1

Rechtslehre.

2

It appeared soon after Michaelmas 1796, but with the year 1797 on the title-page. This has given rise to some confusion regarding the date of the first Edition, which is now usually quoted as 1796-7. (Schubert, Kant’s Werke, Bd. ix. viii., and Biographie, p. 145.)

3

Die Metaphysik der Sitten. Erster Theil. Metaphysische Anfangsgründe der Rechtslehre. Königsberg, 1797.

4

Grundlegung zur Metaphysik der Sitten. Translated by Willich (1798), Semple (1836), and Abbott (1873).

1

These Supplementary Explanations were appended by Kant to the First Part of the work, to which most of their detail more directly apply; but they are more conveniently appended in this translation to the whole work, an arrangement which has also been adopted by the other Translators.

2

Initia Metaphysica Doctrinæ Juris. Immanvelis Kantii Opera ad philosophiam criticam. Latine vertit Fredericus Gottlob Born. Volumen quartum. Lipsiæ, MDCCLXXXXVIII.

3

Elementa Metaphysica Juris Doctrinæ. Latine vertit G. L. König. Amstel. 1800, 8. (Warnkönig and others erroneously refer it to Gotha.)

4

Principes Métaphysiques du Droit, par Emm. Kant, etc. Paris, 1837.

5

Eléments Métaphysiques de la Doctrine du Droit, etc. Paris, 1853.

6

The Preface and the Introductions ( infra, pp. 1-58, 259-265) have been translated by Mr. Semple. See The Metaphysic of Ethics by Immanuel Kant, translated by J. W. Semple, Advocate. Fourth Ed. Edited with Introduction by Rev. Henry Calderwood, LL.D., Professor of Moral Philosophy, University of Edinburgh. Edin.: T. T. Clark, 1886. — These are indispensable parts of the present work, but they have been translated entirely anew.

1

He ceased lecturing in 1797; and the only works of any importance published by himself subsequent to the Rechtslehre, were the Metaphysische Anfangsgründe der Tugendlehre in 1797, and Der Streit der Facultäten and the Anthropologie in 1798. The Logik was edited by Jäsche in 1800; the Physische Geographie by Rink in 1802, and the Pädagogik, also by Rink, in 1803, the year before Kant’s death.

2

Kritik der reinen Vernunft. Translated anew by Max Müller (1881).

3

Kritik der praktischen Vernunft. Translated by Abbott.

4

Kritik der Urtheilskraft. Translated into French by M. Barni.

1

Fichte’s Nachgelassene Werke, 2 Bd. System der Rechtslehre (1804), 498, etc. (Bonn, 1834.) Fichte’s Grundlage des Naturrechts (1796), as he himself points out, was published before Kant’s Rechtslehre, butits principles are all essentially Kantian. (Translated by Kroeger, Philadelphia, 1870.)

1

Hegel’s Werke, Bd. i. Philosophische Abhandlungen, iv. Ueber die Wissenschaftlichen Behandlungsarten des Naturrechts (1802-3); and the Grundlinien der Philosophie des Rechts, oder Naturrecht und Staatswissenschaft im Grundrisse (1821). Werke, Bd. viii. ( passim ). Dr. J. Hutchison Stirling’s Lectures on the Philosophy of Law present a most incisive and suggestive introduction to Hegel’s Philosophy of Right.

2

Die beiden Grundprobleme der Ethik (1841), pp. 118-9.

3

Grundlinien einer Kritik der bisherigen Sittenlehre (1803). Entwurf eines Systems der Sittenlehre, herausg. von A. Schweizer (1835). Grundriss der philosophischen Ethik, von A. Twesten (1841). Die Lehre vom Staat, herausg. von Ch. A. Brandes (1845).

1

Grundlage des Naturrechts (1803). Abriss des Systems der Philosophie des Rechts oder des Naturrechts (1828). Krause is now universally recognised as the definite founder of the organic and positive school of Natural Right. His principles have been ably expounded by his two most faithful followers, Ahrens ( Cours de Droit Naturel, 7th ed. 1875) and Röder ( Grundzüge des Naturrechts o. der Rechtsfilosofie, 2 Auf. 1860). Professor J. S. del Rio of Madrid has vividly expounded and enthusiastically advocated Krause’s system in Spanish. Professor Lorimer of the Edinburgh University, while maintaining an independent and critical attitude towards the various Schools of Jurisprudence, is in close sympathy with the Principles of Krause ( The Institutes of Law: a Treatise of the Principles of Jurisprudence as determined by Nature, 2nd ed. 1880, and The Institutes of the Law of Nations ). He has clearly indicated his agreement with the Kantian School, so far as its principles go ( Instit. p. 336, n.).

1

This applies to the latest German discussions and doctrines. The following works may be referred to as the most important recent contributions, in addition to those mentioned above (such as Ahrens and Röder, xi. n.):—Trendelenburg, Naturrecht auf dem Grunde der Ethik, 2 Auf. 1868. Post, Das Naturgesetz des Rechts, 1867. W. Arnold, Cultur und Rechtsleben, 1865. Ulrici, Naturrecht, 1873. Zoepfl, Grundriss zu Vorlesungen über Rechtsphilosophie, 1878. Rudolph von Ihering, Der Zweck im Recht, i. 1877, ii. 1883. Professor Frohschammer of Munich has discussed the problem of Right in a thoughtful and suggestive way from the standpoint of his original and interesting System of Philosophy, in his new volume, Ueber die Organisation und Cultur der menschlichen Gesellschaft, Philosophische Untersuchungen über Recht und Staat, sociales Leben und Erziehung, 1885.

2

Leibnitz, Nova Methodus discendæ docendæque Jurisprudentiæ, 1767. Observationes de principio Juris. Codex Juris Gentium, 1693-1700.

Wolff, Jus Naturæ Methodo Scientifica pertractatum, Lips. 8 Tomi. 1740-48. Institutiones Juris Naturæ et Gentium, Halæ, 1754. (In French by Luzac, Amsterdam, 1742, 4 vols.) Vernünftige Gedanken.

Vatel, Le Droit des Gens, Leyden, 1758. Edited by Royer-Collard, Paris, 1835. English translation by Chitty, 1834. [For the other works of this school, see Ahrens, i. 323-4, or Miller’s Leetures, p. 411.]

1

Grotius, De Jure Belli ac Pacis, lib. iii. 1625. Translated by Barbeyrae into French, 1724; and by Whewell into English, 1858.

Pufendorf, Elementa Juris Universalis, 1660. De Jure Naturæ et Gentium, 1672. [English translation by Kennett, 1729.]

Cumberland, De Legibus Naturæ Disquisitio Philosophica, London, 1672. Translated into English by Towers, Dublin, 1750.

Cocceji, Grotius illustratus, etc., 3 vols. 1744-7. [See Miller, 409.]

2

Christian Thomasius (1655-1728) first clearly distinguished between the Doctrine of Right and Ethics, and laid the basis of the celebrated distinction of Perfect and Imperfect Obligations as differentiated by the element of Constraint. See Professor Lorimer’s excellent account of Thomasius and of Kant’s relation to his System, Inst. of Law, p. 288; and Röder, i. 240. The principal works of this School are: Thomasius, Fundamenta juris naturæ et gentium ex sensu communi deducta, 1705. Gerhard, Delineatio juris naturalis, 1712. Gundling, Jus Naturæ et gentium. Koehler, Exercitationes, 1728. Achenwall, Prolegomena Juris naturalis, and Jus Naturæ, 1781.

1

Hobbes, De Cive, 1642. Leviathan seu de civitate ecclesiastica et civili, 1651. On Hobbes generally, see Professor Croom Robertson’s Monograph in ‘Blackwood’s Philosophical Classics.’

2

L’origine et les fondements de l’inégalité parmi les hommes, Dijon, 1751. Contrat social, 1762. Rousseau’s writings were eagerly read by Kant, and greatly influenced him. On Rousseau generally, see John Morley’s Rousseau, Lond. 1878.

1

Burke is assigned to the Historical School of Jurisprudence by Ahrens, who not inaptly designates him ‘the Mirabeau of the antirevolution’ (i. 53). See the Reflections on the French Revolution (1790). Stahl gives a high estimate of Burke as ‘the purest representative of Conservatism.’

1

‘The very cry of the hour is, Fichte and Schelling are dead, and Hegel, if not clotted nonsense, is unintelligible; let us go back to Kant. See, too, in other countries, what a difference the want of Kant has made.’ Dr. J. H. Stirling, Mind, No. xxxvi. ‘Within the last ten years many voices have been heard, both in this country and in Germany, bidding us return to Kant, as to that which is alone sound and hopeful in Philosophy; that which unites the prudence of science with the highest speculative enterprise that is possible without idealistic extravagances.’ Professor E. Caird, Journal of Speculative Philosophy, vol. xiv. 1, 126. ‘From Hegel, we must, I think, still return upon Kant, seeking fresh hope for Philosophy in a continued use of the critical method.’ Professor Calderwood, Introduction to Kant’s Metaphysic of Ethics, p. xix.

2

The Socialistic and Communistic Doctrines of Owen (1771-1858), Fourier (1777-1837), Saint-Simon (1760-1825), Louis Blanc, Proudhon, and Cabet, ‘considered as aberrations in the development of Right,’ are sketched by Ahrens (i. § 12) with his characteristic discrimination and fairness. The principles of the contemporary English Socialism will be found summed up in A Summary of the Principles of Socialism written for the Democratic Federation, by H. M. Hyndman and William Morris (1884). Compare also Hyndman’s The Historical Basis of Socialism in England, and To-day and Justice, the organs of the Social Democracy.

1

Schelling’s contributions to the Science of Right have hardly received the attention they deserve. The absorption of his thought in the Philosophy of Nature left him less free to devote himself to the Philosophy of History, but it is mainly to him that the idea of the systematic objectivity and the organic vitality of the State, in its latest forms, is due. Hegel and Krause have severally adopted and developed the two sides of this conception. Compare Schelling’s Abhandlung über das Naturrecht in Fichte and Niethammer’s Journal, iv. and v.; and his Vorlesungen über die Methode des akademischen Studiums, p. 146, etc. See Stahl’s excellent account of Schelling’s Doctrine, Philosophie des Rechts, i. 403-14, and The Journal of Speculative Philosophy, vol. xiii. No. 3, vi., ‘Schelling on History and Jurisprudence.’

1

Stahl and Baader represent the Neo-Schellingian standpoint in their philosophical doctrines.—F. J. Stahl, Die Philosophie des Rechts, 3 Bde., 3 Auf. 1865 (an important and meritorious work).—Franz von Baader’s Sämmtliche Werke, 16 Bde. 1851-60. (Cf. Franz Hoffmann’s Beleuchtung des Angriffs auf Baader in Thilo’s Schrift: ‘Die theologisikende Rechtsund Staatslehre,’ 1861.)—Joseph de Maistre, Soirées de St. Petersburg, Paris, 1821. Mémoires, etc., par A. Blanc, 1858.—L’ Abbé de Bonald, Législation primitive, 1821.

2

Hugo (1768-1844) is usually regarded as the founder, and Savigny (1778-1861) as the chief representative of the Historical School. Hugo, Lehrbuch des Naturrechts als einer Philosophie des positiven Rechts, 1799, 3 Auf. 1820. Frederich Carl von Savigny, Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft, 1814; System des heutigen Römischen Rechts, 1840. (See Guthrie’s translation of Savigny, Treatise on the Conflict of Laws, with an excellent Preface. T. T. Clark.)

3

The Historical School, as Ahrens shows, must be carried back so as to include such thinkers as Cujas, the great French Jurist of the 16th century, who called the History of Right his ‘hameçon d’or;’ Montesquieu (1689-1755), whose well-known book, L’Esprit des Lois (1748), ran through twenty-two editions in a few years; and the Neapolitan Vico (1688-1744), the founder of the ‘New Science’ of History. Vico is only now becoming properly appreciated. See Professor’s Flint’s able and instructive ‘Vico’ in Blackwood’s Philosophical Classics. ‘In his work, De universi juris uno principio et fine (1820), Vico divides the whole Science of Right into three parts: (1) the Philosophy of Right, (2) the History of Right, and (3) the Art of applying the Philosophy to facts. He distinguishes profoundly in Laws the spirit or will of the legislator ( mens legis ) and the reason of the law ( ratio legis ), which consists in the accordance of a law with historical facts and with the eternal principles of the True and Good’ (Ahrens). The contemporary Historical School does not yet occupy so philosophical a position.

1

Sir Henry Sumner Maine, the most eminent English representative of the Historical School, continues to regard ‘the philosophy founded on the hypothesis of a state of nature’ as ‘still the greatest antagonist of the Historical Method’ ( Ancient Law, pp. 90, 91); but this is evidently said in disregard of the transformation of Rousseau’s theory by Kant, and the contributions to the application of the Historical Method by Hegel and his school, in whose principle the historic evolution is an essential element. Sir H. S. Maine’s own contributions cannot be too highly recommended for their thoroughness and suggestiveness. He has gathered much of his original and pregnant matter from direct acquaintance with India, where, as is the case with the forms of nature, the whole genesis and stratification of the forms of Society are presented livingly to view. ( Ancient Law, 1861, 7th ed. 1880. Village Communities in the East and West, 4th ed. 1881. Early History of Institutions, 1874.)

1

Extremes meet in the moral indifference of the universal naturalism of the ultra-historical School and the abstract absolute rationalism of Spinoza. It was Grotius who first clearly distinguished between positive fact and rational idea in the sphere of Right, and thus originated the movement of modern ‘jural’ speculation. For evidence of the statement in the text, see Bentham’s Works, Buckle’s History of Civilisation, Mill on Liberty, and especially Puchta’s Encyclopädie, introductory to his Cursus der Institutionen, 6 Auf. 1865. The standpoint of the Historical School has been thoroughly reviewed by Stahl, i. 570-90; Ahrens, i. 51-61; and Röder, i. 266-279.

2

‘Ueber den Charakter und die Aufgaben unserer Zeit in Beziehung auf Staat und Staatswissenschaft,’ Giess. 1832. Zwölf Bücher vom Staate, 1839. See Rosenkranz’s Geschichte der Kant’schen Philosophie, p. 268.

1

This remark especially applies to the running fire of criticism in Von Kirchmann’s recent Erläuterungen zu Kant’s Metaphysik der Sitten, 1882. It is a matter of regret that such criticisms cannot be here dealt with in detail. Kant has himself clearly indicated the position stated above, as at p. 54, infra. —The depth and subtlety of Kant’s method, so far transcending the common modes of juridical thinking in England, are inseparable from the system, but he has himself given the sufficient reason for their appearance in it ( infra, p. 116). Without entering in detail upon the point, the translator may remark with regard to one conspicuous, yet irremoveable blot, that he homologates the unanimous disapprobation of subsequent jurists, and would only refer to Dr. Hutchison Stirling’s drastic castigation of it in his Lectures, p. 51. But of this and other difficulties in so original and originative a work can only be said in the meantime:

  • ‘Sunt delicta tamen, quibus ignovisse velimus.’

And every reader and student should be ready to apply the Horatian rule here too:

  • ‘Verum ubi plura nitent . . . non ego paucis
  • Offendar maculis, quas aut incuria fudit
  • Aut humana parum cavit natura.’
1

Fragment on Government, 1776. Essay on Political Tactics, 1791. Principles of Morals and Legislation, 1780. Traités de Legislation, 1802.

2

Province of Jurisprudence determined, or Philosophy of Positive Law, 1832. Lectures on Jurisprudence, edited by his Widow.

Austin (1790-1859) has been greatly overestimated as a Jurist by his friends and followers. The affectionate tributes of his widow may be borne with, but it is more extraordinary to find Professor Sheldon Amos characterizing him as ‘the true founder of the Science of Law’ (S. Amos, The Science of Law, p. 4). Here is Austin’s estimate of Kant’s Science of Right: ‘A treatise darkened by a philosophy which, I own, is my aversion, but abounding, I must needs admit, with traces of rare sagacity. He has seized a number of notions, complex and difficult in the extreme, with distinction and precision which are marvellous, considering the scantiness of his means. For of positive systems of law he had scarcely the slightest tincture; and the knowledge of the principles of jurisprudence, which he borrowed from other writers, was drawn, for the most part, from the muddiest sources; from books about the fustian which is styled the Law of Nature.’ ( Lectures, iii. 157.) And here is his account of the German Jurists generally: ‘It is really lamentable that the instructive and admirable books which many of the German Jurists have certainly produced, should be rendered inaccessible, or extremely difficult of access, by the thick coat of obscuring jargon with which they have wantonly incrusted their necessarily difficult science’ (ii. 405). Comment on this is superfluous. In the same breath a more condemnatory judgment is dealt out even to Sir W. Blackstone. So long as such statements passed as philosophical criticism there was no possibility for a genuine Philosophy of Law in England. Austin, notwithstanding his English reputation, is entirely ignored by the German Jurists. He seems to have known only enough of German to consult the more popular productions of the Historical School. Dr. Hutchison Stirling has dealt with Austin’s commonplace Hedonism in a severe way, and yet not too severely, in his Lectures on the Philosophy of Law ( sub fin. ).

1

Utilitarianism has been the subject of incessant discussion in England down to its latest systematic exposition in Sidgwick’s Methods of Ethics. On the Continent the system has also been carefully and ably reviewed by Th. Jouffroy ( Cours de droit naturel, 1835), Ahrens (i. 48, but less fully in the later editions), I. H. Fichte ( Die philosophischen Lehren von Recht, Staat und Sitte, 1850), De Wal (Prysverhandeling van het Natuurregt, 1833), and particularly by the Italian Jurists (Röder, i. 108).

1

Ancient Law, p. 118.

2

Much more may be justly claimed for Scotland than for England since the middle of the last century in regard to the cultivation of the Philosophy of Right. The Scottish School of Philosophy started on this side from Grotius and Thomasius. Gershom Carmichael edited Pufendorf with praiseworthy notes. Hutchison discussed the doctrine of Right with fulness and care in his System of Moral Philosophy (1755). Hume, in consistency with the method of his Intellectual Philosophy, derationalized the conceptions of Justice and Right, and resolved them into empirical products of public Utility ( Treatise on Human Nature, 1739. Essays, 1742). Reid, leading the realistic reaction, examined this side of Hume’s speculation with his characteristic earnestness, and advanced by his practical principle of Common Sense to positions akin to those of Kant’s Practical Reason ( Active Powers, 1788, Essay V. c. iii. Of Systems of Natural Jurisprudence, and the following chapters on Hume’s Utilitarianism). Henry Home, Lord Kames, prosecuted the same method with more juridical knowledge ( Principles of Equity; Historical Law Tracts, 1758; Sketches of the History of Man ). The movement was carried on by Adam Ferguson ( Principles of Moral and Political Science, 1792; Essay on the History of Civil Society, 1767), Dugald Stewart (see especially the account of the Grotian School in the Dissertation, 1815), and Dr. Thomas Brown ( Lectures ). Sir James Mackintosh wrote a Discourse on the Study of the Law of Nature and Nations, 1835. The cultivation of the Philosophy of Law has never been extinct in the Scottish Universities. Since the revival of the Chair of Public Law in the University of Edinburgh in 1862, Professor Lorimer has done much by his devotion and erudition to further the cultivation of the subject. (See the reference to his own works, supra, xi. n.) One of his pupils, Mr. W. G. Miller, Lecturer on Public Law in the University of Glasgow, has published a series of excellent Lectures on the subject, displaying extensive knowledge and critical acumen, with general regard to the Hegelian standpoint ( Lectures on the Philosophy of Law, designed mainly as an introduction to the study of International Law, 1884). Professor Flint’s important work on the Philosophy of History in France and Germany, and Professor Edward Caird’s recent book on Comte’s Social Philosophy, may also be referred to in this connection.

1

The Sensibility as the Faculty of Sense, may be defined by reference to the subjective Nature of our Representations generally. It is the Understanding that first refers the subjective Representations to an object; it alone thinks anything by means of these Representations. Now, the subjective nature of our Representations might be of such a kind that they could be related to Objects so as to furnish knowledge of them, either in regard to their Form or Matter—in the former relation by pure Perception, in the latter by Sensation proper. In this case the Sense-faculty, as the capacity for receiving objective Representations, would be properly called Sense-perception. But mere mental Representation from its subjective nature cannot, in fact, become a constituent of objective knowledge, because it contains merely the relation of the Representations to the Subject, and includes nothing that can be used for attaining a knowledge of the object. In this case, then, this receptivity of the Mind for subjective representations is called Feeling. It includes the effect of the Representations, whether sensible or intellectual, upon the Subject; and it belongs to the Sensibility, although the Representation itself may belong to the Understanding or the Reason.

1

This holds notwithstanding the fact that the term ‘Morals,’ in Latin Mores, and in German Sitten, signifies originally only Manners or Mode of Life.

1

In the Critique of the Judgment (1790).

1

This ground of Division will apply, although the action which it makes a duty may coincide with another action, that may be otherwise looked at from another point of view. For instance, Actions may in all cases be classified as external.

1

It is customary to designate every untruth that is spoken intentionally as such, although it may be in a frivolous manner, a ‘Lie,’ or Falsehood ( mendacium ), because it may do harm, at least in so far as any one who repeats it in good faith may be made a laughing-stock of to others on account of his easy credulity. But in the juridical sense, only that Untruth is called a Lie which immediately infringes the Right of another, such as a false allegation of a Contract having been concluded, when the allegation is put forward in order to deprive some one of what is his ( falsiloquium dolosum ). This distinction of conceptions so closely allied is not without foundation; because on the occasion of a simple statement of one’s thoughts, it is always free for another to take them as he may; and yet the resulting repute that such a one is a man whose word cannot be trusted, comes so close to the opprobrium of directly calling him a Liar, that the boundary-line separating what in such a case belongs to Jurisprudence and what is special to Ethics, can hardly be otherwise drawn.

1

Commercium sexuale est usus membrorum et facultatum sexualium alterius. This ‘ usus ’ is either natural, by which human beings may reproduce their own kind, or unnatural, which, again, refers either to a person of the same sex or to an animal of another species than man. These transgressions of all Law, as ‘ crimina carnis contra naturam, ’ are even ‘not to be named;’ and as wrongs against all Humanity in the Person they cannot be saved, by any limitation or exception whatever, from entire reprobation.

1

Hence where Commerce is extensive neither Gold nor Copper is specially used as Money, but only as constituting wares; because there is too little of the first and too much of the second for them to be easily brought into circulation, so as at once to have the former in such small pieces as are necessary in payment for particular goods and not to have the latter in great quantity in case of the smallest acquisitions. Hence Silver — more or less alloyed with Copper — is taken as the proper material of Money, and the Measure of the calculation of all Prices in the great commercial intercommunications of the world; and the other Metals—and still more non-metallic substances—can only take its place in the case of a people of limited commerce.

1

‘Animam præferre pudori, Juven.

1

In the old German language ‘ Elend, ’ which in its modern use means ‘misery.’

1

According to the Definition, I do not use the expression ‘to have another Person as my Person, ’ but as ‘ mine ’ (τÒ meum ), as if the Person were viewed in this relation as a Thing. For I can say ‘this is my father ’ in indicating my natural relationship of connection with him, by which I merely state that I have a father. But I may not say ‘I have him as mine ’ in this relation. However, if I say ‘my Wife,’ this indicates a special juridical relation of a possessor to an object viewed as a thing, although in this case it is a person. But physical possession is the condition of the use of a thing as such ( manipulatio ); although in another relation the object must at the same time be treated as a Person.

1

Porro de actuali constructione hic non quæritur, cum ne possint quidem sensibiles figuræ ad rigorem definitionum effingi; sed requiritur cognitio eorum, quibus absolvitur formatio quæ intellectualis quædam constructio est. C. A. Hausen, Elem. Mathes. Pars I. p. 86 (1734).