566
The Green Bag
coincide with the division Public and
As to the scope of Public law, that
Private Law. Although the form “Rights and Wrongs” is confusing, and was rendered more so by his definition of law, when
is the subjects embraced within
it is kept in mind that his attempt
civil administration; Private law determines
was to arrange laws, the meaning of his
the rights and duties of individuals.‘'
primary division becomes clear.
Why was such a classification origin ally adopted? That at the time of Justinian there was a body of rules which differed in their quality as law from the body of positive law establishing the
He
observes that laws have two great objects, the declaration of rights, and
the establishment of justice between men; the first primary, the other aux
iliary, or, primary and sanctioning, substantive and adjective. But the main idea is, as Dr. Hammond
points out: “In his theory rights had no place, except as‘ convenient ex pressions for the consequence of laws.
It is a system of laws, rules, that he is treating from beginning to end. _ Rights are nowhere defined, or their nature investigated. It seems as if he would have dropped the term altogether, if
he could have done so without a tedious circumlocution.
His use of it in the
titles of the first and second books, and in the division of topics is simply a proof that the term was really indis pensable.
(That of the word ‘wrongs’
in the third and fourth books is not because in his use that word would have correlated with duties as well as with rights.)
We confess that this
seems to us the weak side of Black stone's entire system.”" THE
DIVISION
“PUBLIC
AND
PRIVATE LAW" In the Institutes of Justinian is found the expression :— The study of law is divided into two branches, that of Public and of Private Law.
Public law regards the government of the Roman Empire. Private law the interests of individuals.” "Sandars' Justinian, Introduction, P- l 3’ Institutes, 1-4.
it,
Sandars’ comment on this section as follows is sufiicient for our purpose :— Public law regulates religious worship and
rights and duties of subjects is quite true. Heron, speaking of the develop ment of law, says :— At first only rights arising between subjects are determined and protected by law, whilst the sovereign remains above the law. Under barbaric despotism the sovereign acknow ledges no legal rule binding upon him in his conduct toward his subjects, but in time the relations between the government and the people become subjected to certain positive laws. The body of laws determining the relations between the individuals and their govern ment is generally termed "constitutional law" or “political law." The latter term is pre ferable. The political law of a nation is the whole legal relations existing between the governors and the governed." ‘
That the usages and customs of rulers are in some governments not regarded as positive laws of the same nature as the so-called "Private Laws" is made very plain by Poste in his ex planation. He says:— Having been led to mention Public or Constitutional law, it may aid to clear our
conceptions if we observe that some of its dispositions are necessarily and by the nature of the case deficient in the characters of Positive law. It is rigorously true to say that the powers of subordinate political func tionaries are a status. . . . But when tracing the hierarchy of government, we come to the top of the scale; when we speak of the limitations of the sovereign we have "Sandars' Justinian, p. 169. "Heron on Jurs., p. 70.
