From Friedrich Julius Stahl, Private Law (WordBridge, 2007), Chapter One: The Right of the Person in General
Being a person, man is an original, independent and thus absolute end of creation and the world-plan (Book I, §. 6): not mankind as a genus, not the concept of man, but the individual, each individual person. The law must also conceive him as such. The individual person is consequently an absolute end in the legal order – this is the right of the person or the “innate right,” the “primeval right.” The content of this right therefore comprises the things belonging to the existence of the person: integrity, freedom, honor, legal capacity, protection in acquired rights. Individually these rights are viewed as “innate,” though more properly they are viewed as rights inhering in the essence of personality.
The final ground of the right of the person is his being the image of God. This is also the case in his fallen condition, albeit in muddled, disturbed fashion. It is simply his essence, his concept. Therefore his life must be held to be holy, room for his freedom and activity preserved, his value recognized.
Personality is the substrate of free action, not its allotted object, for which reason these fundamental rights are neither alienable nor disposable. From this follows the criminality of murder by another at one’s own behest, the impermissibility of Germanic feud law and dueling, contractual slavery, alienation of general legal capacity.
The maxim of coexistence is valid for these rights, and only for these rights, because they belong to each person independently in himself, and are not derived from a common higher organic relation, although even here this maxim is insufficient to ground a decision in the case of conflict; such can only be found in the specific nature of the rights concerned, as shown below (§§. 3 and 5).
It is as impossible as it is senseless individually to count up the objects and actions included in these rights of personality (such as for example the right to “speech instruments,” to the use of members, such as “of the nose to smell,” the right to make bodily movements, to dance, to wash oneself), should one desire to make an exhaustive list. Integrity and freedom include them all. Law [das Recht], however, the concept of which after all is ethical power over others, only concerns the hindrance of others; my own use is not grounded in my right, but in my natural freedom, because God has given me a body (Book II, §. 32). The exclusion of public restrictions, as for example that the state can make no laws regarding free passage or freedom of the press because such would infringe my right to free movement or the use of my speech instruments, therefore cannot be derived from the right of the person: natural freedom of the person must subordinate itself to the higher claims of common existence.
Because the right of the person is due men prior to any civil order as a primeval divine conferment, the atrophy of it in the civil order takes on the appearance of [scheint als] injustice (Book II, §. 7), whereas the malign arrangement [üble Bestellung] of most of the other spheres largely seems only immorality or inappropriateness. 1
Integrity consists in the protection of life and limb, corporal inviolability, “peace” in the Germanic manner of speaking. It is the initial claim on the legal condition, thus preceding all others; in particular, it is the initial restriction on freedom. One’s freedom should not infringe another’s integrity.
Freedom is the power to act, that is, to be a cause in the external world according to one’s own will and choice, to affect an actual situation (both to change one’s spatial relation to actual situations, what the English call “vis loco motiva,” and to act upon corporeal things and persons), and thus especially to affect legal situations.
It is part of the essence of personality that action is inseparable from its cause, and becomes a component of the actor’s existence. Therefore man expands his legal situation through an act, his act (just as his personal existence itself) becoming binding on others; and he restricts it through an act, his act becoming binding on himself (for example occupation, dereliction, entering into inheritance, damage and so forth). What sort of act it must be, and what sort of legal consequences it has, are of course determined by the legal institutions in which it intervenes.
Because freedom arises from the law [aus dem Rechte] as an ethical order, it is not unrestricted but from the start has a specific content, standard and boundaries.
Legal freedom is bounded first by higher duties to which persons must subordinate themselves; not, of course, by claims of (subjective) morality, but indeed by ethical ideas of life relations maintained in common life (objective) – namely the ethical form of marriage, the state, the church and so forth; these are the one principle of the legal order, human freedom is the other. The kind and degree of this restriction can therefore only be determined by the nature of the legal institution concerned.
Freedom furthermore is restricted by the equal freedom of others (the maxim of coexistence). All legal objects are open to all. The conflicts that follow from this are not decided according to the consideration that these objects are to be distributed equally among all (the principle of equity: Book II, §. 50), but, as is made clear above, simply according to the right of the person, his essence being causality. Therefore the act is decisive. This is the preference of priority [Prävention], which comes into play whenever considerations grounded higher in the purpose of legal institutions are lacking. Others must take a back seat to those first making actual use of their freedom, who in taking possession of objects have put themselves in a favorable position. This priority is expressed differently according to the nature of relations, whether priority in a factual situation (placement of nets in a stream, taking one’s place in the theater), in the acquisition of a right (occupation), or in the grounding of a legal function (competence of the court).
Honor is the consciousness people have of their absolute value as a person. Initially it is something internal. Others can do nothing to give or take away one’s true honor. It is however a person’s right to see this, his absolute value recognized by everyone in common life – this is legal honor.
The basis of honor, however, is above all ethical integrity as the true essence of a person, and therefore, especially with regard to the common life and thus legal honor, it is the public conviction of this integrity – blamelessness (existimatio). Honor therefore entails a double right, the right to it directly and the right to its basis. The former is honor in the strict sense, the latter is a good reputation.
There are therefore two forms of insulting a person’s honor, underlain by various considerations. The former is infringed by acts directly demonstrating another’s contempt (refusal to recognize honor) – slander (injuria); the latter through expressions that undeservedly deny one public recognition of blamelessness – libel and calumny (diffamatio and calumnia). Slander is unthinkable without premeditation to show contempt (animus injuriandi); this is not the case with the injury to the good name of another; on the other hand, libel is not unlawful if it is true (exceptio veritatis), while slander as such is by no means justified by the truth of the accusation. Slander and defamation [Diffamation] therefore are entirely different things, although they may vie in one and the same act. This essentially likewise gives the sense of Roman law. 2 Against this, newer legislation often runs slander and calumny into each other. 3
Legal capacity in general is the characteristic of being the subject of rights – including the three mentioned general ones – and in this sense is the same thing as legal personality. In particular, however, it is the possibility of having specific rights (Book II, §. 36), that is, the right to a certain object or a certain status as provided in the legal order in terms of its various subject-areas.
Protection of acquired rights is maintenance in just these objects and statuses, the holding of which as a right is the concept of legal capacity, in particular in objects and statuses that can be gained or lost as an external possession, such as for example property or aristocratic privileges, rather than the ones that, once established, are immediately inseparable from the particular person to which they adhere (such as paternal authority and the marriage bond).
The complete lack of recognition of these rights located in the essence of the person is slavery, as it was found in ancient states, as it also still exists among contemporary Asian peoples, but also as it is even found in the southern states of the Union of North America.
Slavery consists in the treatment of men not as a person, not as an end in himself, but as a thing, as a mere means for others. It is therefore to be rejected out of hand. It is no justification that some men are incapable by nature of caring for themselves (Aristotle), for this leads only to the conclusion that they need to be put under the guidance and power of another, not however that they be made into mere means for that other. There is no justification for it in the rationale that otherwise prisoners of war will be killed (Hugo), for it is precisely this killing that is to be rejected. Let there even be effective protective laws against murder, mutilation, destruction by punishment, exhaustion through labor; even so, the separation of families (spouses from each other, children from parents) through sale or disposal by the owners, the sale of a man as such, the entire position [Gesammtstellung] of being a mere implement of labor and object of use for another and to be entirely at another’s disposal, one’s own lack of legal capacity, which furthermore renders inoperative those protective laws – these things taken individually and as a whole unconditionally constitute the destruction of the right of the person, a disparagement of the image of God, a violation of the commandments of God in the hindering of slaves in their observance of those commandments.
Now then, where slavery exists and as long as it exists it is, as is all positive law, lawful and binding. It could certainly have the appearance that the slave, for whom the social order preserves no right but confronts him merely as something oppressive, would also have no duty of obedience against it, and that resistance, insurgence, any form of self-defense, would be allowed to him. Nevertheless, ethics preserves, even in ever so slight degree, that which the law denies, and the order which curtails him is still always an order and therefore also an order for him. Therefore the Christian commandment says: you slaves, obey your masters in the flesh!
Transition phases, similar for example to German serfdom, to maintain order, the protection of the ruling class or for the entire economic condition of the total population may be necessary and therefore justified. But there is no justification for maintaining the condition of slavery itself, even if only for a period of time.
Germanic serfdom is not an annihilation of personality in the way slavery is. The serf is the subject of laws, is not a thing, is only subject to conscription in his person, is not an object of property. But the serf nevertheless lacks essential rights of the person, such as the free choice of occupation, the freedom of domicile. Serfdom had therefore also to give way, as is recognized, and that the serf often had it better than the contemporary free proletarian could and should not have halted a development based in an ethical postulate, the fundamental recognition of the right of the person.
The thought of the absolute claim that the person qua person has rights and is to be protected in those rights was lacking in the earlier epoch of natural law; hence, even the condition of slavery (for example von Oldendorp, Grotius, Thomasius, Wolf, Höpfner) 4 was considered permissible. First Rousseau and then Kant made inalienable freedom an absolute right of the person – as Kant put it: “a man must not be made into a bare means!” However aside from the fact that Rousseau et al. conceived this right only negatively and therefore without content, 5 while ruling out protection in acquired rights, they founded the entire objective legal structure one-sidedly on the rights of man. Against this, Hegel, as already mentioned, restored the legal status of moral institutions, the family and the state; but to do this he turned around and in fact gave away the right of the person through his pantheistic standpoint, substituting for it simply the bare concept (aspect) of personality or subjectivity. According to him, the individual person is simply “an accident of general being;” 6 this aspect of subjectivity rather than the individual particular person is for him the goal of creation and therefore also of law.
Mr. Ruben Alvarado is an independent scholar, publisher, and translator living to the east of Arnhem in the Netherlands. His writings, which span a wide variety of issues, can be found at WordBridge Publishing (http://wordbridge.net), Common Law Review (http://commonlawreview.com), and Common Law Economics (http://commonlaweconomics.com).
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