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Term "law" to be restricted to the juridical government of man, § 1. Law is based on express command or established rule, but not necessarily by a sovereign, § 2.

As to scope, law may be international, federal, state, or municipal, § 3. Object of law is distribution of justice, § 4.

Exceptions in cases of self-protection, § 5.

Schools of jurisprudence may be classi

fied as "analytical,” “theocratic," "ethical" and "historical," § 6. Legal right is the right to control another, § 7.

To a legal right it is essential that there should be a party privileged, a party bound, and a thing to be done, § 8. Inappropriateness of term "rights of things," § 9.

Law a condition of liberty, § 10. "Sanction" is the detriment imposed on disobedience, § 11.

Distinction between written and unwritten law illusory, § 12.

Custom makes law, not law custom, § 15.

Common law the product of right reason based on national conscience and need, § 16.

Not essential to common law that it should have existed time out of mind, § 17.

British Constitution emanating from national conditions, § 18.

So as to Constitution of the United States, § 19.

Unconscious change of institutions illustrated by slavery, § 20.

Paper law giving way to instinctive

and customary law, § 21.

Law made to bend to national conditions, § 22.

Illustrated in Pennsylvania, § 23. Illustrated in Massachusetts, Rhode Island, and Louisiana, § 24. Illustrated in other states, § 25. That a sanctioning sovereign is not essential shown by law of nations, inter-state, and Indian law, § 26. Laws not declaratory are inoperative, § 27.

checked democracy, § 28.

Statutory law is law imposed in fixed This position does not involve unwords, § 13. Custom is the first stage in the forma- No case bound by exact precedent, tion of law, § 14.

§ 29.

Necessary logical evolution by courts,
§ 30.

This not necessarily arbitrary, § 31.
Nor is such law ex post facto, § 32.
Evolution not antagonistic to free-will
or theism, § 33.

Process does not preclude occasional
receding and revision, § 34.


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§ 1. THE term "law" is frequently applied not only to the principles of human government, but to the "law" is to order of nature and to the processes of the human mind. This large use of the term has been productive of many ambiguities. The term "law" is used in one premiss, for instance, in its larger sense, and in the other premiss in its more narrow and correct sense, and thus a false conclusion is reached. Thus we have frequently presented to us an argument which may be thus expanded into a syllogism: "It is a law that all acts of an intelligent agent were intended. This was the act of an intelligent agent: therefore it was intended." The fallacy in the syllogism here proposed is that "law" in the major premiss is a law of psychology, and that at the best it justifies only a pro'bable conclusion, while the conclusion given is announced as an absolute law of jurisprudence. To this fallacy are attributable the erroneous rulings of our courts that it is a presumption of law that all acts done were intended. Difficulties almost equally great have arisen from the habit of speaking of the sequences of nature as "laws;" it being assumed that there is a law of nature to a particular effect; e. g., that words cannot be instantaneously conveyed from point to point; and then this "law" is spoken of as if it bound absolutely and peremptorily as a law of jurisprudence. As is said by Mr. Christian in a note to Blackstone, "when law is applied to any other object than man, it ceases to contain two of its essential ingredient ideas, namely, disobedience and punishment." And we may go further than this, and say, that in the view of jurisprudence law must not only be applied to man as an object, but it must be directed to the government of man. Hence, an inference of psychology, however sound, is not a law in the sense before us. To law, freedom of the party gov

To a legal right, it is that there party privparty

should be a

"ileged, a

bound, and

a thing to

there should be two parties-one to whom the right accrues, and one from whom the duty pro. ceeds. It is here that we are met by an ambiguity of terms, which has been productive of some confusion. Sometimes we are told of the "obligor" and the "obligee" of a right; and this would, perhaps, be the most satisfactory way of expressing be done. the relationship, were it not that in English law “obligor” and “obligee" are terms confined to the parties to bonds. By others, the parties to a right are described as the "person entitled" and the "person obliged;" while a recent thoughtful writer has substituted for these terms," the person of inherence," as the person to whom the right attaches, and "the person of incidence," as the person on whom the duty is imposed. "A testator," so is this illustrated, "leaves his daughter a silver teapot. Here the daughter is the 'person of inherence,' i. e., in whom the right resides; the teapot is the 'object' of the right; the delivery to her of the teapot is the 'act' to which her right entitles her; and the executor is the 'person of incidence,' i. e., the person against whom her right is available." This phraseology may be objected to on the ground of novelty if not of obscurity; and perhaps it is wisest to fall back on the old terms, "person privileged" and "person bound,” as indicating the party by whom a right is possessed, and the party on whom the correlative duty is imposed. Nor does it seem necessary to divide the relationship between the parties into "the object" and "the act or forbearance." That relationship, as in some cases of service, may consist exclusively of action, there being no predetermined object. Hence, in our analysis of a right, we may regard it as composed of three incidents: 1st, the party privileged; 2d, the party bound; and 3d, the duty to be performed.2

1 Holland, Jurisprudence, 2 ed. 70. Savigny speaks of rights as being either subjective, when viewed in connection with the person wielding them, or as objective, when viewed in connection with the person bound by them. Rights are also substantive, i. e., claims

held by one person on another; or adjective, i. e., ways in which such claims are to be enforced. Professor Holland uses in place of "substantive" and "adjective," "antecedent" and "remedial."

Inappropriateness of term

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§ 9. From what has been said, we are led to notice the inappropriateness of the term "rights of things," and consequently of the division of rights, as pro"rights of posed by Hale and Blackstone, into (1) "rights of things." persons," and (2), “rights of things." In the Roman law, "jus quod ad personas pertinet," was contracted into "jus personarum;" but, as has been lately pointed out, "jus rerum" was never adopted as a contraction of “jus quod ad res pertinet." Consequently, the Roman classification may be paraphrased as "rights of persona exclusively in their relations to each other," and "rights of persons in relation to things." For, as far as concerns law as a rule of action, things have no rights unless as related to persons; and, consequently, there is no category of "rights of things" as distinguished from "rights of persons.' Even in proceedings in rem, in which a thing is the ostensible object, there is a determinate person, who is the plaintiff, and an indeterminate person, the owner in whole or in part, who, though not specified in the process, is barred by a decree of condemnation. By following the Roman division as above paraphrased, we avoid not only the erroneous classification of Blackstone, but the obscurity with which status is defined by Austin. That eminent jurist tells us that status, or condition, must reside in persons as members of a class, must concern them specially, and must give to them a conspicuous character or type. This, however, is too comprehensive, as it would embrace membership in a particular profession or connection with a particular trade. This difficulty, which would make the law of status include all other branches of law, is avoided by the distinction above given, which places in one category the rights of persons exclusively in their relations to each other, and in the other category the rights of persons in relation to things. To justify this classification, however, two explanations are necessary. (1) Peculiarities of relative personality to constitute status, must not only relate to a class of persons, irrespective of their relation to things, but must be constant and exterior. A type of common irritability of temper, for instance, does

1 Holland, Juris. (2d ed.) 100.

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