Right of reason
Reason is law , the justification of which is derived from mere reason . During the early enlightenment, the law of reason gained direct influence on jurisprudence, legislation and the administration of justice of most of the European peoples. It shaped the 17th and 18th centuries and can be understood as a secularized variant of the much more comprehensive natural law .
The peculiarity of the law of reason was that it was not the established specialist jurisprudence itself that rose to be the spokesman for immediate moral and social demands, but that the initiative emerged from the ranks of the representatives of social philosophy . Since the claims were linked to the claim to be legal theory themselves , the social philosophers struggled with late moral theology for the legitimation to show the way to positive jurisprudence with their claims. Ultimately, the social philosophers emancipated themselves from moral theory and temporarily opened their own age.
In particular, the law of reason should show the way for later codifications. Works emerged that are included under the term of the natural law codes. In particular, in addition to Prussian land law and Austrian civil law , Napoleon's laws , these were summarized in the Cinq codes . In France, the pending legal reforms could be carried out after the revolution with a systematic and comprehensive restructuring of society, since the Enlightenment had led to the conviction that "reasonable" moral action by a government apparatus and a national common will would improve society.
The rational person can understand the social necessities through reasonable considerations and act according to this insight. The right comes from this insight, that is, from reason, and consequently from the person himself, he carries the right within himself. The rational person has the opportunity to recognize the law through reflection, deliberation and values. This leads to a distinction between law perceived as “right”, which derives the norms of human coexistence from reason, and positive law , which initially only reflects the content of created laws (codifications).
The idea of a right of reason emerged against the historical background of the denominational wars and fitted into the developments in the history of ideas during the Enlightenment . The legal understanding conceived in this regard was understood as self-contained and of a strictly rational nature. It should be viewed as timeless and based solely on human reasonableness and the nature of the matter. Such an understanding of law is shaped by natural law and can thus be distinguished from Christian-oriented legal theories, but is also understood as a critical guide of politically established law , since the compatibility of the sovereign's expression of will with reason can be examined. With Christian Thomasius in particular , the criticism of the law of reason was also directed against the unreserved reception of Roman law .
Johannes Althusius , Johann Oldendorp and Hugo Grotius were already considered pioneers of the law of reason . With Grotius in particular, it becomes clear that he laid the modern foundations of the underlying natural law. In contrast to the lawyers of reason, he did not abstract any axioms and principles, but referred to the evidence of universally traditional law, which meant to bring together Romanistic , theological and humanistic legacies. These consisted of ( compiled ) Roman law , ancient church moral theological traditions, expanded by his late scholastic - Erasmic thinking, which he introduced into jurisprudence . A legal awareness with the claim of humanity and a supra-denominational and supranational international law , based on natural law, developed from this.
Early advocates of the law of reason itself were, for example, Samuel Pufendorf , Christian Thomasius and Christian Wolff in Germany , and Karl Anton von Martini and Franz von Zeiller in Austria . The text Metaphysical Beginnings of the Doctrine of Law by Immanuel Kant had a decisive influence on the law of reason . With Kant, the rational will becomes the basis of correct action. By virtue of humanity, every person has the right to (in principle unrestricted) freedom (which is particularly emphasized by Johann Gottlieb Fichte .) Of course, in a society there are conflicts between the freedom of the individual and the freedom of others. To resolve such conflicts and to guarantee the freedom of all, the law serves to reconcile the arbitrariness of one with the arbitrariness of the other according to a general law of freedom.
The post-Kantian law of reason minimized the reference to subjective will characteristics. It abstracted law insofar as it was held to be legitimate law, which in its formal features expressed the underlying reason of a system of normative requirements. This moral realism opens up a lot of leeway for positive law. The yardstick for deciding what is right is therefore the judgment of an uninvolved, neutral observer who takes an impartial standpoint when evaluating a statement and therefore disregards subjective interests. Jürgen Habermas and the early John Rawls follow this tradition . In the critical context, arguments are sometimes made against the law of reason, which stands for “interculturally insensitive paternalism of reason”.
The doctrine of the law of reason is opposed to legal positivism . The only prerequisite for the creation, enforcement and effectiveness of legal norms is that they have been positively set by the people or the state . For this reason, the law no longer needs an over-positive (ethical) justification.
Codification of Law
An essential aspect of rational law thinking is the goal of summarizing the legal system in large codifications , and therefore to collect them in a system that is as closed and complete as possible. The Prussian General Land Law , a legal system that was claimed to be a systematically recorded and comprehensively reproduced law, acquired great importance .
The most important civil law codifications still valid today are the French Code civil (1804) and the Austrian General Civil Code of 1811 ( ABGB ). § 16 ABGB concisely summarizes the basis of the law of reason:
“Every human being has innate rights, which are already evident through reason, and must therefore be regarded as a person. Slavery or serfdom, and the exercise of any power related thereto, is not permitted in these countries. "
Other major codifications based on rational law were the Codex Maximilianeus Bavaricus Civilis of 1756 in Bavaria and the aforementioned General Land Law of 1794 in Prussia.
- Ernst Bloch : Natural Law and Human Dignity . Suhrkamp, Frankfurt 1961, p. 81 ff.
- Ursula Floßmann , Herbert Kalb , Karin Neuwirth: Austrian history of private law . 7th edition. Publishing house Austria, Vienna 2014.
- Hans Welzel : Natural law and material justice , Göttingen, 4th edition 1962. ISBN 978-3-525-18105-8 (overview of the history of ideas).
- Franz Wieacker : History of private law in modern times with special consideration of the German development. 2nd Edition. Göttingen 1967.
- Dietmar Willoweit (ed.): The justification of the law as a historical problem (= writings of the historical college . Colloquia 45), Munich: Oldenbourg, 2000 ( digitized ).
- Franz Wieacker : History of private law in the modern era with special consideration of German developments. Vandenhoeck u. Ruprecht, Göttingen 1952, 2nd edition 1967. P. 249 ff.
- Klaus Adomeit , Susanne Hähnchen : Legal theory for students . 6th edition, Verlag CF Müller, Heidelberg 2011. ISBN = 978-3-8114-9879-2. P. 500 f.
- Mehrdad Payandeh : Judicial creation of law. Theory, dogmatics and methodology of the effects of prejudices. Mohr Siebeck, Tübingen 2017, ISBN 978-3-16-155034-8 . Pp. 59-61.
- Heinz Mohnhaupt: Potestas legislatoria and the concept of law in the Ancien Régime . In: Ius Commune 4, (1972), pp. 188 ff. (199 f.).
- Christian Thomasius : Dissertationem iuridicam inauguralem, de rite formando statu controversiae: An legum iuris Iustinianei sit frequens, an exiguus Usus practicus in foris Germaniae? , 1715 .; Dietmar Willoweit : The Usus Modernus or the historical justification of the method change in the late 17th century. In: Dietmar Willoweit (Ed.): The justification of the law as a historical problem (= writings of the historical college . Colloquia 45), Munich: Oldenbourg, 2000 ( digitized ). P. 229 ff. (240 f.).
- Franz Wieacker: History of private law in the modern era with special consideration of German developments . 2nd Edition. Göttingen 1967, ISBN 3-525-18108-6 ). Pp. 287-301 (288 ff.). (1996,
- Johann Gottlieb Fichte : Basis of natural law according to principles of the science of science . Gabler, Jena and Leipzig 1796/1797, p. 116 ff.
- Immanuel Kant : Metaphysical Beginnings of Legal Doctrine. Academy edition, p. 230.
- Arno Anzenbacher : Justification of human rights between classical and modern natural law. In: Margit Wasmaier-Sailer, Matthias Hoesch (ed.): The justification of human rights. Controversies in the area of tension between positive law, natural law and the law of reason , Perspektiven der Ethik 11, Mohr Siebeck 2017, ISBN 978-3-16-154057-8 . Pp. 121-133.
- Margit Wasmaier-Sailer, Matthias Hoesch: The justification of human rights: a sketch of the current debate. In: Margit Wasmaier-Sailer, Matthias Hoesch (ed.): The justification of human rights. Controversies in the area of tension between positive law, natural law and the law of reason , Perspektiven der Ethik 11, Mohr Siebeck 2017, ISBN 978-3-16-154057-8 . P. 1 ff. (15 f.).
- Shown without a separate statement by: Margit Wasmaier-Sailer, Matthias Hoesch: The justification of human rights: a sketch of the current debate. In: Margit Wasmaier-Sailer, Matthias Hoesch (ed.): The justification of human rights. Controversies in the area of tension between positive law, natural law and the law of reason , Perspektiven der Ethik 11, Mohr Siebeck 2017, ISBN 978-3-16-154057-8 . P. 1 ff. (14).
- Franz Wieacker: History of private law in the modern era with special consideration of German developments. Vandenhoeck u. Ruprecht, Göttingen 1952, 2nd edition 1967. P. 322 ff.