keskiviikko 20. maaliskuuta 2024

Christian Wolff: Natural right 6 – Not yet living

From dead Wolff turns to those not yet living. Just like with the former, Wolff notes first that future generations do not have any rights and hence cannot acquire any property. This lack of rights extends, according to him, even to foetuses that are still in the uterus. Thus, if I say that I transfer some right to an unborn foetus, this isn’t literally true. Even so, Wolff adds, my statement still creates an obligation that I will transfer the right to the baby when they have been born.

More generally, Wolff thinks that although the unborn cannot have any proper rights, they can have some sort of quasi rights in the sense that they will acquire rights when they are born. Thus, there can be an agreement that a certain right will be passed on to the descendants of the person who currently has that right, after this person died, even if these descendants do not yet live. In the case of a foetus in the uterus, this quasi right cannot be removed and it has an equal juridical status as a promise that is supposed to be fulfilled if some condition occurs. Thus, if a thing is given to an unborn child and then delivered in my possession, I am expected to hand the thing over to the child, once they have been born.

An interesting case occurs, when a person relinquishes a right that was supposed to pass on to some unborn people. Wolff insists that such a renunciation is impossible, if the unborn person in question is already a foetus, but possible, if they are not even that. Furthermore, Wolff notes, the renunciation could also be done in such a manner that the quasi expectation of receiving the right when born would remain with the unborn people.

Wolff thinks that we also have some duties toward future generations, and indeed, that we should love and care for the generations to come. Such duties include that we must make sure that scientific truths and arts discovered by us are received by future generations by spreading new knowledge. Moral virtue is also something Wolff thinks should be transferred to future generations, for instance, by writing down examples of virtuous behaviour and teaching them to young people. Finally, Wolff suggests also that the happiness of future generations should be taken care of by e.g. planting fruit trees.

maanantai 26. helmikuuta 2024

Christian Wolff: Natural right 6 – Bury your dead

Next topic Wolff discusses concerns the rights of dead humans. His first verdict is that the dead have no rights: as soon as a person dies, they lose all their rights, and at the same time, all their obligations vanish. This means particularly that the dead cannot own or possess anything, so that all things they had cease to be theirs.

The obvious question now is what happens to the things the dead person owned, and more extensively, to all the rights they had. Wolff notes that if the right in question was personal – something only they could have, such as when their neighbour allowed them to borrow a horse occasionally – this right just vanished at the time of death. On the other hand, other kinds of rights and particularly all property can be transferred from one owner to another. Thus, a person can decree that at the time of their death these rights and things will be transferred to a certain person. Sometimes the transfer happens even automatically, for instance, when the dying person owed something to another, what was owed should after the death naturally pass to the other. Only in the case that the dying person did not own enough for covering this debt, is it at least partially annulled. Furthermore, Wolff clarifies, while the rights and the property can change owner at the event of death, debt does not, that is, if you inherit something from a person, you are not obligated to pay what the dead person owed to someone else.

Although the dead do not have rights in some sense, Wolff continues, they do have rights in the sense that people still have obligations concerning them. For instance, if the dead deserve some praise, they should be praised even after their death. More generally, any good things they have done should be returned in some manner, for example, by doing good to people they had loved. This duty, Wolff thinks, should be followed especially by those who benefited from the deeds of the dead person, including those who inherited something from them.

What then of the dead who have done things that go against all morals, such as murderers? Wolff thinks that it would be best that such acts would be simply forgotten, so that no one would be influenced by these examples. If the deeds are well known, then they could be discussed, but only with the intention of instructing people not to do such things. Thus, bad deeds of the dead should be excused, as much as possible.

In Wolff's opinion, every dead person deserves some respect just due to their humanity and should thus be treated with some respect, even if they were our enemies. This respect concerns even the dead body or the corpse, which should not be treated like dead animals, Wolff insists. All dead bodies should be removed from the sight of the living, since corpses transmit diseases, but they should not be thrown to dogs or left rotting. Wolff underlines that human corpses should especially not be eaten, except in extreme necessity.

Wolff admits that there’s a number of appropriate ways to dispose of a dead body, such as cremation. Still, he thinks that the most convenient and thus the preferred way to deal with the corpse is burial, where the dead body is covered in soil. Right of burial is thus a universal right of all humans, and to show our respect to the dead, we should attend the funeral ceremonies where the dead are buried.

Where the dead can be buried, then? Wolff notes that in the natural state, the dead could be buried anywhere, but after the introduction of ownership, it requires the permission of the owner of the land. Thus, there arises a need for cemeteries or places where people are customarily buried.

Memory of the good and illustrious deeds of the dead should remain alive, Wolff notes. For this reason he recommends raising monuments, not just at the place where the remains of the dead are buried, but even in other places (these are particularly called cenotaphs). Other means include making funeral orations and inscribing epitaphs at monuments.

Funerals are not just about the simple fact of burying the dead, Wolff adds, but they often include ceremonies and rituals that are not strictly necessary for the sake of the burial itself. One such ritual is that people are not buried in nude. Wolff explains that this should be a universal custom, since it helps us to further separate dead humans from dead animals. Then again, he adds, there is no general rule whether the corpse should be wrapped in linen or whether the dead person should just wear regular clothing, but this must be decided by the circumstances. In any case, if the clothing symbolises the love and gratefulness toward the dead person, Wolff considers it appropriate that the clothed body is exposed to the eyes of the people in the funeral, for instance, by opening the coffin before lowering it to the grave.

We usually feel sad, when people dear to us have died. Thus, Wolff says, it is just natural that we show some external signs of sadness, such as crying. Furthermore, he adds, it is quite appropriate that we voluntarily choose to show further signs of mourning, such as a certain style of dress we wear.

Wolff concludes the chapter with a question controversial for a long time: is it allowed to dissect human bodies in order to learn about anatomy? He notes that dissection is essential to understand what makes humans healthy and what causes sickness. Furthermore, he adds, knowing the structure of the human body lets us also glimpse to the mind of its creator or God. Hence, Wolff sees no reason why bodies could not be dissected, as long as it is not done to living humans and as long as the dissected bodies are given a decent burial.

tiistai 20. helmikuuta 2024

Christian Wolff: Natural right 6 – Right of necessity

One of the major topics of Wolff’s earlier volumes of Jus naturae was the distinction between the primaeval community of things and the later introduction of private ownership. Wolff considered the move toward the latter a good thing, but now he reveals that the ownership is not an absolute thing: there is a tacit assumption that if a person is bereft of necessities of life, they can even use things owned by another to satisfy these necessities. This right he calls a residual right remaining from the primaeval community.

This residual right, Wolff continues, is but an example of the more extensive class of rights of necessity (jus necessitatis). By this he refers to any right to do something that is usually not allowed, for the sake of some indispensable obligation that could not be otherwise satisfied. In other words, a right of necessity occurs in cases where several laws collide with one another. Indeed, he adds, all natural laws have tacit exceptions that they need not be followed, if some inevitable necessity prevents this. For instance, although we are usually obligated to help people in danger, the case is different if we are also in danger and have to first and foremost save ourselves.

While duties toward others can be overridden by right of necessity, Wolff insists, duties toward God cannot. In other words, Wolff thinks God should be worshipped, no matter what the necessity. Immediately after saying this, Wolff notes some exceptions. We should worship God internally, but we cannot do this, if we happen to be out of our mind – still, even in this case, Wolff notes, the obligation to worship exists, but it has just been suspended until we come back to our senses. In case of external worship, such as going to church, on the other hand, there might be some other duty that requires immediate satisfaction and thus prevents us from going to church for the time being.

Wolff goes into more detail investigating various cases where a right of necessity holds. One very classical example is that of shipwreck, with people trying to save themselves by using a boat that cannot carry all the passengers. Wolff thinks that, in general, first come is first served, and if all enter the boat at the same time, the stronger ones can just throw away the weaker ones. The case is somewhat different, he thinks, if the owner of the boat is present, as they have the right to decide who is to board the boat.

An example particularly relevant to rights remaining from the primaeval community occurs when a person is starving, but cannot obtain food by purchase, work or even begging. In such a state, Wolff says, the person is allowed to just take what they need from others, if necessary, even by using violence, and this is not to be seen as theft or robbery. More generally, if a person necessarily requires the use of a thing they cannot otherwise obtain, they can use such a thing belonging to someone else: for example, we are allowed to use weapons of another person, if we are threatened by an assailant and have no means of our own to defend ourselves. Even so, Wolff adds, the thing in question should be returned to its original owner, if possible. If not, for instance, if the thing is consumed by its use, like a piece of food, similar thing or at least something of equal worth should be returned.

A case that intrigues Wolff very much is that of a common danger making it necessary to destroy the property of a person, say, when an impending shipwreck necessitates throwing some cargo in the sea or when preventing the spread of fire requires wrecking some building. The basic principle is simple – if the destruction is necessary, it can be done, but the damages are to be compensated – but the more intricate question is who is to contribute in each case. In the case of cargo thrown from the ship, Wolff suggests that the compensation should be the duty of the owner of the ship and of everyone who had cargo that was not thrown in the sea, and to determine how much each is to contribute, the value of the destroyed and the saved cargo and of the ship with all instruments is to be estimated. To make matters even more complicated, Wolff adds that passengers and the payment they have contributed should also be taken into account, as well as the weight of various pieces of cargo and even of the passengers (e.g. if someone has thrown away lighter, but more expensive cargo, they should be more responsible of the damages). And of course, if the ship sinks, even if cargo was thrown in sea, no contribution is required.

In the case of the house destroyed because of raging fire, Wolff explains, the owners of the buildings that the fire could have reached should first and foremost contribute to the compensation for the damages. Wolff makes two important exceptions: firstly, those whose buildings were not saved, but burned down, need undoubtedly not contribute, and secondly, if the destroyed building was already being burned to ground, no one has to compensate for anything. Finally, if there was a certain person who was responsible, either through deliberate choice or through negligence, of the fire, this person is solely responsible for the compensation.

Wolff argues that the rights remaining from the primaeval community also go further than mere jus necessitatis. This is the case with what Wolff calls res innoxia utilitas, that is, something that we can use to our advantage without harming anyone, not even the owner of the thing, An example Wolff provides is a river: its owner is not hurt in any way, if someone draws water from it. A perhaps more important case of innoxia utilitas is that of using other people's lands. Passage through those lands and their rivers, roads and bridges should be allowed for both people and their merchandise, unless there is reasonable fear for damages, Wolff insists, although the owners might ask for a fee to provide for the maintenance of the road network. Wolff even thinks one is allowed to remain for a time in the lands of others for just reasons, and homeless people should even have the right of perpetual habitation. People should even have a right to acquire things they need for living for a fair price, which requires the maintenance of inns for travelers.

tiistai 30. tammikuuta 2024

Christian Wolff: Natural right 6 - How to read contracts?

After various types of contracts, Wolff considers the more general problem of how to interpret them, that is, how to decide what the persons making the contract have wanted to say with the words in it. In other words, the question is of the intentions behind the linguistic expressions.

Wolff at once notes that interpreting contracts involves something very different from interpretation in general. Usually, it is all just about clarity. If the words have a fixed meaning and the writer or speaker is known to express their intentions sufficiently, no further interpretation is required. If the words or their meanings are not clear, we can then just simply ask the writer or the speaker to explain them further, since they know best what they intended to say.

In case of contracts, Wolff points out, there is something that interrupts this simple scheme: obligations. Now the person promising to do something is not the best person to ask what they meant by their words, since they might wish to deny some obligations they had promised themselves to. Similarly, the person who the promiser is obligated to is also not fit for interpreting the words, because they might want to have the promiser provide them more than was accepted.

The interpretation of contracts, Wolff concludes, should then happen through certain rules that can be accepted by all parties involved. In the best case, he adds, these rules could be demonstrated as being the correct ones. When the rules and the corresponding right interpretation have been decided, the obligations are now determined.

To make interpreting easier, Wolff notes that people making the contract should speak in such a manner that they can understand one another. More particularly, they should use the words in such a manner that makes their speech understandable – Wolff calls this using the proper meaning of the words. More generally, they should use all terms in the received sense and they should not knowingly and willingly depart from this. From the standpoint of interpretation, Wolff continues, the words should be presumed to be received in their proper meaning and terms in their received sense, unless some urgent reasons to the contrary appear. In other words, interpretations should mostly follow the common use of words.

Wolff takes into consideration that the contracts are sometimes interpreted much later than they have been made. In such cases, he notes, the interpretation should use meanings that the words had at that earlier time. Then again, he adds, the interpretation should not follow what he calls the etymological meaning of the words, that is, the supposed original meaning of the words, from which the later meanings have evolved.

Wolff observes that if the persons making the contract have expressly said how the contract should be understood and the contract has only common words with clear meanings, the interpreter should follow the common meaning of the words closely. More generally, if it becomes evident, what sense of the words agree with the intentions of the people making the contract, it is not allowed to suppose any other intentions behind the words. If the contract contains some technical terms, they should be generally interpreted by definitions common in the discipline in which they are used.

Wolff also considers homonymy, where the same word has different meanings, and amphiboly, where the same expression consisting of many words has different meanings. Obviously, homonymy and amphiboly cause difficulties for interpreting contracts. Wolff notes that in some cases different occurrences of the same word or expression might have to be interpreted in different manners. Generally, he adds, if homonymy or amphiboly make the intention of the contract obscure, the meaning agreeing best with the topic in question should be preferred.

A strict rule Wolff endorses is that any interpretation leading to something absurd should be rejected. This rule is to be followed, even if it would mean ignoring the proper meaning of the words. In particular, contradictions should be avoided.

Contracts are often long pieces of text, and while some passages might be transparent, others might still be obscure. In such cases, Wolff notes, the obscure parts are to be interpreted in a manner that agrees with the clearer passages. More generally, he continues, the different parts of the text should be usually interpreted in such a manner that they agree with one another, unless it is evident that e.g. later parts of the text change what was said in earlier parts.

Since the contracts are the expression of the volitions of the persons making it, interpreting them often involves studying the intentions of those persons. Thus, Wolff says, if we know the reason why the persons behind the contract wanted to say what they say in the contract, the words of the contract are to be interpreted in such a manner that they agree with this central reason. If there were many different reasons that all in conjunction made the persons to do the contract, the interpretation should agree with the sum of these reasons. Then again, if we know many alternative reasons that could have been behind the contract, the interpretation should agree with these reasons in separation.

Wolff notes that contracts often have what could be called favourable and burdensome parts. Favourable in contract is, Wolff defines, what cares for the common good of all sides of the contract, while burdensome is what burdens one side more than the others – an example of latter would be penalties attached to a contract. In interpreting the favourable parts, Wolff insists, words should be understood in the most extensive sense they can be, unless this interpretation would lead to some absurdities or unless a stricter reading would be more useful for all participants of the contract.

On the other hand, Wolff thinks, when interpreting the burdensome parts of the contracts, words are to be taken in a stricter sense, although even a figurative understanding of the words is admitted, if this helps to avoid great burdens. In the particular case of punishments, this rule implies that placing guilt upon a person would require stricter definitions, so that there would be more reasons not to punish anyone. Similarly, if a person has promised something quite liberally, a more lax interpretation is to be avoided if such would burden the person who promised too much.

Another general rule Wolff suggests is that interpretation should be made in such a manner that the speaker or writer would have interpreted it, if they were present and knew all relevant circumstances that had become common knowledge after the contract has been made. Thus, if the sufficient reasons behind the persons making the contract were known, the same interpretation could be extended to cases which literally are not included in the terms of the contract, but would agree with these sufficient reasons.

Continuing with the negative case, Wolff adds that if some case would literally agree with the terms of the contract, but would somehow contradict the intentions of a person in the contract, the interpretation should restrict the meaning of the words. Similar exceptions to terms of a contract can be made, according to Wolff, when following the strict meaning of the words would contradict natural law or would be too burdensome to some person involved in the contract.

An interesting case occurs when two contracts contradict one another and some exception has to be made. Wolff notes that because a contract contains promises and therefore causes obligations, it can be handled similarly as laws. Thus, following what he has said in a previous part of his study on natural law on collision of laws, he notes that if one contract e.g. permits or even orders something that another contract forbids, the forbidding contract is to be preferred. More generally, contracts involving stronger obligations trump contracts with weaker obligations. Thus, a contract with an oath or a penalty attached to it is to be preferred to a contract without them. If no reason for choosing one contract over the other is found, the decision can be made by agreement of all persons involved or even by lot.

keskiviikko 10. tammikuuta 2024

Christian Wolff: Natural right 6 – Feudal relations

In the second chapter, Wolff continues with a special case of the dominum utile, namely, feudum or fief – we are now speaking of legal relations that work as the basis of feudalism. What differentiates feudum from other kinds of dominum utile is that both participants of the feudal contract – the owner and the vassal – agree to provide to one another fidelity, in other words, some duties that are further determined in the contract: for instance, the vassal might agree to provide military service to the owner, while the owner might then agree to protect the vassal.

Otherwise, the properties of the feudum are simply those of a dominium utile, for example, the vassal can use the feudal thing as they want, as long as they don’t do anything to harm its very substance, which is the property of the owner. The vassal can improve the feudal thing, unless even such changes have been explicitly denied.

The paragraphs above would really be all that can be said of a feudum in general, that is, Wolff says, its substantial determinations. Yet, when agreeing on the feudum, the owner and the vassal can add further conditions that lead to further rights and obligations. For instance, the owner can set a price or an annual payment for feudum or it could be contracted only for some period of time or e.g. for a certain family line (Wolff mentions the possibility that the feudum could be inherited by both sons and daughters or even only by daughters, but in every specific example he speaks only of sons, which was, of course, historically the most common option).

A feudal contract is usually valid, when the owner and the vassal agree on its conditions. Yet, Wolff adds, they may also agree that a certain formal document called the letter of investiture is written. He thinks that such a written document agrees well with the law of nature, since it makes the conditions of the contract explicit.

A condition Wolff considers most extensively is whether the feudal contract allows the vassal to transfer the feudum to someone else, that is, to donate or to sell it, and if it is allowed, whether the consent of the owner is required for this. In case this is allowed, the feudum must be similarly structured as it originally was, except if the feudal contract adds some additional conditions to these (for instance, the owner might demand a further payment from the new vassal). Still, if the original contract determined e.g. a certain type of service from the original vassal, the new vassal must also provide it to the owner.

Usually the owner does not need to ask the vassal, if they want to transfer their ownership to someone else – the feudum just remains valid, with the same conditions as originally. Still, the owner and the vassal can also agree, Wolff notes, that the owner cannot donate or sell the feudal thing at all or not without the consent of the vassal. If such a condition holds and the owner still does transfer their ownership to someone else, the vassal is not obligated to provide any services determined in the feudal contract to the new owner.

What kind of things can then be given as feudum? The historically most obvious example is, of course, some piece of land, but Wolff thinks that the feudal thing can be anything that is not consumed by its use, like a piece of furniture. Things consumed by use – say, a portion of wine – cannot be made a feudal thing. Yet, even such consumables can be indirectly made into a feudal thing, Wolff suggests, that is, by making a right to such consumables into a feudum. As an example Wolff gives what is called feudum de caneva (literally, a fief from cellar), where the vassal gains a right to e.g. use a certain portion of wine from the owner’s provisions during the vassal’s life.

Making a feudum of a right to some consumable things is one way to involve these consumables into a feudum, but Wolff notes also a more direct manner. That is, if a person gives some consumable – usually, a portion of money – to another, who provides as a surety something else (say, a house), we can think of the money, or whatever the consumable is, as something not consumable. With such surety in place, the owner of the money can then give the right to use the money to another person, in the sense that this other person can attempt to use the money to make more money through business deals or by loaning it with some interest. This is then a new kind of feudum, which Wolff calls both feudum pecunia (literally, fief on money) and quasi feudum, implying that this is a sort of extension of the proper sense of feudum.

Assuming it hasn’t been explicitly forbidden in the feudal contract, the vassal can create to their feudum a new feudum, which is then called subfeudum, Wolff points out: so, if the vassal has a right to use a certain piece of land, they can then hand a right to use a part of this land to someone else. What holds for any feudum obviously holds for any subfeudum, but the latter always has the further condition that the subfeudal contract someone makes with the vassal cannot contradict anything in the original feudal contract that the vassal made with the owner. The process can obviously go indefinitely further and a subfeudum can have a subsubfeudum etc.

Often a feudum runs in a family, so that when the original vassal dies, one of their descendants becomes the new vassal (usually the oldest son). Now, it may well happen that some family dies out, so that no one to have the feudum exists anymore. In such a case occurs what Wolff calls apertura feudi, which means simply that the feudal thing returns fully to its owner; in this case all possible subfeudum expire also. The same relation does not hold the other way around, that is, if the owner happens to die without any heir, the vassal does not become the owner – unless, of course, the feudal contract says so.

Wolff has already spoken of the possible selling or donating of a feudum, but a case of pawning requires more discussion. Of course, if the feudum cannot be sold or donated without the consent of the owner, it cannot also be pawned without this consent. The vassal can pawn the use of the feudum or its products, and this is what they must have understood to have implicitly pawned, if they pawn the feudum without the consent of the owner. Yet, Wolff adds, if the apertura feudi is near, that is, if the feudum is about to return to the owner, since the vassal has no heirs, pawning is forbidden even with the consent of the owner. Furthermore, even if the vassal has heirs and the owner does consent to the pawning, the heirs do not have to. Then again, only the right to use and the products of the feudum are pawned, and once the vassal has died, the heirs of the vassal are in no way obligated to provide anything else to the debtor of the vassal.

Another concept Wolff investigates is revocatio feudi, where the person who has the power to do so asks to retrieve the feudal thing. This does not usually mean the owner asking the vassal to return the feudum, since the owner does not have such a right, unless the feudal contract says that the owner can do so whenever they want. The more usual case is when the vassal has sold or donated the feudal thing without the consent of the owner or heirs, who then can ask the new holder of the thing to return it to them, once the vassal has died. In that case, the owner or the heirs need not refund the price of the feudal thing to its holder.

Another question Wolff considers is whether the vassal can refute the feudum, that is, to reject the right to use the feudal thing and to be freed of all the obligations involved in the feudal contract. In refuting the feudum, the vassal can either want to return the right to use the feudal thing to the owner or then to transfer it to someone else. In the prior case, the vassal can refute the feudum, unless this is against the rights of the owner, for instance, when the refutation is done, because the vassal wants to escape military service that the owner requires from the vassal according to the feudal contract. Furthermore, although the vassal has returned the right to the feudal thing to the owner in refuting the feudum, the heir of the vassal can later demand its return, when the vassal has died.

When the vassal refutes the feudum and intends to transfer the feudal thing to someone else, the important question is whether this intended new vassal is some heir of the vassal or just any outsider. In the latter case, the refutation of the feudum would simply mean its donation, which Wolff has already considered. In the previous case, the refutation can simply happen if the feudum is to go to the immediate heir of the vassal. Then again, if it should go to some other heir – say, a grandson, instead of the son – the immediate heir can insist the restoration of the feudum to them, once the original vassal has died.

An interesting case arises, when the vassal refutes the feudum and wants it to go to their immediate heir, who then at once wants to transfer the feudum to their heir. In that case, Wolff says, the important question is whether the vassal wanted the feudum to go specifically to the immediate heir or whether they just wanted to get rid of it. In the prior case, the feudum returns to the original vassal, in the latter case, it goes to the second heir.

The last thing Wolff investigates of feudum is the possible breaches against the obligations of the feudal contract. Obviously, any duties left unfulfilled mean a breach, such as if the owner does not provide the agreed protection to the vassal or the vassal the agreed military service to the owner. Wolff does note an exception to the latter case: if the owner is engaging in an unjust war, the vassal does not need to help them, even if the feudal contract would say so.

More serious breaches occur, if the substantial determinations of a feudum are broken, for example, if the vassal does not show any fidelity to the owner. This would happen, if the vassal does not want to avert damages to the owner or promote their advantage, when they can, and even more so, if the vassal causes damage to the owner or wants to do something against their health or in any manner conspires to do something like this. Thus, the vassal breaches the feudal contract, if they threaten the life of the owner, plan an ambush or enter into a destructive agreement with the enemies of the owner. They even commit a breach, if they desert the owner in battle or other hazard or do not help them.

Wolff notes some exceptions. If the vassal and the owner are in a common danger and the vassal prefers to save their own life over the life of the owner, no breach occurs. Similarly no breach happens, if the vassal kills the owner when the owner has first attacked the vassal with superior force and the vassal could not avoid being killed or mutilated, unless by killing the owner first.

Whatever the breach is, Wolff says, it does not lead to the vassal losing the feudum or to the owner losing their ownership, unless it is particularly agreed so. Even if such an agreement exists, the one behind the breach can still pay for their crime. In case of the vassal committing the breach, if they do not make any amends, the feudum would still continue in the sense that their heirs have a right to ask the feudum to be given to them, once the original vassal has died.

maanantai 25. joulukuuta 2023

Christian Wolff: Natural right 6 (1746)

The sixth volume of Wolff’s Jus naturae seems like the same kind of mishmash without any common theme as the previous one. Thus, Wolff merely begins with a new type of contract, this time, dominium utile, which means simply a right to use and enjoy freely something, where the substantial part of that property – the so-called dominium directum – belongs to someone else. In effect, the dominium directum is the more superior form of ownership, since the person with it can donate or sell the thing, although the person with the dominium utile would still retain their right to use and enjoy the thing. Both forms of ownership must have been constituted by a person who has previously had a full ownership of the thing in question: they might have either disposed of the dominium utile and dominium directum to two different persons, or they could have retained for themselves either the dominium utile or the dominium directum.

Now, Wolff goes through various types of dominium utile, first of which is called emphyteusis. In emphyteusis, the property in case is immovable (e.g. a piece of land), and the holder of dominium directum is provided an annual payment called canon by the holder of dominium utile or emphyteuta: in effect, this is the case of renting something for use. What this canon is can be determined freely by those making the contract – it can consist of money, but it can also consist of wheat, fruits, wine, eggs or really anything. Furthermore, the quantity of canon can be determined freely and it need not be proportional to the usefulness of the property for emphyteuta. The important point is that it must be paid, no matter of the financial situation of emphyteuta: for instance, if the case is of land, it must be paid, even if the harvest had been meagre. Of course, Wolff admits, it would be a decent thing to do, if the the holder of the dominium directum would let emphyteuta pay less or even not pay at all during bad years.

Now, Wolff continues, the contract at the base of emphyteusis can give the emphyteuta the right to hand over the property in question to another person, who then becomes the new emphyteuta. The contract might also specify that the holder of dominium directum is to be given what is called laudemium or honorary payment by the new emphyteuta, whenever this emphyteuta is changing. Then again, the person who has the dominium directum can hand over this ownership of the thing without asking emphyteuta anything.

Wolff notes that emphyteusis can have further conditions, for instance, it can last for some predetemined time or be granted to a certain group of persons (e.g. a family line). Naturally, when the time in question has elapsed or if there are no persons left that are specified in the contract, the emphyteusis is cancelled and the full right to the property is returned to the holder of dominium directum. On the other hand, if the holder of dominium directum dies without any heir, the emphyteuta does not get full rights, unless this has been expressly agreed upon in the contract. Instead, no one has in this case the dominium directum anymore. Then, Wolff explains, anyone would have the right to take this dominium directum and make it their own. If the person who does this happens to be emphyteuta, then the full rights return to them and emphyteusis ends.

Emphyteusis is a contract that can be repeated in the sense that if a person has acquired a right to use and enjoy some immovable property, they can sell or donate a further right to use and enjoy this same property to someone else (think of a renter of land renting a portion of this land to another person). This further contract is then called subemphyteusis. Largely the same considerations as concerned emphyteusis concern also subemphyteusis, but there is also the further condition that subemphyteusis cannot contradict what has been agreed concerning emphyteusis.

While in emphyteusis the original owner retains the primary ownership to a thing, which he then just, as it were, leases to someone else, the case is completely opposite in what Wolff calls contractus libellarius. Here, the original owner forfeits the ownership of a thing to someone else, but only on the condition that the new owner will provide an annual canon or payment to the original owner. Contractus libellarius has also a clause stating that after a certain period of time the new owner must renew the contract for a certain price. If the new owner fails to do this or fails to provide the annual payment, the thing in question is to be handed to a yet new owner, who then has to follow the same conditions for annual payment – unless, of course, the ownership of the thing returns to the original owner, which means then end for the contractus libellarius. Still, because the contractus libellarius means actual change of ownership, the new owner can otherwise use the thing as they want and even donate or sell it to someone else

Quite similar to contractus libellarius is jus censiticum, by which Wolff refers to a right of annual income that one has from immovable property that belongs to someone else. The similarity is even more marked in the case where this right is what Wolff calls census reservativus, where the owner has sold an immovable thing to someone else on the condition of annual income, the only differences being that census reservativus concerns explicitly immovable property and that there need not be any time limit attached to it. The other form of jus censiticum or census constitutus happens when a person buys or accepts as a donation for themselves jus censiticum to something.

The final type of dominium utile Wolff considers in this first chapter is jus superficiei, which concerns particularly property on someone else’s grounds. Usually, it means a right to have a building owned by oneself on the land of another person, but the right might also concern something else, like a garden or a forest. Jus superficiei must be conceded by the owner of the land – it can be freely determined whether the right is donated or sold or conceded for an annual payment. The building in question can already exist on the grounds or it might be constructed after the contract has been made. Furthermore, if the building burns down or is otherwise destroyed, the owner of the building, called also superficiarius, has the right to build a new one. Jus superficiei also extends to the use of the pathways the superficiarius has to go through when accessing the building. Since the building in question is owned by the superficiarius, they can naturally do with it anything that an owner can do, provided it does not break the rights of the landowner – they can e.g. donate, sell or rent the house to someone else.

The final thing Wolff deals with in the first chapter concerns the possible annual payments involved in any dominium utile. These payments, he notes,can be pensiones promobiles, that is, there might be a further condition that if the payment is not made on time, the required sum continues to increase.

keskiviikko 22. marraskuuta 2023

Georg Friedrich Meier: Thoughts on honour – When to fear disrespect

The final chapter of Meier’s work concerns duties concerning disrespect. Meier notes that he can be quick about this topic, since matters concerning disrespect can in most cases be easily deduced from what we know about respect. Furthermore, he thinks it is on the whole better not to think as much about disrespect and related imperfections as about respect and perfections. Indeed, he notes, fear of disrespect should not be greater than love of honour, since an overdeveloped shame prevents all action.

Still, Meier continues, we can at least say that we are obligated to avoid being truly disrespected, as much as it is in our power. Meier justifies this by pointing out that our honour is diminished, if we are truly disrespected. True, we can be both respected and disrespected at the same time, still, our honour is greater, if we are not disrespected. Furthermore, Meier adds, we are obligated to avoid imperfection and true disrespect not just presupposes that we are imperfect in some manner, but also adds to our imperfection, because those who disrespect us are wont to harm us. Besides, we should imitate God, who is never disrespected. Fear of disrespect also helps us to avoid vice – another obligation we have – because vice is disrespectful. Finally, Meier notes, we have a natural feeling of shame that makes us want to avoid being despised or disrespected.

Of course, Meier admits, we are obligated to avoid being disrespected only insofar as it is possible. Here possibility means absolute possibility – we humans must always have some imperfections – but also hypothetical possibility – none of us can be universally honoured, so someone must disrespect us. What about the third type of possibility or moral possibility? Meier insists that it can never be morally required to be truly disrespected. Thus, all disrespect we cannot morally avoid must be mere apparent disrespect.

We are obligated to avoid disrespect, and in Meier's opinion this can happen only if we fear disrespect. Fear, on the other hand, requires representing something vividly as evil. Thus, we are obligated to evaluate disrespect correctly. Furthermore, since all our fears must be perfect, we are obligated to evaluate disrespect as clearly, correctly and vividly as possible.

In order to know whether we are disrespected as vividly and distinctly as possible, we should direct our attention to possible faults in our honour. Still, Meier warns, we should not direct too much attention to them, since defects in honour are not the greatest evil and so do not deserve too much of our attention. Then again, we shouldn’t also direct too little attention to these defects, since they are a great evil. Still, he emphasises, we should not let the faults in our honour prevent us from considering more important matters, like our higher duties, truth and virtue, our future honour and means to remove the defects of our honour. Meier advises us to pay more attention to our current defects than to our current honour, but less attention to our future defects than to our future honour. An obvious point is also that we should pay more attention to greater defects than to smaller ones: for instance, it is more important to know whether more honourable persons disrespect us than whether lowly people do so.

If we want to know the faults in our honour as correctly as possible, Meier instructs, we should not confuse apparent or undeserved disrespect with true one or confuse being ignored with being disrespected – we should understand that being ignored is a smaller evil than being disrespected. We should also not ascribe to ourselves greater or smaller defects than we actually have. Furthermore, Meier continues, we should not think defects in our honour to be the smallest nor the greatest evil and we should correctly estimate every kind of defect. Finally, we should understand that avoiding defects is partially, but not completely down to us.

If we want to be as certain about the defects in our honour as possible, Meier states, we shouldn’t consider the defects in our honour doubtful or improbable, if we can be convinced of them certainly or probably. Then again, we should not consider defects in our honour undeniably true, if they are just uncertain or even improbable. According to Meier, we should be more certain about greater defects of honour – for instance, whether God disrespects us – and we should also be more certain of current defects in our honour than of current honour, but more certain of future honour than of future defects in our honour.

Although we should know the defects in our honour as vividly as possible, Meier clarifies, we should not be too anxious of them, because a too strong feeling of anxiety doesn’t help anything. Still, we should also not completely ignore our defects. More precisely, Meier teaches, the whole anxiety over defects in our honour should not rise higher than the whole satisfaction with honour. Furthermore, anxiety over defects should never be so strong that it prevents us from finding and using means for getting rid of them.

Meier concludes from previous considerations that we are obligated to make a representation of disrespect a motive for avoiding vice and sins and for purifying ourselves from despicable imperfections as much as possible. This means that we err when we make disrespect the greatest, strongest or even only motive for avoiding evil actions, because there are more important and higher motives, but also when we do not use disrespect as a motive at all.

If we follow the previous rules, Meier says, we avoid all faults in our honour, but we also do so perfectly. We still have to make our actions proportional. In other words, we should not avoid defects in our honour too much, because it is not our greatest evil, but also not too little, and the nastier the type of defect, the more it should be avoided.

Correct avoidance of defects of honour should have a proper object, Meier says. This means, firstly, that we should never avoid apparent despise, which is actually true honour. Furthermore, we should never avoid defect of honour that we cannot hinder with all our forces. Indeed, Meier explains, we are obligated to understand that people will ignore and despise us without our being able to do anything. Finally, we shouldn’t avoid despise for such imperfections that we cannot avert: for instance, Meier points out, it would be a sin to be ashamed of natural ailments of one's body.

Just like with honour, Meier notes that the fear of disrespect must arise from obscure and from confused and from distinct representations, that is, we should follow our natural and inborn shamefulness, sensuous dislike of disrespect and free and distinct decision to avoid disrespect. Of these three, the natural drive by itself is to be used only for avoiding the most insignificant types of disrespect, sensuous dislike for more significant types and distinct decision for most significant types. Then again, even in the more significant cases, the less perfect forms of representation can help to strengthen the determination to avoid disrespect.

Meier thinks that we are obligated to prove our fear of disrespect also through works and thus to act according to it. We should avoid all despicable imperfections and actions, as much as it is in our power, for instance, we should avoid disgraceful actions and acts against rules of justice. We should not continue, but stop despicable things we have already done and replace them with respective honourable perfections. We should even apologise for disrespect we do not deserve, Meier insists, if it is otherwise worth it to apologise and if higher duties do not obligate us to entirely ignore apologising.

According to Meier, we are obligated to make use of all things, and this means also any disrespect afflicting us. In other words, if we are despised, we must take it as an opportunity to improve ourselves, that is, we should purify ourselves from imperfections for which we are disrespected. We should even thank our despisers for opening our eyes and giving us a motive for improving ourselves. Indeed, we should avoid mean persons, who think that the greatest good is to be found in a state of being ignored, because no great soul does not choose such phlegmatic way of life, but is not afraid, even if their first actions in the world caused some disrespect.