Ethical Interpretation of Legal History
Kant played an important role in the rise of ethical interpretation. He had provided a metaphysical formula of right which was at hand to be made into the theory of the law. Just as the Roman lawyers gave a legal content to the Greek philosophical conception of the justice by nature and made it into natural law, Savigny put Kant’s definition of right in terms of ordering the activities of free beings. It co-existed in a condition of the free contract with each other, using rules determining the boundaries within which each might securely exercise his freedom, and thus gave us a theory of law.
The Kant formula of justice was the idea of right which was unfolding the legal history. Every legal rule and doctrine was more or less a complete or perfect expression of this idea. Throughout the century, social and legal philosophy was concerned to reconcile government and liberty and was troubled by the system of ordering men through an administrative organization. Administration supervision of individual action and coercion by judicially enforced was called by the demand for general security.
The Kant formula of right is an attempt at an absolute and universal solution for the difficulty. Indeed it seems to be the final form of an ideal social order which governed from the 16th to 19th century, also ideal for the maximum of individual self-assertion as the end for which the legal order exists.
Three such ideals of the end of law have governed at different times. At the beginning of Roman law and in Germanic law, there was an idea of keeping the peace but it was replaced by one of the maintenance of the general security immediately through the security of social institutions. In the transition from kin organized society to a politically organized society, it was easy to pass from the idea of keeping the peace between kin organization to that of keeping everyone in his place in the social order of the city-state and of preventing friction with his fellow citizens.
Roman lawyers gave the Greek theory a pragmatic effect by picturing social institutions that realized the nature of society. The Middle ages took this over a society organized based on relations and thought of the end of law as maintenance of the social status quo by enforcing reciprocal claims and duties involved in realities established by tradition and maintained by the authority.
The third ideal of law is of securing a maximum of individual self-assertion. It begins to affect juristic thought in the 16th century, takes and is developed fully in the metaphysical and historical jurisprudence of the 19th century. It is connected with the needs of an era of industrial development and expansion. Men were no longer solicitous to maintain a social institution. They desire to be free of relations and duties that they might take advantage of the new opportunities. The need was to satisfy the demands of individuals to assert themselves freely in the new fields of activity which were opening on every hand and a new picture of the social order was painted in these terms.
Beginning as a political theory of men in natural equality, it became a juristic theory of securing them in their natural rights. Through further simplification, It became a theory of securing them in abstract freedom of will.
The first is a scholastic version proceeding upon the idea of the individual as the moral unit as well as the political unit. The second is the natural law version proceeding on the idea of man as a rational entity and coexistence with the fellow in state of nature. The last and third are metaphysical versions of the 19th century. Kant formulated a theory of right in these terms as reconciliation through universal rules whereby the will of each actor may coexist with the will of all others in action.
Savigny turned Kant’s theory of right into a theory of law and his successors interpreted jurisprudence and legal history in the light thereof.
ABOUT THE AUTHOR
Ritik Sharma is currently pursuing Taxation law at the University of petroleum and energy studies.
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Edited by: Swathi Ashok Nair
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