The Monist, Vol. 2, 1891-1892 : $b A quarterly magazineVarious
Philosophy
The Monist, Vol. 2, 1891-1892 : $b A quarterly magazine
Various
Philosophy -- Periodicals
happily the guards perceiving the seriousness of the situation did not
execute the king’s orders and we might say,—broke their oath.
Did they really break their oath? No, they did not, for when they were
sworn to obey their sovereign master and lord, it was supposed that the
king was and would remain in his right mind. He became insane and this
changed the situation entirely.
The oath of allegiance which the ministers of a church swear at their
ordination is made in the bona fide conviction on both sides,—the church
on the one side and the man that takes orders on the other side,—that
the dogmas to which he pledges his troth are the truth. The oath holds
good so long as a minister believes that the dogmas of the church are the
truth; it still holds good so long as he considers it possible that they
may be true. But the oath to believe them ceases to bind in the sense in
which it was demanded as soon as a minister sees clearly that they are
not true and that their truth is an actual impossibility. It ranks in the
same category as the oath of allegiance to a sovereign who has become
insane.
But the case is more complex still. If promissory oaths have no legal
force because in certain cases a man would have to act against the letter
of the oath, have these oaths no binding power whatever, as soon as a
minister recognises the incongruity of the church belief with truth? I
should say that they have a binding power, yet this binding power must be
sought not in the letter but in the spirit of the oath.
One of the most prominent of juridical authorities, Prof. Rudolf von
Jhering, has written a book entitled “Der Zweck im Recht.” He finds that
all laws, all wills, all decrees have a purpose, and this purpose is
their spirit. There are laws worded so badly that obedience to the letter
of the law would under certain and unforeseen circumstances enforce
exactly the contrary of that which the law was made for. Instances of
this kind are of not an uncommon occurrence especially with regard to
wills; testators and their legal advisors being often unable to formulate
their intentions in a logical shape. Jhering maintains that a judge in
construing a will, a decree, or a law has to find out the intention and
purpose of the testator, the magistrate that gave the decree, or the
legislator, and it is this intention or purpose with which his decisions
have to agree. Supposing however that this purpose of a will or a law
is wrong in itself or nonsensical, a judge has to construe it so that
it will have sense. If the purpose is criminal the whole transaction is
illegal, if it is irrational or illogical, it has to be interpreted so as
to make it rational and logical. If it has reference to antiquated views,
customs or institutions it has to be adapted to the corresponding modern
views and to existing conditions.
Public-domain text, read in full here on John Shaqi.
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