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CONTENTS
OF
THE FIRST VOLUME.

—◆—

Preface (by Sarah Austin) Page 1
Outline of the Course of Lectures 31

THE PROVINCE OF JURISPRUDENCE DETERMINED.

Analysis of Lectures I.-VI. 79

LECTURE I.

The purpose of the following attempt to determine the province of jurisprudence, stated or suggested [86].—The manner of the following attempt to determine the province of jurisprudence.—Law: what in most comprehensive literal sense [86].—Law of God [86].—Human Laws [86].—Two classes: 1st. Laws set by political superiors [86]; 2ndly, Laws set by men not political superiors [87].—Objects improperly, but by close analogy, termed laws [87].—The two last placed in one class under the name positive morality [87].—Objects metaphorically termed laws [88].—Laws or rules, properly so called, are a species of commands [88].—The meaning of the term command [89].—The meaning of the term duty [89].—The terms command and duty are correlative [89].—The meaning of the term sanction [89].—To the existence of a command, a duty, and a sanction, a violent motive to compliance is not requisite [90].—Rewards are not sanctions [90].—The meaning of the term command, briefly re-stated [91].—The inseparable connection of the three terms, command, duty, and sanction [91].—The manner of that connection [92].—Laws or rules distinguished from commands which are occasional or particular [92].—The definition of a law or rule, properly so called [96].—The meaning of the correlative terms superior and inferior [96].—Laws (improperly so called) which are not commands [97].—Laws (properly so called) which may seem not imperative [100].—Laws which are not commands, enumerated [103]. 86

LECTURE II.

The connection of the second with the first lecture [103].—The Divine laws, or the laws of God [103].—Of the Divine laws, some are revealed, and others are unrevealed [104].—Such of the Divine laws as are revealed [104].—Such of the Divine laws as are unrevealed [104].—What is the index to such of the Divine laws as are unrevealed [105]?—The hypotheses or theories which regard the nature of xvithat index [105].—The hypothesis or theory of a moral sense, or innate practical principles; of a practical reason; of a common sense, etc. etc [105].—The theory or hypothesis of utility [106].—A brief summary of the theory of utility [106].—The following explanations of that summary briefly introduced [106].—The true tendency of a human action, and the true test of that tendency [107].—According to the theory of utility, God’s commands are mostly rules [108].—It does not follow from the theory of utility, that every useful action is the object of a Divine injunction; and every pernicious action, the object of a Divine prohibition [109].—A current and specious objection to the theory of utility, introduced and stated [110].—The two apt answers to the foregoing objection briefly introduced [112].—The first answer to the foregoing objection stated [112].—The second answer to the foregoing objection briefly introduced [113].—If our conduct were truly adjusted to the principle of general utility, our conduct would conform, for the most part, to rules; rules which emanate from the Deity, and to which the tendencies of human actions are the guide or index [114].—Theory and practice are inseparable [115].—If our conduct were truly adjusted to the principle of general utility, our conduct would be guided, for the most part, by sentiments associated with rules; rules which emanate from the Deity, and to which the tendencies of human actions are the guide or index [116].—If our conduct were truly adjusted to the principle of general utility, our conduct would conform, for the most part, to Divine rules, and would also be guided, for the most part, by sentiments associated with those rules. But, in anomalous and excepted cases (of comparatively rare occurrence), our conduct would be fashioned directly on the principle of general utility, or guided by a conjecture and comparison of specific or particular consequences [117].—The second answer to the foregoing objection, briefly resumed [122]. 103

LECTURE III.

Apology for introducing the principle of utility [122].—The connection of the third with the second lecture [123].—A second objection to the theory of utility, stated [123].—An answer to that second objection, introduced [124].—An objection to the foregoing answer, stated [126].—The foregoing objection to the foregoing answer solved or extenuated [127].—The second objection to the theory of utility, together with the foregoing answer to that second objection briefly re-stated [138]. 122

LECTURE IV.

The connection of the fourth with the third lecture [140].—The second objection to the theory of utility, resumed [141].—A further answer to that second objection [142].—The hypothesis of a moral sense, briefly introduced [144].—‘A moral sense,’ ‘a common sense,’ ‘a moral instinct,’ ‘a principle of reflection or conscience,’ ‘a practical reason,’ ‘innate practical principles,’ ‘connate practical principles,’ etc. etc., are various expressions for one and the same hypothesis [144].—The hypothesis in question involves two assumptions [144].—The first of the two assumptions involved by the hypothesis in question stated in general expressions [144].—The foregoing statement of the first assumption, exemplified and explained by an imaginary case [145].—The first of the two assumptions involved by the hypothesis in question, briefly re-stated in general expressions [148].—The second of the two assumptions involved by the hypothesis in question, briefly stated [149].—As an index to God’s commands, a moral sense were less fallible than the principle of general utility [150].—But is there any evidence to sustain the hypothesis in xviiquestion [150]?—The hypothesis in question is disproved by the negative state of our consciousness [150].—The two current arguments in favour of the hypothesis in question, briefly stated [150].—The first argument in favour of the hypothesis in question, examined [151].—The second argument in favour of the hypothesis in question, examined [151].—A brief statement of the fact whereon the second argument in favour of the hypothesis in question is founded [153].—The fact accords exactly with the hypothesis or theory of utility [153].—A brief statement of the intermediate hypothesis which is compounded of the hypothesis of utility and the hypothesis of a moral sense [153].—The division of positive law into law natural and law positive, and the division of jus civile into jus gentium and jus civile, suppose or involve the intermediate hypothesis which is compounded of the hypothesis of utility and the hypothesis of a moral sense [154].—The foregoing disquisitions on the index to God’s commands, closed with an endeavour to clear the theory of utility from two current though gross misconceptions [155].—The two misconceptions stated [155].—The first misconception examined [156].—The second misconception examined [162]. 140

LECTURE V.

Laws proper or properly so called, and laws improper or improperly so called [167].—Analogy and metaphor as used in common parlance defined [167].—Laws improper are of two kinds: 1. Laws closely analogous to laws proper; 2. Laws metaphorical or figurative [169].—Division of laws proper, and of such improper laws as are closely analogous to the proper [169].—Distribution of laws proper, and of such improper laws as are closely analogous to the proper, under three capital classes: 1. The law of God, or the laws of God; 2. Positive law, or positive laws; 3. Positive morality, rules of positive morality, or positive moral rules [170].—Digression to explain the expressions positive law and positive morality [171].—Explanation of the following expressions, viz. science of jurisprudence and science of positive morality; science of ethics or deontology, science of legislation and science of morals [172].—Meaning of the epithet good or bad as applied to a human law [173].—Meaning of the epithet good as applied to the law of God [174].—The expression law of nature, or natural law, has two disparate meanings. It signifies the law of God, or a portion of positive law and positive morality [175].—The connection of the present (the fifth) lecture with the first, second, third, fourth, and sixth [176].—The essentials of a law properly so called, together with certain consequences which those essentials import [178].—The laws of God, and positive laws, are laws properly so called [178].—The generic character of positive moral rules [179].—Of positive moral rules, some are laws proper, but others are laws improper. —The positive moral rules, which are laws properly so called, are commands [179].—Laws set by men, as private persons, in pursuance of legal rights [180].—The positive moral rules, which are laws improperly so called, are laws set or imposed by general opinion [182].—A law set or imposed by general opinion, is merely the opinion or sentiment of an indeterminate body of persons in regard to a kind of conduct [183].—A brief statement of the analogy between a law proper and a law set or imposed by general opinion [184].—Distinction between a determinate and an indeterminate body of single or individual persons [186].—Laws set by general opinion, or opinions or sentiments of indeterminate bodies, are the only opinions or sentiments that have gotten the name of laws. But an opinion or sentiment held or felt by an individual, or by all the members of a certain aggregate, may be as closely analogous to a law proper as the opinion or sentiment of an indeterminate body [193].—The foregoing distribuxviiition of laws proper, and of such improper laws as the closely analogous to the proper, briefly recapitulated [195].—The sanctions, proper and improper, by which those laws are, respectively enforced; the duties, proper and improper, which those laws respectively impose; and the rights, proper and improper, which those laws respectively confer [195].—The law of God, positive law, and positive morality, sometimes coincide, sometimes do not coincide, and sometimes conflict [197].—The acts and forbearances, which, according to the theory of utility, are objects of the law of God; and other acts end forbearances, which, according to the same theory, ought to be objects respectively of positive morality and law [198].—The foregoing distribution of laws proper, and of such improper laws as are closely analogous to the proper, tallies, in the main, with a division of laws which is given incidentally by Locke in his ‘Essay on Human Understanding’ [200].—Laws metaphorical or figurative.—The common and negative nature of laws of the class [205].—The common and negative nature of laws metaphorical or figurative, shewn by examples [206].—Laws metaphorical or figurative are often blended and confounded with laws imperative and proper [208].—Physical or natural sanctions [212].—In strictness, declaratory law, laws repealing laws, and laws of imperfect obligation (in the sense of the Roman jurists), ought to be classed respectively with laws, metaphorical or figurative, and rules of positive morality [214].—Note on prevailing tendency: 1st, to confound positive law with the science of legislation, and positive morality with deontology [214]: Examples from Blackstone [214], Paley [216], the writers on international law [216]: 2ndly, to confound positive law with positive morality, and both with legislation and deontology [216]; Examples from the Roman jurists [217] and Lord Mansfield [218]. 167

LECTURE VI.

The connection of the sixth lecture with the first, second, third, fourth, and fifth [219].—The distinguishing marks of sovereignty and independent political society [220].—The relation of sovereignty and subjection [221].—Strictly speaking, the sovereign portion of the society, and not the society itself, is independent, sovereign, or supreme [221].—In order that a given society may form a society political and independent, the two distinguishing marks which are mentioned above must unite [221].—A society independent but natural [225].—Society formed by the intercourse of independent political societies [225].—A society political but subordinate [226].—A society not political, but forming a limb or member of a society political and independent [226].—The definition of the abstract term independent political society (including the definition of the correlative term sovereignty) cannot be rendered in expressions of perfectly precise import, and is therefore a fallible test of specific or particular cases [226].—In order that an independent society may form a society political, it must not fall short of a number which cannot be fixed with precision, but which may be called considerable, or not extremely minute [231].—Certain of the definitions of the term sovereignty, and of the implied or correlative term independent political society, which have been given by writers of celebrity [234].—The ensuing portion of the present lecture Is concerned with the following topics:—1. The forms of supreme government; 2. The limits of sovereign power; 3. The origin of government, or the origin of political society [237].—The forms of supreme government [237].—Every supreme government is a monarchy (properly so called), or an aristocracy (in the generic meaning of the expression). In other words, it is a government of one, or a government of a number [237].—Of such distinctions between aristocracies as are founded on differences xixbetween the proportions which the number of the sovereign body may bear to the number of the community [239].—Of such distinctions between aristocracies as are founded on differences between the modes wherein the sovereign number may share the sovereign powers [240].—Of such aristocracies as are styled limited monarchies [240].—Various meanings of the following terms:—1. The term ‘sovereign,’ or ‘the sovereign;’ 2. The term ‘republic,’ or ‘commonwealth;’ 3. The term ‘state,’ or ‘the state;’ 4. The term ‘nation’ [242].—Of the exercise of sovereign powers by a monarch or sovereign body, through political subordinates or delegates representing their sovereign author [243].—Of the distinction of sovereign, and other political powers into such as are legislative, and such as are executive or administrative [248].—The true natures of the communities or governments which are styled by writers on positive international law half sovereign states [252].—The nature of a composite state or a supreme federal government: with the nature of a system of confederated states, or a permanent confederacy of supreme governments [257].—The limits of sovereign power [263].—The essential difference of a positive law [263].—It follows from the essential difference of a positive law, and from the nature of sovereignty and independent political society, that the power of a monarch properly so called, or the power of a sovereign number in its collegiate and sovereign capacity, is incapable of legal limitation [263].—Attempts of sovereigns to oblige themselves, or to oblige the successors to their sovereign powers [264].—The meanings of the epithet unconstitutional, as it is contradistinguished to the epithet illegal, and as it is applied to conduct of a monarch, or to conduct of a sovereign number in its collegiate and sovereign capacity [265].—The meaning of Hobbes’s proposition, that ‘no law can be unjust’ [268].—Just or unjust, justice or injustice is a term of relative and varying import [268].—Considered severally, the members of a sovereign body are in a state of subjection to the body, and may therefore be legally bound, even as members of the body, by laws of which it is the author [269].—The nature of political or civil liberty, together with the supposed difference between free and despotic governments [273].—Why it has been doubted, that the power of a sovereign is incapable of legal limitation [278].—The proposition is asserted expressly by renowned political writers of opposite parties or sects [278].—A sovereign government of one, or a sovereign government of a number in its collegiate and sovereign capacity, has no legal rights (in the proper acceptation of the term) against its own subjects [280].—‘Right is might’ [284].—‘Right’ as meaning ‘faculty,’ and ‘right’ as meaning ‘justice.’—‘Right’ as meaning ‘faculty,’ and ‘right’ as meaning ‘law’ [284].—From an appearance of a sovereign government before a tribunal of its own, we cannot infer that the government lies under legal duties, or has legal rights against its own subjects [287].—Though a sovereign government of one, or a sovereign government of a number in its collegiate and sovereign capacity, cannot have legal rights against its own subjects, it may have a legal right against a subject or subjects of another sovereign government [289].—The origin or causes of political government and society [290].—The proper purpose or end of political government and society, or the purpose or end for which they ought to exist [291].—The position ‘that every government continues through the people’s consent,’ and the position ‘that every government arises through the people’s consent,’ examined and explained [295].—The hypothesis of the original covenant or the fundamental civil pact [299].—The distinction of sovereign governments into governments de jure and governments de facto [326].—General statement of the province of jurisprudence as defined in the foregoing lectures [330]. 219

xx  ANALYSIS OF PERVADING NOTIONS.

LECTURE XII.

Recapitulation.—Natural and moral rights, or rights which are merely sanctioned religiously or morally [343].—Ideas, the analysis of which is inevitably involved in that of right [344].—Obligations or duties are positive or negative [346].—Forbearances cannot be styled with propriety negative services [346].—Obligations are relative or absolute [347].—Rights imply persons, things, acts, and forbearances [347].—Persons, natural or fictitious [347].—Meaning of ‘physical person,’ or ‘person’ simply [348].—‘Person’ frequently synonymous with ‘status’ or ‘condition’ [352].—Fictitious or legal persons [354]. 343

LECTURE XIII.

Recapitulation [357].—Meaning of ‘thing’ [358].—Distinctions between things [360].—Things signifying acts and forbearances [360].—Corporeal and incorporeal things [361].—Distinction between jura rerum and jura personarum briefly introduced [363]. 357

LECTURE XIV.

Persons and things [364].—Persons and things distinguished [365].—Events [365].—Events are simple or complex [365].—Import of ‘fact’ and ‘incident’ [365].—Acts and forbearances [365].—Act [365].—Forbearance [366].—Introduction to the distinction between jus in rem and jus in personam [367].—Distinction between jus in rem and jus in personam [370].—Illustrations of the distinction between jus in rem and jus in personam [371].—Property [371].—Servitus [372].—Examples of rights in personam [373].—1st. A right arising out of a contract [374].—2ndly. A right founded on an injury [378]. 364

LECTURE XV.

Further illustrations of the distinction between jus in rem and jus in personam [382].—Jus in rem restricted by certain writers to jus in rem over or in things [382].—Rights in rem over persons [384].—A person who is the subject of jus in rem is placed in a position like the position of a thing which is the subject of a similar right. And may be styled (by analogy) a thing [385].—Jus realiter personale. Rights in rem, without determinate subjects [388]. 381

LECTURE XVI.

Purpose and order of the present lecture [393].—Common nature of rights [394].—Certain definitions of a right examined [397]. 393

LECTURE XVII.

Import of ‘right’ in abstract [400].—Duties are relative or absolute [401].—Absolute duties defined by exhaustive enumeration [401].—Order in which I shall consider absolute duties in the present lecture [402].—Self-regarding duties and duties not regarding man, regard persons generally in respect of their xxiremote purpose [402].—Relative duties regard persons generally in respect of their remote purpose [403].—Duties towards persons generally are, indirectly, duties towards determinate persons [403].—Jus publicum et privatum [404].—Civil injuries and crimes [404].—Difference between relative and absolute duties, etc [405].—Distinctions between absolute duties [406]. 400

LECTURE XVIII.

Brief review of preceding lectures [407].—Obligation, injury, and sanction imply motive, will, intention, negligence, and rashness [410].—Apology for inquiry into ‘motive,’ ‘will,’ etc [410].—The will [411].—Dominion of the will limited to bodily organs [412].—Dominion of the will limited to some bodily organs [413].—Dominion of the will extends not to the mind [413].—Volitions, what [414]?—Acts, what [414]?—Names of acts comprise certain of their consequences [415].—Confusion of will and intention [415].—Motive and will [415].—Motives to volitions [416].—Motives to motives [416].—Why the will has attracted so much attention; and been thought mysterious [416]. 407

LECTURE XIX.

Volitions and motives [418]. —Acts [419]. —Internal acts [420]. —Intention as regarding present acts, or the consequences of present acts [421]. —Confusion of will and intention [421]. —A consequence of an act may not be intended [421]. —An intended consequence of an act may be wished or not [422]. —And if wished, it may be wished as an end, or as a mean [422]. —Consequence of an act wished as an end [422]. —Concurrence of motive and intention [423]. —Exemplifications of the three foregoing suppositions [423]. —Of the first supposition [423]. —Of the second supposition [423]. —Of the third supposition [424]. —Forbearances are intended, but not willed [424]. 418

LECTURE XX.

Acts are willed and intended: consequences are intended [425].—Forbearances are intended [425].—Motives to forbearances [425].—Forbearances distinguished from omissions [425].—Ambiguities of the terms ‘forbearance’ and ‘omission;’ commit and omit [425].—Negligence [426].—Heedlessness [427].—Negligence and heedlessness compared [427].—Rashness [427].—Negligence, heedlessness, and rashness, likened and distinguished [431].—Dolus [431].—Culpa [432].—Malice [433].—Dolus and culpa. Roman law [433]. 425

LECTURE XXI.

Intentions coupled with volitions and acts [435].—Present intention to do a future act, distinguished from an act with a present volition and intention [435].—Present intention to do a future act, what [435]?—Distinguished from a simple desire of the object [435].—Present intention to do a future act, re-stated [436].—Confusion of will and intention [436].—Intending a future forbearance [438].—An intended consequence of an intended future act, is not always desired [439].—Intentions to do future acts are certain or uncertain; are matured or undigested [439].—A consilium, or compassing [440].—Attempts [440].—Intention of legislator, etc. [441]. 435

xxii  LECTURE XXII.

Duty [443].—Injury [443].—Sanction [443].—Obligation is obnoxiousness, to a sanction [444].—Sanction and obligation distinguished [444].—Obligation regards the future [444].—Sanctions operate upon the desires [445].—An obligation to will not impossible [446].—An obligation to desire not possible [447].—Supposed conflict of desire and will [447].—Effect of obligation in extinguishing desires which urge to a breach of duty [448]. 443

LECTURE XXIII.

Physical compulsion or restraint distinguished from that which is imported by duty or obligation [453].—Obligations to suffer and not to suffer [455].—Passion or suffering, what? is the ultimate sanction of every obligation [456].—Suffering may be inflicted without physical compulsion or restraint [457]. 452

LECTURE XXIV.

Immediate and remote objects of duties [457].—Forbearances, omissions, or acts which are inconsistent with the remote purposes of duties [458].—Import of the cognate expressions wrong, guilt, imputabuity = breach of duty [458].—Intention, negligence, heedlessness, or rashness, is of the essence of injury, guilt, imputability, or breach of duty [459].—But is not of itself injury, guilt, etc [459].—Brief analysis of negligence and its modes; of intention regarding the present, and intention regarding the future [460].—Whether an intention, neither consummate nor followed by an attempt, could be made the object of a negative obligation [460]?—Restriction of ‘guilt’ or ‘culpa’ to intention, negligence, heedlessness, or rashness, as the cause of action, forbearance, or omission [461].—Injury, etc. is the contradictory of duty [463].—Corpus delicti [464].—Further remarks on the import of the word ‘dolus’ [464].—Ambiguity of ‘Schuldner,’ ‘Reus,’ etc. [466]. 457

LECTURE XXV.

Intention or inadvertence is of the essence of injury [468].—An absurdity in English law from inattention to this principle [469].—Mora [474].—Resume the principle, that intention or inadvertence is of the essence of injury [476].—Grounds of exemption from liability, mostly reducible to the principle last stated [477].—1. Casus or accident [477].—2. Ignorance or error [479].—The objection to ex post facto laws deducible from the same principle [485]. 468

LECTURE XXVI.

Recapitulation [488].—Consideration of the exemptions from liability resumed [489].—3. Infancy and Insanity [490].—Digression on the different kinds of præsumptiones juris [491].—4. Drunkenness (in some systems of law) [496].—5. Sudden and furious anger (in some systems) [496].—An illogical distinction in Roman law between delicts and quasi-delicts [497].—Grounds of exemption not depending on the foregoing principle. 1. Physical compulsion [498].—2. Extreme terror [498].—The so-called exemptions not properly exemptions, but cases to which the idea of obligation does not apply [499]. 488

xxiii  LECTURE XXVII.

Correction of statements in last lecture: Anger, p. 496, ante [499].—Statement as to acquisitive prescription, p. 493, ante [500].—Sanctions civil and criminal [501].—Public and Private wrongs [503].—Laws sometimes sanctioned by nullities [505].—Vicarious punishment [506].—Various meanings and etymology of the word ‘sanction’ [507]. 499

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