Rights in God's Church
Appendix 1. (488).
In speaking about the study of jurisprudence, Seneca remarks: `I tell you: the wise person acts only after contemplating DIVINE and HUMAN things' (Ep). This opinion of the Stoics became an element of Roman law, which defined jurisprudence as `the knowledge of divine and human things'. The great defect of Roman law, however, as I have often pointed out, lies in its incapacity for visualising Right outside the context of civil society. According to this view of things, civic Right is the basis of all other Rights, and thus a basis for tyrannising individuals. In modern times, it has become clear that human judges are incompetent in divine matters. Nevertheless, the initial mistake of the Romans, who developed the first treatises on natural Right as simple introductions to civil law (cf. ER, 31-48) has been perpetuated by German authors especially those of the critical school. Their insistence on the Roman concept of Right has outl awed from rational Right every jural relationship with the divinity. For them, Right concerns purely human beings. Such is the fundamental concept of Kant, for whom the principle of Right is found in the possibility of co-existence (cf. ER, 270).
As far as I can see, the science of Right is restored to its ancient dignity when reintegrated with the divine element abandoned in previous centuries. But, at the same time, I do not wish to encourage the revival of erroneous pagan jurisprudence. I simply want to consider rational Right in all its natural breadth, free of all arbitrary limits which make it a mere introduction to positive law in civil society. This society, like other particular societies, is restricted in so many ways (although even in civil society the magistrature should acknowledge theocratic Right at least to the extent of respecting, if not administering it). I am not at all sure that rational Right has yet been considered from a point of view enabling it to be seen without arbitrary limits, independent of and superior to positive human law. Samuel Cocceji, for instance, in his treatise on natural Right, speaks on the one hand of the rights of the Creator, and sometimes rises above positive law when, for exam ple, he classifies amongst opponents of Right those `who say that rights were invented through fear of injustice, or who maintain, with Euphemius' (Thucyd., less. 6, c. 85, less. .5, c. 89) and others that right (civil right, that is) was instituted for private individuals, but is of no account amongst rulers for whom injustice is irrelevant' (Dissert. Proem. 12, less. 1, §40). But he contradicts himself by reducing everything to civic reality in accordance with his initial, declared intent of basing his system upon Roman law: `This new system of natural law that I am expounding springs FROM ROMAN LAW ITSELF, which it is intended to illustrate' (ibid., §1). Jean Domat is another example. Although a profoundly religious person, of considerable acumen, he made the same mistake as the Romans. His work on natural law serves only as a preface to a book entitled LES LOIS CIVILES dans leur ordre naturel. The error continues and contributes to past and present upheaval in France, where there will be no peace until the mistake is rectified.