Elements of Right and of Law: To which is Added a Historical and Critical Essay Upon the Several Theories of Jurisprudence

George Hugh Smith

Callaghan, 1887 - 382 Seiten

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ELEMENTS OF RIGHT CHAPTER I	17

The principal function of the government that of umpire 2 This involves two functions viz that of jurisdiction and that of jural legislation 3 Definiti...	19

Function of judicial legislation closely akin to jurisdiction 9 In either case justice the only legitimate rule of decision 10 Definition of justice 11 Imp...	21

Two theories as to the nature of rights	22

These in effect theories as to the moral standard	23

Rights defined	24

CHAPTER II	25

In defining rights liberty the preferable term	26

The definition amended	176

And adopted	177

The effect of this definition	178

S 179 180 An objection to this view considered 181 Extent and cause of obligations ex contractu	181

The agreement not the cause of the obligation	182

Cause of the obligation consists in detriment suffered by obligee	183

Consideration or cause of the contract and cause of the obligation	184

Detriment suffered by obligee the limit of the obligation	185

Definition of the terms liberty and jural liberty	27

A right consists in the power to act facultas agendi and not in the restraint upon others	28

Division of private rights into rights in rem and in personam 14 The right of property the type of rights in rem 15 Analysis and definition of the rig...	29

This definition inapplicable to rights in	30

Rights also defined by Austin and Amos as consisting in lib erty 32 Hobbes definition of rights	31

Burlamaquis definition	33

Puffendorfs definition	34

Kants definition	35

Herbert Spencers definition	36

Cousins views as to the limit of liberty	37

Definitions of Leibnitz and Grotius	38

Remarks upon these definitions	39

CHAPTER IV	42

Substantial conformity in the moral convictions of man kind	43

The jurist not concerned with the philosophy of morality	44

The definition of right the adjective not essential	45

Observations upon the signification of the term	46

Of moral and of jural liberty	47

Of the relation of jurisprudence and deontology	48

Of the moral standard	49

Of conscience	50

Of positive morality or nomos	51

Substantial concurrence of different systems of positive morality	52

Of scientific morality	53

Of the method and first principles of scientific morality	54

Of the relation between positive and scientific morality	55

Scientific morality a true deductive science 57 Its practical end the reformation of positive morality CHAPTER V	56

The ultimate problem of right to determine the rightful liberty of the individual	58

The immediate problem to determine the exceptional cases in which liberty may be restrained	59

The rightful liberty of the individual limited only by rights of other individuals or of the state	60

The presumption always in favor of liberty	61

SS 6265 The equality of jural liberty 66 Of the right to restitution and compensation	66

All rights originate in events	67

Investitive and divestitive events	68

Classification of events	69

S 70 71 Of contracts 72 Of laws or legislative acts	72

Laws not principles of right but mere events	73

Their efficacy depends upon principles of natural right	74

Laws give rise to rights only where precedent rights in	75

legislator 76 These propositions true whatever may be the power	76

Laws analogous to contracts grants	77

government	78

Of customs	79

Of custom as an element of contract	80

Of custom as an element in delicts	81

Of the force of custom generally	82

Customs mere elements in the determination of rights	83

Reconcilement of natural right with laws and customs	84

Of the principle of utility	85

Of the limit to the application of this principle	86

Of the argumentum inconvenienti	87

Right divided into private and public	88

Definition of the state	89

Of the distinction between the state and the government	90

Classification of public rights	91

Of the social rights of the state 93 Of the right to the maintenance of the public security	93

Of the right to the maintenance of public morality	94

Of the right to the lands of the state	95

Political rights consist in the right of government or coer cion	98

Of the rights of the government	99

Usual division of these rights	100

Of the corresponding departments of the several American governments	101

Another division of the rights of the government sug gested	102

The right of personal liberty the cause of political rights	103

Of the limit to the rights of the government	104

Of the ultimate principle of right	105

The principle of liberty necessarily assumed	106

Of the principle of utility	107

The limit to the judicial right of the state	108

Of indeterminate rights	109

Indeterminate jural relations generally determined by cus	111

Functions of the state with reference to indeterminate rights	112

SS 113 114 Of the limit to this function 115 The function of judicial legislation extremely limited	115

Of the right of personal liberty or of selfownership	116

What included in this right	117

Injuries to this right	118

The right includes the right to use material things	119

SS 120123 Of the limit to the right to use material things 124 Distinction between direct and indirect interference with personal liberty	124

Of direct interference with personal liberty	125

Indirect interference inevitable	126

127129 Of the limit imposed upon such interference by the principle of the equality of jural liberty	127

S 130 131 Qualification of this right 132 Of the right of property	132

The right of property derived from the fact of occupation	133

Of the nature of occupation	134

135 136 Distinction between things naturally existing and artificial products	135

137 138 Of the opinion of Grotius that a title to property can not be acquired by labor	137

1 Bracton 2 Fortes	138

Movable property in general produced by labor	139

Of the right of property in land	140

Right of the state to regulate appropriation of land	141

The state can not give an irrevocable property in lands	142

Limit to the right of the state to resume the ownership of private lands	143

Of the measure of such compensation	144

Of rights in rem growing out of the family relations	145

A right in rem consists essentially in the relation between the subject of the right and third persons	146

The same development common both to law and equity	147

Of the right of a parent in a child	151

Of the right of the child in the parent	152

CHAPTER VIII	153

Of rights arising from delict or tort	154

Of the right to restitution	155

Of the right to compensation	156

Demonstration of this right	157

Analysis of injury and of restitution	158

Analysis of injury to property and of restitution	159

The utilities of different things commensurate	160

Distinction between things fungible and nonfungible	161

Of fungible things	162

Of nonfungible things	163

Of the money value of things	164

Of things having a peculiar utility	165

Of compensation for the use of a thing	166

Of compensation for consequential damages	167

Of compensation for injury to other rights in	168

Restitution in kind and restitution in value or compensa tion	169

Of obligations ex contractu	170

Blackstones definition of contract	171

Parsons definition	172

Another definition suggested	173

Whartons definition	174

Objection to this definition	175

The obligation also limited by the agreement	186

In the absence of collateral detriment the consideration the limit of the obligation	187

The value of the consideration generally determined by the agreement	188

Of the true rule as to the measure of damages	189

Rule established by the courts based on these principles	190

Illustrations and proofs of this proposition	191

Of obligations ex mero jure	192

The cause of such obligations	193

Illustrations of this proposition	194

Compensation for labor or expense upon the property of another	195

Subject of the book stated viz the American	196

Of the nature of municipal	197

Of the definition of the law as consisting of laws leges or statutes	198

Of its definition as custom	199

Of its definition as justice	200

These definitions defective The true definition to be sought	201

Of the function of courts of justice	202

Of civil and criminal jurisdiction	203

The civil and the criminal law distinguished	204

Of the criminal	205

The civil law defined and divided into the law of civil procedure and the law of private right	206

Of the definition of the law of private right	213

Definition of actions	214

Of the maxim Ubi jus ibi remedium	215

Rights and actions the two principal subjects of private right	216

217 218 Relation between rights in rem rights in personam and actions	217

Division of obligations and actions into ex contractu and ex delicto	219

Another division suggested viz into vindicative and commutative	220

Corresponding division of actions into actions in rem and in personam	221

Objection to the use of the terms actions in rem and 66 in personam	222

The terms vindicative and commutative more	223

propriate 224 Division of actions in rem into restitutive and preventive 225 Actions in personam either actions for specific perform ance or compen...	225

Examples of the different kinds of actions	226

Division of actions into legal and equitable	227

Rights and actions and the corresponding sciences distin guished	228

Definition of right	229

Definition of	230

Original sense of the term	231

The term jus in its widest sense equivalent to the	232

Definition of jurisprudence	233

Right equivalent to justice and therefore a branch of morality	234

The problems presented by jus and right essentially dif ferent	235

236 These problems however intimately and indissolubly con	236

The correspondence between rights and actions necessarily	238

Of the definition of jus as the art of right	244

nected	245

HISTORICAL AND CRITICAL REVIEW	249

Distinction between reasoning from principle and from	253

S 255258 Of the nature of the development of the	259

Definition of these terms	263

Instances of such legislation	265

Generally deleterious when based upon other grounds	267

The views of Aristotle adopted by the Roman lawyer	271

In America sovereignty vested in the courts	273

The establishment of international right	277

Illustration of this principle	279

Such rules do not affect rights but actions merely	285

S 290 291 A denial of the distinction subversive of morality	292

The scientific method not consistently followed by the law	298

Resulting confusion and uncertainty in the	299

300 301 And in the administration of justice	300

302 303 The adoption of the scientific method the only prac tical remedy	302

304 This method essential to the administration of justice	304

And also to the cognoscibility of the law 306 The way prepared for the adoption of this method by the abolition of forms of action	306

The method peculiarly adapted to the American	307

The English law developed in the main by the courts	308

Of the courts of law and the court of equity	309

Corresponding division of the law into law and equity	310

History of the law consists in history of these courts	311

312 313 Jurisdiction of the courts derived from jurisdiction of the king	312

314 315 This principle true only of the historical origin of jurisdiction	314

True rights may arise out of slavery	315

The jurisdiction of the courts originally a mere temporary delegation of power from the crown	316

Of the county courts	317

Of the justices in eyre	318

The general administration of justice vested in the aula or curia regis	319

Of the history and constitution of this court	320

Of the functions of this court	321

Of the establishment of the court of exchequer	322

Of the establishment of the court of common pleas	323

Of the establishment of the court of kings bench	324

Of the jurisdiction of these courts	325

Of the development of the law down to the end of the reign of Edward I	326

327 Of the old Saxon	327

The Saxon law gradually disused after the Conquest	328

Of the contrary opinion of the lawyers	329

The jurisdiction of the king originally general power to administer justice or right	332

333 The jurisdiction of the courts originally confined to par ticular cases referred to them by the king	333

Of the nature of the original writ	334

S 330 331 The English common law originated with the Norman courts	335

This function strictly judicial	337

His function in this respect identical with that of the prætor under the Roman rule	338

Difference in other respects between their functions	339

Jurisdiction of the courts and of the chancellor mutually restrictive	340

Modification of jurisdiction resulting from this and from the doctrine of stare decisis	341

Corresponding modification of the	342

The law thus modified inadequate to the purposes of jus tice	343

The essential nature of the law not changed	344

In the main still rational in its character	345

Influence of the Roman law in the development of the English	346

The law then existing consisted mainly of the law of actions	347

The existence of the principles of natural right as part of the law necessarily assumed	348

Illustrations of this proposition	349

The existence of nonactionable rights recognized by the statute of Westminster 2	350

This act inadequate in its operation	351

Hence the law still continued inadequate to the adminis tration of justice	352

The law developed by the courts only part of the	353

354 355 Of the establishment of the court of chancery	354

Its jurisdiction general to administer justice	356

Its exercise originally governed by natural right	357

Of the influence of the doctrine of stare decisis upon	360

sense	364

It is the function of the court to determine and enforce	367

Of the reconcilement of individual and general utility	371

Impropriety of this sense	373

S 370374 Of the historical and philosophical schools of jurists	375

Historical sketch of the jural theory	382

The same essential notion according to his view connoted	388

development of equity	398

Urheberrecht

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Häufige Begriffe und Wortgruppen

Accordingly actions administer administration of justice applied Aristotle asserted Austin Austin's Jur authority Bentham Bracton called chancellor cited civil law common law conformity consists constitute contract court of chancery court of equity courts custom decisions defined definition denote derived determined doctrine duty enforce English English law equity essential established exercise exist expressed extent fact former function Hence human individual infra instance judges judicial jural jurisdiction jurisprudence jurists jus civile jus gentium jus naturale king latter law of England lawyers legislation limited maxim ment moral natural justice natural right obligation observed original Pandects personal liberty political positive law precedents principles of natural proposition question reason reference regard rights in personam rights in rem Roman law rule self-ownership sense sovereign Spence's Eq stare decisis statute supra term right theory tion true unjust utility vested violation words writs wrong

Beliebte Passagen

Seite 367 - Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do.‎

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Seite 181 - We know of no case, in which a legislative act to transfer the property of A to B, without his consent, has ever been held a constitutional exercise of legislative power in any State in the Union. On the contrary, it has been constantly resisted as inconsistent with just principles, by every judicial tribunal in which it has been attempted to be enforced.‎

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Seite 131 - This kind of equitable action to recover back money, which ought not in justice to be kept, is very beneficial, and therefore much encouraged.‎

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Seite 294 - This natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature...‎

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Seite 238 - Truth, crushed to earth, shall rise again; The eternal years of God are hers; But Error, wounded, writhes in pain, And dies among his worshippers.‎

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Seite 288 - And this is another strong argument in law, nihil quod est contra rationem est licitum ; for reason is the life of the law, nay, the common law itself is nothing else but reason...‎

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Seite 23 - FOR the principal aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature ; but which could not be preserved in peace without that mutual assistance and intercourse which is gained by the institution of friendly and social communities. Hence it follows, that the first and primary end of human laws is to maintain and regulate these absolute rights of individuals.‎

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Seite 293 - And first of all, the science of jurisprudence, the pride of the human intellect, which, with all its defects, redundancies, and errors, is the collected reason of ages, combining the principles of original justice with the infinite variety of human concerns, as a heap of old exploded errors, would be no longer studied.‎

Wird in 191 Büchern von 1790 bis 2008 erwähnt

Seite 79 - The powers of the government of the state of California shall be divided into three separate departments: The legislative, the executive, and judicial; and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any functions appertaining to either of the others, except in the cases hereinafter expressly directed or permitted.‎

Wird in 380 Büchern von 1820 bis 2008 erwähnt

Seite 181 - It may well be doubted whether the nature of society and of government does not prescribe some limits to the legislative power; and if any be prescribed, where are they to be found, if the property of an individual, fairly and honestly acquired, may be seized without compensation?‎

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Bibliografische Informationen

Titel	Elements of Right and of Law: To which is Added a Historical and Critical Essay Upon the Several Theories of Jurisprudence Making of modern law
Autor/in	George Hugh Smith
Ausgabe	2
Verlag	Callaghan, 1887
Original von	University of Michigan
Digitalisiert	14. Juni 2006
Länge	382 Seiten

Zitat exportieren	BiBTeX EndNote RefMan

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