THE KANTIAN ETHICS: Metaphysics of Morals - Philosophy of Law & The Doctrine of Virtue, Perpetual Peace and The Critique of Practical Reason. Immanuel Kant

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СКАЧАТЬ by Chitty, 1834. [For the other works of this school, see Ahrens, i. 323-4, or Miller's Lectures, p. 411.]

      21. Grotius, De Jure Belli ac Pacis, lib. iii. 1625. Translated by Barbeyrae into French, 1724; and by Whewell into English, 1858.—Pufendorf, Elementa Juris Universalis, 1660. De Jure Naturae et Gentium, 1672. [English translation by Kennett, 1729.]—Cumberland, De Legibus Naturae Disquisitio Philosophica, London, 1672. Translated into English by Towers, Dublin, 1750.—Cocceji, Grotius illustratus, etc., 3 vols. 1744-7. [See Miller, 409.]

      22. Christian Thomasius (1655-1728) first clearly distinguished between the Doctrine of Right and Ethics, and laid the basis of the celebrated distinction of Perfect and Imperfect Obligations as differentiated by the element of Constraint. See Professor Lorimer's excellent account of Thomasius and of Kant's relation to his System, Inst. of Law, p. 288; and Röder, i. 240. The principal works of this School are: Thomasius, Fundamenta juris naturae et gentium ex sensu communi deducta, 1705. Gerhard, Delineatio juris naturalis, 1712. Gundling, Jus Naturae et gentium. Koehler, Exercitationes, 1728. Achenwall, Prolegomena Juris naturalis, and Jus Naturae, 1781.

      23. Hobbes, De Cive, 1642. Leviathan seu de civitate ecclesiastica et civili, 1651. On Hobbes generally, see Professor Croom Robertson's Monograph in 'Blackwood's Philosophical Classics.'

      24. L'origine et les fondements de l'inégalité parmi les hommes, Dijon, 1751. Contrat social, 1762. Rousseau's writings were eagerly read by Kant, and greatly influenced him. On Rousseau generally, see John Morley's Rousseau, Lond. 1878.

      25. Burke is assigned to the Historical School of Jurisprudence by Ahrens, who not inaptly designates him 'the Mirabeau of the anti-revolution' (i. 53). See the Reflections on the French Revolution (1790). Stahl gives a high estimate of Burke as 'the purest representative of Conservatism.'

      26. 'The very cry of the hour is, Fichte and Schelling are dead, and Hegel, if not clotted nonsense, is unintelligible; let us go back to Kant. See, too, in other countries, what a difference the want of Kant has made.' Dr. J. H. Stirling, Mind, No. xxxvi. 'Within the last ten years many voices have been heard, both in this country and in Germany, bidding us return to Kant, as to that which is alone sound and hopeful in Philosophy; that which unites the prudence of science with the highest speculative enterprise that is possible without idealistic extravagances.' Professor E. Caird, Journal of Speculative Philosophy, vol. xiv. 1, 126. 'From Hegel, we must, I think, still return upon Kant, seeking fresh hope for Philosophy in a continued use of the critical method.' Professor Calderwood, Introduction to Kant's Metaphysic of Ethics, p. xix.

      27. The Socialistic and Communistic Doctrines of Owen (1771-1858), Fourier (1777-1837), Saint-Simon (1760-1825), Louis Blanc, Proudhon, and Cabet, 'considered as aberrations in the development of Right,' are sketched by Ahrens (i. § 12) with his characteristic discrimination and fairness. The principles of the contemporary English Socialism will be found summed up in A Summary of the Principles of Socialism written for the Democratic Federation, by H. M. Hyndman and William Morris (1884). Compare also Hyndman's The Historical Basis of Socialism in England, and To-day and Justice, the organs of the Social Democracy.

      28. Schelling's contributions to the Science of Right have hardly received the attention they deserve. The absorption of his thought in the Philosophy of Nature left him less free to devote himself to the Philosophy of History, but it is mainly to him that the idea of the systematic objectivity and the organic vitality of the State, in its latest forms, is due. Hegel and Krause have severally adopted and developed the two sides of this conception. Compare Schelling's Abhandlung über das Naturrecht in Fichte and Niethammer's Journal, iv. and v.; and his Vorlesungen über die Methode des akademischen Studiums, p. 146, etc. See Stahl's excellent account of Schelling's Doctrine, Philosophie des Rechts, i. 403-14, and The Journal of Speculative Philosophy, vol. xiii. No. 3, vi., 'Schelling on History and Jurisprudence.'

      29. Stahl and Baader represent the Neo-Schellingian standpoint in their philosophical doctrines.—F. J. Stahl, Die Philosophie des Rechts, 3 Bde., 3 Auf. 1865 (an important and meritorious work).—Franz von Baader's Sämmtliche Werke, 16 Bde. 1851-60. (Cf. Franz Hoffmann's Beleuchtung des Angriffs auf Baader in Thilo's Schrift: 'Die theologisikende Rechts- und Staatslehre,' 1861.)—Joseph de Maistre, Soirées de St. Petersburg, Paris, 1821. Mémoires, etc., par A. Blanc, 1858.—L' Abbé de Bonald, Législation primitive, 1821.

      30. Hugo (1768-1844) is usually regarded as the founder, and Savigny (1778-1861) as the chief representative of the Historical School. Hugo, Lehrbuch des Naturrechts als einer Philosophie des positiven Rechts, 1799, 3 Auf. 1820. Frederich Carl von Savigny, Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft, 1814; System des heutigen Römischen Rechts, 1840. (See Guthrie's translation of Savigny, Treatise on the Conflict of Laws, with an excellent Preface. T. & T. Clark.)

      31. The Historical School, as Ahrens shows, must be carried back so as to include such thinkers as Cujas, the great French Jurist of the 16th century, who called the History of Right his 'hameçon d'or;' Montesquieu (1689-1755), whose well-known book, L'Esprit des Lois (1748), ran through twenty-two editions in a few years; and the Neapolitan Vico (1688-1744), the founder of the 'New Science' of History. Vico is only now becoming properly appreciated. See Professor's Flint's able and instructive 'Vico' in Blackwood's Philosophical Classics. 'In his work, De universi juris uno principio et fine (1820), Vico divides the whole Science of Right into three parts: (1) the Philosophy of Right, (2) the History of Right, and (3) the Art of applying the Philosophy to facts. He distinguishes profoundly in Laws the spirit or will of the legislator (mens legis) and the reason of the law (ratio legis), which consists in the accordance of a law with historical facts and with the eternal principles of the True and Good' (Ahrens). The contemporary Historical School does not yet occupy so philosophical a position.

      32. Sir Henry Sumner Maine, the most eminent English representative of the Historical School, continues to regard 'the philosophy founded on the hypothesis of a state of nature' as 'still the greatest antagonist of the Historical Method' (Ancient Law, pp. 90, 91); but this is evidently said in disregard of the transformation of Rousseau's theory by Kant, and the contributions to the application of the Historical Method by Hegel and his school, in whose principle the historic evolution is an essential element. Sir H. S. Maine's own contributions cannot be too highly recommended for their thoroughness and suggestiveness. He has gathered much of his original and pregnant matter from direct acquaintance with India, where, as is the case with the forms of nature, the whole genesis and stratification of the forms of Society are presented livingly to view. (Ancient Law, 1861, 7th ed. 1880. Village Communities in the East and West, 4th ed. 1881. Early History of Institutions, 1874.)

      33. Extremes meet in the moral indifference of the universal naturalism of the ultra-historical School and the abstract absolute rationalism of Spinoza. It was Grotius who first clearly distinguished between positive fact and rational СКАЧАТЬ