The Philosophy of Law/Preface 1
' But next to a new History of Law, what we most require is a new Philosophy of Law.'—Sir Henry Sumner Maine.
Kant's Science of Right [Rechtslehre] is a complete exposition of the Philosophy of Law, viewed as a rational investigation of the fundamental Principles of Jurisprudence. It was published in 1796, as the First Part of his Metaphysic of Morals, the promised sequel and completion of the Foundation for a Metaphysic of Morals, published in 1785. The importance and value of the great thinker's exposition of the Science of Right, both as regards the fundamental Principles of his own Practical Philosophy and the general interest of the Philosophy of Law, were at once recognised. A second Edition, enlarged by an Appendix, containing Supplementary Explanations of the Principles of Right, appeared in 1798. The work has since then been several times reproduced by itself, as well as incorporated in all the complete editions of Kant's Works. It was immediately rendered into Latin by Born in 1798, and again by König in 1800. It was translated into French by Professor Tissot in 1837, of which translation a second revised Edition has appeared. It was again translated into French by M. Barni, preceded by an elaborate analytical introduction, in 1853. With the exception of the Preface and Introductions, the work now appears translated into English for the first time.
Kant's Science of Right was his last great work of an independent kind in the department of pure Philosophy, and with it he virtually brought his activity as a master of thought to a close. It fittingly crowned the rich practical period of his later philosophical teaching, and he shed into it the last effort of his energy of thought. Full of years and honours he was then deliberately engaged, in the calm of undisturbed and unwearied reflection, in gathering the finally matured fruit of all the meditation and learning of his life. His three immortal Critiques of the Pure Reason (1781), the Practical Reason (1788), and the Judgment (1790), had unfolded all the theoretical Principles of his Critical Philosophy, and established his claim to be recognised as at once the most profound and the most original thinker of the modern world. And as the experience of life deepened around and within him, towards the sunset, his interest had been more and more absorbed and concentrated in the Practical. For to him, as to all great and comprehensive thinkers, Philosophy has only its beginning in the theoretical explanation of things; its chief end is the rational organization and animation and guidance of the higher life in which all things culminate. Kant had carried with him through all his struggle and toil of thought, the cardinal faith in God, Freedom, and Immortality, as an inalienable possession of Reason, and he had beheld the human Personality transfigured and glorified in the Divine radiance of the primal Ideas. But he had further to contemplate the common life of Humanity in its varied ongoings and activities, rising with the innate right of mastery from the bosom of Nature and asserting its lordship in the arena of the mighty world that it incessantly struggles to appropriate and subdue to itself. In the natural chaos and conflict of the social life of man, as presented in the multitudinous and ever-changing mass of the historic organism, he had also to search out the Principles of order and form, to vindicate the rationality of the ineradicable belief in human Causation, and to quicken anew the lively hope of a higher issue of History. The age of the Revolution called and inspired him to his task. With keen vision he saw a new world suddenly born before him, as the blood-stained product of a motion long toiling in the gloom, and all old things thus passing away; and he knew that it was only the pure and the practical Reason, in that inmost union which constitutes the birthright of Freedom, that could regulate and harmonize the future order of this strongest offspring of time. And if it was not given to him to work out the whole cycle of the new rational ideas, he at least touched upon them all, and he has embodied the cardinal Principle of the System in his Science of Right as the philosophical Magna Charta of the age of political Reason and the permanent foundation of all true Philosophy of Law.
Thus produced, Kant's Science of Right constituted an epoch in jural speculation, and it has commanded the homage of the greatest thinkers since. Fichte, with characteristic ardour and with eagle vision, threw his whole energy of soul into the rational problem of Right, and if not without a glance of scorn at the sober limitations of the 'old Lectures' of the aged professor, he yet acknowledges in his own more aerial flight the initial safety of this more practical guidance. In those early days of eager search and high aspiration, Hegel, stirred to the depths by Kant, and Fichte, and Schelling, wrote his profound and powerful essay on the Philosophy of Right, laden with an Atlantean burden of thought and strained to intolerable rigidity and severity of form, but his own highest achievement only aimed at a completer integration of the Principles differentiated by Kant. It was impossible that the rational evangel of universal freedom and the seer-like vision of a world, hitherto groaning and travailing in pain but now struggling into the perfection of Eternal Peace and Good-will, should find a sympathetic response in Schopenhauer, notwithstanding all his admiration of Kant; but the racy cynicism of the great Pessimist rather subsides before him into mild lamentation than seeks the usual refuge from its own vacancy and despair in the wilful caustic of scorching invective and reproach. Schleiermacher, the greatest theologian and moralist of the Century, early discerned the limitations of the a priori formalism, and supplemented it by the comprehensive conceptions of the primal dominion and the new order of creation, but he owed his critical and dialectical ethicality mainly to Kant. Krause, the leader of the latest and largest thought in this sphere—at once intuitive, radical, and productive in his faculty, analytic, synthetic, and organic in his method, and real, ideal, and historic in his product—caught again the archetypal perfectibility of the human reflection of the Divine, and the living conditions of the true progress of humanity. The dawn of the thought of the new age in Kant rises above the horizon to the clear day, full-orbed and vital, in Krause. All the continental thinkers and schools of the century in this sphere of Jurisprudence, whatever be their distinctive characteristics or tendencies, have owned or manifested their obligations to the great master of the Critical Philosophy.
The influence of the Kantian Doctrine of Right has thus been vitally operative in all the subsequent progress of jural and political science. Kant, here as in every other department of Philosophy, summed up the fragmentary and critical movement of the Eighteenth Century, and not only spoke its last word, but inaugurated a method which was to guide and stimulate the highest thought of the future. With an unwonted blending of speculative insight and practical knowledge, an ideal universality of conception and a sure grasp of the reality of experience, his effort, in its inner depth, vitality, and concentration, contrasts almost strangely with the trivial formalities of the Leibnitzio-Wolffian Rationalists on the one hand, and with the pedantic tediousness of the Empiricists of the School of Grotius on the other. Thomasius and his School, the expounders of the Doctrine of Right as an independent Science, were the direct precursors of the formal method of Kant's System. Its firm and clear outline implies the substance of many an operose and now almost unreadable tome; and it is alive throughout with the quick, keen spirit of the modern world. Kant's unrivalled genius for distinct division and systematic form, found full and appropriate scope in this sphere of thought. He had now all his technical art as an expounder of Philosophy in perfect control, and after the hot rush through the first great Critique he had learned to take his time. His exposition thus became simplified, systematized, and clarified throughout to utmost intelligibility. Here, too, the cardinal aim of his Method was to wed speculative thought and empirical fact, to harmonize the abstract universality of Reason with the concrete particularities of Right, and to reconcile the free individuality of the citizen with the regulated organism of the State. And the least that can be said of his execution is, that he has rescued the essential principle of Right from the debasement of the antinomian naturalism and arbitrary politicality of Hobbes as well as from the extravagance of the lawless and destructive individualism of Rousseau, while conceding and even adopting what is substantially true in the antagonistic theories of these epochal thinkers; and he has thereby given the birthright of Freedom again, full-reasoned and certiorated, as 'a possession for ever' to modern scientific thought. With widest and furthest vision, and with a wisdom incomparably superior to the reactionary excitement of the great English Orator, he looked calmly beyond 'the red fool-fury of the Seine' and all the storm and stress of the time, to the sure realization of the one increasing purpose that runs through the ages. The burden of years chilled none of his sympathies nor dimmed any of his hopes for humanity; nor did any pessimistic shadow or murmur becloud his strong poetic thought, or disturb 'the mystical lore' of his eventide. And thus at the close of all his thinking, he made the Science of Right the very corner-stone of the social building of the race, and the practical culmination of all Religion and all Philosophy.
It is not meant that everything presented here by Kant is perfect or final. On the contrary, there is probably nothing at all in his whole System of Philosophy—whose predominant characteristics are criticism, initiation, movement—that could be intelligently so regarded; and the admitted progress of subsequent theories of Right, as briefly indicated above, may be considered as conceding so much. It must be further admitted of Kant's Science of Right that it presents everywhere abundant opening and even provocation for 'Metacriticism' and historical anticriticism, which have certainly not been overlooked or neglected. But it is meant withal that the Philosophy of Jurisprudence has really flourished in the Nineteenth Century only where Kant's influence has been effective, and that the higher altitudes of jural science have only come into sight where he has been taken as a guide. The great critical thinker set the problem of Right anew to the pure Speculative Reason, and thus accomplished an intellectual transformation of juridical thought corresponding to the revolutionary enthusiasm of liberty in the practical sphere. It is only from this point of view that we can rightly appreciate or estimate his influence and significance. The all-embracing problem of the modern metamorphosis of the institutions of Society in the free State, lies implicitly in his apprehension. And in spite of his negative aspect, which has sometimes entirely misled superficial students, his solution, although betimes tentative and hesitating, is in the main faithful to the highest ideal of humanity, being foundationed on the eternity of Right and crowned by the universal security and peace of the gradually realized Freedom of mankind. As Kant saved the distracted and confused thought of his time from utter scepticism and despair, and set it again with renewed youth and enthusiasm on its way, so his spirit seems to be rising again upon us in this our hour of need, with fresh healing in his wings. Our Jurists must therefore also join the ever increasing throng of contemporary thinkers in the now general return to Kant. Their principles are even more conspicuously at hazard than any others, and the whole method of their science, long dying of intellectual inanition and asphyxia, must seek the conditions of a complete renovation. It is only thus, too, that the practical Politician will find the guidance of real principle in this agitated and troubled age in which the foundations of Government as well as of Right are so daringly scrutinised and so manifestly imperilled, and in which he is driven by the inherent necessary implication of local politics to face the inevitable issue of world-wide complications and the universal problem of human solidarity. And thus only, as it now appears, will it be possible to find a Principle that will at once be true to the most liberal tendency of the time, and yet do justice to its most conservative necessities.
Of criticism and comment, blind adulation and unjust depreciation of Kant's system of Right, there has been, as already hinted, abundance and even more than enough. Every philosophical Jurist has had to define more or less explicitly his attitude towards the Kantian standpoint. The original thinkers of the dogmatic Schools—Fichte, Schelling, Hegel, and Krause,—have made it the starting-point of their special efforts, and have elaborated their own conceptions by positive or negative reference to it. The recent Theological School of Stahl and Baader, De Maistre and Bonald, representing the Protestant and Papal reaction from the modern autonomy of Reason, has yet left the Kantian principle unshaken, and has at the best only formulated its doctrine of a universal Divine order in more specific Christian terms. The Historical School of Hugo and Savigny and Puchta,—which is also that of Bentham, Austin and Buckle, Sir George C. Lewis and Sir Henry Sumner Maine, and Herbert Spencer,—with all its apparent antagonism, has only so far supplemented the rational universality of Kant by the necessary counterpart of an historical Phenomenology of the rise and development of the positive legal institutions, as the natural evolution and verification in experience of the juridical conceptions. The conspicuous want of a criterion of Right in the application of the mere historical Method to the manifold, contingent, and variable institutions of human society, has been often signalized; and the representatives of the School have been driven again, especially in their advocacy of political liberalism, upon the rational principles of Freedom.
The Civil Jurists who have carried the unreasoning admiration of the Roman Law almost to the idolatry of its letter, and who are too apt to ignore the movement of two thousand years and all the aspirations of the modern Reason, could not be expected to be found in sympathy with the Rational Method of Kant. Their multiplied objections to the details of his exposition, from Schmitthenner to the present day, are, however, founded upon an entire misapprehension of the purpose of his form. For while Kant rightly recognised the Roman Law as the highest embodiment of the juridical Reason of the ancient world, and therefore expounded his own conceptions by constant reference to it, he clearly discerned its relativity and its limitations; and he accordingly aims at unfolding everywhere through its categories the juridical idea in its ultimate purity. In Kant the juridical Idea first attains its essential self-realization and productivity, and his system of Private Right is at once freer and more concrete than the Systems of Hobbes and Rousseau, because it involves the ancient civil system, corrected and modernized by regard to its rational and universal principles. This consideration alone will meet a host of petty objections, and guard the student against expecting to find in this most philosophical exposition of the Principles of Right a mere elementary text-book of the Roman Law.
In England, Kant's Science of Right seems as yet to have been little studied, and it has certainly exerted but little influence on English Juridical Science. This has no doubt been mainly due to the traditional habit of the national mind, and the complete ascendancy during the present century of the Utilitarian School of Bentham. The criterion of Utility found a ready application to the more pressing interests of Political and Legal Reform, and thus responding to the practical legislative spirit of the time, its popular plausibilities completely obscured or superseded all higher rational speculation. By Austin the system was methodically applied to the positive determination of the juridical conceptions; under aid of the resources of the German Historical School, with the result that Right was made the mere 'creature' of positive law, and the whole Rational Method pretentiously condemned as irrational 'jargon.' In Austin we have only the positive outcome of Hobbes and Hume and Bentham. The later forms of this legal positivism have not been fruitful in scientific result, and the superficiality and infutility of the standpoint are becoming more and more apparent. Nor does the Utilitarian Principle, with all its seeming justice and humanity, appear capable of longer satisfying the popular mind with its deepening Consciousness of Right, or of resolving the more fundamental political problems that are again coming into view. In this connection we may quote and apply the authority of Sir Henry Sumner Maine when he says: 'There is such widespread dissatisfaction with existing theories of jurisprudence, and so general a conviction that they do not really solve the questions they pretend to dispose of, as to justify the suspicion that some line of inquiry necessary to a perfect result has been incompletely followed, or altogether omitted by their authors.' The present unsatisfactory condition of the Science of Right in England—if not in Scotland—could not be better indicated.
In these circumstances, no other alternative is left for us but a renewed and deepened appeal to the universal principle of Reason, as the essential condition of all true progress and certainty. And in the present dearth of philosophical origination and the presence of the unassimilated products of well-nigh a century of thought, it seems as if the prosecution of this Method of all methods can only now be fruitfully carried on by a return to Kant and advance through his System. Enough has perhaps already been said to indicate the recognised importance of the Kantian standpoint, and even to point to the rich fields of thought and inquiry that open everywhere around it to the student. Into these fields it was the original intention of the translator to attempt to furnish some more definite guidance by illustrative comment and historical reference in detail, but this intention must be abandoned meanwhile, and all the more readily as it must be reckoned at the most but a duty of subordinate obligation and of secondary importance. The Translation is therefore sent forth by itself in reliance upon its intelligibility as a faithful rendering of the original, and in the hope that it will prove at once a help to the Students and an auxiliary to the Masters of our present juridical science.
- W. H.
- Edinburgh, January 1887.
Röder remarks (i. 254) that by far the most of the later philosophical writers on Natural Right—nomen illis legio!—follow the system of Kant and Fichte, which is in the main identical in principle with that of Thomasius. It was impossible to refer to them in detail in these prefatory remarks, but it may be useful to quote the following as the more important works on the subject from this standpoint since the appearance of Kant's Rechtslehre:—
- A. Mellin, Grundlegung zur Metaphysik der Rechte, 1796.
- P. J. A. Feuerbach, Kritik des natürlichen Rechts, 1796.
- H. Stephani, Grundlinien der Rechtswissenschaft, 1797.
- Ph. Schmutz, Erklärung der Rechte des Menschen u. des Bürgers, 1798.
- ——, Handbuch der Rechtsphilosophie, 1807.
- R. Gerstäcker, Metaphysik des Rechts, 1802.
- L. Bendavid, Versuch einer Rechtslehre, 1802.
- K. H. v. Gros, Lehrbuch des Naturrechts, 1802. 6 Ausg. 1841.
- Friès, Philosophische Rechtslehre u. Kritik aller positiven Gesetz Gebung, 1803.
- L. N. Jacob, Philosophische Rechtslehre, 2 A. 1802.
- K. S. Zachariä, Anfangsgründe der Philosoph. Privatrechts, 1804.
- ——, Philosophische Rechtslehre o. Naturrecht u. Staatslehre, 1819.
- ——, Vierzig Bucher vom Staate, 1839-43.
- Chr. Weiss, Lehrbuch der Philosophie des Rechts, 1804.
- A. Bauer, Lehrbuch des Naturrechts, 1808. 3 Ausg. 1825.
- J. C. F. Meister, Lehrbuch des Naturrechts, 1809.
- Dresch, Systematische Entwickelung der Grundbegriffe u. Grundprinzipien des gesammten Privatrechts, Staatsrechts, und Volkerrechts, 1810, 1822.
- V. Zeiller, Naturrecht, 1813.
- W. F. Krug, Dikäologie oder philosophische Rechtslehre, 1817, 1830.
- Eschenmeyer, Normalrecht, 2 Thle. 1819.
- S. Beck, Lehrbuch des Naturrechts, 1820.
- V. Droste-Hülshoff, Lehrbuch des Naturrechts o. der Rechtsphilosophie, 1823, 1831.
- Pölitz, Natur- und Volkerrecht, Staats- und Staatenrecht, 1823, 1825.
- J. Haus, Elementa doctrinæ philosophiæ sive juris naturalis. Gondavi, 1824.
- K. von Rotteck, Lehrbuch des Vernunftrechts und der Staatswissenschaft, 4 Bde. 1829-34, 1841.
- Ant. Virozsil, Epitome juris naturalis. Pesthini, 1839.
- F. Fischer, Naturrecht und natürliche Staatslehre, 1848.
- G. Schilling, Lehrbuch des Naturrechts, 1859.
Besides these a considerable number of similar German works might be referred to by Schaumann, Heydenreich, Klein, A. Thomas, Weiss, J. K. Schmid, T. M. Zachariä, Stöckhardt, E. Reinhold, Schnabel, Pfitzer, and others.
Of the French works, from the Kantian standpoint, may be quoted (Ahrens, i. 326):—
- M. Bussart, Elements de droit naturel privé. Fribourg en Suisse, 1836.
- V. Belime, Philosophie du droit. Paris, 1844, 4 ed. 1881.
In Italy, where the Philosophy of Law has been cultivated 'with great zeal and intelligence' (Ahrens, i. 327; Röder, Krit. Zeitschrift für Rechtswiss. xv. 1, 2, 3), the Kantian system has been ably discussed by Mancini, Mamiani, Rosmini, Poli, and others. Its chief representatives have been—
- Baroli, Diritto naturale privato e publico, 6 vol. Cremona, 1837.
- Tolomei, Corso elementare di diritto naturale, 2 ed. Padova, 1855.
- Soria di Crispan, Filosofia di diritto publico. (Philosophie du droit public. Brux. 1853-4.) Transl. into French.
- Rosmini-Serbati, Filosofia del diritto, 1841. (In part Kantian.)
[Since writing the foregoing Preface there has come to hand the important work, 'La Vita del Diritto, nei suoi rapporti colla Vita Sociale: Studio comparativo di Filosofia Giuridica. Per Giusseppe Carle, Professore ordinario di Filosofia de Diritto nella R. Universita di Torino.' Its comprehensive method and profound insight add to the already ample evidence of the 'great zeal and intelligence' with which the Philosophy of Law is now being cultivated by the countrymen of Vico, the natural successors of Antistius Labeo, and Papinian. Professor Carle points out the relation of Kant not only to Rosmini, but also to Mamiani and others. His view of the importance and influence of the Kantian System is in accord with the brief indications ventured in these Prefatory hints. It is impossible to quote his exposition here, but attention may be directed to P. ii. L. i. Cap. ii. § 3, 'Emmanuele Kant come iniziatore del metodo rationale nello studio del diritto naturale;' and L. ii. Cap. v. 'Ulteriore svolgimento,' etc.—Tr.]
- It appeared soon after Michaelmas 1796, but with the year 1797 on the title-page. This has given rise to some confusion regarding the date of the first Edition, which is now usually quoted as 1796-7. (Schubert, Kant's Werke, Bd. ix. viii., and Biographie, p. 145.)
- Die Metaphysik der Sitten. Erster Theil. Metaphysische Anfangsgründe der Rechtslehre. Königsberg, 1797.
- Grundlegung zur Metaphysik der Sitten. Translated by Willich (1798), Semple (1836), and Abbott (1873).
- These Supplementary Explanations were appended by Kant to the First Part of the work, to which most of their detail more directly apply; but they are more conveniently appended in this translation to the whole work, an arrangement which has also been adopted by the other Translators.
- Initia Metaphysica Doctrinae Juris. Immanvelis Kantii Opera ad philosophiam criticam. Latine vertit Fredericus Gottlob Born. Volumen quartum. Lipsiae, MDCCLXXXXVIII.
- Elementa Metaphysica Juris Doctrinae. Latine vertit G. L. König. Amstel. 1800, 8. (Warnkönig and others erroneously refer it to Gotha.)
- Principes Métaphysiques du Droit, par Emm. Kant, etc. Paris, 1837.
- Eléments Métaphysiques de la Doctrine du Droit, etc. Paris, 1853.
- The Preface and the Introductions (infra, pp. 1-58, 259-265) have been translated by Mr. Semple. See The Metaphysic of Ethics by Immanuel Kant, translated by J. W. Semple, Advocate. Fourth Ed. Edited with Introduction by Rev. Henry Calderwood, LL.D., Professor of Moral Philosophy, University of Edinburgh. Edin.: T. & T. Clark, 1886.—These are indispensable parts of the present work, but they have been translated entirely anew.
- He ceased lecturing in 1797; and the only works of any importance published by himself subsequent to the Rechtslehre, were the Metaphysische Anfangsgründe der Tugendlehre in 1797, and Der Streit der Facultäten and the Anthropologie in 1798. The Logik was edited by Jäsche in 1800; the Physische Geographie by Rink in 1802, and the Pädagogik, also by Rink, in 1803, the year before Kant's death.
- Kritik der reinen Vernunft. Translated anew by Max Müller (1881).
- Kritik der praktischen Vernunft. Translated by Abbott.
- Kritik der Urtheilskraft. Translated into French by M. Barni.
- Fichte's Nachgelassene Werke, 2 Bd. System der Rechtslehre (1804), 498, etc. (Bonn, 1834.) Fichte's Grundlage des Naturrechts (1796), as he himself points out, was published before Kant's Rechtslehre, but its principles are all essentially Kantian. (Translated by Kroeger, Philadelphia, 1870.)
- Hegel's Werke, Bd. i. Philosophische Abhandlungen, iv. Ueber die Wissenschaftlichen Behandlungsarten des Naturrechts (1802-3); and the Grundlinien der Philosophie des Rechts, oder Naturrecht und Staatswissenschaft im Grundrisse (1821). Werke, Bd. viii. (passim). Dr. J. Hutchison Stirling's Lectures on the Philosophy of Law present a most incisive and suggestive introduction to Hegel's Philosophy of Right.
- Die beiden Grundprobleme der Ethik (1841), pp. 118-9.
- Grundlinien einer Kritik der bisherigen Sittenlehre (1803). Entwurf eines Systems der Sittenlehre, herausg. von A. Schweizer (1835). Grundriss der philosophischen Ethik, von A. Twesten (1841). Die Lehre vom Staat, herausg. von Ch. A. Brandes (1845).
- Grundlage des Naturrechts (1803). Abriss des Systems der Philosophie des Rechts oder des Naturrechts (1828). Krause is now universally recognised as the definite founder of the organic and positive school of Natural Right. His principles have been ably expounded by his two most faithful followers, Ahrens (Cours de Droit Naturel, 7th ed. 1875) and Röder (Grundzüge des Naturrechts o. der Rechtsfilosofie, 2 Auf. 1860). Professor J. S. del Rio of Madrid has vividly expounded and enthusiastically advocated Krause's system in Spanish. Professor Lorimer of the Edinburgh University, while maintaining an independent and critical attitude towards the various Schools of Jurisprudence, is in close sympathy with the Principles of Krause (The Institutes of Law: a Treatise of the Principles of Jurisprudence as determined by Nature, 2nd ed. 1880, and The Institutes of the Law of Nations). He has clearly indicated his agreement with the Kantian School, so far as its principles go (Instit. p. 336, n.).
- This applies to the latest German discussions and doctrines. The following works may be referred to as the most important recent contributions, in addition to those mentioned above (such as Ahrens and Röder, xi. n.):—Trendelenburg, Naturrecht auf dem Grunde der Ethik, 2 Auf. 1868. Post, Das Naturgesetz des Rechts, 1867. W. Arnold, Cultur und Rechtsleben, 1865. Ulrici, Naturrecht, 1873. Zoepfl, Grundriss zu Vorlesungen über Rechtsphilosophie, 1878. Rudolph von Ihering, Der Zweck im Recht, i. 1877, ii. 1883. Professor Frohschammer of Munich has discussed the problem of Right in a thoughtful and suggestive way from the standpoint of his original and interesting System of Philosophy, in his new volume, Ueber die Organisation und Cultur der menschlichen Gesellschaft, Philosophische Untersuchungen über Recht und Staat, sociales Leben und Erziehung, 1885.
- Leibnitz, Nova Methodus discendae docendaeque Jurisprudentiae, 1767. Observationes de principio Juris. Codex Juris Gentium, 1693-1700.Wolff, Jus Naturae Methodo Scientifica pertractatum, Lips. 8 Tomi. 1740-48. Institutiones Juris Naturae et Gentium, Halae, 1754. (In French by Luzac, Amsterdam, 1742, 4 vols.) Vernünftige Gedanken. Vatel, Le Droit des Gens, Leyden, 1758. Edited by Royer-Collard, Paris, 1835. English translation by Chitty, 1834. [For the other works of this school, see Ahrens, i. 323-4, or Miller's Lectures, p. 411.]
- Grotius, De Jure Belli ac Pacis, lib. iii. 1625. Translated by Barbeyrae into French, 1724; and by Whewell into English, 1858.—Pufendorf, Elementa Juris Universalis, 1660. De Jure Naturae et Gentium, 1672. [English translation by Kennett, 1729.]—Cumberland, De Legibus Naturae Disquisitio Philosophica, London, 1672. Translated into English by Towers, Dublin, 1750.—Cocceji, Grotius illustratus, etc., 3 vols. 1744-7. [See Miller, 409.]
- Christian Thomasius (1655-1728) first clearly distinguished between the Doctrine of Right and Ethics, and laid the basis of the celebrated distinction of Perfect and Imperfect Obligations as differentiated by the element of Constraint. See Professor Lorimer's excellent account of Thomasius and of Kant's relation to his System, Inst. of Law, p. 288; and Röder, i. 240. The principal works of this School are: Thomasius, Fundamenta juris naturae et gentium ex sensu communi deducta, 1705. Gerhard, Delineatio juris naturalis, 1712. Gundling, Jus Naturae et gentium. Koehler, Exercitationes, 1728. Achenwall, Prolegomena Juris naturalis, and Jus Naturae, 1781.
- Hobbes, De Cive, 1642. Leviathan seu de civitate ecclesiastica et civili, 1651. On Hobbes generally, see Professor Croom Robertson's Monograph in 'Blackwood's Philosophical Classics.'
- L'origine et les fondements de l'inégalité parmi les hommes, Dijon, 1751. Contrat social, 1762. Rousseau's writings were eagerly read by Kant, and greatly influenced him. On Rousseau generally, see John Morley's Rousseau, Lond. 1878.
- Burke is assigned to the Historical School of Jurisprudence by Ahrens, who not inaptly designates him 'the Mirabeau of the anti-revolution' (i. 53). See the Reflections on the French Revolution (1790). Stahl gives a high estimate of Burke as 'the purest representative of Conservatism.'
- 'The very cry of the hour is, Fichte and Schelling are dead, and Hegel, if not clotted nonsense, is unintelligible; let us go back to Kant. See, too, in other countries, what a difference the want of Kant has made.' Dr. J. H. Stirling, Mind, No. xxxvi. 'Within the last ten years many voices have been heard, both in this country and in Germany, bidding us return to Kant, as to that which is alone sound and hopeful in Philosophy; that which unites the prudence of science with the highest speculative enterprise that is possible without idealistic extravagances.' Professor E. Caird, Journal of Speculative Philosophy, vol. xiv. 1, 126. 'From Hegel, we must, I think, still return upon Kant, seeking fresh hope for Philosophy in a continued use of the critical method.' Professor Calderwood, Introduction to Kant's Metaphysic of Ethics, p. xix.
- The Socialistic and Communistic Doctrines of Owen (1771-1858), Fourier (1777-1837), Saint-Simon (1760-1825), Louis Blanc, Proudhon, and Cabet, 'considered as aberrations in the development of Right,' are sketched by Ahrens (i. § 12) with his characteristic discrimination and fairness. The principles of the contemporary English Socialism will be found summed up in A Summary of the Principles of Socialism written for the Democratic Federation, by H. M. Hyndman and William Morris (1884). Compare also Hyndman's The Historical Basis of Socialism in England, and To-day and Justice, the organs of the Social Democracy.
- Schelling's contributions to the Science of Right have hardly received the attention they deserve. The absorption of his thought in the Philosophy of Nature left him less free to devote himself to the Philosophy of History, but it is mainly to him that the idea of the systematic objectivity and the organic vitality of the State, in its latest forms, is due. Hegel and Krause have severally adopted and developed the two sides of this conception. Compare Schelling's Abhandlung über das Naturrecht in Fichte and Niethammer's Journal, iv. and v.; and his Vorlesungen über die Methode des akademischen Studiums, p. 146, etc. See Stahl's excellent account of Schelling's Doctrine, Philosophie des Rechts, i. 403-14, and The Journal of Speculative Philosophy, vol. xiii. No. 3, vi., 'Schelling on History and Jurisprudence.'
- Stahl and Baader represent the Neo-Schellingian standpoint in their philosophical doctrines.—F. J. Stahl, Die Philosophie des Rechts, 3 Bde., 3 Auf. 1865 (an important and meritorious work).—Franz von Baader's Sämmtliche Werke, 16 Bde. 1851-60. (Cf. Franz Hoffmann's Beleuchtung des Angriffs auf Baader in Thilo's Schrift: 'Die theologisikende Rechts- und Staatslehre,' 1861.)—Joseph de Maistre, Soirées de St. Petersburg, Paris, 1821. Mémoires, etc., par A. Blanc, 1858.—L' Abbé de Bonald, Législation primitive, 1821.
- Hugo (1768-1844) is usually regarded as the founder, and Savigny (1778-1861) as the chief representative of the Historical School. Hugo, Lehrbuch des Naturrechts als einer Philosophie des positiven Rechts, 1799, 3 Auf. 1820. Frederich Carl von Savigny, Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft, 1814; System des heutigen Römischen Rechts, 1840. (See Guthrie's translation of Savigny, Treatise on the Conflict of Laws, with an excellent Preface. T. & T. Clark.)
- The Historical School, as Ahrens shows, must be carried back so as to include such thinkers as Cujas, the great French Jurist of the 16th century, who called the History of Right his 'hameçon d'or;' Montesquieu (1689-1755), whose well-known book, L'Esprit des Lois (1748), ran through twenty-two editions in a few years; and the Neapolitan Vico (1688-1744), the founder of the 'New Science' of History. Vico is only now becoming properly appreciated. See Professor's Flint's able and instructive 'Vico' in Blackwood's Philosophical Classics. 'In his work, De universi juris uno principio et fine (1820), Vico divides the whole Science of Right into three parts: (1) the Philosophy of Right, (2) the History of Right, and (3) the Art of applying the Philosophy to facts. He distinguishes profoundly in Laws the spirit or will of the legislator (mens legis) and the reason of the law (ratio legis), which consists in the accordance of a law with historical facts and with the eternal principles of the True and Good' (Ahrens). The contemporary Historical School does not yet occupy so philosophical a position.
- Sir Henry Sumner Maine, the most eminent English representative of the Historical School, continues to regard 'the philosophy founded on the hypothesis of a state of nature' as 'still the greatest antagonist of the Historical Method' (Ancient Law, pp. 90, 91); but this is evidently said in disregard of the transformation of Rousseau's theory by Kant, and the contributions to the application of the Historical Method by Hegel and his school, in whose principle the historic evolution is an essential element. Sir H. S. Maine's own contributions cannot be too highly recommended for their thoroughness and suggestiveness. He has gathered much of his original and pregnant matter from direct acquaintance with India, where, as is the case with the forms of nature, the whole genesis and stratification of the forms of Society are presented livingly to view. (Ancient Law, 1861, 7th ed. 1880. Village Communities in the East and West, 4th ed. 1881. Early History of Institutions, 1874.)
- Extremes meet in the moral indifference of the universal naturalism of the ultra-historical School and the abstract absolute rationalism of Spinoza. It was Grotius who first clearly distinguished between positive fact and rational idea in the sphere of Right, and thus originated the movement of modern 'jural' speculation. For evidence of the statement in the text, see Bentham's Works, Buckle's History of Civilisation, Mill on Liberty, and especially Puchta's Encyclopädie, introductory to his Cursus der Institutionen, 6 Auf. 1865. The standpoint of the Historical School has been thoroughly reviewed by Stahl, i. 570-90; Ahrens, i. 51-61; and Röder, i. 266-279.
- 'Ueber den Charakter und die Aufgaben unserer Zeit in Beziehung auf Staat und Staatswissenschaft,' Giess. 1832. Zwölf Bücher vom Staate, 1839. See Rosenkranz's Geschichte der Kant'schen Philosophie, p. 268.
- This remark especially applies to the running fire of criticism in Von Kirchmann's recent Erläuterungen zu Kant's Metaphysik der Sitten, 1882. It is a matter of regret that such criticisms cannot be here dealt with in detail. Kant has himself clearly indicated the position stated above, as at p. 54, infra.—The depth and subtlety of Kant's method, so far transcending the common modes of juridical thinking in England, are inseparable from the system, but he has himself given the sufficient reason for their appearance in it (infra, p. 116). Without entering in detail upon the point, the translator may remark with regard to one conspicuous, yet irremoveable blot, that he homologates the unanimous disapprobation of subsequent jurists, and would only refer to Dr. Hutchison Stirling's drastic castigation of it in his Lectures, p. 51. But of this and other difficulties in so original and originative a work can only be said in the meantime:
- 'Sunt delicta tamen, quibus ignovisse velimus.'
- 'Verum ubi plura intent . . . non ego paucis
- Offendar maculis, quas aut incuria fudit
- Aut humana parum cavit natura.'
- Fragment on Government, 1776. Essay on Political Tactics, 1791. Principles of Morals and Legislation, 1780. Traités de Legislation, 1802.
- Province of Jurisprudence determined, or Philosophy of Positive Law, 1832. Lectures on Jurisprudence, edited by his Widow. Austin (1790-1859) has been greatly overestimated as a Jurist by his friends and followers. The affectionate tributes of his widow may be borne with, but it is more extraordinary to find Professor Sheldon Amos characterizing him as 'the true founder of the Science of Law' (S. Amos, The Science of Law, p. 4). Here is Austin's estimate of Kant's Science of Right: 'A treatise darkened by a philosophy which, I own, is my aversion, but abounding, I must needs admit, with traces of rare sagacity. He has seized a number of notions, complex and difficult in the extreme, with distinction and precision which are marvellous, considering the scantiness of his means. For of positive systems of law he had scarcely the slightest tincture; and the knowledge of the principles of jurisprudence, which he borrowed from other writers, was drawn, for the most part, from the muddiest sources; from books about the fustian which is styled the Law of Nature.' (Lectures, iii. 157.) And here is his account of the German Jurists generally: 'It is really lamentable that the instructive and admirable books which many of the German Jurists have certainly produced, should be rendered inaccessible, or extremely difficult of access, by the thick coat of obscuring jargon with which they have wantonly incrusted their necessarily difficult science' (ii. 405). Comment on this is superfluous. In the same breath a more condemnatory judgment is dealt out even to Sir W. Blackstone. So long as such statements passed as philosophical criticism there was no possibility for a genuine Philosophy of Law in England. Austin, notwithstanding his English reputation, is entirely ignored by the German Jurists. He seems to have known only enough of German to consult the more popular productions of the Historical School. Dr. Hutchison Stirling has dealt with Austin's commonplace Hedonism in a severe way, and yet not too severely, in his Lectures on the Philosophy of Law (sub fin.).
- Utilitarianism has been the subject of incessant discussion in England down to its latest systematic exposition in Sidgwick's Methods of Ethics. On the Continent the system has also been carefully and ably reviewed by Th. Jouffroy (Cours de droit naturel, 1835), Ahrens (i. 48, but less fully in the later editions), I. H. Fichte (Die philosophischen Lehren von Recht, Staat und Sitte, 1850), De Wal (Prysverhandeling van het Natuurregt, 1833), and particularly by the Italian Jurists (Röder, i. 108).
- Ancient Law, p. 118.
- Much more may be justly claimed for Scotland than for England since the middle of the last century in regard to the cultivation of the Philosophy of Right. The Scottish School of Philosophy started on this side from Grotius and Thomasius. Gershom Carmichael edited Pufendorf with praiseworthy notes. Hutchison discussed the doctrine of Right with fulness and care in his System of Moral Philosophy (1755). Hume, in consistency with the method of his Intellectual Philosophy, derationalized the conceptions of Justice and Right, and resolved them into empirical products of public Utility (Treatise on Human Nature, 1739. Essays, 1742). Reid, leading the realistic reaction, examined this side of Hume's speculation with his characteristic earnestness, and advanced by his practical principle of Common Sense to positions akin to those of Kant's Practical Reason (Active Powers, 1788, Essay V. c. iii. Of Systems of Natural Jurisprudence, and the following chapters on Hume's Utilitarianism). Henry Home, Lord Kames, prosecuted the same method with more juridical knowledge (Principles of Equity; Historical Law Tracts, 1758; Sketches of the History of Man). The movement was carried on by Adam Ferguson (Principles of Moral and Political Science, 1792; Essay on the History of Civil Society, 1767), Dugald Stewart (see especially the account of the Grotian School in the Dissertation, 1815), and Dr. Thomas Brown (Lectures). Sir James Mackintosh wrote a Discourse on the Study of the Law of Nature and Nations, 1835. The cultivation of the Philosophy of Law has never been extinct in the Scottish Universities. Since the revival of the Chair of Public Law in the University of Edinburgh in 1862, Professor Lorimer has done much by his devotion and erudition to further the cultivation of the subject. (See the reference to his own works, supra, xi. n.) One of his pupils, Mr. W. G. Miller, Lecturer on Public Law in the University of Glasgow, has published a series of excellent Lectures on the subject, displaying extensive knowledge and critical acumen, with general regard to the Hegelian standpoint (Lectures on the Philosophy of Law, designed mainly as an introduction to the study of International Law, 1884). Professor Flint's important work on the Philosophy of History in France and Germany, and Professor Edward Caird's recent book on Comte's Social Philosophy, may also be referred to in this connection.