« AnteriorContinuar »
right-holder to assert it, who is either a private person or the State, it is generally unnecessary to consider duties apart from rights. In the classification, in the absence of special facts, calling for a departure from the general rule duties are placed under their corresponding rights.
The classification of law presented in this paper differs from the usual classification of Roman law, among other things, by grouping under the several primary rights the remedies for their violation and the duties corresponding to such rights.
A legal power, as the term is used in this classification of law, is capacity to do an act which persons generally are under a legal duty to recognize as lawful. In many instances a person has legal power to do an act without having a legal right to do it. For example, a judge has legal power to render a wrong decision, but no legal right to do it. A corporation has legal power to do many ultra vires acts, but no legal right to do them.
against persons generThe duty-bearers are
A right in rem is a right availing ally, and is a right to forbearances. indeterminate. Only a few of them can ever be specifically known. Any one in the State may become a duty-bearer. For example, a man's right to personal security, his right of dominion over land and cattle owned by him, his right to a patent for an invention granted him by the government, are rights in rem. A man's right of ownership over a tract of land or a movable is a typical right in rem. He has a right of dominion over specific matter and a right against men generally that they forbear to interfere with it. From this typical example the class, rights in rem, extends to other rights more or less similar. In this classification of law a right in rem denotes not only full ownership, but lesser rights into which the full right may be split, e. g., it includes an easement, a leasehold, a reversion, a lien. It includes a man's rights of dominion over himself and over other men. It includes also a patent for an invention, a copyright, a right
to a trade-mark. In these cases there is no specific matter, inanimate or living, over which dominion is exercised, but there is a right against men generally that they forbear to interfere with a certain class of acts by the right-holder, similar to those he would exercise over specific matter.
A right in personam is a right availing against a specified individual or individuals, and is a right either to acts or to forbearances. For example, a promisee's right against a promisor to have the latter perform his contract is a primary right in personam. All rights to remedies for violated rights in rem are rights in personam.
Further explanation and definition of terms will be given in the course of the statement of the proposed classification of law and at its close.
A nation's law, as it exists at any date in the nation's history, whether expressed by a written constitution, by statutes, by case law, by customs, or, as is now usually the case in civilized countries, by all of these in combination, may be conveniently grouped under nine great heads, as follows:
1. Structural Law, which relates to the organization or structure of the government; which fixes the number and names of legislative, executive and judicial offices and boards, and of territorial and other public corporations; which prescribes how such offices, boards and corporations shall be created and destroyed, filled and vacated; and which prescribes the powers, rights and duties attached to such offices, boards and corporations, the remedies to enforce such powers and rights, and the penalties by which the performance of such duties is coerced. This head includes the jurisdiction and rights of courts, and the powers and rights of judges and juries as public officers and constituent parts of courts. This head and the next may be conveniently denominated, Public Law.
The term, constitutional law, has been avoided as the name of this head because it denotes much extrinsic matter, and does not include the whole of the subject. As commonly
used it embraces all matter contained in a written constitution, although such matter does not relate to the structure of government. For example, a provision that railway corporations shall not consolidate is part of the sixth head of the classification, Status, not of structural law, but such provision is constitutional law in the State of Illinois because embodied in the constitution of that State. On the other hand, the phrase, constitutional law, is too narrow. The greater part of the law governing both major and minor public agents is contained in statutes, and hence is not denoted by the phrase. The expression, organic law, has been avoided as the name of this head, because it does not suggest the law governing minor government agents as well as the law governing the legislature and the principal judicial and executive officers of a State.
2. Public Law, Part Two, which relates to the rights of a State against persons, and the rights of persons against the State and Public officers as such. Under its first branch it includes, (1) criminal law, which defines crimes and their punishment; (2) criminal procedure; (3) many rights to the performance of active duties by subjects, such as the payment of taxes, and the performance of military and jury duty; (4) the rights of the States as an owner of property, and as a contractor; (5) civil suits by the State. It includes also, much of so-called administrative law, e. g., much of the law governing the currency and weights and measures. Under its second branch it includes (1) the primary rights of individuals against the State, such as the right of an elector of a republic to participate in the government of his country by voting; and (2) the enforcement of such rights against the State, e. g., by suits against it, brought with its consent.
To speak of the rights of a person against the State may seem at first blush inaccurate to those who hold with Austin that the sovereign cannot be a duty-bearer. It does not seem to violate any legal conception, however, to regard the
sovereign as a duty-bearer, when he voluntarily submits to be sued in his own courts either by name or by suits brought nominally against his officers.
3. Law of Persons, which relates to a person's rights of dominion over his own body, life and reputation and over the body, life and reputation of other persons. Examples of rights of the first group are, the right of bodily security; the right of occupation, e. g., a person's right to do whatever he likes wherever he is; the right of residence; the right of locomotion; the right of free speech; the right of reputation, protected by the actions of slander and libel; the right to worship freely; and the right to assemble. Since the abolition of slavery, in this country, rights over others are here of small importance, and are confined chiefly to the family relations. This head includes, in addition to rights in rem as to one's self and over others, (1) non-contractual rights in personam, closely related to such rights in rem; (2) contractual rights, which are closely related to such rights in rem, and which are subtracted from the head, Contracts, as given below; (3) torts, i. e., injuries, which violate the primary rights involved, as for example, an assault violating a person's primary right of personal security, and (4) the right-holder's remedies therefore, e. g., a habeas corpus suit as a remedy for false imprisonment.
The name, Law of Persons, given to this head of the classification of law, is used in deference to established usage and because we have no better one. It is to be remembered, however, that the group of rights comprising this head is no more closely connected with persons than are the other branches of the law.
The head, Law of Persons, and the next three may be conveniently grouped together under the term, Private Law, which primarily signifies the rights of one private person against another including the rights of a private person against a public officer, except so far as the latter is exempt from personal liability as an agent of the State.
4. Property, which relates (1) to a person's rights of dominion over land, including water; (2) to a person's rights of dominion over inanimate movables, including fixtures, and over animals; and (3) to patent rights, copyrights, trade-marks and their like, and special privileges (i. e., franchises), all of which may be described as rights of dominion over indeterminate tangible matter. A right of dominion is a right to use and convey the thing owned and to exclude others from using and conveying it. This head includes, in addition to rights in rem (1) non-contractual primary rights in personam, closely related to such rights in rem, e. g., a landlord's right to demand rent from his tenant; (2) contractual rights which are closely related to such rights in rem, and which are subtracted from the head, Contracts, as stated below; (3) torts, violating proprietary rights; and (4) the remedies therefor, e. g., an action at law to recover pecuniary damages for waste, an injunction in equity to restrain waste. It includes the creation, transfer and destruction of rights of ownership, e. g., by deed, by will, by descent, by long possession, by estoppel. The law relating to each estate in land can be conveniently grouped as follows: (1) name, definition and divisions; (2) how created,. transferred and destroyed (investitive, transvestitive and divertitive facts); (3) powers, rights and remedies of the owner; (4) duties and liabilities of the owner.
5. Contracts, which head relates, for the most part, to the rights of one person against another, arising from agreement. A contract is an agreement to which the law annexes a duty.* This head includes the violation of contracts and the remedies therefor. Contracts, considered as investitive, transvestitive or divestitive facts, i. e., creating, transferring or destroying rights in rem, e. g., title to land, a patent for an invention, or entering into the creation or destruction of a status, e. g., in cases of marriage, in the formation and dissolution of private corporations-are treated under the Langdell, 1 Har. Law Rev. 56, n. 1.