kant - science-146

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kant - science-146, książki, Philosphy

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1790THE SCIENCE OF RIGHTby Immanual Kanttranslated by W. HastieINTRODUCTIONINTRODUCTION TO THE SCIENCE OF RIGHT.GENERAL DEFINITIONS, AND DIVISIONS.A. What the Science of Right is.The Science of Right has for its object the principles of all thelaws which it is possible to promulgate by external legislation. Wherethere is such a legislation, it becomes, in actual application toit, a system of positive right and law; and he who is versed in theknowledge of this system is called a jurist or jurisconsult(jurisconsultus). A practical jurisconsult (jurisperitus), or aprofessional lawyer, is one who is skilled in the knowledge ofpositive external laws, and who can apply them to cases that may occurin experience. Such practical knowledge of positive right, and law,may be regarded as belonging to jurisprudence (jurisprudentia) inthe original sense of the term. But the theoretical knowledge of rightand law in principle, as distinguished from positive laws andempirical cases, belongs to the pure science of right (jurisscientia).The science of right thus designates the philosophical andsystematic knowledge of the principles of natural right. And it isfrom this science that the immutable principles of all positivelegislation must be derived by practical jurists and lawgivers.B. What is Right?This question may be said to be about as embarrassing to thejurist as the well-known question, "What is truth?" is to thelogician. It is all the more so, if, on reflection, he strives toavoid tautology in his reply and recognise the fact that a referenceto what holds true merely of the laws of some one country at aparticular time is not a solution of the general problem thusproposed. It is quite easy to state what may be right in particularcases (quid sit juris), as being what the laws of a certain placeand of a certain time say or may have said; but it is much moredifficult to determine whether what they have enacted is right initself, and to lay down a universal criterion by which right and wrongin general, and what is just and unjust, may be recognised. All thismay remain entirely hidden even from the practical jurist until heabandon his empirical principles for a time and search in the purereason for the sources of such judgements, in order to lay a realfoundation for actual positive legislation. In this search, hisempirical laws may, indeed, furnish him with excellent guidance; but amerely empirical system that is void of rational principles is, likethe wooden head in the fable of Phaedrus, fine enough in appearance,but unfortunately it wants brain.1. The conception of right- as referring to a correspondingobligation which is the moral aspect of it- in the first place, hasregard only to the external and practical relation of one person toanother, in so far as they can have influence upon each other,immediately or mediately, by their actions as facts. 2. In thesecond place, the conception of right does not indicate the relationof the action of an individual to the wish or the mere desire ofanother, as in acts of benevolence or of unkindness, but only therelation of his free action to the freedom of action of the other.3. And, in the third place, in this reciprocal relation of voluntaryactions, the conception of right does not take into considerationthe matter of the matter of the act of will in so far as the end whichany one may have in view in willing it is concerned. In other words,it is not asked in a question of right whether any one on buying goodsfor his own business realizes a profit by the transaction or not;but only the form of the transaction is taken into account, inconsidering the relation of the mutual acts of will. Acts of will orvoluntary choice are thus regarded only in so far as they are free,and as to whether the action of one can harmonize with the freedomof another, according to a universal law.Right, therefore, comprehends the whole of the conditions underwhich the voluntary actions of any one person can be harmonized inreality with the voluntary actions of every other person, according toa universal law of freedom.C. Universal Principle of Right."Every action is right which in itself, or in the maxim on whichit proceeds, is such that it can coexist along with the freedom of thewill of each and all in action, according to a universal law."If, then, my action or my condition generally can coexist with thefreedom of every other, according to a universal law, any one doesme a wrong who hinders me in the performance of this action, or in themaintenance of this condition. For such a hindrance or obstructioncannot coexist with freedom according to universal laws.It follows also that it cannot be demanded as a matter of right,that this universal principle of all maxims shall itself be adopted asmy maxim, that is, that I shall make it the maxim of my actions. Forany one may be free, although his freedom is entirely indifferent tome, or even if I wished in my heart to infringe it, so long as I donot actually violate that freedom by my external action. Ethics,however, as distinguished from jurisprudence, imposes upon me theobligation to make the fulfillment of right a maxim of my conduct.The universal law of right may then be expressed thus: "Actexternally in such a manner that the free exercise of thy will maybe able to coexist with the freedom of all others, according to auniversal law." This is undoubtedly a law which imposes obligationupon me; but it does not at all imply and still less command that Iought, merely on account of this obligation, to limit my freedom tothese very conditions. Reason in this connection says only that itis restricted thus far by its idea, and may be likewise thus limitedin fact by others; and it lays this down as a postulate which is notcapable of further proof. As the object in view is not to teachvirtue, but to explain what right is, thus far the law of right, asthus laid down, may not and should not be represented as amotive-principle of action.D. Right is Conjoined with the Title or Authority to Compel.The resistance which is opposed to any hindrance of an effect isin reality a furtherance of this effect and is in accordance withits accomplishment. Now, everything that is wrong is a hindrance offreedom, according to universal laws; and compulsion or constraintof any kind is a hindrance or resistance made to freedom.Consequently, if a certain exercise of freedom is itself a hindranceof the freedom that is according to universal laws, it is wrong; andthe compulsion of constraint which is opposed to it is right, as beinga hindering of a hindrance of freedom, and as being in accord with thefreedom which exists in accordance with universal laws. Hence,according to the logical principle of contradiction, all right isaccompanied with an implied title or warrant to bring compulsion tobear on any one who may violate it in fact.E. Strict Right may be also Represented as the Possibilityof a Universal Reciprocal Compulsion in harmony withthe Freedom of All according to Universal Laws.This proposition means the right is not to be regarded as composedof two different elements- obligation according to a law, and atitle on the part of one who has bound another by his own freechoice to compel him to perform. But it imports that the conception ofright may be viewed as consisting immediately in the possibility ofa universal reciprocal compulsion, in harmony with the freedom of all.As right in general has for its object only what is external inactions, strict right, as that with which nothing ethical isintermingled, requires no other motives of action than those thatare merely external; for it is then pure right and is unmixed with anyprescriptions of virtue. A strict right, then, in the exact sense ofthe term, is that which alone can be called wholly external. Nowsuch right is founded, no doubt, upon the consciousness of theobligation of every individual according to the law; but if it is tobe pure as such, it neither may nor should refer to this consciousnessas a motive by which to determine the free act of the will. For thispurpose, however, it founds upon the principle of the possibility ofan external compulsion, such as may coexist with the freedom ofevery one according to universal laws. Accordingly, then, where itis said that a creditor has a right to demand from a debtor thepayment of his debt, this does not mean merely that he can bring himto feel in his mind that reason obliges him to do this; but it meansthat he can apply an external compulsion to force any such one so topay, and that this compulsion is quite consistent with the freedomof all, including the parties in question, according to a universallaw. Right and the title to compel, thus indicate the same thing.The law of right, as thus enunciated, is represented as a reciprocalcompulsion necessarily in accordance with the freedom of every one,under the principle of a universal freedom. It is thus, as it were,a representative construction of the conception of right, byexhibiting it in a pure intuitive perception a priori, after theanalogy of the possibility of the free motions of bodies under thephysical law of the equality of action and reaction. Now, as in puremathematics, we cannot deduce the properties of its objectsimmediately from a mere abstract conception, but can only discoverthem by figurative construction or representation of ... [ Pobierz całość w formacie PDF ]

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