A New Critique of Theoretical Thought. Deel 2. The General Theory of the Modal Spheres

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Chapter V
The subject-object-relation in the modal aspects

§ 1 - Introductory formulation of the problem.

In our investigation of the functional modal structure of the law-spheres, each with its nuclear moment, retrocipations and anticipations, we discovered the correlation between the subject-side and the law-side of each aspect. Meanwhile we repeatedly came across a peculiar relation between subjectivity and objectivity manifesting itself both on the law-side and the subject-side of an aspect. For instance, it appeared that the optical picture of space in the cosmic coherence of temporal reality is a sensory objectivation of the original spatial aspect in the modal structure of the psychical law-sphere. This objective spatial analogy appeared to be only possible in its indissoluble connection with subjective spatial feeling. In the modal aspect of language we found the coherence between subjective symbolical signification and objective sign; in the historical aspect we found the coherence between subjective cultural activity and its object, and between subjective historical relations and the historical object-function of natural facts, etc.

This raises the question whether the subject-object relation discovered here is restricted to certain law-spheres, or whether it has a universal character and can be found in all the aspects of temporal experience.

If it should appear that the subject-object relation is not universal, we must inquire after the cosmic foundation of this relation in the temporal meaning-coherence of the modal aspects. In the present context the whole problem is kept within the cadre of the theory of the modal spheres, in which we are concerned with the functional analysis of the modal meaning-structures. This strong abstraction in our formulation of the problem is a methodological necessity because the modal, functional structures lie at

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the foundation of the individuality-structures of temporal reality. Consequently, the latter cannot be conceived apart from the former.

When in the third Volume we again have to examine the subject-object relation within the typical total structures of individuality, we shall have to refer to the results of our inquiry in the present chapter, in which the methodical basis is laid for later discussions.

§ 2 - The subject-object scheme in immanence philosophy.

In immanence philosophy the problem concerning the modal structure of the subject-object relation has never been raised, and could never be raised in the sense intended here. Yet, this relation plays a central part in modern thought insofar as it is used as a schema for a first orientation in the cosmos. This schema has not been obtained from a truly cosmological analysis of the structure of human experience, it is rather imposed on reality in consequence of the immanence-prejudice.

The subject-object schema of modern immanence-philosophy has a confusing multivocality, which has already done a great deal of harm in philosophical thought. It originates in epistemology as a schema of ‘theoretical reason’, and it is also handled as a schema of ‘practical reason’.

Immanence-philosophy objectifies empirical reality either with regard to a cognitive or to a volitional subject. ‘Object’ is identified in this case with that to which our mental activity in thought or volition is directed.

The subject-object relation in Scholastic philosophy, and in modern pre-Kantian metaphysics.

Scholastic philosophy at least distinguishes the intentional object of cognition from the subjective reality of things.

‘Esse objective’, as a merely intended being (‘esse intentionale’), is opposed to ‘esse subjective, formaliter, in rē, extra nostram mentem’ etc.¹.

Descartes, too, still holds to this distinction² and in modern times F. Brentano applied the Scholastic doctrine of intentional objectivity to all psychical acts. In pre-critical philosophy the distinction between ‘subjective’ and ‘objective being’ was still

1 Cf. e.g. Thomas Aquinas. In L. 1 Sentent. 23, 1, 3c; Suarez, Metaph. disputationes II, sect. 1, 1.

2 Meditationes III, Princip. philos., I, 57, 67, 70, 199.

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possible as the ‘subject’ was conceived in the sense of ὑποϰείμενον, ‘substance’. A subject was either identified with a ‘thing’ (rēs), or with ‘substance’ in a narrower sense as the bearer of the ‘accidentia’. At the same time this subject was taken to be a real extra-mental ‘Gegenstand’ of our mental activity of thought or volition.

In this view the grammatical-logical subject-concept as that to which the predicates in a judgment refer, played an important rôle. The metaphysical subject was conceived as that which cannot become the predicate in a judgment, because the predicate can only refer to ‘accidentia’.

The subject-object relation as an epistemological schema and the identification of the object and the ‘Gegenstand’ of theoretical knowledge.

Not before Kant did the concept of the subject-object relation become a real epistemological schema. Kant conceived of the subject in an epistemological sense as the transcendental pole of thought to which the entire empirical world, inclusive of ‘empirical’ psychical subjectivity, is opposed in the counter-pole of the objectivity to be determined by this subject. Since then we constantly find the identification of the ‘object’ and the ‘Gegenstand’ of knowledge in Humanistic philosophy. In Kant the things that we experience have objective ‘Gegenständlichkeit’ insofar as they are products of a formative process which connects transcendental thought and sensory intuition according to the rules of transcendental synthesis.

The transcendental subject, elevated above all empirical individuality, is the origin of all universal validity, objectivity, ‘Gegenständlichkeit’ in ‘empirical reality.

This ‘objectivity’ is identified with universal validity, law-conformity, and as such opposed to ‘empirical’, individual subjectivity.

In Fichte's subjective freedom-idealism the object as the non-I, as the counterpole to the transcendental I, turns into ‘the sensualized material of our duty’. This subject-object schema appears in all possible manners of precision and variation in Humanistic philosophy. It may be interpreted in a (critical) realistic sense, so that a ‘thing in itself’ is assumed to exist behind the empirical object. It may be interpreted in an idealistic sense, in which case the philosopher breaks with the metaphysical ‘thing in itself’.

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Starting from the so-called empiricist nominalistic tendencies that have been operative since Greek sophistic, the Humanistic subject-object schema can be taken in a psychologistic sense in which the ‘critical-transcendental’ view of subject and object is given up, etc. But in all cases it is serviceable to an obliteration of the modal structures of the different aspects of experience.

The only general distinction that is accepted in this scheme is that between cognitive and volitional objects. In an extremely subtle way this distinction has been adapted to the basic structure of the Humanistic cosmonomic Idea, by means of which philosophic thought on its own authority undertakes to construct the cosmos in accordance with the aspects of the science-ideal or the personality-ideal.

Immanence-philosophy must take an arbitrary starting-point when it embarks upon an inquiry into the subject-object relation. If the immanence-standpoint is to be maintained, it must eliminate from its pre-suppositions the cosmic order of time in which the subject-object relation is founded.

And thus there is no longer any possibility to get an insight into the rich modal varieties of meaning of the subject-object relation. In the old pre-Kantian metaphysics, as well as in nominalistic so-called ‘empirical’ psychologism, both in critical transcendental philosophy and in phenomenology, objectivity is only conceived in correlation with the immanent subjective cognitive and volitional functions.

In all these conceptions there is no room for the cosmological analysis of the different modal structures of the subject-object-relation. The ‘object’ becomes a ‘general notion’ serving to level out the modal boundaries between the law spheres. The foundation for ‘objectivity’ can then only be found either in a metaphysical concept of substance, or in a transcendental-logical synthesis, or in an ethically necessary tension between ‘nature’ and ‘freedom’ in the ‘transcendental consciousness’ itself, or in a common root of subject and object in ‘being’. Such is the case, insofar as at least any attempt is made to give account of this foundation.

A radical break with this subject-object schema of immanence-philosophy is necessary, if we are to conceive the subject-object-relation in the intermodal coherence of cosmic time.

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§ 3 - The coherence between the modal subject-object relation and the retrocipatory meaning-structures of a law-sphere. The subject-object relation in the modal aspect of feeling

The internal modal subject-object relation in contrast to the theoretical ‘Gegenstand’-relation.

What is to be understood by a modal subject-object relation?

An object in a modal functional sense is always an object to a modal subject-function coordinated with it within the same law-sphere. The modal subject-function, insofar as it is the transcendental correlate of the modal object, can no more be objectified in the same modal aspect than it is possible for the modal object-function to be a subject within the same modal sphere. The modal subject is the active pole on the subject-side of the modal aspect, whereas the modal object is the passive, merely objective pole.

From the Prolegomena we know that it is especially important not to confuse the modal object with the ‘Gegenstand’ of theoretical thought. That which is opposed to our theoretical-logical function of thought can never have the same modal meaning as our logical subjectivity.

Modal objectivity cannot be reduced to modal law-conformity.

Equally confusing is the prevailing identification of objectivity and universally valid law-conformity. This is done by the customary method of contrasting what is merely individual and subjective with what is universally valid and objective. In this way the insight into the modal structure of the subject-object relation is made impossible. In all the modal law-spheres in which this relation is to be found it has a subject-side as well as a law-side.

On the subject-side neither the subject nor the object can be reduced to universally valid law-conformity. On the law-side the subject-object relation functions in the sense of a rule of this relation which determines the subject- and the object-function only in general.

In the concrete actualized individuality-structure of reality, however, subject and object within the same law-sphere are both individual. That is why a sharp distinction should be made between the two sides of the subject-object relation even in its

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modal structure. For in its realization this modal relation has always individual relata on its subject-side.

A modal object-function, however, has a different individuality from that of a modal subject-function. That is why in general its individuality is indifferent to that of the modal subject. An individual modal object is an object to any subject whatsoever which in the same modal aspect has the same typical relation to it.

Nevertheless the relation itself can also assume an individual character. This is the case when the object is the result of the formative activity of an individual subject, or when the latter has acquired the exclusive use of the object. From this it appears that also the relation between an individual subject and an individual object cannot be reduced to a general or typical law.

In the present context this complicated matter cannot be further examined. It is necessary to abstract from the structures of individuality in order to gain an insight into the modal basic structure of the subject-object relation. Our enquiry is only concerned here with the functional structure of this relation in the intermodal meaning-coherence as it is determined by the cosmic order. In this examination the arbitrary starting-point, ruled out in the preceding section, should be avoided. The modal subject-object relation should be understood from the intermodal meaning-coherence of the law-spheres themselves.

If this meaning-coherence is kept in view, it is comparatively immaterial in which of the law-spheres we first examine the modal structure of the relation in question. A truly cosmological analysis of any modal aspect whatsoever remains strictly bound to the cosmic temporal order of the law-spheres and cannot deviate from this order in an arbitrary way. We propose to start with a subject-object-relation which occupies a central place in the psychologistic tendency of the Humanistic epistemology, viz. the subject-object relation in the modal aspect of feeling, manifesting itself in any sensory perception.

From the outset psychology has given special attention to the distinction between the sensory perception of the ‘outer world’, dependent on ‘observation in space’, and the ‘inner’ subjective experience of feelings which does not give us a spatial picture of objective phenomena. It is clear that the subject-object relation in the modal aspect of feeling can only be found in the relation between the subjective sensory aspect of percep-

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tion and the objectively perceptible aspect of the thing perceived, and that this perception must be directed to the ‘outer world’. The sensory aspect of the activity of the imagination will be left out of account for the present, because this point can only be made clear when it is contrasted with the sensory perception of the objectively perceptible ‘outer world’. The term ‘outer world’, and the terms ‘äussere’ and ‘innere Sinn’, are evidently used for want of better words and cannot teach us anything with regard to a cosmological analysis of the psychical subject-object relation. The words ‘outer’ and ‘inner’ have an evident spatial meaning, and are therefore confusing, when one tries to express a contrast with spatial perceptions by means of the word ‘inner’.

To gain a clear insight into the modal structure of the psychical subject-object relation, it is necessary to ask the question: ‘What aspects of reality can be objectified within the psychical law-sphere in the sensory image to which subjective sensory perception is related?’ This question cannot be framed correctly unless we break with the custom (originated in metaphysics) of turning the word ‘psychical’ into a collective noun signifying the whole of the concrete subjective activity of our consciousness. The provisional analysis of the modal field of research of psychology has shown that perception, representation, remembrance, volition etc. are concrete human ‘acts’, which as such cannot be enclosed in a modal aspect of reality, but have only a modal function within the psychical law-sphere. And the modal nuclear moment of the aspect of experience which we have called ‘psychical’, appeared to be ‘feeling’. This term is to be taken not in the sense of a subjective phenomenon but as the qualifying moment of the modal structure of the aspect concerned.

The necessary functional coherence between a sensory subjective feeling of extension and an objective sensory image of space.

It appeared to be necessary to break with the mechanical view that ‘outward’ sensory impressions can be isolated from ‘inner feelings’ as if they were separate psychical elements lacking the modal meaning of ‘feeling’.

The objective sensory space of perception functions in the modus of emotional sensibility and is fitted indissolubly into a functional-structural coherence with subjective emotion. But for

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our subjective feeling of extension we could not perceive any objective sensory image of space. The space of sight, that of touch and the more rudimentary space of hearing (investigated by Brentano, Stumpf, v. Hornborstel; and by Katz-Engelmann in animal psychology) have a very different objective-sensory structure. Nevertheless it has been established as an undubitable fact that they function in a structural coherence with each other in the concrete sensory perception of space¹.

Physiology has shown that the organs forming the substratum for the feelings of vision and touch are connected in a functional-organic coherence², so that between the feelings of sight and those of touch there exists an innate association based upon the biotic coherence of the organs³.

The optic objective picture of space, dependent on the impressions made by light, is a projective and limited spatial picture. In itself being two-dimensional, it becomes a three-dimensional complete sensory picture of space only when it is associated with the non-projective tactile image related to the feelings of touch and movement.

It is therefore impossible to resolve the sensory perception of space into merely passive impressions. The objective sensory picture of space cannot exist without its structural relation to our active subjective feeling of extension in its subjection to the universally valid laws of spatial sensory perception.

Now it appears that the possibility of objectification in the modal aspect of feeling is primarily bound to the retrocipatory structure of this modal aspect.

1 Cf. the inaugural oration of G. Revész: Het psychologische ruimte-probleem (1932).

2 i.e., the nerve cells of the motorial apparatus of the eye are connected with those of the ampullas of the semi-circular canals in the labyrinth of the ear. Flourens, Goltz and E. v. Cyon discovered that our sense of the directions of movement in the sensory picture of space is founded in this labyrinth.

3 Cf. A. Riehl: Der phil. Kritizismus II, (2nd edit. 1925), p. 174 note.

Implicit objectification in the modal aspect of feeling.

The subjective modal functions of number, space, movement, energy, and organic life can be psychically objectified in the (objective) space of sensory perception⁴, because in the modal

4 Naturally this does not mean that the original meaning of number, space, movement, energy, and organic life may be sensory perceptible. It means only that in the objective sensory space there are objective analogies of them to be found which refer back to these original modal functions.

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aspect of feeling we find the retrocipations (analogies) of these modal functions of reality.

And in the objective sensory image to which subjective sensory perception is related, the objectifications of the above-mentioned subjective modal functions of empirical reality (preceding the psychical function) are implicit. This means that it is not possible to objectify the organic biotic function in any other way than in a mobile spatial picture with a multiplicity of sensory qualities.

In other words, the psychical objectification of the organic biotic function implies that of the modal aspects in which the organic biotic function is itself founded in accordance with the temporal order of the law-spheres. And a corresponding state of affairs is to be established with respect to the pre-biotic functions, which are founded in the first terminal aspect of experience.

The objectification of pre-psychical modal subject-object relations in the aspect of feeling.

The subject-object relations of the earlier law-spheres can also be objectified in the psychical aspect, viz. in the objective sensory image of a natural event. When I perceive with my senses how a mother-bird is feeding its young ones in its nest, the psychical modus of objectifying the biotic subject-object relation is also contained in the objective sensory image of such animal behaviour.

The biotic subject-object relation as such has been actualized in the concrete behaviour of the animals themselves with respect to their food. In my perceptual picture I really see the sensory analogy of this subject-object relation before me objectively. This entire objective sensory image is related to the possible subjective sensory perception of every observer. In the objective perceptual image I see the animals move and take food in their nest in an actual subjective way.

The sensory analogy of the biotic subject-object relation in its actuality is thus objectively perceptible by means of the senses.

This statement is correct in so far as one does not for a moment lose sight of the fact that this sensory perceptibility is only possible in the temporal interlacement of the actual subjective biotic and psychical functions. One should never try to resolve the biotic subject-object relation in its original modal meaning into sensory

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impressions, as is done by psychological empiricism. The original objective sensory image always refers back to actual pre-psychical subject- (respectively subject-object) functions objectified in the original sensory perceptual image. This is their essential characteristic.

Such an actual reference is absent in hallucinatory images, in those of the imagination and those of dreams. In the images of our memory this actual reference is only of a reproductive nature.

Besides, the dream-image and the pathological hallucination lack the sense of identity on the part of the subject.

The representational relation (Abbild-Relation) within the objective perceptual image. The pre-psychical aspects cannot be psychically represented and do not produce a psychical copy.

When in the objective sensory perceptual image, say of a real piece of cloth or paper e.g., some representations have been objectified, the psychical subject-object relation becomes still more complicated. In order to understand this intricate psychical object-structure modally, the original objective perceptual image must be sharply distinguished from its representation in sensory objectivity.

There can never be a representational relation between the original objective perceptual image and the actual pre-psychical subject- (and subject-object) functions. For a sensory representation (copy) pre-supposes a sensory original image, and as such the pre-psychical aspects of reality cannot occur. A representation, as such, is not originally objective; it is merely the optic copy of an individual perceptual image within another individual objective perceptual image, and always bound up with the latter in an optical-tactile way. Thus the objective perceptual image of a human being, an animal or a tree, has its inverted optic representation or copy on the retina of the eye.

It is optically perceived only on the condition that in its physico-biotic substratum the stimuli of the incoming rays of light, on the extreme ends of the optic nerves, are transmitted to the brain. The sensory perceptible object-structure of the inverted copy on the retina is obviously a different one from that of the original objective perceptual image.

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A sensory copy is an implicit, dependent object-structure in the modal meaning of the psychical law-sphere.

A sensory copy is unilateraly dependent on the original objective perceptual image whose optic copy it is, and also on the other objective perceptual image in which it is objectified: it has an implicit and an indirect object-structure. These dependent, implicit object-structures may show all kinds of individual complications in the psychical aspect. They cannot be analysed by means of the modal concept of function. Only by analysing the individual thing-structure in which they occur can their nature become theoretically clear to us.

Is an objectification of post-psychical subject-functions and subject-object-relations possible in the objective sensory perceptual image? The modal sphere-universality of sensory perception in the objective direction.

It is not possible to objectify the post-psychical subject-functions and subject-object-relations in an objective sensory perceptual image in the same way as the pre-psychical.

I can perceive neither the subjective-logical function of thought nor objective logical characteristics (e.g., of a bird, or a tree) in the same objective-sensory way in which I can see the movements and spatial shapes of a human being, an animal, or a tree.

Neither is this the case with respect to the post-logical subject-functions and post-logical modal subject-object relations, e.g., that between subjective signifying and the objective sign or symbol, or that between a subjective right and its juridical object.

Does this mean that there exists no possibility at all to objectify them in sensory space?

In the first (Dutch) edition of this work I thought so. But on second thought I cannot maintain this opinion. Already in the third volume of this edition it was implicitly abandoned. If it were true, the sphere-universality of the psychical aspect would be lacking in the objective direction and would express itself only in the opened subjective functions of feeling.

But in this case there could not exist sensory subject-object relations of an anticipatory character, and in the objective direction human perception in its sensory aspect would not be fundamentally distinct from the animal manner of perceiving. Moreover, the objective sensory perceptual image of the human body

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would lack in principle any expression of the logical and post-logical subject-functions and in general of its human character. All these consequences are unacceptable.

The consideration of this problem must consequently be resumed from the viewpoint of the modal sphere-universality of the feeling-aspect in its subject-object relations.

Let us begin by establishing that in the retrocipatory direction of sensory perception the objective analogies of the pre-psychical functions of a thing or event are given in a natural way in objective sensory space, independent of any axiological moment in human sensory perception. This does not mean that in our actual subjective sensory impressions we have an adaequate image of all the objective sensory traits of a thing perceived. It means only that there is given an objective image of the thing perceived whose sensory qualities are perceptible in principle to a normal human sensory perception, so that a one-sided perception may be completed by regarding the other sides of the thing, or an inexact, superficial perception may be improved by a more exact sensory contemplation, etc.

Now it must be clear that, as to its anticipatory direction, sensory perception cannot find in the objective spatial sensory image of a natural thing or event any trait in which an objectification of logical or post-logical functions is actually given without any relation to human valuation.

If in this sensory image there is to be found an anticipatory objective expression of logical characteristics - and this must be so since the naïve concept formation is entirely bound to this image - this expression is only given potentially.

It must be actualized by subjective logical feeling under the direction of the analytical function of human consciousness in its subjection to logical norms. This means that the analytical anticipations in the objective sensory image are related to axiological moments in the subjective sensory perception, and that they are not delimited in objective sensory space in the way of retrocipatory sensory qualities.

As to the subjective logical activity of thought, we must observe that it doubtless may find actual expression in the objective sensory image of the human face. But it is not the abstract logical function which is sensorily objectified in this way, but always a concrete act of human consciousness in which the logical aspect functions. These acts may have different structures of individuality but they never lack the logical function, though the rôle of

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the latter may be completely subordinated to that of the others.

Even human laughing and weeping in its objective sensory expression shows a rational trait by which it is radically distinct from animal expressions of pleasure or pain.

With respect to cultural anticipations in the objective sensory image of a thing or event we meet with a new state of affairs which demands special attention. Everything that is given in nature has a potential object-function in the cultural aspect. But it cannot become a cultural thing proper without undergoing a transformation realized by human cultural activity according to a free project. In this case a new thing has been produced which was not given in nature, and which shows a typical structure of individuality differing radically from those of natural things. It must be clear that this structure of individuality cannot fail to express itself in its objective sensory image. The sensory perceptible shapes, combinations of colours etc. of a chair, a table, a lamp etc. are not found in nature. They betray the cultural characteristics of the things concerned, and these cultural anticipations are indeed realized in the objective sensory image, they are not only given potentially. Nevertheless they are not given to a restrictive subjective sensory perception, but only to an anticipatory perception in which the axiological moments have been disclosed.

Cultural things cannot be sensorily perceived without cultural feeling, anticipating the cultural aspect of human experience and being directed by it. They cannot be sensorily perceived without an anticipation of cultural norms in the implicit valuation of feeling. To animal perception, which is rigidly bound to natural vital needs, they must remain hidden.

Natural things as such can also get an actual object-function in the cultural aspect without being transformed into cultural things.

Plants or animals may be cultivated by man, just as the soil, the water etc. A special examination of these states of affairs from the viewpoint of the typical structures of individuality and their mutual interlacements must be reserved to the third Volume. In the present context we can only observe that the cultural qualities of cultivated natural beings and things must find an anticipatory expression in their objective sensory image and that these anticipatory sensory qualities are given in their realization by human activity.

It has appeared that also natural events can have an actual

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object-function in the cultural aspect as objective historical facts, for instance an inundation, or an earthquake, which destroys a considerable part of a cultural area. Since their objective function as historical facts is necessarily related to subjective cultural activity and its objective cultural results, this relation must also be expressed in their objective sensory image. The sensory perceptible image of the destruction of a cultural area by a natural catastrophe is perceived as a disaster, a calamity.

We cannot perceive it as a sensory objectification of a cultural disaster without an implicit valuation in our cultural feeling which anticipates cultural norms.

But it would be a false subjectivistic interpretation of this state of affairs if it were assumed that this anticipatory moment of valuation in human sensory perception lacks an objective correlate in the sensory image itself. For the latter differs in principle from the sensory image of a natural catastrophe which lacks the function of an objective historical event.

In all these examples of psychical subject-object relations the current conception shows its insuffiency because of its lack of insight into the modal structure of these relations.

Especially the view according to which the sensory aspect of perception is to be conceived outside of the modal meaning of feeling proves to be untenable.

The objectification of symbolical and post-lingual anticipations in the objective sensory image of a thing or event. Conventional and non-conventional, explicit and implicit symbolism.

The anticipatory moments whose objectification in the objective space of sensory perception has been examined until now are indeed perceptible without the intermediary of sensory symbolism. On the other hand the objectification of post-lingual anticipations in the sensory image of a thing or event is not possible without this intermediary. The objective sensory image of a courtesy implies a sensory symbolism anticipating its social signification in the normative aspect of human intercourse. In this case sensory symbolism has a conventional and explicit character so that it may vary considerably in different social circles and peoples at a different stage of cultural development or with a different cultural tradition.

But it is also possible that some sensory symbolism is of a non-conventional nature. In this case it may have either an explicit

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or an implicit character. Non-conventional is in general the sensory symbolism of original aesthetical means of expression. It is explicit for instance in the case of musical themes or motifs designating a dominant mental disposition, and implicit where the combination of the successive sensory sound-images of music symbolizes only an abstract aesthetical structure. It is evident that this sensory symbolism in the sound-images, and the aesthetic anticipations founded in it, are essentially related to symbolical and aesthetical anticipations in the subjective sensory perception. But also here we should guard against every subjectivistic interpretation of this anticipatory subject-object relation. If there were no perceptible symbolic and aesthetical anticipations realized in the sound-image of a musical work of art itself, the whole realizing objectification of the subjective aesthetical conception of the composer in its reproduction by the executing artist would be impossible. For without its sensory objectification this conception could not be realized at all. But this point can only be discussed in its full extent in the third Volume.

The lingual anticipation in objective sensory symbolism which has no natural coherence with the meaning signified. Abstract symbols.

In the present context we have still to pay special attention to sensory symbolism as such, in so far as it has no natural coherence with the meaning signified by the signs.

What does it mean that a symbolical function is objectified in the sensory image of a thing or event which, as such, is qualified as a symbol?

In this case one is always confronted with conventional symbols, since there do not exist natural things which have a typical symbolical qualification, though they doubtless may have an implicit objective symbolical function. They may be called abstract symbols, in contradistinction to things or events which are not qualified by their symbolical function. It is beyond dispute that the signified meaning of an abstract symbol cannot be objectified in its sensory image. It is the very function of such a symbol only to signify this meaning without any perceptible coherence between its sensory image and the meaning intended.

But how can this symbolical function itself be objectified in its sensory image? It must be clear that this indeed is not possible so long as the abstract symbols are only considered as separate

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things or events. The objective optical, auditive or tactile image of an abstract conventional sign (for instance a letter or a numerical symbol, or a sound- or light signal, or a braille sign) is in itself arbitrary.

But let us consider the modal structure of the symbolical subject-object relation itself as it is given within the lingual aspect of experience. For its sensory objectification cannot be independent of the latter. The modal structure mentioned implies cultural, logical and psychical analogies of a retrocipatory character.

A genuine symbol, in contradistinction to a natural animal means of expression, always has a cultural and logical foundation. In the case of a natural symbolism which lies at the foundation of objective aesthetical relations in nature (for instance the objective beauty of a landscape) the objective symbolical, as well as the objective logical and cultural functions of the beautiful natural whole, are only given potentially in relation to human actualization by the corresponding modal subject-functions.

But a conventional and especially an abstract symbol is not found in nature; it is the product of human formation. An abstract symbol does not stand by itself but belongs to a rational system of signs, originated from a free project and controllable in free meaningful combinations, conformable to lingual rules, for instance, of a particular written or spoken language or of a general code language.

But it is also essential to an abstract symbol that its symbolical function is founded in an objective optical, auditive or at least tactile sensory image. So we may conclude that a sensory objectification of its symbolical function is only possible in a successive or simultaneous multiplicity of sensory images whose arrangement betrays an anticipatory coherence with a logical method of distinction and combination and with a controlling (cultural) mode of usage referring to a lingual intention of signifying. These anticipatory moments in the objective sensory total image of the symbolical combinations are naturally related to the corresponding anticipations in the subjective sensory aspect of the act of perceiving.

It has appeared that in the case of abstract conventional symbols, which as concrete perceptible things or events are typically qualified by their symbolical function, the possibility of sensory objectification of their intended meaning is excluded. This is the reason why the possibility of sensory objectification

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of post-lingual functions which have no natural (or at least non-conventional) but only an abstract conventional symbolic foundation, is restricted to the symbols or combinations of symbols by which their meaning is signified.

This is the case with the greater part of ethical, economic and juridical relations, in a differentiated and disclosed human society. It hangs together with the disclosure of logical symbolism by which the analytical function of human thought is freed from its rigid dependence on sensory representations. In this way theoretical analysis may directly anticipate the meaning designated by abstract conventional symbols, whose sensory image has no natural coherence with what is signified by them.

But with respect to aesthetic functions, even in their differentiated and disclosed modal structure, the possibility of sensory objectification is not restricted in this way. The reason is that the specific combinations of symbols by which they are signified are themselves aesthetical means of expression. In their sensory aspect they must consequently be arranged in a sensory harmony which anticipates the original aesthetic meaning signified by their symbolical (lingual) function.

As to the forms of social intercourse it must be established that they can be objectified in the sensory image of human actions in which they are realized. But this is only the case insofar as their original modal meaning is not only signified by abstract conventional symbols, but by a symbolism expressed by the human body itself.

The same thing can be said with respect to the modal subject-functions and object-functions which in the faith-aspect are related to the cult.

An act of praying, for instance, may be perceptible to the eye of sense in the objective sensory image of the kneeling body, the closed eyes, the folded hands etc. The objective pistical qualification of things which have a typical objective destination in the cult (as temples, confessionals, altars etc.) must also in some way find anticipatory expression in their sensory image.

But in all these cases we once again touch upon complicated states of affairs which can only be sufficiently explained in the theory of the typical structures of individuality.

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§ 4 - The subject-object relation in the modal aspect of space

If our thesis is correct, that the modal subject-object relation is indissolubly connected with the modal retrocipatory spheres of an aspect, the following thesis is also true: The subject-object relation is to be found in all the law-spheres whose modal structures show retrocipations of earlier modalities, in other words, in all the law-spheres that come later in the cosmic order of time. This insight sheds light on many states of affairs that cannot be satisfactorily explained by immanence-philosophy.

The subject-object relation in the modal aspect of space.

A spatial point is obviously an arithmetical analogy in the spatial modus. A point may be said to function in the aspect of continuous dimensional extension, but it is not subjectively extended. Two non-parallel straight lines have their point of intersection in a plane surface, but this point can have no actual subjective existence in space. A subjective spatial figure is necessarily extended in dimensional continuity. A spatial point cannot be called a fiction. If it were a pure fiction, a two- or three-dimensional figure should also be called a fiction. Then spatial magnitude would be a fiction, and the whole of the spatial aspect of reality would be a fiction of thought.

Such a fictionalistic view would have to deny the entire inter-modal foundation of the sensory picture of space and would rob itself of the insight into the modal coherence between the law-spheres. But apart from this, such a conception would have to admit that there can be no sense in declaring a spatial point to be the only geometrical fiction.

How is the spatial meaning of a point to be conceived?

The dependent existence of a point in space.

A spatial point is dependent on a subjective spatial figure. It cannot exist apart. The objective magnitude of the subjective spatial figure depends on points. A point is founded in numerical relations. It is an intensive objectification of number in space. A subjective spatial figure and an objective spatial point stand, consequently, in a modal subject-object relation. An infinitesimal series of numbers can be objectified in the points of a straight line. These points continue to depend on the subjective conti-

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nuous extension of the parts of a straight line, each of which is limited by two points.

The terminal points of these parts are objectively before and after any interjacent point in that original spatial aspect of time which we call simultaneity¹.

The simultaneous before and after in the objective spatial function of time has the meaning of spatial magnitude, which is founded in the arithmetical aspect.

The magnitude of two parts of a straight line that have one terminal point in common, depends on the distance between their second terminal point and the first they have in common. The point itself possesses no extensive magnitude in any spatial dimension. The two terminal points objectively determine the magnitude of the subjective spatial extension of the straight line they limit. In the deepened theoretical analysis modern arithmetic approaches the objective magnitude of a spatial extension between points in a series of ‘real numbers’.

On the one hand, however, this real function of number is identified in an inadmissible way with a point, and on the other hand, just as inadmissibly, the irrational function of number is conceived of as an actual number. In the systematic theoretical disclosure of the anticipatory spheres of the aspect of number theoretical thought should be on its guard against misinterpreting the modal sphere-universality of the arithmetical aspect by a theoretical eradication of its modal boundaries.

In original space there can be no objective retrocipatory analogy of original movement. The genetic view of the spatial figures considers them as having arisen from the ‘movement’ of a point, a line, a plane. In this case the meaning of space is grasped in its anticipation both of original movement and of the movement of thought. But this view has to start from the spatial subject-object relation if it does not want to get entangled in antinomies, because a point in its purely objective spatial function has no meaning apart from a subjective spatial figure. It always pre-supposes the intersection of straight or curved lines, even in the so-called imaginary points of intersection.

1 The statement that in the original static spatial aspect of time we must distinguish before from after is not-self-contradictory. It would be so, if these terms were taken in the original modal meaning of movement.

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The antinomy in the construction of the so-called ‘continuum of points’.

There has never been given a real definition of a spatial point that did not pre-suppose continuous extension. That is why in the construction of the so-called ‘continuum of points’ there is an insoluble antinomy hidden. For in this case the spatial continuity is supposed to be constructed in all its relations of magnitude synthetically, or even in a ‘purely analytical’ way, with the aid of certain elements that have no extension themselves. These elements cannot be thought of as ‘positions’, i.e. as the points of intersection of curved or straight lines in a pre-supposed spatial continuum. They are called points without any attempt to determine the real meaning of the ‘point-concept’ theoretically.

This could be defended by the argument that the meaning of these elements is only to be defined from their relations established by the axioms. This argument, however, is only acceptable if these relations are conceived in the modal meaning of pure extension. But in this case the construction of space from points must be abandoned, because the latter appear to be determined by space itself. In fact, at least in the logistic way of deduction, the relations concerned are conceived in the logical sense of formal analysis. The continuity of the different series of points is supposed to be a result of the logical continuity of thought. The totality of points is thought of as continuous, without the points coalescing. As soon as this construction is interpreted in a spatial sense, the antinomy arises that points are made into spatial subjects, whereas they have only a dependent objective existence in the spatial subject-object relation. Making them into the infinitesimal origin of an extensive continuum by their integration into a logical ‘all-ness’ is tantamount to annihilating them. For an absolutely ‘dense’ set of points really means the cancellation of every spatial distance between them. This cancels the multiplicity of points at the same time, and also every separate point, and spatial magnitude¹.

In the differential and integral calculus this state of affairs can be recognized in the necessary correlation between differential and integral. A point conceived in the theoretical movement

1 Ludwig Fischer, in his Die Grundlagen der Philosophic und der Mathematik, 1933, p. 82 ff. has analysed this antinomy in a very lucid way, without being able to define the relation between a point and a spatial figure. The analysis of the modal spatial subject-object relation is necessary for such a definition.

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of thought as the differential of extensive magnitude (on the ὑπόϑεσις of the modal aspect of movement), cannot be considered as the unilateral origin of a line or any other spatial figure. For a point remains the objective intensive correlate of the subjective extensive continuity of a spatial form. It is not the expression of the continuity of a creative movement of logical thought, as the Marburg school thinks. It is only meaningful in its stringent correlation to subjective extension. This correlation makes it accessible to an approximation by the anticipatory infinitesimal function of number, in subjection to the cosmic order of the meaning-coherence. Spatial magnitude, viewed as a ‘variable magnitude’ in the differential and integral calculus, is conceived in an evident anticipatory function. In the continuity of the logical movement of thought, as the supposed ‘origin and justificatory foundation of being’¹, there is neither to be found the original meaning of number, nor that of original space or movement. The modal relation between a point and a spatial figure cannot be logicized. It must be understood by theoretical thought from the same cosmic meaning-coherence that makes thought itself possible.

1 Natorp, Die logischen Grundlagen der exacten Wissenschaften, 2e Aufl. 1921, p. 221: ‘Ursprung und rechtfertigende Grund des Seins’.

§ 5 - The subject-object relation in the modal aspect of analysis and the struggle between nominalism and realism.

We now turn to a subject-object relation whose misinterpretation played a central part in the conflict between Nominalism and Realism, viz. the subject-object relation in the logical law-sphere. From the outset Realism stuck to the reality of the universalia, either ascribing to them a hypostatized existence ‘ante rem’, or merely an implicit existence ‘in rē’. In realistic Christian Scholasticism the universalia were said to exist ‘ante rem’ in God's Mind, and to have moreover an existence in individual things. A merely ‘intentional’ abstract existence² was assumed for the universalia in human concepts. Nominalism, on the other hand, in all its possible varities, denied the universalia any other existence but a purely intentional one ‘in mente’ (univer-

2 Cf. Thomas Aquinas, In sent. II, dis. III, q. 2, a. 2 and Summa Theologiae I, q. 85, a. 2 ad 2.

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salia post rem), although it could acknowledge them very well as objective symbols or natural signs of reality.

Realism, in contrast with Nominalism, is often qualified as ‘conceptual realism’, which is not completely correct. Nevertheless it is true that - even in its moderate Thomistic form - it pre-supposes a final hypostasis in which the νοῦς, as the νόησις νοησέως and as the divine origin, is separated from the temporal coherence of reality in an absolute χωϱισμός.

That on this moderate standpoint not only an existence in rē is ascribed to the substantial forms of temporal reality but, in addition, an existence ante rem in mente divina, was due to the accommodation of the Aristotelian metaphysics to the Augustinian doctrine of the Divine Logos. The universale in rē remains the formal component of the metaphysical εἶδος (the essence) of things giving matter its form, to which matter owes actual being (‘forma dat materiae esse’, as it is formulated in Scholasticism). The extremely realistic conception of Plato's doctrine of the Ideas is rejected in orthodox Christian Scholasticism. Nevertheless, in the Scholastic doctrine of the ‘formae separatae’, the imperishable intelligences separated from all matter, the Platonic χωϱισμός, the splitting up of reality into an independent noumenon and a material phenomenon, is again clearly revealed.

(Moderate) Nominalism is also based on a splitting up of the temporal meaning-coherence into a noumenon and a phenomenon. Seeing the great variety of forms it has assumed in the history of philosophical thought, it is extremely difficult to give a general characterisation of the nominalistic conception of the mutual relation between universale and real thing. We can only state that nominalism ascribes no other existence to the ‘universale’ than that of a concept in (human and eventually in divine) thought which lies outside the ‘empirical reality’ of things and can only be taken as a symbol of a set of individual things.

The scholastic doctrine of the logical intentional object.

In Scholasticism the logical subject-object relation has been paid great attention to in the theory of the intentional contents of concept and representation. The universalia post rem, as the essential forms, abstracted from things by logical aphaeresis, only have an ‘esse intentionale’ or ‘esse objective’ in moderate Realism. And then a sharp distinction is made between the in-

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tentio as a subjective activity and its intended objective contents. Nominalism, naturally, ascribed an exclusively intentional existence to the universalia (Occam), as symbolical signs (termini), by which only empirical individual things are signified. Occam, e.g., is most inclined to identify an intentional concept with the actus intelligendi¹. The logical subject-object relation proper is thus detached from the temporal meaning-coherence of reality, both in realistic and in nominalistic Scholasticism, and opposed to temporal things as that which is intended in logical thought. A purely intentional logical object as such is no part of reality, it is only ‘the intentional content of thought’. In this manner the important scholastic theory about the intentional logical object is indissolubly joined to the realistic or nominalistic view of reality of Scholasticism, based on the immanence-standpoint. We have found it to be absolutely incompatible with our Christian transcendence standpoint. The (Aristotelian) realistic conception unavoidably leads to the ‘Abbild-theorie’ (the copy-theory) according to which the so-called ‘intentio secunda’ (i.e. the act of thinking exclusively directed to the abstract universale) grasps the logical copy of the materialized essential form of things in the intentional logical object. The moderately nominalistic conception of Occam, too, must have recourse to a copy-theory in order to head off absolute fictionalism. According to him the universalia as intended objects of thought can represent (supponere pro) an incalculable multiplicity of real individual things, only because they are no mere fictions of thought. They are rather images (‘imago’), symbolical copies of the common features of things that show mutual resemblances. These resemblances must not be considered, however, as the ‘substantial essential form’ of things².

That is why we need not be surprised that after all Scholasticism could not conceive the ‘Gegenstand’ of theoretical thought in the correct way. It could not give an account of the limits

1 William of Occam, Summa totius logicae ad Adamum, I, 12 ed. Venet. 1522, fol. 6 r. A.

2 In Sent. I. d, 2, q. 8 H.: ‘Universale non est figmentum tale, cui non correspondet aliquid consimile in esse subiectivo..., non est figmentum, sicut chimaera vel aliquid tale’.
Ib. E. ‘illud potest vocari universale, quod est exemplar et indifferenter recipiens omnia singularia extra, et propter illam similitudinem in esse obiectivo potest supponere pro rebus extra’. - and ib. F: ‘Illud sit fictum... propter ista potest esse terminus propositionis et supponere pro omnibus illis, quorum est imago vel similitudo’.

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within which logical objectification is possible. In realistic Scholasticism the ‘Gegenstand’ is identified with the ‘substance’, and all the so-called ‘transcendentalia’: the concepts of being, of the unity, the good and the true, and the other ‘transcendental concepts’ of the ‘philosophia prima’, become objects of the actus intelligendi¹. The question what these logical concepts are the objectifications of, cannot arise here, because logical objectivity is not conceived of in the temporal meaning-coherence of reality. In nominalistic Scholasticism the intentional object and the ‘Gegenstand’ (ἀντιϰείμενον) of the logical function of thought are even identified, which has become the rule in Humanistic epistemology.

1 Cf. Thomas Aquinas. Quaest. sup. Metph. I, IV qu. 1 (Opera Omnia, Paris): ‘Primum objectum intellectus est ens ut commune omnibus’.

The logical object-side of temporal reality. The content and the object of a concept are not identical.

A satisfactory insight into the logical subject-object relation can be gained only if we try to understand also this relation from the temporal meaning-coherence of the modal aspects. Temporal reality itself has a logical object-side. This is the first fact that should be grasped. The logical object cannot coalesce with the intentional logical content of a subjective concept. Logical objectivity is not the same thing as a being that is merely intended in the logical aspect of this concept. The intentional content of the concept in itself remains subjective and is not even always related to logical objectivity. Take e.g., the so-called reflexive concepts, from which every kind of objectivity is deliberately abstracted. But apart from this, exception must be taken to the scholastic and the neo-scholastic doctrine of the merely intentional existence of the logical object, because in it the logical object-side of temporal reality in its necessary structural relation to logical subjectivity is denied. Consequently logical objectivity cannot be grasped in its cosmically founded modal structure.

It may be that not every subjective logical concept is related to logical objectivity, just as not every subjective psychical feeling is directed to an objective sensory phenomenon. But the logical object-function of reality is certainly related to subjective logical thought; it has no metaphysical existence in a ‘thing in itself’, but only exists in the logical subject-object relation. It must be disclosed by logical subjectivity, and without this disclosure it remains latent, hidden in the meaning-coherence of

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temporal reality. But also in this latency it remains possible logical objectivity for the logical subject-function under the universally valid logical law-conformity.

The limits of logical objectivity.

To which of the modal aspects of reality is logical objectivity related in the cosmic meaning-coherence? In the first place to those aspects that serve as the substratum for the logical modus and whose objective analogies must be found in the logical object-side of reality. The pre-logical aspects become logically thinkable only in logical objectivity.

But for the logical object-side of reality the so-called ‘natural sides’ of temporal reality would remain logically foreign to us; we should not be able to form a concept of them, because they are not logically founded. The pre-logical aspects of reality must primarily be objectified by logical thought, i.e., the logical object-side of reality must be made patent, manifest, if we are to attain to knowledge of these aspects. Logical objectivity is, however, not a creation of a ‘transcendental logical subject’, but it is fitted into the temporal world-order as the objective logical aspect of reality. Logical thought would not be able to objectify anything logically, if reality had not been given a logical object-side in the Divine order of the creation. Logical objectivity is the objective connectedness of logical multiplicity into modal logical unity comprised in the systatic¹ meaning-coherence of reality. Outside of this meaning-coherence it could not exist. This objective logical systasis has no subjective analytical meaning, but it is the logical object of subjective analysis.

1 This term will be explained in the second part of this Volume (cf. p. 431).

The element of truth in the so-called ‘geisteswissenschaftliche Methode’.

The limits within which it is possible to objectify anything logically are bound up with the retrocipatory structure of the logical law-sphere. This sheds a new light on the element of truth contained in the modern so-called ‘geisteswissenschaftliche’ method in contrast with that of ‘natural science’. Under the influence of Romanticism, and of Hegel, the demand was made on the so-called ‘Geisteswissenschaften’² to detach themselves completely from the ‘spatial’, objectifying way of thought custo-

2 Compare: Prologomena, Vol. I.

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mary in the natural sciences. The reason was that ‘socio-cultural phenomena’ were supposed to be knowable only by reflexive dialectic thought. Dilthey replaced the latter by ‘empathy’. In the light of our cosmonomic Idea this socio-cultural scientific method cannot be maintained¹. The element of truth contained in it, however, is this: the post-logical aspects of reality cannot be logically objectified in the same way as the pre-logical ones.

The post-logical subject-functions and subject-object relations have doubtless an objective logical foundation which is structurally related to subjective analysis. But it has already appeared from the analysis of the modal structure of historical facts that they are not given in the manner of natural events and that they lack a natural delimitation in the objective sensory space of perception. The historical identity and diversity of cultural facts appeared to depend on historical imputation. These logical analogies doubtless pre-suppose an identity and diversity in the original logical sense which can only be conceived in the logical object-function of the concrete facts in which the historical functions are realized. But the objective-logical characteristics of the facts which in their historical aspect are to be conceived as a unity, distinct from other events, are only to be found in the anticipatory direction of theoretical analysis. They cannot be established but under the direction of the historical viewpoint, not by seeking for a foundation in the objective sensory space of perception. And an analogical state of affairs is to be observed with respect to the objective logical characteristics of the post-historical functions of real facts.

It is therefore not true that the so-called ‘Geisteswissenschaften’ lack any logical objectivity. We may only say that their logical objectivity is quite different from that of the natural sciences.

In addition a sharp distinction should be maintained between the logical subject-object relation and the theoretical ‘Gegenstand-relation’. It may be that the latter pre-supposes the former, but an identification of these relations would cancel the fundamental difference between theoretical and pre-theoretical thought.

1 Compare: Prologomena, Vol. I.

§ 6 - The subject-object relation in the juridical aspect and the problems of subjective right.

Finally we want to subject the important subject-object relation in the juridical law-sphere to a preliminary meaning-

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analysis. This relation is essential to the modal figure of a subjective right. The theory of subjective right still suffers from the lack of a proper analysis of the meaning of its ‘Gegenstand’.

The result is that the theoretical concept of subjective right is extremely uncertain and indeterminate. The classical Roman jurists conceived of subjective right as essentially an individualistic subjective volitive power without giving account of the modal meaning-structure of the latter. Though recognizing the subject-object relation in subjective rights they tried to approximate the latter one-sidedly from the subjective angle. And, in an individualistic manner, they considered the juridical subject as an in-dividuum. Only sporadically did they raise the problem of the juridical corporation (universitas) and inquired, how in the universitas a multiplicity of individuals becomes a subjective juridical unity. In order to solve this problem they had recourse to the Stoic construction of the universitas as a corpus ex distantibus (σῶμα ἐϰ διεστώτων)¹ in which both the universitates rerum (a herd, a library, etc.) and the universitates personarum (the corporate juridical communities) were included.

This ‘universitas’ was looked upon as a multiplicity of individuals naturally existing without sensory-spatial points of contact as corpora singula et unita (σώματα ἡνωμένα)². But these individuals were supposed to be combined in thought into a unity by means of a fictitious juridical bond and named by one word (uni nomini subjecta)².

Also the concept of the juridical object lacked a modal analysis of its meaning. According to the view held by the jurists the individualistic subjective power of the will determined the content of a subjective right in an entirely one-sided manner. This explains why the Germanic conception of an objective juridical sphere of things in which numerous subjective rights could be vested independent of the individual person entitled to them, was quite alien to the theoretically developed Roman ius civile and ius gentium.

1 Cf. e.g. Pomponius. 4. 30. D. 41. 3.

2 Cf. Seneca, Epist. 102 (lib. XVIII, 2): ‘Quaedam (corpora ex distantibus), quorum adhuc membra separata sunt, tanquam excercitus, populus, senatus, illi enim, per quos ista corpora efficiuntur, jure aut officio cohaerent, natura diducti et singuli sunt.’

2 Cf. Seneca, Epist. 102 (lib. XVIII, 2): ‘Quaedam (corpora ex distantibus), quorum adhuc membra separata sunt, tanquam excercitus, populus, senatus, illi enim, per quos ista corpora efficiuntur, jure aut officio cohaerent, natura diducti et singuli sunt.’

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The ‘thing’ concept with the Roman jurists.

Every sensorily perceptible thing capable of being the object of human volitional power was considered by the Roman jurists as a rēs, a corporeal juridical object. The fulness of right to this corporeal thing was the right of property, which was therefore often identified with the thing itself.

This primitive thing-concept was in the nature of the case insufficient to comprise the extremely differentiated juridical objects at a higher level of civilization. It already failed when a special right to a pars pro indiviso had to be understood.

For the rēs, - just as the juridical subject - was conceived as an isolated singularity without any internal multiplicity of juridical subject-object relations. Gierke points out that, strictly speaking, for this reason a thing could not be the object of various subjective rights at the same time. In fact, there was essentially only one direct ius in rē, viz. the right of property. As the right of property included a thing in its totality entirely within the ‘volitive sphere’ of a juridical subject, it in principle excluded every other juridical will from the direct control over the same thing¹. Only as rights of a special (and at bottom of a fictitious) character the jura in rē aliena did make their appearance. However, they could never wholly become direct jura in rē, because the right of property continued to intervene between them and the thing. That is why these rights were always considered more or less as an anomaly.

In the case of personal rights, the subject-object relation could not be entirely eliminated either, but here the juridical object was, as much as possible, absorbed by the personal juridical connection between the juridical subjects concerned.

1 The origin of this exclusivistic conception of the dominium is doubtless to be found in the undifferentiated structure of the primitive Roman familia and the undifferentiated power of the pater familias.

The distinction between corporeal and incorporeal things in Roman jurisprudence.

The difficulties were increased when juridical objects are successively related to a plurality of jura in rē, e.g., in the case of a mortgage on an object of usufruct, whereas the usufruct itself rests on the object of property. Here the Roman jurists were confronted with a dilemma caused by the natural corporeal thing-concept used as the foundation for the concept of the juridical object: Should one deny the possibility of jura in rē to

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objects of other jura in rē or assume the existence of objectless subjective rights? The Roman jurists tried to avoid this dilemma by distinguishing between incorporeal and corporeal things; in this distinction the rēs incorporalēs were identified with subjective rights. This led to the construction of ‘rights to rights’, a construction maintained up till the present day in modern continental European jurisprudence.

In itself juridical ‘constructions’ cannot have a scientific sense. They are technical means serviceable to the practical task of law-formation. As such they are only to be judged according to their practical goal and to the requirements of the legal order.

But from the scientific viewpoint of theoretical jurisprudence they are to be subjected to a theoretical analysis in order to lay bare the real juridical states of affairs to which they give a technical legal form. When we confront the construction of rights to rights with the modal structure of the juridical subject-object relation we must ask the following question: Does the juridical subject-object relation, implied in every subjective right, permit itself to be made in its turn into a juridical object of another subjective right? If the modal subject-object relation does have a super-arbitrary structure which is founded in the cosmic-temporal order of the modal law-spheres, this question is inescapable. It will be examined in the next paragraph.

Legal theory has given very little attention to the problem mentioned. To my knowledge the famous German jurist Otto Gierke was the first to subject the construction of rights to rights to a critical analysis. But this criticism has found little adherence in legal theory and Gierke himself has not carried it through consistently.

In his analysis of the Roman construction of rights as rēs incorporalēs he observes that ‘incorporeal things’ can never be ‘rights’ as such but rather ‘that part of the object-sphere of real things that has been affected by the right concerned and made into an object of the will’¹.

It is all the more astonishing that Gierke, notwithstanding this insight, has relapsed into the current construction of subjective rights as juridical objects without any further attempt to justify it. One does not speak of a right of mortgage to the right of property. Why then speak, e.g., of a right of mortgage to a claim

1 Genossenschaftsrecht II, p. 63: ‘...der von dem betreffenden Recht ergriffene und als Willensobjekt gesetzte Theil der Sachsphäre bestimmter Gegenstände’.

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for debt? This theoretical obscurity may lead in practice to unfair consequences. Every Dutch jurist knows this when he compares the jurisprudence of the Dutch High Court of Justice (de Hoge Raad der Nederlanden) with regard to the so-called ‘right of pledge on a claim for debt not made out to order’ with the social juridical sense of this form of security¹.

1 Cf. Asser-Scholten: Zakenrecht, 7th edition, 1933, pp. 425 ff. According to the Hoge Raad the right of pledge on a claim for debt can only be realized by public sale of the claim. This means in fact a frustration of the right of pledge. In praxis this unacceptable consequence of the construction is escaped by stipulating in the pledge-contract an irrevocable authorization of the creditor to receive the amount of the claim directly from the debtor.

The conception of subjective rights in the theory of natural law.

On tracing the development of the dogmatics of subjective rights we are struck by the increasing confusion caused by the lack of a genuine modal analysis of the juridical subject-object relation. The Humanistic doctrine of natural law adapted its theory of subjective rights to its Idea of freedom. But this Idea of freedom shows a dialectical tension with the construction of the sovereign power of the legislator by means of the mathematical method of the science-ideal. This is the reason why the adherents of this doctrine direct all their attention to the relation between the subjective rights and the positive legal norms enacted by the legislator. They do not care for the cosmic structure of the juridical subject-object relation. The character of the juridical object is not even mentioned any more.

According to Hobbes, Pufendorff and Thomasius my own right is all that has not been forbidden me. Another view (already found in Grotius) holds that my own right is all that other juridical subjects in relation to me are forced to respect on account of the legal order. The theory of absolute innate human rights, which was started by Locke, really placed these rights as an ‘absolutum’ entirely outside of the legal order. As soon as it was consistently thought out, this theory was bound to be destructive to the recognition of positive law as an order of norms. These radical consequences were actually drawn by the young Fichte.

From this essentially un-juridical natural law conception are derived the notorious constructions of the rights to sleeping, to walking, to breathing, to living etc., which were taken quite seriously by the pandectists of the last century.

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Hegel's theory of volitional power.

Hegel conceived of subjective right as an individual volitional power. This theory, which had a great influence on the legal dogmatics of the 19th century, again starts from the conception of the classical Roman jurists.

Like Kant, Hegel considers justice as having its anchorage in the super-sensory Idea of freedom¹. He gives a modal-historical content to this Idea in its realization in a legal order: with him justice becomes identical with the Idea of ethical power which is historically realized in the state as an ethical institution. In the legislative power of the body politic this Idea finds expression as a universal competence, and in subjective individual right as a particular will-power, as a private competence. Subjective right is the antithesis of morality, which antithesis is dissolved dialectically into a higher synthesis in the body politic as the incorporation of the true ‘Sittlichkeit’². For the communal will of the state, in its conformity to the Idea of Justice, is at the same time the true will of its individual members, the citizens.

Just like Kant, Hegel excluded from the concept of subjective right the purpose to which the will-power in subjective right is made subservient, viz. the satisfaction of the needs and inclinations of man.

The element of interest is thus eliminated from the concept of subjective right³. This view was adopted by the Historical School.

1 Grundlinien der Philosophie des Rechts, §§ 29 and 41.

2 Hegel contrasts morality in its individualistic Kantian sense and ‘Sittlichkeit’ as the ethics of the trans-personal community.

3 This elimination of the element of purpose from the concept of subjective right was of great consequence for the later theory of the abuse of rights. In the footsteps of the sociological legal theory of the French jurist Léon Duguit (a disciple of Durkheim) the French civilist Josserand defended the thesis that abuse of right is always present when a subjective right (not belonging to the ‘droits non causés’) is used in a way opposite to its social-economical purpose. This modern theory started from Duguit's conception of the ‘droit social’, which had no room for the classical idea of private civil law. It absolutized the specific juridical sphere of modern industrial law. Duguit maintained that civil law was to be transformed into ‘social law’. Josserand's theory, inspired by Duguit, was accepted in the first paragraph of the bolshevist Russian code of civil law.
In sharp contrast to this theory Hegel defended the classical conception of civil law, according to which the positive determination of the specific purpose to which a subjective right is made subservient, is reserved to the private autonomy of man within the limits of the public interest of the body politic. If this conception is accepted the criterion of abuse of right can only be found in the absence of any rational interest whatsoever. It can never have the positive formulation given by Josserand. In the third Volume we shall examine this conception in the light of the typical structure of civil law.

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Von Savigny¹ and Puchta² both look upon subjective right as essentially the particular will-power of the individual, apart from the interest served by it.

The elimination of non-juridical interests from the concept of subjective right in the theory of civil law had indeed a good sense. But the Historical School also eliminated the juridical element of interest which, as we shall see, as an economical analogy, is essential to the modal structure of every subjective right.

This was bound to result in a disconnection of the subject-object relation inherent in the latter. Subjective right was supposed to be concentrated in the subjective power of the will (whose analogical character within the juridical aspect was lost sight of) and the point of gravitation was sought in the juridical relations between one person and another.

Hegel could only recognize ‘unfree nature’ as an object. In its later development (Lenel, Schlossmann and Thon, and later on also Windscheid) the theory of will-power entirely relinquished the juridical object.

1 Von Savigny, System des heutigen römischen Rechts I, p. 7: ‘Betrachten wir den Rechtszustand, so wie er uns im wirklichen Leben von allen Seiten umgibt und durchdringt, so erscheint uns darin zunächst die der einzelnen Person zustehende Macht: ein Gebiet worin ihr Wille herrscht und mit unsrer Einstimmung herrscht. Diese Macht nennen wir ein Recht dieser Person, gleichbedeutend mit Befugniss: Manche nennen es das Recht im subjektiven Sinn.’ [When we consider the juridical condition as it surrounds and permeates us on all sides in real life, we first of all discover in it the power belonging to the individual person: a domain in which his will rules, and rules with our consent. We call this power a right of this person, of the same meaning as competency: Many people call it a right in a subjective sense.]

2 Puchta, Cursus der Institutionen I, § 6: ‘Wir gebrauchen das Wort Recht:

1^o.

für den allgemeinen Willen, den Willen der Gesammtheit;

2^o.

für den Willen des Einzelnen, sofern er jedem allgemeinen Willen entspricht, für die Herrschaft oder Macht, die der Person über einen Gegenstand gegeben ist.’

[We use the word right:

1^o.

for the general will, the will of a community;

2^o.

for the will of an individual insofar as it is in accordance with the general will, for the control (or power) given to the individual person over an object.]

[p. 398]

The distinction between jura in personam and jura in rē.

The consequences attendant upon this emancipation of the concept of subjective right from the juridical subject-object relation in the first place showed themselves in the break with the earlier conception of the difference between jura in personam and jura in rē.

Von Savigny still tried to find a basis for this distinction in the difference between the objects of right (not conceived in the modal juridical meaning):

‘Unfree nature’, according to him, is the object of jura in rē: certain human actions are the objects of jura in personam. The juridical character proper of subjective right, however, he only found in the personal juridical relation as it is regulated by a juridical norm: ‘every juridical relation appears to us as a relation between person and person, determined by a juridical norm’¹. The earlier theory of will-power had not conceived the subject-object relation in its modal juridical meaning. It was therefore only consistent in the later will-theorists to abandon this relation altogether, when they distinguished between iura in personam and jura in rē. According to them a jus in personam was merely the volitive control over a person in consequence of a particular personal legal relation; a jus in rē was such a control over any other than the person entitled to it. They simply identified jus in rē and so-called absolute right, of which it was formerly held to be only a specimen.

1 System I, 52: ‘jedes Rechtsverhältnis erscheint uns als eine Beziehung zwischen Person und Person, durch eine Rechtsregel bestimmt.’

The consequence of the elimination of the juridical subject-object relation is the cancelling of the concept of subjective right.

This elimination of the juridical subject-object relation was in reality only the result of a lack of theoretical distinction of its juridical meaning that had from the outset been characteristic of the theory of subjective right.

It now led to endless confusion between subjective right and juridical competence (in the sense of a juridical authority over persons), and in close connection with this obliteration of the boundaries, to a complete merging of subjective right into the law-side of the juridical aspect. The ultimate consequence was a radical abandonment of the concept of subjective right. This

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conclusion has been drawn in recent times, though from a different methodological starting-point, by Kelsen and Duguit and their followers. They look upon the concept of subjective right as merely a metaphysical residue of natural law.

From the beginning this radically negative result was favoured by an inner antinomy in the will-power theory that wished not to merge subjective right into the law-side of the juridical aspect. For this theory really conceived of subjective right as a kind of private authority over other juridical subjects, even in the merely coordinate juridical interpersonal relations of private civil law in which these juridical subjects are related to one another in juridical equality. That is why this theory immediately got involved in this difficulty: How can the subjective will of a juridical subject obtain authority over the will of a juridical subject coordinated with him, and as such impose obligations on the latter.

The historistic view of law which is of an irrationalistic origin, always tried to reduce the law-side of the juridical aspect to the subject-side conceived as a community or a group. To this view law is originally the irrationalistically conceived ‘general will of the people’ which receives its juridical organization in the State. Nothing was thus more obvious than identifying the will-power manifested in subjective right with the will of the State as a juridical communal will.

In the beginning the will-power theory did not draw this conclusion from its starting-point. It rather maintained Hegel's point of view that the general will and the particular will, the will of the State and subjective right, remained dialectically distinguished from each other, although the latter was considered to form a dialectical unity with the will of the State. Kierulff, for example, a Hegelian, and not an adherent of the Historical School, defined subjective right as ‘the concrete unity of the will of the State and the individual subjective will’¹.

This is to say that the private subjective will-power over persons can only create obligations insofar as the latter are consonant with the positive juridical norms (as the general will of the State).

1 Theorie des gemeinen Civilrechts I, p. 154.

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The volitional theory in its positivistic-psychologistic form.

When the irrationalistic-idealistic view of right of the Historical School was being overthrown by rationalistic positivism, the whole will-theory gradually changed its character. Psychological views ousted the idealistic-historical conceptions which at least had oriented volitional power to the normative Idea of freedom. A psychological idea of will was introduced into the theory of subjective right. So the latter got entangled in the familiar antinomies incident upon this concept of will with respect to the rights of new-born babies, madmen, sleeping people, and generally of those who acquire subjective rights without themselves knowing anything of them.

With the aid of fictions it was attempted to mask these antinomies. The positivistic theory of will considered both subjective right and the juridical norm to be a psychological imperative. But when thought out consistently this theory could not find any other commands in subjective right than those of the law-giver¹.

Thus Binding's pupil Thon retained nothing of subjective right but the ‘claim’ that the law-giver grants to the individual by permitting other norms to be enforced (the so-called secondary or sanctionary norms) in case the primary norms that protect him are infringed. These secondary norms aim at the primary norms being complied with, or at obtaining something that is equivalent to this². If this reasoning was carried on in the same positivistic strain, there was no escape from resolving the pre-processual subjective right into the purely formal processual competence to bring in an action.

1 Cf. A.A.H. Struycken: Het Rechtsbegrip, thesis, Leyden, 1903, pp. 82 ff.

2 Rechtsnorm und subjectives Recht, p. 218.

The theory of interests also eliminates the juridical subject-object relation.

Thus the volitional theory ultimately cancelled the concept of subjective right by eliminating the subject-object relation. The theory of interests introduced by Rudolph v. Jhering in the last period of his thought was no more able to resist the gradual theoretical merging of subjective right into a function of the juridical norm. With him this was due to an unjuridical conception of the interest-element.

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V. Jhering, in an earlier period an adherent of the Historical School and its theory of will-power¹, subsequently called interest a substantial or material moment in subjective right. This interest depends for its juridical definition on a formal moment, viz. the legal protection given to it by the legal order. Since this juridical delimitation is only of a formal character and lacks any material determination of the meaning of law, it is of essential importance to know in what sense v. Jhering understands the moment of interest. He puts it on a level with the ideas of utility, a good, value and pleasure. The standard by which the legal order measures these concepts is, according to him, by no means exclusively an economical criterion, which v. Jhering moreover identifies very arbitrarily with money and monetary value. Capital is not the only thing that must be safeguarded by the legal order. There are other values of a higher order, i.e., of an ethical nature, viz. personality, liberty, honour, the bond of kinship, all of them things without which ‘outwardly visible’ goods would be valueless². This means that v. Jhering turns ‘interest’ into a general concept which eradicates all modal boundaries of meaning. In addition, his theory of subjective right also eliminates the subject-object relation completely.

If one talks of a subjective right to personality, or to liberty, and denatures paternal authority (which is a juridical power over persons and not over objects) to a subjective right, as v. Jhering does, the concept of juridical object as a requisite for every subjective right is in principle given up. The legal order can in principle only protect retributive interests. A child has a moral interest in receiving its livelihood from its parents as a gift of love, and not merely as an object of its civil right. But the protection of this interest is something that in principle cannot be guaranteed by the legal order of the body politic, which v. Jhering considers as the whole of law.

v. Jhering, however, does not in any way define the meaning of his concept of interest. This defect has never been removed in the later so-called combinative theories which aimed at a compromise between the theory of volitional power and that of interests. Each of these theories has obliterated the boundaries between subjective right and competence (in the sense of a

1 Geist des römischen Rechts II, 1e Abt. p, 143 ff.

2 Ibid. III, 1, p. 339/40.

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juridical power over persons), because they neglected to analyse the meaning of the juridical subject-object relation.

The fundamental difference between juridical competence and subjective right. The content and the object of a subjective right are not identical.

Competence does not belong to the subject-side but to the law-side of the juridical sphere. It is primarily competence to the making of law, and in general juridical power over persons.

Competence necessarily has a juridical content, but in principle it lacks any relation to a juridical object.

The content and the object of a subjective right coalesce no more than do the content and object of a concept, or of a subjective sensory image of perception. The competence of government, that of voting, paternal authority, the competence to perform private legal acts etc., are fundamentally different from genuine subjective rights. They have no juridical object. The prevailing theories about subjective right lack a clearly defined juridical concept of object. This appears, e.g., clearly from the combinative theory of the famous German jurist Jellinek, who speaks of a subjective right of the sovereign to the juridical obedience of the citizens¹, thereby promoting a legal duty to the rank of a legal object. Once the fundamental boundaries between competence and subjective right are effaced, there are no longer any means to resist in principle the elimination of the concept of subjective right.

The volitional theory at first laid emphasis on the power of disposal on the part of the party entitled to it. By this it did not mean the disposal of the object of a subjective right, but that of this right itself. But this power of disposal cannot possibly be an integral part of a subjective right, let alone a subjective right as such, since the disposal of a right is really a private act of law-making.

The competence to transfer subjective rights is a competence to the autonomous formation of private law in concreto and has only its normal juridical ground and condition in the subjective right of the authorized party. It may be that in particular cases this competence is lacking, whereas the subjective right is doutbless present. In other words, competence and subjective right are different juridical powers which are normally connected with each other but are not identical.

1 System der subj. öffentl. Rechte (2nd Edit. 1919), p. 86 ff.

[p. 403]

The identification of the juridical power to dispose of a subjective right as such with the power over the object of this right made it seem easy for Thon to show that the faculty of disposition may also occur entirely detached from a subjective right.

He pointed, for instance, to the conveyance to a bona fide third party of fraudulently converted personal property. In virtue of an explicit provision of German private law this conveyance makes the third party the owner of the good. This argument was unsound¹, it is true, but it did not fail to make some impression. If on the other hand the theory of interests emphasized the power of enjoyment of the entitled subject, the un-juridical view of the concepts of interest and enjoyment immediately took revenge, so that it was easy for Thon to carry to absurdity the doctrine that the power of enjoyment is essential to a subjective right.

The consistently Hegelian view in the will-theory had eliminated the element of interest from the concept of subjective right, and therefore was obliged also to cancel the power of enjoyment contained in that concept. This is what Kierulff, Haelschner and others actually did with the utmost rigour. Yet in the volitional theory, especially in Windscheid, this consequence was by no means generally taken². Thon, as an adherent of this theory in its positivistic psychologistic form, did so with great penetration³. His criticism of the view he combats was all the more effective as the latter conceived of the power of enjoyment as the natural freedom to enjoy anything freely that has not been forbidden in the positive legal order. This unjuridical view, already defended in Hobbes' theory of natural law, had led to a great disturbance in the doctrine of subjective rights.

1 It mixes up juridical ground with juridical consequence (the causal analogy on the law-side of the juridical aspect). Thon makes an attempt to prove the possibility of a private disposing power apart from a subjective right. This attempt can never be successful. The owner can convey the property on the ground of his subjective right. The person not entitled is exactly the one who possesses no competence to convey the property. If according to the Dutch Civil Code art. 2014 the property in a fraudulently converted movable is transferred to a bona fide third party who has got the possession, it is only in virtue of the law which applies the juridical principle of the protection of good faith to this case.

2 Pandekten, 167, 179, no. 5.

3 Rechtsnorm und subjektives Recht, pp. 288 ff.

[p. 404]

Subjective right and reflex-permission.

By conceiving subjective right fundamentally apart from the juridical subject-object relation, the prevailing theories could not possibly find a tenable criterion to distinguish subjective right from the so-called reflex-permission.

The interest-theory was especially obliged to seek such a criterion, as its concept of interest was perfectly unjuridical.

A manufacturer may have an interest in an act increasing the import-duties on goods competing with those produced by him. But this does not mean that he has a mysterious subjective right to the execution of the act. In the elective public function no doubt personal interests are involved, but this does not make it a subjective right. Von Jhering, who was presumably the first to pay attention to the difference between subjective right and reflex-permission, sought the criterion in the legal protection (the action in a material sense).

But not every interest protected by an action is a subjective right! We may refer to the old actio popularis in Roman Law, to the administrative action ex art. 58 of the Dutch Civil Servants Act 1929 allowed to the official on account of ‘détournement de pouvoir’ of his superiors (abuse of power), to the action for divorce, etc. Neither can one find a criterion in the restriction that the action must have been allowed in the preponderantly individual interest of the person concerned. In the case of the civil servant mentioned above his personal interest is no doubt involved in the administrative action in a preponderant way.

But where can one find a subjective right that would have been infringed in the case of a civil servant being transferred by his superiors to another department of the administration, not for reasons concerning the service but because of sheer personal rancour? And the conclusive proof that the above-mentioned criterion is wrong was already to be found in the interdicts of the Roman law of possession. These interdicts even protected the thief against any act of force undertaken by the subjectively entitled person on his own account. Possession as such, in contradistinction to property, is not a subjective right at all. In every respect the theory of subjective right appears to come to grief, if it does not conceive of subjective rights in the juridical subject-object relation.

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§ 7 - The juridical subject-object relation and the limits within which juridical objectification is possible.

The modal meaning of the juridical object.

How are we to conceive the juridical subject-object relation? In the first place full emphasis should be laid on the fact that this relation is by no means exclusively bound to the figure of subjective right.

There are also ‘objective juridical facts’, such as, e.g., (the juridical aspect of) the burning-down of a house, the damage caused by a hailstorm, etc., which stand in a juridical subject-object relation to juridical subjects (e.g., the proprietor, the insurers and the insured). They are dependent juridical facts that have no juridical meaning outside their connection with subjective juridical facts (e.g., an insurance contract; a tort; etc.) Without this modal subject-object relation no juridical object-function is possible. In the juridical relation of a subjective right the juridical object is the object of a subjective legal power of disposal and enjoyment, and the latter is regulated by juridical norms on the law-side. It is of the utmost importance to conceive of a juridical object in a truly modal juridical sense as related to the subjective power of disposal and enjoyment of the subjectively entitled person. Otherwise one will not be able to avoid the errors discovered in the theories discussed in an earlier context. A juridical object can only be found in the juridical object-side of concrete reality. It can never be identical with the full reality of a thing, nor with an object of sensory perception, - a view held by the Roman jurists in their concept of the ‘res corporalis’. The juridical object can only be conceived in the modal meaning of retribution. It is nothing but a modal function, and this function is determined by the modal structure of the juridical subject-object relation. This state of affairs does not detract from the fact that the modal object-functions and the juridical subject-object relations in which they function are individualized in the typical structures of individuality.

In previous examinations we have already referred to the arithmetical, the spatial, the kinematic, the physical, the psychical, the logical, the historical, the lingual, the ‘social’, the economic and the aesthetic retrocipations in the retributive aspect¹.

1 Cf. pp. 128 ff, 134 ff, 136 ff. of this Volume.

[p. 406]

So I may now submit the synthetical formulae for the concept of the juridical aspect on its law-side and its subject-side, which should be taken in strict correlation with each other.

1^o. The modal meaning of the juridical aspect on its law-side is: the unity (the order) in the multiplicity of retributive norms positivized from super-arbitrary principles and having a particular, signified meaning, area and term of validity.

In the correlation of the inter-personal and the communal functions of the competency-spheres these norms are to be imputed to the will of formative organs, and they regulate the balance in a multiplicity of inter-personal and group-interests according to grounds and effects, in the coherence of permissive and prohibitive (or injunctive) functions by means of a harmonizing process preventing from any excess, in the meaning-nucleus of retribution.

2^o. The modal meaning of the juridical aspect on its subject-side is: the multiplicity of the factual retributive subject-object relations imputable to the subjective will of subjects qualified to act, or per repraesentationem to those not so qualified. These subject-object relations are bound to a place and a time, in the correlation of the communal and the interpersonal rights and duties of their subjects. In their positive meaning - in accordance with (or in conflict with) the juridical norms -, these subject-object relations are causal with respect to the harmonious balance of human interests in the meaning of retribution.

In these definitions all the retrocipatory moments in the modal structure of the juridical aspect have been summarized and qualified by the juridical nuclear moment of retribution.

The juridical object in the legal subject-object relation is no arbitrary construction of thought. No more is the juridical subject, but both are modal functions strictly bound to the cosmic temporal order, and they can only be understood from the modal structure of the juridical modus whose two-fold theoretical definition is given above.

The cosmic boundaries of the possibility of juridical objectification. The economical and historical analogies in the juridical object-function.

Legal theory should in the first place be aware of the fact that the juridical object-function is strictly bound to an economical analogy. It is not true that everything can be made into the juridical object of a subjective right. This is only the case with

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things which have the economic function of relatively scarce goods serviceable to human needs and therefore capable of frugal administration. Neither the free air, nor natural organic functions like breathing or sleeping can, as such, be objects of subjective rights. In the second place the historical retrocipation in the modal structure of the juridical subject-object relation implies a fundamental restriction of the juridical object-function. Things which in the present state of human culture are not controllable by cultural activity cannot function as juridical objects of human rights.

The juridical power of disposing is necessarily founded in the possibility of cultural control. Therefore Hugo Grotius in his famous book Mare liberum denied with good reason the claims of England to the propriety of the open sea, just as in his earlier treatise De jure praedae (ch. XII) he denied the same claims of Portugal. A subjective right implies a retributive interest of the entitled subject. But a claim to juridical power over the open sea which, as such, is neither controllable nor economizable by a single people exclusively, is excessive in a retributive sense. Consequently, it cannot be based upon a retributive interest; in international law it has never been aknowledged. This question is indeed to be discussed apart from political prejudices. It is susceptible of a scientific examination in the light of the modal structure of the juridical subject-object relation.

Apart from the figure of subjective right, the juridical subject-object relation is also bound to the economical and historical analogies in the case of objective juridical facts.

Natural events which have no actual objective function in relation to human culture and economic valuation, cannot function as objective legal facts in relation to juridical subjects.

The possibility of moral and pistical anticipations in the juridical object-function.

Particulary interesting is the question whether post-juridical modal subject-functions and subject-object relations may be objectified in the anticipatory spheres of the juridical law-sphere.

This philosophical problem has become of actual consequence in Dutch jurisprudence since in 1926 the Hoge Raad (High Court of Justice) decided that obligations of morality and decent behaviour may found a natural obligation in the sense of civil law. It is quite evident that there can be no question here of moral duties

[p. 408]

and duties of decent behaviour in their original modal sense. For in this case it would be impossible to maintain the retributive balance between the juridical interests: the rights of creditors might be completely frustrated if every moral or ‘social’ duty to financial support of our neighbour would be accepted as a natural obligation in the sense of civil law.

Apparently we are confronted here with moral anticipations in the juridical subject-object relation. There is question of morality in the anticipatory sense of retribution, so that its obligations remain subject to fundamental retributive principles of balance and harmony between the different interests of juridical life.

The object of a natural obligation participates in this anticipatory structure of the juridical subject-object relation, because its juridical meaning is dependent upon the subjective legal relation between the persons concerned in the obligation.

There also exist juridical obligations which are typically qualified by a moral relation of love. So for instance the natural juridical obligations between the husband and his wife, between parents and children, which exceed the boundaries of civil law.

In the same way juridical obligations may be typically qualified by a relation of faith. This is the case with the internal ecclesiastical legal relations. In all these cases the juridical subject-object relation shows an anticipatory structure.

The construction of rights to rights.

We shall now return to the question whether the subject-object relation, implied in every subjective right, in its turn permits itself to be made into the juridical object of another subjective right.

In my opinion, the construction of rights to rights, quite apart from the question as to what consequences ought to be connected with it by the legal order, may indeed correspond to real juridical states of affairs. When Gierke says that the real object of a right can only be the specific object-sphere of the rēs affected by this right, this is doubtless correct. But a jus in rē may indeed be vested in an immovable in such a way that it is independent of the particular person entitled to it, and remains valid even when the latter is temporarily lacking. This state of affairs is found, e.g., in the so-called ‘Reallasten’ of Germanic law.

It is doubtless true that, as long as the entitled subject is not determined, the right cannot be actualized.

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But it remains inherent in the immovable. It is really objectified in the latter. There is nothing in the modal structure of the juridical subject-object relation which prevents the making of such an objectified right itself into the object of another right, for instance of a right of mortgage.

Both the cultural and the economical retrocipations are doubtless present in the ‘Reallast’. It is indeed a juridical objectification of a cultural and economical interest and, as such, the incorporation of a retributive interest: it is an objective juridical sphere in the immovable related to the right into whose object it has been made.

In this objective sphere of juridical power the original juridical subject-object relation is maintained. This is not contradictory. It has appeared that also in an objective sensory perceptual image, subject-object relations may be implied, for instance in the objective perceptual image of a mother-bird feeding its young ones¹. The subject-object relation between the birds and their food is essential even in its sensory objectification.

It is true that we are confronted here in the first place with the sensory objectification of a biotic subject-object relation. But in this context we have referred to the implicit character of the objectification². In the instance concerned there is also a psychical subject-object relation between the birds and the food, which is implicitly objectified in the sensory perceptual image of the mother-bird feeding its young ones. In this image one can observe how the young birds perceive the food. In other words the objective sensory perceptual image also implies a sensory objectification of subject-object relations between sensory animal perception and the food as object of this animal perception.

So it appears that modal subject-object relations may even be objectified in the law-sphere in which they function. If this is correct there is nothing surprising in the fact that in the juridical law-sphere rights may become objects of other rights.

Our enquiry into the possibilities of juridical objectification can be continued by asking whether a competence implying juridical authority over persons is to be made into the object of a subjective right. This question is of great importance with regard to the problem of the so-called public rights.

In the undifferentiated state of the secular under-structure of

1 Cf. p. 374 ff. of this Volume.

2 Cf. p. 373.

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medieval society juridical authority over persons could doubtless be the object of a private subjective right. The so-called regalia were conceived as rēs in commercio; they had an economical value not only because of their private proceeds, but also because the social honour connected with the private possession of a juridical authorithy over persons was a desired good.

Since the rise of the modern state, as an institution of public interest, as a rēs publica, connected with the general process of social differentiation, no single juridical authority over persons can be the object of a private right.

If there are public rights to be acknowledged, their subject cannot be a private person, but only the body politic and its parts.

In this respect there is no difference between states under monarchical and those under non-monarchical government. In a real state, in contradistinction to the undifferentiated feudal regnum, the person invested with the royal office cannot have a private right to this office notwithstanding the fact that the kingship may be hereditary and the succession to the throne is regulated in the constitution. The public office of kingship is never an object, neither of a private nor of a public right. The person who, according to the constitution, is called to the throne, has only a public claim to the kingship, which in principle lacks the character of a subjective right. But the person of the King has doubtless a subjective right to the royal income and to the use of the royal palaces, and these rights have a public as well as a private aspect.

In the object of public rights there must also be present a juridical objectification of cultural and economical interests, but these interests may not be of a private character. In this sense the state has a public right to taxes, to public rivers and roads etc. But it is meaningless to speak of a public right of the state to the obedience of its subjects, as does Georg Jellinek.

The legal duty of obedience does not function in a juridical subject-object relation, in which the obedience is the object of a legal duty and of a corresponding right.

Obedience as such is only subjective behaviour in conformity to legal norms. It is the content, not the object of a legal duty.

No more can the parental legal authority over infants in a differentiated society be a subjective right, nor the object of a subjective right of the parents.

It lacks, as such, a juridical object, and is only a legal relation between subjects, an office inherent in the institution of the

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natural family. Quite different was the legal figure of the patria potestas in the ancient Roman domestic community, which was not a natural family but rather a primitive undifferentiated community. This undifferentiated domestic power of the paterfamilias was indeed at the same time an office and a subjective right of propriety implying the legal faculty to sell the children subjected to the patria potestas.

It cannot be explained from the natural structure of the family, and should be sharply distinguished from the natural legal authority of the parents over their infants. Therefore it is very confusing that the latter is usually conceived by legal theory as a subjective right.

It should always be borne in mind that in the subject-object relation implied in a right the object can only be a juridical objectification of a cultural and economical interest. This gives the concept of subjective right its natural restriction.

The cosmic boundaries of the possibility of juridical objectification and the juridical meaning of slavery.

This is also important for a true insight into the meaning of slavery. Never can the full personality of a human being, or even his subjective moral and faith-functions as such, be juridical objects. On this the Christian Church has laid emphasis from the outset, also when it could oppose the institution of slavery only indirectly¹.

For this reason Stammler's opinion that slavery makes human personality as such a juridical object, is untenable even in a juridical sense.

The juridical object in itself is no more a cultural and an economic interest than an objective psychical perceptual image is identical with the pre-psychical aspects of a thing perceived. But a juridical object, such as the object of a subjective right, cannot

1 Cf. e.g. Lactantius, Div. Instit. 5, 15: ‘nam cum omnia humana non corpore, sed spiritu metiamur, tametsi corporum sit diversa condicio, nobis tamen servi non sunt, sed eos et habemus et dicimus spiritu fratres, religione conservos.’ [for, since we judge of whatever is human by spiritual and not by bodily standards, they are no slaves to us. And although their bodily condition may be different, we not only hold them to be brothers in a spiritual sense, and fellow servants in religion, but we call them so too.]
In his De benef. 3, 20 ff also Seneca had declared himself against the extension of slavery to the ‘spiritual’. But in other writings, he speaks in a quite different strain! (e.g., De ira 3, 10, 4; 3, 37, 2).

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exist without its substratum of a cultural and economical interest. For it refers to the subjective power of disposal and enjoyment in the meaning of retribution.

Juridical power of disposal and enjoyment is only possible with respect to objects that are juridically assignable on the basis of their capability of being objects of cultural control and of economic valuation and allotment. And this is not possible with regard to human personality as such.

The so-called rights of personality and the juridical subject-object relation.

It might be objected that this view is in danger of neglecting the whole of the modern development, which has come to recognize personality rights by the side of property rights. But this argument is due to a misunderstanding.

It can hardly be denied that in the ‘personality rights’ recognized by Dutch law, - viz. the rights to a patent, to a trademark, copyright, and the right to a trading-name, - an economic interest of the party entitled has been objectified juridically. This does not alter the fact that there is indeed a basis for refusing to put the so-called ‘personality rights’ on a level with the property rights. A correct distinction between them can only be made insofar as these personality rights are characterized by a special kind of subject-object relation. For, quite unlike the property rights, they are related to the individual personality of their subject.

This is no reason to proclaim the personality itself the object of these rights. It is not even a reason to split copyright and the right to a patent into two dissimilar subjective rights, viz. an ‘individual right’ to one's own personality, and a ‘right to immaterial goods’ in the sense of a real right to a creative idea or invention. This is what the famous German jurist Kohler does. But he overlooks the fact that the objectified product of the mind is the only possible object of a copyright or a right to a patent, and remains indissolubly bound up with its individual maker or inventor, in contradistinction to other juridical objects. It remains his creation or invention, although others may make use of it on certain conditions, and even acquire real rights to it. It must be immediately granted that modern civil law protects the individual personality in the ‘personality rights’ in a special way. But the special legal protection of the personality as such, without any demonstrable real juridical object, does not require

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an impossible subjective right to personality. This appears from the way in which the Dutch Civil Code accords protection to a person's reputation and to his life. The same course might be taken to protect a person's name, portrait etc. while dropping the requirement of guilt on the part of him who encroaches upon this protected sphere of personality. In this way there is not any need of the construction of a subjective right.

The theory of personality-rights tries to make the personality itself an object of subjective rights¹. This idea is merely inherited from the doctrine of the innate fundamental rights of man, one of the most famous chapters of Humanistic natural law since Locke and Christian Wolff. But, as remarked above, this natural law construction of subjective right lacked any orientation to the juridical subject-object relation.

1 Cf. e.g. Gierke's definition: ‘Personality-rights we call rights safeguarding their subject the control of a part of his own personality-sphere. By this name they are designated as “rights to one's own person”, and consequently distinguished from all other rights by referring to the peculiarity of their object.’ [‘Persönlichkeitsrechte’ nennen wir Rechte, die ihrem Subjekte die Herrschaft über einem Bestandteil der eigenen Persönlichkeitssphäre gewährleisten. Mit diesem Namen werden sie als ‘Rechte an der eigenen Person’ gekennzeichnet und somit durch den Hinweis auf die Besonderheit ihrer Objektes von allep anderen Rechten unterschieden’] (Deutsches Privatrecht, p. 702).
Cf., however, also op. cit. p. 765 where Gierke admits with respect to copyright that the objectified ‘Geisteswerk’ (intellectual product) is an object proper, insofar as it remains the personal property of its maker (Persönlichkeitsgut seines Schöpfers). A younger adherent of Gierke's theory, Reinhardt, however, in his inaugural oration, delivered in the University of Cologne on: Das Persönlichkeitsrecht in der geltenden Rechtsordnung (1931) considers the object of such rights as copyright and the right of patent to be the characteristic of man's personality in contradistinction to ‘goods of the outerworld’. According to him it is not the objectified work of an author or of an inventor that is the true object of copyrights and rights of patent, but the essence (Wesenheit) of the originator (‘Urheber’) which expresses itself on its account. I would modestly ask where in this case the subject of these rights must be sought. Perhaps outside of the ‘Wesenheit des Urhebers’ (the originator's essential being)?