The Philosophy of Law/Part 1/Chapter 3

36. How and what Acquisition is subjectively conditioned by the Principle of a Public Court.
, understood simply as that Right which is not statutory, and which is knowable purely a priori, by every man's Reason, will include Distributive Justice as well as Commutative Justice. It is manifest that the latter as constituting the Justice that is valid between Persons in their reciprocal relations of intercourse with one another, must belong to Natural Right. But this holds also of Distributive Justice, in so far as it can be known a priori; and Decisions or Sentences regarding it, must be regulated by the Law of Natural Right.

The Moral Person who presides in the sphere of Justice and administers it, is called the Court of Justice, and as engaged in the process of official duty, the Judicatory; the Sentence delivered in a case, is the Judgment (judicium). All this is to be here viewed a priori, according to the rational Conditions of Right, without taking into consideration how such a Constitution is to be actually established or organized, for which particular Statutes, and consequently empirical Principles, are requisite.

The question, then, in this connection, is not merely 'What is right in itself? in the sense in which every man must determine it by the Judgment of Reason; but 'What is Right as applied to this case?' that is, what is right and just as viewed by a Court? The rational and the judicial points of view, are therefore to be distinguished; and there are four Cases in which the two forms of Judgment have a different and opposite issue. And yet they may coexist with each other, because they are delivered from two different, yet respectively true points of view: the one from regard to Private Right, the other from the Idea of Public Right. They are: I. (pactum donationis), II. (commodatum), III. (vindicatio), and IV. (juramentum).


 * It is a common error on the part of the Jurist to fall here into the fallacy of begging the question, by a tacit assumption (vitium subreptionis). This is done by assuming as objective and absolute the juridical Principle which a Public Court of Justice is entitled and even bound to adopt in its own behoof, and only from the subjective purpose of qualifying itself to decide and judge upon all the Rights pertaining to individuals. It is therefore of no small importance to make this specific difference intelligible, and to draw attention to it.

37. I. The Contract of Donation.
(Pactum donationis.)

The Contract of Donation signifies the gratuitous alienation (gratis) of a Thing or Right that is Mine. It involves a relation between me as the Donor (donans), and another Person as the Donatory (donatarius), in accordance with the Principle of Private Right, by which what is mine is transferred to the latter, on his acceptance of it, as a Gift (donum). However, it is not to be presumed that I have voluntarily bound myself thereby so as to be compelled to keep my Promise, and that I have thus given away my Freedom gratuitously, and, as it were, to that extent thrown myself away. Nemo suum jactare praesumitur. But this is what would happen, under such circumstances, according to the principle of Right in the Civil state; for in this sphere the Donatory can compel me, under certain conditions, to perform my Promise. If, then, the case comes before a Court, according to the conditions of Public Right, it must either be presumed that the Donor has consented to such Compulsion, or the Court would give no regard, in the Sentence, to the consideration as to whether he intended to reserve the Right to resile from his Promise or not; but would only refer to what is certain, namely, the condition of the Promise and the Acceptance of the Donatory. Although the Promiser, therefore, thought—as may easily be supposed—that he could not be bound by his Promise in any case, if he 'rued' it before it was actually carried out, yet the Court assumes that he ought expressly to have reserved this condition if such was his mind; and if he did not make such an express reservation, it will be held that he can be compelled to implement his Promise. And this Principle is assumed by the Court, because the administration of Justice would otherwise be endlessly impeded, or even made entirely impossible.

38. II. The Contract of Loan.
(Commodatum.)

In the Contract of Commodate-Loan (commodatum) I give some one the gratuitous use of something that is mine. If it is a Thing that is given on Loan, the contracting Parties agree that the Borrower will restore the very same thing to the power of the Lender. But the Receiver of the Loan (commodatarius) cannot, at the same time, assume that the Owner of the Thing lent (commodans) will take upon himself all risk (casus) of any possible loss of it, or of its useful quality, that may arise from having given it into the possession of the Receiver. For it is not to be understood of itself, that the Owner, besides the use of the Thing, which he has granted to the Receiver, and the detriment that is inseparable from such use, also gives a Guarantee or Warrandice against all damage that may arise from such use. On the contrary, a special Accessory Contract would have to be entered into for this purpose. The only question, then, that can be raised is this: Is it incumbent on the Lender or the Borrower to add expressly the condition of undertaking the risk that may accrue to the Thing lent; or, if this is not done, which of the Parties is to be presumed to have consented and agreed to guarantee the property of the Lender, up to restoration of the very same Thing or its equivalent? Certainly not the Lender; because it cannot be presumed that he has gratuitously agreed to give more than the mere use of the Thing, so that he cannot be supposed to have also undertaken the risk of loss of his property. But this may be assumed on the side of the Borrower; because he thereby undertakes and performs nothing more than what is implied in the Contract.

For example, I enter a house when overtaken by a shower of rain, and ask the Loan of a cloak. But through accidental contact with colouring matter, it becomes entirely spoiled while in my possession; or on entering another house, I lay it aside and it is stolen. Under such circumstances, everybody would think it absurd for me to assert that I had no further concern with the cloak but to return it as it was, or, in the latter case, only to mention the fact of the theft; and that, in any case, anything more required would be but an act of Courtesy in expressing sympathy with the Owner on account of his loss, seeing he can claim nothing on the ground of Right.—It would be otherwise, however, if on asking the use of an article, I discharged myself beforehand from all responsibility, in case of its coming to grief among my hands, on the ground of my being poor, and unable to compensate any incidental loss. No one could find such a condition superfluous or ludicrous, unless the Borrower were, in fact, known to be a well-to-do and well-disposed man; because in such a case it would almost be an insult not to act on the presumption of generous compensation for any loss sustained.


 * Now by the very nature of this Contract, the possible damage (casus) which the Thing lent may undergo cannot be exactly determined in any Agreement. Commodate is therefore an uncertain Contract (pactum incertum), because the consent can only be so far presumed. The Judgment, in any case, deciding upon whom the incidence of any loss must fall, cannot therefore be determined from the conditions of the Contract in itself, but only by the Principle of the Court before which it comes, and which can only consider what is certain in the Contract; and the only thing certain is always the fact as to the possession of the Thing as property. Hence the Judgment passed in the state of Nature, will be different from that given by a Court of Justice in the Civil state. The Judgment from the standpoint of Natural Right will be determined by regard to the inner rational quality of the Thing, and will run thus: 'Loss arising from damage accruing to a Thing lent falls upon the Borrower ' (casum sentit commodatarius); whereas the Sentence of a Court of Justice in the Civil state will run thus: 'The Loss falls upon the Lender ' (casum sentit dominus). The latter Judgment turns out differently from the former as the Sentence of the mere sound Reason, because a Public Judge cannot found upon presumptions as to what either party may have thought; and thus the one who has not obtained release from all loss in the Thing by a special Accessory Contract, must bear the loss.—Hence the difference between the Judgment as the Court must deliver it, and the form in which each individual is entitled to hold it for himself by his private Reason, is a matter of importance, and is not to be overlooked in the consideration of Juridical Judgments.

39. III. The Revindication of what has been Lost.
(Vindicatio.)

It is clear from what has been already said that a Thing of mine which continues to exist, remains mine although I may not be in continuous occupation of it; and that it does not cease to be mine without a Juridical Act of dereliction or alienation. Further, it is evident that a Right in this Thing (jus reale) belongs in consequence to me (jus personale), against every holder of it, and not merely against some Particular Person. But the question now arises as to whether this Right must be regarded by every other person as a continuous Right of Property per se, if I have not in any way renounced it, although the Thing is in the possession of another.

A Thing may be lost (res amissa), and thus come into other hands in an honourable bonâ fide way as a supposed 'Find;' or it may come to me by formal transfer on the part of one who is in possession of it, and who professes to be its Owner, although he is not so. Taking the latter case, the question arises, Whether, since I cannot acquire a Thing from one who is not its Owner (a non domino), I am excluded by the fact from all Right in the Thing itself, and have merely a personal Right against a wrongful Possessor? This is manifestly so, if the Acquisition is judged purely according to its inner justifying grounds and viewed according to the State of Nature, and not according to the convenience of a Court of Justice.

For everything alienable must be capable of being acquired by any one. The Rightfulness of Acquisition, however, rests entirely upon the form in accordance with which what is in possession of another, is transferred to me and accepted by me. In other words, rightful Acquisition depends upon the formality of the juridical act of commutation or interchange between the Possessor of the Thing and the Acquirer of it, without its being required to ask how the former came by it; because this would itself be an injury, on the ground that Quilibet praesumitur bonus. Now suppose it turned out that the said Possessor was not the real Owner, I cannot admit that the real Owner is entitled to hold me directly responsible, or so entitled with regard to any one who might be holding the Thing. For I have myself taken nothing away from him, when, for example, I bought his horse according to the Law (titulo empti venditi) when it was offered for sale in the public market. The Title of Acquisition is therefore unimpeachable on my side; and as Buyer I am not bound, nor even have I the Right, to investigate the Title of the Seller; for this process of investigation would have to go on in an ascending series ad infinitum. Hence on such grounds I ought to be regarded, in virtue of a regular and formal purchase, as not merely the putative, but the real Owner of the horse.

But against this position, there immediately start up the following juridical Principles. Any Acquisition derived from one who is not the Owner of the Thing in question, is null and void. I cannot derive from another anything more than what he himself rightfully has; and although as regards the form of the Acquisition—the modus acquirendi—I may proceed in accordance with all the conditions of Right when I deal in a stolen horse exposed for sale in the market, yet a real Title warranting the Acquisition was awanting; for the horse was not really the property of the Seller in question. However I may be a bonâ fide Possessor of a Thing under such conditions, I am still only a putative Owner, and the real Owner has the Right of Vindication against me (rem suam vindicandi).

Now, it may be again asked, what is right and just in itself regarding the Acquisition of external things among men in their intercourse with one another—viewed in the state of Nature—according to the Principles of Commutative Justice? And it must be admitted in this connection, that whoever has a purpose of acquiring anything, must regard it as absolutely necessary to investigate whether the Thing which he wishes to acquire does not already belong to another person. For although he may carefully observe the formal conditions required for appropriating what may belong to the property of another, as in buying a horse according to the usual terms in a market, yet he can, at the most, acquire only a Personal Right in relation to a Thing (jus ad rem) so long as it is still unknown to him whether another than the Seller may not be the real Owner. Hence, if some other person were to come forward, and prove by documentary evidence a prior Right of property in the Thing, nothing would remain for the putative new Owner but the advantage which he has drawn as a bonâ fide Possessor of it up to that moment. Now it is frequently impossible to discover the absolutely first original Owner of a Thing in the series of putative Owners, who derive their Rights from one another. Hence no mere exchange of external things, however well it may agree with the formal conditions of Commutative Justice, can ever guarantee an absolutely certain Acquisition.

Here, however, the juridically law-giving Reason comes in again with the Principle of Distributive Justice; and it adopts as a criterion of the Rightfulness of Possession, not what it is in itself in reference to the Private Will of each individual in the state of Nature, but only the consideration of how it would be adjudged by a Court of Justice in a Civil state, constituted by the united Will of all. In this connection, fulfilment of the formal conditions of Acquisition that in themselves only establish a Personal Right, is postulated as sufficient; and they stand as an equivalent for the material conditions which properly establish the derivation of Property from a prior putative Owner, to the extent of making what is in itself only a Personal Right, valid before a Court, as a Real Right. Thus the horse which I bought when exposed for sale in the public market under conditions regulated by the Municipal Law, becomes my property if all the conditions of Purchase and Sale have been exactly observed in the transaction; but always under the reservation that the real Owner continues to have the Right of a claim against the Seller, on the ground of his prior unalienated possession. My otherwise Personal Right is thus transmuted into a Real Right, according to which I may take and vindicate the object as mine wherever I may find it, without being responsible for the way in which the Seller had come into possession of it.

It is therefore only in behoof of the requirements of juridical decision in a Court (in favorem justitiae distributivae) that the Right in respect of a Thing is regarded, not as Personal, which it is in itself, but as Real, because it can thus be most easily and certainly adjudged; and it is thus accepted and dealt with according to a pure Principle a priori. Upon this Principle various Statutory Laws come to be founded which specially aim at laying down the conditions under which alone a mode of Acquisition shall be legitimate, so that the Judge may be able to assign every one his own as easily and certainly as possible. Thus, in the brocard, 'Purchase breaks Hire,' what by the nature of the subject is a Real Right—namely the Hire—is taken to hold as a merely Personal Right; and, conversely, as in the case referred to above, what is in itself merely a Personal Right is held to be valid as a Real Right. And this is done only when the question arises as to the Principles by which a Court of Justice in the Civil state is to be guided, in order to proceed with all possible safety in delivering judgment on the Rights of individuals.

40. IV. Acquisition of Security by the taking of an Oath.
(Cautio juratoria.)

Only one ground can be assigned on which it could be held that men are bound in the juridical relation, to believe and to confess that there are Gods, or that there is a God. It is that they may be able to swear an Oath; and that thus by the fear of an all-seeing Supreme Power, whose revenge they must solemnly invoke upon themselves in case their utterance should be false, they may be constrained to be truthful in statement and faithful in promising. It is not Morality but merely blind Superstition that is reckoned upon in this process; for it is evident it implies that no certainty is to be expected from a mere solemn declaration in matters of Right before a Court, although the duty of truthfulness must have always appeared self-evident to all, in a matter which concerns the Holiest that can be among men—namely, the Right of Man. Hence recourse has been had to a motive founded on mere myths and fables as imaginary guarantees. Thus among the Rejangs, a heathen people in Sumatra, it is the custom—according to the testimony of Marsden—to swear by the bones of their dead relatives, although they have no belief in a life after death. In like manner the negroes of Guinea swear by their Fetish, a bird's feather, which they imprecate under the belief that it will break their neck. And so in other cases. The belief underlying these oaths is that an invisible Power—whether it has Understanding or not—by its very nature possesses magical power that can be put into action by such invocations. Such a belief—which is commonly called Religion, but which ought to be called Superstition—is, however, indispensable for the administration of Justice; because, without referring to it, a Court of Justice would not have adequate means to ascertain facts otherwise kept secret, and to determine rights. A Law making an Oath obligatory, is therefore only given in behoof of the judicial Authority.

But then the question arises as to what the obligation could be founded upon, that would bind any one in a Court of Justice to accept the Oath of another person, as a right and valid proof of the truth of his statements which are to put an end to all dispute. In other words, What obliges me juridically to believe that another person when taking an Oath has any Religion at all, so that I should subordinate or entrust my Right to his Oath? And, on like grounds, conversely, Can I be bound at all to take an Oath? It is evident that both these questions point to what is in itself morally wrong.

But in relation to a Court of Justice—and generally in the Civil state—if it be assumed there are no other means of getting to the truth in certain cases than by an Oath, it must be adopted. In regard to Religion, under the supposition that every one has it, it may be utilized as a necessary means (in causu necessitatis), in behoof of the legitimate procedure of a Court of Justice. The Court uses this form of spiritual compulsion (tortura spiritualis) as an available means, in conformity with the superstitious propensity of mankind, for the ascertainment of what is concealed; and therefore holds itself justified in so doing. The Legislative Power, however, is fundamentally wrong in assigning this authority to the Judicial Power, because even in the Civil state any compulsion with regard to the taking of Oaths is contrary to the inalienable Freedom of Man.


 * , which are usually promissory, being taken on entering upon an Office to the effect that the individual has sincere intention to administer his functions dutifully, might well be changed into assertory Oaths, to be taken at the end of a year or more of actual administration, the official swearing to the faithfulness of his discharge of duty during that time. This would bring the Conscience more into action than the Promissory Oath, which always gives room for the internal pretext that, with the best intention, the difficulties that arose during the administration of the official function were not foreseen. And, further, violations of Duty, under the prospect of their being summed up by future Censors, would give rise to more anxiety as to censure than when they are merely represented, one after the other, and forgotten.


 * As regards an Oath taken concerning a matter of Belief (de credulitate), it is evident that no such Oath can be demanded by a Court. 1. For, first, it contains in itself a Contradiction. Such Belief, as intermediate between Opinion and Knowledge, is a thing on which one might venture to lay a wager but not to swear an Oath. 2. And, second, the Judge who imposes an Oath of Belief, in order to ascertain anything pertinent to his own purpose or even to the Common Good, commits a great offence against the Conscientiousness of the party taking such an oath. This he does in regard both to the levity of mind, which he thereby helps to engender, and to the stings of conscience which a man must feel who to-day regards a subject from a certain point of view, but who will very probably to-morrow find it quite improbable from another point of view. Any one, therefore, who is compelled to take such an Oath, is subjected to an injury.

Transition
.

41. Public Justice as related to the Natural and the Civil state.
The Juridical state is that relation of men to one another which contains the conditions, under which it is alone possible for every one to obtain the Right that is his due. The formal Principle of the possibility of actually participating in such Right, viewed in accordance with the Idea of a universally legislative Will, is. Public Justice may be considered in relation either to the Possibility, or Actuality, or Necessity of the Possession of objects—regarded as the matter of the activity of the Will—according to laws. It may thus be divided into Protective Justice (justitia testatrix), Commutative Justice (justitia commutativa), and Distributive Justice (justitia distributiva). In the first mode of Justice, the Law declares merely what Relation is internally right in respect of Form (lex justi); in the second, it declares what is likewise externally in accord with a Law in respect of the Object, and what Possession is rightful (lex juridica); and in the third, it declares what is right, and what is just, and to what extent, by the Judgment of a Court in any particular case coming under the given Law. In this latter relation, the Public Court is called the Justice of the Country; and the question whether there actually is or is not such an administration of Public Justice, may be regarded as the most important of all juridical interests.

The non-juridical state is that condition of Society in which there is no Distributive Justice. It is commonly called the Natural state (status naturalis), or the state of Nature. It is not the ' Social State,' as Achenwall puts it, for this may be in itself an artificial state (status artificialis), that is to be contradistinguished from the 'Natural' state. The opposite of the state of Nature is the Civil state (status civilis) as the condition of a Society standing under a Distributive Justice. In the state of Nature there may even be juridical forms of Society—such as Marriage, Parental Authority, the Household, and such like. For none of these, however, does any Law a priori lay it down as an incumbent obligation, 'Thou shalt enter into this state.' But it may be said of the Juridical state that 'all men who may even involuntarily come into Relations of Right with one another, ought to enter into this state.'

The Natural or non-juridical Social state may be viewed as the sphere of Private Right, and the Civil state may be specially regarded as the sphere of Public Right. The latter state contains no more and no other Duties of men towards each other than what may be conceived in connection with the former state; the Matter of Private Right is, in short, the very same in both. The Laws of the Civil state, therefore, only turn upon the juridical Form of the co-existence of men under a common Constitution; and in this respect these Laws must necessarily be regarded and conceived as Public Laws.

The Civil Union (Unio civilis) cannot, in the strict sense, be properly called a Society; for there is no sociality in common between the Ruler (imperans) and the Subject (subditus) under a Civil Constitution. They are not co-ordinated as Associates in a Society with each other, but the one is subordinated to the other. Those who may be co-ordinated with one another must consider themselves as mutually equal, in so far as they stand under common Laws. The Civil Union may therefore be regarded not so much as being, but rather as making a Society.

42. The Postulate of Public Right.
From the conditions of Private Right in the Natural state, there arises the Postulate of Public Right. It may be thus expressed: 'In the relation of unavoidable co-existence with others, thou shalt pass from the state of Nature into a juridical Union constituted under the condition of a Distributive Justice.' The Principle of this Postulate may be unfolded analytically from the conception of Right in the external relation, contradistinguished from mere Might as Violence.

No one is under obligation to abstain from interfering with the Possession of others, unless they give him a reciprocal guarantee for the observance of a similar abstention from interference with his Possession. Nor does he require to wait for proof by experience of the need of this guarantee, in view of the antagonistic disposition of others. He is therefore under no obligation to wait till he acquires practical prudence at his own cost; for he can perceive in himself evidence of the natural Inclination of men to play the master over others, and to disregard the claims of the Right of others, when they feel themselves their superiors by Might or Fraud. And thus it is not necessary to wait for the melancholy experience of actual hostility; the individual is from the first entitled to exercise a rightful compulsion towards those who already threaten him by their very nature. Quilibet praesumitur malus, donec securitatem dederit oppositi.

So long as the intention to live and continue in this state of externally lawless Freedom prevails, men may be said to do no wrong or injustice at all to one another, even when they wage war against each other. For what seems competent as good for the one, is equally valid for the other, as if it were so by mutual agreement. Uti partes de jure suo disponunt, ita jus est. But generally they must be considered as being in the highest state of Wrong, as being and willing to be in a condition which is not juridical; and in which, therefore, no one can be secured against Violence, in the possession of his own.


 * The distinction between what is only formally and what is also materially wrong and unjust, finds frequent application in the Science of Right. An enemy who, on occupying a besieged fortress, instead of honourably fulfilling the conditions of a Capitulation, maltreats the garrison on marching out, or otherwise violates the agreement, cannot complain of injury or wrong if on another occasion the same treatment is inflicted upon themselves. But, in fact, all such actions fundamentally involve the commission of wrong and injustice, in the highest degree; because they take all validity away from the conception of Right, and give up everything, as it were by law itself, to savage Violence, and thus overthrow the Rights of Men generally.