Page images
PDF
EPUB

1

common conditions and means to the attainment of the destiny of all."

The third basic characteristic of man is the capability of combining with his kind for all the rational purposes of human life, the associational ability (die Associationsfähigkeit). It rests in part upon natural instinct, in part upon reflection of the understanding, in part upon the reason striving for harmonious organization. The combinations which rest upon intelligent reflection develop especially in the systems of individualistic freedom, they arise from calculation and the perception of the advantages which they afford to the special interests. They rest, consequently, upon selfishness and promote the selfish impulses. They work, consequently, not in the direction of conciliation, but by way of intensifying contrasts and by making inequalities greater. The true need of the present is, consequently, search for ways and means of “emerging from this condition of opposition, of struggle, and of competition, and of organizing all needs and social elements according to the principles of co-ordination and harmony." Human society should take shape corresponding with each of the chief life-purposes and the different planes of personality, in special organisms, which organisms should be joined to one another and ordered by the state in their just relationships. Always, however, personality and freedom must remain the basis. The societary bond may limit them, to be sure, and may guide them in their activity toward the societary purpose. It must, however, respect them in their peculiarity and each individual must be assured of access to all the other ranges of life. Association therefore does not consist in destroying the interests of the individual through the interests and the purpose of society. “The association which excludes individualism is quite as remote from communism."4

The weightiest consequence of this societary conception of the position of the individual is to be drawn in the realm of property rights. The definitions of property in the law books assign to the proprietor almost always an unlimited and exclusive usufruct

Rechts philosophie, 4th ed., pp. 389-90. 3 Ibid., 4th ed., p. 407. a Ibid., 2d ed., p. 209.

* Ibid., 2d ed., p. 219.

.

а.

(Gebrauchsrecht) of the things of which he is proprietor. They nevertheless find themselves under the necessity of setting up many sorts of limitations which unconsciously contain recognition of the principle that the property must serve reasonable purposes. In fact, property consists of two elements, a personal and a social. History teaches us how great social ideas, like new thought in morality, religion, and politics, necessarily modified property. Property is, to be sure, a personal, original, natural right of each man, because his physical and spiritual development depends upon control over material goods. The state does not create property." The state must, however, insure, guarantee, and regulate the rightfully existing property and the exercise of the right of property. For this right cannot be unlimited and cannot involve anything that can be harmful to the community. In the manner and the degree of these limitations is reflected the prevailing relationship between the individual, the state, and the society. This relationship varies with the stage of civilization. This right of influence is one of the weightiest means of extricating society from that condition of individualism and of dismemberment in which the individual looks upon himself as the unlimited lord of his actions, and of the things which he has made, and thereby overlooks the organic bonds which unite him to the community and lay duties upon him.”

In his review of the first French edition of Ahrens' Rechtsphilosophie Mohl prophesied that the book would make an epoch in France and in all the Romance states. In fact, the work went through several editions and has been translated into six languages. Of Germany, Mohl asserted that here "the most who cultivate, officially, natural law will not allow themselves to be disturbed in their peaceful possession of the teachings of Kant, Hegel, and Stahl, which alone can make wise unto salvation.” It did not, however, fail to make an impression even in this class. The German version went through five editions and even appeared again in 1870. It unquestionably influenced the contemporary younger national economists, and even in recent times it has been treated with consideration, notably by Adolph Wagner. In the philosophy of law Röder particularly has followed Krause and Ahrens. Particularly in treatment of the question of property, he breaks in the most decisive manner with the individualistic conception,” yet without accepting the socialistic ideas of the distribution of wealth. If the needs and the worth of each individual were precisely ascertained, and likewise the two corresponding items with respect to the aggregate of the population, that which belongs to each might be assigned to him by society. In simple community relationships of an intimate sort which could be readily surveyed, this way has been followed (the Jesuit state in Paraguay, the agrarian community of the Germans, the distribution of goods in ancient Rome). With the development of peoples, however, a societary distribution of material goods, even under the most favorable circumstances, can hardly occur even in theory, since all three decisive factors, namely the need, the means, and the number of people, are constantly changing. This appears to justify the present system, since it is left to each to get the value out of the product of his own labor, and in free commerce by means of contracts to assure the wage that he earns. But we must not forget that "aside from labor, favorable or unfavorable fortune also, in brief, accident, both directly and indirectly, and often in the most decisive way exercises an influence upon the distribution of material goods." This comes properly into the true light when we reflect that the acquisition of material goods through labor and the dependence of the total distribution of goods upon the labor of the individual is still dependent upon two presuppositions: “first, that every man is in a position to labor or not as he will; and second, that his confidence is justified, that under com

>

* This passage is a good illustration of the confusion inevitable until there is rigid reckoning with the different connotations of the term “property," e.g., (a) "property" in the sense of the external object possessed; (b) “property" in the sense of an adjudged rightfulness of the relation between possessor and the thing possessed; (c) “property" in the legal sense, i.e., the civic ratification and sanction of the judgment in (6), or more exactly the relationship established by that civic ratification and sanction.-A. W. S.

Rechtsphil., 2d ed., pp. 266–369, 4. Aufl., bes. Theil, zweiter Abschnitt.

>

1 Grundlegung der politischen Ökonomie, 3. Aufl., 1. Theil, 2. Halbbd., pp. 872 ff.

Grundzüge des Naturrechts oder der Rechts philosophie, 1. Aufl., 1843; 2. Aufl., 1860–63, 2. Bd., 5. Hauptstück.

[graphic]

pletely free exercise of all the individual forces, each available activity, each true merit will be able to win its corresponding recognition. If, however, we do not want to come into contradiction with all experience, we must remember that both of these presuppositions are to be regarded as, at most, rules the exceptions to which leave only a small margin. Merely a consequence of this is unquestionably the sharp antithesis in which we so frequently observe the division of external goods—through excessive accumulations or subdivisions with the needs and the worth, that is, with the equitable grounds of all material property.” If free play is not to be given to the blind accidents of fortune, and if the decisions of the same are not to be accepted with Turkish resignation, we may not, in determining the legal order for material goods (possessions, earnings, loss, consumption), proceed from the standpoint of the individual, but we must decide from all-sided consideration of the essential purposes of the whole, as well as of the members of the society. “That selfishness which aims at the ruin of one's neighbor through all possible evil arts, along with utilization of one's own superiority in the so-called free competition, that is virtually the whole insufficient basis and center of today's economic theory, is at all events equally dubious from moral and from genuinely economic and legal considerations." The outcome of today's irregular distribution in society, decided almost wholly by accident, cannot be so important as it would be if we had orderly organic co-operation. Private property in its present exaggerated extent and exclusiveness is not permanently maintainable. Only in a far less degree than we today usually assume can it pass as unrestrictedly necessary. The more we gain in the way of insight into justice, especially with reference to the more general and advanced needs of society, as our culture increases, the more shall we approach to an ordering of property which through legal limitation assures a use which is in accordance with the purposes of the individuals and of the aggregate, which facilitates commerce in material things and promotes the production of goods. The special norms of such a legal order must be adapted to the total conditions given from time to time in a particular state.

[ocr errors]

V

I

The idea that law must be based upon investigation of societary relationships, and that its content must be a movement toward social reform, has also been represented by Eisenhart and Warnkönig. The former declares that legal training calls for a basic training in the social sciences. “Our science must broaden itself into social science and it must assimilate the various complementary community spheres," writes the latter with reference to Rechtsphilosophie. At the same time, however, he calls attention to the fact that this discipline cannot alone perform all the tasks which follow upon its fundamental principles. “The science, however, has to show the ways and means by which the harmful effects of private property may be prevented or how they may be diminished or abolished. To this end it must leave the juristic realm and turn to ethics, national economy, Polizei, and even to the science of finance in order to find the remedies for the social ills necessarily begotten by the severity and immobility of private law."

IV

The influence which the ideas of legal philosophy just referred to have exerted upon national economy are directly traceable only in particular cases. There is no doubt, however, that it has been great, and that on the whole it is to be recognized in that conception of economic science which has called itself the historico-ethical. The social movement, the discussion about society, the investigations in legal philosophy have all exhibited an abundance of life-phenomena which are interdependent with the industrial facts, and which were not interpreted by the previous national economy. As a theory, this interpretation was a mere "arithmetic of egoism,”. an economic logic (Treitschke), the inadequacy of which for the comprehension of the empirical reality of industrial life was proved as soon as we took into the field of vision the complex whole of society. As a civic policy (Politik) it was eclectic. It lacked a principle of unity. The incomplete condition of national economy

I

Philosophie des Staates oder allgemeine Sozialtheorie, 1843, Vorrede.

? “Die Gegenwärtige Aufgabe der Rechtsphilosophie,” Zeitschrift f. ges. Staatsw., 1851, pp. 257-80.

« PreviousContinue »