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.
3. Civil and Criminal Law.
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.