Certainly the heaviest charges of absurdity and ridiculousness would be well deserved if those scholars who regard the immediate aim of law as consisting in a limitation of the spheres at the disposal of the will had intended in so doing to disavow all regard for the final ethical end, i.e. the advancement of the highest practical good. There is, however, absolutely nothing to justify this insinuation, and therefore one could perhaps with more right smile at the zeal of an attack which is really levelled merely against windmills. Moreover, what Ihering proposes to set in its place is certainly a bad substitute. For, in regarding the sphere ascribed by the legal authority to the individual simply as a sphere consigned to their egoism (a view which, as the author of Der Zweck im Recht, he perhaps no longer holds), he is thus led to his definition: “Law (Recht) is legal security for enjoyment,” whereas he would have been more correct in saying: “Law is legal security for the undisturbed disposal of individual power in the advancement of the highest good.” Is then injustice something which exhausts bad conduct? By no means; legal duties have limits; duty in general governs all our actions, and this our popular religion expressly emphasizes, as, for instance, when it asserts that for every idle word the individual must render an account.
Besides this first objection, which rests upon a simple misunderstanding of the intention, Ihering has also raised several others which are essentially due to imperfections in the use of language. If the legal code essentially consists in setting certain limits to the activity of the individual will in order that one person may not disturb the other in striving after the good, it follows that he who has, or had, or will have no will has also no legal sphere. I say, “has, or had, or will have,” for obviously regard must be paid to the past and to the future. A dead man often exercises an influence extending into the far distant future, so that Comte well says: the living are more and more dominated by the dead. In like manner, the situation will entail that, in respect of many problems, we leave the decision to the future, i.e. renounce the sovereignty in favour of a future will. This consideration resolves many a paradox urged by Ihering (pp. 320-325); not however, all. In the case of one who from birth has been an incurable imbecile, it is obvious that no power of will whatever can be found, to which regard for the highest practical good might allow a sphere; there remains therefore to him, according to our view, really no legal sphere, and yet on every hand we hear of a right which he possesses in his own life; even under some circumstances, we refer to him as the owner of a great estate, or ascribe to him the right of a crown or kingly rule. On examining the relations closely, we find that we are never concerned here with a true legal sphere respecting a subject incapable of being held responsible, but rather with the legal spheres of other individuals, as, for example, that of a father who, in providing for his imbecile child, gives instructions in his will concerning his property, the dominion of whose will is safeguarded after his death by the law of the land; or (as, for example, the case where the imbecile’s life is held to be sacred), quite apart from the injury done to the simple duty of affection which this would involve, there is also in question the State’s legal sphere, which permits no one else to commit a fatal attack, and accordingly often imposes a punishment, even in the case of an attempt at suicide.
A third objection of Ihering’s, i.e. that by a limitation of rights as affecting spheres of will, even the most senseless dispositions of will must be allowed legal validity (p. 325), this offers, after what has been said, hardly any further difficulty. Certainly many a foolish disposition of will must be allowed. Were the State not to admit this, then it alone would possess a definitive right of disposal; all private right would be at an end. So long as not merely subjects, but also governments, are liable to commit acts of foolishness, such an extension of the power of the State cannot be recommended. For the rest, just as secondary ethical rules in general suffer exceptions, and in particular expropriations in the case of private owners are frequently necessary, so also it is clear and to be admitted without contradiction, that senseless dispositions or dispositions which have evidently lost all meaning and reference to the highest practical good can be annulled by the State. Regard for the highest practical good is here, as is the case of every other so-called collision of duties, decisive.
[46] (p. 29). That a law, which in and for itself is bad and contrary to nature, however condemnable from an ethical point of view, and its modification urgently necessary, may yet in many cases receive a provisional sanction from the reason, this has long been recognized and made clear, as e.g. by Bentham in his Traités de Législation civ. et pén. In antiquity Socrates, who deemed himself worthy to be feasted in the Prytaneum, died for the sake of this conviction. The positive legal code, despite all its defects, creates a condition of things which is better than anarchy, and since each act of insubordination to the law threatens to injure its force in general, so in those circumstances brought about by the law itself, it may be that provisionally and for the individual a mode of action even from the rational standpoint is right, which, apart from this, would be in no way justifiable. All this results without doubt from the relativity of the secondary ethical rules, which will be treated later.
It may be added that errors respecting the laws of positive morality (a point shortly to be discussed in the lecture) in a similar way demand, under certain circumstances, to be taken into account.
It dare not, on the other hand, be overlooked that there are here limits, and that the saying: “We ought to obey God rather than man,” may not, in its free and sublime range, be allowed to suffer injury.
[47] (p. 29). Heraclitus of Ephesus (B.C. 500), the oldest of the Greek philosophers, of whose philosophy we possess rather extensive fragments.
[48] (p. 31). Ihering, Der Zweck im Recht, vol. ii. p. 119, and other passages.