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 of Right, and thus originated the movement of modern 'jural' speculation. For evidence of the statement in the text, see Bentham's Works, Buckle's History of Civilisation, Mill on Liberty, and especially Puchta's Encyclopädie, introductory to his Cursus der Institutionen, 6 Auf. 1865. The standpoint of the Historical School has been thoroughly reviewed by Stahl, i. 570-90; Ahrens, i. 51-61; and Röder, i. 266-279.

      34. 'Ueber den Charakter und die Aufgaben unserer Zeit in Beziehung auf Staat und Staatswissenschaft,' Giess. 1832. Zwölf Bücher vom Staate, 1839. See Rosenkranz's Geschichte der Kant'schen Philosophie, p. 268.

      35. This remark especially applies to the running fire of criticism in Von Kirchmann's recent Erläuterungen zu Kant's Metaphysik der Sitten, 1882. It is a matter of regret that such criticisms cannot be here dealt with in detail. Kant has himself clearly indicated the position stated above, as at p. 54, infra.—The depth and subtlety of Kant's method, so far transcending the common modes of juridical thinking in England, are inseparable from the system, but he has himself given the sufficient reason for their appearance in it (infra, p. 116). Without entering in detail upon the point, the translator may remark with regard to one conspicuous, yet irremoveable blot, that he homologates the unanimous disapprobation of subsequent jurists, and would only refer to Dr. Hutchison Stirling's drastic castigation of it in his Lectures, p. 51. But of this and other difficulties in so original and originative a work can only be said in the meantime:

      'Sunt delicta tamen, quibus ignovisse velimus.'

      And every reader and student should be ready to apply the Horatian rule here too:

      'Verum ubi plura intent . . . non ego paucis

       Offendar maculis, quas aut incuria fudit

       Aut humana parum cavit natura.'

      36. Fragment on Government, 1776. Essay on Political Tactics, 1791. Principles of Morals and Legislation, 1780. Traités de Legislation, 1802.

      37. Province of Jurisprudence determined, or Philosophy of Positive Law, 1832. Lectures on Jurisprudence, edited by his Widow. Austin (1790-1859) has been greatly overestimated as a Jurist by his friends and followers. The affectionate tributes of his widow may be borne with, but it is more extraordinary to find Professor Sheldon Amos characterizing him as 'the true founder of the Science of Law' (S. Amos, The Science of Law, p. 4). Here is Austin's estimate of Kant's Science of Right: 'A treatise darkened by a philosophy which, I own, is my aversion, but abounding, I must needs admit, with traces of rare sagacity. He has seized a number of notions, complex and difficult in the extreme, with distinction and precision which are marvellous, considering the scantiness of his means. For of positive systems of law he had scarcely the slightest tincture; and the knowledge of the principles of jurisprudence, which he borrowed from other writers, was drawn, for the most part, from the muddiest sources; from books about the fustian which is styled the Law of Nature.' (Lectures, iii. 157.) And here is his account of the German Jurists generally: 'It is really lamentable that the instructive and admirable books which many of the German Jurists have certainly produced, should be rendered inaccessible, or extremely difficult of access, by the thick coat of obscuring jargon with which they have wantonly incrusted their necessarily difficult science' (ii. 405). Comment on this is superfluous. In the same breath a more condemnatory judgment is dealt out even to Sir W. Blackstone. So long as such statements passed as philosophical criticism there was no possibility for a genuine Philosophy of Law in England. Austin, notwithstanding his English reputation, is entirely ignored by the German Jurists. He seems to have known only enough of German to consult the more popular productions of the Historical School. Dr. Hutchison Stirling has dealt with Austin's commonplace Hedonism in a severe way, and yet not too severely, in his Lectures on the Philosophy of Law (sub fin.).

      38. Utilitarianism has been the subject of incessant discussion in England down to its latest systematic exposition in Sidgwick's Methods of Ethics. On the Continent the system has also been carefully and ably reviewed by Th. Jouffroy (Cours de droit naturel, 1835), Ahrens (i. 48, but less fully in the later editions), I. H. Fichte (Die philosophischen Lehren von Recht, Staat und Sitte, 1850), De Wal (Prysverhandeling van het Natuurregt, 1833), and particularly by the Italian Jurists (Röder, i. 108).

      39. Ancient Law, p. 118.

      40. Much more may be justly claimed for Scotland than for England since the middle of the last century in regard to the cultivation of the Philosophy of Right. The Scottish School of Philosophy started on this side from Grotius and Thomasius. Gershom Carmichael edited Pufendorf with praiseworthy notes. Hutchison discussed the doctrine of Right with fulness and care in his System of Moral Philosophy (1755). Hume, in consistency with the method of his Intellectual Philosophy, derationalized the conceptions of Justice and Right, and resolved them into empirical products of public Utility (Treatise on Human Nature, 1739. Essays, 1742). Reid, leading the realistic reaction, examined this side of Hume's speculation with his characteristic earnestness, and advanced by his practical principle of Common Sense to positions akin to those of Kant's Practical Reason (Active Powers, 1788, Essay V. c. iii. Of Systems of Natural Jurisprudence, and the following chapters on Hume's Utilitarianism). Henry Home, Lord Kames, prosecuted the same method with more juridical knowledge (Principles of Equity; Historical Law Tracts, 1758; Sketches of the History of Man). The movement was carried on by Adam Ferguson (Principles of Moral and Political Science, 1792; Essay on the History of Civil Society, 1767), Dugald Stewart (see especially the account of the Grotian School in the Dissertation, 1815), and Dr. Thomas Brown (Lectures). Sir James Mackintosh wrote a Discourse on the Study of the Law of Nature and Nations, 1835. The cultivation of the Philosophy of Law has never been extinct in the Scottish Universities. Since the revival of the Chair of Public Law in the University of Edinburgh in 1862, Professor Lorimer has done much by his devotion and erudition to further the cultivation of the subject. (See the reference to his own works, supra, xi. n.) One of his pupils, Mr. W. G. Miller, Lecturer on Public Law in the University of Glasgow, has published a series of excellent Lectures on the subject, displaying extensive knowledge and critical acumen, with general regard to the Hegelian standpoint (Lectures on the Philosophy of Law, designed mainly as an introduction to the study of International Law, 1884). Professor Flint's important work on the Philosophy of History in France and Germany, and Professor Edward Caird's recent book on Comte's Social Philosophy, may also be referred to in this connection.

      The Metaphysic of Morals, as constituting the System of Practical Philosophy, was to follow the 'Critique of the Practical Reason,' as it now does. It falls into two parts: (1) The Metaphysical Principles of Jurisprudence as the Science of Right, and (2) The Metaphysical Principles of Ethics as the Science of Virtue. The whole System forms a counterpart to the 'Metaphysical Principles of the Science of Nature,' which have been already discussed in a separate work (1786). The General Introduction to the 'Metaphysic of Morals' bears mainly on its form in both the Divisions; and the Definitions and Explanations it contains exhibit and, to some extent, illustrate the formal Principles of the whole System.

      The Science of Right as a philosophical exposition of the fundamental Principles of Jurisprudence, thus forms the First Part of the Metaphysic of Morals. Taken here by itself—apart from the special Principles of Ethics as the Science of Virtue which follows it—it has to be treated as a System of Principles that originate in Reason; and, as such, it might СКАЧАТЬ