RIGHTS OF THE FAMILY AS A DOMESTIC SOCIETY.
Household Right. (Master and Servant.)
Relation and Right of the Master of a Household.
The Children of the House, who, along with the Parents, constitute a Family, attain majority, and become Masters of Themselves (majorennes, sui juris), even without a Contract of release from their previous state of Dependence, by their actually attaining to the capability of self-maintenance. This attainment arises, on the one hand, as a state of natural Majority, with the advance of years in the general course of Nature; and, on the other hand, it takes form, as a state in accordance with their own natural condition. They thus acquire the Right of being their own Masters, without the interposition of any special juridical act, and therefore merely by Law (lege); and they owe their Parents nothing by way of legal debt for their Education, just as the parents, on their side, are now released from their Obligations to the Children in the same way. Parents and Children thus gain or regain their natural Freedom; and the domestic society, which was necessary according to the Law of Right, is thus naturally dissolved.
Both Parties, however, may resolve to continue the Household, but under another mode of Obligation. It may assume the form of a relation between the Head of the House as its Master, and the other members as domestic Servants, male or female; and the connection between them in this new regulated domestic economy (societas herilis) may be determined by Contract. The Master of the House, actually or virtually, enters into Contract with the Children, now become major and masters of themselves; or, if there be no Children in the Family, with other free Persons constituting the membership of the Household; and thus there is established a domestic relationship not founded on social equality, but such that one commands as Master, and another obeys as Servant (Imperantis et subjecti Domestici).
The Domestics or Servants may then be regarded by the Master of the household, as thus far his. As regards the form or mode of his Possession of them, they belong to him as if by a Real Right; for if any of them run away, he is entitled to bring them again under his power by a unilateral act of his will. But as regards the matter of his Right, or the use he is entitled to make of such persons as his Domestics, he is not entitled to conduct himself towards them as if he was their proprietor or owner (dominus servi); because they are only subjected to his power by Contract, and by a Contract under certain definite restrictions. For a Contract by which the one party renounced his whole freedom for the advantage of the other, ceasing thereby to be a person and consequently having no duty even to observe a Contract, is self-contradictory, and is therefore of itself null and void. The question as to the Right of Property in relation to one who has lost his legal personality by a Crime, does not concern us here.
This Contract, then, of the Master of a Household with his Domestics, cannot be of such a nature that the use of them could ever rightly become an abuse of them; and the judgment as to what constitutes use or abuse in such circumstances is not left merely to the Master, but is also competent to the Servants, who ought never to be held in bondage or bodily servitude as Slaves or Serfs. Such a Contract cannot, therefore, be concluded for life, but in all cases only for a definite period, within which one party may intimate to the other a termination of their connection. Children, however, including even the children of one who has become enslaved owing to a Crime, are always free. For every man is born free, because he has at birth as yet broken no Law; and even the cost of his education till his maturity, cannot be reckoned as a debt which he is bound to pay. Even a Slave, if it were in his power, would be bound to educate his children without being entitled to count and reckon with them for the cost; and in view of his own incapacity for discharging this function, the Possessor of a Slave, therefore, enters upon the Obligation which he has rendered the Slave himself unable to fulfil.
- Here, again, as under the first two Titles, it is clear that there is a Personal Right of a Real kind, in the relation of the Master of a House to his Domestics. For he can legally demand them as belonging to what is externally his, from any other possessor of them; and he is entitled to fetch them back to his house, even before the reasons that may have led them to run away, and their particular Right in the circumstances, have been judicially investigated. [See Sup plementary Explanations, I. II. III.]
Of all the Rights capable of being acquired by Contract.
Division of Contracts. Juridical Conceptions of Money and A Book.
It is reasonable to demand that a metaphysical Science of Right shall completely and definitely determine the members of a logical Division of its Conceptions à priori, and thus establish them in a genuine System. All empirical Division, on the other hand, is merely fragmentary Partition, and it leaves us in uncertainty as to whether there may not be more members still required to complete the whole sphere of the divided Conception. A Division that is made according to a Principle à priori may be called, in contrast to all empirical Partitions, a dogmatic Division.
Every Contract, regarded in itself objectively, consists of two juridical Acts: the Promise and its Acceptance. Acquisition by the latter, unless it be a pactum re initum which requires Delivery, is not a part, but the juridically necessary Consequence of the Contract. Considered again subjectively, or as to whether the Acquisition, which ought to happen as a necessary Consequence according to Reason, will also follow, in fact, as a physical Consequence, it is evident that I have no Security or Guarantee that this will happen by the mere Acceptance of a Promise. There is therefore something externally required connected with the mode of the Contract, in reference to the certainty of Acquisition by it; and this can only be some element completing and determining the Means necessary to the attainment of Acquisition as realizing the purpose of the Contract. And in his connection and behoof, three Persons are required to intervene—the Promiser, the Acceptor, and the Cautioner or Surety. The importance of the Cautioner is evident; but by his intervention and his special Contract with the Promiser, the Acceptor gains nothing in respect of the Object, but the means of Compulsion that enable him to obtain what is his own.
According to these rational Principles of logical Division, there are properly only three pure and simple Modes of Contract. There are, however, innumerable mixed and empirical Modes, adding statutory and conventional Forms to the Principles of the Mine and Thine that are in accordance with rational Laws. But they lie outside of the circle of the Metaphysical Science of Right, whose Rational Modes of Contract can alone be indicated here.
All Contracts are founded upon a purpose of Acquisition, and are either
- A. Gratuitous Contracts,with unilateral Acquisition; or
- B. Onerous Contracts,with reciprocal Acquisition; or
- C. Cautionary Contracts,with no Acquisition, but only Guarantee of what has been already acquired. These Contracts may be gratuitous on the one side, and yet, at the same time, onerous on the other.
A.The Gratuitous Contracts (pacta gratuita) are—
- 1. Depositation (depositum), involving the Preservation of some valuable deposited in Trust.
- 2. Commodate (commodatum), a Loan of the use of a Thing.
- 3. Donation (donatio), a free Gift.
B.The Onerous Contracts, are Contracts either of Permutation or of Hiring.
- I. Contracts of Permutation or Reciprocal Exchange (permutatio late sic dicta):
- 1. Barter, or strictly real Exchange (permutatio stricte sic dicta). Goods exchanged for Goods.
- 2. Purchase and Sale (emptio venditio). Goods exchanged for Money.
- 3. Loan (mutuum). Loan of a fungible under condition of its being returned in kind: Corn for Corn, or Money for Money.
- II. Contracts of Letting and Hiring (locatio conductio):
- 1. Letting of a Thing on Hire to another person who is to make use of it (locatio rei). If the Thing can only be restored in specie, it may be the subject of an Onerous Contract combining the consideration of Interest with it (pactum usurarium).
- 2. Letting of Work on Hire (locatio operæ). Consent to the use of my Powers by another for a certain Price (merces). The Worker under this Contract is a hired Servant (mercenarius).
- 3. Mandate (mandatum). The Contract of Mandate is an engagement to perform or execute a certain business in place and in name of another person. If the action is merely done in the place of another, but not, at the same time, in his name, it is performance without Commission (gestio negotii); but if it is (rightfully) performed in name of the other, it constitutes Mandate, which as a Contract of Procuration is an onerous Contract (mandatum onerosum).
C.The Cautionary Contracts (cautiones) are:—
- 1. Pledge (pignus). Caution by a Moveable deposited as security.
- 2. Suretyship (fidejussio). Caution for the fulfilment of the promise of another.
- 3. Personal Security (præstatio obsidis). Guarantee of Personal Performance.
This List of all the modes in which the property of one Person may be transferred or conveyed to another, includes conceptions of certain objects or Instruments required for such transference (translatio). These appear to be entirely empirical, and it may therefore seem questionable whether they are entitled to a place in a Metaphysical Science of Right. For, in such a Science the Divisions must be made according to Principles à priori; and hence the matter of the juridical relation, which may be conventional, ought to be left out of account, and only its Form should be taken into consideration.
Such conceptions may be illustrated by taking the instance of Money, in contradistinction from all other exchangeable things as Wares and Merchandise; or by the case of a Book. And considering these as illustrative examples in this connection, it will be shown that the conception of Money as the greatest and most useable of all the Means of human intercommunication through Things, in the way of Purchase and Sale in commerce, as well as that of Books as the greatest Means of carrying on the interchange of Thought, resolve themselves into relations that are purely intellectual and rational. And hence it will be made evident that such Conceptions do not really detract from the purity of the given Scheme of pure Rational Contracts, by empirical admixture.
Illustration of Relations of Contract by the Conceptions of Money and A Book.
What is Money?
Money is a thing which can only be made use of, by being alienated or exchanged. This is a good Nominal Definition, as given by Achenwall; and it is sufficient to distinguish objects of the Will of this kind from all other objects. But it gives us no information regarding the rational possibility of such a thing as money is. Yet we see thus much by the Definition: (1) that the Alienation in this mode of human intercommunication and exchange is not viewed as a Gift, but is intended as a mode of reciprocal Acquisition by an Onerous Contract; and (2) that it is regarded as a mere means of carrying on Commerce, universally adopted by the people, but having no value as such of itself, in contrast to other Things as mercantile Goods or Wares which have a particular value in relation to special wants existing among the people. It therefore represents all exchangeable things.
A bushel of Corn has the greatest direct value as a means of satisfying human wants. Cattle may be fed by it; and these again are subservient to our nourishment and locomotion, and they even labour in our stead. Thus by means of corn men are multiplied and supported, who not only act again in reproducing such natural products, but also by other artificial products they can come to the relief of all our proper wants. Thus are men enabled to build dwellings, to prepare clothing, and to supply all the ingenious comforts and enjoyments which make up the products of industry.—On the other hand, the value of Money is only indirect. It cannot be itself enjoyed, nor be used directly for enjoyment; it is, however, a Means towards this, and of all outward things it is of the highest utility.
We may found a Real Definition of Money provisionally upon these considerations. It may thus be defined as the universal means of carrying on theIndustryof men in exchanging intercommunications with each other. Hence national Wealth, in so far as it can be acquired by means of Money, is properly only the sum of the Industry or applied Labour with which men pay each other, and which is represented by the Money in circulation among the people.
The Thing which is to be called Money must, therefore, have cost as much Industry to produce it, or even to put it into the hands of others, as may be equivalent to the Industry or Labour required for the acquisition of the Goods or Wares or Merchandise, as natural or artificial products, for which it is exchanged. For if it were easier to procure the material which is called Money than the goods that are required, there would be more Money in the market than goods to be sold; and because the Seller would then have to expend more labour upon his goods than the Buyer on the equivalent, the Money coming in to him more rapidly, the Labour applied to the preparation of goods and Industry generally, with the industrial productivity which is the source of the public Wealth, would at the same time dwindle and be cut down. — Hence Bank Notes and Assignations are not to be regarded as Money although they may take its place by way of representing it for a time; because it costs almost no Labour to prepare them, and their value is based merely upon the opinion prevailing as to the further continuance of the previous possibility of changing them into Ready Money. But on its being in any way found out that there is not Ready Money in sufficient quantity for easy and safe conversion of such Notes or Assignations, the opinion gives way, and a fall in their value becomes inevitable. Thus the industrial Labour of those who work the Gold and Silver Mines in Peru and Mexico—especially on account of the frequent failures in the application of fruitless efforts to discover new veins of these precious metals—is probably even greater than what is expended in the manufacture of Goods in Europe. Hence such mining Labour, as unrewarded in the circumstances, would be abandoned of itself, and the countries mentioned would in consequence soon sink into poverty, did not the Industry of Europe, stimulated in turn by these very metals, proportionally expand at the same time so as constantly to keep up the zeal of the Miners in their work by the articles of luxury thereby offered to them. It is thus that the concurrence of Industry with Industry, and of Labour with Labour, is always maintained.
But how is it possible that what at the beginning constituted only Goods or Wares, at length became Money? This has happened wherever a Sovereign as a great and powerful consumer of a particular substance, which he at first used merely for the adornment and decoration of his servants and court, has enforced the tribute of his subjects in this kind of material. Thus it may have been Gold, or Silver, or Copper, or a species of beautiful shells called Cowries, or even a sort of mat called Makutes, as in Congo; or Ingots of Iron, as in Senegal; or Negro Slaves, as on the Guinea Coast. When the Ruler of the country demanded such things as imposts, those whose Labour had to be put in motion to procure them were also paid by means of them, according to certain regulations of commerce then established, as in a Market or Exchange. As it appears to me, it is only thus that a particular species of goods came to be made a legal means of carrying on the industrial labour of the Subjects in their commerce with each other, and thereby forming the medium of the national Wealth. And thus it practically became Money.
The Rational Conception of Money, under which the empirical conception is embraced, is therefore that of a thing which, in the course of the public permutation or Exchange of possessions (permutatio publica), determines the Price of all the other things that form products or Goods — under which term even the Sciences are included, in so far as they are not taught gratis to others. The quantity of it among a people constitutes their Wealth (opulentia). For Price (pretium) is the public judgment about the Value of a thing, in relation to the proportionate abundance of what forms the universal representative means in circulation for carrying on the reciprocal interchange of the products of Industry or Labour. The precious metals, when they are not merely weighed but also stamped or provided with a sign indicating how much they are worth, form legal Money, and are called Coin.
According to Adam Smith, ‘Money has become, in all civilised nations, the universal instrument of Commerce, by the intervention of which Goods of all kinds are bought and sold or exchanged for one another.’—This Definition expands the empirical conception of Money to the rational idea of it, by taking regard only to the implied form of the Reciprocal Performances in the Onerous Contracts, and thus abstracting from their matter. It is thus conformable to the conception of Right in the Permutation and Exchange of the Mine and Thine generally (commutatio late sic dicta). The Definition, therefore, accords with the representation in the above Synopsis of a Dogmatic Division of Contracts à priori, and consequently with the Metaphysical Principle of Right in general.
What is a Book?
A Book is a Writing which contains a Discourse addressed by some one to the Public, through visible signs of Speech. It is a matter of indifference to the present considerations whether it is written by a pen or imprinted by types, and on few or many pages. He who speaks to the Public in his own name, is the Author. He who addresses the writing to the Public in the name of the Author, is the Publisher. When a Publisher does this with the permission or authority of the Author, the act is in accordance with Right, and he is the rightful Publisher; but if this is done without such permission or authority, the act is contrary to Right, and the Publisher is a counterfeiter or unlawful Publisher. The whole of a set of Copies of the original Document, is called an Edition.
The unauthorized Publishing of Books is contrary to the Principles of Right, and is rightly prohibited.
A Writing is not an immediate direct presentation of a conception, as is the case, for instance, with an Engraving that exhibits a Portrait, or a Bust or Caste by a Sculptor. It is a Discourse addressed in a particular form to the Public; and the Author may be said to speak publicly by means of his Publisher. The Publisher, again, speaks by the aid of the Printer as his workman (operarius), yet not in his own name,—for otherwise he would be the Author,—but in the name of the Author; and he is only entitled to do so in virtue of a Mandate given him to that effect by the Author.—Now the unauthorized Printer and Publisher speaks by an assumed authority in his Publication; in the name indeed of the Author, but without a Mandate to that effect (gerit se mandatarium absque mandato). Consequently such an unauthorized Publication is a wrong committed upon the authorized and only lawful Publisher, as it amounts to a pilfering of the Profits which the latter was entitled and able to draw from the use of his proper Right (furtum usus). Unauthorized Printing and Publication of Books is therefore forbidden—as an act Counterfeit and Piracy—on the ground of Right.
There seems, however, to be an impression that there is a sort of common Right to print and publish Books; but the slightest reflection must convince any one that this would be a great injustice. The reason of it is found simply in the fact that a Book, regarded from one point of view, is an external product of mechanical art (opus mechanicum), that can be imitated by any one who may be in rightful possession of a Copy; and it is therefore his by a Real Right. But from another point of view, a Book is not merely an external Thing, but is a Discourse of the Publisher to the public, and he is only entitled to do this publicly under the Mandate of the Author (præstatio operæ); and this constitutes a Personal Right. The error underlying the impression referred to, therefore, arises from an interchange and confusion of these two kinds of Right in relation to Books.
Confusion of Personal Right and Real Right.
The confusion of Personal Right with Real Right may be likewise shown by reference to a difference of view in connection with another Contract, falling under the head of Contracts of Hiring (B. II. 1), namely, the Contract of Lease (jus incolatus). The question is raised as to whether a Proprietor when he has sold a house or a piece of ground held on lease, before the expiry of the period of Lease, was bound to add the condition of the continuance of the Lease to the Contract of Purchase; or whether it should be held that ‘Purchase breaks Hire,’ of course under reservation of a period of warning determined by the nature of the subject in use.—In the former view, a house or farm would be regarded as having a Burden lying upon it, constituting a Real Right acquired in it by the Lessee; and this might well enough be carried out by a clause merely indorsing or ingrossing the Contract of Lease in the Deed of Sale. But as it would no longer then be a simple Lease, another Contract would properly be required to be conjoined, a matter which few Lessors would be disposed to grant. The proposition, then, that ‘Purchase breaks Hire’ holds in principle; for the full Right in a Thing as a Property, overbears all Personal Right which is inconsistent with it. But there remains a Right of Action to the Lessee, on the ground of a Personal Right for indemnification on account of any loss arising from breaking of the Contract. [See Supplementary Explanations, IV.]