Of the History of the Distinction Between Perfect
and Imperfect Obligations; and its Effect in Giving Rise
to the Negative School of Jurisprudence ...................................195
XII. <...> Of the Primary and Secondary Objects of Positive Law ..........355
III. <...> It has been said with great truth that the
philosophy of law, on the ground that it stands in a general relation to each
of the special branches of the science of law, is itself an encyclopaedia,
but that it is a philosophical encyclopædia. <...> I.
With this limited aim, then, the branch of science with the study of
which we shall be here engaged, may be described as having for its object
the discovery of that law which, by the nature of all rational creatures, and
independently of their volition, determines their relations to each other
and to surrounding existences, in so far as this law is mediately or
immediately revealed to human reason and realizable by human will,
under the conditions of human existence in time and space. <...> The validity
of the law of nature, it is true, is not, or at any rate cannot be conceived
by us to be, limited to humanity, or to humanity under the conditions of
time and space. <...> Culverwell accordingly defines it as “that law which is
intrinsical and essential to a rational creature;” and Hegel, regarding it as
the divine conception of Kosmos in human relations, by which the limited
or relative will of the creature is harmonized with the unlimited or
absolute will of the Creator, speaks of it as the reign of liberty realized.”
Seen from this latter point of view, we might define it as the law which
determines the conditions of perfect human co-existence, or, of progress
towards the realization of such co-existence. <...> It is in this light that it
2
I NT RO D UCT I O N
specially concerns the jurist, as distinguished from the metaphysician and
the moral philosopher; for it is when thus regarded that he begins to see
in it the permanent element of positive law. <...> The Kosmic character of existence, or, in other words, its absolute
rectitude, as we shall see hereafter, is an assumption which is
psychologically inevitable. <...> Relative will cannot contend with absolute
will, even in thought. <...> It is an objective phenomenon which consciousness
presents to us, not from without but from within: a conception which <...>
The_institutes_of_law.pdf
CONTENTS
INTRODUCTION
Preliminary Definitions and Divisions ..........................................1
OF THE SOURCES OF NATURAL LAW
BOOK I
I. Of The Sources of Natural Law...................................................13
II. Of the Schools of Jurisprudence..................................................25
III. Of the Autonomy of Human Nature ............................................37
IV. Inquiry Into the History of Opinion With Reference to
Human Autonomy........................................................................43
V. Human Nature Reveals its Own Impotence ..............................121
VI. How Man Becomes Cognizant of the Rule of Life...................127
VII. Of the Rights and Duties Which Nature Reveals ......................141
VIII. How We Become Cognizant of Law in General .......................167
IX. Of the Laws of Natureor Principles of Jurisprudence
Which Result fromthe Human Rights and Duties
which Nature Reveals as Facts ..................................................175
X. Of the Relation Between Legislation and Jueisdiction..............191
XI. Of the History of the Distinction Between Perfect
and Imperfect Obligations; and its Effect in Giving Rise
to the Negative School of Jurisprudence ...................................195
XII. Of Justice and Charity................................................................217
BOOK II
OF THE OBJECTS OF NATURAL LAW, AND
JURISPRUDENCE IN GENERAL
I. Of the Relation Between Jurisprudence and Ethics ..................241
II. Of the Relation Between Order and Liberty..............................251
III. Of the History of the Doctrine thatthe Idea of Liberty
Involvesthe Idea of Absolute Equality.......................................257
IV. Of The Relation of Equality to Liberty Continued....................275
V. Of the Limits within which Aggkession is a Natural Eight ......283
OF THE SOURCES OF POSITIVE LAW,
OR SPECIAL JURISPRUDENCE
BOOK III
I. Of the Ultimate Sources of Positive Law..................................289
II. Of the Proximate Sources of Positive Law................................291
III. Of the Primary Source of Positive Law.....................................293
IV. The Doctrine of the Necessary Sovereignty of the
Rational Will of the Whole Community is in Accordance
with the Common-Sense of Mankind........................................301
Стр.1
V. Of the Secondary Sources of Positive Law...............................307
BOOK IV
OF THE OBJECTS OF POSITIVE LAW
I. Of the Ultimate and Proximate Objects of Positive Law .........355
II. Of the Primary and Secondary Objects of Positive Law ..........355
III. Conclusion .................................................................................367
Стр.2
THE INSTITUTES OF LAW
A TREATISE OF THE
PRINCIPLES OF JURISPRUDENCE
AS DETERMINED BY
N A T U R E
BY
JAMES LORIMER
ADVOCATE, REGIUS PROFESSOR OF PUBLIC LAW AND OF THE LAW OF NATURE AND
NATIONS IN THE UNIVERSITY OF EDINBURGH, MEMBER OF THE INSTITUTE
OF INTERNATIONAL LAW, AND CORRESPONDING MEMBER OF THE
ACADEMY OF JURISPRUDENCE OF MADRID, ETC.
SECOND EDITION, REVISED AND ENLARGED
WILLIAM BLACKWOOD AND SONS
EDINBURGH AND LONDON
MDCCCLXXX
All Rights Reserved
Стр.3
THE INSTITUTES OF LAW
INTRODUCTION
PRELIMINARY DEFINITIONS AND DIVISIONS
I. D
EFINITIONS and divisions are possible only after the subject of
them is known. They must consequently be the goal, rather than
the starting - point, of scientific inquiry. But, on the other hand, inasmuch
as the sight of the butt is necessary to the archer, we shall do well to place
before us at the outset, as clearly as we can, the object at which we aim.
This proceeding is the more necessary in consequence of the want, in our
own system of legal instruction, of any preliminary course corresponding
to what, in Continental Universities, is called Encyclopædia, in which the
skeleton, so to speak, of the science upon which the student is about to
enter is exhibited to him. It has been said with great truth that the
philosophy of law, on the ground that it stands in a general relation to each
of the special branches of the science of law, is itself an encyclopaedia,
but that it is a philosophical encyclopædia. Such an encyclopædia I hope
to furnish in the sequel of this work; but it is a dogmatic sketch alone
which I can attempt at the outset.
With this limited aim, then, the branch of science with the study of
which we shall be here engaged, may be described as having for its object
the discovery of that law which, by the nature of all rational creatures, and
independently of their volition, determines their relations to each other
and to surrounding existences, in so far as this law is mediately or
immediately revealed to human reason and realizable by human will,
under the conditions of human existence in time and space. The validity
of the law of nature, it is true, is not, or at any rate cannot be conceived
by us to be, limited to humanity, or to humanity under the conditions of
time and space. Culverwell accordingly defines it as “that law which is
intrinsical and essential to a rational creature;” and Hegel, regarding it as
the divine conception of Kosmos in human relations, by which the limited
or relative will of the creature is harmonized with the unlimited or
absolute will of the Creator, speaks of it as the reign of liberty realized.”
Seen from this latter point of view, we might define it as the law which
determines the conditions of perfect human co-existence, or, of progress
towards the realization of such co-existence. It is in this light that it
Стр.5