第 14 节
作者:寻找山吹      更新:2024-04-07 21:07      字数:9322
  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