The Philosophy of Law: Private Right, § 36: How and What Acquisition Is Subjectively Conditioned by the Principle of a Public Court
Private Right, § 36: How and What Acquisition Is Subjectively Conditioned by the Principle of a Public Court
NATUKAL RIGHT, understood simply as that Right which is not statutory, and which is knowable purely h priori, by every man’s Reason, will include Distributive Justice as well as Commutative Justice. It is manifest that the latter as constituting the Justice that is valid between Persons in their reciprocal relations of inter course with one another, must belong to Natural Right. But this holds also of Distributive Justice, in so far as it can be known a priori; and Decisions or Sentences regarding it, must be regulated by the Law of Natural Right.
The Moral Person who presides in the sphere of Justice and administers it, is called the COURT of Justice, and as engaged in the process of official duty, the Judi-eatory; the Sentence delivered in a case, is the Judgment (judicium). All this is to be here viewed a priori, according to the rational Conditions of Right, without taking into consideration how such a Constitution is to be actually established or organized, for which particular Statutes, and consequently empirical Principles, are requisite.
The question, then, in this connection, is not merely ‘What is right in itself? in the sense in which every man must determine it by the Judgment of Reason; but’ What is Right as applied to this case? ‘that is, what is right and just as viewed by a Court? The rational and the judicial points of view, are therefore to be distinguished; and there are four Cases in which the two forms of Judgment have a different and opposite issue. And yet they may coexist with each other, because they are delivered from two different, yet respectively true points of view: the one from regard to Private Right, the other from the Idea of Public Right. They are: I. THE CONTKACT OF DONATION (pactum dona-tionis), II. THE CONTRACT OF LOAN (commodatum), III. THE ACTION OF REAL REVINDICATION (vindicatio), and IV. GUARANTEE BY OATH (jur amentum).
It is a common error on the part of the Jurist to fall here into the fallacy of begging the question, by a tacit assumption (yitium subreptionis). This is done by assuming as objective and absolute the juridical Principle which a Public Court of Justice is entitled and even bound to adopt in its own behoof, and only from the subjective purpose of qualifying itself to decide and judge upon all the Rights pertaining to individuals. It is therefore of no small importance to make this specific difference intelligible, and to draw attention to it.