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it was a faculty for the study of Sancta 'lustitia, devoted to
the education of those who were to administer the affairs of
government and exercise the judicial function. Both these
conceptions, of government and judicial power, were derived
from the fundamental conception of the Supreme Authority.
The folly of separating the powers of state had not yet been
invented, and the intrinsic unity of all legislative, judicial,
and governing power stood still firm in the common mind.
Authority was exercised over men upon earth ; this authority
was not original with man, but was conferred of God upon
the magistracy. Hence the way in which this authority was
to be exercised by the magistracy was not left to the arbi-
trariness of despotism, but this authority fulfilled its end



Chap. IV] § 53. THE FIVE FACULTIES 201

only when it operated in harmony with the order of human
society ordained of God. The Laws and reguhitions to
which this authority bound its subjects and itself were
obliged, therefore, to meet a fixed claim ; and this claim had
been established by God himself in the ordinances of his
Creation, and had received its fuller interpretation in his
special Revelation. Hence, though whatever the magistracy
ordained as law was actually valid, as such, within the
circle of their authority, and though as such it bound the
conscience formally, the obligation that this enforced law
should legitimate itself as law before a higher tribunal, and
in other v/ays be corrected, could not be ignored. From
this obligation the study of law in the higher sense is born ;
for profound and scientific study alone can obtain an insight
into the nature of law in general, and into the special rela-
tions of law, as they should be in order to correspond to
the relations which have been divinely ordained in creation
and by history mutually between man and man or among
groups of men.

The view, which formed the point of departure in this,
was accurate in every way, viz., that there would have been
no need of a magistracy, nor of the regulation of law, nor of
a consequent study of law, if there had been no moral evil
among men. In a sinless state, the correspondence of the
social life to the demands of the holiest law would be spon-
taneous. Hence, when this faculty originated, it was still
the common confession that sin alone was the cause that one
man was clothed with compulsory authority over the other.
In a sinless society every occasion for the appearance of such
a compulsory authority would fall away, because every one
would feel himself immediately and in all things bound by
the authority of God. And so it has come to pass that the
Juridical facult}^ as well as the Medical and the Theological,
has disclosed the tendency to oppose an existing evil. If
the Theological faculty tended to militate against evil in the
heart of man, and the Medical to overcome evil in the human
body, in like manner the Juridical faculty has tended to
resist evil in the realm of Justice. In connection with this,



202 § 53. THE FIVE FACULTIES [Div. II

the Juridical faculty bore a consecrated character. It did
not study human relations in its own self-sufficiency, but
realized its calling to lead the authority imposed of God
upon men into the path of Right ordained by Him. Mean-
while this almost sacred origin of the Juridical faculty does
not prevent science from introducing the logical purpose
of all science more prominently into the foreground of the
Juridical domain, and from giving an account of the place
which these studies also occupy in the organic unit of
science. Viewed in this way, a proper, well-defined place
in the object of general science should also be allotted to
this study ; and in this sense there is no objection against
seeking this proper domain of the juridical science, this
provincia juris, in the social relations of man. The great
development of the sociological and economical auxiliary
departments shows, that the study of law actually moves in
this direction, while no one seriously thinks of separating all
sociological and economical studies from this faculty and
of classing them with the Philological faculty, or, as far
as the material object of economical studies is concerned,
with the natural philosophical.

It would be a serious matter, however, if for this reason
the original juridical character of this faculty should be
abandoned, and if gradually and by preference it should be
allowed to merge into a sociological faculty. If there is
apportioned to this faculty the study of all that originates
the social life of man, makes it real, and belongs to its
nature in its broad extent, then ethics would gradually
claim a lodging with it, the life of science and art would
come under its care, pedagogy would have to recognize its
authority, and the technique also of agriculture, commerce,
and of trade would partly come under its rule. It is
necessary, therefore, to limit tlie object of this faculty by a
more accurate definition, and that closer definition can be no
other than that this faculty is concerned with human society
only in so far as this calls out the Jural Relationships. Thus
authority will ever be the characteristic of this faculty,
since authority alone is able to verify these Jural Relation-



Chap. IV] § 53. THE FIVE FACULTIES 203

ships as Law, to maintain them where they are normal, to
modify them where they are abnormal, and, where they are
still undeveloped, gradually to cause them to emerge. This
is as valid for the Jural Relationships between the magis-
tracy and their subjects as for the Jural Relationships of
these subjects mutually, and of the nations at large. The
sociological and economical studies in this faculty are not
charged with tracing abstractly the organic relation among
people at every point, nor yet with viewing from every side
the relation between our human social life and property ;
but it is their exclusive task to obtain such an insight into
this twofold and very important relation as shall interpret
the Jural Relationships it implies, and shall discover to the
magistracy what in this domain it must and must not do.

In fact, the study of the Juridical faculty will always
be governed by the principles professed with reference to
authority. If authority is considered to have its rise from
the State, and the State is looked on as the highest natural
form of life in the organism of humanity, the tendency
cannot fail to spring up to deepen the significance of the
State continuously, and even to extend the lines of authori-
tative interference, which Plato pushed so far that even
pedagogy and morals were almost entirely included in the
sphere of the State. Indeed, more than one sociologist in
the Juridical faculty is bent upon having his light shine
more and more across the entire psychical life of man, in
the religious, ethical, resthetical, and hygienic sense. If
sooner or later the chairs of this faculty are arranged and
filled by a social-democratic government, this tendency
will undoubtedly be developed. If, on the other hand, it
is conceded that authority over man can rest nowhere
originally but in God, and is only imposed by Him upon
men with regard to a particular sphere, this impulse to
continuous extension is curbed at once, and everything that
does not belong to this particular sphere falls outside of the
Juridical faculty. In the moral life, which is not included
here, God himself is the immediate judge, who pronounces
sentence in the conscience and various temporal judgments



204 § 53. THE FIVE FACULTIES [Div. II

in tlie world, and ^vlio will utter final judgment in the last
day : while public authority must appoint law only upon
the earth, and must pronounce sentence as judge upon
that alone which can be legally established and maintained
in the external relations of life by compulsion. Hence ethics,
as touching the relation of man in foro interno, will remain
in the Theological and Philological faculty ; pedagogy, as
bearing upon the psychic life, belongs in the Philological
facult}'" ; liygiene remains Avith the Medical ; the material
side of property finds its stud}^ in the faculty of Natural
Philosophy ; while all that touches the real technics is
treated by the Artes and not by the Scientice. Thus the
Juridical faculty stands in organic relation to all the others ;
it cannot forego the assistance of any ; it must borrow data
(Lehnsiitze) from all ; but it does not lose itself in these
studies, while the object of its own science is the social
life of man, not as abandoned to whim or accident, but as
governed by an authority, and thus bound to a law, which
is indeed framed by man, but which finds its deepest ground
and Ijence its binding rule in Him who created this human
social life, and who, in the interests of its outward relations,
on account of sin, conferred authority upon man over man,

Tlie science of Law, therefore, is not onl}- to shed light
upon the relation of the magistrate and the subject (public
law and penal law), upon the relation of citizen to citizen
(civil law, commercial law, etc.), and upon the relation of
nation to nation (international law); but, before all this, it
must develop the idea of Justice itself, so that it can be well
understood at what view-jDoint it takes its stand, and accord-
ing to what rule the development of law must be guided.
I'o accomplish this, it cannot rest content with the investi-
gation of existing Jural institutions, their comparison with
others, and a study of their historical origin. All this can
never effect more than the knowledge of formal law ; while
Justice exhibits itself in its majesty only when it obtains its
adamantine point of support in our psychical existence, and
of necessity flows from what, to our deepest sense of life, is
highest and holiest. The question whether one worships



Chap. IV] § 53. THE FIVE FACULTIES 205

tliis highest and holiest in the living God, or whether it is
sought in the pantheistic idea, or in the pressure of natural
life, determines, really, the entire course of our further studies.
But in any case the science of law must fix its point of de-
parture, formulate its idea of justice, and make clear the vital
principle of law. To do this it must borrow its data from
Theology, Psychology, and Philosophy in the general sense,
but by a proper Philosophy of Imv it must work out these bor-
rowed data independently Avith a view to Justice, and unite
them organically into one whole, in which the self-conscious-
ness of Law expresses itself. The Encyclopedia of the science
of law does not preclude the necessity of a separate study of
the philosophy of law. For the object of Encyclopedia is not
law itself, but the science of law, and though it is self-evident
that there can be no exposition of the science of Law as an
organic whole without due consideration of the questions
what law is, wliat law is born from, and how we can learn
to understand law, yet the answer of these does not rest
with the Encyclopedia, but is accepted in the Encyclopedia
as already determined ; and this is only possible when in the
organism of the Science of law the Encyclopedia also finds
the Philosophy of law, with its results.

By this we do not detract in the least from the signifi-
cance of the historical study of law. That historical study
includes by no means merely the explanation of existing Ju-
ral institutions in their origin, but at the same time points out
the forms which the character of our human nature, in con-
nection Avith national and climatic differences, have given to
law, and according to what process these forms have devel-
oped themselves one from the other. It also aj^pears from
these historical studies, that the development of law has been
more normal in one direction, and that in definite circles tlie
development of law has exhibited a classical superiority.
What we contend is, that no criticism or even a mere judg-
ment is possible, unless a critic is present subjectively in the
investigator, and the authority which gives law its sanction
determined in advance. Even where this criticism is rejected
from principle, and in a pantheistic sense the distinction be-



206 § 53. THE FIVE FACULTIES [Div. II

tween right and wrong is actually abolished, in order to recog-
nize laAV only in that which is in force as such as long as it
maintains itself, there is a premise already in this, and back
of this premise an entire system, that dominates our entire
science of law. Even where one eliminates the Philosophy
of law, the start is made insensibly, i.e. without a clear
self-consciousness, from a point which the Philosophy of 1+iw
alone can scientifically justify ; and for this reason the omis-
sion of this study is at heart an insincerity.

Concerning the grouping of the several departments of
study in this faculty, no one will longer defend the method
of Kirchner of placing the fountain-studies, such as herme-
neutics, criticism, and diplomatics in the foreground as the
exegetical group. These are simply not juridical departments,
but philological, and are here specially applied to documents
of juridical contents. In this faculty also the grouping
should derive its principle of division (^principiuyn divisionis')
from its object, and hence this principium can only lie in
the several elements, among which the Jural relationships
are observed, i.e. government and subject, people and peo-
ple, citizen and citizen. The fourth relation, God and
Sovereignty, we purposely omit, because law also runs its
course where this relation is not recognized or is even
denied, and wdiere the prerogative of Sovereignty is ex-
plained in other ways. From this, however, it follows that
the three lines of relations which we have named form only
the particular part in the juridical science, and that these
three studies, which together form the particular part, must
be preceded by a general part on Laiv as such. This general
part should embrace the two departments : (1) The pJdloso-
phy of Law ; and (2) the history of Law ; to which, for rea-
sons fully developed above. Encyclopedia can be added
(although, even as with the other faculties really a philo-
sophical study), in an irregular way. Of course it is not
denied that the three portions of the particular part have
each a history of their own, but we are so fully convinced
of the common fundamental trait which dominated these
parts in every period and with every people, that Roman



CiiAP. IV] § 53. THE FIVE FACULTIES 207

law, Germanic law, etc., are generally spoken of in an uni-
versal sense. Upon this general part follows the particular
part, which falls into three : Public law. International law,
Civil law, each with their auxiliary sciences. Public law
divides itself again into public law in the narrower sense
and Penal law, and to penal law the theory of procedure is
added as a subdivision. Those which, on the other hand, are
taken separately as political sciences, i.e. statistics, econom-
ics, politics, diplomatics, sociology, etc., are only auxiliary
sciences which keep public law especially, but civil law also
in part, from feeling their way at random, and help them to
walk in the broad light of the knowledge of facts, condi-
tions, and relations. The difference is that in olden times
the unconscious life was stronger, and hence also the sense
of law, since custom of itself determined all sorts of rela-
tions which now in our more conscious life are only obtained
as the result of investigation. Of course material goods are
here considered only in so far as they are subsumed under
man, and thereby are brought under the conception of law,
or at least can exercise an influence upon the decision of the
relations of law. The relation between gold and silver, for
instance, would of itself be entirely indifferent to the jurist,
but it becomes of importance to him as soon as the question
arises, in what way the government in its monetary sys-
tem is to decide the relation between them. We cannot
enter into further detail. To analyze more closely the sev-
eral characteristics of civil law, commercial law, maritime
law, etc., lies not in our province, and the fact that legal pro-
cedure, political science, etc., bear less a scientific than a tech-
nical character is self-evident. Our only purpose has been to
explain that side of the science of law on which it lies organ-
ically linked in the organism of general science, and to indi-
cate the partly sacred character which the Juridical science
must maintain, for Justitia must remain sancta or cease to be
Justitia, and for this reason it stands in immediate relation
to the two great problems, of how authority from God comes
to man, and whether or no it has been conferred upon man
simply because of sin.



208 § 53. THE FIVE FACULTIES [Div. II

The faculty of Natural Philosophy can be considered more
briefly. There is only one difference of opinion about the
object of physical science. This arises from the fact that
the mathematical and arithmetical sciences were formerly
classed with Philosophy, while at present the tendency is
stronger to class them with the physical sciences as the sci-
ences of the relations of physical data. Those Avho liold
these relations to be unreal, or at least explain them in the
main as mhjective^ are obliged, for the sake of logical conse-
quence, to prefer the custom of the old philosophy, and group
these departments with the psychical studies. Since, how-
ever, the impression has become more universal that science
in general and therefore each particular science, must seek its
strength in the knowledge of the relations even more than in
the knowledge of the elements among which these relations
exist, it is not probable that with reference to the disposi-
tion of Mathematics and Arithmetic the subjective tendency
will again gain the day. It is entirely true that our liuman
consciousness is adjusted to measure and to number ; else
the most industrious effort would never bring us the concep-
tion of geometry or arithmetic. It is also entirely true that
the laws which dominate the combination of measures and
numbers, or, if you please, the Logica of measure and number,
must find a point of connection in our human consciousness ;
else we should never be able to propound or solve an abstract
problem in mathematics or arithmetic. This, however, does
not take away the fact that it is the cosmos outside of us
that first brings measure and number to our consciousness.
On this ground there seems to be no objection to classing
Mathematics, Algebra, and Arithmetic as three formal depart-
ments under the physical sciences. For the material depart-
ments, however, the principium of division here too lies in
the object of physical science. This object ascends from the
elements of nature to the cosmos, and in this ascent it fol-
lows the scale of the so-called natural kingdoms of our earth,
and of that which has been observed in the cosmos physically
outside of our earth. Hence those departments come first,
which investigate the elements (matter as well as force), and



Chap. IV] § 53. THE FIVE FACULTIES 209

Avliich are to be embraced under Physiea and Chemistry.
Then come the sciences which investigate certain groups of
elements in their organic relations, i.e. Mineralogy, Botan}^
and Zoology. After that come the studies which direct
themselves to our earth as such, viz., Geology, Geography in
its broadest extent, and Meteorology. And lastly follows
Astronomy ; and finally Cosmology., as embracing the whole.
Let no one imagine, however, that all these sciences as
such belong to the so-called exact sciences. No one will be
able to assert this of Cosmogony, and the evolution-theory
of Darwin sufficient!}^ shows that natural philosophy cannot
afford to limit itself to the simple results of weight, number,
and measure. The simple observation of what one hears, sees,
t;istes, and handles, even with the aid of instrumental rein-
forcement of our senses, and under proper verification, is
never anything more than the primitive point of departure
of all science and stands formally in line with common per-
ception. Only by the discovery of the laws which exercise
general rule in that which is particular does this science
raise itself to its second stadium, and become able to exer-
cise authority over matter. But though in this way it ma-
terially aids in establishing the dominion which was given
man over all created things, and though physical science
has contributed the valuable result that it has exalted the
independent human consciousness and has set us free to so
large an extent from the dominion of matter, it has by no
means yet satisfied the highest scientific need. As long as it
knows nothing beyond the several data and the law by which
these data are governed, the thinking mind cannot rest. It
searches also after the relations among the several king-
doms of nature, between our earth and the other parts of the
cosmos, between all of nature outside of us and man, and
finally after the origin of nature and of the tie which binds
us to it, even in our body. These are the points of connec-
tion between the faculty of Natural Philosophy and the other
faculties : and the fact that physical science inclines more
and more to announce itself as the only true science, in order
to coordinate man witli the objects of zoology, and to explain



210 § 53. THE FIVE FACULTIES [Div. II

the psychical life materialistically, shows how ill-advised it
is to allow this physical science to make only practical ad-
vances, Avithout attaining encycloi^edically to self-conscious-
ness and giving itself an account of the place which it
occupies in the great organism of science. A scientific Ency-
clopedia, worthy of the name, is the very thing it altogether
lacks ; and only when it makes serious work of this can the
question be answered, whether as a culminating department
Pldlosophy of nature belongs to this faculty.



If now the outline of the four named faculties has been
drawn fairly correctly, the question arises whether the
Theological faculty joins itself to them in organic connec-
tion, with a proper object, and in good coordination. To
make this clear it will not do to begin by making the con-
ception of Theology fluid. All judgment concerning the
Juridical faculty is rendered impossible so soon as you
interpret it now as the facultas juris, or legal faculty, and
again as the facultas societatis, or sociological faculty. Much
less will a way of escape be discovered from the labyrinth
on theological ground, if by Theology you understand, now,
that which was originally understood by it, and again
supersede this verified conception by an entirely different
one, such as, for instance, the Science of Religion. The
study of the nature of Theology is in order in the follow-
ing division, so that in this chapter we can do no other than
state the conception which we start out from, and after that
review the Theological faculty, and in historical connection
with this determine the place of Theology in the organism
of science. Because of the importance of the subject Ave
do this in a separate chapter.



CHAPTER V

THEOLOGY LN THE OKGAISTISM OP SCIENCE

§ 54. Is there a Place for Theology in the Organism of

Science ?

The raising of this question intends no coquetry what-
ever with much-boasted "science." The theologian who,
depressed by the small measure of respect cherished at
present by public opinion for theological study, seeks favor
with public opinion by loudly proclaiming that what he
studies is science too, forfeits thereby his right to the
honorable name of theologian. Suppose it were demon-
strated that Theology is no science, but that, like the
study of music, it is called to enrich our spiritual life,
and the consciousness of that life, in an entirel}^ different
wa}^, what would this detract from its importance? Does
Mozart rank lower than Edison, because he did not work
enchantments, like Edison, with the data of the exact
sciences? The oft-repeated attempt to exclude Theology
from the company of the sciences, and to coordinate it, as
something mystical, rather with the world of sounds, was in
itself entirely praiseworthy, and has commanded more respect
from public opinion in general than the scholastic distinc-
tions. If thus it should be shown that Theology has no
place in the organism of science, it would not lower it in the
least, even as, on the other hand. Theology would gain no
merit whatever from the fact (if it be proved) that it has



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