Page:The Green Bag (1889–1914), Volume 23.pdf/211

 Systematic CIGSStﬁCGtiOﬂ 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 struc ture. Yet there is a greater variation in the interests guaranteed by public law among states of the same level of civilization than in their private laws.

Therefore, the reception of foreign insti tutions of private law is more easily possible than the reception of foreign institutions of public law; and the recep tion of the latter requires the exercise of the greatest circumspection.l0

185

The law recognizes private interests, not alone for the sake of the individual,

but also for the sake of society. Its view point is social as well as individual.

Only those private interests are pro tected, by the authority of the com munity, which are conformable to the

general welfare. Even in private law, where legal order ﬁrst 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:

5. The supremacy of public law in the protection of established rights of the community demands that private inter

(1) a legal subject, (2) a legal object, (3) a juristic fact, and (4) legal protec tion.

ests shall, under deﬁnite conditions, give

I. Legal subjects12 are the owners of their legally protected interests. A per son is any entity which may be the holder or owner of such interests. Legal order

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. ELEMENTS OF CIVIL OR PRIVATE

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 capa city for acts. The latter is a legally recognized capability of exercising the will in juristic acts.u

LAW

The law may distinguish various kinds capacity — for rights, as well as

It is the function of private law to protect the interests of private persons. These interests consist of relations to

of

objects, and the protection of these rela

"Glerke, Die son'ale Aufgabe des Pn'valrechls (Ber lin, Julius Springer, 1889), particularly p. 6; d. Jhering, 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." nSalkowski, Inst, secs. 42, 79: Sohm, InsL, secs. 20-25. 1'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. 13., secs. 6, 104, I05. Disposing capacity in the sense of B. G. B. is one of the subdivisions of capacity for acts. See Gareis, Kommenlar mm: B. G. B. I, note to sec. 104. lProf. Gareis's Science of Law abounds in lumi nous annotations of the German Civil Code (Bur gerliches GeselzbuchJ- Ed.

tions against deprivation, infringement and interference. Such relations, how ever, arise or exist under the inﬂuence

of legal order as legally regulated rela tions based on deﬁnite facts, or so-called

juristic facts. The law attaches its pro tection to these facts. Rights, therefore, spring from the creation, extinction or alteration of such facts. "With reference to the relation between public and private law see Gareis, Allg. Steals-"chi. in Marquardsen‘s Handbuch d. a]. Rechls, Bd. 1, sec. 3, pp. 7, 11-15, and the literature in the notes.

capacity for acts — differing according to