Cyclopædia of Political Science, Political Economy, and the Political History of the United States
PHILOSOPHY OF LAW. 1. What the Philosophy of Law means; its Task. The mind of the jurist and the mind of the philosopher demand a philosophical consideration of the law. Both to the jurist and the philosopher the inquiries with which the philosophy of law concerns itself are altogether indispensable, if they would deeply and exhaustively understand their respective sciences. The student of law can not avoid the task of rendering account to himself of some of the highest principles of his science, of their foundation and connections, which his own science is unable to explain. Not only the statesman, the legislator and the teacher of law, but also the judge and the lawyer, in their respective spheres, find innumerable occasions for testing either whole institutes or single points of positive law, in their legitimacy and the essential reason of their validity; occasions for seeking to interpret them, and according to the result of that interpretation to endeavor either to retain or to alter them. The jurist is thus frequently compelled to seek for principles of law; but to search after principles, is to philosophize.
—On the other hand, the philosopher is compelled to test his general, theoretical principles by the materials of existing law. Among all enlightened nations he finds the state the grandest reflex of the human mind in history. In all human communities he meets with the idea of law, as an essentially human idea, in various stages of development, from its most refined down to its most simple and only half-conscious beginnings. In his system, therefore, the philosopher must take this important phenomenon into careful consideration. The philosophy of law is, accordingly, the systematic science of the principles of law. From the philosophical point of view, it assumes the task of inquiring into the necessary origin of the idea of law in the human mind, and into its relation to other forces and creations in the life of man. The philosophy of law is called upon to assign to law its true position in the cosmos of intellect. From the legal point of view the philosophy of law should endeavor to apply the highest principles concerning the nature of law and the state, obtained through philosophical reflection and historical investigation, and seek to incorporate them into the existing materials of all legislation.
—2. Outlines of the History of the Development of the Philosophy of Law. As a matter of course, there can be a philosophy of law only where the principles of law, as such, have at least begun to detach themselves from the precepts of religion and from the dictates of morals. Hence, in the present sketch of the process of development of that philosophy, we may regard as a preliminary stage (and therefore completely overlook) all that which, in ancient history, appears as religious revelation, legend, custom and poetry; although such traditions otherwise constitute important material for the investigation of national character, and of the chief outlines of the primitive human conceptions of law.
—We meet with a true philosophy of law first among the Hellenes, for they at least began to detach law from ethics and religion, although they were far from completing the task of that separation. In this, however, as in many other things, they form the transition from, or connecting link between, the east and the west. In judging the organization of the Grecian state, and the Greek doctrine of the state, we must not forget this middle position of the Hellenes. Compared with theocratic and patriarchal despotism, they had made notable progress; but the Greeks must be said to have lived in very close bondage, when we compare them with the Roman civis, not to say with the citizens of modern states. For the Hellenic state was absolute, and all excellence, all , was excellent only in so far as it was subservient to the state, and became a . It was not so much that the state interfered in almost everything, but rather that everything was absorbed in the state. Religion was the state's religion, and any one who announced new gods had to drain the fatal cup. The family was only a means to the ends of the state. The state might prevent trade and traffic with foreign countries, and fetter the free activity of the economy of individuals; it acknowledged no society but itself. That state was only the logical consequence of the same political idea which prescribed to music its melodies, to instruments their tunes, and even ventured to forbid the Hellenes to read Homer. This political idea was not only oppressive to, but it actually destroyed, the family, by authorizing the community of women and children, and the selection of the parties to be united as man and wife by the public magistrates.
—This entire conception of the state was possible only because of the very limited territorial extent of the Hellenic states themselves. The Hellenic state was the city (). The whole government easily assumed a narrow, police character, interfering in almost everything. Even Aristotle, although he expressly warned the Greeks against the danger of their petty state system, entertained, in this respect, so narrow a view, that he actually required that all the citizens of the state should be personally acquainted with one another. But, even in small "city-states" of this kind, the absolute absorption of the individual by the state was possible only so long as the old Hellenic spirit maintained itself; when the subject, without thought, submitted himself to the substantial embodiment of the national spirit, as traditionally expressed and represented in religion, customs and the state, and thus submitted himself with a feeling that things could not be otherwise.
—Yet this old Hellenic spirit began very early to die out. After the first Persian war the dissolution of the old relation of absorption of the individual by the state accompanied the enlargement of the horizon of the popular mind and the increase of national culture. This was a natural, necessary, and in many respects a wholesome, movement. The transition to reflection in this instance was, as it is always and everywhere, the condition precedent of a higher mental development; and if the Athenians had never abandoned the point of view of the "Marathonites," the highest which they attained in science, in art and in the state, would have remained unachieved. But it can not be denied that the negative, dissolving and disintegrating effects that accompany all thought, or rather reflection, soon became very prominently, very sharply and very one-sidedly perceptible among the Greeks. To overcome effects of this kind requires at all times the most intense and continuous effort of all human energies. It accordingly can not be denied, that the Hellenic national character did not bear its emancipation from the old strict observance of faith and custom without rapid demoralization: a fact which is connected with the exceedingly rapid course of the whole history of Greece from its earliest beginning until its final decay.
—The period of the sophists is, properly speaking, the time when awakened thought presumed to question, to investigate, to doubt, and even to pull down everything that was customary in religion or morals, in law or in the organization of the state. To the Hellenes this epoch had nearly the same meaning that the "period of enlightenment" of the past century had to France and Germany. In many things it was injurious; in some, useful; but in all, necessary. At this period Hellenic thought, in spite of all its traditions, was not satisfied with the belief that things could not be otherwise than they were. The Greek philosophers asked themselves whether right and wrong were settled for all time by nature; or, whether they were only provisions changeable at the caprice of men. They inquired whether those ideas were or , and ever afterward this controversy ran through the entire Hellenic-Roman philosophy. But it is a characteristic fact, that the Hellenes, face to face with this first problem, should have thrown together ethics and law. The right, the good, the law ()—concerning which they inquired whether it existed or —was with them not only the law of legal right, but also the law of morality. The conservatives maintained the eternal inviolability of the law of legal right and of the law of morality, as an ordinance of the gods and of nature; but the sophists, armed with the subtlety and culture of the more modern time, pointed to the fact that the law of morality and the law of legal right are by no means always the same, but may be very contradictory in time and space.
—The sophists, however, did not understand that the idea of legal right or law exists with all nations; that the creation of forms of law or legal right is rooted in the nature of man, and that only the forms in which this idea appears, may be different and even contradictory, according to national character, and to natural conditions and the conditions of the time. The sophists, because they saw uncertain, changeable forms of law, rejected the whole idea of legal right and of the good. They maintained that every nation, every epoch, as well as every individual, from motives of caprice or interest, might prescribe to itself or himself what it or he should consider lawful or unlawful, and might act accordingly. In this manner subjectivity finally passed all bounds. Although at the beginning the more moderate among the sophists (Prodikos, Protagoras) erected fresh barriers; subsequently the majority (like Gorgias, Hippias) both theoretically and practically followed out to the last consequences this anarchical doctrine. It has been justly observed that even Socrates, as the representative of the right of free investigation into all traditional institutions, stood on entirely the same ground as the sophists. But he differed from the latter, in that he subordinated the freedom of the individual to the purposes of the good, and wished that thought should not be employed for the purpose of demolition, but for the attainment of the knowledge and the voluntary observance of the law of morality.
—In judging the philosophy of the state of both the great pupils of Socrates, Plato and Aristotle, we must take into account the influence of the Greek political situation, and of the general condition of Greek civilization at the time. That process of disintegration, the dissolution of the old system of ethics, through unrestrained skeptical thought, was making alarmingly rapid progress. In a political respect this degeneracy manifested itself in an unbridled ochlocracy, as in Athens; or in a malevolent tyranny, as in Sicily and the other islands. All earnest, thinking men, in all the Hellenic cities, had long since turned away with loathing from the turbulent democracy, and sought support and assistance in the strict Doric political and moral system, with its aristocratic ideals. We must keep in view this partiality for the Doric political ideal, which had been partly realized in the state of Lycurgus, in order to understand how Plato could reach the otherwise unintelligible extremes of his philosophy of the state. In the second place, we must take into account the peculiar tendency to abstract theoretical construction that characterized the whole Hellenic national character, and most materially all Hellenic speculation. This explains why Plato could admit, as the principle of his doctrine of the state and of law, the same idea which forms the basis of his psychology and of his analysis of the individual man. Hence, the well-known simile by which he illustrated his own psychology: As the charioteer guides his two-in-hand, the reason () must control, and keep in harmony the two halves of the human soul, the masculine, courageous, and the feminine, appetitive halves. And what is true of the individual man, is true of men as a whole, as they appear in the state. This whole only represents man on a larger scale, as one animated organic being, endowed with but one body and one soul. In other words, the three parts of the human mind, the feminine soul, the masculine soul and reason, reveal themselves in the state as three classes or estates—the class of tradesmen, that of the warriors, and that of the wise men. The best form of government, to wit, aristocracy, consists in the supremacy of the wise men, the passive obedience of tradesmen, and the active obedience of the warrior class. Every individual should belong completely to one of these orders, and be entirely absorbed in it. All private interests are destroyed by the state's distributing wives, children and goods among the citizens. The state controls the whole education of the people, even in the smallest details, and continues to educate even adult individuals. It prescribes the tunes of the lyre, forbids the songs of Homer, as being too passionate, and interdicts all imitative arts, such as painting, sculpture and the drama. The most gifted among the warriors after a long training may rise to the class of the wise men; but the caste of tradesmen, after ministering to the wants of the higher orders, as the adamant foundation of the state, must remain imbedded in the ground. The slaves, so indispensable to the ancient state, and all bodily defective children, must be degraded into that caste. In his later work, the twelve books on the laws, having seen the impracticability of his ideal state, Plato modified his extreme notions concerning the community of women and goods, and proposed a constitution, half way between oligarchy and democracy, in which the laws themselves should rule, instead of his ideal rulers, the order of wise men.
—In Aristotle we find a marked progress both in the methods and the contents of the doctrine of the state. This philosopher gave his doctrine of the state a broad historico-juristic basis, by collecting data relating to the constitutions of no fewer than 158 different states, and critically sifting the materials in a work that has unfortunately been lost. As regards the substance of his doctrine, his greatest merit seems to lie in his conception of man, as a , a political animal, a being by nature necessarily impelled to form states. It is not with Aristotle as with Plato, and most of the other Greek, Roman and Christian philosophers, purely external urgency and helplessness that impel man to form the state, but his very nature. The ideal basis of the state, side by side with the real, was first proved by Aristotle; yet without his distorting that ideal in either a theocratic or transcendental sense.
—The collapse of all intellectual life in Greece, and principally of the life of the state, was soon reflected in the prevailing philosophical systems, and in the neglect of political life, with which the Greeks had formerly been so closely identified. The sensualist-material tendency of the Cyrenian school was continued in the Epicurean sect, which neglected the state. The rising school of the stoics, also, which in many respects bore a resemblance to the earlier school of cynics, no longer regarded the state from the point of view of the national state, which had represented the healthy point of view peculiar to the life of antiquity. The pantheism of this doctrine accorded a marked prominence to the subject, and led to the hypothesis of a grand whole, which embraced all individuals in a community of the cosmos. Men must live conformably to the law of nature (naturœ convenienter vivere—a maxim on which was subsequently based the so-called jus naturœ, or law of nature, which accordingly had a physico-ethical, not juridical, starting-point). Nature is supposed to impel all men, even all beings, that have any share in the cosmic soul, consequently the gods, into one great community; and any one who, in regard to this whole, conducts himself properly, is just. The justice of men among themselves is moral-politico-juridical; that of men toward the gods consists in piety. As in the cosmos, the world-soul, so in the state the "state-soul," moves, contains and controls everything; but this soul of the state is the law.
—As is known, the teachings of the stoics became, later, the favorite doctrine of Rome, when it had gained the empire of the world; and precisely as the Roman empire finally dissolved all nationalities, even its own, into one universal state, so also the political doctrines of the stoic philosophy were cosmopolitan, and no longer national-political.
—These stoical conceptions, mingled with Christian elements, exerted their influence far into the middle ages. The "Civitas Dei" of St. Augustine, who himself had received a stoical training, has many traits of the stoical .
—There was once a lively controversy as to whether, and how far, the stoical school had exercised an influence on Roman law; but in our present state of knowledge, and with our deeper historical insight into both the stoical philosophy and Roman law, such a question can no longer be raised. A school of French jurists (Cujacius), with the laudable intent of entering into the whole mental life of the Romans, was the first to seek an explanation of their law in its relation to the stoical school; and, strange to say, these jurists supposed they discovered a material influence of that philosophical system on the Roman law. But we now know that that law was only the outcome and development of the peculiar popular life, and of the peculiar talent, of the Romans. Its chief excellence consisted precisely in its repugnance to all the doctrinarian wisdom of the schools and in its thoroughly practical wisdom. It would never have occurred to a Roman jurist to allow any kind of philosophy to exercise any influence on the matter of his real juridical ideas. There certainly are to be found many stoical elements in the corpus juris, but only in its general definitions, in its erudition, in its ethical maxims. But those philosophical opinions remained completely without influence on the life and development of the institutes of the Roman law. In the same manner as the Romans, in a purely outward manner, appropriated to themselves all Greek culture, so, too, they introduced into Italy, Greek philosophy and political theories, yet without any real appropriation of them, and without any further development of any one of them, just as they erected the pillaged statues of the temple on the capitol, often bringing them, without much discernment, into an enforced contact with their own national institutions, heedless whether they harmonized well or badly with the latter. Now, the stoic dennitions were very poorly adapted to the matter of Roman law, and we may confidently assert that what in the corpus juris is juridical is not stoic, and what is stoic is not juridical.
—The Romans, accordingly, had no philosophy of law, in the proper sense of the term. Their so-called philosophers, particularly Cicero, learned philosophy from the Greeks, as one learns a foreign language, without changing it, or working it into the elements of Roman law. And yet, as it were, an unconscious philosophy of law, such as never afterward was attained to, seems to pervade the labors of the Roman jurisprudents. The eminent talent of the Roman mind for law is not only displayed in the acute formulation of juridical ideas, in the subtle distinctions of these ideas, or in the admirable conclusions it draws from them, in their algebra of juridical ideas, but the instinct for the deepest intelligence of the essence of law is still more luminously revealed throughout the whole development of it by the Romans, in the prætorial edict and in the jurisprudentes. The characteristic traits that make the Romans emphatically the juridical nation of history, were the above, and the gradual, slow transformation of the old, obsolete forms of law, according to the wants and the social progress of the time, as well as their efforts to do justice to all that was new, but with the utmost leniency toward the old. The incessant mental labor of the Roman jurisprudents for centuries, by degrees smoothed down the rigid, specifically Roman, harshness of their law, and in connection with the growing universal culture of their empire, changed it into a jus gentium in the highest sense of the term, that is, into a law that in many things has promulgated lasting juridical truths, particularly in the law on obligations, or contracts, and in the general theory of the law. But it must not be forgotten, that, to effect this, that specific juridical talent, which itself was incontestably Roman, was required. Only the Romans were able to develop their Roman law into universal law. Their law, like Christianity, conquered the world, and together with the whole culture of antiquity, and as a fragment of that culture, it legitimately passed into mediæval and modern culture; yet legitimately only in as far as even that fragment of ancient culture could be assimilated with propriety to our life. We shall return below to this subject.
—To the Hellenic philosophy and the Roman law were now added, as influential elements in the history of ethical, political and juridical ideas, the ideas of Christianity. The influence of these on the philosophy of law was decidedly unfavorable in the beginning. It enhanced the fundamental vice of that philosophy in the extreme: the amalgamation of law and morality, the preponderance of the internal and the moral over the external and really juridical. We have called attention above to the fact, that, as a matter of course, there can be, in principle, no opposition or contradiction between ethics and law, both being forms of one same force; but we have also called attention to the fact, that, spite of their close connection, there is a very decided difference between law and ethics, the obliteration of which operates unfavorably in the highest degree on both. When the domain of inner freedom and of morality is occupied by the law, when religious and moral precepts are understood or conceived in a juridical sense, then religious and moral truth perishes, and untrue and un-free formal holiness and apparent morality take its place. This history has demonstrated in all those cases in which the state or other external power has sought to command and enforce faith, religiousness or morality by coercive measures. In this domain of the free, inner life of the soul, only forms, formulas and appearance can be commanded. When, on the other hand, law is confounded with ethics, when religion and morality seek to rule the state and dictate codes of law, we see come into existence those abortive systems which would paralyze man's highest activity, his participation in the life of the state, and substitute fanaticism and hypocrisy for healthy action and open force. Unmanly, untrue and unhealthy organization is to be found wherever it is attempted to replace the state and the law by religion and morals. Here, too, the only healthy and normal course is to separate what is different.
—The history of the philosophy of law, however, shows that it was only late that men learned to keep morality separate from law. Among the Hellenes we find the clearest contradiction between their theory and practice; both their theory and practice confounded ethics and law; but while in its practical life the state absorbed morality, prescribed ethico-religious rules or laws, and scarcely endured any free individual life, the science of the law and of the state was entirely ethical. It has been rightly remarked that the Hellenic vocabulary has no word for law in the sense of the Roman jus, but couples ethico-religious notions with the words , , etc.; and we have seen how, from Pythagoras to Aristotle, the pedagogical preponderated in the state, and the moral in the idea of the law. Among the Romans the life of the law was free and richly developed, but they had no philosophy of law. Their jurists avoided general definitions even in positive law.
—Christian ideas at the outset evinced a strong disinclination toward the state, which was still heathen and corrupt. The kingdom of the Christian was not of this world. The true home of the Christian was not this earth, corrupted through the fall of man, but in the world beyond. Above all, he had to save his soul, by piety and faith, and only to concern himself with the state when it was unavoidable. As is known, the Christians of the first centuries expected the speedy end of the world, and carefully avoided, as far as possible, any contact with the heathen and sinful life of the state. Religious morality, with them, overruling every other motive, stepped into the foreground, while the state was but a secondary concern, or was considered only as a necessary evil. If human nature had not been corrupted through the fall, there would have been neither murder nor homicide, nor quarrels concerning mine and thine, and consequently no need of the state or of the law. Sin was introduced by the devil; along with, or at least on account of, sin, the state and the law had also entered into this world; in paradise there was neither king nor judge. With this sinful world, with the devil, the state and the law were to disappear, for they will not be required in heaven. The lex temporalis contains, of just and legal, only what it borrowed from the lex œterna.
—Such was the teaching of St. Augustine, and his doctrine was only logical. The ancient wisdom of the Stagirite had taught, that man by his ideal nature was drawn toward the state; that the latter was not a necessary evil, but a necessary good; but now Christianity had reached the very opposite conclusion. This world-shunning view, neglectful of the state and of the law, governed the entire Christian philosophy. The scholastic philosophy confused law and ethics in this, that, according to the former, the just man (the of the Bible) was only the person who, through the redemption, had been rescued from sin. Scholasticism over and again called to mind how man, so long as his nature had not been corrupted by the devil, neither knew nor needed the law or the state: and further, that all law ought to be reduced to religious morality and the ten commandments. The different philosophers and their parties only diverged from one another in this, that some among them ascribed man's knowledge of these principles to divine revelation, while others ascribed it rather to the natural reason of man. Scholasticism further made frequent attempts to distinguish the lex divina (the moral and religious law of the Mosaic-Christian revelation) from the lex naturalis (the voice of moral, juridical commands, dwelling even in the heart of the heathen: thus particularly the tolerant and liberal Abelard). But this whole intellectual tendency, which attained its latest expression in Thomas Aquinas (1225-74), has in common a disregarding of the state and of the law, and the coloring of both by religious morals.
—Considering the historical conditions of the middle ages, this idea naturally led to the complete supremacy of the church over the state, in its quality of representative of religious morals. But the opposition to this idea was preparing, during the time that the state, with increasing success, began to struggle for its emancipation from the church, by the aid of science, no longer exclusively confined to the clergy, but pursued by laymen as well, and particularly by the aid of the revival of ancient culture and the knowledge of Roman law. The struggles of the Hohenstaufens against the papacy may apparently have ended in the subjugation of the secular power; but in many individuals it had at least aroused a doubt concerning the legitimateness of ecclesiastical supremacy. The increasing power of the opposition against the religious-moral absorption of the state and the law, was not the work of philosophers, nor the outcome of theoretical reasons, but was owing to the efforts of statesmen and party writers, and to the practical wants and aspirations of the period. These men at first opposed these principles on account of their practical consequences. Dante and Occam, the brave political adherents of the emperors Henry of Luxemburg and Louis of Bavaria, were the men who first successfully, for practico-political reasons, attacked the supremacy of the pope over the secular powers, and the whole theory on which that supremacy was based; but, as a matter of course, they did this in complete conformity with the dogmas of the church. Two hundred years later, Niccolo Machiavelli (1469-1527) submitted, with reckless knavery, morality to political ends. In his ardent wish to see Italy freed from the numerous small despots and their feuds, he called for an absolute dictatorship, which by any, even by immoral means, as violence and fraud, might carry out the political behests of the times. Yet all this is sufficiently explained by the historical conditions, by the times of the Borgias and the Medicis, as also by that peculiar talent of the Neo-Latin nations, particularly of the Italians, which prompts them to follow up the suggestions of any ardent passion to the end. At the same time it was an equally extreme reaction against the subjugation of the state and of the law by the religious morals of the church. The emancipation of the state was carried to the point of ignoring all ethical laws, and of sacrificing morality to purely political ends; yet the motives here again were practico-political: the wounds of torn Italy and the necessity of healing them. Machiavelli belonged to the period of the reformation, that amidst violent convulsions completed the movement which began at the close of the thirteenth and continued through the fourteenth and fifteenth centuries; the movement which, in principle and forever, did away with the scholastic idea of the state and of the law, and of their relations to morality and the church.
—And here, again, the men who achieved these results were not philosophers of the schools, armed with theories; on the contrary, these results were the necessary outcome of the gigantic strife of the sixteenth and seventeenth centuries, which in Germany, England, Switzerland and France led to radical changes in the organization of church and state. Once more the practico-political movements of history created the necessity of not abiding by old, traditional ideas, but of seeking a different solution of a number of important problems, touching the relations of church and state, of law and religion, of the freedom of private life, the rights of public life, and the rights of citizens in relation to their governments. Men insisted on examining for themselves into these problems, in order possibly to attain higher results. Such were the great questions of the period, which aroused so many powerful minds in Germany and in the Low Countries, in England, in France, and even in Italy and Spain. In this manner the 150 years that followed the first efforts of the reformers, until the last vanishing traces of the thirty years' war, displayed an extraordinary wealth of political and juridico philosophical literature, both in the form of long-winded systems and of short polemical writings and pamphlets.
—The reformers themselves, even Luther and Melancthon, knew hardly anything of the philosophy of law, in the proper sense of the term. In ethics, also, they still maintained the traditional ideas concerning the lex divina, naturalis and positiva. There, nevertheless, were a few of the friends and pupils of the reformers, who, both in theory and in their practical deductions, boldly broke away from their teachers, and followed the spirit of the times. Such was Hubert Languet (1518-81), who in the interest of freedom of conscience openly advocated popular sovereignty. The same was also done by his contemporaries, Hotomanus in France, and George Buchanan in Scotland. Melancthon's pupil, Hemming, more deliberately than his teacher, severed all connection with the doctrine of the middle ages. Yet, along with all this, there were many stationary men among the adherents of the reformation, who, in the field of juridical philosophy, retained unchanged the old views, as did Oldndorp. The revival, and at that time flourishing condition, of Græco-Roman philology caused the students and patrons of it to show a decided inclination for the political ideas of antiquity. The Frenchmen Hotomanus, Bodinus, Charron (1541-1603), Gassendi (1592-1655); the Englishmen More and Sidney; the Italian Piccolomini (1604), and others, with but few Christian modifications, renewed the doctrines of the old Hellenic and Roman philosophy. It would be unfair to maintain that in all this there was nothing more than the harmless whims of unpractical scholars. It must not be forgotten that More and Sidney died for their convictions. Their theories concerning the importance and dignity of the state contrasted strikingly with the mediæval theocratic ideas; and in this respect they certainly represented the spirit of modern times. But the old point of view was at the same time vehemently defended by the school of the Jesuits. The conversion of heretics was their main task. Dominicus de Soto, Fernando Vasquez, Bellarmine, Molina, Suarez and Mariana are the most prominent names connected with the tendency of this school. They frequently displayed great learning and intelligence. They skillfully employed the theories of the principle of sociality and of the sovereignty of the people, which were in favor at the time. In other words, they defended the old, desperate cause with the arms of their adversaries, and in so doing scorned no means that proved serviceable for their holy purpose. They even considered the murder of an heretical prince a duty. The church herself was finally compelled to disacknowledge these ultra-apostles of hers; yet long before that not only governments had had their books burned by the hands of the public executioner, but deeply religious men, like Pascal, had directed their combined power of heart and intellect against this deplorable misuse of religion.
—We next come to a long line of conspicuous British philosophers who wrote concerning the state. Most of them had for point of departure the problems that were agitating their own insular kingdom in particular, but which, nevertheless, justly claim a certain universal importance, because the convulsions that shook the state and church in England were closely connected with the general religious-political movement of the sixteenth and seventeenth centuries. Among these men, also, there were harmless philological dreamers, who regarded the revival of antiquity as the standard suited to their own time. This not only applies to More and Sidney, but even to the highly realistic Bacon of Verulam, who, with genuine, practical English common sense, looked upon utility as the principle of the state. He, nevertheless, to a certain degree, leaned on Plato, basing the state on ethics, while Plato based it on psychology. In the great struggle for the respective rights of the crown and of the people, absolutism found an intelligent champion in Hobbes, who in a logical manner attributed absolute inviolability to all government, while others, like Salmasius and Filmer, demonstrated the autocratic power of the monarch from the Scriptures: the latter, in his notorious Patriarch (1665), maintained the identity of the royal and paternal power, and showed that God had instituted absolute monarchy with Adam, in Paradise. Milton, with his wonted enthusiasm for truth, morality and freedom, successfully attacked Salmasius, while the penetrating intellect of Locke completely overthrew Filmer's patriarchal doctrine. At the same time the principle of sociality, as it had been accepted by the German and Dutch writers on the philosophy of law, was established psychologically by Richard Cumberland, with whose name the school of so-called English moralists is associated: Shaftesbury, Wollaston, Clarke, Hutcheson, Home, Ferguson and Adam Smith.
—David Hume also went in this same direction, although in many respects he conflicted with its tendencies. His austere skepticism rejected the traditional "myths" of a state of nature and of a social contract. General utility is his principle of the state, of law and of justice; for peace and good faith will in the end prove more profitable than violence and cunning. In this manner he sought both to modify and support the optimism of the moralists. This utilitarianism, which among English philosophers began with Bacon, frequently after reappeared in England, under ever-varying forms, as a characteristic trait; and in our own century it attained its most marked expression in the system of Bentham.
—Yet the main branch of the intellectual current at that time flowed through Germany and the Low Countries. Here the doctrine of the law of nature emanated from Hugo Grotius, inasmuch as he, with greater decision and consciousness than his predecessors, reduced all positive law of whatever kind to the common basis of a constantly uniform law of nature. It was also very characteristic of the practical starting point of all this movement, that even Grotius begins with the simple question: "Is it ever just to wage war?" To investigate this question, the terrible wars, of which he had been a witness during his own lifetime (1583-1648), furnished, indeed, sufficient cause. He answers the question in the affirmative, in the case of just defense or demand for satisfaction; and he only occasionally comes to the investigation of the legal principle itself. It is, besides, very remarkable that Grotius, as well as all the following teachers of the law of nature, gradually distinguished more sharply between law and the morals of religion, although they regarded God, or his revealed will, as the common basis of both. As to the particular institutes of public law, Grotius seeks to prove that they do not necessarily, or altogether certainly, emanate from the reason, yet he contends that they do not absolutely contradict it. This problem might, indeed, have led to a fruitful analysis of the matter of the law, if the whole law of nature had not started from a false conception of humanity and of history. Another fiction of this doctrine is the supposition of a state of nature (status naturalis), corresponding to the law of nature, that is, a condition of humanity before the beginnings of society and of the state; and this condition of nature, with the theological philosophers, frequently meant the supposed state in Paradise before the fall of man (status integritatis), but with others, a condition of wretchedness and helpless want after the fall.
—It was possible, from these general premises, to draw the most opposite conclusions in questions of detail. Thus Hobbes, from the political contract, which unconditionally bestows sovereignty on the monarch, infers extreme absolutism; while Rousseau, from his contrat social, reaches permanent revolution, the sovereign people having made every office revokable, and thus at any time being able to depose the king. Between both these extremes there exist various kinds of modified doctrines. It is remarkable that Spinoza here also sustained the superiority of his genius; and although not entirely exempt from the influences and errors of the scholarship of his time, he on certain main points decidedly opposed them. Thus, he combats the hypothesis that men by the political contract ever renounced their freedom. On the contrary, he maintains that only in the state do they acquire freedom; that before the state there existed only arbitrary power; and that only in the state is it possible to put an end to irrational and unlimited unrestraint, unworthy of man, to attain to an existence in accordance with reason.
—Samuel Pufendorf agrees with Spinoza in combating the theological view of the state. The remarkable juridical talent of the former placed him on many points in direct conflict with the traditional tendency to fill up the whole domain of law with moral-religious ideas, and involved him in numerous polemical conflicts with the advocates of the latter school. Although he also draws no clear distinction in principle, between law and morality, in most matters of detail his sound juridical sense correctly distinguished between them and connected them. With Spinoza, he lays stress on the fact that the "state of nature" of man before the social contract is the most wretched hypothesis conceivable, and that man did not enter into a state of society by contract, but was impelled thereto by a fundamental law of his nature. The commands that are indispensable to the preservation of society or the community, Pufendorf holds may be enforced, and are jus perfectum; those, on the contrary, that only serve to render human association more pleasant or agreeable, are not coercible, and constitute jura imperfecta. Pufendorf further distinguishes between the duties of man toward himself, and his duties toward others; and among the latter he distinguishes the absolute and the hypothetical, that arise from special agreements (adventitiœ obligationis), such as the rights of property, the rights of the family, and the state, into which men entered, and that by contract, to prevent the war of all against all. Here Pufendorf pays homage to the errors of his time; but he decidedly opposes them in his conception of the church, which, as a corpus mysticum, should wield no immediate, and particularly no political, supremacy in the state. The church may appoint teachers of its own faith; but it is subject to the state, like any private society, and in things not spiritual it should be deprived of all coercive power.
—Nevertheless, other ardent champions of the old theory soon appeared, to oppose these innovations, at the close of the seventeenth, and beginning of the eighteenth, century, in Seckendorf and Alberti, and the two Cocceji, as well as in the works of their pupils, who directly based both law and morals on the will of God, as revealed in the ten commandments. Christian Thomasius (1655-1728) was a real standard-bearer on the field of progress, just as he was the devoted adversary of the trials for witchcraft, and the first who lectured on the law of nature in the German language. At his first appearance, while he still adhered to Grotius and Pufendorf, he was goaded, like Luther, by the polemical writings of his numerous and violent adversaries, into much more extreme views. His point of departure is a strict separation of religious-moral doctrine from natural law. The former, he claims, has its origin in divine revelation, the latter in human reason, and the more reverently we grant the precedence to the former, within its own sphere, the more marked will be the independence of the whole sphere of law.
—Leibnitz (1646-1716) was not so important an element in promoting the development of the philosophy of law as was Thomasius, who, both in a positive and negative manner, imparted a powerful impulse to that development; but Leibnitz was a most powerful force, by the general spread of his ideas, broadly developed by Wolff (1679-1754); ideas which ruled the literature and the whole world of enlightened German thought, in the period of its aufklärung (enlightenment). To Leibnitz, justice is the virtue which preserves the normal condition of man's social life. The pre-established harmony which keeps the universe together, reveals itself, in the community of men, as law, hedging in the institutions of marriage, of paternity, the relation of master and servant, the commune and the state. In this sense, to obey God and to obey reason are one and the same thing; and the conviction of the binding force of the law does not come through the state contract or political contract or social contract, but is given with the idea of law itself.
—Still, it was not these deep views themselves, but rather the theistic-rationalistic ideas of an ethico-pedagogical kind, that governed the German aufklärung (enlightenment), through the broad interpretation and amplification of Wolffian dogmatism.
—But even this harmless system of German rationalism, on many points, calls to mind the dangerous theories which, during the same period, abounded in the French éclaircissement (enlightenment), the attempted realization of which was destined to shake and startle the world in the French revolution.
—In France the thoroughly corrupt moral-political and politico-economical state of things, toward the close of the sixteenth century, had, in a Montaigne, engendered absolute skepticism as to the power of the moral law; and the fermenting putrescence of that state of affairs finally found a natural outlet in the French revolution.
—In fact, toward the middle of the eighteenth century, the culture of the time placed itself in open and avowed opposition to the prevailing conditions in the state, the church and society, from which that culture itself had sprung. The rationalism of the encyclopædists, influenced both by the English moralists and the materialistic tendencies of the natural sciences, the study of which was renewed, proclaimed interest (l'intérêt) the principle of all action, even of all noble action, the latter also, it was claimed, being due to an enlightened self-love. In order to protect the practical results of this view, men formed society, and created the state (D'Alembert, Didérot); society and the state being but the outcome of the nobles passions of men, such as ambition, pride and love of glory. Thus Voltaire; but this author here drew an illegitimate conclusion, because from the above starting point, the state would manifestly owe its origin to the abject passion of fear. Nevertheless, Voltaire's practical efforts to effect an improvement in the cruel penal code of his time, possess a higher value than his theory. To effect that improvement, he worked in connection with the philanthropic club Il Café of Milan, particularly with Beccaria, who, in his book Dei delitti e delle pene, opposed with all his might both torture and capital punishment. Yet this he did from the point of view of the theory of contract, and by the use of arguments which would altogether deprive the state of the right of punishment. The circle that gathered round Baron Holbach, and the writings that emanated from it, revealed the materialistic tendencies of this period of "enlightenment." Rousseau, however, was the real harbinger of the revolution. His whole frame of mind, his absolute rupture with history, his leveling of all existing institutions, his heedless neglect of all experience, his bold construction of systems on entirely new ground, were destined soon to pass from theory into the practice of the French people. Rousseau expressly declares, that it is impossible to examine whether there ever existed a primitive state of man; but that, in reality, man's primitive condition consisted in the equality of all in a state of barbarism. In that state there was neither right nor wrong nor property. The first appropriation of things produced inequality, and thus kindled envy and ambition. The social contract was concluded, in order to control the outbreak of these passions. Each individual entered into this contract with each other individual; and thus in every act of the state every individual should be consulted; and so the English are really free only at the moment of the elections to parliament! Sovereignty is only bestowed conditionally and revocably; and when authority becomes despotic, that is, when it acts arbitrarily, it thereby cancels the social contract, and re-establishes the state of nature; in other words, it is not the people, but the government, that is in revolution. Despotism is by its very nature a revolution, and the uprising of the citizens is only the result of that revolution. The political consequences of these doctrines afterward appeared in the statesmen of the revolution, in Sieyes, to whom, as to Mirabeau, the third estate, which hitherto had been nothing, was everything. Thomas Paine proclaimed the most advanced tenets of this revolutionary philosophy. For him, even the Jacobins were not sufficiently advanced in their ideas; he regarded all government as an evil, and called monarchy and the papacy the inventions of the devil. His work on the rights of man was directed against the great English statesman Burke, who, with a rare abundance of superior political wisdom, combated the abstract theories of Rousseau and the revolution. The effect of this whole school was doubtless a destructive one. Still, in one man at least, who otherwise completely belonged to it, Montesquieu, negation is found connected with the work of construction, not so much as regards what he has to say on the philosophy of law, in which he was rather insignificant, as in his method, and in one main result of that method. While Rousseau intentionally turned his back upon history, Montesquieu sought to base his philosophical reflections on the state, and its constitution on historical experience. The wholesome result of this sound method was, that while Rousseau arrived at only abstract systems, devoid of real political vitality, Montesquieu, by his historical investigations, was led to the English constitution, and thus earned for himself the lasting merit of having transplanted the main traits of English constitutional monarchy to the continent of Europe, of having made it familiarly known there, and of having endeared it to the nations of the continent.
—At the same time there arose in Germany a kindred historical tendency. Justus Henning Böhmer had energetically combated the traditional doctrines of the law of nature concerning the political or state contract, as well as the theological doctrine in reference to the immediately divine origin of kingly authority. These doctrines, he maintained, were contrary to all history. The historia juris proved manifestly, that the foundations of states and the organization of law were human institutions gradually developed, and which God had only permitted as he had all other things.
—About the middle of the eighteenth century an enlarged intellectual activity in all the exact sciences appeared throughout Germany, chiefly in connection with the youthful vigor of the university of Göttingen (founded 1734). To this activity was added the careful editing and criticism of long-neglected juridical materials, side by side with the Roman law, which hitherto had alone been taken into consideration in the law of nature: we mean German law. The activity of the elder Germanists who were at work upon the history of the German empire and German law, and on the antiquities and amenities of the German law, recall the life which then stirred in this field, and which prepared the way for the new historical school. At the time, this tendency had certainly no direct influence on the philosophy of law. The latter still dragged along the road of the old Wolffian law of nature in a series of numberless compendiums, copied one from another; and when the mighty blow followed—the criticism of Kant, which overthrew all such dogmatism—it did not proceed from the positive science of law, or from historical science, but from the philosophy of the school. The consequence was, that the effects which followed were also limited to the philosophy of the school.
—Abstract philosophy, through pure construction, had, in the science of law also, been carried to absurdity. The great systems of subjective idealism, that followed the criticism of Kant, notwithstanding many subtle aperçus in detail to be found in Hegel, Fichte and Schelling, finally turned out to be only ingenuous mental aberrations. On the contrary, the new historical school, from the very outset, was far from seeking the creation of a philosophy of law. Hugo, Savigny, Puchta, Niebuhr, W. von Humboldt, Eichborn and Grimm, by an exhaustive investigation into the nature of history, language, myths, and the history of law, obtained a far deeper knowledge of the principles, nature, development and life of the law. After the fall of the great a priori systems, the results of this historical school, although not as yet clothed in the language of a genuine philosophy of law, stepped; as it were, ipso jure, into the place of all those exploded theories. In fact, the results of this historical school, and particularly its methods, have become the necessary starting point of all future philosophy of law. The immediate task of that philosophy will still long consist in appropriating, and shaping into the form and language of philosophy, the results that have been obtained by this historical school.
—As regards Kant, it should be remembered that he refuses to reach the absolute by the "theoretic reason," or by the cognitive faculty; but, in the field of practical reason, he assumes God as a postulate, through which he and all his followers derived religion from ethics in the same way that ethics were in the middle ages derived from religion. After the manner, and partly in the very language, of his predecessors, from Thomasius to Wolff, Kant finds the distinction between legal and moral duties in the external coercive power of the law. This constitutes the epitome of all the norms, under the presupposition of which, the freedom of all individuals is compatible with a common law for all. Kant is certainly profound in basing the rightfulness of legal coercion on the reason of the law; and every one, who himself is endowed with reason, may inwardly, and on that very account also outwardly, be compelled to submit to the coercion of the law.
—We need not here enumerate the multitude of dependent disciples of Kant, who for a length of time concerned themselves with the law of nature. It must be borne in mind, however, that a juridical mind like Feuerbach's was at the beginning captivated by Kant's ideas, which ruled the entire culture of the epoch. Soon, however, he strove to sever law from its identification with the moral law. He maintained the existence of a distinct juridical faculty in man, side by side with the moral faculty; and the idea of freedom, which plays such an important part in the system of Kant's science of law, he deliberately banishes from law into the moral domain, so that he wrongly bases his whole system of penal law on a refined theory of psychological coercion, and punishes crimes above all things according to the measure of their danger.
—In Fichte, on the contrary, the preponderance of the practical reason transforms all philosophy, and particularly the theory of law, into ethics. Not only religion and morals are identified, but, in the later stage of his philosophy, law becomes a means to the ends of morality. In the compulsory state there prevails only the lower freedom of the law, but in his reason-state the higher freedom of culture. This reason-state, which, as a moral institution, has to realize the virtue of justice, according to Fichte, is practically the hermetically closed commercial state, in which, however, as in Plato's ideal republic, all freedom of individual life is lost. In the Hegelian system, by the side of monstrous distortions of juridical or legal ideas, there are to be found several clever ideas, as, for instance, in the penal law. It is well known that in this system the double-edged principle, "All that is, is rational," has been misused to support the extremest revolutionary doctrines, and to defend the most corrupt political systems. We must also lay stress on the fact, that all this ingenuous philosophy succumbed to the error of its methods; the a priori construction of all reality from "pure" ideas, with the apparent neglect of all experience, and of the sciences based on experience. At the very time that the Hegelian philosophy of law, religion and history, and Schelling's philosophy of nature, marked the failure of these bold a priori constructions, the above-named founders of the historical school had obtained important results, through more diligent and thoughtful detailed investigations in the field of law, tradition, religion, language and all the intellectual sciences. These results have since become lasting achievements, not only of the historical and positive, but also of the philosophical, treatment of these sciences.
—Before we pass to the exposition of the principles of the historical school, and try to apply them to philosophy, we must at least mention certain groups, that are equally distant from the great idealistic systems, and from the historical tendency, but still in many respects related to both, though more closely connected with the current of political and social thought. The spirit of restoration and reaction in the state and the church, which, after the over-throw of the French revolution, ruled, in Napoleon, the whole European continent, called forth in Germany a series of phenomena, which collectively may be described as the romanticism of the philosophy of law. These phenomena are closely connected with the romantic tendency in art and culture, and borrowed many of their weapons from the conservative side of the idealistic systems, as well as from the historical school.
—In this manner Karl L. von Haller, with stubborn logical methods, would restore the whole mediæval idea of the state; that is, he denies that the idea of constitutional law is different from that of private law. The state is, according to him, nothing but a great landed domain; the king is the proprietor of this domain; the citizens are his servants or tenants; the taxes are rents; and war is but the private feud of the lord of the land. In this patrimonial state there naturally exist no rights belonging to the citizen. With Fr. Schlegel and Adam Müller this state romanticism inclined toward the church. In Steffens and Baader this same tendency was closely connected with the ideal mysticism of Schelling.
—This school closes its preliminary stage of development with the philosophy of law of Julius Stahl. This philosophy appeared with greater pretensions, and displayed more correct dialectics and subtler methods of demonstration. By leaning toward the historical school, it somewhat disguises its real purpose, but like Haller's restoration, it was really nothing but a return to the middle age, a relapse into the theological doctrine of the state taught by Pufendorf and Thomasius; his doctrine of the state begins as orthodox theology.
—Socialism forms an extreme contrast to this German romanticism of the state. At a much earlier period it had been acclimatized in France; but it grew most luxuriantly during the period of the restoration.
—Even before the time of the encyclopædists, Morelli had called private property the source of all evil. According to him, the earth, given undivided to man, should remain undivided. Labor should be distributed among men according to their strength and capacity, and the product of that labor according to the wants of each, the surplus sold, and what was obtained for it divided equally among all.
—But to maintain this state of things, legislation was, as a matter of course, needed; a legislation which, as in the case of Lycurgus, Plato and Fichte, would destroy all liberty. The right to labor was then recognized by the views which at that time prevailed, and ruled in all France, the views of the physiocrates, Mirabeau, Quesnay, Gournay, and even of the moderate Turgot. During and after the revolution, these ideas reappeared, with stormy energy, in Babeuf, Darthé, Marechal, Buonarotti, Saint Simon, Bazard, Fourier, Cabet, and Proudhon. In Le Maistre and Lammenais they were associated with the ecclesiastical, religious romanticism of the state. The former regarded the papacy as the highest international tribunal, while the latter, with a generous but very unstatesmanlike enthusiasm, dreamt of the reestablishment of the state on the basis of the early Christian community. We may also mention briefly other chief tendencies of the doctrines of the state in France, which yet are not originally French. The old liberals and old constitutionalists (Constant, Guizot, etc.,) as Montesquieu had once done, inclined toward the English constitution. Others yet sought to introduce and naturalize in France the methods and results of German philosophy, particularly of the great idealistic systems (as Cousin), partly in order to combat materialism, which, together with the eager pursuit of the natural sciences, seems to preponderate in modern French culture.
—We are not as yet able to pass judgment, from an historical point of view, on the multitudinous tendencies of the German philosophy of law since Hegel's time, tendencies which are still in full course of growth, and greatly at variance among themselves. Nevertheless, any philosophy of law that wishes to raise itself to the actual level of the science of law, can not henceforth afford to ignore the methods or the fundamental principles of the historical school referred to above.
—3. Chief Features of the System. The main result of the above-mentioned development, as it is represented in the new historical school of legal science on the continent of Europe, and of philosophy, relates, in the first place, to the methods, and then to a few of the chief features, of the matter of the philosophy of law. As in all the departments of philosophy, so also in this, it has become evident that "pure speculation," which pretended to construct phenomena a priori, without the aid of historical experience, never existed. The task of the philosophy of law is not to evolve the phenomena of the idea of law, as it were, prophetically out of that philosophy, but, by the aid of the inseparable forms of synthetic and analytic thought, to investigate the principles of law, after a careful historical and experimental study of the matter of law itself. A correct knowledge of law, especially of the history of the law of different nations and the comparative history of law, must henceforth be the basis of all philosophy of law; but that knowledge certainly will not supplant the law, as is supposed by the one-sided adherents of positivism and of the historical school.
—We find the realization of the idea of law in all its multitudinous forms of manifestation, by way of experience, in history. The first task of the philosophy of law is to investigate the cause of this phenomenon, and to ask: What is properly the fundamental idea that distinguishes this from other kindred phenomena? and how is it connected with these latter phenomena? We must further inquire: Since, wherever men live in society, at least some traces of a juridical organization are to be found; since law, no less so than language, religion, morals or art, seems to be a necessary attribute of human nature: wherein lies the necessity of the idea of justice for mankind?
—Let us start with an approximative description of law, which does not pretend to be a definition. We may describe law provisionally as the sum total of general regulations, under which particular cases may be subsumed with a certain degree of necessity.
—This at once reminds us of the fundamental quality of all human thought in itself. All our thinking, as it moves within the logical forms of judgment, notion and deduction, and in deduction in the form of major premise, minor premise and conclusion, is really but the subsumption of particulars under the head of a higher generality. Human speech, with which our thinking is indissolubly connected, and which is the essential form of our thinking, has its essence in the construction of unities from multitudinous phenomena of the same kind. All speaking and thinking is, accordingly, a seeking for generalities, for unity instead of multiplicity. The deduction, the syllogism, is, even more manifestly than the judgment, a subsuming of a particular under a general.
—And all our research, within the domain of mind and of nature, is nothing but a seeking for unity, generality, necessity, in place of the apparent multiplicity, particularity or accidentality of the phenomena. In the domain of nature we are not satisfied with the sight of the innumerable particular phenomena presented by falling bodies; we seek for unity, generality, necessity, in all these instances; that is, we seek for their "law," and speak of the law of gravity. In the department of mind, we are not satisfied with the impressions made by certain natural phenomena or human works upon our imagination. We try to discover why all these like phenomena produce the like impression that we call "beauty"; that is, we seek for the law of beauty. All human research is, therefore, a search for laws; that is, a search for a generality which has the character of unity, and under which particular phenomena are necessarily subsumed. When we have discovered a law in this sense, our thinking is at once satisfied, but not before. For the law of our thinking itself (the general, uniform, necessary essence of all our thoughts) consists precisely in seeking for laws, or for a necessary generality. Thus, the natural sciences seek for "laws of nature," and the mental sciences for "laws of mind." Man has divided the multitude of phenomena into two large hemispheres, according to the standard of their immediate, sensuous perceptibility, mind and nature. But the human mind not only wishes a law for each of these halves, it not only aspires after one law of nature appearing in all the laws of mind; but it also asks for unity above and within this duality. As the human mind embraces all that is conceivable, the world of nature and that of mind, in the idea of the universe, it rises to the idea of and the demand for an absolute law, a world-law of unity and necessity in the universe.
—In this manner, having recognized that law also is general regulation, under which particulars may be subsumed with necessity, we can understand the inner connection of the idea of law with the whole intellectual life of man, and its inner ideal necessity for man. To prove this and bring it out into relief, is an important task of the philosophy of law. We have seen how, since the days of Plato, through the age of scholasticism, and of the teachers of the law of nature, down to our modern socialists, law and the state have almost always been conceived, as the result of external compulsion, as a mutual assurance of life and property against murderers and robbers. It can not be denied, that this external compulsion exists; but it does not exist alone. Men are led not only by external motives to law and the state; an ideal necessity impels them to regulate their social life, its manifold relations and phenomena, according to a uniform, general rule, necessarily demanded by reason; that is, according to a law.
—The natural and intellectual constitution of man teaches us that he is intended for society, for living together with his equals. Natural instinct compels the two sexes of the human species to come together, not temporarily, like other creatures. The helplessness of man during infancy necessitates a permanent association of father and mother, and the human family is specifically different from that of other animals, just as human speech, which also presupposes a lasting community among men, is different from the inarticulate sounds of other animals. Man can not even exist, still less develop his native faculties, without utilizing in his service a number of natural objects, things and goods, to a far greater extent than all other animals. He needs not only food and shelter; clothing, weapons and tools of every kind are indispensable to his existence. But, since he lives and must live, in common, in marriage, in the family, the clan, the commune, etc., and as each man has an equal need of everything, conflicts concerning the outward relations of individuals to things or goods are unavoidable. There can be no doubt that it was the external necessity of preventing or quickly terminating conflicts of this kind, which constituted the real external compulsion that urged man to create law and the state; but it is a radical error to derive these institutions exclusively from that external compulsion. Human society demands a peace institution or peace order, but it is not satisfied with one that merely insures order. It requires a rational order of the peace. In this lies the ideal, intrinsic root of the law. Man does not wish the law, as external compulsion, as a purely arbitrary, compulsory ordinance or order. In this, as in every other domain man possesses the faculty, and feels the want, of seeking and finding the one general and uniform order which presides over the variety of phenomena, and which appears to him rationally necessary. The law of every people is the effort of a human community to find a rational peace order. Such laws embrace the cardinal principles, which, according to the ideas of each people, should regulate the acquisition of wealth, its exchange, the loss of goods or claims, the punishments for the unlawful violation of these same laws, and the proofs of such violation; or, in other words, everything which conditions social life, based on common interests. If this order of peace is violated, the offended person feels, that not only his individual interest has been violated, but also the general reason, under the protection of which his right is placed. And, since those who are entitled to the same rights regard the violation of the right of an individual as a violation of the order of peace or of the peace regulation, which, in the common conviction of all, is alone able to render life in society possible in a rational way, all feel, as does the offended individual himself, the necessity of restitution, and, according to circumstances, of satisfaction. As a result of these considerations we have the following definition: Law is the rational ordering of the peace of a human community in what concerns the external relations of the members thereof to one another and to things.
—Law is the rational ordering of a human community. This characterizes it as a work of the human reason, and precludes its derivation from supernatural revelation. We say law is the ordering of a human community, but not of the human community; in other words, there is no law of nature, no abstract, model law, equally applicable to all times and to all peoples. The idea of law is certainly common to all nations and to all humanity. But, just as there is no abstract universal art, there is no abstract absolute law. The universal human idea of law appears only in the totality and in the succession of the laws of separate nations, in the same way that humanity is not a dead abstraction, above those communities of men called nations, but appears in the totality of nations. The difference of national characters appears in the difference of the laws, precisely as it does in the difference of the arts, languages and religions of the different nations. The law of every nation is the outcome of its natural and historical antecedents, and of those antecedents which accorded with its national character. It should be in harmony with the national character and the actual condition of the civilization of the country. It grows, at first, unconsciously, spontaneously, necessarily, as a custom. Originally, a nation no more made its laws than its language.
—It has been objected to this conception of law of the historical school, that it leads to complete quietism. For it is said, if the law of a nation necessarily grows out of its aggregate character, individuals can do nothing but let it grow, and there can be no such thing as progress or learning. But the objection does not hold. So far as it applies at all, it is no objection; and so far as it is an objection, it does not apply. At all events, even in immediate stages of culture, the law, on the whole, is changed rather unconsciously than with a conscious intention. But if in a nation thought advances with culture and the complexity of its life, it naturally, also, affects the matter of the nation's law; it then consciously seeks to change and to improve that law, as it seeks change and improvement in every other sphere. As the law is always the mirror of the condition of a nation, if a nation far advanced in culture did not reflect upon its law, it would be as unnatural as if the "thing" men of the primitive forests of Germany had come to their judgments and decrees by means of the philosophy of law.
—This also disposes of the objection that, according to the historical conception of law, the learning of nations from each other, and their progress, are impossible. There have been dreamers, who, without any very profound knowledge of history or of human nature, have gratuitously supposed that the history of the world would constantly progress in a straight line; that, at some distant day, a universal law of humanity would supplant all the special laws of the different nations; and that this is to be the ultimate end of the world's history. But this will never happen. It is as impossible as the existence at any time in the future of an abstract humanity without national differences, or as that there should exist a universal language of humanity. That comfortless condition of absolute uniformity is excluded by differences in race, climate, soil, etc., which can never be entirely effaced by any degree of civilization. But our historical conception of law does not exclude the idea, that, in proportion as the civilization, interests and the common views of nations grow more like one another, their ideas of law will also grow more similar. But even then the similarity of the laws of the different nations would only be the mirror of their altered social conditions. This similarity of laws will probably be reached at a not very distant day, in those departments of law which by their nature belong more to the community of nations than to their separate life. Thus, there already exists an international law extending over the whole of Europe, and even beyond its boundaries; and it is not improbable that the most civilized nations will shortly agree in their views in regard to the laws relating to commerce, bills of exchange, copyright, the post, railways, etc. Yet this can scarcely happen as to laws relating to the family, and to real property, to say nothing of the fact that among many nations (as mountain and seacoast peoples) many departments of law will either necessarily exist, or necessarily be wanting. And so nations may learn law as well as art from one another. In so far as wherever men live together there are certain legal relations (those created by contract, for instance), which must be judged by a logic inherent in these relations, a less developed nation, possessing a younger civilization, may very well adopt the truths which have been discovered by another nation with a more ancient civilization. The most important instance of this phenomenon is the acceptance of the Roman law in Germany. As the Germans had received the whole of Græco-Roman culture, it was very natural that they should also adopt the Roman law—that most important of all the elements of Roman culture; and thus far that acceptance has proved wholesome and instructive. But it was unnatural that that bit of ancient civilization should be received by Germany in a way different from the rest, or absolutely; that is, not transferred into German views because capable of being assimilated with those views, but simply because and as it was written in the corpus juris. This unnatural process was only possible under the influence of the idea that the German empire was but a continuation of imperial Rome. This intrusion of Roman law met with obstinate popular resistance, and we are convinced that all the elements of Roman law which have not been assimilated will speedily again be rejected.
—As our definition excludes the law of nature, and an illusory universal human law in the future, it also determines the warmly contested relation of law to the state. It is self-evident that the human community, the peace of which the law orders or regulates in a rational manner, according to the views of such community, is uniformly the state. The real, normal boundaries within which the developed life of the law regularly moves, is the circle of the state. But although the perfect life of the law is developed only in the state, attempts and primitive creations of the legal instinct, in laws relating to things, the family, contracts and punishments, are to be found, even before the state, in the clan, etc., out of which the state historically and gradually grows. The peoples of many states may, for definite particular purposes, permanently or temporarily enter into association, and conclude commercial treaties, alliances, international treaties of every kind, and reach a kind of ordering of the peace between several kingdoms. But it only shows how clearly the individual state is the normal circle of the community of law, that communities which are smaller or larger than the limits of an individual state, frequently lack the foremost requisite of the life of the law; a judge, and coercive power to enforce the sentence. The patriarchal head of the ante-state clan only too often substitutes his own peremptory decree for the sentence of the law; and the lack of a tribunal, as a constantly reliable executive power, constitutes the weak side of the law as soon as it extends its circle over several states. International law has hitherto in vain sought for a tribunal, which, in case of a violation of the law, might, in a reliable manner, enforce the fulfillment of treaties.
—Since the law regulates only the external relations of men to each other, and not the internal relations of men to God or to their fellow-men, it follows that the law should not invade the domain of religion or morals; but it follows, also, that religion and morals should not encroach on the domain of the law and of the state. Law and the state are their own proper ends, just as religion and morals are. They are independent realizations of ideas which are as essential to human reason as religion and morals. For this reason, since they all are but different phenomena and tendencies of one sole power, there exists in principle no opposition or contradiction between them, but only complete harmony. Only in appearance can conflicts arise between them, as when either the state chooses to dictate articles of faith, which is necessarily free, or when the church prescribes a definite form of faith as a condition precedent to the enjoyment of civil rights. In all these domains of the free inner life of man, in religion, science and art, the state has only a right to command or prohibit, when religion, science, etc., by some external manifestation, effect a disturbance of the peaceful order of the state; when, for instance, a sect refuses military service, or excites its members to the extermination of the adherents of creeds other than its own. Whenever these invisible forces produce visible phenomena, they at once enter the domain of law, and give the law occasion, in their own interest even, to create new forms and promulgate regulations. Thus, even the most spiritual things, as the thought of the artist or author, as soon as they enter the circle of outward interests, require legal regulation (copyright). The whole law as regards religion may be summed up thus: the state by no means assumes an indifferent attitude toward religion, but should allow complete religious freedom, in the sense that the state should not interfere with the existence of any religion not dangerous to morals or to the state; but, on the other hand, the state should not concede an influence on civil rights to any religious creed.
—In like manner, morals and law are neither hostile nor indifferent to each other, but they are independent each of the other. When the law draws within its domain certain duties, the performance of which should be dictated entirely by the heart, as, for instance, gratitude, as did the Athenian law of old, it becomes guilty of an unwarrantable trespass, which can be productive of no good either from a legal or moral point of view. When, on the other hand, the canon law and mediæval secular law punished purely moral transgressions with external and even political penalties, they were guilty of a similar offense.
—Although in principle there does not exist any opposition between morals and law, still, as history teaches, such an opposition may easily exist in appearance. When, mainly because of a diseased condition, a nation obstinately desires to retain and keep up forms and regulations perfectly suited to a past epoch, but which no longer answer to the needs of advanced progress, or to the new conditions of the nation; which are kept up, perhaps, because a fraction of the nation by so doing satisfies a selfish interest, although the national life requires a change of the old forms: in all such instances there occurs a conflict between formal but antiquated law, and living, moral forces, which have not yet become law. Instances of this, well known to all, were the conflicts between the patricians and plebeians in Rome, of the noble families and the guilds in the cities of the middle ages, during the French revolution, etc. In the greater number of such cases the champions of formal law believe themselves to be morally justified in their opinions. Not only selfish interests, but bona fide convictions, are frequently brought face to face with each other. The obduracy of the one and the heedless passion of the other reach a climax, when the strain becomes unendurable, and a violent change follows. In such a case the right of revolution, the jus revolutionis, in a juridical sense, has been appealed to. But this is not admissible; for no state can admit a juridical right to a violent breach of formal law, without self-abrogation. Here we must carefully distinguish between law and morals. No careful student of law and history will deny to a people the moral right of self-defense against the pressure of obsolete formal law which has become unendurable. The law should be a rational regulation or ordering of the peace. If it is an irrational ordering or regulation, if its pressure becomes unendurable, and if a redress in a legal way becomes impossible, it would be the height of folly to demand that the people should perish, in order to keep merely formal law in existence. On the contrary, in such case the people have authority morally to resort even to forcible self-defense, and the champions of obsolete law would here act immorally, or, at least, irrationally. But, in truth, every revolution is and must remain a breach of formal law, although morally we may regard it as entirely justified. A breach of the law under all circumstances is a catastrophe, threatening to the existence of the state, or temporarily even suspending its existence; for we must guard against the dangerous principle, that exclusively formal law is juridically law no longer. That principle conflicts with the essence of all law, and makes the existence of the state dependent on the whims of any discontented party. The moral justification of revolution also is a dangerous theory; but, at the same time, it is the incontestable teaching of philosophy and of history. That teaching presupposes that, objectively, there exists a case in which self-help is unavoidable, that the pressure of formal law has become unbearable, and that a peaceful settlement has become impossible. If these conditions be assumed inconsiderately to exist, then not with the correct theory, but with the incorrect application of the theory in practice, must the moral-political responsibility rest.
—We shall now briefly touch on one of the most important questions regarding the nature and character of the state. It was in keeping with the entire Kantian conception of morals, law and the state, that it considered the latter merely as a great institution for the enforcement of the law. The state, according to that conception, established courts, and, if necessary, carried out their judgments by force. This mere Rechtsstaat (constitutional state), by the political movements in Germany, which began under the influence of the critical philosophy, was used as a party shibboleth in a two-fold sense, in that country. The Rechtsstaat in Germany was the modern state, as it, in connection with the English and still more with the French revolution, contrasted with the mediæval feudal and patrimonial state. The modern state, with its ideas of citizenship, the separation of the powers, checks and balances, popular representation, political rights of freedom, security of the person and of property, freedom of conscience and of the press; with its independence of the courts of law—this modern state was emphatically called the Rechtsstaat, and formed a contrast to the negation or diminution of these ideas in the state. But, in the second place, as a contrast to Polizeistaat (police state) German radicalism required also a pure Rechtsstaat in another sense. It maintained that the undue tutelage and excessive supervision which the bureaucratic state introduced into all human concerns, was really no part of the task of the state; and Kant's authority was appealed to to prove that the state was but an institution in the nature of a court of justice. Hitherto, in fact, the interference of the state in the activity of society, of economy, trade, industry and culture, had been disastrous instead of profitable. And so all right of interference of the state in these several departments was denied.
—It need not be said that the philosophy of law looks upon the modern state as a Rechtsstaat only in the first of these senses, and as opposed to the feudal state. In the second sense of the term, however, the philosophy of law can not sanction the mere Rechtsstaat. It assigns to the state other tasks besides dealing out justice in civil and criminal cases. The abuses of the administration should not lead to the rejection of all administration. The task of the state is to realize the idea of legal right, the idea of law; but law is the regulation or ordering of the peace in all that concerns all the external relations of men to each other, and to things. But this ordering of the peace is in no manner confined to the field of civil and criminal law, or the law relating to private and public rights. Wherever men enter into external relations to each other, and to things, a rational ordering or regulation is needed, which must aim not only at the preservation of the actual state of things, but progress and constant improvement. An ordering which aims only at preserving and protecting, and not at developing and improving, can not be called a rational ordering.
—Law is an idea essential to the human mind. It can not be supplanted by another any more than religion can be by art. That idea necessarily requires an external manifestation and a power in which to embody itself. That power is the state.
—LITERATURE. The old founders and teachers of the law of nature contain comparisons of older views and of contemporaneous polemical writings; in other words, they afford us the first materials for a history of the philosophy of law. Thus, we have the Prolegomena of Hugo Grotius, and the Specimen Controversiarum of Pufendorf. At the close of the seventeenth century we meet with special works on the history of the law of nature, historiœ juris naturœ, by Buddeus, 1695; Ludovici, 1701, 1714; Thomasius, 1719. We may mention: Schmauss, Neues System des Rechts der Natur, Göttingen, 1754; Ompteda. Literatur des natürlichen und positiven Völkerrechts, 1785; Henrici, Ideen zur wissenschaftlichen Begründung der Rechtslehre, Hanover, 1810; Welcker, Die lstzten Gründe von Recht, Staat und Strafe, Giessen, 1813; Fr. von Raumer, Geschichtliche Entwickelung der Begrifpe von Recht, Staat und Politik, Leipzig, 1826, 1832; Stahl, Rechtsphilosophie, Heidelberg, 1829, 1847; Warnkönig, Rechtsphilosophie, Freiburg, 1839, 1854; Schmitthenner, Zwölf Bücher vom Staat, Giessen, 1839; Rossbach, Die Perioden der Rechtsphilosophie, Regensburg, 1842; Die Grundrichtungen in der Geschichte der Staatswissenschaft, Erlangen, 1848; Lentz, Entwurf einer Geschichte der Rechtsphilosophie, Danzig, 1846; Ahrens, Philosophie des Rechts und Staats, 4th ed., Vienna, 1850, 1852; Hinrichs, Politische Vorlesungen, 1842, Geschichte der Rechts und Staatsprincipien seit dem Zeitalter der Reformation, Leipzig, 1849, 1852; Bluntschli, Allgemeines Staatsrecht, geschichtlich begrundet, 3d ed., Munich, 1863; Dahlmann, Die Politik auf den Grund und das Mass der gegebenen Verhältnisse zurückgeführt, 2d ed., Leipzig, 1847; Schilling, Lehrbuch des Naturrechts, oder die philosophische Rechtswissenschaft, Leipzig, 1858; Hildebrand, Geschichte und System der Rechts-und Staatswissenschaft, 1 vol., Das classische Alterthum, Leipzig, 1860; Röder, Grundzüge des Naturrechts, 2d ed., Leipzig, 1860; La Salle, Das System der erworbenen Rechte, Eine Versohnung des positiven Rechts und der Rechtsphilosophie, Leipzig, 1860; Thilo, Die Theologisirende Rechts- und Staatslehre, Leipzig, 1851; Trendelenburg, Naturrecht auf dem Grunde der Ethik, Leipzig, 1860. Compare POLITICS, NATURE AND CHARACTER OF, and POLITICS, SCIENCE OF.
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