To obtain an accurate estimate of the idea contained in the word law (i. e., political law) it must first be divided into that law which governs sovereign nations in their relationships with each other and that law by which each sovereignty governs individuals within its territory. Between the two is a basic distinction - so basic in fact that some writers have hesitated to call the first division law at all, although it is generally accepted as properly so described. This distinction is in the fact that sovereign bodies have as to each other by their very nature no legislative, judicial or executive superior to declare, interpret or enforce rules to govern them, but each of them has as to its own constituent inhabitants superiority of power by which it can prescribe and enforce its rules enacted to preserve its integrity and maintain its peace.
If each of these divisions is properly called political law what is the common element or characteristic? It consists in this - that both branches are composed of rules of political action emanating from sovereignty. Even in the case of international law, such rules as have the moral sanction of common international opinion merit the mandatory word "law."
Let us note more particularly each division and first, international law.
International law may be defined as the body of rules and customs which have become recognized by the sovereignties of the world to determine their mutual rights and to govern their intercourse with each other.
We have noticed that sovereignties, being bodies without political superior, cannot, therefore, be legislated upon. They may be parties to compacts, but by the very nature of things there is no superior authentic tribunal out of which law may come to govern them. Yet sovereignties must trade together, they must use the common highways of the world, they war upon each other. In the process of time common customs become established, treaties are entered into, recognition of principles determined. The sum total is international law. And because it has behind it the recognition of the consenting nations, it has a moral force to sanction it, and has the true character of law.
"The agreement or consent which is essential to the validity of a rule of international law is said to be express or positive when it is embodied in treaties or formal declarations of public policy, or in statutes which are enacted in support or recognition of the accepted usages of nations ; it is said to be tacit when it takes the form or conformity to the approved practices of the state in their international relaions."
Municipal law is political law in its fullest sense. It is the law imposed by the sovereignty (or its dependencies or subdivisions) upon its subjects. It is prescribed by a superior and must be obeyed.
I. Davis, The Elements of International Law, p. 2.
The objects sought to be attained by municipal law by which we may divide it into branches for the purpose of comprehending its character, are as follows:
A. Public Law: or that Law with Whose Objects the State at Large Is Primarily Concerned.
3. Criminal law and procedure.
B. Private Law: or the Law Provided for the Benefit of the Individual with Whose Enforcement the State Is Not Concerned Except for the Individual's Benefit and at His Instance.
1. The law of the obligation of individual to individual.
a. The law of contract; b. The law of quasi contract; c. The law of torts.
2. The law of property.
a. The law of tenure; b. The law of transfer inter vivos; c. The law of descent and wills.
3. The law of status.
4. The law of delegation of authority.
5. The law of business associations.
a. The law of partnerships; b. The law of corporations.
6. The law of judicial procedure in civil cases.
a. The law of pleading; b. The law of evidence; c The law of judicial procedure generally.
The above division is not scientifically accurate or complete. It cannot be. Grouping may be made from other standpoints. There might readily be a difference of opinion as to some of the divisions and subdivisions. One division cannot be made exclusive of the others, for all of the branches of the law interlace with and cross each other. Further divisions might be added. But the above division is fairly in accord with accepted terminology and subdivision.
In the following chapter we will discuss the various branches of the law.