The Philosophy of Law: Private Right, § 41: Public Justice as Related to the Natural and the Civil State
Private Right, § 41: Public Justice as Related to the Natural and the Civil State
The Juridical state is that relation of men to one another which contains the conditions, under which it is alone possible for every one to obtain the Right that is his due. The formal Principle of the possibility of actually participating in such Right, viewed in accordance with the Idea of a universally legislative Will, is PUBLIC JUSTICE. Public Justice may be considered in relation either to the Possibility, or Actuality, or Necessity of the Possession of objects—regarded as the matter of the activity of the Will—according to laws. It may thus be divided into Protective Justice (justitia testatrix), Commutative Justice (justitia commutativa), and Distributive Justice (justitia distributiva). In the first mode of Justice, the Law declares merely what Relation is internally right in respect of Form (lex justi); in the second, it declares what is likewise externally in accord with a Law in respect of the Object, and what Possession is rightful (lex juridica); and in the third, it declares what is right, and what is just, and to what extent, by the Judgment of a Court in any particular case coming under the <’iven Law. In this latter relation, the Public €ourt is called the Justice of the Country; and the ques tion whether there actually is or is not such an administration of Public Justice, may be regarded as the most important of all juridical interests.
The non-juridical state is that condition of Society in which there is no Distributive Justice. It is commonly called the Natural state (static natumlis), or the state of Nature. It is not the ‘Social State,’ as Achenwall puts it, for this may be in itself an artificial state (status artificialis), that is to be contradistinguished from the ‘Natural’ state. The opposite of the state of Nature is the Civil state (status civilis) as the condition of a Society standing under a Distributive Justice. In the state of Nature there may even be juridical forms of Society—such as Marriage, Parental Authority, the Household, and such like. For none of these, however, does any Law a priori lay it down as an incumbent obligation, ‘Thou shalt enter into this state.’ But it may be said of the Juridical state that ‘all men who may even involuntarily come into Relations of Right with one another, ouyht to enter into this state.’
The Natural or non - juridical Social state may be viewed as the sphere of PRIVATE RIGHT, and the Civil state may be specially regarded as the sphere of PUBLIC RIGHT. The latter state contains no more and no other Duties of men towards each other than what may be conceived in connection with the former state; the Matter of Private Right is, in short, the very same in both. The Laws of the Civil state, therefore, only turn upon the juridical Form of the co-existence of men under a common Constitution; and in this respect these Laws must necessarily be regarded and conceived as Public Laws.
The Civil Union (Unio civilis) cannot, in the strict sense, be properly called a Society; for there is no sociality in common between the Ruler (imperans) and the Subject (subditus) under a Civil Constitution. They are not co-ordinated as Associates in a Society with each other, but the one is subordinated to the other. Those who may be co-ordinated with one another must consider themselves as mutually equal, in so far as they stand under common Laws. The Civil Union may therefore be regarded not so much as being, but rather as making a Society.