The Origin of the Knowledge of Right and WrongBrentano, Franz
Philosophy
The Origin of the Knowledge of Right and Wrong
Brentano, Franz
Ethics
As however these legal authorities have concentrated their attention
exclusively upon legal duties, and do not touch upon the problem as to
the way in which the individual will has to rule in its legal sphere,
Ihering has interpreted them as meaning that they considered the
true and highest good, and the most intrinsic and final end, towards
which the legal code strives, to be the exercise of the will as will,
the joy of the individual in his volitional activity; “the final end
of all law is, for them, willing” (pp. 320, 325); “the end of law
(according to them) consists once for all in the power of the will,
in its supremacy” (p. 326). One can well understand how he comes to
condemn a theory so interpreted (p. 327), and even that he succeeds
in making it appear ridiculous. “According to this view,” he says,
(p. 320) “all private right is nothing less than an arena in which
the will moves and exercises itself; the will is the organ by which
the individual enjoys his right, the profit obtained from legal right
consists in feeling the joy and glory of power, in the satisfaction of
having realized an act of will, e.g. of having effected a mortgage,
transferred a title, and so proved oneself to be a legal personality.
What a poor thing would the will be if the bare and low regions of law
were the proper “sphere of its activity!”
Certainly the heaviest charges of absurdity and ridiculousness would
be well deserved if those scholars who regard the _immediate_ aim of
law as consisting in a limitation of the spheres at the disposal of
the will had intended in so doing to disavow all regard for the _final
ethical end_, i.e. the advancement of the highest practical good.
There is, however, absolutely nothing to justify this insinuation,
and therefore one could perhaps with more right smile at the zeal
of an attack which is really levelled merely against windmills.
Moreover, what Ihering proposes to set in its place is certainly a
bad substitute. For, in regarding the sphere ascribed by the legal
authority to the individual simply as a sphere consigned to their
egoism (a view which, as the author of _Der Zweck im Recht_, he
perhaps no longer holds), he is thus led to his definition: “Law
(Recht) is legal security for enjoyment,” whereas he would have been
more correct in saying: “Law is legal security for the undisturbed
disposal of individual power in the advancement of the highest good.”
Is then injustice something which exhausts bad conduct? By no means;
legal duties have limits; duty in general governs all our actions,
and this our popular religion expressly emphasizes, as, for instance,
when it asserts that for every idle word the individual must render an
account.
Public-domain text, read in full here on John Shaqi.
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