By Roscoe Pound

This criminal consultant is a written model of lectures introduced earlier than the legislation university of Yale collage as Storrs Lectures within the university 12 months 1921-1922.

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Example text

In the language of the eighteenth century, our courts sought to make our positive law, and in particular our legislation, express the nature of American political institutions; they sought so to shape it and restrain it as to make it give effect to an ideal of our polity. way to a metaphysical-historical theory worked out in Continental Europe. Natural rights were deductions from a fundamental metaphysically demonstrable datum of individual free will, and natural law was an ideal critique of positive law whereby to secure these rights in their integrity.

Again the convenient ambiguity of ius, which could mean not only right and law but "a right," was pressed into service and ius naturale gave us natural rights. The ultimate thing was not natural law as before, not merely principles of eternal validity, but natural rights, certain qualities inherent in man and demonstrated by reason, which natural law exists to secure and to which positive law ought to give effect. Later these natural rights came to be the bane of juristic thinking. Yet they achieved great things in their day.

And this convenient ambiguity, lending itself to identification of what ought to be and what is, gave a scientific foundationlorthe belief of the jurisconsults that when and where they were not bound by positive law they had but to expound the reason and justice of the thing in order to lay down the law. It must be borne in mind that "nature" did not mean to antiquity what it means to us who are under the influence of the idea of evolution. To the Greek, it has been said, the natural apple was not the wild one from which our cultivated apple has been grown, but rather the golden apple of the Hesperides.

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An Introduction to the Philosophy of Law by Roscoe Pound


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