第30章

The System of those Laws Which Require No External Promulgation.

CHAPTER III.Acquisition Conditioned by the Sentence of a Public Judicatory.

36.How and What Acquisition is Subjectively Conditioned by the Principle of a Public Court.

Natural right, understood simply as that right which is not statutory, and which is knowable purely a priori, by every man's reason, will include distributive justice as well as commutative justice.It is manifest that the latter, as constituting the justice that is valid between persons in their reciprocal relations of intercourse with one another, must belong to natural right.But this holds also of distributive justice, in so far as it can be known a priori; and decisions or sentences regarding it must be regulated by the law of natural right.

The moral person who presides in the sphere of justice and administers it is called the Court of justice, and, as engaged in the process of official duty, the judicatory; the sentence delivered in a case, is the judgement (judicium).All this is to be here viewed a priori, according to the rational conditions of right, without taking into consideration how such a constitution is to be actually established or organized, for which particular statutes, and consequently empirical principles, are requisite.

The question, then, in this connection, is not merely "What is right in itself?" in the sense in which every man must determine it by the judgement of reason; but "What is right as applied to this case?" that is, "What is right and just as viewed by a court?" The rational and the judicial points of view are therefore to be distinguished; and there are four cases in which the two forms of judgement have a different and opposite issue.And yet they may co-exist with each other, because they are delivered from two different, yet respectively true, points of view: the one from regard to private right, the other from the idea of public right.They are: I.The contract of donation (pactum donationis); II.The contract of loan (commodatum);III.The action of real revindication (vindicatio); and IV.

Guarantee by oath (juramentum).

It is a common error on the part of the jurist to fall here into the fallacy of begging the question by a tacit assumption (vitium subreptionis).This is done by assuming as objective and absolute the juridical principle which a public court of justice is entitled and even bound to adopt in its own behoof, and only from the subjective purpose of qualifying itself to decide and judge upon all the rights pertaining to individuals.It is therefore of no small importance to make this specific difference intelligible, and to draw attention to it.

37.I.The Contract of Donation.

(Pactum Donationis).

The contract of donation signifies the gratuitous alienation (gratis) of a thing or right that is mine.It involves a relation between me as the donor (donans), and another person as the donatory (donatarius), in accordance with the principle of private right, by which what is mine is transferred to the latter, on his acceptance of it, as a gift (donum).However, it is not to be presumed that Ihave voluntarily bound myself thereby so as to be compelled to keep my promise, and that I have thus given away my freedom gratuitously, and, as it were, to that extent thrown myself away.Nemo suum jactare praesumitur.But this is what would happen, under such circumstances, according to the principle of right in the civil state;for in this sphere the donatory can compel me, under certain conditions, to perform my promise.If, then, the case comes before a court, according to the conditions of public right, it must either be presumed that the donor has consented to such compulsion, or the court would give no regard, in the sentence, to the consideration as to whether he intended to reserve the right to resile from his promise or not; but would only refer to what is certain, namely, the condition of the promise and the acceptance of the donatory.Although the promiser, therefore, thought- as may easily be supposed- that he could not be bound by his promise in any case, if he "rued" it before it was actually carried out, yet the court assumes that he ought expressly to have reserved this condition if such was his mind; and if he did not make such an express reservation, it will be held that he can be compelled to implement his promise.And this principle is assumed by the court, because the administration of justice would otherwise be endlessly impeded, or even made entirely impossible.

38.II.The Contract of Loan.(Commodatum).