Rational Individualism: The Perennial Philosophy of Legal Interpretation

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Rodopi, 1995 - Law - 298 pages
This book is a study of the theory of legal interpretation that underlies the legal systems of Europe, England, and the United States. The principles of interpretive jurisprudence are traced through Greek and Latin philosophers and legal theorists and Renaissance Italian glossators and commentators. In addressing human nature, these principles have a self-sustaining logical integrity. They are defensible as a worthy tradition of legal respect for the value of the individual.

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Contents

Preface
1
TWO The Classical Legal Texts on Interpretation
29
THREE The Reconstruction of Roman Jurisprudence
59
FOUR The Continental Tradition
89
FIVE The AngloAmerican Tradition
125
SIX Philosophical Implications of the Tradition
165
SEVEN The Rational Strength of the Tradition
195
EIGHT Contemporary Issues
223
Bibliography
257
Latin Texts of the Glosses
269
About the Author
279
Index
287
Copyright

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Page 216 - Work of his Hands, we may say, are properly his. Whatsoever then he removes out of the State that Nature hath provided, and left it in, he hath mixed his Labour with, and joyned to it something that is his own, and thereby makes it his Property.
Page 215 - Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his.
Page 226 - A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind.
Page 226 - Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the articles of confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described. Even the 10th amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word "expressly...
Page 216 - For this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good left in common for others.
Page 234 - ... fetter and degrade the state governments by subjecting them to the control of Congress...
Page 227 - The subject to be regulated is commerce: and our constitution being, as was aptly said at the bar, one of enumeration, and not of definition, to ascertain the extent of the power it becomes necessary to settle the meaning of the word. The counsel for the appellee would limit it to traffic, to buying and selling or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce undoubtedly...
Page 226 - Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.

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