§ 179. Now, in every society of a higher order, which has passed the primitive stages, not only do the realized. interests and the considerations of community, figuring as the principles of the society then actually dominant, or of the one preceding it, present themselves as the aim of endeavours, but such also as are of a more general nature, and relate to structures of community which are not, as yet, asserted, and which constitute factors of the ideals of the future.

The rules of conduct to be observed from the point of view of the latter, cannot be enforced by coercion; yet, as it is desirable to take them into account, they obtain a sanction similar in character to that, which maintains ceremonial regulations and proper social custom, only that, in proportion to their importance, incidentally this sanction may become still more effective. As soon as faith in direct Divine interference and in superhuman material action is shaken, all that is not ancient and special in religious notions and regulations owes its security to a sentiment of a similar character. The periphery of religions may, however, on the other hand, expand beyond the organism of the society, and thus obtain for its assertion a basis analogous in character to that possessed by the aforementioned interests of community of a higher order. Whilst then these various ideas of an entirely different origin, owing to their common mode of sanction, coalesce, the ideal good and that which, according to strict tradition, is the proper or the religious, constitute together the elements of moral regulations. Besides, another characteristic feature common to all these ideas comes into view in this, that every rule governing any such relation as has not obtained the sanction of power within the positive organism of the state, can be conceived as concerning individuals only. Thus the sway of the laws of morality is recognized as extending to those relations of the individuals, which do not directly touch the spheres of the concrete society, relating as they do either to societies of an inferior order, descended from dominion and not possessing an autonomous sphere of

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action of their own, or to societies of a higher order than the dominant society of the state, embracing it may be general humanity, or to such as are founded upon universal religious ideas, and even extend beyond humanity itself.

Hence, morality would appear to be a rule of individual, and not of social, conduct; and, since the final element of individuality cannot be identified with external activity depending upon external circumstances, but lies in the purpose and in the spiritual movements of the resolve of will, to which no material coercion is directly applicable, the rules of morality become thus crystallized as belonging and leading to the ideal of the individual good, and of the perfection of the individual soul.

§ 180. Law, therefore, to fix the result of this analysis, remains the sum of those rules which embrace the actual conditions of existence of the society, recognized by the state, and which can be enforced by the state. They possess, therefore, moral characteristics, inasmuch as the actual society is itself one of the forms of human community already attained, and the condition of more effective community in the future; and, further, inasmuch as the relations within the state are, in their final analysis, individual, and the elements of the individual will must be counted amongst those of the state. They are of a logical character, inasmuch as they are express or conditional commands, proceeding from conscious conception, and are meant to be understood and observed. Finally, they are of a material character, inasmuch as they must be always enforceable. The possibility of its assertion by coercion constantly attends the notion of law, although the necessity of the application of force arises only when persons decline to shape their actions voluntarily in conformity to the purpose of the state, or when the conditions of the existence and of the development of the state are not realized through ready private combination. Hence, it is not the question of the applicability of coercion, but of the concrete necessity of employing it, which is naturally con

nected with the question of the sphere of action of the state. The character and measure of compulsion to be used thus always depends upon those agencies, which find their expression in the particular idea of the authority of the state. Hence, coercion does not constitute a component element of law in such a manner as to be, under all circumstances, inseparable from it-for, indeed, in an ideal condition there would be no occasion at all to resort to it-but it constantly forms, as it were, the reserve and background of existing law, to which it should be possible at any time, and on any occasion, to appeal.

§ 181. The analysis of the sphere of the notion of law, however, remains still defective as long as its constant companion and relative twin notion, that of duty, is not elucidated.

Duty is susceptible of as many complex meanings as law; for in its various relations it corresponds with every kind of command to be followed, as an internal compulsion of conscience impelling conduct in conformity with law, and its neglect involves the actual application of the sanctions of the law. Accordingly, there may be distinguished religious duty, legal duty, and moral duty. All these kinds of duty, again, may be either positive and obligatory, in that they require actual conformation of conduct to the law; or negative, in that they tend to restrain from such actions as would be injurious to the sphere of activity and to the subjective rights of others. Every right, therefore, in the wider sense of this expression, answering the regulations of commands of any kind, and legally secured by the latter, corresponds with twofold duties, different in character.

It is the negative duty of every individual to respect the right of every other; the possessor of a right, again, is under the obligation of making use of his own right in consonance with its nature and principle, whenever that right itself is conceived as the means of attaining a necessary object.

This positive duty, again, which attends every right in

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the hands of its owners, answers those regulations of objective law in its wider sense, that is, of the systems of religious, social, legal, and moral rules, which exact from the individual sacrifices and willing efforts for aims lying beyond his private interest-the individual, indeed, being invested with rights merely on the strength of this his duty of co-operation. Since, however, the readiness to fulfil a duty is an individual matter of intention, and cannot be judged by the success of its result, the notion of duty, even if it relates strictly to religious or legal regulations, has, in general, an essentially moral aspect. The presentation of the notion of duty in this form becomes important from the circumstance, that religious, legal, and moral legislation, for the most part, do not proceed from the conceptions of the same society, or of a single period; and that, consequently, the rules obtaining in those different fields are frequently contradictory, and give rise to a conflict of duties. When this happens, judgment, from the moral point of view appears as the paramount standard for the comparison of the different commands, and for ascertaining which of them, according to the prevailing convictions, should justly prevail over the rest. The moral idea, owing to the notion of morality referring always to the future as well as the present, is necessarily always more advanced, and, hence, of a higher order than the ideal of law,whilst the latter, in turn, bears a moral character, when contrasted with positive law.

§ 182. Besides, whenever the authority, from which one or another class of commands is derived, is conceived as amenable to no analysis, and as not reducible to the agencies of human consciousness and human will, duty will come before us as absolute, rising above all proof drawn from experience, and, consequently, as transcendental and primary, and fully corresponding with the province of objective law; whilst subjective right will merely figure as a sphere of action necessary for the fulfilment of duty, and, therefore, as an emanation from the latter. Upon this ground, accordingly, law and right, with regard to the

person or principle embodying the supreme authority, can only be spoken of by way of analogy or metaphor; for law and right, assuredly, do not mean here conditions of social co-existence. Such is the case with systems of a theological or metaphysical character, which appeal to superhuman authority in the matter of the establishment of the order of society, and obedience to which is, therefore, a transcendental duty, and thus independent of any positive or possible order of state; nay, its conditions themselves depend, on the contrary, in this case, upon the nature of the authority accepted as the premise.

In the organism of the theocratical state, the obligatory force of law is thus derived from that of the religious regulations, giving rise to the principle that God should be rather obeyed than the human ruler, who, perchance, may enjoin things contrary to Divine order. Again, in Wolf and Kant, we find perfectibility and the assertion of the moral good represented as the highest postulate of will, transcending experience, and deduced from the nature of the human understanding, or from the essence of practical reason, and thus, as a categoric imperative; law and right appear with them therefore merely as an emanation from reason, possessing in themselves no practical matter, and as being only a supplementary element of a final and absolute ideal system.

This tendency asserts itself all the more universally in those systems which proceed from the notion of morality; for morality contains, to an overwhelming degree, such regulations as cannot as yet be enforced by the dominant society; and its propositions, therefore, naturally rely, to a much greater extent, upon bare theory, and upon subjective convictions as to the developments of the future, or upon traditional faith, than the propositions of law, which, from their nature, are constantly subjected to the test of practical justification. Hence, we find that, in all the theological systems-especially in those resting upon a metaphysical foundation-the division of law is made, not according to its proper topics, but according to the