The Law Of Liberty...
INTRODUCTION TO THE METAPHYSIC OF LAW.
SEC. A.—
WHAT THE SCIENCE OF LAW IS.
THE aggregate of those laws which may be externally promulgated is law (jus). If really so announced by a lawgiver, such legislation becomes real, and composes positive law (jus scriptum). He who knows this, is a jurisconsult; and is even jurisperitus when he can dexterously apply the law to occurring cases,—a skill which, if great, may even entitle a man to rank among the jurisprudents. When, however, we abstract from such jurisperitia and jurisprudentia, what remains is merely the scientific theory of law. By the science of law is meant the systematic knowledge of the principles of the law of nature (from which positive law takes its rise), which is for ever the same, and carries its sure and unchanging obligations over all nations and throughout all ages.
SEC. B.—
WHAT IS LAW?
This is a question which may embarrass the lawyer as much as the celebrated question, “What is truth?” does the logician; for he must avoid tautology, and give a general explanation abstracted from the particular legislation obtaining in any one country. What the law in any instance is (quid sit juris), the jurisconsult can easily tell; but whether it is right or just that it should be so, is what he wants a criterion to determine. But this criterion can only then be found when, abandoning all posteriori principles, he ascends to the sources of reason, and discovers on what all legislation whatsoever can alone be based; in which analysis positive law is doubtless a great help and guide. But laws founded singly on experience, are like the mask in the fable, beautiful, but hollow.
The notion of law, in so far as it imports obligation—i.e., annexes the predicate, “forbidden” or “allowed,” to an action—regards, first, the external practical relation of person to person, in so far as the actions of one may affect or influence another; second, it does not regard the relation betwixt the choice of one and the wishes or wants of another, as in deeds of benevolence or severity, but merely respects the relationship of choice to choice; thirdly, in this reciprocal relationship of choices, no question is made as to the matter chosen. The form of the choice, i.e., the choice considered as free, is alone regarded, i.e., whether the action of one man is consistent with, and does not impair, the free choice of another.
Law—the rule of right—is therefore the aggregate of those conditions, according to which personal choices may harmonize and not destroy one another by being subordinated to freedom’s law universal.
SEC. C.—
SUPREME PRINCIPLE OF LAW.
Every action isright and just,the maxim of which allows the agents freedom of choice to harmonize with the freedom of every other,according to a universal law.
If, therefore, my deportment, or, generally, my condition is not inconsistent with the universal freedom of every other person, he does me a wrong who hinders such state, or obstructs my actions; for such obstruction is inconsistent with a universal law of liberty.
From this it follows, that no one is legally entitled to demand that I make this principle of universal legality the maxim or spring of my conduct. Another’s freedom may be indifferent to me,—nay, I may wish to evade it; but so long as I do it not, I am juridically just. That justice should be itself my maxim, belongs to the second part of Ethics.
The law or universal rule of right is, So act that the use of thy freedom may not circumscribe the freedom of any other (i.e. if thy act or maxim were made imperative on all),—a law imposing no doubt obligation, but which does not exact the determination of choice by the contemplation of the obligation. Reason singly announces, that it in idea so limits freedom, and that others may in real fact and event co-act such limitation; and this it announces as a postulate incapable of further proof. As we here treat not of offices of virtue, but explain what is just and right, it is impossible to represent this law as the spring moving us to action.
SEC. D.—
LAW CARRIES WITH IT A TITLE OF CO-ACTION.
An obstacle opposed to that which hinders an effect, advances that effect, and tends to that end. But everything unjust is a hindrance to freedom, according to law universal. Again, co-action is a hindrance put upon freedom. Therefore, if a certain use of freedom is a hindrance to freedom universal, i.e., unjust and wrong, then co-action preventing such misuse of freedom goes to establish freedom according to a universal law, i.e., is just or right; and consequently law has in itself a right to co-act him who attempts to violate it.
SEC. E. —
LAW MAY LIKEWISE BE STRICTLY DEFINED AS THAT BY WHICH MUTUAL CO-ACTION IS MADE CONSISTENT WITH UNIVERSAL FREEDOM.
The purport of this sentence is, that Law is not to be regarded as made up of two parts, the one obligation, the other a title to co-act; but that the very notion of law consists in that of the possibility of combining universal mutual co-action with every person’s freedom.
For since law respects that only which is external and phenomenal in an action, strict law, i.e., law in which no ethical consideration is introduced, can require no internal, but merely external, determinators of choice, even although co-action be required to do so. All law whatever rests, it is true, on the consciousness of obligation under the moral law itself; but pure or strict law, in the sense now taken, does not expect that this consciousness should be the spring of conduct; but supports itself as a legislation for external actions, on its principle of co-action. When, therefore, it is said a creditor is entitled to demand payment from his debtor, that never implies that he may represent to the latter that his own reason imposes that obligation; but it signifies that external co-action physically forcing the payment of debt consists with universal freedom, and so even with the debtor’s. This position of reciprocal action and co-action throughout the whole system of Intelligents, gives, if I may so speak, a lively image of the notion Law in a sensible figure à priori, and carries us by analogy to the law of action and reaction in the communicating of external motion; and as by virtue of it the quantity of motion remained undiminished, so here, by virtue of this reciprocal co-active mechanism, the quantum of personal freedom is preserved undiminished throughout the system, in the intercourse and exchange of man with man.
Again, as in the Mathematics, the truths of that science are not deduced from the naked notion, but by help of the configurations of space answering to the given notion; so it is not so much the notion Law, as that equal and mutual co-action corresponding to the idea, by means of which a deduction, and, as I may say, delineation of its truths are possible (i.e., the propositions are not taken from the originary moral idea of the law, but from this subjected mechanism). (Beck. Com. 107.) And because to this dynamic notion co-action three corresponds a formal one, taken from the Mathematics previously spoken of, it comes to pass, that what is right is cogitated and spoken of as we do of right lines, where “right,” the rectilineal, are opposed to “curves” and oblique lines. That kind of rightness which is opposed to “curve,” is that inward property of a line, whereby it is the only one possible betwixt two points; and that rightness opposed to obliquity takes place where, betwixt two intersecting segments, one only perpendicular can be drawn, inclining to neither segment, but dividing equally the enclosed space.
In like manner, law insists that there be rigidly and equally given to every man his own; a mathematical precision not exigible in the offices of virtue, these last often admitting a certain latitude of application. However, without wandering into the domain of Ethics, there are two cases demanding solution, but which no Œdipus seems willing to resolve, and look as if they belonged to the “Intermundia” of Epicurus. Such two stumbling blocks1 must forthwith be removed from the domain of jurisprudence proper, lest their uncertainties should be imagined to have any common part with the firm and stable principles of law.
[1 ]Viz., Equity and Necessity.
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