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图书目录:CONTENTS
ESSAY I THE ROMAN EMPIRE AND THE BRITISH EMPIRE IN INDIA Conquest or Absorption by modern European nations of the less advanced races Creation by this process of a sort of unity of mankind Earlier effort of Rome to unify mankind Part borne by England in the work of ruling and civilizing new territories The Colonies of England : the British Empire in India Position of Rome and England respectively in their Empires Origin of the British Indian compared with that of the Ro- man Empire Conditions favouring Roman and British Indian conquest Military character of Roman and British rule What the Roman and the English conquerors have owed to natural frontiers Strength of the Roman and British armies Efforts to find a scientific frontier. The Romans and English as Road and Railway Builders Success of both in maintaining internal order and security Character of Roman and British administration Despotic system: measure of self-government left to the subjects - l; Variations in provincial administration in Roman Empire and India Revenue and taxation of the two Empires Employment of native subjects in civil and military posts Civil rights of conquerors and of subjects Respect shown to native religions and customs : contrast of religious feeling in ancient and in modern world Character of the conquerors as a source of their strength Contrasts between the two Empires : geographical position of the ruling race Fusion of Romans and provincials: no similar fusion of English and Indians Influence of Climate, of Colour, of Religion Languages and literature in Roman Empire and in India Influences which favoured fusion in Roman Empire absent from India Retroactive influences of the provinces on Rome and of India on Britain What the experience of the English in India has proved Causes which overthrew the Roman Empire Probable future of British power in India ESSAY II THE EXTENSION OF ROMAN AND ENGLISH LAW THROUGH- OUT THE WORLD Geographical areas now covered by Roman and by English Law Extension of Roman Law by conquest Methods of Legal Administration in the provinces Gradual assimilation of Roman and Provincial Law Establishment of one law for the Roman Empire How the Romans were able to create an imperial law Spread of Roman Law after the fall of the Western Empire Diffusion of English Law over regions settled or conquered Legal systems which the English found in India Policy followed by the English in dealing with Indian Law Codification in India Reciprocal action of English and Native Law on one another Merits and working of the Anglo-Indian Codes Roman Law in the Empire compared with English Law in India Probable future of English Law in India English and Koman Law over the world ESSAY III ~FLEXIBLE AND RIGID CONSTITUTIONS Observations on the Constitutions of Rome and England Old Classification of Constitutions as Written and Un- written ~ proposed new classification Flexible Constitutions : how far distinguishable from laws in general Origin of Flexible Constitutions Strength and weakness of Flexible Constitutions ~ are rather elastic than unstable .Such ConsUtuuons a : ~ me and England t . e cOnSUtUtlU'm v. Ro . 1L~)ustrattons from th. thle onstitutmns angers possibly innerent -' C Flexible Constitutions suited to aristocratic governments Checks applied in Rome and in England Influence of Constitutions on the mind of a nation 5 Illustrations from Rome and England Capacity of Constitutions for Territorial Expansion Enumeration of existing Rigid Constitutions Circumstances under which Rigid Constitutions arise Enactment and amendment of Rigid Constitutions fl Various modes now in use for amending them How far can Rigid Constitutions be definite or complete ? Stability of Rigid Constitutions The interpretation of Rigid Constitutions oContrast of Anglo-American doctrines with those of the European Continent ~American views as to interpretation Suitability of Rigid Constitutions to Democracies Recent changes of opinion in the United States and England Probable future of the two types of Constitution Proposals for federalizing the British Constitution Possible creation of new States and Constitutions ESSAY IV THE ACTION OF CENTKIPETAL AND CENTRIFUGAL FORCES ON POLITICAL CONSTITUTIONS The influence of aggregative and disjunctive forces on po- litical societies Tendencies which may act either Centripetally or Centrifu- gaUy Influences of Interest and Sympathy Illustrations of the action of Racial and Religious sentiment In the progress of civilization, material interest and senti- ment may be opposed How Constitutions may use the existing Centripetal and Centrifugal forces Illustrations from Commerce, Law and Religion Instances of the troubles caused by Racial or Religious sen- timent Methods by which Constitutions may disarm or regulate the centrifugal forces : illustrations Difficulties due to differences of colour in races How the Constitutions of the United States and Switzerland have acted The Centripetal force generally, but not always, dominant in European history Effects of Conquest and of Dynastic Succession Probable future strength of the centrifugal and centripetal forces respectively Present tendency to the enlargement or consolidation of States is not necessarily permanent ESSAY V PRIMITIVE ICELAND Discovery and Settlement of Iceland Beginnings of a Polity : the Thing Rise of the GoBi or Priest-Chieftain The first political constitution of the island . Judicial organization and powers of the Althing The Speaker of the Law Thingvellir and the meetings of the Althing General character of the Icelandic Republic Growth and character of the law of Iceland Complexity of the constitution and the law Sources of our knowledge of the law . Illustrations of features of the early law A.n action for the ejectment of ghosts The Judicial Duel : Story of Gunnlaug Snake's Tongue and Helga the Fair The introduction of Christianity Reflections on the early history of Iceland Fall of the Republic : subsequent fortunes of the isle THE CONSTITUTION OF THE UNITED STATES AS SEEN IN THE PAST Value of contemporary views of an institution The Federalist : Alex. Hamilton and James Madison The United States in A.D. I788 Predictions of the opponents of the New Constitution Views of its supporters : dangers feared by them Examination of the predictions of t788 Characteristic merits and defects of American Democracy only slightly foreseen The Democracy in America of Alexis de Tocqueville Merits and flaws in Tocqueville's study of the United States His insufficient knowledge of England His preoccupation with France The deficiencies observable in his book scarcely affect its present value Condition of the United States in Tocqueville's day His description of the salient features of the nation Advantages which he conceives Democracy to have secured Evils he discovers in American Democracy Causes which in his view maintain Republican government His forecasts : the negroes : weakness of the Federal Union Points omitted in his description Chief events in the United States since Tocqueville's time Chief political changes of the last sixty-seven years Examination of Tocqueville's predictions Summary of Tocqueville's conclusions General course of events in America since x788 What Tocqueville would say to-day F_.SSAY VII Two SOOTI-I AFRICAN CONSTITUTIONS Originality of the Constitutions of the two Dutch Republics Circumstances under which they arose Constitution of the Orange Free State. Constitution of the South African Republic (Transvaal) Observations on the Constitution of the South African Re- public Is it a Rigid or a Flexible Constitution ? Controversy as to the so-called ' testing power ' The Constitution is certainly a Flexible one Observations upon both these Constitutions Comparison of these Constitutions with that of Britain and that of the United States Relations of Executive and Legislature in these Dutch Re- publics Practical Working of the Constitution of the Orange Free State Working of the Constitution of the South African Republic Postscript ESSAY VIII "~THE CONSTITUTION OF THE COMMONWEALTH OF AU- STRALIA Interest attaching to the new Constitution of Australia Origin and progress of the movement for federalizing Au- stralia Causes which induced Federation Influence of a Pan-Australian sentiment Physical and racial conditions favouring Federation Comparison with the conditions of the United States and of Canada Two leading types of Federal Government Distribution of powers between the Nation and the States. in the Australian Constitution Position of the Australian States under the Constitution Differences from the Federal systems of the United States.. and of Canada ~ The National Government : few restrictions on its powers The Legislature : Representation of the States in the Senate The House of Representatives The Executive The Judiciary Question as to Constitutional Appeals : the British Govern- ment yield to Australian sentiment Intended working of the scheme of Government: The Cabinet Provision against legislative deadlocks Relations of the Two Houses Financial provisions : railways and rivers Location of the national capital : admission of New States Mode of amending the Constitution Relations of the Australian Commonwealth to the British Crown General comparison of the Australian Constitution with that of the United States Comparison with that of the Dominion of Canada Further observations on the Constitution It is less strictly Federal and more National than that of the United States Its highly democratic character It contemplates a party system Difficulties which may arise from the existence of a third party What political issues arc likely to arise in Australia ? Probable prominence of Economic questions Possible creation and admission of New States Will New Zealand enter the Federation ? Tendencies to consolidation may be strengthened by dis- putes with foreign powers Future relations of Australia to Britain ESSAY IX OBEDIENCE Different Theories of the Nature of Political Obedience The grounds of compliance in general : Indolence Deference and Sympathy Reason and Fear Respective strength of these springs of Obedience Will as a political force: Illustrations from the East Formation of the habit of Obedience in the individual Influences forming Obedience in early societies Slight interest of men in liberty for its own sake Is the tendency to obey likely to decrease ? Influences apparently making for subordination What may be hoped for the future of democratic govern- ment How a pessimist might view existing conditions Conclusion : The disposition to obey will be permanent 1 Note on the application to the definitions of Jurisprudence of a theory of Obedience ESSAY X THE NATURE OF SOVEREIGNTY Confusions regarding the term Sovereignty Sovereignty de iurt and dr facto must be distinguished Sovereignty de iurt exists in the sphere of law only, and is not concerned with obedience Sovereignty dr facto : concrete instances Relations of Sovereignty de iure to that defaclo Action and reaction of each on the other The Roman doctrine of Sovereignty: the people are the source of political power Mediaeval views of Sovereignty : Emperor and Pope. New theories of the sixteenth and seventeenth centuries Bodin, Althaus, Hobbes Relation of Hobbes' system to the events of his time Bentham revives Hobbes' doctrine ,, Views of John Austin : illustrations of their unsoundness Confusion of various questions regarding Sovereignty which are really distinct Rights in the moral sphere of Sovereignty de iurt and Sove- reignty de facto Sovereignty in International Relations Sovereignty in a Federation - Conclusion: Theoretical Controversies regarding Sove- reignty have mostly had their origin in current politics . ESSAY XI THE LAW OF NATURE Origin of the notion of Nature as a ruling force It is different from modern conception of the Laws of Nature Nature as a force in human society The term ' Natural' as applied to Customs and Laws St. Paul and the Greek philosophers on Natural Law The Roman Law of the Nations (Ius Gentigm) ~ How the ' common law of the nations' was formed Cicero on the Law of the Nations and Law of Nature Growth of the idea of Natural Law among the jurists Practical identification of Ius Gentium and Ius Naturae Points of difference which remained : Slavery Extension of Roman citizenship removes the need for a Ius Gentium Senses in which the jurists use the term ' Nature' Value and practical influence of" the notion of Natural Law The Law of Nature and Law of God in the Middle Ages The Law of Nature in Modern Times Its relation to the Law of England Its influence on the rise of International Law ' Natural Law' as meaning a Philosophy of Law Conclusion: Comparative quiescence of the idea in recent times i ESSAY XII ~THE METHODS OF LEGAL SCIENCE No Philosophy of Law among the Roman Jurists ; is such a Philosophy necessary or serviceable ? Four Methods employed in Legal Science The Metaphysical Method : German Nalurrecht The Analytic Method : the Benthamites Errors in John Austin's use of it The Historical Method The Comparative Method Value of these four Methods respectively How they may best be applied to Legal Study Did the Romans suffer from having no general Philosophy of Law ? 1 Merits observable in the Roman Jurists: comparison of their treatises with those of English lawyers Summary : The Roman Jurists are philosophical in spirit and in their practical handling of law ESSAY XlII .k THE RELATIONS OF LAW AND RELIGION Apparent Antagonism of Law and Religion Close connexion of Law and Religion in early states of Society Differences in this respect between different peoples The Jews in Roman times : primitive Christianity Islam ; identification of Law with Religion Illustrations from a Musulman University : the Mosque El Azhar at Cairo Description ot E1 Azhar and its Teaching Course of Instruction : Graduation : Endowments Resemblances of El Azhar to the European Ufiiversities of the Middle Ages Causes of the arrested development of Musulman Univer- sities ~ Nature and consequences of the Musulman identification ot Law and Religion Identity of State and Church under Islam How Christianity avoided a similar identification ~ETHODS OF LAW-MAKING IN ROME AND IN ENG- LAND ~ Relations of the History of Law to the Constitutional 3 Political History of a Country Law-making Authorities in general Three main sources of Law: the Ruling Authority, the Magistrate, and the Legal Profession The Jurists as makers of Law in earlier times Changed position of the Jurists under the Empire Differences between the action of Roman and English Jurists Roman Treatises compared with English Reports Magistrates and Judges : in what sense Law-makers The Praetor at Rome Nature and Working of the Praetor's Edict The English Chancellor Praetorian Edicts compared with English Case-Law Further observations on Praetorian methods Strong and weak points in the English Case- System Direct Legislation at Rome : its Organs The Popular Assembly : its method of legislating Merits of the Roman Statutes Legislation by the Senate : its characteristics Direct legislation by the Emperor Vast powers of the Emperor " his Privy Council Defects in Imperial legislation Profusion and inferiority of legislation under the later Emperors Direct legislation in England : its history Advantages of Parliament and Congress for legislation Strictures commonly passed on English and American Statutes Difficulties incident to Parliamentary legislation Reflections suggested by the history of English compared with that of Roman legislation Some branches of law better fitted than others to be handled by direct legislation ESSAY XV THE HISTORY OF LEGAL DEVELOPMENT AT ROME AND IN ENGLAND Roman and English Law have both been developed in a comparatively independent way Conspicuous epochs of legal change at Rome and in England Forces and influences chiefly active in determining legal changes Roman Legal History during the republican period Effect on the law of the establishment of the imperial auto- cracy Rise of Christianity : dissolution of the Empire in the West The decline in legal learning induced Codification Political events and External Influences are the chief sources of changes in Roman Law Causes of legal change operative in England : the periods of Henry II and Edward I The Reformation and the Civil War The Reform Act of I832 and the Victorian Epoch The Law of Family and Inheritance at Rome and the Law of Land in England Effects of Territorial Expansion on Roman and on English Law Economic influences more generally potent in England: political in Rome Observations on France and Germany Private law is the branch least affected by political changes Legal topics in which further advances may be looked for ESSAY XVI MARRIAGE AND DIVORCE IN ROMAN AND IN ENGLISH 78: LAW Diversity of the Law of Marriage in different countries Features generally characteristic of the institution in the ancient Mediterranean World Early Marriage law of the Romans Subordination of the Wife : the ' Hand Power' (3fanus) Transition to a freer system ~ Later Marriage Law: nature of the personal relation it creates Relation of the Consorts as respects Property General character of the Roman Conception of Marriage: its freedom Roman doctrine and practice regarding Divorce Influence of Christianity on Imperial Legislation Other Roman rules : prohibited degrees : Concubinatus Marriage under the Canon Law The English Law : jurisdiction of the Spiritual Courts Relations of the Consorts as respects Property under Eng- lish Law Amendment of English Matrimonial Law by courts of Eauity and by Legislation Personal Liberty of the Wife now well established English law has wavered between different theories of the relation . " " Divorce under the Canon Law History of Divorce in England Divorce Laws in the United States Laxity of Procedure in Divorce Cases Statistics of Divorce in the United States : causes for which iris granted m Illustrations from the ' Western Reserve' counties of Ohio Divorce in modern European countries Comparison of the phenomena of Divorce in the Roman and in the Modern World Causes now tending to weaken the permanence of the Marriage Tie Does the growth of Divorce betoken a moral decline ? Influence of the Church and of the Law Does the English Divorce Law need amendment ? Changes in Theory and in Sentiment regarding Marriage INAUGURAL LECTURE VALEDICTORY LECTURE INDEX |