HISTORY OF LAW 243 



and inconsistent in their aims. The historical fact is that technicality 

 and formality have been marked characteristics of the earliest admin- 

 istration of law among all peoples, and that the tendency has been 

 universal so to modify and adjust the early technical procedure as 

 that right and justice in a moral sense shall be done. Not only through 

 legislation, but also by means of fiction and the introduction of 

 equitable principles, law has been brought into a closer consonance 

 with morality. Never before have bad faith and the resort to tech- 

 nical legal rules for the purpose of effecting that which is morally 

 wrong been so strongly discountenanced in legal tribunals them- 

 selves ; and never before have such tribunals been more zealous so 

 to apply legal rules as to secure results which accord with ethical 

 standards. 



Notwithstanding the underlying connection in human thought 

 between rights and duties of which law takes cognizance and those 

 which are recognized in ethics and morality, it is evi- jj u t 

 dent, nevertheless, that until there is a clear and well- distinct, 

 established distinction between law and morality there can be no 

 ascertainable science of jurisprudence. Until the recognized aim in 

 the administration of law is to apply rules which are sufficient to 

 afford a reason for their application without regard to the ethical 

 result in any particular case, there cannot be a science of law. 



It is also apparent that there must be a differentiation between 

 administrative and legislative functions on the one hand and judi- 

 cial functions on the other before there is a science of A<i m i n - - 

 law as distinct from a knowledge of the law. The sov- tration 

 ereign or body exercising the power of sovereignty may a 

 still retain and exercise the power to do right in particular cases 

 and administer justice, but until controversies between individuals 

 which are adjudicated under the sovereign authority are decided 

 habitually if not universally by applying established and related 

 rules of action and obligation, there can be no science of law. 



The necessity for the interference of the state in private contro- 

 versies arises probably from the obligation of the state to maintain 

 peace and order, and perhaps the very first occasion for p u biic 

 the exercise of that function would be in the suppression Wrongs. 

 of the turmoil and the insecurity existing where the individual is 

 left to his own powers and resources, or that aid which his kindred 

 may feel bound by custom to afford him in the protection of his 

 supposed rights. The blood-feuds and the violence incident to a 

 resort to self-help could not be suppressed until some substitute 

 was afforded. This is, perhaps, a sufficient explanation of the 

 characteristic provisions not only in the laws of early Teutonic 

 races, but also in the early laws of other races, as to the amount 

 to be paid as weregeld, or under some similar name by the wrong- 



