Classified constitutionally, in respect of their internal structure, instead of internationally, in respect of their external relations, states are of two kinds, being either unitary or composite. A unitary or simple state is one which is not made up of territorial divisions which are states themselves. A composite state on the other hand is one which is itself an aggregate or group of constituent states. The British Empire is composite, because many of its territorial divisions are possessed of such autonomy as to be states themselves. Some of these constituent states are also composite in their turn, Australia and Canada, for example, being composed of unitary states such as Queensland and Quebec.
Composite states (whether dependent or independent) are of two kinds, which may be distinguished as imperial and federal. The difference is to be found in the nature of that common government which is the essential bond of union between the constituent states. In an imperial state the government of one of the parts is at the same time the common government of the whole. In a federal state, on the contrary, the common government is not that of one of the parts, but a central government in which all the constituent states participate. The constitution of the British Empire is imperial; that of the United States of America is federal. In the former, one of the parts, namely, Great Britain and Ireland, is preferred before the others, as supplying the authority which binds all of them into a single whole. The government of the United Kingdom possesses a double capacity, local and imperial. In its local capacity it administers the affairs of England, Scotland, and Ireland, just as the government at Cape Town administers the affairs of Cape Colony. But in another capacity it is the government of the whole empire, and provides the bond of common authority which unites all the constituent states of the empire into a single body politic. In a federal, as contrasted with an imperial constitution, there is no such predominance of one of the constituent states. The government of the whole is one in which all the parts have their allotted shares. The unity of an imperial state is a relation of all the other parts to one of them; the unity of a federal state is a relation of all the parts to a central and common authority.[[107]]
SUMMARY
| Definition of the State. | |||
| Functions of the State | Essential | Administration of Justice. | |
| War. | |||
| Secondary. | |||
| Relations between the two essential functions. | |||
| The judicial and extrajudicial use of force. | |||
| Minor differences. | |||
| The territory of the State. | |||
| The members of the State | Citizens or subjects. | ||
| Resident aliens. | |||
| Citizenship in its historical aspect. | |||
| Citizenship and nationality. | |||
| Allegiance | Personal and permanent. Local and temporary. | ||
| The constitution of the State. | |||
| Constitutional law. | |||
| Its nature. | |||
| Its relation to constitutional fact. | |||
| The government of the State. | |||
| Civil power. | |||
| Legislative, judicial, and executive power. | |||
| Sovereign and subordinate power. | |||
| The classification of States: | |||
| States | Externally or Internationally | Independent | Fully Sovereign. |
| Semi-Sovereign. | |||
| Dependent. | |||
| Internally or Constitutionally | Unitary. | ||
| Composite | Imperial. | ||
| Federal. | |||
CHAPTER VI.
THE SOURCES OF LAW.
§ 44. Formal and Material Sources.
The expression source of law (fons juris) has several meanings which it is necessary to distinguish clearly. We must distinguish in the first place between the formal and the material sources of the law. A formal source is that from which a rule of law derives its force and validity. It is that from which the authority of the law proceeds. The material sources, on the other hand, are those from which is derived the matter, not the validity of the law. The material source supplies the substance of the rule to which the formal source gives the force and nature of law.
The formal source of the whole body of the civil law is one and the same, namely, the will and power of the state as manifested in courts of justice. Whatever rules have the sanction and authority of the body politic in the administration of justice have thereby the force of law; and in such force no other rules whatever have any share. The matter of the law may be drawn from all kinds of material sources, but for its legal validity it must look to the tribunals of the state and to them alone. Customary law, for example, has its material source in the usages of those who are subject to it; but it has its formal source in the will of the state, no less than statutory law itself.
§ 45. Legal and Historical Sources.
Though the formal source of the law is one, its material sources are many, and they are divisible into two classes which may be distinguished as legal and historical. The former are those sources which are recognised as such by the law itself. The latter are those sources which are such in fact, but are nevertheless destitute of legal recognition. This is an important distinction which calls for careful consideration. In respect of its material origin a rule of law is often of long descent. The immediate source of it may be the decision of an English court of justice. But that court may have drawn the matter of its decision from the writings of some lawyer, let us say the celebrated Frenchman, Pothier; and Pothier in his turn may have taken it from the compilations of the Emperor Justinian, who may have obtained it from the praetorian edict. In such a case all these things—the decision, the works of Pothier, the corpus juris civilis, and the edictum perpetuum—are the successive material sources of the rule of English law. But there is a difference between them, for the precedent is the legal source of the rule, and the others are merely its historical sources. The precedent is its source not merely in fact, but in law also; the others are its sources in fact, but obtain no legal recognition as such. Our law knows well the nature and effect of precedents, but it knows nothing of Pothier, or of Tribonian, or of the Urban Praetor. The proposition that every principle embodied in a judicial decision has for the future the force of law is not merely a statement of historical fact as to the growth of English law; it is itself a rule of law. But the proposition that much of the law of Rome has become incorporated into the law of England is simply a statement of fact, which has in law no relevance or recognition.