Jurisprudence

English law possesses no received and authentic scheme of orderly arrangement. Exponents of this system have commonly shown themselves too little careful of appropriate division and classification, and too tolerant of chaos. Yet we must guard ourselves against the opposite extreme, for theoretical jurists have sometimes fallen into the contrary error of attaching undue importance to the element of form. They have esteemed too highly both the possibility and the utility of ordering the world of law in accordance with the straitest principles of logical development. It has been said by a philosopher concerning human institutions in general, and therefore concerning the law and its arrangement, that they exist for the uses of mankind, and not in order that the angels in heaven may delight themselves with the view of their perfections. In the classification of legal principles the requirements of practical convenience must prevail over those of abstract theory. The claims of logic must give way in great measure to those of established nomenclature and familiar usage; and the accidents of historical development must often be suffered to withstand the rules of scientific order. Among the various points of view of which most branches of the law admit, there are few, if any, which may be wisely adopted throughout their whole extent, and among the various alternative principles of classification, expedience allows of no rigidly exclusive and consistent choice. There are few distinctions, however important in their leading applications, which may not rightly, as they fade towards the boundary line, be replaced by others which there possess a deeper significance. We may rest content, therefore, if, within the limits imposed by the needful conformity to received speech and usage, each portion of the law is dealt with in such of its aspects as best reveals its most important characters and relations, and in such order as is most consistent with lucid and concise exposition.

1. The Introductory Portion of the Law.

The first portion of the corpus juris is of an introductory nature, consisting of all those rules which by virtue of their preliminary character or of the generality of their application cannot be appropriately relegated to any special department. This introduction may be divided into four parts. The first of them is concerned with the sources of law. It comprises all those rules in accordance with which new law obtains recognition and the older law is modified or abrogated. It is here, for example, that we must look for the legal doctrine as to the operation of precedent, custom, and legislation. The second part of the Introduction deals with the interpretation of law. Here we shall find the rules in accordance with which the language of the law is to be construed, and also the definitions of those terms which are fitly dealt with here, because common to several departments of the law. In the third place the Introduction comprises the principles of private international law—the principles, that is to say, which determine the occasional exclusion of English law from English courts of justice, and the recognition and enforcement therein of some foreign system which possesses for some reason a better claim to govern the case in hand. Fourthly and lastly, it is necessary to treat as introductory a number of miscellaneous rules which are of so general an application as not to be appropriately dealt with in any special department of the legal system.

2. Private and Public Law.

After the Introduction comes the body of Private Law as opposed to that of Public Law. By general consent this Roman distinction between jus privatum and jus publicum is accepted as the most fundamental division of the corpus juris. Public law comprises the rules which specially relate to the structure, powers, rights, and activities of the state. Private law includes all the residue of legal principles. It comprises all those rules which specially concern the subjects of the state in their relations to each other, together with those rules which are common to the state and its subjects. In many of its actions and relations the state stands on the same level as its subjects, and submits itself to the ordinary principles of private law. It owns land and chattels, makes contracts, employs agents and servants, and enters into various forms of commercial undertaking; and in respect of all these matters it differs little in its juridical position from its own subjects. Public law, therefore, is not the whole of the law that is applicable to the state and to its relations with its subjects, but only those parts of it which are different from the private law concerning the subjects of the state and their relations to each other. For this reason private law precedes public in the order of exposition. The latter presupposes a knowledge of the former.

The two divisions of public law are constitutional and administrative law. It is impossible, however, to draw any rigid fine between these two, for they differ merely in the degree of importance pertaining to their subject-matters. Constitutional law deals with the structure, powers, and functions of the supreme power in the state, together with those of all the more important of the subordinate departments of government. Administrative law, on the other hand, is concerned with the multitudinous forms and instruments in and through which the lower ranges of governmental activity manifest themselves.

Within the domain of private law the division which calls for primary recognition is that between civil and criminal law. Civil law is that which is concerned with the enforcement of rights, while criminal law is concerned with the punishment of wrongs. We have examined and rejected the opinion that crimes are essentially offences against the state or the community at large, while civil wrongs are committed against private persons. According to the acceptance or rejection of this opinion, criminal law pertains either to public or to private law. Our classification of it as private is unaffected by the fact that certain crimes, such as treason and sedition, are offences against the state. As already explained, logical consistency in the division of the law is attainable only if we are prepared to disregard the requirements of practical convenience. Greater weight is wisely attributed to the fact that treason and robbery are both crimes, than to the fact that the one is an offence against the state and the other an offence against an individual.

Just as the law which is common to both state and subject is considered under the head of private law alone, so the law which is common to crimes and to civil injuries is dealt with under the head of civil law alone. It is obvious that there is a great body of legal principles common to the two departments. The law as to theft involves the whole law as to the acquisition of property in chattels, and the law of bigamy involves a considerable portion of the law of marriage. The arrangement sanctioned by usage and convenience is, therefore, to expound first the civil law in its entirety, and thereafter, under the title of criminal law, such portions of the law of crime as are not already comprehended in the former department.

4. Substantive Law and the Law of Procedure.

Civil and criminal law are each divisible into two branches, namely substantive law and the law of procedure, a distinction the nature of which has already been sufficiently considered.

5. Divisions of the Substantive Civil Law.

The substantive civil law may be conveniently divided, by reference to the nature of the rights with which it is concerned, into three great branches, namely the law of property, the law of obligations, and the law of status. The first deals with proprietary rights in rem, the second with proprietary rights in personam, and the third with personal as opposed to proprietary rights.

6. The Law of Property.

Although the distinction between the law of property and that of obligations is a fundamental one, which must be recognised in any orderly scheme of classification, there is a great part of the substantive civil law which is common to both of these branches of it. Thus the law of inheritance or succession concerns all kinds of proprietary rights whether in rem or in personam. So also with the law of trusts and that of securities. In general the most convenient method of dealing with these common elements is to consider them once for all in the law of property, thus confining the law of obligations to those rules which are peculiar to obligations: just as the elements common to civil and criminal law are dealt with in the civil law, and those common to private and public law in private law.

The law of property is divisible into the following chief branches: (1) the law of corporeal property, namely the ownership of land and chattels; (2) the law of immaterial objects of property, such as patents, trade-marks, and copyrights; (3) the law of encumbrances or jura in re aliena, such as tenancies, servitudes, trusts, and securities; (4) the law of testamentary and intestate succession.

7. The Law of Obligations.

The law of obligations comprises the law of contracts, the law of torts, and the law of those miscellaneous obligations which are neither contractual nor delictal. It may be convenient to consider under the same head the law of insolvency, inasmuch as the essential significance of insolvency is to be found in its operation as a method of discharging debts and liabilities. Alternatively, however, this branch of law may be included in the law of property, inasmuch as it deals with one mode of divesting proprietary rights in general. In the law of obligations is also to be classed the law of companies, this being essentially a development of the law of the contract of partnership. Under the head of companies are to be comprised all forms of contractual incorporation, all other bodies corporate pertaining either to public law or to special departments of private law with which they are exclusively concerned. The general doctrine as to corporations is to be found in the introductory department of the law.

8. The Law of Status.

The law of status is divisible into two branches dealing respectively with domestic and extra-domestic status. The first of these is the law of family relations, and deals with the nature, acquisition, and loss of all those personal rights, duties, liabilities, and disabilities which are involved in domestic relationship. It falls into three divisions, concerned respectively with marriage, parentage, and guardianship. The second branch of the law of status is concerned with all the personal rights, duties, liabilities, and disabilities, which are external to the law of the family. It deals, for example, with the personal status of minors (in relation to others than their parents), of married women (in relation to others than their husbands and children), of lunatics, aliens, convicts, and any other classes of persons whose personal condition is sufficiently characteristic to call for separate consideration.^[522]

There is one class of personal rights which ought in logical strictness to be dealt with in the law of status, but is commonly and more conveniently considered elsewhere—those rights, namely, which are called natural, because they belong to all men from their birth, instead of being subsequently acquired: for example, the rights of life, liberty, reputation, and freedom from bodily harm. These are personal rights and not proprietary; they constitute part of a man’s status, not part of his estate; yet we seldom find them set forth in the law of status.^[523] The reason is that such rights, being natural and not acquired, call for no consideration, except in respect of their violation. They are adequately dealt with, therefore, under the head of civil and criminal wrongs. The exposition of the law of libel, for example, which is contained in the law of torts, involves already the proposition that a man has a right to his reputation; and there is no occasion, therefore, for a bald statement to that effect in the later law of status.