« AnteriorContinuar »
We are at the end of our inquiry. What is the result? It is the fact that the conception of justice grows out of necessary processes in our soul and necessarily influences economic life. The idea of justice is, like other moral ideas, not imparted to men by some revelation, and just as little is it an arbitrary invention; it is the necessary product of our moral intuition and our logical thinking, and in so far it is an eternal truth, manifesting itself ever new yet ever similar metamorphoses. In many it works only as a vague feeling. In the course of history it develops, for the majority, into clear conceptions, standards and conclusions. According to the laws of his thought man must unify the manifold and then subject it to uniform standards. The supposition of moral communities in society creates the conception of an earthly justice; the supposition of the unity of all things, that of divine justice. It is the same chain of judgments and conclusions which, dissatisfied with the imperfections of earthly things, transfers the last compensation into a higher and better world. The idea of justice is thus connected with the highest and best that we think, imagine and believe.
But as this highest and last never reveals itself to mankind in its full splendor, as we eternally seek it, eternally battle for it, and though ever progressing, never reach it, so the idea of justice has no resting, determined existence on earth. As no penal law, no judge is absolutely just, so no established distribution of property and incomes is altogether just. But every consecutive epoch of mankind has won a higher measure of justice in this field. In custom, law and existing institutions which rule economic life we have. the outcome of all the struggles for justice which history has seen for many thousand years.
The value of our own life, of our own time, does not lie so much in what was attained before us, as in the amount of strength and moral energy with which we press forward in the path of progress. Great civilized nations, great epochs and great men are not those who comfortably enjoy their
ancestral inheritances, who eat, drink and increase production, but those who with greater energy than others devote their services to the great moral ideas of humanity; they are those who succeed in propagating moral ideas and in introducing them more deeply than hitherto into the sphere of egoistic struggles for existence; they are those who on the field of economics succeed in securing and carrying through juster institutions.
[Translated by ERNST L. VON HALLE and CARL L, SCHUTZ.]
CLASSIFICATION OF LAW.*
A generally accepted and convenient classification of law of sufficient scope to serve as the basis for the arrangemen of the laws of any nation at any stage of its development, is something the world has not yet known. Such a classification, if we ever have it, will give the bench, the bar, students of history and the people at large, a better comprehension of the subject-matter than they had before. The aid it will supply will be much the same as the aid which meridians of longitude and parallels of latitude supply to the navigator, the traveler, and all who need an extended and accurate view of the earth's surface. The classification contained in this article is, I believe, more convenient than any other yet proposed. That it may be of much use, however, it must be generally accepted.
The term, municipal law, or more briefly law, as used in this paper, means two things: 1. It means the rules in accordance with which the courts of a State decide cases, that is, the rules of conduct prescribed, directly or indirectly, by the holders of sovereign power in a State to all persons within its territory. 2. It means the structure of the government. (For an elucidation of the phrase," the structure of the government," see the first head of the classification of law given, below). It is almost unnecessary to say that the word, law, does not here denote physical laws, the rules in accordance with which matter exists and moves. Neither does it directly denote moral laws, the rules of human conduct. which God has prescribed to men. Municipal law should be
* A skeleton of the classification of law stated in this paper was published by me in a letter to The Green Bag, for March, 1890. The classification, more or less elaborated, was afterward printed in one or two other legal periodicals and in pamphlet form. The pres nt paper owes its existence to my desire to further explain it, and to bring it to the attention of a class of readers, whom it has not yet reached.
the expression of moral law, and to a great extent always is so, yet, under the most favorable circumstances it is incapable of expressing a large part of moral law and must be therefore permanently narrower in its scope. It does not denote all commands of the sovereign and his agents, or even all their commands in the form of general rules; for example, it does not embrace general orders of an executive officer, such as the secretary of the treasury, to his subordinates. As pointed out by another writer, it does not embrace infantry tactics, although they be established by the State.*
As used in this paper the word, law, does not include specific commands of the sovereign or his agents, whether they be legislative, executive or judicial officers or bodies, nor general orders of executive officers or boards to their subordinates.
The greater part of the law administered by the courts and to be arranged in the following classification, has never in any English speaking country, and probably never in any country, been enacted in the form of a statute. In civilized countries at present, it is so much of the current morality of the nation as the courts believe can be administered by them with advantage to the people, modified by statutes, including in that term written constitutions, treaties and ordinances, and modified by rules established by prior judicial decisions. The order of authority of these sources of law is, (1) statutes; (2) rules based on precedents; (3) current morality. The general order of historical development is the reverse order.
The word, right, as used in municipal law and in the classification of law given hereafter, denotes two groups of attributes attached to persons. 1. It usually means a power in one person, called the right-holder, to force another, called the duty-bearer, by aid of the courts of justice to do or to forbear to do some act. For example, A has a legal right against B to enforce through the courts payment of B's promissory note which A holds. Such a right may be called
* Gray, 6 Har. Law. Rev. 21.
a protected right. The class includes a right protected indirectly by the courts, although directly by self-redress. 2. When the word, right, is applied to the rightholder's own acts, it means absence of legal prohibition. For example, a man has a right to practice such forms of religious worship as he chooses, not injurious to the State; he has a right to express his opinions about public affairs and about men in public office. Such a right may be called a permissive right. If the State goes further than abstaining from prohibiting the man's act, and protects him in doing it, against interference by other men, he has a right under the first definition of the term as well as under the second. The word, right, is not here used, as it often is in common speech, as synonymous with justice.
Rights are primary, that is, given for their own sake irrespective of any prior breach of law, or secondary, given in substitution for a violated primary right, or to enforce a primary right or another secondary right. Thus, B's right as a citizen of a State to vote at elections, under such limitations as the law of the State may prescribe, his right of personal security, that is, his right against persons generally not to have his person touched or interfered with, his right of dominion over the house he owns and occupies, and his right to have C perform his contract to pay a sum of money, are all primary rights. B's rights to remedies for the violation of these primary rights are secondary rights.
In the division of law as given below into nine great groups, under each primary right are included the secondary rights arising from it, whether they are substitutes for a violated primary right, or are rights to remedies, such as an action at law to recover money damages, a suit in equity or a mandamus to enforce the specific performance of a duty, an injunction to prevent the threatened violation of a right. An exception is made as to so much of the law of remedies as can be stated more conveniently by itself under the seventh head, Procedure. As a duty never exists without a