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 Cornell University Library 
 K 230.G22I6 1911 
 
 Introduction to the science of law; syste 
 
 3 1924 017 565 981 
 
 I AW LIi;;rLAEY. 
 
Cornell University 
 Library 
 
 The original of tliis book is in 
 tlie Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924017565981 
 
THE MODERN LEGAL PHILOSOPHY 
 SERIES 
 
 I 
 Introduction to the Science of Law 
 
THE MODERN LEGAL PHILOSOPHY 
 SERIES 
 
 Edited by a Committee of the 
 ASSOCIATION OF AMERICAN LAW SCHOOLS 
 
 I. THE SCIENCE OF LAW. By Karl GarEIS of the Uni- 
 versity of Munich. Translated by ALBERT KOCOUREK 
 of Northwestern University. 
 II. THE WORLD'S LEGAL PHILOSOPHIES. By 
 Fritz Berolzheimer of Berlin. Translated by MRS. 
 Joseph Jastrow of Madison, Wis. 
 
 III. COMPARATIVE LEGAL PHILOSOPHY, applied to 
 Legal Institutions. By LuiGI MiRAGLIA of the Univer- 
 sity of Naples. Translated by JOHN LiSLE of the 
 Philadelphia Bar. 
 
 IV. GENERAL THEORY OF LAW. By N. M. KoRKUNOV 
 of the University of St. Petersburg. Translated by 
 W. G. Hastings of the University of Nebraska. 
 
 V. LAW AS A MEANS TO AN END. By Rudolf von 
 IHERING of the University of Berlin. Translated by ISAAC 
 HUSIK of the University of Pennsylvania. 
 VI. THE POSITIVE PHILOSOPHY OF LAW. By I. Vanni 
 of the University of Bologna. Translated by JOHN LiSLE 
 of the Philadelphia Bar. 
 VII. MODERN^ FRENCH LEGAL PHILOSOPHY. By 
 A. FOUILLEE, J. CHARMONT, L. DUGUIT and R. DemOGUE 
 of the Universities of Paris, Montpellier, Bordeaux and 
 Lille. Translated by JOHN SIMPSON of the New York Bar. 
 VIII. THE THEORY OF JUSTICE. By RUDOLF Stammler 
 of the University of Halle. 
 IX. SELECT ESSAYS IN MODERN LEGAL PHILOSO- 
 PHY. By Various Authors. 
 X. THE FORMAL BASIS OF LAW. By G. Del Vecchio 
 of the University of Bologna. Translated by JOHN LiSLE 
 of the Philadelphia Bar. 
 XI. THE SCIENTIFIC BASIS OF LEGAL JUSTICE. 
 XII. THE PHILOSOPHY OF LAW. By Josef Kohler of the 
 University of Berlin. Translated by Adalbert Albrecht 
 of South Easton, Mass. 
 XIII. PHILOSOPHY IN THE DEVELOPMENT OF LAW. 
 By P. DE TOURTOULON of the University of Lausanne. 
 
Modern Legal Philosophy Series: I 
 
 Introduction to the Science 
 of Law 
 
 SYSTEMATIC SURVEY 
 
 OF THE LAW AND PRINCIPLES OF 
 
 LEGAL STUDY 
 
 BY 
 
 KARL GAREIS 
 
 Professor of Law at Munich 
 
 TRANSLATED FROM THE THIRD, REVISED EDITION 
 OF THE GERMAN BY 
 
 ALBERT KOCOUREK 
 
 Of the Chicago Bar 
 WITH AN INTRODUCTION BY 
 
 ROSCOE POUND 
 
 Story Professor of Law in Harvard University 
 
 BOSTON 
 THE BOSTON BOOK COMPANY 
 1911 
 
Copyright, 1911 
 BY THE BOSTON BOOK COMPANY 
 
 The Riverdale Press ^ Brookline^ Mass,^\U.S.A. 
 
CORNELL UiNlVEUSrn 
 JUL 24 1912 
 
 GENERAL INTRoIeAJ^iM^M^^- 
 THE SERIES 
 
 By the Editorial Committee 
 
 "Until either philosophers become kings," said Soc- 
 rates, "or kings philosophers, States will never succeed 
 in remedying their shortcomings." And if he was 
 loath to give forth this view, because, as he admitted, 
 it might "sink him beneath the waters of laughter and 
 ridicule," so to-day among us it would doubtless resound 
 in folly if we sought to apply it again in our own field 
 of State life, and to assert that philosophers must be- 
 come lawyers or lawyers philosophers, if our law is 
 ever to be advanced into its perfect working. 
 
 And yet there is hope, as there is need, among us to-day, 
 of some such transformation. Of course, history shows 
 that there always have been cycles of legal progress, 
 and that they have often been heralded and guided by 
 philosophies. But particularly there is hope that our 
 own people may be the generation now about to exem- 
 plify this. 
 
 There are several reasons for thinking our people 
 apt thereto. But, without delaying over the grounds 
 for such speculations, let us recall that as shrewd and 
 good-natured an observer as DeTocqueville saw this 
 in us. He admits that "in most of the operations of 
 the mind, each American appeals to the individual exer- 
 cise of his own understanding alone; therefore in no 
 country in the civilized world is less attention paid to 
 philosophy than in the United States." But, he adds, 
 "the Americans are much more addicted to the use of 
 general ideas than the English, and entertain a much 
 
GENERAL INTRODUCTION 
 
 greater relish for them." And since philosophy is, 
 after all, only the science of general ideas — analyzing, 
 restating, and reconstructing concrete experience — 
 we may well trust that (if ever we do go at it with a will) 
 we shall discover in ourselves a taste and high capacity 
 for it, and shall direct our powers as fruitfully upon law 
 as we have done upon other fields. 
 
 Hitherto, to be sure, our own outlook on juristic 
 learning has been insular. The value of the study of 
 comparative law has only in recent years come to be 
 recognized by us. Our juristic methods are still primi- 
 tive, in that we seek to know only by our own experi- 
 ence, and pay no heed to the experience of others. 
 Our historic bond with English law alone, and our con- 
 sequent lack of recognition of the universal character 
 of law as a generic institution, have prevented any wide 
 contact with foreign literatures. While heedless of 
 external help in the practical matter of legislation, we 
 have been oblivious to the abstract nature of law. 
 Philosophy of law has been to us almost a meaningless 
 and alien phrase. "All philosophers are reducible in 
 the end to two classes only: utilitarians and f utilitari- 
 ans," is the cynical epigram of a great wit of modern 
 fiction.^ And no doubt the philistines of our profession 
 would echo this sarcasm. 
 
 And yet no country and no age have ever been free 
 (whether conscious of the fact or not) from some drift 
 of philosophic thought. "In each epoch of time," says 
 M. Leroy, in a brilliant book of recent years, "there is 
 current a certain type of philosophic doctrine — a phil- 
 osophy deep-seated in each one of us, and observable 
 clearly and consciously in the utterances of the day — 
 alike in novels, newspapers, and speeches, and equally 
 
 ' M. Dumaresq, in Mr. Paterson's "The Old Dance Master." 
 
GENERAL INTRODUCTION 
 
 in town and country, workshop and counting-house." 
 Without some fundamental basis of action, or theory 
 of ends, all legislation and judicial interpretation are 
 reduced to an anarchy of uncertainty. It is like mathe- 
 matics without fundamental definitions and axioms. 
 Amidst such conditions, no legal demonstration can be 
 fixed, even for a moment. Social institutions, instead 
 of being governed by the guidance of an intelligent free 
 will, are thrown back to the blind determinism of the 
 forces manifested in the natural sciences. Even the 
 phenomenon of experimental legislation, which is pecu- 
 liar to Anglo- American countries, cannot successfully 
 ignore the necessity of having social ends. 
 
 The time is ripe for action in this field. To quote the 
 statement of reasons given in the memorial presented at 
 the annual meeting of the Association of American Law 
 Schools in August, 1910: — 
 
 The need of the series now proposed is so obvious as hardly to 
 need advocacy. We are on the threshold of a long period of construc- 
 tive readjustment and restatement of our law in almost every depart- 
 ment. We come to the task, as a profession, almost wholly untrained 
 in the technic of legal analysis and legal science in general. Neither 
 we, nor any community, could expect anything but crude results 
 without thorough preparation. Many teachers, and scores of 
 students and practitioners, must first have become thoroughly 
 familiar with the world's methods of juristic thought. As a first 
 preparation for the coming years of that kind of activity, it is the 
 part of wisdom first to familiarize ourselves with what has been 
 done by the great modern thinkers abroad — to catch up with the 
 general state of learning on the subject. After a season of this, we 
 shall breed a family of well-equipped and original thinkers of our 
 own. Our own law must, of course, be worked out ultimately by 
 our own thinkers; but they must first be equipped with the state 
 of learning in the world to date. 
 
 How far from "unpractical" this field of thought and research 
 really is has been illustrated very recently in the Federal Supreme 
 Court, where the opposing opinions in a great case {Kuhn v. Fair- 
 
GENERAL INTRODUCTION 
 
 mont Coal Co.) turned upon the respective conceptions of "law"' 
 in the abstract, and where Professor Gray's recent work on "The 
 Nature and Sources of the Law" was quoted, and supplied direct 
 material for judicial decision. 
 
 Acting upon this memorial, the following resolution 
 was passed at that meeting: ^ — 
 
 That a committee of five be appointed by the president, to arrange 
 for the translation and publication of a series of continental master- 
 works on jurisprudence and philosophy of law. 
 
 The committee spent a year in collecting the material. 
 Advice was sought from a score of masters in the leading 
 universities of France, Germany, Italy, Spain, and else- 
 where. The present series is the result of these labors. 
 
 In the selection of this series, the committee's pur- 
 pose has been, not so much to cover the whole field of 
 modern philosophy of law, as to exhibit faithfully and 
 fairly all the modern viewpoints of any present impor- 
 tance. The older foundation-works of two generations 
 ago are, with some exceptions, already accessible in 
 English translation. But they have been long sup- 
 planted by the products of newer schools of thought 
 which are offered in this series in their latest and most 
 representative form. It is believed that the complete 
 series will represent in compact form a collection of 
 materials whose equal cannot be found at this time in 
 any single foreign literature. 
 
 The committee has not sought to offer the final 
 solution of any philosophical or juristic problems; nor 
 to follow any preference for any particular theory or 
 school of thought. Its chief purpose has been to present 
 to English readers the most representative views of the 
 most modern writers in jurisprudence and philosophy 
 of law. The series shows a wide geographical represen- 
 tation; but the selection has not been centered on the 
 
GENERAL INTRODUCTION 
 
 notion of giving equal recognition to all countries. 
 Primarily, the desire has been to represent the various 
 schools of thought; and, consistently with this, then to 
 represent the different chief countries. This aim, how- 
 ever, has involved little difficulty; for Continental 
 thought has lines of cleavage which make it easy to rep- 
 resent the leading schools and the leading nations at 
 the same time. Germany, for example, is represented 
 in modern thought by a preponderant metaphysical 
 influence. Italy is primarily positivist, with subordinate 
 German and English influences. France in its modern 
 standpoint is largely sociological, while making an effort 
 to assimilate English ideas and customs in its theories 
 of legislation and the administration of justice. Spain, 
 Austria, Switzerland, Hungary, are represented in the 
 Introductions and the shorter essays; but no country 
 other than Germany, Italy, and France is typical of any 
 important theory requiring additions to the scope of 
 the series. 
 
 To offer here an historical introduction, surveying the 
 various schools of thought and the progress from past 
 to present, was regarded by the committee as unneces- 
 sary. The volumes of Dr. Berolzheimer and Professor 
 Miraglia amply serve this purpose ; and the introductory 
 chapter of the latter volume provides a short summary 
 of the history of general philosophy, rapidly placing 
 the reader in touch with the various schools and their 
 standpoints. The series has been so arranged (in the 
 numbered list fronting the title page) as to indicate that 
 order of perusal which will be most suitable for those who 
 desire to master the field progressively and fruitfully. 
 
 The committee takes great pleasure in acknowledg- 
 ing the important part rendered in the consummation 
 of this project, by the publisher, the authors, and the 
 translators. Without them this series manifestly would 
 have been impossible. 
 
GENERAL INTRODUCTION 
 
 To the publisher we are grateful for the hearty spon- 
 sorship of a kind of literature which is so important to 
 the advancement of American legal science. And here 
 the Committee desires also to express its indebtedness 
 to Elbert H. Gary, Esq., of New York City, for his 
 ample provision of materials for legal science in the 
 Gary Library of Continental Law (in Northwestern 
 University). In the researches of preparation for this 
 Series, those materials were found indispensable. 
 
 The authors (or their representatives) have cordially 
 granted the right of English translation, and have shown 
 a friendly interest in promoting our aims. The com- 
 mittee would be assuming too much to thank these 
 learned writers on its own behalf, since the debt is one 
 that we all owe. 
 
 The severe labor of this undertaking fell upon the 
 translators. It required not only a none too common 
 linguistic skill, but also a wide range of varied learning 
 in fields little travelled. Whatever success may attend 
 and whatever good may follow will in a peculiar 
 way be attributable to the scholarly labors of the several 
 translators. 
 
 The committee finds special satisfaction in having 
 been able to assemble in a common purpose such an array 
 of talent and learning; and it will feel that its own small 
 contribution to this unified effort has been amply recom- 
 pensed if this series will measurably help to improve 
 and to refine our institutions for the administration of 
 justice. 
 
EDITORIAL COMMITTEE OF THE ASSOCIATION 
 OF AMERICAN LAW SCHOOLS 
 
 Ernst Freund, Professor of Law, University of Chicago. 
 Charles H. Huberich, Professor of Law, Stanford University. 
 Albert Kocourek, Lecturer on Jurisprudence, Northwestern 
 
 University. 
 Ernest G. Lorenzen, Professor of Law, University of Wisconsin. 
 ROSCOE Pound, Professor of Law, Harvard University. 
 John H. Wigmore, Chairman, Professor of Law, Northwestern 
 
 University. 
 
 LIST OF TRANSLATORS 
 
 Adalbert Albrecht, South Easton, Mass. (Associate Editor 
 of the Journal of Criminal Law and Criminology). 
 
 Isaac Husik, Philadelphia, Pa. (Lecturer on Philosophy in the 
 University of Pennsylvania). 
 
 Mrs. Joseph Jastrow, Madison, Wis. 
 
 Albert Kocourek, Chicago, 111. (of the Editorial Committee). 
 
 John Lisle, Philadelphia, Pa. (of the Philadelphia Bar). 
 
 John Simpson, New York, N. Y. (of the New York Bar). 
 
 And others to be appointed. 
 
INTRODUCTION 
 
 BY ROSCOE POUND 
 
 Speaking broadly, we may arrange jurists in three 
 groups or schools : philosophical, historical and analytical. 
 To the philosophical jurist, law is the expression of an 
 idea. It is an expression of right and justice, found 
 rather than made by legislator or judge or text-writer. 
 Or, as the Neo-Hegelians put it, it is the expression of the 
 culture of a people in the form of principles for the gov- 
 ernment of men's external relations to one another. To 
 the historical jurist also law is found not made; but in 
 his view something different is found. To him a prin- 
 ciple of human action has been found by human experi- 
 ence and is developed as a rule of law. To the analytical 
 jurist, on the other hand, law, at least in its matured 
 form and in developed communities, is the product of 
 conscious and determinate human will. The lines be- 
 tween these schools, however, are by no means as sharp 
 as formerly. In England, the analytical and historical 
 schools have been tending to a common ground. In 
 Germany the philosophical and historical schools have 
 been approaching each other. This approach of schools 
 formerly at sword's points has taken place through the 
 development of comparative jurisprudence by both 
 schools, through the abandonment by the philosophical 
 school of the quest for a metaphysical science of abso- 
 lute legal principles, and substitution of an endeavor. 
 
iv INTRODUCTION 
 
 as Berolzheimer puts it, "to deduce and fix the element 
 of the just in and out of the positive law," and through 
 the giving over by the historical school of the view of 
 their founder that the Roman lawyers of the third cen- 
 tury had such a monopoly of legal genius that modem 
 peoples could do no more than develop Roman prin- 
 ciples by experience of life and of litigation. Along with 
 these movements, the rise and progress of that view of 
 the political and social sciences which bears the awkward 
 name of sociology has had an influence upon juristic 
 thought the results of which, for the most part, are yet 
 to come. It is hardly too much to say, using the term 
 as we use it, that today there are in Germany sociological 
 jurists of philosophical, historical or analytical tenden- 
 cies, rather than jurists exclusively philosophical, his- 
 torical or analytical. 
 
 In England and America we have as yet no sociological 
 jurisprudence and no modem philosophical jurispru- 
 dence. The ground is divided between the analytical 
 and historical schools, the balance inclining toward the 
 former in England, where the supremacy of Parliament 
 gives manifest verity to the analytical view of law in the 
 every-day experience of lawyers, the latter in America, 
 where the judicial power with respect to legislation 
 makes such a view difficult, if not impossible. Eng- 
 land has no philosophical juristic literature at all, unless 
 it be the utilitarian natural-law of Austin's lectures 
 II, III and IV, and the modified Hegelianism of T. H. 
 Green's "Principles of Political Obligation." In America 
 we have not a little eighteenth-century natural law in 
 elementary books founded upon Blackstone. Other- 
 wise, there is only the naifve natural law of the prac- 
 titioner, who thinks of an ideal development of the 
 principles of the common law as the legal order of the 
 universe, or the natural law of the historical jurist, who 
 
INTRODUCTION v 
 
 has been convicted more than once of what Bergbohm 
 calls "anonymous natural law"; i.e., a notion — sub- 
 conscious it may be — ^that the principles he discovers 
 through historical research have necessary and absolute 
 validity so that the law may develop, but cannot reject 
 or dispense with them. Anglo-Americans gave one 
 more proof of the instinctive sound sense which is a 
 race characteristic, when they refused to have anything 
 to do with the metaphysical jurisprudence of the nine- 
 teenth century which professed to set up a science of 
 law by deduction from a few first principles. Perhaps 
 they show an obstinate conservatism which is no less 
 characteristic of their legal thought when they continue 
 to identify all philosophical method in legal science 
 with the universally discredited Naturrecht. Certainly 
 there is good warrant for believing that lack of philo- 
 sophical method in our legal science is more than merely 
 coincident with our want of a sociological jurisprudence. 
 Without a philosophy of law, the historical and analytical 
 methods will not lead thereto. 
 
 The ground sought to be covered in English by the 
 text-book on jurisprudence, which is primarily analytical, 
 but usually endeavors to make concessions to the his- 
 torical school, is occupied in Germany by three types 
 of book: treatises on the philosophy of law, of which a 
 notable one by the greatest living exponent of the 
 subject appeared last year (Kohler, Lehrbuch der Rechts- 
 philosophie, 1909), juristic surveys (Enzykhpadie), and 
 text-books of the general theory of law {allgemeine 
 Rechtslehre) . The first take up the philosophical founda- 
 tions of the legal order, legal systems, institutions and 
 doctrines, and the philosophical and ethical bases of 
 particular branches of the law. The second aim rather 
 at a systematic review of the law as a whole, employing 
 all three of the methods of jurisprudence, but chiefly 
 
vi INTRODUCTION 
 
 the philosophical and the historical. The third treat 
 of the conception of law and the leading general concep- 
 tions of a legal system chiefly from the analytical stand- 
 point, but not neglecting the other two. Application of 
 the analytical method to the details of the legal system 
 is left to the general part of treatises on the Pandects 
 or treatises upon the Civil Law. An excellent example 
 of the third type of book is Sternberg's Allgemeine 
 Rechtslehre (1904) . One of the best of the class, although 
 not German, has been made available in English through 
 Judge Hastings's translation of Korkunov's "General 
 Theory of Law." Some of the better examples of the 
 first are likely to be put into English soon through the 
 initiative of the Association of American Law Schools. 
 The present volume is representative of the second type. 
 Books of both the first and second of the types char- 
 acterized above are not unlikely to be received with 
 indifference, if not with suspicion, in America because of 
 the extravagant claims formerly made for the methods 
 respectively employed and the failure of misdirected 
 efforts to make them do the whole work of legal science. 
 The character of works of these types has changed 
 entirely in the past twenty-five years, and the grounds 
 of our formerly well founded indifference no longer exist. 
 Today, American scholars cannot afford to neglect any 
 form of Continental juristic writing. For one thing, we 
 must give up the purely political interpretation of law 
 and of legal history which has governed our treatises 
 on jurisprudence. The political interpretation of his- 
 tory, which has dominated our political thought so 
 largely, and until recently was in high favor in England 
 and America, — an interpretation which found the clew to 
 progress in a gradual but definite movement from abso- 
 lutism to freedom in pohtical institutions, — ^has its 
 counterpart in our science of law. It is assumed that a 
 
INTRODUCTION vii 
 
 Movement from subjection to freedom, from status to 
 contract, is the key to legal as well as to social develop- 
 ment. Accordingly, it is conceived that the end of all 
 law is Uberty, and jurisprudence is assumed to be the 
 science of civil liberty. The consequences of such views 
 put in practice in the decisions upon liberty of contract, 
 and judicial pronouncements upon modem social legis- 
 lation, make it clear that juristic theories are not mere 
 academic toys, but may be forces of grave moment of 
 which legislator and social reformer must needs take 
 account. At most, the political interpretation can be 
 but part of the truth. The idealistic, the biological or 
 ethnological, and the economic interpretations are not 
 to be ignored. 
 
 It may be admitted that a systematic survey of the 
 materials of jurisprudence might easily fail because of 
 over-abstractness. But recent German texts err, if at 
 all, in the opposite direction. At every point the text 
 is fastened firmly to the German civil code. Thus the 
 work is made concrete and is thoroughly in touch with 
 the actual law. For us, to whom many of the concep- 
 tions of German law are thoroughly foreign, there is 
 some disadvantage in this mode of treatment. The 
 reader must make applications to our own legal system 
 for himself. On the other hand, a view of the philo- 
 sophical, historical and economic foundations of the 
 greatest system of substantive law in the modem world 
 is a compensation. 
 
 The present work is by no means a Hegelian "encyclo- 
 paedia." Yet the connection of books of the type to 
 which it belongs with the idea of "encyclopaedia" is not 
 at all unhappy. From his conception of the universe 
 as a development of absolute thought, Hegel reasoned 
 that each science was to be studied in connection with 
 science as a whole, since it was but a phase of the develop- 
 
viii INTRODUCTION 
 
 ment of unified science. An age of ultra-specialization 
 made this impossible, even if Hegel's system had sur- 
 vived. But, apart from the philosophical foundation on 
 which it rested originally, there is more than a fragment 
 of truth, or, what is perhaps the same thing, there is a 
 large fragment of utility in the notion. A reaction from 
 excessive specialization is at hand. The future will 
 demand not merely that legal science be unified, but 
 that it be unified with the social sciences of which it is 
 by no means the least. A timely assertion of the unity 
 of the social sciences is the theme of Professor Small's 
 recent book, "The Meaning of Social Science." One 
 sentence is worth quoting in the present connection: — 
 
 "Sociologists declare that the experience bounded by 
 the reactions between men and physical nature on the 
 one hand, and the reactions of men with one another 
 on the other, is an interconnected experience, and that we 
 shall have a science of it only in the proportion of our 
 insight into the way and degree in which each item of 
 this experience is affected by every other item of it." 
 
 When at the instance and chiefly through the exer- 
 tions of Professor Wigmore the Association of American 
 Law Schools put forth the collection of Select Essays in 
 Anglo-American Legal History, many asked doubtingly. 
 Who is going to read them ? The event has shown that 
 judges and practitioners, as well as those who concern 
 themselves immediately with the scholarly aspects of 
 legal study, were prepared to do so. Too long they had 
 been constrained to draw upon the repositories of tradi- 
 tional misinformation, which alone were readily avail- 
 able. One has but to look about him in current legal 
 literature, and to observ^e how much use (or misuse) has 
 been made and is making of Hastie's translation of 
 extracts from a bygone German legal-philosophical 
 literature, to perceive a similar need in legal science and 
 
INTRODUCTION ix 
 
 philosophy of law. On the analytical side, indeed, we 
 are well equipped in English. On the philosophical and 
 historical sides and for the unification with the other 
 social sciences which the sociological movement is 
 demanding, as in all departments of learning, we have 
 to look to the "inevitable German." The Anglo- 
 American is averse to reading in any tongue but his 
 own. As he refuses to go to the Germans, any one who 
 brings the twentieth-century Germans to him does juris- 
 prudence a service. 
 
 Perhaps it should be said, in conclusion, that the 
 present work, written for study in connection with 
 lectures, and the copious apparatus furnished in the 
 notes, is a book to think through, not merely to read 
 through. 
 
TRANSLATOR'S PREFACE 
 
 The study of law as a social instrument and as an 
 organism of definite related parts cannot much longer 
 be profitably deferred in this country. The practical 
 reasons upon which this statement may be predicated 
 are amply stated in a symposium of views of eminent 
 lawyers, judges and educators, recently published in 
 connection with a proposal for private codification of 
 our scattered and unwieldy legal system.' 
 
 Within the last forty years an important change has 
 taken place in our methods of legal education. The 
 school, with its systematic courses of instruction, has 
 superseded the lawyer's office for the purposes of legal 
 training. The theatre of action has shifted, but the 
 repertoire remains substantially the same. This was 
 to be expected. Evolutionary degrees are not usually 
 attained per saltum, and an adherence to practical 
 methods has justified the value of academic legal educa- 
 tion. 
 
 It is generally characteristic of the specialist to claim 
 too much for his specialty. It has been difficult for the 
 learned investigator of Roman law to understand how 
 any juridical progress could be made of lasting value 
 without a study of the Mediterannean archetype. The 
 marvelous phenomenon of Roman legal genius which 
 has outlived the dissolving influence of two thousand 
 years in which the material appanages of imperial 
 splendor have returned to elemental chaos, carries its 
 own warrant for any over-emphasized enthusiasm for 
 this elegant and symmetrical system, and grants its own 
 
 ' Green Bag, Feb., 1910. 
 
xii PREFACE 
 
 indulgence for any over-balanced claim of immediate 
 utility.' 
 
 This juristic specialist, like the civilian, has been 
 inclined to magnify the importance of his related depart- 
 ment, and he has been unable to understand that the 
 administration of justice may proceed in an orderly and 
 useful way without conscious recognition of the internal 
 organization of the law which makes justice orderly and 
 useful. 
 
 The law school constantly has had to defend itself 
 against a deep-seated and wide-spread belief that the 
 training which it affords lacks the vital element of value 
 in practical application. Had the law school from the 
 start placed a large emphasis on Roman law, on mediaeval 
 legal history, comparative law, and similar departments 
 of legal science, this feeling of tolerant criticism might 
 have become intensified into an outspoken hostility; 
 and probably this institution would not have attained 
 in one generation an official and predominant position in 
 legal education. 
 
 The specialists in foundation studies have simply 
 made the mistake of ignoring surrounding circum- 
 stances; but conditions are now rapidly shaping them- 
 selves when an intimate acquaintance with their labors 
 will be regarded not merely as an elegant addition to a 
 professional training, but as indispensable knowledge. 
 This knowledge will be especially necessary in dealing 
 in a permanent way with the stupendous accumulation 
 of judicial detritus which threatens our entire legal 
 system with a menace not to be underestimated. This 
 
 ^ Mr. Allen Upward (The New Word, 1910) says "the whole theory of our 
 education still is that the young Englishman should make-believe to be an 
 ancient Roman. The king who still writes himself on his coins Britannoruni 
 Rex is doing homage on his crown to Pope and Caesar." If Mr. Upward could 
 have understood to what extent the form of the law is indebted to the pro- 
 found juristic labors of the Romans his attack on the tyranny of the past 
 might have been softened. 
 
PREFACE xiii 
 
 menace, however, is only superficial. The malady will 
 generate its own remedy. The real danger lies in the 
 possibility of an undigested efEort' to correct known 
 evils by methods which may have the effect of render- 
 ing intolerable conditions that can still with increasing 
 difficulty be endured.^ 
 
 The many years of effort devoted by the Germans in 
 the formulation of a civil code should point its own 
 truth. ^ This truth will stand out in greater relief when 
 it is remembered that the labor of making a code in 
 Germany had behind it a background of Roman law 
 which itself furnished the scientific groundwork neces- 
 sary for this great undertaking. * In this country neither 
 Roman law nor its complement, Juristic Survey, has 
 received more than the slightest attention. The law 
 schools, which must be looked to for initiative in these 
 matters, have so far failed to recognize the importance 
 of these studies in their relation to our system of law; 
 
 ^ Professor Pound (Illinois Law Rev. Vol. IV, p. 388, et seq.) points out the 
 dangers of reforms too hastily accomplished in connection with the law of 
 pnscedure; which subject has engaged professional attention to the exclusion 
 of the difficulties presented by the form of our law. 
 
 Professor Wigmore has announced (Green Bag, July, 1910.) his opposition 
 to the programme for codification referred to in note 1 (p. xi.) supra, on the 
 ground, among other reasons stated, that this country has not yet developed 
 the special learning adequate to such an undertaking. 
 
 ^ Legal conditions in Germany prior to the adoption of the Civil Code were 
 hardly less onerous than the situation presented by our overwhelming case- 
 law and our diversity of jurisdictions. The German Empire was divided up 
 into six different juridical divisions governed by laws written in German, 
 French, Latin, and even Greek. Each division also had its own local law and 
 local custom. 
 
 Professor Henry Schofield has shown how an opportunity for a uniformity 
 of decision as between state and federal, courts has been neglected by our 
 federal Supreme Court (Illinois Law Rev. Vol. IV, No. 8, p. 533, March, 1910). 
 
 ^ The preparation of the German Civil Code commenced in 1874, and after 
 practically continuous work on the part of learned commissions was enacted 
 as law in 1896, and became effective Jan. 1, 1900. 
 
 * Roman law received a practical position in Germany in 1495. See 
 Brunner, Geschichte undQuellen des Deutschen Rechts in Holtz. Em., 4th ed., 
 p. 267. 
 
 The form of the German Civil Code is based on the arrangement of the 
 PandektenlekrbUcher or treatises on modem Roman La w. 
 
xiv PREFACE 
 
 and the available literature in our language has not 
 furthered to any appreciable extent a consciousness of 
 this importance. 
 
 To say nothing of what may reasonably be expected 
 of private codification, under any auspices, what success 
 can be hoped for in any attempt (if such an attempt 
 should unfortunately be made) to erect a ponderous 
 legal structure upon a juristic foundation about which 
 nothing is known, and what symmetry of form can be 
 expected in a framed-to-order system of law where 
 juristic architecture has never been the subject of scien- 
 tific investigation? Before any legal harvest can be 
 reaped juristic ground must be broken.' 
 
 It is the purpose of this translation to make available 
 one more important contribution to legal science from a 
 rich storehouse too little drawn upon.^ The Juristic 
 Survey of Dr. Gareis is one of the most serviceable, and 
 one of the best known on the European continent, of this 
 class of works; and this is the first complete translation 
 that has up to this time been made of such a work. 
 There have been translations of metaphysical material, 
 of Naturrecht treatises, of institutes of Roman law, of 
 Germanized Roman law, and theory of law, but nothing 
 heretofore has been presented corresponding with works 
 
 ^ Our neglect of the study of law in its abstract, formal and philosophic 
 aspect can be but little more reproached than the indifference of the French 
 to this subject. See Boistel, Cours de Philosopkie du Droit (preface), Paris, 
 1899; Vareilles-Sommiferes, Les Principes Fondatnentaux du Droit (preface), 
 Paris, 1889; Lioy, Philosopkie du Droit (preface of MM. Durand and Terrel), 
 1887 (this work has also been translated into English) ; Courcelle-Seneuil 
 Preparation a V^tude du droit (preface), Paris, 1888; and B^chaux, he Droit 
 et les Fails Economiques (intro.). Paris, 1889. The French have recently 
 placed one excellent work to their credit — Tourtoulon, Les Principes philoso- 
 phiques de V Histoire du Droit, Tome Premier, Paris, 1908. 
 
 ^ Mr. Shelden Amos (Systematic View of the Science of Jurisprudence) says, 
 "the prospects of the science of jurisprudence, especially in England, will 
 depend largely upon a greater familiarity than has hitherto been encouraged 
 in legal education with the vast and invaluable juridical literature of Ger- 
 many." 
 
PREFACE XV 
 
 in our language dealing with a general survey of law in 
 its formal aspect.' 
 
 Every doubt, hope, reservation, condition, allowance 
 and explanation relied upon by translators and common 
 to translations of this kind, might well be adopted here. 
 No effort has been made (and it is hoped that this may 
 be found to be the principal defect of this labor) to attain 
 a mere rhetorical elegance. The obvious, peril of saying 
 more or less than the author intended has thus been 
 avoided (or at least attempted) at the possible expense 
 of literary refinement. The terminology created by Dr. 
 Schuster {The Principles of German Civil Law) and 
 followed by Dr. Chung Hui Wang (German Civil Code) 
 has been adopted in all possible cases. Free use has 
 been made of numerous other sources of information 
 unnecessary of enumeration. The translator has had 
 the exceptional advantage of being able to draw freely 
 on the monumental learning of Dr. John H. Wigmore, 
 Dean of Northwestern University School of Law, and 
 Dr. Roscoe Pound, Professor of Law, Harvard University 
 School of Law, and he acknowledges his great indebted- 
 ness to them for many profitable suggestions and much 
 valuable enlightenment. Whatever errors may appear 
 will be attributed and attributable solely to the trans- 
 lator. Thanks are tendered to Professor Wesley N. 
 Hohfeld of Leland Stariford University for his co-opera- 
 tion and critical observations, and to Dr. Amos S. 
 Hershey of Indiana University for the privilege of con- 
 sulting him in one or two matters of difficulty. Finally, 
 acknowledgment for invaluable assistance in coping with 
 the mechanical difficulties involved, is due to Miss B. A. 
 Davey. 
 
 ' See the literature noted in Mr. W. Hastie's translation of Kant's Philoso- 
 phy of Law; also the literature in Mr. Hastie's Outlines of the Science of 
 Jurisprudence (T. & T. Clark, Edinburgh) . A valuable list of juristic litera- 
 ture will also be found in Professor Salmond's Jurisprudence (2d ed., 1907), 
 appendix V, p. 495. 
 
AUTHOR'S PREFACE TO FIRST EDITION 
 
 Nearly every academic teacher who applies himself 
 , to Juristic Survey' approaches it in a different manner 
 according to his experience. Predisposition to this or 
 that special study, a view of the necessity of exalting 
 one study over others, or the unconsciously operating 
 influences of the specialties of teachers, have led to 
 differences of form, and the greatest diversity in its 
 limits, entirely regardless of practical considerations. 
 Occasion to deplore and condemn these variations of 
 Juristic Survey arises from the fact that the materials 
 cover a wide range, admitting of extensive or restrictive 
 treatment interesting from every point of attack. 
 
 The object to be attained by lectures on, or the text- 
 book of Juristic Survey, can be attained equally as well, 
 whether one department of study is placed in the fore- 
 ground more, or another less; or whether the treatment 
 carries with it in the shading of the whole more, or less, 
 of its local color. 
 
 ^ [The title of this work in the German is, Enzyklopddie und Methodologie 
 der Rechtswissenschaft {Einleitung in die Rechtswissenschaft). It has, how- 
 ever, been thought desirable to employ the title adopted as less likely than 
 any other to be misleading to English readers. Although authority exists 
 for use of the expression, "Juristic Encyclopedia," there is an obvious objec- 
 tion to the use of the term "encyclopaedia" in this connection. The trans- 
 lator has ventured, instead, in the text of this translation to employ the 
 compendious expression, "Juristic Survey," as one free at least from any 
 accidental and erroneous connotation of bulk. In this substitution of terms 
 an escape is also afforded from an implication of mere alphabetic arrange- 
 ment characteristic of the encyclopaedic works generally known to English 
 readers. (See sec. 4, note 2.) 
 
 Prof. W. G. Hastings in his translation of Korkunov, General Theory of Law 
 (The Boston Book Co., 1909), designates this study "Encyclopedia of Law." 
 In this connection, and with respect particularly to the position of this 
 study, see Korkunov, op. cit., sec. 2; cf. Hastie, Outlines of Jurisprudence 
 (Edinburgh, 1887), Part V, p. 231, et seq. (Friedlander) .] 
 
xviii PREFACE 
 
 I might make the preliminary observation and 
 request, not to reproach this work with bias, and not to 
 require of it that it contain exactly everything that this 
 or that specialist might prefer to find in a Juristic Survey. 
 
 It has been my principal endeavor to develop the 
 body of the law logically from the fundamental notion 
 of a standard of protected interests ; and to demonstrate 
 positively the applicability of the same basic principle 
 in the construction and arrangement of all divisions of 
 this science. The other objects I have sought to attain 
 are indicated in the first paragraphs of the next. 
 
 In the Methodology, I ventured to incorporate 
 thoughts long entertained regarding our system of 
 academic instruction, as well as to give expression to 
 views regarding the future form of legal study. 
 
 Where, as here, so much depends on an economy of 
 the whole, and on proportion in the use of historical, 
 philosophical and dogmatic material, including suitable 
 references, and inasmuch as the subject will not submit 
 of too great abstraction of form, the writer necessarily 
 must indulge great confidence in the forbearance and 
 liberal treatment of the reader, to whom this book is 
 offered, with the request for his considerate judgment. 
 
 Geissen, Spring, 1887. 
 
AUTHOR'S PREFACE TO SECOND EDITION 
 
 The foreword to the first edition pointed out that I 
 desired to give expression to various thoughts on aca- 
 demic teaching which I had long entertained. It is a 
 matter of satisfaction to me that, at least in consider- 
 able part, these notions have prevailed and become a 
 reality. Academic instruction is begun with a syste- 
 matic, preparatory course, — an introduction to the 
 science of law (Juristic Survey). This fact has made 
 necessary changes in the Methodology, — ^the revised 
 portion of this book. It has also given occasion to 
 re-examine the details of the first part of the book, while 
 maintaining its systematic form, and to bring it up to 
 date with new material. 
 
 This new material is derived principally from the 
 new imperial German law and especially from the Ger- 
 man Civil Code. I have attempted to employ the refer- 
 ences to this great master-work of German legislation in 
 such manner that, to a certain extent, in the building 
 up of my system, the evolved ideas leading out first from 
 general, philosophical, or socio-political viewpoints, cul- 
 minate in the sections of the Civil Code, — the provisions 
 of the current law, in which they have found their latest 
 development. 
 
 The references to the provisions of the Civil Code for 
 the German Empire are sought to be made to such 
 extent and in such arrangement that they may not only 
 practically illustrate legal ideas theoretically developed, 
 but may also serve for general orientation, and be useful 
 for the first introduction in the study of this code. 
 
 Konigsberg, Aug. 1, 1899. 
 
AUTHOR'S PREFACE TO THIRD EDITION 
 
 In the present edition, I have attempted to fortify the 
 philosophical portion of the book. The historical part 
 is enlarged on account of the consideration of new his- 
 torical discoveries; as for example, the Hammurabic 
 Code. The dogmatic part, dealing particularly with 
 rights of personality, and especially, authors' rights, 
 has been supplemented, and in part, revised. 
 
 Munich, Jan. 2, 1905. 
 
TABLE OF CONTENTS 
 
 SYSTEMATIC SURVEY OF THE LAW 
 
 INTRODUCTION 
 
 Page 
 
 § 1 . Province of Juristic Survey 1 
 
 § 2. Necessity of Law, and its Basis 3 
 
 § 3. The Science of Law 13 
 
 § 4. Content of Juristic Survey 25 
 
 PART FIRST 
 
 LAW AND ITS SOURCES 
 
 § 5. Law in General 29 
 
 § 6. Law Compared with Morals, Religion, Equity and 
 
 Social Convention 36 
 
 § 7. Foundations of the Legal Structure (System) 49 
 
 § 8. The State and Legal Order 62 
 
 § 9. Sources of Law 73 
 
 § 10. I. Customary Law 76 
 
 § 11. II. Legislation 80 
 
 § 12. III. Other Sources of Law 86 
 
 § 13. Application of Law , 88 
 
 PART SECOND 
 
 SYSTEMATIC CLASSIFICATION OF THE LAW 
 
 § 14. Focal Point and Survey of the Legal System 93 
 
 (A) CIVIL OR PRIVATE LAW 
 
 § 15. Elements of Civil or Private Law 102 
 
 § 16. System of Civil Law and its Development in 
 
 Germany Ill 
 
xxii CONTENTS 
 
 THE- SYSTEM OF CIVIL LAW IN DETAIL 
 
 CHAPTER I 
 THE LAW OF PERSONALITY 
 
 Page 
 
 § 17. The Law of Personality in General 122 
 
 § 18. Rights of Personality in Detail 125 
 
 CHAPTER II 
 
 THE LAW OF MATERIAL THINGS 
 
 § 19. The Law of Things in General 136 
 
 § 20. The Law of Ownership 139 
 
 § 21. Real Rights in re aliena 1^9 
 
 CHAPTER III 
 
 THE LAW OF OBLIGATIONS 
 
 § 22. Law of Obligations — General Part 157 
 
 § 23. (a) Obligations Arising out of Agreement 162 
 
 § 24. (fc) Obligations Arising out of Unlawful Acts 173 
 
 CHAPTER IV 
 
 PURE FAMILY LAW 
 
 § 25. Pure Family Law — General Part 176 
 
 § 26. (1) Marriage 179 
 
 § 27. (2) The Relation Between Parents and Children ... 183 
 § 28. (3) Other Blood Relations, and Relationship by 
 
 Marriage 186 
 
 § 29. 4. Artificial Relationship 187 
 
 CHAPTER V 
 
 FAMILY PROPERTY 
 
 § 30. Family Property in General 189 
 
 § 31. (1) The Matrimonial Regime 192 
 
 § 32. (2) Property of Children 198 
 
 § 33. (3) Guardianship Administration of Property 200 
 
CONTENTS xxiii 
 
 CHAPTER VI 
 INHERITANCE 
 
 Page 
 
 i 34. Inheritance in General 202 
 
 i 35. Natural Succession 208 
 
 i 36. Testamentary Succession 211 
 
 (B) PUBLIC LAW 
 
 ( 37. Elements of Public Law 214 
 
 i 38. Divisions of Public Law ' 218 
 
 [First Division of Public Law] 
 
 PUBLIC LAW OF THE STATE 
 
 CHAPTER I 
 
 THE STATE AS SUBJECT OF STATE INTERESTS 
 
 i 39. State Law — General Part 220 
 
 ( 40. Objects of the State (its Teleology) 223 
 
 i 41. Theories of the State 226 
 
 CHAPTER II 
 
 LAW GOVERNING STATE ACTIVITY 
 
 i 42. Organs of Expression of State Power 230 
 
 ! 43. Methods of Expression of the Power of the State . . . 235 
 
 i 44. Constitutional Law (State Law in Narrow Sense) . . 240 
 
 45. Administrative Law 243 
 
 CHAPTER III 
 
 OBJECTS OF STATE ACTIVITY 
 
 46. State Sovereignty and State Interests 245 
 
 47. legally Protected Chief and Auxiliary Interests of 
 
 the State in Detail 247 
 
CONTENTS 
 
 CHAPTER IV 
 
 INTEREST OF THE STATE IN LAW, AND SOVEREIGNTY 
 OF JUSTICE IN PARTICULAR 
 
 § 48. Administration of Justice and the State 254 
 
 § 49. I. Civil Law and Non-Contentious Jurisdiction . . 260 
 
 § 50. II. Law of Civil Procedure ^. 265 
 
 § 51. III. Criminal Law ■ 272 
 
 § 52. IV. Criminal Procedure 279 
 
 § 53. V. Administrative Jurisdiction 284 
 
 [Second Division of Public Law] 
 
 INTERNATIONAL LAW 
 
 § 54. Notion, Signification and Sources of International 
 
 Law 287 
 
 § 55. Systematic Survey of the Content of International 
 
 Law 289 
 
 SUPPLEMENT TO PRIVATE AND PUBLIC LAW 
 
 SPECIAL LAW OF PROFESSION AND POSITION 
 
 § 56. Special Law— General Part 292 
 
 § 57. Church Law 296 
 
 § 58. Commercial Law 300 
 
 METHODOLOGY OF LEGAL SCIENCE 
 
 § 59. Nature and Object of the Methodology of Legal 
 
 Science 303 
 
 § 60. Departments of Legal Science 307 
 
 § 61. Methods of Study and Academic Education 317 
 
 APPENDIX 
 
 Systematic Classification of the Law (tabulated) 331 
 
 Recent German Literature 337 
 
ABBREVIATIONS 
 
 Art Article. 
 
 Bd Band (volume). 
 
 B.G.B Biirgerliches Gesetzbuch fier das Deutsche 
 
 Reich (German Civil Code). 
 
 Birkmeyer, Enz Birkmeyer, Enzyklopadie der Rechts- 
 
 ■wissenschaft (1907). 
 
 Bl.R.A Blatter fur Rechtsanwendung, also Seuf- 
 
 fert's Blatter fier Rechtsanwendung. 
 
 Cosack, B.R Lehrbtich des deutschen BUrglerlichen 
 
 Rechts by K. Cosack (4th ed., 1903). 
 
 C.P.O. (Z.Pr.O.) Zivilprozessordnung (Civil Procedure Act 
 
 of May 20, 1898). 
 
 Einf.G Einfiihrungsgesetz (Introductory statute). 
 
 Enz Enzyklopadie (survey). 
 
 E.R.W. V. H V. HoltzendorfE's Enzyklopadie der Rechts- 
 
 wissenschaft , 5th ed. 
 
 Freiw.G.G Reichsgesetz iiber die Angelegenheiten der 
 
 freiwilligen Gerichtsbarkeit (non-con- 
 tentious jurisdiction statute of May 20, 
 1898). 
 
 Gareis, B.G.B Biirgerliches Gesetzbuch (German Civil 
 
 Code, with notes, and index by Karl 
 Gareis (Giessen, Emil Roth)). 
 
 Gareis, H.G.B Handelsgesetzbuch (Commercial Code with 
 
 notes etc., by Karl Gareis (C. H. Beck, 
 Munich, 3d ed., 1905)). 
 
 Gareis, H.R Das deutsche Handelsrecht (German Com- 
 mercial Law,, etc., by Karl Gareis, 
 7th rev. ed., Berlin, 1903). 
 
 Gareis, R.G German statutes separately printed 
 
 (Emil Roth, Giessen). 
 
 Gen.Ges Genossenschaftsgesetz (company statute of 
 
 May 1, 1889, revision of May 20, 1898). 
 
 Ges. m.b.H Gesellschaft mit beschrankter Haftpflicht 
 
 (limited liability partnerships) statute of 
 April 20, 1892, revision of May 20, 1898. 
 
 Gew.Ord Gewerbeordnung (trade regulation statute) 
 
 of July 26,1897,with amendments, 1901. 
 
 Grundb.Ord Deutsche Grundbuchordnung (land regis- 
 tration statute) of March 24, 1897, 
 revision of May 20, 1898. 
 
xxvi ABBREVIATIONS 
 
 Hdbch Handbuch (manual). 
 
 H-G.B Handelsgesetzbuch (Commercial Code) of 
 
 March 24, 1897 (R.G.Bl. 1897, No. 23, 
 p. 219). 
 
 Inst Insiitutionen (institutes) . 
 
 J.L.B. V. K Juristischer Literaturbericht (1884^1894) 
 
 by A. V. Kirchenheim with the co- 
 operation of H. Erman, A. Frantz, 
 K. Gareis, G. Kleinfeller, C. F. Reatz, 
 G. R. V. Salis, H. Sommer, and F. 
 Stoerk (Leipzig, J. C. Hinrichs, 1895). 
 
 K.O Konkursordnung (Bankruptcy Act) of 
 
 May 20, 1898. 
 
 K. u. V. Holtz. Enz. . Holtzendorff's Enzyklopddie der Rechts- 
 wissenschaft, 6th ed. rev., by J. Kohler, 
 2 vols. 
 
 Lehrb Lehrbuch (treatise). 
 
 L.R Landrecht 
 
 L.U.G Statute relating to literary and musical 
 
 copyright (June 19, 1901; R.G.Bl. 
 1901, No. 27, p. 227). 
 
 Mark Ges Trade Mark Act of May 12, 1894. 
 
 Marquardsen, Hdbch. .Marquardsen's Handbuch des dffen'Uchen 
 Rechts. 
 
 Must. Ges Useful Models Act of June 1, 1891. 
 
 Pand Pandekten (pandects). 
 
 Rechtswiss Rechtswissenschaft (Science of Law). 
 
 R.G. and R.Ges Imperial statute. 
 
 R.G.Bl Reichsgesetzblatt (Imperial Legislative 
 
 Bulletin). 
 
 R.Bk.Ges Bank Act of March 14, 1875. 
 
 R.Ger Reichsgericht (German Imperial Supreme 
 
 Court) . 
 
 R.Gesch Rechtsgeschichte (legal history). 
 
 R.O.H.G Reichsoberhandelsgericht (Imperial Su- 
 preme Court of Commerce). 
 
 R.Vf Reichsverfassung (Imperial Constitution). 
 
 Str.P Strafprozess (Criminal Procedure). 
 
 Str.G.B Strafgesetzbuch (Criminal Code). 
 
 V.G Act relating to publishers of June 19, 
 
 1901 (R.G.Bl., 1901, No. 27, p. 217). 
 
 W.O. . Wecnselordnung (Bills of Exchange Act). 
 
 Z. (Zeitschr.) Zeitschrift (periodical). 
 
TABLE OF REFERENCES 
 TO THE GERMAN CIVIL CODE (B.G.B.) 
 
 AND THE 
 
 INTRODUCTORY STATUTE (Einf.G z. B.G.B.) 
 
 [Indicating the sections of the Code, the articles of Introductory- 
 Statute, and the pages of this translation. The section given is usually 
 one of a consecutive series and is always the first in such series.] 
 
 CODE 
 
 Section Page Section Page 
 
 1 104, 249. 320 162. 
 
 3 103. 328 162. 
 
 6 103, 188, 201. 330 172. 
 
 12 126. 336 164 
 
 13 104, 202, 263. 346 160 
 
 21 104, 105. 362 160. 
 
 22 105. 372 160. 
 
 54 168. 387 160. 
 
 55 105, 264. 397 160. 
 
 57.'. 126. 398 159. 
 
 80 104, 105. 413 132, 135. 
 
 89 104, 169. 433 166. 
 
 90 105, 176. 453 91. 
 
 104 103, 108, 201. 493 132. 
 
 106 103. 515 166. 
 
 114 188, 201. 516 170. 
 
 125 162. 535 167. 
 
 130 91. 571 167. 
 
 134 162. 581 167. 
 
 138 37, 42, 162. 598 169. 
 
 186 107. 607 169. 
 
 194 107. 611 170. 
 
 222 160. 613 132. 
 
 226 37. 631 132, 170. 
 
 227 109, 126, 147. 651 132. 
 
 232 109. 652 171. 
 
 241 132, 157. 662 167. 
 
 242 157. 675 170. 
 
 267 HI. 677 175. 
 
 284 157. 688 169. 
 
 292 157. 701 175. 
 
 305 132, 162. 705 168. 
 
 312 162. 741 175. 
 
 313 147, 262. 759 172. 
 
xxviii TABLE OF REFERENCES 
 
 Section Page Section Page 
 
 762 170. 1113 152. 
 
 763 170. 1184 152. 
 
 764 166. 1191 152. 
 
 765 172. 1199 152. 
 
 780 164. 1204 152. 
 
 781 164. 1215 170. 
 
 782 164. 1223 153, 170. 
 
 793 172. 1232 170. 
 
 809 175. 1259 152, 262, 
 
 817 37. 1273 152. 
 
 819 37. 1297 181. 
 
 823 108, 126, 127, 173. 1300 124, 126. 
 
 824 173. 1303 181. 
 
 826 37, 42, 173. 1317 181. 
 
 831 174. 1323 182. 
 
 840 174. 1350 182. 
 
 842 173. 1353 182. 
 
 847 124, 126. 1354 182 
 
 854 138. 1355 126. 182. 
 
 857 138. 1358 182, 
 
 858 138. 1363 150, 194. 
 
 859 109, 126, 147. 1365 195. 
 
 872 138. 1411 191. 
 
 873 147. 1415 191. 
 
 900 148. 1421 195. 
 
 904 145, 147. 1426 194, 195.. 
 
 906 144. 1432 194. 
 
 925 147. 1435 263. 
 
 927 148. 1436 195. 
 
 928 104. 1437 195, 196. 
 
 929 147. 1519 195, 196. 
 
 937 107, 138, 148, 1549 196. 
 
 946 148. 1558 194, 263. 
 
 953 148. 1564 182. 
 
 958 145. 1565 182. 
 
 965 146. 1568 47 
 
 984 146. 1577 126. 
 
 985 144. 1585 186. 
 
 1004 144. 1588 181, 182. 
 
 1006 144. 1591 185. 
 
 1012 155. 1601 175. 
 
 1014 155. 1616 126, 
 
 1018 151. 1617 125. 
 
 1029 138. .1.626 184 
 
 1030 150. 1627 184. 
 
 1040 146. 1631 125 
 
 1068 150. 1649 150,199. 
 
 1073 172. 1650 199. 
 
 1085 150. 1680 184. 
 
 1090 151. 1684 185, 188, 196. 
 
 1094 155. 1705 185, 196. 
 
 1105 153. 1706 126 
 
TABLE OF REFERENCES 
 
 Section Page 
 
 1708 174. 
 
 1719 126, 185. 
 
 1723 185. 
 
 1736 126. 
 
 1741 185, 187. 
 
 1758 126. 
 
 1772 126. 
 
 1773 188, 200. 
 
 1787 200. 
 
 1796 200. 
 
 1807 200. 
 
 1813 200. 
 
 1821 200. 
 
 1837 200. 
 
 1896 188, 200, 201. 
 
 1909 200. 
 
 1911 188. 
 
 Section 
 
 Page 
 
 1922 
 
 ...206. 
 
 
 1924 
 
 , . . 182, 
 
 208, 209. 
 
 1936 
 
 . . . 104. 
 
 
 1942 
 
 . . . 104, 
 
 207. 
 
 1945 
 
 . . . 207, 
 
 261. 
 
 1960 
 
 . . . 207, 
 
 261. 
 
 1966 
 
 . . . 104. 
 
 
 1990 
 
 . . .212. 
 
 
 2018 
 
 . . . 207. 
 
 
 2066 
 
 ...91. 
 
 
 2147 
 
 , . .212. 
 
 
 2174 
 
 . . .212. 
 
 
 2231 
 
 . . .211. 
 
 
 2247 
 
 . . .211. 
 
 
 2278 
 
 . . .212. 
 
 
 2303 
 
 . . .210. 
 
 
 2333 
 
 . . .47, 210. 
 
 Article 
 
 Page 
 
 1 
 
 ..90. 
 
 2 
 
 . . 78, 84. 
 
 3 
 
 . . 85. 
 
 7 
 
 . . 72. 
 
 15 
 
 . . 197. 
 
 30 
 
 ..37. 
 
 32 
 
 . . 85. 
 
 42 
 
 . . 174. 
 
 44 
 
 ..211. 
 
 46 
 
 ..181. 
 
 55 
 
 . . 78, 85, 
 
 57 
 
 . .87. 
 
 59 
 
 . . 153. 
 
 62 
 
 . . 154. 
 
 63 
 
 . . 153. 
 
 65 . . 
 
 , . 148. 
 
 67 
 
 . . 146. 
 
 INTRODUCTORY STATUTE 
 
 Article Page 
 
 71 174. 
 
 74 154. 
 
 75 171. 
 
 80 150. 
 
 84 169. 
 
 94 152. 
 
 95 171. 
 
 96 150, 172. 
 
 109 148. 
 
 131 155. 
 
 121. 132 156. 
 
 133 126, 156. 
 
 141 262. 
 
 147 261. 
 
 153 90. 
 
 182 155. 
 
 218 85, 121. 
 
SCIENCE OF LAW 
 
 INTRODUCTION 
 
 SECTION 1 
 PROVINCE OF JURISTIC SURVEY 
 
 Juristic Survey is a systematic review of the whole 
 domain of the law,^ whether of one or more peoples 
 or states; whether in a particular period or in various 
 stages of legal development.^ 
 
 The object of this systematic survey is — 
 
 1. To furnish to beginners a fundamental introduc- 
 tion to the science of law: — ^the propaedeutic to juris- 
 prudence ; 
 
 2. To afford to those engaged in particular depart- 
 ments of legal science a survey of these separate 
 departments, based on fundamental notions: — the 
 recapitulation of the elements of special studies; 
 
 ^ [The German language requires a very awkward phrase to express the 
 notion o£ law used in an abstract sense. A similar difficulty is presented in 
 the German equivalent for a right in the concrete sense. Law (abstract)^ 
 Recht im objektiven Sinne. Right (concrete)— Recht itn subjektiven Sinne. 
 
 The term Recht standing alone and unqualified, in the substantive sense, 
 means, either: (1) a right, claim, title, privilege, immunity, power; or (2) 
 law, justice. 
 
 The context is usually sufficient to indicate the sense. There is ordinarily 
 less danger of confusing rights, in the concrete, with law in the abstract, than 
 of giving the term Recht an ethical turn when the juridical sense is intended. 
 Mr. W. Hastie in his translation of selections from the Juristic Surveys 
 of Puchta, Friedl^nder, Falck, and Ahrens (Outlines of Jurisprudence, 
 Edinburgh, 1887) has frequently fallen into this error. Professor Dyde has 
 marred his translation of Hegel's Philosophic des Rechts (1820) in a similar 
 manner (Hegel's Philosophy of Right, Geo. Bell & Sons, London, 1896). 
 See Holland, The Elements of Jurisprudence, 1st Am. ed., '73 ; Salmond, 
 Jurisprudence, 2d ed. (London, 1907), 465.] 
 
 Concerning the notion Recht im objektiven Sinne, see p. 29; also, the con- 
 trary notion, see p. 31 (Rights). 
 
 ^ Compare A. Merkel, Juristische Enzyklopddie, p. 1. 
 
2 SCIENCE OF LAW 
 
 3. To furnish the scientific generalization and basis 
 of the various departments of the law, and the separate 
 studies in legal science; in such manner that these 
 detailed parts may be seen to be the divisions of an 
 organized unity, arising as an imperative of reason, 
 from the attributes of human nature itself. This is the 
 philosophical object of Juristic Survey. 
 
 4. Finally, Juristic Survey affords the framework 
 of comparative law,^ which in its turn serves in part 
 for the illustration of the study of positive law, and in 
 part provides the basis for Philosophy of Law. 
 
 * Comparative Law as the basis of Philosophy of the Law. See F. Dahn, 
 in Zeitschr. f. vergleichende Rechtswissenschaft, Bd. II, p. 1; further, Bemhoft, 
 Ueber Zweck und Mittel der vergleichenden Rechtswissenschaft, ibid, Bd- I, p. 1, 
 and Bd. II, p. 255; note. Compare also below (sec. 3, p. 21, note 1) Bekker's 
 observation in opposition to Bierling; Kohler, Das Recht als Kulturer- 
 scheinung, Einleitung in die vergleichende Rechtswissenschaft (1885), and his 
 Recht und Prozess in Grunhut's Zeitschr., Bd. XIV, p. 1. Compare also 
 Kohler's investigations in comparative law, with reference to the law of 
 obligations, the law of liens, matrimonial law, and the family law, of India; 
 the ancient legal records of Assyria and Babylon (Zeitschr. f. vergleich. 
 Rechtswissenschaft, Bd. Ill, pp. 161, 343, 201) ; and numerous other con- 
 tributions by Kohler, particularly ibid, Bd. V; also Gareis, in the Deutsche 
 Revue, II Jahrgang, Heft 6 (March, 1878), p. 302. The extremest caution 
 must be exercised in reaching conclusions in the comparison of the laws of 
 different peoples whose social conditions are not completely and accurately 
 understood. Compare the conclusions of K. v. Prantl in the Krit. Viertel- 
 jahrsschrift, Bd. XVI (1874), p. 26a, concerning the collection of materials of 
 A. H. Post {Einleitung in eine Naturwissenschaft des Rechts) and A. Bastian 
 {Die Rechtsverhaltnisse bei verschiedenen Volkern der Erde), in the fullest 
 recognition of systematic works on comparative law; as, for example, Ed- 
 Ganz (Inheritance Law), or Unger (Matrimonial Law). See also Kohler, 
 Krit. Vierteljahrsschrift, N. F. Bd. IV (1881), pp. 1. 161. 
 
INTRODUCTION 3 
 
 SECTION 2 
 THE NECESSITY OF LAW, AND ITS BASIS 
 
 It is necessary to take into account the nature of 
 man in order to know the nature of law and its objects; 
 for it is here that we find what may be called the basis 
 or roots of the law. 
 
 One of these roots — we may call them the materials — 
 is self-interest, or egoism.^ A great variety of necessi- 
 
 ^ This starting point of a theory of law is not new. It is found as early as 
 the ancient Indian law book which bears the mythical name of Manu. It is 
 disclosed in Sanskrit legal literature, and is rooted in the numerous legal, 
 ethical, and social regulations (dharma) of Vedic times (consequently prior 
 to 600 B. C.)- 
 
 The occasion for the so-called laws of Manu appears to have been the 
 establishment and security of the basic principles of Brahmanism relating to 
 the state and law, in opposition to the counter influence of Buddhism. 
 
 This ancient Brahmanic code says among other things: "To act solely 
 from a desire for rewards is not laudable, yet an exception from that desire 
 is not (to be found) in this (world) ; for on (that) desire is grounded the 
 study of the Veda and the performance of the actions prescribed by the 
 Veda": [this and following excerpts from Manu are taken from Georg 
 Buhler's translation in Sacred Books of the East, Vol. 25, ed. by F. Max 
 MuUer]. — Manu II, 2. "The desire (for rewards), indeed, has its root in the 
 conception that an act can yield them, and in consequence of (that) concep- 
 tion sacrifices are performed; vows and the laws prescribing restraints are 
 all stated to be kept through the idea that they will bear fruit." — Manu II, 3. 
 "Not a single act here (below) appears ever to be done by a man free from 
 desire; forwhatever (man) does, it is (the result of) the impulse of desire." — 
 Manu II, 4. "He who persists in discharging these (prescribed duties) in the 
 right manner reaches the deathless state and even in this (life) obtains (the 
 fulfillment of) all the desires that he may have conceived." — Manu II, 5. 
 
 With reference to the juridical portions of the code of Manu, see Julius 
 Jolly in the Zeitschr. f. vergleich. Rechtswissenschaft, Bd. Ill, p. 232; Bd. IV, 
 p. 321. Concerning the origin, age, and arrangement of this code see Julius 
 Jolly in Georg Buhler's Grundriss der indo-arischen Philologie und Alter- 
 tumskunde, Bd. II (1896). pp. 14, 16-19. 
 
 [The laws of Manu were translated into the English by Sir William Jones 
 (1794); and under the title, The Ordinances of Manu, with an introduction 
 by Bumell, and completed by Hopkins (1886).] 
 
 This starting point of all legal order may also be recognized in the Prologue 
 of the most ancient known code, — that of the Babylonian King Hammurabi, 
 in which the lawgiver and king says: "Anu and Bel called me Hammurabi* 
 
4 SCIENCE OF LAW 
 
 ties — ^necessities of an animal and of an ideal nature — 
 impel human beings to action, and to conflicts in the 
 outer world. The necessity of subsistence, the require- 
 ment of rest and sleep, shelter and clothing, and mani- 
 fold wants of a physical and ideal character, are the 
 basis of man's activity. If men, not living an isolated 
 life, should satisfy their wants without regard to others, 
 the struggle of all against all {bellum omnium contra 
 
 omnes) were inevitable {i(rd4fiev dW^Xous ^Trei ov SLkt} ia-rlv iv o^oZs) . 
 
 The struggle, however, does not come to this.^ The 
 very necessity of rest, and security as to certain wants 
 in at least a limited measure, transforms egoism in its 
 grosser aspect into a refined egoism. By virtue of these 
 necessities the individual renounces the satisfaction of 
 certain wants in order that he may the better enjoy 
 
 the exalted prince, the worshiper of the gods, to cause justice to prevail 
 in the land, to destroy the wicked and the evil, to prevent the strong from 
 oppressing the weak, to go forth like the Sun over the Black Head Race, to 
 enlighten the land and to further the welfare of the people." [The code of 
 Hammurabi translated by Robert F- Harper, Chicago, 1904. See also the 
 codes of Hammurabi and Moses by W. W. Davies, 1905; Code of Hammurabi 
 translated by C. H. W. Johns, Edinburgh. 4th imp., 1903.] 
 
 The code of Hammurabi [now in the Louvre at Paris] is carved on a 
 dioritic column, found through the French excavations in Susa in 1897-99. 
 It was enacted by Hammurabi (Amraphel, Ammu-rapaltu, King of the 
 Westland) who ruled over Babylon, 2250 B. C. He reigned fifty-five years, 
 and was a contemporary of Abraham (Mos. I, 14, 1) 
 
 Concerning this highly important legislation with reference to universal 
 law and the history of civilization, see Scheil, DH^gation en Perse, — M6moires 
 publics sous la direction de M. I. de Morgan^ dH^gui gSnSral {Tome I V). 
 Textes Elamites — S^tnitiques, deuxieme sdrie; par V. Scheil, Professeur a 
 Vkcole pratique des hautes Studes (Paris, Ernest le Roux, 1902). See further 
 Winckler, Die Gesetze Hamtnurabis, Konig von Babylon, translated by 
 Dr. Hugo Winckler {Der alte Orient, Jdhrg. IX, Heft 3), Lreipzig, Hinrichs, 
 1902; also published under special title, 2d ed., 1903. See further Hamtnura- 
 bis Gesetz by J. Kohler and F. E. Peiser, Bd. I, Ueberseizung, juHstische 
 Wiedergabe, Erlduterung (Leipzig, Ed. PfeifEer, 1904). and the literature therein 
 noted on p. 106; also Hugo Winckler in Grunhuts Zeitschrift, Bd. XXXI 
 (1904), p. 373. 
 
 ^ This condition of strife is seen at once without further explanation to be 
 only the counterpart of social life. See Stammler, Wirtschaft und Recht nack 
 der materialistischen Geschichtsauffassung (Leipzig, 1896), pp. 543-545. 
 Concerning this work see Fr. Keller in Krit. Vierteljahrsschr., Bd. 39 (1897), pp. 
 483-528. 
 
INTRODUCTION 5 
 
 others. The weaker members of society (principally 
 those weaker by nature, — ^women and children, — and 
 those physically inferior individuals in a position of 
 servitude) accept from the beginning the fact that, 
 in this assumed struggle, they would be at a disad- 
 vantage. On physical or physiological grounds, a part 
 of humanity bows to the power of dominant individuals, 
 as is seen in domestic or family authority. 
 
 This relation is also based on an ethical' foundation. 
 It leads directly to the organization of the state, with 
 a system of legal order. The dominant subject, the 
 free and physically capable man, sets up his will in the 
 household, by virtue of his authority, and this makes 
 the basis of the legal community. (See below the sig- 
 nificance of kinship.) 
 
 Outside the household, however, there would still 
 be violent collision of interest against interest, and 
 unregulated egoism opposed to egoism, if there were 
 not other influences operating on the nature of man, 
 against an unrestrained egoism, and ordinarily counter- 
 acting it. Of these other influences, the fundamental 
 principle of human reason (which asserts itself alongside 
 of the fundamental principle of human existence, — the 
 struggle to satisfy the necessities of the body) is pre- 
 eminent. 
 
 * Here may be already noted the interposition of ethical influences, dis- 
 cussed below (pages 40, 67), with especial reference to their opposition to 
 the principle of pure utility. Subjection to the power of civil society depends 
 far less on this or that content of legal command, than on voluntary sub- 
 mission to an organization whose authority we recognize, and in which we 
 feel the duty to obey in so far as we are a part of the whole and share its 
 advantages and disadvantages, — the social instinct. This sense of voluntary 
 submission to order, and co-operation, begins for mankind in general, as 
 for the individual in the family, first in the household, and then among the 
 kindred. With regard to the importance of ethical influences as opposed 
 to the narrow view of conscious deliberation, see the observations of L. 
 Goldschmidt, Universalgesckichte des Handelsrechts, p. 17, note 6, against 
 V. Ihering, Der Zweck im Recht, Bentham, and others. 
 
6 SCIENCE OF LAW 
 
 Herein lies an ideal root of the law. Man is endowed 
 with the capacity — and it is necessary for the ordering 
 of his sensations and experiences^— to reason' from 
 the particular to the general; to discover from single 
 phenomena their overruling genus; and therein the 
 logical or natural law. The mental life even of a child 
 consists of arrangement and summing up of each 
 experience under fewer ideas^ attained by the same 
 operation, supplemented by instruction, education, and 
 suggestion. Such is also the method of the scientist 
 who makes an experiment in electricity, or a chemical 
 analysis. Such is the method of the jurist who defines 
 "murder," or "lease," and places "murder" under the 
 more general idea of "crime," and "lease" under the 
 higher notion of "agreement," and "agreement" again 
 under "declaration of intention"; and classifies "crime" 
 and "declaration of intention" under the notion "act." 
 All reasoning is therefore generalization. The highest 
 point of this generalization is all that is conceivable under 
 the absolute. 
 
 Man also apprehends himself, in nature, as an object 
 of generalization; that is, as an object of his knowledge. 
 He forms a conception of himself as a member of the 
 genus "man." He next generalizes the notional, and 
 finally, also, the practical arrangement and organization 
 within the genus, manifesting the same principle of 
 reason which governs even the thoughts of the child. 
 Logically as well as practically, the necessity of order 
 follows. This order is a standardized adjustment of 
 the social relations of the members of the genus among 
 themselves. It embraces also matters of property; 
 
 ^ Compare Felix Dahn, Die Vernunfi im Recht: Grundlagen der Rechts- 
 philosophie (Berlin, 1879) ; also his Ueber Werden und Wesen des Reckts 
 (in der Zeitschrift fur vergleickende Rechtswissensckaft, Bd. Ill (1880)). 
 
 ^ According to Kant, the necessary form of knowledge of order must be 
 based on innate faculties. Compare below, p. 40, note 2. 
 
INTRODUCTION 7 
 
 that is to say, the objects of the satisfaction of neces- 
 sities. 
 
 Alongside of the necessity above discussed, which 
 asserts itself as egoism in a gross and in an ideal aspect, 
 peculiar altruistic impulses are recognized in all known 
 stages of civilization, collateral to the egoistic tendencies 
 of mankind. These altruistic impulses, in part, follow 
 closely the material and sensual necessities of the 
 egoistic nature. They are made evident in the domestic 
 impulse, the family sense ; and also in the strong feeling 
 of tribal connection. They incline also partly toward 
 human ideals, or cosmopolitan feelings. This is apparent 
 in state feeling, patriotism, the universal love of man, 
 and the associational impulse. Through such impulses 
 as the feeling of comradeship, social position, esprit 
 de corps, etc., mankind has become socially differentiated 
 in a large variety of distinct groups or organizations. 
 
 In so far, however, as it postulates the subordination 
 of the conscious ego to its environment, the law of 
 reason requires a certain moderation of and harmony 
 between egoistic and altruistic impulses. This gives 
 rise to the legal sense, and the legal impulse. This is 
 the inclination toward external order. It is a harmoniza- 
 tion of these two different tendencies in an impulse 
 toward the maintenance of this order, — ^the sense of 
 justice. 
 
 Corresponding to this impulse toward legal justice 
 is what Ihering calls "the life through and for others," 
 established and manifested in human nature in the 
 tendency which the Greek philosopher had in mind when 
 he emphasized in mankind the ^iJo-si iro\iTi.Kl>v } 
 
 ^ Compare, Aristotle Polit. I, 1, 9; W. Oncken, Die Siaaislehre des Aris- 
 toteles (1875), Bd. II, p. 14; Cicero, de fin. V, 23. According to the statement 
 of Eduard v. Rindfleisch, Neo-Vitalismus, Vortrag auf der Nalurforscher- 
 versammlung (Leipzig, 1895), all sense of order, and the noble principle, "one 
 for all, all for one," must be considered as innate. Rindfleisch finds even 
 
8 SCIENCE OF LAW 
 
 The sense of order and the laws of reason, in themselves, 
 do not create law. There is still necessary the social 
 or community sense. ^ All these impulses are coincident 
 in the nature of man, even though in different stages 
 of development.^ It is self-evident that egoistic and 
 
 in the lowest activities of life the roots of this principle, from which he 
 derives a law of nature and the highest precept of ethics. 
 
 Compare Dig. I, 2, I, 3 (,de legibus) (Marcianus, referring to Demosthenes 
 and Chrysippus). In any event, the inclination toward order and society 
 may be demonstrated according to instinct. The bee works in the hive, and 
 the ant performs the labor necessary to its community, according to instinct, 
 in the same manner as human beings, but with extraordinary precision and 
 certainty. The English scientist, Sir John Lubbock, believes that it must be 
 admitted that it is really difficult for the observer of these animals (particularly 
 bees) not to ascribe to them conscious mental capacity. See Sir John Lubbock, 
 The Senses and Instincts of Animals, (1888), translated [into German] by 
 Wm. Marshall (Leipzig, F. A- Brockhaus, 1889, p. 255). 
 
 *The capacity is hereby presupposed of perceiving pleasure and pain, 
 and accordingly of estimating and practically attaining values, including 
 moial values. Concerning this notion, and particularly with reference to 
 the connection between being and the universal feeling of pleasure and pain, 
 and between Eesthetic and moral values, see Ludwig Busse, Philosophie und 
 Krkenntnistheorie (Leipzig, S. Hirzel, 1894), pp. 136—140. Regarding the 
 related "social instinct," see below, p 9, note 1 {Exnef). The concordance of 
 egoistic and altruistic impulses is the hope of philosophy and the effort of 
 Christianity. Compare, on one hand, Herbert Spencer, The Principles of 
 Sociology (translated [into German] by Vetter and Cams, Die Prinzipien 
 der Sosiologie, Bd.. IV, Stuttgart, 1897, sec 853, p. 673); and Matthew 
 xxii. 39, Mark xii. 31, on the other. Compare also, on the philosophical side, 
 Ludwig Busse, Die Weltanschauungen des grossen Philosophen der Neuzeit 
 (Leipzig, B. G. Teubner, 1904, p. 159). 
 
 ^ Anarchy for this reason is diametrically contrary to the nature of man. 
 Even in the profoundest convulsions of the state, including the abolition of 
 the head of the state, anarchy is never fully possible without instantaneous 
 retribution, and, except temporarily, is inconceivable. Legal rules have 
 become in so great a. part intensely customary, or their observance, to so 
 great a degree, commanded and maintained by habit, that even a general 
 proclamation of freedom from law would not at once work any essential 
 change in the manner of life of the people, except in the immorally inclined 
 members of society. It is true that in si^ch event the greatest excesses 
 might be feared from those persons not restrained by custom or morals, 
 unless the conviction of the necessity of legal order should thereby be mani- 
 fested to those very persons who require such persuasion. Accordingly, 
 the supposed customary five days' suspension of law on the death of a Persian 
 king must be classed as a badly chosen method of demonstration ad oculos 
 of the high value of law and kingly power. A definite stability of official 
 activity must be assumed, without any interruption of its force on the part 
 of the head of the state, and particularly in the face of a short period of 
 interregnum. The law itself and the head of the state would be devoid of 
 
INTRODUCTION 9 
 
 altruistic impulses have a connection with each other 
 and with metaphysics, ethics, and particularly with 
 religion, inasmuch as they have a common starting 
 point. All these impulses and ideas are products of the 
 nature of man.' The sense of order, as well as the social 
 instinct, proceeds from a human impulse, — the necessity 
 of satisfying the "self." It is accordingly clear that 
 even in the most primitively governing or governed 
 community, whether it is called the primitive^ patri- 
 archal state, or the primitive hero state, a psychical 
 factor — ^the ethical impulse — operates alongside of physi- 
 cal facts of dominion and submission. The ethical sense, 
 in conjunction with objective facts (such as kinship, 
 physical power, and constant defensive and offensive 
 capacity on one hand, and the necessity of protection 
 and dependence on the other), creates and governs 
 family life. 
 
 Ages perhaps have passed since the social life of man 
 was differently ordered than through the basis of kinship. 
 This primitive order arises and is built up from prin- 
 ciples (rules) governing the external relations of men 
 
 force without official activity of the civil and military authorities conformably 
 to law. See below, Public Law, Sees. 42-47. Reference 'is made to the 
 purpose of the alleged ancient Persian dvofiia in Joh. Stobaeus, vept 
 vd^ojv Kai ^duVt and in Sextus Empiricus, irpbs l/tjTopaz. 
 
 ' This position agrees with the able statement of Siegmund Exner, Die 
 Moral als Waffe im Kanvpf urns Dasein (Vienna, 1892). While Exner does 
 not regard it as belonging to the nature of man as such to further the objects 
 of society, of which certain ideas and perceptions may be generated by means 
 of property transferable by inheritance, yet he posits in the species man 
 the capacity of perception of well-being, in the observance of the welfare 
 of society. . The social instinct is a vital force of humanity, and for modem 
 man at least, the necessity of law is inborn. 
 
 A special development of the ethical thought, the "life for others, "is found 
 in Christianity in the new command of the love of others. Compare W. 
 Oncken, Aristotele, Bd. II, p. 70; Matthew v, 44 (Sermon on the Mount); 
 John xiii, ,S4. 35. 
 
 ^ As the external order of law can come only from the community, that 
 is the governing society, and not from individuals, therefore law is social 
 will. Compare the following note. 
 
10 SCIENCE OF LAW 
 
 in society. It is a peaceable order, in that it does not 
 employ, but obviates, conflict. It is a reasonable 
 order, in that it expresses the principles of human 
 reason as well as the principles of human nature. 
 The essential character of law rests here. Law {Friedens- 
 ordnung) peaceably adjusts the external relations of 
 persons among themselves, and to things. 
 
 The object of this peaceable adjustment is protection, 
 in a manner peculiar to the law, of interests which 
 individuals and the community have in their relations 
 to others, and to things. It is an adjustment of the 
 means of external satisfaction of necessities.* Law 
 protects such interests in its own way through a limita- 
 tion on freedom of action by means of positive^ rules 
 
 ^ "Positive," that is to say, imposed; proceeding from the community 
 through the dominant authority of society, whether in form of statutes or 
 customary law. The regulation of social relations through self -generated 
 standards alone — that is to say, through so-called immanent legal principles 
 (the theory of anarchy) — is an insecure and insufficient basis. Regarding the 
 theory of anarchy see Zenker, Der Anarchismus. Kritik und Geschichte 
 der anarchistischen Theorie (Jena, 1895) ; and compare Rudolf Stammler, 
 Wirtschaft und Recht nach der Materialistischen Geschichtsauffassung (Leipzig, 
 1896), p. 261- It is true that positive law is always the outward development 
 and expression of the immanent standards of continually changing social 
 conditions, and that this is to be recognized by the lawmaker, and indeed 
 is in part unconsciously observed; and that the judge in the interpretation 
 of statutes, and the construction of acts naanifesting legal consequences, 
 must bear this in mind- Concerning the so-called ^'Gesetz der Immanenz" 
 as the highest principle of the legal system, see L. Goldschmidt, Hdbck. d. 
 H.R., 2d ed., I, sec 34, p. 302, and Universalgeschichte d. H.R. (1891), p. 33. 
 Contra: Bierling, Kritik d. jurist. Grundbegriffe, I, p. 83. See also J. Kohler, 
 Jahrb. f. Dogm., Bd. XXVI (1888), pp. 1, 184; A. Merkel, Jurist. Enz., 
 p. 13; Gareis, Lehrb. d. H.R., 5th ed., pp. 2, 434, 435; R. Stammler, Das 
 Recht der Schuldverhaltnisse in his allg. Lekren (1897), pp. 3, 7; R. Stammler, 
 Die Gesetzmdssigkeit in Rechtsordnung u. V olkswirtschaft (Dresden, 1902), 
 p. 24. 
 
 [There is no juristic idea more difficult of clear and adequate apprehension 
 than the notion of law itself. The various schools of jurisprudence owe their 
 origin, and find their differences among themselves, in variants of this basic 
 conception. It must not be imagined that these differences are of purely 
 academic importance; for they have led to highly practical consequences 
 in the history of legal evolution. Any definition of law is incomplete which 
 does not take account of all its elements, which is practically tantamount 
 to saying that it can not successfully be defined. Certainly no definition is 
 complete which does embrace its basis or causes. The most approachable 
 
INTRODUCTION 11 
 
 in form of commands or prohibitions. Limitations are 
 established through these rules on the range of activity 
 of individuals, and also of the community, by which 
 arbitrary freedom of choice is removed, and by which 
 freedom within a limited sphere is legally guaranteed. 
 Interests lying within the sphere of legal guaranty 
 become, by reason of this legal guaranty, legal interests, 
 legal advantages. Relations of fact, through the pro- 
 tection which is afforded by commands and prohibi- 
 tions, become legal relations, legally ordered relations. 
 
 The necessity of law is satisfied, in that the whole 
 range of human activity, of individuals as well as of 
 the community, is protected by rules of law; in that it 
 is shielded from an unrestrained freedom of will; and 
 
 avenue of definition is that which describes the social results of law. Thus, 
 the author says that law "peaceably adjusts the external relations of per- 
 sons." 
 
 The elements of law with reference to which it may be defined and con- 
 sidered are: — 
 
 1. Its basis in nature, reason, ultimate reality, or religion, if any such 
 it has; or its causes, as in the nature of man, or society; 
 
 2. Its sources, or the materials out of which it arises, as custom, precedent, 
 and legislation; 
 
 3. Its effects; 
 
 4. The method of its formal expression and authoritative application; 
 
 5. Its ends. 
 
 Thus, Cicero defines law by an assumed basis in nature: Lex est ratio 
 summa, insita in natura, ques iubet ea qme facienda sunt, prohibetque contraria. — 
 De Leg., I, 6. 
 
 Stahl defines law from a. theological standpoint: In order to apprehend 
 the nature of law, it is necessary to consider it in the totality of the relations 
 upon which it operates, as a great institution established by God, for their 
 definite regulation. (Philosophie des Rechts, Vol. II, Bk. 2, pt. 1, cap. 1.) 
 
 Montesquieu finds the basis of law in human reason: Law in general is 
 human reason. (L' Esprit des Lois I, 3.) 
 
 Gareis looks to the nature of man: To know the nature of law and its 
 objects, it is necessary to take into account the nature of man. {Supra, 
 sec. 2.) 
 
 Gratian regards the sources when he says: lus generate nomen est: Lex 
 autem iuris est species, . omne autem ius legibus et moribus constat. 
 
 Savigny defines law by its social effects: The rules whereby the invisible 
 boundaries are determined within which the existence and activity of each 
 individual attains security and free scope. {System des heut. Rom. R., I, 52.) 
 
12 SCIENCE OF LAW 
 
 in that, accordingly, the manifestation of this activity 
 (which is requisite to the realization of the social destiny 
 of humanity) is guaranteed within these limits. "The 
 highest ends of humanity are attained only through 
 the free development of powers, but this development 
 would be impossible without law. It is the law which 
 prepares the way for all human advancement."^ 
 
 Salmond looks to the agency by which (Anglo-American) law is expressed- 
 Law is the body of principles recognized and applied by the state in the 
 administration of justice. (Jurisprudence, cap. 5.) 
 
 Blackstone expresses the imperative notion; A rule of civil conduct pre- 
 scribed by the supreme power in a state commanding what is right and 
 prohibiting what is wrong. (Commentaries, I, 44.) 
 
 These formulas from which the above illustrative selections were made 
 are conveniently assembled in Prof. Roscoe Pound's Outlines of Jurisprudence 
 (Jacob North & Co., Lincoln, Neb., 1903). Other collections of formulas may 
 be found in Holland (Elements of Jur. p. 20) and Korkunov (Theory of haw^ 
 Prof. Hasting's tr., p. 81). 
 
 The text illustrates the notion of law as a means for the attainment of 
 the social destiny of man. In this view the law has not merely an inhibitory 
 influence, but has also a constructive purpose. This view of the law as a social 
 instrument opposes itself to the notion of Korkunov, who defines it as a 
 "delimitation of interests" (op. cit., p. 52). 
 
 With reference to the Schools of Jurisprudence which have sprung from 
 differences in the conception of the nature of law, see the monograph of 
 Prof. Roscoe Pound, A New School of Jurists (University Studies, Lincoln, 
 Neb., Vol. IV. No. 3, July, 1904). 
 
 In broad outline, the Schools of Jurisprudence may be represented by 
 the following diagram: — 
 
 I. The Material Conception. II. The Ideal Conception. 
 
 (1) Imperative. (1) Dogmatic. 
 
 (2) Historical. (2) Rational. 
 
 (3) Sociological. (3) Metaphysical. 
 
 The Imperative School regards law as something commanded by the state 
 (type: Austin). The Historical School contends that law is an unconscious 
 development, like a language (type: Savigny). The Sociological School 
 asserts that law is a complex of social evolution and social elements (type: 
 Post). 
 
 The Dogmatic School assumes that law proceeds from a higher authority 
 than the state (type: Augustine). The Rational School finds the basis of law 
 in reason (type: Cicero). The Metaphysical School discovers the immutable 
 foundations of law in transcendental reality (type: Kant).] 
 
 * Windscheid, Die Aufgaben der Rechtswissenschaft (Rectoral address), 
 Leipzig, 1884, p. 4; also P. Qertmann, Windscheids Gesammelte Reden usw., 
 Leipzig, 1904, p. 102. 
 
INTRODUCTION 13 
 
 SECTION 3 
 THE SCIENCE OP LAW 
 
 Like every other science, the science of law is system- 
 atic knowledge.^ It is knowledge which binds together 
 into complete unity the objects with which it has to 
 deal, according to their hornogeneity, and in which 
 the separate objects of knowledge are apprehended as 
 parts of a whole. This unity, and this apprehension 
 of all single facts as parts of a whole, — ^in other words, 
 as parts of a system, and of systematic knowledge, — 
 are attained by means of definition and classification. 
 By these methodical processes an understanding of the 
 content, and a conception of the whole of the involved 
 facts, are secured. The possibility of collateral and 
 subordinate classifications, and the generalization of all 
 ideas under higher notions, are also realized. This 
 knowledge is systematic, in that all the detailed matter, 
 the separate facts, and single notions, are apprehended 
 and represented as parts of an organic whole. Sys- 
 tematic knowledge of related facts is what constitutes a 
 science. 
 
 Fragmentary knowledge is distinguished from scien- 
 tific or systematic knowledge in this, — that it involves 
 
 * Salkowski, Institutionen, Grundzuge des Systems und der Geschichte des 
 Tomischen Privatrechts, 7tn rev. ed., Leipzig, 1898, sec. 2. [The ninth 
 edition o£ this highly valuable work appeared in 1907 (Leipzig, Verlag von 
 Bemhard Tauschnitz) edited by O. Lenel, who has brought the literary 
 references down to date. Attention may also be called to Mr. Whitfield's 
 translation (1885).] See also Sohm, Institutionen des romischen Rechts 
 sec. 8. [Sohm's Institutes have been translated into English by James 
 Crawford Ledlie, with an interesting introductory essay by Dr. Erwin 
 Grueber.) See also Birkmeyer, Em., pp. 84, 86-95 (Leonhard). 
 
 ^ Compare v. Liszt in Zeitschr. f. d. ges. Strafrechtswissenschaft, Bd. VI. 
 p. 665. 
 
14 SCIENCE OF LAW 
 
 facts connected together only incidentally, and not 
 according to a relation by which they form a unity of 
 homogeneous parts. Therefore, such isolated facts not 
 bound together by their own coherence, as a system' 
 (which is the attribute of science), form an "aggregate" 
 or a simple cumulation of particulars. As such they 
 are only the preUminary materials of science. As 
 law is the means of peaceably adjusting the external 
 relations of men and communities among themselves, 
 and to things, so legal science is systematic knowledge 
 of this peaceable adjustment, and all its parts and 
 relations. 
 
 All legal rules (commands and prohibitions) are 
 examined, defined, and classified, according to their 
 relations to each other. A system is attained by which 
 legal knowledge becomes a science through the logical 
 generalization of the products of this definition and 
 classification under resulting notions of higher degree. 
 The scientist proceeds from single phenomena which he 
 gathers through experiment or observation, and summing 
 up; and arises to a generic notion, that is, the higher 
 conception, — law, or law of nature, — which is nothing 
 more than the generalization of phenomena under 
 higher conceptions (the inductive method). On the 
 other hand, he may proceed centrifugally, as it were, 
 and draw, or deduce, from the general, from the law, or 
 from the principle, inferences of the particular. The 
 jurist in the same way arranges separate positive rules, 
 and logically derived ideas, inductively and deductively, 
 into a system; and organizes and classifies the facts of 
 life, and the relations of men and communities to and 
 among each other. "The science of law is nothing other 
 
 ^ The dissertation of Julius Jolly, Die Systematik des indischen Reckts, 
 in the Zeitschr. f. vergleichende Rechtswissenschaft, Bd. I, p. 234, is interesting 
 in connection with the gradual growth of classification. 
 
INTRODUCTION 15 
 
 than civilis sapientia, the practical philosophy of civil 
 society. It assuredly does not exhaust itself with the 
 interpretation of a text, nor yet with the formation of 
 legal ideas derived from existing law. Its chiefest 
 function is to discover, and in the highest possible 
 measure securely to establish, the proper legal form 
 of man's social existence adequate to every period of 
 time and every stage of civilization."' 
 
 I. — Legal Science as the Science of Positive Law, or 
 Legal Science in the Narrow Sense. 
 
 The jurist as a scientific investigator no more creates 
 the objects of his scientific knowledge than the naturalist 
 produces phenomena and laws. Both find their material 
 existent in the external world. The objects of the 
 science of law as a positive science — ^the science of 
 positive law, — ^are derived from legislation ' and custom;' 
 as the objects of natural science are created by nature; 
 and as the facts of the history of art are created by the 
 arts. 
 
 Legal science has for its province the derivation of 
 ideas out of the materials provided by legislation and 
 custom, and their arrangement and classification. By 
 this method the law is reduced to a system and its 
 knowledge becomes systematic knowledge.* This pro- 
 cess is necessary in order to learn the range and meaning 
 of each particular legal principle (that is, each legislative 
 rule, or rule of customary law and its legal consequences) 
 and to apprehend the relation of one legal principle 
 to another. 
 
 • Goldschmidt, in the Zeitschr. f. H.R., Bd. 35 (1888), p. 11. 
 ' See below, Sec. 11. 
 
 ' See below, Sec. 10. 
 
 * Compare v. Liszt, loc. cit., 666. See note 2, p. 13, supra. 
 
16 SCIENCE OF LAW 
 
 In so far as legal science accomplishes this, it tends 
 toward and attains its theoretical object. Like every 
 other science, the science of law is in the first degree 
 an object in itself. It is an impulse of the human mind 
 to know the knowable, so far as possible, even though 
 it be recognized that a full apprehension of all things, 
 and particularly the highest things, is not within the 
 province of human understanding.' This impulse 
 toward knowledge corresponds to the sense for truth, 
 the ethical tendency leading to the true. The pursuit 
 of this tendency, the realization of this sense, and the 
 satisfaction of this inclination are not objects of curiosity, 
 or pleasure, but are direct impulses toward civilization 
 and the attainment of an expression in mankind of the 
 most important attributes of human nature. 
 
 Legal science pursues two practical ends alongside 
 of this theoretical design. "We know that the science 
 of law has for its purpose a contribution to an existence 
 and expression of law which will satisfy human interests 
 and necessities as they appear here and now. It is 
 delightful to soar in the ether of pure reason; but it is 
 better to labor for the welfare of mankind."'' This 
 practical labor which Windscheid indicates includes: — 
 
 1. The furtherance of the administration of existing 
 law ; and 
 
 2. Co-operation in the making of new law. 
 
 Law and its administration are necessary to make 
 possible the social life of man and a common effort 
 toward social progress. For the thorough maintenance 
 and observance of the law, within and without the 
 courts, the range and meaning of each legal principle 
 must be apprehended to the fullest extent. To secure 
 the proper application of the law, it is indispensably 
 
 ^ The generalizing impulse goes further than this. See Religion, below, 
 Sec. 6, p. 42. 
 
 ^ Windscheid, op. cit., p. 9. 
 
INTRODUCTION 17 
 
 necessary to attain a precise knowledge and description 
 of its whole theoretical content. Only by this accom- 
 plishment is possible any reconstruction of legislative 
 ideas. Without this knowledge there can be no adequate 
 expression of legislative purpose or any understanding 
 of the meaning of principles of customary law.' If in 
 the making of new law numerous ethical and economic 
 considerations, and also allowances of pure convenience, 
 must be entertained, yet the knowledge of the existing 
 law, whether here or elsewhere, will not be idle. 
 
 The scope of that part of legal science which is called 
 the dogmatic of the law, or dogmatic legal science, is 
 the formulation of a system of legal science by means 
 of definition and division, and a classification into this 
 system of existing legal principles found in the positive 
 law (legislation and custom) of a particular state, or one 
 or more divisions of a state, or a plurality of states. 
 It granges the positive materials of the law in system- 
 atically ordered and organized propositions, or dogmata. 
 
 In so far as it is the object of legal science to ascertain 
 the genesis of existing law, its evolution through its 
 causes, influences, phases, and epochs, and from this 
 material, to develop the sense and meaning of particular 
 legal principles, it becomes "historical legal science," or 
 legal history. 
 
 Although, as a matter of course, an academic and 
 literary exposition may be separately made of the 
 history of the positive law of every state, of every 
 people, and of every stage of development, yet there is 
 not to be perceived any essential opposition between 
 legal history on one hand and dogmatic law on the 
 other, or legal science in general. The historical con- 
 sideration and investigation of the genesis of a legal 
 
 • Compare the relevant passages in Windscheid, op. cit., pp. 10-14, 18, 19. 
 See infra, Sec. 12, 13. 
 
18 SCIENCE OF LAW 
 
 principle are rather an indispensable auxiliary to an 
 interpretation of dogmatic law. 
 
 II. — Natural Law, Philosophy of Law, and Legal 
 Science. ' 
 
 Natural law, the law of reason, or jus naturale, is 
 understood in various senses. 
 
 The usage of the Roman jurists implicated under 
 jus naturale elements which lay entirely outside of the 
 domain of law and belonged to the sphere of ethics.^ 
 In part it embraced also such legal principles as, by 
 reason of their having a more universal and unlimited 
 scope than the so-called jus civile of the Roman Quirites, 
 were contrasted with ancient Roman civil law in its 
 narrow sense, and were regarded as a part of the jus 
 
 The doctrine of the seventeenth century * annexed to 
 the ancient notions, a law of nature ( Naiurrecht) based 
 on religious ideas, which was to be a system of universally 
 valid and unchangeable legal principles.'' This view 
 reached its climax and greatest influence" in the 
 eighteenth century, although it still found adherents in 
 
 ^ Salkowski, Inst., p. 3; J. Kohler, in K. u. v. Holtz. Em. I, pp. 3-20. 
 
 ^ Jus naturale est, quod natura omnia animalia docuit, nam jus istud non 
 humani generis proprium est, sed omnium animalium, quae in coelo, quae in 
 terra, quae in mari nascuntur; kinc descendit maris atque feminae coniugatio, 
 quam nos matrimonium appellamus, hinc liberorum procreatio et educaiio: 
 videmus etenim cetera quoque animalia istius iuris peritia censeri. Inst. 1, 2, pr. 
 
 ^ Jus gentium does not mean international law {jus inter civitates) in the 
 teclinical sense (see below, Sec. 54), but general civil law. Compare Inst., 
 1, 1, 2; Quod vera naturalis ratio inter omnes homines constituit, id apud omnes 
 populos peraeque custoditur vocaturque jus gentium, quasi 4uo jure omnes gentes 
 utuntur. 
 
 * Concerning Hugo Grotius and his followers see Gareis, Institutionen des 
 Volkerrechts, sec. 5. 
 
 ° Chancellor v. Kreittmayr, the author of the Bavarian Landrecht of 1756, 
 says in the notes thereto (1, 2, 4, 4): "There resides in the laws of nature 
 the peculiar attribute of unchangeability. God himself cannot alter them." 
 
 ® Compare, O. Gierke, Naturrecht und Deutsches Recht (Rectoral address), 
 1883. 
 
INTRODUCTION 19 
 
 the nineteenth century.^ It was overthrown, or at least 
 pushed into the background,^ by the historical concep- 
 tion^ of the nature and genesis of law. 
 
 The hypothesis of an universal, unchangeable law 
 stands, as an ideality, in opposition to the necessity 
 of a conformability of law, corresponding to the demands 
 of the age and the state of culture of a people."* An 
 
 * Compare W. Snell. Naturrecht, Vorlesungen, 1857; A. Trendelenburg, 
 Naturreckt auf dem Grunde der Ethik, 1857; in pa^tic^lla^, however, H. 
 Ahrens, Naturrecht oder Philosophie des Rechts unddes Staats, 6th ed., 1870. 
 [This celebrated work of Ahrens appeared In French under the title Cours 
 de droit naturel. Translations have been made from the French into Italian, 
 Spanish, Portuguese, and Hungarian. The author states in the preface to 
 the sixth German edition that up to 1869 twenty editions of the work had 
 been published in the various languages. No translation of this work has 
 ever appeared in English. As perhaps one of the most representative monu- 
 ments of the Naturrecht standpoint, this work would no doubt prove to be of 
 peculiar interest to American readers in view of the remarkable position 
 which the natural-law conception has attained in political thought and as 
 reflected in judicial speech. It is still very common to find references to 
 "natural justice" and similar phrases, especially when there is room for 
 any arbitrium judicis. See also Lorimer, The Institutes of Law, a Treatise of 
 the Principles of Jurisprudence as determined by Nature; Taylor, Elements 
 of Civil Law; Smith, The Law of Private Right; Hastie, Outlines of Juris- 
 prudence; Lioy, Philosophy of Law, translated into English by W. Hastie; 
 W. S. Pattee, The Essential Nature of Law, or the Ethical Basis of Jurispru- 
 dence (Callaghan & Co., Chicago, 1909); Locke, Civil Government; Spencer, 
 Social Statics; Spencer, The Man versus the State; James Schouler, Ideals 
 of the Republic (Little, Brown & Co., Boston, 1908).] In opposition, see 
 F- Dahn, Rechtsphilosophische Studien (Berlin, 1883), p. 144. Compare 
 Kohler, in K. u. v. Holtz. Enz. I, p. 4, note 2. 
 
 ^ Compare Bekker, Ueber den Streit der historischen und philosophischen 
 Rechtsschule, Academic address, 1886. 
 
 ^ Savigny, Vom Beruf unserer Zeit fvtr Gesetzgebung und Rtchtswissen- 
 schaft, Heidelburg, 1814. 
 
 * "It is an ancient, never-ending dream of mankind that there is a peculiar, 
 rigid and unchangeable law. This law is thought to be a law of reason. What 
 is agreeable to the reason is supposed on that account to be law, and necessary 
 for all times, and in all places. This view is not that alone of the lay public. 
 It is also recognized in the manner in which it has ruled over science. It is 
 now regarded by science as error; but it has not been completely eradicated. 
 There exists only the reason of the individual man, who indeed learns with 
 difficulty not to take his reason for the reason. This holds for all departments 
 of human knowledge. It is true also of legal knowledge." — Windscheid, 
 Rectoral address, p. 7. See also Oertmann, op. cit., p. 105. The distinction 
 between lex naturalis, as human law, and lex ceterna, as an immutable law of 
 nature, was made by Thomas Aquinas, and further by his pupil Dante {de 
 monorchia I, 16), on which Kohler comments, Rechtsphilosophie, in K. u. v. 
 Holtz. Enz., I, p. 3. 
 
20 SCIENCE OF LAW 
 
 unchangeable law would presuppose a stable and uni- 
 versally similar state of civilization and similar con- 
 ditions of necessity in mankind. The idea of law in- 
 volves variation, in that it must be conformable to the 
 conditions of civilized life, on account of which it is 
 created and exists. The protection of the various in- 
 terests of life which law is intended to shield will not 
 be everywhere and at all times best and most securely 
 fostered by the same means. It results, therefore, as 
 must be the case, that the commands and prohibitions 
 created by a legal system must vary, the more as 
 economic views and necessities change, and as the in- 
 fluence of custom, and morals, varies. Thus the idea of 
 ownership was one thing in Rome and another in 
 Germany. Controversies exist as to the dissolubility 
 of the marriage tie; concerning constitutional, parlia- 
 mentary, and absolute government; the death penalty; 
 solitary confinement; state operation or control and 
 economic individuality; and bureaucratic and popular 
 courts. Countless questions relating to constitutional, 
 administrative, and private law required a different 
 answer a thousand years ago than today; and these 
 questions must be answered differently in England than 
 in Germany, and again differently in North America 
 than in China or Samoa. 
 
 This demonstrated impracticability of natural law, 
 or the law of reason, however humane, beneficent, and 
 ideal from the subjective standpoint, shows that in the 
 regulation of the external relations of mankind an 
 outwardly sustained authority, and proceeding from 
 this authority, a positive law suited to the time, the 
 place, the people, and the 6tate of culture, — an his- 
 torically acceptable and historically refined law, — ^alone is 
 serviceable. 
 
 This rejection of an asserted law of nature, or law 
 
INTRODUCTION 21 
 
 of reason, does not in any sense imply a renunciation 
 of a philosophy of law. Philosophy of law has for its 
 object to investigate the basis of the legal structure, 
 and to develop the necessity and the nature of legal 
 standards from the nature and history of mankind. 
 It has no concern, however, with the legal standards 
 themselves. It is the science of the nature of law, its 
 premises, its sources, its evolution, and its social 
 importance. It seeks to know the objective principles 
 of all legal systems and legal development. It exerts 
 itself to discover (but not to create) the whole positive 
 basis existing legal standards considered as historical and 
 mutable forms. It regards these standards as his- 
 torical variations of legal systems* apart from any 
 arbitrary assertion of ideality. It must be stated with 
 regret that, until the most recent times, treatises on 
 natural law and on philosophy of law have frequently 
 confused the two ; and it must be recognized as a service 
 rendered by Kant to legal science that he distinguished 
 natural law from the science of law by limiting himself 
 to the philosophical consideration of law.^ 
 
 III. — Politics and Legal Science. 
 
 Politics (Politik) is an activity or art dealing with the 
 knowledge of concrete governmental problems and their 
 solution through the exercise of governmental methods, — 
 the art of government. Considered as a science, politics 
 is systematic knowledge of the functions of a concrete^ 
 
 * E. J. Bekker is fully in accord when he says, in opposition to Bierling's 
 highly ideal but ethico-natural position: "The philosophical department 
 of legal science goes no further than the legal idea or to legal ideas, in the 
 discovery of which the comparison of the most diverse legal systems is in- 
 dispensable." — Zeitschr. f. vergleichende Rechtswissensckaft, Bd. I, p. 100. 
 
 ^ Compare E. Landsberg, Geschichte der deutschen Rechtswissenschaft, Hb. 
 Bd. I, Abt. 3, p. 503 (1898). 
 
 ^ This does not include the notion of the state itself. Another science, 
 the science of the state (staatswissenschaft), is concerned with the abstract 
 
22 SCIENCE OF LAW 
 
 state, and the ways and means of their execution. Poli- 
 tics is related to law in a double aspect ; it is at once an 
 object and a means of law. It is an object of the law, 
 in that the development of public and private law is 
 the function of every state. Accordingly the political 
 aspect of law^ forms a part of a legislative and ad- 
 . ministrative polity^ which the state must pursue guided 
 by considerations of expediency, — considerations de lege 
 jerenda. It is a means of the law, in that legal rules — 
 as for example, threats of punishment, prohibitions and 
 commands — are furthered by politics in the attainment 
 of the objects of economic, military, fiscal and other 
 branches of polity of the state. Legal science, therefore, 
 comes in contact with politics without either being a 
 part of the other; and legal science^ is of assistance to 
 politics in so far as it concerns itself with legislative 
 development. 
 
 problems of the state and their solution — that is to say, the science of the 
 state in general, its universal nature, its ends, etc. [The science of the state, 
 which is one of numerous departments of political science, is also called 
 abstract politics; see Century Diet., sub voce, Politics]. See Gareis, Das 
 allgemeine Staatsrecht, in Marquardsens Hdbch. d. off. Rechts, Bd. I, pp. 16, 17. 
 ^ RechtspoUtik. 
 
 ^ Gesetzgehungs- und Verwaltungspolitik. 
 
 ^ [The Germans classify Science of Law ( Rechtswissensckaft) into Jurispru- 
 dence, on one side, and Philosophy of Law, on the other. In this scheme. 
 Jurisprudence embraces the concrete elements of law, while Philosophy 
 of Law deals with its abstract and fundamental side. It is accordingly 
 possible for German writers to consider Jurisprudence not strictly as a science 
 of universal principles, but as something limited by time or place. They may 
 therefore speak freely of a Jurisprudence of modern times, or the Jurispru- 
 dence of a particular state. (See Sternberg, Allgemeine Rechtslehre, Part 
 First, pp. 123, 153; also, the diagram definitions of Friedrich (Die Bestrafung 
 der Motive und die Motive der Bestrafung, 1910) in Archiv fur Rechts und 
 Wirtsckaftsphilosophie, Bd. Ill, 2, 201.) This is the usage of the European 
 continent, and especially of France, where Jurisprudence Is practically 
 synonymous with case-law. It has also found a wide reception in our language- 
 Austin distinguished General Jurisprudence and Particular Jurisprudence, 
 making General Jurisprudence synonymous with Philosophy of Law (so- 
 called), and leaving Partictilar Jurisprudence to cover the remaining practical 
 field of the law local to each state. In this connection it is obvious, of 
 course, as has often been remarked, that if Jurisprudence is a science it can 
 hardly be localized as such. 
 
INTRODUCTION 23 
 
 Salmond (Jurisprudence, 2d ed., London, 1907) has adopted the primary 
 classification: Theoretical Jurisprudence and Practical Jurisprudence. This 
 solution is not an improvement. 
 
 Holland (Elements of Jurisprudence), -who has rendered our juristic termi- 
 nology much valuable service, insists on the scientific character of this study, 
 and says (p. 5): "The imposing quadrisyllable is constantly introduced into 
 a phrase on grounds of euphony alone." It may be, however, that this 
 solecism has fastened itself so tenaciously on our language that it may not 
 be possible to restrict Jurisprudence to the abstract side of the law, especially 
 in view of its practically world-wide technical and poptilar use in a concrete 
 sense. 
 
 The German use of Philosophy of Law (adopted by Austin) is also subject 
 to criticism. It subordinates philosophy to science, and in this conflicts 
 with the established conception of the related provinces of science and phi- 
 losophy. The use of the term "philosophy" in this connection is meaningless 
 except so fat as it implies the essential attribute of generalization character- 
 istic of philosophy. It assimilates a colloquialism which permits philosophy 
 to be used in a sense synonymous with process, method, arrangement, reason, 
 etc., and even as expressive of a state or habit of mind. Logamachy is, 
 always has been and always will be a necessary evil; and perhaps the only 
 true guide is relative convenience. Technical refinement and etymology 
 are frequently overridden. 
 
 While it is no doubt true that words are only labels for ideas, it is very 
 desirable to employ labels that are consistent with themselves in other 
 applications. 
 
 It is highly necessary that the divisions of legal study be ascertained. 
 The following classification, which ignores the conflicts above indicated, is 
 suggested: — 
 
 The Science of Law may be divided into a General Part and a Special Part. 
 
 (I) The General Part will include the absolute, theoretical, formal, abstract 
 and universal side of the conception of law. It will include that which should 
 be properly denominated Jurisprudence and which is variously called Philoso- 
 phy of Law, General Jurisprudence and Theoretical Jurisprudence. 
 
 (II) The Special Part will include all that is relative, practical, substantive, 
 concrete and local in the law. It is that part which is now so frequently 
 associated with the term ''Jurisprudence," as Particular Jurisprudence, Practi- 
 cal Jurisprudence, etc. (for example, "Anglo-American Jurisprudence," the 
 "Jurisprudence of the United States Supreme Court," etc.). 
 
 (I) The General Part of the Science of Law may be subdivided as follows: — 
 
 1. The theory of law; its origin, nature, functions and purposes. 
 
 2. The history of jural ideas, including history of the schools of juris- 
 prudence. 
 
 3. Juristic Survey. Juristic Survey may be again divided into the 
 following groups: — 
 
 (a) Analysis; 
 (6) Synthesis; 
 (c) Classification . 
 
 (II) The Special Part of the Science of Law may be divided into the fol- 
 lowing groups; — 
 
 1. Administration of justice; law in its practical and, concrete application. 
 
 2. History of law and legal evolution; dealing with the history of legal 
 ideas in their practical and material sense. 
 
24 SCIENCE OF LAW 
 
 3. System of law (the corpus juris). The system of law may be divided 
 into the following groups: — ■ 
 
 (a) Commentary (exposition); 
 
 (b) Criticism, (censorial) ; 
 
 (c) Divisions (classification). 
 
 It will be noted that the divisions on either side of the general and special 
 parts of the Science of Law are systematically contrasted. Treatises in either 
 department of the Science of Law do not confine themselves strictly as a rule 
 to these divisions. For example, in the General Part of legal science treatises 
 may and usually do deal with legal theory, legal history and juristic survey 
 at the same time. The character of the work is to be determined by the pre- 
 dominant division of treatment. It is the same with works in the Special 
 Part of the Science of Law, which may deal concunently with commentary, 
 legal history and legal criticism. It will perhaps be understood without 
 further explanation that the expressions "General Part" and "Special Part" 
 are not here suggested as substitutes for terms now employed. It is very 
 probable that the German usage will prevail. 
 
INTRODUCTION 25 
 
 SECTION 4 
 
 CONTENT OF JURISTIC SURVEY 
 Juristic Encyclopedia^ 
 
 Encyclopedia means a circle of related subjects, 
 parts or departments belonging to a certain science, 
 or to all sciences. It is a systematic survey of the objects 
 of study, — a panoramic, unified exposition of a science, — 
 through which a comprehensive, epitomized knowledge 
 
 ^ [Rechtsenzyklopddie. There is a singular poverty of this class of works 
 in the English language. Of juristic investigation (as opposed to legal dis- 
 cussion) there is none, or practically none, since efforts in this direction have 
 been of very limited expression, and have failed so far to exert any appreciable 
 influence on the professional mind anywhere in the domain of the English 
 law. Except to a small circle of students who may have read Mr. Hastie's 
 fragmentary translations of Palck and others (and have read, perhaps, with 
 little profit), and except to a limited few acquaintedwith the German material, 
 Juristic Survey is an unknown quantity; and the more comprehensive term 
 Jurisprudence, itself, may hardly be said to have among us a clearly defined 
 status of usage. Its position as a separate science is little better established 
 now than at the time when Austin waged an extraordinary battle with legal 
 empiricism, memorable for intellectual illumination but melancholy in 
 result. To the legal profession, Jurisprudence and Philosophy of Law are 
 little more than sounds, with an indefinite combination of shifting mental 
 overtones. To the law school, which since 1870 has assumed in America 
 ii leading position in legal education, they are inhospitable uncertainties, 
 unjustified disturbers of legal practicality, and things to be regarded with 
 suspicion. 
 
 The English law is submerged in an ocean of particular cases, in which flow 
 no guiding currents, but which rather is agitated by variable winds. If any 
 leading principle is to be extracted from this multiplicity, it may be said to 
 be that of individualism, which now is gradually being broken down by the 
 invading processes of judicial legislation in favor of social welfare. In that 
 part of the legal domain which may be influenced by considerations of social 
 ends, there is less need and smaller possibility of authoritative reconcilement 
 of these judicial conflicts than in that wider range of individual and social 
 activity in which the kind of regulation is a matter of indifference, but the 
 certainty of the rule is paramountly necessary. The former legal activities are 
 the proper subject of social, ethical and economic evolution and are not a 
 matter of definite arbitrament for all ages; the latter, however, peculiarly 
 exhibit, in the vast mtiltiplication of our case law, the burden (not much 
 longer to be endured) of a disorganization and a strife which can only be set 
 
26 SCIENCE OF LAW 
 
 indispensably necessary in the pursuit of a science in 
 detail, is acquired.^ 
 
 Juristic encyclopedia, accordingly, is a systematic, 
 unified survey of the means of peaceable adjustment of 
 the external relations of mankind and social communities. 
 In the attainment of its ends, it is necessary that an 
 encyclopedic exposition be systematic in method. 
 It starts from a central legal notion and its development, 
 to which constant recurrence is had. By this method 
 the individual subjects or departments of the law (as, 
 for example, criminal law, the law of bills of exchange, 
 or administrative law) are exhibited as branches of the 
 law; and the relation as well as the line of demarcation 
 of the separate parts of legal science is shown. In the 
 survey of the whole, in the centre of which lies the notion 
 of law, the dependent parts must be so delineated that 
 the periphery of the circle is indicated by the central 
 notion, from which a delimitation of law from the cog- 
 nate departments of morals, religion, etc., will appear. 
 
 Although the scope of Juristic Survey thus sepa- 
 rates it in its objects and nature from cognate studies, 
 yet its content is such that it admits of differences in 
 
 aside by an exaltation of that neglected study of the form of the law without 
 which no enduring reform can be accomplished. 
 
 Of the works most nearly corresponding in our language to the Juristic 
 Survey o£ the Germans, see Salmond, Jurisprudence, 2d ed., London, 1907; 
 Austin, Lectures on Jurisprudence, or the Philosophy of Positive Law; Terry, 
 Leading Principles of Anglo-American Law (T. & J. W. Johnson & Co., 
 Philadelphia, 1884); Holland, Elements of Jurisprudence, 10th ed., 1906: 
 Markby, Elements of Law, 6th ed., 1905.] 
 
 ^ The word "encyclopedia" is derived from 4yKVK\os (circular), and TratSefa 
 (instruction, discipline). The modem usage of the expression, the principles 
 of which were already applied by the Greeks to indicate the same thing (see 
 Quintilian, Inst. orat. I, 10, 1), was derived from France in the middle of the 
 eighteenth century. [The manifest difficulty of the use of this term in this 
 connection in our language is that it will be associated with such works as 
 the. Encyclopedia of Law, and other similar compilations of extensive bulk, 
 based on an alphabetical arrangement and not on an internal relation of 
 subject-matter, which by reason of their wide use in the legal profession have 
 established in the popular mind notions difficult to reconcile with the limited 
 bulk and the systematic arrangement of a Juristic Survey.] 
 
INTRODUCTION 27 
 
 method. It may be, first, quantitatively different. 
 It may embrace the law of a particular state, at a 
 particular time, etc.; or it may embrace the law of 
 various civilized states, etc. Again, it may present 
 qualitative differences, and be formal' or external. 
 In this aspect it may deal solely with particular legal 
 studies and divisions of the law, but not with existing 
 legal rules, commands and prohibitions in their appli- 
 cation; or it may be materiaP or internal — ^that is, 
 dealing dogmatically with estabUshed legal rules appli- 
 cable to the framework or structure of the law. 
 
 The present work seeks first to be formal, although 
 the framework is supplemented by suggestions of legal 
 rules as far as this is necessary for the fullest attainment 
 of the objects pointed out at the beginning. 
 
 The literature of Juristic Survey is amply indicated 
 in the following works, which are named in preference 
 to numerous older books: — • 
 
 1. A. Friedlander, Juristische Enzyklopddie , Heidel- 
 berg, 1847. (Extensive notes on the literature, pp. 
 9-42.) 
 
 2. L. Goldschmidt, Enzyklopddie der Rechtswissen- 
 schaft im Grundriss, Heidelberg, 1862. (Literature, 
 pp. 4-6.) 
 
 3. L. Arndts von Amesberg, Juristische Enzyklo- 
 pddie und Methodologie, 10th edition of Erwin Grueber, 
 Stuttgart, 1901. (Literature, pp. 7-9.) 
 
 4. A Merkel, Juristiche Enzyklopddie, 2d edition 
 prepared after the death of the author by R. Merkel; 
 
 ' The Juristic Survey (encyclopedia) o£ Amdts von Amesberg (99 pages) 
 is an example of this class. 
 
 ^ For example: v. Holtzendorff, Enzyklopddie der Rechtswissenschaft, 
 6th rev. ed., edited by J. Kohler, 1904; also Birkmeyer, Emyklopadie der 
 Rechtswissenschaft, written by A. Amdt, F Bemhoft, K. Birkmeyer, E. 
 Grueber, Fr. Hellmann, P. Hinschius, H. O. Lehmann, F. Leonhard, K. v. 
 Liiienthal, F. v. Liszt and Fr. Stein. (2d ed., Berlin, O. Haring, 1904.) 
 
28 SCIENCE OF LAW 
 
 3d edition, 1904, Berlin (J. Guttentag, Ges. m. b. H.). 
 (Literature, pp. 10-21.) 
 
 None of these lists contains J. Kohler, Einfuhrung 
 in die Rechtswissenschaft, Leipzig, A. Deichert, 1902. 
 [2d revised and enlarged edition, 1905. See also Kohler, 
 Lehrhuch der Rechtsphilosophie ( Verlages Dr. Walther 
 Rothschild, Berlin, 1909).] 
 
PART FIRST 
 LAW AND ITS SOURCES 
 
 SECTION 5 
 
 LAW IN GENERAL 
 
 Law is the (means of) peaceable regulation of the 
 external relations of persons and their social commu- 
 nities among themselves. It is a regulation {norma 
 agendi), adjusting or standardizing through commands 
 and prohibitions. Its object is the adjustment of the 
 external relations of mankind and social communities. 
 It does not concern itself with internal activities which 
 belong to the domain of morals or religion.* Its end and 
 purpose is such a method of influencing these relations 
 by commands and prohibitions that it may be justly 
 called peaceable regulation. It may involve, though not 
 by necessity, measures of coercion. It is denominated 
 peaceable regulation even though there be a possibility 
 
 ^Regarding the notion "law,'' see E. J. BekkerintheZeiijc/ir. f.vergl. Rechis- 
 wissenschaft, Bd. I, p. 95; also Felix D^hn, ibid., Bd. Ill, p. 8. Concerning 
 the term "law," see the article " Recht" by Moritz Heyne in J. and W. Grimms' 
 Deutsches Worterbtich, Bd. VIII, serials 2 and 3 (1886-87), columns 364^06, 
 and particularly column 442; and also Kluge (Jena) in v. Kirchenheim's 
 Zentralblatt far Rechtswissenschaft, Bd. VII, p. 377 (1888). On the derivation 
 of "Recht," see K. von Amira, Grundriss des Germanischen Rechis, which 
 is a separate reprint from Paul's Grundriss der Germanischen Philologie, 
 2d ed., sec. 4, p. 7 (1901). 
 
 [The author's definition of law is: Das Recht (i. objekt. S.) ist die Friedens- 
 ordnung der dusseren Beziehungen der Menschen und ihrer Gemeinivesen 
 iuntereinander. It will be observed that a slight liberty has been taken 
 in the translation of this definition. Law may be considered either as a 
 means or as £& result. Friedensordnung in like manner is ambiguous. The 
 liberty taken by the translator is, however, only verbal, since the context 
 clearly indicates that the means and not the restdt is intended.] 
 
30 SCIENCE OF LAW 
 
 and even a necessity of the maintenance of legal order, 
 in the extremest cases, by supreme force, as in the event 
 of insurrection, or war. It is therefore peaceable regula- 
 tion, inasmuch as its means {i. e., commands and prohi- 
 bitions) are first of all peaceable, and as the establish- 
 ment and maintenance of peace and tranquillity are the 
 conditions' necessary to a development of human powers, 
 and the progress of civilization. 
 
 Though this peaceable regulation be described as con- 
 formable to reason, one must not by any means regard 
 the particular rules of this peaceable regulation as based 
 on reason, and take a natural-law viewpoint. Assertion 
 can go no further than that this peaceable regulation, 
 considered in the abstract, — ^the existence of law as 
 such, — whether appearing as command or prohibition, is 
 a postulate of human thought and human nature, 
 derived from the external necessities of life, from human 
 reason and from the legal and social sense. 
 
 The relations which constitute the object of this regu- 
 lation are relations of individual persons among them- 
 selves, as well as relations of communities of persons 
 (so far as these communities have interests which 
 are different from those of individuals or natural 
 persons) . 
 
 If it be added, that there are also relations with refer- 
 ence to things and to property as means for the satis- 
 faction of necessities, then this addition serves for illus- 
 tration of the definition but not for its completion ; inas- 
 much, as commands and prohibitions which legal order 
 employs, and by which it is established, operate, as is 
 self-evident, only against persons. The interferences 
 with and dangers to peace and security, against which 
 legal order operates, are thinkable only as acts, positive 
 or negative, against persons, or the community. It is 
 
 ^ For the literature of this much-controverted notion see note 1, p. 33, 
 infra. 
 
LAW AND ITS SOURCES 31 
 
 true that things have relation, but for the purposes of 
 law these relations are of secondary importance. Com- 
 mands and prohibitions can not operate against things, 
 but only on human will. 
 
 Commands and prohibitions create limitations on the 
 scope of the will. Through this limitation, persons and 
 social communities attain, as a product of law, rights 
 (facultas agendi, powers, titles). 
 
 The nature of a legal right is such that it is always a 
 definite interest, actually entertained by a person or a 
 community. For the protection and guaranty of these 
 interests, legal order expresses its commands and prohi- 
 bitions, and through this guaranty interests become 
 legal interests (legal rights).' 
 
 Interests, considered as facts, arise directly from 
 egoism, and are nothing other than subjectively perceived 
 relations^ (derived from necessity), between the person 
 feeling the necessity, and an object; that is, the object 
 for which the necessity exists and is felt, and through 
 which, by use or consumption, the necessity, actually or 
 
 ^ The expression "legal relation" ( Rechtsverhdltnis) means such a relation 
 as is governed by legal order. According to Windscheid, there are not only 
 such legal relations as are governed by legal order, but also such as are 
 created by it. See Windscheid, Pand., sec. 37. It would appear, however, 
 that there can be no legal relation which is not at the same time based on a 
 condition or relation of fact, inasmuch as there are no interests which are 
 first created by legal order and which did not already exist in fact. There 
 are no legal relations without interests. The expression "case" (inlaw) (Rechts- 
 fall) means a concrete legal relation between a definite subject and object. 
 "Legal institution" (Rechtsinstitut) means the totality of rules which elevate 
 a condition of fact to a legal relation, as a theoretically derived abstraction. 
 Thus one speaks of the legal institution of marriage, by which is meant 
 the totality of rules through which the actual conditions of interest which 
 lie at the basis of wedlock attain legal protection — that is to say, become 
 legal relations. Compare Windscheid, Pand., sec. 37. 
 
 ^ Beziehung (relation) is derived from "sich heziehen" (to draw, refer or 
 relate to) and means, to perceive oneself in a certain relation to an object^ 
 that is to say, the bearing or position to the object made use of. The same 
 thing is indicated by the word Verhdltnis (connection), to show the means 
 or method by which a person or thing is related to another, — by application, 
 enjoyment, use, service, etc. Compare Weigand, Worterbuch, -sub voce 
 Verkalten. 
 
32 SCIENCE OF LAW 
 
 probably, will or may be satisfied, in whole or in part. 
 Thus the feeUng of want, called hunger, is a vital interest 
 of a person in the food within his reach; and the sensa- 
 tion of cold evokes a vital interest in the cloak before 
 him. 
 
 It is self-evident that the hungry person can enjoy 
 his food without the existence of legal order, and the 
 cloak will give its warmth even though no legal rules 
 grant its use. Interests may exist even without law, 
 and, moreover, many such interests are beyond the 
 compass of legal protection. The interest that man has 
 in the coming and going of the years, in the weather, the 
 friendly esteem and thought of his neighbors, in the 
 beauty of the sunrise, and the' stellar firmament, — all 
 such interests are beyond the protection of the legis- 
 lator, as much as they are beyond his creation. They 
 are created by the conditions of life, and the living 
 satisfy these interests in so far as necessities are actually 
 gratified. Legal order, however, provides by prohibi- 
 tions that the actual satisfaction of these interests shall 
 not be interfered with by others. 
 
 Where co-operation of others is actually necessary to 
 the satisfaction of a necessity in a protected interest, 
 it provides by commands that this co-operation shall 
 follow. Legal order says to the hungry person, "No 
 one shall interfere with you in the enjoyment of your 
 food," and, as we express it, protects and guarantees to 
 him the interest which he has in the food. It says to 
 the man who feels the cold, "No one shall take your 
 cloak," and protects, by prohibition, the interest which 
 he has in the garment. The man who advances 100 
 marks to another in a time of need naturally has an 
 interest in receiving a return of the money, when the 
 time for payment has arrived. Legal order protects 
 this interest, in that it gives to the lender a right of 
 action for recovery, and commands the borrower to 
 
LAW AND ITS SOURCES 33 
 
 repay the money. In that legal order comriands the 
 conjugal duty of married persons, and prohibits sexual 
 relations with third persons, it protects by command 
 and prohibition the interest of conjugal affection. 
 
 Relations or interests are not created by commands 
 and prohibitions (or, in a word, by a rule of law) any 
 more than a garden wall makes a garden. The interest 
 is simply limited by the rule, within which limits it is 
 protected and guaranteed, and outside of which it is not 
 guaranteed or protected. The perpetual controversy 
 whether law protects interests as such, or only the 
 will to have the object of the interest, may be answered 
 in this way: The protection of the will is a means, and, 
 indeed, as it is protection afforded by a rule, is the 
 characteristic instrument of the law for the protection 
 of interests. Interests, however, are the essence of 
 legal rights. Just as the space inclosed and protected 
 by a garden wall can not be deprived of its character as 
 space by the wall, so also in "protected interests" the 
 interest does not cease to exist by withdrawing the pro- 
 tection.* 
 
 ^ With reference to these important controverted questions, the answer 
 to which has created a profound conflict in niodern legal science, the pertinent 
 matter is found in the writings of Binding, Brinz, v. Ihering, Kohler, v. Liszt, 
 Seydel, Thon and Windscheid. Compare Binding, Die Normen und ihre 
 ilberireiung, Leipzig, 1872, 1877, and Handbuch des Strafrechts, Leipzig, 
 188.5, sec. 30: v. Brinz, Pandekten, sees. 18, 123; v. Ihering, Zweck im 
 Recht, 1st ed., Bd. I, p. 321; Kohler, Paientrecht, p. 500, and " Recht und 
 Prozess" in Grunhut's Zeitschr. f. Privat- «. offentl. R. d. Gegenwart, Bd. 
 XIV, p. 1 : V. Liszt, Lehrbuch des Strafrechts (1884), sec. 85, and Zeitschr. 
 f. d. gesamte Strafrechtswissenschaft, Bd. VI, p. 664; Thon, Rechtsnorm und 
 subjektives Recht, Weimar, 1878; Windscheid, Pand., sees. 37, 38, and also 
 his Rectoral address 1884 (sMpro), particularly p. 5. This matter is treated 
 more in detail in the following writings of the author, as follows: "Die 
 Privatrechtssphdren im modernen Kulturstaat" in Hartmann's Z^tisc/ir. j. d. 
 offentl. Recht, Bd. Ill, p. 137 (1877); "Das juristische Wesen der Autorrechte," 
 in Busch, Arch. f. Theorie und Praxis des a. d. Handels- und Wechselrechts, 
 Bd. 35, p. 185 et seq., particulariy pp. 195, 200 (1877) ; AUgemeines Staats- 
 recht, in Marquardsen's Handbuch des offentl. Rechts, Bd. I, sec. 1 (1883), 
 in which the author endeavored to construct public as well as private law 
 on the above theory of "protected interests." 
 
34 SCIENCE OF LAW 
 
 As against third persons who are prohibited by rule 
 from interfering with an interest, or who are com- 
 manded to carry out an interest of another by acting 
 affirmatively, there appears an act of the will. The 
 performance of this act permitted by law becomes a 
 protected interest to such an extent that the person^ 
 so protected is allowed legally to carry out his interest 
 by his will, even against the will of another. This view 
 legitimately requires that a "protected interest" be 
 designated as a faculty, power, or facultas agendi, and 
 accordingly that rights be defined as above shown. 
 
 The real nature of protected interests is not expressed 
 by making prominent the element of legal permission 
 to act. One may will that which he can not legally 
 accomplish by force of law.^ That which may be effec- 
 
 ^ Interessentrdger. 
 
 ^ A manufacturer may certainly require of his employees labor in excess 
 of his contract of employment, the factory regulations, etc. He may demand 
 it, that is, he may will it, and may exert his will. Such demand is not 
 prohibited, and he has perhaps also an active interest in such overwork. 
 The question is, Will the employees perform what they are not legally bound 
 to do? They may so perform, and the employer makes a not purposeless use 
 of his power, in that he reckons on it that necessity, the fear of poverty, and 
 similar motives, will prevail to occasion the extra service. Therefore the 
 employer has the liberty to will and an interest in, but not a right to, extra 
 service, if the law — that is, the standard — does not guarantee his interest 
 through a command on the employee. That which is not prohibited, such 
 as a liberty, is not, therefore, in itself a right. A liberty does not become a 
 right until it and the interest involved therein are guaranteed by legal stand- 
 ard — that is, by means of command or prohibition, or both. 
 
 In that interests are designated as being the substance of rights, it is 
 necessary to observe that it is possible to consider a double interest, or 
 interests regarded from two sides. Accordingly one may say: (1) The subject 
 has an interest in an object which is denoted to the faculties of perception 
 as belonging essentially to the satisfaction of a want; as, for example, a 
 hungry person has an interest in a loaf of bread; a person suffering with cold 
 has an interest in a cloak; and the employer has an interest in the performance 
 of the labor of his employees; (2) the subject has an interest only in the 
 undisturbed exercise of his will, and consequently the object of the interest 
 would be always a relation to persons, and having an importance in that 
 the act of will directed to the object of the necessity, as the eating of bread, 
 the wearing of the cloak, or the employment of labor, is not interfered with. 
 
 The last notion might upon first impression appear the correct juristic 
 conception, but the correction would be empty of content and lead to pure 
 
LAW AND ITS SOURCES 35 
 
 tually -willed is a legally guaranteed interest. It is also 
 called "legal advantage" (Rechtsgui), a term which is 
 employed as well to designate the interest (in the sense 
 indicated) as the object of the interest. It may also 
 be employed in the abstract as well as the concrete 
 sense. For example, one may speak of the legal advan- 
 tage of ownership, which is the abstract usage; or of a 
 concrete legal advantage, as in the case of a protected 
 interest of a definite person in a definite object. The 
 legal protection afforded by the law, or norma agendi, is 
 therefore the protection of legal advantages. Interests 
 become legal interests, legal advantages, or rights, 
 through this protection, based on commands and prohibi- 
 tions. 
 
 Nirvana. Not even the Indian pillar-saint has only an interest not to be 
 disturbed, but has positive ends peculiar to himself. A sleeping person has 
 not only an interest not to be dist\irbed in his sleep, but also a positive 
 interest to find refreshment in sleep. In rights, also, we may truly recognize 
 a practical content: the interest in those objects which are the means of the 
 satisfaction of wants, i. e., movable and immovable things, co-operation by 
 word and deed, etc. Accordingly we must consider corporeal things (Giiter) 
 in an economic sense, and interests in the first sense pointed out above, and 
 seek to classify rights according to the difference of these objects. See 
 below, sec. 14. See also Binding, Hdbch. d. Strafrechts, sec. 30, note 8. 
 
36 . SCIENCE OF LAW 
 
 SECTION 6 
 
 LAW COMPARED WITH MORALS, RELIGION, EQUITY 
 AND SOCIAL CONVENTION^ 
 
 There is a similarity in these five ideas, in that rules 
 for human conduct^ flow from them. In certain stages 
 in the progress of civilization , the difference in the 
 sources of these rules has been overlooked and mis- 
 understood. Legal rules have been confused with moral 
 and religious commands.^ This confusion has often 
 
 * Compare Bemhoft, in Zeitschr. f. vergleich. Rechisivissenschaft, Bd. II, 
 p. 253; F. Dahn. ibid., Bd. Ill, p. 8. 
 
 ^ "A thousandth part only of our lives pertains to the laws; the remainder 
 is governed by custom and the opinion of society." — Leo N. Tolstoi (Luzerne. 
 Ausgabe Reclam Nr. 1657, p. 37). This point is made by Kohler in Shake- 
 speare vo dem Forum der Jurisprudenz (1883), p. 71, note 3. Our actions 
 are guided by rules of law, morals, religion, justice and social convention, 
 but frequently also by entirely different things, as opportunism, scientific, 
 technical and economic considerations, feeling, etc. The last motives of 
 conduct are not rules. So far as they may not be considered as emanating 
 from the sources above mentioned, they do not enter as binding authorita- 
 tively on the will, and in themselves they do not exhibit duties. There may, 
 however, lie a violation of legal, moral or other duty in the disregard of a 
 rule considered from a scientific or technical standpoint, as, for example, 
 the disregard of a rule of medical practice. 
 
 ^ Failure to discriminate between the different kinds of rules is an ancient 
 error and one arising from various causes. Even the Decalogue (Mos. I, 
 cap. 20), which is, as said by v. Holtzendorff (Hdbch. d. Volkerrechts, Bd. I. 
 p. 196), "the fundamental document of the civilized world, the most universal 
 and most accepted standard of human duty, and the basis of the morally 
 practical education of nations; magnificent in its simple, uninvolved brevity," 
 contains at once legal, moral and religious rules. In fact, the whole Mosaic 
 legislation embraced all manner of rules governing clothing, food, medicine, 
 building, festivals and other regulations of a religious, juridical, moral and 
 police character. Similar lack of discrimination is to be found in the ancient 
 Indian law, in Manu, Yajnavalkya and Narada; concerning which compare 
 in particular Julius Jolly, Recht und Sitte, in Georg Buhler's Grundriss der 
 indo-arischen Philologie und Alteriumskunde, Bd. II, Heft 8, p. 1 (Strasburg. 
 1896). The code of Manu, which expressly points out that it is a means of 
 eternal bliss, and establishes for mankind a theory of eudcemonism, contains 
 not only its eighteen categories of law, but also manifold rules of morals and 
 deportment, political counsels, etc. Thus the laws of Manu elevate the 
 requirements of deportment to a level of juridical commands. The bearing 
 
LAW AND ITS SOURCES 37 
 
 been a matter of great consequence to humanity. While 
 the correlation of these five sources of rules, among 
 themselves and with the unity of civilization, is not 
 to be ignored,^ yet their logical distinction must be 
 determined, in order to establish the limits of the notion 
 of law, as opposed to related provinces, and in order to 
 arrive at methodical clearness. 
 
 1. Law regulates only the external relations of men 
 and communities. An external authority {i. e., outside 
 of the active ego) is always necessary for the creation 
 of legal rules as well as for their execution; that is to 
 say, for the establishment of law and the administra- 
 tion of justice. This authority (which is of the com- 
 munity) ^ is one which does not recoil from the applica- 
 tion of force. ^ Concrete compulsion is not necessary as 
 the object of a particular legal rule ; but law nevertheless 
 is excluded from those human activities where force is 
 not possible. The design of the law is the establishment 
 
 of children, their nurture, and the diligent care of the household, are expressly 
 declared to be the duties of the wife. (Manu IX, 27.) Indeed, the lawgiver 
 raises himself to such a height as to lay down this rule for priests: "Let 
 him wed a female free from bodily defects, who has an agreeable name, 
 (the graceful) gait of a Hamsa or of an elephant, a moderate (quantity of) 
 hair on the body and on the head, small teeth, and soft limbs." — Manu III, 10. 
 With .respect to this and similar well-intentioned counsels considered as 
 rules, see J. Jolly, Recht und Sitte, p. 59. Concerning the confusion of moral 
 and legal rules in the Moslem law, compare v. Tornauw, Die Disputation 
 der Sklavin Husniy^h, in Zeitschr. f. vergleich. Rechtswissenschaft, Bd. IV, 
 p. 472; also Das Erbrecht nach den Verordnungen des Islam, ibid., Bd. V, 
 p. 116. See also Kohler, ibid., Bd. V, p. 384. 
 
 * Such a connection distinctly appears where law opposes the violation 
 of morals, or raises morals to an authoritative standard. Compare B.G.B., 
 sees. 138, 226, 817, 819, 826; Einf. G. z. B.G.B., art. 30. [Thus, "a juristic 
 act which is contra bonos mores is void." The question of what is contra 
 bonos mores is settled by recourse to prevailing public opinion (B.G.B. 138).] 
 
 2 This is not to be stated more forcibly than in the language of Windscheid: 
 "Law is not what I conceive to be the law, but is that which the Community 
 of which I am a member recognizes as law to the extent that it has pro- 
 nounced it." — Rectoral address, p. 7. 
 
 * Binding, Der Rechtszwang (lecture March 17, 1888, Vienna) (Appendix 
 to " Normen," 2d ed.). 
 
38 SCIENCE OF LAW 
 
 and maintenance of that external peace and security- 
 necessary in the striving for and attainment of the 
 destiny of mankind. In this sense it means external 
 order considered as a condition of life and as a conse- 
 quence of law, and not a totality of legal standards 
 (rules) . 
 
 Commands and prohibitions which are established by 
 law (or, more correctly stated, which are derived from 
 the sources of law, and make standards) create, in favor 
 of those whose interests are to be protected, titles (or, 
 in the prevailing usage, rights and powers). When 
 directed against others they are called claims (Ans- 
 priiche).^ The conditions established by such titles 
 and claims are protected by law by a variety of remedies 
 such as suits (Klagen), pleas (Einreden), the right of 
 self-help (Selbsthilje) , self-defense (Notwehr), rights of 
 necessity ( Notstaitd) , protest {protestation, see infra 
 sec. 15, IV, 2), etc. They culminate in the regulated 
 use of force as in judicial execution, police force and 
 military execution. 
 
 This realistic tendency of law does not derogate from 
 the ideals of life and humanity. It is necessary in order 
 that law may realize its purpose and to make room for 
 the aspirations of civilization. Indirectly, law also has 
 a great many ideal ends in the striving for which the 
 dominant community establishes and maintains stand- 
 ards. 
 
 2. Morals^ (Sittlichkeit) regulate the internal rela- 
 
 ^ Windscheid, Pand., sec. 43, and compare below, sec. 48, v (at the end). 
 
 ^ Salkowski, Instiiut., sees. 2, 27, I. 
 
 According to a usage of speech not here of further interest, "morals" and 
 ■'rights" are denoted together as "ethics": ethics being understood as that 
 of which morals and right are parts, — conformability to law in the free activity 
 of men, or the necessary content of the standards for the development of 
 mankind. [According to Kant, pure morals is the science of the necessary 
 laws which condition free will, while ethics is that part of morality which is 
 influenced by feeling, inclination and passion. Hegel limits the term "moral," 
 
LAW AND ITS SOURCES 39 
 
 tions^ of men (i. e, their inclinations, feelings and ideas), 
 operating on external relations only in so far as they 
 are the expression of internal relations; or conversely, 
 so far as they generate or influence such internal condi- 
 tions. The object of morals is the perfection of the 
 individual through himself, and thereby the perfection 
 of mankind. The morally acting and morally thinking 
 man recognizes that he is a member of mankind, and 
 feels a sense of obligation to contribute through his own 
 perfection his share in the attainment of the destiny of 
 the individual as well as of humanity in general. 
 
 to the private duties of men as distinguished from their civil duties. "When 
 St. Crispin steals leather to make shoes for the poor, that act is moral (moral- 
 isch) and wrong (unrechtlich) , — a remark which explains Hegel's use of 
 ntoralisch better than much commentary." — David G. Ritchie. 
 
 There is much confusion in the use of the terms "ethics" and "morals," but 
 an adherence to the etymological distinction is not only serviceable on its own 
 account but appears also to furnish a satisfactory distinction in fact. Ethics 
 ^dos (character), as distinguished from edos (habit) may be applied 
 to the fundamental nature and investigation of those rules of conduct which 
 implicate a free will; while morals (from Mos, manner, custom) may be 
 applied to such rules of conduct in actual practice. Whether these investi- 
 gations may be elevated to a scientific basis — which is denied by Sidgwick 
 and asserted by Wundt — is a matter of indifference to the distinction. This 
 usage is also that which Austin proposed in an essay projected by him on 
 "the principles and relations of law, morals and ethics; meaning by law, 
 positive law; by morals, positive morals; and by ethics, the principles 
 which are the test of both."— Preface to Austin, Jurisprudence, 4th ed. 
 (1873). pp. 17. 18.] 
 
 * [To say that morals regulate man's internal relations, while law regulates 
 his external relations, would seem to employ a distinction which is inaccurate 
 and misleading so far as it can be said to have any meaning at all. Morals 
 is not limited to subjective states, nor is law confined to objective matters, 
 and there is a great variety of matters which are at once the proper subjects 
 both of law and morals. Criminal law in particular affords many concrete 
 examples of each of these objections. The spheres of law and morals are 
 intersecting circles, and the matters upon which they operate do not differ 
 essentially either in degree or kind. There appears to be no reason other 
 than that of practical expediency why either sphere should not be extended 
 to include the other. The point of distinction between law and morals, 
 however, remains unaffected — that the immediate force governing a moral 
 act is an internal conviction, while in a legal act the moving factor is originally 
 external, although when apprehended it likewise becomes, of course- an 
 internal force.] 
 
40 • SCIENCE OF LAW 
 
 The ethical destiny of humanity is the point of con- 
 tact between morals and religion. Religion^ and phi- 
 losophy^ coincide in the idea of development of the 
 external life; in the capacity for and necessity of this 
 development; accordingly, also, in the idea of improve- 
 ment of the individual and the species; and in an 
 approximation toward perfection. The fundamental 
 principle of human reason {i.e., orderly generalization 
 under higher and more general notions) has here also its 
 significance. 3 Yet it involves in the domain of morals, 
 in the first instance, a subordination and surrender of 
 inclination; a motive for the generalization; and a har- 
 monious relation between this surrender to the whole, 
 and the maintenance of an internal perfection of the 
 self as a part of the whole."* On this account, therefore, 
 duties exist in morals, — moral obligations of the self 
 against itself and against conscience, — but no titles, or 
 claims against others. 
 
 ^ 1 John 3. 2: vvv r^Kva BcoO .... H/jlolol a(n-ip iad/xeva; Paul (Ep. to 
 Philippians, iii. 20, 21): Ss (Itjo-ovs XpL<TT6s) /X€Ta(rx7?M'^T/(r€t r6 ffQixa ttjs 
 TaireLVix}(T€0}S TjfxuJv, els t6 yev4<r$aL a&rb a-ij^ifiopcfyop rtp (rtb/j.arL rijs dd^rjs avrov, 
 Kara tt)v iv^pycLav toO dTL/vaadai a&rbv Kal uwoTd^aL iavru) tA irdvra. 
 
 ^ Compare Immanuel Kant, collected works, published by G. Hartenstein, 
 Bd. V (1867), Kritik der prakt. Vernunft, p. 86, and Kritik der UrteilskrafU 
 sec. 83, p. 442 ei seq., particularly p. 445; Fichte, Uber die Bestimmung 
 des Gelehrten und seine Erscheinungen im Gehiete der Freiheit, I; Felix Dahn, 
 in Zeiischr. f. vergleich. Rechtsw., Bd. Ill, p. 5; W. Munzinger, " Erbrechtliche 
 Studien" (lecture) (Basel, 1874), p. 23; Gareis, Privatrecktssphdren, in 
 Hartmann's Zeitschr. Ill, p. 140 et seq. and 153, and the same author, 
 Irrlehren uber den Kulturkampf (Deutsche Zeit- und Streitfragen, 1876), pp. 7, 8. 
 opinion difEers as to whether the moral law admits of an absolute (or objec- 
 tive) content, and if it does, what this content is. Sigmund Exner, in his essay. 
 Die Moral als Waffe im Kampf urns Dasein (Vienna, 1892), postulates an 
 objective content of morals; namely, one furthering the maintenance of 
 human society, without regard to the subjective will of the individual. The 
 explanation of Exner regarding the feeling of pleasure with which every 
 sound human society approves a moral act, and the bitter feeling of dis- 
 pleasure which it shows toward an immoral act, is in agreement with the 
 point above touched upon, concerning an inborn sense of order, and "the 
 life for and through others." 
 
 ^ Compare F. Dahn, Die Vernunft im Recht. See sec. 2, notes pp. 5, 6. 
 
 ^ The principle of love, for this reason, governs in morals, — the absolute, 
 independent concurrence of the interest of the one with that of others. 
 
LAW AND ITS SOURCES 41 
 
 The authority of morals is not external, but internal. 
 It is a conviction supported by various influences which 
 cultivate or afEect conscience. This conviction {i. e., 
 feeling, fides, or motive) is alone of significance in the 
 moral valuation of an act. 
 
 "What is essential in the moral worth of actions is 
 that the moral law should directly determine the will. 
 If the determination of the will takes place in con- 
 formity indeed to the moral law, but only by means of 
 a feeling no matter of what kind, which has to be pre- 
 supposed in order that the law may be sufficient to 
 determine the will, and therefore not for the sake of the 
 law, then the action will possess legality but not 
 morality."^ 
 
 Force, therefore, is not applicable in the moral valua- 
 tion of acts. The motive is the important thing. Convic- 
 tion itself must lead the way. The moral law mustdevelop 
 its own recognition. The end of moral conduct is the es- 
 tablishment and maintenance of a harmony of inclination 
 and purpose with the objects of human existence.^ 
 
 ^ Kant, Kriiik der prakt. Vernunft (Hartenstein ed.)I. 1. 3, p. 76 [this 
 excerpt is taken from the excellent English translation of Thomas Kingsmill 
 Abbott (Longmans, Green, & Co., 1909)] ; also Einleitung der Metaphysik d. 
 Sitten (1798) Bd. XXVI; "Act on a principle which may serve for a universal 
 law." Compare Matt, vii., 12: "Therefore all things whatsoever ye would 
 that men should do to you, do ye even so to them ; for this is the law and the 
 prophets." On the changing views of morals, as in the view of suicide in the 
 Stoa and according to Kant, see Kant, Ethische Elementarlehre, Metaphys. 
 d. Sitten (ed. of J. H. Kirchmann, Berlin, 1870), p. 262; and Knauer, Haupt- 
 probleme der Philosophie (1892), p. 406. "Culpa est velle mori culpaque 
 nolle mori." — Owenus. Views have entirely changed regarding prostitution. 
 Compare on temple prostitution, Herodotus I, 199; Hammurabi (code), 
 sees. 182 et seq. ; prologue to Cornelius Nepos' VitiS. [Compare the kedeshah, 
 which was according to Louis Wallis (essay on Biblical Sociology II, in The 
 Am. J. of Soc, Vol. XIV, 3 (Nov., 1908), p. 322) a recognized institution of 
 Israelitic society until a late period. According to Mr. 'Wallis, the same 
 institution appears among all ancient Semitic people, citing Harper, The 
 Code of Hammurabi (Chicago, 1904), sees. 110, 127, 178; W. R. Smith, 
 Early Religion of the Semites (London, 1894). p. 455; Jastrow, Religion of 
 the Babylonians and Assyrians (Boston, 1898), p. 485; and also Hoseaiv., 14]. 
 
 ^ The difference between morals as an internal righteousness approaching 
 perfection, and law as external legality, is clearly pointed out in the Sermon 
 on the Mount. See Matt, v, 21 et seq. 
 
42 SCIENCE OF LAW 
 
 While there is accordingly an essential difference 
 between law and morals, and certainly with reference 
 to their objects, the one being external and the other 
 internal; their means, force on one hand, and conscience 
 on the other; their authority, in the one, the community, 
 in the other, conviction; and in their ends, external 
 peace and order on one side, and internal harmony on 
 the other; yet in no sense is there any opposition between 
 law and morals. Legal duties also may be moral duties. 
 
 Under sound legal conditions every infraction of law 
 is also a breach of morals. Exceptions exist, but they 
 presuppose unsound internal conditions. It is self- 
 evident that it is not every breach of morals which is 
 also an infraction of law.' 
 
 The connection between law and morals, amidst all 
 their differences, is exceeded in intensity only by the 
 connection between religion and morals. This connec- 
 tion is most unmistakably made prominent when external 
 acts are designated by legal order as unlawful, whether 
 as litigable or even as punishable, because they are 
 contra bonos mores. ^ It is possible to elevate a moral 
 relation to the position of legal advantage. 
 
 3. Religion, in the first instance, is not of a pre- 
 scribed or ethical, but a conceptional or metaphysical 
 content. It signifies the notion of the absolute, and the 
 direct relations of all finite realities to it. This idea is 
 responsive to an instinctive feeling. It is the impulse 
 toward direct knowledge of the sublime. A religious 
 man arranges his conduct conformably to this impulse, 
 and accordingly religion becomes for him a source of 
 rules of action, consisting of commands and prohibi- 
 
 ' F. Dahn, op. cit., sec. 18, 
 
 ^ B.G.B., sec. 138 [a juristic act contra bonos mores is void] ; B.G.B., sec. 826 
 [one causing willful damage to the property of another contra bonos mores is 
 held in damages]. See also note 1, p. 37, supra, and notes 5,6, p. 47, infra. 
 
LAW AND ITS SOURCES 43 
 
 tions. These rules have it in common that their pur- 
 pose is to apprehend and explain, and attain and build 
 up, in harmonious accord, the immediate relation be- 
 tween inferior beings and the Absolute Entity, and the 
 relation between individual ends and ideas and supreme 
 reality. Human reason also functions here, but its 
 generalizations are in accordance with inclination. Its 
 generalizations are under authority, and do not operate, 
 at least not solely, through force. of mind, and never are 
 realized without feeling and inclination. Finally, religion 
 is generalization of the inclinations themselves under a 
 supreme power, to know which is the highest end and 
 endeavor of humanity. "^ 
 
 The authority from which these rules which presup- 
 pose or further generalization in accordance with incli- 
 nation proceed and are sustained is internal, as in the 
 case of morals. It is religious conscience or faith. This 
 remains true also in those religious institutions where 
 an external authority prevails, as where an ecclesia im- 
 perans commands, or an ecclesia docens instnicts. With- 
 out an internal conviction, without the force of con- 
 science derived from or influenced, (of course, by educa- 
 tion, etc.,) the rules imposed by external authority would 
 not bind the internal conviction of the individual. 
 
 Religious rules diverge from legal rules even when 
 external acts, (as sacrifices,) are required. They are 
 differentiated in their authority; in their purpose (direct 
 apprehension of the absolute) ; and in their means and 
 objects, both of which lie in the compass of the sensible 
 world. 
 
 On account of these differences, an opposition is pos- 
 sible between matters of religion and legal rules, and 
 unfortunately such opposition has also occurred. A 
 
 ' Compare, F. Dahn, Wesen und Werden des Rechts, Z. f. vergleich. Recktsw.. 
 Bd. Ill, p. 5. 
 
44 SCIENCE OF LAW 
 
 dissimilar evolution of thought and feeling in the indi- 
 viduals of a community may become a disturbing factor 
 in the event of decline of national religion/ as well also 
 as in case of reception of a foreign or anti-national 
 religion. The community may command or prohibit 
 an act by legal rule which conversely is prohibited or 
 commanded by religion for individuals or a group of 
 such within the community. 
 
 It is clear, however, that a co-ordination between law 
 and religion, and between legal rules and religious rules, 
 is not only thinkable, but that such connection has his- 
 torically existed in all ages. When a community 
 becomes influenced in its legislation by religious creed, — • 
 that is, by the adherents of such, — in such case there is 
 not only no discordance between the law of the state in 
 its legal rules generally and the institution of religion, 
 but religious rules are advanced to the standard of legal 
 rules. Accordingly the fulfillment of religious duties, 
 or the acceptance of a religious viewpoint under legal 
 force, is established.^ Law, therefore, easily oversteps 
 
 ^ The anthropomorphic and polytheistic form of the notion of the deity, 
 by which religion is thrown into opposition with morals on one hand and 
 philosophy on the other, may be regarded as the chief cause of the disagree- 
 ment noted. See F. Dahn, Das Tragische in der german. Mythologie, Bausteine, 
 Bd. I (1879), p. 102. 
 
 ^ Examples: An exclusive state church (ecclesia dominans) and prosecution 
 of every confessio reprobate ; the death of Socrates; the early persecution of 
 Christians; and the execution of heretics in the Middle Ages; state enforce- 
 ment of religious acts, as, for example, in the following rules of the Paderbom 
 Synod, year 785: — 
 
 "4. Si quis sanctum quadragesimale ieiuniu-m pro despectu christianitatis 
 contempserit et carnem comederit, morte moriatur; sed tamen consideretur a 
 sacerdote, ne forte causa necessitatis hoc cuilibet proveniat ut carnem comedat. 
 
 '"8. Si Quis deinceps in gente Saxonum inter eos latens nan baptizatus se 
 abscondere voluerit et ad baptismum venire contempserit paganusque permanere 
 voluerit, morte moriatur. 
 
 "19. Similiter placuit his decretis inserere, quod omnes infantes infra annum 
 baptizarentur ; et hoc statuirmis, ut si quis infantem intra circulum anni ad 
 baptismum offerre contempserit sine consilio vel licentia sacerdotis, si de nobili 
 genere fuerit, centum viginti solidos fisco componant, si ingenuus sexaginta, si 
 litus triginta. 
 
LAW AND ITS SOURCES 45 
 
 the bounds presented by the notion of a regulation of 
 the external relations of men to each other. A hypo- 
 critically assumed or sham sanctity appearing in the 
 guise of religious conviction expressed in external con- 
 duct (as, for example, murder from religious conviction, 
 the practices of the Adamites, religiously masked impos- 
 tures, etc.) furnishes no ground for excluding the inter- 
 ference of the state through its legal order. The reli- 
 gious impulse exhibits other external relations when it 
 appears in the communistic sense, as in the case of 
 religious communities or associations. These associa- 
 tions, so far as they are external relations of persons, are 
 an object of legal adjustment. Accordingly they are 
 subject in their external relations to the authority of 
 that comniunity from which legal rules proceed and by 
 which they are maintained.' On the other hand, 
 dominant communities, historically considered, fre- 
 quently employ religious ideas in order more securely 
 to accomplish their own objects. Political institutions 
 are surrounded by or based on religious notions. Legal 
 systems are fortified by the oath (as, for example, the 
 oath of allegiance, office and of witnesses), or may be 
 supplemented thereby, as in a system of evidence employ- 
 ing the ordeal {Gottesurteil) . 
 
 The internal co-ordination of law and religion, and of 
 morals with both, is of far greater significance in the 
 history of civilization than the external connections 
 indicated. It is apparent that the state of culture of 
 the people generally is of influence in all manifestations 
 
 "21. St quis ad fontes aut arbores vel lucos voium fecerit aui aliquid more 
 gentilium obtulerit et ad honorem daemonum comederit, si nobilis fuerii solidos 
 sexaginta, si ingenuus triginta, si litus quindecim. Si vera non habuerint unde 
 praesentialiter persolvant, ad ecclesiae servitium donentur usque dum ipsi 
 solidi solvantur." — Monum. Ger. Historical LL.^ sec. II; Capitularia regum 
 Francorum, Tom. I, cap. 26, pp. 68, 69. 
 
 ' Compare infra, "Religious Associations as Juristic Persons, sec. 15. See 
 also, sec. 57. 
 
46 SCIENCE OF LAW 
 
 of the spirit of a community and its members. A 
 people of low or barbarous religious notions will have 
 and probably will employ a barbarous law; and the 
 legal system of a people of profound and noble religious 
 convictions will not be destitute of the splendor of 
 human dignity. 
 
 4. Social convention or social deportment (Anstand) 
 has a feature in common with law, in that it indicates 
 rules for the external conduct of persons among them- 
 selves. Social deportment and its commands arise from 
 custom, or may proceed from views in certain ranks 
 and positions in society, or in particular stages of civili- 
 zation, conformable only to the moment and obtaining 
 only in externals. Social convention depends, therefore, 
 far more than law on the feeling of station and the con- 
 ception of culture or mode, and relates only to the 
 forms and incidental phases of human acts; as, for 
 example, manner of speech or of carriage, mode in dress, 
 fashion in amusement, and style in art. It is concerned 
 with the externals of conduct, which is refined or made 
 more convenient or agreeable through rules of social 
 deportment. 
 
 The connection between social deportment on one 
 hand and law and morals on the other is unmistakable. 
 But a conflict may exist between that which is required 
 or forbidden according to the notions of deportment of a 
 particular class in society (and perhaps also the notions 
 of the whole of society), and that which is opposed or 
 demanded by positive law.' The authority of deport- 
 ment resides in part in the force of tradition and cus- 
 tom, and in part on what is a pure opposite to this, — 
 the views of the day, or the time-spirit^ of the modems. 
 The object of deportment is the refinement and making 
 
 'Compare, for example, R.Str.G.B., sec. 201 (Gareis, R.-gesetze, No. 
 143-146V 
 ^ Zeitgeist. 
 
LAW AND ITS SOURCES 47 
 
 agreeable of external conduct, in which conviction and 
 feeling are equivalent elements. The means by which 
 social convention exerts its force or sanction lies in the 
 attitude of society or the classes within society,' which 
 involves compulsion by social exclusion and the erection 
 of standards of conduct. The notion of what is proper, 
 and what is not, changes with or without perceptible 
 connection with the progress of society.^ This is also 
 true of legal rules. The relation of social convention to 
 law, apart from the consideration that certain duties 
 of social deportment may be designated as natural 
 obligations (naturales obligationes) ,^ is more effective in 
 this, — ^that violations of deportment are not infrequently 
 considered as legal wrongs and invested with legal con- 
 sequences. '' These legal consequences may provide for 
 the nullification of juristic acts, removal from service 
 or office,^ statutory deprivation of civil rights," discipli- 
 nary correction,' and criminal punishment.' The de- 
 
 ^ Noblesse oblige. 
 
 ^ Compare the change from the courtesy of the eighteenth century with 
 the tone of the Directory and the Empire. Cf. also the manner of speech 
 in the court according to Shakespeare. 
 
 ^ Not in the technical sense of the Roman law. 
 
 * A noteworthy illustration: A BrShmana who does not invite his next 
 neighbor and his neighbor next but one, (though) both (be) worthy (of the 
 honor), to a festival at which twenty BrShmanas are entertained, is liable 
 to a fine of one mdsha. — Manu VIII, 392. 
 
 A Srotriya who does not entertain a. virtuous Srotriya at auspicious 
 festive rites shall be made to pay him twice (the value of) the meal and a 
 mdsha of gold (as a fine to the king). — Manu VIII, 393. 
 
 ^ The expression "contra bonos mores" is also employed in connection with 
 violations of social deportment. 
 
 ^ Infamy, turpitude, levis macula. Special grounds of disinheritance may 
 be also noted here. Compare B. G. B., sec. 2333, 5 [a testator may deprive a 
 descendant of his compulsory portion if the descendant leads a dishonorable 
 or vicious life against the will of the testator] with sec. 1568 [either spouse 
 may apply for divorce if the other has disturbed the marital relation by 
 grave violation of conjugal duty or by dishonest or immoral conduct to an 
 extent incompatible with the marriage] . 
 
 ' Cf. ReicksbeanUengesetz (March 31, 1873) sees. 10, 72. 
 
 'Compare: Affronts (Beletdigung), R.Str.G.B., sec. 185; gross mischiefs 
 (Grober Unfug), sec. 360, No. 11; sec. 361, No. 6; unchaste acts, sees. 183, 
 184. 
 
48 SCIENCE OF LAW 
 
 meanor required by the demands of social convention 
 becomes by means of such legal consequences the object 
 of a legally protected interest, whether of the individual 
 or the community. 
 
 5. Equity, or justice (Billigkeit), is the conception of 
 individual conformabiUty of an act or a condition aris- 
 ing from the feeling of law, of morals and of class, in 
 connection with the mental attitude of the person. In 
 the light of all the relations which his individuality appre- 
 hends in a concrete case, one says: "It is right to act 
 thus or so"; and by this is meant that the act harmoni- 
 ously corresponds with the concrete relations of the 
 case and the demands of "even-handed justice." 
 
 The claims of justice are not law in themselves, even 
 though the legal sentiment of a whole people would 
 annex them and seek to discover in them the ideal of 
 the development of law. "Until this ideal is reahzed, 
 and until justice is recognized as a source of law, justice 
 is not law. The judge would seriously err should he be 
 partial to justice as against the positive law of his people, 
 or desire to substitute his notions of justice in the place 
 of law.'" Justice or equity of itself lacks external 
 authority. Its source is exclusively pure subjective 
 discretion or judgment. Indeed, it is hardly judgment 
 regarded as a process of reason, but rather a sentiment, 
 or expression of feeling — an ideaUty which the law may 
 approach but which has no direct, binding force. 
 
 > Windscheid, Pand., sec. 28. Mquitas in the sense of the Romans is 
 to be distinguished from equity [ Billigkeit] in the sense above. Jus aquum 
 was positive law and stood in opposition to jus strictum. Cf. Windscheid, 
 loc. cit. 
 
LAW AND ITS SOURCES 49 
 
 SECTION 7 
 
 FOUNDATIONS' OF THE LEGAL STRUCTURE (SYSTEM) 
 
 The origin and maintenance of law, and the logical 
 and practical existence of that peaceable order which 
 makes the law, would not be possible without (1) free- 
 dom of will; (2) a governing social organism; (3) the 
 necessity of a definite civilization. 
 
 1. Freedom of Will. 
 
 The proposition has been stated that man not only 
 experiences a variety of necessities, but also feels within 
 himself the egoistic impulse to satisfy them. This 
 impulse is directed to bringing about a condition in 
 which the necessities which are experienced are satisfied. 
 Man resorts to acts pursuant to this impulse. If these 
 acts were entirely dependent on the mechanical forces 
 of nature, as when a stone falls from the opened hand, 
 there would then be no room for law, or for morals either, 
 as commands and prohibitions have no influence on fall- 
 ing bodies. When we speak of the necessity and possi- 
 bility of legal order, it is necessary, therefore, tq predicate 
 beings upon which command and prohibition can make 
 an impression — that is, entities which have a capacity of 
 choosing. 
 
 The method by which command and prohibition 
 operate on human action is a matter of controversy.^ 
 It is sufficient here to say that the egoistic impulse from 
 
 * The term "foundation," or "basis" {Grundlage), is treated in another sense 
 in the very interesting essay of Bernhoft in Z. f. vergleich. Rechtswissenschaft, 
 Bd. II, p. 253. The point of Bemhoft's discussion is considered in part in 
 sec. 8, 2, and in part in sec. 7, 3, infra, principally with reference to the 
 influence of civilization on the legal system. 
 
 ^ Compare on these controverted questions, chiefly in the domain of 
 criminal law, v. Liszt, Lehrbuch, sees. 28, I ; 29, III ; 36, III, and the highly 
 important literature there noted. 
 
50 SCIENCE OF LAW 
 
 which we started is based on the faculty of perception, 
 by which not only a state of necessity or want, but also 
 a state in which the want is satisfied, is represented to the 
 individual. These ideas become the motives of acts, 
 through which acts the individual displaces a state in 
 which a want is felt by a condition in which satisfaction 
 of the want is perceived. The act leading to the con- 
 dition desired follows from the impulse generated by 
 the double representation of a condition of want and 
 one of satisfaction. The point from which legal order 
 proceeds, lies in the situation precedent to the aci. 
 When an act is incompatible in itself or in its conse- 
 quences, in the view of the overruling social organism, 
 with an harmonious social life ; when it is inconsistent 
 with the ends of society and its cultural development; 
 or even is contrary to certain purposes of the dominant 
 social organism; then it is forbidden, or its opposite is 
 commanded. 
 
 Command and prohibition operate on the same plane 
 as the impulse of want, — ^that is, on the sense of percep- 
 tion. They exhibit then to the individual the legal and 
 actual consequences of the observance or non-observance 
 of legal commands or prohibitions. They thereby create 
 motives which are usually sufficient to restrain incom- 
 patible acts, and to bring about the doing of that which 
 the social life of man or the view of the community 
 requires. The bringing to bear of motive against motive 
 is the political side of legal order. It has for its design 
 the institution and maintenance of peace and the 
 advancement of civilization and humanity. 
 
 It is a matter not to be disregarded that the impulse 
 of want and legal rules both operate through the medium 
 of the faculty of perception. Legal commands and 
 prohibitions are inoperative against beings without the 
 faculty of perception, or with undeveloped faculties of 
 perception. Accordingly, acts of beings with no co- 
 
LAW AND ITS SOURCES 51 
 
 ordination between the perceptive faculties and the 
 excitation of the motor nerves necessary for the comple- 
 tion of a [juristic] act, or lacking a psychological free- 
 dom of choice, are not acts in the law.' Incapacity for 
 responsibility and the resulting invalidity of juristic 
 acts of the insane illustrate this point. 
 
 The average interests of the average individual must 
 be considered in the creation of new motives to coun- 
 teract impulses of necessity. This is essentially matter 
 for legislation. The prevalence of certain offenses will 
 suggest to the legislator the intensification of counteract- 
 ing motives. Failure to overcome the impelling motive 
 of the offender does not furnish argument against the 
 correctness of this view, but indicates either abnormality 
 of the internal or external conditions of the criminal, or 
 general unfitness of the legal command or prohibition. 
 It may be too weak to generate legal motives or threats 
 of punishment against the motives of the offender, or it 
 may be generally inadequate. 
 
 2. A Governing Social Organism. 
 
 Legal order is only possible and only necessary when 
 men live together in a state of society and form a com- 
 munity. There is no legal order in isolation, or for per- 
 sons living apart. Two kinds of legal order arise, 
 however, when persons live together in numbers: first, 
 that arising out of the existence of interests of the 
 persons living together and forming the community;^ 
 and, second, that arising from interests which are differ- 
 ent from, and possibly even opposed to, interests of the 
 individuals forming the community. In the second 
 class of interests, however, there is a leading interest, 
 namely, an interest in an authoritative organization in 
 such community. The premise of every legal system is 
 
 • Cf. p- 102, note 2, and p. 103, note 1, infra. [The German expression 
 for acts wanting in legal validity is sollenden Handlungen.] 
 
 ^ These interests spring from the impulse of sociality, — the social instinct. 
 
52 SCIENCE OF LAW 
 
 the existence of a community within which common or 
 social wants are felt and in which an external authority 
 is displayed. This community is called a governing or 
 dominant community or organism, in so far as it is able 
 by its own choice to make its own interests legal interests, 
 and to protect and guarantee them as legal interests by 
 its own choice of means. 
 
 Such a community exists in its simplest, most natural 
 and most primitive form in the family, or association of 
 kindred. The family is historically the starting point 
 of all those social organizations which have been and 
 are of most effective influence on the legal system.' 
 The social- unity of humanity in conformity with nature, 
 both physiologically and ethically, depends on and 
 requires the family in serving the moral destiny of 
 mankind. The domination and subordination which 
 in the state are indicated by the distinction between 
 government and the governed are first seen in the family. 
 In it the authority which in the governing community 
 belongs to legislation and administration is earliest 
 found. Legislative and executive powers, the latter 
 including administrative and judicial action, have their 
 starting point in the authority of the family head, or 
 patriarch. As long as no other community is dominant 
 over the family, it is itself to be regarded as a state, — a 
 patriarchal state, or (what is somewhat different) as a 
 heroarchy. 
 
 The oldest traditions of all known peoples, in which 
 history and fable are interwoven, argue for the necessity 
 of acceptance of such an origin of the state. The tradi- 
 tions of the Hebrews suggest repeatedly^ the priority of 
 
 ^ "The primitive development of mankind was collective. The individual 
 advanced at first by slow and gradual steps. Humanity primitively had the 
 root of its being in the family." — J. Kohler, in K. m. v. Holts. I, p. 27. 
 
 ^ Adam's descendants (cf. Moses (Genesis) I, 5, 1), Noah's descendants 
 {loc. cit., cap. 10, 8). Abraham's descendants, and the patriarchal pastoral 
 state (Moses I, 13). But David founded a heroarchy (Kings I (Sam. I), 
 25; Kings II (Sam. II)). Cf. Bemhard Stade, p. 57, note 1, infra. 
 
LAW AND ITS SOURCES 53 
 
 the family to the state. With more or less legend 
 about it, the existence is well known in the traditions of 
 the Greeks of tribal communities of all the descendents 
 of the Atridse, with features characteristic of associations 
 of kindred, — kin-revenge (Blutrache), hospitality {Gast- 
 freundschaft), etc. The fact of the extension of family 
 aggregates into local communities, and the cohesion of 
 these local communities in kingly power, are also well 
 recognized.* Even the legislation of Justinian among the 
 Romans in the after-operation of remnants of previous 
 legal development expresses the extraordinary impor- 
 tance in public and private law of patriarchal power and 
 the family tie.^ The family-state (Familienstaat) organ- 
 ization of the dominant community has persisted up 
 to this age among the Slavs, — at least among the south 
 Slavs, ^ — to an extent even where the limits have been 
 exceeded* up to which the family association has a 
 political mission in the organization of the state. 
 
 Among the Germans, also, the notion of state leads 
 back in legend and in history to the significance of the 
 family, and this was true everywhere that German states 
 were founded, — ^in Scandinavia, in Germany, in France 
 
 ^ The Odyssey exhibits the purely patriarchal state among the Cyclopes: 
 Totffiv d' OVT Ayopal l3ov\7j<f>6potov Te6efUfTTes,&\\oiy' it^iiKwv dpitav vaiovat 
 KdpTjva iv tnr^ao-t y\a^vpot<rL dip-urreiei S^ ^Kaaros TraiSuv ^3' d\6xt^v oi8 
 dwilKuiv i\4yovffLV. — OATSS. IX 112-115. 
 
 The Greek (of the time of Pericles), however, can not yet recognize a state 
 or legal order in such isolated domestic arrangements, and therefore the 
 Cyclopes are characterized ireptpiiXoi iSe/UaTot ( Odyssey IX, 106) . Con- 
 cerning kin-revenge ( Blutrache) as a duty and as an expression of the kindred 
 tie, see Odyssey XV, V, 273-276; also, I, 40, 41. Compare also Bernhoft 
 in Z. f. vergleich. Rechtswiss., Bd. I, p. 13. 
 
 ^ This suggests the legal cojiception of the family among the Romans, 
 manus, and pairia potestas with its jus vitce ac necis, and the significance of the 
 gens and gentiles. 
 
 ^ Cf. Paul Turner, Slavisches Familienrecht'{SttSish\iTZ and London, 1874), 
 pp. 10, 14, 37, where the import of the zadruga (the household, the family, 
 with the gospodar, or stareshina, at the head), the shupania, and the great 
 Shupanie or Grossvoivodschaft, is particularly made prominent. 
 
 * To this may be attributed the decay of ancient Poland and ancient Servia. 
 
54 SCIENCE OP LAW 
 
 to the left of the Rhine and the Meuse, in the Lombard 
 domains, etc. The branching out of the most ancient 
 race stems is based/ according to tradition, on descent, 
 patriarchal-heroic unity, and family division. But the 
 demonstrable importance of kinship among the Ger- 
 mans in historical times, according to etymology and 
 legal history is, however, of greater interest.^ 
 
 Legal order may be considered as based on a relation- 
 ship of the kindred, since hostility among them would 
 lead unmistakably to the downfall of the world. ^ Within 
 the kin (Sippe) the feud is excluded, and legal order is 
 first and alone admitted.* Legal peace, it is apparent, 
 extends beyond the limits of the kindred association. 
 In Germany this extension was first accomplished by 
 means of purchase-settlement of the feud {Abkauf der 
 Fehde), in the so-called composition system. In his- 
 torical times — as early as the time of Tacitus — there was 
 permanent residence of many German stocks, so that 
 
 ^ Tacitus, Germ. 2; Celebrant carminibus antiquis, quod unum apud illos 
 7nemori<B et annalium genus est, Tuisconem deum terra editum, et filium 
 Mannum originem gentis conditoresque ; Manno tres fiUos adsignant, et puorum 
 nominibus proxi-mi Oceano Ingcevones, medii Herminones, ceteri IstcBvones 
 vocantur. 
 
 ^ The Germanic notion of state begins with the smallest conceivable 
 association. It limits itself to the primary social aggregate out of which 
 the state developed, — the family. Sibja means family, stock, gens, peace, 
 legal protection and pax. Compare sifjahr (old Norse, fem. pi.), the kinsmen; 
 sibja (Gothic), the interrelated tribes, relationship, friendship, congeniality, 
 society; sibbia (old Saxon) or Sippe (middle high-German), peace, unity, 
 relationship; 5o&/i^ (Sanskrit), communitas. See August Fick, Vergleichen- 
 des Worterbuch der Indogermanischen Spracken, 4th ed., revised by Adalbert 
 Bezzenberger, August Fick and Whitley Stokes, I, p. 326 (Gottingen, 1891). 
 Thus sabhya means belonging to a community, "therefore conforming to 
 custom"; see F. Dahn, Im neuen Reich (1875), No. 11, p. 413, and Bausteine, 
 Bd. I, p. 417. An analogy is presented to the last notion in the meaning of 
 civis, civilis, civiliter and "civilized." 
 
 ^ "Brothers would contend and murder. Sisters would plot the ruin of 
 the kin." — -Voluspa in the Edda, Wolzogen, p. 148. See also F. Dahn, 
 Bausteine I, p. 417, and Im neuen Reich (1875), p. 414. Cf. Heliand, 132: 
 Endi heri ledid kunni obar odhar {et exercitum du-xit una gens contra alteram) . 
 
 * F. Dahn, Fehdegang und Rechtsgang der Germanen, Bausteine, Bd. II 
 p. 79. 
 
LAW AND ITS SOURCES • 55 
 
 the state was no longer an association of kindred, but 
 had extended over local communities (Gaue), and even 
 into tribes ( V olkerschaften) . The kin element and the 
 importance of the authority of the head of the family 
 are, however, still to be observed in the territorial 
 settlement of the kindred, and principally in the names 
 of places founded by and named after the chiefs of 
 kindred.' 
 
 The fact of settlement of other kindred in the same 
 place — as, for example, in the same valley — and the for- 
 mation of the mark association {Marca, Markgenossen- 
 schaft), which is the first community-state {Gemeinde- 
 staat), exhibited a harmony of interests of the neighbors. 
 These facts indicated a union of common stocks, or other 
 associations of interest of the kindred, who took posses- 
 sion of the undivided common (Allmende), wood, or 
 pasture surrounding individual property {Einzelguter , 
 villce, mansus, mansiones, hobce, Hofe), and made their 
 boundaries (Marken) the object of common administra- 
 tion and defense.^ 
 
 ^ This includes chiefly the many local names which end with "ing" or 
 "ingen," and which commence with the name of a person, that of the head 
 of the family settling the locality ; the local names ending with "rod" CWeut," 
 "richt," and "rad"), or with "brand" or "sckwend," to designate the first 
 settler or conqueror of the forest; and those ending with "heim" "lar," 
 "hausen" and others, to indicate the builder. Cf. W. Arnold, Ansiedelungen 
 lind Wanderungen deutscher Stdmme, Zumeist nach hessischen Ortsnamen 
 (1875, 1876) ; A. Meitzen, Der alteste Anbau der Deutschen, Jahrb. f. Nat. u. 
 Siat.^ No. 1, Bd. II (Jena, 1881) and literature cited, particularly v. Inama- 
 Stemegg, Deutsche Wirtschaftsgeschichte. 
 
 ^ With reference to these connections between colonization and state 
 evolution among the Germans there exists an economic, juristic and historical 
 literature of great importance. Of these works may be noted: L. v. Maurer, 
 Geschichte der Markenverfassung in Deutschland (1856) and Einleitung zur 
 Gesckichte der Mark-, Hof-, Dorf- und Stadtverfassung (1854); Fr. Thudi- 
 chum. Die Gau- und Markvesfassung in Deutschland (1860) ; Geo. Waitz, 
 Uber die altgermanische, Hufe (1854) and Das alte Rechi der salischen Franken 
 (1843), p. 125, also Deutsche Verfassungsgeschichte, Bd. I, II (1865, 1870, 
 1874, 1880); W. Arnold, op. cit.; Felix Dahn, in Konige der Germanen, 
 Bd. I (1861), also Bausteine, firstseries (1879), pp. 282, 396, 422, 528; 
 second series (1880), pp. 150, 372; sixth series (1882), p. 157; also Dahn, 
 Deutsche Geschichte, Bd. I, p. 183 (1883), and Urgeschichte der german. u. 
 
56 SCIENCE OF LAW 
 
 Necessity impressed upon the community-state a 
 constitutional unity of contiguous communities. Accord- 
 ingly there arose the Gau {pagus, or district^), as a Caw- 
 state (district-state) . This form of state had a special 
 state organization of its own — as, for example, Gau (dis- 
 trict) courts, — in so far as the district claimed and estab- 
 lished interests peculiar to itself opposed to the mark 
 associations (Marccs), to single kindreds and individual 
 holders of farmsteads (Hofbesitzer). The original dis- 
 trict-state already presented differences in form and 
 organization, at any rate in its subdivisions; thus, 
 communities {Gemeinden) , kins (Sippen), farmsteads 
 (Hofe), sometimes^ hundreds {centenen, or centen), and 
 peculiarly organized villages. The growth of civiliza- 
 tion, and (perhaps of greater importance) the exigencies 
 of war, brought about a greater interdependence and 
 unity. A number of districts, perhaps all of related 
 stocks, combined in a political and constitutional' 
 
 roman. Volker, in W. Oncken's Geschichie (see note 3, p. 57, infra) ; Heinrich 
 von Sybel, Entstehung des deutschen Konigtums ; Dahn, Zur dlteren deutschen 
 Geschichte in the Deutsche Revue, Bd. VII (1882) ; Laveleye, De la proprUti 
 et de ses formes primilives, 2d ed., 1877 (a German translation by Buchner, 
 1879); Kohler, in the Krit. Vierteljdkrsschrift, Bd. XIII, p. 1; Heusler, 
 Institutionen des deutschen Privairechts, Bd. I, p. 262; N. Roscher, Ansichten 
 der Volkswirtschaft (1861) ; Geo. Hanssen, Agrarhistorische Abhandlungen 
 (1880); A. Meitzen, Der alteste Anbau der Deutschen (Jahrb. f. Nat.- Ok.); 
 V. Inama-Stemegg, Deutsche Wirtschaftgeschichte. Bd. I, (1879); K. 
 Lamprecht, Wirtschaftsleben I and Deutsche Geschichte II (1892). [See also 
 Hallam's Middle Ages; Stubbs, The Constitutional History of England; 
 Seebohm, The English Village Community; Seebohm, Tribal Custom in 
 Anglo-Saxon Law (Longmans, Green, & Co., 1902) ; Nasse, The Agricultural 
 Community of the Middle Ages (tr. from Ger. by Ouvry, London, 1871) ; 
 Nasse, Village Communities (^Contemporary Rev., May, 1871) ; Gummere, 
 Germanic Origins (Chas. Scribner's Sons, 1892).] 
 
 ^ Compagenses, a union of Gaue (districts, Gaugenossen) ; see Schroder, 
 Deutsche Rechtsgeschichte, p. 121. Concerning the constitution of the Gau, 
 see Riezler, Geschichte Bayerns I, pp. 126. 841; Brunner, Deutsche Rechts- 
 geschichte II, 146. 
 
 ^ Among the Goths and Chatti ; cf. Gareis in 3 Jahresbericht des Oberhess. 
 V. f. Lokalgeschichte (Giessen, 1883), pp. 63, 64, and literature there noted. 
 
 ^ This expression may be used to indicate the distinction between this 
 kind of confederacy and those simple offensive and defensive alliances which 
 precede and lead up to confederation. 
 
LAW AND ITS SOURCES 57 
 
 unity. Thus there arose among the Germans as early 
 as in the second century A. D. a typical tribal state 
 ( Volkerschaftsstaat, civitas) . 
 
 Again, if a number of tribal states, forced^ by the 
 necessities of war or other causes, joined together, then 
 there arose a widely comprehensive state, which has in 
 German legal history received the name people-state 
 ( Volksstaat) . At the head of this state stood a popu- 
 larly elective king ( Volkskonig) or duke (therefore, a 
 popular kingdom or dukedom).^ This movement cul- 
 minated in the highest stage of state unity, — a national 
 kingdom (therefore, royal or imperial power, such as was 
 that of Charlemagne) . From this point German history 
 presents a series of intermediate and retrograde govern- 
 mental forms, — ^the empire of the Middle Ages, the feudal 
 state (Lehenstaaf) and the development of territorial 
 sovereignty of the separate members of the empire, — 
 until a concentric movement again (1870-71) produced 
 the German Empire. We may still recognize over the 
 greater part of modem Germany, under different names 
 and with new boundaries, the people-states (regna, 
 ducatus) in the confederated members of the empire, 
 the tribal states (civitates) in the provinces of the mem- 
 bers of the empire, and the district-states in the sub- 
 divisions of the provinces.^ 
 
 It is a matter of significance in the development of 
 law that each of these social communities, — ^the house- 
 hold, the community, the district, the tribal unity, the 
 people and the empire, — though differing widely in a 
 
 ^ Cf. Bemhard Stade, Geschichte des Volkes Israel, in W. Oncken's AUg. 
 Gesch. in Einzeldarstellungen, pp. 173-176, in which the grounds are stated 
 which occasion the origin of kingly power; in particular, the pre-eminent 
 necessity of law and security for the tiller of the soil, as distinguished from 
 the wandering and wariike nomad. 
 
 2 Cf. W. Sickel, Hist. Z., Bd. XVII, p. 407. 
 
 ' With reference to these evolutionary stages see Felix Dahn, Urgeschichte 
 der german. u. roman. Volker, in Wilh. Oncken's Allgemeift£ Geschichte in 
 Einzeldarstellungen I, abt. 23, particularly p. 77. 
 
58 SCIENCE OF LAW 
 
 territorial sense and in range of function, has a mission 
 in the building-up of law. Each of these forms does 
 not fulfill this vocation in all directions. If there is 
 assigned to the state (understood as a legally inde- 
 pendent social organism, or as the temporarily supreme 
 social community) the mission of constructing a legal 
 system, yet it is not to be overlooked, on one hand, that 
 this is not, by any means, the only function of the state; 
 nor, on the other, that this evolved form of state arising 
 out of precedent social communities or stabe-forms may 
 relinquish to these antecedent communities the develop- 
 ment of their autonomous law. By this means, a par- 
 ticular method of creating law — autonomy in the modem 
 sense, and custom {Ohservanz) in the technical sense — 
 has been generated. The law-making function has re- 
 mained partitioned notwithstanding political unity. Ex- 
 amples of this partition of law-making are the legislative 
 powers of autonomous provinces and communities; and 
 it exists even in autonomous families.' 
 
 As long as the state and the family are coincident, 
 and therefore the state exists in its smallest conceiv- 
 able extent, so long does the state exert all economic, 
 juridical, and law-fostering activities.^ Differentiation 
 of function is accordingly first thinkable and actually 
 arises when a higher social organization overshadows 
 the kindred. In the first instance, this is perhaps the 
 community; as, for example, among the Germans, the 
 local association called the Markgenossenschaft. The 
 latter community, therefore, has to represent its own 
 peculiar interests by the establishment and administra- 
 tion of standards in the same manner as the highest 
 form of social community. The household, however, 
 has its own peculiar interests to pursue and provide for, 
 
 ^ See sec. 12, below. 
 
 ^ Therefore, the patriarchal state is a socialistic state. See below, sees. 
 40, 41, 
 
LAW AND ITS SOURCES 59 
 
 within its limits, and as to which the community lays 
 no claim. Individual interests, family interests and 
 community (state) interests are, therefore, already differ- 
 entiated. 
 
 The inter-opposition of these social forms naturally 
 increases, the more as the dominant social organism, 
 the state, develops in accordance with territorial extent 
 and range of function. In the Germanic popular king- 
 dom ( Volkskonigtum), the partition of this function was 
 such that the development and furtherance of law per- 
 taining to the state, as well as to the districts, the 
 community and the family, were respectively relin- 
 quished to them. The kingdom assumed as its province 
 legislative and administrative control of penal judica- 
 ture (Blutbann) , the king's forests (Bannforsten) and all 
 military affairs (Heerwesen). It reserved at least a 
 superintendence by kingly officials over local courts 
 {Gaugerichte) . There remained, as against this power, 
 to the lower organizations, — ^the districts, district courts, 
 communities, mark assemblies (Markerdinge) , and the 
 family, — ^nearly all economic (Wirtschaftspolitik) and 
 police administration as well as inferior judicial matters 
 (Gerichtswesen) and the development and administra- 
 tion of substantive civil law. 
 
 Notwithstanding the official preponderance of such 
 inferior associations as districts and communities within 
 the Prankish kingdom, it is not to be understood that 
 these lower organizations were the only binding tie 
 between the subject and the state, as must be assumed 
 in the case of strictly feudal communities where feudal 
 dependants ( Untertanen) were subject only to their 
 immediate feudal lord and were subject to feudal 
 superiors only through him. The Prankish state was 
 rather based upon a general organization of feudal 
 dependants, by force of which there existed a direct 
 relation of protection and fidelity between the individual 
 
60 SCIENCE OF LAW 
 
 subject, whether as a member of a community, a district 
 or a dukedom, and the sovereign or king. There existed, 
 accordingly, a direct relation^ by virtue of which feudal 
 dependants were bound to military service^ {Heerpflicht) , 
 and duties with respect to attendance at judicial assem- 
 blies^ (Dingpflicht) and the maintenance of the envoys' 
 of the king and nobles. In return, the king guaranteed^ 
 protection against war from without, and the protection 
 of law and police within. 
 
 In a union of people-states, kingdoms or ducal states 
 in a higher form of state organization, as in an empire 
 {natio, imperium), the identity of the lower forms of 
 organization may be destroyed, as in the unitary state 
 of France; or this unification may result in a loose and 
 rarely existent form of feudal association; or in one of 
 the forms of composite states. The subjection of indi- 
 viduals to the supreme organization even in composite 
 states maybe direct, as is characteristic" of the Bundes- 
 staat, or it may be mediate only.' It is evident that the 
 distribution of powers between the supreme organiza- 
 tion and inferior departments is of extreme variation, 
 as qualified by historical facts.' 
 
 However diverse may be the competence and func- 
 tions of the social community, the greatest of which 
 appear in the composite state and the public organiza- 
 tions within it, yet one of the missions which the state — 
 
 * See Ehrenberg, Kommendation und Huldigung, nach frankischem Rechte 
 (1877), pp. 1, 115. 
 
 ^ "Cum comite suo in exercitum pergant." There belongs here also the duty 
 of guarding territorial boundaries. See Ehrenberg, loc. cit., pp. 3, 108. 
 
 ^ "Ad mallum comitis venire," and including attendance at specially com- 
 manded judicial assemblies {gebotenes Ding), "si necessitas juerit vel denun- 
 ciatio regis urget," as well as regular j udicial assemblies not especially convened 
 {ungebotenes Ding). See Brunner, supra, p. 197; Ehrenberg, op. cit., p. 2. 
 
 ^ See Ehrenberg, op. cit., p. 3. 
 
 ^ See Ehrenberg, p. 1. 
 
 ® Cf. Gareis, allg. Staatsrecht in Marquardsen's /fdbcft. I, p. 106. 
 
 ^ As in a Staatenbund; see Gareis, loc. cit., p. 114. 
 
 * See below, sees. 11, 42, 43. Cf. Art. 4, Constitution of the German 
 Empire of April 16, 1871. 
 
LAW AND ITS SOURCES 61 
 
 that is, the supreme or dominant organization, for the 
 time being — provides for, and must provide for, is the 
 estabUshment and maintenance of law. Conversely, 
 the state, according to modem legal view, is one of the 
 essential conditions precedent to the existence and 
 administration of peaceable order in the external rela- 
 tions of mankind. (See sees. 8, 11.) 
 
 3. The Necessity of a Definite Civilization. 
 
 This premise of legal order is true in a twofold sense. 
 In the first place, it is a logical necessity. Peaceable 
 regulation of the external relations of persons among 
 themselves is possible only when such external relations 
 exist, and when, in consequence of these relations, regu- 
 lation is perceived as a necessity by virtue of the sense 
 of law. The forces which we called the roots of the 
 law become operative as the foundations of this neces- 
 sity. It follows, however, that the kind of wants, their 
 intensity, the kind of assertion of the impulses which 
 correspond to these wants, and the kind of satisfaction 
 of these wants, depend on the condition of social develop- 
 ment of a law-creating or law-fostering community of 
 civilized persons.* The kind of commands and prohibi- 
 tions, as also the intensity of the threat of legal punish- 
 ment over the disobedient, also depend on this. An 
 Alpine people following chiefly pastoral pursuits require 
 different laws from a commercial people with compli- 
 cated monetary and credit activities. Half-civilized 
 nomads require for peaceable order among themselves 
 other standards than a highly civilized people. 
 
 * Therefore in a much wider sense law is, as Hugo Grotius {de jure belli ac 
 pads, I, 1, 14) assumes, agreeing with Chrysostomus. tx djpTjfia ^Lov Kol 
 Xpifov, repertum temporis et usus. 
 
62 SCIENCE OF LAW 
 
 SECTION 8 
 
 THE STATE AND LEGAL ORDER 
 
 Every legal regulation owes its practical efficacy to 
 the governing social organization. All law and all 
 administration of justice are to be regarded as institu- 
 tions of the state.* It can not be said, however, that 
 the state is the only source of law,^ since the state may 
 relinquish to other agencies the making of rules for the 
 external relations of persons in society. Thus, matters 
 of fact or conditions may spontaneously generate rules 
 as in custom and through jural necessity.^ Law may 
 
 ^ This notion is the subject of much controversy. It is opposed by the 
 Naturrechi (law-of-nature) conception which affirms that the authority of 
 law lies in its conformity to human reason. It is also opposed by a portion of 
 the historical and law-of-nature school in so far as a popular consciousness 
 of law is regarded as the source of legal standards, and further by a moralistic 
 notion which discovers the binding force of legal rules in their ethical force. 
 
 ^ This proposition may be so understood that its negation will contradict 
 the previous statements. This difficulty will not arise if the word "source" 
 is correctly apprehended. A source of law means that agency which provides 
 its material, just as the water of a brooklet comes from the spring. The 
 stream, however, does not owe its force to the spring, but to other agencies, 
 as to the attraction of the earth, and the condition of the bed of the stream. 
 
 The analogy lies in this: The state alone, so far as it legislates, furnishes 
 the niaterial of legal standards, the expression of commands and prohibitions, 
 the precepts. It creates the material, the rules, by its declaration of laws, 
 and gives them the force of its authority. Where, on the contrary, other 
 sources of law — autonomy, custom and legal necessity (Rechtsnot) — operate, 
 and provide the material of legal standards, then it is the function of the 
 state to establish these rules by its authoritative power, in so far as this 
 appears to the state necessary or desirable for the protection of interests. 
 
 ^ See customary law and law arising from necessity (notwendiges Recht), 
 sees. 9, 10, 12. 
 
 The state bears a fivefold relation to legal order. This may be expressed 
 as follows; — 
 
 1. Respublica jus sancit: the state gives law its authority. The governing 
 social organism designates as law that only which it recognizes as law (see 
 p. 37, note 2, referring to Windscheid's Rectoral address, p. 7). This is true 
 not only of legislation, but also of custom and autonomous law. 2. Respub- 
 lica jus condit (constituit) : the state makes legal rules by laws. 3. Respublica 
 jure utitur. It employs laws, or legal commands and prohibitions, to attain 
 
LAW AND ITS SOURCES 63 
 
 be formulated by associations inferior to the state.' 
 There may also be law expressed by state communities 
 within the state, afterwards becoming defunct, or after- 
 wards growing up; by powerful associations within the 
 domain of the state ; and by foreign communities which 
 the state may annex. ^ Such rules for the external rela- 
 tions of men in society, and not established by the state, 
 may have a binding force for those persons among whom 
 the rules have arisen without or before any notice taken 
 by the state of these rules. Under the conditions in 
 which they originate, these rules may have a force aris- 
 ing from conscience, moral or religious views,' the influ- 
 ence of the word of honor, or of class feeling,^ or from 
 pure considerations of utility. This force may be, as in 
 the first cases noted, highly ideal ; but these rules are not 
 of themselves legal , standards. There is wanting in 
 them the authority of the dominant social organization . 
 That only is law which the state recognizes as law. This 
 holds so universally that we do not by any means always 
 recognize as law what another state may hold as law, 
 even with reference to the subjects of that state. ^ 
 
 The recognition on the part of the state whereby a 
 rule becomes a rule of law may be express or implied, 
 or direct or indirect. Thus the state allows a legal 
 validity under certain conditions to ecclesiastical and 
 
 its ends; for example, when it ordains general military duties, or duties with 
 respect to education, or when it threatens punishment against everything 
 opposed to its objects. 4. Respublica jus dicit, in the administration of 
 justice (sees. 47, 50). 5. Fiscus legibus subditus est (sec. 15). 
 
 ' Cf. autonomy, below, sec. 12. 
 
 ^ C/. international law (sec. 54) and ecclesiastical law (sec. 57). 
 
 ^ For example, the standards of canon law, — ecclesiastical disciplinary 
 regulations unaided by or indeed even contrary to rules of the state. 
 
 ■* For example, standards of dueling recognized as binding to a certain 
 extent in spite of general prohibitions. Str.GB., sees. 207, 208. Note also 
 the acquiescence in the commands of anti-social secret associations such as 
 the maffia, camorra, etc. 
 
 * Thus by no means all the canonical impediments to marriage are recog- 
 nized by the state ; and in Germany no species of slavery is lawful, not even 
 in favor of or against Africans. 
 
64 SCIENCE OF LAW 
 
 corporate regulations, customs and statutes, and even 
 to foreign laws. It invests these standards, which are 
 perhaps already obligatory in morals or religion, with 
 the character of legal standards, by means of its sov- 
 ereign power. It directs its courts to establish these 
 rules as the basis of legal standards.' 
 
 It may also lay the duty of appUcation within its 
 domain, of standards not of its own expression, upon 
 tribunals under its protection^ and not having state 
 functions. Accordingly, the existence of customary 
 law, ecclesiastical law, or autonomous law does not 
 involve an opposition to the political character of law 
 in general and the administration of justice. 
 
 The same is true of international law. It requires 
 the recognition of the state, or at least of the partici- 
 pating states, as law — ^not in an individual case of con- 
 flict, but in ahstracto considered as a standard for the 
 defense of common interests and for the limitation of 
 the individual interests of the states. It exists only 
 among and for the several states. It is therefore, con- 
 ceivable that the state may not be able to deny a 
 recognition to certain commands and prohibitions not 
 emanating from itself, even though they may be directed 
 against itself, but must admit them either expressly or 
 tacitly for the sake of its own existence and fundamental 
 law. 
 
 What commands or prohibitions the state will invest 
 with the attribute and force of legal standards is a matter 
 of political discretion. This discretion determines what 
 interests it will elevate to the level of legally protected 
 
 * The German Empire recognizes Turkish, Chinese and Arabian custom 
 by means of the provisions of sec. 40, R- G. of April 7, 1900, relating to consular 
 jurisdiction, and sec. 3 Schutzgebietsgesetzes of Sept. 10, 1900, within the limits 
 of arts. 30 and 31, Einf. G. z. B. G. B. 
 
 ^ Thus the recognition of patrimonial jurisdiction and the privileged juris- 
 diction of corporations. 
 
LAW AND ITS SOURCES 65 
 
 interests and what means it finds suitable for their 
 protection.* 
 
 Sovereignty is manifested by this freedom of choice 
 of its own interests as legal advantages and the appli- 
 cation of means for their protection. The state, while 
 not omnipotent, is yet legally independent of any power 
 superior to it. That this legal independence is not politi- 
 cal omnipotence is shown by the actual dependence of 
 the activities of the state upon agencies which the 
 state must take into account; since its measures, though 
 unalterable, are influenced by them in execution. The 
 law-generating state — ^the dominant social organism in 
 its capacity of creating legal standards — is thus also 
 actively dependent upon influences lying beyond its 
 power. This view^ of the relation between legislation 
 and the legal system is the view which practical men 
 and statesmen in all ages must share. It may be called 
 the opportunist view. 
 
 There are, however, two other conceptions of this 
 relation. The first is that of the law-of-nature school 
 (and within it, the moralistic school), which assumes 
 that legal standards are immutable laws. Legislation 
 may approximate, but may not contradict them. This 
 view supposes the same relation between fixed legal 
 standards and legislation as between human acts and 
 Platonic ideas. 
 
 The second notion is that of the romantic (or, in a 
 narrower sense, the historical) school, according to 
 which law is not made (as the practical man supposes), 
 nor yet is fixed (as the law-of-nature school assumes), 
 but grows — that is, it transforms itself, according to 
 necessity, without the need of legislation. It is appar- 
 
 ■ Thus, in Germany a new interest of the state has been created by the 
 protection of carrier pigeons which are used in war. See R. G., May 28, 1894 
 (Gareis, Reichsgesetze, No. 192). 
 
 ^ Sec. 3, m, the relation of politics to the science of law. 
 
66 SCIENCE OF LAW 
 
 ent that, in this view, custom and science have the great- 
 est influence. 
 
 According to the historical school as well as the 
 opportunist view, there are three factors in a state 
 establishment of law: — 
 
 1. The object and the ends of the state. In this 
 respect, great variations in individual states are, of 
 course, conceivable, and are necessary. By abstraction 
 alone no generally valid conception of the objects of 
 the state with a concrete legal content can be attained.' 
 The history of states and their comparative survey, 
 however, exhibit three objects in every state, no matter 
 how primitive or developed. 
 
 (a) Every state must have legal standards for the 
 establishment of an organization through which the 
 internal and external expression of the will and power 
 of the state are made possible. This is true even 
 though this organization be based on a traditional or 
 customary recognition of a petty chieftain, a popular 
 assembly or similar agency. In that the state is legally 
 organized there must exist in all cases a constitution and 
 a constitutional law. 
 
 (b) Military power is an equally indispensable legal 
 advantage of the state. This is necessary to the main- 
 tenance of the characteristic attribute of the state, 
 namely, its legal independence. It is necessary for 
 protection of all its other legal advantages and func- 
 tions, even by resort, if necessary, to the extremest force. 
 There never was and can not be a state without an 
 army, a military law and a body of legal standards by 
 which a military organization is based on a system of 
 rights and duties. This is true whether it be only miH- 
 tary power involved in the authority of a chieftain, on 
 one hand, or is based on military duty of those capable 
 of bearing arms, on the other. 
 
 ^ Cf. HoltzendorfE, Recktsensyklopddie, International Law, p. 847. 
 
LAW AND ITS SOURCES 67 
 
 (c) Finally, standards are necessary and universally 
 existent, by which the relation is legally regulated be- 
 tween persons and things under all conditions.' The 
 right of ownership, whether it be individual, collective 
 or communal, must be established. 
 
 2. Another essentially influential factor in the devel- 
 opment of the legal system is morals, or the force of 
 powerful ethical notions held by a body of persons 
 among the people, or at least among persons exerting an 
 authority in the development of law. These ideas, 
 historically considered, are as follows : — 
 
 (a) Family.^ The necessity of some regulation of 
 the relation of kindred, and the necessity of a duty in 
 the nurture of children, are pre-eminent and universal. 
 The legal standards grounded on this ethical foundation 
 concerning spouses, parents, and children, however primi- 
 tive they may be, form another basis of private law; the 
 first being that of ownership (1 (c) above). 
 
 (b) Collective revenge^ {Kollektivrache) and atone- 
 ment (Suhne), both as ethical notions considered as 
 reacting against wrongs and discords. These notions are 
 ethical in so far as they are not the peculiar measures of the 
 individual, as in private revenge (Privatrache) . They are 
 ethical impulses with the specific object of realizing the 
 betterment of humanity. Social revenge (Gemein-rache) 
 and atonement are in this, the ethical signification, the 
 basis of criminal law. 
 
 (c) A variety of other ethical notions, or social insti- 
 tutions based on ethical ideas, leading to legal advan- 
 tages, to protection and to regulation, as they may 
 
 ' Cf. Bemhoft, in Z. /. vergleich. Rechtswiss., Bd. I, p. 18; Dargun, Ur- 
 sprung und Entwickelungsgesckichte des Eigentums, ibid. Bd. V, p. 1 ; Oncken, 
 Aristoteles I, 192. 
 
 ^ See Bemhoft, in Z. f. vergleich. Rechtswiss., Bd. II, p. 270. 
 
 ^ Cf. V. Liszt in Z. f. d. gesamte Strafrechtswissenschaft, Bd. Ill, p. 7. 
 
 Social instinct being ajccepted, collective revenge no doubt springs from it. 
 There may be noted in this connection the decisive feeling of approbation or 
 displeasure of society regarding acts which are beneficial or hurtful. 
 
68 SCIENCE OF LAW 
 
 require. These ideas are of different content among 
 different peoples, as, for example, among Indo-Germanic 
 peoples, the idea of hospitality {Gastfreundschaft) , the 
 affirmation of truth by invoking the Deity, the oath, 
 etc.i 
 
 3. Lastly, the legal system is essentially influenced 
 by the qualities of its elements, — ^that is, the nature of 
 the land occupied and the people who constitute the 
 state. Legal standards, consequently, depend on cli- 
 mate,^ geographical situation (mountains, seashore, etc.), 
 national character, national predisposition, the leading 
 occupation of the people, their history, customs, moral- 
 ity and similar influences. Economic considerations 
 and the necessities of society, which in turn affect the 
 legal system, also in part at least depend on these 
 influences. 
 
 However different may be the form of the legal sys- 
 tem as it is influenced by the forces operating upon it, 
 yet the method of its operation, its means and imme- 
 diate object are universally the same. Legal standards 
 universally limit freedom of choice. The unlimited 
 broad domain of unrestrained acts is divided up into 
 limited legal spaces within which persons and communi- 
 ties are dominant as legal subjects. These legal spaces 
 are spaces of freedom in which there is limited but pro- 
 tected volition. Legal advantages are thereby created 
 out of interests. Legal relations are accordingly created 
 within the domain of protected freedom from the facts 
 and necessities affecting human existence. 
 
 It should be one of the objects of legal order, in the 
 drawing of limitations by law and the establishment of 
 
 ' See Bernhoft, loc. cit., pp. 272, 274. 
 
 ^ A sociological influence has even been ascribed to good and bad weather- 
 See Edwin Grant Dexter (Illinois), Wealher Influences, London, 1904. [Montes- 
 quieu asserted that England had a high suicide rate on account of its fogs, 
 but investigation appears to have disclosed that England's percentage of 
 suicides was lower than in any other European country.] 
 
LAW AND ITS SOURCES 69 
 
 such limitations by means of commands and prohibi- 
 tions, that they be suitable. There should be a due 
 proportion between means and end which will justify 
 the reasonableness of legal order. This requisite shows 
 that an abstract uniformity of the legal standards of all 
 countries and in all ages is an impossibility. It is an 
 ideal not to be striven for, since such abstract standards 
 would be repugnant to reasonable acts without regard 
 to the prerequisite adaptability of means to ends. 
 
 In the establishment of legal limitations upon acts, 
 it is an ideal which must be adhered to, that these limita- 
 tions be so drawn that they allow to all persons the 
 greatest possible freedom, and at the same time afford 
 the greatest security for order and the attainment of 
 the destiny of mankind. This is an ideal which can be 
 attained only relatively in the proportion that individual 
 ends can be measured by adequate means, and which 
 will hardly ever be realized. The legal system which 
 answers these requirements will not fail to evoke a con- 
 dition of contentment which expresses, on one hand, 
 harmony with the legal sense of the people and a virtue 
 of justice among individuals, and, on the other, the pur- 
 poses and efficiency of law. 
 
 By the statement of the dominant position of the 
 state in the creation of the legal system, it is not 
 to be understood that within the domain of one state 
 only one legal standard may be authoritative with 
 reference to one and the same legal institution; or that 
 every legal regulation, or every legal standard, must 
 have currency throughout the whole state; nor that 
 such legal standard may have validity only within one 
 state. It is possible, on the contrary, that — 
 
 1. Various legal regulations with reference to a 
 legal institution may be current within the domain 
 of one and the same state. For example, marpage 
 
70 SCIENCE OF LAW 
 
 property' has different legal standards in different parts 
 of Germany. 
 
 2. One legal standard may be authoritative in the 
 domains of more than one state. 
 
 If a number of states have an identical law, the 
 validity of this law will rest upon the authority of each 
 state, but the source expressing the legal rule may be 
 the source of just one particular state, or the common 
 source of all states having similar legal standards. In 
 the latter case where the law is the same in a number 
 of states, it is called common law (Gemeines Rechf). 
 Thus the codified law of Justinian became common law 
 by reception^ in Germany in the Middle Ages. From 
 a single source it became operative as unified customary 
 law in all the different domains of Germany at the 
 same time. 
 
 Law arising from particular sources in individual 
 states is called special law (Sonderreckt) or particular 
 law (Partikulares Recht) in contradistinction to com,m.cm 
 law. Coincident or similar particular law is sometimes 
 called general law^ (allegemeines Recht) . Particular law 
 has only a very limited scope, existing, for example, as 
 particular law in a particular municipality (Stadtrecht) , 
 as local law (Lokalrecht) or as local custom ( Ortsusance) . 
 Yet it is possible that particular law may have currency 
 in more than one state, as when, for instance, the 
 original domain in which it had currency is poUtically 
 divided among two or more states. 
 
 The possibility of such legal division and geographical 
 tearing asunder of legal systems may raise the difficult 
 question as to what law, of the different laws coming 
 
 ^ Guterrechi. See infra, sec. 31. 
 
 ^ Sohm, I nstitutionen des romischen Rechts, sec. 1. 
 
 ^ For example, the General German Bills of Exchange Code (1847) and 
 the General German Commercial Code (1861), which were formulated in the 
 time of the German Bund through concerted deliberation, and which were 
 afterwards adopted by separate legislation of the individual states of Germany. 
 
LAW AND ITS SOURCES 71 
 
 under consideration, is to be applied. This question is 
 not one of difficulty when one of two legal regulations 
 in question has only subsidiary validity, or when it is 
 valid only to the extent and so far as the other has no 
 provisions covering the ground but contains lacuncB. 
 The Roman law thus had in Germany only a subsidiary 
 or auxiliary validity to the Landrecht of Bavaria, Wiirt- 
 temberg, etc.; apart, of course, from those German 
 provinces in which it was altogether and completely 
 excluded, as in the domain of the Prussian Landrecht, 
 the French code and the Saxon civil code. Modem 
 German imperial law, on the contrary, is absolute gen- 
 eral law and is exclusive of contrary Landesrechte .^ 
 Aside, however, from this class of cases, where one of the 
 conflicting laws is subsidiary, and therefore in cases of 
 coincidence of two absolutely current laws, other stand- 
 ards must determine the concrete settlement of the 
 conflict. 
 
 Three kinds of collision of conflicting legal standards 
 are to be distinguished: — 
 
 1. Territorial, or geographical collision;'' as, for ex- 
 ample, the conflict of German and Russian laws 
 in a German marriage of Russian subjects; or a 
 contract of sale made by letter between a German 
 at Hamburg and an American at New York, stipulating 
 for delivery at Havre and payment at London. Which 
 law shall govern? When the private law of two or 
 more states is in question, the body of rules by which 
 these questions are answered is called international 
 
 ' Art. 2. Imperial Constitution, April 16, 1871, provides: "Within the 
 domain of this confederacy, the empire shall exercise the right of legislation, 
 according to the provisions of this constitution, and to the effect that the 
 imperial statutes shall have precedence over state statutes. Imperial 
 statutes shall derive their obligatory force by imperial proclamation, which 
 shall be made by means of a legislative bulletin. In so far as the published 
 statute does not provide otherwise, statutes shall become operative on the 
 fourteenth day after the respective bulletin is published at Berlin." 
 
 ^ See infra, sec. 13. 
 
72 SCIENCE OF LAW 
 
 private law. It is called conflict of laws when within 
 one state two or more laws come into collision.' In 
 opposition to the view of the early Middle Ages grounded 
 on a principle of personality (Personalitdtssystem), these 
 rules form a system which has its foundation in the 
 principle of territorial sovereignty, — ^that every state 
 will apply foreign law only through the authoritative 
 administration of justice of its own law and its own 
 judges, and only in cases particularly admitted by its 
 own territorial law. 
 
 2. The temporal conflict is another kind of collision 
 of legal standards of different states or of the same 
 state; as, for example, the retrospective or prospective 
 operation of the German Civil Code with reference to 
 marriages celebrated prior to Jan. 1, 1900; and 
 
 3. Generic collision; as, for example, a collision of 
 particular (special) law and general law, as in the case 
 of the German Commercial Code on one hand and the 
 German Civil Code on the other. As to this the provi- 
 sions of the imperial introductory statutes to these 
 codes are decisive. For further example, the conflict 
 of particular and common law, as in the case of Prussian 
 law on one hand and German common law on the other. 
 
 ' Cf. art. 7 to 31, Einf. G. z. B.G.B.; also Gareis, in the Deutsche Revue, 
 III (1878), p. 128, and I (1877), p. 140. 
 
LAW AND ITS SOURCES 73 
 
 SECTION 9 
 
 SOURCES OF LAW 
 
 The expression "source of law" is ambiguous. The 
 state may be regarded as the fountain of all law, in the 
 sense previously noted. By "sources of law" may be 
 understood the writings, documents, records or literary 
 monuments of the law which furnish a knowledge of 
 legal rules. Possibly, also, a matter of fact with which 
 a legal right is connected may be regarded as a source 
 of law; as, for example, the right of inheritance arising 
 through birth or death. According to another view, 
 a source of law may be the social sense, or impulse to 
 law of the people, and those tendencies in man and 
 society which were designated as roots of the law. 
 
 In a technical sense, a source of law is the cause pro- 
 ducing a legal rule, — the causa efficiens of the standard 
 established. 
 
 The starting point of a legal rule is the necessity for 
 legal order. This alone is the primal source of law. It 
 is necessary, however, that the rules evoked by necessity 
 be expressed. It does not satisfy the necessity of law 
 that there be law resting on surmise, feeling or opinion, 
 even though the opinion is general. Limitations on 
 freedom of will require an expression of law, or legisla- 
 
 ^ Salkowski, Inst., sec. 3: Sohm, Inst., sec. 7, IL 
 
 [The ambiguities of this expression may also be thus classified: A source of 
 law may be — 
 
 1. Formal (after Salmond): the will and power of the state. 
 
 2. Legal: the authoritative agency of expression of a legal rule (courts, 
 etc.). 
 
 3. Historical: non-authoritative agencies of expression of legal rules 
 (private commentary, etc.). 
 
 4. Literary: the literary monuments (statute books, books of cases, etc.). 
 
 5. Causal: the facts, occasions, causes, conditions or influences which 
 generate legal standards]. 
 
74 SCIENCE OF LAW 
 
 tive (positive) intervention. The establishment or ex- 
 pression of legal rules for human conduct is always an 
 expression of human will, and is, of course, always the 
 will of a community.* 
 
 1. This social organism is either the state, — the gov- 
 erning social organism to which every legal rule owes its 
 necessary authority, but by which only that class of 
 legal rules which are called legislation is established, — 
 or it may be — 
 
 2. Another social entity, which, though not the state, 
 expresses legal rules necessary for the regulation of 
 external relations: 
 
 (a) Either in declarations which aim at the establish- 
 ment of rules in as direct and conscious a manner as the 
 declarations of the state which are called statutes are 
 made. So-called autonomous law, the statutes of auton- 
 omous corporations, etc. (see sec. 12), are of this class. 
 
 (6) Rules of a non-governing social organism having 
 a validity within itself responsive to its necessity of law, 
 but not having a direct and conscious effect in the 
 establishment of new legal rules aimed at conduct. 
 
 ^ Even when legislation is the function of a single person, it is the expression 
 of the will of the community. The absolute monarch expresses the will of 
 the community. 
 
 [To be applicable to the Anglo-American system of law, the use of the 
 term "legislation" requires a wider extension than the text indicates. As 
 employed it does not embrace the de facto creation of law by the courts. The 
 declaratory theory, however, shuts its eyes to the facts, and assumes that 
 the courts merely declare pre-existing law and do not create it. Legislation 
 as the creation of law may arise in three distinct ways: 1. It may be an 
 abstract antecedent declaration of standards. This is legislation in a strict 
 sense, and is what Austin calls direct legislation; thus, statutes enacted by 
 a legislature. 2. It may be an abstract subsequent declaration of standards 
 applied to a state of facts calling for such declaration and adapted for the 
 future. The law-making function of English precedent illustrates this species 
 of legislation. Austin calls it indirect legislation. 3. It may be a contem- 
 poraneous concrete application of standards; thus, custom. 
 
 In European countries precedent has had simply a persuasive influence 
 similar to the non-authoritative position of private commentary. While 
 the authority of precedent has in late years increased in Exirope, it has 
 hardly yet reached that position where it may be regarded as a kind of 
 legislation.) 
 
LAW AND ITS SOURCES 75 
 
 Customary law (sec. 10) and law arising out of necessity 
 {notwendiges Recht) (sec. 12) are examples. 
 
 These kinds of law may arise — 
 
 (a) In the community — ^that is, among the people con- 
 sidered as a homogeneous unity without regard to their 
 organization for purposes of the state, and especially 
 in an economic unity of the community. The com- 
 munity, as it discovers by its own observation necessities 
 which it seeks to satisfy by its own force, also attempts 
 to carry out the legal conceptions generated within 
 itself. 
 
 (6) In portions of the community organized according 
 to station, or based on other distinctions having a social 
 operation. They may find in their organization neces- 
 sities of their own, and accordingly legal necessities 
 peculiar to such organization, which they attempt to 
 satisfy. Customs peculiar to parts of the community, 
 or particular customs, arise in this way. 
 
 (c) In the community of governing social organisms — 
 that is, the community based on the common interests 
 of states. The rules of international law flow from this 
 community. 
 
 The authority of the state, however, lends to all of 
 these rules the character of legal rules. 
 
76 SCIENCE OF LAW 
 
 SECTION 10 
 
 I. CUSTOMARY LAW 
 
 Custom clearly exhibits the necessity of law. It may 
 exist throughout a community, in a part of a com- 
 munity, or in a community of states with common inter- 
 ests. Custom may generate rules by which human 
 conduct is limited and regulated. The state may and 
 in certain cases must lend its recognition to customary 
 rules. Rules originating in this manner and not derived 
 from legislation are called jus non scriptum,^ even 
 though, perchance, they may have been recorded by 
 private persons. 
 
 In order that a rule of customary law may exist, it is 
 necessary that there shall have been a plurality of acts 
 in which no deviation is traceable. This is prerequisite 
 before a rule or standard may be recognized; and the 
 rule must not be opposed to the recognized laws of 
 morality or of reason.^ In that the rule so formulated 
 must be adequate to the necessity of law perceived by 
 the community, its relative conformity to reason — that 
 is, its correspondence with the views of the time of 
 
 ^ D. II, 6, 1 (Ulpian). Hocigiiurjus nostrum constat aiU ex scripto, aut sine 
 scripto, ut apud Gnecos: rdv vb^iiav o? li^v ^yypa(f>ot., ot edypa^ioL 
 
 ^ The controversies regarding the ground of validity, the origin and 
 exigence of customary law, can not be here discussed. Cf. Windscheid, Pand., 
 sees. 15-18; v. Brinz, Lehrb. der Pandekten, sec. 19; Dahn, in Behrend's Z., 
 Bd. IV, p. 553; G. Fr. Puchta, Das Gewohnheitsrecht (1828-1837); G. 
 Beseler, Volksrecht und Juristenrecht (.1843); H. Thol, Volksrecht. etc. ilSiS); 
 and the remaining literature noted in Kraut, Grundriss zu Vorlesungen 
 fiber das deutsche Privatrecht, 6th ed., rev. F. Frensdorfl (1886), sees. 20, 21. 
 The possibility also of custom derogatory to statute must be admitted; 
 cf. Entscheidungen des Reichsgerichts in Zivilsachen, Bd. 37, p. 179. With 
 regard to the modem position of customary law with reference to the German 
 Civil Code and the German Commercial Code, see Gareis, Das. B. G. B. (Giessen 
 Emil Roth, 1898), XXIII, XXIV. and Gareis, Deutsches Kolonialrecht. 
 2d ed. (Giessen, Emil Roth, 1902), p. 76, note 1. 
 
LAW AND ITS SOURCES 77 
 
 origin, etc. — ^is presupposed as the condition of a rule of 
 customary law. 
 
 The customary law of a people is as a rule of earlier 
 origin than its legislation, with which it is generally of 
 equal validity.' It extends back occasionally to ages 
 in which rules of law were not theoretically separated 
 from rules of morals, ethics and religion. It extends 
 back even to times when the legislative function was not 
 yet distinguished from judicial power, and when the 
 judge himself created law. 
 
 Legal history shows universally that from the moment 
 that the dominant social organism is conscious of its 
 mission of providing for legal order, it expressly declares 
 standards for those individual cases in which a necessity 
 is exhibited of a clear or a new rule for the protection of 
 public or private interests. Such primitive legislation, 
 sprung from the necessities of the moment, is necessarily 
 unsystematic, and must leave to custom a wide range 
 
 ^, "The rule of conduct is transcendent law, whether it be taught in the 
 revealed texts or in the sacred tradition; hence a twice-born man who 
 possesses regard for himself, should be always careful to (follow) it." — Manu 
 I, 108. With regard to the historical side of custom, see Leist, Grdcoitalische 
 Rechisgeschichie (1884), pp. 515, 760. Language, also, is or becomes a 
 matter of custom, and has its own laws. Philologists know the laws of the 
 formation of languages, but do not make them; they are simply principles, 
 like those of the natural sciences. 
 
 Ex non scripto i-us venit, quod usus comprobavU. Nam diuturni mores 
 consensu utentium comprobati legem imitantur. — Inst. 1, 2, 9. 
 
 Inveieraia consuetudo pro lege non immerito custoditur et hoc est ius, quod 
 dicitur moribus constitutum. Nam quum ipscB leges non alia ex causa nos 
 teneant, quam quod judicio populi recepUe sunt, merito et ea, quce sine ullo 
 scripto populus probavit, tenebunt omnes; nam quid interest, suffragio populus 
 voluntatem suam declaret, in rebus ipsis et factisl Quare rectissime et illud 
 receptum est, ut leges non solum suffragio legislatoris sed etiam tacito consensu 
 omnium per desuetudinem abrogentur. — Dig. 1, 3, 1. 
 
 With respect to custom in German legal history, see Brunner, Deutsche 
 Rechtsgeschichte, Bd. I, pp. 109, 254, 282; Gierke, Jugend und Altern des Rechts 
 (.Deutsche Rundschau, 1879); also his Deutsches Privatrecht, Bd. I (1895), p. 
 159; Geschichte und Quellen des deutschen Rechts, in v. Holtzendorff's Rechts- 
 lexikon, Syst. T., sec. 3; v. Amira, 'Ober Zweck und Mittel der germanischen 
 Rechtsgeschichte, 1876, pp. 29, 40; O. Stobbe, Geschichte der deutschen Rechts- 
 quellen (1860. 1864); also his Hdbch. des deutschen Privatrechts, sec. 21. 
 
 [In the English law all custom gives way to legislation. Local (immemorial) 
 custom may, however, derogate from the common law.] 
 
78 SCIENCE OF LAW 
 
 of competence. This is shown all the more as private 
 records of customary law are frequently employed in 
 practice in case of the deficiency of statute, and are 
 used in the same manner as statutes. Such records 
 meet the necessity of fixed legal standards, and occa- 
 sionally lead to actual codification.^ 
 
 Even when legislation has attained an extended 
 development, and a competence for systematic regula- 
 tion of the relations affecting conduct, yet there will 
 remain open a wide domain in which customary law 
 may have a function. Modern law, accordingly, still 
 recognizes a great variety of custom-made standards. 
 Frequently the latest of such standards are the most 
 appropriate, as in the case of the custom of merchants. 
 
 Customary law is not formulated by the state, but 
 by the community. It springs from the people in their 
 
 ^ The authoritative sources of ancient unwritten law of Germany are — 
 I. For the first period of German law (prior to the end of the ninth 
 century) ; — 
 
 I. Commentaries of Roman authors; see Kraut, Grundriss zu Vorles- 
 ungen iiber das deutsche Privatrechty 6th ed., rev. by F. FrensdorfiE (1886), 
 sec. 4. 2. Collections of formulas; see FrensdorfE- Kraut, op. cit., pp. 12-14- 
 3. Records; see Kraut, loc. cit., p. 12, and in particular H. Brunner, Zur 
 Rechtsgeschichte der rom. u. germ. Urkunde (1880). 
 
 II. For the period after the dissolution of the Frankish empire to the 
 end of the Middle Ages: — 
 
 1. Law books: Sachsenspiegel {speculum Saxonum), written about 1230 
 (see FrensdorfE-Kraut, pp. 39-43); the Spiegel of the Germans, written after 
 the Saxon Spiegel (see FrensdorfE-Kraut, p. 48) ; the Schwabenspiegel, between 
 1273 and 1275; and works of practice and instruction. 
 
 2- Records, and judgments of assessors (Schoffenspruche); see Frens- 
 dorff-Kraut, pp. 55 to 60. With reference to the law treatises see v. Amira, 
 op. cit., supra, sec. 5, note 1. 
 
 III. The prodigious structure of customary law in Germany was due 
 to the reception of Roman law by way of custom. The Justinian legislation 
 attained in Germany by this reception a. validity in modified form (usus 
 modernus). See Salkowski, Inst., sec. 19. It had authority as subsidiary 
 law untU Jan. 1, 1900, in those provinces which did not possess an ex- 
 clusive territorial civil law. It did not obtain, therefore, in Prussia, Saxony 
 and the territory of the French law. The Roman law was deprived of force 
 by the Civil Code, or more precisely, by the statute introductory thereto. 
 [Art. 55 of the introductory act to the Civil Code (see also art. 2) provides 
 that the private laws of the states are repeated unless otherwise stated in the 
 Civil Code or the introductory act.] 
 
LAW AND ITS SOURCES 79 
 
 economic unity, or from a part of the community. It is 
 responsive to social necessity, and has its vahdity for 
 that reason. Finally, it may proceed from a community 
 of states. The authority of customary law as a legal 
 standard is due, however, only to the dominant social 
 organism. 
 
80 SCIENCE OF LAW 
 
 SECTION 11 
 
 II. LEGISLATION 
 
 Legislation is a declaration of the dominant social 
 organism by which a legal standard is created or imposed. 
 
 The making of such declarations is the province of 
 the state, by virtue of its sovereignty of legislation. 
 As shown above, legal standards transform relations of 
 fact into jural relations. In this transformation freedom 
 of choice is legally limited and therefore legally pro- 
 tected; and legal advantages are created.' As com- 
 pared with customary law, the activity of the state in 
 legislation has a double aspect. It declares the standard 
 from within itself, and invests this declaration with 
 legal character. It also elevates its declarations to the 
 level of a standard, in that it authoritatively interposes 
 its power for the maintenance of legal order. 
 
 Legislation is created not by the community or the 
 people in their economic activity, but by a legally 
 organized people, — the state, — or the governing social 
 entity. Legislation is called jus scriptum. {v6iju>i eyypatposi) , 
 even though it is not written down, and even though it 
 becomes legally binding only by verbal decree. 
 
 No state can be maintained without legislative activ- 
 ity ; but universally, so far as legal history affords infor- 
 mation, legislatively established standards are subsequent 
 in time to customary law. The earliest expression of 
 legislative power does not relate to the whole legal 
 system, but only to isolated, urgent questions, the solu- 
 tion of which at the moment the interest of society, or 
 individuals, appears to require. In this manner de- 
 
 ^ Cf. Gareis, Allg. Staatsrecht, sec. 44. 
 
LAW AND ITS SOURCES 81 
 
 tached penal regulations come into existence, the object 
 of which is security of the community, the protection 
 of its military interests or the security of family and 
 ownership. Legislation takes on a comprehensive char- 
 acter when it undertakes the codification into statute 
 of the theretofore existing customary law.' It attains 
 its summit when it systematically constructs the organi- 
 zation of the state on a legislative basis, and at the 
 same time systematically places the totality of the ele- 
 ments of the state under legal protection. 
 
 The following steps may be distinguished in legisla- 
 tion: Initiative {Initiative), establishment of its text 
 {Redaktion des Textes), promulgation (Promulgierung) , 
 legislative sanction (Gesetzesbefeht) , order of publication 
 {Ptthlikationsbefehl) , and publication.^ 
 
 [In Germany the right of legislative sanction resides 
 in the Bundesrat, and not, as might be supposed, in the 
 emperor; the latter has no veto.] 
 
 There are many varieties of legislation, according to 
 the agencies which are legally authorized by the state 
 to co-operate in the exercise of the legislative function, 
 which declare the standards, or issue the legislative 
 command. 
 
 I. Roman law,^ according to the agencies by which 
 it was established, is divided into — 
 
 1. Leges and plehiscita (popular laws, as the leges XII 
 tabularum, 457 and 450 B.C.*); 
 
 2. Senatus consulta {S.C.ta) ; 
 
 ^ Thus the oldest known Roman laws, the leges duodecim, and the German 
 leges barbarorum, contained a predominance of antecedent customary law 
 which was protected against failure of memory and similar nullification by 
 being put into the form of legislation. 
 
 2 Cf. Gareis, Allg. Staatsrecht, sec. 70. 
 
 'Franz Leonhard, in Birkmeyer's Em., p. 82; Salkowski, Inst., 
 sees. 7-12. For an explanation of the method of citation of Roman law see 
 Salkowski, ibid, sec. 16, pp. 55, 56. Regarding the evolutionary stages of 
 Roman law see in particular Sohm, Inst., sees. 10-18. 
 
 * Leonhard, loc. cit., p. 81. 
 
82 SCIENCE OF LAW 
 
 3. Edicta magistratuum (jus honorarium; for example, 
 the edicta csdilit. prater) ; 
 
 4. Constituiiones principum (imperial statutes distin- 
 guished as edicta, mandata, decreta, and rescripta; the 
 last according to their form, either as adnotationes or 
 subnotationes , epistolcB, sanctiones pragmaticce) ; 
 
 5. Responsa prudentium; {of. the so-called law of cita- 
 tions: Codex Theodos.de resp. prtid. 1, 3, 1, 4, Theodosius 
 and Valentinianus, 426 A. D.).* 
 
 The legislation of the emperor Justinian (reg. 527-565) , 
 which became current as customary law in Germany in 
 the Middle Ages by reception, and which had a sub- 
 sidiary validity in a large part of this country, until 
 Jan. 1, 1900, included, apart from the compilation in the 
 corpus juris civilis of the legislation of earlier emperors : 
 (a) the Institutes (which were intended as a book of 
 instruction) pubhshed Dec. 30, A. D. 533; {h) the 
 Digest or the Pandects {iravSiKTai) , published Dec. 30, 
 A. D. 533; (c) the Code (repetitce prcelectionis) , pubUshed 
 Dec. 29, A. D. 534; and {d) the Novels {novellcB con- 
 stitutiones) . 
 
 II. The written law of the earliest period of German 
 legal history is found in — 
 
 1. The so-called Volk laws {leges barbarorum). Of 
 these the most important are : the tribal law {Stammes- 
 recht) of the Salic Franks {lex salica) , probably dating 
 between A. D. 496 and 511; the Volk laws of the Ripu- 
 arian Franks (lex ripuaria) , arising probably out of two 
 enactments both of A. D. 596; the pactus Alamanorum, 
 two records of the earliest Volk laws of the Swabians, 
 the first of the year A. D. 600, and the second, A. D. 718; 
 the leges Visigothorum, an official collection of kingly 
 statutes of different years between A. D. 466 and 687; 
 the lex Bajuvariorum, the Volk laws of the Bavarians, 
 
 ' lUd, p. 92. 
 
LAW AND ITS SOURCES 83 
 
 originating probably about A. D. 750; the lex Bur- 
 gundionum, dating about A. D. 500; the lex Saxonum, 
 the lex Angliorum et Werinorum, the lex Frisionum, and 
 the local law (Gaurecht) of the Hamaland Franks [lex 
 Francorum Chamavorum] and others, enacted probably 
 about A. D. 802.' 
 
 2. The capitularies^ of the Prankish (Merovingian 
 and Carolingian) kings and their representatives (majores 
 domus) . 
 
 III. The written law of Germany from the end of 
 the Carolingian empire to the end of the Middle Ages 
 is found in — 
 
 1. Imperial statutes;* for example, the Golden Bull 
 of A. D. 1357; the regulation for public peace, and the 
 statute regarding the earliest supreme court of judica- 
 ture, both of A. D. 1512; the imperial regulation of the 
 notarial office; and the regulation of penal justice of 
 Charles V. (constitutio criminalis Carolina, A. D. 1532). 
 
 2. Territorial statutes; for example, the landrecht 
 code of Ludwig of Bavaria of 1346 (revised in 1515, 
 1616, and in 1756 as the Bavarian Civil Code) ; the 
 Solmser Landrecht (code drawn by Joh. Fichard, 1571), 
 etc. 
 
 3. Numerous municipal statutes; for example, the 
 Augsburg Stadtrecht (1276) ; the Freiburg (Breisgau) 
 Stadtrecht, of 1520, drawn by Ulrich Zasius; the Berlin 
 Stadtrecht (1397) ; the Bremen Stadtrecht (1304) ; and the 
 Frankfurt a. M. Stadtrecht (by Joh. Fichard, 1578). 
 
 ^ See V. Amira, op. cit., with reference to Stammesrechte. [A convenient and 
 interesting work in this connection will be found in the book of Guy Carleton 
 Lee, Historical Jurisprudence (The Macmillan Co., 1900).] 
 
 ^ See Alf. Boretius, Capitularia regum Francorum, in Mon. Germ, histor. 
 Leg., sec. II (1883). Cf. the land laws of Charlemagne (Capitulare de villis 
 vel Curtis imperii) with an introduction and notes to the text by Karl Gareis, 
 Berlin, 1895. 
 
 ^ With reference to the form of these statutes see v. Schulte, Deutsche R. 
 Geschichte, sec. 97, and Gareis, Allg. Staatsrecht, sec. 24 (pp. 62, 63). 
 
84 SCIENCE OF LAW 
 
 4. Laws regulating the imperial household and the 
 officers of the court; for example, the Wormser Diensi- 
 recht (1024) ; and the Easier Dienstrecht (thirteenth cen- 
 tury). 
 
 Imperial law, municipal law and Landrecht continued 
 to be concurrent sources of written law* in Germany 
 even after the Middle Ages. 
 
 IV. In the period following bhe Middle Ages until 
 the nineteenth century, written law in Germany de- 
 veloped chiefly in the individual provinces within the 
 empire, which constantly attained a greater indepen- 
 dence and range of activity. Thus the organization of 
 the Prussian state with Brandenburg as its nucleus was 
 brought about by legislation; and at the end of the 
 century (1794) the allgemeines Landrecht of Prussia came 
 into existence. In a similar manner there was formu- 
 lated the Bavarian Landrecht of 1756. 
 
 In modem constitutional states, and particularly in 
 the constitutional monarchy of Germany, jus scriptum 
 is classified as follows: — 
 
 1. Statutes (Gesetze) or laws in the narrow sense. ^ 
 This embraces those laws established as legal standards 
 by the concurrence of all legislative agencies, consisting 
 of the government and the popular assembly, the 
 latter of which is either unicameral or bicameral; and 
 
 2. Regulations, or legal standards established by the 
 head of the state or the government without the con- 
 currence of a popular assembly. 
 
 In the German Empire as now constituted, the differ- 
 ence between these legal standards exists in a double 
 
 * With reference to the German historical sources of written law see Stobbe, 
 Geschichte der deutschen Rechtsquelten I (1860) ; H. Brunner, D. R. Geschichte, 
 also by the same author GrundzUge der deutschen R. Geschichte (2d ed., Leipzig, 
 Duncker and Humblot, 1903), sec. 62, p. 242; FrensdorfE-Kraut, Grundriss, 
 sec. 2; Gender, Germanische RechtsdenkmUler {IBl 5) \ and Richard Schroder, 
 D. R. Geschichte (4th ed., 1902). 
 
 ^ Laws {Gesetze) in the widest sense, see art. 2, Einf.G. ». B G.B. 
 
LAW AND ITS SOURCES 85 
 
 aspect. There are, on one hand, imperial statutes and 
 imperial regulations, the latter consisting of imperial 
 ordinances and ordinances of imperial boards. On the 
 other hand, there are laws of the states composing the 
 empire involving a similar distinction. 
 
 The competence of legislative agencies and legis- 
 lative procedure is determined by the law of each 
 state. ^ 
 
 With reference to the distinction between general 
 and special law see above, sec. 8. Modern imperial law is 
 not subsidiary general law but absolute general law.^ 
 
 ^ The constitution of the German Empire of April 16, 1871, provides with 
 reference to the creation of written law for the empire: — 
 
 Art. 5. Imperial legislation shall be created by the Bundesrat and the 
 Reichstag. The vote of a majority of both assemblies is necessary and shall 
 be sufficient for the enactment of an imperial statute. 
 
 Art. 17. The certification (Ausfertigung), publication ( Verkiindigung) 
 and administration of imperial statutes shall attach to the emperor. The 
 order and decree of the emperor shall issue in the name of the empire and 
 shall bear the countersignature of the chancellor, who shall thereby attest the 
 validity of the statute. 
 
 Art. 11. The presidency of the Bund shall attach to the king of Prussia, 
 with the title, German Emperor. The emperor shall represent the empire 
 in international relations, and shall have the power in the name of the empire 
 to declare war and to conclude peace, to make treaties with foreign states, 
 and to accredit and receive envoys. The concurrence of the Bundesrat is 
 necessary for the declaration of war in the name of the empire unless the 
 territory of the country is invaded- In so far as agreements with foreign 
 states touch such matters as are within the purview of legislation according 
 to Art. 4, the concurrence of the Bundesrat is essential for their conclusion 
 and the approval of the Reichstag for their validity. 
 
 Act 6. The Bundesrat shall consist of the representatives of the Bund. 
 
 Act 20. The Reichstag shall be elected by a general, direct and secret 
 vote. 
 
 Art. 23. The Reichstag shall have the right to formulate laws within 
 the competency of the empire, and may as to petitions addressed to it recom- 
 mend them to the Bundesrat or the imperial chancellor. 
 
 [Members of the Reichstag are elected for a term of three years, and serve 
 without pay.] 
 
 ^ Concerning the relation of the German Civil Code to other imperial laws 
 see Einf. G., art. 32-55; for its relation to state laws, see ibid., art. 3, 4, 55-152, 
 218. 
 
86 SCIENCE OF LAW 
 
 SECTION 12 
 
 OTHER SOURCES OF LAW 
 
 Aside from legislation and custom, both of which are 
 created as legal sources by the authority of the state, 
 the following sources have a legally generative force: — 
 
 (o) Jural necessity (Rechtsnotwendigkeit) generates rules 
 which proceed from the state just as in the case of cus- 
 tomary law. These rules have their origin in the com- 
 munity, as distinguished from the state. They are 
 recognized by the dominant social entity and form jiis 
 necessarium. While every important jural necessity 
 which prevails as a necessity of the community within 
 the state is satisfied by legislation, if not by customary 
 law, it has its chief est function and importance as a 
 source of positive law in that community, for which, as 
 such, state legislation does not exist — ^in the community 
 of states. Necessitas juris is one of the leading sources 
 of international law.' 
 
 (6) Autonomous law, arising from a subordinate power 
 of making law, vested by the dominant community, 
 the state, in other social aggregates within its domain. 
 This power may reside in such parts of the governing or 
 dominant community as have been previously them- 
 selves dominant and which have formerly had legis- 
 lative power, or custom. Autonomous law, of course, is 
 indulged by, and is subordinate to, the law of the 
 dominant community. This power may also reside in 
 privileged corporations, provinces, colonies, etc. The 
 law of such communities or of such parts of communities 
 is nevertheless subordinate to the authority of the state, 
 
 ^ See Gareis, Inst, des V olkerrechts, sec. 9; also infra, sec. 54. 
 
LAW AND ITS SOURCES 87 
 
 and is called autonomous law. When such law is 
 declared, then, as in the case of laws of the state, it is 
 called statute law, or autonomous statute law. When 
 it is not so declared, and consequently is analogous to 
 customary law of the state, it is called observance, or 
 autonomous observance. 
 
 According to present German law (and particularly the 
 private law of the nobility), autonomous law appertains 
 to the heads of the several states and their families, and 
 to the princely house of Hohenzollern ; to the former 
 royal house of Hanover; the former house of the Electo- 
 rate of Hesse; the house of the Duchy of Nassau; and 
 the princely house of Holstein. It also attaches in a 
 limited manner to the former imperial nobility and the 
 feudal nobility.' 
 
 (c) The science of law. This is not an independent or 
 a sovereign source of law. It can declare legal rules 
 only under the dominion of one of the other sources. 
 It is also destitute of that authority by which standards, 
 derived from other sources of law, are sustained — that 
 is, the sovereign authority of the state. But it possesses 
 an appropriate authority in the power of truth and 
 through the conviction of reason. It is employed and 
 has its own peculiar force theoretically among authors 
 and teachers, and practically among judges and lawyers. 
 It declares legal rules which are already latent in exist- 
 ing legislation and custom, but which yet lack authori- 
 tative expression.^ 
 
 > See Einj.G. a. B.G.B., art. 57 and 58, and R.G., March 25, 1904 (R.G.Bl, 
 p. 149). 
 
 ''See supra, sec. 3; cf. v. Brinz, Pandekten, sec. 19; Windscheid, Pand., 
 sec. 20; Stobbe, Handbuch des deutschen Privatrechts, sees. 24, 25; Cosack, 
 Lehrb. d. deutschen bUrgerl. R., sec. 11; Beseler, Deutsches Privatrecht, sees. 
 34-36; Dahn-Bluntschli, Deutsches Privatrecht, sees. 7, 8; and Gareis, 
 Inst, des V olkerrechts, sec. 9. 
 
88 SCIENCE OF LAW 
 
 SECTION 13 
 
 APPLICATION OF LAW (Rechtsanwendungy 
 
 The application of law is a generalization of a case in 
 law (Rechtsfall) under a legal standard, in the same 
 manner that the law itself is derived from generaUza- 
 tion. Accordingly, the application of law requires the 
 consideration of — 
 
 1. The legal standard; its content, force and range: 
 the question of law itself {questio juris in the narrow 
 sense) ; 
 
 2. The case in its relations of fact {questio facti) ; 
 
 3. The generalization which arises from — 
 
 (a) the answer to the legal question; 
 
 (b) the question of fact; 
 
 (c) the possibility of choice between a number of legal 
 rules colliding either in point of time or space . 
 
 Facts are demonstrated by evidence, admissions, gen- 
 eral knowledge, deduction, legal presumptions (prcB- 
 sumptiones juris, also conclusive legal presumptions 
 which exclude proof, or prcBsumptiones juris et de jure) , 
 statutory rules of interpretation and legal fictions. 
 
 The question of the content, force and range of legal 
 standards (questio juris stricto sensu) must be taken into 
 consideration^ in every form of legal appUcation, whether 
 in a judicially responsive (decisional administration of 
 justice) or in non-contentious jurisdiction (see sec. 48, 
 III), and whether in the application or j^^s scriptum or 
 jus nan scriptum. This distinction, however, must be 
 observed that criticism as well as interpretation is far 
 
 > See Salkowski, Inst., sec. 5; Cosack, Lebrb. d. D.B.R., sees. 11-13. 
 ^ Cf. Adolf Stolzel, Schulung jur die zivilistische Praxis, p. 229. 
 
LAW AND ITS SOURCES 89 
 
 more necessary in the interpretation of legislation than 
 in the consideration of jus non scriptum. 
 
 The application of law is preceded by — 
 
 (a) Criticism ( Kritik) , or proof of the authenticity of 
 the legislative text as a whole, and of every word in it. 
 Criticism, therefore, is either selective {wdhlende Kritik), 
 or conjectural ( Konjekturalkritik) ; 
 
 (6) Interpretation {Auslegung), or the discovery of the 
 legislative intent from the law, in which rules of con- 
 struction or the principles of hermaneutics are employed. 
 
 Among the kinds of interpretation the following are 
 to be distinguished: — 
 
 Classified according to the agency, interpretation is 
 authentic if it proceeds through a sovereign legal source. 
 Authentic interpretation may accordingly be legal (legis- 
 lative' interpretation) or ustml (customary interpreta- 
 tion) ; 
 
 Classified according to the means employed, interpre- 
 tation may be either grammatical, logical or historical; 
 
 Classified according to the relation between the verbal 
 sense and the verbal expression, interpretation may be 
 either extensive or restrictive. 
 
 Analogy governs legislative expression. It is the 
 application of a legal rule to a situation not thought of 
 by the legislator, or one which he could not, perhaps, 
 have had in mind, but to which he would have applied 
 the rule. Analogy is a correspondent application of a 
 legal rule propter paritatem rationis.^ 
 
 A choice may be necessary between two or more legal 
 rules concretely in question when there is a temporal, 
 territorial, or generic conflict or collision. 
 
 ' Legal interpretation is also regarded as synonymous with authentic 
 interpretation. 
 
 ^ With reference to interpretation and analogy, etc., see Windscheid, Pand., 
 sees. 21-26. [See also Pound, "Spurious Interpretation," in Columbia Law 
 Review, vol. VIII (1907), p. 379.] 
 
90 SCIENCE OF LAW 
 
 (a) With regard to conflict or collision in point of 
 time, the following rules apply: Lex posterior derogat legi 
 priori, and lex posterior getieralis non derogat legi priori 
 speciali, except when lex posterior generalis radically 
 abolishes a legal institution. 
 
 Retrospective operation of laws is exceptional and 
 results only when expressly provided, or when the 
 object of the new law can not be attained without retro- 
 spective effect.' 
 
 (6) In solving the question of the application of law 
 with reference to its territorial limits,^ there must first 
 be eliminated that class of cases, already noted, where 
 one law is subsidiary to another. The legal maxim, 
 "Local autonomy overcomes municipal law, municipal 
 law overcomes territorial law, territorial law overcomes 
 common law,"^ assumes that in each case the latter 
 term involves a subsidiary position to the former. It 
 assumes that the law set aside by a locally autonomous 
 or private exercise of will (as particularly in the case of 
 agreement) is never lex cogens vel prohibitiva but only 
 lex dispositiva. In all other cases, in the question under 
 consideration, the principles of conflict of laws, or so- 
 called private international law, are determinative,* 
 
 ^Cf. Einf.G. z. B.G.B., art. 1, 153-218. With reference to the detail of 
 the difficulties presented in the application of law from the standpoint of 
 limits of time, see Roth, Deutsches Privatrecht, sec. 50; Stobbe, Handbuch 
 des deutschen Privairechts, sees. 27, 28; Windsheid, Pand., sees. 31-33; 
 Demburg, Pand., sees. 43, 44; Holder, Pand., sec. 16; Regelsberger, Pand., 
 sees. 47, 48; and Cosack, Lehrb. d. D.B.R., sec. 13. 
 
 ^ See V. Roth, op. cit., sec. 51; Stobbe, op. cit., sees. 29-34; Windscheid, 
 Pand., 34-36; Demburg, Pand., sees. 45-48; Holder, Pand., sec. 17; and 
 Regelsberger, Pand., sees. 39—46. 
 
 ** "Willkur bricht Stadtrecht, Stadtrecht brichi Landrecht, Landrecht bricht 
 gemeines Recht." [Each of these terms has a special historical significance 
 in Germanic law.] 
 
 * See Savigny, System des heuiigen rom. Rechis, Bd. VIII, pp. 8-367; Bar, 
 Das iniernationale Privat- und Strafrecht; Brinz, Pand., sees. 22, 23; Cosack, 
 Lehrb. d. D.B.R., sec. 12. Conflict of legal standards can only be obviated 
 by examining and establishing their position with reference to every legal 
 relation, and by seeking to determine in every legal standard the will of the 
 
LAW AND ITS SOURCES 91 
 
 (c) In cases of generic conflict of coexistent legal 
 standards, their place is determined accordingly as they 
 are absolute or subsidiary law, or special or general law.' 
 
 legislator with reference to such conflict. The rule of legislative interpreta- 
 tion affecting declaration of intention which serves to establish but not to 
 create the content of a private expression of will (as in the case of agreement, 
 where the parties have not made provision for a point in question) is dis- 
 tinguished from lex dispositiva as an instrument for supplementing the law- 
 (See B.G.B., 130, 453, 2066; R. Stammler, Dos Recht der Sckuldverhdltnisse 
 (1897), p. 76.) 
 
 > Gierke, D. Privatrecht, sec. 22, I, p. 183. 
 
PART SECOND 
 
 SYSTEMATIC CLASSIFICATION OF THE LAW 
 
 SECTION 14 
 FOCAL POINT AND SURVEY OF THE LEGAL SYSTEM 
 
 I. In order to arrive at a systematic classification of 
 the corpus juris, it is necessary to go back to interests. 
 Interests, as already shown, are based on relations of 
 persons and things (or only of persons).' They are 
 either interests of determinate persons or of communi- 
 ties. These interests may belong to both individuals 
 and communities at the same time; interests of indi- 
 viduals being, however, of greater importance. 
 
 Man is endowed with the faculty of understanding 
 and the capacity for working out the interests of society 
 and harmonizing the impulses of egoism with sociality. 
 This sense of law is derived from the basic principles of 
 human reason. 
 
 Interests are of two classes : — 
 
 1 . Special interests of individuals ; and 
 
 2. Interests of the community. 
 
 Both of these classes of interests may have a material 
 foundation; as, for example, the interest in subsistence. 
 Both may have an ideal basis; thus, an interest in edu- 
 cation. Interests become legal advantages when they 
 are protected by law, the one class becoming the legal 
 advantages of individuals, and the other the legal 
 advantages of the community. 
 
 Interests of the community may be regarded in a 
 double aspect, in the same way that, in the discussion 
 
 ^ See supra, sec. 5, p. 34, note 2. 
 
94 SCIENCE OF LAW 
 
 of the sources of law, the twofold view of the community 
 was of importance. By the term "community," may 
 be understood — 
 
 1. The dominant social entity and its parts; thus, the 
 empire, state, province, parish and other public corpora- 
 tions; and 
 
 2. Society and its parts, consisting of the people col- 
 lectively in their economic relations, associated accord- 
 ing to employment, rank, or otherwise, without regard 
 to state organization. 
 
 The interests of these two classes of social aggregates — 
 the dominant governing community and the economic 
 community — are not necessarily identical. It is con- 
 ceivable that the state may have an interest, as such, in 
 excluding, or placing a burden on, the importation of 
 goods by prohibitive or revenue tariffs. Again, it may 
 be conceived that both communities may have an 
 interest in the same relation, considered as an object, 
 but from different motives, and in unequal degree. 
 Accordingly, there are legal advantages of the govern- 
 ing community, and legal advantages of the economic 
 community. This fact, with the addition of legal advan- 
 tages of individuals, allows of a threefold division of 
 the law into private law, public law^ and social law. 
 This follows to the extent that standards of law, either 
 in the main, or exclusively, relate to interests of private 
 persons, the state and its parts, or the economic com- 
 
 ^ [Public law (offentUches Recht) is divided into Staatsrecht (state law) and 
 Volkerrecht (international law). Staatsrecht again is divided into Ver- 
 jassungsrecht (constitutional law) and Verwaltungsrecht (administrative law). 
 According to German usage Verfassungsrecht is called Staatsrecht in the nar- 
 row sense. Translation requires the use of the expression "public law in the 
 narrow sense" to distinguish Staatsrecht from international law, and the 
 expression "public law in the narrower sense" to designate constitutional 
 law, according to the usage indicated. If it were not for the fact that in- 
 terests of society apart from the state are not made one of the divisions 
 of juristic classification, a further verbal refinement would be necessary. 
 The use of "state law" for Staatsrecht, while persuasive on the ground of con- 
 venience, does not appear to have gained a position in our terminology.] 
 
SYSTEMATIC CLASSIFICATION 95 
 
 munity and its parts, and to the extent that these respec- 
 tive interests are protected, and transformed into legal 
 advantages. 
 
 II. In two respects, this triple division of law is 
 insufficient. The international community, based on 
 an association of international interests, is also legally 
 protected. This is accomplished by standards which, 
 so far as they are peculiar to the international associa- 
 tion, are called International Law. 
 
 Again, the legal rules by which social interests are 
 protected are in part no different from those which 
 give legal protection to individual interests in private 
 law* considered as a means of protection of the com- 
 munity. On the other hand, also, the state takes as its 
 province, not only the protection of its sovereign inter- 
 ests, as a governing community, — which is accomplished 
 by public law in the narrow sense (Staatsrecht) , — ^but also 
 assumes to protect and in part to further social inter- 
 ests. By reason of the historical reception of social 
 interests by the state, which assimilation resulted under 
 the greatest variety of operating circumstances, it has 
 followed that social law {Gesellschaftsrecht) , (so far as it 
 is not at the same time private law) has evolved along- 
 side, in the name, and in the domain, of state law. 
 
 To a great extent, the means, by which genuine 
 interests of the state which are not social interests — or 
 at any rate are not such principally — are furthered and 
 protected by non-private force, are of the same kind 
 and operation as in the protection of social interests. 
 For example, the coercive measures of the statutory 
 domestic police, whether of preventive police security 
 or positive-vfeliaxe administration. 
 
 * This method of protection of social interests corresponds most nearly 
 with the Manchester state or the legal state i Rechtsstaat) in the narrowest 
 sense. Cf. sec. 41. 
 
96 SCIENCE OF LAW 
 
 The legal rules which have for their object protection 
 of interests of the state and make public law in the 
 narrow sense; those which are intended to protect and 
 guarantee the interests of society and which form social 
 law; and, finally, those legal rules through which an 
 international community of interests is elevated to the 
 position of a legal community in international law, are 
 collectively in contradistinction to the standards through 
 which private individuals are protected in their private 
 or civil interests. The distinction lies in this, — ^that, in 
 the first three cases, interests are involved which, in 
 verbal opposition to private interests, must be called 
 public interests. Therefore, the law which in such 
 cases affords the contemplated protection of interests 
 is called public law, or jus publicum. 
 
 III. The principal division of the corpus juris into 
 private or civil law {jus privatum or jus civile), and 
 public law {jus publicum), thus arises. 
 
 Inasmuch as social law, for the two reasons con- 
 sidered, has no definite position in the classification, 
 public law is separated into — 
 
 1. Public law in the narrow sense (state law, Staats- 
 recht, jus publicum, civitatum or alicujus civitatis) , includ- 
 ing also the standards for the protection of social inter- 
 ests. Social interests, while not completely embraced 
 by this division, yet can not be separated from it; 
 
 2. International law {jus inter civitates, jus inter 
 gentes, belli et pads; see sec. 54). 
 
 Public law in the narrow sense, according to the 
 leading interests and the chief functions which the state 
 represents and furthers in its activities, is divided into — 
 
 1. Constitutional law, which includes the standards 
 through which the stability of state sovereignty in its 
 (a) organization and (6) elements is legally protected; 
 and 
 
SYSTEMATIC CLASSIFICATION 97 
 
 2. Administrative law, which embraces the totality 
 of legal standards which govern the activity of the 
 state in (a) legislation and (b) administration (under- 
 stood in a sense opposed to legislation and embracing 
 all non-legislative state activities). 
 
 IV. The relation of the several parts of the law to 
 each other in developed systems is variable. It is 
 impossible to derive the proper scope of public law in 
 the narrow sense (state law) as against private law 
 abstractly either from the nature of law itself or from 
 the nature of the state. The same want of uniformity 
 in the appropriate line of demarcation appears in actual 
 systems as is shown in the theoretical view — ^the political 
 science of legislation {Gesetzgehungspolitik, de lege ferenda) . 
 
 In ancient times, and in the Middle Ages, there were 
 a large variety of matters, which we now con- 
 sider as belonging to public law, which were embraced 
 by private law. In earlier times these matters only 
 indicated individual interests and not social interests. 
 The adjustment of social conditions appeared more 
 simple through standards of private law than of public 
 law. Nevertheless, every state must recognize, and 
 must have recognized from the beginning, a large 
 number of standards as belonging to public law. 
 
 Constitutional law, and military law, even though in 
 the most primitive form, and universally, the rudiments, 
 at least, of private law, as such, must have been recog- 
 nized by the state. But the residue of the law and its 
 details present an extraordinary diversity of conception 
 and practice. There is frequently a lack of distinction 
 between public and private law, and universally so in 
 lower stages of civilization. Interests of the community, 
 which though imperfectly understood* are yet present 
 
 * In this connection the report of the German corvette captain, von Werner, 
 of Dec. 19, 1878, from the South Sea station, the harbor, Makada of the Duke 
 of York, is highly interesting: — 
 
98 SCIENCE OF LAW 
 
 and vaguely apprehended, receive protection uncon- 
 sciously (and one may say instinctively) through the 
 forms and standards governing the affairs of private 
 persons. 
 
 The infringement of interests, such as in the present 
 age are treated absolutely, in the law, as interests of the 
 community, were, in earlier stages of civilization, sanc- 
 tioned by the same means, and m the same manner, 
 as purely private interests. Thus taxation, which in 
 the modem view, belongs solely to the fiscal sovereignty 
 of the state, was provided for in the German Middle 
 Ages to a large extent by a contractually derived legal 
 arrangement, according to analogy of private law. The 
 relations of feudal dependents received little regulation 
 by means of public law. 
 
 Instead of legal interference by public law for the 
 protection of public interests, there was allowed (as 
 also in the Roman law) a system of private actions by 
 private persons. Accordingly, instead of the legal per- 
 sonality of the community, the legal personality of the 
 head of the state was regarded as the private legal 
 owner of interests to be protected by public law. The 
 community in private law was not considered as a per- 
 son, but, instead, the head of the state. 
 
 On the other hand, however, it is to be observed, in 
 lower orders of civilization,' that private law is pushed 
 
 "There was no other way to preserve German influence in this region than 
 the purchase of a harbor; as in the present low condition of civilization of 
 this race, the conclusion of an (international) agreement was out of the 
 question. Their intelligence is not yet equal to such an agreement." (See 
 the official memorial which was presented to the German Reichstag with the 
 Samoan agreement of Jan. 29, 1879: No. 239, p. 153 of the proceedings of 
 the Reichstag) . 
 
 ^ Cf. the above memorial (p. 157), according to which there did not exist 
 among the South Sea Islanders any secure personal ownership, but only 
 family, tribal or chieftain ownership. See sec. 20, infra, with regard to the 
 development of private ownership. With reference to community or chief- 
 tain ownership among these people C'tabu" and "blul") and community 
 labor C make sang") see also Karl Semper, Die Palaoinseln, pp. 49, 72, 73, 
 120. 
 
SYSTEMATIC CLASSIFICATION 99 
 
 into the background by state law in the case of interests 
 which we now recognize and protect as interests of indi- 
 viduals, and which by such civilizations are given a very 
 extensive protection as interests of the community. 
 
 From the standpoint of the modem conception of law 
 the following propositions must be advanced: — 
 
 1. The actual delimitation of private law from public 
 law, a distinction which was already made by the 
 Romans,^ is nothing other than an answer to the deci- 
 sive question. Whose interest is to be protected? In the 
 interest of whom shall an actual relation of fact be 
 elevated to a legal relation? The answer to this ques- 
 tion lies with legislation. It must be regarded as the 
 greatest function of legislation to determine what advan- 
 tages shall be legal advantages of the community. The 
 state in this activity, in which it creates a legislative 
 public law (in the narrow sense), is legally independent. 
 It may therefore mark out the limits of public and 
 private interests as it wills. In like manner, the state 
 may also establish a common domain for individuals 
 and the community, in which interests of the community 
 and of individuals are coincidently invested with the 
 protection of public and private law.^ 
 
 2. Rights are created by public as well as by private 
 law. For example, the state by virtue of established 
 legal standards governing military service has a right 
 to demand the registration and conscription of persons 
 capable of such service. Official rights and official 
 powers which belong to public officers (or to public 
 societies), or to military commanders, are, in their 
 essence, rights of the community. They are based only 
 on social interests, and accordingly are public rights. 
 
 ' Ulpian, Dig. 1, 1, 1, 2; also Julian, Dig. 1, 1, 4. 
 
 ^ As in the case of ownership, for the protection of which there may be public 
 punishment, as in larceny, and action for a private remedy, — restitution or 
 compensation. The interest in human life and in human health is another 
 example. 
 
100 SCIENCE OF LAW 
 
 These rights of pubHc servants may also be considered 
 as transferred on the part of the state. Or it may also 
 lie in the public interest to regard the possession of 
 official authority as vested rights of such public officers.' 
 
 3. The community, as well as individual private 
 persons, may coincidently have an interest as to any 
 relation of fact. It is also conceivable that such an 
 interest may exist concurrently in the international 
 community; in the dominant governing entity, whether 
 of one or more states; in a community within the state; 
 and in individual private persons. In such case the 
 relation is protected by international, state and private 
 standards.^ The protection of the same interest by 
 one standard does not exclude the others. Public 
 interest may particularly require the fulfillment of a 
 private agreement according to its terms. ^ 
 
 4. Ethnological, historical, climatic and other internal 
 and external influences, which are of significance in legal 
 evolution, operate with much greater difference of con- 
 sequence on the form of public than of private law. It is 
 true that a greater diversity is possible in the private law 
 of a state than in its public law, inasmuch as the public 
 law of a state must be unified in its structure. Yet 
 there is a greater variation in the interests guaranteed 
 by public law among states of the same level of civiliza- 
 tion than in their private laws. Therefore, the recep- 
 tion of foreign institutions of private law is more easily 
 possible than the reception of foreign institutions of 
 
 ^ Cf. Gareis, Allg. Staatsrecht, in Marquardsen's Handbuch d. dif. Rechts^ 
 Bd. I, pp. 13, 14. 
 
 ^ E.g., the robbery and murder of a married soldier lying wounded on a 
 battlefield by battlefield ghouls may possibly include an infringement of all 
 the standards mentioned. 
 
 ' Cf. Str.G.B., sec. 329 : "Whoever agrees with the public authorities 
 for the delivery of provisions for the use of the army or the navy in time of 
 war, or for necessities for use in a time of distress, and who shall intentionally 
 fail to make delivery at the stipulated time, or in the stipulated manner, 
 shall be imprisoned not less than six months, and may also be deprived of his 
 civil status." — Gareis, Reichsgesetze, No. 143-146. 
 
SYSTEMATIC CLASSIFICATION 101 
 
 public law; and the reception of the latter requires the 
 exercise of the greatest circumspection.^ 
 
 5. The supremacy of public law in the protection of 
 established rights of the comrnunity demands that 
 private interests shall, under definite conditions, give 
 way in cases of conflict to the public interest. It is 
 also a consequence of the sovereignty of public law, 
 comparable to the force of the idea of law itself, that the 
 dominant social entity shall assume the nature of a 
 private person, — ^in this sense, called the fiscus, — and, in 
 this character, be regarded and treated like a civil 
 person. 
 
 * "With reference to the relation between public and private law see Gareis, 
 Allg' Staatsrecht, in Marquardsen's Handbuch d. off. Rechts, Bd. I, sec. 3, 
 pp. 7, 11-15, and the literature in the notes. 
 
 JUL 24 'i^'l 
 
 LAW Li- " 
 
 Lj^. 1 . 
 
102 SCIENCE OF LAW 
 
 (A) CIVIL OR PRIVATE LAW 
 
 SECTION 15 
 ELEMENTS OF CIVIL OR PRIVATE LAW 
 
 It is the function of private law to protect the inter- 
 ests of private persons. These interests consist of rela- 
 tions to objects, and the protection of these relations 
 against deprivation, infringement and interference. Such 
 relations, however, arise or exist under the influence of 
 legal order as legally regulated relations based on definite 
 facts, or so-called juristic facts. The law attaches its 
 protection to these facts. Rights, therefore, spring from 
 the creation, extinction or alteration of such facts. 
 
 The law recognizes private interests, not alone for the 
 sake of the individual, but also for the sake of society. 
 Its viewpoint is social as well as individual. Only those 
 private interests are protected, by the authority of the 
 community, which are conformable to the general wel- 
 fare. Even in private law, where legal order ifirst of all 
 provides for individual interests, it must also strive for 
 the common good. This is the social object of private 
 law.' 
 
 Out of the foregoing objects arise the following four 
 elements of private law: (1) a legal subject, (2) a legal 
 object, (3) a juristic fact, and (4) legal protection. 
 
 I. Legal subjects^ are the owners of their legally pro- 
 tected interests. A person is any entity which may be 
 the holder or owner of such interests. Legal order 
 
 ^ Gierke, Die soziale Aufgabe des Privairechts (Berlin, Julius Springer, 1889), 
 particularly p. 6; cf. Ihering, Zweck im Recht I, pp. 64, 82, 99: "The truth of 
 the proposition.^ — every person exists for the world, and the world exists for 
 every one — is found in society." 
 
 ^ Salkowski, Inst., sees. 42, 79; Sohm, Inst., sees. 20-25. 
 
SYSTEMATIC CLASSIFICATION 103 
 
 makes provision accordingly as to what entities have 
 this capacity, which is called capacity for rights, and 
 which is synonymous with personality. Capacity for 
 rights is distinguishable from capacity for acts. The 
 latter is a legally recognized capability of exercising the 
 will in juristic acts.* 
 
 The law may distinguish various kinds of capacity, — 
 for rights, as well as capacity for acts; differing accord- 
 ing to age,^ sex, family status, rank, social position,^ 
 residence, * etc. 
 
 The distinction based on social position depends 
 always on the political history of the people and has an 
 internal connection with previous facts concerning the 
 state. This is particularly true of the distinctions 
 arising out of birth; thus, the nobility (higher, middle 
 and lower), the common people, mancipated persons, 
 and the so-called half-free and slaves. All these divi- 
 sions are frequently separated by impassable barriers. 
 Caste is of this nature. Social position arising out of 
 calling or vocation also generates capacities; thus, 
 ordinary citizens (Burger), tradespeople, soldiers, the 
 clergy, artisans, peasants. All these persons are set 
 apart in particular classes under special legal standards. 
 
 All persons are recognized as having capacity for 
 rights, — even though, as pointed out, this capacity may 
 be of different grades, — unless these persons are regarded 
 
 ^ Thus, according to German law, children under the age of seven years 
 are capable of rights but incapable of acts; the same is true of those persons 
 who, on account of mental defects, are prevented from exercising a free 
 determination of will. See B.G~B., sees. 6, 104, 105. Disposing capacity 
 in the sense of B.G.B. is one of the subdivisions of capacity for acts. See 
 Gareis, Kommentar sum B.G.B. I, note to sec. 104. 
 
 2 B.G.B. distinguishes as follows: The period of minority up to the age 
 of seven years; the period of minority in the strict sense, between the years 
 of seven and twenty-one, in which there is limited disposing capacity (B.G.B., 
 sees. 106-113); and the period of majority beginning with the completion 
 of the twenty-first year. Minors of the age of eighteen may receive a declara- 
 tion of majority (B.G.B., sees. 3-S). 
 
 3 See sec. 18, II, infra. 
 * B.G.B., sees. 7-11. 
 
104 SCIENCE OF LAW 
 
 as things or slaves in the lowest stages of bondage. 
 These subjects of rights are called natural persons.* 
 
 There are, however, certain entities which are not 
 human beings and which still have interests to which 
 the law assigns legal protection. In other words, legal 
 systems recognize the possession of rights which are not 
 interests of individual persons but of other entities, or 
 aggregates of persons or property. 
 
 It is not necessary that legal systems shall create 
 such interests. The ideals and necessities of mankind 
 recognize them before the law. Legal order under 
 certain conditions invests such interests as are found 
 to exist in fact with the protection necessary to trans- 
 form such interests into legal advantages. The entities 
 whose preterhuman interests are in such manner pro- 
 tected are called juristic (fictitious, artificial, or moral) 
 persons in contradistinction to natural persons. Juristic 
 persons are either aggregates of persons (universitates 
 personarum}) or aggregates of things {universitates 
 rerum) .' 
 
 Private law recognizes the following classes of juristic 
 persons : — 
 
 1. The state, or the governing social entity, in its 
 private legal relations. In this aspect the dominant 
 entity does not authoritatively represent its interests 
 by virtue of its attribute of sovereignty. Its activity 
 here is the same as that of any free citizen in the state 
 in the satisfaction of private economic necessities. In 
 this activity a state is called the fiscus,* or treasury, 
 in contradistinction to the activity in which the state 
 
 'The first section o£ B.G.B. provides: "Capacity of persons for rights 
 begins with the completion of birth." This excludes every species of corporal 
 ownership and bondage. Capacity for rights continues until death, or until 
 legal declaration of death (B.G.B., sees. 13-20). 
 
 2 B.G.B., sees. 21-79. 
 
 * Foundations (Stiftungen) and institutions iB.G.B., sees. 80-89). 
 
 ' B.G.B., sees. 89, 928. 1936, 1942, 1966. 
 
SYSTEMATIC CLASSIFICATION 105 
 
 represents public interests of the community by' sov- 
 ereign law in the governing sense (res publico) . 
 
 2. Public communities within the state, which repre- 
 sent public interests; thus, municipalities, parishes, 
 towns, provinces and similar communities.' ' 
 
 3. Aggregates of persons, such as associations (cor- 
 porations) " arising from joint concurrence or agreement, 
 which have legal interests, in that the law gives them a 
 legal position. According to the conditions of the legal 
 recognition of their juristic personality, such corpora- 
 tions {collegia corpora) are: guilds and industrial frater- 
 nities, and those privileged aggregates of persons which 
 are under state supervision {collegia sodalicia) ; for 
 example, the Roman collegia funeraticia, and modern 
 associations for accident, age and health insurance in 
 the German Empire. These associations under state 
 recognition have social objects as opposed to objects of 
 the state or of individuals.' 
 
 4. Associations for profit {societates qumstuaricB) , 
 which the law specially invests* with the capacity for 
 having rights; thus, share companies,^ registered asso- 
 ciations, and mining companies, in the modern law. 
 
 5. Churches, churchly associations and institutions.' 
 
 ^ As to the historical importance of German real communities (Realge- 
 meinden), mark associations, see infra, sec. 7, II. 
 
 2 B.G.B., sees. 21, 55-79. 
 
 ^ Of this class are associations for health insurance according to sec. 25, 
 imperial statute (June 15, 1883) (Gareis, Reichsgesetze 5, 147-8, 40); also 
 fraternal associations for accident insurance according to sec. 23, imperial 
 statute (July 6, 1884) (Gareis, Reichsgesetze 6, 28-9, 40, 7, 14, 68, 60-1); 
 and institutions for insurance according to sec. 68, Invalidenversicherungs- 
 gesetzes (July 13, 1899) gareis, Reichsgesetze III, 12). It is one of the chief 
 objects in the social aspect of the law (Sozialpolitik) to promote such asso- 
 ciations having social ends with functions legislatively determined, and with 
 definite rights fixed by statute. 
 
 * B.G.B., sec. 22. Cf. Cosack, B.R., sec. 29. 
 
 * Share company (AMiengesellschaft). Registered association {eingetfagene 
 Genossenschaft) . Cf. below, sec. 23, III, 5. 
 
 See Canon Law, below, sec. 57. 
 
106 SCIENCE OF LAW 
 
 6. Foundations,' that is, complexes of property which 
 are recognized by the law as holders of rights for the 
 accomplishment of certain limited objects: picB causes, 
 etc. 
 
 II. The object of an interest (which is the basis^ of 
 all private legal relations)^ is always a relation of fact, 
 of one or more physical or juristic persons, considered 
 as legal subjects, with reference either to other persons 
 or to things. The relation of a legal subject with refer- 
 ence to other persons forms either family law (sec. 25, 
 infra) or the law of obligations (sec. 22, infra). The rela- 
 tion of a legal subject with reference to things by virtue 
 of which a thing is under the dominion of the person 
 entitled, either in its entirety, or only in a particular 
 way, makes the law of real relations (sec. 19 et seq.), — 
 the law of things. 
 
 Inasmuch as things (but not persons) may be sub- 
 jected in whole, or in part, to the direct dominion of a 
 subject, they are frequently called the objects of rights. 
 
 The conception, thing,'' includes — 
 
 1. Material things, as follows: — 
 
 (a) Movable things {res mobiles, Fahrhabe) ; thus, 
 money, articles of commerce, goods, animals (res sese 
 moventes) ,^ clothing, arms, provisions, etc. 
 
 1 B.G.B., sees. 80-88. 
 
 ^ With reference to this notion, see sec. 5, page 29, supra. 
 
 ^ Concerning the ideas, legal relation and condition, see notes 1 and 2, 
 under sec. 5, p. 31, supra. 
 
 "* Salkowski, Inst., sec. 81; Sohm, Inst., sees. 45, 46. The kinds of things 
 classified, B.G.B., sees. 90-103. 
 
 ^ Completely dependent persons — that is, slaves, where slavery exists as 
 an institution, or has existed, are to be included among things. For illustra- 
 tion, in Germanic Volksrecht, servus and ancilla were coupled together with 
 bos, equus, etc. Slavery had its origin in ancient times and in the Middle 
 Ages in subjugation in war, and in conquest. Slavery of individual persons 
 arose out of the relation of such persons to a people subjugated in war; out 
 of slave birth, captivity, and servitude for debt. It is interesting to note that 
 certain very ancient laws, in order to favor freedom of individual persons, in 
 certain cases recognized a prcESumptio liberiatis; thus, for example, the law of 
 
SYSTEMATIC CLASSIFICATION 107 
 
 {b) Immovable things (res immobiles, Liegenschaften) ; 
 thus, lands. 
 
 2. Immaterial things thus, corporal existence and 
 freedom, reputation, authorship in works of literature 
 and art, inventions, etc. 
 
 III. The relation which is the basis of an interest, 
 forming a private legal relation, is established, con- 
 formably to legal order, by a definite fact. By this fact, 
 legal relations acquire a characteristic legal protection, 
 and the immanent interest is elevated to the plane of 
 legal advantage. The impulse by which this is accom- 
 plished is called the juristic fact. Such a juristic fact 
 is also required for the extinction or alteration of a legal 
 relation or a legal advantage.' 
 
 Juristic facts include — 
 
 (a) Elemental occurrences in the course of nature. 
 Such occurrences may be destructive, as in the case of a 
 hail storm, or the death of persons or animals. They 
 may be productive, as in the growth or ripening of 
 fruits, or the birth of persons. Finally, they may be 
 alterative, as in physical or chemical processes, or in a 
 destructive or productive influence upon life and human 
 interests through lapse of time.^ 
 
 the Cretan city, Gortyn (about 450 B. C.)- See A. GmoU in the scientific 
 supplement to the Programm des stddt. Progymnasiums s« Striegau (1889, 
 I, 14, p. 10). 
 
 ^ The situation in which a young man, capable of marriage, stands to a 
 young lady, and his interest in her, in her affection and fidelity, are protected 
 only by the impulse of the juristic fact of an actionable betro;thal or marriage. 
 (Cf. below, sec. 26.) The interest which one may have in the complete 
 use of a garden is first protected by the impulse, or juristic fact, of a con- 
 veyance, or recording of a title which makes the garden his property. (Cf. 
 below, sec. 20.) The interest which one who suffers a physical injury has 
 in damages for the expenses of his cure, lost time and smart-money, arises 
 at the same instant that the injury is sustained. (Delict as a juristic fact, 
 see sec. 24.) If the damage is fully satisfied by payment, then the payment 
 (solutio) becomes the operative juristic fact of the extinction of the claim 
 for damages. (Cf. below, sec. 22.) 
 
 ^ Cf. the legal institution of prescription B.G.B., sees. 194-225; usucaption, 
 B.G.B., sees. 937-945; concerning time and dates, B.G.B.. sees. 186-193. 
 
108 SCIENCE OF LAW 
 
 (b) . Human acts, or the casually derived operation of 
 the human will on the external world. These acts may 
 be: (1) such as are in conformity with legal order, as 
 governing external relations, and which accordingly are 
 called lawful acts; or (2) such acts as are contrary to the 
 rules of legal order, and which are called unlawful acts. 
 
 Juristic facts' arising out of lawful acts are either 
 unilateral dispositive acts, as in a voluntary transfer 
 on the part of an owner of his ownership, or in the 
 making of a will ; or 
 
 Such acts are bilateral, in agreement, which is a con- 
 currence of will of two or more private persons, whereby 
 a change is to be effected in their rights, in accordance 
 with legal order. The most important operation of 
 agreement lies in the domain of the law of obligations 
 (sec. 22). Yet there are agreements having a real 
 operation {tradition, delivery) (sec. 20); and some lie in 
 the domain of family law (sec. 31) and the law of 
 inheritance (sec. 36). 
 
 Unlawful acts by virtue of positive law operate to 
 create obligations to pay damages,^ penalties, or both, 
 and of course operate also to extinguish or alter rights.^ 
 
 IV. The fourth element of private law is the protec- 
 tion of the relation itself,* or the protection of the 
 interest. This protection extends so far as is possible 
 with the means afforded to legal order, — command and 
 prohibition, — and so far as it desires to protect the indi- 
 vidual having in view its social function. 
 , This protection js afforded in a variety of ways. 
 
 ^ Dispositive acts, see B.G.B., sees. 104-185. 
 
 2 B.G.B., sees. 823-853. 
 
 ^ The criminal act of setting fire to a house which completely destroys it 
 extinguishes the object of ownership. The claim for damages therefore rests 
 upon a different object than that of ownership. See note 2, supra. 
 
 * Cf. Sohm, Inst., sees. 26, 33. 
 
SYSTEMATIC CLASSIFICATION 109 
 
 1. In the abstract. 
 
 (a) Even in the ideal; that is, through the simple 
 existence of legal standards. In this aspect, command 
 and prohibition, as such, operate on morally governed 
 and law-abiding men. It is sufficient for them to know 
 what is commanded and what is prohibited, in order 
 that their acts may conform to legal order. 
 
 (b) In a practical aspect, the simple existence of legal 
 duties, the existence of courts, justice, the machinery 
 of the law and public access to the courts with a possi- 
 bility of judicial enforcement, are sufficient to deter 
 many men from those acts which are prohibited, and to 
 occasion those acts which are commanded by legal order. 
 
 2. In the concrete. 
 
 (a) Even to the extent of permissive acts of self- 
 help, but only in cases of necessary defense (Notwehr), 
 or necessity' arising from the existence of danger (Not- 
 stand) . 
 
 (b) Through precautionary judicial and extrajudicial 
 measures of security: thus. Protestation' ( Verwahrungen) 
 [declarations against consequences possible to be drawn 
 from positive acts, or silence]; Reservation^ ( Vorbehalte) 
 [declarations limiting the ordinary effect of the abandon- 
 ment or transfer of rights]; Kaution' (Sicherheitsleistung^) 
 [an act by which a future injury to a right may be 
 either avoided, or by which, in the event of its infringe- 
 ment, restitution may be secured]; Realkaution' [the 
 giving of bail or pledge for security]; Verbalkaution' 
 [an agreement by which the parties establish the com- 
 pass of the right involved and the penalty for its viola- 
 tion];* Immission' (Besitzeinweisung) [the act of the 
 creditor taking possession of property of his debtor for 
 
 ' B.G.B., sees. 227-231, 859. 
 
 ' [German, legal terminology.] 
 
 ' B.C.B., sees. 232-240. 
 
 * Cf. suretyship (Biirgschaft), sec. 23. infra. 
 
110 SCIENCE OF LAW 
 
 security, corresponding to the missio in bona of Roman 
 law], etc. 
 
 {c) Procedural assertion of rights threatened or 
 infringed, by means of action including either com- 
 plaint or plea. (See below sec. 50, Civil Procedure.) 
 
SYSTEMATIC CLASSIFICATION 111 
 
 SECTION 16 
 
 SYSTEM OF CIVIL LAW AND ITS DEVELOPMENT 
 IN GERMANY 
 
 (a) The System 
 
 The systematic classification of private legal standards 
 must be based on those interests which subjects of rights 
 have or may have by virtue of their existence, and their 
 real or artificial will. These interests exist with refer- 
 to things, or the attitude of persons. Otherwise ex- 
 pressed, the object of these interests is — 
 
 (a) A situation with reference to a thing; or 
 
 (b) A definite attitude of a person.^ 
 
 Accordingly there arises a twofold legal division: — 
 (a) Legal standards by which a situation of persons to 
 things is maintained; and 
 
 (6) Legal standards by which a situation of persons 
 with reference to other persons, or an interest in the 
 attitude or conduct of other persons, is maintained. 
 
 The legal division corresponding to the rights involved 
 
 ^ A double sense is to be borne in mind, as indicated above (sec. 6, notes 1 
 (p. 33), and 2 (p. 34)): whether the interest is that of an unrestrained deter- 
 mination of the will, or whether the interest is in an object. It is to be 
 further remarked that an interest in the conduct of a person may be 
 directed immediately toward a thing. The vendee of a horse, to whom 
 delivery has not yet been made, has, of course, an interest in the horse ; but 
 his situation with reference to a particular horse, or a horse in general, is 
 not such as legal order will protect solely on the ground of a contract of 
 sale. It is accordingly possible to distinguish between an economic interest, 
 and a juristic interest or a legally protected interest. 
 
 The existence of an economic interest is recognized by law to the extent 
 that a creditor is obliged to accept the performance of an obligation through 
 a third person who is not his debtor. (See B.G.B., sec. 267, and c/. Wind- 
 scheid, Pattd., sec. 342, i, and literature there noted.) But the legally interest- 
 ing, the actionable, and above all the protected fact is still the interest of the 
 creditor in the conduct (performance, payment, etc.) of the debtor. 
 
112 SCIENCE OF LAW 
 
 (a) Rights with reference to things; and 
 
 (b) Rights with reference to persons. 
 
 Inasmuch, however, as things consist of material 
 and immaterial property, the law of things falls into 
 two groups: — 
 
 (a) The law of material things (sees. 19-21); and 
 
 (b) The law of immaterial things (sees. 17-18). 
 
 In like manner, interests in the attitude of persons 
 present a further division. 
 
 Such interests may arise from natural (physiological) 
 and ethical relations inherent in kindred life' and from 
 other relations growing out of such association. In 
 other words, these interests may arise from the naturo- 
 ethical nature of the family, or they may spring from 
 voluntary acts of persons having a free determination of 
 will. Obligatory interests may arise from duties volun- 
 tarily assumed and requiring a definite attitude in 
 accordance with legal order, as when a person obliges 
 himself to certain conduct by agreement. Such duties 
 may also spring from acts in contravention of legal 
 order, — delicts, — ^and oblige a person to a definite atti- 
 tude; such as an obligation to pay damages. 
 
 The law of persons accordingly severs into — 
 
 (a) Family law (sees. 25-29) ; and 
 
 (b) The law of obligations (sees. 22-24). 
 
 The law of immaterial things, which includes the right 
 of freedom from restraint, freedom from injury, the 
 right of reputation, and the right to intellectual creation, 
 may also be considered as the law of personality. This 
 division relates to rights peculiar to one's own person 
 {Reckte an der eigenen Person, oder Personlichkeits- 
 rechte^) (sees. 17, 18). 
 
 ' [To avoid possible confusion, it should be stated that these rights form 
 simply one of the classes of the major division, rights in rem, as opposed to 
 
SYSTEMATIC CLASSIFICATION 113 
 
 The foregoing concludes the strict logical arrange- 
 ment of the law. Didactic and practical considerations 
 of expediency require a farther distinction. Its basis 
 is that certain events at one and the same time, may 
 essentially involve material and immaterial things, the law 
 of obligations, and family law, and may aflEect the whole 
 existence of persons in their economic relations. These 
 events operate as juristic facts. They accordingly 
 might, like all other juristic facts, remain unnoticed in a 
 systematic arrangement of the law, except that in such 
 case their position would necessitate separate promi- 
 nence in every department of law. Such a plan would 
 be extremely cumbersome, and would lose in that com- 
 prehensiveness and clearness which necessarily follow 
 from a sameness of starting point which is systematically 
 adhered to. 
 
 Events of such extensive influence as to involve the 
 four groups of the law which have been classified are — 
 
 The death of a physical person ; and 
 
 The creation, alteration or extinction of a family 
 relation, which while susceptible of consideration as an 
 object of interests, may be regarded at the same time 
 as a dispositive juristic fact. 
 
 In consequence of the practical necessity of classify- 
 ing such events, two groups of legal rules arise, which 
 may be combined under the expression, "mixed law of 
 persons and things." The first of these groups is based 
 on the event of death and produces the law of inherit- 
 ance. The second governs the relation of pure family 
 
 rights in personam. Rights in rem avail against the whole world, while rights 
 in personam attach only as against definite persons. 
 
 There is another leading division of rights, i. e., proprietary and personal. 
 Proprietary rights have an economic basis, while personal rights have only 
 A juridical basis. 
 
 Rights peculiar to the person in the sense here are one of the divisions of 
 the law of things. See appendix. See also Salmond, Jurisprudence (2d ed., 
 1907), sec. 82; and Schuster, Principles of German Civil Law (1907), p. 67.] 
 
114 SCIENCE OF LAW 
 
 law to the law of things and obligations, and is called 
 the law of family property. 
 
 Private law, therefore, is classified into the following 
 six divisions : — 
 
 I. The law of personality; 
 II. The law of material things ; 
 
 III. The law of obligations; 
 
 IV. Pure family law; 
 
 V. The law of family property; and 
 VI. The law of inheritance. 
 
 (b) The Historical Evolution of German Civil Law. 
 
 The formative rules of the divisions of the legal 
 system, as above developed, did not emerge in a sym- 
 metrical evolution among the German people. The 
 Germans, after the collapse of the empire of Charlemagne 
 and until very recent times, lacked political unity and 
 a systematically operative and unified legislation. 
 
 Although certain ancient and basic Germanic prin- 
 ciples were to be found in the legal groundwork of the 
 various German races, yet their law differed widely in 
 detail. These differences became intensified as they 
 drew apart politically. At the end of the Middle Ages, 
 every territory and province, and, in fact, every city of 
 any consequence, had its own code, Landrecht or Stadt- 
 recht. 
 
 This manifold diversity and multiplicity of particulars 
 was overcome by the Roman law, which became familiar 
 to the German people in the form of the legislation of 
 the Byzantine emperor, Justinian (528-532) ; partly by 
 means of the Roman church; and partly through the 
 universities, first in Italy, and later in Germany. This 
 legislation presented the agreeable picture of an impos- 
 ing world-law; and at least from the fifteenth century 
 onward the corpus juris of Justinian was employed by 
 
SYSTEMATIC CLASSIFICATION 115 
 
 the cultured as a matter of course in the administration 
 of justice, as so-called auxiliary common-law. 
 
 By the reception of Roman law, Germany attained a 
 definite legal unity. It did not militate against this 
 that the indigenous Landrechte and Stadtrechte (particu- 
 lar law) first were applied, as a rule, in matters of private 
 law, inasmuch as the foreign Roman law was intended 
 to occupy only a subsidiary or auxiliary position to 
 the local law, for the purpose of filling up its vacant 
 spaces. 
 
 In fact, however, many principles of German law were 
 crowded into the background, and many German legal 
 institutions were entirely displaced in favor of the 
 Byzantine law. This fact is to be deplored. The situa- 
 tion gradually impressed itself on the minds of jurists 
 and statesmen of the seventeenth century, so that, not- 
 withstanding the deserved applause of the elegant and 
 symmetrical "juristic art of the Romans," the abolition 
 of Roman law in Germany came to be considered. 
 
 This revolt from Roman law first occurred in the 
 northeast comer of the present German Empire. In 
 1620 the Landrecht of Prussia abolished the validity of 
 Roman law, refusing to recognize any subsidiary law. 
 This position, however, was maintained only for a cen- 
 tury, as the Prussian Landrecht of 1721 again estab- 
 lished the subsidiary currency of Roman law. At the 
 same time, however, there prevailed in other places the 
 desire for emancipation from the Roman law. King 
 Frederick William I of Prussia entertained this feeling, 
 but the problem of abolition first was put into execution 
 under Frederick the Great, and completed under 
 Frederick William II. "In place of the former Roman, 
 common Saxon and other foreign laws," a "general 
 Landrecht for the Prussian states" was proclaimed, and 
 on June 1, 1794, attained legislative operation to the 
 
116 SCIENCE OF LAW 
 
 complete exclusion of the Roman law in the kingdom 
 of Prussia. Legal unity was not attained by this legis- 
 lation, as codified provincial law still had a primary 
 validity. An exclusive provincial law also remained in 
 force in various parts of the Prussian state. 
 
 The conditions transmitted from the Middle Ages 
 persisted for the remainder of Germany. Numerous 
 varieties of Stadtrecht and Landrecht of obscure origins 
 and of small territorial authority remained, with Roman 
 law as subsidiary law. Roman law was excluded only 
 in the Rhine provinces, where the foreign authority of 
 the Code Napoleon of 1804 became current; and in the 
 kingdom of Saxony, where in 1863 a special civil code 
 was estabhshed. 
 
 Prior to the operation of the G«rman Civil Code, on 
 Jan. 1, 1900, four different and important legal domains 
 within the German Empire were to be distinguished, 
 within which domains there were yet prominent vari- 
 ous smaller legal circles or domains, as follows : — 
 
 1. That domain where Roman law was subsidiary or 
 common law: The kingdom of Bavaria (with the excep- 
 tion of the Rhine Palatinate, where the French law was 
 current, the former principalities Ansbach and Bayreuth, 
 where the Prussian Landrecht prevailed, and various 
 formerly Austrian villages, where the Austrian civil 
 code of July 7, 1810 (effective since Jan. 1, 1812, in 
 accordance with the proclamation of June 1, 1811), pre- 
 vailed to the exclusion of Roman law) ; the kingdom of 
 Wiirttemberg ; the grand duchies Hesse (except Rhine- 
 Hesse, where the French law prevailed), Mecklenburg- 
 Schwerin, Saxe-Weimar (except those parts previously 
 raised to the rank of principalities) , Mecklenburg-Strelitz 
 and Oldenburg (except Birkenfeld) ; the Saxon duchies, 
 and the duchies Braunschweig and Anhalt; the seven 
 principalities, and the three free cities; the newer Prus- 
 
SYSTEMATIC CLASSIFICATION 117 
 
 sian domain in which the Landrecht was not established 
 the provinces Hanover (with the exception of Aurich, 
 Lingen and Duderstadt, where the Prussian Landrecht 
 prevailed), Schleswig-Holstein and Hesse-Nassau; the 
 governmental districts Stralsund and Sigmaringen; and 
 Wetzlar, Neuwied and Altenkirchen. 
 
 In this territory, which in the year 1896 was inhabited 
 by about sixteen and one-half million persons, there pre- 
 vailed as of the highest importance the special or local 
 law of the particular province or city; as, for example, 
 the Landreckte of Bavaria (1756), Wiirttemberg (1610), 
 Mainz (1755), Bamberg (1769); the upper Palatinate 
 (1657) and the Solmser Landrecht (1751) ; the Stadt- 
 rechte of Hamburg, Bremen, Liibeck, Frankfort on the 
 Main, Niirnberg, and others, 
 
 2. The legal domain of the general Prussian Landrecht 
 of 1794: The Prussian provinces. East Prussia, West 
 Prussia, Posen, Silesia, Brandenburg, Pomerania (except 
 the governmental district Stralsund) , Saxony and West- 
 phalia; the governmental district Aurich, Lingen and 
 Duderstadt, and the eastern portion of the Rhine 
 Province in Hanover; the principalities Ansbach and 
 Bayreuth, now belonging to Bavaria ; and the domains 
 previously created into principalities and now consoli- 
 dated with the grand duchy Saxe-Weimar. 
 
 This territory embraced a then population of more 
 than twenty-one million persons, but it was without 
 full legal unity, as there prevailed alongside of the 
 Prussian Landrecht particular laws of different terri- 
 torial authority; as, for example, the East Prussian 
 provincial law of 1801, that of West Prussia of 1844, etc. 
 
 3. The domain of the French law, which embraced 
 the western portion of the Prussian Rhine Province, the 
 Bavarian Rhine Palatinate, Rhine-Hesse, the imperial 
 
118 SCIENCE OF LAW 
 
 province Alsace-Lorraine, and the grand duchy Baden, 
 where a translation of the Code Civil of 1804 prevailed 
 as the Baden Landrecht. This territory included a then 
 population of eight and one-half million persons, of which 
 1,700,000 belonged to Baden. 
 
 4. The domain of the Saxon civil code of 1863, which 
 embraced, exclusive of the kingdom of Saxony, about 
 three and one-half million inhabitants. 
 
 It is to be further noted, as already indicated, that in 
 the Bavarian governmental district Upper Palatinate, 
 and in the market Redwitz, belonging to the Bavarian 
 governmental district Upper Franconia, the general code 
 of Austria of 1811 prevailed; and that in that part of 
 the province Schleswig-Holstein which formerly was a 
 part of Jutland the Danish law in the code of 1683 of 
 Christian V prevailed. 
 
 This very undesirable legal situation ended with the 
 last day of the year 1899, since on Jan. 1, 1900, a unified 
 civil law became operative for the whole German 
 Empire, by which the Roman law, the French law and 
 all Landrechte, relating to civil matters, were deprived 
 of validity. 
 
 The consummation of such a legislative work was 
 thought to be hazardous both at the time of the estab- 
 lishment of the North German Federation and at the 
 time of extension of this federation into the German 
 Empire in the year 1871. At that time it was thought 
 to be sufficient that, of the whole private law, — apart 
 from the law of patents of invention and so-called 
 ownership of immaterial property, — only the law of 
 obligations, alongside of commercial law, and the law 
 of bills of exchange, should be reduced to uniform legis- 
 lation. However, the expediency of imperial legislation 
 in the whole domain of civil law attained expression 
 in the imperial statute of Dec. 20, 1873. 
 
SYSTEMATIC CLASSIFICATION 119 
 
 A commission was appointed of eleven jurists who 
 co-operated in the draft of a civil code. The members 
 of this commission labored for seven years in the draft- 
 ing of the separate parts of the code (September, 1874, 
 to October, 1881), and six years in common deliberation 
 on the work. At the end of December, 1887, the com- 
 pleted draft of a civil code for the German Empire was 
 presented to Imperial Chancellor Count Bismarck by 
 the president of the commission, Privy-Councillor Pape, 
 and was transmitted by the chancellor to the Bundesrat. 
 After the publication of this work, with supplementary 
 "motives" explanatory of the labor, the critics began 
 an exhaustive examination of the draft, which prepared 
 the way for a revision. 
 
 A second commission, authorized by the Bundesrat, 
 followed, composed of practical men, in part members 
 of the first commission ; the chairman of which was the 
 state secretary of justice. In 428 sessions, from April, 
 1891, to December, 1895, this commission completed its 
 draft of the code; thereupon the Bundesrat adopted 
 the draft as a legislative proposal, and the imperial 
 chancellor. Prince Hohenlohe, on Jan. 17, 1896, trans- 
 mitted it to the Reichstag for its constitutional con- 
 currence. 
 
 The Reichstag, after a first reading on the third, fourth, 
 fifth and sixth days of January, 1896, committed the 
 draft of the code to a commission of twenty-one mem- 
 bers for consideration and a report thereon. This com- 
 mission ended its labors by the eleventh day of June of the 
 same year. A second reading was had based on the 
 report of the commission, in the Reichstag, in plenum, 
 from the 19th to the 27th of June; and a third reading 
 on June 30 and July 1. On July 1 the civil code bill 
 was passed by the Reichstag, and on July 14 the bill 
 received the concurrence of the Bundesrat. The imperial 
 sanction was given on August 18, whereupon publication 
 
120 SCIENCE OF LAW 
 
 followed in the imperial legislative bulletin on Aug. 24, 
 1896. {R.G.Bl. (1896), No. 21, pp. 195-650.) 
 
 Accordingly since Jan. 1, 1900, there has prevailed, 
 owing to these efforts, a constitutionally operative 
 and unified law for the civil affairs of the German people. 
 
 The civil code of the German Empire is divided into 
 five books. The first book deals with, and is entitled, 
 "General Principles"; it embraces seven sections differ- 
 ing widely in nature and treatment, as follows: — 
 
 I, Persons (1-89) ; II, Things (90-103) ; III, Acts in 
 the Law" (104-185) ; IV, Periods of Time and Dates (186- 
 
 ^ [Rechtsgeschdfte. This term is frequently translated "juristic acts"; but 
 in this an ambiguity is encountered, since a juristic act includes not only acts 
 of persons (acts in the law), but also acts so called or the operative effects 
 of the law (acts of the law). This section of the code deals only with the first 
 sense of juristic acts. 
 
 The following outline summarizing the ideas developed in this section and 
 other ideas not touched upon, may be found useful: — 
 
 Kinds of Facts Effect on Interests 
 
 Investitive 
 
 FACTS ■ 
 
 J Originative 1 
 \ Translative t 
 
 Divestitive < Extinctive 
 
 Sources {Acts or Events) Correlative Duty {obligation) 
 
 . • J. .-. T /T-. 1- ^ IV ( Pure Delicts Ex Delicto- 
 
 Agamst the Law CDehctual) ■< „ - -r^ ,. 
 
 (. Quasi Delicts 
 
 Of the Law 
 
 I" 
 
 JBi: 
 
 Unilateral (Powers) 
 
 - Ex Lege. 
 
 In the Law ■{ t»-i -. t j Quasi contracts 
 
 \ Pure contracts Ex Contractu. 
 
 Beyond the Law (elemental occurrences) Ex Natura. 
 
 It is to be explained that bilateral acts in the law are not exhausted by 
 the enumeration of contracts. Grants, assignments and releases are also 
 included. 
 
 Objection may be made to the use of the term "powers" as coextensive 
 with unilateral acts in the law. This term is more frequently employed to 
 designate divestitive acts. It is submitted, however, that it serves a useful 
 function in juristic terminology in the broader application to include also 
 investitive acts (for example, wills), inasmuch as there is no compact term 
 to indicate investitive unilateral facts. 
 
 This table is based on Benthamic terminology, in its primary divisions. 
 The list of sources adopts the language of Pollock, with some additions that 
 appear to be necessary for logical completion of the table.] 
 
SYSTEMATIC CLASSIFICATION 121 
 
 193) ; V, Prescription (194-225) ; VI, Exercise of Rights 
 (226-231); VII, Security (232-240). The second book 
 (241-853) is entitled '*Law of Obligations"; the third 
 book (854^1296) deals with the "Law of Things"; the 
 fourth deals with "Family Law"; and the fifth with the 
 "Law of Inheritance." 
 
 There was annexed to the code an introductory statute 
 which provided that the code should become effective 
 on Jan. 1, 1900. It contains a variety of transitional 
 legislation, as well as fundamental rules governing the 
 relation of the civil code to imperial and state statutes, 
 the latter of which, so far as relating to private law, are 
 nullified in their totality to the extent that the contrary 
 is not expressly provided for in the civil code itself or 
 the introductory statute (art. 55-152, 218). 
 
 Concurrently with the civil code, there became opera- 
 tive a number of other codified acts. The most impor- 
 tant was the new commercial code of May 10, 1897. 
 Other statutes made changes in civil procedure, bank- 
 ruptcy and trade regulations. 
 
122 SCIENCE OF LAW 
 
 THE SYSTEM OF CIVIL LAW IN DETAIL 
 
 CHAPTER I 
 THE LAW OF PERSONALITY^ 
 
 SECTION 17 
 THE LAW OF PERSONALITY IN GENERAL 
 
 The materials of what is called the law of personality 
 are the interests which a legal subject has in his exist- 
 ence as a person and in his activity as such, and the 
 recognition by law of this existence and activity. The 
 legal advantage, to which protection is assigned, is an 
 unimpeded activity and expression of personal indi- 
 viduality. Positive law in every age and of every 
 people must give recognition to this legal advantage. 
 This recognition is, however, accomplished in different 
 degrees. The clearest recognition of such interests 
 appears in the protection which modem law seeks to 
 afford against murder, other illegal killing, injury of the 
 person and against deprivation of Uberty. But this 
 recognition is displayed in a great variety of other ways, 
 as follows: — 
 
 1. Measures for the maintenance, ascertainment or 
 establishment of rights of personality; as, for example, 
 
 ^ On the theory of the law of personality or individuality see Gareis, in 
 Busch Archiv f. H. u. W.R., Bd. 35, p. 185 (1877); Gareis, Kommenlar des 
 Patentgesetzes of May 25, 1877 (Berlin, Carl Heymann, 1877) ; and Gareis, 
 Grundriss zu Vorlesungen uber deutsches burgerliches Recht (Giessen, Emil 
 Roth, 1877), sees. 40-46. See also O. Gierke, Z. f. H.R., Bd. 29, p. 270; 
 J. Kohler, Jahrb. f. Dogmatik, Bd. 18, pp. 129, 251; J. Kohler, Recht d. 
 Markenschutzes, p. i; O. Gierke, V. Privatrecht, sees. 81-99. 
 
SYSTEMATIC CLASSIFICATION 123 
 
 by establishment of a register of civil position, of non- 
 mercantile partnerships, corporations, unincorporated 
 societies and firms, etc. 
 
 2. Legal measures which are intended to counteract 
 infringement of these rights or even the menace of these 
 rights; thus, the threat of punishment, the imposition of 
 damages, and the tolerance of self-help and self-defense 
 in their protection ; and 
 
 3. Legal provisions by which these rights may be 
 in part at least commercially controlled, transferred, 
 limited, and transmitted by inheritance. 
 
 Rights peculiar to the person may be divided into two 
 groups, the first of which involves a definite condition 
 or situation of the person, such as bodily integrity and 
 reputation. The other includes rights of authorship, 
 such as rights of literary, art or technical invention. 
 In both of these groups of rights, the protection of the 
 law is directed against the whole world, as in real rights 
 (dingliche Rechte). They do not require the existence, 
 from the beginning, of a definite person obliged, or 
 such a person ascertainable, as in the case of obligations. 
 
 Rights of personality are related to property without 
 depending exclusively on proprietary ends, and without 
 being protected essentially for the sake of property. 
 There is a personal and more intimate connection 
 between the person entitled and the legal advantage 
 secured by these rights than between a legal subject 
 and material property. Yet the furtherance of a pure 
 right of personality may become the source of pro- 
 prietary rights. Infringement of a pure individual right 
 may lead to a duty of answering with material property, 
 and may become in this sense proprietary. 
 
 The proprietary operation of an author's right is dis- 
 closed in the sale of his printed work. A proprietary 
 operation is also found in cases where corporal injuries 
 
124 SCIENCE OF LAW 
 
 lead to the payment of smart-money, and where viola- 
 tions of rights of personality involve damages. In these 
 cases property is not involved, but only ideal thiags are 
 concerned.' 
 
 'See B.G.B., sees. 847, 1300 
 
SYSTEMATIC CLASSIFICATION 125 
 
 SECTION 18 
 
 RIGHTS OF PERSONALITY IN DETAIL 
 
 I. The rights of physical integrity, physical freedom 
 and physical activity spring directly from a recognition 
 of personality or a recognition of capacity for, rights.' 
 They attach to free persons without formal premises 
 and without conditions.^ Practical limitations arise in 
 these rights in parental power^ and in contractual obli- 
 gations. Yet these limitations are never permitted to 
 proceed so far that a person may be enslaved or placed 
 in a condition similar to slavery.* 
 
 Within these limits, there may be limitations on 
 freedom of activity by legal prohibitions; as in boycott 
 laws; by agreements requiring positive performances of 
 contracts for labor or services;^ or by agreements requir- 
 ing negative performances as in contracts relating to 
 competition in business.' This limitation on personal 
 activity receives an industrial recognition in police legis- 
 lation affecting freedom of trade,' and political recogni- 
 tion in legislation relating to freedom of domicile* and 
 emigration." 
 
 iCf. B.G.B., sec. 1. 
 
 2 See Kohler, Einf., pp. 28, 29. 
 
 3 B.G.B., sees. 1631, 1617. 
 
 * Cf. concerning slavery, infra, sec. 15, note ^ (p. 106). 
 " See below, sec. 23, No. 13 et seq. 
 
 8 Cf. H.G.B., sees. 60, 74. 
 
 'Trade-regulation statute (G.E.A. Ill, 1 (183-190-); and also see Bier- 
 mann, Privatrecht und Polieei in Preussen, cap. 1 (Berlin, 1897). 
 
 " Preedom-of-domicile statutes o£ Nov. 1, 1867, and Aug. 16, 1896 
 (G.E.A. I, 2, 2a (17)). 
 
 * Cf. the imperial statutes, June 1, 1870, and Aug. 16, 1896, regarding the 
 acquisition and loss of federal and state citizenship (.G.E.A. I, 1, la (16)), and 
 the statute relating to emigration (G.E.A. II, 26 (213)). 
 
126 SCIENCE OF LAW 
 
 Penal law protects to a wide extent corporal integ- 
 rity, freedom and activity.' In cases of necessity,^ 
 illegal infringement of these immaterial objects may be 
 prevented by self-defense ( Notwehr) ; and in all cases 
 their infringement involves the obligation of paying 
 damages^ or making compensation.* 
 
 As a development, and in part in consequence, of the 
 first right of personality (the right in one's own person) 
 there arises the right in one's own body^ and in one's 
 own likeness." The right in the human body has special 
 importance where the question arises whether a surgical 
 operation shall be performed, and where the surgeon's 
 liability to respond in damages' is involved. This right 
 also extends beyond human life as in legal relations with 
 reference to human corpses.' 
 
 II. The right in a name,° in commercial names (such 
 
 ^ German Criminal Code, sees. 211-222, crimes and misdemeanors against 
 life; sees. 223-233, injuries to the person; sees. 234-241, offenses against 
 personal freedom; sees. 201-210, dueling; sees. 174-182, and also special 
 crimes and misdemeanors against morals (6^. £...4. V., 3 (143-146)). See also 
 the statute against slavery and slave trade of July 28, 1895 {G.E.A. V, 5 
 (199». 
 
 2 Self-defense, B.C.B., sees. 227, 859; Criminal Code, sees. 53, 54, 145, 
 329, 360, No. 8. 
 
 3 B.G.B., sees. 823, 847, 1300; see infra, sec. 24, obligations of delict. 
 
 ^ Criminal Code, sec. 231. With reference to the transferability of such 
 claims, see Gareis, Grundriss, sec. 41. 
 
 * Gareis, "Das Recht am menschlichen Korper" in the festival publication 
 of the juristic faculty of Koningsberg for J. Th. Schirmer, Konigsberg, I. Pr. 
 (1900), p. 61. 
 
 ° Keyssner, Das Recht am eigenen Bilde (Berlin, 1896), also the same 
 writer in D.J.Z., 486 (1898). 
 
 ' Endemann, Die Rechtswirkungen der Ablehnung einer Operation, etc- 
 (Berlin, 1893), Einfiihrung in das Studium d. B.G.B., sec. 131 ; Gareis, op. cit. 
 (note 5), pp. 63, 98; Fr. v. Liszt, in der Z.5. f. arztl. Fortbildung (Jena, 
 1904), Nos. 6, 7, 8. 
 
 ' Gareis, op. cit. (note 5), pp. 91, 92, 94-06, and the same writer in d. 
 Blatter f. R. Anw. (1906). 
 
 " Right of action on account of an unauthorized use of a name, see B.G. B. 
 sec. 12; the wife takes the name of the husband, B.G.B., sec. 1355; con- 
 cerning the name of a divorced woman, B.G.B., Sec. 1577, the name of chil- 
 
SYSTEMATIC CLASSIFICATION 127 
 
 as firm names),' and the right to reputation.^ The 
 infringement of these rights is followed by an obligation 
 to make reparation in money and, fco a certain extent 
 also, by punishment. 
 
 III. The right of original, or individual discovery or 
 creation. When something is created of an original 
 nature which may be employed in the arts or the sciences, 
 a right is recognized therein, and is to a certain degree 
 protected against unauthorized imitation, as in the 
 following cases: — 
 
 1. The protection of marks of goods arising out of a 
 definite manner of production and industrial use, — the 
 protection of trade-marks. These marks have a his- 
 torical connection with house-marks or hand-tokens, 
 and are used like names for individualizing things and 
 making prominent their connection with definite per- 
 sons. In the Middle Ages, hand-workers (such as 
 armor-makers, and stone-masons) employed hand-marks; 
 and in early times tradesmen used commercial marks to 
 designate their goods. From this fact legal rules pro- 
 tecting such marks against misuse and imitation arose. 
 
 Such protection was afforded by the imperial statute 
 of November 30, 1874, relating to trade-marks,' which 
 was displaced by the statute of May 12, 1894. Under 
 the later statute (Sec. 1) not only every registered firm 
 (as under the earlier statute) but every person is given 
 the privilege of making registration in the trade-mark 
 
 dren, B.C. B, sees. 1616, 1706, 1719, 1736, 1758, 1772; the name o£ juristic 
 persons, B.G.B., sec. 57, Einf. G. z. B.G.B., art. 133-166, H.G.B., sec. 
 19-20. For the literature of the law of names, see Gierke, Deutsch. 
 Privatrecht, sec. 83; Staudinger in Blatter f. R. Anw., Bd. 62, p. 161; Gareis, 
 Grundriss, sec. 42; Gareis, Lehrbuch des Handelsrechts, sec. 16; Ramdohr, in 
 Gruchot's Beitrdgen, Bd. 43. 
 
 1 H.G.B., 2, 5, 8, 17-37. 
 
 == Criminal Code, sees. 185-200; B.G.B., sees. 823-826. 
 
 <• G.E.A. II, 5a (179). 
 
128 SCIENCE OF LAW 
 
 register of the imperial patent office at Berlin, of such 
 of his goods as he desires to distinguish from the goods 
 of others, and by which he may reserve to himself the 
 exclusive use of his trade-mark.' 
 
 2. Originality in a trade, or business, may be pro- 
 tected^ against unfair competition {concurrence deloyale) 
 such as a misleading use of a business designation,' or a 
 betrayal of trade secrets, etc.^ 
 
 The unfair competition act also combats untruthful 
 "puffing" (Reklameschwindel),^ fraud in weights," and 
 business slander' (denigrement) . 
 
 3. The industrial law of previous centuries sought to 
 protect individual activity by various (now for the 
 greater part obsolete) special laws, such as the so-called 
 Bannrechte [which required the inhabitants of a certain 
 locality or certain classes of such to provide certain 
 necessities, and certain labors exclusively through privi- 
 leged persons]; through commercial and industrial 
 monopoly, etc.^ 
 
 IV. Authors' rights: — 
 
 1. When the art of printing was discovered, publishers 
 sought to protect themselves against imitation by privi- 
 leges for particular books received from kings and 
 princes. The regularity and continuance of this prac- 
 tice of granting privileged protection gave rise to a 
 general rule that imitation was prohibited and the con- 
 
 ^ In detail, the statute of May 12, 1894 provides for the effect of registration, 
 sees. 12, 13; the obligation of paying damages for infringement of trade- 
 marks, sees. 14, 18, 21; punishment for willful infringement, sees. 14, 19, 22; 
 prohibitions against illegal imitation of methods of packing goods (Ausstat- 
 tung), sec. 15, and prohibitions against illegal designation of origin, sec. 16. 
 
 - Unfair Competition Act of May 27, 1896 (Gareis, Reichsgesetze, No. 201) ; 
 see Gareis, Blatter f. R. Anw., Bd. 61, p. 321. 
 
 ^ Unfair Competition Act, sec. 8. 
 
 * Ibid., sees. 9, 10. 
 
 * Ibid., sees. 1-4. 
 
 » Ibid., sec. 6; Gareis, Blatter f. R. Anw., Bd. 61, p. 370. 
 
 ''Ibid., sees 6, 7. 
 
 ^ Bannrechte, see Kraut-Frensdorff, Grundriss, sec. 118. 
 
SYSTEMATIC CLASSIFICATION 129 
 
 ception of infringement of the right of publication. When 
 the nature of this right is examined, it is found to be a 
 part of, or a derivation of another right. Its nature is 
 that of immaterial property, but it is found to be a right 
 of the person, or a right of personality.' 
 
 2. The most important statutes in Germany which 
 have given validity to authors' rights are: the Prussian 
 statute of June 11, 1837; the Bavarian law of April 15, 
 1840;^ and the Saxon statutes of February 22, 1844, 
 July 27, 1846 and July 30, 1855. The Bund orders of 
 November 9, 1837, April 22, 1841, June 19, 1845, and 
 November 6, 1856, sought to protect authors' rights by 
 a definite, mutual reciprocity on the part of the German 
 states.^ 
 
 Unified German legislation in the domain of literary 
 authorship was initiated by the statute of the North 
 German Federation (later the imperial statute of June 11, 
 1870 (Bundesgesetzblatt, 1870, p. 339) ) with reference 
 to authors' rights in literary, pictorial, musical and 
 dramatic works. This statute remained in force until 
 January 1, 1902.* On this date it was superseded by 
 the imperial statute relating to authors' rights in works 
 of literature and music (R.G.Bl., 1901, No. 27, p. 227). 
 At the same time the statute relating to publishers' 
 rights (R.G.BL, 1901, No. 27, p. 217), came into force. 
 
 The L. U.G. of June 19, 1901, is based theoretically 
 on the proposition that an author's right is a personal 
 right; which without the observance of any formality 
 whatever belongs to the person entitled, governed by 
 the simple matter of fact that he is the author of a 
 
 ^ This conception is attained by the philosopher, Immanuel Kant, who is 
 in this respect followed by Renouard and Bluntschli. See also, note 1, p. 122. 
 
 ^ The criminal code of 1813 in Bavaria already recognized rights of the 
 author as such. See Philipp Allfeld, Kommentar on the statute of June 19, 
 1901, relating to authors' rights in works of literature and music, and con- 
 cerning rights of publication (Munich, C. H. Beck, 1902), p. 2. 
 
 " BluntscUi, Deutsche! Privatrecht, 3d ed. (Felix Dahn, 1864), sec. 46. 
 
 * See Allfeld, op. cit., p. 4. 
 
130 SCIENCE OF LAW 
 
 meritorious (that is an original) literary work (L. U. G., 
 sees. 2, 5, 6), or one juridically so considered (L. U.G. 
 7, 29 abs. 2) . 
 
 The formality of registration in the public record in 
 charge of the municipal councilor at Leipzig, is neces- 
 sary only for prolonging the period of protection of a 
 work first appearing anonymously or pseudonymously. 
 {L.U.G., sees. 7, 31, 56). 
 
 It is the province of positive law to regulate the 
 details of the content of the author's right (that is the 
 actual scope of the author's power) ; the time or period 
 of protection; and the extent or territorial domain of 
 protection. 
 
 The content of an author's right is provided for in 
 L. U.G. by recognition of a self-seeking interest of 
 publicity or the privilege of publication;* also by recog- 
 nition of an interest of literary use and adaptation;^ 
 and finally by positive establishment of an exclusive 
 power in the author: (1) of manifolding his work (L. U.G. 
 11 (1), 15, 25); (2) of commercial use (L. U.G. 11); (3) 
 publication of its essential contents (L. U.G. 11 (1, 2)) ; 
 (4) public performance of dramatic and tone-works 
 (L. U.G. 11, 1 (2)); (5) public recital prior to publication 
 (L. U.G. 11 (3), 26); and (6) the above enumerated ex- 
 clusive powers (1-5) also extend according to L. U.G. 
 12, (1-4) : (a) to translations into other languages, (6) to 
 re- translations into the original language, (c) to drama- 
 tization and vice versa, and (d) to abridgements and 
 transpositions of tone-works. In all of these cases, 
 however, a limit is drawn which will permit the free use 
 of an author's works for bringing forth new works of 
 creation.^ 
 
 1 L. U.G., sees. 16, 17 (1 and 2), 18. 
 
 ' L.U.G., sees, 19, 24, 25. 
 
 ^ L. U.G., sec. 13, art. 1. In tone-works, however, every use is prohibited 
 in which a recognizable melody taken from the author's work is made the 
 basis of a new work. 
 
SYSTEMATIC CLASSIFICATION 131 
 
 With reference to the time limitation of an author's 
 right, the normal period of protection according to 
 L. U.G. (sec. 29) ends if thirty years have elapsed since 
 the death of the author, and ten years since the first 
 publication of his work. In anonymous or pseudonymous 
 works, protection ends thirty years after publication 
 unless in the meantime the true name of the author 
 (L. U.G. 7 (1, 3)) or the person entitled is entered in the 
 registry at Leipzig. ' 
 
 With regard to the territorial extent of an author's right, 
 there are two decisive principles; namely, the absolute 
 protection of citizens, and the protection of domestic 
 priority. The law favors all German citizens in all their 
 literary and tone-works (L. U.G. 54) without regard to 
 the place of publication, and even without regard to 
 whether a work has been published at all. The protec- 
 tion of German law extends to works of foreigners who 
 publish works in the German Empire, if the work itself, 
 or a translation, has not been published at an earlier 
 day in a foreign country. By international agreement, 
 the citizens of the contracting states and their assignees 
 enjoy in all the states the same rights which are conceded 
 to them in their own country.^ 
 
 Authors' rights are designated^ as inheritable and 
 transferable, but only in the sense of the right of the 
 multiplication and circulation of the work; and not in 
 the entire extent of the author's right; and finally not 
 in the sense of the intensely personal content of the 
 right. There is inherent a spiritual bond between the 
 author and his work which continues even after a transfer 
 
 ^ L.U.G., sees. 31, 56. 
 
 ^ Beme convention of Sept. 9, 1886: the Paris supplementary proposal of 
 May 4, 1896; the Germano-Austrio-Hungarian treaty of Dec. 30, 1899 and 
 others. See Allfeld, op. cit., pp. 302, 396. 
 
 3 L. U.G., sec. 8. 
 
132 SCIENCE OF LAW 
 
 of his rights. This is indicated by the continuing 
 importance of the Ufa of the author for duration of pro- 
 tection of the work; by the legally guaranteed unchange- 
 ability of the whole essential contents of the work 
 (L. U.G. sec. 9); the rigid requirement of the author's 
 consent to execution' (so far as his work may be the 
 object of execution) ; and finally in that, after the trans- 
 fer by the author to another of the right of multiplica- 
 tion and circulation of his work, there yet remains 
 exclusively in him the right of translation, dramatiza- 
 tion, or conversely, novelizing, and in tone-works the 
 right of adaptation (L. U.G., sec. 14). 
 
 So far as authors' rights are transferable, the funda- 
 mental principles of civil law (for example B.G.B., 413, 
 493) and the law relating to publishers apply. In the 
 latter case the contract of publication is of first import- 
 ance. This contract is essentially a bilateral act in 
 which the author (or author party^) obliges himself to 
 deliver and sell to the publisher' a work of literature or 
 music for multiplication and circulation for a certain 
 compensation; and in which the publisher obliges him- 
 self to multiply and circulate the work. 
 
 This agreement (the content of which, exhibits the 
 features of a bilateral contract for work {B.G.B., sees. 
 631, 613, 651), generates obhgatory effects {B.G.B., 241, 
 305), which arise out of the duties above disclosed: 
 namely, a transfer on one side, and multiplication and 
 circulation of a work on the other. Whether a work is 
 protected by L. U.G. or is an unprotected, or free 
 work, is therefore material to the contract of publica- 
 tion; to the extent that in the first case the author is 
 under obligation to the publisher, in case the right of 
 
 1 L. U.G., sec. 10. 
 
 ^ Not necessarily the author; see V.G., sec. 49. 
 
 * Not necessarily a book-dealer; see motives of the draft of the V.G. 
 (Keichstag publications, 1901, No. 97, p. 60). If a book -dealer (which is the 
 rule) see H.G.B., sec. 1 (1, 2, 8). 
 
SYSTEMATIC CLASSIFICATION 133 
 
 publication is questioned to warrant the exclusive right 
 of multiplication and circulation. The duty of pro- 
 viding the right of publication is also obligatory; but 
 as soon as this duty is fulfilled, by providing the pub- 
 Usher with the legally protected work, there arises a 
 species of real relation against third persons in the 
 exclusive right of multiplication and circulation, which 
 is called (in the special sense of V.G.) the publisher's 
 right.* 
 
 Violations of authors' rights may generate either civil 
 claims for damages or penal actions. Civil action may 
 be based on intentional or unintentional infringement; 
 while penal action is based only on an intentional viola- 
 tion. The statute of limitations in claims for damages 
 or punishment for infringement, is three years. ^ 
 
 3. Analogously to the protection given to authors of 
 pure literary works, the imperial statute of June 11, 
 1870, extended to the formative arts. 
 
 Full protection, however, was first afforded to these 
 arts by the imperial statute of January 9, 1876, which 
 followed in its provisions the statute governing the 
 literary arts (June 11, 1870), and like that statute 
 touched only the proprietary aspect of these rights. 
 
 In connection with the statute relating to the forma- 
 tive arts, the imperial statute of January 10, 1876, under 
 certain conditions protected the proprietary use of photo- 
 graphs. The repressive features of this statute are 
 similar to those against violation of other authors' 
 rights; while the period of protection is more limited. 
 
 4. In the interest of the arts, the imperial statute of 
 January 11, 1876, protected from imitation the rights 
 of authors of artistic models and designs; such as those 
 relating to carpets, tapestries, other printed, or woven 
 
 ' The business of publishing, see below. Law of Obligations, sec. 23 (No. 
 26) : also. Gareis, Lehrb. d. H. R., 7th ed., sec. 59. 
 
 ^Concerning infringement and its consequences, see L~U.G., sees. 36-53. 
 
134 SCIENCE OF LAW 
 
 goods, ceramics, wood-work, casting and other original 
 artistic designs. Penal and civil repression against 
 infringement are the same as in other statutes protecting 
 authors' rights, and are based upon official registration of 
 the model or design. The period of protection is differ- 
 ent than in other authors' rights; and in certain cases in 
 place of the actual author a fictitious author is protected. 
 
 V. Technical rights of authors of new inventions 
 which have an industrial value, whether in the domain 
 of mechanics or in chemistry, or in both, may accord- 
 ing to special statutes be protected against imitation for 
 a certain period. This protection is afforded to the end 
 that the inventor alone may, during this period, employ 
 or allow the use of his invention. It is apparent that 
 the advantage which is given to the inventor directly 
 benefits society itself, in that it influences the spirit of 
 discovery. In Germany after the protection of inven- 
 tions was established as a matter of imperial concern 
 and the hostile sentiment against patents was overcome, 
 there came into force a patent statute which afforded 
 equal protection against imitation for all kinds of indus- 
 trially valuable inventions. This was the German 
 patent statute of May 25, 1877. A distinction is to be 
 noted between original inventions, on one hand, and 
 tiseful models on the other. 
 
 1. Protection of inventions.^ The requisites are 
 patentability^ and a formal declaration of the invention 
 at the imperial patent-office at Berlin. The procedure 
 of granting a patent is made up of the declaration, 
 
 ^ German Patent Act of April 7, 1891 with the imperial ordinance of 
 Dec, 6, 1891 (Gareis, Reichsgesetze, Nos 122, 123). 
 
 ^ Patents are granted upon new inventions which have an industrial value 
 except in the following cases: (1) where the use o£ the invention opposes the 
 law or good morals; and (2) inventions of food, articles of luxury, and 
 medicine, as well as substances produced chemically, so far as the invention 
 does not relate to a definite process of manufacture. 
 
SYSTEMATIC CLASSIFICATION 135 
 
 preliminary examination, publication and possibly dem- 
 onstration of the invention, and lastly the execution of 
 the patent. The longest duration of a patent is fifteen 
 years. 
 
 The German law exercises a limited and qualified 
 control over patent licenses and a restraint on the use 
 of patents.' It also recognizes a transferability and 
 inheritability of rights in inventions and patents. It 
 provides for the revocation of patents; and for a privi- 
 leged use of inventions.^ It also provides civil remedies 
 for infringement of patents and penalties for intentional 
 infringement, as for frauds on patents.' 
 
 2. Protection of useful models:* Models employed in 
 labor, and implements of use, or parts of useful models 
 so-called are protected against unauthorized use by 
 registration in the imperial patent-office, if they exhibit 
 new forms, new arrangement or adjustment.^ The pro- 
 cedure for granting this protection is simpler than in the 
 case of patents of invention. The period of protection is 
 three years, but upon payment of a larger fee the time 
 may be extended three years. 
 
 German law provides for the establishment of a 
 register for useful models in charge of the patent-office. 
 It recognizes a transferability of useful models"; and 
 provides penalties and damages for violations of the 
 protection granted, similar to those of patent law.' 
 
 ' Patent Act. sees. 11, 28. 
 
 ^ /&., sec. 5. 
 
 ' lb., sees. 35-40. 
 
 ' Useful Models Act o£ June 1, 1891 (Gareis, Reichsgesetze, Nos. 122, 123). 
 
 ^ lb., sec. 1. 
 
 "/ft., sec. 7; B.G.B., sec. 413. 
 
 ' Useful Models Act, sees. 9-12. 
 
136 SCIENCE OF LAW 
 
 CHAPTER II 
 
 THE LAW OF MATERIAL THINGS 
 {Jura in re, — real rights) 
 
 SECTION 19 
 THE LAW OP THINGS IN GENERAL' 
 
 I. It is characteristic of the law of things, that the 
 protected interest directly involves a thing. The inter- 
 est lies in a situation directly referring to a thing, and 
 in the immediate control of a thing for the purpose of 
 use, consumption, possession, or transfer, as may appear 
 necessary or desirable to the person entitled. This 
 interest involves the proprietary aspect of things as 
 property in the economic sense. Rights in things may 
 be as numerous, or as few, as the diversity of the various 
 legal institutions within the range of the law of things 
 may admit. The duties correlative to these rights are 
 the duties of every person. They are not the duties of 
 particular persons (debtors) as in the law of obligations, 
 but of all surrounding persons. They are duties of all 
 persons who by possibility may come into contact with 
 the thing or the owner of a real right, including all 
 citizens and foreigners. A duty toward the owner of 
 these rights, however, lies only in this: — 
 
 1. That the protected condition of the owner of the 
 right is not to be disturbed; 
 
 « Cf. Birkmeyer, Enz., 121-134 (Leonhard) ; pp. 312-335 (H. O. Lehmann) 
 pp. 491—540 (Bemhoft), and the literature therein cited. 
 
SYSTEMATIC CLASSIFICATION 137 
 
 2. That when necessary the duty corresponding to 
 the right is to be recognized, or at any rate, the right is 
 not to be opposed.^ 
 
 II. The interest of the owner of the right is either: — 
 
 1. In the legal control of a thing in the totality of its 
 connections, which in this aspect is hypothetically pro- 
 tected. When a thing is protected in this widest exten- 
 sion of possible legal control, it is called the thing of the 
 subject of the right, that is of the owner of the right. 
 This complete legal control is called ownership, or 
 
 2. The interest of the owner of the right may lie in 
 the control of a thing only in particular aspects or 
 situations, or even only in one aspect or situation. In 
 this limited aspect it is free from interference; so that 
 the thing in the totality of its connections or aspects, 
 one or more connections excepted, is subject to the legal 
 control of another person — the owner. A real right in a 
 thing, the ownership of which belongs to another, is 
 called jus in re aliena. These jura in re aliena are of 
 various kinds. ^ A right of ownership, apart from the 
 varying significance which attaches to this right in 
 different legal systems, can only be thought of as one 
 right, the jus in re of the owner, or a jus in re propria.^ 
 
 III. There are things which on account of their 
 natural character, exclude all private legal control of 
 private persons; as, for example, free air, the open sea 
 and the flowing tide. Things of this class are called in 
 the common (Roman) law, res extra commercium, or 
 things beyond commerce. 
 
 ' Cj. suits to establish rights, C.P.O., sec. 256: "Suit may be instituted 
 to establish the existence or non-existence of a legal relation, or to establish 
 the validity or the spuriousness of an instrument, if the plaintiff has a legal 
 interest therein that the legal relation, or the genuineness or spuriousness 
 of the instrument shall be forthwith determined by judicial decree." 
 
 2 Sec. 21, infra. 
 
 - Sec. 20, infra. 
 
138 SCIENCE OF LAW 
 
 IV. Differing from rights in things, but following, 
 alongside, or ahead' like the shadow, is possession 
 (possessio). Possession is actual control or actual use 
 of a thing, ^ either in the totaHty of its possible aspects — 
 in analogy to the case of ownership; or control in only 
 particular kinds of use — as in jura in re aliena? 
 
 Possession is not a right but a fact, yet it is, 
 
 (a) A legally protected fact, a legally protected condi- 
 tion;'' 
 
 (6) It may be the consequences of rights. It may be 
 a condition which the person entitled, for example, an 
 owner, may demand; or it may be a situation of which a 
 person entitled may require the transfer in conformity 
 with an obligation ; or 
 
 (c) It may be the occasion of rights. Under certain 
 conditions possession may ripen into a right and the 
 actual control become the legal control, as inusucaption^ 
 ( Ersitzung) . 
 
 Legal systems are concerned with possession on 
 account of these connections with rights, and establish 
 standards for the acquisition, loss and protection of 
 possession.' 
 
 ^ Thus usucaption, where possession precedes the right. 
 
 ^ In the older German law there is found a connection of fact with things, 
 or of a fact connected with useful rights, which is similar to the fact of pos- 
 session but which is yet legally diiferenfr, and called Gewere, geweri, vestitura, 
 or invesiitura. See Stobbe, Deutsches Privatrecht, sec. 72; Heusler, Institut. 
 d. deutschen Rechts, Bd. I, p. 98, Bd. II, p. 20; H. O. Lehmann, in Birk- 
 meyer's Em., p. 312. 
 
 ^ B.G.B., sec. 1029: protection of possession of a registered real servitude. 
 
 * B.G.B., sec. 858; according to the civil code this condition is even 
 inheritable ("see. 857) ; and in this respect it approaches the nature of a right. 
 
 ^ According to the civil code, a proprietary possessor (Eigenbesitzer) 
 (sec. 872) of a movable thing may become the owner (sec. 937). 
 
 B.G.B., sees. 854-872. Cf. Dernburg, Pand., sees. 169-191; Sohm, 
 Inst., sees. 53, 54; Cosack, Lehrb. d. b. R., sees. 185-194; Bemhoft, in 
 Birkmeyer's Enz., pp. 500-508. 
 
SYSTEMATIC CLASSIFICATION 139 
 
 SECTION 20 
 
 THE LAW OF OWNERSHIP 
 
 ( Jus in re propria, proprietas, dominium,^ — Recht an dsr 
 eigenen Sache) 
 
 I. The essence of ownership is legal control over a 
 thing in the totality of its connections. This idea is as 
 extensive as the possibility of use. Jus dominii embraces 
 jus utendi, jus fruendi, jus possidendi, jus disponendi de 
 substantia, jus alienandi, jus vindicandi, and every other 
 thinkable right of conceivable use of a thing. ^ The 
 hmits of this right are elastically variable, and subject 
 to being narrowed down from or ampUfied up to full 
 ownership. It is possible that other persons may have 
 rights in a thing which limit the control of the owner — 
 jura in re aliena. These rights of another may be so 
 extensive that there may remain to the owner only an 
 ultimate right of reversion, or jus recadentiai. If these 
 rights of another are, for any reason, lost, then the right 
 of ownership by virtue of the power of control inherent 
 in it, is automatically restored in its full extent. 
 
 Apart from jura in re aliena, the right of ownership, 
 as of lands, is limited by equal rights of other owners, 
 or by special legal restrictions.^ 
 
 • Salkowski, Inst., sec. 87; Sohm, Inst., sec. 48. 
 
 [Jus in re propria may be employed in a wider sense than the text to 
 include any independent proprietary right whether in rem or in personam. 
 The logical necessities of complete classification seem to require this wider 
 application of this useful division of rights. Since neither the Roman nor 
 Germanic law has any technical terminology to designate rights in intangible 
 things such as patents, this division is limited by the Germans to independent 
 proprietary rights in rem in material objects. See sec. 21. infra, note 1.] 
 
 ^ [The term "right" is here used in a generic sense and includes "powers" 
 and "liberties."] 
 
 With reference to the notion ownership and its limitations, see Gareis in 
 Hartmann's Z. f- d. off. K., Bd. Ill, p. 137. 
 
 3 Infra, IV, 2. 
 
140 SCIENCE OF LAW 
 
 II. Ownership in movables has so great a significance 
 in the Ufe of the individual that without this species of 
 property he could not exist. This kind of property is 
 of far less importance, however, for the community 
 than the ownership of land. It is on this account, that 
 land-law ownership has undergone a different evolution 
 in many legal systems than ownership of movable prop- 
 erty. The interest which the individual has in the legal 
 control of movable things, such as food, clothing, arms, 
 ornaments, household utensils, or animals, is every- 
 where provided with legal protection. This protection 
 in its aspect of favoring the individual is, as a matter of 
 social evolution, and as a fact of history, more ancient 
 than individual ownership of land. Protection of mov- 
 able things, however, is less intensive than of immovable 
 things. It is subject to loss by shorter limitations, and 
 sometimes comes in close approach to the simple pro- 
 tection of possession with which in many systems it is 
 even identical.' 
 
 III. Historically. and politically, the right of owner- 
 ship of land is of much greater importance than owner- 
 ship of movable things. Considerations of the ethical 
 value of ownership in general apply in the highest 
 degree to ownership of land by individual physical per- 
 sons.^ There is no period known to history when 
 
 ^ Cf. French Civil Code, art. 2279-80; Gundermann Englisches Privatrechi 
 (1864), I, p. 310. 
 
 ^ W. Oncken, Die Staatslehre des Aristotoles, Bd. I, p. 192; Laboulage, 
 Geschichte der Vereinigten Staaten (1868), Bd. I, p. 80. Cf. also, ;fiinile De 
 Laveleye, De la propriH^ et de ses formes primitives, 2d ed. (Paris 1877) ; 
 Kohler, in Krit. Viertel J. S. (N. F.), Bd. IV (1881), p. 24. 
 
 The report of the German consul Weber of Apia, on Jan. 22, 1879, to the 
 foreign office at Berlin, is highly indicative of the ethical value of individual 
 ownership. It says: "In Samoa the population is so small in comparison 
 with the extent of arable land; and nature has been so provident, that the 
 natives are provided with bountiful satisfaction of their limited necessities 
 without effort. Even though an increase may be seen in their wants, yet it 
 will be a long time before the Samoan, in consequence of this, will be accus- 
 tomed to any systematic labor. Moreover, with the advance of civilization. 
 
SYSTEMATIC CLASSIFICATION 141 
 
 physical persons did not have individual ownership of 
 land. There are, however, known periods and peoples 
 in history where individual ownership of land was not 
 the rule; where such ownership at the farthest extended 
 to a place of abode (mansio)^; and where community 
 ownership prevailed as to the remainder of the land. 
 So long as hunting and fishing were the principal, or the 
 only activities, and alone furnished means of subsist- 
 ence, individual ownership, in an incomplete dispersion 
 of population, was impossible. Even the pasturage of 
 animals did not express any necessity for individual 
 ownership. When cultivation of the soil began to pre- 
 vail the necessity first asserted itself of giving recogni- 
 tion to private interests in cultivated land by legal pro- 
 tection of the individuals who tilled and sowed the land. 
 A concurrent necessity of undivided community-land 
 long and perhaps always remained. 
 
 This evolution, from the starting-point of community 
 ownership of landed property, is shown by the history 
 of German land-polity,^ even though the details of the 
 
 there must be overcome also certain communistic customs which to a greater 
 or less extent prevail among all Polynesian peoples. Even when the personal 
 authority of the petty chiefs mil no longer exist, the lower caste Samoan, 
 in consequence of the respect for higher castes, which has become as second 
 nature through the custom of the country, will not easily be able to exclude 
 one of such higher caste from access to anything which he desires, and much 
 less a relative. Unconditioned personal ownership hardly exists in reality 
 but mostly only family or kin ownership. As a result, motive and inclination 
 to acquisition of personal ownership through personal effort are impeded 
 from the beginning; inasmuch as no provision is made for the undisturbed 
 use, or the free control of objects of ownership. .Accordingly on these accounts 
 agriculture does not exist among the Samoans." — Appendix to Memorial 
 on the Samoan treaty of Jan. 24, 1879 (Reichstag publication, pp. 167, 168). 
 
 * Maison, HUtte, Hof und Hofraum, Solstatte; the dwelling and its appur- 
 tenances. 
 
 ^Caesar, De Bell. Gall. IV, 1: Sed privati ac separati agri apud eos (sc. 
 Suebos) nihil est. 
 
 VI. 22; Keque quisquam (sc. Germanorum) agri ntodum cerium out fines 
 habet proprios; sed magistratus ac principes in annos singulos geniibus cog- 
 nationibusque hominum, qui una coierunt, quantum et quo loco visum est 
 agri attribuunt atque anno post alio transire cogunt . . . 
 
142 SCIENCE OF LAW 
 
 duration of such ownership and the transitional steps 
 are matters of doubt and controversy.^ While a com- 
 plete transition has been effected toward individual 
 ownership — whether of natural persons or of juristic 
 persons — a transition that was frequently so accom- 
 plished, that the individual, in the interest of his family, 
 remained in the background* (without assuming, how- 
 ever, that so-called "family ownership" was the actual 
 basis of the connecting link between original com- 
 munity ownership and modem individual ownership) ; 
 yet notwithstanding the completeness of the change, 
 there are not many legal institutions which do not 
 clearly indicate the starting-point of the evolution of 
 land ownership.^ This is to be asserted in particular 
 
 23; Civitatibus maxima laus est quam latissime circu-m se vastatis finibus 
 solitudines habere. Hoc proprium virtutis existimant, expulsos agris finitimos 
 cedere, neque quemquam prope audere consistere; simul hoc se fore tutiores 
 arbitrantur, repenting incursionis timore sublaio. 
 
 Tacitus, Germ. 26: Agri pro numero cultorum ab universis in vices occ-upan- 
 tur, quos mox inter se secundum dignationem partiuntur: facilitatem partiendi 
 camporum spatia prabent. Arva per annos mutant: et superest ager: nee 
 etiim cum ubertate et aynplitudine soli labore contenduni. ut pomaria conserant 
 et prata separent et hortos rigeni: sola terrte seges imperatur. 
 
 ^ G. Waitz places the beginning of stationary agriculture with individual 
 ownership as early as the time of Caesar (about 50 B.C.); and claims that 
 there was complete settlement with individual ownership prior to the tin^e 
 of Tacitus (about 100 A.D.). v. Sybel claims a much slower progression 
 toward individual ownership, and a later period for its establishment, as 
 the rule. The position of v. Sybel has attracted the most followers; thus, 
 Roscher, v. Inama-Stemegg, F. Dahn, and R. Schroder. 
 
 ^ Thus the ancient farmstead -communities {Gehoferschaften) in the govern- 
 mental district Treves (see Heusler, Inst, des deutschen Privatrechls, Bd. I, 
 p. 294), and the woodland-communities ( Hauberggenossenschaften) in the 
 district Siegen (Heusler, ib., 295). Cf. the Prussian statute of March 17. 
 1879, p. 228 and particularly, sees. 2, 6, 7. The ancient German institutions 
 of land ownership are comparable to the Russian Mir, or collective possession 
 of property by the village community with distribution of the community- 
 land among individual families, tiaglos; opposed to which is private ownership 
 in the Izba (mansio). They are also comparable to the Javanese dessa, or 
 community property (in rice fields) which is apportioned among individual 
 families, Sawahs, for a term of years; also to the East Indian institution of 
 community ownership of land; and finally, to the Mexican communities, 
 calpulli. See as to all of these, Laveleye, op. cit., 27, 49; Kohler, Krit. v. 
 J. Schrift (1881), pp. 8, 28; and Heusler, op. cit., Sec. 56. Here also are to be 
 mentioned the Slavic Zadruga (sec. 7, note 3, p. 53, supra), and the com- 
 
SYSTEMATIC CLASSIFICATION 143 
 
 of the common, the undivided lands of the mark asso- 
 ciation (the marca) ^ which in early times (that is before 
 the migration of the peoples) embraced even agricul- 
 tural land,^ and afterwards only forest and pasturage. 
 This may be claimed far more, to the extent that owner- 
 ship of the common has passed over to the community, 
 and as such^ is yet to be recognized. The same is true 
 
 munistic aspect of the primitive civilization of the Samoans and Pelew 
 islanders (p. 97, note 1, and p. 140, note 2). 
 
 [See Dr. D. W. Ross, The Early History of Land-Holding among the 
 Germans^ and numerous references therein entered.] 
 
 * Lorsch and Schroder, Urkunden (2d ed., 1881); No. 20 (pascuarium in 
 communi marca, 7th century); No. 79 {silva communis, 10th century); No. 
 117 {silva indivisa, 13th century), etc. 
 
 2 Heusler, op. cit., p. 263. It may be taken as proved by Schroder that 
 the strict agricultural land-community (Feldgemeinschaft) was still the basis 
 of the agrarian constitution of the Salic Franks in the 6th century. (Rich. 
 Schroder, DieFranken und ihrRecht, Weimar, 1881, pp. 55, 61: also Schroder, 
 Die Ausbreitung der salischen Franken: a contribution to the history of the 
 German agricultural land-community (Feldgemeinschaft) Forschungen XIX, 
 p. 144. Schroder, however, makes an exception of SalgHter (lordly property 
 alongside of allotments of the inhabitants of marks). The exception, as 
 favoring the farmstead system (Hofsystem)^ may well admit of wider exten- 
 sion; even if not as far as is supposed by v. Inama-S tern egg in opposition to 
 Schroder, that it may be regarded as the basis of the Frankish agrarian 
 constitution. [See D. W. Ross, op. cit., whose position agrees with Inama- 
 Stemegg.] 
 
 Tacitus says of the farmstead system. Germ. 16:^ 
 
 Nullas Germanorum populis urbes habitare satis notum est; ne pati quidem 
 inter se junctas sedes; colunt discreti ac diversi, ut fons^ ut campus, ut nemus 
 placuit; vicos locant non in nostrum morem, connexis et cohmrentibus wdificiis; 
 suum quisque domum spatio circumdat, sive adversus casus ignis remedium, 
 sive inscitia (sdificandi. 
 
 It was a necessary consequence of the influence of the form of the earth's 
 surface and the social or national evolution, attained during the settlement 
 of the tribes and the starting of agricvilture, that the establishment of the 
 agricultural village community system (Dorfsystem) according to mark law 
 should have become a prominent or exclusive institution on the plains and 
 the great arteries of travel, whether along the Roman military roads, or 
 important waterways. This was equally true of the peoples who still had 
 communication with the Romans, as in the case of the Franks. It also re- 
 sulted however, that in mountainous territory and mountain valleys remote 
 from such lines of communication and avenues of civilization — as in Rhsetia, 
 among the Marcomanni and the Goths, in South Bavaria, and in Tyrol 
 especially — there prevailed the farmstead system as Tacitus described it, 
 and the law of service about kingly villas and castles of lords (Dienstrecht) . 
 
 ^ Individual ownership carved out of the common included the home itself, 
 and later included also agricultural land and meadow and was called (Austrian) 
 Gesund and (Bavarian) Pointy Peint, and Bannt. 
 
144 SCIENCE OF LAW 
 
 of the Alpine associations where it may be noted as of 
 special importance that they are not always coincident 
 with communities, but also arise out of primitive 
 capitalistic associations.' 
 
 IV. The content of the right of ownership is derived 
 from the more extensive notion: legal control of a thing 
 in the totality of its connections. 
 
 1. This content is protected, apart from self-help 
 and similar means, by proprietary actions which positive 
 law classifies as: — 
 
 (a) The action of an owner against a possessor, where 
 there is a complete interference with ownership by a 
 deprivation of possession. Among the Romans this 
 action with strict requirements of proof of ownership 
 was called, rei vindicatio; or without the formal require- 
 ments of proof, actio Publiciana in rem. In German 
 and other modem law^ there is a presumption of owner- 
 ship in favor of a possessor in good faith, unless the 
 possession relates to a thing stolen or otherwise acquired 
 against the will of the owner; 
 
 {b) The negatorial action {actio negatoria) based on 
 partial interference ■wdth ownership.^ 
 
 2. As above observed, the sphere of ownership is 
 limited by the rights of other persons. Apart from 
 jura in re aliena, these limitations are principally upon 
 use and alienation. The owner is limited in his use by 
 a consideration of equal rights of his neighbors, as in 
 the case of legal limitations on ownerships or so-called 
 legal servitudes, ex jure vicinitatis ; and also by regula- 
 
 ' Heusler, op. cit., p. 295. 
 
 2 B.G.B., sees. 985, 1006. 
 
 ^ lb., sec. 1004. [There is no eqmvalent in our law for this action. Actio 
 negatoria protects an owner against a mere disturbance of possession. If 
 the interference is of a recurring nature the owner may have an injunction 
 if permanent he may require the disturber to remove the injury; and in 
 other cases he may have damages. See Savigny, System d. Rom. R. VI, 
 349; Sohm, Inst. 249; Schuster Principles Ger. Civil Law, 410.] 
 
 ■"76.. sec. 906. 
 
SYSTEMATIC CLASSIFICATION 145 
 
 tions which are directed to the protection of the public 
 interest' — the state, the community, or even the interest 
 of the family — as opposed to the interest of ownership.^ 
 The alienation of landed property is distinctly limited 
 in the German law. This limitation on ownership arises 
 in part from the fact that individual ownership of land 
 in Germany, as shown, has evolved out of community 
 ownership. This is also in part due to the circumstance 
 that family interests in land have received a special and 
 peculiar legal protection as against individual owners. 
 Based on these reasons, the legal institutions of family 
 settlements or ancient patrimonial estates, and family 
 fidei-commissa^ arose. This was also the origin of 
 Beispruchsrechte [which required consent of the blood 
 relatives before landed property might be transferred 
 in the lifetime of the owner, and in the absence of which, 
 the relatives could within a year and a day claim the 
 property as if inheritance had followed death — retr actus 
 gentilicius sive ex jure consanguinitatis]; and Retrakt- 
 rechte ( Naherreckte) [the power to require the relinquish- 
 ment from the transferee or any subsequent grantee, 
 of land transferred upon payment of the original pur- 
 chase price.]* 
 
 V. The acquisition of ownership. This is based on 
 juristic facts. Following are those juristic facts con- 
 sisting of acts of persons which produce the acquisition 
 of ownership : — 
 
 1. Appropriation (occupatio) .^ This is the most 
 natural method of acquiring possession. Persons, that 
 
 ■ Cf. B.G.E., sec. 904. 
 
 '^ Stobbe, Deutsches Privatrecht, sec. 85; Gerber, Dtsch. Privatr.. sec. 86- 
 Gengler, D<scfe. Privatr., sec. iS; Bluntschli, Dtsch. Privatr., sec. 87; Gareis, 
 Grundriss, sees. 65-67. 
 
 3 Gareis, Grundriss, sees. 62, 63; Einf. G. z. B.G.B., Art. 59. 
 
 * Literature, see Gareis, Grundriss, sec. 64; Stobbe, Deutsches Privatrecht, 
 sees. 87-90; H. O. Lehmann in Birkimyer's Em., pp. 315, 316, 326, 357. 
 
 » B.G.B., sees. 958-964. 
 
146 SCIENCE OF LAW 
 
 is natural legal subjects, become masters of the things 
 of the earth, simply because they appropriate them, 
 that is, take possession of them, and actually "appre- 
 hend" them with the will to become owner of them. 
 It is self-evident that an unlimited exercise of acts of 
 appropriation would lead directly to continual strife of 
 all against all, if this egoistic tendency were not legally 
 limited and legally surrounded by special conditions. 
 Of such conditions are : — 
 
 (a) That the thing' to be appropriated shall be with- 
 out an owner, as only res nullius cedit prima occupanti; 
 thus, the law of stranded things (Strandrecht) . Occu- 
 pation of a thing against the will of the owner is theft, 
 robberj'-, embezzlement, etc.; 
 
 (b) The observance of certain rules in the occupation 
 of ownerless things as developed in the following depart- 
 ments of law: the law of mining,^ to which belong also 
 salt-mining and pearl and amber fishery; the law of 
 hunting^; the law of fishery^; the law of treasure-trove^ 
 (Schatzheberecht, motio thesauri), and the law of finding" 
 {Finderrecht) ; 
 
 (c) Under certain conditions, however, occupation of 
 things already possessed by an owner is legally per- 
 mitted: thus — apart from the sovereignty of states over 
 things' — occupatio bellica, or the taking by force in war, 
 and occupation of means of subsistence by necessity of 
 war (Requisitionsrecht) ; and the taking and destruction 
 
 ^ Possibly there belongs here, the acquisition of ownership of lands by 
 means of breaking the soil as by grubbing wild lands (cf. supra, sec. 7, II) 
 whether in the case of lands theretofore belonging to the common or in the 
 case of abandoned lands, and caUed by Lorsch and Schroder, Vrkunden — 
 (No. 128 of the year 1248) — agris in vepres et spineta redactis. 
 
 ^Cf. F.inf.G. s. B.G.B., Art. 67, 68. 
 
 => Cf. id., art. 69. 
 
 * Id., art. 69. 
 
 = B.G.B., sees. 984, 1040. 
 
 Id., sees. 965-983. 
 
 ^ See infra, sees. 37, 47. 
 
SYSTEMATIC CLASSIFICATION 147 
 
 of things in case of necessity for self-help or self-defense 
 in time of peace.* 
 
 2. Transfer of ownership^ {traditio, transfer of posses- 
 sion with animus tradendi, dominii transferendi) . The 
 Roman transfer of ownership by traditio has not been 
 assimilated either in the older, or the modern law of 
 Germany as to landed property. As a general rule, 
 there is necessary a formal act of conveyance by agree- 
 ment {Auflassung) which is consummated by record in a 
 public registry or land-book^; so that he only is the 
 legal owner who is registered as such in the land-book 
 {Grundbuch) . There is not to be confused here the law 
 relating to registered agreements for the conveyance of 
 land and the wholly independent provisions relating to 
 agreements for the conveyance of land executed with 
 judicial or notarial formalities and which carry the 
 obligation of making such registered conveyances; as 
 for example agreements for the sale of land.* 
 
 • B.G.B., sees. 227-231, 859, 904. 
 
 Necessity is also taken into account by the present German Criminal Code 
 (see. 54; Gareis, Reichsges., 143-146). An example may also be found in the 
 ancient Indian law; "A twiee-bom man, who is traveling and whose pro- 
 visions are exhausted, shall not be fined, if he takes two stalks of sugar-cane 
 or two (esculent) roots from the field of another man." — Manu VIII, 341. 
 Cj. Jolly, Recht und Sitte, op. cit., p. 126. There is a German legal saying, 
 "three are free"; thus in the Longobardian Law (Leges regis Rotharis, A.D., 
 643, cap. 301), it is provided: si quis super ires uvas de vinea aliena tulerit, 
 co-rnponat solidos IV, nam. si usque tres tulerit, nulla sit ei culpa. It is provided 
 in the Saxon Mirror (Sachsenspiegel II, 6S) ; Erligt deme wekvertigen manne 
 sin phert, her milz wol korn sniten und ime geben, alsS verne als erz gereichen 
 mag siSnde imme wege mit eiine vUze; her en sal es aber nicht dannen vuren. 
 
 This provision suggests what Nachtigall says of African law: "There are 
 customs even among the Fezziaiis which permit every person by force of law 
 to pluck and gather for use on the spot ripe fruits as long as dates are not 
 ripe for cutting, but he may not carry the fruit home." — Dr. G. Nachtigall, 
 Sahara und Sudan, I, p. 269 (1879). See also, O. Gierke per Humor im 
 deuischen Recht (1871), p. 9, note 19. Cf. also, the King's Peace, Frederick I, 
 11-56, cap. 19. 
 
 2 B.G.B., sees. 929-936. 
 
 ^ The ancient Greek law recognized records of land registry and publicity 
 in the conveyance of immovable property. See, Lipsius, Leipzig Rectoral 
 Address, 1893, pp. 12-13. See B.G.B., sees. 873-902, also, sees. 925-928 
 and the Ger. Land Registration Act of March 24, 1897 (G.E. A. II, 16 (208); 
 also, H. O. Lehmann, in Birkmeyer's Enz., p. 314 and Bernhoft, pp. 517-540. 
 
 * B.G.B., sec. 313. 
 
148 SCIENCE OF LAW 
 
 3. Acquisition of ownership by means of natural 
 additions of objects of ownership to things already 
 owned: thus the different kinds of accession, accre- 
 tion/ incorporation {incedificatid) ,'^ the growth and 
 separation of natural fruits.^ Confusion and specifica- 
 tion* (confusio and specificatio) may also be considered 
 here in part. 
 
 4. Usucaption,^ that is, the acquisition of ownership 
 by means of possession of a particular character and for 
 a certain duration. Time here, as in other cases, has a 
 healing or perfecting force as a juristic fact.* 
 
 5. Expropriation.' In particular cases, the interest 
 of the community demands the termination of legally 
 protected relations and the establishment of new rights. 
 Expropriation is the justification of the public interest 
 by means of a definite procedure based on a judicial 
 decree through which the paramount position of the 
 public interest over private right is adjudged. This 
 procedure displays the operation of state sovereignty in 
 the social purpose of private law. 
 
 6. Various other methods of acquisition of owner- 
 ship, including the law of inheritance (sec. 34). 
 
 VI. Ownership may be extinguished in a particular 
 individual where a complete transfer of ownership is 
 made to another; likewise when the interest of the 
 owner ceases to have protection, as by destruction by 
 law ; and absolutely as when the thing itself is destroyed 
 or becomes extra commerciwm. 
 
 ' Cf. F.inf.G. -i. B.G.B., Art. 65. 
 
 2 B.O.B., sec. 946. 
 
 ^ Id., sees. 963-957. 
 
 * Id., sees. 946-952. 
 
 ' Usucapion of movables, B.G.B., sec. 937-945; of immovables sees 
 900, 927. 
 
 " In the ancient Indian law (code of Manu VIII, 147) ten years' possession 
 as owner creates ownership. Cf. also, Julius Jolly, Recht und Sitte op cit 
 p. 91. 
 
 ' Cf. supra, sec. 14, IV, 5; Einf.G. ». B.G.B., Art. 109. 
 
SYSTEMATIC CLASSIFICATION 149 
 
 SECTION 21 
 
 REAL RIGHTS' in re ALIEN A 
 [Jura in re Aliena)' 
 
 It is possible that a person may have an interest in a 
 thing in only a single connection or aspect while in all 
 other aspects it may be subject to the use of another. 
 For instance, one who has a right of way through the • 
 land of his neighbor without any rights in the fruits of 
 the land, has a jus in re aliena so far as his interest in the 
 right of passage is protected. 
 
 In this class of real rights, the immediate object of 
 legal control is also a thing. Yet there may possibly 
 also be exacted active duties of persons ; as was provided 
 for in great detail in the Roman law; and very exten- 
 sively also in the German law, as in the case of per- 
 petual charges on land (Reallasten) , and in the law of 
 tenure (Lehenrecht) . 
 
 ^ [Jura in rem are classified by German writers into rights peculiar to the 
 person {Personlichkeitsrechte) and into real rights, or rights relating to 
 tangible objects {dingliche Rechte). There is no compact term in German 
 juristic terminology to designate rights with an intangible thing as a basis. 
 The author divides the law of things into the law of material things which 
 embraces real rights, and into the law of immaterial things which embraces 
 rights peculiar to the person, including patent -rights, copy-rights, etc. See 
 appendix to this work; Schuster, Principles of German Civil Law (1907) 
 p. 67.] 
 
 [In a wider and in what appears to be a more logically complete applica- 
 tion for the purposes of complete classification, a jus in re aliena may be 
 defined as an accessory proprietary right (whether in rem or in personam 
 and whether relating to a material or an immaterial object) which limits 
 another proprietary right in its possible legal uses. It is accessory to some 
 right of the owner of the jus in re aliena. It is a right in a right. In this 
 respect it is unlike a jus ad rem which is a right to a right. A jus in re aliena 
 is intermediate between creative and extinctive facts without involving 
 transfer. Cf. sec 20, note 1.] 
 
 ^Salkowski, Inst., sees. 107-120; Sohm, Inst., sees. 55-59. 
 
150 SCIENCE OF LAW 
 
 In the recognition and development of jura in re 
 aliena, economic conditions, and the political, and in 
 particular, the socio-political history and circumstances 
 of a people, have had great influence. Accordingly, in 
 Germany certain jura in re aliena unknown to the 
 Byzantine-Roman law also evolved alongside of such 
 recognized real rights as servitudes and pledge-rights 
 (Pfandrechie). In their entirety these rightJ are as 
 follows : — 
 
 1. Servitudes' (Dienstbarkeiten) . These are rights 
 of user recognized by the ancient Roman law — inalien- 
 able, and annexed to a definite person.^ Servitudes are 
 classified, accordingly, as: — 
 
 (a) The owner of the usufructuary interest is a definite 
 person (thus the citizen H., or the surviving widow of 
 the peasant M.). This servitude is, therefore, fixed as 
 belonging only to that person ; in which case it can exist 
 only so long as that person lives ; or 
 
 (6) As the entitled subject is discovered or ascertained 
 by his ownership of land, sometimes called entitled land, 
 that is, the ownership of a prceditim dominans.^ The 
 owner for the time being of the dominant land is the 
 person entitled to the servitude. 
 
 These servitudes are therefore respectively called: — 
 
 (a) Personal servitudes: including the usufruct* {usus- 
 fructus, Niesshrauch) which has become an important 
 
 ^ [This includes the easements and profits h prendre of the English law.] 
 
 ^ Cf. Sohm, Inst., sec. 56. 
 
 ^ So called in distinction from prcedium serriens, or land partially subject 
 to use in the legally protected interest of the owner ot the servitude. 
 
 " Usufruct in things, B.G.B., sees. 1030-1067; of rights, B.G.B., sees. 
 1068 to 1084; of one's whole property, B.G. B., sees. 1085-1089. Derivative 
 or variant forms of usufruct: — 
 
 (a) Prebendiary rights (see Einf.G. s. B.G.B., Art. 80); 
 
 (b) Usidruct of the husband in the contributed property of the wife 
 (B.G.B., sec. 1363), and the right of usufruct in the property of children, 
 by virtue of parental power (B.G.B., sec. 1649); 
 
 (c) Real rights known as the "old man's part," life pensions, life annuities 
 and rights of support (Einf.G. z. B.G.B.. Art. 96). 
 
SYSTEMATIC CLASSIFICATION 151 
 
 right in the German family regime; and restricted per- 
 sonal servitudes such as usus and habitatio;^ and 
 
 (b) Prffidial servitudes^ (Grunddienstbarkeiten) . These 
 servitudes, accordingly as they relate generally, but not 
 exclusively, to urban buildings or improved lands 
 {prwdia dominantia) ; or to land or forest in its economic 
 use or employment, are again divided into: — 
 
 (a) Servitutes prcgdiorum urbanorum; as for example, 
 sermtus oneris ferendi; servitus tigni immittendi ; servitus 
 altius -non tollendi; servitus stillicidii; servitus ne pros- 
 pectui, ne luminibtis officiatur; the easements of light, 
 view, etc.; 
 
 (b) Servitutes prcediorum rusticorum; such as rights of 
 way {servitus itineris, servitus actus, and servitus vim); 
 water rights {servitus aqu-mductus, aquae hauriendce, 
 dam rights, etc.) ; forest servitudes (forest privileges, 
 fire-bote, wood-rights, litter-rights, foliage-rights) ;' rights 
 of pasturage {servitus pascendi, servitus compascendi, 
 common pasturage, etc).* 
 
 Legal systems contain definite provisions relating to 
 the content, range, acquisition, and extinguishment of 
 these servitudes. 
 
 2. Pledge rights, Pfandrecht, pignus, hypotheca. This 
 is a real right of security for a performance, or a burden 
 upon a thing by its detention for a debt.^ 
 
 In every right of pledge, the notion is practically 
 employed that a thing shall answer or stand for a per- 
 formance; to the end, that the satisfaction of a demand 
 for this performance can be made out of the thing, as by 
 sale of the thing pledged.^ 
 
 ' B.C.B., sees. 1090-1093. 
 
 2 B.G.B.. sees. 1018-1029. 
 
 ' Kraut-Frensdorff, Grundriss, sec. 101. 
 
 • Id., sec. 99. I 
 
 ^ There may also be a detention of a person to answer for a performance. 
 See infra, sec. 22; cf. Turner, Freiheitsverpfdndung (altbabyl. Rechtslehre, 
 Kohler u. Prim), TV, p. 47. 
 
152 SCIENCE OF LAW 
 
 Modern law recognizes two essential classes of such 
 pledge-rights : — 
 
 (a) Right of pledge of land commonly called hypo- 
 theca^ (Hypothek) in which the creditor does not have 
 possession of the thing pledged; buc has the right to 
 cause the sale of the land pledged, in the event, that 
 the demand, for which the pledge is given, is not satis- 
 fied by payment at the proper time. The creation of a 
 hypothek requires, at the present time, registration of 
 the pledge in a public register, in analogy to registration 
 of ownership. The remaining usual and commercial 
 pledge-rights of immovables, classified in accordance as 
 they are certified or not (certificated hypotheks {Brief - 
 hypothek) and uncertificated hypotheks'' {Buchhypothek) ) 
 are cautionary hypothecary charges^ (Sicherungshypo- 
 thek), land charges^ (Griindschuld) , and aimuity charges* 
 ( Rentenschuld) ; 
 
 {b) Pledge-rights in movable things" {Faustpfand, 
 pignus) which are delivered into the custody of the 
 creditor. The chief application of pignus is in the busi- 
 ness of loan or pawn establishments,' and in commercial 
 law. The Lombard business which is a peculiar com- 
 bination of money lending and pignus,^ is a species of the 
 kind mentioned. There is also to be mentioned 
 bottomry." The creditor in a pignus transaction is 
 also, to a certain extent, a debtor. He is boimd, con- 
 
 ^ [Schuster, op. cit., p. 436, calls this a "hypothecary charge,'' as opposed 
 to a "land charge" (Grundschuld) . The first is a charge on land accessory 
 to a debt; the other is independent of the debt and enforcible without proof 
 of the debt.] 
 
 2 B.G.B., sec. 1113; Co.sack, Lehrb. d. b. R.. sec. 22<t. 
 
 ' B.G.B., sec. 1184; Cosack, loc. cit., sec. 223. 
 
 * B.G.B., 1191; Cosack loc. cit., sec. 222. 
 
 » B.G.B., sec. 1199. 
 
 ® The German Civil Code distinguishes: pledge-rights in movable things, 
 sees. 1204-1258, and in connection with this title, pledge-rights in registered 
 ships, sees. 1259-1272; and pledge rights in rights, sees. 1273-1296. 
 
 ' Einf.G. s. B.G.B.. Art. 94, 
 
 s See infra, sec. 22, III, 6; Gareis, Lehr. d. H.R., p. 511, 
 
 » Gareis, loc. cit., pp. 715, 963. 
 
SYSTEMATIC CLASSIFICATION 153 
 
 formably to obligation, to return the pledge after the 
 termination of his pledge-right, and in particular, after 
 payment of his claim.' 
 
 3. Tenure (feudum) is a real right in a thing whereby 
 the person entitled (the vasallus) may make a certain 
 use of a' thing, and has a so-called dominium, utile in a 
 thing which must be one not consumed in use. In 
 return, the vassal is bound to the feudal lord {dominiis 
 feudi) in a certain fidelity. In a true feud, this con- 
 sisted of knight service, and in a base feud (fettdastrum, 
 feudum, bitrsaticum, purse or mone}'- feud), consisted in 
 base or socage service, tithes, and other perpetual 
 charges, or in the payment of money. In modern times 
 only a remnant of these Germanic, that is Prankish and 
 Lombard legal institutions, have any practical signifi- 
 cance.^ 
 
 4. Tenantry rights (Mater, and Kolonatrechte) which 
 include real rights in farm lands, with a reservation of 
 ownership in the dominus and requiring the payment 
 of a fixed sum (canon, pensio, or perpetual charge) to the 
 owner; and also, possibly, including uses of land passing 
 by inheritance, such as heritable leases (Erbpachten) .^ 
 
 5. Perpetual charges* (Reallasten) are periodical 
 duties of performance on the part of the tenant of a 
 servient estate. The right to such performance is, in 
 
 > See ittfra, sec. 23, III, 9; cf. B.G.B., sec. 1223. 
 
 ^ Einf.G. z. B.G.B., Art. 59. The basis of feudalism in Germany lay partly 
 in the system of household retainers of the nobles (see sec. 47, note 9, p. 
 249, infra) ; partly in the customary system of beneficia among the Franks ; 
 and in part in the legal institution of personal submission under definite 
 fidelity, or vassalage. Regarding the feudal system in ancient Babylonian 
 law, see Code of Hammurabi, sees. 32-37. 
 
 'Thus, the rights of peasant proprietors (Biidnerrechte), of small tenant 
 farmers (Hduslerrechte), and of other hereditary tenants (Erbzinsrechte). 
 See Einf. G. z. B.G.B., Art. 63. See also Kolonatrechte, in Gareis, Grundriss, 
 sees. 90, 91. Cf. infra. No. 6. 
 
 * B.G.B., sees. 1105-1112; cf. Gareis, Grundriss, sec. 87. 
 
154 SCIENCE OF LAW 
 
 general, of a real nature and rests upon the land itself. 
 The land appears as bound for the performance of the 
 duty. This right is also of a personal nature, in that 
 the person, who was the owner at the time of the matur- 
 ity of the periodical performance, is regarded as 'liable 
 for the performance. Of this nature, also, are rent 
 charges' of various kinds, including the institution of 
 perpetual payment {Miincheiier Ewiggeld), tithes {deci- 
 mcB), socage service (Fronen), and possibly also, life 
 pensions or annuities (Leihziichtrechte) . Prescriptive 
 rights {Bannrechte) may be laid on land like perpetual 
 charges (Reallasten), whereby trade rights are estab- 
 lished within a definite district (Bannnteile), against the 
 residents or tenants of land within the district, requir- 
 ing them to purchase such articles of consumption as are 
 interdicted;^ and whereby this duty of purchase is con- 
 sidered as a burden on the lands of the consumers. 
 
 6. Emph)rteusis {iv and *uTaiu to implant) is a herit- 
 able lease {Erbpacht) of agricultural land {pradium 
 rusticum) , and called in this connection fundus emphyteu- 
 ticaritis. The emphyteutic lease has its origin, in part, 
 in the legal relations growing out of the ager vectigalis 
 of Rome; and, in part, arising out of legal conditions in 
 connection with the imperial domains in Asia Minor. 
 The emphyteuta, the lessee, is invested by his lease {con- 
 tractus emphyteuticarius) with a right of possession, of 
 usufruct, alienation, right of action, and various legal 
 and possessory rights; just as in the case of an ov/ner, 
 as opposed to a mere lessee. His right is not a simple 
 obligation right, but is protected against the whole world 
 as a real right and passes by inheritance. The emphy- 
 teutic lessee was obliged under pain of expulsion to pay 
 
 ^ Concerning incumbrances for rent charges, see the Prussian statute of 
 June 37, 1890 and Einf.G. z. B.G.B., Art. 62. 
 
 '' Einf.G. u. B.G.B., Art. 74; cj. Gareis. Grundriss. sec. 89. 
 
SYSTEMATIC CLASSIFICATION 155 
 
 the owner {dominus fundi) a yearly compensation {vec- 
 tigal, later called canon, or pensio, and corresponding to 
 rent) ; to give formal notice of his intention to transfer 
 his rights in order that the owner might exercise his 
 legal right of pre-emption (jus protimiseos) ; and he was 
 under duty not to injure the land. The principles of 
 this letting have largely been assimilated in the German 
 law of tenantry, (see No. 4 supra). 
 
 7. Heritable building rights' (Erbbaurechte) are trans- 
 ferable and inheritable rights to erect buildings (for 
 example a house, an outlook tower, a well, or a cellar) 
 above or below the surface of the land. These rights are 
 an incumbrance on land. They correspond, in part, 
 with the Roman superficies, which is a real right in a 
 building or other structure which stands on the land of 
 another, and which, therefore, juridically is to be regarded 
 as the property of the land owner. For this reason the 
 superficiar has only a jus in re aliena^ in the building. 
 
 8. Beispruchsrechte, Retraktrechte , and Naherrechte^ 
 are a species of other real rights which have been de- 
 veloped in the German law, by means of which a person 
 may in certain cases make claim on things which another 
 desires to transfer or has already transferred. Of this 
 class, also, are the real rights of pre-emption* ( Vor- 
 kaufsrechte) . 
 
 ' S.G.B., sees. 1012-1017. 
 
 ^ The Roman right of superficies has come little into use in Germany. In 
 local law, a legal institution has arisen whereby there may be different owners 
 of diilerent floors of a building in public houses. See contra, B.G.B. sec. 
 1014, but see Einf. G. z. B.G.B., Art. 131, and 182. See also Sohm, Inst., 
 sec. 58; Windscheid, Pand., Sec. 223. 
 
 ' See supra, sec. 20, IV, 2. 
 
 * B.G.B., sees. 1094-1104. The notion lying at the basis of Retraktrechte 
 is of ancient origin; cf. Code of Hammurabi (ed. Kohler & Peiser), p. 110, also 
 by the same editors, Babylon. Rechtileben, Bd. IV, p. 67; see also H. O. 
 Lehmann in Birkmeyer's Enz., pp. 315, 316, 326, 357. 
 
156 SCIENCE OF LAW 
 
 9. Real possessory rights: hunting, fishery and min- 
 ing rights. 
 
 10. Real legal relations in church law: prebendiarj'- 
 rights (Pfrundnerrechte), advowsons (Patronatrechte), 
 sepulture, pevv^ rights, incumbrances for maintenance of 
 schools and churches.^ 
 
 1 Einf.G. z B.G.B., 1.32, 133. 
 
SYSTEMATIC CLASSIFICATION 157 
 
 CHAPTER III 
 THE LAW OF OBLIGATIONS 
 
 SECTION 22 
 
 GENERAL PART» 
 
 A person may have an interest in the performance' of 
 an act by another; thus, an act of payment. The person 
 who is to perform an act may be obligated (bound, 
 (verbunden)) by legal order to its performance. He is 
 therefore called the obligor or debtor {debitor) . The per- 
 son who has the power by legal order to demand an act 
 from the debtor is called the obligee or creditor {creditor) . 
 The object of control of the dominant legal subject (that 
 is the creditor) is an act of the debtor. This act may 
 consist of doing or refraining. 
 
 In another aspect, the object may be the person of the 
 debtor himself, who owes the performance of the act, 
 and stands liable therefor. The theoretical, and some- 
 times also practical, distinction between a performance 
 and the debtor's answerability,^ does not, in the latter 
 case in modem civilizations, involve the person of the 
 debtor in the totality of his relations* and activities; 
 
 ' Salkowski, Inst., sec. 121; Sohm, Inst., sees. 66, 74, 75, 76. 
 
 2 B.G.B., sec. 241: "By virtue of an obligation, the creditor is entitled 
 to demand performance by the debtor. Performance may consist also of 
 forbearance." With reference to the duty of performance, see B.G.B., 
 sec. 242, c seq.; default of the debtor, B.G B., sees. 284, 292; default of the 
 creditor, B.G.B , sees. 293-304. 
 
 ^ Relative to this distinction, see v. Amira, Grundriss d. germ. Rechts, 
 sec. 70; Gareis, H.G.B., 3d ed., p. 332, sec. 356, note 3; H. Brunner, 
 Grundzuge d. D. R. Geschichte, sec. 50, p. 291. 
 
 ■* In earlier stages of civilization, at any rate, the whole personality was 
 involved; so that there was slavery for debt, or in any event private im- 
 
158 SCIENCE OF LAW 
 
 as in such case, the debtor would cease to be a legal 
 subject, and would become a legal object, a thing, or a 
 slave. Obligations involve only particular relations, or 
 only one relation, with regard to an act; thus a doing 
 {facere, committere , — a positive act) or a forbearing 
 (pmittere, omission, — a negative act).^ 
 
 A person who is entitled to re-payment from another 
 of a sum of money can claim only a single act — ^the per- 
 formance of payment. A person entitled to delivery 
 of a horse from another on payment of the purchase 
 price can claim only a single act, namely, delivery. In 
 the first case the money, and in the second, the horse 
 are not within the control of the creditor, until perform- 
 ance by the debtor. The claim is, in each case, against 
 the person of the debtor {actio in personam, and not in 
 rem). It does not involve the totality of the debtor's 
 personality; but only a single activity, that of perform- 
 ance. If the submission of the will of the debtor were 
 to extend further and involve his personalit}' to the 
 extent of legal subjection, the obligation would be 
 regarded as immoral {contra bonos inores) — as leading to 
 actual slavery, which is regarded as illegal in civilized 
 countries. 
 
 There is a legal bond between the creditor and debtor, 
 an obligatio, — a vinculum juris,' — by which the debtor 
 is bound to the creditor for performance. Every obliga- 
 tion includes : — 
 
 (1) A creditor side and a debtor side; 
 
 (2) A claim and a debt; 
 
 prisonment (arrest for debt in the house of the creditor, etc.)- Cf. Code of 
 Hammurabi, sees. 113-117, 151. In the Babylonian law the wife stood 
 as security for debts of the husband and might be sold therefor. 
 
 ' Paulus, de obi. et act.. Dig. 1, 3, 44, 7. 
 
 Ohligationum substantia non in eo consistii, ut aliquod corpus nostrum, aut 
 servitutem nostram faciat, sed ut alium nobis obstringai ad dandum aliquid, 
 vel faciendum, vel prmstandum. 
 
 2 Pr. I, de obligat. (II, 13). Obligatio est juris vinculum, quo necessitate 
 adstringimur alicujus solvendce rei secundum nostra civitatis jura. 
 
SYSTEMATIC CLASSIFICATION 159 
 
 (3) A right in personam^ and a legal relation involving 
 a personal tie requiring one person to render perform- 
 ance to another (Schuldverhdltnis) ; 
 
 (4) A personal title (Berechtigung) of the creditor and 
 a personal tie ( Verpflichtung) by which the debtor is 
 bound to render performance. 
 
 There may be a plurality of creditors or debtors: thus 
 joint creditors and joint debtors. 
 
 A creditor may transfer^ his rights (or the exercise of 
 his rights) to another (a cessionarius) who then takes 
 the position of the assignor {creditor cedens). All de- 
 fenses avail against the assignee which the debtor could 
 have made against the original creditor — {exceptiones ex 
 persona cedentis). 
 
 The debtor cannot without the consent of the creditor 
 completely transfer his liability. 
 
 Legal order provides for a dissolution of the obliga- 
 tory bond {vinculum juris) of obligations, by perform- 
 ance of the duty involved. 
 
 The law of obligations requires a pre-de terminable 
 termination of the obligatory bond, in contradistinction 
 to the law of real rights. The normal termination of 
 the relation is performance or soliUio in the narrow 
 sense. There may, however, be a termination of the 
 bond not based on performance, but in which the obliga- 
 
 ^ [Forderungsrecht. This is a technical German legal term which goes back 
 to the formulary system of classical Roman law. Every formula contained 
 an inientio which specified the conditions or issue upon which the defendant 
 was to be condemned. In actions in personam the defendant was designated 
 in person, while in actions in rem only the person of the plantiff appeared in 
 the inientio. The term "right" is here used in a generic sense to include 
 "power." The term Schuldverhaltnis (obligatory relation) also has a technical 
 application and is here so employed. 
 
 It would seem that the elements of an obligation might perhaps be more 
 logically contrasted in the following enumeration; (1) a creditor side, and 
 a debtor side; (2) a claim, and a debt; (3) an interest to require a certain 
 thing of a definite person, and a duty of a definite person to render a certain 
 performance; (4) a po-jver to require a certain thing of a definite person, and 
 a liability of a definite person to lender performance to another.] 
 
 ' Transfer of claims by assignment according to B.G.B., sees. 398-419. 
 
160 SCIENCE OF LAW 
 
 tion yet comes td an end.* This may result by confusio 
 or merger, as when the debtor becomes the heir of his 
 creditor; by rescission^ {Riicktritt vom Vertrag) ; and by 
 release {Erlass)} 
 
 The law of obligations represents a higher stage of 
 civilization than the law of things, or family law. It is 
 less primitive and therefore susceptible of more irregular 
 development than the other groups of law. In the evo- 
 lution of the law of obligations, as seen in the modern 
 law of banking, and of stock-exchanges, and moreover 
 in commercial affairs, there is mirrored most conspicu- 
 ously the historical progress of centuries made by the 
 law and jurisprudence, and especially is this true in 
 German legal history.* 
 
 The first step in advance, from the law of things and 
 family law toward the law of obligations, was made in 
 the recognition of claims for compensation or damages. 
 Compensation for robbery, theft, and other illegal injury 
 is indeed the first object which a free person may claim 
 from another.^ Later, as a matter of legal history, there 
 
 * Extinction of obligations by fulfillment, see B.G.B., sees, 362-371; 
 extinction by lodgment ( Hinterlegung) [deposit by the debtor of money, 
 etc. for the benefit of the creditor, in a public lodgment-office, at the place 
 of performance], S.G.B , sees. 372-386: extinction by set-off (Aufrechnung), 
 B.G.B., sees. 387-396. An unactionable claim may in certain cases exist 
 (a so-called naturalis obligatio) : cf. B.G.S., sees. 222 (2), 223, and G. Frenzel, 
 Veber die Entstehung des Romischen Rechtsbegriffs der naturalis obligatio 
 (1897). 
 
 2 B.G.B., secs.346-361. 
 
 2 Ibid., sec. 397. 
 
 ■* Cf. Kohler, Z. S. f. vergleich. Rechtswissenschaft, Bd. Ill, p. 161. 
 
 ^ It is a matter of controversy whether the Homeric age recognized an 
 actionable obligation arising out of agreement. Obligations based on delicts 
 certainly were recognized: cf. Iliad XI, 685, 688; Odyss. XXI, 16. The 
 remunerated position of the watchman, however, ( Odyss. IV, 52.5) is to be 
 regarded as a bilateral agreement. Cf. A. Hofmeister, Die Gerichtsszene im 
 Schild des Achilles (Iliad XVIII, 497-508) in Z. S. f. vgl. Rechtswissenschaft, 
 Bd. II, pp. 442, 446, 451. The most ancient law book that we know, the 
 Code of Hammurabi, recognized as early as about 2250 B. C. a multitude 
 of obligatory relations based on agreement; thus sale and warranty (like 
 in the modem German law, see Kohler-Peiser, pp. Ill, 112, 115); ordinary 
 and usufructuary leases (Miete, and Pacht) ; agreements of suretyship or 
 
SYSTEMATIC CLASSIFICATION 
 
 161 
 
 appeared the more important claim arising by force of 
 agreement, with its complex development. This claim 
 was based probably, at first, on the giving in pledge of a 
 thing which was to stand as a wadium for performance ; 
 and later the giving in pledge of the person obliged or 
 the person of another as personal security for a debt. 
 
 There are two chief sources of obligations :* — 
 
 (a) Obligations arising out of agreement (sec. 23) ; and 
 
 (b) Obligations arising out of unlawful acts (sec. 24). 
 
 guaranty (Burgschaft); depository, transportation, and warehouse agree- 
 ments ( Verwahrungs- Transport- und Lagerhausvertrag); and the last as in 
 modem law (see Kohler-Peiser, p. 116). This code even recognized instru- 
 ments rtinning to bearer (Inhaberpapiere) (ib., p. 117). 
 
 ; Legal 
 
 
 
 Legal : 
 
 i Sphere 
 
 \ 
 
 
 Sphere : 
 
 ■ of 
 
 
 
 of : 
 
 i A 
 
 
 
 B i 
 
 A and B agree that the horse shall pass from the legal sphere of A by 
 a transfer to the sphere of B; and that the purchase price shall pass from 
 B to A. This is an obligation arising in agreement. 
 
 If B steals or illegally injures the horse of A he is obliged to pay a sum of 
 money. This is an obligation of delict. 
 
162 SCIENCE OF LAW 
 
 SECTION 23 
 
 (a) OBLIGATIONS ARISING OUT OP AGREEMENT' 
 
 I. An agreement ( Vertrag) is a declared concurrence 
 of will {erkldrte Willensubereinstiimnung) of two or more 
 persons whereby a change in their legal spheres is 
 intended. An obligation generated by agreement is a 
 declared concurrence of intention as a result of which 
 one person is bound to another for a performance, 
 {Leistung) . Not every concurrence of intention designed 
 for the origination of such obligatory bond, does, in fact, 
 create it ; but only those permitted by law. Even though 
 a concurrence of intention may be allowed by law, this, 
 alone, is not sufficient to originate a legally actionable 
 claim. Only those agreements legally recognized as 
 actionable can create actionable claims.^ 
 
 ' Salkowski, Inst., sees. 135-149; Sohm. Inst., sees. 65-71; B.G.B., sees. 
 305-808. 
 
 ^ Cf. on the other hand, agreements for hribery, seduction, robbery, 
 concubinage, agreements contrary to the Trade Regulation Statute (sec. 115), 
 agreements to the prejudice of creditors (contrary to R.G. Jl:ly 21, 1879), 
 usurious agreements (contrary to R. G. May 24, 1880), and agreements con- 
 trary to the provisions of the Accident Insurance Act (July 6, 1884), Such 
 agreements are declared against, by positive law, because they are contrary 
 to morals, or statute, or both. Informal agreements, such as agreements 
 for the conveyance of land, for charging lands with hypothecary liens, the 
 formation of share companies, registered associations, and informal bills 
 of exchange, are denied recognition in the law, in that they do not comply 
 with the statutory requirements of form. Acts in the law contrary to good 
 morals, are void (B.G.B., see. 138); also such as are contrary to statutory 
 prohibition (B.G.B., sec. 134), and such as are deficient in the requirements 
 of statutory form (B.C. B., sec. 125). The German Civil Code, with reference 
 to obligations arising out of agreement, is based on the principle of free 
 capacity of persons to regulate their relations so far as this Opacity is not 
 interfered with by particular statutory prohibition, as for example, in B.G. B., 
 sees. 134-138, 312. With reference to the origination and scope of agree- 
 ments, see B.G.B., sees. 305-319; bilateral agreements, B.G.B., sees. 
 320-327; agreements for the benefit of third persons, B.G.B., sees. 328-335. 
 
 [The term, agreement, is here used in a generic sense, as including all 
 bilateral acts in the law.] 
 
SYSTEMATIC CLASSIFICATION 163 
 
 II. The law of obligations as already observed is the 
 product of a high stage of civilization. In earlier periods 
 of legal evolution, agreements were obligatory and 
 actionable, only upon the observance of very precise 
 forms. Ethical necessity early made itself felt when the 
 saying "a man of his word" was adopted as a badge of 
 honor. Alongside of agreements valid for the sake of 
 their form, agreements sprung up in an early period of 
 histor}'- which on one hand touched what is indispen- 
 sable to every man, trust and confidence (fides) ; and on 
 the other, agreements which afforded a greater degree of 
 protection for realizing the will of the contracting parties 
 than the strict frame of formal agreements. Out of this 
 evolved the following distinction: — 
 
 (A) Formal agreements, or such agreements as possess 
 obligatory force and actionability only by virtue of their 
 precise form and only so far as the form extends. 
 
 The following are examples of formal agreements : — 
 
 The ancient Roman nexum, a ceremonial weighing of 
 coins, per ms et libram, which was a formal act accom- 
 panied by declaratory words; the stipulatio, and dotis 
 dictio — ancient Roman verbal contracts entered into 
 with the use of ceremonial words of obligation ; 
 
 Acceptilatio and expensilatio — ancient Roman literal 
 contracts concluded by a formal entry in writing of a 
 claim (nomen transcripticium) , in the domestic registers 
 of the creditor and the debtor. 
 
 While these formal contracts lie within the domain 
 of legal antiquity, yet the law recognizes : — 
 
 (a) Abstract agreements which are valid without any 
 actual basis of liability, that is, regardless of the absence 
 of any material causa^ [ground of liability recognized by 
 law]; provided a definite form is pursued. These agree- 
 ments, accordingly, are called formal agreements and 
 
 • [See Salmond, Jurisprudence, 2d ed., p. 320] 
 
164 SCIENCE OF LAW 
 
 are recognized in abstract promises of performance 
 {SchuldversprechenY and abstract acknowledgments of 
 obligation {Schuldanerkenntnis) ;^ 
 
 (b) Literal contracts of the modern law which are of 
 great practical importance in the law of securities 
 (Wertpapiere) , and pre-eminently in the law of bills of 
 exchange (Wechselrecht) f 
 
 (B) Substantive agreements {Materialvertrage), that 
 is agreements which derive their import not from the 
 form of declared intention; but from the content of a 
 declared concurrence of wills (the special causa of the 
 agreement) of the parties.^ 
 
 In entering into these so-called substantive contracts, 
 there may legally be necessary the observance of a cer- 
 tain formality for the avoidance of invalidity. Thus, 
 in the ancient German law, "he, who would be bound to 
 another, formally declares his binding intention, not 
 simply by words, but by delivering a symbol, a festuca, 
 a wadium, an arrha, or a record by which his intention is 
 indicated, or by paying a small sum of money (arrha, 
 deiiarius dei, denarius sancti spiritus, a God's penny, a 
 token of the Holy Ghost, or an earnest penny), or by 
 fortifying his promise by a handshake, or by employing 
 certain ceremonial words, as an oath or other traditional 
 forms. The agreement of the parties may also require, 
 for binding form, the calling of witnesses to their agree- 
 ment, and after the conclusion of the agreement, a 
 social meal or drink (Litkauf, Leikauf, mercipotus, Wein- 
 kauf)" — Stobbe, Hdbch. des deutschen Privatrechts , Bd. 
 Ill, pp.' 62, 63.^ 
 
 • B.G.B., .wcs. 780, 782; Cosack, B.R., sec. 162. 
 
 2 B.G.B., sees. 781, 782; F. Endemann, Lehrb. d. b. R.. sec. 194. 
 
 ■' Cf. Thol, H.R. Bd. II; W.R. (4th ed.), sec. 17, note 1, sec. 96 (p 345), 
 sec. 97 (p. 351) ; Windscheid. Pand., sec. 364. 
 
 *'0 v&iM>s \4yei iiffo Sx Irepos er^piji o/j.oKoyfia'T) Kipiahvai — Lipsius (Leipzig 
 Rectoral Address (1893), pp. 11, 27). 
 
 * Earnest money and stipulated penalties, B.G.B., sec. 336. 
 
SYSTEMATIC CLASSIFICATION 165 
 
 Modem German law also requires, although only 
 exceptionally (see note 2, p. 162), certain formalities in 
 the conclusion of substantive agreements which in the 
 absence of these forms are invalid; thus in agreements 
 relating to immovables (sales of such, or the creation of 
 Hypotheks) ; and in the establishment of certain partner- 
 ships. 
 
 In other cases, — and this is now the general rule, — ^the 
 conclusion of substantive agreements does not require 
 the observance of any particular form. They are held 
 valid when they may be inherently so regarded, to the 
 extent that the parties intend, according to their declara- 
 tion of intention; whether verbal or in writing; and 
 whether express or by indicative acts. In certain cases 
 a declaration of intention may be manifested also by 
 (negative) acts of silence.' 
 
 The Roman law, and also the German law, developed 
 only by progressive steps to the point of recognizing 
 informal agreements {pacta, pacta nudd) as productive 
 of actionable obligations. In certain varieties of agree- 
 ments, this operation was allowed on the ground of 
 performance by one party of his part or res. Thus, for 
 the purpose of securing the return (restitution) of a 
 thing, or an equal quantity of a thing of the same kind 
 given over to another, there arose an actionable obliga- 
 tion. These agreements were called real contracts and 
 were of the following varieties : mutuum, depositum, com- 
 modatum, and pignus. Later, other forms of real con- 
 tracts, called innominate contracts became actionable; 
 thus, do ut des, etc. 
 
 By force of the necessities of commerce, the ancient 
 Roman law recognized, in four very important cases, a 
 binding and actionable obligation in purely informal 
 
 »Cf. H.G.B.. sec. 362 (1). 
 
166 SCIENCE OF LAW 
 
 declarations of intention {nudus consensus) ; thus, emptio- 
 venditio, locatio-conductio , mandatuni and societas. 
 
 The principle of these consensual contracts pressed 
 continually forward. The Roman imperial law recog- 
 nized a large number of actionable pacta {pacta vestita) . 
 In modem law, all such agreements are valid if inherently 
 valid, even though informally concluded; unless, as in 
 exceptional cases, the statute otherwise provides. 
 
 III. Survey of common agreements. 
 
 1. Sale^ {emptio-venditio) is a consensual agreement 
 whereby one party the seller {venditor) is obligated to 
 deliver a thing {merx) to another, the buyer {emptor), 
 upon payment of a price {pretium). 
 
 2. Alongside the agreement of sale { Kaufvertrag) , 
 which was preceded historically by exchange^ {Tausch) 
 or barter, are the related commercial activities dealing 
 with securities and transactions affected by the element 
 of time {Fixgeschdfte) : [purchase and sale of commodi- 
 ties and securities on a stock exchange consummated 
 by payment of the difference in market price within a 
 fixed period, and not by delivery of the commodity or 
 security {Differenzgeschaft) f reservation of a right, upon 
 payment of a premium, to withdraw from a contract 
 relating to securities, or to alter its terms in a definite 
 
 * Consonant with the development above noted in which originally the 
 giving of credit was unknown, sale, primitively, was a cash transaction. Where 
 the transaction was not one for cash the purchaser at the time of the sale 
 either gave a pledge (wadium), or a bond acknowledging indebtedness, in 
 which the purchaser obligated himself to pay the seller a sum of money, 
 equal to the purchase price as a loan. The former was the eariy German 
 method, and the latter the ancient Babylonian institution. See Sohm, 
 Inst., sec. 69 (1); Salkowski, Inst., sees. 141, 142; B.G.B., sees. 433-514; 
 Cosack, B.R., .sec. 121. Regarding commercial sale, see Gareis, in Ende- 
 mann's Handbch. d. H.R., Bd. II, sec. 258; H.G.B., sees. 373-382; Gareis, 
 H.R., sees. 45^9. 
 
 2 Odyss, I, 183; B.G.B., sec. 515; Cosack, B.R., sec. 133; Gareis, H.R.. 
 p. 30. 
 
 3 B.G.B., sec. 764; Bourse statute, sees. 66-69; Gareis, H.R., sec. 48, II; 
 Cosack, H.R., sees. 77, 78. 
 
SYSTEMATIC CLASSIFICATION 167 
 
 manner (Prdmiengeschaff) ;' agreements deferring settle- 
 ment the consideration for which is called on the Eng- 
 lish stock exchange, contango, (Reportgeschaft) ;^ agree- 
 ments to transfer the proceeds of a particular drawing 
 in a premium lottery (Promessengeschafte) ,^ also called 
 Hoffnungskauf]: the business of stock exchanges and 
 bourses' {Borsengeschdfte) . 
 
 3. Letting and hire agreements' (Sachmiete, locatio- 
 conductio ret) are agreements for cession of the use of 
 things upon payment; as, for example, the lease of a 
 house, of a wagon, of books. A lease of the use of a 
 thing with enjoyment of the fruits, is called a usufruct- 
 uary lease" (Pacht). 
 
 In many systems of law, as for instance, in Austria, a 
 usufructuary lease may under certain conditions pro- 
 duce a real effect. The rule "sale breaks the lease" 
 (" Kauf bricht Miete") which prevailed under the Ger- 
 man common law, was supplanted by the civil code as it 
 already had been before by the Prussian Landrecht. 
 It is now the general rule, that when leased land is con- 
 veyed by the lessor to a third person, the grantee stands 
 in the position of the lessor as to rights and duties flow- 
 ing out of the ownership of the lessor (B.G.B. sec. 571). 
 
 4. Mandate' {mmidatum, Auftrag) . One who accepts 
 from another (mandans) a mandate is bound to execute 
 his commission in conformity with the mandate, and 
 with due care. A corresponding performance, as re- 
 muneration or payment, is not essential in mandate, 
 and for this reason, it is distinguished from remunerated 
 and unremunerated agreements for service. 
 
 * Cosack, H.R., sec. 79; Gareis, H.R., sec. 48, IV. 
 ''Cosack, H.R., sec. 80; Gareis, H.R., p. 378, sec. 48, III. 
 = Gareis. H.R., pp. 383. 384. 
 
 'Bourse statute (June 22, 1896); Cosack, H.R., sec. 345; Gareis, H.R., 
 sec. 49. 
 
 « B.G.B., sees. 535-580; Cosack, B.R.. sec. 134. 
 ' B.G.B., sees. 581-597; Cosack, B.R., sec. 136. 
 ' B.G.B., sees. 662-675; Cosack, B.R., p. 529. 
 
168 SCIENCE OF LAW 
 
 5. Partnership agreements^ {Gesellschaftsvertrag, 
 Societas) wherein two or more persons mutually obligate 
 themselves to performances; whether based on capital, 
 labor, or both; with a view of accomplishing a common 
 purpose. 
 
 Partnerships (Gesellschaften) may be variously classi- 
 fied according to their objects, and according to the 
 method of their origination. Classified according to 
 their objects, they may be mercantile partnerships 
 {Erwerbsgesellschaften, societates qucBstuarim) and also 
 such as have no industrial ends, such as religious, scien- 
 tific, and art associations. To the first class belong all 
 commercial partnerships (Handelsgesellschaften) which 
 according to the method of participation in the business 
 of the partners, or according to their liability may be: — 
 
 (a) Partnerships of unlimited liability^ (offene Handels- 
 gesellschaften) ; 
 
 (6) Commandite partnerships,^ and commandite part- 
 nerships with shares;* 
 
 (c) Share companies' (Aktiengesellschaften) . 
 
 Other partnerships now legally recognized are dor- 
 mant partnerships;^ joint adventure partnerships' 
 (Gelegenheitsgesellschaften)^ also called speculative asso- 
 ciations; guilds; registered societies {eingetragene Gen- 
 ossenschaften) f limited liability partnerships;" colonial 
 partnerships;" and mutual insurance societies. ^^ Under 
 
 ' B.G.B., sees. 54, 705-710; Gareis, H.R., sec. 61. 
 
 2 H.G.B., sees. 106-160; Cosack, H.R., see. 105; Gareis, H.R., sees. 
 25-28. 
 
 3 H.G.B., sees. 161-177; Gareis, H.R., see. 30; Cosack, H.R., sec. 111. 
 
 * H.G.B., sees. 320-334; Cosack, H.R., sec. 123; Gareis, H.R., sec. 37. 
 
 ^ H.C.B., sees. 178-319; Gareis, H.i?., sees. 31-36; Cosack, H.i?., sec. 114. 
 " H.G.B., sees. 335-342; Gareis, H.R., see. 29. 
 ' Gareis, H.R., p. 114. 
 
 * Trade statute, sees. 81-100; Gareis, Lehrb. H.R., p. 319. 
 
 » Statute May 1, 1889; Gaieis, H.R., p. 114, sec. 38; Cosack H.R., sec. 224. 
 >° Statute April 20, 1892; Gareis, H.R., sec. 39; Cosack, H.R, sees. 122. 
 " Statute March 15, 1888 and July 2, 1899; Kolonialneitung (1899), No. 
 26, p. 225; Gareis, H.R., 319, 320. 
 '2 Gareis, H.R., sec. 39a. 
 
SYSTEMATIC CLASSIFICATION 169 
 
 certain conditions, there may be societies which exter- 
 nally, that is in relation to persons in society, may have 
 the character of juristic persons. Of the religious asso- 
 ciations, the most important are the churches, which are 
 dealt with by church law.' 
 
 6. Loan of fungibles^ {mutuum, Darlehen) in which 
 the borrower is obliged to return to the lender, at a 
 stipulated time, the same quantity of fungible things of 
 equal quality (tantundum ejusdem generis), as he received; 
 with interest if provided by accessory agreement; and 
 also with compensation for delay by virtue of the 
 statute. 
 
 Loans of fungible things are the juristic basis of the 
 savings-bank business,^ of banks of deposit and loan,* 
 the Lombard business,^ the Hypothek business, ° and of 
 bottomry.' 
 
 7. Agreements for deposit' {Verwahrung, depositum) 
 in which the depositary {depositarius) to whom a thing is 
 delivered for deposit for reward,' or without reward, 
 is bound for the return of the thing deposited, in good 
 order to the depositor. 
 
 Agreements for deposit are the juristic basis of the 
 commercial warehouse, safety deposit and public ware- 
 house business.'" 
 
 8. Agreements for gratuitous loan" (commodatum, 
 Leihe) bind the person to whom the loan is gratuitously 
 
 ' See supra, sec. 15, Nos. 1, 5, 6 (juristic persons), and infra, sec. 57 (church 
 law); B.G.B., sec. 89: Einf.G., Art. 84-87. 
 
 '' B.G.B., sees. 607-610 cf. Gareis, H.R., sec. 63. 
 
 ^Gareis H.R., p. 512. 
 
 * Gareis, H.R.. sec. 63, VII. 
 
 "Gareis, H.R., sec. 63, V; Cosack, H.R., sec. 64. 
 
 <> See supra, sec. 21, No. 2; cf. Gareis, H.R., pp. 33. 512. 
 
 ' H.G.B., sees. 679-699; Gareis, H.R., sec. 114; Cosack H.R., sec. 72. 
 
 » B.G.B., sees. 688-700- Cosack, B.R.. sec. 154. 
 
 " B.G.B., sec. 689; Gareis, H.R., sec. 42, VIII, sec. 60, sec. 63, VI. 
 '" Statute relating to deposit of securities of July 5, 1896; Cosack. Lehrb. 
 d. H.R., sec. 100; Gareis, Lehrb. d. H.R., sec. 60. 
 
 " B.G.B.. sees. 598-606 
 
170 SCIENCE OF LAW 
 
 made (commodatar) to return the thing loaned after its 
 use has been completed. 
 
 9. Pledges of movables' {pignus, Faustpfandvertrag) 
 bind the pledgee to return the thing pledged on satis- 
 faction of the debt, or upon other termination of the 
 right of pledge. 
 
 10. Gifts.^ 
 
 11. Wagering agreements;' agreements relating to 
 lotteries,* and marine insurance;^ and other aleatory 
 agreements." 
 
 12. Gaming agreements.' 
 
 There is a large group of agreements which lies be- 
 tween agreements for services {Dienstvertrag) * and agree- 
 ments for work looking to a definite result (Werkvertrag) ." 
 This group (called Arbeitsvertr&ge) has developed into 
 the following commercial agreements:'" — 
 
 13. Commission agreements;*' 
 
 14. Forwarding agreements;'^ 
 
 15. Carriage'^ and inland navigation'* agreements; 
 
 16. Transportation and railroad agreements;'^ 
 
 ' B.G.B., sees. 1215-1219, 1223, 1232. 
 
 ^ B.G.B., sees. 516-534. Judicial or notarial authentication is necessary 
 except in ease of immediate performance, B.G.B., sec. 518. 
 
 ^ B.G.B., sec. 762. Agreements of wager on futures or ix difference in 
 market values are protested (see note 3, p. 166) except in the case of persons 
 registered in the bourse register. See Bourse statute of June 22, 1866, 
 sees. 66-69; Gareis, H.G.B., p. 458, note 6, Art. 14, and Binf.G. s. H.G.B.; 
 Gareis, H.R., pp. 391-393; and Cosack, H.R., sec. 78. 
 * B.G.B., sec. 763; Cosack, B.R.. p. 561. 
 '> Gareis, H.R. sec. 65. 
 
 " Gareis, H.R., pp. 518, 519; Cosack, B.R., sec. 562. 
 ' B.G.B., sec. 762. 
 
 ^ B. G. B., sees. 611-630. Including also remunerative agreements of man- 
 date and deposit; cf. B.G.B., sec. 675. 
 
 9 B.G.B., sees. 631-651; Cosack, B.R.. sec. 143. 
 "Gareis, H.R., p. 394. 
 
 " H.G.B., sees. 383-406; Gareis, H.R., sec. 51; Cosack, H.R., sec. 43. 
 « H.G.B., sees. 407-415; Cosack, H.R., sees. 95, 96; Gareis, Lehrb. H.R., 
 sec. 52. 
 " H.G.B., sees. 425-452; Gareis, H.R., sec. 56. 
 
 ** Inland navigation statute June 15, 1895; Gareis, H.R., sec. 58; Cosack, 
 H.R., sees. 37, 94. 
 '» H.G.B.. sees. 453-473; Gareis, H.R.. sec. 57. 
 
SYSTEMATIC CLASSIFICATION 171 
 
 17. Brokerage* and agency;^ 
 
 18. Bailments f 
 
 19. Passenger carriage agreements;* 
 
 20. Ocean carriage agreements;* 
 
 21. Shipmasters' agreements; and 
 
 22. Ocean hire agreements*; 
 
 2.3. Mercantile power of agency (procuration)' and 
 
 24. Mercantile employment by local custom.* 
 Under remunerative agreements for service may be 
 
 placed: — 
 
 25. Agreements for domestic service' which are 
 usually based on particular statutory provisions, and 
 which exhibit a special class of legal relations bearing 
 a close connection historically to family law; 
 
 26. Publishers' agreements'" for the multiplication 
 and circulation of works of literature and art in which 
 an author's right may be involved. 
 
 Two mutually contiguous groups of agreements are 
 found in agreements for insurance (or assurance), and 
 capitalization agreements : — 
 
 27. Insurance involves'' the assumption upon pay- 
 ment, of risk of certain hazards to which objects of prop- 
 erty are liable; thus fire, hail, etc. The earliest and 
 
 ^ B.G.B., sees. 652-656; H.G.B., sees. 93-104; Gareis, H.R., sec. 53; 
 Cosaek, B.R., sec. 152, and H.R., sees. 45, 74. 76. 
 
 2 H.G.B.. sees. 84-92; Gareis, H.R.. sec. 54. 
 
 ' H.G.B., sees. 416-424; Gareis. H.R., sec, 55. 
 
 * On railways, see H.G.B., sec. 472; Gareis, Lehrb. d. H.R., sec. 67c. 
 On ocean passenger conveyance, see H.G.B., sees. 664-678; Gareis, H.R.^ 
 sec. 113. 
 
 5 H.G.B., sees. 556-663; Gareis, H.R., sec. 112. 
 
 8 H.G.B., sees. 511-555; Marine statute, Dec. 27. 1872; Gareis, H.R., 
 sec. Ill; Cosaek, H.R.j sec. 36. 
 
 ' H.G.B., sees. 48-53 {Prokura); sees. 54-58; Gareis, H.R., sec. 22. 
 
 » H.G.B., sees. 59-83; Gareis, H.R., sec. 21. 
 
 ' Concerning the law of domestic service, see Einf.G. z. B.G.B., Art. 95. 
 •" Cosaek. H.R., sec. 83; Gareis, H.R., see. 59. 
 
 ^^ Concerning the law of insurance, see Einf.G. z. B.G.B.^ Art. 75, also R.G.^ 
 llLa.y 12, 1901 ; on the business of insurance see H.G. B., sec. 1, No. 3; Gareis, 
 H.R., sec. 62. 
 
172 SCIENCE OF LAW 
 
 most complete development of this law is seen in marine 
 insurance.' 
 
 Capitalization agreements include : — 
 
 28. Life insurance f and 
 
 29. Annuity insurance;' 
 
 30. Agreements based on credit ; thus suretyship/ ac- 
 creditation,' and running accounts with or without credit ;" 
 
 31. Securities {W ertpapiere) which are executed in 
 writing, and by giving and taking of the security papers 
 in a so-called pure agreement, or formal contract of 
 modem law. In its internal essence the written obliga- 
 tion (Skripturobligation) is a promise of payment which 
 the maker of the paper undertakes in a certain manner 
 importing obligation; and which the holder accepts in a 
 corresponding manner. Securities' are classified accord- 
 ing to the different methods by which the creditor is 
 designated, and the obligation is created as: — 
 
 (a) [Obligations running to a particular person and 
 requiring a special indorsement ( Kektapapiere) ; (b) mer- 
 cantile orders to pay or deliver to the order of another* 
 (Orderpapiere) f (c) bills of exchange and promissory 
 notes'" (Blankopapiere); and (d) instruments payable 
 to bearer (J nhaber papier e) ]. 
 
 The most important mercantile orders are bills of 
 exchange which in Germany are comprehensively gov- 
 erned by the general bills of exchange statute. 
 
 > H.G.B.. sees. 778-900; Gareis, Lehrb. d. H.R., sec 118. 
 
 2 B.G.B., sec. 330 (insurance in favor of third persons). Life insurance in 
 general see Gareis, H.R., sec. 64. 
 
 3 Gaieis, H.R., p. 729; B.G.B., sees. 7S9-761 (annuities); cf. also B.C.B., 
 sees. 330, 1073, and Einf.G. z. B.G.B., Art. 96. 
 
 * B.G.B., sees. 765-778; Endemann, Lehrb. d. bureerl. R., sec. 190. 
 
 " Gareis, H.R., sec. 67. 
 
 H.G.B., sees. 355-357; Gareis, H.R., sec. 66; (indorsement (Girover- 
 kehr) and accounts current ( Koniokorrentvertrag)) , Cosack, H.R., sec. 69. 
 
 ' Securities in general, see Gareis, H. R., see. 69. 
 
 8 H.G.B., sees. 363-365; Gareis, H.R., see. 73. 
 
 ' Bills of Exchange Act, Art. 12, 13, 36; Gareis, H.R., sec. 70, III, 2; 
 id., sec. 89, 3, pp. 601-603. 
 "> B.G.B., sees. 793-808; H.G.B.. sec. 367: Gareis, H.R., sec. 722. 
 
SYSTEMATIC CLASSIFICATION 173 
 
 SECTION 24 
 
 (6) OBLIGATIONS ARISING OUT OF UNLAWFUL 
 ACTS' 
 
 The law determines what violations of rights give rise 
 to delictual obligations. According tp positive law all 
 intentional and negligent infringements of the private 
 rights of others, produce duties which are directed first 
 of all toward compensation; but which frequently, at 
 least in the Roman law, turn on a wider accountability 
 of punishment. 
 
 If injuries which pertain to the state considered as 
 respublica and not as fiscus, are set aside; then we find 
 that the objects of legal infringement in the sphere of 
 private persons, are either (o) material, or (6) immaterial 
 legal advantages. 
 
 The former include injuries to rights of ownership and 
 possession which are called in the Roman law furttim, 
 rapina, and also damnum injuria (corpore corpori) datum, 
 with actio ex lege Aquilia.' 
 
 Infringements of immaterial things include: — 
 
 1. Illegal killing, injuries to the person, or depriva- 
 tion of liberty;^ 
 
 2. Injury to reputation (slander);* 
 
 ' B.G.B., sec. 823, et seq.; cf. Salkowski, Inst., sees. 150-154; Endemann, 
 op. cit., sec. 200. 
 
 2 Violations of the right of ownership lead to compensation (B.G B., sec. 
 .S23, also Ciiminal Code, sec. 303) ; also willful injuries contra bonos mores 
 (B.G.B., sec. 826); and accidental damage to things illegally taken (B.G.B., 
 sec. 848). 
 
 3 Criminal Code, sees. 211-241; B.G.B., sec. 842; damages for loss of 
 earning power, and for subsistence, B.G.B., sec. 843; annuity damage in 
 killing, for loss of support, and damages for funeral expenses, B.G.B., sec. 
 844 ; damages for loss of services, B. G. B., sec. 845. 
 
 ■• Criminal Code, sees. 185-200: B.G.B., sees. 824, 826. 
 
174 SCIENCE OF LAW 
 
 3. Violations of rights of authors; thus infringements 
 of literary, art or technical works;' 
 
 4. Many systems of law make particular provision 
 for certain sexual offenses such as bastardy, and illegal 
 cohabitation, which are recognized as sources of delic- 
 tual obligations, and upon which damages are based 
 for outlays, etc., as well as for support.^ 
 
 Positive systems of law answer in various ways, the 
 question, whether and to what extent one is answerable 
 for injuries to third persons committed by another; thus 
 his child, his pupil, companion, or servant;^ and also as 
 to the extent of liability for injuries done by animals.^ 
 Many systems of law make provision under certain con- 
 ditions for damages arising out of injuries done by wild 
 animals.' 
 
 ' See supra, sec. 18, IV, V. 
 
 2 B.G.B.. sees. 1708-1718, also sees. 1300, and 825. 
 
 'Cf. Code Civil, Art. 1384, 1797; Prussian L.R., I, 11, sec. 930; the 
 Damage Act of June 7, 1871, sees. 1, 2; (see Einf.G. z B.G.B., Art. 42); 
 liability for injuries by employees, B.G.B., sees. 831, 840 (2); liability for 
 failure to exercise a supervision over others, as minors, etc. B.G.B,, sees. 832 
 and 840 (2). 
 
 * Liability of owners of animals B.G.B., sec. 833; of keepers of animals. 
 B.G.B., sec. 834. 
 
 = B.G.B., sec. 835 and (^Einf.G. z. B.G.B., Art. 71, 72.) 
 
SYSTEMATIC CLASSIFICATION 175 
 
 ADDENDUM TO TWO PRECEDING SECTIONS 
 
 While agreements (sec. 23) and delicts (sec. 24) are 
 the chief sources of obligations, yet they are not the 
 exclusive sources. There are obligations which are 
 similar in origin to agreements; there are some which 
 are similar in origin to delicts; and some which are 
 based purely on statutory provisions.' The first class 
 {obligationes quasi ex contractu) includes tiegotioriim 
 gestio, or voluntary agency which is the counteipart of 
 mandate;^ communio incidens, or comniunit}' of owner- 
 ship not arising out of agreement,^ which is the counter- 
 part of partnership; and the obligations of guardians. 
 
 Obligationes qtiasi delicto include the liability of inn- 
 keepers for property stolen, belonging to guests ;* and the 
 duty of making compensation arising from keeping 
 dangerous animals.^ The duty to provide support for 
 one's kindred is purely statutory.' Legal obligations, or 
 obligationes ex lege include, in addition to the duties 
 mentioned, the duty of making compensation in ex- 
 propriation,' the duty of producing papers and other 
 things for inspection,^ and other similar statutory duties.' 
 
 ' Salkowski, op. cit., sees. 155-157. 
 
 ^ Management of business without mandate, B.G.B.^ sees. 677-687. 
 
 2 B.G.B., sees. 741-758. 
 
 * B.G.B., sees. 701-704. 
 
 ^ See note 4, p. 174. 
 
 ^ Duty to furnish maintenance, B.G.B., sees. 1601-1615. 
 
 ^ As, also, in other surrenders of property required by statute; see Gareis, 
 Grundriss z. D. b. R., sec. 115, p. 124. 
 
 ' Duty of production of things, B.G.B., sees. 809-811. 
 
 ' For example, the statute regulating the liability of railroads for injuries 
 (June 7, 1871), sec. 1, and liability according to H.G.B., see. 453. 
 
176 SCIENCE OF LAW 
 
 CHAPTER IV 
 PURE FAMILY LAW 
 
 SECTION 25 
 
 PURE FAMILY LAW— GENERAL PART 
 
 All family law commences with the regulation of the 
 physical and ethical relations between man and woman. 
 The regulation of all those relations which naturally 
 spring from the physical and ethical tie and embrace 
 the objects of the family, is based on these natural rela- 
 tions. 
 
 There are to be distinguished: (a) pure family law, 
 or the regulation of the personal relations of the mem- 
 bers of the family among themselves without regard to 
 property; and (6) the law of family property, or the sum 
 of legal principles evoked by the natural influence of 
 personal relations on property. The law of family prop- 
 erty legally establishes and guarantees, by means of 
 command and prohibition, this influence and operation 
 on the legal relations of the family in the domain of 
 things,' obligations and immaterial property. 
 
 All pure family law has in common that the duties 
 comprised therein are preceded by or are in imitation 
 of natural relations. They have more of an ethical than 
 a juristic aspect. The content of these duties is not 
 worked out by particular performances. The control 
 
 ^ ["Things in tiie legal sense are material objects." — B.G.B.. sec. 90.] 
 
SYSTEMATIC CLASSIFICATION 177 
 
 over the person which in different degrees is the object 
 of this law, never extends to the total dependence of the 
 person controlled under the will of the person entitled. 
 The person bound is always regarded as a person, that 
 is a legal subject. The tendency of legal standards 
 regulating pure family relations is directed to the end 
 that the interest of the person bound, as well as the 
 interest of the person entitled, shall be protected. Con- 
 sequently all legal relations of the family are necessarily 
 two-sided, both as to duty and interest. 
 
 Legal order cannot guarantee but can only further the 
 objects of the family relation by protecting it against 
 offending violations. Morals, far more than law, has 
 to do with the security of family life and its objects. 
 Churchly legislation or the establishment of standards 
 on the part of religious societies which concern themselves 
 with the regulation of family life by means of commands 
 and prohibitions for the community life of kindred, has 
 a connection with morals. The state, however, has its 
 own peculiar interest in this regulation of the family; 
 and therefore it lends the aid of its sovereign power to 
 such commands and prohibitions, or itself establishes 
 such rules under its own force. To this extent, these 
 regulations are matters of public law and withdrawn 
 from the province of private arrangement. Yet family 
 interests are not simply of a public nature; but there 
 reside in the participating members, interests of a private 
 character. 
 
 The relations of pure family law are,' — 
 
 1. The relation between husband and wife (mar- 
 riage) ; 
 
 * For a comparison of French and Anglo-American family law, see the 
 address of Georges Barbey before the American Bar Association. — XXIV, 
 A B. A. Rep. (1909). p. 431.] 
 
178 SCIENCE OF LAW 
 
 2. The relation between parents and children (de- 
 scendants) ; 
 
 3. The relation among other relatives by blood and 
 marriage ; 
 
 4 Artificial family relations. 
 
 These relations are considered in the ensuing sections 
 without regard to family property. 
 
SYSTEMATIC CLASSIFICATION 179 
 
 SECTION 26 
 
 (1) MARRIAGE 
 
 The natural relation between husband and wife 
 appears to have had its legal genesis in the entire sub- 
 jection of the weaker to the stronger person, as a mere 
 chattel. This was true whether this subjection was 
 attained by force, purchase, or some other barbaric 
 method.' As long as this social condition prevailed, 
 which was of long standing in the Orient, and so long 
 as the husband recognized the wife simply as a slave, 
 it was needless, it goes without saying, to speak of a 
 law of marriage. The law of marriage first began when 
 the family interest of the wife was legally recognized; 
 and when this interest became legally protected as to 
 the commencement and termination of her relation to 
 the husband, against his arbitrary will. Such protec- 
 tion is even conceivable^ where the wife cannot claim 
 
 * Concerning capture marriage and purchase marriage, see A. Heusler, 
 Insiitutionen des deutschen Prruatrechts, sec. 131 (Bd. I), p. 277. Concerning 
 Mutterrecht and capture marriage, and their remnants in Germanic law and 
 life, see Dargun (Gierke's Vntersuchungemur deutschen St.- u. R.- Gesckichte, 
 Bd. XVI.) 
 
 Concerning clan relationship, and particularly totemism, and exogamy, 
 the historical precedent of monagamous marriage, see J. Kohler, in K. u. 
 V. Holtz. Em., I, p. 27 and literature entered on page 30 (note). 
 
 Among the Gaberi, a heathen, Nigritic race on the Shari river, who were 
 visited by Dr. Nachtigall who also called on the Baghirmi King, "there 
 prevails a system of plural wives; and it is simply a question of property. 
 A wife may be had for a horse, a half dozen fat hounds, or by similar ex- 
 change. If the wife bears no children, she becomes a slave, and labors or 
 is sold. If she bears iive children, then she may return to her own parents, 
 when she desires, as the purchase price in such case has been amply recovered." 
 — Nachtigall, "Rundschau," III, 1877, Heft 6, p. 370. Purchase marriage 
 in the Code of Hammurabi, sees. 128, 139. 
 
 ^ The legal relations between ascendants and descendants proceed in 
 parallel lines with this development (see sec. 27) ; and accordingly, also, 
 the evolution of the family or patriarchal state is historically coincident 
 (see sees. 7, 8). 
 
180 SCIENCE OF LAW 
 
 of the husband the entire conjugal community; thus, in 
 concubinage,^ and also where the husband is not pre- 
 vented from sustaining a sexual relation to a plurality 
 of wives at the same time (polygamia simvManea)? 
 
 It is, however, of the essence of real marriage — that 
 is to say, marriage in the sense of modem European 
 civilization — that the wife, as differing from the situa- 
 tion of the concubine — even the concubine of Roman 
 law — sustains an honored position as the life companion 
 of the husband. True marriage is an exclusive relation 
 
 * Concubinage in the Roman law became, from the time of Atigustus, a 
 species of incomplete marriage. The concubine did not attain, by such 
 union, the rank and social position of the husband. Her children were not 
 considered legitimate, and did not come under the patria potestas of the father. 
 Concubinage like marriage was a monogamous institution: eo tempore, quo 
 quis uxorem kabet, concubinam habere non potest. Concuhina igitu ab uxore 
 solo dilectu separatur. — Pauli sent recept., II, 20; Sohm, Inst., pp. 274, 275. 
 
 The position of the Roman concubine whose children were called liberi 
 naturales was by no means always one of degradation: si modo ea sit, q-um in 
 concubinatum se dando matronce nomen non amisit ut puta quce pai^roni con- 
 cubina fuit. Dig. I, 14, 48, 5, pr. 
 
 ^ According to the Code of Hammurabi, marriage was already a real 
 marriage, that is, monogamous. Only in exceptional cases, was a husband 
 permitted to take a second wife, as when the first was chronically ill (Code, 
 sees. 141, 148). The taking of concubines was however always allowed; 
 and commerce of the husband with his slaves was permitted (Code, sees. 
 137, 144-147). 
 
 Among the Tu people (Tibesti, in Sahara) visited by Dr. Nachtigall, 
 polygamy prevails; "yet no man is permitted to have more than one wife 
 at the same place, although he may have a plurality of wives in different 
 places. Therefore the Tu tradesmen have wives stationed at the various 
 places on their routes." — Nachtigall, Sahara und Sudan (Teil I, 1879), pp. 
 447, 685. 
 
 Cf. Cap. Reg. Fr. Pippini Regis Cap. Decretum quod factum fuit ad Ver- 
 meriam palaiium tem-poribus domini Pippini regis . VII. (De servo 
 qui ancillam suam concubinam habuerit, et ilia relicta, domini ancillajn vult 
 ducere.) Si servus suam ancillam. concubinam habuerit, si ita placet, potest, 
 ilia dimissa, cotnparetn suam ancillam domini sui accipere; sed melius est 
 suam ancillam tenere IX. (De muliere quce virum suum in alio page 
 
 sequi non vult.) Si quis necessitate inevitabili cogente in alium ducatum seu 
 provinciatn fugerit, aut seniorem suum, cut Udern. -mentiri non poterit, secutus 
 fuertt; et uxor eius cum. valet et potest, amore parentum aut rerum suarum^, eum 
 sequi noluerit, ipsa om.ni tempore, quamdiu vir eius, quern, secuta non fuii, 
 vtvit, semper innupta permaneat. Nam ille vir eius qui necessitate cogente 
 tn alium locum fugit, si nunquam in suam patriam se reversurum sperat, si 
 se abstinere non potest, aliam uxorem cum poenitentia potest accipere. — Mon. 
 Ger, Hist. L.L., sect. II (ed. Alf. Boretius) tomi I pars prior, Hannover<s„ 
 1883 pp. 40, 41. 
 
SYSTEMATIC CLASSIFICATION 181 
 
 with mutual obligation of sexual fidelity (the principle 
 of monogamy.) Finally, this relation is one of ethical 
 character and intended for life-long duration. To the 
 creation of such a relation there has been requisite 
 among all peoples, and in all ages, where this relation 
 has been recognized, a definite form. Notwithstanding 
 a variety of kinds of marriage differing in particulars, 
 no deviation is distinguishable in the formal and funda- 
 mental character of the form of marriage: thus the 
 justcB nuptim juris civilis and matrimonium juris gen- 
 tium of the Romans. 
 
 Marriage, therefore, is a sexual relation between hus- 
 band and wife created in legal form, based on the strict 
 principle of monogamy, and contemplating life-long 
 duration, by which relation the husband recognizes the 
 wife as his equal life companion. 
 
 This relation, in the consecration of which the state 
 and society^ may have a vital interest, may be preceded 
 by preliminary legal acts, as the betrothaP {sponsalia, 
 Verlobung). It may also be preceded by a marriage 
 contract (EJievertrag), that is to say the agreement 
 governing the personal or the property relations of the 
 parties to the proposed marriage. This agreement, it is 
 evident, can alter only leges dispositivce and not the 
 essential attributes of marriage established by lex cogens. 
 
 Marriage is canonical and civil, accordingly as the 
 state recognizes regulations of the church with reference 
 to the conditions, and form of celebration of marriages, 
 or establishes its own standards. Civil marriage is 
 either facultative, obligatory, or auxiliary. The Ger- 
 man imperial law' recognizes only obligatory civil mar- 
 
 * Also religious communities; cf. B.G.B., sec. 1588, Einf.G. z B.G.B., 
 Art. 46, III. 
 
 ' B.G.B., sees. 1297-1302. 
 
 ^ B.G.B., sec. 1303. Marriage is consummated by the parties betrothed 
 appearing personally and at the same time before a registrar and declaring 
 their intention to marry each other: B.G.B., sec. 1317. 
 
182 SCIENCE OF LAW 
 
 riage. It regulates its form and authentication, the 
 requirements of its celebration, the grounds on which it 
 may be declared invalid or be annulled, "^ as -well as the 
 grounds upon -which it may be dissolved, or the conjugal 
 community {eheliche Gemeinschaft) may be furthered 
 without dissolving the marriage.^ It is evident that the 
 imperial law would not interfere with canonical duties 
 with regard to marriage. The civil code, however, 
 expressly excludes such interference.^ 
 
 The legal effects of marriage apart from matrimonial 
 regime* (eheliches Guterrecht) are (a) the creation of a 
 conjugal community,^ consequently the legal claim of 
 the wife to use the family name of the husband," the 
 claim of the wife to rank, position, title,' civil rights, 
 domestic rights and maintenance; (b) the obligation of 
 both spouses to marital fidelity;* and (c) the matri- 
 monial dominion of the husband as the head of the 
 family, in household affairs, in the selection of the 
 domicile, and in authority to consent to, or set aside, 
 certain legal acts of the wife." 
 
 1 B.G.B., sees, 1323-1347, 1350. 
 
 2 B.G.B., sees. 1564-1587. 
 " B.G.B., sec. 1588. 
 
 "* ["A eoUective description of the effect of a marriage on the property 
 owned by each of the spouses at the date of the marriage, or acquired at a 
 subsequent time. "^-Schuster.] See sec. 31, infra. 
 
 * [Conjugal community (Lebensgemeinschaft) "includes not only physical 
 cohabitation but also a joint participation in all the affairs of life (con- 
 sortium omnis vitis)-" — Schuster.] See B.G.B., sec. 1353. 
 
 » B.G.B., sec. 1355. 
 
 ^ Except in misalliance and the so-called left-hand, or morganatic marriage. 
 
 ^ The obligation of the husband to maiital fidelity is in accordance with the 
 ethical conception of the marriage relation in Christian civilization. It also 
 comports with the purpose that the law of marriage shall equally guarantee 
 and protect the vital interests of each of the spouses in the conjugal com- 
 munity. B.G.B., sec. 1565 [divorce for adultery]. 
 
 » B.G.B., sees. 1354, 1358, 1924. 
 
SYSTEMATIC CLASSIFICATION 183 
 
 SECTION 27 
 
 (2) THE RELATION BETWEEN PARENTS AND CHIL- 
 DREN 
 
 From the sexual relation (sec. 26) there springs up in 
 accordance with nature, the relation of descendants. 
 The relation between parents and children has under- 
 gone historically the same evolution as the relation 
 between man and wife. So long as the wife was only 
 the slave of the husband, so long also was the child 
 completely subject to the will of the master of the wife. 
 The ethical and legal elevation and regulation of the 
 position of the wife^ also elevated the relation between 
 the father and the child. What was primitively only 
 an interest of the father in his child considered as a 
 thing, became after a time a personal, protected interest 
 of the father worked out through long stages in the 
 progress of civilization. This interest of the father in 
 
 ^ The natural relation between mother and child is also legally standardized 
 from the moment that the mother becomes capable of legal rights. From 
 that moment, likewise, there exists one of the various phases of a thorough- 
 going Mutterrecht which had a peculiar operation in the domain of primitive 
 Germanic law of inheritance and extended into historical times. 
 
 "The dominion of Mutterrecht arose out of conditions where real marriage 
 was not yet known; at any rate, not marriage as a binding tie of relationship, 
 and therefore not as the basis of kindred association. Mutterrecht may have 
 continued even when the existence of marriage became unquestionable; 
 inasmuch as the notion of marriage as an indissoluble bond between man 
 and wife was present even where the blood relation between parent and 
 child was a fact of no consequence. In this stage of development children 
 did not belong to the clan of the father. The clan was formed only of children 
 who sprang from the same womb. The exclusive dominion of Mutter- 
 
 recht was broken among the Germans long before the migration of the peoples, 
 and certainly by the circumstance that the people betook themselves to 
 agriculture and became settled. This was true even when agricultural land 
 was subject to periodical distribution. The domestic impulse aided to 
 regenerate the blood relation between father and children." — A. Heusler, 
 Institutionen des deutschen Privatrechts, Bd. II, p. 523, in connection with 
 Dargun (sec. 26, note 1. supra). 
 
184 SCIENCE OF LAW 
 
 the being and action of the child coincides with the 
 interest of the earliest community, the family, at the 
 head of which stood the house-father. 
 
 State power was preceded by family power — ^the strict 
 form of family jurisdiction with pis vitcB ac necis of the 
 head of the family over his dependents. The type of 
 this strict family relation is the Roman patria potestas. 
 Germanic law took a different viewpoint. It is the 
 natural necessity for protection of the child, which is 
 legally regarded, and on account of which, the child is 
 placed under the protective power {nmyidium) of the 
 father. Modern German paternal power is based on 
 the interest of the child and not that of the father. 
 
 Modern law is in accord with the latter view. The 
 child requires, so long as it is young, ^ protection and 
 education. From these ethical, physical and social inter- 
 ests, corresponding rights and duties of parents with 
 reference to children, arise. The various legal provi- 
 sions regarding moral and religious training of children, 
 and in particular the duty of obedience on the part of 
 children are based on these interests. 
 
 Under the influence of Roman law, the parental 
 power of the father took on a special development.^ 
 The German imperial law provides for parental power 
 which generally is exercised by the father,' and in excep- 
 tional cases by the mother. This power involves the 
 right and duty to care for the person and the property 
 of the child. Parental power belongs to the mother, 
 when the father forfeits his right by the commission of a 
 criminal offense;* when the marriage is dissolved; or 
 
 ^ B. G. B., sec. 1626. The child while a minor remains under parental power. 
 Also according to the ancient Greek law, parental power terminated with the 
 majority of the child which began as a rule with the age of 18. See Lipsius, 
 op. cit. 
 
 2 Sohm, Inst., sec. 87. 
 
 3 B.G.B.. sec. 1627. 
 * B.G.B., sec. 1680. 
 
SYSTEMATIC CLASSIFICATION 185 
 
 when the father dies or is declared legally dead.^ Parental 
 power arises through birth in lawful wedlock;^ legitima- 
 tion whether by subsequent marriage,' or order of public 
 authority;* and through adoption.^ The father of illegiti- 
 raace children has no patria potestas over them; and 
 illegitimate children stand in the same relation to the 
 mother as legitimate children.* 
 
 ' B.G.B.. sec. 1684. 
 
 2 B.G.B., sec. 1591. 
 
 3 B.G.B., sec. 1719. 
 
 * B.G.B., sec. 1723. 
 » B.G.B., sec. 1741. 
 
 * Legal position of illegitimate children, see B.G.B.t sec. 1705, and Geo. 
 Horic, under this title (Emil Roth. Giessen. 1900). 
 
186 SCIENCE OF LAW 
 
 SECTION 28 
 
 (3) OTHER BLOOD RELATIONS AND RELATIONSHIP 
 BY MARRIAGE 
 
 Social conditions generate interests in connections 
 with other relatives than those standing in the limited 
 circle of parents and children: thus, with reference to 
 grand-parents, brothers and sisters, uncles and aunts, 
 and nieces and nephews. The less developed the state, 
 the stronger is the family sense, and the necessity for 
 cohesion of those related by ties of blood.' It is for 
 this reason that kindred relationship is of such great 
 significance in ancient German law. The legal opera- 
 tion of relationship diminishes as relationship itself 
 lessens. There is, therefore, a determinate measure, 
 differing in different systems of law,^ for the computation 
 of degrees of relationship of blood as well as of affinity. 
 
 Relationship has its chief importance in the German 
 law, in that interests of relatives are protected as legal 
 interests in juridical and extra-juridical controversies. 
 
 The legal influence of relationship in modem law is 
 shown, apart from property rights, in co-operation in 
 the education of children, in prohibitions of marriage, 
 and also as a qualifying element in criminal law, all 
 under definite regulatory provisions. 
 
 ' Sec. 7, II, supra, and sec. 8, II, 2, supra. 
 
 ^ B.G.B., sec. 1589; on the Roman computation of degrees of kindred, 
 see Sohm, Inst., sec. 78; the Germanic computation, see Heusler, Inst., sec. 
 186, and literature there noted; canonical computation, see J. Fr. v. Schulfe, 
 Lehrb. d. kathol. u. evangel. Kirchenrechts (4th ed., 1886), sec. 167. 
 
SYSTEMATIC CLASSIFICATION 187 
 
 SECTION 29 
 
 (4) ARTIFICIAL RELATIONSHIP' 
 
 The interest of favoring the protection of relatives 
 extends so far, that, according to many legal systems, 
 in default of natural relatives, other persons are regarded 
 as artificial, or juridical, or according to the canonical 
 conception, as spiritual relatives, and brought wjthin 
 the protective care of the law. This substitution of 
 relatives is of three classes: (1) the natural protective 
 direction of the head of the family may be supplied to a 
 certain extent, as is the case in the legal institution of 
 guardianship; (2) children lacking parental care may 
 receive it by adoption;^ and the interest in having an 
 heir, when nature has denied a natural heir, may occa- 
 sion the creation of such an artificial relationship ; (3) the 
 lack of a brother was supplied according to ancient law, 
 in the institution of blood fraternity, especially among 
 the Germans.' 
 
 ' Sohm, Inst., sec. 90; Frensdorff -Kraut, op. cit., sec. 191. Concerning 
 artificial family relationship among tlie red Indians, see J. Kohler in K. u. v. 
 Holtz., I, p. 35. 
 
 2 B.G.B., sec. 1741, et seq.; compare Dr. Adolf Hecker, Die Adoption 
 im geltenden Recht als product der historischen Entwickelung (Leipzig, 1903, 
 Gustav Fock.) 
 
 * [Blutsbruderschaft, an ancient ceremonial agreement between men in- 
 volving mutual promises of fidelity and protection, and revenge against 
 injuries from others. This agreement was concluded with a formality of 
 blood letting, in which the blood of the parties was made to run together, 
 or by drinking of a mixture of this blood with wine.] Concerning Affatowic 
 [a Germanic procedure of adoption, which was sometimes employed for the 
 transfer of property; see Ross, op. cit., p. 70, et seq.] ; see also Heusler, Inst., 
 sec. 194. See Kohler, in K. u. v. Holtz, I, p. 35 regarding the institution of 
 blood fraternity and blood sisterhood (Bluisschwesterschaft) the former of 
 which developed among the Malays and East Africans into an artificial 
 personal unity with community of wives. 
 
 With reference to adoption among the ancient Greeks, see law of Gortyn 
 (Ed. GmoU) (supra, sec. 15, p. 106, note 5,) X, 33. Adoption played a 
 prominent part in Babylonian law; see Code of Hammurabi, sees. 185-193. 
 As to the so-called Sumerian family laws, see Kohler u. Pieser, op. cit., p. 133. 
 
188 SCIENCE OF LAW 
 
 The most important of these relations, however, is 
 that of guardianship {cura or tutela according to the 
 Roman law). Guardianship is a public institution 
 (m.unus publicum) providing a definite providential and 
 supervising legal protection over the ward, always under 
 direct control, or even co-operation of a public organ, — 
 a guardianship court ( Vormundschaftsgerickt) , a curator, 
 or a communal orphan council {Obervormundschafts- 
 behorden). Guardianship is instituted for such persons 
 as are not able to manage their o-wti affairs on account 
 of sex (thus, guardianship over females) ;^ on account of 
 minority;^ chronic mental incapacity;^ or on account of 
 absence/ According to present German law, the most 
 conspicuous form of guardianship, the svibstitution of a 
 guardian in property matters, is as a rule unnecessary 
 so long as the mother of the ward is alive. ^ 
 
 ^ Women were under guardianship during their entire life among the 
 Greeks (Lipsius, op. cit.)\ also among the Germans in the Middle Ages; see 
 Heusler, Inst., sec. 171. In modem law female guardianship is everywhere 
 obsolete. In the German law women are declared competent to become 
 guardians. 
 
 2 B.G.B., sec. 1773. 
 
 ^ B.C.B., sec. 1896; here belongs, also, the care of piooigals and dipso- 
 maniacs: B.G.B., sees. 6, 114 1896. 
 
 ■* B.G.B., sec. 1911 (curatorship). 
 
 ^ B.G.B., sees. 1684-1698 (parental power of the mother.) 
 
SYSTEMATIC CLASSIFICATION 189 
 
 CHAPTER V 
 FAMILY PROPERTY 
 
 SECTION 30 
 
 FAMILY PROPERTY IN GENERAL 
 
 Those interests which are legally protected under the 
 name, "pure family rights," have collectively, to a greater 
 or less extent, a prominent connection with property, — 
 the satisfaction of necessities appertaining to things. 
 This arises not on account of property as such, but on 
 account of the purely personal connections recognized 
 and protected by law. This connection is foremost a 
 pure condition of fact based on an actual relation. 
 This relation is elevated by law to the plane of a legal 
 relation, but not always in a uniform manner. Different 
 peoples in different ages have given recognition to the 
 proprietary operation of family relations, to the extent 
 that the ethical conception of family relations (see sec. 
 25) has governed. A great diversity of economic and 
 political interests have also had a concurrent influence 
 on the form of the law.^ 
 
 The degree, also, in which individual relations of 
 family life, considered as legal relations, have been 
 recognized as legally operative on property, has been 
 highly diverse. The connection of these relations to 
 
 ^ This suggests, by way of example, the effect on the form of the matri- 
 monial regime in Germany, of the founding of cities and the rise of commerce 
 and industry: and the effect of military service of the Roman legionaire, 
 on the form of the law of peculium. 
 
190 SCIENCE OF LAW 
 
 property has been, in some cases, regulated and pro- 
 tected by law in an obvious and prominent manner, 
 and in other cases only in a subsidiary manner or only 
 under definite limitations.' 
 
 Entire elimination of all proprietary interest would 
 negative any relation of family law. Therefore, the 
 actual influence of these relations on property requires 
 standards. The conjtigal community costs or brings 
 money, or costs and brings money. ^ The same is true 
 of the bringing-up of children. Income of money is 
 chiefly involved in the ancient Roman law, or where the 
 father has the right to sell his children. 
 
 Kindred relationship also has a great legal significance 
 from the proprietary standpoint. This was shown in 
 the practical proof adverted to (sec. 28) of mutual pro- 
 tection among relatives. It is further exhibited in pro- 
 visions for guardianship administration of property, as 
 where relatives act as guardians or as members of family 
 councils exercising guardianship powers. The chief im- 
 portance, however, of the proprietary aspect of the legal 
 relations of relatives, lies in the law of inheritance. 
 Relatives in many systems of law, as in the German 
 law, are the natural heirs of the property of deceased 
 persons (see sec. 35). 
 
 Guardianship (cura, tutela, mundiburdium) is an arti- 
 ficial family relation which, in the most conspicuous 
 manner, has a legal connection with property. The 
 guardian is the protecting master of the person of the 
 ward, and he is also the administrative manager of his 
 propert}"-. 
 
 Where a pure family relation legally imparts a definite 
 operation on property, in such case the family relation, 
 
 • Thus, guardianship which may be limited to the mere administration of 
 property alieno nomine. 
 
 ^ Das eheliche Zusammenleben kostet oder bringt geld oder kostet und bringt 
 Geld. 
 
SYSTEMATIC CLASSIFICATION 191 
 
 or its actual consequence, is itself treated as a juristic 
 fact, and the law annexes a determinate legal effect on 
 its appearance. Thus, on the celebration of marriage, 
 or sometimes only after its consummation, or after the 
 birth of a child, there commences a definite matrimonial 
 regime. On the appointment of a guardian, there arises 
 a guardianship administration, etc. The objects of such 
 administration of the interests of the matrimonial regime 
 are not simply material and immaterial things (sees. 
 17 to 21) , but also obligations (sec. 22) . In other words, 
 they are rights which may be ai?ected by the family 
 relation, which are : — 
 
 Rights of ownership (sec. 20) ; 
 Jura in re aliena (sec. 21) ; 
 Rights in immaterial things (sec. 18) ; and 
 Obligation rights' (sec. 22). 
 
 Rights of family property, therefore, involve at the 
 same time real and personal relations {cf. sec. 16). 
 Accordingly the classificatory division, "mixed law of 
 persons and things," presents itself, which is also appli- 
 cable to the law of inheritance. The latter also involves 
 the law of obligations (sec. 34) concurrently with the 
 law of material and immaterial things. 
 
 The legal effect of the matrimonial relation and the 
 relation of parents and children with reference to prop- 
 erty is discussed in the following sections (31, 32). 
 
 * For example, in some systems of law, claims in favor of the wife become 
 claims of the husband on the celebration of marriage. Sometimes marriage 
 involves liability of the wife for the ante-nuptial debts of the husband. 
 According to a legal paroemy: take the man, take the debt. See however 
 the present German law (B.G. B., sees. 1411, 1415) according .to which it may 
 be said: take the wife, take the debt. 
 
192 SCIENCE OF LAW 
 
 SECTION 31 
 
 (1) THE MATRIMONIAL REGIME 
 (Das eheliche Giiterrecht) 
 
 The interest which a spouse has in the property of the 
 other, is legally recognized and protected only in part 
 and in a subordinate degree. Marriage ought not to 
 exist for the sake of property, and, as said in Roman law, 
 conjugal ties should not be used for the despoliation of 
 the spouses. A mutual interest appertains to the 
 spouses, and, to a certain extent, there exists also a pub- 
 lic interest, in a legal influence of marriage on the 
 property of the spouses. 
 
 The aggregate of legal standards by which the influ- 
 ence of the creation, continuance, and termination of 
 marriage, with reference to property, is legally estab- 
 lished and limited, and accordingly by which private 
 and public interests in the regulation of the proprietary 
 relations existing between spouses, are legally guaranteed 
 is called the "matrimonial regime." This matrimonial 
 ri^gime is distinguished respectively as statutory and 
 contractual accordingly as this regulation is directly 
 and explicitly created by law (that is by statute, or 
 custom), or is governed by agreement within the limits 
 permitted by law. 
 
 A survey of the large variety of dissimilar institu- 
 tions regulating the matrimonial regime requires a con- 
 sideration of the ideas following; — 
 
 (a) It may be said that marriage is a personal relation 
 and not a proprietary relation; that marriage should in 
 general have no influence whatever on property; that 
 marriage may b}' a special legal act, the creation of an 
 
SYSTEMATIC CLASSIFICATION 193 
 
 agreement, effect a proprietary relation, and that in the 
 absence of such a legal act, marriage has no legal influ- 
 ence on the property of the spouses. This is the stand- 
 point of Roman law, according to which, the marriage 
 of a poor man and a rich lady would leave the husband 
 during and after the marriage as poor as before the 
 marriage, and contrariwise. 
 
 A special proprietary relation is possible by the 
 arrangement of a dowry {dos, Mitgift) . Dowr)'' is a pro- 
 prietary complex, intended ad onera matrimonii suble- 
 vanda. It is under the control of the husband during 
 marriage, and on the termination of the marriage, is 
 as a rule to be restored, in corpus to the wife, her heirs, 
 or the giver of the dos. The ideas governing the influ- 
 ence of marriage on property which have prevailed 
 among Germanic peoples from the remotest times, 
 depart radically from this system. Therefore, this 
 system has received only an insignificant place, and 
 found only a modified application, in Germany. 
 
 (b) On the other hand, it may be asserted, that even 
 if marriage is not a proprietary relation, or is not such 
 in its principal aspects, that yet its actual influence on 
 property is unavoidable; and that as the husband is the 
 head of the family, therefore, it is fit that this actual 
 influence should legally lie in his power. It is said that 
 legal recognition and protection of the husband's inter- 
 est in the proprietary side and consequence of conjugal 
 life are especially suggested and are in part necessary 
 in all those stages of civilization where the wife enjoys 
 no capacity for legal acts or has only limited capacity 
 for such acts ; and also where her capacity for legal acts 
 is restricted by statutory tutelage (Geschlechtsvormund- 
 schaft) . 
 
 Where wife-capture, or wife-purchase is the basis of 
 marriage, it is evident that the husband is the master 
 of all conjugal property. Even where the wife enjoys 
 
194 SCIENCE OF LAW 
 
 respect in her ethical freedom, and is recognized as a 
 legal subject, the husband has control of the entire 
 conjugal property whether derived from him, from the 
 wife, or later acquired by either of them, if the wife is 
 legally restricted in her capacity for acts in the law. 
 
 A proprietary system developed from this situation 
 in higher phases of civilization. In this system the 
 husband had control of the entire property of both 
 spouses, excepting only privileged property (Sondergut) 
 of the wife, so long as the marriage subsisted. This 
 dominion of the husband, with reference to property 
 brought into the union by the wife, extended, however, 
 only to a right of usufruct and power of administration. 
 It was limited by the duration of the marriage, and 
 accompanied by a duty on the part of the husband, 
 binding on his heirs, to restore such propertj', on the 
 termination of the marriage to the wife or her heirs. 
 
 This system has received different names thus, "system 
 of matrimonial administrative participation" (Richard 
 Schroder); "community property" (Runde and Beseler); 
 and "proprietary unity" (Gerber). This is the system 
 of the ancient Saxon law (law of Eastphalia) , of the Saxon 
 Spiegel, the ancient Saxon cities, the original cantoris of 
 the Helvetian league, the ancient cantons of Berne, 
 Zurich, etc. It was re-established in the Prussian Land- 
 recht; in the civil code of the kingdom of Saxony; and 
 in the civil code of the German Empire.' In the last 
 
 * This code establishes the standards of the so-called administrative 
 community system ( V erwaltungsgemeinschaft) or marital usufruct as a. 
 "statutory regime" (B.G.B., sees. 13G3-1425). There are also instances 
 provided for, in which there is legally a separation of goods (GAteTtrennung); 
 and in which management and usufruct do not exist on the part of the 
 husband as to the property of the wife (B.G.B.. sees. 1364. 1426-1431). 
 
 Alongside of the statutory regime, there exists a contractual regime by 
 which the spouses may regulate their proprietary relations by agreement 
 {B.G.B., sees. 1432-1557). Yet, important modifications of the statutory 
 regime by agreement, require for their efficacy, as against third persons, 
 special notice to them, or entry in the marriage property register {B.G.B., 
 sees. 1435, 1558-1563). 
 
SYSTEMATIC CLASSIFICATION 195 
 
 code it is provided, that unless there is a contrary pro- 
 vision in the marriage contract,^ the husband shall have 
 the management and usufruct of the non-privileged 
 property {eingebrachtes Gut) of the wife. There is 
 excepted, the so-called privileged property^ ( Vorbe- 
 haltsgut) of the wife; such for illustration as is acquired 
 through the labor of the wife, or her independent opera- 
 tion in a business pursuit. To sudi property the con- 
 trol and usufruct of the husband do not extend. On 
 the termination of marriage, the husband is required to 
 relinquish the non-privileged property and give an 
 account of his administration.^ 
 
 (c) Finally, it may be asserted, that marriage is 
 intended for conjugal community, and if its object is 
 not in the first degree the common ownership of property, 
 yet community of property is not excluded; inasmuch 
 as the community life of the spouses, to a certain extent 
 at least, requires common necessities in the house and 
 home and a common acquisition of property through 
 industry and frugality. Thus, through the combination 
 of the property of the husband and the wife, by post- 
 nuptial arrangement, arises the first practical realiza- 
 tion of community property — a system, or rather a 
 
 * The marriage contract may be much simplified by reference to the 
 hypothetical contractual regimes provided for in the civil code: (1) general 
 community of goods (sees. 1437-1518); (2) community of income and 
 profits (sees. 1.519-1548); (3) community of movables (sees. 1549-1557); 
 and (4) separation of goods, sees. 1426-1431, 1436), the latter of which may 
 result also in certain cases provided by statute (sees. 1364, 1426, 1418-1420, 
 1425) as a "statutory regime" to take the place of the husband's manage- 
 ment and usufruct. 
 
 2 B.G.B., sees. 1365-1371. 
 
 ^ B.G.B., sec. 1421. The ancient Babylonian law regulated the matri- 
 monial regime in a manner similar in its chief aspects, to the German Civil 
 Code; see Code of Hammurabi, sees. 162-174. The obligation of the spouses 
 for debts, however, is different in the Babylonian law. The wife was re- 
 sponsible jointly with the husband for all debts of the husband contracted 
 during marriage, and even for all ante-nuptial debts of the husband, unless 
 such liability was expressly excluded by marriage contract. The wife could 
 even be sold for the debts of the husband ; Hammurabi, sees. 151, 152. 
 
196 SCIENCE OF LAW 
 
 variety of systems, as ancient in their origin as the 
 Saxon law of Germany.' It is peculiar to this institu- 
 tion that such property remains community property 
 of both spouses during marriage, and on the termina- 
 tion of marriage, is divided or inherited without regard 
 to its origin of acquisition.^ This property mass, the 
 common property of the spouses during marriage, may 
 include either all the property of the spouses and be 
 therefore a general community of goods {allgemeine 
 Gutergemeinschaft) ; or it may include only a certain 
 part of such property, in which case it is known as par- 
 ticular community of goods {partikuldre Gutergemein- 
 schaft) . 
 
 General community of goods had its origin chiefly 
 in Prankish, Westphalian and Swabian law.^ Particu- 
 lar community of goods is either a community of mov- 
 ables and of income and profits {Mobiliar-und Errmi- 
 genschaftsgemeinschaft), as in the French code and in 
 others using it as a basis, or closely connected with it;* 
 or it may be only a community of income and profits* 
 {Errungenschaftsgeineinschaft) wherein the property of 
 both spouses remains normally separated even though 
 under the control of the husband during marriage. 
 Community of income and profits was recognized as a 
 statutory matrimonial system of property in the Land- 
 recht of Bavaria, Wurtemberg and Hesse,* and else- 
 
 ^ Compare Richaid Schroder, Geschichte des ehelichen Guterrechts in 
 Deutschland. 1863-1874, Part II, 2, p. 1, et seq.; Part II, 3, pp. 43, 295. 
 This woik is suitable above all others for the whole doctrine of matrimonial 
 property. For the other literature, see Gareis, Grundriss, sec. 116, note 1, 
 sec. 117, note 2. See also Heusler, Inst., sec. 136. 
 
 ^ According to the German Civil Code a system of community of goods 
 can exist only by contractual arrangement of the spouses in the manner 
 pointed out on p. 194, note 1, and p. 195, note 1. 
 
 ^C/. B.G.B., sees. 1437-1518. 
 
 *Cf. B.C. B., sees. 1549-1557. 
 
 ^Cf. B.G.B., sees. 1519-1548. 
 
 ^ Gareis, Die Errungenschajtsgemeinschaft nach hessischen Sonderrechten 
 (1885, Ludwigsprogramm). 
 
SYSTEMATIC CLASSIFICATION 197 
 
 where; but not of course, without variations in their 
 provisions for marital control and usufruct. 
 
 Which of different systems of matrimonial property, 
 applicable to a concrete marriage, is authoritative, is 
 determined within the limits of the law either by the 
 matrimonial contract of the spouses, or according to the 
 law of the place where the marriage has its iirst domicile, 
 that is the law of the domicile of the husband directly 
 after the consummation of the marriage. German law 
 provides that the matrimonial regime shall be regulated 
 by German law, if the husband at the time of the con- 
 summation of the marriage was a German citizen.* 
 
 If the husband, after the consummation of the mar- 
 riage, acquires German citizenship, or if spouses of foreign 
 citizenship have their residence in Germany, the matri- 
 monial regime is governed by the law of the state of 
 which the husband was a subject at the conclusion of 
 the marriage. The spouses may, however, enter into 
 marriage even though not allowable according to the 
 law of that state. ^ 
 
 ^ See notes, pages 194-195, supra, for statutory provisions. 
 2 Einf.G. i. B.G.B.. Art. 15. 
 
198 SCIENCE OF LAW 
 
 SECTION 32 
 
 (2) PROPERTY OF CHILDREN 
 
 The proprietary influence which arises out of the 
 personal and natural relation between parents and their 
 children, depends, as is evident, primarily and chiefly 
 on the legal form of this personal relation itself. If the 
 child be regarded merely as a species of property of the 
 father or the parents, there can be no proprietary right 
 in the child. In higher phases of civilization, a recogni- 
 tion of such rights as belonging to children is indis- 
 pensable. 
 
 The child, with the first breath of life, is legally 
 recognized as capable of having its own interests. This 
 recognition first of all imposes an obligatory duty on 
 both parents (primarily and chiefly on the legitimate 
 father, and secondarily on the mother whether of legiti- 
 mate or illegitimate children) to provide for the physical 
 support and mental training of the child. The expen- 
 diture of money in alimentation of the child is the cor- 
 relate of the right of education in the parents. The 
 duty of providing maintenance is also the recognition 
 in law of an ethical duty which is mutual in operation. 
 Indigent parents, grandparents, etc., must be supported 
 by the descendants who are financially able. Associated 
 in many systems of law with the duty of parents of 
 providing maintenance, is the duty of providing the 
 marriageable daughter with a marriage portion ( Heirats- 
 gut) or outfit (Aussteuer) . 
 
 The greatest proprietary influence, however, of parents' 
 and children's rights is seen in the domain of the law 
 of inheritance. Ascendants and descendants are mutu- 
 ally natural heirs (sec. 35, infra). 
 
SYSTEMATIC CLASSIFICATION 199 
 
 Parental power is brought prominently forward in 
 the general personal relation of parents and children 
 as a particular and distinctive form of this relation. 
 Parental power is distinctive also in a proprietary sense. 
 Variations in the conception of the personal relation 
 produce, as a matter of course, differences of proprietary 
 operation. 
 
 The law of peculium corresponded in ancient Roman 
 law to patria potestas. Pectdium was originally a 
 proprietary complex which the father permitted the 
 son to manage more or less independently. Another 
 form of peculium, peculium castrense (compensation 
 for army service) was emancipated from paternal au- 
 thority. The filusfamilias therefore ceased to the same 
 extent to be the industrial instrument of the father. 
 
 While the Roman law of peculium did not gain com- 
 plete reception in Germany,' there came into use a 
 paternal and even parental right of management of 
 property of the child by which a power over the child's 
 property was exercised until majority. As to privileged 
 property of the child parental power did not embrace 
 any right of usufruct.^ As to non -privileged property^ 
 of the child there was a right of usufruct in the father, 
 and in certain cases in the mother. 
 
 ■ Stobbe, Deutsche! Privatrecht, sec. 254, Bd. Ill, pp. 343, 345: tor the 
 literature see Gareis, Grundriss, sec. 134, note 1. 
 
 'Cf. B.G.B.. sees. 1650, 1651. 
 
 ^ B.G.B., sec. 1649. Concerning the parental power of the mother, see 
 B.G.B., sec. 1684; and with regard to the legal position of illegitimate 
 children, see B.G.B., sec. 1705. 
 
200 SCIENCE OF LAW 
 
 SECTION 133 
 
 (3) GUARDIANSHIP ADMINISTRATION OF PROPERTY 
 
 As already observed above, among artificial relation- 
 ships, guardianship in modern law has had a develop- 
 ment peculiar to itself in the administration of property. 
 The law distinguishes guardianship over minors^ 
 {Minder jahrige) ; guardianship over interdicted adults^ 
 {entmundigte Volljahrige) ; and curatorship over persons 
 who apart from those cases which occasion guardianship, 
 require a particular care and representation in their 
 proprietary concerns,^ in consequence of mental or 
 physical infirmity. 
 
 All guardianships and curatorships are under the 
 direction and supervision of the state. This management 
 is exercised usually through courts known as guardian- 
 ship courts^ whose activities may be regarded as a part 
 of non-contentious jurisdiction.' Guardianship courts 
 have the appointment of guardians, also in cases of 
 necessity the appointment of a supervising guardian,* 
 the reception of guardianship accounts,' and approval 
 of all those acts of the guardian which are of special 
 importance in the property concerns of the ward.' 
 The civil code furthermore prescribes the principles of 
 guardianship administration, and in particular, for the 
 safe investment of the ward's property.' 
 
 1 B.G.B., sec. 1773. 
 
 2 B.G.B., sec. 1896. 
 
 => B.G.B., sees. 1909-1921. 
 
 * B.G.B., sees. 1774, 1775, 1787-1791, 1796, 1837. 
 
 = See infra, sec. 48, III; sec. 49, II, 2. 
 
 " B.G.B., sees. 1792, 1799, 1813. 
 
 ' B.G.B., sec. 1840. 
 
 « B.G.B., sec. 1821. 
 
 » B.G.B., sees. 1807, 1808. 
 
SYSTEMATIC CLASSIFICATION 201 
 
 Upon termination of a guardianship, the guardian 
 is required to give account of his administration, and 
 deliver up the estate. The guardian may be under the 
 control of a supervising guardian (Gegenvormund) . 
 For the assistance of the guardianship court, a family 
 council (Familienrat) may be appointed. 
 
 Guardianship over minors ends as a matter of course 
 on the attainment of majority; that is the completion 
 of the age 21 years. It ceases in the case of adults 
 when the disability ends. 
 
 According to the German Civil Code, an adult may 
 be interdicted or restricted in his disposing capacity, 
 on account of insanity, feeble-mind, prodigality, and 
 dipsomania.' 
 
 ' B.G.B., sees. 6, 104, 105. 114, 1896. 
 
202 SCIENCE OF LAW 
 
 CHAPTER VI 
 INHERITANCE 
 
 SECTION 34 
 
 INHERITANCE IN GENERAL' 
 
 The law of inheritance is the aggregate of legal rules 
 by which an answer is given to the question: What 
 legal influence has the death of a physical person upon 
 the legal spheres controlled by him in life?^ 
 
 The first consequence of death, and a simple answer 
 to this question which cannot be annulled by any 
 system of law, is that a dead person has ceased to have 
 rights. Only the living have rights.^ The dead no 
 longer have any interests of life and therefore no longer 
 require legal protection with reference to their external 
 relations to persons and the community. 
 
 It might follow from this, that the property of the 
 dead would be ownerless or res nullius; that their 
 jura in re aliena would be without a subject and there- 
 fore void; that their rights of personality would be 
 without interests and no longer capable of use ; that what 
 they owe could not be performed; that what is owing 
 to them could no longer be paid as their interests have 
 ceased; and that they could no longer exercise parental 
 power as their marriage relations have ended. 
 
 ' Cf. Sohm, Inst., sec. 95; Salkowski, Inst., sec. 173; Dahn, D. Rechtsbuch, 
 p. 240. With reference to legal rights in human corpses see Gareis, supra, 
 sec. 18, page 126, note 7. 
 
 2 Cf. supra, sec. 16a. 
 
 * The effects of actual death may to a certain extent be accomplished by 
 presumed death. B.G.B., sees. 13-20. 
 
SYSTEMATIC CLASSIFICATION 203 
 
 These are certainly the legal negations consequent to 
 death. But they do not proceed so far as to make nega- 
 tion of reality. Above all, the legal facts of family life 
 still remain — that the father has procreated the child, 
 and that the mother has borne it — even though death 
 has intervened. The family remains. The family tie 
 is not extinguished even by death. This idea proceeds 
 to the extent that even the re-marriage of a widowed 
 spouse may be regarded as illegal. 
 
 The prohibition of bigamia successiva, the poencB 
 secundarum nuptiarum, the burning of widows, and 
 also in a certain sense the ancient Judaic obligatory 
 marriage of the brother of a deceased married person, 
 suggest the notion of continuance of family life. 
 
 Connected with these ideas operating in the domain 
 of law, which ' are essentially supported by religious 
 notions, are the primitive views of family ownership. 
 According to these notions the property which belonged 
 to the dead person in his life remained in the family 
 after his death and passed by law to the nearest relatives 
 by whom it was inherited. Thus, in the German law, 
 the most important kind of ownership (that of land 
 which is inherited and re-inherited) is called the inherit- 
 ance. In ancient German law the notion is encountered 
 that the inheritance passes to the heir of the dead 
 person, and comes into the possession of the heir as if 
 the dead person himself directly had delivered it without 
 any action of the successor — the dead transmit to the 
 living, le tnort saisit le vif. 
 
 Landed property, therefore, does not become owner- 
 less on the death of its former owner, but passes to the 
 relatives. "It remains in the family" {Es bleibt in der 
 Familie). If relatives fail, then the yet more ancient 
 primary institution of community ownership appears. 
 Ownerless land falls back to the community or its head. 
 
204 SCIENCE OF LAW 
 
 Ancient law, however, had already provided that, in 
 place of actual or natural relatives, artificial relatives 
 might step in. Provision was made for persons whose 
 relationship might be artificially effected and simulated 
 by a legal act in the presence of the community or its 
 representatives: thus in German law, by adoptio in 
 hereditatem, and in Roman law by means of testamentary 
 witnesses considered as representatives of the Roman 
 people. This artificial creation of heirs by means of a 
 legal act, became of greater significance and importance 
 the more as land ownership ceased to be the chief or 
 even the only kind of property, and the more as monetary 
 and credit activities developed alongside of agricultural 
 pursuits. Credit pursuits were utterly impossible if 
 death might annul obligations of payment; and if the 
 creditor's claim was subject to dissolution with the 
 person of the creditor. 
 
 It has thus come about among all peoples who have 
 attained the level of transacting business on a credit 
 basis, that the proprietary concerns of the dead survive 
 them in legal form. They remain as legally protected 
 interests. Only the persons in interest change. It 
 results, therefore, that the legal negations adverted 
 to do not happen. Rights as well as duties of the dead 
 pass to their legal successors. A substitution in interest 
 arises, to the extent that these rights and duties do not 
 involve the departed personality of the dead. Such 
 substitution of interest does not take place as to purely 
 personal legal claims, or delictual obligations which do 
 not exist as pure equivalents of property but which 
 belong to the province of penal obligations. 
 
 In the progress of civilization, and at the latest 
 commencing with credit pursuits, legal systems accord- 
 ingly have recognized and guaranteed the interest of 
 succession of property in the actual and designated 
 
SYSTEMATIC CLASSIFICATION 205 
 
 relatives of the dead, or in artificial relatives — heredes 
 extranei. 
 
 In a recognition of the interest of succession, legal 
 systems proceed from a variety of standpoints. Some- 
 times it is the recognition of family interest, or the 
 after-effects of family ownership. Sometimes it is the 
 consequence of the social interest directed to the main- 
 tenance of legal order which opposes strife attendant on 
 ownerless property. It may proceed with the view 
 of security of credit in commercial matters notwith- 
 standing the death of the creditor and the debtor. 
 Finally the purpose may be a furtherance of industry 
 as well as the sense of thrift in all members of the com- 
 munity. 
 
 In the realization of these purposes, lies the cultural 
 importance of the law of inheritance. On the socialistic 
 side (in an effort to further or essentially restrict the 
 law of inheritance) lies the danger of imperiling the 
 advance in civilization attained by means of the law 
 of inheritance. It is not to be asserted, however, that 
 legislative restrictions cannot and should not govern 
 natural succession of relatives, or succession by will; 
 the former according to degree, and the latter according 
 to amount. 
 
 Restrictions in the law of inheritance may appropri- 
 ately be made by means of inheritance taxes which 
 establish the interest of the community in relation to 
 or comparison with the interest of succession; and 
 allow the interest of society to prevail in those cases in 
 which legislation regards the interest of succession- (as 
 in the case of an extraneous successor) as no longer 
 desirable of complete protection. 
 
 The interest of succession may be based: — 
 
 (a) On succession to particular things, ownership 
 of particular rights, or the burden of particular debts. 
 
206 SCIENCE OF LAW 
 
 In other words inheritance may follow only certain 
 interests protected before death, and presently pro- 
 tected in favor of the legal successors of the dead; or 
 (6) Succession may be based on the totality of 
 interests of the dead (excluding purely personal interests). 
 In this case the successor assumes the entire legal sphere 
 of the dead person as it exists at death, as a single com- 
 prehensive interest. 
 
 The first interest (a) corresponds to singular succession 
 (successio in singtilas res, particular succession, Sonder- 
 nachfolge). This species of succession may also arise 
 among living persons, as in the case of assignment or 
 cession (sec. 22, supra), and also tradition (sec. 20, V., 2, 
 supra) . 
 
 Succession in the second sense (6) is the interest in 
 universal succession (successio per universum jus defuncti, 
 Gesamtnachfolge) . According to the common law of 
 Germany, an example of universal succession, and the 
 only one, is hereditas^ — ^the inheritance of the entire 
 property of a dead person, including his liabilities. The 
 heir (heres) succeeds completely to the legal spheres 
 vacated by death, excluding only the rights and duties 
 flowing from the personality of the defunctus. He 
 continues to the same extent as the dead person, to 
 bear his interests; and becomes accordingly the owner 
 of the objects of these interests. He becomes the 
 creditor of the claims of the dead, and the debtor of 
 his obligations. According to Roman law, this result 
 did not as a rule at once follow, if the inheritance was 
 deferred (by a tender or offer on one of the grounds of 
 
 ^ Dig. I 37, 29, 2 (de acq. v. om. hered.) : Heres in omne jus mortui, non tarn 
 singularum rerum dominium succedit, quum et ea, qucB in nominibus sunt, ad 
 heredem transeant. Dig. I, 62, 50, 17 (de reg. jur.) (Julian): Hereditas nihil 
 aliud est, quam successio tn universum jus, quod defunctus habuerit. To the 
 same effect is the German Civil Code which provides that the property (the 
 inheritance) of a dead person shall so as a whole to one or more persons (heirs). 
 B.G.B., sec. 1922. 
 
SYSTEMATIC CLASSIFICATION 207 
 
 delation (delatio) ) ; but resulted only when the inheritance 
 {hereditas deleta) was acquired after delation by an act 
 of entry (aditio). According to German and French 
 law succession follows delation of the inheritance 
 without aditio} 
 
 Based on the difference of the grounds of delation 
 there are distinguished: natural, and testamentary 
 succession (sees. 35, 36). 
 
 In order that property of dead persons may be 
 administered in accordance with law and an allowable 
 delation, the security of claims on the part of heirs, ^ 
 is not only provided for by civil procedure but also 
 protected by the administrative interposition of the 
 state, through courts of probate^ as a part of its non- 
 contentious jurisdiction {infra, sec. 49). 
 
 * It is possible in modern law, as it was in ancient law, to reject a proferred 
 inheritance (repudiatio, beneficium abstinendi) . Limited succession [restricting 
 liability] was also possible b> means of the institution of beneficutm inventarii. 
 
 According to the German Civil Code (sec. 1942) the inheritance vests on 
 death without entry, without prejudice to the rights of the heirs to renounce. 
 The heir may not, however, repudiate the inheritance when the period fixed 
 by law has elapsed (usually six weeks") or after he has expiessly accepted the 
 inheritance. 
 
 2 B.G.B., sec. 2018. 
 
 3 B.G.B., sees. 1945, 1960. 
 
208 SCIENCE OF LAW 
 
 SECTION 35 
 NATURAL SUCCESSION' 
 
 The legal recognition of the interest of the members 
 of the family in the descent of property of dead persons 
 leads to natural succession, so called. Succession by 
 relatives is natural succession or succession by the will 
 of nature. 
 
 In the German law, such succession results ipso jure 
 without any act of the heirs. Ancient German law 
 recognized only succession by relatives,^ and not suc- 
 cession by testament. Natural succession was permitted 
 to have effect only so far as relationship existed; remote 
 relatives for the time, being excluded in favor of near 
 relatives. If relatives failed, the estate passed to the 
 greater and lesser communities of which the dead person 
 was a member; or passed to the head of these communi- 
 ties. Roman law, in like manner, permitted succession 
 by relatives, but only in default of testamentary dis- 
 position — si intestatus descesserit defunctus. In the 
 latter case the relatives became the intestate heirs. 
 This conception has been adopted by modern law. 
 
 In default of testamentary disposition, the inherit- 
 ance goes, first to descendants^ — (1st class according 
 
 ' Cf. Sohm, Inst., sec. 98; Salkowski, iKst., sec. 182; Heusler, Inst. d. D. 
 Prwatrechts, sec. 183. Statutory heirs in the German Civil Code. See sees. 
 1924-1936. 
 
 ^ Legal proverbs: "not man, but God, makes heirs": "who would die 
 a just and holy death must leave his property to his heirs." Walther Munz- 
 inger { Erbrechtliche Studien, Basel, 1874) attempts to discover the difference 
 between Roman testamentary succession and German intestate succession 
 by relatives, in the difference of notions as to the transcendental attitude 
 and abiding place of the souls of the dead; on the one hand referring to the 
 Roman home, and on the other to Walhalla. The ancient Indian law also 
 did not recognize wills. See Jolly, Recht und Sitte, pp. 81, 84. 
 
 ^ Particular legal systems make a distinction even among descendants, 
 either according to sex or order of birth. Thus the ancient German law 
 
SYSTEMATIC CLASSIFICATION 209 
 
 to Roman law, Novel 118). In default of descendants, 
 to ascendants, brothers and sisters, of the whole blood, 
 and their children — (2d class). Then to brothers 
 and sisters of the half blood, and their children — (3d 
 class). Finally to the remaining collateral kindred — 
 (4th class). 
 
 The German Civil Code distinguishes statutory heirs 
 of the first order, that is, descendants of the deceased; 
 of the second order, parents and their descendants; 
 of the third order, — grandparents and their descendants; 
 of the fourth order, — great grandparents and their 
 descendants ; and of the fifth order, — remote ascendants 
 and their descendants. A relative is not competent to 
 take the inheritance so long as relatives of a previous 
 order exist. The German Civil Code also makes pro- 
 vision for the spouse as an heir. The surviving spouse 
 is entitled to one-fourth of the inheritance concurrently 
 with relatives of the first order; to one half concurrently 
 with relatives of the second order, or grandparents; 
 and takes the entire inheritance in default of relatives 
 of the first and second order and grandparents. In 
 default of relatives and a spouse, the fiscus of the state 
 to which the deceased belonged, is the statutory heir. 
 
 The law provides the details of the method of succes- 
 sion. Thus, in the German law, in the event of the 
 death of a descendant, at the time of the accrual of the 
 inheritance, his descendants related by blood to the 
 intestate, take his share of the inheritance per stirpes.^ 
 
 gave precedence to sons over daughters at least with reference to succession 
 to land. The Hebraic law gave to the first-bom a double portion of the 
 inheritance. The ancient Greek law awarded to the daughter only a dowry 
 or half of a son's portion unless she were sole heir.in which case she took 
 the entire property for her children. 
 
 With reference to primogeniture according to ancient Indian law see 
 Julius Jolly, Recht und Sitte. p. 79. Concerning the dowry rights and rights 
 of inheritance of the heiress in the law of the city of Gortyn see supra, sec. 15, 
 page 106, note 5. 
 
 1 B.G.B., sec. 1924, (3). 
 
210 SCIENCE OF LAW 
 
 The nearest relatives (above all, the parents and 
 children in mutual aspect) should not in any case be 
 passed over in testamentary disposition.' They should 
 be remembered at least with the smallest portion pro- 
 vided by statute — the so-called compulsory portion^ 
 {Pflichtteil) — so far as no statutory ground of dis- 
 inheritance' exists. The relatives who are in this manner 
 provided with a portion which cannot be denied them, 
 are called compulsory heirs or heirs of necessity (Not- 
 erben) . 
 
 ^ Roman Novel 115. 
 
 ^ Thus according to German law (B.G.B., sec. 2303), a descendant of the 
 testator who is excluded from the inheritance by testamentary disposal 
 may demand of the heirs a compulsory portion, that is half the value of the 
 statutory portion. The same right exists in favor of the parents and the 
 spouse under the same conditions. 
 
 3 B.G.B., sec. 2333. 
 
SYSTEMATIC CLASSIFICATION 211 
 
 SECTION 36 
 
 TESTAMENTARY SUCCESSION' 
 
 The voluntary methods of disposition of inheritances 
 at death recognized in legal systems include the follow- 
 ing:— 
 
 I. Wills, which are formal, unilateral acts by which 
 provision is made for an heir; or by which (at least 
 according to German law) a final disposition of an in- 
 heritance is effected.^ 
 
 According to form, wills may be distinguished as of 
 various kinds, as they are executed with greater or less 
 formality. According to the German Civil Code there 
 are: (a) ordinary wills which are made (1) either before 
 a judge or notary (sec. 2231), or (2) private wills, 
 written entirely by the testator stating the place where 
 and date when made and signed by his own hand (sees. 
 2231, 2247, 2248); and (6) extraordinary wills including 
 communal wills (Gemeindetestament) (sees. 2249, 2252), 
 wills of persons isolated [as by epidemic] (sees. 2250, 
 2252), of persons on board German ships [other than 
 war-ships and while outside a German port] (sec. 2251), 
 and military wills which may be made by persons in the 
 service of the imperial navy under particular statutory 
 provisions (Military Statute, sec. 44, Einf.G. z. B.G.B., 
 Art. 44). According to content, wills may be unilateral 
 or mutual, privileged and non-privileged, etc. Testa- 
 mentary disposal of property was originally unknown 
 
 ' Cf Sohm, Ittst., sec. 99; Salkowski, Inst., sees. 176-181; Heusler, Inst. 
 d. V. Privatrechts, sec. 194. 
 
 2 Cf. supra, sec. 15, III, b, a; B.G.B., sec. 2064. 
 
212 SCIENCE OF LAW 
 
 to the Germans and first came into use in Germany, 
 probably through the medium of the church. 
 
 II. Agreements of inheritance, which in the domain 
 of German law,' are created the same as other agree- 
 ments,^ by the concurrence of the wills of two or more 
 private persons. Their characteristic is that they deal 
 with the inheritance of property.^ 
 
 These agreements are distinguished according to 
 their objects as: contracts conferring rights of inherit- 
 ance (pacta successoria affirmativa which may be in- 
 stitutoria, suhstitutoria, restitutoria, or conservativa) , and 
 contracts renouncing an inheritance (pacta successoria 
 renunciatoria) . Of a similar nature are Erhverbruder- 
 ungen and Ganerbschaften [pacta confraternitas , or 
 agreements of the nobiUty providing for disposition of 
 an inheritance in the event that a family fails of a male 
 head]. 
 
 A legacy (legatwm sive fideicommissuni, which origin- 
 ally were different forms) is a testamentary disposal 
 of property (a delibatio hereditatis) which involves a 
 singular succession, and not a universal succession of 
 the property of the testator.* If the testator has made 
 provision for a legacy (which he might do by his will 
 concurrently with the nomination of his heir, or in an 
 agreement for a legacy, or in a special instrument called 
 by the Romans, codicilli), and if the heir enters the 
 inheritance, or does not renounce it, then he is personally 
 obligated^ to pay the legacy (Vermachtnis) to the 
 
 ' Such agreements were not known in the Roman law; they were even 
 prohibited. 
 
 ^ See supra, sees. 15. 23. 
 
 3 B. G. B., sec. 2278. 
 
 '^Cf. B.G.B.. sec. 2147. 
 
 " B.G.B., sec. 2174. The German Civil Code places the legatee simply 
 in the position of a creditor o£ the inheritance, and allows the heir the right 
 to deny satisfaction so far as the inheritance no longer extends. ( B. G. B., sees. 
 1990-1992.) 
 
SYSTEMATIC CLASSIFICATION 213 
 
 legatee {Fideiconimissar,legatarius), or perform whatever 
 other duty is provided for, in accordance with the 
 testator's disposal. 
 
 The Roman law obligated the heir to pay testamentary legacies only to 
 the extent that there remained to him at least a quarter of the inheritance 
 the so-called quarta Falcidia. See Gareis, B,G. B., p. 330, note 1. 
 
214 SCIENCE OF LAW 
 
 B. PUBLIC LAW- 
 
 SECTION 37 
 THE ELEMENTS OF PUBLIC LAW 
 
 The function of public law is the legal regulation 
 and protection of the dominant interests of the governing 
 social entity. It proceeds from the proposition that 
 the regulation and protection afforded by public law 
 are in their nature legal; that is, made effective by 
 means of command and prohibition operating on human 
 will. The dominant interests of the governing entity 
 do not rest simply on the protection of the law. They 
 require also the protection of the power and might of 
 the state and all its agencies. 
 
 The objects of this protection are dominant interests. 
 The state however, also has private interests. Its 
 private interests are such as are related to its fiscal 
 capacity, in the protection of which private law applies. 
 The dominant interests of the state relate to sovereignty 
 and legal independence. Its fiscal concerns are dependent 
 on, and subject to, private law. Legal independence, 
 sovereignty, and absolute dominion, which distinguish 
 the state {res publico) from all other social entities, are 
 protected and furthered not only by means of force 
 but also by standards of command and prohibition. 
 Only the standards will be here considered. Collectively 
 they make up public law. The dominant interests of the 
 state are exerted in a two-fold aspect: (a) the stability 
 of the state {Staatshe stand) , and (6) the ends of the 
 state. 
 
SYSTEMATIC CLASSIFICATION 215 
 
 A. With reference to the stability of the state the 
 following belong to its dominant interests: — 
 
 1. The interest of the state in its domain — ^free and 
 legal control over the territory occupied: territorial 
 sovereignty (Territorialhoheit) ; 
 
 2. The interest in free and legal control of persons 
 belonging to its territorial domain: sovereignty over 
 persons (Personenhoheit) ; 
 
 3. The interest in the control of things situate in, 
 or belonging to persons attached to, its domain: sover- 
 eignty over things {Sachhoheit) ; and 
 
 4. The interest of freely and legally intrusting 
 persons with the representation of its dominant interests : 
 official sovereignty (Amtshoheit) . 
 
 These interests must be recognized and legally estab- 
 lished if the state would accomplish any of its ends. 
 Therefore these interests may be designated as auxiliary 
 interests. 
 
 B. The dominant interests relating to the ends of 
 the state include: — 
 
 1. The interest of the governing community to exist 
 as a unity; accordingly, to be representative of unity 
 and to be recognized and considered as such {Reprdsen- 
 tationshoheit) ; 
 
 2. The interest in being able by a requisite number 
 of persons to exert by physical power the forcible 
 execution of its will, externally, and internally: military 
 sovereignty (Militdrhoheit) ; 
 
 3. The interest that its members shall live together 
 in a state of peace: juridical sovereignty (Justizhoheit) ; 
 
 4.. The interest that dangers threatening its stability 
 (that is, its constituent parts: territory and things, 
 people and officials) may be averted. Also, the interest 
 that certain enterprises necessary to its constituent 
 elements, and exceeding the power of individuals, may 
 
216 SCIENCE OF LAW 
 
 be carried out: its administrative interest or police 
 sovereignty (Polizeihoheif) ; 
 
 5. The interest to draw by sovereign right on 
 property^ existing within its domain and to apply the 
 necessary material means for carrying out the interests, 
 above mentioned; so far as these means are not of a 
 fiscal characber^ and therefore subject to private law: 
 sovereignty of taxation (Finanzhoheif) . 
 
 All of these primary and auxiliary interests are 
 determined by historically variant notions of the 
 objects of the state as such. They are represented by 
 the state through its essential sovereignty and absolute 
 independence. They are represented, however, in accord- 
 ance with the idea of law; not arbitrarily, but legally, 
 and within definite limits determined by law: that is 
 by statute, custom, and legal necessity (Rechisnot- 
 wendigkeit) . The limits by which the will of the state 
 determines itself, and by which this will is recognized 
 as a legal will, are the basis of public law and govern 
 its theory. 
 
 So far as the establishment of these limits deals only 
 with the interests of a single state in relation to its sub- 
 jects, public law in the narrow sense (Staatsrecht) arises. If 
 the interests of states among themselves are concerned, 
 and limitations over states by legal standards with pro- 
 tection of their common interests as such, then inter- 
 national law ( Volkerrecht) presents itself. 
 
 In consequence of these observations, the elements of 
 Staatsrecht are: — 
 
 1. Continuity of the governing social entity; 
 
 2. State interests derived from the ends of the state; 
 
 ' By means o£ direct and indirect taxes, duties, monopoly taxes, privilege 
 taxes, and licenses. 
 
 - For example, through administration o£ state lands, domains, state 
 forests, etc. 
 
SYSTEMATIC CLASSIFICATION 217 
 
 3. Independence and sovereignty arising from the 
 continuity of the state and the existence of state objects. 
 
 The elements of international law are: — 
 
 1. A plurality of governing social entities; 
 
 2. A recognized community of interests arising out 
 of man's social life ; 
 
 3. A uniform law for the governing entities derived 
 from their common equality.' 
 
 * The distinction between private and public law, see supra, sec. 14; 
 the elements of private law, sec. 15. 
 
218 SCIENCE OF LAW 
 
 SECTION 38 
 
 THE DIVISIONS OF PUBLIC LAW 
 
 From a consideration of the elements of public law 
 there arises the systematic division, public law of the 
 state {Staaisrecht) (sees. 39-53), and public law of states 
 among themselves (international law, sees. 54, 55). 
 
 State law classified on the basis of its most essential 
 interests consists of: — 
 
 A. Constitutional law, or the totality of. legal rules 
 through which the dominant interest of the state in its 
 continuity (Bestand) is legally secured: the state's 
 sovereign interest in its own existence; and 
 
 B. Administrative law, or the aggregate of those 
 legal standards by which the interest of the state in the 
 exertion of its activity, in the execution of its objects, 
 is legally defined and guaranteed: the state's sovereign 
 interest in its own activity (administration in the 
 widest sense). (C/. supra, sec. 14, III). 
 
 The stability of the state (A) implies or includes, the 
 constituent parts of the state (sec. 43), and the organiza- 
 tion of the state (sec. 44) ; from which the chief divisions 
 of constitutional law are derived. 
 
 The activity of the state {B) rests on a two-fold 
 division. First, the legally protected declaration of 
 public interests as legal advantages of the state by means 
 of establishment of standards, viz. legislation. Second, 
 the legally regulated, practical execution of all recog- 
 nized interests belonging, or necessary to, the state: 
 that is, administration of interests of the state, as dis- 
 tinguished from legislation.' 
 
 * See infra sec. 45. 
 
SYSTEMATIC CLASSIFICATION 219 
 
 An establishment of standards and administration of 
 interests, constitute the sum total of state activity.' 
 The interests, however, which are protected by the 
 erection of standards, and which are to be fostered 
 and promoted by a legally regulated administration,^ 
 are either: — 
 
 (a) Primary interests (sec. 37, B, supra) ; or 
 
 (b) Auxiliary interests (sec. 37, A, supra). 
 
 Among the primary interests of the state, the most 
 important in this connection, is the legal interest of the 
 state which relates to its juridical sovereignty. This 
 legal interest is served by legal standards which are 
 arranged under the following titles: — 
 Civil law (sec. 49) (burgerliches Recht) \ 
 Civil procedure (Zivilprozessrecht) (sec. 50) ; 
 Criminal law (Straf recht) (sec. 51) ; 
 Criminal procedure {Straf prozessrecht) (sec. 52) ; and 
 Administrative justice (Administrativjustiz) (sec. 53) . 
 
 ^ See infra, sec. 46. 
 ^ See infra, sec, 47. 
 
220 SCIENCE OF LAW 
 
 [FIRST DIVISION OF PUBLIC LAW] 
 
 PUBLIC LAW OF THE STATE 
 
 CHAPTER I 
 THE STATE AS SUBJECT OF STATE INTERESTS 
 
 SECTION 39 
 
 STATE LAW— GENERAL PART 
 (N attire of Getter al and Particular State Law) 
 
 State law (public law in a narrow sense) is the totality 
 of legal rulecj by which the dominant interests of the 
 state (that is to say, the interests of the state to have an 
 existence and be dominant as such) are legally defined, 
 and protected by means of standards. 
 
 Every governing community or state, has a state 
 law peculiar to itself. It has at least, in substance, a 
 constitutional law. Every governing community may 
 be definitely distinguished from every other governing 
 community, among other things, by its state law.' 
 
 The variations of state law among the several states 
 are of greater importance than the differences of private 
 
 * Cf. Carl Binding, Deutsche Staatsgrundgesefze in diplomatisch genauem 
 Abdrucke (Leipzig, Wilh. Engelmann, 1892-1897, 10 Hefte) ; Felix Stoerk, 
 Handbuch dcr deutschen Verfassungen (the present constitutional law of the 
 German Empire and its confederated states — Leipzig, Duncker u. Humblot, 
 1884, — this work contains the complete and accurate statutory text) ; Paul 
 Laband, Das Staaisrecht des Deutschen Reiches, Tubingen, 4th ed., 1901: 
 (this work not only exhaustively discusses German legal standards, but also 
 explains numerous portions of general state law from new points of view, 
 with original commentary of great import); also, see the literature of general 
 and particular state law, in Heinrich Marquardsen's collaborated work, 
 "Handbuch des offenUichen Rechts der Gegenwart in Monographien" (p'rie- 
 burg i. B. and Tubingen, 1883), from which foundation followed three addi- 
 
SYSTEMATIC CLASSIFICATION 221 
 
 law among them. Consequently a transfer of the 
 public law from one state to another is much more 
 difficult than a similar reception of civil standards. A 
 comparative or systematic consideration of the varia- 
 tions of public law of different states is not only possible, 
 but necessary. It is the guide of general public law, 
 which is the systematic review, or theory, of those legal 
 rules through which the various states legally secure 
 representation of their sovereign interests in legislation 
 and administration. 
 
 This theory (so-called general public law)* is based 
 on the particular state law (besonderes Staatsrecht) 
 of individual states, and forms a part, not only of the 
 system of legal science, but also of the science of the 
 state^ (Staatslehre) . The latter does not regard the state 
 in the legal limitations and legal security of its stability 
 and its pursuit of interests. This science considers 
 the state simply as a political power in the totality of 
 its relations. The science of the state, therefore, is 
 concerned with the facts of the origin and evolution of 
 the state as an organization made up of land and people.* 
 
 tional volumes dealing with the public law of the various divisions of the 
 German Empire, andother countries. [The detail of these volumes is omitted 
 in this translation.] 
 
 Wi^h reference to German state law, see in addition to the works men- 
 tioned: Hermann Schulze, Lehrbuch des deutschen Staatsrechts, Bd. I, 1881; 
 Bd. II, 1886; Ph. Zorn, Das Staatsrecht des deutschen Reiches; Bd. I, 1880; 
 Bd. II. 1883 (2d ed., Bd. I, 1895; Bd. II, 1897) ; A. v. Kirchenheim, Lehrbuch 
 des deutschen Staatsrechts, 1887, also note literature cited in the same work 
 pp. 96, 97; Gg. Meyer, Lehrbuch des deutschen Verwaltungsrechts, Part I, 
 1883, Part II, 1885; Adolf Amdt, Reichsstaatsrecht (1900). and Staatsrecht 
 und Veruialtungsrecht in Birkmeyer's Em., p. 741 and literature there noted, 
 particularly p. 763. 
 
 * For the literature see Gareis, AUgemeines Staatsrecht in Marquardsen's 
 Hdbch. d. offentlichcn Rechts, Bd. I, p. 3. 
 
 ^ Robert v. Mohl, Enzyklopddie der Staatswissenschaften, 2d ed., 1872, 
 sec. 9; v. Holtzendorff, Rechtsemyklopadie, p. 1010; Held, Grundsiige des 
 allgem. staatsrechts oder Institutionen des offentlichcn Rechts (Leipzig, 1868) ; 
 Bluntschli, Ceschichte des allgem. Staatsrechts und der Politik (1869); E. 
 Frantz, Die Naturlehre des S'aats als Grundlage der Staatswissenschaft (1870). 
 
 ^ Public statistics is also to be named here. Cf .Robert v. Mohl, op. cit., 
 sees. 112-114. 
 
222 SCIENCE OF LAW 
 
 It concerns itself with the objects' of the state, its 
 ethical significance,^ its economic problems,' the con- 
 ditions essential to life, its financial side, its devolution, 
 and the methods and consequences of its destruction. 
 It also deals, concurrently with these inquiries, with a 
 comparative examination of state law; and to this 
 extent, general state law is a part of the science of the 
 state. 
 
 The notion of the state as well as the objects and the 
 theory of its genesis may be derived from the science 
 of the state. Every state is a sovereign community. 
 This idea involves two elements: the community is 
 one of land, — the territorial domain; and it also con- 
 sists of persons, — the subjects of the state. Sovereignty 
 signifies a free and independent activity based on a 
 self-assertive choice of interests; as well as the means 
 of expressing these interests against entities other than 
 the state, by authoritative force. The notion of sover- 
 eignty, therefore, also implicates two elements: legal 
 independence and legal organization. That is to say an 
 organization of superior and inferior members, having 
 for its object the realization of the will and power of 
 the state in an independent expression of its interests. 
 
 ^ See infra (sec. 40), the teleology of the state. 
 ^ Doctrine of public morals, see v. Mohl, op. cit.^ sees. 79-85a. 
 ^ Political economy within the state and business activities of the state, 
 see sec. 41, infra. 
 
SYSTEMATIC CLASSIFICATION 223 
 
 SECTION 40 
 
 THE OBJECTS OF THE STATE" 
 
 {Teleology of the State) 
 
 Philosophically, there are two opposed viewpoints 
 in the conception of the ends of the state. According 
 to one notion, that of Kant, the state is designed solely 
 to afford legal protection to its members in an equal 
 degree. Its purpose is that each may enjoy the greatest 
 possible freedom, solely through an equal freedom of 
 all others. This is accomplished by a limitation upon 
 the spheres of activity of all members of the state. 
 Such a state, limited solely to a protective activity, 
 is called a Rechtsstaat, in a narrow sense. In an economic 
 sense, it is known, also, as the Manchester state, the 
 free-trade state, or the laissez-faire, laissez-aller 
 state. In this state, individual activity is the chief 
 thing. Individual activity is the basis of the advance- 
 ment of civilization and the progress of humanity. 
 According to the theory, this advancement can only 
 be promoted by keeping level and open the road upon 
 which individual activity is exerted. 
 
 A variety of welfare-theories stand opposed to the 
 theory of the Rechtsstaat. They have in common, that 
 they do not regard the state as having simply a negative 
 legal function, or as only making a way for individual 
 activity. According to these theories, the state also 
 has an end to attain by positive action. This object 
 is perceived as public welfare (salus publica) . Sometimes 
 this end is regarded more in the material sense ; as by 
 
 ' R Gneist, Der Rechtsstaat und die Verwaltangsgeschichte in Deutschland, 
 (see p. 29). 
 
224 SCIENCE OF LAW 
 
 Fichte and others. Sometimes it is regarded as the 
 dominion of moral law; as by Hegel and others. 
 
 Historically considered, public welfare is always 
 an end of the state. There has never been a pure 
 Rechtsstaat. Even in the narrowest limitation of the 
 purpose of the state required by the Rechtsstaat, a 
 recognition and realization of public welfare are necessary 
 to the law of sovereignty. "^ The furtherance of general 
 welfare must be present even in the Rechtsstaat. What 
 is to be understood by the expression, "general welfare," 
 is, however, a matter of the greatest diversity of opinion. 
 Pure reflection and simple abstraction will not afford 
 an answer having any political practicality. Considera- 
 tion must be given to all the factors of influence on 
 civilization, — to the Volksgeist, to history, to the 
 character of the land occupied, and the disposition of 
 the people. The sphere of activity of the most ancient 
 states appears to have been one narrowly limited; even 
 when it went far beyond the confines of a simple Rechts- 
 staat. Every effort to define the modern function of the 
 state abstractly, is involved in political controversy; 
 if the meaning of "welfare" is to be sought by reference 
 to a particular state. 
 
 Considered historically, legal protection and military 
 defense appertain to the welfare of every state. Even 
 in this limitation of the welfare of the state, there is 
 much difference of opinion as to the measure of direct 
 and proper activity of the state in affording legal pro- 
 tection; and as to the measure of claim that the indi- 
 vidual may have in matters of military defense. It 
 follows that church polity, and economic theory of the 
 state, become the peculiar justing place for the con- 
 troversies of state teleology. 
 
 ' For proof of this see R. Gneist, op. cit., p 32, also Garels in Hartmann's 
 Zeitschrift j. d. offentl. Recht., Bd. Ill (1S77), p. 137. 
 
SYSTEMATIC CLASSIFICATION 225 
 
 The constitution of the German Empire of April 16, 
 1871 specifies in its introduction as the object of the 
 permanent Bund creating the Empire: the protection 
 of the imperial domain, the protection of the laws, and 
 the furtherance of the welfare of the German people. 
 
226 SCIENCE OF LAW 
 
 SECTION 41 
 THEORIES OF THE STATE 
 
 The so-called theories of the state relate to the objects 
 of the state; to the range and intensity of the activity 
 of the state as compared with the activities of private 
 persons; and to the origin of the state. 
 
 A. A consideration of the objects, or teleology 
 of the state, involves the distinction above discussed, 
 between the Rechtsstaat and the welfare state. 
 
 B. A consideration of the relation between state 
 and private activities (that is of the community and 
 the individual) involves the following distinctions: — 
 
 (a) The Rechtsstaat; that is, that form of state 
 which permits the widest scope to private activity, 
 and most narrowly restricts the activity of the state. 
 The necessities of community life are regarded in this 
 form of state purely as private matters to be fostered 
 and protected solely by private law. 
 
 This state is based on the exalted conception, that 
 moral conduct has a value and thrives only in freedom; 
 and that in moral conduct, alone, the complete further- 
 ance of civilization and mankind is possible. The 
 economic conception of this state requires the smallest 
 possible restriction of egoism in order that it may 
 attain its ends in the greatest possible degree from 
 every standpoint. This leads to the extreme form of 
 the Manchester state and the pure laissez-faire, laissez- 
 aller state, in which, with the greatest equality of all, 
 the protection of individuals (especially the economic- 
 ally weaker) diminishes to the same extent that a 
 
SYSTEMATIC CLASSIFICATION 227 
 
 limitation upon all persons, in the interest of freedom, 
 is decreased. 
 
 (6) The police state (Polizeistaat) , or the state which 
 regards the necessities of community life, essentially 
 and in the first degree, as necessities of the dominant 
 community. In this state, the activity of the state is 
 accordingly greatly extended. Private enterprise is 
 at all times overshadowed in detail, and controlled, 
 protected, and supervised; with the result, that the 
 discretion, as well as the power of the dominant social 
 entity, universally^ overrules the judgment and force 
 of the individual. 
 
 The extreme form of this conception leads, in the 
 domain of religion, to the strict church state [Staats- 
 kirchentum in which the church and state are coincident: 
 either with the worldly element predominant as in the 
 Roman Empire and Greece, or with the spiritual element 
 foremost as in the Judaic state] varying with every 
 deviation of creed. From the economic side, however, 
 this form of state leads to socialism^ in which private 
 enterprise is considered, directed, and controlled, 
 simply as a part of social activity; and social activity 
 is regarded as the activity of the state. 
 
 (c) The Kulturstaat (culture state) ; the theory of 
 which is the mean between the Rechtsstaat (legal state) 
 and the police state. It is now the dominant form. 
 It proceeds from the limited basis of the Rechtsstaat; 
 but does not exclude the conception and activity of the 
 police state, in so far as maybe necessary, in the interest 
 of attaining its cultural ends. Where a necessity arises, 
 requiring satisfaction (which necessity the community 
 should not suffer to remain unsatisfied) which exceeds 
 the intelligence and power of individuals (but which 
 
 ^ Where this has clearly been the case, the activity of the state has un- 
 deniably been exerted from every side, as in autocracies. 
 
 ' Cf. Gareis in Annalen des Deatschen Retches (1879), pp. 289, 290, 291. 
 
228 SCIENCE OF LAW 
 
 does not transcend the power or intelligence of the 
 communiby), then in such case, occasion for positive 
 interference on the part of the state presents itself. 
 
 Whether in those cases, in which a necessity is actually 
 satisfied through the action of individuals, or by free 
 social activity, a better, more complete, or more secure 
 satisfaction could be accomplished by state activity, 
 and whether the intrusion of state activity should be 
 permitted, and private or social activity should be 
 denied, are questions to be determined according to the 
 particular case. 
 
 So far as an abortive satisfaction of necessity affects 
 only the individual, or on ethical grounds appears as 
 a lesser evil as compared with the mighty interference 
 of the ' governing community, there the state may 
 refrain. But where insufficiency of satisfaction opposes 
 an interest of the community, there the activity of the 
 state is indicated as advisable. 
 
 C. Theories of the state as relating to its origin 
 deal with the question, whether the state arose out of 
 the family; whether out of a relationship based on 
 force (tyranny), of which the state as evolved from a 
 land ownership relation (the patrimonial state) appears 
 as a derivative; or whether it arose out of contract as 
 postulated under variant notions by Hobbes, Locke, 
 and Jean Jacques Rousseau. 
 
 History, without furnishing the conclusive particulars 
 of the first and most remote origin, shows states which 
 have sprung from each of these three sources. The 
 patriarchal and kindred state arose out of the family. 
 The hero and retainer state, like the patrimonial state, 
 developed from the personal supremacy of a dominant 
 chieftain. Modem confederated states, like the German 
 Empire, owe their origin directly to agreement. 
 
SYSTEMATIC CLASSIFICATION 229. 
 
 Associated with theories of the state are the theories 
 regarding the nature of confederated states; the dis- 
 tinctions between a personal union [e.g., Luxemburg 
 and Holland up to 1883] and a real union [e.g. Austria 
 and Hungary]; the differences between unitary and 
 composite states, and imperial and federal states; as 
 well, also, as the theories relating to the question of the 
 necessity or divisibility of sovereignty. 
 
230 SCIENCE OF LAW 
 
 CHAPTER II 
 
 THE LAW GOVERNING THE ACTIVITY OF THE 
 
 STATE 
 
 SECTION 42 
 
 THE ORGANS OF EXPRESSION OF STATE POWER 
 
 • The state is the governing social entity. It rules 
 over all its parts, members, and constituent elements, 
 in order that it may supremely represent its interests; 
 that it may make its will effective as the will of the 
 community; and in order that this will may be carried 
 out as the will of the community. In other words its 
 activity is directed to the end that interests may be 
 recognized, willed, and enforced as social interests. 
 The dominant community, accordingly, has juristically 
 a will — ^the will of the state. This will is of course, a 
 legally independent or sovereign will. It is accom- 
 panied by power — the might of the state — which is 
 likewise legally independent and sovereign. Sovereignty 
 is essential to the state. It subsists in legal independence 
 and a legal possibility of determination and establish- 
 ment of what interests the state will regard and prose- 
 cute as its interests agreeable to the nature of this 
 independence.' History shows that the sovereignty of 
 states not infrequently has become restricted, and that 
 it is to be regarded as susceptible of limitations; not- 
 
 ^ Cf. Gareis, Allgemeines Staatsrecht in Marquardsen's Handbtich des 
 offentUchen Rechts, sec. 10. 
 
SYSTEMATIC CLASSIFICATION 231 
 
 withstanding the theoretical contradiction involved in 
 the cutting down of sovereignty.^ 
 
 This sovereign will and sovereign power belong to the 
 state as the actual holder and bearer of governmental 
 dominion. In order, however, to be able to express this 
 will and power, the governing community requires 
 certain organs for such expression. These organs come 
 into existence originally as organs of the state with 
 the same instinctively operating natural necessity, as 
 the state itself originally arose and became dominant. 
 It is possible that an organ of the state, such as the 
 chief organ, the head of the state, may have been in 
 existence before the state itself, and that the elements 
 of the state may have grouped themselves and crystal- 
 lized around this head. The hero, the retainer, and 
 the patrimonial states are distinct proofs of this action. 
 
 The organs which the state requires to survive, that 
 is, to realize and represent its interests, and in order 
 to govern: that is, the organs requisite for the legally 
 independent recognition and representation of its 
 interests: or otherwise stated, the organs which apper- 
 tain to an expression of the will and the power of the 
 state, are: — 
 
 1. The head of the state; 
 
 2. The participating members^ of the state who 
 in an independent manner, cumulatively, or collectively, 
 express the dominant will of the state concurrently 
 with the head of the state; or who autonomously' 
 occupy the place of the head of the state in the expression 
 of governmental dominion; 
 
 ' This matter is the subject of much controversy. See Laband, Brie, 
 Gg. Meyer, Hanel, Dahn, v. Holtzendorff, Jellinek, Rosin, M. Seydel, Trieps, 
 and Ph. Zom. For the literature see Gareis, op. cit., pp. 31 32, 104. 
 
 ^ Thus, popular representation in constitutional monarchies of the present 
 day, according to the provisions of their constitutions. 
 
 ^ Thus, autonomous, provincial, and colonial governments. 
 
232 SCIENCE OF LAW 
 
 3. The participating members and forces of the 
 state subordinate to the head of the state, ia part 
 formally, and in part, also, substantially dependent on 
 the head, of the state, in the expression of dominion.^ 
 
 With reference to the head of the state: the most 
 obvious and powerful expression of unity of the will and 
 power of the state is seen in the oneness of the state 
 head. It is found in the most conspicuous manner where 
 the head of the state is a physical person who is the organ 
 of expression and execution of the will of the community 
 with reference to all matters of state sovereignty. Such 
 is a monarchy. Necessarily, there attaches to the 
 head of the state the right of dominion and government, 
 including the most important right in public law, — 
 the right to represent the state in all its functions, jus 
 reprcssentationis omnimodcB. In addition, there may 
 attach to the head of the state as a matter of public law, 
 the so-called right of majesty — the supreme privilege 
 of personal irresponsibility and inviolability. 
 
 There may be distinguished, according to the unitary 
 or plural character, and the accountability or un- 
 accountability, of the head of the state, as well as the 
 existence or lack of constitutional control of public 
 acts of the head of the state: — 
 
 I. Unitary government: 1, monarchies: (a) autoc- 
 racies,^ (b) constitutional monarchies; ^ 2, monocratic 
 republics: (a) presidential republics,* (6) consular 
 republics,^ and (c) dictator republics." 
 
 ^ Thus, the highest councilors of the head of the state, the ministers, and 
 the courts; all popular magistrates, all other officials, authorities, and officers 
 down to the lowest executive organs of the will of the state. 
 
 ^ Thus, the Russian Empire [1905]. 
 
 ^ Cf. the constitution of the kingdom of Prussia (Jan. 31, 1850), and of 
 Bavaria (May 26, 1818). 
 
 * Cf. the constitution of the republic of France (Feb. 25, 187.'i). 
 
 ^ Cf. the constitution of the republic of Rome. See Mommsen, Rom. 
 Staatsrecht. 2d ed., Bd. II, p. 74. 
 
 ^ This calls to mind the institution of government in ancient Rome of the 
 time of the republic: See Mommsen, Rom. Staatsrecht, 2d ed. II, p. 159. 
 
SYSTEMATIC CLASSIFICATION 233 
 
 II. Plural government: 1, pleonarchies : (a) co- 
 regencies,' (b) supreme councils;^ and 2, pleonocratic 
 republics.' 
 
 The participation of independent agencies, con- 
 currently with the head of the state, in the government 
 of the state, may be international or national. Inter- 
 national participation occurs when an officer of another 
 state, independent of the head of the state of his resi- 
 dence (such as a consul) has a share in the expression 
 of government, by reason of treaty or convention. 
 
 National participation occurs in a highly diversified 
 form, according to the national elements involved. 
 It varies from the simple popular assembly such as the 
 Roman comitia, the thing, and the Lands gemeinde, up 
 to the unicameral and bicameral systems of modern 
 constitutions,* and the referendum^ of the Helvetian 
 league. The part taken in government by the head of 
 the state is, in all cases, distinguishable from that of 
 popular representation, in that there devolves upon the 
 former, initiative, leadership, and direction in govern- 
 ment. The function of the head of the state, therefore, 
 essentially differs from that of popular representation. 
 State headship implies stability, continuity, and a 
 profound influence on social life. Popular representa- 
 tion involves substantially only a right of acquiescence. 
 
 * Thus, the joint emperors in the Roman Empire. See Mommsen, loc. cit., 
 II, p. 1089. 
 
 ^ The head of the state in confederated states, that is the personified 
 association of states, may be reckoned here. The juristic unity of the con- 
 federated heads of the various states, is the bearer of legal sovereignty. 
 Accordingly, the federal council of the German Empire is the representative 
 of legal sovereignty. See Zom, Staatsrecht des Deutschen Reiches, Bd. I, 
 pp. 90, 92. The right of majesty and the praesidial right belong to the king 
 of the Prussians in the German Empire. See Zom, loc. cit., sec. 7. 
 
 ' Cf. Gareis, Allg. Staatsrecht, sec. 12, pp. 36-40. 
 
 ■* With reference to the representation of the German people in the Reichs- 
 tag see Imperial Constitution, art. 20; Zom, Staatsrecht, sec. 8. 
 
 * [On popular participation in law-making, see Lobingier, The People's 
 Law (The Macmillan Co., 1909).] 
 
234 SCIENCE OF LAW 
 
 The organs' of government subordinate to the head 
 of the state participate by virtue of the official sover- 
 eignty belonging to and wielded by the head of the 
 
 state. ^ 
 
 ^ With reference to imperial officers see Zom, op. cii., sees. 9. 10. 
 ^ See sec. 37, supra, and sec. 47, A, 4, infra. 
 
SYSTEMATIC CLASSIFICATION 235 
 
 SECTION 43 
 
 THE METHODS OF EXPRESSION OF THE POWER OF 
 THE STATE 
 
 I. The totality of state activity, or expression of 
 governmental dominion, is the representation of in- 
 terests of the state. For this, the dominant social 
 entity chiefly has its being; and in this, it has its 
 strength. This activity consists of, — 
 
 (a) Legislation; and 
 
 (6) Administration, in the widest sense. 
 
 (a) Legislation is that activity of the state by which 
 interests of the state are declared as such; by which 
 they are placed under the legal protection of a standard; 
 and by which they are elevated to legal advantages. 
 This elevation of interests to legal advantages arises 
 from standards; — ^through commands and prohibitions 
 established under the sovereignty of the state. The 
 content of these standards is not necessarily always 
 expressed by the state itself. Their general authority 
 and validity, however, must always be created by the 
 authority of the state, without which law cannot exist. 
 The nature of legislation and the .kinds of laws have 
 already been considered.' 
 
 (b) The whole remaining (that is non-legislative) 
 activity of the state is called administration in the 
 widest sense. It is that activity which proceeds from, 
 or perhaps is inspired by, the head of the state. At any 
 rate it is either nominally or actually accompanied by 
 
 ^ See supra, sec. 3, III; sec. 8 and sec. 11. Cf. Gareis, Allgem. Staaisrecki, 
 sees. 43, 44 (pp. 116-121) in Marquardsen's Handbuch des offentl. Rechts, 
 Bd. I. Concerning legislation in the German Empire see Zom, op. cit., pp. 
 238, 407. 
 
236 SCIENCE OF LAW 
 
 an exercise of goverrmental dominion in the realization 
 of the ends of the state, within the scope of legislation. 
 The most diverse kinds of regulations appertain to 
 this exercise of dominion, as determined by considera- 
 tions of politics, expediency, technical knowledge, etc. 
 It may consist in the sending out and reception of 
 ambassadors, the making of international agreements, 
 the drafting and training of military recruits, the or- 
 ganization and direction of armies, the erection of forts 
 and the planning of strategic operations; the erection 
 of court buildings, the appointment of judges and other 
 officers of the administration of justice, the pronounce- 
 ment of judgments, the execution of judgments by 
 force, the imprisonment and execution of offenders; 
 the working-out of plans of finance, the making of loans 
 by emission of state obligations, the levy of taxes, 
 the management of forests and other landed property 
 of the state, the control of boundary matters, and the 
 imposition of duties; the conduct of examinations for 
 physicians, and a variety of officers, the establishment 
 of hospitals, the promotion of industrial and other 
 expositions; and a manifold number of other acts for 
 the attainment of the ends of the state, which lie within 
 the wide scope of state administration. This activity 
 is not simply that of execution of legislation, but it may 
 proceed independently to the extent that legislation 
 has not imposed restrictions upon it.' 
 
 Administration, as opposed to legislation, embraces, — 
 
 (a) The administration of justice ; 
 
 (b) Administration in the narrow sense; that is, 
 the practical expression of governmental dominion in 
 the realization of the ends of the state, apart from the 
 administration of justice. Its object is the furtherance 
 
 * The relation between legislation and administration, see Gareis, op. ciUt 
 p. 117. 
 
SYSTEMATIC CLASSIFICATION 237 
 
 of public -v^elfare in a variety of ways, within the limits 
 of law according to the requirements of expediency and 
 necessity; thus, military administration, finance, police, 
 etc., and 
 
 (c) Administrat-ve justice (sec. 52). 
 
 II. From another point of view the kinds of ex- 
 pression of state dominion may be distinguished, accord- 
 ingly as the state represents its own interests alone and 
 independently, as a self-contained unitary state; or as 
 it in part, at least, represents interests in combination 
 with other states in a more or less intensive connection 
 with such other states. This pursuit of interests may, 
 therefore, be that of, — 
 
 (a) An isolated unitary state; 
 
 (b) A combination of states united in international 
 agreement ; or 
 
 (c) A constitutional combination of confederated 
 states . 
 
 (a) When a unified and exclusive governmental 
 power is exercised for the objects of a community in 
 the representation of all the necessary, direct or indirect 
 interests of this concrete governing community, then 
 this community may be recognized as a unitary state. 
 Its divisions, even when they enjoy a certain autonomy, 
 are not therefore states. But one state power, and but 
 one state will are operative among these various divisions. 
 
 (b) A joint pursuit of interests conformably to agree- 
 ment, as in the case of alliances, confederations, and 
 leagues, does not legally affect the organic law of the 
 separate states. Such combination presents a common 
 representation of interests of the confederated states; 
 just as in the case of associations in private law, where 
 there is a mutual independence of personality. The 
 interests in common, thus prosecuted by agreement, are 
 
238 SCIENCE OF LAW 
 
 without exception, the individual interests of the 
 confederated states. 
 
 (c) In compound states (unions), however, interests 
 are pursued which are not necessarily interests of the 
 individual members of the compound state, but are 
 interests of the aggregated state itself. This, at any 
 rate, is the case in the most important form of union — 
 the Bundesstaat.^ 
 
 The present German Empire, the Swiss confederacy, 
 and the United States of North America are examples 
 of the Bundesstaat. The nature of the Bundesstaat, 
 as it occurs in the German Empire, does not exclude the 
 existence as actual states of the members which com- 
 pose it, in the strict sense of the term state ;' inasmuch, 
 as the first essential of the notion of state. — sovereignty, — 
 appears in these members, and, in fact, in an independent 
 character. The sovereignty of the king of the Prussians 
 is not a sovereignty derived from the empire, but is 
 independent.^ Likewise is the sovereignty of the king 
 of Bavaria, and the remaining German princes. The 
 
 * Concerning the German Empire (which is of this form) according to the 
 constitution of April 16, 1871, see supra, sec. 8, page 71. note 1; sec 11. 
 page 85, note 1, and sec. 39, note 1. 
 
 ^ Contrary view: Zom, Das Staatsrecht des Detttschen Reiches, Bd. I (2d 
 ed.), p. 84. 
 
 ' Contrary view: Zom, op. cit., p. 80, who arrives at the conclusion, from 
 the legal character of the empire, that the residuary legal spheres of the 
 individual states are to be considered as derived from the empire. Hanel, 
 Staatsrecht des Deutschen Reiches, argues against the derivation of the law 
 of the empire from that of the individual states. The establishment of the 
 empire, however, is certainly referable, historically, to the contractual 
 abandonment of the rights of the separate states ; even though it be admitted, 
 that out of this renunciation, there arose a new, and sovereignly independent 
 law in the sovereignty of the empire. The historical origin of the German 
 Empire; the devolution of the old empire which existed from the Carolingian 
 period up to 1806; the existence of the German Bund (1815-1866); the 
 establishment of the North German Federation; and finally the extension of 
 the last into the empire by means of the imperial constitution of April 16, 
 1871, are treated in the works on Germ.an state law. Cf. Laband, St. R. des 
 Deutschen Reiches (4th ed.) ; Amdt, in Birkmeyer's Bnz., p. 768; and see the 
 literature noted in sec. 39, supra. 
 
SYSTEMATIC CLASSIFICATION 239 
 
 inter-independence of the states and the empire among 
 themselves arises logically out of the limitation of 
 sovereignty. The empire and the separate states limit 
 themselves as to the things in which they each recognize 
 the competence of the others. 
 
 III. The legal standards by means of which the 
 various kinds of state expression of governmental 
 dominion derive their legal independence (whether in 
 legislation or administration, and whether in unitary 
 or composite states) — ^that is to say, the standards for 
 a legal exertion of the force of the state — are divided 
 into (a) constitutional law (sec. 44), and (6) ad- 
 ministrative law (sec. 45). 
 
240 SCIENCE OF LAW 
 
 SECTION 44 
 CONSTITUTIONAL LAW 
 
 (State Law in the Narrow Sense) 
 
 "Constitutional law" or "state law" stricto sensu 
 means those standards through which the fundamental 
 stability of the state and its organs is legally regulated 
 and protected. Constitutional law therefore embraces : — 
 
 1 . The legal standards concerning the position of the 
 head of the state as the highest organ of the state. This 
 means the legal standards relating to the stability of 
 the head of the state; the acquisition and loss of the 
 attribute of state headship; the fundamental legal 
 principles concerning the governmental dominion of the 
 head of the state; the law of government and majesty;' 
 and the primary legal rules relating to the exercise of 
 governmental dominion in general. Thus, personal 
 command, ministerial accountability, divided or con- 
 stitutionally limited exercise of governmental dominion 
 — the official sovereignty of the ruler; 
 
 2. The legal standards governing the participants 
 in the exercise of government, particularly in national 
 participation. This embraces the standards relating 
 to general popular representation in government: 
 provincial estates, and parliaments, and their stability, 
 objects, rights, and duties. It includes also the standards 
 
 ^ The working-out and basis of these rights are highly diverse: see on one 
 hand, the rights of chieftainship in lower civilizations, in Bauer, Die Straf- 
 rechtspHege uber die Eingeborenen in den deutschen Schutsgebieten (Archiv. 
 f- offenil. R., Bd. XIX, p. 44) ; on the other hand see the theocratic concep- 
 tion of these rights among the ancients as in the Code of Hammurabi (sec. 2, 
 note 1, supra). 
 
SYSTEMATIC CLASSIFICATION 241 
 
 relating to participation in the exercise of government 
 by means of special popular representation as in the 
 case of provincial assemblies, and in other forms of 
 special popular representation ; as where the lay element 
 has a governmental activity in various ways co-ordi- 
 nately with the governmental element; 
 
 3. Legal standards for substitution of the head of 
 the state; thus in the case of autonomous corporations, 
 self-governing communities, and vicegerental govern- 
 ment; 
 
 4. The objects of government, and the legal limits 
 of government with regard to its objects: — 
 
 (a) Persons, particularly subjects of the state 
 (^ Untertanen) ,^ their constitutional rights ; communities, 
 and the law of communities; 
 
 (b) Things, and in particular, the territorial domain; 
 
 5. The legal guaranties of the constitution. 
 
 Constitutional law, as opposed to administrative law,^ 
 does not deal with the consideration and legal limitation 
 of the activity of the organs of the state. The prevailing 
 popular and doctrinal usage is otherwise. According 
 to this usage, legislation, is legally involved in con- 
 stitutional law. Constitutional law includes, in its 
 narrow sense, according to modern usage, in the con- 
 sideration of the functions of the organs of legislation, 
 the details of these legislative organs in the ascertain- 
 ment of the requisites of laws. The legal standards 
 applicable to the other governmental groups — of ad- 
 ministration in the widest sense — ^belong to constitu- 
 tional law only in so far as necessary to distinguish 
 
 * Legal standards must, in every instance, determine the matter of the 
 acquisition and loss of nationality. Cf. Emil Szanto, Das griechische Bu-,geT- 
 rechi (Freiburg i. B., 1892). Concerning German nationality see imperial 
 statutes of June 1, 1870, and August 16, 1896. 
 
 2 See sees. 14, 38, supra, and 45, infra. 
 
242 SCIENCE OF LAW 
 
 the organs of administration from the organs of legisla- 
 tion; or so far as they establish limits in the interest of 
 the constitutional rights of persons.' 
 
 ^ Cf. Georg Meyer Lehrbuch des deutschen Verwaltungsrechis, sees. 1, 2; 
 A. von Kirchenheim, Einfuhrung in das Verwaltungsrecht (1885), pp. 3, 21 
 
SYSTEMATIC CLASSIFICATION 243 
 
 SECTION 45 
 
 ADMINISTRATIVE LAW 
 
 The aggregate of the activities of the state, as already 
 shown,' consists of legislation and administration. Both 
 these groups of activities are governed by legal stan- 
 dards. The standards relating to legislation are con- 
 sidered in connection with constitutional law, as pointed 
 out in the last section. Administrative law, therefore, 
 covers the entire remaining bulk of legal standards relat- 
 ing to the activity of the state in public interests. These 
 standards are not such as deal with the declaration of 
 state interests. They relate to the actual administra- 
 tion of these interests. 
 
 In this sense, administrative law embraces the legal 
 standards for the administration of every sovereign 
 right of the state. It includes juridical sovereignty, 
 military sovereignty, fiscal sovereignty, representative 
 sovereignty and police sovereignty. It must, however, 
 be borne in mind, that the administration of these vari- 
 ous sovereign rights does not depend entirely on legal 
 standards. Even juridical sovereignty is not admin- 
 istered purely according to legal standards. Frequently 
 it is governed by considerations of expediency and other 
 influences. These considerations preponderate in the 
 remaining departments of administration.^ This cir- 
 cumstance may also furnish the basis of distinction 
 between , — 
 
 (a) Administration of justice ; and 
 
 ' Sees. 38, 43, supra. 
 
 ^ The established rules of political economy have a legislative and executive 
 application in all internal administration. See sec. 43, 1, b, supra, and sec. 
 46, infra. 
 
244 SCIENCE OF LAW 
 
 (6) Administration, in the narrow sense, or the 
 carrying-out of the sovereignty of the state, exclusive 
 of the function of administration of justice. A further 
 distinction is still possible of administration in the 
 narrowest sense, — an internal administration of so-called 
 police or administrative sovereignty' ( Verwaltungsho- 
 • heit) . 
 
 Administrative law, in contradistinction to legisla- 
 tion, is the totality of legal standards through which the 
 actual representation of interests recognized as belong- 
 ing to the state, or generally to be furthered by the state, 
 is legally defined and therefore protected, secured, and 
 also restricted. These limitations, in part, are found in 
 constitutional law, and in particular in the constitu- 
 tionally guaranteed rights of subjects of the state. ^ 
 
 ' See supra, sec. 37, B, 4. 
 
 ^ In lieu of further discussion of the notions "'administration," and "'ad- 
 ministrative law," it will be sufficient to refer to the propaedeutic work of 
 A. V. Kirchenheim, EinfUhrung in das Verwattungsrecht, including an outline, 
 Stuttgart, 1885. In the definition of these ideas, there will also be found 
 highly valuable, A. v, Kirchenheim's Verwaltungsrecktspraktikum, Stuttgart, 
 1883. Further on this subject see G. Schonberg, Handbuch der politischen 
 Oekonomie, Bd. II (Tubingen, 1882) and in particular part three: " Ver- 
 waltungslehre," by Gustav Rumelin, Georg Meyer, Ludwig Jolly, and Edgar 
 Loningr L. v. Stein (1867-1869); by the last author, Handbuch dei 
 Verwaltungslehre, (2d ed. Stuttgart, 1876); see also v. Inama-Stemegg, 
 Vtrwaltungslehre in Umrissen, Innsbruck, 1870. 
 
SYSTEMATIC CLASSIFICATION 245 
 
 CHAPTER III 
 THE OBJECTS OF THE ACTIVITY OF THE STATE 
 
 SECTION 46 
 
 STATE SOVEREIGNTY AND STATE INTERESTS 
 
 The activity characteristic of the state is that of 
 legally independent governmental dominion. The object 
 of this activity is the representation of state interests 
 through which the ends of the state in general and the 
 particular purposes of the state are attained. 
 
 The interests of the state are stated in the discussion 
 of the elements of public law (sec. 37, B). The objects 
 of the state in every state include the interest of internal 
 and external unity (reprasentation) , legal interests, mili- 
 tary interests, administrative interests and fiscal inter- 
 ests. These interests are accordingly designated as 
 directly leading to the iattainment of the ends of the 
 state. Indirectly, these same ends are aided by govern- 
 mental interests in the permanance of the state: thus, 
 by the interest in the state domain, in the people, in 
 things, and in substituted functions (sec. 37, A). 
 
 The characteristic attribute of the state's govern- 
 mental dominion is legal independence or state sov- 
 ereignty. With this attribute the state represents every 
 one of its chief interests and every one of its auxiliary 
 interests. Accordingly each of these interests expresses 
 the sovereignty of the state . Thus , one speaks of juridical 
 sovereignty, fiscal sovereignty, etc., of the sovereignty 
 of territorial domain, of official sovereignty, etc. 
 
246 SCIENCE OF LAW 
 
 The state is apprehended in all these functions as an 
 entity of force, and as practically dominant. The state 
 is, however, at the same time, also, a legal entity.' 
 Its dominion is a legal dominion. This may be put in a 
 two-fold aspect: the state limits its own will in the 
 recognition of the idea of law; and the state employs 
 the notion of law for the purpose of executing its will 
 in governmental dominion. According to the first 
 notion, the self-limitation of the will of the state results 
 as an opposite to the constitutionally recognized inter- 
 ests of others. The state will, or sovereignty, restricts 
 itself to a legally circumscribed domain through this 
 recognition of the interests of others. This will of the 
 state, however, itself becomes law, in the same manner 
 that law in general (sec. 5) and private law in particular 
 (sec. 15), arise. Sovereignty leads to the law of sov- 
 ereignty. Thus, we speak of the law of fiscal sovereignty, 
 assuming legal limits to the fiscal sovereignty of the 
 state. These legal limitations, as in all other cases, are 
 established through command and prohibitions. The 
 state employs the same means in the practical execu- 
 tion of its sovereignty. Therefore, in actual operation 
 against other volitional entities and bearers of inter- 
 ests, the dominion of the state is a legal dominion. 
 
 ^ The necessity of law and the fundamental principl e of human reason make 
 themselves practically effective in this idea; see supra, sec. 2. 
 
SYSTEMATIC CLASSIFICATION 247 
 
 SECTION 47 
 
 THE LEGALLY PROTECTED CHIEF AND AUXILIARY 
 INTERESTS OF THE STATE IN DETAIL 
 
 The legally protected interests of the state are : — 
 A. Auxiliary interests (those relating to the perma- 
 nance of the state) : — 
 
 1. The interest in the government of the domain of 
 the state. This interest is the basis of the law of terri- 
 torial sovereignty. It is denominated an auxiliary 
 interest; and is, as such, legally protected in order that 
 it may be legally possible for the state to exercise terri- 
 torially its remaining, and in particular, its chief sov- 
 ereign rights, on its own territory, with an exclusion of 
 all foreign influence. The domain of the state for the 
 purpose of government is territorially divided into 
 provinces, districts and other similar divisions.' For 
 the purpose of excluding foreign powers, the territorial 
 boundaries are in part obviously fortified.^ 
 
 2. The interest in the government of persons. This 
 interest is the basis of the law of personal sovereignty. 
 It does not exist simply with reference to subjects of 
 the state whose position as such is a matter of accurate 
 legal determination,^ and of which class, citizens form 
 a part. It extends also to foreigners coming into legal 
 contact with the state only in certain particular con- 
 nections, subditi secundum quid. Of the latter are 
 
 ^ Concerning the historical reasons of divisions of the state domain see 
 sec. 2, supra. With reference to the significance of the capital city, see Gareis, 
 Allg. St. R., p. 139. 
 
 ^ This calls to mind the armed separation of the Roman Empire from 
 Germany through the limes; also the mark polity of Charlemagne. 
 
 ' Cf. imperial statute June 1, 1870, and Aug. 16, 1896, with reference to 
 acquisition and loss of nationality. 
 
248 SCIENCE OF LAW 
 
 Forensen [non-resident land- holding aliens]; sojourners 
 so far as not exempted by international law; de facto 
 Untertanen [persons who themselves, or whose parents 
 formerly were subjects, also subordinate diplomatic 
 and consular officers]; and Schutzgenossen [foreign sub- 
 jects who are given consular protection by another state 
 by agreement of the states concerned, in cases where the 
 state to which the alien belongs has no consulate of its 
 own]. 
 
 The state legally demands the performance of duties, 
 and in particular, requires the duty of obedience. This 
 follows by force of the interest of the state in the gov- 
 ernment of persons. Obedience in particular requires 
 the performance of statutory duties of service* of which 
 military service^ is the most important: to which may 
 be added, certain special statutory duties {Lieferungs- 
 Duldungs- und Unterlassungspflichten) .^ 
 
 The idea of law, which the dominant social entity 
 espouses,^ nevertheless requires a limitation on all such 
 duties. Accordingly, a restriction is required upon the 
 personal sovereignty of the state. The object of this 
 restriction is that the persons lying under duties may be 
 recognized and protected as being vested with interests 
 of their own, even as against the state itself. The 
 legally recognized interests of subjects of the state are 
 their private legal rights.^ Their so-called public or 
 political rights are also protected and legally guaranteed 
 to them, in the interest of the community, and by the 
 community: thus, official rights, the right to vote, and 
 also the so-called fundamental rights of mankind. 
 
 ^ Cf, Gareis, AUg. Staatsrecht, sec. 55. 
 
 * Cf. the imperial statutes relating to military service o£ Nov. 19, 1867; 
 May 2, 1874; May 6, 1880; March 11, 1887; Feb. 11, 1888; and Aug. 16, 1896. 
 
 ' Gareis, op. cit., pp. 149, 150. 
 
 * See infra, sec. 47 and references there noted to previous parts of this work. 
 ^ See supra, sees. 17-36. 
 
SYSTEMATIC CLASSIFICATION 249 
 
 The essence of the legal limitation of the will of the 
 state and the possibility of the conception of the state 
 as a legally dominant social entity, rest on the recogni- 
 tion of legal spheres, and the possession of interests in, 
 and peculiar to, entities other than the dominant com- 
 munity. This requires an acknowledgment of person- 
 alities^ within and alongside of the state. Such a 
 personality may be that of a privileged individual (for 
 example, a noble), or one non-privileged;^ or this per- 
 sonality may be that of a social entity within the state : 
 the fiscus,^ churches,'' municipia,^ foundations, etc' 
 
 3. The interest in governmental dominion over 
 property, or the sovereign law relating to things. To the 
 exercise of this interest which is not to be confused with 
 fiscal sovereignty, belongs every mode of employment 
 of force in connection with property,' and every species 
 of expropriation.* 
 
 4. The interest in governmental representation* or 
 the sovereign law of officers. The legal standards which 
 appertain to this interest relate to the legal powers and 
 limitations of officers of the state through rights and 
 duties. 
 
 ^ See supra, sec. 15. 
 
 " Cf. the German Civil Code of Aug. 18, 1896, sec. 1 by which every species 
 of slavery is prohibited. 
 ^ See SHpra, sec. 15. 
 
 * See supra, sec. 15, and infra, sec. 57. 
 
 * See supra, sec. 7, also sec. 15. 
 
 * See supra, sec. IS. 
 
 ^ German Imperial Civil Procedure Act, sec. 708. 
 
 ** Cf. Gareis, Orundriss su Vorlesungen iiber das deuische burgerliche Rechi, 
 sees. 82, 83. 
 
 ^ That the head of the state may be omniscient and omnipresent requires 
 the support and representation of persons who exert their knowledge and 
 power in the exercise of sovereign rights in the name of the head of the state. 
 Such support was given to the nobility in the ancient Germanic and Prankish 
 period by their retainers (called in old high-German gasindi, and later degen) 
 who in return were piovided with protection and subsistence by the lord 
 (who was called drost, ringspender, or brotspender, or lord (English) from 
 hl&f-veard (Brotwart, or Brotspender). [See "lord" in Century Dictionary.] 
 
250 SCIENCE OF LAW 
 
 B. The chief interests (those relating to the object 
 
 of the state) : — 
 
 1. The interest in the recognition and assumption 
 of unity and personality on the part of the state. This 
 interest is first recognized in international law, and is 
 even based on the nature and purpose of the state. 
 Legislation determines which of the chief organs of the 
 state shall exercise this sovereign right. In other words, 
 constitutions provide the standards of recognition and 
 protection of the general right of representation by the 
 head of the state of state personality. 
 
 Felix Dahn shows in his Konige der Germanen 
 how among certain German peoples this chiefest repre- 
 sentation of the state arose out of an expressly recog- 
 nized right of the head of the state in the embryonic 
 state; thus among the Vandals (Part I, p. 213); among 
 the East Goths (Part II, p. 107); and amang the West 
 Goths (Part VI, pp. 27, 509). 
 
 2. The interest in military force, or the sovereign 
 law of military power. Since the members of the state 
 are legal subjects (that is to say, bearers of rights, hav- 
 ing protected legal spheres of their own), therefore, the 
 maintenance of duties of military service, etc., in short, 
 obligatory restrictions upon freedom in the interest of 
 the defensive capacity of the state, are of the greatest 
 importance. These duties are imposed through mili- 
 tary statutes, etc. 
 
 3. The legal interest (Rechtsinteresse) of the state 
 and the sovereignty of justice, considered in the ensuing 
 chapter. 
 
 4. The general interests of security and welfare, or 
 the sovereign law of administration and police. The 
 security and furtherance of the sovereign right of gen- 
 eral welfare appertain universally to the state in the 
 
SYSTEMATIC CLASSIFICATION 251 
 
 affairs of modem civilization, as a coercive right' 
 {Zwangsrecht) . This is the so-called sovereignty of 
 police. Practical legislation, as the state declaration of 
 standards, has for its object the recognition of this 
 sovereignty as a legal advantage. It has at the same 
 time, however, the function of legal definition and limita- 
 tion of this sovereignty, and its protection as against the 
 legal spheres of all others vested with legal rights.^ 
 
 This activity of the state is directed, as the name 
 designating the interest involved would indicate, toward 
 two different ends. One of these ends is negative, and 
 is directed against injuries which threaten the people, 
 the country, or property, and provides security from 
 dangers. The other, is a positive end, and provides for 
 a direct furtherance and immediate advancement of the 
 country and the people. 
 
 Positive ends of the state embrace: — 
 
 (a) The promotion of culture, or a fostering of intel- 
 lectual interests, which includes the ordering of the rela- 
 tions of religious societies (see above, sec. 5, and below, 
 sec. 57), the establishment of educational institutions, 
 the furtherance of the arts and the sciences outside of 
 schools (through academies, museums, libraries, etc). 
 
 (6) The promotion of welfare, or the fostering of 
 creative works, mining,^ agriculture,* forestry,^ hunting,' 
 
 ^ For example, the medical police in the public care of health, compulsory 
 regulations relating to vaccination, and compulsory education. 
 
 ' Cf. Gareis, Allg. Staatsrecht, sec. 48 (examples, pp. 132-133; to which 
 may be added the interest of the state in the maintenance of forests pro- 
 tected by forest police). 
 
 ^ Cf. Prussian mining statute of June 24, 1865, and 1892; the Bavarian 
 mining statute of March 20, 1869; and mining in provinces under German 
 protection (Gareis, Reichsges., Nos. 65, 248). 
 
 * With reference to agriculture in political science see Schonberg im Hdbch. 
 der Staatswissenschaften; cf. R.G., July 6, 1904, with reference to the preven- 
 tion of phylloxera vastatrix. 
 
 ' Cf. Schappach, Forstwesen, and R. Hess, Forstschutz. 
 
 « Cf. B. Dalcke, Preuss. Jagdrecht (2d ed., 1888). 
 
252 SCIENCE OF LAW 
 
 fishery,' industrial pursuits,^ manufacture, commerce 
 (the mail) ,^ railroads, * the telegraph,^ navigation, streets, 
 etc., and also the advancement of institutions of money 
 and credit (the political science of banking), ° the circula- 
 tion of securities, etc. 
 
 (c) While the negative end of administration comes 
 into the foreground in all of the problems of police 
 security, taken in its widest sense, yet it is not exclu- 
 sively applicable. Even in these activities, there are 
 positive ends to be attained. Such is the case in the 
 matter of health police, or the prevention and cure of 
 diseases, and epidemics; in the supervision of medical 
 art whether relating to man or beast, of apothecaries, 
 etc.;' in the policing of order and security; in the regu- 
 lation of insurance of persons and things whether relat- 
 ing to health, age, invalidism, or accident;' in police 
 security in the narrow sense; in regulation of the build- 
 ing art; in the policing of paupers, etc. 
 
 5. The proprietary interest of the state, or the sov- 
 ereign law of finance. It is no longer a matter of doubt 
 that the governing social entity cannot be prevented by 
 anjrthing or any person from invading spheres of private 
 right and drawing therefrom the proprietary materials 
 necessary to the attainment of its ends." It is, how- 
 
 * Cf. Preuss. Fischereigesets of May 30, 1874. 
 
 2 Trade regulation statute (Gareis, R.G., 183-190). 
 
 ^ Postal statute o£ Oct. 28, 1871; See Laband, Str.R., Bd. Ill, p. 40. 
 
 •Freight carrier statute (Gareis, R.G., 160-164). 
 
 "Telegraph statute (Gareis, R.G., No. 154). 
 
 'The bank statute (Gareis, R.G., Nos. 166, 260). 
 
 ^ The vaccination statute (Gareis, R.G., No. 20); the cattle-plague statute 
 (Gareis, R.G., Nos. 180-182); and the cholera statute (Gareis, R.G., No. 191). 
 
 ^Health insurance of workmen (Gareis, R.G., 147, 148); age and in- 
 validism insurance (Gareis, R.G., 103, 104, 131, 1.59); accident insurance 
 (Gareis, R.G., 298-303). 
 
 ® This fiscal sovereignty is distinguished from governmental dominion 
 over things (sec. 47, A, 3) according to the objects to be attained. By force 
 of its fiscal sovereignty, the state levies taxes and imposes duties, for itself ; 
 and by force of its dominion over things it allows expropriation of property, 
 and execution on property, in the interest of private persons. 
 
SYSTEMATIC CLASSIFICATION 253 
 
 ever, equally agreed, that in a legally ordered state, this 
 invasion of private right must proceed in a legal manner. 
 This action will be permitted and taken only in accord- 
 ance with those conditions which create law or which 
 may abrogate it. It requires the recognition of a fixed 
 standard, regulating in what manner and to what 
 extent, private property may be turned into property 
 of the state. 
 
254 SCIENCE OF LAW 
 
 CHAPTER IV 
 
 THE STATE'S INTEREST IN LAW, AND SOV- 
 EREIGNTY OF JUSTICE IN PARTICULAR 
 
 SECTION 48 
 
 ADMINISTRATION OF JUSTICE AND THE STATE 
 
 I. It has repeatedly' been stated that however 
 different may be the ends of the dominant social com- 
 munity in other respects, that universally, the establish- 
 ment of law, and the administration of justice are 
 regarded as among its highest purposes. In advanced 
 stages of civilization, the state has a vital interest in the 
 realization of the notion of justice.^ All members of the 
 state community who are not morally depraved recog- 
 nize this fact. Their external relations conform to the 
 necessity that the state for the attainment and mainte- 
 nance of peaceable adjustments among themselves, must 
 interpose^ its authority, employ its agencies of force, 
 and apply its governmental dominion. 
 
 The interest of the state in peaceable order among 
 the members of society which arises out of the ethical 
 views of influential persons within the state,* and which 
 sustains and directs the development of law, is of a 
 two-fold character: — 
 
 (a) It has an interest that certain interests of indi- 
 viduals and of the community shall for the sake* of the 
 
 ' See supra, sees. 7, 8, 9, 10. 
 ^ See supra, sec. 8. 
 
 ^ Cf. supra, sec. 8 (the import of the authority of the state in the develop- 
 ment of law). 
 
 * Cf. iupra, sec. 8. 
 
 * Cf. supra, sec. 46. 
 
SYSTEMATIC CLASSIFICATION 255 
 
 notion of law be raised up to legal advantages, and be 
 protected as such; and 
 
 (b) The state has an interest apart from the con- 
 ception of law in the representation and furtherance of 
 its own vital interests through legal standards. 
 
 This two-fold interest is satisfied on one hand by the 
 activity of the state in legislation; in a recognition of 
 interests as legal advantages by means of its declared 
 and authoritatively protected* standards. It is not 
 necessary, however, that all those standards by which 
 legal advantages are created out of relations of fact, be 
 expressly declared. In addition to legislation, there 
 may be standards formulated by the community, to 
 which the state lends its authority^ (custom, observance, 
 etc.).^ 
 
 This interest is satisfied, on the other hand, through 
 the activity of the state manifested in the administra- 
 tion of justice.* 
 
 II. The promotion of justice or law is that adminis- 
 trative^ activity which directly ministers to the interest 
 of the dominant community in the existence of legal 
 order. This administrative activity is based in every 
 event on the authority of laws regulating justice. It is 
 based on standards maintained by the authority of the 
 state in a recognition of legal interests as legal advan- 
 tages. It is the expression in all cases of the sovereignty 
 of justice, or that sovereign law of the state which 
 imposes legal limitations on the dominant power of the 
 state in the execution of the idea of law. 
 
 ' See notes referred to in the following note. 
 
 ' See siipra, sec. 6, page 37, note 2; sees. 8, 9, 10 (at end), and sec. 12. 
 3 See supra, sees. 9, 10, 12. 
 
 * "Administration" in this sense opposed to "legislation,'" see sec. 43, I. 
 ^ "Administration*' in a wider sense including judicial activities. See 
 supra, sec. 43, I. 
 
256 SCIENCE OF LAW 
 
 Public officers, as organs for the promotion of justice, 
 are not universal or necessary. But every act in the 
 advancement of justice is always founded on the author- 
 ity of the state. Thus, in the Middle Ages, the grant of 
 inferior and superior jurisdiction, the latter involving 
 also Blutbann [causes Sanguinis]. Thus, also, the recog- 
 nition and supervision on the part of the state of manorial 
 or patrimonial jurisdiction. A further example is foimd 
 in the public character of notarial acts, etc. 
 
 III. The administration of justice is either decisional 
 (decisive, or judicially responsive, responsorisch-justiz- 
 iell), or it is precautionary^ {kautelarische Rechtspflege) . 
 The functions of decisional justice are essentially exer- 
 cised by courts^ in civil and criminal procedure, as well 
 as in controversies relating to administrative law. 
 Prudential justice proceeds from officers of justice as 
 distinguished from courts, and is exercised by notaries, 
 hypothecary officers, registering officers, and possibly 
 also by courts — ^but by the last only as a subsidiary 
 function. This latter administration of justice is called 
 non-contentious jurisdiction (jreiwillige Gerichtsbarkeit) 
 (sec. 49). 
 
 Administration of justice in a wider sense embraces, 
 alongside of legislation relating to justice, all the estab- 
 lished measures and institutions of the state which 
 further the idea of law, as follows : — 
 
 (a) The establishment of a judicially responsive 
 administration of justice, through the creation and 
 organization of courts. 
 
 (6) The establishment of a prudential administra- 
 tion of justice or non-contentious jurisdiction ; and 
 
 (c) The establishment of a supreme administration 
 over the functions of justice with a supervision of its 
 
 ' Cf. supra, sec. 13. 
 
 ^ See infra in this section, division V. 
 
SYSTEMATIC CLASSIFICATION 257 
 
 organs: courts on one hand, and prudential officers on 
 the other. 
 
 IV. The supreme administration over the affairs of 
 justice by the ministry of justice, department of jus- 
 tice, the cabinet, or supreme officer of justice, involves 
 the function of giving advice to the head of the state 
 for the administration of the sovereign right of justice; 
 of drafting statutes relating to justice ; appointment and 
 authorization of external organs for the promotion of 
 justice, including the personnel of judges and auxiliary 
 officers of justice, the officers of non-contentious juris- 
 diction, and to a certain extent, the members of the 
 legal police (Rechtspolizei) ;^ and it also embraces the 
 function of providing the external conditions for their 
 activity, as by the establishment of court buildings, 
 prisons, etc. In modern European states, the supreme 
 authorities of justice in the execution of their duties, 
 avail themselves of a professional, supervising and advis- 
 ory organ or officer known as the counseP or attorney 
 of the state who has authority to make complaint, in 
 criminal cases, on the part of the state (sec. 50). 
 
 The bar"" is an important organ in the prudential 
 administration of justice, and it also has a certain 
 indirect co-operation in the admiaistration of justice by 
 the courts. The bar has the function of giving counsel 
 to private persons in their legal matters, lending profes- 
 sional assistance to, and representing, such persons in 
 their legal controversies, and giving assistance in legal 
 defenses against litigated claims of the state. ^ The 
 
 ' Cf. for example, clerks of courts. See judicature statute, sec. 154; bailiffs, 
 sec. 156; (Gareis, R.G., Nos. 261-262). [A wide application of the term 
 "police" according to German usage is made apparent here.] 
 
 ^ Cf. judicature statute (Gerichtsverfassungsgesets), sec. 142 (Gareis, R.C., 
 261-262). 
 
 'The statute of July 1, 1878. relating to advocates (Gareis, R.G., 93-94, 
 267). 
 
 * Cf. infra, sec. 50, page 267. note 5. 
 
258 SCIENCE OF LAW 
 
 activity of the bar is regulated under the supervision of 
 established rules which are created either by legislation 
 relating to the administration of justice, or by the 
 supreme authorities in the affairs of justice. 
 
 V. The state is the protector of positive law, and 
 therefore also the protector of all individual rights which 
 are defined or guaranteed by the state. This is in accord 
 with the modern conception of sovereignty of justice 
 which appertains solely to the state, and which recog- 
 nizes' in jurisdiction not only an abundance of powers 
 or rights, but also an abundance of duties. Every per- 
 son, whose rights have been infringed and who, on that 
 account, seeks protection or redress, must apply to the 
 dominant, governing community. Even the state itself, 
 in so far as it has a sphere of rights, applies as a legal 
 community, to the dominant entity of force. Help, 
 redress, or protection for which application is made to 
 the state, is not afforded arbitrarily but in accordance 
 with the notion of law — on account of which, application 
 is made to the state — and only according to the stand- 
 ards and forms of the law. A characteristic establish- 
 ment of courts^ vested with a decisional administration 
 
 ' Cf. art. 29 of the final act of the Congress of Vienna of May IS, 1820, 
 and art. 77 of the constitution of the German Empire. See Laband, St. R. 
 (4th ed., Bd. Ill, pp. 349-350). 
 
 ^ The legal foundations for the existence, competence, and organization of 
 the courts, were unified, for the entire German Empiie, by the enactment ' 
 of the four great statutes of imperial justice (of 1877, effective since Oct. 1, 
 1879); and especially by the judicature statute (Gerichtsi'erfassungsgesetz) 
 of Jan. 27, 1877, which contains a common basis for the procedure acts: 
 the civil procedure act of Jan. 30, 1877, the criminal procedure act of Feb. 1, 
 1877, and the bankruptcy act of Feb. 10, 1877, which came into force con- 
 currently on Oct. 1, 1879. This fundamental legislation, relating to the 
 administration of justice, within the German Empire, deals with judges 
 {Richter) (sees. 1-12), jurisdiction (Gerichtsbarkeit) (sees. 12-21), inferior 
 courts (Amtsgerichte) (sees. 22-24), assessors' courts (Schdffengerichie) [the 
 lowest form of inferior courts in criminal matters consisting of a judge and 
 two lay-members. — Schoffen, assessors] (sees. 25-57)i provincial courts 
 (Landgerichte) (sees. 58-78), juries (Schwurgerichte) (sees. 79-99), commercial 
 courts ( Kammern fiir Handehsachen) (sees. 100-118), provincial courts of 
 appeal ( Oberlandesgerichte) (sees. 119-124), the supreme court (Reichsgericht) 
 
SYSTEMATIC CLASSIFICATION 259 
 
 of justice is provided for in order that the idea of law 
 may prevail. This class of officers in its functions of 
 declaring rights and duties is independent of an arbi- 
 trary sovereign will, so far as this will is not expressed in 
 legislation.^ (Prohibition of so-called cabinet justice). 
 
 According to the German judicature act (Gerichts- 
 verfassungsgesetz), sec. 1, "judicial power shall be exer- 
 cised by independent courts which are subject only to 
 the laws." 
 
 The characteristic feature of the exercise of the func- 
 tions of justice by the courts lies in this : that this activ- 
 ity arises only in a decisional manner, on the presenta- 
 tion of a claim, based on a legal standard. According 
 to the varieties of legal standards involved the follow- 
 ing kinds of claims are distinguishable: — 
 
 (a) Civil complaints (see sec. 49); 
 
 (6) Criminal complaints (see sec. 51); and 
 
 (c) Administrative complaints (sees. 45, 53). 
 
 Differences of procedure also depend on this distinc- 
 tion: thus, civil procedure (sec. 50), criminal procedure 
 (sec. 52) , and procedure of administrative justice (sec. 53) . 
 
 (sees. 125-141), the public prosecutor (Staatsanwalt) fsecs. 152-153), clerks 
 of courts (Gerichtsschreibern) (sec. 154), summoning and executing officers 
 (Zustellungs- und Vollstreckungsbeamten) (sees. 155-156), legal redress {Rechts- 
 hilfe) (sees. 157—169), publicity, and judicial police {Sitzungspolizei, having 
 power to punish for contempt] (sees. 170-185), legal terminology (sees. 186- 
 193), conference and decision (sees. 194-200), and judicial non terms {Ge- 
 richtsferien) (sees. 201-204). 
 
 Concerning the civil procedure act, and the bankruptcy act, see infra, 
 sec. 50; the criminal procedure act, see infra, sec. 52. Each of these statutes 
 was amplified by special intioduetory statutes {Einfuhrungsgesetze) for the 
 purposes of imperial legislation, and with the exception of the criminal 
 procedure act, was re-enacted in new form on Jan. 1, 1900, amplified by 
 supplementary legislation {Ausfuhrungsgesetze) of the German states. There 
 are special statutes governing jurisdiction in consular domains, and German 
 provinces (April 7, 1900, and Sept. 10, 1900. respectively). In addition 
 to military courts, governed by the military penal procedure act (sec. 53, 
 note 1, infra), there are in Germany special trade courts (Gewerbegerichte) 
 (see R.G., Sept. 29, 1901), and commercial courts (Kaufmannsgerichte) 
 (see R.G., July 6, 1904: R.G.Bl., p. 266). Cf. Gareis, H.G.B. (3d ed.) 
 XXIX, XLII, and sec. 9, page 74, note 1. 
 
 ' This is a consequence of the recognition of a legal sphere of persons 
 alongside of the sphere of power of the state. 
 
260 SCIENCE OF LAW 
 
 SECTION 49 
 
 I. THE CIVIL LAW AND NON-CONTENTIOUS 
 JURISDICTION 
 
 I. Civil claims are essentially those interests of 
 private law'' recognized and protected by standard in 
 their offensive, or defensive, and consequently in their 
 external form. The state, as an entity of power which 
 is called upon for the protection of private persons (in- 
 cluding the fiscus), provides the desired protection of 
 these interests, not simply by reason of the fact that 
 it is an organized force. It acts also because it has 
 placed and must employ its governmental dominion in 
 the service of the idea of law, when the premises are 
 established upon which the civil law has based this 
 protection. 
 
 The state, when applied to for protection, does not 
 act arbitrarily. It proceeds according to the civil law; 
 and then only through independent authorities, the 
 courts (sec. 48, III, V). A determination is made as 
 often as a claim for protection is presented if such a 
 case is shown for which the external regulation of peace- 
 able order has securely established the assurance of 
 legal protection. According to the result of this exami- 
 nation, which is conducted in accordance with civil 
 procedure (sec. 50), the state either grants or denies its 
 legal protection. The entire body of private law, whose 
 elements (sec. 15) and whose system (sees. 16-36) were 
 above outlined, therefore becomes the barrier and the 
 
 ^ With reference to this and similar notions see sec. 14, supra. 
 
 ^ See supra, sees. 15-36. Concerning claims in private law as legal powers 
 to require of another an act, or a forbearance, see P. Langheineken. Anspruch 
 Und Einrede nach dem Deutschen B.G.B., Leipzig, 1903. 
 
SYSTEMATIC CLASSIFICATION 261 
 
 premise of the state's activity, so far as it involves 
 judicial administration. It is in the interest of the 
 state, and as such is accepted and protected in its judi- 
 cial administration, that private interests be protected 
 according to the measure of their acknowledgment as 
 private rights. 
 
 II. The state, however, in the practical execution of 
 civU law does not limit itself to a decisional determina- 
 tion of controverted claims in private law. It also 
 exerts a prudential administration of justice,' for the 
 security of private legal interests. This function of 
 justice looks to the prevention of disputes, and to a 
 security, stability, and conservation of claims (guaran- 
 teed interests) of private persons. This method of 
 furthering justice is accordingly called "legal police," 
 or more frequently non-contentious jurisdiction, and 
 includes : — 
 
 1. Judicial care for the maintenance and carrying-out 
 of inheritance rights in peaceable or non-contentious 
 succession. To this end the office of inheritance authori- 
 ties is established, which in the civil code is called the 
 inheritance court (Nachlassgericht) . This function re- 
 quires a judicial inventory; a marking or deposit of the 
 property of deceased persons; a judicial ascertainment 
 of the heirs; and a peaceable distribution of the estate 
 among the heirs f 
 
 2. The institution of guardianship, and the direc- 
 tion, and supervision of guardians through guardianship 
 courts ( Vormundschaftsgerichte) , see above, sees, 25, 29, 
 30, .33) ; 
 
 3. The establishment and official direction of authen- 
 ticating and attesting authorities {Beurkundungs- und 
 
 ^ See supra, sec. 48, III, and the non-contentious jurisdiction statute. 
 
 ^ See supra, the substantive law of succession, sees. 34-36. On the in- 
 heritance or probate court see B.G.B., sees. 1945, 1960, Einf.G., art. 147, 
 and the non-contentious jurisdiction statute, sees. 72-99. 
 
262 SCIENCE OF LAW 
 
 Beglaubigungsbehorden) by whom, or through whom, 
 formal legal acts may be concluded or may be estab- 
 lished. Such acts are agreements relating to land; and 
 acts relating to other important matters,^ for example, 
 wills. ^ These functions attach either to the courts gen- 
 erally (which exercise in particular the power of con- 
 firmation of the more important private legal acts) ; or 
 belong to special authorities. 
 
 Of such special authorities, are those official registrars 
 who have the function of authenticating personal con- 
 ditions and civil marriage;' registry officers whose offi- 
 cial functions are necessary according to positive law in 
 the transfer of land,* the creation of hypothecary or 
 other liens on land' or on ships;' the so-called local, 
 intabulation, or registry courts' (Oris-, Intabulierungs-, 
 oder Protoko liter ungs-Gerichte) which sometimes exer- 
 cise the functions of the land-registry, lien-registry, or the 
 notarial office; and notarial officers who have authenti- 
 cating functions^ which are exercised in foreign coun- 
 tries by consuls.* 
 
 4. Registry officers who are intrusted in the interest 
 of the legal spheres of private persons with the public 
 keeping of registers, rolls, or records, such as associa- 
 
 ^ Cf. B.G.B., sec. 313 (judicial or notarial authentication). See above, 
 sec. 23 (contractual obligations). In certain cases non-contentious jurisdic- 
 tion may embrace the taking of the oath of an insolvent with respect to his 
 estate ; the inspection and deposit of things ; and the sale of pledges — non- 
 contentious jurisdiction statute, sees. 163-166. 
 
 ^ See supra, sec. 36, succession by wHI. 
 
 ^ See supra, sec. 26; non -contentious jur. St., sees. 69-71. 
 
 * See supra, sec. 20 ; cf. the land registry act. 
 
 ^ See supra, sec. 21. 
 
 ® With reference to ship pledges see supra, sec. 21, page 152, notes 6, 9; 
 B.G.B., sec. 1259; non-contentious jur. St., sec. 100. 
 
 ' Thus the Amtsgsricht [court of first instance] has jurisdiction to confirm 
 agreements of adoption (see above, sec. 29) according to the non-contentious 
 jur. St., sees. 65-68. 
 
 ^ Cf. sec. 23 ; as to judicial and notarial authentication, see Einf. G.s. B.G.B. 
 art- 141; non-contentious jurisdiction act, sees. 167-184. 
 
 ^ See infra, international law, sec. 55. 
 
SYSTEMATIC CLASSIFICATION 263 
 
 tion,' mercantile (firm, procuration),^ company, and 
 corporation registers;' matrimonial-property registers;' 
 useful models registers;' and records for the entry of 
 supplementary notification of anonymous, or pseudony- 
 mous published works of literature, music," etc.; 
 
 5. There may also be noted here, the official action 
 of the imperial patent office, based on the patent act,' 
 in granting, as well as withdrawing and declaring void 
 patents of invention, and in conferring protection for 
 useful models;' 
 
 6. There may also he reckoned as belonging to the 
 scope of non-contentious jurisdiction, the declaration 
 of death of missing or lost physical persons," and the 
 judicial nullification, or amortization of lost records;^" 
 
 7. To a certain extent, the regulation of the prop- 
 erty concerns of insolvent persons, in bankruptcy pro- 
 cedure, belongs to the sphere of non-contentious juris- 
 diction (sec. 50). 
 
 III. The operation of non-contentious jurisdiction, 
 which is sometimes also called "preventive justice," 
 is made of obligatory application by law, in many cases. 
 This occurs partly in the sense that its operation is 
 
 * See su^ra, sec. 15, page 105, note 2. 
 
 'Cf. sec. 58 (commercial law); H.G.B. of May 10, 1897, sec. 29, et seq.. 
 non-contentious jur. St., sees. 125-158. Cf. supra, sec. 23, page 171, note 
 6; and infra, sec. 58 (commercial law). 
 
 ' See supra, sec. 23 (law of obligations), page 168, notes 1 to 11, also supra, 
 sec. 15, page 105, note 2. 
 
 * See supra, sec. 31, note 1; B.G.B., sees. 1435, 1558-1563; non-conten- 
 tious jur. St., sees. 161, 162. 
 
 5 R.G., Jan. 11, 1876 (Gareis, R.G., No. 13). 
 
 ** Sec. 31, R.G., June 19, 1901, relating to authors' rights in works of litera- 
 ture, etc., see supra, sec. 18. 
 
 'Statute of April 7, 1891 (Gareis, R.G., 122-123), sec. 13. See supra, 
 sec. 18. 
 
 * Useful models act of June 1, 1891 (Gareis, R G.. 122-123). See supra, 
 sec. 18, V, 2. 
 
 » B.G.B., sees. 13-20. 
 
 *^ Cf- law of obligations, sec. 23; with reference to the procedure of summons 
 by publication see civil'procedure act, sees. 946-1024 (Gareis R.G., 227-234). 
 
264 SCIENCE OF LAW 
 
 directly enforced by regulatory punishment; as in the 
 requirement of registration of firms. It occurs partly 
 in that application to the state, in private legal claims, 
 is not possible except through the proper use of the 
 institutions of legal police (as in the case of require- 
 ments of land registry) ; in requirements relating to 
 notarial authentication; in the standardized rules gov- 
 erning a registry, upon the compliance with which the 
 existence of juristic personality, " or a legal act, depends; 
 the duty of making deposition for protection of models;^ 
 and in applications for patents,' 
 
 'See supra, sec. 15; B.G.E., sec. 55 (registered associations); non- 
 contentious jur. St., sees. 159, 160, 162. 
 ^ See supra, sec. 18. 
 ^ See supra, sec. 18. 
 
SYSTEMATIC CLASSIFICATION 265 
 
 SECTION 50 
 II. LAW OF CIVIL PROCEDURE 
 
 It was pointed out above (sec. 15, IV), that one of the 
 elements of private law is the protection of legal inter- 
 ests. This protection of a threatened or an infringed 
 private right may, among other ways, be made effective 
 by suit, or plea {Einrede) in civil procedure (sec. 15, 
 IV, 2) . Every legal rule, however, requires for its effec- 
 tiveness as a standard, — no matter how established, or 
 essentially declared, — the authority only of the state 
 (as explained previously: sec. 8, 1; sec. 9 (at end) ; sec. 10 
 (at end) ; sec. 11; sec. 12; also sec. 7, II). The operation 
 of this authority, is manifested in the grant by the state 
 of its protection in civil procedure. 
 
 When a legally protected, private interest or right 
 (sec. 5) is violated or infringed, then the person vested 
 with the interest may apply (sec. 49) to the dominant 
 power which has promised its protection (which is the 
 characteristic feature of a legal standard) ; and may 
 require the concrete grant of this protection. The state 
 thus applied to by complaint, will investigate whether 
 the conditions exist upon which it, as the authority of 
 the law, has promised to afford legal protection for the 
 interest threatened or infringed. It will inquire whether 
 the interest has been recognized as a legal advantage. 
 
 This preliminary investigation is conducted always 
 by a method (procedere, Verfahren)^ called civil proce- 
 dure {Zivilprozess) . This procedure is a legal procedure. 
 It is regulated by command and prohibition of the 
 
 ^ Procedure may be taken as indicating a legulated series of acts, intended 
 to accomplish a definite, unified purpose. This is the sense in which the term 
 is used, by way of example, in the German patent statute of May 25, 1877, 
 and April 7, 1891, sees. 1, 4. Cf. Gareis, Das deutscke Patentgesetz (1877), p. 50. 
 
266 SCIENCE OF LAW 
 
 authority of the state. The fact that this procedure 
 exists as such, and under legal regulation, accords with 
 the interest of the state as a legal community. For this 
 reason, the regulative standards of civil procedure are 
 to be accounted as belonging to the domain of public 
 law, state law and administrative state law (sees. 43, 48). 
 The object of this procedure is the protection of threat- 
 ened or violated interests seeking such protection, which 
 protection is afforded necessarily by measures of force 
 controlled by the state as an organized power. There is, 
 however, no assumption of guaranty by the state of 
 the proprietary or economic consequences of these meas- 
 ures. Nor is there any guaranty of exigibility in the 
 complaint presented against violation or infringement. 
 
 Civil procedure, therefore, is that legal procedure 
 which has for its object a grant of protection by the state 
 in relation to a civil interest, made the basis of legal 
 complaint,^ presented to the state; and the necessarily 
 forcible grant of this protection in a controverted 
 matter, involving the infringement of a legal interest 
 which is recognized by the state as a legal advantage. 
 Accordingly, civil procedure means the totality of legal 
 standards through which this procedure becomes a 
 legally regulated procedure. 
 
 The claim (Anspruch), complaint, which is the start- 
 ing-point of civil procedure, is a claim on state protec- 
 tion for a private, legal interest. It is directed to the 
 state, and is made effective by the courts — (sec. 48), 
 the civil courts, courts of civil procedure. The court 
 applied to for a grant of state help,^ on account of an 
 imperiled or violated right, undertakes to inquire by 
 procedure (specially designated as civil procedure) 
 
 * On the basic conception relating to civil procedure, see Bulow, Degenkolb, 
 Laband, Sohm, and Wach; cf. Gareis, AUg. Staatsrecht in Marquarden's 
 Handbuch, p. 128, and Fr. Stein, Die Voraussetsungen des Rechtsschutses, 
 in the Hallenser Festschrift far Fitting (1903), particularly pp. 338, 339, also 
 pp. 6, 7; contra J. Kohler in Z. f. deutschen Zivilprozess, Bd. 33, p. 211. 
 
 ' Thus Laband, Staatsrecht, sec. 84, Bd. Ill, pp. 349, 350. 
 
SYSTEMATIC CLASSIFICATION 267 
 
 whether the premises of state law and private law exist 
 upon which legal protection may be granted. It accord- 
 ingly determines by a judgment whether the petition 
 shall be granted or denied. The leading premises relat- 
 ing to public law are the competence of the court; and 
 the dependence of the defendant on the might of the 
 state applied to for protection. The premises apper- 
 taining to private law are the circumstances under which 
 the interest asserted by the plaintiff, which is contro- 
 verted, imperiled, disturbed, or infringed, is recognized 
 in general as a legal advantage or as against the defend- 
 ant. As to this the civil law determines (sees. 15-36). 
 The legal procedure which serves the judicial examina- 
 tion cf these premises, is governed by established legal 
 regulations' which are closely connected with the 
 organic law of the courts.^ Exclusive of procedure, they 
 regulate the competence* of the courts, the position of 
 the parties,* their representatives' ( Vertreter) and coun- 
 
 ^ In Germany, apart from domestic provisions, these regulations arose 
 chiefly under the iniiuence of Roman, then Canon, and finally also French 
 law. At the present time there is a unified enactment, due to imperial legis- 
 lation, and arising especially out of the imperial civil procedure act. This 
 act has been in force as a part of the imperial legislation relating to justice 
 since Oct. 1, 1879, and became operative in a new form on Jan. 1, 1900, in 
 accordance with an act of May 17, 1898, published by the chancellor on May 20, 
 1898 (.K.G.Bl., 1898, No. 25, p. 369; Gareis, R.G.. 227-234). Commentaries 
 on this act: L. Gaupp (3d ed. rev. by Fr. Stein, 1897-98); A. Forster and 
 A. Engelmann (1902); Lothar Seuffert (8th ed., 1903); W. Endemann; 
 .Tul. Wilh. Planck. Bd. I, 1887; Bd. II, 1891, 1896; Adolph Wach, Bd. I, 
 1885 (in Binding's Systematisches Handbuch der Deutschen Rechiswissen- 
 sckaft; Wach, Vortrage iiher die Reichszivilprozessordnung (2d ed., 1896) ; 
 also the treatises of Friedrich Hellmann (1886), Richard Schmidt (1898) 
 and Georg. Kleinfeller (1905); and finally, Friedrich Stein, Das Zivilprozess- 
 recht in Birkmeyer's Ens., p. 923. 
 
 ^ See supra^ sec. 48, p. 258, note 2. 
 
 ' Cf. supra, premises of state law, also Z. Pr. O. f. d. D. Reich, sees. 1-49. 
 
 * Plaintiff, defendant, capacity of parties (Z. Pr. O., sees. 50-58) ; joinder 
 of parties {loc. cii., sees. 59-63) ; intervention of third parties (loc. cit., sees. 
 64-77); costs (sees. 91-107); security (sees. 108-113); forma pauperis 
 (sees. 114-127). All sections according to the new revision and numbering. 
 
 ^ Attorneys and counsel (see Z. Pr. O., sees. 78-90) ; procedure conducted 
 by attorney {Anwaltsprozess); the requirement of acting by attorney 
 
268 SCIENCE OF LAW 
 
 sel {Beistdnde) . This procedure is governed by highly 
 important principles (I) ; is separated into various kinds 
 of procedure (II) ; and has various divisions (III) . 
 
 I. The following are fundamental principles of pro- 
 cedure:- — 
 
 The initiative principles, nemo jtidex sine adore, and 
 judex ne eat ultra petita partium; the judicial maxims, 
 audiatur et altera pars, "eins mans red ist halbe red, man 
 sol si billig hoeren beed," — not derogating, however, 
 from the procedure in contumacy matters { Kontumazial- 
 verfahren) . and the principle of afifirmative litis contestatio, 
 (the keeping of silence as to one's rights {cf. C. Pr. O. 
 sec. 331) ) ; the principle governing oral proceedings 
 [gM£i(i lion est actum (in procedure) non est in mundo]; 
 the principle of immediacy [ Unmittelbarkeit, requiring all 
 the various steps in procedure to be conducted before 
 the court]; the principle of unity [ Einheitlichkeit, allow- 
 ing new facts and proofs in oral procedure to be adduced 
 until the end of the procedure in the Court of Appeals] 
 with or without Eventualmaxime [rules to prevent delays 
 in pleading, requiring timely defenses particularly in 
 pleas]; and the principle of the public character of pro- 
 cedure (with certain statutory exceptions). 
 
 II. Of the different kinds of procedure, are to be 
 distinguished the procedure in regular or general coUegial 
 and unitary courts,' as well as other special kinds of 
 procedure. 
 
 {Anwaltszwang) in matters before provincial and all higher courts iloc. cit., 
 sec. 78) ; cf. supra, sec. 48, page 257, notes 3, 4 (attorneys, and the act 
 relating to attorneys). 
 
 * Concerning the historical aspect see A. Stolzel, Die Entwickelung des 
 gelekrien Richteriums in deutschen Landen (1872) ; cf. above, sec. 48 (organic 
 court statute), and see civil procedure act, sec. 49S. compared with sec. 253. 
 Another kind of courts is found in the trade courts according to R.G., Sept. 29, 
 1901 (Gareis, R.G., 115-116), and the commercial courts (R.G., July 6, 1904) : 
 cf. Gareis H.G.B. (1905), XXIX, XLIII). 
 
SYSTEMATIC CLASSIFICATION 269 
 
 Of the special kinds of procedure, the civil procedure 
 act recognizes: documentary and bills of exchange pro- 
 cedure (sees. 592-605) ; procedure in matrimonial prop- 
 erty, the legal relations between parents and children, 
 and emanicpation of minors (sees. 606-687); hortatory 
 procedure {Mahnverfahren) (sees. 688-703); and a pro- 
 cedure in arbitration (schiedsrichterliches Verfdhren) 
 (sees. 1025-1048). 
 
 III. Of the different articulated divisions of proce- 
 dure are to be noted : — 
 
 1. The initial process (Prozessinstruktion) and plead- 
 ings, oral (mundlich) or written (Schriftenwechsel) . This 
 begins with a complaint ( Klage) which is followed by an 
 answer {Klagbeantwortung) . The answer may in whole, 
 or in part (qualifiedly) , be an admission, or denial 
 (Leugnen) ; or it may set up grounds of objection {Ein- 
 wendungen), which delay the process, or raise material 
 exceptions (pleas, Einreden) to the complaint. The 
 latter may be either dilatory or definitely conclusive, 
 that is to say, they may be either dilatory or peremptory 
 pleas,' whereupon replication (Replik), rejoinder {Dup- 
 lik), etc., may follow. 
 
 2. Procedure relating to proof (Beweisverfahren) with 
 or without [an interlocutory judgment (Beweisinterlokut) 
 establishing the thema probandum, onus probandi or 
 dilatio probatoria], or decree of proof (Beweisdekret) ; 
 
 3. Judgment ( Urteilsfdllung) ; 
 
 4. Appellate procedure (Rechtsmittelverfahren); 
 
 5. The procedure relating to execution, or the satis- 
 faction of the judgment by force^ {Zwangsvollstreckungs- 
 verfahren) . 
 
 ' Langheineken, loc. cit. (sec. 49 supra, note 2), pp. 292-303. points out 
 seventeen dilatory and twenty-six peremptory pleas as possible according to 
 German civil law. 
 
 ' With reference to the burden of proof, time of putting in proof, the form 
 of oath, and related matters, see the learned discussions of Adolf Stolzel, 
 "Schulnng fur die zivilistische Praxis," Berlin, 3d ed., 1898, pp. 79, et seq.; see 
 also Langheineken, der Urteilsanspruch (1899). 
 
270 SCIENCE OF LAW 
 
 The system of evidence of the German civil procedure 
 act attains its height in the provision allowing a free 
 valuation of proof (sec. 286) in opposition to the so- 
 called formal theories of evidence. 
 
 Remedies of appeal and error {Recklsmittel) in the 
 sense of the civil procedure act are: Appeal [Berufung: 
 this appeal goes from the district courts {AmtsgerichteY 
 to the general provincial courts (Landgerichte) , and from 
 the latter as courts of first instance to the civil senate 
 of the provincial court of appeals ( Oberlandsgericht) ; in 
 this appeal questions of fact as well as law may be 
 reviewed] (sees. 511-544); Revision [appeal from the 
 court of appeals to the supreme court involving a summa 
 revisihilis of 2500 marks (statute of June 5, 1905), and 
 touching only questions of law] (sees. 545-566) ; and the 
 Beschwerde [directed to other judgments than those 
 re-examined by appeal and revision, as for example 
 disciplinary punishment of parties, or even witnesses] 
 (sees. 667-577): (without new pleadings; sees. 578-591). 
 With reference to execution, see Z.P. 0., sees. 711—945 
 and also R.G., March 24, 1897, concerning bankruptcy 
 sales and other compulsory proceedings (Gar. R.G. 209- 
 210). 
 
 Administration of justice extends to the regulation of 
 the property concerns of a debtor^ whose liabilities 
 exceed his assets or which appear at least to be greater 
 than his assets. The legal rules which govern the condi- 
 tions and method of this protection of the private legal 
 interests, as well of the creditor as the insolvent debtor, 
 (bankrupt, insolvent) , are called general bankruptcy law 
 ( Konkursrecht) . This law severs into substantive bank- 
 
 ^ [Judge von Lewinski translates this "'county courts." He says they are 
 exactly analogous to English county courts. Dr. Otto Simon an attorney 
 at Mannheim-on-Rhine (in an article in Green Bag, July, 1910) translates 
 it "city or borotigh courts."] 
 
 ^ See supra sec. 22 (law of obligations). 
 
SYSTEMATIC CLASSIFICATION 271 
 
 ruptcy law and into bankruptcy procedure. It has for 
 its object the peaceable regulation' of the colliding inter- 
 ests of creditor and debtor by the application, through 
 peaceable measures, of the then existing assets of the 
 debtor so far as susceptible to execution to the claims of 
 creditors in conformity with the rules of bankruptcy. 
 
 The German bankruptcy act ( Konkursordnung) of 
 Feb. 10, 1877, is one of the four imperial judicature 
 statutes which became effective Oct. 1, 1879. It became 
 operative in a new form on Jan. 1, 1900, according to 
 imperial act of May 18, 1898 (promulgated by the chan- 
 cellor on May 20 of the same year)^- It legislates as 
 well concerning the substantive law of bankruptcy (the 
 administration of bankrupt estates and regulations gov- 
 erning claims against the bankrupt) , as the procedure of 
 bankruptcy (institution of proceedings, adjudication, 
 discharge, etc.).^ 
 
 * Friedrich Hellmann, Konkursrecht und Konkursprozess, in Birkmeyer's 
 Em., p. 1017; Lothar Seuffert, Das Konkursprosessrecht, Leipzig, 1899. 
 
 2 R.G.Bl, 1898, No. 25, p. 612 (Gar. R.G. 235-237). 
 
 ^Commentaries on the bankruptcy act; Voldemdorff (2d ed., 1885); 
 Sarwey (3d ed., revised by Bossert, 1895); Wilmowski (5th ed., 1896); 
 Petersen and Kleinfeller (3d ed.); Stieglitz (1879); Lothar Seuffert (see 
 note 1); H. Fitting, Lehrbuch (3d ed., 1899); J. Kohler (1891). 
 
272 SCIENCE OF LAW 
 
 SECTION 51 
 
 III. CRIMINAL LAW 
 
 The raising up of advantages of fact to legal advan- 
 tages results, as has been pointed out,^ through the 
 establishment of standards — commands and prohibi- 
 tions. These standards whether declared by the state 
 itself, or formulated by other agencies,^ are maintained 
 and supported by the authority of the dominant govern- 
 ing entity, and are recognized as obligatory. These 
 standards of human action operate on the faculties of 
 perception, and by means of this, on the will of those 
 persons who in their relations to others, are to be limited 
 and protected by standard. They operate in such 
 manner that motives are created to counteract egoistic 
 impulses which tend against social life and the ends of 
 society.^ 
 
 1 Sees. 2. 5. 
 
 ^ See supra, sees. 9, ]0, 12. "Athens makes the claim of fame for its 
 legislation, of a prodigious advance in the repression of private revenge, 
 and in having placed it under the established legal power of the state." — 
 Lipsius, Leipziger Rektoratsrede (1893), p. 21. "State criminal law, however, 
 was already known to the law of ancient Babylon in which the feud and 
 Wergeld [mulct money] were not even suggested." — Kohler «. Peiser. Ham- 
 muiabis G.B. (1904), p. 126. With reference to Islamitic criminal law^, see 
 Kohler, Gerichtssal, Bd. 41. 
 
 ^ See supra, sec 7. The ancient law book of Manu describes in a very 
 dramatic manner, the necessity of 'a state power over crimes, and the 
 sharpening of motives for the protection of legal lights: — 
 
 "For the (king's) sake the Lord formeriy created his own son, Punishment, 
 the protector of all creatures (an incarnation of) the law, formed of Brahaman's 
 glory." — Manu VII, 14. 
 
 "Punishment alone governs all created beings, punishment alone protects 
 them, punishment watches over them while they sleep; the wise declare 
 punishment (to be identical with) the law." — Manu VII, 18. Cf. also Julius 
 Jolly, Recht und Sitte, p. 129. 
 
 "The Whole world is kept in order by punishment, for a guiltless man is 
 hard to find; throuph fear of punishment the whole worid yields the en- 
 joyments (which it owes)." — Manu VII, 22. 
 
SYSTEMATIC CLASSIFICATK)N 273 
 
 The motives of human acts, created by legal order, 
 stand alongside those evoked by custom,' and morals,^ 
 and frequently are supported by the latter. In the 
 fulfillment of commands and in the observance of prohi- 
 bitions, men are actuated (aside from religious or pure 
 moralistic and like considerations) by the representation 
 of the necessity and beneficient harmony of conforming 
 to a general standard (the sense of order, the idea of 
 justice, law and sociality). They are actuated by the 
 representation of the necessity of security and order to 
 the development of civilization; or they may be influ- 
 enced by conceptions of acquisition, reward, good 
 name, etc. In the same manner representations of legal 
 injury, of liability, and of prejudice to reputation and 
 credit, also operate on the minds of men in social life. 
 
 These ideas of the good and evil effects of conduct 
 generate, or become motives, for the observance of stand- 
 ards; and for that reason the recognized relations of 
 social life are protected by standard, as legal advan- 
 tages.^ 
 
 To these motives, the state,, as an organization of 
 power, adds the new motive of punishment.^ When 
 
 "But where punishment with a black hue and red eyes stalks about, 
 destroying sinners, there the subjects are not disturbed, provided that he 
 who inflicts it discerns well." — ^Manu VII, 25. 
 
 "For when these creatures being without a king, through fear dispersed 
 in all directions, the Lord created a king, for the protection of this whole 
 (creation)." — Manu VII, 3. 
 
 "If the king did not, without tiring, inflict punishment on those worthy 
 to be punished, the stronger would roast the weaker, like fish on a spit." — 
 Manu VII, 20. 
 
 "The crow would eat the sacrificial cake and the dog would lick the sacri- 
 ficial viands, and ownership would not remain with any one ; the lower ones 
 would (usurp the place of) the higher ones." — Manu VII, 21. 
 
 ' See supra, sec. 6, IV, and sec. 2, note 1, p. 5, note 1, p. 7, and note 2, p. 8. 
 
 ' See supra, sec. 6, II. 
 
 ^ See supra, sec. 5. 
 
 * This thought may give rise to doubt in various ways. The term "new," 
 in the first place, is to be understood only as opposed to the motives pre- 
 viously mentioned. The state character of punishment and of criminal law 
 in the discussion above is intentionally emphasized. There are punishments 
 
274 SCIENCE OF LAW 
 
 the motives generated by command and prohibition, or 
 flowing directly and spontaneously therefrom, are not 
 sufi&cient to operate on the perceptive faculties of men 
 in such manner that a determined resolution arises not 
 to infringe the legal advantage, legal right of another 
 (whether an individual, or the community), then the 
 governing social entity may authoritatively set up a new 
 motive by a threat of evil as following such infringe- 
 ment. This occurs when it appears advisable to the 
 state, to fortify or sharpen the motives favoring peace- 
 able social existence in the interest of the protection of 
 an otherwise insufficiently protected legal right. ^ In 
 the event of non-observance and violation of a legally 
 protected interest,^ the threatened evil, in order that it 
 may not be idle from the beginning, must be actually 
 inflicted in cases of necessity; and this evil can only 
 partake of an injury of a legal advantage {malum pas- 
 sionis propter malum actionis.) 
 
 Punishment is an intentional injury to a legal advan- 
 tage of a delinquent, proceeding from the social will, 
 for the protection of the legal advantages of other indi- 
 viduals of the community. Punishment may be leveled 
 against or depend on cases where there is not yet 
 present an infringement of a legal advantage. The law 
 issues prohibitions and threats of punishment also 
 
 not of the state, and there is criminal law not of the state, as in the case of 
 canonical criminal law. A criminal law of the family is found antedating 
 the criminal law of the state, — the jus vitte ac necis of the paterfamilias^ 
 also the feud (family revenge), and collective revenge in general, as well 
 as an ethically derived expiatory necessity. These factors operate even after 
 the dominant coniniunit> has assumed the creation of impulses of criminal 
 punishment for the protection of standards; they influence the establishment 
 of criminal law on the part of the state, and are in part, at least, the founda- 
 tions, or starting-points, of public criminal law. See supra^ sec. 8, especially 
 note 3, page 67. 
 
 ^ Punishment as a social function. See v. Liszt, Lehrbuck des Strafrechts, 
 sec. 3. 
 
 2 Cf. V. Liszt, Lehrinich des Strafrechts, sec. 84, p. 289. 
 
SYSTEMATIC CLASSIFICATION 275 
 
 against such acts as usually involve a peril to legal 
 advantages.' 
 
 The purpose of punishment is protection of legal 
 advantages, in general, and in particular. Threat of 
 punishment, and visitation of punishment (the latter of 
 ■which may and should have other objects than those 
 indicated, as for example, reformation of the delin- 
 quent) do not create legal advantages. These advan- 
 tages are created by a promotive standard through 
 ■which conditions of fact are elevated to legally protected 
 relations, to legally protected interests. Threat of 
 punishment does, however, create a means for the 
 security of the object ■which the standard strives for. 
 It seeks to guarantee the observance of commands and 
 prohibitions, not directly, but indirectly; and thereby 
 to protect interests. 
 
 The method by ■which this result is to be attained, it 
 is apparent, is a legal method, operating by means of 
 commands and prohibitions. The primitive method, 
 out of ■which the feud and every other kind of collective 
 revenge arose, -was to place the person ■who had infringed 
 a legal advantage beyond the pale of protection of legal 
 advantage; either by subduing him by actual force, by 
 exercising physical compulsion over him and thereby 
 pacifying him; or by expelling him beyond the com- 
 munity of law, by surrendering him up as one out- 
 lawed, and beyond the reign of law; with the most 
 ferocious consequences in either case. 
 
 With the growth of the notion of law, this impulse of 
 society to destroy the criminal passed into the back- 
 ground. The legally dominant community operating 
 by means of command and prohibition in the protection 
 so far as possible of personality and its rights (even, as 
 to delinquents), substituted for these primitive tenden- 
 
 ' Binding, Die Normen, 1, 47; Handbuch, I, 170. 
 
276 SCIENCE OF LAW 
 
 cies which involved the annihilation of the criminal, 
 legal limitations by the establishment of criminal legis- 
 lation, and the recognition of a criminal law. Out of 
 this development arose the right of punishment on the 
 part of the state, as the legally recognized interest of the 
 state as the bearer of state power, to revenge violations 
 or injuries of legal advantages with certain injuries to 
 legal advantages. This interest is one legally recog- 
 nized ; but it is also one legally limited by the recognition 
 of the interest of the state, that the personality of the 
 criminal is not to be subjected to excessive corrective 
 punishment. 
 
 Binding is in agreement with this thought when he 
 says: "Criminal legislation is a legitimate measure, and 
 is in fact the establishment and standardization of the 
 legal relation between the criminal authorities and the 
 delinquent."' 
 
 The totality of legal rules upon which rights relating 
 to crime are based, and the legal standards by which 
 certain acts are threatened with punishment under the 
 application and direction of the state, forms the so-called 
 substantive law of crimes. It is that part of state law 
 which frequefttly is called criminal law. 
 
 Criminal legislation and the science of criminal law 
 deal in general and in particular with the objective and 
 subjective conditions of criminal acts (matters of fact, 
 attribution, etc.) ; with the kinds of punishment and 
 punishable violations of legal rights (delicts, either crimes 
 in the narrow sense, Verbrechen [punishable by death, 
 or imprisonment exceeding five years], Vergehen [pun- 
 ishable by fine exceeding 150 marks, or imprisonment up 
 to five years], or Ubertretungen [offenses punished by 
 
 ' Binding, Handbuch, I, sec. 38, p. 191. 
 
SYSTEMATIC CLASSIFICATION 277 
 
 arrest and fine up to 150 nparks] ) ; and with the relation 
 between ofEense and punishment.' 
 
 The criminal law of Germany was first extensively 
 codified in the penal code of King Charles V {constitutio 
 criminalis Carolina) in 1532.^ At the present time there 
 is in force in Germany, the criminal code of May 15, 
 1871 (amplified Feb. 26, 1876),' whose separate parts 
 are as follows: introduction (sees. 1-12); Part First: 
 the punishment of crimes and misdemeanors (sees. 13- 
 42), attempts (sees. 43-46), accessories, etc. (sees. 47- 
 50), grounds of withholding or extenuation of punish- 
 ment (sees. 51-72), plurality of criminal acts (sees. 73- 
 79); Second Part: particular crimes and misdemeanors, 
 and their punishment: high treason (sees. 80-93), 
 injuries to the sovereign (sees. 94^97), injuries to the 
 imperial princes (sees. 98-101), hostile acts against 
 friendly states (sees. 102-104), crimes and offenses 
 against the execution of civil law (sees. 105-109), resist- 
 
 * The following were primitive principles concerning the relation between 
 delict and punishment: the fundamental rule of simple retaliation 
 (ravTOTrddeta, lalio); eye for eye, tooth for tooth, hand for hand, foot for 
 foot, burning for burning, wound for wound, stripe for stripe, life for life. 
 — Mos. ii, 21, 24-25; Mos. iii, 24, 17-21; Mos. v, 19, 21 [cf. Matthew v, 
 38); Code of Hammurabi, sees. 196-200. 
 
 On the other hand, the fundamental proposition that that part of the body 
 is subject to punishment by means of which the delict was accomplished 
 as in the ancient Indian law: — 
 
 *'With whatever limb a thief in any way commits (an offense) against men, 
 even of that (the king) shall deprive him in order to prevent (a repetition of 
 the crime)." — Manu VII, 334. Cf. Julius Jolly, Recht «. Sitte, p. 130; cj. 
 Code of Hammurabi, sec. 195: "When a son shall strike his father, his hands 
 shall be cut off." 
 
 2 See also supra, sec 11. 
 
 ^ Commentaries: v. Oppenhoff, Rudorff, Olshausen, v. Schwarze, Stenglein. 
 Meyer, Rubo, Reinhard Frank. Literature: v. Holtzendorff's Handbucli 
 d. deutschen Strafrechts in Eimelbeitrdgen; Binding, op. cit.; v. Liszt, Lehr- 
 buch des deutschen Strafrechts, 10th ed., 1900. In place of all other literature, 
 there may be indicated: Die Strafgesetzgebung der Gegenwart in rechtsver- 
 gleichender Darstellung by Fr. v. Liszt and Gg. Crusen with the co-operation 
 of many other writers; R. Finger, Lehrb. d. D. Strafrechts; Karl Birkmeyer, 
 Das Strafrecht in Birkmeyer's Em., p. 1095: Karl Birkmeyer, Das Mili- 
 tarslrafrecht, he. cit.. p. 1203. 
 
278 SCIENCE OF LAW 
 
 ance to public authority (sees. 110-122), erimes and 
 offenses against public order (sees. 123-145a), counter- 
 feiting and coinage offenses (sees. 146-152), perjury 
 (sees. 153-163), false accusation (sees. 164-165), offenses 
 against religion (sees. 166-168), crimes and offenses 
 against the status of persons (sees. 169-170), crimes and 
 offenses against morals (sees. 171-184), affronts (sees. 
 185-200), dueling (sees. 201-210), crimes and offenses 
 against life (sees. 211-222), corporal injury (sees. 223- 
 233), crimes and offenses against personal freedom (sees. 
 234-241), theft and embezzlement (sees. 242-248), 
 robbery and extortion (sees. 249-256), encouragement of 
 theft and concealment of stolen property (sees. 257— 
 262), fraud and deceit (sees. 263-266), falsification of 
 records (sees. 267-280), crimes in bankruptcy (Bank- 
 ruptcy act, sees. 239-244), penal self-seeking and viola- 
 tions of the secrets of others (sees. 284-302), injuries 
 to things (sees. 303-305), crimes and offenses arising 
 out of acts perilous to the community (sees. 306-330), 
 crimes and offenses in public office (sees. 331-359), 
 lesser offenses {jjhertretungen) , sees. 360-370). (See 
 Gareis, Reichsgesetze, Nos. 143-146). 
 
SYSTEMATIC CLASSIFICATION 279 
 
 SECTION 52 
 
 IV. CRIMINAL PROCEDURE 
 
 The infliction of punishment is the visitation of an 
 •injury to the legal advantages* of the person punished 
 by the reproving state. Such impairment of legal 
 advantage, however, requires a definite rule permitting 
 such injury, in order that it may not itself become 
 illegal, where the entity receiving punishment is a per- 
 son, and as such is protected in his legal advantages. 
 The allowable rule employed by the state in its punitive 
 capacity and involved in the infliction of injury to legal 
 advantages by way of punishment, is the concrete 
 standard of criminal law. 
 
 It is through this standard that the interest apper- 
 taining to the state in the infliction of injury to legal 
 advantages {malum fassionis) becomes legally guaran- 
 teed: that is, becomes limited, recognized, and secured 
 by means of commands and prohibitions. Accordingly, 
 there arises a penal interest in a legally circumscribed 
 punitive claim {Strafanspruch) which belongs to the 
 bearer of criminal jurisdiction over delinquents. In 
 earlier times this jurisdiction, as far as it extended to 
 include graver offenses, was called Blutbann [causcB san- 
 guinis]. 
 
 This punitive claim is also a claim against the bearer 
 of the means by which the proper punishment shall be 
 inflicted on such delinquents. The bearer of these 
 means is the state. When the state by virtue of its 
 character as a legal community, feels that it has sus- 
 
 * Injury to the legal advantage of personal freedom (imprisonment); 
 of ownership (fines) ; and of life (the death penalty,) etc. 
 
280 SCIENCE OF LAW 
 
 tained a social injury by the commission of a crime, it 
 makes a penal claim based on the substantive criminal 
 law (sec. 51) directed agaiast the delinquent and against 
 the state as the bearer of the agency of punishment.' 
 It requires, to alter the expression, that the state as an 
 organization of force and the governing entity which 
 makes provision against delinquents in a substantive 
 law of crimes, shall inflict a threatened evil {malum 
 passionis) . 
 
 In order, however, that such injury to one's legal ad- 
 vantages may follow, the state, as an organization of force 
 which can not disclaim its nature as a legal entity, nor 
 its character as the protective instrument of rights, — 
 even those of the person accused — sets up a condition 
 against the expectation of punishment raised by formal 
 complaint. This condition is the necessity of proof, and 
 it requires the existence of such a case {malum actionis) 
 as entitles and obliges the state within the scope of legal 
 order (the substantive law of crimes) to protect legal 
 advantages by means of legal injury. This postulate of 
 proof is based on the totality of conditions of penal 
 culpability governed by concrete matters of subjective 
 and objective fact. It is to be met in such manner, that 
 the greatest possible security may exist that no inno- 
 cent person may suffer a deprivation of legal advan- 
 tage, and that no Ulegal or excessive injury shall be 
 inflicted on the guilty. 
 
 Accordingly, there is necessary to such proof, a suitably 
 regulated series of acts, a procedure,^ which is called 
 criminal or penal procedure. This procedure is one 
 legally regulated, as is the case in the determination of 
 matters of civil complaint (sec. 50). The legal reg-ula- 
 
 ^ The state as the dominant social entity possesses all the agencies of power 
 necessary to punitive execution (deprivation of legal advantages). This 
 follows from the dominion, the sovereignty of the state. See supra, sec. 46. 
 
 * The conception "procedure," see supra, sec. 50, note 1. 
 
SYSTEMATIC CLASSIFICATION 281 
 
 tion of this procedure — the totality of legal standards 
 for the determination of concrete criminal complaints, 
 and the confirmatory or non-confirmatory decision by 
 ■which there is legally guaranteed whether the require- 
 ments of proof of criminal culpability have been met — 
 is called criminal procedure. In analogy to civil pro- 
 cedure, the function of criminal procedure is legally to 
 limit and to protect the interest of the state as a legal 
 entity, by means of commands and prohibitions, in order 
 that the power of the state may not be applied or refused 
 inconsistently with legal order in the protection of legal 
 advantages.' 
 
 Criminal procedure is connected with the organic 
 constitution of courts. The answer in concreto to the 
 question whether a particular criminal accusation is 
 well founded lies with independent officers, the courts,^ 
 the criminal courts, who are limited only by law, in the 
 judicial judgment — ^the pronouncement of guilt or inno- 
 cence. 
 
 The kinds of courts are distinguished in general as 
 learned courts (Gelehrtengerichte) , popular courts ( Volks- 
 gerichte), and mixed courts. Mixed courts may be con- 
 solidated courts, such as assessor's courts {Schoffenge- 
 richte), or combined as in the case of juries (Schwurge- 
 richte). This touches a much discussed subject. (The 
 kinds of courts as 'they now exist in the German Empire 
 are enumerated in sec. 48, p. 258, note 2). 
 
 Criminal procedure is governed also by various impor- 
 tant principles, among which may be mentioned chiefly, 
 on one hand, the inquisitorial principle ( Untersuchungs- 
 prinzip), and on the other hand, the accusatory prin- 
 
 ' Cf. V. Liszt, Lehrbuch d. deutschen Sirafrechts, 10th ed., 1900, p. 20, also 
 the controversies regarding criminal law, id., sec. 16, p. 66. See further 
 the literature noted at sec. 50, note 1, page 266, siipra. 
 
 ^ See suprOt sec. 48; on the historical side, see the work of A. Stolzel noted 
 at sec. 50, p. 268, note 1, supra. 
 
282 SCIENCE OF LAW 
 
 ciple (Anklagsprinzip) , or a combination of both. The 
 fundamental principles of the oral and public character 
 of this procedure, both with exceptions, may also be 
 noted, according to which the different kinds of proce- 
 dure are distinguished.' In the procedure of accusa- 
 tion, according to the accusatory principle, the office of 
 the public prosecutor plays an important part. (See 
 sec. 48). 
 
 The parts into which criminal procedure is divided 
 are the initial procedure (preliminary procedure, pre- 
 liminary examination, general inquisition) ; procedure in 
 chief (in a certain sense coincident with what was at one 
 time called special inquisition, consisting principally of 
 the production of evidence, criminal complaint {Anklage) , 
 defense, and pronouncement of judgment) ; and appellate 
 procedure and punishment. 
 
 The German criminal procedure act of Feb. 1, 1877,^ 
 which is one of the judicature statutes which since 
 Oct. 1, 1879, has been in effect for the whole empire, 
 embraces: First book: general provisions: the essential 
 competence of criminal courts (sees. 1-6), the jurisdic- 
 tion of the courts (sees. 7-21), exclusion and rejection of 
 judges (sees. 22-32), judicial decisions and their promul- 
 gation (sees. 33-41), limitations and re-instatement of 
 former position (sees. 42-47), witnesses (sees. 48-71), 
 expert and eye witnesses (sees. 72-93), search and 
 seizure (sees. 94-111), arrest and provisional detention 
 (sees. 112-132), examination of the accused (sees. 133- 
 136), defense (sees. 137-150); Second book: (preliminary 
 procedure): public accusation (sees. 151-155), prepara- 
 
 * Cf. sec. 50, II, supra. 
 
 ^ Gareis, R.G., 125-130; M. Stenglein, Lehrbuch des deutschen Strafprozess- 
 rechts, 1887; K. Binding Grundriss des deutschen Strafprosessrechts, 4th ed., 
 1899; Karl v. Lilienthal, Das Sirafprozessrecht, in Birkmeyer's Em,^ p. 1233 
 and literature there noted; Lilienthal, Das Militdrstrafserichtsverfahren, 
 in Birkmeyer's Ens., p. 1309. 
 
SYSTEMATIC CLASSIFICATION 283 
 
 tion of the accusation (sees. 156-175), preliminary judi- 
 cial examination (sees. 176-195), decision regarding the 
 opening of chief procedure (sees. 196-211), preparation 
 for chief procedure (sees. 212-224), chief procedure (sees. 
 225-275), procedure in chief with jury (sees. 276-317), 
 procedure relating to absent persons (sees. 318-337). 
 Third book (appellate procedure) : general provisions 
 (sees. 338-345), complaint -re view (Beschwerde) (sees. 
 346-353), appeal (Berufung) (sees. 354r-373), revision 
 (sees. 374r-398); Fourth book: re-instatement of adjudi- 
 cated cases (sees. 399-413) ; Fifth book: (participation of 
 aggrieved persons in procedure) : private complaints 
 (sees. 414r-434), collateral complaints (sees. 435-446); 
 Sixth book: (varieties of procedure) : procedure in inferior 
 courts (sees. 447-452), preliminary police control (sees. 
 453-458), procedure relating to acts contravening 
 statutes for raising public taxes and revenues (sees. 
 459-469), procedure relating to absentees who have 
 avoided military duties (sees. 470-476), forfeiture and 
 confiscation of property (sees. 477-480); Seventh book: 
 (execution and costs): execution (sees. 481-495), and 
 costs (sees. 496-506). 
 
284 SCIENCE OF LAW 
 
 SECTION 53 
 V. ADMINISTRATIVE JURISDICTION 
 
 As has been repeatedly pointed out, the state in the 
 administration of its sovereign rights is bound by legal 
 rules. Standards on one hand protect the interest of 
 state administration, and on the other hand they limit 
 it in the interest of persons within the state. These 
 persons possess spheres of interest of their own, which 
 are recognized by positive law as legal spheres. 
 
 A conflict is always conceivable between the spheres 
 of iaterest of the individual and the interest spheres 
 of the state, in administration. There must, therefore, 
 exist some arrangement within the state for a deter- 
 mination of such cases of collision. Forasmuch as this 
 determination involves a decision, that is of a legal 
 conflict or controversy, between the right of the state 
 in its administration (admiaistration of sovereign rights'), 
 and the right of an individual or a corporation, a legal 
 controversy arises. Decision of such controversy is pos- 
 sible and allowable only according to a legally regulated 
 procedure and pursuant to authoritative and substan- 
 tive legal standards. 
 
 The same may be said of controversies between indi- 
 viduals or corporations regarding interests protected by 
 
 * Both "administration" and "sovereign right" are to be emphasized. 
 Administration only and not legislation can come to such a conflict. Legis- 
 lation stands imperatively above the supposed legal spheres in conflict, 
 nullifying or validating rights, and is not subject to decision. This is charac- 
 teristic of the sovereign legislation of the state. Onl> the administration of 
 a sovereign light may lead to a legal administrative controversy. The 
 administration of such legal advantages as may also appertain to private 
 persons, individuals, or associations (as chiefly in the administration of 
 property) is subject to decision by civil procedure. The state conforms 
 to the latter procedure in its capacity of iiscus. 
 
SYSTEMATIC CLASSIFICATION 285 
 
 public law; in other words regarding rights and duties 
 which spring out of public interests. Decision of these 
 cases which is possible only as based on positive external 
 law in a legally ordered procedure, is carved out of the 
 standards of public law. Inasmuch as public law is also 
 the source of decision in conflicts between legally guar- 
 anteed spheres of state administration of sovereign 
 rights, and the spheres of private persons, therefore both 
 classes of conflict may be united under the name "con- 
 troversy of administrative law" dependent on "admin- 
 istrative justice" which is also called "administrative 
 jurisdiction" (see sec. 48, V). 
 
 The exercise of this jurisdiction devolves on adminis- 
 trative courts in a procedure which is called the proce- 
 dure of administrative controversies, or simply adminis- 
 trative procedure (Administrativprozess) . Every ad- 
 ministrative controversy is grounded on a claim against 
 the state, which invokes its protection in analogy to 
 claims in civil procedure (sec. 50). The plaintiff in an 
 administrative controversy asks of the state, as the 
 bearer of state power — as well also as when the state as 
 an individual is the defendant — protection of a public 
 and legally recognized interest which has been violated 
 in the administration of a sovereign right of the state, 
 or that of a private person. The state, however, which 
 is applied to as an organization of force may, in that it 
 is a legal agency, afford the required protection, only on 
 the condition that it is established by proof that the 
 defendant — the state, or an individual — has infringed a 
 public and legally protected interest of the plaintiff.' 
 
 * The above conception of administrative controversies is treated in detail 
 by Gareis, Allg. Staatsrecht, in Marquardsen's Handbuch des offentl. Rechts, 
 Bd. I, p. 127. See also R. Gneist, Rechtsstaat, 2d. ed. (1879), pp. 267-277; 
 O. v. Sarwey, Das oifentliche Recht und die Verwaltungspflege (Tubingen, 
 1880), p. 4; v. Pozl, in the Oesterr. Zeitschr. fur Gesetzgebung und Recht- 
 sprechung auf dem Gebiete der Verwaltungspfiege, Bd. 11 (1878), p. 318; 
 Hermann Schulze, Lehrbuch des deutschen Staatsrechts, I, sec. 230, p. 640; 
 
286 SCIENCE OF LAW 
 
 The courts invested with jurisdiction over adminis- 
 trative law are frequently (at least in the case of inferior 
 courts) connected with the official administrative organi- 
 zation, or with the local government, local districts, of 
 the state. In the higher courts, as in the administra- 
 tive court, and in superior and supreme courts of admin- 
 istrative jurisdiction, these officials of justice are gener- 
 ally separate from this administrative organization. The 
 procedure in administrative law is modeled in general, 
 with modifications, after civil procedure, with variations 
 of form in different states, in accordance with the diverse 
 range of legal cases which are subject to decision in 
 administrative jurisdiction. 
 
 Tolly, in the Tubinger Zeitschr. f. d. ges. Staatswissenschaft (1878), pp. 476-506; 
 Gg. Meyer, Lehrb. d. deutschen Verwaltungsrpchts, I (1883), sec. 9, p. 28 (and 
 literature noted) ; Dr. Ludwig von Ronne, Das Staaisrecht der Preussichen 
 Monarchic (5th ed. rev. by Dr. Philipp Zorn), Bd. I (1899), p. 530; Max 
 Seydel, Grundzuge einer allgemeinen Staatslehre (1873), pp. 76-99; Seydel, 
 Bayerisches Staatsrecht, Bd. I-VII (1884-1894); Hue de Grais, Handbuch 
 der Verfassung und Verwaltung in Preussen {llth.&&., l^^l); Dietz-Kuchler, 
 Die Verwaltungsgeseizgebung des Grossh. Hessen., 2 vols. (1885, 1886); 
 Gareis, in the Oesterr. Zeitschr. f. Gesetzgebung und Rechtsprechung auf dem 
 Gebiete der VerwaUungsrechtspHege, Bd. II (1878), pp. 472-476; Gareis, 
 in Handb. des dffentl. Rechts, allgem. Staatsrecht (1883). pp. 129, 130; Adolph 
 Amdt, Von den Kontrollen der Verwaltung, in Birkmeyer's Enz* (1904), 
 pp. 917-922, in which the most recent establishment of administrative 
 judicature, that of the kingdom of Saxony (act of July 19, 1900) is discussed 
 (p. 922). 
 
SYSTEMATIC CLASSIFICATION 287 
 
 [SECOND DIVISION OF PUBLIC LAW] 
 
 INTERNATIONAL LAW 
 
 SECTION 54 
 
 THE NOTION, SIGNIFICATION AND SOURCES OF 
 INTERNATIONAL LAW 
 
 According to the distinction made above (sees. 14, 
 37, 38) public law embraces international law* and 
 state law. 
 
 International law is the totality of legal rules by 
 which the public interests of states among themselves — 
 the international relations of states — are legally governed 
 by legal duties and legal rights; and accordingly by 
 which the common interests of states are legally pro- 
 tected. 
 
 The sources of this indispensable though imperfect 
 peaceable adjustment among states are custom (there- 
 fore customary law)^ and legal necessity (accordingly 
 
 * The literature of international law begins with Hugo Grotius, De jure 
 belli ac pacts (libri tres, Paris, 1625). The principal works in the German 
 literature are; HefiEter, Das europaische Volkerrecht der Gegenwar*, 7th ed. 
 rev. by H. Geffcken, 1881; Bluntschli, Das moderne Volkerrecht der zivili- 
 sierten Staaten, 1872; v. Holtzendorff, Em. der Rechtswissenschaft (systemat. 
 Teil); Volkerrecht, in Handbuch des offentl. Rechts (1884), Bd. I (rewritten 
 in the 2d ed. of this publication by E. Ullmann (Munich, 1898), Bd. I, II, 2, 
 (XI); V. Martens, Volkerrecht (1883); Fr. \. Holtzendorff, Handbuch des 
 Vdlkerrechts, Bd. I (1885), Bd. II, III (1887) ; Franz von Liszt, Das Volker- 
 recht, Berlin, 1898 (see sec. 4, p. 18 for literature) ; Alphons Rivier, Lehrbuch 
 des Vdlkerrechts i\S&Q), arid Principes d-u droit internationale (1S96) ; Stoerk, 
 in Holtzendorff's Rechtsenzyklopadie, 5th ed. ; F. von Martens, International 
 Law (Ger. by Bergbohm, 1883-1888) ; Gareis, Institutionen des Vdlkerrechts, 
 2d ed., 1901, sec. 11; Augusto Pierantoni, Die Fortschritte des Vdlkerrechts 
 im XIX Jahrhundert (Ger. by Fr. Scholz, Berlin, 1899) ; Gareis, Die Fort- 
 schritte des internationalen Rechts im letzten Menschenalter; Franz v. Liszt, 
 Das Volkerrecht, in Birkmeyer's Ens., p. 1345, and literature there noted. 
 ^ See supra, sec. 10. 
 
288 SCIENCE OF LAW 
 
 jus necessarium) .^ International agreements (conven- 
 tional law) are subordinate to both of these sources, 
 but are a very prolific source of international standards. 
 
 The imperfection in the adjustment of international 
 peace lies in the fact that necessarily there is wanting a 
 legislative, directing and judicially compelling authority 
 over the states by which the standards of international 
 law may imitate the power exercised by the state in the 
 government of public and private legal relations within 
 the state. This deficiency in international law does 
 not, however, extend to a point where the existence of 
 international law must be denied.^ 
 
 The ancient state already had acknowledged the 
 authority of international law; and commerce with and 
 among barbaric peoples was not wanting in international 
 standards which were brought about by anticipated 
 advantages of reciprocity as well as by fear of retalia- 
 tion. Legal rules are observed, and legal duties are 
 recognized and respected^ even in the extremest violence 
 of state against state in war. The normal condition of 
 states in their relation to each other is one of peace. The 
 exalted purpose of international law is the legal mainte- 
 nance of this peace; the protection, cultivation and 
 furtherance of the common interests of the states by 
 peace; and therefore the guaranty of the prerequisite 
 conditions necessary to an unhindered cultural evolu- 
 tion within each state.* 
 
 ^ See supra, sees. 9, 12, ( Rechtsnotwendigkeit = Jural necessity.) 
 
 ^ Cf. Gareis, Inst, des Volkerrechts, sec. 2, and literature noted; Stoerk, in 
 J. LB. V. K., Heft 9. 
 
 ^ See Gareis, Genfer Konvention (Giessen, Emil Roth, 189.5). 
 
 * As to the relation of German politics to this aspect of international law, 
 in connection with the maintenance of a world peace, and the furtherance 
 of the common interests of civilized states, see Gareis, Inst, des Volkerrechts 
 (1902), sec. 7, p. 24; sec. 8, pp. 24, 2.5, 29. 
 
SYSTEMATIC CLASSIFICATION 289 
 
 SECTION 55 
 
 SYSTEMATIC SURVEY OF THE CONTENT OF 
 INTERNATIONAL LAW 
 
 In order to arrive at a clear exposition of the content 
 of international legal standards, it is necessary to pro- 
 ceed from the fact that a community of interests among 
 states exists and is recognized; and that legal standards 
 are adopted for the protection of these interests. A 
 review of the genesis and nature of these protected inter- 
 ests is the chief thing for discussion, in consonance with 
 these principles of international law. 
 
 This discussion is found in treatises on international 
 law, and as a rule in the preliminary or general part of 
 these works. The treatment requires a consideration of 
 the holders (Inhaber) of the common interests whose 
 protection is the object of international law; that is to 
 say, the subjects of international law — the states. It 
 also requires consideration of the objects of these inter- 
 ests; that is to say the connections of fact {Beziehungen) 
 and things of international law. Finally the origin, 
 alteration and abrogation of protected interests are to 
 be treated. 
 
 The so-called "general part" of international law is 
 followed by an exposition of protected special interests. 
 These special interests may be approached in a two- 
 fold direction. On the' one hand, according to their 
 content (matter, material). In this case specially pro- 
 tected interests are treated as real, or material in the 
 so-called substantive part of international law. 
 
 In another direction, consideration may fall on the 
 kind of measures. The aim of these measures, when it 
 becomes necessary to employ them, is the protection of 
 
290 SCIENCE OF LAW 
 
 interests. These measures are employed when inter- 
 ests come into conflict. This division may be desig- 
 nated as the procedural or formal part of international 
 law. It naturally severs into two subdivisions in accord- 
 ance with the fact as to whether the measures employed 
 are peaceable or involve the use of force. 
 
 Substantive international law therefore embraces: — 
 
 1. The legal rules for the protection of the primary 
 or elementary interests of the state — the so-called funda- 
 mental rights of states — ^generally distinguished as of 
 four kinds ; 
 
 2. The international legal interests of heads of states, 
 including non-sovereign, as well as sovereign heads; 
 
 3. The international legal interests of officers (the 
 authorities of international law, including principally 
 the international legal position of envoys of which there 
 are four classes according to rank; and of consuls of 
 which there are two chief classes: commercial and juris- 
 dictional consuls;' 
 
 4. The international interests of subjects of the 
 state so far as applicable; that is, so far as states have 
 legal duties toward such subjects; 
 
 5. International interests in the state domain, or 
 more accurately stated, the international regulation and 
 protection of the interests of states in their territory. 
 
 Substantive international law including these five 
 different groups is susceptible of and even requires 
 another group based on the sources of international 
 law. It accordingly embraces a consideration of the 
 authoritative scope of the rules flowing therefrom. 
 
 These legal rules are to be considered as abstract rules 
 of international law, derived ex lege, as it were, springing 
 from customary law, and the necessity of law (Rechts- 
 notwendigkeit) ; and are to be treated as the commonly 
 authoritative, general, and necessary international law. 
 
 • Cf. Liszt, V.R., sec. 15. 
 
SYSTEMATIC CLASSIFICATION 291 
 
 Interests may, however, be regulated in relations 
 between two or more states under special arrangements 
 different from the general rules of international law. 
 States may define and guarantee the interests common 
 to themselves otherwise than by the general rules of 
 custom and jural necessity; but only to the extent that 
 principles of international law which are lex cogens are 
 not departed from. There is, therefore, a special or 
 conventional international law, and there are special 
 rights and duties of states arising from international 
 agreement. Accordingly, in each of the five groups of 
 interests, and the legal institutions protecting them, 
 there are operative two kinds of legal standards. On 
 one side these standards are those of jus necessarium and 
 jus consuetudinarium; and on the other those of jus 
 voluntarium (voluntary law, special law, law arising 
 from agreement) . 
 
 In the procedural or formal part of international law, 
 the principal treatment relates to the so-called laws of 
 war : (a) the rules for the conduct of war, and (6) causes 
 or grounds of war embracing legal rules concerning sub- 
 jects, objects and agencies of war. This part also in- 
 cludes the law of neutrality, and the law governing the 
 conclusion of peace. 
 
292 SCIENCE OF LAW 
 
 SUPPLEMENT TO PRIVATE AND PUBLIC 
 
 LAW 
 
 [Supplementing Sections 14-55] 
 
 SPECIAL LAW OF PROFESSION AND POSITION 
 
 SECTION 56 
 SPECIAL LAW, GENERAL PART 
 
 In the exposition and survey of legal standards, the 
 system of law, as hereinabove considered, is derived from 
 the essential nature of law (the protection of interests) . 
 It is based on the differences in the holders of interests 
 (public and private interests), and derived from varia- 
 tions in the objects of interests (things, personal rela- 
 tions, or duties in private law, sovereign rights in pub- 
 lic law, etc.) . This system may, however, be abandoned. 
 
 In the treatment and arrangement of legal rules, 
 another viewpoint may be taken. The classification of 
 standards may be varied by a difference in their co- 
 ordination. Other relations and different contrasts will 
 appear by this change than in the system derived from 
 the conception of rights and interests (see sec. 14). 
 
 Didactic and practical considerations may suggest 
 themselves in such variation of standpoint. It is pos- 
 sible that a concrete theory might regard it as desirable 
 to arrange legal rules in another order than the system 
 based on the notion of rights requires. Considerations 
 of practical life may possibly also lead to a system of 
 classification easier of approach and application from 
 the standpoint of practical men. 
 
 Accordingly those legal rules which relate to the 
 members of a special station in society, whether by 
 
SYSTEMATIC CLASSIFICATION 293 
 
 reason of birth, or occupation, or on account of member- 
 ship in a particular association or corporation, may be 
 arranged in a special co-ordination; and as such be 
 treated with or without regard to what position these 
 legal rules may have in the system considered (sees. 
 14^55). So-called special laws, such as laws of pro- 
 fession, of social position, and including the law of cor- 
 porations, are developed from such standpoints. 
 
 Considered from the viewpoint of a special legal posi- 
 tion flowing from birth, the exposition of the law of 
 nobility' allows of a more striking and obvious develop- 
 ment in a special department than is possible in treat- 
 ment of the same matter in connection with the bulk 
 of the system. The material of this special law illus- 
 trates the point: for example, the privileges of nobles 
 in public law, the peculiarities of family law governing 
 the higher nobility, ancestral property, and the related 
 rights of inheritance, etc. 
 
 In a similar manner the presentation of feudal law^ is 
 that of a kind of special law, derived in part from inter- 
 ests of position, and in part from interests of special 
 private law (sec. 21, 3, supra). 
 
 A prolific classification of private and public legal 
 standards is afforded by the standpoint of different 
 economic activities. 
 
 By way of illustration, the totality of legal rules of 
 international law,^ state law' and private law^ relating 
 to forestry, the control of forests and the forest police 
 may be grouped and treated as a so-called law of 
 
 ^ Cf. Gg. Beseler, System des gemeinen deutschen Privatrechts, 3d ed., sees. 
 168-176; H. v. Schulze-Gavemitz, Das deutsche Furstenrecht, in Holtzen 
 dorff's Em., 5th ed., p. 1349; Hermann Rehm, Modernes Furstenrecht (1904). 
 
 2 Beseler, op. cit., sees. 147-167; see infra, sec. 57, note 2. 
 
 ' The provisions relating to wood tolls ( Hohzolle) in international agree- 
 ments. 
 
 * Forest-police commands and prohibitions, the fundamental rules relating 
 to state management of forest domains. 
 
 * Provisions relating to forest servitudes, usufructuary forest rights. 
 
294 SCIENCE OF LAW 
 
 forestry. The same may be said of the related provi- 
 sions of jus publicum and jus privatum concerning hunt- 
 ing, fishery, mining, agriculture and colonies. It fol- 
 lows that the subject-matter of the law of hunting, 
 fishery, mining law, law of agriculture,' and the law of 
 colonies,^ etc., may be treated as varieties of special law. 
 
 In the development and exposition of these and other 
 classes of special law a double aspect is possible. Such 
 special law may include only those legal rules peculiar 
 and singular to the position or occupation under con- 
 sideration. This is special law in a narrow and technical 
 sense. It may embrace also such legal rules of the resid- 
 uum of private or state law as are not distinctive of the 
 particular occupation or position ; but which the persons 
 of such position, or occupation, must be familiar with in 
 order properly to develop the interests of such special 
 station or employment.' 
 
 It is apparent that in the demarcation of such special 
 law in the wider sense, scientific treatment may include 
 for exposition a greater or less quantity of related mate- 
 rial of public and private law. This is also true of theo- 
 retical treatment of special legal departments, embracing 
 industrial, commercial, or similar groups of activities. 
 Thus a law relating to industrial pursuits,* a law of 
 manufacture, a law of commerce,' postal law, railroad 
 law,' military law,' bourse law, insurance law, etc., may 
 embrace all those standards of state and private law 
 which relate to the activity or station under considera- 
 tion, either specially or by implication. 
 
 ' C' Beseler, op. cil., sees. 177-179. 
 
 ' Cf. Gareis, Deutsches Kolonialrecht, 2d ed. (Giessen, Roth, 1900.) 
 ^ This viewpoint touches the law of forestry and the law of agriculture 
 in a special and conclusive way. 
 < Beseler, op. cit., sees. 210-213. 
 * See below, sec. 58. 
 
 ' Cf. Endemann, Das Eisenbahnrecht (1887). 
 "^ This would include military criminal law. See Birkmeyer's Em., p. 1203- 
 
SYSTEMATIC CLASSIFICATION 295 
 
 That variety of legal standards which govern the legal 
 relations of associations and corporations among them- 
 selves and which refer to the relations of their members 
 as such among themselves, and to such associations, 
 may also in like manner be consolidated as a special 
 totality of rules. 
 
 This unification becomes all the more important in 
 proportion to the greater social end to be attained, and 
 in accordance with the influence of such associations on 
 social life, and the advance of civilization. An import- 
 ance, possibly, attaches also on account of the influence of 
 such organizations on the form of the law itself. An 
 influence on the form of the law is exerted by such asso- 
 ciations as exercise an autonomy and have an independ- 
 ence in the creation of the standards for their legal rela- 
 tions (sees. 9, 126, 15). 
 
 In religious associations all these influences have com- 
 bined to create a law, church law, encompassed by a 
 special importance. In past centuries, in fact, the 
 importance of this law extended so far that a twofold 
 division of the entire legal system resulted: the jus 
 civile (ccBsareum, seculare or profanum), and the jus 
 canonicum (ecclesiasticum, or pontificium) } 
 
 Church law and commercial law are subjects of special 
 treatment by reason of their historical and practical 
 importance; as well also on account of their extensive 
 legislative and theoretical development as special depart- 
 ments of law; and because of their historical acceptance 
 as special departments of juridical study and learning 
 (sees. 57, 58). 
 
 ' Therefore the title, "doctor juris utriusque." With reference to the meaning 
 of jus canonicum, see sec. 57, infra, page 297, note 3, 
 
296 SCIENCE OF LAW 
 
 SECTION 57 
 
 CHURCH LAW 
 
 Church law is the totality of legal principles' by which 
 those religious societies called churches are legally regu- 
 lated as external and tangible associations.^ Church 
 law involves state law and private law in so far as these 
 legal principles are based in part on interests of the 
 dominant community, in part on the interests of churchly 
 associations themselves, and in part on the interests of 
 their members. 
 
 Examples of standards of public law are those con- 
 cerning the placetum regium, the penal provisions for the 
 protection of the legal spheres of churches, certain special 
 reserved rights of ratification, state standards of super- 
 vision, etc. Standards of private law^ are such as gov- 
 ern the internal organization of church associations, the 
 administration of church property, etc. 
 
 With respect to their sources (in so far as the standards 
 of church law are established by the state) they are 
 state standards, laws in the ordinary and substantive 
 sense of the word. This is so whether they protect 
 state or church interests; and accordingly whether, as 
 to their content and form, they are the material of state 
 law on one side, or church association (and therefore 
 private) law, on the other. 
 
 Such standards of the state, however, form the least 
 important part of the historically derived church law 
 
 * Church law as special law. See sec. 56 (end). 
 
 * Concerning this notion see Hinschius, in Holtzendorff's Em., sec. 2; 
 and V. Schulte, Lekrbuck des kathol. ttnd evangel. Kirchenrechts (4th ed. on 
 Catholic Church law, and 1st ed. on Lutheian church law, 1886), sec. 2 and 
 literature entered. 
 
 ^ In this aspect, churches are considered as juristic persons. See supra, 
 sec. 15, No. 1; cf. also sec. 23, III, No. 5 (end). 
 
SYSTEMATIC CLASSIFICATION 297 
 
 of the Catholic Church. The internal power of the 
 church has developed a large number of standards which 
 prevail as the proper autonomous law of the church 
 (sees. 9, 12); to the extent that the state has not denied 
 them its legal recognition and sovereign authority.' The 
 rules created in this way by autonomous church legis- 
 lation as well as the effective customary rules prevailing 
 within the scope of the church (that is the statutory law 
 and the law of observance of the church)^ are called 
 canon law' in a technical sense, and church law in a nar- 
 rower as well as usual sense. 
 
 Canon law consists of those legally regulative and pro- 
 tective, autonomous standards appertaining to the 
 internal affairs of the church as a dispensary of the 
 Gospel. The fundamental intra-church principles con- 
 cerning the exercise of potestas jurisdictionis in the 
 Catholic Church are of this nature. 
 
 In consequence of dogmatic differences the original 
 and authoritative unity* of the church became shattered 
 in the Orient and later in the Occident. The ancient 
 churchly organization, under the influence of political and 
 other historical connections, broke up into a plurality of 
 such associations , also called churches . A variety of church 
 law resulted. There is a Catholic, a Greek and Lutheran 
 church law. This diversity even became intensified in 
 that each of these churches split up geographically (and 
 frequently also under the influence of state politics) into 
 different sects and national churches. 
 
 * See supra, sees. 8, 9. 
 
 ^ See supra, sec. 12, (&). 
 
 ^ (Jus) canonicum is derived from Ktxvthv meaning rule, plumb-line, 
 regulation. Accordingly tlie accepted books of the cliurch become the 
 plumb-lines, or measures of belief, and are called canonical books. The 
 designation of the small divisions (paragraphs) of church statutes, as canones, 
 arises from this meaning. 
 
 * The term "church" appears to be referable to its foundation in Christ — 
 (from KvpuiKif, sc. oIkIo, meaning the Lord's house). 
 
298 SCIENCE OF LAW 
 
 In each of such divisions concurrently with common 
 legal standards, called jus ecclesiasticum commune, par- 
 ticular legal standards of political as well as churchly 
 origin known as jus ecclesiasticum. particulate prevail as 
 opposed to jus commune of the sect or division under 
 consideration. Each of these varieties of church law 
 has its own history. As a rule in academic literary 
 treatment, "church law," in general, includes the collec- 
 tive common law of the church and the most important 
 peculiarities of particular church law, of the creed under 
 consideration.' 
 
 Treatment of church law proceeds from the notion of 
 church. It involves accordingly the historical, the 
 practical and the dogmatic sources of this law. Accord- 
 ing to the content of the self-imposed foundations of 
 common or particular church law of the creed under 
 consideration, it investigates and explains the relations 
 between State and Church ;^ taking in turn a historical, 
 political or purely ideal standpoint. The fundamental 
 principles of the constitution of the church, including 
 
 * The common and particular church law of each creed has its own litera- 
 ture. For reasons quickly conceivable the literature of church law of the 
 Catholic Church is one of great volume. Of the more recent texts of Catholic 
 and Lutheran church law are the following: Paul Hinschius. op. cif. (note 2, 
 page 296) ; v. Schulte, op. cit. (note 2, page 296) ; Friedberg. Lehrbuch des kath. 
 w. evang. Kirchenrechis, 5th ed., 1903; Hinschius, Das Kirchenrecht der 
 Katholiken und Protestanten in Deutschland, Bd. I (1869-1897) ; Otto Meyer, 
 Lehrbuch des Deutschen Kirchenrechis, 3d ed., 1869; Richter-Dove-Kahl, 
 Lehrbuch des kathol. und evangel. Kirchenrechis, 8th ed.; J. Silbernagl, 
 Lehrb. d. kath. Kirchenrechis, etc. (Regensburg, 1880) : Zom, Lehrbuch des 
 Kirchenrechis (Stuttgart, F. Enke, 1888); Wilhelm Kahl, Lehrsystem des 
 Kirchenrechis und der Kirchenpolitik (first half, 1894) ; Paul Hinschius and 
 Emil Seckel, Das Kirchenrecht, in Birkmeyer's Enz., p. 1417 and literature 
 cited. 
 
 For a review of the recent literature of particular church law see v. Schulte, 
 Lehrbuch, etc. (1886) (for Germany, pp. 36-39; Austria, p. 40; France, pp. 40, 
 41). See also Gareis and Zom, Stoat und Kirche in der Schweiz, Bd. I (1877) ; 
 Bd. II (1878). 
 
 ^ See Paul Hinschius, Allgemeine Darstellung der Verhdltnisse von Staat 
 und Kirche, in Marquardsen's Handbuch des offentltchen Rechts, Bd. I (general 
 part, 1883); Gareis, and Zom, op. cit., pp. ^, 14, 18; Hinschius, in Birkmeyer's 
 Enz., p. 1493. 
 
SYSTEMATIC CLASSIFICATION 299 
 
 church authority, its representatives and organs, and 
 the loss and acquisition of churchly authority— the 
 elements and organs of the church entity — are embraced 
 in this treatment. The principles of church adminis- 
 tration including the expression of churchly power in 
 various church offices, and the property relations of the 
 church follow the treatment of constitutional principles. 
 The texts of church law as a rule also mention or treat 
 the positive rules dealing with church life in general. 
 They discuss the rules concerning affiliation with or 
 withdrawal from the church, church service, churchly 
 association, etc. 
 
300 SCIENCE OF LAW 
 
 SECTION 58 
 
 COMMERCIAL LAW 
 
 Commercial law (Handelsrecht) is the special law of 
 commercial transactions. The economic activity which 
 is called commerce (the sale and interchange of goods 
 between producer and consumer) as well as a variety 
 of pursuits which make possible or further this exchange, 
 such as the business of transportation, insurance and 
 banking, have been the subject-matter of special law 
 from the time that these pursuits were exercised as 
 regular business activities. A special law of commerce 
 sprang up as soon as the general civil law did not suffice 
 to protect the interests peculiar to commerce. 
 
 The necessity for special law in matters of commerce 
 embracing those legal relations peculiar to the trading 
 classes, as well as those legal relations arising out of 
 commerce (or regarded as of this class of activities) -was 
 the more easily satisfied, as persons active in business 
 pursuits in those countries where commercial law sprang 
 up as special law, were united in permanent corporate 
 organizations or • guilds enjoying a special jurisdiction 
 among themselves. This was a circumstance especially 
 favorable to the origin of special legislation, as well as 
 special custom (usages) in commercial affairs. Italy, 
 the south of France, the north of Spain, and the cities 
 lying in the Danube and Rhine domains are the places 
 where commercial law in Europe first evolved as special 
 law. 
 
 This law experienced the most important codification 
 in France in the Code de Commerce (1807) which became 
 the type of commercial legislation for nearly all of the 
 
SYSTEMATIC CLASSIFICATION 301 
 
 civilized world.' Germany arrived at similar legislation 
 in the so-called General German Commercial Code which 
 was the work of a commission (1857-1860), becoming 
 effective first as state legislation, later operative as a 
 Bund statute, and finally as an imperial statute. In 
 connection with the establishment of the German Civil 
 Code a revision of the commercial code became neces- 
 sary, which in its new form became operative at the 
 same time as the civil code, and is now an imperial 
 statute. 
 
 The H.G.B. (May 10, 1897) governs commercial rela- 
 tions only to the extent that these relations are connected 
 with a regular business activity. 
 
 The first book deals with: (1) trades-people; (2) the 
 commercial register; (3) firms; (4) commercial records; 
 (5) agents and authorities under powers; (6) clerks and 
 apprentices. 
 
 The second book embraces the law of commercial asso- 
 ciations, and silent partnerships, and includes: (1) public 
 partnerships; (2) commandite partnerships; (3) share 
 companies; (4) commandite share companies; (5) silent 
 partnerships. 
 
 The third book deals with commercial transactions, 
 and includes: (1) commercial acts in general and in par- 
 ticular; (2) sale; (3) the commission business; (4) the 
 forwarding business; (5) warehousing; (6) the freight 
 business; and (7) the conveyance of goods and persons 
 by rail. 
 
 The fourth book governs commerce by sea. (Amend- 
 ments, see R.G. June 2, 1902, and May 12, 1904). 
 
 In additional to this code,^ there are a number of other- 
 
 ' A good German translation appears under the title Die gelteuden Handels- 
 gesetze des Erdballs, by Oskar Borchardt, 3d ed. by J. Kohler with the 
 co-operation of M. Apt and H. Dove (1904). 
 
 ^ On the history of this code and its revisions see Gareis, Das deutsche 
 H.G.B., 3d ed. (Munich, 1905, C. H. Beck); also Gareis, d. H.R., sec. 3. 
 
302 SCIENCE OF LAW 
 
 statutes* which are concerned with the standardizing of 
 the special relations of commerce. The General Ger- 
 man Bills of Exchange Act (1847) which antedated the 
 commercial code, and which also is now imperial law, 
 may be mentioned. This statute deals with bills of 
 exchange, the most important kind of commercial paper 
 (Wertpapiere) , which as a rule are instruments drawn to 
 order ( Orderpapiere) ^ and of which two chief classes have 
 received statutory recognition and have been standard- 
 ized: the draft {gezogene Wechsel), and the promissory 
 note (eigene Wechsel). 
 
 The varieties of commercial transactions recognized 
 by law are enumerated in the law of obligations (above 
 sec. 23, III, particularly Nos. 1, 2, 5, 6, 7, 13-24, 26-31).^ 
 
 ' For example, the depository act of July 8, 1896 (Gareis R.G., 203, 204). 
 
 ''Cf. supra, sec. 23, III, No. 31. 
 
 ^ For the most recent literature of German commercial law, see Cosack, 
 Lehrbuch des Handelsrechts; Gareis, Das deutsche Handelsrecht; H. O. 
 Lehmann, Handels-Wecksel- und Seerecht, in Biikmeyer's E«s., p. 613, 
 and literature there mentioned. See also the decisions of the R. O. H. G. 
 and R.Gr. in matters of commercial law published by Otto Fuchsberger, 
 3d ed. (Giessen, Emil Roth, 1899). 
 
 For literature of the law of bills of exchange see Kuntze and Brachmann, 
 also Cosack, op. cit. and Gareis, op. cit.\ see also O- v. Wachter, Ertzyklopddie 
 des Wechselrechts (1880) ; and see also the commentaries of S. Borchardt 
 (8th ed.), Rehbein, and Staub. 
 
METHODOLOGY 303 
 
 METHODOLOGY OF LEGAL SCIENCE 
 
 SECTION 59 
 
 NATURE AND FUNCTION OF THE METHODOLOGY 
 OF LEGAL SCIENCE 
 
 Methodology of legal science deals with the kind and 
 method of study of the science of law. It is also called 
 juristic hodegetics' or the learning which provides the 
 means of scientific knowledge of the law. 
 
 The attribute of scientific knowledge is that it is system- 
 atic. It is knowledge which classifies its objects accord- 
 ing to their similarities and differences, and according to 
 their co-ordination and subordination, in a fixed, living 
 and organized whole. ^ 
 
 There are three avenues which lead to such knowledge 
 of a positive legal system: dogmatism, legal history and 
 interpretation. 
 
 The dogmatic method seeks to embrace the entire 
 extent of positive law as a system, from the beginning, 
 and to state it as such. In this method the isolated 
 standards of legal order are regarded at once as parts 
 of a system. They are arranged and organized accord- 
 ing to the laws of logic, by means of definition and classi- 
 fication.' 
 
 The historical method* endeavors to exhibit legal 
 order as a progressive unity. It shows the origin, evo- 
 lution, alterations and modifications of individual legal 
 
 ^ This term is derived from 65As (the way), oSyjyTjT-^i (the guide, leader), 
 odriyriTiK'^ (sc t^X""!) (guidance, instruction). 
 ^ See supra, sec. 3. 
 ^ See supra, sees. 3, 4, 12. 
 * See supra sec. 3. 
 
304 SCIENCE OF LAW 
 
 institutions' in the efflux of the history of the social 
 entity under whose authority regulative precepts of 
 conduct develop into legal rules. ^ 
 
 The method of interpretation^ starts from the text of 
 a given standard (preferably the jus scriptum)* and 
 demonstrates the legal rule in itself, apart from its dog- 
 matic connections and its historical development. It 
 seeks to attain through the meaning of the spoken words, 
 as they are expressed, a systematic organization without 
 which scientific knowledge can not exist. 
 
 The existence of these three methods of study sepa- 
 rately, or in combination, indicates that the separate 
 divisions of positive law do not necessarily coincide 
 with the separate divisions of legal study which are 
 called the departments or disciplines of study. 
 
 The historical method sometimes leads to results 
 which even ignore^ the important distinction between 
 public and private law, and also to variations which run 
 counter to the systematic conclusions of legal dogma. 
 This occurs and becomes of special importance, and as a 
 matter of necessity, where it is historically established 
 that the existing law of a country is a compound of 
 foreign standards and domestic rules. In such case, 
 each group of legal rules distinguished according to 
 origin, requires special historical and dogmatic treat- 
 ment and exposition.' Legal education under the influ- 
 ence of political conditions, frequently finds it necessary 
 to take account of foreign elements, or of the legal 
 necessities of particular estates or classes of persons. 
 
 * Concerning this notion see supra, sec- 5, note 1, page 33. 
 2 See supra, sees. 7, 8, 9, 10, 11 and 12. 
 
 ^ See supra, sec. 13. 
 
 * See supra, sec. 11. 
 
 ^ For example in the study of German imperial and legal history. 
 ° For example Roman private law (the pandects) and Roman legal history 
 on one hand; and on the other, German private law and German legal history. 
 
METHODOLOGY 305 
 
 It therefore results that as legal science also has practical 
 ends* for accomplishment that there are distinctions in 
 the legal system which require special departments of 
 study. 
 
 The derivation of the departments of law, from the 
 historical evolution of a positive legal system, is sketched 
 in a masterly manner with valuable literary references 
 by L. Goldschmidt, Enzyklopadie der Rechtswissenschaft 
 im Grundriss (1862). In outlining the position of the 
 law during the fourth period of Germany's legal develop- 
 ment (that is to say, during the period of the feudal 
 Bund up to the dissolution of the empire), this work 
 points out and minutely examines in a series of epochs 
 the relation between legal evolution and legal science. 
 
 The want of a legal history of the period since the 
 16th century is not fully satisfied, but yet is in part 
 most excellently supplied in the Geschichte der deutschen 
 Rechtswissenschaft of R. v. Stintzing. This monumental 
 example of painstaking effort, which forms the 18th 
 volume of the history of the sciences in Germany of 
 modern times, was published under the direction of his 
 majesty, the king of Bavaria, by the Royal Academy of 
 Sciences. This work, the first part of which appeared 
 in 1880, unfortunately was not completed by the author 
 by reason of his sudden death. Aided by manuscripts 
 of the late author, a second part, however, embracing 
 German jurisprudence during the greater part of the 
 17th century was published in the year 1884 by Ernst 
 Landsberg. 
 
 In the severance and development of the departments 
 of the law the following portions of this work are of par- 
 ticular importance: chapter 4 (the scientific method 
 embracing a period up to within the 17th century) ; 
 chapter 7 (origin of the synthetic method and the con- 
 
 ^ Cf. supra, sec. 3, I. 
 
306 SCIENCE OF LAW 
 
 test of principles up to the middle of the 16th century) ; 
 chapter 14 (criminal law — ^in the first part) ; chapter 16 
 (the foundation of a German legal science) ; chapter 17 
 (state law) ; and chapter 21 (the leaders of the evolution 
 of state law). The third part of the Geschichte der 
 deutschen Rechtswissenschaft by Ernst Landsberg inde- 
 pendently, appeared in 1898. This part of the work 
 begins with natural law and the publications on positive 
 law the authors of which died after the year 1709. The 
 chapters of the half volume published up to this time 
 carry the following titles : the basis of natural and inter- 
 national law; the transitional period of 1680-1710; Chris- 
 tian Thomasius; the publicists and the Halle School; 
 the practical jurists and the elegant jurisprudence; the 
 summit; antiquarian investigation; the Wolffian school 
 and others ; Moser and Putter ; the war of enlightenment ; 
 the dominion of natural law; the turning point of the 
 century. In 1898 a supplementary volume of notes and 
 excurses (pp. 326) was published. 
 
METHODOLOGY 307 
 
 SECTION 60 
 
 THE DEPARTMENTS OF LEGAL SCIENCE 
 
 Practical considerations and historical circumstances' 
 determine the course of legal study. The ends to be 
 attained and practical requirements on one hand, and 
 the reception of foreign law and the cleavages of law 
 according to country, rank and position, associations 
 and profession on the other hand, have led to divisions 
 in the study of the systematic organization^ of the legal 
 system. These divisions or disciplines may be parti- 
 tioned^ into : — 
 
 I. Principal studies; 
 II. Subordinate studies; and 
 
 III. Auxiliary studies. 
 
 I. The principal disciplines (according to the funda- 
 mental division of the legal system) sever into those of 
 private law (sec. 15), noted below as A; and into those 
 of public law (sec. 37), noted below as B. 
 
 The principal departments of study including these 
 two groups from which follows a mixed group (C) com- 
 posed of matters in common with both private and public 
 law, require to be preceded by an "Introduction to the 
 Science of Law" * through which juristic learning becomes 
 easier of approach. 
 
 A. The principal disciplines of private law in Ger- 
 many have developed: — 
 
 ^ See sec. 59, supra. Regarding the historical evolution of academic 
 instruction, see sec. 61, infra. 
 
 ^ See supra, sec. 14 et seq. 
 
 ' According to Goldschmidt, Rechtsenzyklopadie, sec. 126. 
 
 * Regarding the conception and purpose of such introduction see infra^ 
 sec. 61. 
 
308 SCIENCE OF LAW 
 
 1. The pandects,^ the private law of Roman origin 
 as it prevailed in Germany^ until the year 1900, by force 
 of customary law except where excluded by Landrecht.^ 
 This law was known as usus modernus pandectarum,* 
 "the common civil law of Germany of Roman origin," 
 and also as "modern Roman law." It was of subsidiary 
 force in those states known as the domain of the com- 
 mon law (noted above, sec. 166) until the establishment 
 of the German Civil Code. 
 
 Literature of pandect law: Arndts, Baron, Bekker, 
 Bocking, Brinz, Dernburg, Holder, Keller, Kierulff, 
 Puchta, Regelsberger, Savigny, Seuffert, Sintenis, Unger, 
 Vangerow, Wachter, Windscheid (Kipp), v. Ihering 
 (Geist des romischen Rechts), Bruns {Geschichte und 
 Quellen des romischen Rechts, in Holtz. Enzyk., 5th ed. 
 rev., 1900, p. 95), Erman (in J. L. B. v. K. Heft 2), 
 Franz Leonhard (in Birkmeyer's Enz. 75-184). 
 
 2. "German private law," or the totality of legal 
 standards obtaining in Germany, of German origin. 
 This discipline first arose at the end of the 17th cen- 
 tury, or at the beginning of the 18th century.^ It 
 draws its materials for its greater part from particular 
 
 ^ This term is derived from the designation applied to the chief historical 
 source of this discipline in the Justinian legislation. See supra, sec. 11, 
 also sec. 10. 
 
 2 Thus in Bavaria, and Hesse, so far as there was not in force an exclusive 
 Landrecht (as in the Palatinate, Rhenish Prussia, in Ansbach, and Bayreuth), 
 in Wurttemberg, the province of Hanover, Thuringen, Mecklenberg, etc. 
 
 ^ Exclusive Landrecht prevailed in those countries which in 1794 belonged 
 to the throne of Prussia, in the kingdom of Saxony, and in the countries of 
 the French law (Rhenish Prussia, the Bavarian Rhine Palatinate, Rhenish 
 Hesse, Elass-Lothringen, and Baden). See supra, sec 16 {b), Nos. 2-4, pp. 
 117-118. Regarding a similar exclusion of the Austrian B.G.B. see supra, 
 sec. 16 (b), No. 4. page 118, supra, and sec. 60, No. 4, infra. 
 
 ^ Concerning the limitations on and the conditions of the operation of 
 usus modernus pandectarum in its most proper domain see Stammler, in 
 Archiv. f. zivilist. Praxis, Bd. 19: Die Behandlung des romischen Rechts in 
 dem jurist. Sttidiutn nach EinfUhrung des Deutschen Reichszivilgesetsbuchs 
 (1885). 
 
 '^ Cf. Goldschmidt, Em., sees, 97, 117. 
 
METHODOLOGY 309 
 
 private law (provincial and municipal) as well as from 
 general customary law. Prior to the enactment of the 
 German Civil Code the latest imperial statutes bearing 
 on the civil law were also expounded in connection with 
 this department of study.' 
 
 Literature: Beseler, Bluntschli (3d ed. prepared by 
 Dahn), Gengler (Lehrb. 1854, 1862, Grundzuge 1876), 
 Gerber (17 ed. by Cosack), Gierke, Hildebrand, von 
 Roth, Stobbe (3d ed. Bd. I, 1893, by K. Schulz, Bd. II, 
 1896-1897, by H. O. Lehmann), Behrend (in von Holtzen- 
 dorff's Rechtsenzyklopadie , das deutsche Privatrecht) . See 
 also the outlines of Dahn, Franklin, Gareis, Kraut (6th 
 ed. by Frensdorff), H. O. Lehmann (in Birkmeyer's 
 Enz. pp. 292-359 and literature there noted). 
 
 3. Commercial law, bills of exchange and maritime 
 law.^ The material of this discipline is found in numer- 
 ous imperial statutes, and in customary law; supple- 
 mented by the imperial codification of commercial law, 
 and the law of bills of exchange. (See sec. 58). 
 
 For the literature of commercial law, see sec. 58, supra 
 and Gareis (in J.L.B. v. K. Heft 4). 
 
 4. Private law of the various German territories 
 and the modern private law of foreign countries.^ 
 
 See the general civil code of Austria effective June 1, 
 1811. Literature: Zeiller, Kommentar uber das allge- 
 meine burgerliche Gesetzbuch; von Harrasowsky, Ge. 
 
 * Cf. C. H. Dreyer, Das deutsche Reichs-Zivilrecht (Leipzig, 1876) ; von 
 Mandry, Der zivilrechtliche Inhali der Reichsgesetze (4th ed. 1898, prepared 
 by O. Geip). 
 
 ^ Embracing the widely prevalent chief essential elements of this law 
 appertaining to private law; cf. Gareis, Lehrb. d. H.R., 6th ed., pp. 2, 3. 
 
 ^ As concerns feudal law, it may now well be said that it has ceased in 
 Germany to be a special study of general or common law. Formerly it was 
 such. Its material now as a rule forms a part of German legal history (see 
 II, A, No. 3, infra) and also to a certain extent a part of German private 
 law (I, A, 2). C^3nceming the nature of feudal law see supra, sec. 21, No. 3 
 also sees. 56 supra, and 61 infra. 
 
310 SCIENCE OF LAW 
 
 schickte der Kodifikation des osterr. Zivilrechts; Pfaff u. 
 Hdfmann, Kommentar zum allgem. burger lichen Gesetz- 
 buch; Stubenrauch, Kommentar, etc.; v. EUinger, Hand- 
 biKh d. {osterr.) allg. burg. G. B.; Unger, System d. 
 osterr. allgem. Priv. R.; Schiffner, Systemat. Lehrb. 
 d. osterr. allgem. Zivilrechts; and cf. Gareis, in J.L.B. 
 1). K. Heft 4. 
 
 (a) . The Prussian Landrecht of 1794. 
 
 Literature: Dernburg, Lehrbuch des preuss. Privat- 
 rechts; Forster, Theorie und Praxis des preussischen 
 Privatrechts (4th ed. by Eccius) ; Gruchot, Beitrage zur 
 Erlduterung des preuss. Rechts (since 1877, by Rassow 
 and Kiintzel) ; Koch, Lehrb. des preuss. gem. Privat- 
 rechts (in V. Holtzendorff's Enz.) ; v. Krawel, die altldnd- 
 ischen Provinzen; Heydemann, die Mark Branden- 
 burg; Schiitze, Schleswig- Holstein; Bartels, Hannover; 
 Endemann, Kurhessen; Herz, Nassau; v. Oven, Frank- 
 furt a. M. Concerning the history of the drafting of the 
 Prussian Landrecht, see Stolzel, Carl Gottl. Suarez; Koch 
 (6th ed., Achilles) Das allg. Laitdrecht fUr die preuss. 
 Staaten; Rehbein and Reincke, Allg. Landrecht, etc.; 
 Sobering, Allgem. Landrecht (with notes); and see also 
 Birkmeyer's Enz. pp. 296, 297. 
 
 (b) French civil law (1807). 
 
 Literature: Zacharia, Handbuch des franzosischen 
 Zivilrechts; Rivier, in Holtzendorff's Enz.; Schiffner, 
 Lehrb. des franzosischen Zivilrechts; Brauer, Erlduter- 
 ungen uber den Code NapoUon und die Grossh. Badische 
 Gesetzgebung. 
 
 (c) The civil code of 1863 of the kingdom of Saxony. 
 Literature: Bernh. Schmidt, Vorlesungen Uber das im 
 
 Konigreich Sachsen geltende Privatrecht; Siebenhaar, 
 Lehrb. des Sdchsischen Privatrechts (1872), und Kom- 
 inentar des Gesetzbuchs vom Jan. 2, 1863 (1864, 1865). 
 
METHODOLOGY 311 
 
 (d) The Landrecht of various other territories, as the 
 Bavarian Lmidrecht, the Wurttemberg Laiidrechi, and 
 the Mecklenburg Landrecht, etc. 
 
 Literature of Bavarian Landrecht: Paul v. Roth, 
 bayerisches Zivilrecht, 1871, (2d. ed., 1881); M. Danzer; 
 Ortmann; H. Becher; Gottfr. Schmitt, Bayerische Jus- 
 tizgesetze (1903). With reference to the Landrecht of 
 Wurttemberg, see Wachter, Handbuch des im Konig- 
 reich Wurttemberg geltenden Privatrechts (1839). Con- 
 cerning the law of Mecklenburg, see Bohlau, Mecklen- 
 burgsches Landrecht (1871) ; Roth and v. Maibom, Kur- 
 hessisches Privatrecht; Rudorff, das hannoversche Privat- 
 recht; Bertram, Das Nassauische Privatrecht; Falck, 
 Handbuch des Schleswig- Holsteinschen Privatrechts. With 
 reference to late codifications of private law, see Beh- 
 rend, in v. Holtzendorff's Enz. (5th ed., 1890, p. 387 et 
 seq.). See also, W. Kisch, Elsass-Lothringisches Landes- 
 privatrecht (1905). 
 
 5. The discipline of German civil law — the civil 
 code for the German Empire, including supplementary 
 imperial legislation and Landrecht — ^in its dogmatic and 
 historical development (see sec. 61, IV, 3). 
 
 Of the literature evoked by the appearance of the 
 German Civil Code may be mentioned: — 
 
 (a) Commentaries: (1) von Planck in collaboration 
 with Achilles, Andr^, Greiff, Ritgen, Unzner, Strecker 
 and Strohal ; (2) von Holder, Schollmeyer, Fischer, Hey- 
 mann, A. B. Schmidt, Habicht, Schultze; (3) von Stau- 
 dinger in collaboration with Lowenfeld, Kober, Herz- 
 felder, Mayring, Engelmann, Riezler, Wagner; also the 
 commentary of Rehbein; (4) Oertmann, Biermann, 
 Gareis, Frommhold, Niedner, v. Blume and Opet. Of 
 the briefer commentaries on the B.G.B., see Neumann, 
 Kuhlenbeck (by authority of the German bar associa- 
 tion), and others. See also, the handbooks with ex- 
 
312 SCIENCE OF LAW 
 
 planatory notes of O. Fischer and W. v. Henle in collabo- 
 ration with E. Ebert and H. v. Schneider (6th ed., 1904) ; 
 also the legislative text with introduction and notes by 
 K. Gareis. 
 
 (b) Systematic and dogmatic expositions of this code : 
 
 (1) Endemann, Einfiihrung in das B.G.B. (1st and 2d 
 ed. in collaboration with Gareis, now in the 8th ed.) ; 
 
 (2) Eck, Vortrage; (3) Cos4ck, Lehrbuch (4th ed.) ; (4) 
 Crome, System, etc.; (5) Dernburg, Das b. R. etc.; (6) 
 Enneccerus and H. O. Lehmann (2d ed.) ; (7) Engel- 
 mann; (8) B. Bendix; (9) Kriickmann, Inst. (3d ed); 
 
 (10) Kuhlenbeck, von den Pandekten bis zum B.G.B.; 
 
 (11) G. Miiller and Gg. Meikel; (12) Landsberg, Das 
 Recht des B.G.B. ; (13) Matthiass, Lehrb. (3d ed., 1900); 
 (14) R. Weyl, Vortrage tiber das B.G.B.; (15) J. Kohler, 
 Lehrb. (Carl Heymann, 1904). 
 
 B. Principle studies of German public law: — 
 
 1. General state law — a theory which arrives at a 
 systematic knowledge of the special law relating to 
 states, which forms the subject-matter of this study, 
 from a comparative and general viewpoint. (Cf. above, 
 sec. 39). 
 
 Literature: see sec. 39 above; here may be also men- 
 tioned, Gneist, Englische Verfassungsgeschichte (Berlin, 
 1882) ; also Archiv. fUr dffentliches Recht by Laband and 
 Stoerk; and the literature noted by Sarvey in Kirchen- 
 heim's Zentralblatt, Bd. Ill, p. 60. 
 
 2. Imperial public law. 
 
 Literature: see above sec. 39; cf. sees. 42, 44, also sec. 
 11, page 85, notes 1, 2; v. Holtzendorff (5th ed.) ; Stoerk, 
 in E.R.W. V. H., p. 1041; and v. Kirchenheim, in J.L.B. 
 V. K. Heft. 8. 
 
 3. Territorial public law of Prussia, Bavaria, etc. — 
 (Constitutional law) . 
 
 Literature: sec. 39, supra. 
 
METHODOLOGY 313 
 
 4. Administrative law, general and territorial. 
 Literature: see sec. 45, supra; E. v. Meier, in E.R.W. 
 
 V. H., p. 1155; V. Kirchenheim, in J.L.B. v. K. Heft. 8. 
 
 5. The law of civil procedure. (C/. sec. 50). 
 Literature: sec. 50, supra; Binding, Handbuch, etc. 
 
 L.V.Bar, in E.R.W. v. H.,p. 765; Kleinfeller in J.L.B. 
 V. K. Heft. 5. 
 
 6. Criminal law. {Cf. sec. 51). 
 
 Literature: Geyer (5th ed.) ; A. Merkel in E.R.W. v. 
 H., p. 909; Kirchenheim in J.L.B. v. K. Heft. 6. 
 
 7. The law of criminal procedure. {Cf. sec. 52). 
 Literature: John in E.R.W. v. H., p. 967; Klein- 
 feller in J.L.B. V. K. Heft. 6. 
 
 8. The law of bankruptcy and bankruptcy proce- 
 dure. {Cf. sec. 50). 
 
 C. International law and the mixed studies arising 
 out of public and private law. 
 
 Literature: see Stoerk in J.L.B. v. K. Heft. 9. 
 
 1. International law (see sees. 54, 55). 
 Literature: Stoerk in E.R.W. v. H., p. 1257; v. Liszt 
 
 in Birkineyer's Enz., p. 1345. 
 
 2. International private law (see sees. 8 at end, 13). 
 Literature: v. Bar in E.R.W. v. H., p. 717, and 
 
 Birkmeyer's Enz. pp. 377, 738, 951. 
 
 3. Church law, general and particular of the different 
 creeds (sec. 57). 
 
 Literature: P. Hinschius in E.R.W. v. H., p. 857; 
 Frantz in J.L.B. v. K. Heft. 7; and sec. 57 above. 
 
 4. The private law of princely prerogative (see sec. 
 56, note 1) . 
 
 Literature: Hermann Rehm, modernes Fiirstenrecht 
 (1904), pp. 1-11. 
 
314 SCIENCE OF LAW 
 
 II. The subordinate studies may be divided into 
 historical, encyclopedic [survey] and technical studies. 
 As to the historical studies, see sec. 59. Encyclopedic 
 studies are those which relate to the science of the law 
 as a whole. Technical studies are those disciplines 
 which lead to a special technic in legal science, or some 
 other science. 
 
 A. Subordinate historical studies: — 
 
 1. History of Roman law, including also extra-legal 
 history — the history of the Roman state, and Roman 
 legal sources; and internal legal history (also in connec- 
 tion with the institutes of Roman law) — the history of 
 Roman civil procedure, and Roman antiquitates juris. 
 
 Literature: Karlowa, Rom. R. Gesch. See also sec 60, 
 I, A 1 — literature. 
 
 2. Institutes of Roman law, or Roman private law — 
 an essentially historico-legal introduction to legal study 
 in general and Roman private law in particular, based 
 on an historical foundation (I, A 1). 
 
 Literature : the institutional works of Boecking, Holder, 
 Kuntze, Puchta, Salkowski, Scheurl, Sohm and others. 
 
 3. History of German law (German legal, state and 
 imperial history,) specialized according to the age, 
 people, or material involved: thus the particular legal 
 history of Prussia, Bavaria, etc., or the special history 
 of provincial law. 
 
 Literature : v Schulte, Lehrbuch der deutschen Reichs- 
 und Rechtsgeschichle ; Schroder, Lehrbuch der deutschen 
 Rechtsgeschichte ; Binding, systentatisches Handbuch der 
 deutschen Rechtswissenschaft : Brunner, deutsche Rechts- 
 geschichte, Bd. 1, 2, Heusler, Inst, des deutschen Rechts- 
 quellen; Gierke, Deutsches Genossenschaftsrecht ; H. Brun- 
 ner, and K. Maurer in E.R.W v. H., pp. 213, 303, 
 
METHODOLOGY 315 
 
 349; K. V. Amira, Grundriss der germanischen Rechts- 
 geschichte in Paul's Grundriss der germanischen Philo- 
 logie; H. Brunner, Grundzuge der deutschen Rechtsge- 
 schichte (2d ed., Leipzig, 1903) ; and Gierke, Untersuch- 
 ungen zur deutschen Stoats- und Rechtsgeschichte . 
 
 B. Subordinate encyclopedic studies: — 
 
 1. Juristic encyclopedia [survey] as a propaedeutic 
 systematic outline, or review of the law (see above 
 sees. 1, 4). 
 
 Literature: sec. 4 (end), and Erwin Grueber in Birk- 
 meyer's Enz., pp. 5-74. 
 
 2. Comparative law (sec. 1, page 2, note 1). 
 
 3. Philosophy of the law (see sec. 3, II, including 
 natural law). 
 
 Literature: Geyer, in Holtzendorff's Enz. (5th ed., 
 supplemented by A. Merkel; Salis and Sommer in J.L.B. 
 V. K. Heft 1. 
 
 4. Juristic hermaneutics (see sec. 13). 
 
 5. Literary history of the law (sec. 59), in various 
 divisions according to the material, period and people 
 under consideration. 
 
 Literature: v. Kirchenheim' s Zentralblatt, and Salis 
 and Sommer in J.L.B. v. K. Heft 1. 
 
 6. Juristic hodegetics (sec. 59). 
 
 C. Subordinate technical studies: — 
 
 1. Medical technic: medico-legal science necessary 
 for expert proof and the establishment of facts in civil 
 and criminal procedure (see sees. 50, 52) ; medical admin- 
 istration (medical policing) relating to public security 
 and welfare (see sees. 43, 45, 47). 
 
 2. Technical juristic disciplines: the technic of 
 diplomacy {cf. sec. 55) and diplomatics, the technic of 
 
316 SCIENCE OF LAW 
 
 non-contentious jurisdiction (prudential jurisprudence, 
 see sec. 49), and the technic of contentious jurisdiction 
 ( Referier- und Dekretierkunst) . [ Referierkunst is the art 
 or method of stating the basis or the facts upon which 
 a legal decision is founded. Dekretierkunst relates to the 
 form of judicial decision. See Falck, Jur. Encyk. sec. 
 160. See also Anleitung Zur Ref. u. Decretierkunst 
 {Halberstadt, 1798.)] 
 
 III. The auxiliary disciplines are all those sciences 
 of which students in legal science who would accom- 
 plish success can not be ignorant. These studies may 
 be divided into the following groups : — 
 
 1. The departments of humanistic learning. In the 
 apprehension of the materials of the law considered in 
 its scientific aspect, "classical" or humanistic learning 
 is indispensable. In the understanding of legal sources, 
 a knowledge of languages is especially requisite, and a 
 familiarity with general, political and economic history 
 is equally necessary in the understanding of the law 
 itself. 
 
 2. State sciences, the science of finance, etc. 
 
 3. Theoretical and practical political economy. 
 
METHODOLOGY 317 
 
 SECTION 61 
 
 METHODS OF STUDY AND ACADEMIC EDUCATION 
 
 I. The first method of teaching jurisprudence, of 
 which we have any knowledge, is the exegeticai method. 
 Exegesis is the direct attainment of the formative prin- 
 ciples of jurisprudence from the text of the sources of 
 the law. The exegeticai method accordingly consists 
 in presenting to the student the legal sources them- 
 selves, and in instructing and directing him to develop 
 out of the sources themselves the dogmas of the law 
 (see sec. 3). 
 
 Under the hegemony of this method in the law schools 
 of Italy, Germany atid France of the Middle Ages, in 
 the period of the glossators' and commentators,^ legal 
 science had no other divisions than those arising out of 
 the differences in legal sources. Civil law and canon 
 law were distinguished, and later occasionally, feudal 
 
 ' The Blossators (the School of Bologna up to about A. D., 1233) made 
 notes glosstE, on the corpus juris which after a time became fixed, and which 
 as glossa ordinaria became the foundation of commentary. See Savigny, 
 Geschichte des romischen Rechts im Mittelalter, Bd. V, p. 222; Windscheid, 
 Pand,, sec. 7, note 2; Stintzing, of. cit. (above, sec. 69, end) Pt. I, pp. 3, 102, 
 111. Glossators: Irnerius (died bet. 1118 and 1140); the quattuor doctores 
 (Bulgaius, "os aureum," who died about 1166), Hugo ("mens legum," who 
 died about 1170), Jacobus (de porta Ravennate, died 1178), and Martinus, 
 (Gosia, "copia legum,'* died about 1166); Azo (Porcius Soldanus, died 1230); 
 Azo's pupil Accursius (Accorso,.died 1260) who wrote the glossa ordinaria, 
 and his three sons, Franziscus (died 1293), Cervottus (died 1287), and Wil- 
 helmus (died 1314) ; Hugolinus (died after 1233), and others. 
 
 ' The glos.sators of the School of Bologna were followed by the School of 
 Commentators, extending from the middle of the 13th century into the 16th 
 century. They explained, or commented on, not the text of the corpus juris 
 but the notes of the glossators (the glosses) and even on glossarum glossa, 
 or glosses of glosses. See Windscheid, op. cit., I, p. 20, Savigny, op. cit., 
 Bd. V, p. 299. Mos iialicus was based on this commentary. Commentators: 
 Odofredus (pupil of Accursius, died 126.5), Bartolus (died 1357), and his 
 pupil Baldus (de Ubaldis, Baldeschi, died 1400); also Jason (de Mayno, died 
 1519). and others. 
 
318 SCIENCE OF LAW 
 
 law. Academic instruction proceeded along the lines 
 of these external studies, moving from one material of 
 study to another, in no other manner and in no other 
 succession than was suggested by the various parts or 
 divisions of the books of these sources themselves — ^the 
 corpus juris civilis,^ the corpus juris canonici,^ and the 
 lihri feudorum. 
 
 A mechanically fixed type of treatment of legal mate- 
 rials, developed out of the pure analytico-exegetical 
 method introduced by the glossators, and maintained 
 by the school of commentators. This mechanical 
 method has been called since the 16th century, mos 
 italicus.^ It produced the nucleus of an independent 
 system in this, that the comments {commentationes, 
 qucBstiones) on the corpus juris were arranged in perhaps 
 100 to 150 favored magistraliter passages (called loci, 
 loci ordinarii, T6iroi) , and in that it was possible to derive 
 a new connection of ideas from the legal materials by 
 accurate selection, grouping and succession of the loci 
 and qucBStiones serving to a certain extent as key-words. 
 But this magistraliter application of topics petrified into 
 a fixed and traditional arrangement of legal materials 
 characterized by punctilious formalism.* 
 
 The conditions of a more free conception and manner 
 of treatment of legal materials were first brought by the 
 Renaissance — the revival of classical learning and the 
 art of the ancients. This movement was introduced 
 into the colleges by means of extra-collegiate lectures* 
 
 ^ See supra, sec. 11. 
 
 ^ C. j. can.; cf., sec. 57. 
 
 ^ Cf. Stintzing, op. cit.. Part I, 4th chap., particularly p. 106. 
 
 * A riJe expressed in the following distich was applied to the imlgaris et 
 usitata sive communis interpretandi ratio: 
 
 Pramiito, scindo, summo casumque figuro; 
 
 Perlego, do causas, connoto, objicio. See Stintzing, loc. cit., p. 107. 
 
 ^ Collegia, collegia privata in contradistinction to "lectiones," lecturce of the 
 usual exegetical course of study. See Stintzing, loc. cit,, p. 132; Prantl, 
 Geschichte der Universitdt Mu-Tichen, I, pp. 310, 410. 
 
METHODOLOGY 319 
 
 in which the anal3rtical method was superseded by a 
 synthetical method.' It was also furthered by means of 
 collegiate debates fostered by the co-operation of 
 teachers of law and their auditors which formed a litera- 
 ture in which the "legal method"^ was departed from, 
 for an independent organization and classification of 
 legal materials. 
 
 Out of the concurrence of the synthetical method with 
 the elevation, or just beginning consideration of the his- 
 torical evolution of law, arose the French historical 
 school the leaders of which were Cujacius,^ and Donellus.* 
 The new method, as Donellus in particular brought it 
 to recognition, was designated mos docendi gallicus.^ 
 This systematic course of instruction {"methodice") in 
 contradistinction to the exegetical method (exegesis) 
 had a considerable vogue in Germany as early as the 
 17th century;' and in the 19th century the French doc- 
 trine found a widespread extension especially through 
 the labors of Gustav Hugo.' 
 
 ^ Cf. supra, sec. 3 (legal dogmatics). The method arrived at is appropri- 
 ately indicated as: prolixa redigere in compendium, in singulis materiis, 
 ffUfxaroTote tv et dissentientes opiniones investigata vera sententia conciliare, — 
 (Meibom, the older) Stintzing, loc. cit., p. 135. 
 
 2 By this is to be understood in particxilar that method of exposition of 
 legal materials which followed the order of the Justinian institutes of Roman 
 law (according to Gaius). With reference to the institutes see, sec. 11. 
 
 ^ Jacobus Cujacius (Jacques Cujas, bom 1522 at Toulouse, died 1590 at 
 Bourges), was the founder of the historical school of France and one of the 
 greatest of the world's jurists. 
 
 * Hugo Donellus (Hugue Doneau), born 1527 at Chalons, was a teacher of 
 law at. Bourges, in 1573 was a professor of law at Heidelberg, in 1588 Pro- 
 fessor of law at Altorf, and died 1591. He was the author of one of the first 
 systematic treatises on Roman law. As to other members of this school 
 see Windscheid, Pand., sec. 8, note 2, and literature there noted. 
 
 * Of the influences supporting this method (especially that of Petrus 
 Ramus) see Stintzing, loc. cit., p. 144. 
 
 ® Stintzing, loc. cit., cap. X and XI. 
 
 ^ Gustav Hugo, bom 17G4 at Lorrach, was professor of law at Gottingen, 
 and died 1844. His "Lehrbuch der Oeschichte des romischen Rechts (1790, 
 11th ed., 1832) was a preliminary work chiefly from the historical standpoint. 
 The systematic treatment of the law, mentioned above is given in his "Insti- 
 tutionen des heutigen romischen Rechts (1789). 
 
320 SCIENCE OF LAW 
 
 Based upon a freedom of investigation attained 
 through emancipation from mos gallicus and the legal 
 method, the Practical SchooP unfolded after a time; 
 especially in the Netherlands and in Germany during 
 the 16th, 17th and 18th centuries. Toward the end of 
 the 18th century, the School of Natural Law^ arose in 
 Germany. This school was followed by the new His- 
 torical School founded by Gustav Hugo, to whom 
 credit is due for the classification of the materials of the 
 civil law now in use. The Historical School was raised 
 to its highest position of prominence through the labors 
 of Friedrich Carl von Savigny.' 
 
 II. This newer systematic and historically derived 
 , conception and manner of exposition of the law 
 developed in connection with the treatment of private 
 law. But these methods also found application in those 
 departments of the legal complex which had attained 
 a special place alongside of civil law. From the begin- 
 ning of a legal science in Italy, France and Germany, this 
 application was made in canon and in feudal law, and 
 not to any lesser extent in all later branches of legal 
 study. 
 
 The origin of the law of civil procedure as a special 
 department of law is due to the great practical differ- 
 ences between the pure Roman and Byzantine juridical 
 system on one side, and the Germanic judicial and pro- 
 cedural systems (domestic to Germany and France) on 
 the other. The origin also of the departments, criminal 
 law, and criminal procedure, leads back to an awakened 
 
 ^ See Stintzing, loc. cit., cap. XII. XIII. 
 
 ^ Cj. Windscheid, Pand., sec. 8 (end) and literature; see also supra, 
 page 18, sec. 3, II, note 6 (Gierke) and page 19, note 2 (Bekker). 
 
 ' Friedrich Kari von Savigny, bom 1779 at Frankfurt a. M., was professor 
 of law at Landshut and Berlin, was also Prussian minister for the revision of 
 legislation, and died 1861. His great systematic work, System des heutigen 
 romischen Rechts (1840-1849) unfortunately was not completed. 
 
METHODOLOGY 321 
 
 interest long deferred among practical men, which first 
 started in Germany in the middle of the 16th century.' 
 Later, in the 17th century, state law and international 
 law branched out as special studies. 
 
 It is now admitted that governmental entities ruling 
 with sovereignty and by force require to submit their 
 community interests to legal protection, and to pursue 
 these interests within legal limits. This conception 
 was neither admissable nor obvious either in ancient 
 times or in the Middle Ages.^ The prevalence of 
 force in public relations within the state suggested the 
 consideration and justification of these relations solely 
 from the standpoint of politics; and jurists looked with 
 disdain on the efforts of publicists to construct a public 
 law.^ The advantages of juristic education to practical 
 politicians,* the cultivation of ancient philosophy, and 
 the influence of the School of Natural Law,^ also resulted 
 in placing international law, and state law as well, in an 
 independent academic position,* as early as the 17th 
 century. 
 
 The 16th century saw the beginning of a scientific 
 treatment of domestic German private law (not simply 
 in connection with, but as distinguished from Roman 
 law) with a kind of local legal literature (Stadtschreiber- 
 Literatur) ;' but academic treatment of German particular 
 
 ' Stintzing, loc. cit. p. 603. 
 
 ^ The controversial literature, however, of the 14th century as to the 
 relation between the emperov and the pope, and the many literary broadsides 
 of the time of the Reformation already discussed the matter of state law. 
 
 ' Therefore the discourteous reproach of the 17th century that the pursuit 
 of jus publicum was only a "mantellum ignorantice juris civilis," to which it 
 was retorted by the other side with equal discourtesy, i meri legisti sono puri 
 asini. See Stintzing, loc. cit.. Part II, p. 29. 
 
 * Since the beginning of the 17th century princes have employed jurists 
 in diplomatic missions by preference. 
 
 ° This of course suggests the name of Hugo Grotius the founder of inter- 
 national legal science and his position with reference to natural law and to 
 the practical side of political science. 
 
 ' Stintzing, loc. cit.. I p. 666. 
 
 ' Stobbe, Geschichte der deutschen Rechtsquellen, I, p. 389, II. pp. 149, 170. 
 
322 SCIENCE OF LAW 
 
 private law, and general German law, was first attained 
 in the 18th century.' In 1707 George Beyer^ announced 
 the first lecture on German law. Academic treatment 
 of Natural Law as well as the related subject, Philosophy 
 of Law, began with the cultivation of public law. Juristic 
 Survey was also canvassed at the same time, at least in a 
 literary way. 
 
 III. The academic system gradually assumed in the 
 passing of centuries, the range which it has today. The 
 following method, however, developed: — 
 
 (a) Preliminary historical lectures: dealing with the 
 history of the Roman law, as a preparation for the 
 dogmatic of Roman law (the pandects) ; and an exami- 
 nation of German state and legal history as a prepara- 
 tion for the systematic exposition of German public 
 and private law; 
 
 (b) This course was followed by dogmatic lectures on 
 the progressively evolved, freer systematic arrange- 
 ment of Roman law (the institutes and pandects), 
 attained through mos gallicus, and on German private 
 law, canon, feudal, and public law and the law of pro- 
 cedure ; 
 
 (c) Exegesis with the design of attaining a more 
 definite knowledge of the sources, and the valuation of 
 their position, partly ia connection with recitations and 
 in part through exegetical lectures, or through practical 
 exercises; and dealing chiefly with the exegesis of the 
 corpus juris civilis and to some extent with the new 
 codes ; 
 
 {d) Practical exercises were also employed for enlarg- 
 ing the knowledge of the sources, and establishing a 
 
 ' A professorship of Saxon law was established at Leipzig in 1712, of 
 domestic (German) law at Kiel in ] 712, of the law of Wiirttemberg at Tiibingen 
 in 1720. See Stobbe, op. cit., II, p. 417, and his Hermann Conring, der 
 Begrunder, etc. (1870). 
 
 ^ George Beyer, bom 1665 at Leipzig, was professor of law at Wittenberg 
 from 1706, and died 1714. Cf. Stobbe, op. cit. (Geschichte, etc.), II, p. 418. 
 
METHODOLOGY 323 
 
 practical connection between theoretical learning and 
 the actual conditions of life. Recapitulations of the 
 subjects embraced in the dogmatic section of study 
 were also resorted to. For review purposes there have 
 been in use for a long time special repertories, quiz- 
 books, etc. 
 
 IV. The course of modern juristic study " in Ger- 
 many is essentially governed by conditions and regula- 
 tions which have been brought about by the enactment 
 of the German Civil Code. This circumstance has been 
 serviceable in obviating in a happy manner, difficulties 
 which had attached, until the most recent times, to the 
 methods of juristic study in Germany; and which gave 
 frequent occasion for adverse criticism, and suggested 
 betteiments in juristic methods of study. ^ 
 
 The following principles of hodegetics have now 
 accordingly gained asendency: — 
 
 1. Juristic study is introduced by a course which is 
 called "Introduction to the Science of Law," a study 
 which only in the most recent times has attained its 
 proper position. It is the function of this discipline to 
 present to the existing knowledge and learning of the 
 student according to the fundamental principles of edu- 
 cation, an introduction to juristic study, divided into 
 three chief divisions. 
 
 * W Reuling, a barrister of the Imperial Supreme Court, comments on the 
 unpedagogic character of the juristic instruction of former times in his article, 
 Zur reform der juristischen Studienordnung (Leipzig, Veit and Comp., 1887) : 
 see also Gareis, Ueber die Einjuhrung in das Studium der Recktswissenschaft 
 (rectoral address of April 15, 1894) (Berlin, J. Guttentag, 1894). It gives 
 the author a great deal of satisfaction to be able to state here that the basic 
 ideas of his rectoral address have been carried out, and that in consequence 
 of this, the deficiencies in juristic study which were pointed out in the first 
 edition of this survey (1887) have been removed (particularly those pointed 
 out on pp. 184, 185). Inasmuch as there is now universally provided an 
 introductory course under the title, "Introduction to the Science of Law," 
 or a course similar to it, it can no longer be said that the choice of the intro- 
 ductory work in juristic study is unfit; cf. p. 185, of the first edition. 
 
324 SCIENCE OF LAW 
 
 The first part begins necessarily with a description of 
 those relations and conditions of life and fact which are 
 present in the experience of the student as legal rela- 
 tions, and of which v. Ihering, in his Jurisprudence of 
 Everyday Life (Jurisprudenz des tdglichen Lebens) notes 
 examples in our daily experiences. The nature of law, 
 the necessity of the state and legislation, the meaning 
 of customary law, the conception of interests and pro- 
 tection of interests, and connected therewith the notion 
 of rights, are explained in this part. 
 
 The second part of this introductory study embraces 
 the fundamental principles of classification of the science 
 of law. 
 
 The third part gives a sketch of the historical origin 
 of existing law. 
 
 In the second part the simplest classification of the 
 law must be so far treated as may be necessary in con- 
 nection with the third part to give a knowledge of each 
 of the existing legal disciplines, departments, or courses, 
 as parts of an organic whole. The development of this 
 part is most clearly explained, when proceeding from 
 the principle of egoism and when the conception of inter- 
 ests which living beings have and experience, is treated 
 in connection with this principle. It is the mission of all 
 legal order in part to limit the interests of natural per- 
 sons and human societies, and in part to give them secur- 
 ity. In that this limitation on and protection of inter- 
 ests, in the wider extension of this introductory course, 
 indicates relations not referable simply to civil law, but 
 also to state and international law, there is suggested 
 the coincidence and mutual influence of two ideas: the 
 legal idea and the state idea. These ideas are to be 
 elucidated, and will be penetrated to a greater or less 
 extent by philosophical principles of legal science, and 
 colored by sociological views, according to the indi- 
 viduality of the instructor. 
 
METHODOLOGY 325 
 
 In the third part, the introductory course should 
 expose the general legal history of the country in its 
 broad outlines. 
 
 2. Concurrently with this dogmatic or systematic 
 introduction, an historical introduction is presented. 
 Corresponding to the two chief sources and elements of 
 civil law current in Germany — elements which are both 
 traceable and both of which coincided in the German Civil 
 Code of Aug. 18, 1896 — the historical introduction con- 
 sists of (a) the exposition of Roman legal history and 
 Roman private law, and (b) the exposition of German 
 legal history and the system of German private law. 
 
 In the treatment of German legal history it is not to be 
 overlooked that it is necessary to ascribe to it a wider 
 significance, and accordingly a greater extension, than 
 in the treatment of Roman legal history. The latter is 
 of consequence only so far as it relates to Roman private 
 law, since the Roman and Byzantine public law was 
 neither "received" nor became of influence in the legal 
 development of Germany. German legal history, how- 
 ever, should devote attention also to public law. The 
 development of the German state with all its sovereign 
 rights and institutions, its constitutional and adminis- 
 trative law, its criminal law and law of procedure, etc., 
 should by all means, be a matter of fundamental and 
 exhaustive treatment in its legal history, equally as 
 important, as the exposition of the development of 
 German private law. Therefore, the course relating to 
 the history of German law requires that it be systematic- 
 ally arranged and encyclopedic, and of propaedeutic 
 value for all departments of jurisprudence.^ 
 
 ^ Pertinent to this matter, this is the thought which is brought out in 
 clear definition and with complete conviction by v. Amira, Ueber Zuieck 
 und Mittel der germanischen Rechtsgeschichte (1878), and by Victor Ehrenberg, 
 Die deutsche Rechtsgeschichte und die juristische Bildung (1894), and which is 
 also discussed in my rectoral address (,op. cit., note 1, page 323, supra), p. 18. 
 
326 SCIENCE OF LAW 
 
 3. If, as indicated, the dogmatic and historical foun- 
 dations are laid, then an advance may be made toward 
 an exhaustive exposition of the current civil law. The 
 German Civil Code (concurrently with supplementary 
 and subordinate imperial and state statutes) now 
 becomes the central point of an extended course; taking 
 the place of the pandects. As the course in the pandects 
 treated the whole usus modemus pandectarum with all 
 its controversies, dogmatico-historical developments, and 
 questions relating to the principles of private law, so 
 should the course in the civil code, in like manner, cover 
 the German civil law. As a rule, lectures on the civil 
 code should be heard by beginners in legal science in the 
 first half of the course. When broken up in a double 
 course or when perchance there is a third special course 
 dealing with the law of inheritance, the first two courses 
 should not be given in the same semester; the second 
 course should not be given before the first; and in any 
 event lectures on the law of inheritance should follow 
 the two first courses. 
 
 4. In contrast with the methods of study of earlier 
 generations, modem methods of German jurists are 
 directed more to the practical side of jurisprudence.' 
 Although the history of particular legal institutions of 
 
 In this address, I advanced among other things: "the course in the history of 
 German law is naturally the backbone, or the whole skeleton of juristic 
 education. Through it, the proper position of every individual department 
 is pointed out; and if this is the case, then no detailed examination is so 
 remote, or leads so far away, as not to be useful in the complete educational 
 structure." 
 
 German legal history also requires to show what society means and what 
 it has to accomplish — the sociological meaning of legal history — and what 
 the future may in an increasing measure learn from this history; 
 
 That the individual ethically is not for himself alone, but that he must 
 serve the whole which is superior to and outlives him, but which yet provides 
 for and protects him whether this whole be the family, the clan, the com- 
 munity, the district, or the state; see Gareis, Ueber die Einfuhrung ifi das 
 Studium der Rechtswissenschaft, p. 13 et seq. 
 
 ^ Cf. Adolph Stolzel, Schulung, etc. (see iupra, sec. 50, page 269, note 2), 
 pp.18 .^57 
 
METHODOLOGY 327 
 
 German and Roman law had been deeply penetrated 
 with the close of the last century, yet there is generally 
 given to the student of legal science only the accom- 
 plished result of this learned investigation; and at the 
 most only a fleeting glance at the methods of historical 
 inquiry is provided. On this account students are now 
 held more to practical efEorts than formerly. 
 
 The schedules of study now provided for students of 
 legal science, prescribe a large quantity of exercises, 
 and particularly exercises in the application of the Ger- 
 man civil law. This work is preceded by exercises in 
 Roman and in German private law. Practical work in 
 civil procedure, criminal law, commercial law, the law 
 of bills of exchange, maritime law, state, administrative 
 and church law, is required after or in connection with 
 exercises dealing with the code; always, of course, 
 according to the lectures of the department under con- 
 sideration. These exercises which are conducted with 
 a library equipment and seminars organized by the 
 juristic faculty, serve the same ends as the strict seminars 
 in the sciences. (See the ministerial order for Prussia, 
 of Jan. 18, 1897.) 
 
 The consideration of these observations, results in the 
 following schedule of study of legal science suitable for 
 modern Prussia, and in the main, also to the conditions 
 in Bavaria: — 
 
 A. Theoretical lectures : — 
 I. First semester: 
 
 I . Introduction to the science of law (juristic survey) ; 
 (2) History of Roman law ; (3) System of Roman private 
 law; (4) Roman civil procedure; (5) Roman legal exe- 
 getictim for beginners. 
 
 II. Second semester : — 
 
 (1) Lectures not heard in the first semester; (2) Ger- 
 man legal history; (3) Distinctive features of German 
 
328 SCIENCE OF LAW 
 
 private law; (4) German civil law: first part (general 
 part and the law of obligations). 
 
 III. Third and following semesters: — 
 
 (1) Lectures not heard in two preceding semesters; 
 (2) German civil law: 2d part (the law of things, and 
 family law) ; (3) German civil law : 3d part (the law of 
 inheritance) ;' (4) Commercial law, bills of exchange and 
 maritime law (after the lectures on civil law) ; (5) Survey 
 of legal evolution (Prussia or Bavaria as the case may 
 be); (6) Criminal law; (7) Civil procedure; (8) Criminal 
 procedure; (9) Bankruptcy law and procedure; (10) 
 General state law; (11) Imperial constitutional law; 
 (12) Law of the German states; (13) Administrative law 
 of Germany and the German states; (14) Church law; 
 (15) International law; (16) Philosophy of law. 
 
 B. Collateral exercises: — 
 
 (1) Exercises in Roman law for beginners in the first 
 semester; (2) Similar exercises for advanced students in 
 a later semester; (3) Exercises in German civil law, at 
 least once each in the first and second halves of the 
 course; (4) Exercises in civil procedure including civil 
 law in the second half of the course; (5) Exercises in 
 criminal law; (6) Exercises in commercial law, bills of 
 exchange and maritime law; (7) Exercises in state and 
 administrative law; (8) Exercises in church law. 
 
 C. In connection with lectures under division A, and 
 exercises under division B, a participation in the labors 
 of the various sections of juristic seminars, and supple- 
 mentary lectures covering special practical departments 
 of law and special materials of legal science, should not 
 be neglected. 
 
 D. In addition to juristic lectures, those relating to 
 the various branches of state sciences, especially theo- 
 
 ^ German civil law as a rule should be given in the first half of the course. 
 
METHODOLOGY 329 
 
 retical and practical national economy (the science of 
 political economy), the science of finance and police 
 should be heard. The lectures on the science of finance 
 should follow political economy and also at least one 
 course of lectures on state law. Lectures on economic 
 history (or a survey of the development of political 
 economy and its organization from the fall of the 
 Roman Empire, with particular regard to economic con- 
 ditions in Germany), and lectures on statistics (theo- 
 retical statistics, statistics of population, morals and 
 industry) may be heard in any semester ; but lectures on 
 economic statistics should follow the lectures on political 
 economy.' 
 
 ^ This in accordance with the directions for the study of state sciences, 
 announced in the year 1900 by the faculty of political economy of the Uni- 
 versity of Munich. 
 
APPENDIX 
 
 SYSTEMATIC CLASSIFICATION OF THE LAW 
 (Sysiematische Gliederung des Obfektiven F£chts,) 
 
 Jnristic Survey §§ 1 -58 
 ( Rechtsenzyklop'ddie) 
 
 Introduction. 
 ( Einleituvg) 
 
 Firet Part 
 
 SSI- 
 
 Law and its Sotirces 
 
 SS5-13 
 ( Voni Rechte u. v seinen 
 QuelUn) 
 
 Part Second Classiiication 
 ( Gliederung) 
 
 a 14-58 
 
 Methodology of Legal Science. §S 59-61 
 (Methodologie der Rechuwissenschaft) 
 
 Its Nature and Functions, 
 
 {Wesen und Aufgabe derselben) § 59 
 
 Disciplines of Legal Science 
 {Die Disziplinen der Rechtswissenschaft) 
 $60 
 
 Methods of Study and Academic In- 
 struction 
 (Die Methaden und der akademische 
 UnterrichI), } 61 
 
 LAW 
 
 ( Recht im objekt. Stnne) 
 §5 5-14 
 
 Private Law 
 
 ( Privaireckt) 
 
 55 15-36 
 
 Law of Things 
 
 {Sachenrecht) 
 
 SS 17-21 
 
 Law of Persons 
 
 ( Personenrecht ) 
 
 SS 22-29 
 
 Mixed Law of Persons and Things 
 
 {Gemischles Personen- und Sachenrecht) 
 
 5$ 30-36 
 
 Public Law 
 
 (Ofjentliches Recht) 
 
 SS 37-55 
 
 State Law 
 
 (StaatSTecht) 
 
 SS 39-53 
 
 International Law 
 ( Volkerrecht) 
 SS 54-55 
 
332 
 
 APPENDIX 
 
 Law of Things — continued 
 
 Rights in Material Things 
 
 (Reckte an materiellen Sacken) 
 
 §§ 19-21 
 
 Jura in re propria 
 
 ( Rechte an eigener 
 
 Sache) § 20 
 
 Jura in re aliena 
 
 {Rechte an fremder 
 
 Sache) § 21 
 
 Servitudes 
 (Diensibarkeiten) 
 
 Pledge Rights 
 ( Pfandrechte) 
 
 Feudal Rights 
 (Lehenrechte) 
 
 Tenantry Rights 
 ( Kolonat) 
 
 Perpetual Charges 
 ( Reallasten) 
 
 Emphyteusis 
 ( Emphyteuse) 
 
 Heritable Building 
 
 Rights 
 
 ( Erbbaurechte) 
 
 Preemption Rights 
 
 ( Beispruchs- und 
 
 Vorkaufsrechte) 
 
 Occupation 
 
 (Dingliche 
 
 Aneignungsrechte) 
 
 Real Rights in 
 
 Church Law 
 
 (Dingliche Rechte 
 
 des Kirchenrechts) 
 
 Rights in Immaterial Things 
 
 {Rechte an immateriellen Sachen) 
 
 §§ 17-18 
 
 § 18 
 
 Right of. Physical 
 Integrity, etc. 
 
 ( Recht auf Integritat 
 u. Betatigung) 
 
 Name and Reputa- 
 tion 
 (Rechte auf Name, 
 Firma, Ehre) 
 
 Trade Marks 
 
 ( Waremeichen- 
 
 schutzrecht) 
 
 Literature and Art 
 
 (Literarisch u. 
 
 kunstl. Urheberrecht) 
 
 Artistic Models 
 
 ( Geschmacksmuster- 
 
 schutzrecht) 
 
 Patents, and 
 Useful Models 
 ( Technisches 
 Urheberrecht, 
 Patentrecht, 
 Gebrauchsmuster- 
 schutsrecht) 
 
APPENDIX 
 
 333 
 
 Law of Persons — contirmed 
 
 Family Law 
 
 {FamUienTecht) 
 
 %i 25-29 
 
 Law of Obligations 
 
 ( Obligationenrecht) 
 
 SS 22-24 
 
 Marriage 
 
 {EherecM) 
 
 S26 
 
 Parent and Child 
 
 (BUern- und Kindesrecht) 
 
 $27 
 
 Other Relatives by Blood 
 
 and Marriage 
 
 ( Venvandtschaftsrecht im »V.) 
 
 $28 
 
 Guardianship 
 
 ( Vormundschaftsreckl) 
 
 §29 
 
 Ex contractu 
 $23 
 
 Ex delicto 
 §24 
 
 Ex lege 
 $23 
 
334 
 
 APPENDIX 
 
 Mixed Law of Persons and Things 
 
 Inheritance 
 (Erbreckt) 
 §§ 34-36 
 
 Family Property 
 
 ( Familienguterrechi 
 
 §§ 30-33 
 
 By Statute 
 (Nach Gesets. ab intestato) 
 §35 
 
 By Statute . Heir of Necessity 
 
 (Nach Gesetz. Noterbrecht 
 
 §35 
 
 WUls 
 
 {Nach Testament) 
 
 §30 
 
 Agreement 
 
 ( Nach Vertrag) 
 
 §36 
 
 Legacies 
 
 ( Vermachtnisrecht) 
 
 §86 
 
 Matrimonial regime 
 
 (Eheliches Gulerrecht) 
 
 §31 
 
 Proprietary Relations between 
 
 Parent and Child 
 
 { Vertwgensr zw. Eliern 
 
 u Kindern 
 
 §32 
 
 Proprietary Relations 
 
 among other Relatives 
 
 ( Vermogensr zw and. Verwandten) 
 
 §30 
 
 Guardianship Administration 
 
 of Property 
 
 ( Vormundschaftliche Vermogens- 
 
 verwaltung) 
 
 §33 
 
APPENDIX 
 
 335 
 
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336 
 
 APPENDIX 
 
 International Law — continued 
 
 Substantive International Lav 
 
 (Materielles VSlkerrecht) 
 
 §55 
 
 Adjective International Law 
 
 (Formelles VoUterreckt) 
 
 §55 
 
 Customary and 
 Necessary Inter- 
 nation^ Law 
 ( Usuelles u. 
 notwend. V R., 
 §55 
 
 Conventional 
 
 International Law 
 
 ( Vertrags- V R.). 
 
 §55 
 
 Peace 
 
 ( Friedlicher 
 
 Verkehr) 
 
 §55 
 
 War 
 
 (Cewaltverk. insb. 
 
 Krieg) 
 
 §55 
 
 SUPPLEMENT 
 
 § 56-58 
 
 Special Law 
 (Spezialrechte) 
 
 §56 
 
 Church Law 
 { Kirchenrechi) 
 
 §57 
 
 Commercial La'n 
 ( Handelsrecht) 
 
 r §58 
 
APPENDIX 337 
 
 RECENT GERMAN LITERATURE 
 
 [The following list consisting of recent literature (not otherwise 
 noted in connection with the text) or embracing late editions 
 of earlier works, in German, is appended in the belief that it 
 may be found useful to readers not in touch with this class 
 of works. Any suggestion here of completeness of selection, or 
 of enlightenment to the juristic specialist is of course repudiated 
 in advance. A valuable list of recent German legal and juristic 
 literature and especially of works dealing with the special codes 
 will be found in the annual publication Bibliotheca Juridica, 
 which will be furnished to anyone interested by F. A. Brockhaus, 
 Leipzig.] 
 
 Achilles-Greiff, B.G.B. (Handausgabe) 6th ed., 1909. 
 
 Archiv f . Rechts u. Wirtschaftsphilosophie (Kohler u. Berolz- 
 
 heimer). (Periodical.) 
 Amdts-Grueber, Jurist. Encyklopadie u. Methodologie. 11th 
 
 ed., 1908. 
 
 Bekker, Grundbegriffe des Rechts, 1910. 
 
 Berolzheimer, System d. Rechts u. Wirtschaftsphilosophie 
 
 (5 vols.) 1904-07. 
 Bozi, Weltanschauung der Jurisprudenz, 1907. 
 Brie, D. Volksgeist b. Hegel u. i. d. histor. Rechtsschule, 1909. 
 B runner, Grundziige d. dtsch. Rechtsgeschichte, 3d ed., 1908. 
 
 Cathrein, Recht, Naturrecht, und positives Recht (2d ed.), 1909. 
 Cosack, Lehrb. d. burgerl. Rechts. I., 1, 5th ed., 1909. 
 Czyhlarz, Lehrbuch d. Institutionen, 1909. 
 
 Danz, Rechtsprechung nach Volksauschauung u. n. d. Gesetz, 
 1908. 
 
 Fuchs, die Gemeinschadlickkeit der konstruktiven Jurispru- 
 denz, 1909. 
 
 Gareis, Vom Begriff Gerechtigkeit, 1907. 
 
 Giner u. Calderon, Zur Vorschule des Rechts, 1907. 
 
 Grueber, Einfiihring i. d. Rechtswissenschaft, 1908. 
 
338 APPENDIX 
 
 Hildebrand, Recht u. Sitte auf d. primitiveren wirtschaftl. 
 
 Kulturstufen, 1907. 
 Hiibner, Grundziige d. deutschen Privatrechts, 1908. 
 
 Ihering, Scherz u. Ernst in d. Jurisprudenz, 10th ed., 1909. 
 
 Jellinek, d. Kampi d. alten mit d. neuen Recht, 1907. 
 
 Kantorowicz, Zur Lehre vom richtigen Recht, 1909. 
 
 Der Kampf um die Rechtswissenschaft, 1906. 
 
 Kipp, Geschichte d. Quellen d. rom. Rechts, 3d ed., 1909. 
 Kohler, Encyklopadie der Rechtswissenschaft in system, Bearb. 
 
 (HoltzendorfiE), 6th ed., 2 vols., 1904. 
 
 Modeme Rechtsprobleme, 1907. 
 
 Kohler-Peiser-Ungnad, Hammurabis Gesetz I, 1904j II, 1909, 
 
 III, 1909. 
 Korn, Handbuch d. Zivilrechts, 1908. 
 
 Loaning, Ueber Wurzel u. Wesen des Rechts, 1907. 
 
 Merkel, Jurist. Encyklopadie, 4th ed., 1909. 
 Mommsen, Juristische Schriften, 3 vols., 1905-07. 
 
 Oertmann, Gesetzeszwang and Richterfreiheit, 1909. 
 
 Petrazncki, Ueb. d. Motive d. Handelns u. ii. d. Wesen d. moral u. 
 d. Rechts, 1908. 
 
 Salkowski, Institutionen, 9th ed., 1907. 
 
 Schroder, Lehrbuch d. deutschen Rechtsgeschichte , 5th ed., 
 
 1907. 
 Seuffert, Zivilprozessordnung (Kommentar), 10th ed., 1908. 
 Sohm, Institutionen, 13th ed., 1908. 
 Solomon, Das Problem d. Rechtsbegriffe, 1907. 
 Stammler, D. Lehre v. richtigen Rechte, 2 vols., 1902-07. 
 
 Wirtschaft und Recht, 2d ed., 1905. 
 
 Sturm, Die psycholog. Grundlage des Rechts, 1909. 
 
 Windscheid, Lehrbuch d. Pandektenrechts, 9th ed. (von Kipp), 
 3 vols., 1906, 
 
INDEX 
 
 SUBJECTS, REFERENCES AND GLOSSARY 
 
 Page 
 
 AB KAUF DER FEHDE (purchase-settlement of the feud) . 54 
 
 ABSTRACT AGREEMENTS 163 
 
 ABSTRACT POLITICS 22 
 
 ACCEPTILATIO 163 
 
 ACCESSION 148 
 
 ACCREDITATION AGREEMENTS ' ' 172 
 
 ACCRETION 143 
 
 ACTIO NEGATORIA ' ! 144 
 
 ACTIO PUBLICIANA IN REM '.'.'.'.'.'. 144 
 
 ACTS, are unilateral or bilateral (see facts) 108 
 
 ADITIO 207 
 
 ADMINISTRATION OF JUSTICE 23, 243 '254 ff. 
 
 ADMINISTRATION in the narrow sense 236 
 
 in the widest sense 235 
 
 ADMINISTRATIVE JURISDICTION 284, #. 
 
 does not embrace legislation 284 
 
 ADMINISTRATIVE LAW 94, 97, 218, 235, ff., 241 243 ff. 
 
 ADMINISTRATIVE POLITY (Verwaltungspolitik) 22 
 
 ADMINISTRATIVPROZESS (administrative procedure) . 285 
 
 ADNOTATIONES 82 
 
 ADOPTIO IN HEREDITATEM 204 
 
 AFFATOMIE 187 
 
 AFFRONTS (Beleidigung) 47 
 
 AGE AS AFFECTING CAPACITY 103 
 
 AGER VECTIGALIS 154 
 
 AGREEMENT (Vertrag) 162 jf. 
 
 AGREEMENTS of inheritance 212 
 
 AGREEMENTS FOR DEPOSIT 169 
 
 AGREEMENTS FOR SERVICE, distinguished from 
 
 mandate 167 
 
 AHRENS, Naturrecht oder Philosophie des Rechts 19 
 
 AKTIENGESELLSCHAFT (share company) 105, 168 
 
 ALEATORY AGREEMENTS 170 
 
 ALLFELD, Kommentar 129 131 
 
 ALLGEMEINE GUTERGEMEINSCHAFT (general com- 
 munity of goods) 196 
 
 ALLGEMEINES RECHT (general law) 70 
 
 ALLMENDE (undivided common, see common). 
 
 ALPINE ASSOCIATIONS 144 
 
 ALTRUISTIC IMPULSES 7, 8, 9 
 
 AMERICAN JOURNAL OF SOCIOLOGY 41 
 
 AMERICAN LAW SCHOOLS AND JURISPRUDENCE 25 
 
340 INDEX 
 
 Page 
 AMIRA, GrundrissdesgermanischenRechts . . . . 29, 78, 83, 157 
 
 Grundriss der ger. Rechtsgeschichte 315 
 
 Zweck und Mittel der germanischen Rechtsgeschichte 
 
 77, 325 
 
 AMOS, sys. view of the science of jurisprudence xiv 
 
 AMTSGERICHT (court of first instance) 258, 262, 270 
 
 AMTSHOHEIT (official sovereignty) 215 
 
 ANALOGY, governs legislative expression 89 
 
 ANALYTICAL METHOD, of treatment of legal materials 319 
 
 ANARCHY 8, 10 
 
 ANIMALS, liability arising from ownership of, etc 174 
 
 ANIMUS TRADENDI 147 
 
 ANKLAGSPRINCIP (accusatory principle) 282 
 
 ANNALEN DES DEUTSCHEN REICHES 227 
 
 ANNUITY CHARGES (see pledge rights). 
 
 ANSPRUCHE (claims, q. v.) 38 
 
 ANSTAND (social convention, q. v.). 
 
 ANWALTSPROZESS (procedure by attorney) 267 
 
 ANWALTSZWANG (necessity of acting by attorney) 268 
 
 APPLICATION OF LAW 88 
 
 APPROPRIATION 145, 146 
 
 AQUINAS, distinction between lex naturalis and lex 
 
 3Et.C 1*113. . X9 
 
 ARBEITSVERTRAG (a kind of commercial agreement) . 170 
 
 ARCHIV FUR OFFENTLICHES RECHT 240, 312 
 
 ARCHIV FUR RECHTS- UND WIRTSCHAFTSPHILOSO- 
 
 PHIE 22 
 
 ARCHIV F. ZIVIL. PRAXIS 308 
 
 ARISTOTLE 7 
 
 ARNDT, Reichsstaatsrecht 221 
 
 Staatsrecht, etc 221 
 
 von d. KontroUen d. Verwaltung 286 
 
 ARNDTS, Juristische EnzyklopSdie 27 
 
 ARNOLD, Ansiedelungen und Wanderungen deutscher 
 
 StS.mme 55 
 
 ARRHA 164 
 
 ARTIFICIAL PERSONS (see juristic persons) 104 
 
 ARTIFICIAL RELATIONSHIP 187, #., 204, 205 
 
 ARTISTIC MODELS AND DESIGNS 133, 134 
 
 ASSOCIATION OF AMERICAN LAW SCHOOLS vi, viii 
 
 ATONEMENT (Siihne), a basis of criminal law 67 
 
 ATRID^ 53 
 
 AUFLASSUNG 147 
 
 AUFRECHNUNG (set-off) 160 
 
 AUFTRAG (mandatum) 167 
 
 AUGUSTINE, as a juristic type 12 
 
 AUSFUHRUNGSGESETZE (supplementary statutes) 259 
 
 AUSSTATTUNG 128 
 
 AUSSTEUER (outfit) 198 
 
 AUSTIN, as a juristic type 12 
 
 jurisprudence 22, 23, 25, 26 
 
 principles of law, morals and ethics 39 
 
 AUTHENTIC INTERPRETATION (see interpretation). 
 
INDEX 341 
 
 Page 
 
 AUTHORS' RIGHTS 128, Jf. 
 
 AUTONOMOUS LAW 58, 62, 63, 64, 74, 86, 87, 90 
 
 AUTONOMOUS OBSERVANCE 87 
 
 BAILMENTS 171 
 
 BANKRUPTCY ACT (German), literature 271 
 
 BANNFORSTEN 59 
 
 BANNMEILE 154 
 
 BANNRECHTE • 128, 154 
 
 BAR, das Internationale Privat- und Strafrecht 90 
 
 the, in the administration of justice 257 
 
 BARBEY, comparison of French and English family law. . 177 
 BASTIAN, die Rechtsverhaltnisse bei verschiedenen 
 
 Volkem der Erde 2 
 
 BAUER, die Strafrechtspflege, etc 240 
 
 BEARER, instruments running to 161 
 
 BECHAUX, le droit et les faits ^conomiques xiv 
 
 BEGLAUBIGUNGSBEHORDEN (attesting officers) 262 
 
 BEHREND'S ZEITSCHRIFT 76 
 
 BEISPRUCHSRECHTE 145, 155 
 
 BEISTANDE (counsel) 268 
 
 BEKKER, Streit der historischen und philosophischen 
 
 Rechtsschule 19 
 
 on the scope of philosophy of law 21 
 
 regarding the notion, law 29 
 
 BEKLAGTE (defendant) 267 
 
 BELLUM OMNIUM CONTRA OMNES 4 
 
 BENEFICIA 153 
 
 BENEFICIUM ABSTINENDI 207 
 
 BENEFICIUM INVENTARII 207 
 
 BENTHAM 5 
 
 BERECHTIGUNG (title) 159 
 
 BERNE CONVENTION, on copyrights 131 
 
 BERNHOFT, on comparative law 2 
 
 law compared with morals, etc. 36 
 
 the foundations of the legal system 49 
 
 kin-revenge 53 
 
 on ownership in the law 67 
 
 on the family as a basis of the legal system 67 
 
 ethical ideas in the law 68 
 
 on land registry 147 
 
 BERUFUNG (a kind of appeal) 270, 283 
 
 BESCHWERDE (a kind of appeal) 270, 283 
 
 BESELER, Volksrecht und Juristenrecht 76 
 
 deutsches Privatrecht 87, 293, 294 
 
 BESITZEINWEISUNG (immission, q.v.). 
 
 BETEILIGUNG (intervention) 267 
 
 BEURKUNDUNGSBEHORDEN (authenticating officers) 261 
 
 BEWEISDEKRET (decree of proof) 269 
 
 BEWEISINTERLOKUT 269 
 
 BEWEISVERFAHREN (procedure of evidence) 269 
 
 BEYER, George 322 
 
 BICAMERAL ASSEMBLIES 84, 233 
 
342 INDEX 
 
 Page 
 
 BIERLING, Kritik d. jurist. GrandbegrifEe 10 
 
 BIERMANN, Privatrecht und Polizei in Preussen 125 
 
 BIGAMIA SUCCESSIVA 202 
 
 BILLIGKEIT (see equity). 
 
 BILLS OF EXCHANGE 164, 172, 302 
 
 BINDING, die Normen und ihre Ubertretung 33, 275, 277 
 
 Handbuch des Strafrechts 33, 35, 275, 276 
 
 der Rechtszwang 37 
 
 deutsche Staatsgrundgesetze 220 
 
 system. Handbuch d. deutschen Rechtswissenschaft 267, 314 
 
 Grundriss d. deut. Strafprozessrechts 282 
 
 BIRKMEYER, Enzyklopadie, 13, 27, 81, 136, 138, 145, 147, 
 155, 221, 227, 238, 267, 271, 277, 282, 286, 287, 294, 
 
 298, 302, 308, 309, 310, 313, 315 
 
 das Militarstrafrecht 227 
 
 das Strafrecht 227 
 
 BIRTH, as affecting capacity 103 
 
 BLACKSTONE, definition of law 12 
 
 BLANKOPAPIERE (bills of exchange in which the payee is 
 
 not designated and which are indorsed in blank) 172 
 
 BLATTER F. RECHTSANWENDUNG 126, 128 
 
 BLOOD FRATERNITY 187 
 
 BLUE 98 
 
 BLUNTSCHLI, deutsches Privatrecht 87, 129, 145 
 
 Geschichte d. allg. Staatsrechts 221 
 
 das modeme Volkerrecht 287 
 
 BLUTBANN (penal judicature) 59, 256, 279 
 
 BLUTRACHE (kin revenge, q. v.). 
 
 BLUTSBRUDERSCHAFT 187 
 
 BLUTSSCHWESTERSCHAFT 187 
 
 BOISTEL, cours de philosophie du droit xiv 
 
 BORCHARDT, die geltenden Handelsgesetze d. Erdballs. . 301 
 
 BORETIUS, capitularia regum francorum 83 
 
 BORSENGESCHAFTE (business of stock exchanges) 167 
 
 BOTTOMRY 152 
 
 BRIEF-HYPOTHEK (see pledge rights). 
 
 BRINZ, Pandekten 33, 76, 87, 90 
 
 BROKERAGE AND AGENCY 171 
 
 BROTSPENDER 249 
 
 BRUNNER, deutsche Rechtsgeschichte 56, 60, 77, 84, 314 
 
 Rechtsgeschichte der rom. u. germ. Urkunde 78 
 
 Grundztige der deutschen Rechtsgeschichte ... .84, 157, 315 
 
 Geschichte u. Quellen d. D. Rechts xiii 
 
 BRUNS, Ges. u. Quellen d. rom. Rechts 308 
 
 BUCH-HYPOTHEK (see pledge rights). 
 
 BUDNERRECHTE 153 
 
 BUHLER, Grundriss der indo-arischen Philologie 3, 36 
 
 BUNDESSTAAT 60, 238 
 
 BtJRGSCHAFT (suretyship, q. v.). 
 
 BUSCH, Archiv f. Theorie und Praxis 33 
 
 Archiv f. H. u. W. R 122 
 
 BUSSE, Philosophie und Erkenntnistheorie 8 
 
 die Weltanschauungen des grossen Philosophen 8 
 
INDEX 343 
 
 Page 
 
 C^SAR, de bell, gall 141 
 
 CALPULLI 142 
 
 CAMORRA 63 
 
 CANON 153, 155 
 
 CANONICAL IMPEDIMENTS TO MARRIAGE 63 
 
 CAPACITY FOR ACTS 103, 193, 194, 201 
 
 CAPACITY FOR RIGHTS 103 
 
 CAPITALIZATION AGREEMENTS 172 
 
 CAPITULARIES 83 
 
 CAPTURE MARRIAGE 179, 193 
 
 CARRIAGE AND INLAND NAVIGATION AGREE- 
 MENTS 170 
 
 CARRIER PIGEONS PROTECTED BY LAW 65 
 
 CASE LAW, evils of xii, 25 
 
 CASTE GOVERNS CAPACITY FOR RIGHTS 103 
 
 CAUSA 163 
 
 CAUTIONARY HYPOTHECARY CHARGES (see pledge 
 rights) . 
 
 CENTENEISI (centen, hundreds) 56 
 
 CERTIFICATED HYPOTHEK (see pledge rights). 
 
 CESSIONARIUS 159 
 
 CHATTI 56 
 
 CHIEF AND AUXILIARY INTERESTS OF THE 
 
 STATE IN DETAIL 247 
 
 CHURCH LAW 296, #. 
 
 its literature 298 
 
 CHURCH STATE 227 
 
 CHURCHES AS JURISTIC PERSONS 296 
 
 CICERO 7 
 
 definition of law 11 
 
 as a iuristic type 12 
 
 CIVIL PROCEDURE 265, ff. 
 
 CIVIL PROCEDURE ACT (Z. Pr. O.) 267 
 
 CIVITAS 57 
 
 CLAIMS (Anspriiche) 38, 260,# 
 
 in personam 158 
 
 in rem 158 
 
 for damages 160 
 
 arising out of agreement 161 
 
 classification 259 
 
 punitive 279, ff. 
 
 CLASSIFICATION, growth of 14 
 
 of dogmatic law 17 
 
 of the corpus juris 93 
 
 of the civil law Ill 
 
 is governed not only by logic but by practical considera- 
 tions 113 
 
 of private law in Germany 114 
 
 CODE, of Manu 3, 36, 37, 77, 147, 148, 272, 273, 277 
 
 of Hammurabi, xx, 3, 4, 41, 153, 155, 168, 160, 179, 180, 
 
 187, 195, 227, 240 
 of Justinian became common law in Germany by 
 reception '. . .70, 114, 115 
 
344 INDEX 
 
 Page 
 
 CODE, German bills of exchange 70 
 
 German commercial 70, 76, 121, 301 (contents) 
 
 Roman 82 
 
 French 71, 116, 117, 140, 196, 308, 310 (Lit.) 
 
 Saxon civil 71, 116, 117, 194, 310 (Lit.) 
 
 Austrian 116, 117, 308 
 
 Danish 117 
 
 German civil, preparation of, xiii, 119, 267 (Lit.), 311, 
 
 312 (Lit.) 
 
 de commerce 300 
 
 German criminal, literature 277 
 
 CODEX THEODOSIUS 82 
 
 CODICILLI 212 
 
 CODIFICATION xi, ff. 
 
 COLLECTIVE REVENGE (Kollektivrache) 67 
 
 COLLEGIA CORPORA 105 
 
 COLLEGIA FUNERATICIA 105 
 
 COLLEGIA SODALICIA 105 
 
 COLUMBIA LAW REVIEW 89 
 
 COMITIA 233 
 
 COMMENTARIES ON GERMAN BANKRUPTCY ACT. 271 
 
 COMMENTARIES ON GERMAN CIVIL CODE 267,311 
 
 COMMENTARIES ON GERMAN COMMERCIAL LAW 302 
 COMMENTARIES ON GERMAN CRIMINAL CODE.. 277 
 
 COMMERCIAL CODE (German), synopsis 301 
 
 COMMERCIAL LAW 300, ff. 
 
 COMMERCIAL LAW, literature 302 
 
 COMMISSION AGREEMENTS 170 
 
 COMMODATUM 165, 169 
 
 COMMON (allmende) 55 
 
 COMMUNIO INCIDENS 175 
 
 COMMUNITY OF GOODS 195, 196 
 
 COMMUNITY OF INCOME AND PROFITS 195, 19b 
 
 COMMUNITY OP MOVABLES 195,196 
 
 COMMUNITY PROPERTY 194,jf. 
 
 COMMUNITY STATE (Gemeindestaat) 55, 56 
 
 COMPAGENSES 56 
 
 COMPARATIVE LAW 2, 21 
 
 COMPOSITE STATES . . .' 229 
 
 COMPOSITION SYSTEM 54 
 
 COMPOUND STATES 238 
 
 COMPULSORY HEIRS 210 
 
 COMPULSORY PORTION 210 
 
 COMPUTATION OF DEGREES OF RELATIONSHIP. 186 
 
 CONCUBINAGE 180 
 
 CONCURRENCE DfiLOYALE 128 
 
 CONFLICT OF LAWS. . .71, 72, 88, 89, 90, 91, 197 (marriage) 
 
 CONFUSIO (merger) 160 
 
 CONFUSIO AND SPECIFICATIO 148 
 
 CONFUSION AND SPECIFICATION 148 
 
 CONJUGAL COMMUNITY 180, 190,jf. 
 
 CONSENSUAL CONTRACTS ■ 166 
 
 CONSTITUTIO CRIMINALIS CAROLINA 83, 227 
 
INDEX 345 
 
 Page 
 
 CONSTITUTIONAL LAW 94, 96, 218, 220, 240,#. 
 
 necessary to the state 66 97 
 
 CONSTITUTIONES PRINCIPUM '82 
 
 CONSULS, commercial and jurisdictional 290 
 
 CONTANGO 167 
 
 CONTRA BONOS MORES 37, 42, 47, iss i62 173 
 
 CONTRACTUS EMPHYTEUTICARIUS ... . 154 
 
 CONTRIBUTED PROPERTY .... " 150 
 
 CORPSES, rights in 126 202 
 
 CORPUS JURIS 24 93' 114 
 
 CORPUS JURIS CANONICI ' ' 318 
 
 CORPUS JURIS CIVILIS 82, 114, 317,'318, 322 
 
 COSACK, Lehrbuch d. b. R., 87, 88, 90, 105, 138, 152, 164, 
 
 166, 167, 169, 170, 171 
 
 H. R 166, 167, 168, 169, 170, 171, 172, 302 
 
 COURCELLE-SENUIL, preparation k I'^tude du droit. xiv 
 
 COURTS, classified 281 
 
 German, kinds 258 
 
 CREDIT AGREEMENTS 172 
 
 CREDITOR 159 
 
 CREDITOR CEDENS ' ' ' ' 159 
 
 CRIMINAL CODE OF GERMANY, synopsis 277 
 
 CRIMINAL LAW 272 #, 
 
 CRIMINAL PROCEDURE 279' f 
 
 CRIMINAL PROCEDURE ACT OF GERMANY, synopsis 282 
 
 CRIMINAL PUNISHMENT, defined . . 274 
 
 objects of 275 
 
 primitive methods 275 
 
 CRITICISM (Kritik) 88 89 
 
 CUJACIUS 319 
 
 CURA 188, 190 
 
 CUSTOM, creates material of positive law 15 
 
 as a source of law 62 
 
 does not oppose the political character of law 64 
 
 of foreign countries recognized in Germany 64 
 
 as a species of law-making 74 
 
 must conform to the recognized laws of reason and 
 
 morality 76 
 
 may derogate from statute in Germany 76 
 
 gives way to legislation in Anglo-American system .... 77 
 
 of merchants 78 
 
 CUSTOMARY LAW 75, 76 
 
 general 75 
 
 particular 75 
 
 is jus non scriptum 76 
 
 has an earlier historical origin than legislation 77 
 
 has a function even when legislation is highly developed 78 
 not formulated by the state but by the community . . 78 
 its authority is referable to the state 79 
 
 DAHN, on comparative law 2 
 
 die Vemunft im Recht 6, 40, 42 
 
 fiber Werden und Wesen des Rechts 6, 43 
 
346 INDEX 
 
 Page 
 
 DAHN, Rechtsphilosophische Studien 19 
 
 regarding the notion, law 29 
 
 philosophy and law 40 
 
 das tragische in der german. Mythologie 44 
 
 im neuen Reich 54 
 
 Fehdegang und Rechtsgang der Germanen 54 
 
 Bausteine 54, 55 
 
 deutsche Geschichte 55 
 
 Urgeschichte der german. Volker 55, 57 
 
 Konige der Germanen 55, 250 
 
 zur aiteren deutschen Geschichte 56 
 
 on customary law 76 
 
 d. Rechtsbuch 202 
 
 DAHN-BLUNTSCHLI, deutsches Privatrecht 87, 129 
 
 DALCKE, preuss. Jagdrecht 251 
 
 DANTE, de Monarchia 19 
 
 DARGUN, Ursprung des Eigentums 67 
 
 on Mutterrecht, etc 179, 183 
 
 DARLEHEN (mutuum) 169 
 
 DEBITOR 157 
 
 DECISIONAL ADMINISTRATION OF JUSTICE 88 
 
 DECRETA 82 
 
 DEDUCTIVE METHOD OF LEGAL SCIENCE 14 
 
 DE FACTO SUBJECTS 248 
 
 DEGEN 249 
 
 DEKRETIERKUNST 316 
 
 DELATIO 207 
 
 DELATION 207 
 
 DELIBATIO HEREDITATIS 212 
 
 DELICTUAL OBLIGATIONS 173, #. 
 
 DENARIUS DEI 164 
 
 D:fiNIGREMENT (commercial slander) 128 
 
 DEPOSIT, as extinguishing obligations 160 
 
 DEPOSITUM 165, 169 
 
 DERNBURG, Pandekten 90, 138 
 
 Lehrb. d. preuss. Privatrechts 310 
 
 DESCENT, in German law 209 
 
 Roman law 208, 209 
 
 DESSA 142 
 
 DEUTSCHE JURISTEN ZEITUNG (D. J. Z.) 126 
 
 DEUTSCHE REVUE 2, 56, 72 
 
 DEUTSCHE RUNDSCHAU 77 
 
 DEXTER, weather influences 68 
 
 DHARMA 3 
 
 DIENSTBARKEITEN (servitudes, q. v.). 
 
 DIENSTRECHT 84, 143 
 
 DIENSTVERTRAG (agreement for services) 170 
 
 DIETZ-KUCHLER, Verwaltungsgesetzgebung, etc 286 
 
 DIFFERENTIATION OF LAW-MAKING FUNCTION 58, 59 
 
 DIFFERENZGESCHAFT 166 
 
 DINGLICHE RECHTE (real rights, q. v.). 
 
 DINGPFLICHT 60 
 
 DIPLOMATICS 315 
 
INDEX 347 
 
 Page 
 
 DISINHERITANCE 47, 210 
 
 DISPOSING CAPACITY (see capacity) 103 
 
 DISPOSITIVE ACTS (see facts) 108 
 
 DISTRICT COURTS (Gau courts) 56 
 
 DISTRICT-STATE 56, 57 
 
 DIVORCE, conduct incompatible with marriage, a ground of 47 
 
 DOCTOR JURIS UTRIUSQUE (J. U. D.) 295 
 
 DOGMATIC LEGAL SCIENCE, defined 17 
 
 DOGMATIC METHOD 303, 319 
 
 DOMESTIC SERVICE AGREEMENTS 171 
 
 DOMINIUM 139 
 
 DOMINIUM UTILE 153 
 
 DONELLUS 319 
 
 DORFSYSTEM 143 
 
 DOS (dowry) 193 
 
 DOTIS DICTIO 163 
 
 DO UT DES 165 
 
 DOWRY 193 
 
 DREYER, das deutsch. R.- Zivilrecht : 309 
 
 DROST 249 
 
 DUELING 63 
 
 DUPLIK (rejoinder) 269 
 
 DUTIES, in morals 40 
 
 DYDE, translation of Hegel's Philosophie des Rechts. ... 1 
 
 EARNEST MONEY 164 
 
 EASEMENT (see servitudes). 
 
 ECCLESIA DOCENS 43 
 
 ECCLESIA DOMINANS 44 
 
 ECCLESIA IMPERANS 43 
 
 ECONOMIC COMMUNITY DIFFERS FROM THE 
 
 STATE 94 
 
 ECONOMIC CONSIDERATIONS AS SOURCES OF LAW 68 
 
 EDDA 54 
 
 EDICTA MAGISTRATUUM 82, 
 
 EDUCATION, legal, methods (see also Hodegetics) xi 
 
 EGOISM 3, 4, 5, 7, 8, 9, 31, 49, 93, 146, 272, 324 
 
 EHELICHE GEMEINSCHAFT (conjugal community) . 180, 181 
 EHELICHES GUTTERRECHT (matrimonial regime) . 181, 192 
 
 EHEVERTRAG (marriage contract) 181 
 
 EHRENBERG, Kommendation und Huldigung 60 
 
 die deutsche Rechtsgeschichte, etc 325 
 
 EIGENBESITZER (proprietary possessor) 138 
 
 EIGENE WECHSEL (promissory notes) 302 
 
 EINFUHRUNGSGESETZE (introductory statutes) 259 
 
 EINGEBRACHTES GUT (non-privileged property) 195 
 
 EINGETRAGENE GENOSSENSCHAFTEN (registered 
 
 associations) 105, 168 
 
 EINHEITLICHKEIT (.procedural unity) 268 
 
 EINREDEN (pleas) 38, 265, 269 
 
 EINWENDUNGEN (objections, see Einreden) 269 
 
 EINZELGUTER (individual property) 55 
 
 ELEMENTAL OCCURRENCES (see facts) 107 
 
348 INDEX 
 
 Page 
 
 EMPHYTEUSIS 154 
 
 EMPTIO-VENDITIO 166 
 
 ENCYLOPEDIA, derivation and application Intro., 26 
 
 ENDEMANN, Einfiihrung in das Studium B. G. B 126, 312 
 
 Lehrbuch d. b. R 164, 172, 173 
 
 Handbuch d. H. R 166 
 
 das Eisenbahnrecht 294 
 
 ENGLISH LAW, an ocean of cases 25 
 
 ENTMUNDIGTE VOLLJAHRIGE (interdicted adults) . . 200 
 
 ENTSCHEIDUNGEN DES REICHSGERICHTS 76 
 
 EPISTOL^ 82 
 
 EQUITY (justice, Billigkeit) 48 
 
 distinguished from sequitas 48 
 
 is not law 48 
 
 ERBBAURECHTE (heritable building rights) 155 
 
 ERBPACHTEN (heritable leases) 153, 154 
 
 ERBVERBRUDERUNGEN 212 
 
 ERBZINSRECHTE 153 
 
 ERLASS (release, q. v.). 
 ERRUNGENSCHAFTSGEMEINSCHAFT (community of 
 
 income and profits) 196 
 
 ERSITZUNG (usucaption, q. v.), 
 ERWERBSGESELLSCHAFTEN (mercantile partnerships) 168 
 
 ESPRIT DE CORPS 7 
 
 ETHICAL CONCEPTION OF LAW 62 
 
 ETHICAL DESTINY CONNECTS MORALS AND 
 
 RELIGION 40 
 
 ETHICAL FOUNDATION OF SOCIETY 5, 9 
 
 ETHICAL IDEAS IN THE LEGAL SYSTEM, 67, 163, 
 
 176, 181, 183, 189, 198, 254 
 
 ETHNOLOGICAL INFLUENCES, in public law 100 
 
 EUDCEMONISM 36 
 
 EVENTUALMAXIME 268 
 
 EVIDENCE, formal theories abandoned in Germany, . . . 270 
 
 EXEGETICAL METHOD OP STUDY 317, 322 
 
 EXNER, die Moral als Waffe im Kampf urns Dasein 9, 40 
 
 EXOGAMY 179 
 
 EXPENSILATIO 163 
 
 EXPROPRIATION 148 
 
 EXTENSIVE INTERPRETATION (see interpretation). 
 
 FACTORS OF A STATE ESTABLISHMENT OF LAW 66 
 
 FACTS CLASSIFIED 120 
 
 FACTS GIVE RISE TO RIGHTS .102, 107, 108, 145, 148, 191 
 FACTS MAY AND DO ESTABLISH A BASIS OF 
 
 CLASSIFICATION 113 
 
 FACULTAS AGENDI 31, 34 
 
 FAHRHABE (movable things, see things). 
 
 FALCK, juristische Encyklopadie 316 
 
 FAMILIENRAT (family council) 201 
 
 FAMILIENSTAAT (family-state, q. v.). 
 
 FAMILY COMMUNITY 52 
 
INDEX 349 
 
 Page 
 FAMILY, in the legislation of Justinian 53 
 
 is itself a state in absence of other dominant community 52 
 
 is the starting point of the legal system 52 
 
 FAMILY LAW (pure) 176,#. 
 
 FAMILY, one of the primary bases of the legal system .... 67 
 
 FAMILY PROPERTY 189, ff. 
 
 FAMILY, punishment in, antedates criminal law of the state 274 
 FAMILY RELATION, involves real and personal relations 191 
 
 FAMILY-STATE (Familienstaat) 53, 179 
 
 FAMILY STATUS, as affecting capacity 103 
 
 FARMSTEADS (Hofe) 56, 142, 143 
 
 FAUSTPFAND (see pledge rights). 
 
 FEDERAL STATES 229 
 
 FELDGEMEINSCHAFT 143 
 
 FEUDAL LAW 309 
 
 FEUDAL STATE (Lehenstaat) 57 
 
 FEUDAL SYSTEM 59 
 
 FEUDASTRUM 153 
 
 FEUDUM (tenure q. v.). 
 
 FICHARD 83 
 
 FICHTE, liber die Bestimmung des Gelehrten 40 
 
 theory of the objects of the state 224 
 
 FICTITIOUS PERSONS (see iurisric persons) ■ 104 
 
 FIDEICOMMISSA 145 
 
 FIDEICOMMISSAR 213 
 
 FINANZHOHEIT (sovereignty of taxarion) 215 
 
 FINDERRECHT (law of finding) 146 
 
 FINGER, Lehrbuch d. deutsch. Strafrechts 277 
 
 FISCUS 101, 104, 173, 214, 216, 284 
 
 FIXGESCHAFTE 166 
 
 FOLK LAWS (see Volk Laws). 
 
 FORENSEN (non-resident land-holding aliens) 248 
 
 FORDERUNGSRECHT (right in personam arising out of 
 
 obligation) 159 
 
 FORMAL AGREEMENTS 163 
 
 FORMATIVE ARTS, statutes protecting 133 
 
 FORMULARY SYSTEM OF ROMAN LAW 159 
 
 FORWARDING AGREEMENTS 170 
 
 FOUNDATIONS (Stiftungen) 104, 106 
 
 FOUNDATIONS OF THE LEGAL SYSTEM 49, 61 
 
 FRANTZ, Naturlehre des Staats, etc 221 
 
 FREEDOM OF DOMICILE STATUTE 125 
 
 FREEDOM OP WILL 49, 50, 51 
 
 FREIWILLIGE GERICHTSBARKEIT (non-contentious 
 
 jurisdiction, q. v.). 
 FRENZEL, fiber Entstehung der Naturalis Obligatio .... 160 
 
 FRIEDENSORDNUNG (law q. v..) 10, 29 
 
 FRIEDLANDER, juristische Enzyklopadie 1, 27 
 
 FRIEDRICH, die Bestrafung der Motive, etc ,22 
 
 FRONEN (socage service, q. v.). 
 
 FUNDUS EMPHYTEUTICARIUS 154 
 
 FUNGIBLE THINGS, loans of 169 
 
 FURTUM 173 
 
350 INDEX 
 
 Page 
 
 GAMING AGREEMENTS 170 
 
 GANERBSCHAFTEN 212 
 
 GANZ, on inheritance law 2 
 
 GAREIS, on comparative law 2 
 
 Lehrbuch d. H. R., 10, 126, 133, 152, 166, 167, 168, 169, 
 
 170,171,172,301,302,309 
 
 definition of law 11 
 
 Institutionen des Volkerrechts 18, 86, 87, 287, 288 
 
 das allgemeine Staatsrecht, 22, 33, 60, 80, 81, 83, 100, 
 101, 221, 230, 231, 233, 235, 236, 247, 248, 251, 266, 
 
 285, 286 
 die Privatrechtsspharen im modemen Kulturstaat . .33, 40 
 
 das juristische Wesen der Autorrechte 33 
 
 Irrlehren iiber den Ktilturkampf 40 
 
 early Germanic history (monograph) 56 
 
 on conflict of laws 72 
 
 das B. G. B 76, 103, 213 
 
 deutsches Kolonialrecht -. 76, 294 
 
 land laws of Charlemagne 83 
 
 the theory of personality 122 
 
 Kommentar des Patentgesetzes 122 
 
 Grundriss zu Vorlesungen iiber d. biirgerl. Recht, 122, 
 
 126, 145, 153, 154, 175, 196, 199, 249 
 
 das Recht am menschlichen Korper 126 
 
 rights in human corpses 1-26 
 
 on unfair competition 128 
 
 on the law of ownership 139 
 
 H. G. B 157, 259, 268, 301 
 
 on commercial sales 166 
 
 die Errungenschaftsgemeinschaft, etc 196 
 
 das deutsche Patentgesetz 265 
 
 on administrative law 286 
 
 die Fortschritte d. Volkerrechts 287 
 
 Genfer Kovention 288 
 
 Einfiihrung in d. Studium d. Rechtswissenschaft, 323, 
 
 325, 326 
 
 GAREIS AND ZORN, Staat u. Kirche in der Schweiz 298 
 
 GASINDI 249 
 
 GASTFREUNDSCHAFT (hospitality, q. v.). 
 
 GAU (pagus, district) 56 
 
 GAU COURTS 56, 69 
 
 GAUGERICHTE (district or local courts) 59 
 
 GAUGENOSSEN 56 
 
 GAURECHT (local law) S3 
 
 GAU-STATE (district-state) 56 
 
 GEBOTENES DING 60 
 
 GEGENVORMUND (supervising guardian) 201 
 
 GEHOFERSCHAFTEN (farmstead communities, see 
 
 farmstead) . 
 GELEGENHEITSGESELLSCHAFTEN (adventure part- 
 nerships) 168 
 
 GELEHRTENGERICHTE (professional courts) 281 
 
 GEMEINDEN (communities) 56 
 
INDEX 351 
 
 Page 
 
 GEMEINES RECHT (common law) 70 
 
 GEMEINDESTAAT (community-state, q. v.). 
 
 GEMEINDETESTAMENT (communal wiU) 211 
 
 GEMEINRACHE (social revenge, q. v.). 
 
 GENERALIZATION, its function in law 6, 88 
 
 GENERIC CONFLICT OF LAWS 72, 91 
 
 GENGLER, germanische Rechtsdenkmaler 84 
 
 deutsches Privatrecht 145 
 
 GERBER, deutsches Privatrecht 145 
 
 GERICHTSBARKEIT (jurisdiction) 258 
 
 GERICHTSFERIEN (judicial non-terms) 259 
 
 GERICHTSSAL 272 
 
 GERICHTSSCHREIBERN (clerks of courts) 259 
 
 GERICHTSVERFASSUNGSGESETZ (judicature statute) 
 
 258 259 
 
 GERICHTSWESEN (judicial affairs) ' 59 
 
 GERMAN CIVIL CODE, based in form on Roman law 
 
 ^gg^ code) xiii 
 
 GERMAN legal" HISTORY,' literature '. ', '. '. '. '. '. '. 314 
 
 GESAMTNACHEOLGE (universal succession) 206 
 
 GESCHLECHTSVORMUNDSCHAFT (statutory tute- 
 lage) 193 
 
 GESELLSCHAFTSRECHT (social law, q. v.). 
 GESELLSCHAFTSVERTRAG (partnership agreement) ,. 168 
 
 GESETZ (law in narrow, and widest sense) 84 
 
 GESETZ DER IMMANENZ 10 
 
 - GESETZGEBUNGSPOLITIK (legislative polity) 22, 97 
 
 GESUND 143 
 
 GEWERBEGERICHTE (trade courts) 259 
 
 GEWERE 138 
 
 GEZOGENE WECHSEL (drafts) 302 
 
 GIERKE, Naturrecht und deutsches Recht 18 
 
 Jugend und Altem des Rechts 77 
 
 deutsches Privatrecht 77, 91, 122, 126 
 
 sociale Aufgabe des Privatrechts 102 
 
 on the theory of personality 122 
 
 der Humor im deutschen Recht 147 
 
 Untersuchungen zur deutschen R. Geschichte 179, 315 
 
 deut. Genossenschaftsrecht 314 
 
 GIFTS 170 
 
 GIROVERKEHR (commercial paper transactions) 172 
 
 GLOSSA ORDINARIA 317 
 
 GLOSSATORS 317, 318 
 
 GLOSSES 317 
 
 GMOLL, the law of Gortyn 107, 187, 209 
 
 GNEIST, der Rechtsstaat, etc 223, 224, 286 
 
 Englische Verfassungsgeschichte 312 
 
 GOLDEN BULL 83 
 
 GOLDSCHMIDT, UniversalgeschichtedesHandelsrechts. .6, 10 
 
 Handbuch d. H. R 10 
 
 defines science, of law 14, 15 
 
 Enzyklopadie der Rechtswissen&haft 27, 305, 307, 308 
 
 GOTHS 56 
 
352 INDEX 
 
 Page 
 
 GOTTESURTEIL (the ordeal) 45 
 
 GRATIAN, definition of law 11 
 
 GREEN BAG xi, xiii, 270 
 
 GREEN, principles of political obligation iv 
 
 GRIMM, deutsches Worterbuch 29 
 
 GROSS MISCHIEFS (grober Unfug) 47 
 
 GROTIUS 18, 287, 321 
 
 De jure belli ac pacis 61 
 
 GRUCHOTS BEITRAGEN 126 
 
 GRUNDBUCH (land registry) 147 
 
 GRUNDDIENSTBARKEITEN (praedial servitudes, see 
 
 servitudes) . 
 GRUNDSCHULD (land charge, see pledge rights). 
 
 GRUNHUTS ZEITSCHRIFT 2, 4, 33 
 
 GUARDIANSHIP 187, 188, 190, 191, 200, 201 
 
 GUMMERE, germanic origins 56 
 
 GUNDERMANN, Englisches Privatrecht 140 
 
 GUTERRECHTE (matrimonial property rights) 70 
 
 GUTERTRENNUNG (separation of goods) 194 
 
 HABITATIO 151 
 
 HALF- FREE 103 
 
 HALLAM, middle ages 56 
 
 HAMMURABI, code, xx, 3, 4, 41, 153, 155, 158, 160, 179, 
 
 180, 187, 195, 227, 240 
 
 HANDBUCH D. VOLKERRECHTS 36 
 
 HANDELSGESELLSCHAPTEN (commercial partnerships) 168 
 
 HANDELSRECHT (commercial law) 300 
 
 HANEL, Staatsrecht d. deut. Reiches 238 
 
 HANSSEN, Agrarhistorische Abhandlungen 56 
 
 HARPER, code of Hammurabi 4 
 
 HARRASOWSKY, Ges. d. Kod. d. Osterr. Zivilrechts 309 
 
 HARTMAN, Zeitschrift f . d. off. Recht 33, 40, 139, 224 
 
 HASTIE, outlines of jurisprudence vii, xv, xvii, 1, 19, 25 
 
 Kant's philosophy of law xv 
 
 Lioy's philosophy of law 19 
 
 HAUBERGGENOSSENSCHAFTEN (woodland communi- 
 ties, q. V.) '. 142 
 
 HAUSLERRECHTE 153 
 
 HECKER, adoption jm geltenden Recht 187 
 
 HEERPFLICHT (duty of military service) 60 
 
 HEERWESEN (military affairs) 59 
 
 HEFFTER, das Europaische Volkerrecht 287 
 
 HEGEL, his conception of the universe vii 
 
 moral and civil duties 38, 39 
 
 Philosophie des Rechts 1 
 
 theory of the object of the state 224 
 
 HEGELIAN SCHOOL ni 
 
 HEIRATSGUT (marriage portion) 198 
 
 HELD, Grundziige d. allg. Staatsrechts, etc 221 
 
 HELLMANN, Konkursrecht 271 
 
 HEREDES EXTRANEI 205 
 
 HEREDITAS DELETA 207 
 
INDEX 353 
 
 Page 
 
 HERITABLE BUILDING RIGHTS' 155 
 
 HERITABLE LEASES 153 
 
 HERMANEUTICS 89 
 
 HEROARCHY 52 
 
 HERODITUS, on temple prostitution 41 
 
 HERO-STATE 228, 231 
 
 HESS, Forstschutz 251 
 
 HEUSLER, Inst, des deutschen Privatrechts, 56, 138, 142, 
 
 143, 144, 179, 183, 186, 187, 188, 196, 208, 211 
 
 Inst, des deutschen Rechtsquellen 314 
 
 HINSCHIUS, on church law 296 
 
 HINTERLEGUNG (deposit) 160 
 
 HISTORICAL EVOLUTION OF GERMAN CIVIL LAW 114 
 HISTORICAL LEGAL SCIENCE DOES NOT CONFLICT 
 
 WITH DOGMATIC LAW 17 
 
 HISTORICAL METHOD OF STUDY 303 
 
 HISTORICAL SCHOOL 62, 65, 66, 319, 320 
 
 HISTORY OF JURAL IDEAS 23 
 
 HISTORY OF LAW 23 
 
 HIST. ZEITSCHRIFT 57 
 
 HOBBES, contract theory of the state 228 
 
 HODEGETICS, juristic 303, 323 
 
 HOFBESITZER (farmstead proprietor) 56 
 
 HOFE 55, 56 
 
 HOFFNUNGSKAUF 167 
 
 HOFMEISTER, die Gerichtsszene, etc 160 
 
 HOFSYSTEM (see farmstead). 
 
 HOLDER, Pandekten 90 
 
 HOLLAND, the elements of jurisprudence 1, 12, 23, 26 
 
 HOLTZENDORFF, Enzyklopadie, 18, 19, 27, 52, 66, 77, 
 
 179, 187, 221, 287, 293, 296, 308, 309, 310, 311, 312, 313, 
 
 314, 315 
 
 Handbuch d. deutschen Strafrechts 227 
 
 Handbuch des Volkerrechts 287 
 
 HOLZZOLLE (wood tolls) 293 
 
 HORLE, legal position of illegitimate children 185 
 
 HOSPITALITY (Gastfreundschaft) 53, 68 
 
 HUE DE GRAIS, Handbuch der Verfassung, etc., in 
 
 Preussen 286 
 
 HUGO, Inst. d. heut. rom. Rechts 319 
 
 Lehrb. d. Geschichte d. rom. Rechts 319 
 
 HUMANISTIC LEARNING INDISPENSABLE IN 
 
 LEGAL SCIENCE 316 
 
 HUNDREDS (centenen) 56 
 
 HYPOTHECA (see pledge rights). 
 
 HYPOTHECARY CHARGE 152 
 
 HYPOTHEK (see pledge rights). 
 
 IHERING 7 
 
 der Zweck im Recht 5, 33, 102 
 
 Geist d. rom. Rechts ■, 308 
 
 Jurisprudenz d. taglichen Lebens 324 
 
 ILLINOIS LAW REVIEW xiii 
 
354 INDEX 
 
 Page 
 
 IMMANENT LEGAL PRINCIPLES 10 
 
 IMMISSION 109 
 
 IMPERIAL STATES 229 
 
 IN^DIFICATIO 148 
 
 INAMA-STERNEGG, deutsche Wirtschaftsgeschichte . . 55, 56 
 
 Verwaltungslehre 244 
 
 INCORPORATION 148 
 
 INDIVIDUALISM AND SOCIAL WELFARE 25 
 
 INDUCTIVE METHOD OF LEGAL SCIENCE 14 
 
 INFORMAL AGREEMENTS 165 
 
 INHABERPAPIERE (instruments payable to bearer) 161,172 
 INHERITANCE, law of 190, 202, jf. 
 
 cultural importance of 205 
 
 province of legislative restrictions 205 
 
 INNOMINATE CONTRACTS 165 
 
 INQUISITION, general and special 282 
 
 INSURANCE AGREEMENTS 171, 172 
 
 INTABULIERUNGSGERICHTE (intabulation courts) . . 261 
 
 INTENTIO 159 
 
 INTERESSENTRAGER (owner of an interest, see legal 
 
 subject) 34, 102 
 
 INTERESTS ARE THE BASIS OF RIGHTS, 10, 11, 20, 
 
 INTERNATIONAL LAW 287^ ff. 
 
 based on common interests of states 75, 216 
 
 is a division of public law 94, 95 
 
 systematic survey of its content 289, _^. 
 
 conventional 288, 291 
 
 INTERNATIONAL PRIVATE LAW 22, 71, 90 
 
 INTERPRETATION (Auslegung) 88, 89, 90, 91 
 
 INTERPRETATIVE METHOD OF STUDY 304 
 
 IZBA (mansio, q. v.). 
 
 JAHRBUCH FUR DOGMATIK 10 
 
 JASTROW, religion of the Babylonians and Assyrians. ... 41 
 
 JOLLY, on code of Manu 3, 36, 37, 147, 148 
 
 die Systematik des indischen Rechts 41 
 
 Recht und Sitte 208, 209, 272, 277 
 
 JONES, Sir William, laws of Manu 3 
 
 JUDEX NE EAT ULTRA PETITA PARTIUM 268 
 
 JUDICATURE STATUTE 25S 
 
 JUDICIALLY RESPONSIVE ADMINISTRATION OF 
 
 JUSTICE 88 
 
 JURA IN RE (real rights, q. v.). 
 
 JURAL NECESSITY .62, 86, 216, 288, 290, 291 
 
 JURISPRUDENCE 22, 23, 24, 25 
 
 methods of literary treatment '^^ ff- 
 
 recent German literature 337, 338 
 
 schools of iii, ^• 
 
 JURISTIC ACT 51 
 
 JURISTIC ENCYCLOPEDIA (see juristic survey) . 
 
 JURISTIC FACT (see fact). 
 
 JURISTIC PERSONS 104, 296 
 
INDEX 355 
 
 Page 
 JURISTIC SURVEY, definition and scope, v, xiii, xiv, 
 
 xvii, xix, 1, 25, 26 
 
 divisions 23 
 
 its origin ^ . . . 322 
 
 intro. to science of law '. . 307, 323, 327 
 
 literature 26, 27, 28 
 
 varieties 27 
 
 JURISTIC TRANSLATIONS (into English), kinds xiv 
 
 JURISTISCHER LITERATURBERICHT, 288, 308, 309, 
 
 310, 312, 313, 315 
 
 JUS AD REM 149 
 
 JUS ^QUUM 48 
 
 JUS CANONICUM, as a division of law 295 
 
 (JUS) CANONICUM, derivation 297 
 
 JUS CIVILE 18 
 
 JUS CONSUETUDINARIUM 291 
 
 JUS DOMINII (see ownership). 
 
 JUS ECCLESIASTICUM COMMUNE 298 
 
 JUS ECCLESIASTICUM PARTICULARS 298 
 
 JUS GENTIUM 18 
 
 JUS HONORARIUM 82 
 
 JUS IN RE ALIENA 137, 138, 139, 144, 149 #. 
 
 JUS IN RE PROPRIA 137, 139 
 
 JUS INTER CIVITATES (intemationallaw, q. v.). 
 JUS INTER GENTES (international law, q. v.). 
 
 JUS NATURALE 18 
 
 JUS NECESSARIUM 86, 288, 290 
 
 JUS NON SCRIPTUM 76, 77, 88 
 
 JUS PRIVATUM (private law, q. v.). 
 
 JUS PROTIMISEOS 155 
 
 JUS PUBLICUM (public law, q. v.). 
 
 JUS RECADENTI^ 139 
 
 TUS REPR^SENTATIONIS OMNIMOD^ 232 
 
 JUS SCRIPTUM 80, 84, 88, 89, 304 
 
 requires interpretation more than jus non scriptum . . 88 
 
 JUS STRICTUM 48 
 
 JUSTvE NUPTI^ JURIS CIVILIS 181 
 
 JUSTIZHOHEIT (juridical sovereignty) 215 
 
 TUS VICINITATIS 144 
 
 TUS VIT.<E AC NECIS 184, 274 
 
 JUS VOLUNTARIUM 291 
 
 KAMMERN PUR HANDELSSACHEN (commercial courts) 258 
 
 KANT, philosophy of law ^^ 
 
 on the necessary form of knowledge o 
 
 as a juristic type ^^ 
 
 his service to legal science ^^ 
 
 distinction between morals and ethics ^° 
 
 Kritik der prakt. Vemunft 40, 41 
 
 Kritik der Urteilskraft 40 
 
 Einleitung der Metaphysik d. Sitten 41 
 
 on rights of authors 129 
 
 notion of the objects of the state 223 
 
356 INDEX 
 
 Page 
 
 KARLOWA, rom. Rechtsgeschichte 314 
 
 "KAUF BRIGHT MIETE" 167 
 
 KAUFMANNSGERICHTE (commercial courts) 259 
 
 KAUFVERTRAG (agreement of sale) 166 
 
 KAUTELARISCHE RECHTSPFLEGE (prudential admin- 
 istration of justice ; see non-contentious jurisdiction) . . 256 
 
 KAUTION 109 
 
 KEDESHAH 41 
 
 KEYSSNER, das Recht am eigenen Bilde 126 
 
 KING'S PEACE 147 
 
 KIN (Sippe), the feud excluded in the 54, 55 
 
 was a subdivision of the district-state 56 
 
 KIN-REVENGE (Blutrache) 53 
 
 KINDRED STATE 228 
 
 KINSHIP 5, 9, 53 
 
 the basis of legal order 54 
 
 KIRCHENHEIM, Zentralblatt ffir Rechtswissenschaft, 29, 
 
 312, 315 
 
 Lehrb. d. deutschen Staatsrechts 221 
 
 Einftihrung in d. Verwaltungsrecht 242, 244 
 
 Verwaltungsrechtspraktikum 244 
 
 KLAGBEANTWORTUNG (answer) 269 
 
 KLAGE (complaint) 269 
 
 KLAGER (plaintiff) 267 
 
 KLAGEN (suits) 38 
 
 KNAUER, Hauptprobleme der Philosophic 41 
 
 KOHLER, das Recht als Kulturerscheinung 2 
 
 Recht und Prozess 2, 33 
 
 on comparative law 2 
 
 immanent legal principles 10 
 
 on natural law 18, 19 
 
 Einfiihrung in die Rechtswissenschaft 28, 125 
 
 Lehrbuch der Rechtsphilosophie v, 28 
 
 Patentrecht 33 
 
 Shakespeare vor dem Forum der Jurisprudenz 36 
 
 on confusion of law and morals 37 
 
 the family as the basis of society 52 
 
 early German history 56 
 
 on the law of personality 122 
 
 Recht d. Markenschutzes 122 
 
 on ownership 140, 142 
 
 on pledge of the person for debt 151 
 
 the place of obligations in civilization 160 
 
 on totemism, etc 179 
 
 on artificial family relationship among the red Indians 187 
 
 on blood fraternity 187 
 
 the basic conception of civil procedure 266 
 
 on private revenge 272 
 
 KOHLER AND PEISER, Hammurabis Gesetz, 4, 155, 
 
 160, 187, 272 
 
 Babylon. Rechtsleben 155 
 
 KOLLEKTIVRACHE (collective revenge, q. v.). 
 KOLONATRECHTE 153 
 
INDEX 357 
 
 Page 
 KONJEKTURALKRITIK (conjectural criticism, see criti- 
 cism) . 
 
 KONKURSORDNUNG (bankruptcy act) 271 
 
 KONKURSRECHT (bankruptcy law) 270 
 
 KONTOKORRENTVERTRAG (agreement relating to ac- 
 counts current) 172 
 
 KONTUMAZIALVERFAHREN (contumacy procedure). 268 
 
 KORKUNOV, theory of law vi, xvii, 12 
 
 KRAUT, Grundriss zu Vorlesungen <iber d. deutsche 
 
 Privatrecht 76, 78, 84, 129, 151, 187 
 
 KREITTMAYR, on natural law 18 
 
 KRIT VIERTELJAHRSSCHRIFT 2, 4, 56, 140 
 
 KRITIK (criticism, q. v.). 
 
 KULTURSTAAT 22 7# 
 
 LABAND, das Staatsrecht d. deut. Reiches, 220, 238, 252, 
 
 258, 266 
 
 LABOULAGE, Geschichte der Vereinigten Staaten 140 
 
 LAGERHAUSVERTRAG (warehouse agreement) 161 
 
 LAISSEZ-FAIRE STATE 223 
 
 LAMPRECHT, Wirtschaftsleben 56 
 
 deutsche Geschichte 56 
 
 LAND CHARGE 152 
 
 LANDGERICHTE (provincial courts) 258 
 
 LANDRECHT of Baden 117 
 
 of Bamberg 117 
 
 of Bavaria 18, 71, 83, 84, 117, 196, (Lit.) 311 
 
 of Hesse # 196 
 
 of Mainz 117 
 
 of Mecklenburg (Lit.) 311 
 
 miscellaneous literature 311 
 
 of Prussia, 71, 84, 115, 116, 117, 167, 194, 308, (Lit.) 310 
 
 of Upper Palatinate 117 
 
 of Wtirtemberg 71, 117, 196, (Lit.) 311 
 
 LAND REGISTRY 147 
 
 LANDSBERG, Geschichte der deutschen Rechtswissen- 
 
 schaft • 21 
 
 LANDSGEMEINDE 233 
 
 LANGHEINEKEN, Anspruch und Einiede 260, 269 
 
 der Urteilspruch 269 
 
 LANGUAGE, comparable to customary law 77 
 
 LAVELEYE, de la propri6t6 56, 140, 142 
 
 LAW, and its sources 29 
 
 as a social instrument 12, 16 
 
 collection of definitions 11, 12 
 
 compared with morals, religion, equity and social con- 
 vention 36-48 
 
 defined 10, 14, 29 
 
 difficulties of definition 10 
 
 depends on the authority of the state 75 
 
 elements of definition 11 
 
 fivefold relation of the state 62 
 
 in abstract sense 1 
 
358 INDEX 
 
 Page 
 
 LAW, involves variation 20 
 
 is always the expression of human will 74 
 
 is that only which the state recognizes as such 63 
 
 is modifiable by social development 61 
 
 is solely an institution of the state 62 
 
 its classification is based on interests Ill 
 
 its object is the establishment and maintenance of ex- 
 ternal peace 37, 38 
 
 its existence implies a definite civilization 61 
 
 may be otherwise classified than as based on interests 292 
 means and end shotild be duly porportioned in the legal 
 
 system 69 
 
 object and essential character 10 
 
 operates on persons and not things 30, 31 
 
 political interpretation of vi 
 
 regulates external relations 37 
 
 the same standard may be current in various states. . 70 
 the state's recognition of what is law may be direct or 
 
 indirect 63 
 
 various standards on one subject may be current in the 
 
 same state 69 
 
 LAW OF CITATIONS (codex Theodos.) 82 
 
 LAW OF NATURE SCHOOL iv.,#., 62, 65, 320, 321 
 
 LEBENSGEMEINSCHAFT (conjugal community) 181 
 
 LEE, historical jurisprudence 83 
 
 LEGACY 212 
 
 LEGAL ADVANTAGE '(Rechtsgut),'35,' 42, 65, 68,' 80,' 93, 
 
 94, 95, 107,^22, 123, 173, 273, 275, 279 
 
 LEGAL EDUCATION, methods (see also Hodegetics) xi 
 
 LEGAL INTERPRETATION (see interpretation). 
 
 LEGAL NECESSITY (Rechtsnot) 62, 147 
 
 LEGAL OBJECT 102, 106, 111 
 
 LEGAL ORDER, its mission is to limit and secure interests 324 
 
 should duly proportion means and end 69 
 
 LEGAL POLICE (non-contentious jurisdiction, q. v.) . . . . 261 
 LEGAL RELATION (see legal rights). 
 
 LEGAL RIGHTS, nature of 31 
 
 are based on facts 107 
 
 are protected in an abstract and a concrete sense 109 
 
 interests are the essence of 33, 34, 35 
 
 LEGAL SENSE 7, 61, 73, 273, 324 
 
 LEGAL SERVITUDES 144 
 
 LEGAL SUBJECT, is the owner of an interest, 102, 106, 
 
 111, 122, 123, 146, 157, 177 
 LEGAL SYSTEM, its methods, means and objects univer- 
 sally alike 68 
 
 LEGATUM SIVE FIDEICOMMISSUM 212 
 
 LEGES BARBARORUM 81, 82 
 
 LEGES DUODECIM 81 
 
 LEGES REGIS ROTHARIS 147 
 
 LEGES VISIGOTHORUM 82 
 
 LEGISLATION, constitutional provisions in Germany ... 85 
 creates material of positive law 15 
 
INDEX 359 
 
 Page 
 
 LEGISLATION, in a wide sense 74 (note) 
 
 defined 235 
 
 is a declaration by the state of legal standards 80 
 
 is a division of administrative law 97 
 
 is an essential function of the state 80 
 
 is jus scriptum even though not written 80 
 
 procedure of (steps in making laws) 81 
 
 subsequent historically to customary law 80 
 
 varieties 81 
 
 LEGISLATIVE POLITY (Gesetzgebungspolitik) 22 
 
 LEHENRECHT (law of tenure, see tenure). 
 LEHENSTAAT (feudal state, q. v.). 
 
 LEHMANN, on land registry 147 
 
 on Retraktrechte 155 
 
 Handels-Wechsel- u- Seerecht 302 
 
 LEIBZUCHTRECHTE (life pensions) 154 
 
 LEIHE (commodatum) 169 
 
 LEIST, GrScoitalische Rechtsgeschichte 77 
 
 LEISTUNG (performance) 162 
 
 LEONHARD, on Roman law 81 
 
 LETTING AND HIRE AGREEMENTS 167 
 
 LEUGNEN (denial) 269 
 
 LEX ANGLIORUM ET WERINORUM 83 
 
 LEX BAJUVARIORUM 82 
 
 LEX BURGUNDIONUM 83 
 
 LEX COGENS 90, 181, 291 
 
 LEX DISPOSITIVA 90, 91, 181 
 
 LEX FRANCORUM CHAMAVORUM 83 
 
 LEX FRISIONUM 83 
 
 LEX POSTERIOR DEROGAT LEGI PRIORI 90 
 
 LEX POSTERIOR GENERALIS NON DEROGAT LEGI 
 
 PRIORI SPECIALI 90 
 
 LEX RIPUARIA 82 
 
 LEX SALICA 82 
 
 LEX SAXONUM 83 
 
 LIABILITY, of husband and wife for debts of the other. . 191 
 
 for injuries by third persons 174 
 
 LIBERTY 34 
 
 LIBRI FEUDORUM 318 
 
 LIEGENSCHAFTEN (immovable things) 107 
 
 LILIENTHAL, Militarstrafgerichtsverfahren 282 
 
 Strafprozessrecht 282 
 
 LIOY, philosophic du droit xiv 
 
 LIPSIUS, rectoral address 147, 164, 184, 188, 272 
 
 LISZT 13, 15, 33 
 
 Lehrbuch des Strafrechts 33, 49, 274, 277, 281 
 
 on collective revenge 67 
 
 on liability in surgical operations 126 
 
 das Volkerrecht 287, 290 
 
 LISZT AND CRUSEN, die Strafgesetzgebung, etc 227 
 
 LITERAL CONTRACTS 164 
 
 LITERATURE OF JURISTIC SURVEY (English) .... 26 
 
 (German) 27, 28 
 
360 INDEX 
 
 Page 
 
 LITERATURE OF NATURAL LAW (English) 19 
 
 LITIS CONTESTATIO, affirmative 268 
 
 LITKAUF 164 
 
 LOCAL NAMES 55 
 
 LOCATIO-CONDUCTIO 166 
 
 LOCATIO-CONDUCTIO REI 167 
 
 LOCI ORDINARII 318 
 
 LOCKE, civil government J . . . . 19 
 
 contract theory of the state 228 
 
 LOKALRECHT (local law) 70 
 
 LORIMER, the institutes of law 19 
 
 LORSCH AND SCHRODER, Urkunden 143, 146 
 
 LUBBOCK, the senses and instincts of animals 8 
 
 MAFFIA 63 
 
 MAHNVERFAHREN (hortatory procedure) 269 
 
 MAIERRECHTE 153 
 
 MAISON 141 
 
 MAJORES DOMUS 83 
 
 MAKESANG 98 
 
 MALUM PASSIONIS PROPTER MALUM ACTIONIS . 274 
 
 MANCHESTER STATE 95 223 
 
 MANCIPATED PERSONS 103 
 
 MANDATA 82 
 
 MANDATUM 166 167 
 
 MANDRY, der Zivilrecht. Inhalt d. R.-Gesetze 309 
 
 MANSIO 141, 142 
 
 MANSIONES 55 
 
 MANSUS 55 
 
 MANU, CODE 3, 36, 37, 47, 77, 147, 148, 272, 273, 277 
 
 MANUS 53 
 
 MARCA (see mark association). 
 
 MARK ASSEMBLIES 59 
 
 MARK ASSOCIATION 55, 56, 58, 105, 143 
 
 MARKBY, elements of law 26 
 
 MARKEN (boundaries) 55 
 
 MARKERDINGEN (mark assemblies, q. v.). 
 MARKGENOSSENSCHAFT (mark association, q. v.). 
 MARQUARDSEN, Handbuch d. off. Rechts, 22, 33, 60, 
 
 100, 101, 220, 221, 230, 235, 266, 285, 286, 287, 298 
 
 MARRIAGE 179#. 
 
 produced no proprietary effect, in Roman law. . 192, 193 
 
 proprietary effect of, in German law 193 
 
 MARTENS, international law 287 
 
 MATERIALVERTRAGE (substantive agreements) 164 
 
 MATRIMONIAL REGIME 181, 189, 191, 192, 194 ff. 
 
 MATRIMONIUM JURIS GENTIUM 181 
 
 MAURER, Geschichte der Markenverfassung 55 
 
 Einleitung zur Geschichte der Mark- (etc.), Verfassung 55 
 
 MEDICO-LEGAL SCIENCE 315 
 
 MEITZEN, der Alteste Anbau der Deutschen 55 56 
 
 MERCANTILE EMPLOYMENT AGREEMENTS 'l71 
 
 MERCANTILE ORDERS 172 
 
INDEX 361 
 
 Page 
 
 MERCANTILE POWER OF AGENCY 171 
 
 MERCIPOTUS 164 
 
 MERGER 160 
 
 MERKEL, juristische EnzyklopMie 1, 10, 27 
 
 METHODOLOGY OF LEGAL SCIENCE 303 ff. 
 
 METHODS OF EXPRESSION OF THE POWER OF 
 
 THE STATE 235#. 
 
 METHODS OP LEGAL STUDY . .317#. 
 
 MEYER, Lehrb. d. deutschen Verwaltungsrechts, 221, 242, 286 
 
 MIETE (ordinary lease) 160 
 
 MILITARHOHEIT (miUtary sovereignty) 215 
 
 MILITARY LAW, in some form necessary to the state, 97, 224 
 
 MILITARY POWER, indispensable to the state 66 
 
 MIR 142 
 
 MISSIO IN BONA 109 
 
 MITGIFT (dowry) 193 
 
 MIXED LAW OP PERSONS AND THINGS 191 
 
 MOBILIARGEMEINSCHAFT (community of movables) . 196 
 
 MOHL, Enzyk. d. Staatswissenschaften 221, 222 
 
 MOMMSEN, rom. Staatsrecht 232, 233 
 
 MON. GERM. HISTOR 45, 83, 180 
 
 MONOGAMY 180, 181 
 
 MONTESQUIEU, definition of law 11 
 
 on England's suicide rate 68 
 
 MORAL PERSONS (see juristic persons) 104 
 
 MORALISTIC SCHOOL (see also jurisprudence and schools 
 
 of jurisprudence) 62, 65 
 
 MORALS, deal with internal activities 29, 38, 42 
 
 distinguished from ethics 39 
 
 essentially influential in a legal system 67 
 
 not confined to subjective states 39 
 
 object of 39 
 
 rather than law, secure family relations 177 
 
 MORGANATIC MARRIAGE 181 
 
 MORT, le, saisit le vif 202 
 
 MOS DOCENDI GALLICUS 319, 320, 322 
 
 MOS ITALICUS 317, 318 
 
 MOTIO THESAURI , . . . . 146 
 
 MOTIVES, are created by legal rules 50, 51 
 
 MUNCHENER EWIGGELD 154 
 
 MUNDIBURDIUM 190 
 
 MUNZINGER, erbrechtliche studien 40, 208 
 
 MUTTERRECHT 179, 183 
 
 MUTUUM ; 165, 169 
 
 NACHLASSGERICHT (inheritance court) 261 
 
 NACHTIGALL, in Rundschau, on African polygamy . 179, 180 
 
 Sahara und Sudan 147, 180 
 
 NAHERRECHTE 145, 155 
 
 NAMES, rights in 126, 127 
 
 NARADA 36 
 
 NASSE, the agriciiltural community of the Middle Ages . . 56 
 
 village communities 56 
 
362 INDEX 
 
 Page 
 
 NATIONAL CHARACTER, as a legal influence 68 
 
 NATURALES OBLIGATIONES 47, 160 
 
 NATURAL LAW (see school of natural law), now dis- 
 credited xw.,ff. 
 
 its different senses 18 
 
 literature 19 
 
 its impracticability 20 
 
 not to be confused with conformability of law in 
 
 abstract sense to reason ". . 30 
 
 affirms that concrete laws conform to human reason . . 62 
 
 overthrown by the historical school 19 
 
 NATURRECHT (natural law, q. v.). 
 
 NECESSITAS JURIS 86 
 
 NECESSITY OF LAW, AND ITS BASIS 3-12 
 
 NEGATIVE ACTS, may produce rights 165 
 
 ends of the state 251, 252 
 
 NEGOTIORUM GESTIO 175 
 
 NEMO JUDEX SINE ACTORE 268 
 
 NEXUM , 163 
 
 NIESSBRAUCH, usufruct 150 
 
 NOBILITY, law relating to the 87 
 
 NOBLESSE OBLIGE 47 
 
 NORMA AGENDI 29, 35 
 
 NOMEN TRANSCRIPTICIUM 163 
 
 NON-CONTENTIOUS JURISDICTION, 88, 200, 207, 
 
 256 -yf., 260#. 
 
 NOTERBEN (compulsory heirs) 210 
 
 NOTSTAND (right of necessity, q. v.). 
 NOTWEHR (necessary defense, see self-defense). 
 
 NOTWENDIGES RECHT 62, 75 
 
 NUDUS CONSENSUS 166 
 
 OATH, the, as a religious idea 45, 68 
 
 OBERLANDESGERICHT (provincial court of appeal), 
 
 258 270 
 OBERVORMUNDSCHAFTSBEHORDEN (communal ' 
 
 orphan council) 188 
 
 OBJECTS OF RIGHTS 106, 108, 173 
 
 OBJECTS OF THE ACTIVITY OF THE STATE . . . .245#. 
 OBLIGATIONES, ex lege 175 
 
 quasi delicto 175 
 
 quasi ex contractu 175 
 
 OBLIGATIONS, law of 157 jf. 
 
 indicate a high stage of culture 160 
 
 involve only particular personal relations and not the 
 
 entire personality 157, 158 
 
 OBLIGATORY MARRIAGE (Judaic) 202 
 
 OCCUPATIO 145 
 
 Bellica 146 
 
 OCEAN CARRIAGE AGREEMENTS 171 
 
 OCEAN HIRE AGREEMENTS 171 
 
 ODYSSEY, the patriarchal state 53 
 
 obligations recognized in the 160 
 
INDEX 363 
 
 Pag 
 
 OERTMANN, Windscheid's Gesammelte Reden 12, 19 
 
 OFFENE HANDELSGESELLSCHAFTEN (unlimited 
 
 partnerships) 168 
 
 OFFENTLICHES RECHT (publiclaw, q. v.). 
 
 OFFICIAL RIGHTS, belong to public law 99 
 
 may also be regarded as transferred by the state 100 
 
 "OLD MAN'S PART" 150 
 
 ONCKEN, die Staatslehre des Aristotoles 7, 9, 67, 140 
 
 allg. Geschichte 56, 57 
 
 OPPORTUNIST VIEW OF LAW 65, 66 
 
 ORDERPAPIERE (mercantile orders, instruments drawn 
 
 to order) 172, 302 
 
 ORGANS OF EXPRESSION OF STATE POWER ..230#. 
 
 ORTSGERICHTE (local courts) 261 
 
 ORTSUSANCE (local custom) 70 
 
 OWNERSHIP, consists in complete legal control of a 
 
 material thing 137 
 
 is a necessary factor in a legal system 67 
 
 its nature and historical foundations 139 ff. 
 
 PACHT (usufructuary lease) 160, 167 
 
 PACTA 165, 166 
 
 PACTA CONFRATERNITAS 212 
 
 PACTA SUCCESSORIA APFIRMATIVA 212 
 
 PACTA SUCCESSORIA RENUNCIATORIA 212 
 
 PACTUS ALAMANORUM 82 
 
 PADERBORN SYNOD 44 
 
 PANDECT LAW, literature 308 
 
 PARENTS AND CHILDREN, legal relation between, 
 
 183 ff, 198 ff. 
 
 PARTEIFAHIGKEIT (capacity of parties) 267 
 
 PARTIKULARE GUTERGEMEINSCHAFT (particular 
 
 community of goods) 196 
 
 PARTI KULARES RECHT (particular law) 70 
 
 PARTITION OF THE LAW-MAKING FUNCTION 58 
 
 PARTNERSHIP AGREEMENTS 168 
 
 PASSENGER CARRIAGE AGREEMENTS 171 
 
 PATENTS OF INVENTION 134, 135 
 
 PATRIA POTESTAS 53, 180, 184, 185 
 
 PATRIARCHY 52, 53, 54, 58, 179 
 
 PATRIMONIAL JURISDICTION 64 
 
 PATRIMONIAL STATE 228, 231 
 
 PATRONATRECHTE (advowsons) 156 
 
 PATTEE, the essential nature of law 19 
 
 PAUL, Grundriss d. ger Philologie 315 
 
 PECULIUM 189, 199 
 
 PENSIO 153 
 
 PEOPLE-STATE (Volksstaat) 57 
 
 PERCEPTION, law operates on this faculty 50, 272, 274 
 
 PERPETUAL CHARGES 149, 153 
 
 PERSON, as a thing has no rights 104, 183, 198 
 
 is any entity which may own an interest 102 
 
 personal relations, q. v. 
 
364 INDEX 
 
 Page 
 PERSONAL RELATIONS, form family law and law of 
 
 obligations 106, 183 
 
 PERSONAL UNION (of states) 229 
 
 PERSONALITY, classification of rights of 123 
 
 is synonyTTious with capacity for rights 103 
 
 law of 122 
 
 measures for legal protection of 123 
 
 rights of, in detail 125 
 
 was completely involved in the primitive law of obliga- 
 tions 157 
 
 PERSONALITATSSYSTEM (principle of personality) ... 72 
 
 PERSONENHOHEIT (sovereignty over persons) 215 
 
 PERSONLICHKEITSRECHTE (rights in one's own per- 
 son, see personality), are a division of the law of 
 
 things 1 12, 149 
 
 PFANDRECHTE (pledge-rights, q. v.). 
 
 PFLICHTTEIL (compulsory portion) 210 
 
 PFRUNDNERRECHTE (prebendiary rights, q. v.). 
 
 PHILOSOPHY OF LAW iii.,#., 2, 21, 22, 23, 25, 315, 322 
 
 PHOTOGRAPHS, proprietary use protected 133 
 
 PHYSICAL INTEGRITY, right of 125, 126 
 
 PHYSIOGRAPHIC INFLUENCES, as sources of law ... . 68 
 
 PI^ CAUS^ 106 
 
 PIERANTONI, the advance of international law 287 
 
 PIGNUS (see pledge rights). 
 
 PLACETUM REGIUM 296 
 
 PLEBISCITA 81 
 
 PLEDGE RIGHTS ." ." ." .' .' .' .' .' .' .' .' .' .' .' 150,' 151,' l'5'2| I'es, '169, 170 
 
 PLURAL STATES 233 
 
 PCBN^ SECUNDARUM NUPTIARUM 202 
 
 POINT (Peint, Bannt) 143 
 
 POLITICS (Politik) 21, 22 
 
 POLIZEIHOHEIT (police sovereignty) 215 
 
 POLIZEISTAAT 227 
 
 POLYGAMIA SIMULTANEA 180 
 
 POSITIVE ENDS OF THE STATE 251, 252 
 
 POSITIVE LAW, as the basis of legal science 15 
 
 POSITIVE RULES 10 
 
 POSITIVE WELFARE 95 
 
 POSSESSIO (possession, q. v.). 
 
 POSSESSION 138, 144 
 
 POST, Einleitung in eine Naturwissenschaft des Rechts . . 2 
 
 as a juristic type 12 
 
 POTESTAS JURISDICTIONIS 297 
 
 POUND, on procedural reforms xiii 
 
 outlines of jurisprudence 12 
 
 a new school of jurists 12 
 
 spurious interpretation 89 
 
 POZL, on administrative law 285 
 
 PRACTICAL, the, now emphasized in German legal educa- 
 tion 326 #. 
 
 PRACTICAL SCHOOL, the, (see also jurisprudence and 
 
 schools of jurisprudence) 320 
 
INDEX 365 
 
 Page 
 
 PR^DIA DOMINANTIA 151 
 
 PR^DIUM DOMINANS 150 
 
 PR^DIUM RUSTICUM 154 
 
 PR^DIUM SERVIENS 150 
 
 PR^SUMPTIO LIBERTATIS 106 
 
 PR^SUMPTIONES JURIS 88 
 
 PRAMIENGESCHAFT 167 
 
 PRANTL, writing on comparative law 2 
 
 PREBENDIARY RIGHTS 150, 155 
 
 PRECEDENT (see also case law). 
 
 as a species of legislation 74 
 
 in European countries 74 
 
 PRESCRIPTION 107 
 
 PRESUMPTIONS, of death 202 
 
 PREVENTIVE JUSTICE (see non-contentious jurisdic- 
 tion) 263 
 
 PREVENTIVE POLICE 95 
 
 PRIMOGENITURE 209 
 
 PRIVATE LAW 94, 95, 96, 97 
 
 PRIVATE LAW (German), literature 309 
 
 exists, at least in rudimentary form, in every state .... 97 
 importance minimized in some lower civilizations ... 98, 99 
 
 deumited from public law by interests 99 
 
 presents greater diversities than public law 100 
 
 its elements 102 
 
 its social object 102 
 
 PRIVATE REVENGE (Privatrache) 67, 272 
 
 PRIVILEGED JURISDICTION OF CORPORATIONS . 64 
 
 PROCEDURE, divisions of 269 
 
 fundamental principles of 268 
 
 kinds of 268 
 
 PROCURATION 171 
 
 PROFITS A PRENDRE 150 
 
 PROPRIETAS 138 
 
 PROTESTATION 38, 109 
 
 PROTOKOLLIERUNGSGERICHTE (registry courts) ... 261 
 PROVINCE OP JURISTIC SURVEY (see also juristic 
 
 survey) 1, 2 
 
 PROZESSINSTRUKTION (initial process, introductory 
 
 procedure) '. 269 
 
 PRUDENTIAL JUSTICE (see non-contentious jurisdic- 
 tion) . 
 
 PUBLIC LAW 214 jf. 
 
 confused with private law in undeveloped civiliza- 
 tions 98, 99 
 
 creates rights, as well as private law 99 
 
 German 312 (Lit.) 
 
 its scope cannot be abstractly set off 97 
 
 may coincide with private law in the protection of cer- 
 tain interests 99, 100 
 
 reception of, by another state, a matter of difficulty 
 
 100, 101, 221 
 
 supreme over private interests 101 
 
 the terminology of its divisions 94, 95, 96 
 
366 INDEX 
 
 Page 
 
 PUBLISHERS' AGREEMENTS 171 
 
 PUCHTA, das Gewohnheitsrecht 76 
 
 PURCHASE MARRIAGE 179, 193 
 
 QUARTA FALCIDIA 213 
 
 QUESTIO fact: 88 
 
 QUESTIO JURIS 88 
 
 QUOD NON EST ACTUM, non est in mundo 268 
 
 RAMDOHR, on rights in names 126 
 
 RANK, as affecting capacity 103 
 
 RAPINA 173 
 
 REAL COMMUNITIES (see mark associations) 105 
 
 REAL CONTRACTS 165 
 
 REALGEMEINDEN (real communities, see mark asso- 
 ciations) 105 
 
 REALKAUTION 109 
 
 REALLASTEN (perpetual charges, q. v.). 
 
 REAL RELATIONS (law of things) 106 
 
 REAL UNION (of states) 229 
 
 REASON, as a factor in religion 43 
 
 as an influence in law 5, 6, 7, 8, 10, 30, 93 
 
 in the domain of morals 40 
 
 RECHT AN DER EIGENEN SACHE (see ownership). 
 
 RECHT, derivation 29 
 
 RECHT IM OBJEKTIVEN SINNE 1, 29 
 
 RECHT IM SUBJEKTIVEN SINNE 1 
 
 RECHTSANWENDUNG (application of legal rules, q. v.). 
 RECHTSENZYKLOPADIE (juristic survey, q. v.). 
 
 RECHTSFALL (case, legal controversy) 31, 88 
 
 RECHTSGESCHAFTE (acts in the law) 120 
 
 RECHTSGUT (legal advantage, q. v.). 
 
 RECHTSHILFE (legal redress) 259 
 
 RECHTSINSTITUT (legal institution) 31 
 
 RECHTSMITTEL (appeal and error) 270 
 
 RECHTSMITTELVERFAHREN (appellate procedure) . . 269 
 
 RECHTSNOT (legal necessity) 62 
 
 RECHTSNOTWENDIGKEIT (jural necessity, q.v.). 
 
 RECHTSPOLITIK 22 
 
 RECHTSPOLIZEI (legal poHce) 257 
 
 RECHTSSTAAT 99, 223 #. 
 
 RECHTSVERHALTNIS (legal relation, see legal rights). 
 
 RECHTSWISSENSCHAFT (science of law, q. v.) 22 
 
 REFERIERKUNST 316 
 
 REGELSBERGER, Pandekten 90 
 
 REHM, modemes Fiirstenrecht 293 
 
 REICHSGERICHT (Supreme Court) 258 
 
 REI VINDICATIO 144 
 
 REKLAMESCHWINDEL (unlawful pufBng) 12S 
 
 REKTAPAPIERE 172 
 
 RELATIONS OP FACT. . .11, 30, 31, 80, 88, 99, 100, 102, 106 
 
 RELEASE 160 
 
 RELIGION, deals with internal states 29, 42-46 
 
INDEX 367 
 
 Page 
 
 RELIGION, may oppose law 43, 44 
 
 RELIGIOUS ASSOCIATIONS, are subject to civil law . . . 45 
 
 RENAISSANCE, its influence on the law 318 
 
 RENTENSCHULD (annuity charge, see pledge rights). 
 
 REPLIK (replication) 269 
 
 REPORTGESCHAFT 167 
 
 REPRASENTATION 245 
 
 REPRASENTATIONSHOHEIT 215 
 
 REPUTATION, right of 127 
 
 REQUISITIONSRECHT 146 
 
 RESCISSION 160 
 
 RESCRIPTA 82 
 
 RESERVATION 109 
 
 RES EXTRA COMMERCIUM 137, 148 
 
 RES IMMOBILES (immovable things) 107 
 
 RES MOBILES (movable things) 106 
 
 RES NULLIUS 146 
 
 RESPONSA PRUDENTIUM .'. 82 
 
 RESPONSORISCH-JUSTIZIELL RECHTSPFLEGE (de- 
 cisional administration of justice) 256 ff 
 
 RES SESE MOVENTES (see things). 
 
 RESTRICTIVE INTERPRETATION (see interpretation) . 
 
 RETALIATION, in primitive law 227 
 
 RETRAKTRECHTE 145, 155 
 
 REVISION (a form of appeal) 270, 283 
 
 RIEZLER, Geschichte Bayems 56 
 
 RIGHTS, classification 35, 111, 112 
 
 in concrete sense 1, 31, 38 
 
 in personam 113, 159 
 
 in rem 112, 149 
 
 of necessity 38, 109 
 
 of pledge 150, 151, 152 
 
 of pre-emption 155 
 
 of usufruct 150 
 
 personal 1 13 
 
 prebendiary 150, 155 
 
 proprietary 113 
 
 real 123, 133, 136#., 149 #., 159, 165 
 
 RINDFLEISCH, neo-vitalismus 7 
 
 RIVIER, international law 287 
 
 ROMAN LAW, deprived of validity by the civil code .... 78 
 
 its reception in Germany xi., 70, 78, 82, 114, 115 
 
 kinds of 81 
 
 literature 314 
 
 method of citation of 81 
 
 public, not received in Germany 325 
 
 the effort to abolish it in Germany 115 
 
 ROMANTIC SCHOOL (see jurisprudence, and schools of 
 
 jurisprudence) 65 
 
 RONNE, das Staatsrecht d. Preuss. Monarchie 286 
 
 ROSCHER, Ansichten der Volkswirtschaft 56 
 
 ROSS, early history of land-holding 143, 187 
 
 ROTH, deutsches Privatrecht 90 
 
368 INDEX 
 
 Page 
 
 ROUSSEAU, contract theory of the state 228 
 
 RUCKTRITT VOM VERTRAG (rescission, q. v.). 
 
 RUNDSCHAU (deutsche) 179 
 
 RUNNING ACCOUNT AGREEMENTS 172 
 
 SACHHOHEIT (sovereignty over things) 215 
 
 SACHMIETE (letting and hire) 167 
 
 SACHSENSPIEGEL 78, 147, 194 
 
 SACRED BOOKS OF THE EAST 3 
 
 SALE 166 
 
 SALGUTER 143 
 
 SALKOWSKI, Institutionen, 13, 18, 38, 73, 78, 81, 88, 102, 
 
 106, 139, 149, 157, 166, 173, 175, 202, 208, 211 
 
 SALMOND, jurisprudence xv., 1, 23, 26, 113, 163 
 
 definition of law 12 
 
 formal source of law 73 
 
 SANCTIONES PRAGMATICS 82 
 
 SANSKRIT LEGAL LITERATURE 3 
 
 SARWEY, ofientliches Recht, etc 285 
 
 SAVIGNY, definition of law 11 
 
 as a type in jurisprudence 12 
 
 beruf unserer Zeit fur Gesetzgebung 19 
 
 system des heutigen rom. Rechts 90, 144, 320 
 
 Geschichte d. rom. Rechts im Mittelalter . ■. 317 
 
 SAWAHS 142 
 
 SCHAPPACH, Forstwesen 251 
 
 SCHATZHEBERECHT (law of treasure-trove) 146 
 
 SCHEIL, da^gation en Perse 4 
 
 SCHIEDSRICHTERLICHES VERFAHREN (procedure 
 
 in arbitration) 269 
 
 SCHOFFENGERICHTE (assessors' courts) 258, 281 
 
 SCHOFFENSPRUCHE 78 
 
 SCHONBERG, Handbuch d. Polit. Okonomie 244 
 
 Handbuch der Staatswissenschaften 251 
 
 SCHOOL OF BOLOGNA 317 
 
 SCHOOL OF COMMENTATORS 317, 318 
 
 SCHOOL OP NATURAL LAW 62, 65, 320, 321 
 
 SCHOOLS OP JURISPRUDENCE, iii,#., 10, 12, 62, 65, 319#. 
 
 SCHOULER, ideals of the republic 19 
 
 SCHRIFTENWECHSEL (written pleadings) 269 
 
 SCHRODER, deutsche Rechtsgeschichte 56, 84, 314 
 
 die Franken und ihr Recht 143 
 
 die Ausbreitung der Salischen Franken 143 
 
 on the Feldgemeinschaft 143 
 
 Geschichte des ehelichen Gflterrechts 196 
 
 SCHULDANERKENNTNIS 164 
 
 SCHULDVERHALTNIS (obligatory relation) 159 
 
 SCHULDVERSPRECHEN 164 
 
 SCHULTE, deutsche Rechtsgeschichte 83 
 
 Lehrbuch d. K. u. Ev. Kirchenrechts _. 186, 296 
 
 Lehrb. d. deutschen R. u. Rechtsgeschichte 314 
 
 SCHULZE, Lehrb. d. deutschen Staatsrechts 221, 285 
 
 SCHULZE-GAVERNITZ, das deutsche Furstenrecht .... 293 
 
INDEX 369 
 
 Page 
 
 SCHUSTER, principles of German civil law, xv, 113, 144, 
 
 149, 152, 182 
 
 SCHUTZGENOSSEN 248 
 
 SCHWABENSPIEGEL 78 
 
 SCHWURGERICHTE (juries) 258, 281 
 
 SCIENCE OP LAW (Rechtswissenschaft) , is systematic 
 
 knowledge 13, 15 
 
 as the science of positive law 15 
 
 defined 14, 15 
 
 classification 22, 23, 24 
 
 how constructed 14 
 
 its relation to politics 22 
 
 its theoretical and practical objects 16 
 
 SCIENCE OF STATE (Staatswissenschaft) 21 
 
 SECURITIES (Wertpapiere, q. v. — negotiable instruments 
 
 of German law) 164, 172 
 
 SEEBOHM, English village community 56 
 
 tribal custom in Anglo-Saxon law 56 
 
 SELBSTHILFE (self-help, q. v.). 
 
 SELECT ESSAYS IN ANGLO-AMERICAN HISTORY. . viii 
 
 SELF-DEFENSE 38, 109, 123, 126, 147 
 
 SELF-HELP 38, 123, 144, 147 
 
 SEMPER, die Paloinseln 98 
 
 SENATUS CONSULTA 81 
 
 SEPARATION OF GOODS 194, 195 
 
 SERMON ON THE MOUNT 41 
 
 SERVITUDES 150#. 
 
 SEUFFERT, das Konkursprozessrecht 271 
 
 SEX, as affecting capacity 103 
 
 SEXTUS EMPIRICUS 9 
 
 SEYDEL, Bayer. Staatsrecht 286 
 
 Grundztige einer allg: Staatslehre 286 
 
 SHIPMASTERS' AGREEMENTS 171 
 
 SICHERHEITSLEISTUNG (Kaution, q. v.). 
 SICHERUNGSHYPOTHEK (see pledge rights). 
 
 SICKEL, early Germanic history (monograph) 57 
 
 SIPPE (kin, q. v.). 
 SITTLICHKEIT (morals, q. v.). 
 
 SITZUNGSPOLIZEI 259 
 
 SLAVERY 63, 106, 125, 158, 249 
 
 SMALL, the meaning of social science viii 
 
 SMITH, GEO. H., the law of private right 19 
 
 SMITH, early religion of the Semites 41 
 
 SNELL, Naturrecht, Vorlesungen 19 
 
 SOCAGE SERVICE 153, 154 
 
 SOCIAL CONVENTION (deportment, Anstand) 46, 47 
 
 may conflict with law 46 
 
 may involve legal consequences 47 
 
 SOCIAL INSTINCT 8, 9, 73, 93, 273 
 
 SOCIAL LAW, is a distinct but unclassified department 
 
 94, 95, 96 
 SOCIAL REVENGE (Gemeinrache) , a basis of criminal 
 
 law 67 
 
370 INDEX 
 
 Page 
 
 SOCIALISM 227 
 
 SOCIALPOLITIK 105 
 
 SOCIETAS 166, 168 
 
 SOCIETATES QUiESTUARI^ 105, 168 
 
 SOCIOLOGICAL ASPECT OF LEGAL HISTORY 326 
 
 SOHM, Institutionen, 13, 70, 73, 81, 102, 106, 108, 138, 139, 
 
 144, 149, 155, 157, 166, ISO, 184, 186, 187, 202, 208, 211 
 
 SOLLENDEN HANDLUNGEN (acts wanting in legal 
 
 validity) 51 
 
 SOLMSER LANDRECHT 83, 117 
 
 SOLUTIO 107, 159 
 
 SONDERGUT (privileged property) 194 
 
 SONDERNACHFOLGE (particular succession) 206 
 
 SONDERRECHT (special law) 70 
 
 SOURCE OF LAW, is the agency which provides the mate- 
 rial of law 62 
 
 ambiguity of the expression 73 
 
 classification 73 
 
 in a technical sense is the causa efficiens of the legal 
 
 standard 73 
 
 in international law 287 
 
 SOVEREIGNTY OF JUSTICE 254/f. 
 
 SPECIAL LAW OF PROFESSION AND POSITION 292 jf. 
 
 SPENCER, the principles of sociology 8 
 
 social statics 19 
 
 the man versus the state 19 
 
 SPIEGEL OF THE GERMANS 78 
 
 SPONSALIA 181 
 
 SPURIOUS INTERPRETATION (see interpretation). 
 
 STAATENBUND 60 
 
 STAATSANWALT (the state's attorney) 259 
 
 STAATSBESTAND 214 
 
 STAATSKIRCHENTUM 227 
 
 STAATSLEHRE (science of the state) 221 
 
 STAATSRECHT (state law, q. v.). 
 
 STAATSWISSENSCHAFT (science of state) 21 
 
 STADE, Geschichte des Volkes Israel 53, 57 
 
 STADTRECHT (local law of a municipality) 70 
 
 of Augsburg 83 
 
 Berlin 83 
 
 Bremen 83, 117 
 
 Frankfort 83, 117 
 
 Freiburg 83 
 
 Hamburg 117 
 
 Liibeck 117 
 
 Nurnberg 117 
 
 STADTSCREIBER-LITERATUR 321 
 
 STAHL, definition of law 11 
 
 STAMMES-RECHT 82 
 
 STAMMLER, Wirtschaft und Recht 4, 10 
 
 das Recht der SchuldverhSltnisse 10, 91 
 
 die Behandlung d. rom. Rechts 308 
 
 die Gesetzmassigkeit in Rechtsordnung 10 
 
INDEX 371 
 
 STATE LAW 94, 95, 96, 216#° 
 
 classification of states ... 232, 233 
 
 STATE SOVEREIGNTY AND STATE INTERESTS .245^. 
 
 STATES, classification of 232, 233 
 
 STAUDINGER, on rights in names 126 
 
 STEIN, Voraussetzungen des Rechtsschutzes 266 
 
 das Zivilprozessrecht 267 
 
 STENGLEIN, Lehrbuch d. deut. Strafprozessrechts 282 
 
 STERNBERG, allgemeine Rechtslehre vi, 22 
 
 STIFTUNGEN (foundations, q. v.). 
 
 STINTZING, Geschichte d. deutschen Rechtswissenschaft, 
 
 305, 317, 318, 319, 320, 321 
 
 STIPULATED PENALTIES 164 
 
 STIPULATIO 163 
 
 STOB^^US 9 
 
 STOBBE, Geschichte der deutschen Rechtsquellen, 77, 84, 
 
 321, 322 
 Handbuch des deutschen Privatrechts, 77, 87, 90, 164, 199 
 
 deutsches Privatrecht 138, 145 
 
 Hermann Conring 322 
 
 STOERK, Handbuch der d. Verfassungen 220 
 
 international law as law in the true sense 288 
 
 STOLZEL, Schulung fiir zivilistische Praxis 88, 269, 326 
 
 die Entwickelung des gelehrten Richtertums 268, 281 
 
 Carl Gottl. Suaiez 310 
 
 STRAFANSPRUCH (punitive claim) 279 
 
 STRANDRECHT (law of stranded things) 146 
 
 STREITGENOSSENSCHAFT (joinder of parties) 267 
 
 STUBBS, constitutional history of England 56 
 
 STUDY OP LEGAL SCIENCE, divisions 307 
 
 SUBNOTATIONES 82 
 
 SUBSTANTIVE AGREEMENTS 164 
 
 SUCCESSIO, in sin^as res 206, 212 
 
 per universum lus 206, 212 
 
 SUCCESSION, limited 207 
 
 natural 208 #. 
 
 only natural, recognized by early German law 208 
 
 particular 205, 206, 212 
 
 Roman law permitted natural, only in default of will . 208 
 
 testamentary 211^. 
 
 universal 206, 212 
 
 SUHNE (atonement, q. v.). 
 
 SUMERIAN FAMILY LAWS 187 
 
 SUPERFICIES 155 
 
 SURETYSHIP (Bflrgschaft) 109, 161, 172 
 
 SYBEL. Entstehung des deutschen Komgtums 56 
 
 SYNTHETIC METHOD OF TREATMENT OF LEGAL 
 
 MATERIALS 319 
 
 SYSTEM OF CIVIL LAW AND ITS DEVELOPMENT 
 
 IN GERMANY HI 
 
 SZANTO, das Griechische Btirgerrecht 241 
 
372 INDEX 
 
 Page 
 
 TABU 98 
 
 TACITUS, Germania 54, 142 
 
 TALIO 227 
 
 TAUSCH (exchange) ....... ..'.'.'..'..'..'..'.'.'.'.'.'.'.'.'.'.'.['.[ 166 
 
 TAXATION, in the Middle Ages belonged to private law . 98 
 
 TAYLOR, elements of civil law 19 
 
 TELEOLOGY OF THE STATE 223 #. 
 
 TEMPORAL CONFLICT OF LAWS 72, 90 
 
 TENANTRY RIGHTS 153 
 
 TENURE 149 
 
 TERRITORIALHOHEIT (territorial sovereignty) 215 
 
 TERRITORIAL CONFLICT OF LAWS 71, 90 
 
 TERRITORIAL PRINCIPLE OP LAW 72 
 
 TERRY, principles of Anglo-American law 26 
 
 TESTAMENTARY SUCCESSION 211jf. 
 
 THEMA PROBANDUM : 269 
 
 THEORIES OF THE STATE 226 #. 
 
 THEORY OF LAW 23 
 
 THING, the 233 
 
 THINGS 106, 107, 111, 112, 136#., 149 jf 
 
 infringements of immaterial 173, 174 
 
 in legal sense are material objects 176 
 
 THOL, Volksrecht 76 
 
 THOL, H. R 164 
 
 THOL, W. R 164 
 
 THON, Rechtsnorm und subjektives Recht 33 
 
 THUDICHUM, die Gau- und Markverfassung 55 
 
 TIAGLOS 142 
 
 TITLES 38, 40, 159 
 
 TOLSTOI, the function of law 36 
 
 TORNAUW, die Disputation der Sklavin Husniyeh 37 
 
 das Erbrecht nach den Verordnungen des Islam 37 
 
 TOURTOULON, les principes philos. de I'histoire du 
 
 droit xiv 
 
 TRADE-MARKS 127, 128 
 
 TRADE REGULATION STATUTE 125 
 
 TRADITION 108, 147 
 
 TRANSPORTATION AGREEMENTS 170 
 
 TRANSPORTVERTRAG (transportation agreement) 161 
 
 TREASURE-TROVE 145 
 
 TREATISES ON GERMAN CIVIL CODE 267 
 
 TRENDELENBURG, Naturrecht auf dem Grunde der 
 
 Ethik 19 
 
 TRIBAL SETTLEMENT 55 
 
 TRIBAL STATE (Volkerschaftsstaat) 57 
 
 TRIBES (Volkerschaften) 55 
 
 TUMER, Freiheitsverpfandung 151 
 
 TURNER, Slavisches Familienrecht 53 
 
 TUTELA 188, 190 
 
 UBERTRETUNGEN (lesser offenses) 276, 278 
 
 ULLMAN, international law ' 287 
 
 UNCERTIFICATED HYPOTHEK (see pledge rights).' 
 
INDEX 373 
 
 Page 
 
 UNFAIR COMPIJTITION 128 
 
 UNGEBOTENES DING 60 
 
 UNGER, on matrimonial law 2 
 
 UNICAMERAL ASSEMBLIES 84, 233 . 
 
 UNIFORMITY OF LEGAL STANDARDS NOT UNI- 
 VERSALLY POSSIBLE 69 
 
 UNITARY STATES 229, 232, 237 
 
 UNIVERSITATES PERSONARUM (see juristic persons). 
 UNIVERSITATES RERUM (see juristic persons). 
 
 UNMITTELBARKEIT (principle of immediacy) 268 
 
 UNTERSUCHUNGSPRINCIP (inquisitorial principle) ... 281 
 
 UNTERTANEN (feudal dependents, subjects) 59 
 
 UNWRITTEN LAW OF GERMANY, authoritative sources 78 
 
 UPWARD, the new word xii 
 
 URTEILSFALLUNG (judgment) 269 
 
 USEFUL MODELS 134, 135 
 
 USUAL INTERPRETATION (see interpretation). 
 USUCAPION (see usucaption). 
 
 USUCAPTION 107, 138, 148 
 
 USUFRUCT 150, 194, 195, 199 
 
 USUFRUCTUARY LEASES 160, 167 
 
 USUS 151 
 
 USUSFRUCTUS (usufruct, q. v.). 
 
 USUS MODERNUS PANDECTARUM 308, 326 
 
 VAREILLES-SOMMIERES, principes fond, du droit xiv 
 
 VECTIGAL 155 
 
 VERBALKAUTION 109 
 
 VERBRECHEN (crimes punished by death or imprison- 
 ment) 276 
 
 VERFAHREN (procedere, procedure) 265 #. 
 
 VERFASSUNGSRECHT (constitutional law, q. v.). 
 
 VERGEHEN (crimes punished by fine or imprisonment) . . 276 
 
 VERLOBUNG (betrothal) 181 
 
 VERMACHTNIS (legacy) 212 
 
 VERPFLICHTUNG (duty) 159 
 
 VERTRAG (agreement) 162 
 
 VERTRETER (representatives) 267 
 
 VERWAHRUNGEN (protestation, q. v.). 
 
 VERWAHRUNGSVERTRAG (depository agreement) 161, 169 
 VERWALTUNGSGEMEINSCHAFT (administrative com- 
 munity system) 194 
 
 VERWALTUNGSHOHEIT (administrative sovereignty). 244 
 
 VERWALTUNGSLEHRE (by Rfimelin, et al.) 244 
 
 VERWALTUNGSPOLITIK (administrative polity) 22 
 
 VERWALTUNGSRECHT (administrative law, q. v.) 
 
 VESTITURA 138 
 
 VILLiE 55 
 
 VINCULUM JURIS 158, 159 
 
 VOLKERRECHT (international law, q. v.). 
 VOLKERSCHAFTEN (tribes, q. v.). 
 VOLKERSCHAFTSSTAAT (tribal state, q. v.). 
 
 VOLK LAWS 82. 106 
 
374 INDEX 
 
 Page 
 
 VOLKSGERICHTE (popular courts) 281 
 
 \/'OLKSKONIG (elective king) 57 
 
 VOLKSKONIGTUM (kingdom with a Volkskonig) 59 
 
 VOLKSSTAAT (people-state, q. v.). 
 
 VOLLSTRECKUNGSBEAMTEN (executing officers) 259 
 
 VORBEHALTE (reservation, q. v.). 
 
 VORBEHALTSGUT (privileged property) 195 
 
 VORKAUFSRECHTE (pre-emption rights) 155 
 
 VORMUNDSCHAFTSGERICHT (guardianship court) 188, 261 
 
 WACH, Vortrage ii. d. R, Z. Pr. 267 
 
 WACHTER, Enzyk. d. Wechselrechts 302 
 
 WADIUM 161, 164, 166 
 
 WAGERING AGREEMENTS 170 
 
 WAHLENDE KRITIK (selective criticism, see criticism). 
 
 WAITZ, iiber die Altgermanische Hufe 55 
 
 das alte Recht der salischen Franken 55 
 
 deutsche Verfassungsgeschichte 55 
 
 on stationary agriculture 142 
 
 WALLIS, essay on biblical sociology 41 
 
 WANG, translation of German civil code xv 
 
 WELFARE THEORIES OF THE STATE 223 
 
 WERKVERTRAG j[agreement for a definite work, see also 
 
 Dienstvertrag) 170 
 
 WERNER, report on the civilization of the South Sea 
 
 islanders 97, 98 
 
 ownership among the Samoans 140, 141 
 
 WERTPAPIERE (negotiable instruments of German Law) 
 
 164, 172, 302 
 
 WIGMORE, on codification xiii 
 
 WILLKUR BRIGHT STADTRECHT 90 
 
 WILLS 211 #. 
 
 WINCKLER, die Gesetze Hammurabis 4 
 
 WINDSCHEID (rectoral address) , die Aufgaben der rechts- 
 
 wissenschaft 12, 16, 17, 19, 33, 37, 62 
 
 Gesammelte Reden 12 
 
 Lehrbuch des Pandektenrechts, 31, 33, 38, 48, 76, 87, 
 
 89, 90, 111, 155, 164, 317, 319, 320 
 
 WIRTSCHAFTSPOLITIK (economic polity) 59 
 
 WOODLAND COMMUNITIES 142 
 
 WRITTEN LAW OP GERMANY 82, 83, 84, 85 
 
 classified 84 
 
 YAJNAVALKYA 36 
 
 ZADRUGA 53, 142 
 
 ZASIUS 83 
 
 ZEITGEIST 46 
 
 ZEITSCHRIFT FUR DEUTSCHEN ZIVILPROZESS . . 266 
 
 ZEITSCHRIFT FUR H. R 15, 122 
 
 ZEITSCHRIFT f. ARZTLICHE FORTBILDUNG 126 
 
 ZEITSCHRIFT (Osterr.) FUR GESETZGEBUNG . . . 285, 286 
 
INDEX 375 
 
 Page 
 ZEITSCHRIFT FUR VERGLEICHENDE RECHT- 
 
 SWISSENSCHAFT, 2, 3, 6, 14, 21, 29, 36, 37, 40, 43, 
 
 49, 53, 67, 68, 160 
 ZEITSCHRIFT (Tubinger) f. d. GES. STAATSWISSEN- 
 
 SCHAFT 286 
 
 ZEITSCHRIFT FUR STRAFRECHTSWISSENSCHAPT 
 
 13, 15, 33, 67 
 
 ZELLER, Kom. fl. d. allg. burg. Gesetzbuch 309 
 
 ZENKER, der Anarchismus 10 
 
 ZIVILPROZESS (civil procedure) 265 #. 
 
 ZORN, Staatsrecht d. deutschen Reiches . . .221, 233, 234, 238 
 
 ZUSTELLUNGSBEAMTEN (summoning officers) 259 
 
 ZWANGSRECHT 251 
 
 ZWANGSVOLLSTRECKUNGSVERFAHREN (execution) 269