Thomas and his followers.
II. Thomas provided the apple of discord, or as might also be said, cast the leaven of progress into the treatment of rights, when he distinguished three forms of the rectum: the justum, the honestum, the decorum, placing the first in opposition to the other two, the forum externum to the internum, and attributing to rights and justice the character of coercibility.[9] The formula had a rapid and unsuspected fortune, and became current in the schools. Gundling, for instance, defined right as the "ordering of external relations."[10]
Kant and Fichte.
It was completely developed and reasoned out, with all the strictness that its erroneity permitted, in the doctrines of Kant and Fichte, who were the greatest of Thomas's scholars for this part of the study. Kant opposed legality to morality; the juridical imperative is expressed with the formula, "act externally" (handle äusserlich); right is conjoined with the faculty of compulsion (zwingen.) Hence his doctrines are often amoralistic or economic as regards individual juridical institutions, and this is especially the case when he deals with the State, with matrimony, and with punishment; these were followed by Fichte, who made some reservations for matrimony alone, considering it an institution not only juridical, but also natural and moral.[11] On the other hand rights were for Kant something that surpassed the individual will and utility; it was the sum of the conditions by means of which the will of the one can be united with the will of another, according to a universal law of liberty.[12] Fichte in like manner conceived of rights as altogether free of every admixture of morality; as an objective order, arising from the fact of the individual who coherently affirms himself and his own liberty, thus also affirming other individuals and their liberty.[13] Both philosophers thus preserve the moralistic concept of the legal and the justum; rights, although armed with compelling power, are never force alone, but the external ordering of freedom, namely, justice. For this reason, Kant explicitly excludes force, in so far as it is constitutive of rights and speaks of a "force without law"; and both he and Fichte make coercibility to flow, not from the nature of the volitional force itself, but from the violation of order. It is just, says Kant, to repel force with force, when it would interfere with liberty. The right of coercion (repeats Fichte) is founded solely upon the violation of the original right. But it remains obscure what this poor legality, justice, coexistence, and harmony of wills may be; what force may be and why and how it is connected with the preceding definition is not investigated. The distinction of the juridical from the moral sphere is announced and proclaimed more loudly than perhaps was ever done before or since; but to announce and to proclaim is not to carry out. If rights be changed into an ordinance more or less rational, to be identified with the concept of justice, one does not see how they can exist independently of morality. Kant and Fichte were prevented from conceiving the juridical function free from every element of morality or immorality, by the function which they assigned to compulsion (symbol of law), submitting it to ethical exigencies. In this uncertainty, there cannot be wanting and there is not wanting the thought that rights are not indeed an eternal category, but a historical and transitory fact; and as Spinoza had already said, si cum humana natura ita comparatum esset ut homines id quod maxime utile est maxime cuperent, nulla esset opus arte ad concordiam et fidem; Fichte thus looked upon the juridical State simply as a State of necessity opposed to the State of reason: and when perfection has been attained and there is complete accord of all in the common end, "the State" (he said) "disappears as a legislative and compulsive force."[14]
In the ulterior phase of his thought, Fichte Hegel afterwards took further steps toward a closer union between morality and rights. But the complete resolution of the first in the second is effected in the system of Hegel, though it is customary to blame this philosopher for the opposite fault, namely, that he resolves morality in right. Above all, Hegel would hear nothing of the concept of force in right: facts of force and of violence, as, for instance, the relation between a slave and his master, appertain, according to him, to a circle, which lies on this side of right, to the subjective spirit, to a world in which wrong can still be right. The fact that violence and tyranny are met with in positive rights is an accidental thing and does not affect its real nature. For Hegel, as for his predecessors, co-operation arises only as reaction from the violation of what is just, and is violence preservative of liberty, suppression of the previous violence. "To define abstract and rigorous rights as law which we can be compelled to obey, means" (writes Hegel) "to see them as a consequence of what takes place only by the cross road of wrong." But there is more: abstract rights, which form the first moment of the Philosophy of the practical in Hegel, are unreal; he opposes to them the second moment, morality, which also is abstract and unreal, consisting of the good intention, which has not yet been incorporated in action and life: thus concrete reality is realized only in the third moment, in the ethos, which synthetizes the abstract rights and the abstract morality of the intention in social life.[15] From this it is clear that the purely juridical moment does not possess effective spiritual autonomy for Hegel; so much so, that it is placed by him upon the same plane as abstract and unreal morality. In consequence of his identification of rights with ethicity, Hegel is opposed to Kant and Fichte in his definitions of single rights; he rejects the compulsory and contractual theory of the State and (the Kantian) theory of matrimony as a strict contract made between individuals as to the reciprocal use of their bodies.[16] The compulsory theory of punishment seemed to him to reduce the latter to a mere economic fact, by means of which "the State as judging power, opens a business with goods called crimes exchangeable for other goods, and the code is the list of prices."[17]
Herbart and Schopenhauer.
Herbart too denies the originality of the character of compulsion in the idea of rights, and this is one of his five practical ideas, or, "the agreement of many wills, thought as a rule that eliminates strife." But even in this superficial moralistic reduction, force reappears all of a sudden, one knows not how: society has need of an external bond, in order to subsist; force and power (Macht) are added to society and the State arises.[18] The same contradictions are to be found in Schopenhauer: after he has posited the two virtues of justice and benevolence, he makes a chapter of morality out of the pure doctrine of law. The science of rights in the specific sense borrows this chapter in order to study its opposite: all the limits that morality looks upon as not to be passed without intention of wrong-doing, on the contrary are considered by the science of rights as limits, of which violation by others is not to be tolerated and from which one has the right to expel others. Thus the distinction between internal and external is in this way reproduced in all its unmaintainability under the denomination of rights and their opposite. But the bridge of asses is always the junction of rights with force, that is to say, with the element extraneous to Ethic; and in this connection Schopenhauer has nothing better to offer than a comparison. "As there are certain chemical substances never to be found pure and isolated, but always in some sort of combination with another element, which gives to them the necessary consistency; so rights, when they must set foot in the real world and dominate it, have need of a small adjunct of will and force, in order to be able (notwithstanding its nature, which is really ideal and therefore ethereal) to operate and persist in this real and material world, without evaporating and flying to heaven, as was the case with Hesiod."[19]
Rosmini and others.
Rosmini presents the two elements not well harmonized, as the eudæmonological and the ethical. Rights for him are not mere eudæmonism, but a eudæmonistic fact, produced by moral right and receiving form from it; hence the science of rights "stands between Eudæmonology and Ethic, so that one of its ends extends to the one and the other to the other." It would not be easy to explain and to justify what he calls a mediate science, composed of Eudæmonology and Ethic; and it would be far less easy to explain how this science comes to be "completely distinct" as regards its components. If rights have a moral form, they are moral and not eudæmonological. Owing to this difficulty Rosmini was led to introduce the concept of the licit as criterion of differentiation, defining right as "a personal faculty and power of enjoying, acting and being able to act, a lawful good that must not be impeded by others."[20] Juridically understood this constitutes a tautology, ethically something worse. Other Catholic authors (Taparelli, for example) deplore the separation of ethos from jus, introduced (they say) by Protestant doctrines and the limitation of right to what a man can externally exact from others according to law; "whence it happens that in the enumeration of laws, actions are sometimes posited that are real moral faults in the agent"; maintaining on the contrary the necessity of treating morality and rights together, "for rights are part of morality in the same way that trigonometry and conic sections are a part of geometric theories."[21]
Stahl, Ahrens, Trendelenburg.