The Kantian Ethics: Metaphysics of Morals, The Critique of Practical Reason & Perpetual Peace. Immanuel Kant
gradually realized Freedom of mankind. As Kant saved the distracted and confused thought of his time from utter scepticism and despair, and set it again with renewed youth and enthusiasm on its way, so his spirit seems to be rising again upon us in this our hour of need, with fresh healing in his wings. Our Jurists must therefore also join the ever increasing throng of contemporary thinkers in the now general return to Kant.[26] Their principles are even more conspicuously at hazard than any others, and the whole method of their science, long dying of intellectual inanition and asphyxia, must seek the conditions of a complete renovation. It is only thus, too, that the practical Politician will find the guidance of real principle in this agitated and troubled age in which the foundations of Government as well as of Right are so daringly scrutinised and so manifestly imperilled,[27] and in which he is driven by the inherent necessary implication of local politics to face the inevitable issue of world-wide complications and the universal problem of human solidarity. And thus only, as it now appears, will it be possible to find a Principle that will at once be true to the most liberal tendency of the time, and yet do justice to its most conservative necessities.
Of criticism and comment, blind adulation and unjust depreciation of Kant's system of Right, there has been, as already hinted, abundance and even more than enough. Every philosophical Jurist has had to define more or less explicitly his attitude towards the Kantian standpoint. The original thinkers of the dogmatic Schools—Fichte, Schelling,[28] Hegel, and Krause,—have made it the starting-point of their special efforts, and have elaborated their own conceptions by positive or negative reference to it. The recent Theological School of Stahl and Baader, De Maistre and Bonald,[29] representing the Protestant and Papal reaction from the modern autonomy of Reason, has yet left the Kantian principle unshaken, and has at the best only formulated its doctrine of a universal Divine order in more specific Christian terms. The Historical School of Hugo and Savigny[30] and Puchta,[31]—which is also that of Bentham, Austin and Buckle, Sir George C. Lewis and Sir Henry Sumner Maine, and Herbert Spencer,—with all its apparent antagonism, has only so far supplemented the rational universality of Kant by the necessary counterpart of an historical Phenomenology of the rise and development of the positive legal institutions, as the natural evolution and verification in experience of the juridical conceptions.[32] The conspicuous want of a criterion of Right in the application of the mere historical Method to the manifold, contingent, and variable institutions of human society, has been often signalized; and the representatives of the School have been driven again, especially in their advocacy of political liberalism, upon the rational principles of Freedom.[33]
The Civil Jurists who have carried the unreasoning admiration of the Roman Law almost to the idolatry of its letter, and who are too apt to ignore the movement of two thousand years and all the aspirations of the modern Reason, could not be expected to be found in sympathy with the Rational Method of Kant. Their multiplied objections to the details of his exposition, from Schmitthenner[34] to the present day, are, however, founded upon an entire misapprehension of the purpose of his form. For while Kant rightly recognised the Roman Law as the highest embodiment of the juridical Reason of the ancient world, and therefore expounded his own conceptions by constant reference to it, he clearly discerned its relativity and its limitations; and he accordingly aims at unfolding everywhere through its categories the juridical idea in its ultimate purity. In Kant the juridical Idea first attains its essential self-realization and productivity, and his system of Private Right is at once freer and more concrete than the Systems of Hobbes and Rousseau, because it involves the ancient civil system, corrected and modernized by regard to its rational and universal principles. This consideration alone will meet a host of petty objections, and guard the student against expecting to find in this most philosophical exposition of the Principles of Right a mere elementary text-book of the Roman Law.[35]
In England, Kant's Science of Right seems as yet to have been little studied, and it has certainly exerted but little influence on English Juridical Science. This has no doubt been mainly due to the traditional habit of the national mind, and the complete ascendancy during the present century of the Utilitarian School of Bentham.[36] The criterion of Utility found a ready application to the more pressing interests of Political and Legal Reform, and thus responding to the practical legislative spirit of the time, its popular plausibilities completely obscured or superseded all higher rational speculation. By Austin the system was methodically applied to the positive determination of the juridical conceptions; under aid of the resources of the German Historical School, with the result that Right was made the mere 'creature' of positive law, and the whole Rational Method pretentiously condemned as irrational 'jargon.' In Austin[37] we have only the positive outcome of Hobbes and Hume and Bentham. The later forms of this legal positivism have not been fruitful in scientific result, and the superficiality and infutility of the standpoint are becoming more and more apparent. Nor does the Utilitarian Principle,[38] with all its seeming justice and humanity, appear capable of longer satisfying the popular mind with its deepening Consciousness of Right, or of resolving the more fundamental political problems that are again coming into view. In this connection we may quote and apply the authority of Sir Henry Sumner Maine when he says:[39] 'There is such widespread dissatisfaction with existing theories of jurisprudence, and so general a conviction that they do not really solve the questions they pretend to dispose of, as to justify the suspicion that some line of inquiry necessary to a perfect result has been incompletely followed, or altogether omitted by their authors.' The present unsatisfactory condition of the Science of Right in England—if not in Scotland[40]—could not be better indicated.
In these circumstances, no other alternative is left for us but a renewed and deepened appeal to the universal principle of Reason, as the essential condition of all true progress and certainty. And in the present dearth of philosophical origination and the presence of the unassimilated products of well-nigh a century of thought, it seems as if the prosecution of this Method of all methods can only now be fruitfully carried on by a return to Kant and advance through his System. Enough has perhaps already been said to indicate the recognised importance of the Kantian standpoint, and even to point to the rich fields of thought and inquiry that open everywhere around it to the student. Into these fields it was the original intention of the translator to attempt to furnish some more definite guidance by illustrative comment and historical reference in detail, but this intention must be abandoned meanwhile, and all the more readily as it must be reckoned at the most but a duty of subordinate obligation and of secondary importance. The Translation is therefore sent forth by itself in reliance upon its intelligibility as a faithful rendering of the original, and in the hope that it will prove at once a help to the Students and an auxiliary to the Masters of our present juridical science.
W. H.
Edinburgh, January 1887.
Bibliographical note
Röder remarks (i. 254) that by far the most of the later philosophical writers on Natural Right—nomen illis legio!—follow the system of Kant and Fichte, which is in the main identical in principle with that of Thomasius. It was impossible to refer to them in detail in these prefatory remarks, but it may be useful to quote the following as the more important works on the subject from this standpoint since the appearance of Kant's Rechtslehre:—
A. Mellin, Grundlegung zur Metaphysik der Rechte, 1796.
P. J. A. Feuerbach, Kritik des natürlichen Rechts, 1796.
H. Stephani, Grundlinien der Rechtswissenschaft, 1797.
Ph. Schmutz, Erklärung der Rechte des Menschen u. des Bürgers, 1798.
——, Handbuch der Rechtsphilosophie, 1807.
R. Gerstäcker, Metaphysik des Rechts, 1802.
L. Bendavid, Versuch einer Rechtslehre, 1802.
K. H. v. Gros, Lehrbuch