Immanuel Kant

“ It was impossible that the rational evangel of universal freedom and the seer-like vision of a world, hitherto groaning and travailing in pain but now struggling into the perfection of Eternal Peace and Good-will, should find a sympathetic response in Schopenhauer, notwithstanding all his admiration of Kant; but the racy cynicism of the great Pessimist rather subsides before him into mild lamentation than seeks the usual refuge from its own vacancy and despair in the wilful caustic of scorching invective and reproach. ”

“ Thus produced, Kant's Science of Right constituted an epoch in jural speculation, and it has commanded the homage of the greatest thinkers since. Fichte, with characteristic ardour and with eagle vision, threw his whole energy of soul into the rational problem of Right, and if not without a glance of scorn at the sober limitations of the 'old Lectures' of the aged professor, he yet acknowledges in his own more aerial flight the initial safety of this more practical guidance. ”

“ Its firm and clear outline implies the substance of many an operose and now almost unreadable tome; and it is alive throughout with the quick, keen spirit of the modern world. Kant's unrivalled genius for distinct division and systematic form, found full and appropriate scope in this sphere of thought. He had now all his technical art as an expounder of Philosophy in perfect control, and after the hot rush through the first great Critique he had learned to take his time. His exposition thus became simplified, systematized, and clarified throughout to utmost intelligibility. ”

“ The Civil Jurists who have carried the unreasoning admiration of the Roman Law almost to the idolatry of its letter, and who are too apt to ignore the movement of two thousand years and all the aspirations of the modern Reason, could not be expected to be found in sympathy with the Rational Method of Kant. Their multiplied objections to the details of his exposition, from Schmitthenner [34] to the present day, are, however, founded upon an entire misapprehension of the purpose of his form. ”

“ On the contrary, there is probably nothing at all in his whole System of Philosophy—whose predominant characteristics are criticism, initiation, movement—that could be intelligently so regarded; and the admitted progress of subsequent theories of Right, as briefly indicated above, may be considered as conceding so much. It must be further admitted of Kant's Science of Right that it presents everywhere abundant opening and even provocation for 'Metacriticism' and historical anticriticism, which have certainly not been overlooked or neglected. ”

“ As Kant saved the distracted and confused thought of his time from utter scepticism and despair, and set it again with renewed youth and enthusiasm on its way, so his spirit seems to be rising again upon us in this our hour of need, with fresh healing in his wings. Our Jurists must therefore also join the ever increasing throng of contemporary thinkers in the now general return to Kant. ”

“ But he had further to contemplate the common life of Humanity in its varied ongoings and activities, rising with the innate right of mastery from the bosom of Nature and asserting its lordship in the arena of the mighty world that it incessantly struggles to appropriate and subdue to itself. ”

“ The contemporary Historical School does not yet occupy so philosophical a position.↑ 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. ”

“ Of criticism and comment, blind adulation and unjust depreciation of Kant's system of Right, there has been, as already hinted, abundance and even more than enough. Every philosophical Jurist has had to define more or less explicitly his attitude towards the Kantian standpoint. The original thinkers of the dogmatic Schools—Fichte, Schelling, [28] Hegel, and Krause,—have made it the starting-point of their special efforts, and have elaborated their own conceptions by positive or negative reference to it. ”

“ But it is meant withal that the Philosophy of Jurisprudence has really flourished in the Nineteenth Century only where Kant's influence has been effective, and that the higher altitudes of jural science have only come into sight where he has been taken as a guide. The great critical thinker set the problem of Right anew to the pure Speculative Reason, and thus accomplished an intellectual transformation of juridical thought corresponding to the revolutionary enthusiasm of liberty in the practical sphere. ”

“ The conspicuous want of a criterion of Right in the application of the mere historical Method to the manifold, contingent, and variable institutions of human society, has been often signalized; and the representatives of the School have been driven again, especially in their advocacy of political liberalism, upon the rational principles of Freedom. ”

“ All the continental thinkers and schools of the century in this sphere of Jurisprudence, whatever be their distinctive characteristics or tendencies, have owned or manifested their obligations to the great master of the Critical Philosophy. ”

“ In the natural chaos and conflict of the social life of man, as presented in the multitudinous and ever-changing mass of the historic organism, he had also to search out the Principles of order and form, to vindicate the rationality of the ineradicable belief in human Causation, and to quicken anew the lively hope of a higher issue of History. ”

“ And in spite of his negative aspect, which has sometimes entirely misled superficial students, his solution, although betimes tentative and hesitating, is in the main faithful to the highest ideal of humanity, being foundationed on the eternity of Right and crowned by the universal security and peace of the gradually realized Freedom of mankind. ”

“ Translator's preface Kant's Science of Right [Rechtslehre] is a complete exposition of the Philosophy of Law, viewed as a rational investigation of the fundamental Principles of Jurisprudence. It was published in 1796, [1] as the First Part of his Metaphysic of Morals, [2] the promised sequel and completion of the Foundation for a Metaphysic of Morals, [3] published in 1785. ”

“ In Kant the juridical Idea first attains its essential self-realization and productivity, and his system of Private Right is at once freer and more concrete than the Systems of Hobbes and Rousseau, because it involves the ancient civil system, corrected and modernized by regard to its rational and universal principles. ”

“ It is only thus, too, that the practical Politician will find the guidance of real principle in this agitated and troubled age in which the foundations of Government as well as of Right are so daringly scrutinised and so manifestly imperilled, [27] and in which he is driven by the inherent necessary implication of local politics to face the inevitable issue of world-wide complications and the universal problem of human solidarity. ”

“ Compare also Hyndman's The Historical Basis of Socialism in England, and To-day and Justice, the organs of the Social Democracy.↑ 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. ”

“ 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. ”

“ Their principles are even more conspicuously at hazard than any others, and the whole method of their science, long dying of intellectual inanition and asphyxia, must seek the conditions of a complete renovation. ”

“ 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. ”

“ Rousseau's writings were eagerly read by Kant, and greatly influenced him. On Rousseau generally, see John Morley's Rousseau, Lond. 1878.↑ 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.'↑ '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. ”

“ 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) .↑ Ancient Law, p. 118.↑ 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. ”

“ The standpoint of the Historical School has been thoroughly reviewed by Stahl, i. 570-90; Ahrens, i. 51-61; and Röder, i. 266-279.↑ '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.↑ 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. ”