(1) Between subject and subject, are regulated by Private law. (2) When between State and subject, by Public law.

Private law, as thus treated, is either "substantive" or "adjective," that is to say, it either defines the rights of individuals, or indicates the procedure by which they are to be enforced.

The rights dealt with by substantive law may be either "normal" or "abnormal," as the persons with whom they are connected are of the ordinary type, or deviate from it.

Both classes of rights are either "antecedent or remedial." A right of the former kind, it will be remembered, is one which exists irrespectively of any wrong having been committed. . . . A right of the latter kind is one which is given by way of compensation when an antecedent" right has been violated. Antecedent rights are either "in rem" or "in personam"; that is to say, they are available either against the whole world or only against a definite individual. Thus the proprietary right of the owner of a house is good against all the world, while the right of a landlord to his rent is good only against his tenant. . . . The correlation of the parts of public law one to another is indeed far from being settled. It never attracted the attention of the Roman lawyers, and has been very variously, and somewhat loosely, treated by the jurists of modern Europe. The subject is, indeed, one which lends itself but reluctantly to systematic exposition, and it is with some hesitation. that we propose to consider it under the heads of -I. Constitutional law; II. Administrative law; III. Criminal law; IV. Criminal procedure; V. the law of the State considered in its quasi-private personality; VI. the procedure relating to the State as so considered.

The first four of these heads contain the topics which are most properly comprised in Public law. It would be possible, though not convenient, to arrange these topics in accordance with the classification adopted in Private law. If the attempt were made, antecedent rights would have to be sought for in Constitutional, in Administrative and also in Criminal law; remedial rights in Criminal and also in Administrative law; adjective law mainly in Criminal procedure; and abnormal law mainly in Constitutional and Criminal law.

149. Nature of administrative law. The nature of administrative law and the distinctions between it and the other forms of law are given by Goodnow as follows:

Adopting the system of legal classification now generally admitted to be the most desirable, viz., according to relations governed, we find that administrative law is that part of the law which governs the relations of

the executive and administrative authorities of the government. It is therefore a part of the public law, but it is only a part. All such rules of law as concern the function of administration, and only such rules of law, belong to administrative law. Further, since the function of administration depends for its discharge upon the existence of administrative authorities, whose totality is called the administration, administrative law is concerned not alone with the relations of the administrative authorities but also with their organization. Administrative law at the same time fixes the offices which shall form part of the administration and determines the relations into which the holders of these offices shall enter.

In so far as it fixes the organization of the administrative authorities, administrative law is the necessary supplement to constitutional law. While constitutional law gives the general plan of governmental organization, administrative law carries out this plan in its minutest details. But administrative law not only supplements constitutional law, in so far as it regulates the administrative organization of the government; it also complements constitutional law, in so far as it determines the rules of law relative to the activity of the administrative authorities. For while constitutional law treats the relations of the government with the individual from the standpoint of the rights of the individual, administrative law treats them from the standpoint of the powers of the government. Constitutional law, it has been said, lays stress upon rights; administrative law emphasizes duties. But while administrative law emphasizes the powers of the government and the duties of the citizen, it is nevertheless to the administrative law that the individual must have recourse when his rights are violated. For just so far as administrative law delimits the sphere of action of the administration, it indicates what are the rights of the individual which the administration must respect; and, in order to prevent the administration from violating them, offers to the individual remedies for the violation of these rights.

Administrative law is therefore that part of the public law which fixes the organization and determines the competence of the administrative authorities, and indicates to the individual remedies for the violation of his rights.

While administrative law has a sufficiently distinctive character to justify its assignment to a separate position in a scheme of legal classification, there are many cases in which it is extremely difficult to distinguish it from other branches of the law, many cases also where practical considerations have such weight as to overbalance any desire for logical exactness. This is especially true of some of the points where the domain of administrative law seems to touch upon that of private law.

We find many rules of law which, if we abide by the definition that has been given of administrative law, viz., as that portion of the law which governs the relations of the administration, must be regarded as falling within its borders, but which at the same time have been enacted mainly with the idea of founding or strengthening purely private rights. . . . On account of their character the usual practice is, notwithstanding the fact that they at the same time govern the relations of the administration, to regard them as a part of the private law. That is, all rules of law whose immediate purpose is the promotion of the rights of individuals are parts of the private law whether they govern at the same time the relations of the administration or not. . . .

The endeavor must also be made to distinguish administrative law from the other branches of public law. The distinction between administrative and constitutional law has already been indicated. While constitutional law defines the general plan of state organization and action, administrative law carries out this plan in its minutest details, supplements, and complements it. . . . The distinction between the two is thus one more of degree than of kind. . . . The distinction between administrative and international law also is quite clear. While administrative law lays down the rules which shall guide the officers of the administration in their action as agents of the government, international law consists of that body of usage which it is supposed that a state will follow in its relations with other states. . .

The usual method of legal classification assigns to the criminal law a place in the public law. If this method is correct it becomes necessary to distinguish the administrative law from the criminal law. Any attempt to make such a distinction, as indeed to distinguish the criminal law from any of the clearly defined branches of the law, will be found, however, to present almost insurmountable difficulties. The conclusion is irresistible that from the scientific point of view the criminal law does not occupy any well-defined position in the legal system separated in kind from the distinct branches of the law. It consists really of a body of penal sanctions which are applied to all the branches of the law.

150. The application of law. Several important questions arise concerning the application of law to specific facts.

So long as law is regarded as a body of abstract principles, its interest is merely speculative. Its practical importance begins when these principles are brought to bear upon actual combinations of circumstances.

Many questions may be raised as to the extent and mode in which this takes place, and, for their solution, rules have been laid down which, like

other legal rules, are susceptible of analysis and classification. They make up that department of Jurisprudence which we propose to call "the Application of law." When a set of facts has to be regulated in accordance with law, two questions of capital importance present themselves. First, what State has jurisdiction to apply the law to the facts? And secondly, what law will it apply? The former of these questions is said to relate to the appropriate " Forum," the latter to the appropriate "Lex." A third question, which, for the purpose of our present inquiry, is of less importance than these two, and may be dismissed in a few words, relates to "Interpretation."

IV. LAW AND ETHICS

151.. Distinctions between law and morality. Wilson points out the line of demarcation between the spheres of law and ethics as follows:

Ethics concerns the whole walk and conversation of the individual; it touches the rectitude of each man's life, the truth of his dealings with his own conscience, the whole substance of character and conduct, righteousness both of act and of mental habit. Law, on the other hand, concerns only man's life in society. It not only confines itself to controlling the outward acts of men; it limits itself to those particular acts of man to man which can be regulated by the public authority, which it has proved practicable to regulate in accordance with uniform rules applicable to all alike and in an equal degree. . . . It does not assume to be the guardian of men's characters, it only stands with a whip for those who give overt proof of bad character in their dealings with their fellow men. Its limitations are thus limitations both of kind and of degree. It addresses itself to the regulation of outward conduct only: that is its limitation of kind; and it regulates outward conduct only so far as workable and uniform rules can be found for its regulation: that is its limitation of degree. Law thus plays the rôle neither of conscience nor of Providence. More than this, it follows standards of policy only, not absolute standards of right and wrong. Many things that are wrong, even within the sphere of social conduct, it does not prohibit; many things not wrong in themselves it does prohibit. It thus creates, as it were, a new class of wrongs, relative to itself alone: mala prohibita, things wrong because forbidden. In keeping the commands of the state regarding things fairly to be called morally indifferent in themselves men are guided by their legal conscience. Society rests upon obedience to the laws: laws determine the rules of social convenience as well as of social right and wrong; and it is as necessary for

the perfecting of social relationships that the rules of convenience be obeyed as it is that obedience be rendered to those which touch more vital matters of conduct. . . .

In all civilized states law has long since abandoned attempts to regulate conscience or opinion; it would find it, too, both fruitless and unwise to essay any regulation of conduct, however reprehensible in itself, which did not issue in definite and tangible acts of injury to others. But it does seek to command the outward conduct of men in their palpable dealings with each other in society. Law is the mirror of active, organic political life. It may be and is instructed by the ethical judgments of the community, but its own province is not distinctively ethical; it may regard religious principle, but it is not a code of religion. Ethics has been called the science of the well-being of man, law the science of his right civil conduct. Ethics concerns the development of character; religion, the development of man's relation with God; law, the development of men's relations to each other in society. Ethics, says Mr. Sidgwick, "is connected with politics so far as the well-being of any individual man is bound up with the well-being of his society."

152. Moral and legal norms. Wundt shows the close connection between law and morality.1

In all these respects the case of law is similar to that of morality itself; the two are here, as elsewhere, directly connected. The only universal moral norms that ethics can reach are such as indicate, from the point of view of existing moral conceptions, the road towards the realization of those ends which lie in the direction of the moral ideal, itself never to be attained. And so no legal principles can do more than furnish, whether directly or by implication, a broad outline of those more external ends which are necessary for the protection of society, and which express the conception of morality. . .

...

From this intimate connection of law with ethics, which, though sometimes frankly explicit, is often unconscious, we may infer that theories about the significance and basis of law are usually direct reflections of the corresponding ethical theories. The older conception of law, which still numbers many adherents among juristic savants, by reason of the conservative character which legal science owes to certain well-known historical conditions, was thoroughly individualistic in its point of view. In this respect it is a faithful mirror of the individualistic ethics. . .

The broader conception of social life and historical relations that began to be current in later times necessarily influenced the conception of law

1 By permission of The Macmillan Company.