第35章

The non-juridical state is that condition of society in which there is no distributive justice.It is commonly called the natural state (status naturalis), or the state of nature.It is not the social state, as Achenwall puts it, for this may be in itself an artificial state (status artificialis), that is to be contradistinguished from the "natural" state.The opposite of the state of nature is the civil state (status civilis) as the condition of a society standing under a distributive justice.In the state of nature, there may even be juridical forms of society such as marriage, parental authority, the household, and such like.For none of these, however, does any law a priori lay it down as an incumbent obligation: "Thou shalt enter into this state." But it may be said of the juridical state that: "All men who may even involuntarily come into relations of right with one another ought to enter into this state."The natural or non-juridical social state may be viewed as the sphere of private right, and the civil state may be specially regarded as the sphere of public right.The latter state contains no more and no other duties of men towards each other than what may be conceived in connection with the former state; the matter of private right is, in short, the very same in both.The laws of the civil state, therefore, only turn upon the juridical form of the coexistence of men under a common constitution; and, in this respect, these laws must necessarily be regarded and conceived as public laws.

The civil union (unio civilis) cannot, in the strict sense, be properly called a society; for there is no sociality in common between the ruler (imperans) and the subject (subditus) under a civil constitution.They are not co-ordinated as associates in a society with each other, but the one is subordinated to the other.Those who may be co-ordinated with one another must consider themselves as mutually equal, in so far as they stand under common laws.The civil union may therefore be regarded not so much as being, but rather as making a society.

42.The Postulate of Public Right.

From the conditions of private right in the natural state, there arises the postulate of public right.It may be thus expressed: "In the relation of unavoidable coexistence with others, thou shalt pass from the state of nature into a juridical union constituted under the condition of a distributive justice." The principle of this postulate may be unfolded analytically from the conception of right in the external relation, contradistinguished from mere might as violence.

No one is under obligation to abstain from interfering with the possession of others, unless they give him a reciprocal guarantee for the observance of a similar abstention from interference with his possession.Nor does he require to wait for proof by experience of the need of this guarantee, in view of the antagonistic disposition of others.He is therefore under no obligation to wait till he acquires practical prudence at his own cost; for he can perceive in himself evidence of the natural inclination of men to play the master over others, and to disregard the claims of the right of others, when they feel themselves their superiors by might or fraud.And thus it is not necessary to wait for the melancholy experience of actual hostility; the individual is from the first entitled to exercise a rightful compulsion towards those who already threaten him by their very nature.Quilibet praesumitur malus, donec securitatem dederit oppositi.

So long as the intention to live and continue in this state of externally lawless freedom prevails, men may be said to do no wrong or injustice at all to one another, even when they wage war against each other.For what seems competent as good for the one is equally valid for the other, as if it were so by mutual agreement.Uti partes de jure suo disponunt, ita jus est.But generally they must be considered as being in the highest state of wrong, as being and willing to be in a condition which is not juridical, and in which, therefore, no one can be secured against violence, in the possession of his own.

The distinction between what is only formally and what is also materially wrong, and unjust, finds frequent application in the science of right.An enemy who, on occupying a besieged fortress, instead of honourably fulfilling the conditions of a capitulation, maltreats the garrison on marching out, or otherwise violates the agreement, cannot complain of injury or wrong if on another occasion the same treatment is inflicted upon themselves.But, in fact, all such actions fundamentally involve the commission of wrong and injustice, in the highest degree; because they take all validity away from the conception of right, and give up everything, as it were by law itself, to savage violence, and thus overthrow the rights of men generally.