All this is to be here
viewed a priori, according to the rational conditions of right,
without taking into consideration how such a constitution is to be
actually established or organized, for which particular statutes,
and consequently empirical principles, are requisite.
The question, then, in this connection, is not merely "What is right
in itself?" in the sense in which every man must determine it by the
judgement of reason; but "What is right as applied to this case?" that
is, "What is right and just as viewed by a court?" The rational and
the judicial points of view are therefore to be distinguished; and
there are four cases in which the two forms of judgement have a
different and opposite issue. And yet they may co-exist with each
other, because they are delivered from two different, yet respectively
true, points of view: the one from regard to private right, the
other from the idea of public right. They are: I. The contract of
donation (pactum donationis); II. The contract of loan (commodatum);
III. The action of real revindication (vindicatio); and IV.
Guarantee by oath (juramentum).
It is a common error on the part of the jurist to fall here into the
fallacy of begging the question by a tacit assumption (vitium
subreptionis). This is done by assuming as objective and absolute
the juridical principle which a public court of justice is entitled
and even bound to adopt in its own behoof, and only from the
subjective purpose of qualifying itself to decide and judge upon all
the rights pertaining to individuals.
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