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！
what possession is rightful （lex juridica）； and in the third； it
declares what is right； and what is just； and to what extent； by the
judgement of a court in any particular case coming under the given
law。 In this latter relation； the public court is called the justice
of the country； and the question whether there actually is or is not
such an administration of public justice may be regarded as the most
important of all juridical interests。
The non…juridical state is that condition of society in which
there is no distributive justice。 It is commonly called the natural
state （status naturalis）； or the state of nature。 It is not the social
state； as Achenwall puts it； for this may be in itself an artificial
state （status artificialis）； that is to be contradistinguished from
the 〃natural〃 state。 The opposite of the state of nature is the
civil state （status civilis） as the condition of a society standing
under a distributive justice。 In the state of nature； there may even
be juridical forms of society such as marriage； parental authority；
the household； and such like。 For none of these； however； does any law
a priori lay it down as an incumbent obligation： 〃Thou shalt enter
into this state。〃 But it may be said of the juridical state that： 〃All
men who may even involuntarily come into relations of right with one
another ought to enter into this state。〃
The natural or non…juridical social state may be viewed as the
sphere of private right； and the civil state may be specially regarded
as the sphere of public right。 The latter state contains no more and
no other duties of men towards each other than what may be conceived
in connection with the former state； the matter of private right is；
in short； the very same in both。 The laws of the civil state；
therefore； only turn upon the juridical form of the coexistence of men
under a common constitution； and； in this respect； these laws must
necessarily be regarded and conceived as public laws。
The civil union （unio civilis） cannot； in the strict sense； be
properly called a society； for there is no sociality in common between
the ruler （imperans） and the subject （subditus） under a civil
constitution。 They are not co…ordinated as associates in a society
with each other； but the one is subordinated to the other。 Those who
may be co…ordinated with one another must consider themselves as
mutually equal； in so far as they stand under common laws。 The civil
union may therefore be regarded not so much as being； but rather as
making a society。
42。 The Postulate of Public Right。
From the conditions of private right in the natural state； there
arises the postulate of public right。 It may be thus expressed： 〃In
the relation of unavoidable coexistence with others； thou shalt pass
from the state of nature into a juridical union constituted under
the condition of a distributive justice。〃 The principle of this
postulate may be unfolded analytically from the conception of right in
the external relation； contradistinguished from mere might as
violence。
No one is under obligation to abstain from interfering with the
possession of others； unless they give him a reciprocal guarantee
for the observance of a similar abstention from interference with
his possession。 Nor does he require to wait for proof by experience of
the need of this guarantee； in view of the antagonistic disposition of
others。 He is therefore under no obligation to wait till he acquires
practical prudence at his own cost； for he can perceive in himself
evidence of the natural inclination of men to play the master over
others； and to disregard the claims of the right of others； when
they feel themselves their superiors by might or fraud。 And thus it is
not necessary to wait for the melancholy experience of actual
hostility； the individual is from the first entitled to exercise a
rightful compulsion towards those who already threaten him by their
very nature。 Quilibet praesumitur malus； donec securitatem dederit
oppositi。
So long as the intention to live and continue in this state of
externally lawless freedom prevails； men may be said to do no wrong or
injustice at all to one another； even when they wage war against
each other。 For what seems competent as good for the one is equally
valid for the other； as if it were so by mutual agreement。 Uti
partes de jure suo disponunt； ita jus est。 But generally they must
be considered as being in the highest state of wrong； as being and
willing to be in a condition which is not juridical； and in which；
therefore； no one can be secured against violence； in the possession
of his own。
The distinction between what is only formally and what is also
materially wrong； and unjust； finds frequent application in the
science of right。 An enemy who； on occupying a besieged fortress；
instead of honourably fulfilling the conditions of a capitulation；
maltreats the garrison on marching out； or otherwise violates the
agreement； cannot complain of injury or wrong if on another occasion
the same treatment is inflicted upon themselves。 But； in fact； all
such actions fundamentally involve the commission of wrong and
injustice； in the highest degree； because they take all validity
away from the conception of right； and give up everything； as it
were by law itself； to savage violence； and thus overthrow the
rights of men generally。
SECOND PART。 PUBLIC RIGHT。
THE SYSTEM OF THOSE LAWS WHICH REQUIRE PUBLIC PROMULGATION。
THE PRINCIPLES OF RIGHT IN CIVIL SOCIETY。
43。 Definition and Division of Public Right。
Public right embraces the whole of the laws that require to be
universally promulgated in order to produce juridical state of
society。 It is therefore a system of those laws that are requisite for
a people as a multitude of men forming a nation； or for a number of
nations； in their relations to each other。 Men and nations； on account
of their mutual influence on one another； require a juridical
constitution uniting them under one will； in order that they may
participate in what is right。 This relation of the individuals of a
nation to each other constitutes the civil union in the social
state； and； viewed as a whole in relation to its constituent
members； it forms the political state （civitas）。
1。 The state； as constituted by the common interest of all to live
in a juridical union； is called； in view of its form； the commonwealth
or the republic in the wider sense of the term （res publica latius sic
dicta）。 The principles of right in this sphere thus constitute the
first department of public right as the right of the state （jus
civitatis） or national right。 2。 The state； again； viewed in
relation to other peoples； is called a power （potentia）； whence arises
the idea of potentates。 Viewed in relation to the supposed
hereditary unity of the people composing it； the state constitutes a
nation （gens）。 Under the general conception of public right； in
addition to the right of the individual state； there thus arises
another department of right； constituting the right of nations （jus
gentium） or international right。 3。 Further； as the surface of the
earth is not unlimited in extent； but is circumscribed into a unity；
national right and international right necessarily culminate in the
idea of a universal right of mankind； which may be called
Cosmopolitical Right （jus cosmopoliticum）。 And national；
international； and cosmopolitical right are so interconnected； that；
if any one of these three possible forms of the juridical relation
fails to embody the essential principles that ought to regulate
external freedom by law； the structure of legislation reared by the
others will also be undermined； and the whole system would at last
fall to pieces。
I。 Right of the State and Constitutional Law。
（Jus Civitatis）。
44。 Origin Of the Civil U