Shorter Notices

Abstract

The author accepts Kant's distinction between being and ought. Law as a science must be either a natural science having nothing to do with duty and ought or a cultural science whose main concerns are judgments of value. The positivistic conception of law is mistaken. For it is impossible to derive right from might, duty from force, ought from must. The final ground of the value judgments of law is discovered in the autonomous experience of a concrete ought. Kant needs to be corrected on two counts: (i) His distinction between a rule of morality as a categorical and a rule of law as a hypothetical imperative needs to be formulated more sharply. (2) An abstract moral law in Kant's sense cannot be discovered anywhere in experience. Kant's hypothetical imperatives are no imperatives at all. They are propositions concerning causal relations. If an imperative expresses an ought it cannot be heteronomous, and if it is heteronomous it cannot express an ought. Consequently, only two attitudes are possible toward positive law. Either the individual approves of it and experiences it as a concrete ought or he disapproves of it and fails to feel its obligatoriness. In the first case the particular law is law (right) in a genuine sense; in the second it is not law but force. Concerning the second point it must be urged in opposition to Kant that the ought of law is always found imbedded in a concrete situation. The individual finds himself face to face with two factors: on the one hand, commands; on the other, group obedience. For he obeys the person issuing the command not in so far as the latter is a private person, but in so far as he represents the judgments of value of the group and of himself. Law in this autonomous sense can never possess universal, but only relatively general, validity. The special concern of a theory of law is the source of law, i.e., the sense of right of the folk. Its chief question is: How far do the heteronomous commands of state, church, and international law agree with the autonomous law of the people? The age-old opposition between the people's law and the jurist's law must gradually be overcome. All heteronomous law must more and more be brought into agreement with the right or the ideal law which is found in the sense of right of humanity. BONNO TAPPER