machinery for the regulation of private vengeance. In its larger aspects, the administration of justice will mean what science and philosophy make it mean.

SECTION 2.-SYSTEMS OF LAW

There are two great systems of law in the world to-day; the common law, and the civil law. The common law is that system which developed in England, for the most part, after the Norman. conquest. This system of law is in force quite generally throughout the British Empire and in the United States. The civil law is that system which developed in the main from the Roman law, and prevails generally throughout the world. The codes of continental European states, and of South American countries, are based upon the Roman law. Some portions of the British Empire, Quebec and Scotland, are civil-law countries. In the United States, Louisiana has adopted the civil law. These two great systems of law should not be conceived of as different, in the sense that legal controversies are decided in one way under the common law and a different way under the civil law. The larger aspects of the conception of justice are very much the same everywhere. There are such differences, of course. Some controversies would be decided one way under the common law and another way under the civil law. For that matter, there are differences of decision on the same facts in different civil-law countries, just as there are quite frequently differences in the decisions of particular cases in the various states of the United States. The same court may even decide a case in one way on one occasion, and reach a contrary result in the same kind of case on another occasion. As a general rule, however, there is not this kind of break in the history of a rule of law. The two systems of law, like nationalities, oftentimes, are different, chiefly, in the sense that they have had different histories.

There are a few differences of a rather fundamental character. The Roman law, which prior to the time of Justinian was expressed in the decisions of the courts, in statutes, and in the writings of legal' scholars, during his reign passed into the form of a code, covering all branches of the law. In civil-law countries to-day, the basic principles of the entire field of the law are expressed in the form of legislative enactments. In deciding particular controversies the courts are then called upon to interpret and apply the code. In England and the United States the major portion of the law is not expressed in the form of statutes, but is to be found expressed for the most part in the decisions of the courts. The courts in England and the United States must therefore decide controversies upon some basis other than by interpreting and applying some statutory generalization of the law. It should be remarked that, both in England and in the United States, the importance of statutes in the legal system has been growing very rapidly since the middle

of the nineteenth century. In some states nearly the whole field of the law has been codified, and in all states the tendency to increase the number and variety of governmental functions, and a similar, but independent, tendency to organize and systematize existing law, has caused a notable increase in legislation.

There is a further difference between the civil law and the common law, to be found in the attitude which the courts under the two systems assume toward former decisions involving the same or analogous facts. Courts which are a part of the civil law system are chiefly concerned with the text of the code. They apply the code directly, or, if interpretation is necessary, they interpret the language according to some accepted standard of interpretation, and then apply the interpreted statute to the facts. The civil-law courts do not regard as binding upon them former determinations of the meaning of the code as reached by the same or other courts. Just the contrary is true under the system of the common law. If a court once decides a particular question, that decision is regarded thereafter as a precedent binding upon them. This attitude to prior decisions is called the doctrine of stare decisis. Much of the work of a court applying common-law principles is taken up in the endeavor to ascertain what the same or other courts have decided on the same or analogous set of facts. The decisions of the Supreme Court of a particular state are regarded as binding precedents in that state. Decisions of the Supreme Courts of other states are not deemed binding precedents, but they are often relied upon as a basis of decision. Such decisions from other jurisdictions are of persuasive authority, varying in persuasiveness according to the state where rendered, to the strength of the reasoning employed, and even with the reputation of the individual judge who wrote the opinion. There is some tendency in civil-law countries to regard former decisions to some extent as binding precedents, while in the United States and in England there is some tendency, especially in certain departments of the law, to break away from precedent, when changed economic or social conditions seem to demand a change. Thus the two systems tend toward the same general policy. For the most part, change in the law comes as a result of legislation, and not by judicial decisions, but the process of change by judicial decisions is distinctly traceable.

SECTION 3.-OBJECTS OF LAW

The problems of the law are not all of the same nature. They do not have the same immediate objects. They sustain various relations, one to the other and to the conduct of human affairs. Some problems of the law are primary and of overshadowing importance. Others are secondary, subordinate, or derivative. The broad concept of the administration of justice, as a primary object, breaks up into a number of more detailed, but nevertheless fundamental,

1

conceptions. As formulated by an eminent thinker, Roscoe Pound, these fundamental conceptions arrange themselves into the following jural postulates:

I. In civilized society men must be able to assume that others will commit no intentional aggression upon them.

Corollary of Jural Postulate I: One who intentionally does anything which on its face is injurious to another must repair the resulting damage, unless he can (1) justify his act under some social or public interest; or (2) assert a privilege because of a countervailing individual interest of his own which there is a social or a public interest in securing.

II. In civilized society men must be able to assume that they may control for beneficial purposes what they have discovered and appropriated to their own use, what they have created by their own labor, and what they have acquired under the existing social and economic order.

III. In civilized society men must be able to assume that those with whom they deal in the general intercourse of society will act in good faith, and hence

(a) Will make good reasonable expectations which their promises or other conduct reasonably create;

(b) Will carry out their undertakings according to the expectations which the moral sentiment of the community attaches thereto; (c) Will restore specifically or by equivalent what comes to them by mistake or unanticipated situation whereby they receive what they could not reasonably have expected to receive under the actual circumstances.

IV. In civilized society men must be able to assume that others, when they act affirmatively, will do so with due care with respect to consequences that may reasonably be anticipated.

V. In civilized society men must be able to assume that others, who maintain things likely to get out of hand or to escape and do damage, will restrain them within their proper bounds.

Hence one is liable in tort for

I. Intentional aggression upon the personality or substance of another.

II. Negligent interference with person or property-i. e., failure to come up to the legal standard of due care under the circumstances, while carrying on some affirmative course of conduct, whereby injury is caused to the person or property of another.

III. Unintended non-negligent interference with the person or property of another through failure to restrain or prevent the escape of some dangerous agency which one maintains.

These sweeping generalizations represent the ends to be realized in society. They mark out the bold headlands of the substantive law. The preservation of the institution of private property, the guaranty of individual liberty, the balancing of individual and so

6 An Introduction to American Law, pp. 36-44.

cial interests under the influence of social, economic, and political controversy, and the furtherance of the public welfare generally, are the great ends of the existing legal system.

SECTION 4.-LEGAL RELATIONS

Turning our attention now to the more detailed aspects of the problem, it will appear that the idea of law involves the notion of the existence of legal relations between persons. Prominent among them is that relation where a right is said to reside in one person and a duty in some other person or persons. For example: Where A. and B. have entered into a contract, A. has a right that B. shall perform; B. is under a duty of performing. A. has a right not to be struck by B. B. is under a duty of refraining from striking A. In both cases the consequences are that, if B. violates his duty, A. may successfully sue B. for damages, or he may be entitled to some other appropriate legal remedy. Illustrations might be multiplied, but the point to be noted is that, if a person possesses a legal right, there exists another person or persons who are under correlative legal duties, which, if violated, will enable the person possessing the right to obtain, through legal proceedings, some appropriate remedy against the person who violated his duty. A legal relation of different character exists where a person, A., is privileged to do an act under circumstances where another person, B., or perhaps all other persons, have no rights that A. shall or shall not exercise his privilege. An owner of land may cultivate it, erect buildings upon it, or do many other physical acts with respect to the land. While these acts are often spoken of as rights, they may more accurately be spoken of as privileges. B. might, of course, by physical interference prevent the exercise of the privilege. This act of B., however, would be a violation of his duty not to assault A.

A third legal relation exists where A., by an act of his, may enable B., by an act of his own, to create, alter, or extinguish some legal relation then existing between two or more other persons. A. makes an offer to enter into a contract with B. By accepting, B., by an act of his own, creates a contract between himself and A. B. may be said to possess a power, and A. is under a correlative liability to have his relations changed by B.'s act. An owner of property has power to transfer his interests with respect to the same to other persons. Frequently the term "right" is employed to describe that which is here described as a power.

Finally, a legal relation of different nature exists where,,under a given state of facts, one person, A., is under a disability, and some other person possesses a correlative immunity, as, for example, a person in rightful possession of another's chattels-a bailee-has no power to transfer title to the same to an innocent third party.

The party in possession is under a disability. The owner possesses an immunity.

SECTION 5.-DIVISIONS OF LAW

Having adverted briefly to the fundamental conceptions of the law, we may now proceed to indicate in a somewhat more detailed manner the boundaries of the field of legal study, for the primary purpose of noting what particular portions of this field will engage our attention in this book. It might be stated that we shall be concerned largely with the law of contracts, and of the special types of contracts, agency, negotiable instruments, and sales, and with the law of partnership and corporations, but that the law of torts, criminal law, personal property, real property, equity, trusts, wills, conflict of laws, constitutional law, etc., are not taken up in this book. This statement would be true, but it does not indicate very definitely the subject-matter of the courses bearing these labels. It may aid in visualizing the field of legal study to look upon it through the various legal relations which may exist between persons. What facts give rise to legal relations? What is their content? How may they be employed; how protected, altered, or extinguished?

A person possesses many legal rights merely because of his existence in society. One has a right not to have his physical person interfered with; a right not to be defamed; a right to enter into legal relations with others. Such rights are possessed by each against all other persons. Violations of these personal rights are called torts. Accordingly, assault, assault and battery, false imprisonment, malicious prosecution, libel and slander, harms to one's person resulting from negligent acts, constitute special kinds of torts. This list is not exhaustive. A person possesses rights against all other persons which arise out of the existence of domestic relations. The law protects the relation of husband and wife; of parent and child. Interferences therewith are torts. The same act, therefore, may be a tort to more than one person. A person also possesses rights against all other persons by reason of his ownership or possession of real and personal property. Accordingly trespass to land or personal property, conversion of personal property, the obtaining of property or other thing of value by fraud, constitute torts. The law of torts is, therefore, that branch of the law which protects legal relations which one has with respect to his physical person, his reputation, his domestic relations, his property, and which, to a large extent, protects him in the acquisition of other relations. The purpose of this brief paragraph is merely to call attention to the existence of an immensely broad field of the

7 The above brief reference to legal relations is based on the masterly papers of the late Professor Wesley Newcomb Hohfeld on Fundamental Legal Conceptions as Applied in Judicial Reasoning (1913) 23 Yale Law Journal, 16, and (1917) 26 Yale Law Journal, 710.