Factual distinction of obligations

Now reality shows two kinds of moral rules, their obvious difference being that with one, compliance is compelled by the state, while with the other, compliance is left to the individual; and they agree in this, that the latter zeroes in on disposition, the former on action. Science has thus to demonstrate the basis for this difference.

Scientific conception of this with the Greeks…

The Greeks find this difference in the various subjects of the ethos, it being directed either to people individually or to the state as a whole. It wishes for the same everywhere and in the same way. But the demands on the state, when it fulfills them, are thereby in themselves automatically compulsory for the individual. The state, which has the duty, is therefore not compelled, and the individual who is compelled, does not automatically and directly have the duty, and his disposition can have nothing to do with it. To the Greeks it is not strange that man is limited in his actions so that the world can reach its perfect form. There is thus no necessity here for a distinction in the ethos itself. Plato distinguishes between the just man and the just state. Aristotle distinguishes between ethics and politics; apart from the state (πολιτικὸν δίκαιον) there is only the just person (ἁπλῶς δίκαιον). In general, the consideration of how the ethos relates to the individual, whether compulsory or not, does not seem of great significance to the Greeks. In modern philosophy, however, precisely that needs to be the cardinal question: how does the law affect me, does it merely stipulate of me, or does it compel me? Now then, the newer philosophy does not even recognize duties originally set for the state; how much less, then, a limitation on the individual stemming therefrom? The ground of enforceability which is sufficient for it must be given with man himself, even apart from the state (in the state of nature). By one basic rule, therefore, and for one and the same subject, the necessity of the variety of commands, enforceable and unenforceable, external and internal, must be demonstrated. It can only do this if it identifies an original division of the same, two different objectives of the ethos, each of which by its concept demands compulsion for the one, excludes it for the other – law [Rechtsgesetz] and morality. The subjective principle of the new philosophy is obligated to find this difference. Although the task remains to purify this discovery from the dross of abstract treatment, still it is a great step forward. For the Greek conception can explain neither the dependence of compulsion on the will of individuals (law in the subjective sense), nor the disparity of the law vis-a-vis the other public objectives. –

… and with the moderns: Thomasius, Kant, Feuerbach

To Leibniz is owed the honor of having predicted the shape of the newer ethics, its division into morality and law. The execution, however, was done by Thomasius. The sociabilistic [sozialistische] system, even in its development by Pufendorf, knows only these two ethical sciences without subdivision: positive, i.e., theology, and philosophical, i.e., natural law. Pufendorf also has them correspond to the distinction between the forum internum and externum, so that all inward, or as we now say, moral, obligations are referred to theology, while the outward are left to philosophy, i.e., natural law. But this does not keep him, in the title de promiscuis officiis humanitatis, from treating alongside each other the standards of international law de accessu ad litus alienum, de foro praebendo and the duties of charity and gratitude. By contrast, Leibniz, in his letters discussing Pufendorfian natural law, claims the internal forum also for philosophy. He concedes that the inward duties do not fit with actual natural law; but neither may they be left to theology; they have to be discovered from the ratio. Therefore he sets up, apart from natural law and (positive) theology, a rational doctrine of inward duties, i.e., a moral philosophy.

It was left to Thomasius, this man who, devoid of ideas (as is the entire orientation), nevertheless through the freshness and bluntness of his mind, contrasting as much with the earlier scholastically crimped treatment, which he combatted from the outset, as with the dullness of Wolff and his successors, to put into effect what Leibniz surmised. His first writings are indeed occupied with implementing the sociabilistic system in the received manner, nor is the title de promiscuis officiis humanitatis absent there. But the arbitrariness with which the forum externum and internum are intermingled by the sociabilistic thinkers [den Sozialisten], caused him to seek a principle of ethics enabling him to give a peculiar basis to each of the two classes of obligations, so that their different characters can be derived from reason, with evidence, as he says, that must be clear even to the most narrow-minded (stulto). For this reason he dumps the sociabilistic system, the principle of which, the instinct for sociability, could not accommodate such a separation, and in its place puts the instinct for happiness. From this follows that double law: to seek outward and inward peace. This distinction corresponds to law and morality – the negative duty not to violate the other, and the positive one, to do to him what he himself wishes for – forum externum and forum internum – enforceability and unenforceability of duty. Thomasius is therefore the first to provide a foundation for the classification of perfect and imperfect duties which already can be found in Grotius, and who first truly distinguishes the obligations according to the criterion of enforceability, in the regulas justi and the regulas honesti, decori, officia humanitatis.[1] His later work: Fundamenta juris naturalis, is occupied in the first book with the discussion of his new principle; the following, while he maintains the arrangement of his first work, the Institutiones jurisprudentiae divinae, are merely intended to specify the later deviations from it. But these consist nearly entirely in making all the obligations which exist not for the sake of outward peace but for inward peace, and which he, following the sociabilists, treated together with those and largely characterized them as enforceable, now separates them and characterizes them as unenforceable, for example, the paternal power. The Wolffian school booked no progress here.

The system of Thomasius achieved the following: the mutual correspondence between the material characters of inward and outward peace, positive and negative duty, and the formal ones of compulsion and non-compulsion; but not in such a way that the latter appears as a necessary consequence of the former, which is the requirement. Namely, no ground is given as to why the commandments which have inward peace as their object, rule out enforceability, while those with the object of outward peace, demand it. It could be either both types or neither, for which free will is left to decide whether to fulfill them or not. In order to be able to provide this ground, and thus to be able to deduce the different effects of morality and law as necessary from their different natures, inward and outward freedom had to be substituted for inward and outward peace. This was done by Kant. In terms of its content, inward freedom excludes constraint. The laws which merely have this as their purpose – which do not directly resolve upon specific acts – contradict themselves when they compel. The laws that have outward freedom as their objective, however, must compel, because outward freedom cannot result from accidental fulfillment and non-infringement, as for example well-being, because freedom ceases where the result depends upon others, even if this result should really have occurred. For example, if someone gives me my thing, but he was not obliged to give it to me, then even though I did receive the thing, my freedom over the thing did not and does not exist. In this manner, morality contains the laws for the purpose of inward freedom, natural law, those for the purpose of outward freedom. Although the difference existing in life between enforceable and non-enforceable obligations only prompts the quest for a principle by which this difference can be justified logically, and is guided only by the prospect of the same; so is conversely the status quo, after such is found, now assessed according to this principle. The separation in life is intended to be just such a one as can be deduced therefrom. Therefore, from this point it is held to be decided, as a requirement of reason, that only those laws which have outward freedom as their purpose, shall be enforceable.

This development could have concluded here if not for the fact that the concept unique to the legal sphere, to which outward freedom of itself leads, remained untouched – law in the subjective sense [das Recht im subjektiven Sinne]. As law [das Rechtsgesetz], according to the peculiarity of its object – freedom – necessarily requires compulsion, so also does this compulsion depend on the discretion of that freedom, the freedom for which the law exists. Because even if I certainly obtain the object of my freedom, if it does not depend on me whether I receive it or not, then I am not free. The compulsion by which I obtain what is mine, must absolutely be the result of my will, if my freedom is to be attained. The ethos desires this freedom. And the decisive thing here is: the ethos not only has this as its objective, regarding which it calls for the actions of others, but it imparts it directly. He for whom it is established has the awareness that freedom does not first have to be produced for him, but that he already has it and may make use of it. It is not like, say, well-being, which, although required by the ethos, yet only is manifested factually and exists factually, but it is an effect of the ethos and even something ethical.

This immediate sanction of freedom can be found decisively in human life and consciousness since the Romans, especially in Germanic life and consciousness. It is a fact; science could not remove it and not deny it, it had to imbibe it. But it provides a new distinction between morality and law. What is moral merely effects an imperative and only has a consequence for those subject to this imperative. The person for whom something results from the fulfillment of its command, e.g., whose well-being is to be effected, has no connection to its command. Its relation, which Grotius calls aptitudo, is therefore without any ethical significance, and the concept of aptitudo was also soon lost to ethics. But the law [das Rechtsgesetz] not only imposes necessity, it also imparts freedom; it has a double relation not only when it is fulfilled but by the very fact that it exists, the one to whom it is given, the other for whom it is given, to the obligated and to the entitled. Even coercion itself, because the duties of law are different from those of morality, comes about only as a result of that freedom, and for evidence of this, it does not come into play through its command, but only through the person entitled, if he so desires. With it, therefore, necessity, which it imposes like morality, recedes as secondary, while freedom emerges as primary, which it constitutes – [subjective] right. For this reason, Feuerbach ended up expressing the difference between morality and natural law like this: morality is the science of duties, natural law the science of rights.[2]

The two problems of natural law

But this separation embroiled ethics in two contradictions, the solution of which is its problem. The first is between moral and juridical laws, on the one hand, and what they of necessity carry with them, on the other. The second is between laws and competence.

Firstly: since reason posits outward freedom as its goal, it will inevitably come to the point that the same actions that it secures as law, it forbids as morality. According to law, no one may stop someone who wishes to kill himself or to waste his substance, even though the moral law demands that such acts not occur. For this reason the Wolffian school restricts competence to morally licit actions. But morality penetrates all action, and the competence of someone to be idle would end up eliminating itself, because idleness is against morality, or of someone using his property, because there are people in need. Kant seeks to resolve the contradiction by having reason administer outward freedom according to its own purpose, so that inwardly its commands can freely be met. A person would not contradict himself in such a case. He could be led into temptation, to make the victory all the more glorious; provisionally he does not have to will what he really would like, out of consideration for the final end. Yet this abandonment and restriction of self to future purposes, this free choice of means, is not the essence of a rational law. But the outward is by no means rationally necessary for inward freedom. Experience does show how much they interact, but in terms of their concept, they are independent of each other. When people are prevented from suicide, dissipation, idleness, by outward force, still their inward disposition can also be that they not waste, not commit suicide, not be idle. In other cases, reason must secure not only against restriction by other people but also restriction by nature. For example, it should make all people rich so that voluntarily they can be frugal, and all people poor, so that not abundance but honesty deters them from stealing. Indeed, the contradiction goes even further. As morality, reason demands that force be withheld; as law, the contrary, that force be applied. But as morality it extends to all actions, and therefore it happens that it needs to prescribe the same act in two ways, by what on the one hand must be done (force), something committed, by what on the other hand it cannot allow. The law obliges me to pay my creditors, so according to reason I have to be compelled to do so. But now morality commands me the same thing; it is then contrary to reason that I be compelled. Therefore, Kant made this distinction: morality also imparts to legal obligations their sanctions; but the content of those sanctions is given not by it, but by the law.[3] But that does not resolve the contradiction, just like morality making legal obligations also its own. Because it is thereby compelled to require the uncoerced decision for these as well.

That is why, in the later period of natural law, the aim is everywhere expressed to give an independent principle to law which would be completely divorced from morality. This, it was believed, would remedy this contradiction. But this is not sufficient to separate law and compulsion from morality; rather, they must be separated from ethics altogether. This was accomplished by Fichte, and he was aware of finally having satisfied a long recognized requirement.

In particular, the deduction of law in the subjective sense, and the history thereof until Fichte and Feuerbach

Secondly: rights [Recht] and law [Rechtsgesetz] are contradictory in terms of their concept. The question here is not why a law exists, a law that forces me to protect another’s freedom, even when opposed to moral purposes; rather, given its existence, how a competence can be derived therefrom. Because right, the freedom to do or not to do, cannot possibly follow from a law that only contains that which is necessary. Trying to combine these two concepts is the locomotive engine in the history of the fundamental concepts of natural law. The earliest practitioners did not yet feel the need for such a union. With them there is a sudden break with the deduction of law [des Gesetzes] and obligation, in order to treat rights [Recht] as a facultas moralis, as a potentia activa, the cause of which is then only perfunctorily attributed to natura, lex, consensus, or Deus. As soon as the serious endeavor to find a systematic relationship in this emerged, there was firm opposition to the viewpoint of competence as a new concept, which was maintained as long as possible, in faithfulness to the abstract character. The next attempt therefore was to consider it as being another side of obligation, positing it immediately with obligation. “What I ought to do, that I also may do;” therefore in terms of its concept, every command already contains competence. Thus Wolff, Nettelbladt, et al. But that is not competence, for competence may be forborne, and there are rights to things that one ought not to do. Entitlement is now sought in the obligation of others rather one’s own: “if I am obligated for you, then you are enabled, my limitation is in itself an enlargement for you.” Thus Heydenreich, Hoffbauer, et al. But it does not follow from the fact that I should allow myself to be forced, that the other may force me. If I act unreasonably by not allowing myself to be forced, it does not mean that the other acts reasonably by forcing me. The freedom of the entitled would thus factually exist if the obliged party actually fulfilled the command; but it would not have the ethical content which is intended by the concept of law, and its actual use would even be irrational, because one may not limit the freedom of the other at all.

Likewise the other peculiarity of legal obligation, e.g., that its fulfillment is to be preferred ahead of moral obligation, can be explained only if its essence is that it requires an antecedent right [ein vorausgehendes Recht]. But then one cannot turn around and derive rights [das Recht] from it. The deduction of rights from obligation, be it one’s own, be it another’s, would then have to be abandoned. Now there remained no choice but to derive it directly from laws [Rechtsgesetzes]. The concept of laws contains, as was said, that of competence as well. But here one ran into the contradiction of the lex permissiva. A law [Gesetz] can only command and not permit, and so the specific content of the law [Rechtsgesetzes] would cancel the general nature of the law [Gesetzes], which is absurd. Now of course, a law imparting freedom is indeed not at all contradictory if we are speaking of actual, functioning laws. Because it can never be said of any living cause, prior to experience, what it is capable of and what it is not; and that freedom arises according to laws is just what experience shows. Thus does the natural law of procreation make the son independent of the father, the law of the state sanctions the freedom of the citizen, and the commandment of the lord makes the slaves free. But the law of reason cannot grant freedom; because the actions for which it should provide, it must contain, as consequence, in order to prescribe them. The generally perceived contradiction in the lex permissiva therefore by no means concerned the truth, that no freedom can arise from a law, but rather, that what should arise logically cannot arise as something possible, but only as something necessary. Still, there was no turning back, and competence had to be found entirely in the concept of law [des Rechtsgesetzes]. Kant then resorted to the expedient, that the law does not contain competence immediately but mediately: the law which commands or forbids some things but not all, thereby establishes an empty sphere, out of which action can be taken arbitrarily – this is competence. But this is only negative, not positive allowance; a non-prohibition is not yet a law. Freedom here, notwithstanding the compulsory obligation of others, would follow only as something factual, and the peculiarity of legal obligation would be left unexplained, just as it was with the attempt to derive a right from the obligation of another. Thus the law must contain competence immediately as positive permission – lately even Feuerbach insisted on this – which on the other hand is not possible, since a positive permissive rational law is a contradiction.

Hence the final step of natural law had to be taken: the rights of man [das Recht des Menschen] had to embody the condition of something original, from which even the law [das Rechtsgesetz] arises. The progression, then, runs like this: first, it appeared to be the result of obligation – for it is in the nature of the ethos to will obligation originally; then as ground of obligation, but still a result of the law; and finally as ground of the law itself. But thereby it ceased to follow from reason, for it is itself the initial assumption; and it also no longer need acquiesce in the rule of law; natural law drops from ethics. This step was taken in this respect, as in the aforementioned, by Fichte, and is only an integrating member in the shape which all of philosophy gained through it. It is there that both it and its farther consequences are to be considered.

But we must now answer the question: why does natural law strive in vain to derive right from obligation or obligation from right; why can it not have both, at one stroke, follow from the laws? Then the character of perfect obligation would be explained from rights posited at the same time with obligation, and vice versa, positive competence explained from the simultaneously posited obligation of others. The only thing standing in the way of that conclusion is that such production is no longer logical. In a living body, something is at the same time cause and effect of another. But rational deduction can only find the one in the other; or both, not mutually conditioned, in higher concepts. The attempt to have right and obligation emerge at the same time, which was by no means absent towards the end of the school of thought, is therefore merely syncretistic; they emerge alongside each other rather than becoming a whole by a living impulse; and, as Feuerbach already demonstrated,[4] this attempt therefore cannot attain what was intended. Abstract ethics, as stated above, requires no conditions but only actions on the part of individuals. The law cannot speak into the world: let there be the state! because only isolated persons hear it. Just as little can it say: thou shalt be secured in your freedom! because this is not an affair of its power. It can only say to the isolated individual: I do not forbid it! and to the other: you are to acquiesce in this! But what is said for one, does not exist for the other. Each must declare that which applies to him, as a right or an obligation, as his “very own reason” which speaks to him but not to the other.[5] The non-prohibition of the one and the restriction of the other come as little into connection as do two people dreaming of each other. It is not a real power over them and not a real condition around them, which associates them. The law would only appear as a natural result of the law of reason, if the latter read: thou shalt secure thy freedom, claim ownership! With this it really would lay down a necessity. But the law does not read like that, and if it did, only obligations would exist, not rights.

Natural law necessarily encountered all of this difficulty, due the nature of its principle. From reason cannot emerge various things freely demarcated the one from the other. Reason cannot generate a product independent over against itself. Man, thinking in isolation, is encouraged only to isolated actions; no condition to which he pertains with multiple others can make known to him regulation or sanction. –

Therefore one cannot consider the difficulties and contradictions here laid bare to be superfluous subtlety. Subtlety is indeed altogether the effort to get results through such reasoning, which only adheres strictly to the characteristics of the concept and acquiesces in and takes in nothing that constitutes the living reality of the matter. And in what consists abstract philosophy other than this endeavor? Its essence is subtlety, and to investigate what can be attained with this is the only way it can be understood and appreciated. It would have won the game if the requirements that it lays down and busies itself to accomplish, were not to be made into works, to which it would strictly be referred. It would not have it any other way. For all that subtlety compels is, as we have shown, actually accepted by the outstanding intellects of the school of thought, and scientific progress was arranged accordingly. That which was claimed above, is here demonstrated: the historical progression itself constitutes the tribunal.

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Notes

[1] Fund. jur. nat. l. II, c. 6. §. 3. This was attributed to his students, unjustly.

[2] Kritik des natürlichen Rechts [Critique of natural law].

[3] Methaphysische Anfangsgründe der Rechtslehre [Metaphysical Elements of the Doctrine of Law], 2nd edition, p. xvi.

[4] Loc. cit., pp. 209ff.

[5] So declares Feuerbach most decisively, ibid., pp. 147-148.