The second theory on the other hand is that of the Teutonic conception of right corresponding to the historical facts of the gradual development of the state's power. If natural right is identical with non-historical right, then the first doctrine is for the modern state that of natural right, the second that of historical right. However much the boundaries of that recognized liberty have changed in the course of time, the consciousness that such boundaries existed was never extinguished in the Teutonic peoples even at the time of the absolute state.[113]
This liberty accordingly was not created but recognized, and recognized in the self-limitation of the state and in thus defining the intervening spaces which must necessarily remain between those rules with which the state surrounds the individual. What thus remains is not so much a right as it is a condition. The great error in the theory of a natural right lay in conceiving of the actual condition of liberty as a right and ascribing to this right a higher power which creates and restricts the state.[114]
At first glance the question does not seem to be of great practical significance, whether an act of the individual is one directly permitted by the state or one only indirectly recognized. But it is not the task of the science of law merely to train the judge and the administrative officer and teach them to decide difficult cases. To recognize the true boundaries between the individual and the community is the highest problem that thoughtful consideration of human society has to solve.
FOOTNOTES:
[108] "The most high and absolute power of the realm of England consisteth in the Parliament ... all that ever the people of Rome might do, either in centuriatis comitiis or tributis, the same may be done by the Parliament of England, which representeth and hath the power of the whole realm, both the head and the body." The Commonwealth of England, 1589, Book II, reprinted in Prothero, Select Statutes and Documents of Elizabeth and James I., Oxford, 1894, p. 178.
[109] 4 Inst. p. 36.
[110] Art. 63. Stubbs, p. 306.
[111] Art. 11. Stubbs, p. 527.
For years I have used my nose to smell with,
Have I then really a provable right to it?