Metaphysic of Ethics
Appendix to the Introduction
Law, strictly so called, always implies the power to co-act. But people have fancied to themselves law in some broader sense, where the title to co-act is indefinite, and quite indeterminable. Of this kind there have been usurped two sorts, equity and necessity: the former is alleged to be a law which has no co-action, but the latter is a co-action (necessity) which has no law; and the difficulty springs from this, that they are cases of opaque law, to decide which no judge can be constituted.
I.—
Equity
Equity, considered in itself, does not in any wise address itself to the ethical duty of another; for he who vindicates his property on this head, stands upon his own right; but he is unable to assign the data which would empower the judge to decide his cause: for example, a servant who has contracted with his superior for a certain hire, may, at the expiry of his service, come to receive wages in coin greatly depreciated, though nominally the same in value; and the same would occur in loans, or in any other money contract, where the debtor holds himself entitled to exact payment higher in proportion to the depreciation of the currency; but he has no claim in law, and sees himself forced to call on equity for aid, a mute goddess, who returns no response: and unless parties have guarded against contingencies by the specific stipulations of their contract, a judge can give no relief, for he cannot pronounce sentence upon vague and indefinite conditions.
Hence it follows, that a court of equity (in a question about the rights of man) is a contradiction and absurdity. There alone, where the proper rights of the judge are involved, ought he to give ear to the dictates of equity. Thus the Crown may equitably take upon itself the losses sustained by others on its behalf, and ought, when called upon to do so, to indemnify the subject; although, in point of law, the Crown might urge that the subject had, at his own risk singly, undertaken its defence.
The motto of equity is, Summum jus summa injuria, extreme law is extreme injustice; but this inconvenience cannot be remedied by law, although the claim is a claim of right. The other part of Ethic alone teaches, to deem the rights of man sacred and inviolable.
II.—
Necessity
This alleged right is that title which a man is supposed to have, of killing another who has done him no harm, provided he cannot otherwise extricate himself from danger. And here it seems that law is repugnant to itself. For this is not the case of an assassin whom I am allowed to anticipate, by consigning him to death; but of alleged violence which I am entitled to use against another from whom I have received no wrong.
This assertion, it is plain, does not refer to any given law, but respects the sentence which judges must pronounce when such a case of necessity is carried before them; for there can be no law adjudging death to him who in a case of shipwreck knocks another from an oar, which is barely sufficient to save himself. The punishment threatened by the law cannot be made higher than the loss of life, already impending over him. A statute can, therefore, have no effect in such a crisis; for the punishment being uncertain, cannot outweigh the dread of death, which is instant and certain. The law sees itself in this way forced to consider violent self-preservation, not as devoid of blame, but as incapable of being punished. And this impunity, resulting entirely from the accidental nature of the case, has been constantly mistaken by jurists for an impunity founded in the nature of the law itself, i.e., the action has been regarded as just and blameless.
The motto of necessity is, Necessity has no law. However, there never can be any case, making the unjust and wrong justifiable before the law.
GENERAL DIVISION OF JURISPRUDENCE.
A.—
DIVISION OF JURIDICAL OFFICES.
In this division we may follow Ulpian, by slightly modifying our understanding of his legal formulæ,—a meaning perhaps darkly present to his own mind, and which can be evolved from them with great ease and elegance.
1.
Honeste vive—(be an honest man).—Juridical honesty or uprightness consists in upholding one’s personal worth, as a man, against all others,—an obligation capable of being expressed by the following formula:—“Suffer thyself not to become the bare mean of others; and if thou serve them, be also their end.” This obligation is afterwards explained, as founded on the rights of humanity in a man’s own person—(lex justi).
2.
Neminem læde—(do no man wrong)—even though as a consequence thou must abandon all connections with others, and go out of society—(lex juridica.)
3.
Suum cuique tribue—(give each man his own).—Understood literally, these words are void of meaning, for that cannot be given to another which he already has. The formula can therefore alone signify, Enter with thy fellow-men into that state—society—where each man’s own is defended from the violence of his neighbour—(lex justitiæ).
These three classical formulæ make up one entire division of the principles of law, and found a division of juridical obligation into internal—external—and that composite obligation, which is constituted by subsuming the second under the principle of the first.
B.—
Division of Rights
A system of rights is called law, and is either natural, or statutable and positive. In the first case, law rests entirely on pure principles à priori; in the latter, it is considered as based on the will of a lawgiver.
2. Right is the ethical faculty or title of obliging another, and is the legal ground on which the latter sort of law is based; and of such right there are two kinds, originary and derived: the first is that birthright of man which subsists independently of any legal act; the second is that which is acquired to him by such an act.
The congenital mine and thine may be also called the inward or intrinsic right, for external right must always be acquired.
There Is But One Birthright, Freedom.
Freedom is the alone unoriginated birthright of man, and belongs to him by force of his humanity; and is independence on the will and co-action of every other in so far as this consists with every other person’s freedom. Subordinate to this supreme idea, and included under it, are the rights,—1. of Equality, i.e., the title not to be held bound to others beyond what they are in their turn bound to; consequently the right of every one to be his own master (sui juris): 2. The right to be regarded as legally innocent and guiltless, in so far as no one has been injured by his use of his freedom: 3. Lastly, the right to do to every man whatever implies nothing derogatory to that other’s rights, as, for example, to exchange one’s ideas and opinions with another, to tell or promise somewhat, and that whether true or untrue, whether sincerely or insincerely; for it is the province of the other to believe or discredit what is said—to accept or decline what is promised.*
The reason why this division, breaking up the conception Freedom into its subordinate parts, has obtained among systems of natural law, is this, that when a question arises as to any derived right, and the question arises on whom the burden lies to prove either the fact, or to establish the law of his case, the party who declines the obligation, and asserts it to be with the other, does in fact appeal to his birthright, and so declares, that to impute to him an obligation to prove, is inconsistent with some part or other (e.g., equality, innocence) of his character freedom; and this may be carried through all the different relations into which freedom can specifically enter.
Further, because this birthright is one and indivisible, the division of rights consists of two members of most unequal dimensions; and therefore this right is discussed now in the introduction, and the subdivisions of natural law restrained to the external rights of mine and thine.
I. All obligations incumbent on man to fulfil, are either juridical, for which outward laws are admissible to co-act their observance, or ethical, where no such legislation is conceivable; and these ethical offices cannot fall under any outward co-active legislation, because such offices depend on certain ends and designs which it is the imperative duty of man to propose to himself. But no outward compulsion can give any person certain intentions, for these depend on himself alone; for even though outward actions can be extorted, tending to that end, still the subject himself may be disinclined to it.
II. Man, as a subject of obligation, is considered singly with reference to his freedom, which is supersensible, that is, his humanity, in which consists his personality, exempting him from every phenomenal determinator (homo noumenon), and requires to be contradistinguished from himself, as the same person subjected to the conditions of time and space (homo phenomenon); and these, when applied to those two kinds of offices, resting on the notions right and end, give birth to the following division of all moral science, and is a division founded on the relations subsisting betwixt the law and the matter of obligation.
Offices of perfect or determinate obligation.
I. II.
The rights of humanity in Juridical The rights of Offices owed by a man’s own person. offices. man. Offices owed by man to himself. III. IV. man to others.
The ends of humanity in Ethical The ends of one’s own person. offices. other men. Offices of indeterminate obligation.
Besides the above division, the subjects mutually obliging one another may stand in different relations, and these relationships would afford the ground-plan of another division, according to the relation betwixt the obliger and the obliged.
i. ii.
The legal relation betwixt man and beings possessed neither of rights nor obligations. The legal relation of man to beings possessed both of rights and subjected to obligation.
vacat. adest.
For these are irrational beings, devoid of power For that is a relation betwixt man andto oblige, and towards whom no obligation can man.
be constituted.
iii. iv. The legal relation subsisting betwixt man and The relation betwixt man and that beings subjected to obligations, but devoid of being who has rights, but is subjected rights. to no duties. vacat. vacat.
In a system of pure philosophy; forFor these would be men devoid of personality such a being is no object of possible(slaves).
experience.
Division of Ethic as a general System of Human Offices or Duties.
Elementology. Methodology.
Juridical offices. Ethical offices.Didactics.Ascetics.
Private law.Public law.
Where we have exhibited at once the materials and the architectonic form of the science.
The law of nature ought not to be divided, as is often done, into natural and social, but into natural and civil or municipal: the first is called private, the second public law; for to the state of nature, not social institutions, but the civil or municipal, are to be opposed. In the state of nature, society need not be awanting, but only that civil society, securing by public institutions the rights of man; and that is the reason why the natural is called private law (jus privatum).*