Page images

law is therefore founded on the notion of the inviolability of the person. For the rest, he says that rights should be so regulated as to impose the least sacrifice, and that with the greatest equality. As we shall hereafter have occasion to

? show the expansion of this theory in a treatise of Prof. von Ihering, published at Vienna during the year which has just closed, we forbear at present to say more of this theory.

Whether what has been called the Eclectic System should be regarded as anything worthy of separate classification, has been a subject of dispute. Its author, Krause,3 and his disciples, claim that the theory is entirely original. Their adversaries assert that it is made up of several systems, which have been ingeniously blended into one.5 It may be admitted that in the details there is no want of originality, but it is probable that the theory, in its ultimate essence, which is somewhat difficult to grasp, is not anything more than a fusion of the several systems which we have already mentioned.

The last of these theories that we shall name is that of Rosmini,“ which seems to be a special adaptation of that of Kant; and as it consists in the extension of Kant's theory into details, and is perhaps less known in this country than those above referred to, it may not be improper to dwell on it a little. In doing so we shall endeavor to sum up this profound study of Kant in as few words and as clearly as possible.

Accepting Rosmini, then, as a guide, we learn that the foundation of right and law is the inviolability of the human person.

A person is the individual man considered as the subject of rights and duties. This person is not the same as the intellectual part of man: it is the most exalted part of the soul; that which directs or controls the inferior passions,

Metaphysik der Sitten, Leipsic ed , 1837. 3 Grundlage des Naturrechts, oder philosophischer Grundriss des Ideals des Rechts, Berlin, 1803.

4 Ahrens, Cours de Droit Naturel, 6 ed., Paris, 1849.

5 Cours Elémentaire de Droit Naturel, par Alphonse Boistel, Paris, 1870.

6 Della Natura del Diritto, et della sua relazione col Dovere: Del principio della derivazione dei Diritti, Naples, 1837.

faculties and sensibilities of the mind, or which is capable of doing so; that power which dominates them, and is able to govern them in the light of the moral law; for there are fundamental moral laws, which are as immutable as physical laws; which have existed from all eternity, and will exist forever; and man is able to find them out by proper study, and in the same manner in which he finds out physical laws. In discovering these moral laws, and in conforming his conduct to them, he subserves the principle of utility, just as he does in discovering the laws which pervade the material universe, and avoiding any conflict with them.

It is a part of the inviolability of the person that it should exercise the intellectual forces which have been given to it, or rather which constitute it, subject only to a natural limitation; it may and should cultivate and develop them so as to give them their highest degree of energy; it should do the same by the forces of the body; it may and should, through the agency of the body, extend its power over external objects; should tame their forces, appropriate them, and subject them to the satisfaction of its wants, whether material or immaterial, and to the intellectual and moral advancement of humanity. To touch wilfully and rudely the garment that one wears, is in the eye of the law an assault and battery. This is because the garment is considered as the mere extension of the person, as the body of the wearer is only an extension of the person, which is wholly immaterial. Thus every external object which the individual acquires, or over which he obtains dominion, is an extension of his person. If unmaimed hands give to him a force which he otherwise would not have, or a means of making his inherent forces more available, the same is true of every external object of value which he subjects to his dominion. It satisfies some want; it increases his liberty; for wealth will enable him to travel whithersoever he will; it confers on him a larger social power; he is in so far a different man from what he was before; the force which he is has extended its sphere of action, and he is better equipped for new conquests.

But this progressive expansion of the domain of the persoÀ


has a natural limit. The individual man may dispose of everything around him; but he has no right to dispose of other human persons. As soon as he comes in contact with them, or with external objects which they have acquired, and which are to be considered as a part of their persons, he must pause in his conquests; and it is at this point that we perceive the birth of Right. He should concede to others that respect which he claims for himself; and if all persons would do this, each would move unharmed within the circumference of the accessories of his person, whether that circumference. was large or small, without conflict; there would be a perfect harmony, which would be the perfect rule of Right. This would be the establishment of the grand principle of the inviolability of the person. It is this which ethics approve and the law seeks. It is the duty of every man, then, to apply all the means in his power to the perfecting of himself and others, and by the side of this duty is to be placed the right which he has, not to be hindered by others in the use of these

If he is thus hindered, he resists with all the energy in his power, and he has the right to do so, for it is of the nature of all force to react against external action. If, then, he is authorized to resist in this manner, it follows that it is his duty to abstain from all similar aggressions. This is called a judicial duty, and forms the principle of the law, which may be summed up in the precept, “Do no undeserved injury to another.” The word undeserved is necessary in this formula, because men cannot be shielded from the evil consequences of their culpable acts.

This scheme leaves a very large place for individual liberty. It gives no one a right to dictate to another that he shall perform abstact duties, such as acts of charity, gratitude or benevolence. Good morals require these, but the law does not. These are embraced in the sphere of the personality of the individual which is his inviolable castle, where the law dare not enter; the province of the law being only to govern the personalities of various individuals so as to avoid any conflict between them. Mere moral duties which create no rights are contradistinguished from juridical duties which

give rise to juridical rights, which the law either sanctions, or may and ought properly to sanction. Rights and duties are the same thing juridically speaking, the former being the active expression, and the latter the passive expression for the same. Every juridical duty has its corresponding juridical right; that is to say the juridical duty of A to B is the right of B as against A.

The necessary conditions of a right are: 1. That there should be a personal activity. When this exists it communicates its inviolability to every power or means of power which it may appropriate for the satisfaction of its desires or wants. There is no right which resides not in an intelligent and free person. The imaginary rights of Ulpian and Justinian residing in the lower animals are therefore denied. 2. A right is an activity which is protected by the moral law, established in the maxim, "Thou shalt not perpetrate an undeserved injury upon any human being;” it is this in which a juridical duty consists, and this is of the essence of every right. 3. This activity in its exercise must be permitted by the moral law. This, however, seems to refer more to the manner in which a right may be rendered available, than to any quality of the right itself. 4. The development of the activity must be useful to the person. Therefore, as embracing all these elements, a right is defined to be “a personal activity, which is useful, and permitted, being under the protection of the moral law, which commands others to respect it, and justifies the use of force in constraining them to do so.

This protection is supposed to exist whenever the personal activity, or any object which it has acquired in a manner allowable by the moral law,-the object being merely an extension of the personal activity, and not distinguishable from it in principle,-so that the object has been appropriated to such an extent that the owner could not be deprived of it without pain, either mental or physical. It is only on account of this pain that he is protected in his property; and thus the inviolability of the person extends to property thus acquired, through which the person may be sensibly wounded or incommoded. There is therefore a bond existing between the person and every object thus acquired ; and this bond only really exists, and is only entitled to respect when the person has obtained an effective power over the object, when this

power is useful to the person, and when its exercise is allowable by the moral law. This bond is made up of three constituents, each of which is indispensable to the solution in any given case of the question as to whether a right which is claimed really exists, and which afford an infallible test. These are as follows:

1. The Physical Bond.The object must be really at the disposal of the person, so that it may be effectually employed for the satisfaction of the wants of the person.

Mere desire for an object, or the hope of attaining it, however well founded, will not suffice. If one wantonly and wickedly opposes the acquisition which another seeks to make, he may thereby attack the liberty of such other person; but the violated right is not that of property in the object, which does not yet exist; but is the pre-existing right of the free exercise of the faculties through which the object is sought to be acquired. Thus if one hunter is in pursuit of a wild animal which he has wounded, and a second hunter comes up and kills it, the second hunter is entitled to the game, though he might morally and legally be held liable for damages for a selfish and improper interference with the pursuit of another. If one cannot have property in the air, the sea, or flowing rivers, it is because he has not the capacity of subjecting them to his control. The physical bond is therefore wanting. So it is with ideas not reduced to any particular form of words, or clothed with other external forms. The same ideas are open to all men, and may be used by all successively or in common. But when a visible or tangible form is given to them, the physical bond at once exists. The first question then to be solved in ascertaining whether a right exists is as to whether the person has obtained a physical dominion over the subject of the right which he claims. This is a question purely of fact; and the right must in every case be exactly measured by the extent of this dominion.

« PreviousContinue »