Definition of Law: In ordinary usage the term “law” is applied to any principle that is fixed, or uniform, or generally followed. It is often applied to the sequence of cause and effect observed in the world of natural phenomena. Thus, we speak of the law of gravitation, or of falling bodies, or of chemical reaction. The universe is ruled by a vast system of laws Which work inflexibly, inviolably, and regardless of human will. Again, the term “law” is applied to rules for the guidance of human conduct. If these are concerned with motives and internal decisions of the individual will, they are called moral laws. If they refer to outward acts, they may be either social or political.
Social laws are expressed in custom, tradition, fashion, and common usage. They are enforced by public opinion, and their violation is followed by ridicule or social disapproval and ostracism. If they are the rules of particular associations, violation may be followed by loss of membership in the association. Political laws are created and enforced by the authority of the state, and their violation is followed by penalties politically determined and applied.
It is law in this latter sense alone, usually known as positive law, with which political science deals. It considers law as a command issued by the state and enforced by its authority, a general rule of external action enforced by a sovereign political authority.
A further analysis of law in this political, or positive, sense will more clearly establish its nature. As indicated in the discussion of sovereignty, creation and enforcement of law form the method by which states manifest their sovereignty in its internal aspect.
Accordingly, no legal restriction can be placed on the lawmaking authority of the state, and, conversely, no authority except the state can create law. This seems clear enough when applied to law formulated by legislation, since in that process a definite state organ is seen deliberately expressing the state’s will. Some difficulty is met, however, in applying the idea of positive law to those customs that are enforced by the courts and this fact has led some writers to deny that law is always created by a definite sovereign body in the state.
They assert that custom and popular consent, as well as definite political authority, create law. Other writers assert that the laws of God, or the fundamental principles of justice which are embodied in natural law or which result from the social nature of man, are law regardless of the action of the state. They argue that law in this sense is older than the state and that the authority of such law is independent of the state and superior to it.
In the main these objections result from confusing the sources from which legal principles have sprung and the sanction that enforces them. It is true that custom was for a long time the only source of law, and is still an important influence. The pressure of public opinion and generally accepted principles of justice are important in determining the content of law.
At the same time, the principles handed down by custom or embodied in generally accepted moral ideas do not become law, in the political sense, until they ate sanctioned by the state. Some definite, human, political authority must interpret these rules and must place the sanction of the state behind them in order to make them law.
The only source of laws, in the sense of that which impresses upon them their legal character, is recognition by the state, which may be given expressly through lawmaking bodies or the courts or tacitly by allowance, but is followed in the last resort by political enforcement. Law, therefore, is that portion of established thought and habit which has gained distinct and formal recognition in the form of general rules backed by the authority and power of government. Only those rules which the state creates or which it recognizes and enforces become law.
The sanction of the state is, then, the distinguishing characteristic of law. The fact that some laws fail of enforcement does not destroy their character as law. Because of popular resistance the executive branch of government may deem it inexpedient to enforce certain laws. Juries may refuse to convict persons who are clearly guilty of legal offenses in this case the whole law must be taken into consideration, which is that a person guilty of a crime and convicted by a jury shall be punished. If the jury fails to convict, one of the legal elements necessary for the infliction of punishment is lacking.
Moreover, all laws are equal in validity. Each lawmaking organ, acting within the sphere of its legal competence, shares in exercising the sovereign power of the state. The sum total of these bodies compose the sovereign; the sum total of the rules they create forms the law of the state. An ordinance issued by some minor department is, if the issuing body has a legal right so to act, as truly law as a statute of the national legislature or an amendment to the constitution.
When a law is declared unconstitutional it is not meant that the law, conflicting with a superior law, is annulled but that, created by a body acting outside the scope of its legal powers, it never was law. Law, therefore, is the command of an authorized public organ acting within the sphere of its legal competence and in the method legally prescribed. This views every state as completely organized in its government and gives a clear-cut meaning to sovereignty and law.
The universality of law and its coercive sanction make it desirable that law should deal with general situations. It cannot accommodate itself to all the intricacies of individual life. It should embody standing principles. By its nature it is a formal and somewhat clumsy instrument of control. Many interests can be better regulated by other means than the law. Custom, tradition, and the rules of other associations should be left a wide field to deal with affairs for which they are better fitted than the state. Neither should the state put into law rules of conduct unless they are supported by a wide consensus of opinion.
The attempt of a minority to coerce a majority or of a bare majority to coerce a large minority is certain to result in difficulty of enforcement, if not in revolution. The very nature of the state limits what it can successfully do. Because it is legally supreme does not mean that it should exercise omnipotent legal power. The state exists to maintain the universal external conditions of social order and to regulate human actions in the interests of general social welfare. To this end it is endowed with coercive power, and for this purpose it should make law.
Development of Law:
A historical survey of the manner in which legal principles have developed will add clearness to our knowledge of state evolution and will further explain the nature of law. In the static civilizations of early times law was viewed as something permanent and immutable, like the “law of the Medes and Persians, which altereth not,” or the customs of England traced back to the “time whereof the memory of man runneth not to the country”? The conservatism of tradition and the belief in divine sanction gave a fixity to law which made change difficult.
1. Causes of change:
But no set of customs is satisfactory to the needs of a changing civilization hence old laws required modification, and new laws had to be created. Such changes were accomplished mainly by the following means:
The mingling of customs resulting from conquest and subjugation resulted in the suppression of some and the modification of others. This process of assimilation took place wherever various peoples came into contact.
New generations do not always interpret old customs in the same way as their ancestors, and those who enforced the accepted traditions frequently exercised discretionary powers that modified the earlier rules. Legal fictions of various kinds were often created to modify ancient laws that worked injustice.
The opinions of learned men who made a special study of the law were given particular weight in its interpretation. When a special judicial department arose, its decisions became of prime importance in interpreting the law, and the courts became in actual fact lawmaking bodies. They adjusted the existing law to individual cases and found new legal principles for cases where no law existed.
when written law replaced the earlier traditional, customary rules, codes were often drawn up. Sometimes these were intended to make the law more definite, sometimes to reconcile the conflicts of rival interests and customs, sometimes to adjust the law to changing conditions in the state, sometimes to harmonize the conflicting rules and interpretations that had accumulated during a long period.
For whatever reason created, the great codes of law modified the earlier legal system by the omission or alteration of earlier rules and by the addition of new provisions. The jurists who prepared the code consciously or unconsciously wrote many of their own legal ideas into it. Once made, the code acquired a certain sanctity, and further development took place through its interpretation.
With the growth of governmental machinery, the executive department developed a power that amounted to the formulation of new law. By issuing decrees and ordinances the heads of the state filled in the details of law and adjuster it to new conditions. Dictators, set up in time of war or crisis, frequently found it necessary to break with the old customs and to formulate new regulations. In this way executives gradually assumed the right to modify ancient customs and to make new laws when needed.
In the fully developed state a special lawmaking organ appears which no longer pretends to interpret existing law, but which baldly proclaims that it is formulating new law. With the growth of its powers the old idea that the law is a fixed system was replaced by the idea that the duty of the state is to create new law whenever social needs demand it. Legislation became the chief function of the state, and this process of lawmaking gradually superseded all the others. The executive and judicial departments, more important in the earlier states, were reduced to the position of agents of the legislature, which to a large degree exercised the sovereign power of the state.
2. Sources of law:
The foregoing summary of the methods by which early law was changed and expanded suggests some of the sources from which legal ideas have been derived. These may now be outlined as follows:
Rules of conduct resting upon general acceptance, resulting either from accidental habits, from evident utility through successful experience, or from general desire for order and justice, were the only laws known in early states. Evidently no direct action of the state was involved in the creation of such rules they grew up through common usage and acceptance. As long as social relations were simple, and common interests few, all knew and followed the accepted customs, which were handed down through oral tradition by the elder members of the group. To the sanction resulting from immemorial custom was often added religious authority, since law and religion were not distinguished, and all rules were supposed to have a supernatural sanction. Many of the customs grew out of religious practices and superstitious fear of angering the gods or of arousing evil spirits gave powerful support to all early rules.
(b). Judicial decisions:
Under changing conditions, such as resulted from new environment, new methods of life, or contact with other peoples, several difficulties arose. Numerous controversies led to doubts as to the relative validity of conflicting customs, and many cases arose concerning which custom furnished no rule. The evils of uncertain public opinion and the injustice of the strong, when customary rules were absent, led to an additional source of law, namely, adjudication, or judicial decision.
The state arose not as the creator of law, but as the interpreter and enforcer of custom. Disputed points were referred, naturally, to men of recognized importance, to those who were supposed to know the rules and who had authority to enforce their decisions. In this way the chief or priest, as magistrate or judge, supported by the force of the community, inaugurated political power.
While, in theory, each disputed point was decided on its merits by the application of longstanding custom, in several ways the decisions created new law. In deciding similar cases, general rules were established, precedent was followed, and, either unconsciously or deliberately, the law was modified and expanded. Under changing conditions former customs worked injustice, and decisions often created new rules by means of new interpretations or legal fictions.
Finally, where no rule existed, general principles of justice, or equity, were applied still under the guise of judicially interpreting am already in existence. The decisions of the Roman praetor and of the English chancellor were examples of law thus created. In these ways, as social life developed, the strictness and rigidity of old customs were modified, the functions of the state were expanded, and its authority was made more definite in expression and more certain in enforcement.
(c). Scientific commentaries:
The writings of great jurists have sometimes contained legal principles which have been incorporated into the law. Lawyers and judges attach importance to their carefully considered opinions. The influence exercised by the juris consults in Rome, and by Coke, Blackstone, and Kent in modern times, are examples. Unlike judges, whose decisions apply to particular cases, the commentators deal with abstract principles and what lawmakers and courts deal with in piece meal fashion legal science views as a complete system capable of scientific treatment.
By collecting, comparing, and arranging in logical form past customs, decisions, and laws, writers on law are able to arrive at general principles which may serve as the basis for further enactment, to indicate the gaps that need filling, to point out discrepancies, and, in so far as their ideas are enforced by the courts, to create law.
The declared will of the state in legislation is the chief source of law in modern states, and is tending to supplant the other sources. Customary rules and general principles of equity are being incorporated into definite legislative enactment, codification of laws narrows the field of judicial decision and the commentaries of jurists are used mainly as a basis for more scientific legislation. Rigid custom, which sometimes caused ancient states to stagnate, has been replaced by a zeal in lawmaking which sometimes threatens to go too far in the other direction.
At the same time, the earlier sources still serve as direction against over legislation. Custom and habit prevent too radical changes. Laws no longer needed become obsolete, usages grow up outside the legal system, interpretation by the courts gives attention to the precedents of the past and public opinion constantly influences both the formulation and the administration of law. Past tradition, as well as the needs of the present, affects the creation of law.
In the development of legislation several lines of growth may be noted :
(1). The nature of legislative authority.
At first, magistrates and priests alone could create law. Representing the majesty of the state or the power of God, the father of the family, the chieftain of the tribe, the chief priest of the religion, or the king of the people was the lawgiver. In the Roman Empire the will of the Emperor was the source of law when modern national state arose their kings claimed the same prerogative.
During this process, however, assemblies of freemen, whose consent and support were needed on important questions, gradually established themselves as part of the government, and by various methods secured the right to endorse and finally to initiate new laws. The assemblies in Greece and in the Roman Republic, as well as the early Teutonic folk moots, represented this stage.
Finally, the system of representation, begun in England, furnished a device that enabled the growing idea of popular sovereignty to manifest itself effectively and in modern states legislation is controlled by popularly elected representative bodies or sometimes by the direct action of the voters themselves.
(2) The nature of law:
For a long time the lawmaking powers of government dealt almost entirely with public law, adjusting the relation of citizens and state, and leaving the regulation of the private interests of individuals to custom and the judiciary. Only gradually, even after representative assemblies arose did they attempt more than a general control of public administration.
However, as the basis of representation widened, and the people, in their growing political consciousness, realized their power, it was inevitable that, through their representatives. They should enter on a constantly expanding field of legislation.
Private as well as public interests were regulated, other lawmaking bodies With delegated powers were created, and the present enormous legislative activity was begun. The growth of popular representative government and the idea that the state manifests its sovereignty in detailed legislation are closely interrelated.
Basis of Modern Law:
Although great legal systems and codes were created by the early Oriental empires and still hold sway in certain parts of the earth, the law that governs the Western civilized world arose from a fusion of Roman and Teutonic polity after the barbarian invasions of the fifth century. The legal ideas of the Teutonic tribes showed marked contrasts to those of Rome.
The chief difference may be summed up as follows, To the Romans, law meant the commands of the state issued through its officials among the Teutons immemorial custom of popular origin was law. Roman law was based on allegiance to the state, Teutonic law rested on personal allegiance. Over the Roman Empire a uniform law was enforced on all citizens among the Teutons, law was a personal possession, differing from tribe to tribe, and taken as a part of his belongings wherever its owner might go.
Roman law was written and was finally crystallized in the great Justinian Code Teutonic law was largely unwritten, and was handed down in the popular tradition or was found in the decisions that had been given in disputed cases. To the advanced but rigid Roman code the Teutons therefore contributed new elements and the possibility of further growth. The immediate result of contact was legal confusion. Numerous systems, often contradictory, existed side by side. The Teutons, retaining their customs, made little effort to destroy the old laws of the Empire, and allowed the conquered Romans to continue under their own law. In addition, by the canon law of the church and the local regulations of manor and guild, legal ideas, as to both sanction and content, were further complicated.
Gradually, however, Roman methods systematized this confusion, and the unity of Roman law gradually prevailed over the multiplicity of Teutonic customs. With the advent of feudalism, the idea that law had a personal basis, the son following the law of his father, was changed to the principle that law had a territorial basis, all persons living in a given area coming under the same law. Various causes aided in establishing the supremacy of Roman legal ideas in the process of amalgamation.
The prevalence of Latin as the speech of education and of government furthered the acceptance of Roman legal ideas. To this process the influence of the church was added in organization and spirit it was Roman. It had a well developed system of canon law and courts and by its control over education it furnished the advisers of rulers and the compilers of legal codes. Its authority was therefore cast on the side of Roman methods, particularly in family relations and inheritance. The reverence for Rome as typifying supreme and universal dominion, the theory that the Holy Roman Empire survived, and the efforts of Charlemagne and later ruler to revive the imperial title, led to the adoption of Roman principles in government and to a revival of Roman legal ideas.
During the Dark Ages various codes, containing in the main Roman principles, were drawn up at the command of barbarian leaders of these the most important was the code of the Visigoths, known as the Breviary of Alaric. This compilation, prepared early in the sixth century, remained the chief source of Roman law for Europe until the general awakening of the mind in the eleventh and twelfth centuries.
About that time, in the Italian cities, where population was mixed and trade vigorous, need arose for more comprehensive regulation. In the great compilation of Justinian was found a system suited to the needs of the time, and schools were rapidly! established for its study. Starting in the University of Bologna, in the latter part of the eleventh century, interest in Roman law spread to other Italian cities, thence to France and Spain, and later to Holland. Even in England the study of Roman law obtained for several centuries.
From these schools lawyers steeped in Roman ideas returned to their homes and, supported ‘by the kings, whose desire for centralization they favored, gradually replaced customary rules with Roman principles and procedure.
As the countries of continental Europe arose from feudalism, Roman law increasingly served as the basis for their national unity. Attempts to establish centralized authority and to enforce the kings law as the law of the land the growing influence of the king’s courts and lawyers, trained in Roman law, as the popular courts decayed and the influence of the church all tended in the same direction.
Everywhere evidences of fusion may be found, but in general the legal system of continental Europe rests on Roman jurisprudence. A most direct influence was exerted by the Code Napoleon (1804). This consisted of the ancient customs of France, of Roman law maxims, and of the principles and legislation of the French Revolution, revised and harmonized by a commission of eminent French jurists. By French control and influence this code was introduced into Holland, Italy, Spain, and many of the German states. Austria and Prussia imitated it, and from Spain it spread to Spanish America.
England, separated geographically from the continent of Europe and possessing, from the Norman Conquest, a centralized administration, was able to work out a uniform legal system based on Teutonic customs. English law was indigenous to the country and had a continuous historical development. It grew up gradually from the customs and habits of the people. For a long time definite legislation was uncommon, although the customs of the country were put in to written codes by several early rulers.
The great body of law was unredacted custom, or “common law,” and was handed down in the decisions, first, of the popular local courts, and, later, of the more powerful national courts of the king. By their decisions the varying local customs were unified into a uniform system of law for the entire country.
Lawyers and judges, working over the legal ideas that grew up from custom and habit, created the English legal system. Its principles were fixed in a multitude of recorded cases. Only in the last two centuries has the supremacy of Parliament made statute law an important element in English jurisprudence.
Even in England the influence of Roman law was felt. For four centuries England was governed as a Roman province later, Roman law was taught in her universities, and many precepts and methods were brought from Rome through the church. While the Crown sometimes preferred the Roman system, because it was suitable to national centralization and royal authority, nevertheless the English courts were able to preserve their independence of the king through the support of the nobles and the commons, and with the aid of the king, who did not favor the growing power of the church, were able to restrain the Ecclesiastical courts.
Gaps in the law, resulting from the development of the times, were Filled by judicial decisions. At first these served merely as guides for later decisions, but they finally became compulsory precedents, or judge made law. The power of the judiciary was thereby increased, and the judges were led to be careful in the form of their judgments and to give reasoned statements for their conclusions.
In contrast to the Roman system of the Continent, where judges decided each case by applying the principles of the written code, and where a decision was not an authoritative precedent for future decisions, the customary, or common law, system of England gave the judge a wider discretionary power in interpreting the customary rules and in applying general principles of justice.
Besides, a decision once made became law hence the body of the law was not found in a written code, but in the decisions in past cases. From England the common law system spread to her colonies, and is found today in the United States and in the British dominions. With the growth of legislation and the tendency to codify legal rules, the importance of judge made law is declining somewhat in the English speaking countries.
It should be noted also, that important Hebraic elements have been introduced into modern law, particularly at two periods. During the Middle Ages the union of church and state and the important governing functions that the church performed resulted in a considerable mingling of Christian theology with politics. Again, after the Reformation, Protestant ideas, particularly those of the Puritans were infused into politics and influenced the growth of modern democracy.
In conclusion, it may he noted that, as European law developed, Teutonic principles predominated in public law Roman principles, in private law. The Teutons, as conquerors, formed their governments on the basis of those customs which they were familiar, laying the foundations for local self government and representation. Even where Roman ideas were adopted later, these elements were never completely destroyed.
On the other hand, Roman law was chiefly applied to the relations among individuals. It was in this department that Rome had most perfectly developed her system and its superiority was soon recognized by the invading Teutons. In municipal and colonial administration also the influence of Rome was powerful. With these the Teutons were not familiar, and their customs were accordingly silent.
On the contrary, Roman ideas remained least changed in the towns and toward the close of the Middle Ages, When city life again became important, Roman municipal government reappeared. Later, when colonial empires were formed, it was again to the experience of Rome that the states of Europe turned.
Finally, many survivals in political point of view may still be observed, distinguishing those states whose jurisprudence is predominantly Roman from those whose legal ideas are fundamentally Teutonic and these differences can be explained mainly by the historic development of their respective legal systems.
Modem Schools of Jurisprudence:
The study of jurisprudence or the science of law, may be approached by different methods, depending upon the point of view and the emphasis desired. Among the most important modern schools of legal Study are the following:
1. The analytical:
The method of the analytical jurists is based on the absolutist and idealistic philosophy that came down through Plato, Thomas Aquinas, and Kant, and found its political expression in Bodin, Bentham, and Austin. Recent writers who follow the analytical method include T. E. Holland in England and W. W. Willoughby in the United States. This school seeks to explain the law as it is, examining its content critically in order to discover its fundamental principles and theories. It pays especial attention to clear definitions and to logical distinctions. It emphasizes legislation as a source of law, views lawmaking as the deliberate and conscious command of the state, and insists on the absolute and unitary nature of the state’s sovereignty.
Analytical jurists see chiefly the force behind legal rules. To them the sanction of law is enforcement by the state. thing that lacks a legal enforcing agency is law. This method is more applicable to individual systems of law than to a comparative study, and to highly developed systems of law than to more primitive forms. Analytical jurists tend to regard the law as static rather than progressive, and they are not interested in its historical evolution.
As a result, they have sometimes reached absolute conclusions without examining an adequate amount of material. While this method has been much criticized as being too formal and rigid, it has, nevertheless. by its clear cut analysis, improved the law by removing inconsistent and ambiguous elements and by its association with the utilitarian theory of the greatest happiness of the greatest number, it has reformed the law in the interests of general welfare.
2. The historical:
The historical school of jurists draws upon the Hegelian philosophy of a fixed ideal but constantly evolving details. Its point of view is retrospective. It studies the origin and development of law, investigates the causes of change and growth, and views the law as the resultant of the forces and influences of the past. From this point of view, law is not the deliberate creation of a lawmaker, but the result of the slow development of society through many centuries. The chief exponents of this doctrine were Saving in Germany and Sir Henry Maine.
F. W. Maitland, and, more recently, Sir Frederick Pollock in England! While this method overemphasizes legal history and undervalues legal philosophy, and tends to be conservative because of its reverence for the past and its distrust of deliberate efforts at reform, it has contributed elements of value. It furnishes the background for legal analysis, and it points out that legal systems are constantly changing and need modification to meet new conditions.
3. The philosophical:
The jurists of the philosophical school the interested in the law as an abstraction, rather than in the actual law of the past or present. Their concern is with the development of the ideas of justice as an ethical principle and with the creation of an ideal system of law. In the eighteenth century they believed in a law of nature which could be discovered by human reason. In the nineteenth century they were interested in metaphysical discussions of existing laws and in attempts to create perfect law through codes and legislation. In the twentieth century they gave chief attention to social interests and ideals and to the formation of theories of social justice. The leading modern exponent of the philosophical method was Professor Joseph Kohler, in Germany.
4. The comparative:
The comparative study of jurisprudence is an expansion of the historical method its exponents believe that by examining and comparing all legal systems and practices, past and present, they can arrive at more reliable generalizations than can be obtained otherwise. This method draws largely on the other social sciences for material, and was much influenced by the developments of the second half of the nineteenth century in Darwinian biology, in comparative philology, and in anthropology. While the program of this school is ambitious and much remains to be done, it has made valuable contributions to our knowledge of the nature of law. One of the leading exponents of this method Was Sir Paul Vinogradoff of England.
5. The sociological:
The most recent school of legal investigation includes a group of jurists who hold divergent views on many points, but who are in agreement on certain fundamental principles. The sociological jurists draw largely on modem development in in psychology and sociology and on the practical philosophy of pragmatism. They believe that law is the product of social owes and should serve social needs.
They are concerned with the administration of law as well as with the method of its creation, and believe that the law should be judged by its results, rather than by abstract theories. They approach the study of law by examining the social ends which the law is intended to serve. They broaden the relation of law to the other social sciences and attempt to create a general social theory.
In contrast to the analytical jurist, who found the sanction of law in the command of the state, to the philosophical jurist, who found its sanction in its inherent justice, and to the historical jurist, who found its sanction in established habit and custom, the sociological jurist finds the sanction of the law in the social needs and interests that it serves. This school attacks the idea of a sovereign state as a creator of law, and views the state rather as the organization which imputes legal value to the rules that grow out of and best promote social interests.
Law in this sense exists outside of and is of superior validity to the authority of the state itself. Among the leading representatives of this school are Gumplowicz in Austria. Duguit in France, Krabbe in Holland, and Roscoe Pound and Justice Holmes in the United States.
Classification of Law:
The content of law may be classified from various points of view. Among those which bring out most clearly its essential nature and which throw additional light on the nature of the state and of sovereignty, are the following:
1. As to the nature of a right:
When laws are applied to individuals, it is seen that the state sanctions only such acts as are in accordance with its will, as expressed or tacitly implied, and punishes, or at least nullifies, acts contrary to its will. In other words, the state announces what it will protect as legal rights and what it will enforce as legal duties, and what method it will use in doing so. The maintenance of rights with their corresponding obligations is, therefore, the purpose for which law exists. That law which creates rights is called substantive law while that law which provides a method of protecting rights is called adjective law, or procedure.
The nature of a legal right has already been discussed. There remain to be considered its component elements, which are the following:
- 1.The person or persons who possess the right or who are benefited by its existence.
- 2. The object, if any, over which the right is exercised.
- 3. The acts or forbearance’s which the person possessing the right is entitled to demand.
- 4. The person or persons from whom these acts or forbear antes can be exacted or whose legal duty it is to act or forbear.
in this series two terms are persons one entitled to the right, the other obliged by the right. The other terms may be called the thing and the act. When a right is put into operation, events may occur which are independent of the persons directly concerned concerned and which yet affect the right.
The final analysis of a legal right, therefore, shows:
- a. Persons Either human beings, called natural persons, or groups of human beings or masses of property to which the law gives tights and duties called artificial persons. Corporations and the state itself are examples of this latter class.
- b. Things Either material objects, such as real and personal property, or intangible objects, such as a patent, a copyright, a franchise or a person’s reputation.
- c. Farts These may be:
(1) Acts, Deliberate outward actions or deliberate forbearance from action on the part of the persons affected by the right.
(2) Events. Movements of external nature other arts of persons other than those concerned with the right.
This analysis of a right Opens up the whole field of law and serves as the basis for its division into
(1) law of persons and
(2) law of things, which some writers, such as Austin and Black stone, considered the fundamental classification of law. It also suggests the method of court procedure, the person whose right is violated becoming the plaintiff in the case, and the person Who violates the right becoming the defendant,
2. As to the method of creation:
in modern states, with their elaborate governmental machinery, many organs share in the creation of law. A classification of law from this point of view indicates the distribution of sovereign powers Within the state. In the United States, for example, law may be made in the following ways :
a. By constitution amending bodies:
Special organs of government or special methods of procedure are required, both in the nation and in the commonwealths, to make or change the fundamental principles that create the government, outline the scope of its powers, and prescribe the method of their exercise. These principles form the basic, or fundamental, law.
b. By representative legislature:
These include the national Congress and the state legislatures, which make law in the form of statutes and the local councils, which make ordinances. The executive may share to some extent in the lawmaking powers of legislatures through the veto. The greater part of modem law is made by these bodies.
c. By the electorate:
The voters share in lawmaking in some of the American commonwealths by means of the referendum. This may be applied to laws submitted to them by the legislature or to laws which they originate by initiative petitions.
d. By executive and administrative organs:
Executive heads, department heads, and administrative boards and commissions exercise a limited lawmaking power in the proclamations, orders, and regulations which they issue.
e. By the courts:
The courts make law when they give decisions based on customs or on principles of equity not previously put into law when, by interpreting the constitutions or laws, they actually change their formerly accepted meaning and when, by injunctions, they forbid something which would otherwise be legally permissible.
f. By the treaty making power:
The president, with the consent of two thirds of the Senate, makes treaties, which, once made, become part of the law of the land.
3. As to the relations governed:
The relations with which the state is concerned include those of person to person, person To state, and state to state. On this basis law may be divided into the ,following classes:
- a. Private law, which regulates the relation of person to person.
- b. Public law, which regulates the relation of person to state.
- c. international law, which regulates the relation of state to state.
In private law both parties concerned are private persons, natural or artificial, while the state occupies the position of arbiter. It creates the law that applies to the case, and is expected to enforce it impartially, thus securing to each person his rights against other persons. The state does not attempt to regulate all the relations among persons, but only those which in its opinion are of such public importance as to need legal regulation. This covers the held of civil rights which the individual enjoys against interference from other individuals. Among the most important subdivisions of private law are the laws of property of contracts of corporations, of personal relations, of torts, and of civil procedure.
In public law the state is, through some part of its government, one of the parties to the right created by the law, at the same time being the power that creates and enforces the law. If individuals are the offenders, the state may of course, protect its rights. But if the state is the offender, the individual may protect his rights only with the consent of the state, since no rights can be enforced against the state. Public law deals with the organization and functions of the state and with its relation to its citizens. It includes the whole field of political rights, and that part of the field of civil rights which the individual enjoys against governmental interference. Its most important subdivisions are :
(1) Constitutional law, which defines the organization of the state and outlines the scope and manner of exercise of governmental powers. In a word, it locates sovereignty within the state and thus indicates the source of all law.
(2) Administrative law, which defines in detail the manner in which the government shall exercise those powers that were Outlined in constitutional law. Or, in a narrower sense, it is that part of the public law which fixes the organization and determines the competence of the organs administer the law, and indicates to the individual remedies for the violation of his rights.
(3) Criminal law and procedure. In maintaining order the state considers certain offenses, which affect public welfare and security, as offenses against itself. That branch of law which defines and forbids the acts that infringe upon the rights of the state and provides penal consequences is called criminal law. That body of rules defining the method in which the machinery of the state is set in motion to punish offenders is called criminal procedure.
The idea of criminal law is comparatively modern. At first, offenses against the state, such as treason, were dealt with by special laws and offenses against individuals, even if they threatened general welfare, were considered as private acts, to be avenged by individuals or compensated for by money payments to the injured parties. The state, entering as the arbiter that enforced fair play, later came to consider certain acts, such as murder and theft, as offenses both against other individuals and against itself.
With this came the idea that it was the duty of the state to prevent and punish such offenses. A crime, therefore , is legally an offense against the state, which appears as the prosecutor in the case. If money payment is allowed as compensation for a wrongful act, or tort, in private law, it goes, in the form of damages, to the injured person. If money payment is imposed as a penalty for a criminal offense in public law, it goes in the form of a fine, to the state. Public and private law, taken together, are called municipal
law and are characterized by the presence of an enforcing authority. They result from the internal sovereignty of the state and form law in the positive sense. In public law the state is both an interested party and the enforcing authority in private law the state is the enforcing authority only. In contrast to these laws, which regulate the relations of man to man and of man to state, stand the rules that regulate the relations of state to state called international law. These are concerned with the external sovereignty, or independence, of states.
They are not created by a sovereign lawmaking authority, nor is there any sovereign power to enforce them on states that refuse to obey. They do not from positive law, littering from it both in the method by which they are created and in the sanction that enforce them. Those who hold a strict Austinian theory of sovereignty deny that international law is law, those who hold a less rigid theory consider international law as law by widening the definition of the term “law.”
Law and Morals:
Law and morals, while closely related, must he clearly distinguished. The difference in sanction has already been indicated. Moral rules are enforced by individual conscience or by the pressure of public opinion. Law is enforced by the power of the state. There is, however, a difference in content as well. Morals deal with the whole life of man, his thoughts and purposes as well as his actions. Law is concerned with out ward acts, though in applying the law to individual cases some attention is given to motives of these outward acts the law attempts to control only such as affect the welfare of man in society and as can be brought under uniform and practicable regulation.
It necessarily follows that many things considered morally wrong are not prohibited by law. Falsehood may be immoral, but only certain kinds of falsehood, such as perjury and slander, are illegal. Ingratitude, jealousy, meanness, are indications of bad character, but do not come under the cognizance of law unless actual injury to others can be proved. On the other hand, law often follows standards of expediency, and things not considered morally wrong are forbidden by law.
Whether one drives on the right or the left side of the street involves no moral issue merely the necessity that there should be some rule which can be depended upon to avoid confusion. Some laws may even offend the moral sense of many persons and be considered by them unjust and undesirable. Laws permitting amusements on the Sabbath or legalizing prize fights are examples.
There is, therefore, a legal conscience as well as a moral conscience, and the two do not always coincide. Some persons prefer to be martyrs to the law rather than to forsake their moral opinions others disregard morality so long as they can keep on the safe side of the law.
There is, nevertheless, a close connection between law and morals. In origin they were identical, both arising as the result of habit and experience in that primitive social life when moral and political ideas were not separated. Even after the state became a distinct institution, and laws, as definite sovereign commands, were distinguished from moral precepts, points of contact remained.
Widespread ideas of right and wrong, representing prevalent ethical standards, always tend to be crystallized into law. To be effective, law must represent national habits and beliefs. Laws that attempt too soon to force new mom ideas, and laws that are no longer in touch with existing ethical standards, are alike difficult to administer.
The non enforcement of prohibition legislation is an example of the former certain ancient, but unrevealed laws concerning Sabbath observance illustrate the latter. In this sense law marks time to moral progress. There is always a mass of public opinion clamoring for legal expression, and there is also a body of law becoming obsolete because inapplicable under existing conditions. While law may be use to limited extent to modify and improve ethical standards only such law as has the support of general moral sentiment will be respected and obeyed or if necessary efficiently enforced.