as broader than the penal sanction.21 The injunction of equity, for example, is a more direct method of compelling obedience than is either a damage suit or punishment by the state. Finally, we note that the provisions of a law may be in concrete or in abstract terms. Perhaps some specific act will be required to be performed once 22 or periodically; or maybe an abstract obligation such as the exercise of due care' will be imposed.

We have used the term uniformity 23 rather than generality, for the reason that the latter is ambiguous. Many writers have put forward generality as a criterion of law. Among the prominent ones are Rousseau,24, Jèze,25 Esmein,26 Duguit,27 Austin,28 Jethro Brown,29 and the MeyerAnschütz Lehrbuch des deutschen Staatsrechtes." Unfortunately they do not mean the same thing in all cases. Some mean uniformity of application; 31 while Austin deliberately rejects that meaning and terms law any command whether to a person or to persons generally which obliges to a course of action as distinguished from a particular act.32 Brown cites these two meanings and accepts them both; while Amos rejects both.33 Jellinek rejects generality as an essential criterion in the following language: "Wenn daher auch in der Mehrzahl der Fälle der Rechtsatz eine allgemeine Regel

21 We may say of Austin's 'threat of evil' what we said of his 'command,' that it is too narrow a term (Brown, Austinian Theory of Law, p. 6 ff.; cf. Vinogradoff, Common Sense in Law, chap. ii).

22 Austin denied the character of law to a command, even one of uniform application, which obliged a person or persons to do or refrain from doing a particular act (Brown, The Austinian Theory of Law, pp. 11 ff., 16-17). This limitation we reject. 23 Wigmore, Problems of Law, Lecture I.

24 Le contrat social, book 2, chap. iv.

25 Les principes généraux du droit administratif (deuxième édition, 1914), pp. 147, 217.

26

"De la délégation du pouvoir législatif," Revue politique et parlementaire, 1-2 (1884), p. 212.

27 Manuel de droit constitutionnel (1907), sec. 40.

28 Brown, Austinian Theory of Law, pp. 11 ff, 16-17.

29 Ibid., pp. 18-19 n.

30 Page 570.

31 This meaning Austin attributes to Blackstone (Brown, Austin

enthalt, so ist das Moment der Allgemeinheit doch höchstens ein Naturale, kein Essentiale des Gesetzes im materiellen Sinne." 34 He protests that Rousseau's dictum that the object of the general will must be a general object is a play upon the logically ambiguous meaning of the term general.35 He points out that in a society where there were no constant types" there could be no uniform rules.36 The best discussion of this whole problem which has appeared in English is that by Dr. Tomio Nakano in his recent work on The Ordinance Power of the Japanese Emperor.37 With Nakano's conclusion, however, to the effect that uniformity is not an essential criterion of law 38 the present writer cannot agree. At one time, he was inclined to hold that a particular act might be a law as well as a uniform act, provided it created legal rights and duties by the exercise of full discretion in the premises. Thus one has to distinguish between an order of an administrative officer addressed to an individual directing him to pay fifty dollars into the treasury when such officer was merely applying, by a simple mathematical calculation, the uniform statutory tax rate to the assessed value of said individual's property, and another order to the same effect issued by the arbitrary decision of the legally omnipotent British Parliament. But this distinction taken by itself is not sufficient. We could agree with Dr. Nakano if he merely held that one criterion of legislative acts is that they "are original, primary and spontaneous commands defining the free sphere of conduct of individuals. in their relations with the state or between themselves." 39 But when he ends here, without adding that such acts are creative of law only when uniform, he fails to include a second criterion which the present writer considers essential. That criterion is uniformity in the sense of providing rights

34 Gesetz und Verordnung, p. 239.

35 Ibid., p. 237.

36 Ibid., p. 238.

37 Nakano, op. cit., chap. ii.

38 Ibid., pp. 56-58.

39 Ibid., p. 58.

or duties for persons of a class as distinguished from individuals.

It is the broad function of the administrative branch to run the machinery of government in the application and enforcement of the law. Administration in the narrower sense includes a multitude of non-discretionary proceedings by which public officers put into operation legislative rules of conduct. Some of these proceedings are merely mechanical acts, which do not even involve judgment. To such physical acts we give the name ministerial '.40 There are, nevertheless, acts of administration which involve not discretion to be sure, but a greater or less degree of judgment. Such are 'administrative determinations' whether of fact or of law. Between the two, however, there is an important distinction. Under our system an administrative officer may be vested by statute with the final determination of a fact, but with only preliminary determination of a point of law. Final determination of a question of law is really a question of jurisdiction, which as we shall presently see is judicial in nature and must, under Article III of the Constitution, be left to the courts." 41 It should be added that the determination of a fact, preliminarily as well as finally, as well as the determination of a matter of law preliminarily is administrative in character whether it be performed by an administrative officer or by a lower court of law.

If we stop with this dual division we relegate adjudication to a subordinate place as a mere phase of execution. This theory of judicial power is indeed quite logical for the government of France, where it originated." The distinctive function of the judiciary is the authoritative but non-discretionary determination of jurisdiction, or, in other words, the final decision whether a given act or course of action of a

40

Marbury v. Madison (1 Cr. 137).

41 Albertsworth, "Judicial Review of Administrative Action by the Federal Supreme Court," in Harvard Law Review, December,

1921.

42 Ducrocq, Cours de droit administratif (sixième édition, 1881), vol. i, p. 27. Goodnow, Politics and Administration, p. 9, accepts this idea. But cf. also Paine, The Rights of Man, Everyman's ed., part 2, p. 198.

private person was (or, under a system of declaratory judgments, will be) 43 within the sphere of the legal competence of the performer or pursuer. In France 44 the administrative courts, in English-speaking countries 45 the ordinary courts, perform the same function with reference to acts of the administration. In the United States, however, the jurisdiction of the legislature is a judicial question.46 Here the courts may in a proper case determine whether the popular assembly has stepped outside its circle of power as well as whether the sheriff or the town clerk has exceeded his authority. Thus the courts bring unity into the legal system by keeping all private and governmental persons within the range of their allotted powers. For this very reason it seems illogical for American jurisprudence to treat the judicial process as an aspect of the administrative instead of as a function coordinate with the other two.

The rule of law involves the impartial application of uniform prescriptions to particular cases. This stage of the governmental process requires a more or less elaborate administrative machinery. There is necessary, therefore, a body of rules which have to do with the organization and regulation of the administrative services. Where those services are organized into a hierarchy, there may be commands issued by administrative superiors to their subordinates. German jurisprudence, as in the practice of German states, it has been considered a proper function of administrative heads to organize and regulate the services. In the States

48

43 Borchard, "The Declaratory Judgment-A Needed Procedural Reform," in Yale Law Journal, vol. xxviii.

** Duguit, "The French Administrative Courts," in Political Science Quarterly, September, 1914; Garner, "Judicial Control of Administrative and Legislative Acts in France," in American Political Science Review, vol. ix, pp. 637-665.

45 Cf. Goodnow, Principles of the Administrative Law of the United States, pp. 394-395.

46 Marbury v. Madison (1 Cr. 137).

47 In this connection note the development of administrative machinery that has accompanied the growth of governmental activity in recent decades.

48 Laband, Deutsches Reichsstaatsrecht, pp. 135 ff.; Meyer-Anschütz, Lehrbuch des deutschen Staatsrechtes, pp. 571-573. Cf. Lowell, Governments and Parties in Continental Europe, vol. i, pp. 345346.

49

of the American Union, on the other hand, not only did the popular election of many administrative officers make impossible a hierarchical system, but the creation of all administrative offices and the definition of the powers and duties appertaining thereto have been considered matters matter for either constitutional or legislative determination. Likewise, the federal Constitution, though making the President the real head of the administration, placed in the hands of the Congress the power to make all laws necessary and proper for carrying into execution not only its own powers but also all other powers vested by the Constitution in the federal government or any department or officer thereof.50 With reference to this power it will be noted that while of great importance it is ancillary to the enforcement of the uniform rules of conduct with respect to private interests which the reign of law entails. For this reason we include in the power not only uniform rules governing administrative conduct 1 but also regulations respecting a single officer, provided these set forth general powers and duties,-powers and duties in connection with the administration of uniform laws or the performance of regular administrative duties.52

If we are to analyze government as it actually works, we must take note of the fact that two agencies may cooperate in the formulation and the bringing into operation of a given scheme of rights and duties. Sometimes, indeed, especially in the United States, the legislative body elaborates in concrete detail every phase of a given regulation. In this event the rôle of the administrative department is confined to administration proper or at the most to administration combined with a degree of subordinate discretion. At other

"Through his power of removal, which is not expressed in the document, but is implied from his executive power.

50 Art. 1, sec. 8.

51 Such as the executive order of the President forbidding federal officers from holding simultaneously state, territorial, or municipal offices (Richardson, Messages and Papers of the Presidents, vol. ix, pp. 4172-4173; pp. 4173-4174).

82 Such as the regulations issued by the Director of the Budget under the provision of law which enacts that "The Assistant Director shall perform such duties as the Director may designate" (42 Stat. L. 20-27).