An Introduction to the Philosophy of Law - Roscoe Pound (each kindness read aloud .txt) 📗
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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
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
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