The Online Library of Liberty

A project of Liberty Fund, Inc.

• Foreword
• Table of Cases
• The Ideal Element In Law
• One: Is There an Ideal Element In Law?
• Two: Natural Law
• Three: Law and Morals
• Four: Rights, Interests, and Values
• Five: the End of Law: Maintaining the Social Status Quo
• Six: Promotion of Free Self-assertion 1. The Sixteenth to the Eighteenth Century
• Seven: Promotion of Free Self-assertion 2. Nineteenth Century to the Present
• Eight: Maintaining and Furthering Civilization
• Nine: Class Interest and Economic Pressure: the Marxian Interpretation
• Ten: Later Forms of Juristic Realism
• Eleven: the Humanitarian Idea
• Twelve: the Authoritarian Idea
• Epilogue
• Glossary

Glossary

Adgnati. In general, those who are related by blood to a particular father. Roman law was particularly concerned with the degrees of relationship to the father, a consideration in modern law called consanguinity. More specifically, adgnati also means those younger children born after a father has written a will, and Pound is alluding to the problem of the law’s recognizing or failing to recognize the injustice of a child’s loss of an inheritance as a result only of a father’s failure to amend the will before death. (146 n. 14)

Adverse user. Now called “adverse use” or “hostile enjoyment,” which under certain circumstances entitles a person using an easement over land without title or permission eventually to hold legal title to the use of the easement through the doctrine of “prescription”: the person used the easement until the landholder who might have sued to eject, or to bar the person from using the easement, had allowed the statute of limitations to expire. (73)

Aequum et bonum. That which is right and just; a standard according to which a judge is to determine a dispute according to general principles of equity and fairness. This phrase developed in Roman law and is still used in equity and in international law, particularly for settling boundary disputes. (149)

Agnates. The same as adgnati. (72)

Agnation. Kinship through the father’s bloodline. See adgnati. (44)

Bonae fidei. In general, “in good faith.” In the sense of actions, an action brought without collusion or fraud but with an honest belief in the rightful entitlement to legal relief. In the sense of judgments, ex fide bona is the term by which a judge may give equitable relief to grant a just remedy that would not otherwise be allowed by the technical limits of a law. (86 n. 59)

Prepared by Steve Sheppard, University of Arkansas School of Law

Boni mores. In general, “good morals.” In Roman law, obligations arising from morals or honor that may be enforced by law, either through additions to the civil law or through equitable decrees, called the ius honorarium. (71)

Cognation. Kinship through the mother’s bloodline. See adgnati. (44)

Collegium. A college, particularly a school operating under a charter allowing it the privilege of setting the rules of conduct for its members. (147 n. 19)

Composition. The resolution of a dispute through payment of a settlement, based on the nature of the injury and the status of the person injured. An old Germanic concept that has survived in modern law primarily through the method by which a debtor privately settles all debts with all outstanding creditors by making partial payments. (145)

Corpus juris. Originally the books of law collected under Justinian, between ad 529 and 565: the Codex Constitutionum, or the code of constitutional law; the Digest (also known as the Pandects), the collection of precedents from earlier decisions; the Institutes, or summary of the whole for students; and the Novels, or laws made after the collection. In the sense used by Justice Holmes here, it refers merely to the whole body of law. (120)

Damnum iniuria datum. A delict, or a wrong actionable under Roman law, for causing an injury by wrongdoing, whether the wrongdoing was intentional or negligent; usually brought for property damage. (325)

Delictal. Relating to a delict, or a wrong actionable under Roman law; particular conduct for which a person harmed thereby may sue to recover for injuries that result from it. In the modern sense here, Pound refers to the relationship between a person who commits a tort, or private wrong, and the person who is wronged. (89 n. 67)

Demos. Although usually translated as “the people,” the phrase in ancient Greek more specifically means the lower or most common classes of the citizenry; from it came the mob. (159)

Dicasts. Members of a dicastery in ancient Athens, after 508 bc Roughly six thousand Athenian male citizens were chosen by lottery as dicasts, sitting in panels of five hundred for trials of public law or two hundred for matters of private law. Verdicts were by majority vote. (37)

Dolus. Fraud, or intent to deceive. A concept of Roman law still used in modern civil law. (91)

Dominium. The right of ownership in every aspect over some form of property, particularly in civil law. Pound relates most of the categories of dominium from the Institutes, so that dominion includes ius possidendi, ius utendi, ius disponendi, ius abutendi, ius fruendi, and ius prohibendi, which is to say the ability lawfully to possess the property, to make use of it, to dispose of it, to consume it, to reap profits from it, and to bar others from the property. (111)

Familia. Literally, “the family”; under Roman law, the whole community subject to the authority of the paterfamilias, who was responsible for the conduct of all of his dependants, including his slaves. (146 n. 14)

Fas. That which is permitted under divine law; right conduct. (71)

Frankpledge. The system instituted in early Norman England to ensure the keeping of the peace, requiring every man over the age of twelve to enroll in a fiborh, or group of ten men, each of whom pledged to stand as bail for each of the others to appear when summoned to court. (273)

Furtum. Theft, according to Roman law. (325)

Gens. Although “gens” ordinarily refers to all people, or at least all the people who were not Roman, in the sense that Pound is using it here it refers to the clans of Romans including all of the families descended from one paterfamilias. (147 n. 19)

Gentiles. Generally, a particular people, sometimes the “other people” as in the case of those who are not Roman, not Jewish, etc. In the sense of Roman law used here, however, it refers to the members of any single gens. (72)

Iniuria. Generally, in Roman law, any wrongful conduct. As Pound notes, here he means “injury to the physical person or to honor.” In such cases, iniuria included a range of acts that under modern law would include slander, libel, defamation, battery, and rape. (325)

Interpleader. A special form of action under the modern common law, allowed by statutes and now codified in Federal Rule of Civil Procedure 22, in which a party that is aware of its liability to either of two or more parties may initiate a lawsuit to determine to whom it is liable and to extinguish its liability to the other possible claimants against it. (266)

Ius. The law. Ius is often contrasted with lex or leges, which are the laws. Ius is the law in its broadest sense or ideal state. It is above and largely unaffected by the contingent statutes or other laws that the state happens to enact, which are the leges. From this difference arise the English terms “justice” and “legislation.” This division remains common in civil law through various terms and is continued in the law of the United States, as in the Fourteenth Amendment of the United States Constitution, which distinguishes “due process of law” as in ius from “equal protection of the laws” as in leges. (33)

Ius abutendi. One of the attributes of dominium, or ownership, usually conceived of as the right or power to consume a thing owned, if it is capable of consumption. Pound uses it to illustrate the sense of dominium that corresponds to liberty in the sense of an immunity from interference by others under the law, as opposed to a power or a right. (112)

Ius ciuile (civile). In Roman law, the laws that resulted from statutes and decrees governing the citizenry, particularly as elaborated by the commentators of Roman law. Pound is particularly concerned with the distinction between ius civile and ius gentium employed by Gaius, according to which the ius civile is the law that applied only to Roman citizens and not between foreigners or between Romans and foreigners, who were governed by the ius gentium. (33 n. 5)

Ius disponendi. One of the attributes of dominium, or ownership, usually conceived of as the right or power to dispose of a thing owned. Pound uses it to illustrate the sense of dominium that corresponds to liberty in the sense of an immunity from interference by others under the law, as opposed to a power or a right. (112)

Ius fruendi. Another of the attributes of dominium, or ownership, in that one who has dominium has the right or power to reap fruits or profits, as by harvesting crops or taking rents from the property. Pound uses it to illustrate the sense of dominium that corresponds to liberty in the sense of an immunity from interference by others under the law, as opposed to a power or a right. (112)

Ius gentium. This term had a variety of meanings. In early Roman law, it is the law that is followed by all peoples, and so it is closely akin to the ius naturale. From this universal sense, it was also used more specifically to describe the international law that governed Rome’s relationship with other states. Following the works of Gaius, the term was employed more narrowly to represent the law that applied between foreigners and between Romans and foreigners. Foreigners, and the legal relations of Romans with them, were governed by the ius gentium. (39)

Ius naturae. Literally, “the law of nature.” In Roman law, very nearly a synonym for ius naturale; it is a law that is supported by natural reason, and so it is a law that is, or ought to be, respected by the laws of all nations. Thus, the ius naturae was said to support the ius gentium in its universal sense, but even this relationship is not always congruent: famously, in the introduction to Justinian’s Institutes, slavery is forbidden by nature but allowed by the ius gentium. Even so, there was the general sense, seized on increasingly from Roman writings throughout the Renaissance and early modern age, that the object of civil law was to reflect the obligations of natural law, especially when natural law required freedom. (44)

Ius naturale or, as the Roman jurist Ulpian said, “that which nature taught all animals.” For most writings of classical Roman law, it is synonymous with ius naturae. From the writings of Paul, however, the term ius naturale acquired the sense of an ideal of law, quod semper est bonum et aequum, or that which is always fair and just. It is this sense that is followed in the Thomist conceptions of natural law, or lex naturalis. (39)

Ius possidendi. One of the attributes of dominium, or ownership, in that one who has dominium has the right or power to possess the property. Pound uses it to illustrate the sense of dominium that corresponds to liberty in the sense of a right against all others to act to make the interest effective or to forbear from interfering. (111)

Ius prohibendi. Another of the attributes of dominium, or ownership, in that one who has dominium has the right or power to prohibit others from using the property, whether by possession alone or by growing or harvesting crops or using or taking rents from the property. Pound uses it to illustrate the sense of dominium that corresponds to liberty in the sense of a right against all others to act to make the interest effective or to forbear from interfering. (112)

Ius strictum. A very rare term in the materials of classical Roman law, ius strictum, or the strict law, is really a Byzantine term, and it occurs in Justinian’s Institutes in reference to the strict actions of the law, primarily to describe the rigid limitations of the forms of action available under the law, particularly the older laws. The term is often used by later commentators, as it is here by both Jhering and Pound, to distinguish it from the moderating influence of the praetors, or judges who expanded the law through actions ex fide bona, or what we would now call equity. (148 n. 20)

Ius utendi. Another of the attributes of dominium, or ownership, in that one who has dominium has the right or power to use the property, particularly by residing there. Pound uses it to illustrate the sense of dominium that corresponds to liberty in the sense of an immunity from interference by others under the law, as opposed to a power or a right. (112)

Jurisconsult. The jurist; jurisconsulti were the great scholars of the law. While they were consulted for opinions on particular matters of law in specific cases, their primary influence was through law books collecting and commenting on earlier laws, which had great significance as sources of law in themselves. Although there were many jurisconsults and many more people wrote laws and books about laws, from the decimvirs who wrote the Twelve Tables to the last emperors to issue decrees, the technical training and role of the jurisconsulti have limited their ranks to a handful of great names whose books are meant here by Muirhead and Pound: Mucius and Sabinus, circa 100 bc and 1 ad respectively; Julian and Pedius, circaad 100; the great Gaius, circa 150; the classical-era trio of the 220s, Papinian, Paul, and Ulpian; and lastly Justinian’s brilliant minister, Tribonian, who oversaw the creation of the Corpus Iuris in the early sixth century. (33)

Laesio enormis. Literally, “great injury.” A description of merchandise bought for less than half its real value. Pound is following Justice Story’s use of the doctrine to illustrate the gradually more technical and less flexible development of legal doctrines in general. Originally, the praetors would allow an unwitting buyer who had been unjustly dealt with by a merchant to have the option of rescinding the sale or securing a better price; by the time of Justinian, this rule required that the price vary at least fifty percent from market value. (151)

Law merchant. The laws governing the transactions between merchants. It was originally a medieval body of customs that evolved among merchants and guilds, with little regard to the limitations imposed by national borders and laws. Over time, national laws both incorporated and enforced these customs, often by name. (53)

Leges. The laws. Lex, the singular, or leges in the plural, is often contrasted with ius, the law in its broadest sense or most ideal state. Lex is the law that the state happens to enact as statutes, decrees, rules, or specific obligations on individuals at any given time. In sum these are the leges. From this difference arise the English terms “legislation” and “justice.” This division remains common in civil law through various terms and is continued in the law of the United States, as in the Fourteenth Amendment of the United States Constitution, which distinguishes “due process of law” as in ius from “equal protection of the laws” as in leges. (33)

Leges sacratae. Technically in Roman law, laws for which the penalty was to be outlawed, or exiled. One who was a sacer homo was beyond the protection of the law, and so anyone could kill him without violating the law. Thus, whatever protection he had was not civil but was divine. Sacratio was among the earliest penalties and was given against those who violated institutions under divine protection, such as moving boundary stones, violating the obligations of a patron to a client, and, most importantly, harming a plebeian tribune. Pound’s recitation of the sacer esto refers back to his discussion of excommunication. (144)

Lex aeterna. A Thomist division of divine natural law. St. Thomas Aquinas, in the Summa Theologica, divided natural law into a hierarchy, at the top of which is the eternal law known only to God and which is designed to govern the affairs of the universe. Thus, ius naturale included both the lex aeterna, known only to God, and the lex naturalis, which was derived from the lex aeterna but which was designed to govern the affairs of mankind, and which was knowable through the tools of reason. (45)

Lex Iunia. As used here, Pound appears to refer to the lex Iunia Norbana, enacted in ad 19, which allowed slaves who had been improperly manumitted to be free, rather than being returned to slavery as a result of error in the process of their manumission. Pound may have confused his title, Lex Iunia, as this was the title of a decree a century later expelling foreigners who pretended to be Roman citizens. Pound further seems unaware that, under the law of ad 19, the freedman lost an essential privilege that had been granted on a case-by-case basis by praetors acting equitably to cure defective manumissions before the decree. The manumitted did not become citizens, but Latini Iuniani, and so they could neither receive nor grant property by will, giving their former owners a continuing power over them. (73)

Lex naturae. As Pound uses it, a general term synonymous with lex naturalis. (160)

Lex naturalis. A Thomist division of earthly natural law. St. Thomas Aquinas, in the Summa Theologica, divided natural law into a hierarchy, the penultimate level of which is the natural law created by God to govern the affairs of mankind, and to be reflected in the positive laws enacted by human governments. Thus, ius naturale included both the lex aeterna, known only to God and meant to govern the universe, and the lex naturalis, which was derived from the lex aeterna but which was designed to govern the affairs of mankind, and which was knowable through the tools of reason. (45)

Mala in se. Wrong in itself; one of the great divisions of criminal wrong. From Aristotle to the modern law, the criminal law has recognized a difference between acts that are criminal because they are inherently wrong, such as murder, and those that are only technically wrong, such as driving on the wrong side of the road. Acts that are mala in se are said to be evil in themselves. (39)

Mala prohibita. Wrong as prohibited; the other division from mala in se. The wrongdoing of these acts is the result of choices made by lawmakers for the welfare of the populace. The classic example is the wrong of driving on the improper side of the road. It is only the result of a legislative choice that requires drivers in the United States to drive in the right lane of a two-way street. Even so, the public welfare required one or the other to be the choice, and the driver who ignores this choice commits a wrong that endangers the populace. It is this blurring of the nature of the wrong as inherent (is not driving on the wrong side of the road inherently wrong?) from the technical (is not driving on the right side only required by law and not nature?) that Pound finds unsatisfactory. (39)

Naturalis obligatio. The legal enforcement of a debt or other obligation, even if the creditor could not bring a direct action at law against the debtor. A number of mechanisms evolved over time to allow the enforcement of these natural obligations in specific circumstances. (45)

Naturalis ratio. Natural reason, or justification based on the nature of things. Gaius asserted that ius naturae and, more importantly, the law of all people, ius gentium, could be ascertained through the naturalis ratio. (43)

Nuda pacta. Informal, legally unenforceable bargains. Nudum pactum is the singular; nuda pacta the plural. Usually, only contractio, stipulatio, or similarly formal commercial undertakings were enforceable, but, as Pound notes, Redoanus points out that citizens could sometimes bring actions under these agreements against money changers and merchants. (48 n. 58)

Pedis possessio. Literally, possession actually performed on land. An old description of actual possession as a requirement for adverse possession. Sometimes actual possession under this title required enclosure by a fence. A person who actually held land for a sufficient period, under a claim of right or in opposition to all others’ rights to the land, in open and notorious use, would be the legal owner even against the person who had earlier held title in the land, once the time had expired under the statute of limitations by which the title-holder could sue the actual possessor for trespass or for ejectment. Pound is using the settled custom for miners who had been in actual possession of their claims to have the strongest claim of ownership as a compelling reason for the government to recognize title in their holdings, rather than trying to impose a later regime upon them. (113)

Precatory trust. A trust created in a last will and testament requesting that a survivor of the testator perform some action, particularly a grant of property to one person, asking that it be used for some person’s or entity’s benefit or given to someone else. There was a considerable evolution of doctrine in determining whether the legatee under the will was bound to the terms of the will, and many technical rules were created and then abandoned in the effort to determine whether the words of the will were mandatory or not. Pound is using the story to illustrate evolution in a single doctrine in the law. (151)

Pretorian law (praetorian law). Roman equity. This is the sum of changes in law introduced by the praetors, who had the power to create relief through decree, even in the absence of a prior law. Subsequent praetors would re-enact the decrees of their predecessors, and these decrees were usually reflected in legal materials over time, particularly in the Corpus Iuris. (149)

Rapina. Robbery. A delict within the forms of furtum, or theft, committed by the taking of movable goods in acts accompanied by violence. (325)

Regum. Literally, “of the monarch.” Pound is quoting Holmes for the idea that the final justification for not only private actions but also acts of states is nothing more or less than force. (120)

Res communes. Property held in common. When two or more people each have an interest in a single property, it is held in common. Pound is emphasizing that each of the property holders has a duty to the others not to waste or destroy the property for that holder’s single benefit. (155)

Res nullius. Property held by no one, such as abandoned property, wild animals, and uninhabited, unclaimed land. Any person may acquire ownership in it by being the first to take possession of it, occupatio. Pound is emphasizing that there were limits on what may be occupied in this way, as there had been since Roman law, when property that was sacred to the gods was exempt from occupatio. (155)

Respondeat superior. The obligation of a superior to answer for the acts of an inferior by making good wrongs done by the inferior and, in certain cases, by being held to have knowledge held by the inferior or held to accept agreements made on the superior’s behalf. This relationship is particularly recognized by the common law in a principal for an agent, an employer for an employee, or a parent for a child. (98)

Seisin. The form of possession of land with the intent to hold it as a freehold, which is to say that the land is now held by an owner who is not leasing it from someone else. This medieval idea of seisin as immediate possession originated in the ceremonies, called “livery of seisin,” in which a new holder of the land was invested with all of the duties that the feudal system demanded of the land-holder of that particular estate, including duties to perform services for the overlord (such as raising troops, maintaining roads, and providing goods to the overlord); he was also given the right to claim services from the tenants (such as service as a soldier, or giving some number of days to road repair, or some percentage of one’s harvest to the landholder). The modern concept of “delivery” is a descendant of this idea. (73)

Senatus consulta. Decrees of the Roman senate issued in answer to questions put to it by the consuls, praetors, tribunes, or other high magistrates. Pound is illustrating the propensity for the typical consultum not to be known by its name or for its effects but to be important as a part of a body of law, particularly as integrated into the texts of the jurisconsults. (32)

Subsidium (singular), subsidia (plural). Literally, assistance or support or a subsidy; the terms in law refer to the actions that might be created through equitable recognition that a person, who has no other legal remedy, would sustain a loss as a result of another’s actions. (8)

Sui heredes. Those who are heirs of a dead person, and who succeed to the powers, assets, and liabilities left by the decedent. (146 n. 14)

Sui juris. A person in his legal capacity. The term has a variety of applications, particularly to mean someone with no legal incapacity, such as a person unburdened by insanity or extreme age or youth. Pound here seems to employ the term in both its Roman sense as someone empowered by law to act for themselves and in its common-law sense of someone who is not insane. (86)

Suum cuique. In full, suum cuique tribuere, to give every person what is due. One of the three Roman principles of justice in private conduct. The other two were to live honestly and to harm nobody. (184)

Tortfeasor. Any person who commits a tort, which is a wrong that is subject to a private recovery in law by the person injured. The tortfeasor must make good the injuries of the person injured. (330)

Trespass de bonis. An old common-law action for the recovery of stolen goods, brought by the owner against whoever unlawfully carried them off. (73)

Trover. An old common-law action for payment of damages in compensation for the theft of goods, brought by the owner against whoever converted the property or treated it in a way to interfere with the owner’s possession or interest in it. (73)

Ultima ratio. The most fundamental justification, the final reasoning. (120)

Ultra vires. Beyond the powers, particularly of a corporation. A corporation is created under a charter to perform certain acts and to pursue certain goals using certain means. Under modern corporate law in the common-law system, a contract or promise by a person on behalf of a corporation that is beyond the limits of the charter is void and unenforceable. (230 n. 1)

Usufructuary. In civil law, a usufruct is the right of one person to use or enjoy the property owned by another person. The usufructuary is the person with the right to use, and Pound is indicating that there are obligations upon the usufructuary to protect the property for the ultimate benefit of the owner. The modern common-law equivalent is personal servitude. (86)

Vice-principal doctrine. A modern, if now largely altered, rule of agency in the determination of what liability a principal has for an agent. When a person entrusts to another the whole of the duty to supervise, as when a business owner delegates all of the decisions in the business or a department of it to a deputy, the deputy is considered a vice-principal, and not an agent or an employee, and the master is liable for the vice-principal’s negligence as if the master had committed it. The doctrine was invented to moderate the nineteenth-century limits on respondeat superior and other legal barriers to liability of an owner for harmful acts by an employee. In our age of greater liability of businesses for their employees, the result that Pound is arguing toward in this passage, the vice-principal doctrine has become largely a dead letter. (271)

Wergeld (also wergild, weregild, or weregilt). Blood money. The price paid by someone who committed grave crimes to the victim or, in the event of homicide, to the survivors. The concept seems to have become formalized in early medieval Germany, although most medieval states had standards for the appropriate payment due, which usually turned on the status of the criminal, as the payment was a surrogate for the earlier right of the victim or survivors to have him killed. Pound is using the idea to illustrate one stage in the evolution of the law toward a mature understanding of criminal fines and penalties. (173)

Bibliography of Works Cited 

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