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