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according to which I may take and vindicate the object as mine
wherever I may find it； without being responsible for the way in which
the Seller had come into possession of it。
It is therefore only in behoof of the requirements of juridical
decision in a court （in favorem justitae distributivae） that the right
in respect of a thing is regarded； not as personal； which it is in
itself； but as real； because it can thus be most easily and
certainly adjudged； and it is thus accepted and dealt with according
to a pure principle a priori。 Upon this principle； various statutory
laws come to be founded which specially aim at laying down the
conditions under which alone a mode of acquisition shall be
legitimate； so that the judge may be able to assign every one his
own as easily and certainly as possible。 Thus； in the brocard；
〃Purchase breaks hire；〃 what by the nature of the subject is a real
right… namely the hire… is taken to hold as a merely personal right；
and； conversely； as in the case referred to above； what is in itself
merely a personal right is held to be valid as a real right。 And
this is done only when the question arises as to the principles by
which a court of justice in the civil state is to be guided； in
order to proceed with all possible safety in delivering judgement on
the rights of individuals。
40。 IV。 Acquisition of Security by the Taking of an Oath。
（Cautio Juratoria）。
Only one ground can be assigned on which it could be held that men
are bound in the juridical relation to believe and to confess that
there are gods； or that there is a God。 It is that they may be able to
swear an oath； and that thus by the fear of an all…seeing Supreme
Power； whose revenge they must solemnly invoke upon themselves in case
their utterance should be false； they may be constrained to be
truthful in statement and faithful in promising。 It is not morality
but merely blind superstition that is reckoned upon in this process；
for it is evident it implies that no certainty is to be expected
from a mere solemn declaration in matters of right before a court；
although the duty of truthfulness must have always appeared
self…evident to all； in a matter which concerns the holiest that can
be among men… namely； the right of man。 Hence recourse has been had to
a motive founded on mere myths and fables as imaginary guarantees。
Thus among the Rejangs； a heathen people in Sumatra； it is the custom…
according to the testimony of Marsden… to swear by the bones of
their dead relatives； although they have no belief in a life after
death。 In like manner the negroes of Guinea swear by their fetish； a
bird's feather； which they imprecate under the belief that it will
break their neck。 And so in other cases。 The belief underlying these
oaths is that an invisible power… whether it has understanding or not…
by its very nature possesses magical power that can be put into action
by such invocations。 Such a belief… which is commonly called religion；
but which ought to be called superstition… is； however；
indispensable for the administration of justice； because； without
referring to it； a court of justice would not have adequate means to
ascertain facts otherwise kept secret； and to determine rights。 A
law making an oath obligatory is therefore only given in behoof of the
judicial authority。
But then the question arises as to what the obligation could be
founded upon that would bind any one in a court of justice to accept
the oath of another person as a right and valid proof of the truth
of his statements which are to put an end to all dispute。 In other
words； what obliges me juridically to believe that another person when
taking an oath has any religion at all； so that I should subordinate
or entrust my right to his oath？ And； on like grounds； conversely； can
I be bound at all to take an oath？ It is evident that both these
questions point to what is in itself morally wrong。
But in relation to a court of justice… and generally in the civil
state… if it be assumed there are no other means of getting to the
truth in certain cases than by an oath； it must be adopted。 In
regard to religion； under the supposition that every one has it； it
may be utilized as a necessary means （in causu necessitatis）； in
behoof of the legitimate procedure of a court of justice。 The court
uses this form of spiritual compulsion （tortura spiritualis） as an
available means； in conformity with the superstitious propensity of
mankind； for the ascertainment of what is concealed； and therefore
holds itself justified in so doing。 The legislative power； however； is
fundamentally wrong in assigning this authority to the judicial power；
because even in the civil state any compulsion with regard to the
taking of oaths is contrary to the inalienable freedom of man。
Official oaths； which are usually promissory； being taken on
entering upon an office； to the effect that the individual has sincere
intention to administer his functions dutifully； might well be changed
into assertory oaths； to be taken at the end of a year or more of
actual administration； the official swearing to the faithfulness of
his discharge of duty during that time。 This would bring the
conscience more into action than the promissory oath； which always
gives room for the internal pretext that； with the best intention； the
difficulties that arose during the administration of the official
function were not foreseen。 And； further； violations of duty； under
the prospect of their being summed up by future censors； would give
rise to more anxiety as to censure than when they are merely
represented； one after the other； and forgotten。
As regards an oath taken concerning a matter of belief （de
credulitate）； it is evident that no such oath can be demanded by a
court。 1。 For； first； it contains in itself a contradiction。 Such
belief； as intermediate between opinion and knowledge； is a thing on
which one might venture to lay a wager but not to swear an oath。 2。
And； second； the judge who imposes an oath of belief； in order to
ascertain anything pertinent to his own purpose or even to the
common good； commits a great offence against the conscientiousness
of the party taking such an oath。 This he does in regard both to the
levity of mind； which he thereby helps to engender； and to the
stings of conscience which a man must feel who to…day regards a
subject from a certain point of view； but who will very probably
to…morrow find it quite improbable from another point of view。 Any
one； therefore； who is compelled to take such an oath； is subjected to
an injury。
Transition from the Mine and Thine in the State
of Nature to the Mine and Thine in the
Juridical State Generally。
41。 Public Justice as Related to the Natural
and the Civil State。
The juridical state is that relation of men to one another which
contains the conditions under which it is alone possible for every one
to obtain the right that is his due。 The formal principle of the
possibility of actually participating in such right； viewed in
accordance with the idea of a universally legislative will； is
public justice。 Public justice may be considered in relation either to
the possibility； or actuality； or necessity of the possession of
objects… regarded as the matter of the activity of the will… according
to laws。 It may thus be divided into protective justice （justitia
testatrix）； commutative justice （justitia commutativa）； and
distributive justice （justitia distributiva）； in the first mode of
justice； the law declares merely what relation is internally right
in respect of form （lex justi）； in the second； it declares what is
likewise externally in accord with a law in respect of the object； and
what possession is rightful （lex juridica）； and in the third； it
declares what is right； and what is just； and to wha