Logic can be called the heart of the newer philosophy, which emits its pulses and receives them back in itself; natural law is its countenance, in which its soul is reflected. For the freedom of man, the secret driving force in all its efforts, is here manifest as express principle.

Equality

If freedom is inferred from the concept of man, it must emerge for everyone in equal measure. And if this freedom is the exclusive aim of all coercive laws, then there is nothing that can abolish equality. Ethics that emanates from the objective of relationships leads to inequality of the law. If a rank [Stand] of honor, a representative of the Divine Majesty exists, then this sanctity and inviolability must be permitted by an advantage of birth. The definition of the family appoints a different legal position to the man than to the woman. The ideal of man, the highest quality of his being for which he is intended, would also mandate inequality of the law. The closer the approximation to it, the greater freedom and entitlement it would generate. But the concept of man is present in all men and in all circumstances. Therefore complete equality before the law is the requirement of the law of reason; it is made by all the doctors of natural law, from the earliest to the latest. Consistently implemented, it prohibits advantages of birth, rights of majesty, at least irrevocable ones; it prohibits taking individuality into account, whether as patronization [Bevormundung] or as recognition of the ideal. It leads to women being granted an equal share in the affairs of state along with men; and even children who have attained the age of rational thought, in which, therefore, is the concept of man, should have the right not to be patronized, and be granted the same position as the rest. The Platonic principle: “to each the position appointed to him by nature!” and this: “the same for each!” are total opposites.

The deduction of natural law from the concept of freedom

Freedom as a principle of natural law, however, is initially without content, that is, without a particular object and without limit. To accord with nature, every right would first have to be determined by its object, and its limit would follow from that. Here, the determination must proceed in the opposite direction. For the object cannot be found from that empty freedom, but the limit can: in such freedom on the part of others. From this limit, the specific objects of rights can therefore be derived, if they are to be derived merely by reason. The various objects of experience are posited as minor premises under the concept of the equal freedom of all as major premise, and the conclusion must yield the specific rights and institutions. It is precisely the business of natural law to carry this out.

Concept of primordial rights and its history

Among the objects subsumed [as minor premises], two classes immediately can be distinguished according to their generic difference. Indeed, there are such objects regarding which man is already in possession by virtue of his existence, for example, one’s own life, own thoughts, the use of limbs, etc., and those with which he comes into contact only in different ways, combines with them and again separates from them, or that do not need to be conceived in connection with every human being. This is the distinction between innate and acquired rights (jura connata and acquisita). The diversity of relations already leads to this in the process of deduction. One only needs to analyze the existence of man to get the jura connata, and he gets specific ones. I have a right to this, these are my limbs, etc. For the jura acquisita, on the other hand, objects other than people and series of events need to be subsumed, and then we only get abstract ones, for example, rights over things; the factual first decides on what. However, the relevance of the distinction arises immediately in the consequences. According to postulated equality, innate rights must accrue in the same way to the one as the well as the other, while with regard to acquired rights the question is firstly to what degree that original equality is effaced by the series of events and in what degree it is effaced in certain cases – from this derives the consequence for alienability and burden of proof. For this reason the earliest writers already made the distinction between innate and acquired rights. Pufendorf’s distinction between obligatio connata and adventitia is entirely of a piece with this; because to the former he reckons the “obligatio omnium hominum adversus quoslibet homines qua tales, per quam invicem jus naturae usurpare socialemque vitam agere debent” [the obligation of all men towards all men whatsoever as such, by virtue of which they ought to employ the law of nature in their relations with one another, and to live a social life].[1]

But with Thomasius the definition is still imprecise. For him, jura connata are those which one has apart from the consent of the answerable party, which means that patria potestas also pertains to them. Wolff comes closer: “jus connatum homini ita cohaeret, ut ipsi auferri non possit” [the innate right of man cleaves to him, so that it cannot be removed]. Hoffbauer summarizes the difference in all its sharpness.[2] He separates innate rights not merely from those that presuppose any operation of contract at all, but all that presuppose a particular course of events. This is the generally leading, albeit not everywhere clearly recognized, concept. But Kant apparently voided this concept. The earlier proponents, namely, treated the natural equality of human beings and the jura connata quite separately from each other. Kant, systematically penetrating, sought their connection; but he found it in the fact that they both explain one and the same concept. He denies the majority of innate rights and derives them all from what is none other than that primordial, content-free freedom itself, according to Kant’s definition: the right not to be a mere means for another. From this point, the concept of primordial rights [Urrechts] takes the place of the jura connata. But Kant has to concede that innate rights when taken individually, for example, the right to a good name, are by no means expressed by that concept of freedom, but first have to be deduced logically, and that this deduction is yet of a different sort than that of ownership, contracts, etc, and this difference manifests itself in the burden of proof. Hence, although he banished the words jura connata, he did not banish the fact. But now the empty concept of freedom, the prmordial right, is the center of the natural law, from which first arises that which is immediately contained in it, and then those in need of yet other series of events.[3] When the existence of man is analyzed, the rights to one’s own life, limbs, reputation, the possibility of acquisition result. When the objects outside of him are subsumed, then there result the rights to things, to the actions of others, either temporarily or in permanent relations. This is the system of natural law.

Negative character of natural law

The abstract character is represented in natural rights entirely in the manner of philosophy generally. In both, everything is just the logically necessary consequence of a basic concept. This basic concept, from which no further abstraction can take place – substance – in philosophy is empty being, while in ethics it is the concept of the thinking being. This in turn becomes the basic concept of the philosophical doctrine of law, so that all individual rights and institutions only manifest themselves as its impressions [Affektionen]. Therefore, natural law bears a negative character like abstract philosophy does generally. Just as the substance of Spinoza or Hegel is that which cannot be thought away, pure being without content, mere not-not-being, so also here, what is taken as the basis of freedom is not positive power (similar to the freedom of God to create the world, to freedom of the Platonic wise men to govern the state), but without content, only that for which, if absent, the concept of freedom no longer exists – the not-being-a-means, not-non-person, not-being- a-slave. In the same way, the development of this concept is a negative, i.e., a merely logical one. Namely, no right, no institution, may emerge that first arises and then is joined to that empty concept of freedom as something new, but only those of which it can be shown that when they are expressed, their non-existence is likewise impossible.

Relation of natural law to Roman law

The relationship of natural law to Roman law is generally recognized, which already makes clear that Roman institutions could be received into the natural law textbooks, as actually took place. To elucidate natural law, therefore, nothing would be more conducive than clearly to delineate its agreement and divergence with Roman law, and to demonstrate the ground of both.

Roman law like natural law recognizes a right of the individual independent of any divine demand upon him. But where a person in some relation ever breaks away from the contexts in which he was created, there arises a lack of formative drive and strength, hence the abstract character. With the ancient Germans – although they towered above the Romans in independence and the love thereof – yet every right was also permeated by obligation; honor – perhaps only another expression for freedom – inspired their lives, was not merely an inviolable good but also a sacred power that required from every act as much as it empowered that act. That is why the Germanic legal viewpoint is always situated in the totality of life; every competence is created, is developed, varies with the manifold relationships that, all around it, passively and actively affect it, and is constantly judged at the same time with them. By the mutual permeation with them, there ever arose new kinds of applications that had not been originally delineated by their mere existence; Roman law, on the other hand, in that it conceives of every competence in isolation, had precisely thereby abstracted from all living relations, can only receive that which is given invariably with their concept. In this consists the abstract conclusion [Fortschließen] of the Romans from the existing rights and the laws which describe their contents. With the emptiness of life, the logical character has emerged everywhere of itself; because it is not something first to be expected, but only what still must remain. When the force that forms anew recedes, then everything remains as it is and is fixed spellbound in an immovable concept. To this degree, Roman law and natural law agree. But Roman law only conceives the already existing competence in isolation. Its abstract conclusion thus begins first from given rights and laws. This itself, however – the starting point of the rationale – have emerged to it from the totality of the consciousness and the relations of the nation; religion, patriotism, family, forms of diet, these living causes have determined it, which by their nature effect something positive, to produce something which they were not already. Thus it has a variety of rights and laws, each of which has its own existence, which is included in no concept –attribute to it whatever one likes – it is a positive right. By contrast, natural law isolates people right from the start. What emerges here has already arisen in the abstract. The origin of rights and legal provisions is the empty concept of freedom, and nothing new must be added to this basic concept. Not only the application, but the production itself bears the lack of life.

Alongside personal entitlement and in accord with it, there could also exist in Rome an independent law of the state, a recognition of the public condition not dependent upon men. For the legal condition had a living source there. Natural law seeks logical unity; it can only have a concept as basis. In that it emanates from the rights of the individual, this rules out its resulting from the state, and it tolerates no obligation of compulsion which does not proceed from the freedom of individuals. Finally, as has been explained above,[4] all logical connection is timeless. What reason demands is contained in it before any process, and what is based on a process, does not follow from reason. Rights that have arisen through history and presuppose it, are not logically necessary. Roman law recognizes the real manner of functioning of action and incident; it does not abstract from time and history. But what it grants to every man according to specific statutes at a specific time, is precisely his inviolable right (jus quaesitum) and this is held to be sacred to him. This explains why the nation, with the same virtues and defects but manifesting such opposite action in its two classes [Ständen] – in the patricians the recklessly passionate pursuit of their prerogative, in the plebeians, unprecedented moderation while enduring outrageous hardship. It is the sanctity in the eyes of the nation of every acquired right, i.e., rights arisen in history. In the entire struggle, the higher class manifests itself thereby as that which protects its own, for which reason the use of any means is not viewed as a bad thing; the lower, by contrast, as the one that offends without justification. And it is certainly not prejudice or ignorance on Livy’s part when he conceives the struggle in this character, leans as a Roman to the patrician side, and even in the speeches of leading plebeians, characterizes the undertakings of this class as riots and illegality. The characteristic Roman sentiment holds everything which is acquired to be inviolable regardless of the results to which it leads, how its use is related to humanity, and finally, without any regard to what would be if the processes by which it has been acquired are thought away, it being conceivable that they had not happened. The logical derivation of rights leads to quite the opposite, the disregard and destruction of all acquired rights. In every moment reason requires anew – for it requires it incessantly – that incidents be ignored, that the truth is discovered from it alone, and therefore that anything formed outside of it is destroyed. This is the train of reasoning that abolished all prerogative of rank and guild, in order to restore the eternal, that is, outside of time and action, condition of reason. Certainly the disregard of the then existing condition posed an emphatic challenge. But this is not what came into one’s mind, in that one only wished to allow that which is logically necessary, while life, precisely because it is life, is not without history and change; and to achieve that goal, the act of destruction must be repeated every moment. The principle of freedom developed purely logically, therefore, in no way secures the rights of living pe3ople; on the contrary it abolishes them, so that only [pure] consequence can exist.

The description of the special peculiarity of Roman law, by which each competence is more isolated than even the natural-law deduction, is reserved for another place.[5]

Previous Next


 

Notes

[1] Pufendorf Elementa jur. nat. [sic] l. I, defin. 12. §. 1. [English translation: Two Books of the Elements of Universal Jurisprudence (Indianapolis: Liberty Fund, ), p. 109: “the obligation of all men towards all men whatsoever as such, by virtue of which they ought to employ the law of nature in their relations with one another, and to live a social life.”]

[2] Hoffb. op. cit. pp. 122ff.

[3] Kant metaph. Anfangsgr. d. Rechtsl. 2nd edition, p. xlv.

[4] Book III, Part I.

[5] See the appendix to Stahl, Private Law.