The Study of Jurisprudence

  • A CRITICAL CONSIDERATION OF THE NEW PEDAGOGY IN ITS RELATION TO MODERN SCIENCE-MARIA MONTESSORI 1912 - All forms of slavery tend little by little to weaken and disappear, even the sexual slavery of woman. The history of civilisation is a history of conquest and of liberation. We should ask in what stage of civilisation we find ourselves and if, in truth, the good of prizes and of punishments be necessary to our advancement. If we have indeed gone beyond this point, then to apply such a form of education would be to draw the new generation back to a lower level, not to lead them into their true heritage of progress.
  • Ancient Codes: Henry James Sumner Maine 1861 - The Roman Code was merely an enunciation in words of the existing customs of the Roman people. Relatively to the progress of the Romans in civilisation, it was a remarkably early code, and it was published at a time when Roman society had barely emerged from that intellectual condition in which civil obligation and religious duty are inevitably confounded
  • Classification of Legal rules: Sir Henry Sumner Maine - The chief interest of the book of Narada, which has recently been translated into English by Dr. Julius Jölly, of Wurzburg, is that its writer is much more of a pure lawyer than the writer of Manu, and his work is much more nearly a work on law. Both of them were certainly Brahmans. The writer of Manu is intensely sacerdotal, and like earlier authorities, still contemplates the civil and earthly sanction as a supplement and aid to the spiritual penalty. On the other hand, the author of Narada depends almost wholly on the civil sanction, and his religious character shows itself chiefly in earnest and often very impressive exhortations to observance of the law and of the moral duties implicated with legal obligations.
  • Crimes are to be estimated by the injury done to society: VOLTAIRE - It is not only the common interest of mankind that crimes should not be committed, but that crimes of every kind should be less frequent, in proportion to the evil they produce to society. Therefore, the means made use of by the legislature to prevent crimes, should be more powerful, in proportion as they are destructive of the public safety and happiness, and as the inducements to commit them are stronger. Therefore there ought to be a fixed proportion between crimes and punishments.
  • Guilt, bad conscience and the like-Nietzsche-1887 - That idea—"the wrong-doer deserves punishment because he might have acted otherwise," in spite of the fact that it is nowadays so cheap, obvious, natural, and inevitable, and that it has had to serve as an illustration of the way in which the sentiment of justice appeared on earth, is in point of fact an exceedingly late, and even refined form of human judgment and inference; the placing of this idea back at the beginning of the world is simply a clumsy violation of the principles of primitive psychology.
  • HUMANITARIAN THEORY OF PUNISHMENT- C. S. LEWIS-1954 - My subject is not Capital Punishment in particular, but that theory of punishment in general which the controversy showed to be almost universal among my fellow-countrymen. It may be called the Humanitarian theory. Those who hold it think that it is mild and merciful. In this, I believe that they are seriously mistaken.
  • John Locke on Property - I think, it is very easy to conceive, without any difficulty, how labour could at first begin a title of property in the common things of nature, and how the spending it upon our uses bounded it. So that there could then be no reason of quarrelling about title, nor any doubt about the largeness of possession it gave. Right and conveniency went together; for as a man had a right to all he could employ his labour upon, so he had no temptation to labour for more than he could make use of
  • LAWS IN GENERAL-Relation of laws and its nature: Montesquieu - Beside the sense or instinct which man possesses in common with brutes, he has the advantage of acquired knowledge; and thence arises a second tie, which brutes have not. Mankind have therefore a new motive of uniting, and a fourth law of nature results from the desire of living in society.
  • Legal fiction: Henry James Sumner Maine 1861 - I employ the word "fiction" in a sense considerably wider than that in which English lawyers are accustomed to use it, and with a meaning much more extensive than that which belonged to the Roman "fictiones." Fictio, in old Roman law, is properly a term of pleading, and signifies a false averment on the part of the plaintiff which the defendant was not allowed to traverse; such, for example, as an averment that the plaintiff was a Roman citizen, when in truth he was a foreigner.
  • NATURE OF LAW: William Blackstone - Equity thus depending, essentially, upon the particular circumstances of each individual case, there can be no established rules and fixed precepts of equity laid down, without destroying it's very essence, and reducing it to a positive law. And, on the other hand, the liberty of considering all cases in an equitable light must not be indulged too far, left thereby we destroy all law, and leave the decision of every question entirely in the breast of the judge.
  • OVER-LEGISLATION : Herbert Spencer - I From time to time there returns on the cautious thinker the conclusion that, considered simply as a question of probabilities, it is unlikely thatContinue Reading
  • Principle of Relativity and Inference from it: Albert Einstein, Ph.D-1916 - Since it has often been contended by opponents of the theory of relativity that the special theory of relativity is overthrown by the general theory of relativity, it is perhaps advisable to make the facts of the case clearer by means of an appropriate comparison. Before the development of electrodynamics the laws of electrostatics were looked upon as the laws of electricity.
  • RIGHT OF PROPERTY- Jean Baptiste Say-1803 - It is to be observed that the right of property is equally invaded, by obstructing the free employment of the means of production, as by violently depriving the proprietor of the product of his land, capital, or industry: for the right of property, as defined by jurists, is the right of use or even abuse
  • Succession after death - A right of way over a neighbor's land can only be acquired by grant, or by using it adversely for twenty years. A man uses a way for ten years, and dies. Then his heir uses it ten years. Has any right been acquired?
  • The Application of Law:Roscoe Pound - It is usual to describe law as an aggregate of rules. But unless the word rule is used in so wide a sense as to be misleading, such a definition, framed with reference to codes or by jurists whose eyes were fixed upon the law of property, gives an inadequate picture of the manifold components of a modern legal system. Rules, that is, definite, detailed provisions for definite, detailed states of fact, are the main reliance of the beginnings of law.
  • The Concept of Possession: Why it needs to be protected - Possession is to be protected because a man by taking possession of an object has brought it within the sphere of his will. He has extended his personality into or over that object. As Hegel would have said, possession is the objective realization of free will. And by Kant's postulate, the will of any individual thus manifested is entitled to absolute respect from every other individual, and can only be overcome or set aside by the universal will, that is, by the state, acting through its organs, the courts.
  • The difficulty of defining “freedom”: Bruno Leoni - This explains certain metaphysical trends among those ancient Greek philosophers who treated nonmaterial things—justice, for example—as if they were similar to visible, material things. It also explains more recent attempts to define the “law” or the “state” as if they were entities like the sun or the moon. As Professor Glanville Williams points out in his recent essay (1945) on the controversy concerning the word “law,” the English jurist John Austin, the celebrated founder of jurisprudence, maintained that his definition of “law” corresponded to “law properly defined,” without having the least doubt that there exists such a thing as “the law properly defined.”
  • The Doctrine of Punishment: John Stuart Mill - When a right has been infringed, there are two things, it is evident, which ought to be done: The injury which has been sustained by the individual ought to be repaired: And means ought to be taken to prevent the occurrence of a like evil in future.
  • The End of Law: Roscoe Pound 1930 - The end of law has been debated more in politics than in jurisprudence. In the stage of equity and natural law the prevailing theory of the nature of law seemed to answer the question as to its end. In the maturity of law the law was thought of as something self-sufficient, to be judged by an ideal form of itself, and as something which could not be made, or, if it could be made, was to be made sparingly.
  • The Expansion of Civilisation: Gustave de Molinari - The nations of the civilised world began to seek means of expansion during the fifteenth century, and the process has never been more active than at the present time. The white man has subjugated the greater part of the globe. America and Australia are occupied, Africa is in process of partition, and the greater part of Asia is already in a state of dependence.
  • The Judges and the manners of passing Judgement: Montesquieu - In despotic governments there are no laws; the judge himself is his own rule. There are laws in monarchies; and, where these are explicit, the judge conforms to them; where they are otherwise, he endeavours to investigate their spirit.In republics, the very nature of the constitution requires the judges to follow the letter of the law; otherwise, the law might be explained to the prejudice of every citizen, in cases where their honour, property, or life, are concerned.
  • THE LAW OF NATURE-William Ames 1639 - That law which is derived from the natural law only by way of conclusion, if the consequence be good, hath its whole strength from the law of nature, as the conclusion hath its force from the premised propositions; but that which is derived from the law of nature by way of determination and application, is in part a new constitution, even as every species hath its own proper form and essence besides that which is actually comprehended in the genus.
  • The Method of Scientific Investigation: Thomas Henry Huxley - That train of reasoning is what logicians call a syllogism, and has all its various parts and terms,—its major premiss, its minor premiss and its conclusion. And, by the help of further reasoning, which, if drawn out, would have to be exhibited in two or three other syllogisms, you arrive at your final determination, "I will not have that apple."
  • The Origin, Right and Consequences of Punishment: VOLTAIRE - If we look into history we shall find that laws which are, or ought to be, conventions between men in a state of freedom, have been, for the most part, the work of the passions of a few, or the consequences of a fortuitous or temporary necessity; not dictated by a cool examiner of human nature, who knew how to collect in one point the actions of a multitude, and had this only end in view, the greatest happiness of the greatest number.
  • The Paradox of “Being Governed”: James M. Buchanan - In this role or capacity, the state is not “protecting” defined individual rights. Government is a productive process, one that ideally enables the community of persons to increase their overall levels of economic well-being, to shift toward the efficiency frontier. Only through governmental-collective processes can individuals secure the net benefits of goods and services that are characterized by extreme jointness efficiencies and by extreme nonexcludability, goods and services that would tend to be provided suboptimally or not at all in the absence of collective-governmental action.
  • What is a Profession – the Rise of the Legal Profession in Antiquity-Roscoe Pound 1944 - A true profession, both in idea and as a matter of history, is a learned profession. An unlearned profession is a contradiction in terms. Learning, the pursuit of a learned art is one of the things which distinguishes a profession from a calling or vocation or occupation. Professions are learned not only from the nature of the art professed but because they have historically a cultural, an ideal side which furthers the effective exercise of that art.