Note 45 — CONTENTS

(p. 29). That in the case of the limits of right (Rechtsgrenzen) we have essentially to do with spheres which lie at the disposal of the individual will has been frequently emphasized both by philosophers (cf. in this respect e.g. Herbart’s Idea of Right) and by able jurists. Ihering in his Geist des römischen Rechts, iii. 1 (p. 320 note), demonstrates this with numerous citations. Arndt e.g. in his Handbuch der Pandekten defines law as “supremacy of the will regarding an object”; for Sintenis it is, “the will of one person raised to the universal will.” Windscheid defines it as “a certain volition (Willensinhalt) of which the legal code in a concrete case affirms that it may be made valid as against every other will.” Puchta, who has perhaps expressed the thought in the most manifold ways, says in his digest of Roman law, section 22, “as the subjects of such a will thought of potentially men are called persons, ... personality is therefore the subjective possibility of the legalized will, of a legal power.” In the same work (section 118, note b) he observes in regard to a want of personality: “The principle of modern law is inability to dispose of property”; many other of his expressions convey the same meaning.

As however these legal authorities have concentrated their attention exclusively upon legal duties, and do not touch upon the problem as to the way in which the individual will has to rule in its legal sphere, Ihering has interpreted them as meaning that they considered the true and highest good, and the most intrinsic and final end, towards which the legal code strives, to be the exercise of the will as will, the joy of the individual in his volitional activity; “the final end of all law is, for them, willing” (pp. 320, 325); “the end of law (according to them) consists once for all in the power of the will, in its supremacy” (p. 326). One can well understand how he comes to condemn a theory so interpreted (p. 327), and even that he succeeds in making it appear ridiculous. “According to this view,” he says, (p. 320) “all private right is nothing less than an arena in which the will moves and exercises itself; the will is the organ by which the individual enjoys his right, the profit obtained from legal right consists in feeling the joy and glory of power, in the satisfaction of having realized an act of will, e.g. of having effected a mortgage, transferred a title, and so proved oneself to be a legal personality. What a poor thing would the will be if the bare and low regions of law were the proper “sphere of its activity!”

Certainly the heaviest charges of absurdity and ridiculousness would be well deserved if those scholars who regard the immediate aim of law as consisting in a limitation of the spheres at the disposal of the will had intended in so doing to disavow all regard for the final ethical end, i.e. the advancement of the highest practical good. There is, however, absolutely nothing to justify this insinuation, and therefore one could perhaps with more right smile at the zeal of an attack which is really levelled merely against windmills. Moreover, what Ihering proposes to set in its place is certainly a bad substitute. For, in regarding the sphere ascribed by the legal authority to the individual simply as a sphere consigned to their egoism (a view which, as the author of Der Zweck im Recht, he perhaps no longer holds), he is thus led to his definition: “Law (Recht) is legal security for enjoyment,” whereas he would have been more correct in saying: “Law is legal security for the undisturbed disposal of individual power in the advancement of the highest good.” Is then injustice something which exhausts bad conduct? By no means; legal duties have limits; duty in general governs all our actions, and this our popular religion expressly emphasizes, as, for instance, when it asserts that for every idle word the individual must render an account.

Besides this first objection, which rests upon a simple misunderstanding of the intention, Ihering has also raised several others which are essentially due to imperfections in the use of language. If the legal code essentially consists in setting certain limits to the activity of the individual will in order that one person may not disturb the other in striving after the good, it follows that he who has, or had, or will have no will has also no legal sphere. I say, “has, or had, or will have,” for obviously regard must be paid to the past and to the future. A dead man often exercises an influence extending into the far distant future, so that Comte well says: the living are more and more dominated by the dead. In like manner, the situation will entail that, in respect of many problems, we leave the decision to the future, i.e. renounce the sovereignty in favour of a future will. This consideration resolves many a paradox urged by Ihering (pp. 320-325); not however, all. In the case of one who from birth has been an incurable imbecile, it is obvious that no power of will whatever can be found, to which regard for the highest practical good might allow a sphere; there remains therefore to him, according to our view, really no legal sphere, and yet on every hand we hear of a right which he possesses in his own life; even under some circumstances, we refer to him as the owner of a great estate, or ascribe to him the right of a crown or kingly rule. On examining the relations closely, we find that we are never concerned here with a true legal sphere respecting a subject incapable of being held responsible, but rather with the legal spheres of other individuals, as, for example, that of a father who, in providing for his imbecile child, gives instructions in his will concerning his property, the dominion of whose will is safeguarded after his death by the law of the land; or (as, for example, the case where the imbecile’s life is held to be sacred), quite apart from the injury done to the simple duty of affection which this would involve, there is also in question the State’s legal sphere, which permits no one else to commit a fatal attack, and accordingly often imposes a punishment, even in the case of an attempt at suicide.

A third objection of Ihering’s, i.e. that by a limitation of rights as affecting spheres of will, even the most senseless dispositions of will must be allowed legal validity (p. 325), this offers, after what has been said, hardly any further difficulty. Certainly many a foolish disposition of will must be allowed. Were the State not to admit this, then it alone would possess a definitive right of disposal; all private right would be at an end. So long as not merely subjects, but also governments, are liable to commit acts of foolishness, such an extension of the power of the State cannot be recommended. For the rest, just as secondary ethical rules in general suffer exceptions, and in particular expropriations in the case of private owners are frequently necessary, so also it is clear and to be admitted without contradiction, that senseless dispositions or dispositions which have evidently lost all meaning and reference to the highest practical good can be annulled by the State. Regard for the highest practical good is here, as is the case of every other so-called collision of duties, decisive.