The two conflicting principles of rational philosophy and their implementation through all doctrines of natural law

The real existence of philosophizing and of the law of thought were referred to above as the two necessary principles of rational philosophy, and their conflict in the manner of production was also highlighted. The general development of natural law contains only these principles and therefore also their conflict. Because of this, right [Recht] and law [Rechtsgesetz] could not be brought in connection – natural law makes human freedom into its foundation, and yet does not recognize acquired rights. The genesis of the individual institutions is now also nothing more than a repetition of the same difficulty, the same mutual fuss, when one follows the one or the other. The exclusive principle of laws is to be freedom. If one conceives this to be real freedom, then right is what it does; if one conceives it to be the concept of freedom, then right is what it is (in both cases, excluding the disturbance of others). In terms of the real manner of operation, there results from it a change in the initial condition, which can progress to its complete opposite, in which it cancels itself, and tolerates no barrier. Following this, no change is possible. The condition is given of necessity, and freedom does not have freedom if it somewhere restricts itself from effectuating anything in opposition to the logical conclusion. For the mode of action of freedom and the logical conclusion are precisely opposed, in that the latter ever only posits what it already is, while the former can indeed bring about something else. This is the reason that in natural law one finds two opposite opinions regarding each and every institution, one of which is unconsciously based on the former principle, the other on the latter, and which are never be able to reach a final verdict.

Controversy over innate rights

With respect to innate rights – rights to life, body, honor, opportunity to acquire property – logical deduction requires that they exist directly from the concept of man. Therefore they are always necessary, and it is contrary to reason if they do not exist at any moment. Then giving them up cannot depend on discretion. But if life, reputation really are my rights, objects [Sache] of my freedom, then I should be able to keep them and not keep them, and even to renounce them if I wish to. So Fichte[1] admits that one legally could sell his freedom of thought if factually this were possible. According to the latter line of thought, the murder of a man who himself demands it, is no violation of the law, non fit injuria volenti [injury is not done to a willing person]. According to the former, it is such; because although it is not against that which this free person wished, it is to act against what follows from the concept of his freedom. Therefore, one and the same writer, and not a second-rate one, can profess first the one, then the other opinion.[2]

Over property

The consequence of equal freedom would correspond to the arithmetically equal allocation of objects, community of goods, alternating use. But this contradicts living freedom. This cannot allow the objects to be allocated without its will, it itself must be the cause of possession, but if it desired and took that, it wishes to lord over it exclusively; because by its very nature it must be able to cause something and cannot do so in a community of that sort. To it corresponds property and its original acquisition by seizure, derivative acquisition by transfer. But now it occurs that the legal condition is determined by series of events that might or might not occur. One person is deprived of objects by the act of another, which he could not prevent, and an inequality arises in actuality and in the particular case, even with initial and, in terms of the idea, equal opportunity for control of the external world. In Roman law this is completely consistent, because it recognizes the deeds of the free man as the determining factor of the legal condition; but natural law recognizes only the logical consequences from the concept of his freedom, and a condition which did not have to be effected is not logically necessary.

Over the content of contracts, distinction of alienable and inalienable rights

The history of the philosophical doctrine of the property therefore manifests the eternal vacillation between the horns of this dilemma. According to Grotius, there follows from reason a community of people in all things, as now exists in public places, such as the theater. No one can acquire a permanent priority over the other regarding a particular object, but only that he not be disturbed in actual possession. He has a right by virtue of his personhood, not by virtue of a right to the thing, and only as long and as far as this factual relation extends.[3] Pufendorf, following the moderns in this, misunderstands Grotius when he attributes to him the idea of ​​a positive-law community of goods. Pufendorf’s own opinion only differs from Grotius’ in that he denies this claim to non-disturbance of the factual condition: if someone collects fruit, another may snatch it from him again.[4] Although Thomasius rejects the latter as a “jus Hobbesianum” already refuted by Pufendorf, he returned to the view of Grotius.[5] Later, however, he seems to consider a positive-law community of goods to be the rational one.[6] This is decisively the case with Nettelbladt.[7] Therein however all practitioners of natural law before Kant agreed that the community of all goods (communio primaeva), of whatever sort, flows immediately from reason, and the possibility that several property arises through occupation could only have its legal basis in an express or implied contractual establishment. Even according to Thomasius, reason advises occupation; but not so praecise and distincte, that a pactum would not be necessary for this. Kant is the first to go the opposite direction and allow things to be linked permanently to their legal sphere through the voluntary action of people. He is followed by the later Fichte, Fries, although they again justify, like the earlier ones did, the institution of property solely from the agreement of the people; but they arrive there from a completely different position. Whether and why contracts are sufficient to transfer property, or to make the institution itself rational, does not pertain to the doctrine of property. Here it only concerns whether the free act of an individual, being granted the capacity to appropriate, can abolish equality which lies immediately in the concept of freedom.

Over the binding nature of contracts

The controversy which can be called perhaps the most important one of natural law, namely the binding nature of the agreements, revolves around this pivot, although it became the general subject of cultivation only in the more recent period. Any objections to this are based on the fact that one does not accept a historical, activity-generated relation between the moments of agreement and of performance, but rather measures each against the concept of freedom according to the nature of abstraction. That I now must, because I once wanted to, cannot be solved in that way. At that time I was allowed, in accordance with the laws, to lie; and now, to wit, outside of time [zeitlos], not-must is within my freedom. The enforceability of the contractual obligation is therefore against reason. The binding nature of contracts is to individuals what legal inequality is to the whole. The deeds of the nation yesterday, even the deliberate ones, cannot make happen that a situation exists today that would have to exist even apart from any activity. And like the people with its history, so can and must I abstract from mine, namely from what I did and wanted yesterday.

Against this, the defenders of contractual obligation reason from consideration of the living person. He must act, connect the different times of his actions, and thereby make something happen for the legal condition. This, however, creates something against his present freedom and hence likewise against the concept of his freedom. This dispute about the binding nature of contracts is made more clear in its essence where it is extended to the possibility of its contents:

Over the content of contracts, the distinction between alienable and inalienable rights

Contract is the predominant institution not only for the emergence of legal claims, but for natural law as a whole. In it, everything is effectuated by the will of man, the right, the obligation, that they are what they are. A system that is driven by the interest of human freedom can use no other lever than contract. With it one seeks to actuate the most heterogeneous, the most peculiar, in the same manner. From it one tends to derive even the validity of testaments, and thereby indirectly, intestate succession as presumable testament. He who is permeated by this spirit even for a short period – and who has not been! – must remember how this solution everywhere initially presents itself. But if contract itself is an act of freedom, then its opposite comes to pass simultaneously with its completion: he who has acted freely, is now bound. So it is only for a moment in contract that freedom exercises its full existence. Like a flash, it dies with its birth. And with contract, natural law has called on a dangerous assistant. One uses it to justify what one wishes, but does not consider that he also justifies that which he does not wish, and that, if it should have the power to build, it must also have it to destroy. The rights of subpoena [Strafandrohung], of property, of paternal authority, the rule “sale breaks rent,” if they cannot be derived directly from the principle, become established by contract. By contrast, compulsory morality, prerogative of nobility, tax exemption, trade restrictions, are unconditionally rejected, to which their defenders must have the right, by grounding them on tacit agreement. And where will the limits be set on what cannot be agreed upon? Will one, like the old Germanic tribes and the older natural law, allow contractual slavery? Will one limit the duration of a function, like the French Code prohibits the permanent hire of services, or the scope, and to what extent? Therefore, it was in the latter period of natural law, when everything jostled to its end in accelerated development, that one preeminently engaged in the separation of alienable and inalienable rights. No tolerance could be found for acquired rights that could be given up by a fact as they could only result from a fact. The difficulty became apparent first with innate rights. It was already demonstrated above that those two principles require on the one hand their alienability, on the other their inalienability, and therefore neither of these opposing conceptions has lacked defenders. Nevertheless, both led to results that one could not accept.

Not alienability: it made even full slavery possible. Not inalienability yet either, because innate and acquired rights are in such indissoluble relation that, with the immobility of the former, the latter would also lose their flexibility. The possibility, for example, for someone to acquire by his actions, to move about by one’s pleasure, as contained in primordial right, must at least be abandoned, in order to engage some run of the mill contract. To find the boundary here, one would have to separate, in abstraction, the innate right without any specific content from this content, declare the latter in any kind to be alienable, the former only to be inalienable. So to be consistent we arrive at this: the original right itself, that is, the not-being-a-slave, cannot be abandoned, but every specific use of it can be, as long as only it itself remains. Hoffbauer, one of the clearest and sharpest proponents of this orientation, distinguishes: “I can abandon individual rights which I have, as component parts of my innate right; but I cannot deliberately give up one of my original rights such that nothing more of them remains to me.”[8] Fichte, who in his anonymous work on the French Revolution conducted a sprawling investigation into the alienability of rights, and whose interest here is precisely their inalienability, nevertheless comes to no other result than what has just been delineated: pure personality is inalienable, while everything specific, in which it expresses itself, is alienable. Thus he admits that someone can entirely divest himself of his right to engage contracts, and even can enter into slavery; only in the latter case, the right that the master nourish the slave remains as a right, so that the concept of a person to live the primordial right, is thereby preserved.

Natural law itself thus accomplished the reduction of inalienability to this, as it were, mathematical point, and thereby believed it had brought those contradictory principles into harmony. But such was not achieved by this, because it is absolutely impossible to achieve. Either there is a historical connection between the act and its consequences – in which case, slavery is not against freedom, when it is only willed; because it happens to him who is now a slave only by his will, and therefore he is not treated as a means. Or there is no such connection, it cannot by any means justify being bound by a contract; because he who is compelled does not wish to be so now, and therefore is treated as a means.

The solution of this dialectic is this: the contradiction arises only from the fact that human freedom is founded on a concept. If it is deployed by the free will of God and as part of His specific moral order, then all difficulties are smooth away: it reaches as far as it wishes to, it has its limits in how far it may alienate itself in the determination that He gave it; but within this boundary it has its truly free, change-effecting movement, because God does not, like reason, only bring forth what is necessary.

Over the state

Among contracts, the social contract plays the leading role. Through it, even lasting relationships of mutual dependence (marriage, parental relationship, the state) which are bereft of freedom, can be derived from it. “Nullum imperium sine pacto.” These relations, by their very nature dominating mankind by their inherent idea, are thereby brought under the social contract. For all association [Gesellschaft] only has a passive object and does not entail any submission other than that which reciprocally exists and is mutually adopted. In this way, the existence and the arrangement of the family, the state, continually depend only upon the free choice of those contracting for them. The shape thereof is only governed by the restrictions of private contracts – where such is recognized. Hence, e.g., the state is denied the right of capital punishment because private individuals cannot dispose of their lives: as if they had a greater right arbitrarily to dispose of their health, their freedom.

Thomasius distinguishes himself in this, that while still a sociabilist, he derived the law of association and authority [Gewalt] from the goals of these relations themselves, rejected the consensus tacitus and praesumtus of the other natural law doctors, grounded paternal authority directly on divine institution. For this reason he consistently declared in his later works that the relationship between parents and children involves no compulsory obligation.[9]

Besides the interest and the orientation, the essence of the state must likewise consist in the satisfaction of the individual. It is an institution for the well-being or the moral perfection or the freedom of individuals. But the task also was to derive this logically from the basic concepts: “Without the state, violence or difference of opinion would topple the results which follow from the equal freedom of all. But freedom calls for the protection of its results, this protection is the state, therefore, the state is included in the concept of the equal freedom of all.” This is the final result of natural law from first to last. It was only in the later period that the attempt was also made to insinuate morality, happiness as an end for the state, against the innermost motive of orientation and against consistency. Because to be justified as a legal institution, it may only follow from freedom. Hence the will of the individual, that he be protected, is the exclusive end of the state.

But the leading interest is not completely satisfied thereby. Because the state puts limits on this end as well, and even protection should not be imposed. The will of the individual therefore must not merely be the exclusive goal, it must also be the only cause of the state. The state is founded on contract, express or implied, real or supposed. Thereby is the institution, the power of which is obvious to the people, and which cannot be avoided like e.g. the church can, but factually cannot be spared, brought back to the individual will, at least in theory. And here the character of the whole orientation speaks most directly: outright rebellion against any given regime, subjugation only to a chosen one. From start to finish, all significant natural law doctors are therefore agreed on the creation of the state through contract. Even with Spinoza this is at least the form, from which he cannot break away, as much as the thing itself contradicts his system’s character of necessity. The bottom line for him is not consent but the real alienation of power; yet he characterized this everywhere as a contract.

That this ongoing contradiction must also prevail in the deduction of the state, is obvious. It follows from the concept of freedom that it must be protected – hence compulsion by the state and a certain unalterable form thereof. Living freedom, on the other hand, requires free choice in its establishment (state contract) and discretionary arrangement. Since Kant sets everything in motion, the contradiction was not so evident to the older writers; hence the manifold opinions as to whether the state contract is voluntary or necessary, whether a moral or legal one is more necessary, whether it grounds duty to the state in general or only to a specific state. Nor can this controversy be brought to an end, as little as the one set forth above, and it is merely coincidence, or rather the interest of the antagonists, which has proven to be the decisive factor every time. Therefore, in different relations the opposite principles prevailed. Namely with regard to establishment, the view generally was adopted which follows from acting freedom: the state arises and exists legally by contract, so that if people did not want it, it would not arise or exist. By contrast, in the doctrine of the arrangement and formation of the state, almost all profess the result of the opposite principle: only those arrangements are permitted in the state which include the concept of freedom, and public legal institutions that do not follow from this concept are unjust, even if the people wanted it that way.

Initial and later position of natural law regarding positive rights

This is the course of development, then, of natural law, albeit with individual differences and disputes, nevertheless taken uniformly as a whole. For a time it was both mixed with religious-devout notions[10] and tolerated positive legal institutions within itself, e.g., the feudal law, until finally it stripped itself of all foreign elements to present itself purely in its peculiar character. Initially, it is nothing less than at odds with existing institutions, the intent of the deduction being to demonstrate the rational necessity of these as they really are, in order to derive sanction from them. But it increasingly pushes against them until it finally forcefully tackles and upends the entire existing state. A principle, and probably the most important which was followed above in its development, shows this clearly. Namely the principle of the separation of compulsory obligation, which, pursued only to justify the status quo, in the end was used to demolish it. Even the actual content, the primordial right of man – that he may not be a slave – which is what the entire development seeks, is obtained only at the end of that development. Oldendorp even venerated slavery and deduced it from the commandment, Honor thy father and mother, while also appealing to the authority of Aristotle.[11] Thomasius calls for a less restrictive relationship in accordance with natural rights, e.g., non invitus alteri vendi poterit servus perpetuus [one cannot be sold into perpetual slavery to another], but nevertheless calmly lists alongside it what positive law has enacted differently.[12] Wolff deems it justified by contract and insolvency; by birth, only until such time as the master recoups the costs of education;[13] Hopfner merely by contract. Only the subsequent period (Montesquieu, Rousseau, Kant) rejected this absolutely.

If one now looks back to the first requirement – to derive everything simply through logical subsumption of passive objects under the ethical rule – in order to see whether it has been met, then we have to conclude that it by no means has been satisfied. Admittedly, property and claim could be regarded as the object of such subsumption: things placed under the concept of freedom are property, etc. But where it comes to the legal necessity of the state, the deduction is by no means only logical, but also derived from effects. Here it is not only the object of freedom that is taken from experience; the rule that the state should exist is even founded on those premises, on the observation that people apart from higher authority do not attend to rights, but that such an entity secures them. Even the concept of the end of the state, which is subject to deduction, entails this. For now the question is no longer: what lies in the concept of freedom? But rather, by what is that which lies in it achieved according to the laws of empirical nature? But that which one finds in this manner, is without the character of logical necessity. One can be persuaded that things subsumed under freedom yield property like two times two equals four, it is not contradicted in terms of form. But that human drives make the state necessary already lacks this necessary form. For reason assures me neither that the state will really be capable of protecting, nor vice versa, that they will be violated without it, though all experience to this point should speak for both, which in reality is not without exception. For this reason the great divergence between Hobbes and the others had its foundation not in ethical but in experiential propositions. The same is true for the various institutions of the state. For this reason the objection has been lodged against the theory by which punishment, like the state, is considered to be a means (namely a means of protection), as to whether punishment always achieves this, apart from which it would not be rationally tested. This objection is entirely justified in terms of the requirements of abstract procedure; but it is valid with the same justification against the deduction of the state for the purpose of securing law as it is against punishment. Namely, in both the “continuo ratiocinationis filo deducere” [continuous deduction of the thread of reasoning] is given up, in order to make the workings of experience, which are not without exception, not logically necessary, into the thread of reasoning.

Unfaithfulness of natural law to its required method

But natural law is compelled to this infidelity to its method, because while it derives ethical rules from reason, it borrows the material thereof from experience. The outside world now stands everywhere not only in logical, but in real connections, and the ethical construction itself must be affected by this. Therefore, there was ever in natural rights, as in abstract philosophy generally, the urge not to borrow relations from experience, but to find them a priori just as well as in their ethical arrangement. This took place with Fichte and Hegel. With them therefore, and preeminently with the latter, the uninterrupted thread of logical reasoning is implemented. The state and its institutions do not result for him because they are needed for a goal, but because they are included in the basic concept of natural law by a rule of pure thought, without anything from outside needing to be added, as will be shown in greater detail below.

With this, natural law in its general outlines has been characterized. The evaluations of it will be suspended until its various paths with individual compilers have been pursued. Just the internal contradictions which became an impetus to its development needed to be emphasized here at the start.

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[1] Fichte in the anonymous publication, Beitrag zur Berichtigung der Urtheile des Publikums über die französische Revolution [Contribution to correcting the verdict of the public regarding the French Revolution], 2nd edition, Part I, p. 228.

[2] Feuerbach Revision

[3] Grotius l. II, c. 2. §. 2.

[4] Puf. jur. natur. l. IV, c. IV. §. 3.

[5] Thomas. jur. div. l. II, c. 10.

[6] Thomas. fundam. eodem.

[7] Nettelbladt, jurispr. nat. §. 255ff.

[8] Op. cit., p. 254.

[9] Thomasius jurispr. div. l. I, c. 1 §. 86; l. III, c. 4. fundam. jur. nat. eod.

[10] To this pertain as well the investigations into morals and law prior to the Fall, the Kingdom of Christ and the Devil, etc. Hobbes and Thomasius in particular busied themselves with this.

[11] Oldendorp, introduct. jur. nat. ad leg. IV. Div. Tab.

[12] Thomasius jurispr. div. l. III, c. 5.

[13] Wolff, jus nat. §. 959.