The Origin of the Knowledge of Right and WrongBrentano, Franz
Philosophy
The Origin of the Knowledge of Right and Wrong
Brentano, Franz
Ethics
Besides this first objection, which rests upon a simple
misunderstanding of the intention, Ihering has also raised several
others which are essentially due to imperfections in the use of
language. If the legal code essentially consists in setting certain
limits to the activity of the individual will in order that one person
may not disturb the other in striving after the good, it follows that
he who has, or had, or will have no will has also no legal sphere. I
say, “has, or had, or will have,” for obviously regard must be paid to
the past and to the future. A dead man often exercises an influence
extending into the far distant future, so that Comte well says: the
living are more and more dominated by the dead. In like manner, the
situation will entail that, in respect of many problems, we leave
the decision to the future, i.e. renounce the sovereignty in favour
of a future will. This consideration resolves many a paradox urged
by Ihering (pp. 320-325); not however, all. In the case of one who
from birth has been an incurable imbecile, it is obvious that no
power of will whatever can be found, to which regard for the highest
practical good might allow a sphere; there remains therefore to him,
according to our view, really no legal sphere, and yet on every hand
we hear of a right which he possesses in his own life; even under
some circumstances, we refer to him as the owner of a great estate,
or ascribe to him the right of a crown or kingly rule. On examining
the relations closely, we find that we are never concerned here with
a true legal sphere respecting a subject incapable of being held
responsible, but rather with the legal spheres of other individuals,
as, for example, that of a father who, in providing for his imbecile
child, gives instructions in his will concerning his property, the
dominion of whose will is safeguarded after his death by the law of
the land; or (as, for example, the case where the imbecile’s life is
held to be sacred), quite apart from the injury done to the simple
duty of affection which this would involve, there is also in question
the State’s legal sphere, which permits no one else to commit a fatal
attack, and accordingly often imposes a punishment, even in the case
of an attempt at suicide.
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