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the science of right-第14章

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chance; because they have brought a being into the world who becomes

in fact a citizen of the world; and they have placed that being in a

state which they cannot be left to treat with indifference; even

according to the natural conceptions of right。



  We cannot even conceive how it is possible that God can create

free beings; for it appears as if all their future actions; being

predetermined by that first act; would be contained in the chain of

natural necessity; and that; therefore; they could not be free。 But as

men we are free in fact; as is proved by the categorical imperative in

the moral and practical relation as an authoritative decision of

reason; yet reason cannot make the possibility of such a relation of

cause to effect conceivable from the theoretical point of view;

because they are both suprasensible。 All that can be demanded of

reason under these conditions would merely be to prove that there is

no contradiction involved in the conception of a creation of free

beings; and this may be done by showing that contradiction only arises

when; along with the category of causality; the condition of time is

transferred to the relation of suprasensible things。 This condition;

as implying that the cause of an effect must precede the effect as its

reason; is inevitable in thinking the relation of objects of sense

to one another; and if this conception of causality were to have

objective reality given to it in the theoretical bearing; it would

also have to be referred to the suprasensible sphere。 But the

contradiction vanishes when the pure category; apart from any sensible

conditions; is applied from the moral and practical point of view; and

consequently as in a non…sensible relation to the conception of

creation。

  The philosophical jurist will not regard this investigation; when

thus carried back even to the ultimate principles of the

transcendental philosophy; as an unnecessary subtlety in a

metaphysic of morals; or as losing itself in aimless obscurity; when

he takes into consideration the difficulty of doing justice in this

inquiry to the ultimate relations of the principles of right。



                29。 The Rights of the Parent。



  From the duty thus indicated; there further necessarily arises the

right of the parents to the management and training of the child; so

long as it is itself incapable of making proper use of its body as

an organism; and of its mind as an understanding。 This involves its

nourishment and the care of its education。 This includes; in

general; the function of forming and developing it practically; that

it may be able in the future to maintain and advance itself; and

also its moral culture and development; the guilt of neglecting it

falling upon the parents。 All this training is to be continued till

the child reaches the period of emancipation (emancipatio); as the age

of practicable self…support。 The parents then virtually renounce the

parental right to command; as well as all claim to repayment for their

previous care and trouble; for which care and trouble; after the

process of education is complete; they can only appeal to the

children; by way of any claim; on the ground of the obligation of

gratitude as a duty of virtue。

  From the fact of personality in the children; it further follows

that they can never be regarded as the property of the parents; but

only as belonging to them by way of being in their possession; like

other things that are held apart from the possession of all others and

that can be brought back even against the will of the subjects。

Hence the right of the parents is not a purely real right; and it is

not alienable (jus personalissimum)。 But neither is it a merely

personal right; it is a personal right of a real kind; that is; a

personal right that is constituted and exercised after the manner of a

real right。

  It is therefore evident that the title of a personal right of a real

kind must necessarily be added; in the science of right; to the titles

of real right and personal right; the division of rights into these

two being not complete。 For; if the right of the parents to the

children were treated as if it were merely a real right to a part of

what belongs to their house; they could not found only upon the duty

of the children to return to them in claiming them when they run away;

but they would be then entitled to seize them and impound them like

things or runaway cattle。



         TITLE III。 Household Right。 (Master and Servant)

       30。 Relation and Right of the Master of a Household。



  The children of the house; who; along with the parents; constitute a

family; attain majority; and become masters of themselves (majorennes;

sui juris); even without a contract of release from their previous

state of dependence; by their actually attaining to the capability

of self…maintenance。 This attainment arises; on the one hand; as a

state of natural majority; with the advance of years in the general

course of nature; and; on the other hand; it takes form; as a state in

accordance with their own natural condition。 They thus acquire the

right of being their own masters; without the interposition of any

special juridical act; and therefore merely by law (lege); and they

owe their parents nothing by way of legal debt for their education;

just as the parents; on their side; are now released from their

obligations to the children in the same way。 Parents and children thus

gain or regain their natural freedom; and the domestic society;

which was necessary according to the law of right; is thus naturally

dissolved。

  Both parties; however; may resolve to continue the household; but

under another mode of obligation。 It may assume the form of a relation

between the bead of the house; as its master; and the other members as

domestic servants; male or female; and the connection between them

in this new regulated domestic economy (societas herilis) may be

determined by contract。 The master of the house; actually or

virtually; enters into contract with the children; now become major

and masters of themselves; or; if there be no children in the

family; with other free persons constituting the membership of the

household; and thus there is established domestic relationship not

founded on social equality; but such that one commands as master;

and another obeys as servant (imperantis et subjecti domestici)。

  The domestics or servants may then be regarded by the master of

the household as thus far his。 As regards the form or mode of his

possession of them; they belong to him as if by a real right; for if

any of them run away; he is entitled to bring them again under his

power by a unilateral act of his will。 But as regards the matter of

his right; or the use he is entitled to make of such persons as his

domestics; he is not entitled to conduct himself towards them as if he

was their proprietor or owner (dominus servi); because they are only

subjected to his power by contract; and by a contract under certain

definite restrictions。 For a contract by which the one party renounced

his whole freedom for the advantage of the other; ceasing thereby to

be a person and consequently having no duty even to observe a

contract; is self contradictory; and is therefore of itself null and

void。 The question as to the right of property in relation to one

who has lost his legal personality by a crime does not concern us

here。

  This contract; then; of the master of a household with his

domestics; cannot be of such a nature that the use of them could

ever rightly become an abuse of them; and the judgement as to what

constitutes use or abuse in such circumstances the is not left

merely to the master; but is also competent to the servants; who ought

never to be held in bondage or bodily servitude as slaves or serfs。

Such a contract cannot; therefore; be concluded for life; but in all

cases only for a definite period; within which one party may

intimate to the other a termination of their connection。 Children;

however; including even the children of one who has become enslaved

owing to a crime; are always free。 For every man is born free; because

he has at birth as yet broken no law; and even the cost of his

education till his maturity cannot be reckoned as a debt which he is

bound to pay。 Even a slave; if it were in his power; would be bound to

educate his children without being entitled to count and reckon with

them for the cost; and in view of his own incapacity for discharging

this function; the possessor of a slave; therefore; enters upon the

obligation which he has rendered the slave himself unable to fulfil。



  Here; again; as under the first two titles; it is clear that there

is a personal right of a real kind; in the relation of the master of a

house to his domestics。 For he can legally demand them as belonging to

what is externally his; from any other possessor of them; and he is

entitled to f
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