THE RIGHTS OF MAN AND THE TEUTONIC CONCEPTION OF RIGHT.
In conclusion there remains still one question to answer. Why is it that
the doctrine of an original right of the individual and of a state
compact, arising as far back as the time of the Sophists in the ancient
world, further developed in the mediaeval theory of Natural Law, and
carried on by the currents of the Reformation,--why is it that this
doctrine advanced to epoch-making importance for the first time in
England and her colonies? And in general, in a thoroughly monarchical
state, all of whose institutions are inwardly bound up with royalty and
only through royalty can be fully comprehended, how could republican
ideas press in and change the structure of the state so completely?
The immediate cause thereof lies clearly before us. The antagonism
between the dynasty of the Stuarts, who came from a foreign land and
relied upon their divine right, and the English national conceptions of
right, and also the religious wars with royalty in England and Scotland,
seem to have sufficiently favored the spreading of doctrines which were
able to arouse an energetic opposition. Yet similar conditions existed
in many a Continental state from the end of the sixteenth to the middle
of the seventeenth century. There, too, arose a strong opposition of the
estates to royalty which was striving more and more towards absolutism,
fearful religious wars broke out and an extensive literature sought with
great energy to establish rights of the people and of the individual
over against the rulers. The revolutionary ideas on the continent led it
is true in France to regicide, but there was nowhere an attempt made at
a reconstruction of the whole state system. Locke's doctrines of a Law
of Nature appear to have had no influence at all outside of England. The
Continental doctrines of natural law played their important part for the
first time at the end of the eighteenth century in the great social
transformation of the French Revolution.
It was not without result that England in distinction from the Continent
had withstood the influence of the Roman Law. The English legal
conceptions have by no means remained untouched by the Roman, but they
have not been nearly so deeply influenced by them as the Continental.
The public law especially developed upon an essentially Teutonic basis,
and the original Teutonic ideas of right have never been overgrown with
the later Roman conceptions of the state's omnipotence.
The Teutonic state, however, in distinction from the ancient, so far as
the latter is historically known to us, rose from weak beginnings to
increasing power. The competence of the Teutonic state was in the
beginning very narrow, the individual was greatly restricted by his
family and clan, but not by the state. The political life of the Middle
Ages found expression rather in associations than in a state which
exhibited at first only rudimentary forms.
At the beginning of modern times the power of the state became more and
more concentrated. This could happen in England all the easier because
the Norman kings had already strongly centralized the administration.
As early as the end of the sixteenth century Sir Thomas Smith could
speak of the unrestricted power of the English Parliament,[108] which
Coke a little later declared to be "absolute and transcendent".[109]
But this power was thought of by Englishmen as unlimited only in a
nominal legal sense. That the state, and therefore Parliament and the
King have very real restrictions placed upon them has been at all times
in England a live conviction of the people.
Magna Charta declares that the liberties and rights conceded by it are
granted "_in perpetuum_".[110] In the Bill of Rights it was ordained
that everything therein contained should "remain the law of this realm
forever".[111] In spite of the nominal omnipotence of the state a limit
which it shall not over-step is specifically demanded and recognized in
the most important fundamental laws.
In these nominally legal but perfectly meaningless stipulations, the old
Teutonic legal conception of the state's limited sphere of activity
finds expression.
The movement of the Reformation was also based on the idea of the
restriction of the state. Here, however, there entered the conception of
a second restriction which was conditioned by the entire historical
development. The mediaeval state found restrictions not only in the
strength of its members, but also in the sphere of the church. The
question as to how far the state's right extended in spiritual matters
could only be fully raised after the Reformation, because through the
Reformation those limits which had been fixed in the Middle Ages again
became disputable. The new defining of the religious sphere and the
withdrawal of the state from that sphere were also on the lines of
necessary historical development.
So the conception of the superiority of the individual over against the
state found its support in the entire historical condition of England in
the seventeenth century. The doctrines of a natural law attached
themselves to the old conceptions of right, which had never died, and
brought them out in new form.
The same is true of the theories that arose on the Continent. Since the
predominance of the historical school, one is accustomed to look upon
the doctrines of a natural law as impossible dreaming. But an important
fact is thereby overlooked, that no theory, no matter how abstract it
may seem, which wins influence upon its time can do so entirely outside
of the field of historical reality.
An insight into these historical facts is of the greatest importance for
a correct legal comprehension of the relation of the state and the
individual. There are here two possibilities, both of which can be
logically carried out. According to the one the entire sphere of right
of the individual is the product of state concession and permission.
According to the other the state not only engenders rights of the
individual, but it also leaves the individual that measure of liberty
which it does not itself require in the interest of the whole. This
liberty, however, it does not create but only recognizes.
The first conception is based upon the idea of the state's omnipotence
as it was most sharply defined in the absolutist doctrines of the
sixteenth and seventeenth centuries. Its extreme consequence has been
drawn by the poet in his question of law:
"Jahrelang schon bedien' ich mich meiner Nase zum Riechen;
Hab' ich denn wirklich an sie auch ein erweisliches Recht?"[112]
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:
[Footnote 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.]
[Footnote 109: 4 _Inst._ p. 36.]
[Footnote 110: Art. 63. Stubbs, p. 306.]
[Footnote 111: Art. 11. Stubbs, p. 527.]
[Footnote 112:
For years I have used my nose to smell with,
Have I then really a provable right to it?]
[Footnote 113: The idea of all individual rights of liberty being the
product of state concession has been recently advocated by Tezner,
_Gruenhuts Zeitschrift fuer Privat-und oeffentliches Recht_, XXI, pp. 136
_et seq._, who seeks to banish the opposing conception to the realm of
natural right. The decision of such important questions can only be
accomplished by careful historical analysis, which will show different
results for different epochs,--that, for example, the legal nature of
liberty is entirely different in the ancient state and in the modern.
Legal dialectics can easily deduce the given condition with equally
logical acuteness from principles directly opposed to one another. The
true principle is taught not by jurisprudence but by history.]
[Footnote 114: _Cf._ more explicitly on this, Jellinek, _loc. cit._, pp.
43, 89 _et seq._]
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