaH consider absolute duties in the prooent lecture.-Selj-regarding duties and duties not regarding man, regard persons generaHy in respect of their remote purpose.-Relative duties regard persons gooerally in respect of their remote purpose.-Dutioo towards persons generally are, indirectly, duties towards determinate purposes.-Jus publicum et

privatum.-Civil injuries and crimes.-Difference between relative and

absolute duties, etc.-Distinctions between absolute duties Page 400

. LECTURE XVIII.

Brief review of preceding lectures.-Obligation, injury, and sanction imply motive, will, intention, negligooce, and rashness.-Apology for inquiry into 'motive,' 'will,' etc.-The wilL.-Dominion of the will limited to bodily organs.-Dominion of the will limited to some bodily organs.­Dom'ınion of the will extends not to the mind.- V olitions, what? Acts, what ?-Names of acts comprise certain of their consequences.-Confu­sion of will and intention.-Motive and will.-Motives to volitions.­Motives to motives.-Why the will has attracted 80 much attention;

and been thought mysterious . 407

LECTURE XIX.

VoliUons and motives.-Acts.-Interna.l acts.-Lntentions as regarding

present acts, or the consequences of present acts.-Confusion of will and

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Contents of the First Volume

intention.-A cOIlsequence of an act may not be intended.-An intended consequence of an act may be wished or not.-And if wished, it may be wished as an end, or as a ıııean.-Consequence of an act wished as a.n end -Concurrence of motive and intention.-Exemplifications of the

ı

three foregoing suppositions.-Of the first supposition.-Of the second'

supposition.-Of the third supposition.-Forbearances are intended, but

I

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not willed . . . . . . . . . . . .

LECTURE XX. ı

Acts are willed and intended : consequences are intended.-Forbearances are .

,

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intended.-Motives to forbearances.~Forbearances distinguished from.

omissions.-Ambiguities of the terms 'forbearance' and 'omission;' commit and omit.-Negligence.-Heedlessness.-Negligence and heed­lessness compared.-Rashness.-Negligence, heedlessness, and raslıness, likened and distinguished.-Dolus.-Culpa.-Malice.-Dolus and culpa.

-Roman law . 4

LECTURE XXI.

Intentions coupled with volitions and acts.-Present intention to do a future

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act, distinguished from an act with a present valition and intention.- .

Present intention to do a future ad, what ?-Distinguished from a simple desire of the object.-Present intention to do a future act, re-stated.- ~ Confusion of will and intention.-Intending a future forbearance.-An i intended consequence of an intended future act, is not always desired.­

ı

Intentions to do future acts are certain or uncertain; are matured or undigested.-A consiliurn, or compassing.-Attempts.-Intention of legislator, ete.

LECTURE XXII.

Duty.-Injury.-Sanction.-Obligation is obnoxiousness to a sanction.­Sanction and obligation distinguished.-Obligation regards the future. -Sanctions operate upon the desires.-An obligation to will not im­possible.-An obligation ~ desire not possible.-Supposed conflict of desire and will.-Effect of obligation in extinguishing desires which uFge

to a breach of duty Page

LECTURE XXIII.

Physical compulsion or restraint distinguished from that which is imported by duty or obligation.-Obligations to suffer and not to suffer.-Passion or suffering, what? is the ultimate sanction of every obligation.-Suffer­

ing may be inflicted, without physical compulsion or restraint . 4,

LECTURE XXIV.

Immediate and remote objects of duties.-Forbearances, omissions, or acts which are inconsistent witl;ı the remote purposes of duties.-Import of the cognate expressions wrong, guilt, imputabilit:r= breach of duty.­Intention, negligence, heedlessness, or rashness, is of the easence of injtiry, guilt, imputability, or breach of duty.-But is not of itself

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XX III

injury, guilt, ek-Brief analysis of negligence and its modes; of in­tenlion regarding the present, and intention regarding the future.­Whether an intention, neither consummate nor followed by an attempt, could be maCı e the object of a negative obligation? Restrictio.n of 'guilt' or 'eulpa' to intention, negligence, heedlessness, or rashness, as the eaııse of action, forbearance, or omission.-Injury, ete., is the contradictory of duty.-Corpus delicti.-Further remarks on the import

of the word 'dolus.'-Ambiguity of 'Schuldner,' 'Reus,' ete. . 457

LECTURE XXV.

Iııtention or inadvertence is of the essenee of injury.-An absurdity in English law from inattention to this principle.-Mora.-Resume the priııeiple, that, inteııtion or inadverteno.e is of the essence of injury.­Grounds of exemption from Jiability, mostly reducible to the principle !ast stated. 1. Casus or aceident.-2. Ignorance or error.-The objec­

tion to ex post lacto laws deducible from the same principle . . 468

LECTURE XXVI.

Reca,pitulation.-Consideration of the exemptions from liability resumed. -3. Infaney and Insa;nity.-Digression on the different kinds of pra,sumptione8 jUri8.-4. Drunkenness (in some systems of law).-5. Sudden and furious angel' (in some systems).-An illogical distinction in Roman law between deliets and quasi-delicts.-Grounds of exemp­tion not depending on the foregoing prin9iple. ı. Physical compulsion. -2. Extreme terror.-The so-ealled exemptions not properly exemp­

tions, but eases to which the idea. of obligation does not apply. . 488

LECTURE XXVII.

Correetion of statements in last lecture: Anger, p. 496, ante.-Statem€>Ilt as to acquisitive preseription, p. 493, ante.-Sanetions civil and criminal.­Publie and Private wrongs.-Laws sametimes sanetioned by nullities. -Viearious punishment.-Various meanings and etymology of the word

'sanetion' Page 499