按键盘上方向键 ← 或 → 可快速上下翻页，按键盘上的 Enter 键可回到本书目录页，按键盘上方向键 ↑ 可回到本页顶部！
————未阅读完？加入书签已便下次继续阅读！
act of transfer （translatio） in the empirical sense； for that would
involve two successive acts； by which the one would first divest
himself of his possession； and the other would thereupon enter into
it。 Inheritance as constituted by a simultaneous double act is；
therefore； an ideal mode of acquisition。 Inheritance is
inconceivable in the state of nature without a testamentary
disposition （dispositio ultimae voluntatis）； and the question arises
as to whether this mode of acquisition is to be regarded as a contract
of succession； or a unilateral act instituting an heir by a will
（testamentum）。 The determination of this question depends on the
further question； whether and how； in the very same moment in which
one individual ceases to be； there can be a transition of his property
to another person。 Hence the problem； as to how a mode of
acquisition by inheritance is possible； must be investigated
independently of the various possible forms in which it is practically
carried out； and which can have place only in a commonwealth。
〃It is possible to acquire by being instituted or appointed heir
in a testamentary disposition。〃 For the testator Caius promises and
declares in his last will to Titius； who knows nothing of this
promise； to transfer to him his estate in case of death； but thus
continuing as long as he lives sole owner of it。 Now by a mere
unilateral act of will； nothing can in fact be transmitted to
another person； as in addition to the promise of the one party there
is required acceptance （acceptatio） on the part of the other； and a
simultaneous bilateral act of will （voluntas simultanea） which；
however； is here awanting。 So long as Caius lives； Titius cannot
expressly accept in order to enter on acquisition； because Caius has
only promised in case of death； otherwise the property would be for
a moment at least in common possession； which is not the will of the
testator。 However； Titius acquires tacitly a special right to the
inheritance as a real right。 This is constituted by the sole and
exclusive right to accept the estate （jus in re jacente）； which is
therefore called at that point of time a haereditas jacens。 Now as
every man… because he must always gain and never lose by it…
necessarily； although tacitly； accepts such a right； and as Titius
after the death of Caius is in this position； he may acquire the
succession as heir by acceptance of the promise。 And the estate is not
in the meantime entirely without an owner （res nullius）； but is only
in abeyance or vacant （vacua）； because he has exclusively the right of
choice as to whether he will actually make the estate bequeathed to
him his own or not。
Hence testaments are valid according to mere natural right （sunt
juris naturae）。 This assertion however； is to be understood in the
sense that they are capable and worthy of being introduced and
sanctioned in the civil state； whenever it is instituted。 For it is
only the common will in the civil state that maintains the
possession of the inheritance or succession； while it hangs between
acceptance or rejection and specially belongs to no particular
individual。
35。 III。 The Continuing Right of a Good Name
after Death。 （Bona fama Defuncti）。
It would be absurd to think that a dead person could possess
anything after his death； when he no longer exists in the eye of the
law； if the matter in question were a mere thing。 But a good name is a
congenital and external； although merely ideal； possession； which
attaches inseparably to the individual as a person。 Now we can and
must abstract here from all consideration as to whether the persons
cease to be after death or still continue as such to exist； because；
in considering their juridical relation to others； we regard persons
merely according to their humanity and as rational beings （homo
noumenon）。 Hence any attempt to bring the reputation or good name of a
person into evil and false repute after death； is always questionable；
even although a well…founded charge may be allowed… for to that extent
the brocard 〃De mortuis nil nisi bene〃* is wrong。 Yet to spread
charges against one who is absent and cannot defend himself； shows
at least a want of magnanimity。
*＇Let nothing be said of the dead but what is favourable。＇
By a blameless life and a death that worthily ends it； nothing
ends it； it is admitted that a man may acquire a （negatively） good
reputation constituting something that is his own； even when he no
longer exists in the world of sense as a visible person （homo
phaenomenon）。 It is further held that his survivors and successors…
whether relatives or strangers… are entitled to defend his good name
as a matter of right； on the ground that unproved accusations
subject them all to the danger of similar treatment after death。 Now
that a man when dead can yet acquire such a right is a peculiar and；
nevertheless； an undeniable manifestation in fact； of the a priori
law…giving reason thus extending its law of command or prohibition
beyond the limits of the present life。 If some one then spreads a
charge regarding a dead person that would have dishonoured him when
living； or even made him despicable； any one who can adduce a proof
that this accusation is intentionally false and untrue may publicly
declare him who thus brings the dead person into ill repute to be a
calumniator； and affix dishonour to him in turn。 This would not be
allowable unless it were legitimate to assume that the dead person was
injured by the accusation； although he is dead； and that a certain
just satisfaction was done to him by an apology； although he no longer
sensibly exists。 A title to act the part the vindicator of the dead
person does not require to be established； for every one necessarily
claims this of himself； not merely as a duty of virtue regarded
ethically； but as a right belonging to him in virtue of his
humanity。 Nor does the vindicator require to show any special personal
damage； accruing to him as a friend or relative； from a stain on the
character of the deceased； to justify him in proceeding to censure it。
That such a form of ideal acquisition； and even a right in an
individual after death against survivors； is thus actually founded；
cannot； therefore； be disputed； although the possibility of such a
right is not capable of logical deduction。
There is no ground for drawing visionary inferences from what has
just been stated； to the presentiment of a future life and invisible
relations to departed souls。 For the considerations connected with
this right turn on nothing more than the purely moral and juridical
relation which subsists among men； even in the present life； as
rational beings。 Abstraction is； however； made from all that belongs
physically to their existence in space and time； that is； men are
considered logically apart from these physical concomitants of their
nature； not as to their state when actually deprived of them； but only
in so far as being spirits they are in a condition that might
realize the injury done them by calumniators。 Any one who may
falsely say something against me a hundred years hence injures me even
now。 For in the pure juridical relation； which is entirely rational
and surprasensible； abstraction is made from the physical conditions
of time； and the calumniator is as culpable as if he had committed the
offence in my lifetime； only this will not be tried by a criminal
process； but he will only be punished with that loss of honour he
would have caused to another； and this is inflicted upon him by public
opinion according to the lex talionis。 Even a plagiarism from a dead
author； although it does not tarnish the honour of the deceased； but
only deprives him of a part of his property； is yet properly
regarded as a lesion of his human right。
CH3
FIRST PART。 PRIVATE RIGHT。
The System of those Laws Which Require No External Promulgation。