JURISPRUDENCE
_SALMOND_
_BY THE SAME AUTHOR_
THE LAW OF TORTS
A TREATISE ON THE ENGLISH LAW OF LIABILITY FOR CIVIL INJURIES
THIRD EDITION
1912
A SUMMARY OF THE LAW OF TORTS
BEING AN ABRIDGEMENT, FOR THE USE OF STUDENTS, OF THE SAME AUTHOR’S
TREATISE ON THE LAW OF TORTS
1912
LONDON
STEVENS AND HAYNES
JURISPRUDENCE
BY
JOHN W. SALMOND
SOLICITOR-GENERAL FOR NEW ZEALAND
=FOURTH EDITION=
LONDON
STEVENS AND HAYNES
BELL YARD, TEMPLE BAR
1913
PRINTED AT
THE BALLANTYNE PRESS
LONDON
PREFACE TO THE FIRST EDITION
I have endeavoured to make this book useful to more than one class of
readers. It is written primarily for the use of those students of the
law who are desirous of laying a scientific foundation for their legal
education; yet I hope that it will not be found destitute of interest by
those lawyers whose academic studies lie behind them, but who have not
wholly ceased to concern themselves with the theoretical and scientific
aspects of the law. Further, a great part of what I have written is
sufficiently free from the technicalities and details of the concrete
legal system to serve the purposes of those laymen who, with no desire
to adventure themselves among the repellent mysteries of the law, are
yet interested in those more general portions of legal theory which
touch the problems of ethical and political science.
It will be noticed that occasional passages of the text are printed in
smaller type. These are of lesser importance, of greater difficulty, or
of a controversial or historical character, and are not essential to the
continuity of the exposition.
Certain parts of this book have already been published in the Law
Quarterly Review, and I have also incorporated in it the substance of a
much smaller work published by me some years ago under the title of “The
First Principles of Jurisprudence.” I have not thought it necessary to
allude in the text to certain discrepancies in matters of detail between
my earlier and later views, and it will be understood that the present
work wholly supersedes the earlier, as containing a re-statement of the
substance of it in a more comprehensive form.
J. W. S.
ADELAIDE,
_March 1902_
PREFACE TO THE FOURTH EDITION
This edition is substantially a reprint of the third, which was
published in 1910.
J. W. S.
LONDON,
_May 1913_
CONTENTS
CHAPTER I
THE SCIENCE OF JURISPRUDENCE
PAGE
§ 1. Jurisprudence as the Science of Law 1
§ 2. Jurisprudence as the Science of Civil Law 3
§ 3. Theoretical Jurisprudence 4
§ 4. English and Foreign Jurisprudence 7
CHAPTER II
CIVIL LAW
§ 5. The Definition of Law 9
§ 6. The Administration of Justice 10
§ 7. Law logically subsequent to the Administration of Justice 12
§ 8. Law and Fact 15
§ 9. The Justification of the Law 19
§ 10. The Defects of the Law 23
§ 11. General and Special Law 28
§ 12. Common Law 32
§ 13. Law and Equity 34
CHAPTER III
OTHER KINDS OF LAW
§ 14. Law in General—A Rule of Action 40
§ 15. Physical or Scientific Law 41
§ 16. Natural or Moral Law 43
§ 17. Imperative Law 47
§ 18. Conventional Law 54
§ 19. Customary Law 55
§ 20. Practical Law 56
§ 21. International Law 56
§ 22. The Law of Nations as Natural Law 59
§ 23. The Law of Nations as Customary Law 60
§ 24. The Law of Nations as Imperative Law 61
CHAPTER IV
THE ADMINISTRATION OF JUSTICE
§ 25. Necessity of the Administration of Justice 65
§ 26. Origin of the Administration of Justice 67
§ 27. Civil and Criminal Justice 70
§ 28. The Purposes of Criminal Justice: Deterrent Punishment 75
§ 29. Preventive Punishment 75
§ 30. Reformative Punishment 76
§ 31. Retributive Punishment 80
§ 32. Civil Justice: Primary and Sanctioning Rights 84
§ 33. A Table of Legal Remedies 87
§ 34. Penal and Remedial Proceedings 88
§ 35. Secondary Functions of Courts of Law 89
CHAPTER V
THE STATE
§ 36. The Nature and Essential Functions of the State 93
§ 37. Secondary Functions of the State 98
§ 38. The Territory of the State 99
§ 39. The Membership of the State 99
§ 40. The Constitution of the State 105
§ 41. The Government of the State 110
§ 42. Independent and Dependent States 111
§ 43. Unitary and Composite States 114
CHAPTER VI
THE SOURCES OF LAW
§ 44. Formal and Material Sources 117
§ 45. Legal and Historical Sources 117
§ 46. A List of Legal Sources 120
§ 47. The Sources of Law as Constitutive and Abrogative 123
§ 48. Sources of Law and Sources of Rights 124
§ 49. Ultimate Legal Principles 125
CHAPTER VII
LEGISLATION
§ 50. The Nature of Legislation 127
§ 51. Supreme and Subordinate Legislation 129
§ 52. Relation of Legislation to other Sources 132
§ 53. Codification 136
§ 54. The Interpretation of Enacted Law 137
CHAPTER VIII
CUSTOM
§ 55. The Early Importance of Customary Law 143
§ 56. Reasons for the Reception of Customary Law 144
§ 57. The Requisites of a Valid Custom 146
§ 58. Conventional Custom 153
§ 59. Theories of Customary Law 154
§ 60. Custom and Prescription 157
CHAPTER IX
PRECEDENT
§ 61. The Authority of Precedents 159
§ 62. Declaratory and Original Precedents 160
§ 63. Authoritative and Persuasive Precedents 163
§ 64. The Absolute and Conditional Authority of Precedents 164
§ 65. The Disregard of a Precedent 165
§ 66. Precedents Constitutive, not Abrogative 168
§ 67. Grounds of the Authority of Precedents 170
§ 68. The Sources of Judicial Principles 174
§ 69. Respective Functions of Judges and Juries 176
CHAPTER X
LEGAL RIGHTS
§ 70. Wrongs 179
§ 71. Duties 180
§ 72. Rights 181
§ 73. The Elements of a Legal Right 185
§ 74. Legal Rights in a wider sense of the term 190
§ 75. Libertie 190
§ 76. Powers 192
§ 77. Duties, Disabilities, and Liabilities 194
CHAPTER XI
THE KINDS OF LEGAL RIGHTS
§ 78. Perfect and Imperfect Rights 197
§ 79. The Legal Nature of Rights against the State 199
§ 80. Positive and Negative Rights 201
§ 81. Real and Personal Rights 202
§ 82. Proprietary and Personal Rights 207
§ 83. Rights in re propria and Rights in re aliena 212
§ 84. Principal and Accessory Rights 216
§ 85. Legal and Equitable Rights 217
CHAPTER XII
OWNERSHIP
§ 86. The Definition of Ownership 220
§ 87. Corporeal and Incorporeal Ownership 221
§ 88. Corporeal and Incorporeal Things 225
§ 89. Sole Ownership and Co-ownership 226
§ 90. Trust and Beneficial Ownership 227
§ 91. Legal and Equitable Ownership 231
§ 92. Vested and Contingent Ownership 232
CHAPTER XIII
POSSESSION
§ 93. Introduction 236
§ 94. Possession in Fact and in Law 237
§ 95. Corporeal and Incorporeal Possession 239
§ 96. Corporeal Possession 240
§ 97. The Animus Possidendi 242
§ 98. The Corpus of Possession 244
§ 99. Relation of the Possessor to other Persons 244
§ 100. Relation of the Possessor to the Thing Possessed 250
CHAPTER XIV
POSSESSION (_continued_)
§ 101. Immediate and Mediate Possession 252
§ 102. Concurrent Possession 256
§ 103. The Acquisition of Possession 256
§ 104. Possession not essentially the Physical Power of Exclusion 258
§ 105. Incorporeal Possession 261
§ 106. Relation between Possession and Ownership 264
§ 107. Possessory Remedies 267
CHAPTER XV
PERSONS
§ 108. The Nature of Personality 272
§ 109. The Legal Status of the Lower Animals 273
§ 110. The Legal Status of Dead Men 275
§ 111. The Legal Status of Unborn Persons 277
§ 112. Double Personality 278
§ 113. Legal Persons 279
§ 114. Corporations 281
§ 115. The Agents, Beneficiaries, and Members of a Corporation 285
§ 116. The Acts and Liabilities of a Corporation 287
§ 117. The Uses and Purposes of Incorporation 289
§ 118. The Creation and Extinction of Corporations 293
§ 119. The State as a Corporation 294
CHAPTER XVI
TITLES
§ 120. Vestitive Facts 299
§ 121. Acts in the Law 301
§ 122. Agreements 305
§ 123. The Classes of Agreements 307
§ 124. Void and Voidable Agreements 309
CHAPTER XVII
LIABILITY
§ 125. The Nature and Kinds of Liability 319
§ 126. The Theory of Remedial Liability 320
§ 127. The Theory of Penal Liability 321
§ 128. Acts 323
§ 129. Two Classes of Wrongful Acts 327
§ 130. Damnum sine Injuria 329
§ 131. The Place and Time of an Act 330
§ 132. Mens Rea 332
CHAPTER XVIII
INTENTION AND NEGLIGENCE
§ 133. The Nature of Intention 335
§ 134. Intention and Motive 338
§ 135. Malice 340
§ 136. Relevance and Irrelevance of Motives 341
§ 137. Criminal Attempts 343
§ 138. Other Exceptions to the Irrelevance of Motives 346
§ 139. Jus necessitatis 347
§ 140. Negligence 348
§ 141. Objection Considered 352
§ 142. The Standard of Care 354
§ 143. Degrees of Negligence 358
§ 144. Other Theories of Negligence 361
CHAPTER XIX
LIABILITY (_continued_)
§ 145. Wrongs of Absolute Liability 366
§ 146. Mistake of Law 368
§ 147. Mistake of Fact 369
§ 148. Accident 371
§ 149. Vicarious Responsibility 374
§ 150. The Measure of Criminal Liability 377
§ 151. The Measure of Civil Liability 382
CHAPTER XX
THE LAW OF PROPERTY
§ 152. Meanings of the term Property 385
§ 153. Kinds of Property 387
§ 154. The Ownership of Material Things 387
§ 155. Movable and Immovable Property 390
§ 156. Real and Personal Property 394
§ 157. Rights in re propria in Immaterial Things 395
§ 158. Leases 397
§ 159. Servitudes 400
§ 160. Securities 402
§ 161. Modes of Acquisition: Possession 406
§ 162. Prescription 408
§ 163. Agreement 412
§ 164. Inheritance 416
CHAPTER XXI
THE LAW OF OBLIGATIONS
§ 165. The Nature of Obligations 422
§ 166. Solidary Obligations 424
§ 167. The Sources of Obligations 427
§ 168. Obligations arising from Contracts 427
§ 169. Obligations arising from Torts 428
§ 170. Obligations arising from Quasi-Contracts 432
§ 171. Innominate Obligations 435
CHAPTER XXII
THE LAW OF PROCEDURE
§ 172. Substantive Law and the Law of Procedure 437
§ 173. Evidence 440
§ 174. The Valuation of Evidence 444
§ 175. The Production of Evidence 449
§ 176. Criticism of the Law of Evidence 452
APPENDICES
I. THE NAMES OF THE LAW 457
II. THE THEORY OF SOVEREIGNTY 467
III. THE MAXIMS OF THE LAW 474
IV. THE DIVISIONS OF THE LAW 481
V. THE LITERATURE OF JURISPRUDENCE 487
INDEX 497
JURISPRUDENCE.
CHAPTER I.
THE SCIENCE OF JURISPRUDENCE.
§ 1. =Jurisprudence as the Science of Law.=
In the widest of its applications the term jurisprudence means the
science of law, using the word law in that vague and general sense in
which it includes all species of obligatory rules of human action. Of
jurisprudence in this sense, there are as many divisions as there are
kinds of law which have been deemed sufficiently important and well
developed to serve as the subject-matter of distinct branches of
learning. They are at least three in number:
1. _Civil Jurisprudence._—This is the science of civil law, that is to
say, the law of the land. Its purpose is to give a complete and
systematic account of that complex body of principles which is received
and administered in the tribunals of the state.
2. _International Jurisprudence._—This is the science of international
law or the law of nations. It is concerned not with the rules which are
in force _within_ states, but with those which prevail _between_ states.
Just as the conduct of the subjects of a single state is governed by the
civil law, so international law regulates the conduct of states
themselves in their relations towards each other.
3. _Natural Jurisprudence._—This is the science of that which our
forefathers termed natural law or the law of nature (_jus naturale_). By
this they meant the principles of natural justice—justice as it is in
itself, in deed and in truth, as contrasted with those more or less
imperfect and distorted images of it which may be seen in civil and
international law. Whether these principles of natural justice are
rightly entitled to the name of law—whether natural law, so called, can
be rightly classed along with civil and international law as a species
of the same genus—is a question which it is not needful for us here to
discuss. It is sufficient for our present purpose to note the historical
fact, that there is a very extensive literature in which the law of
nature is given a place side by side with civil law and the law of
nations (_jus naturale_, _jus civile_, and _jus gentium_), and in which
the resulting threefold division of jurisprudence into natural, civil,
and international, is recognised as valid.
Books of natural jurisprudence are in their essence books of ethics or
moral philosophy, limited, however, to that department which is
concerned with _justice_, as opposed to the other forms of right, while
the method and the point of view are those of the lawyer rather than of
the moral philosopher. Experience has shown, however, that this abstract
theory of justice in itself, this attempt to work out _in abstracto_ the
principles of natural right, is a sufficiently unprofitable form of
literature. In England both name and thing have become in recent years
all but obsolete. Yet there are not wanting even at this day examples of
the earlier way of thought. The most notable of these is the late
Professor Lorimer’s _Institutes of Law, a Treatise of the Principles of
Jurisprudence as determined by Nature_. On the Continent, on the other
hand, the literature of natural law, though no longer as flourishing as
it was, is still of importance. One of the best known works of this
class is Ahrens’ _Cours de Droit Naturel_. A typical example from an
earlier epoch is Pufendorf’s once celebrated but now neglected work, _De
Jure Naturae et Gentium_ (1672).[1]
§ 2. =Jurisprudence as the Science of Civil Law.=
In a second and narrower sense, jurisprudence, instead of including all
three of the foregoing divisions, is limited to one only, namely, that
which we have distinguished as civil. It is the science of civil law. A
similar specific application belongs to the term law also, for when we
speak of law without any qualifying epithet, we commonly mean that
particular form which is administered in the tribunals of the state. So
when we speak of jurisprudence without more, we usually intend the
science of this special kind of law and this alone.[2]
Civil jurisprudence is divisible into three branches, which may be
distinguished as _Systematic_, _Historical_, and _Critical_. The first
deals with the present; its purpose is the exposition of the legal
system as it now is. The second deals with the past; it is concerned
with the legal system in the process of its historical development. The
third deals with the ideal future; it expounds the law not as it is or
has been, but as it ought to be. Systematic jurisprudence is legal
exposition; historical jurisprudence is legal history; while critical
jurisprudence is commonly known as the science of legislation.
§ 3. =Theoretical Jurisprudence.=
There is yet a third and still narrower sense, in which jurisprudence
includes not the whole science of civil law, but only a particular part
of it. In this limited signification it may be termed abstract,
theoretical, or general, to distinguish it from the more concrete,
practical, and special departments of legal study. It is with this form
only that we are concerned in the present treatise. How, then, shall we
define it, and how distinguish it from the residue of the science of the
civil law? It is _the science of the first principles of the civil law_.
It is not possible, indeed, to draw any hard line of logical division
between these first principles and the remaining portions of the legal
system. The distinction is one of degree rather than of kind.
Nevertheless it is expedient to set apart, as the subject-matter of a
special department of study, those more fundamental conceptions and
principles which serve as the basis of the concrete details of the law.
This introductory and general portion of legal science, cut off for
reasons of practical convenience from the special portions which come
after it, constitutes the subject-matter of our inquiry. It comprises
the first principles of civil jurisprudence in all its three divisions,
systematic, historical, and critical. The fact that its boundaries are
not capable of being traced with logical precision detracts in no degree
from the advantages to be derived from its recognition and separate
treatment as a distinct department of juridical science. Practical legal
exposition acknowledges no call to rise to first principles, or to
proceed to ultimate analysis. From the point of view of law as an art,
the importance of conceptions and principles varies inversely with their
abstractness or generality. Practical jurisprudence proceeds from below
upward, and ascends no further than the requirements of use and practice
demand. Theoretical jurisprudence, on the contrary, attributes value to
the abstract and the general, rather than to the concrete and the
particular. Even when these two departments of knowledge are coincident
in their subject-matter, they are far apart in their standpoints,
methods, and purposes. The aim of the abstract study is to supply that
theoretical foundation which the _science_ of law demands, but of which
the art of law is careless.
Opinions may well differ to some extent as to the matters which are fit,
by reason of their generality or their theoretic and scientific
interest, to find a place among the contents of abstract jurisprudence.
Speaking generally, however, it may be said that this science
appropriately deals with such matters as the following:
1. An analysis of the conception of civil law itself, together with an
examination of the relations between this and other forms of law.
2. An analysis of the various subordinate and constituent ideas of which
the complex idea of the law is made up; for example, those of the state,
of sovereignty, and of the administration of justice.
3. An account of the sources from which the law proceeds, with an
investigation into the theory of legislation, precedent, and customary
law.
4. An examination of the general principles of legal development, as
contrasted with the historic details of the growth of the individual
legal system, this last pertaining to legal history.
5. An inquiry into the scientific arrangement of the law, that is to
say, the logical division of the _corpus juris_ into distinct
departments, together with an analysis of the distinctions on which the
division is based.
6. An analysis of the conception of legal rights together with the
division of rights into various classes, and the general theory of the
creation, transfer, and extinction of rights.
7. An investigation of the theory of legal liability, civil and
criminal.
8. An examination of any other juridical conceptions which by reason of
their fundamental character, or their theoretical interest,
significance, or difficulty, deserve special attention from the abstract
point of view; for example, property, possession, obligations, trusts,
incorporation, and many others.[3]
It may avoid misconceptions, and assist us in understanding what
theoretical jurisprudence _is_, if we state shortly what it _is not_.
1. In the first place it is not an elementary outline of the concrete
legal system. It deals not with the outlines of the law, but with its
ultimate conceptions. It is concerned not with the simplest and easiest,
but with some of the most abstruse and difficult portions of the legal
system. Theoretical jurisprudence is not elementary law, any more than
metaphysics is elementary science.
2. In the second place it is not, as the name _general_ jurisprudence
suggests, and as some writers have held,[4] the science of those
conceptions and principles which all or most systems of law have in
common. It is true, indeed, that a great part of the matter with which
it is concerned is to be found in all mature legal systems. All these
have the same essential nature and purposes, and therefore agree to a
large extent in their fundamental principles. But it is not because of
this universal reception, that such principles pertain to theoretical
jurisprudence. Were it a rule of every country in the world that a man
could not marry his deceased wife’s sister, the rule would not for that
reason be entitled to a place in this department of legal science.
Conversely, as universal reception is not sufficient, so neither is it
necessary. Even if no system in the world, save that of England,
recognised the legislative efficacy of precedent, the theory of case-law
would none the less be a fit and proper subject of the science in
question.
3. Finally, this branch of knowledge has no exclusive claim to the name
of jurisprudence or of legal science. It is not, as some say, the
science of law, but is simply the introductory portion of it. As we have
already seen, it is not even capable of definite and logical separation
from the residue of legal learning. The division is one suggested by
considerations of practical convenience, not demanded by the
requirements of logic.
The divisions of legal science, as they have been stated and explained
in the foregoing pages, may be exhibited in tabular form as follows:
{ Theoretical. The Theory of Civil Law—The Science
{ of the First Principles of Civil Law.
{
{ Civil { { Systematic—Legal Exposition.
{ { {
{ { Practical { Historical—Legal History.
{ {
{ { Critical—The Science of Legislation.
JURISPRUDENCE, {
or the Science {
of Law in { International. The Science of the Law of Nations.
General. {
{
{
{ Natural. The Science of Natural Law and Justice.
§ 4. =English and Foreign Jurisprudence.=
The use of the term jurisprudence to indicate exclusively that special
branch of knowledge which we have termed theoretical jurisprudence, is a
peculiarity of English nomenclature. In foreign literature jurisprudence
and its synonyms include the whole of legal science and are never used
in this specific and limited signification. The foreign works which
correspond most accurately to the English literature of this subject are
of three different kinds:—
1. Works devoted to the subject known as _Juridical Encyclopædia_, one
of the best known examples of which is that of Arndts. He defines this
department of legal science as comprising “a scientific and systematic
outline or general view of the whole province of jurisprudence
(_Rechtswissenschaft_), together with the general data of that science.”
“Its purpose,” he adds, “is to determine the compass and limits of
jurisprudence, its relations to other sciences, its internal divisions,
and the mutual relations of its constituent parts.”[5]
2. Books of _Pandektenrecht_ (that is to say, Modern Roman Law), and
more especially the Introductory or General Part of these works. German
jurists have devoted extraordinary energy and acumen to the analysis and
exposition of the law of the Pandects, in that modern form in which it
was received in Germany until superseded by recent legislation. Much of
the work so done bears too special a reference to the details of the
Roman system to be in point with respect to the theory of English law.
The more general portions, however, are admirable examples of the
scientific analysis of fundamental legal conceptions. Special mention
may be made of the unfinished _System of Modern Roman Law_ by Savigny,
and of the similar works of Windscheid and Dernburg.
3. A third form of foreign literature which corresponds in part to our
English books of jurisprudence, consists of those works of
_jurisprudentia naturalis_ which have been already referred to. These
contain the theory of natural law and natural justice, while English
jurisprudence is concerned with civil law, and with the civil or legal
justice which that law embodies. Yet the relation between natural and
civil law, natural and civil justice, is so intimate that the theory of
the one is implicitly, if not explicitly, that of the other also.
Widely, therefore, as they differ in aspect, we may place the French
_Philosophie du droit naturel_ and the German _Naturrechtswissenschaft_
side by side with our own theoretical jurisprudence. It is, indeed, from
the earlier literature of natural law, as represented by Pufendorf,
Burlamaqui, Heineccius, and others,[6] that the modern English
literature of jurisprudence is directly descended.[7]