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questions point to what is in itself morally wrong。
But in relation to a court of justice… and generally in the civil
state… if it be assumed there are no other means of getting to the
truth in certain cases than by an oath； it must be adopted。 In
regard to religion； under the supposition that every one has it； it
may be utilized as a necessary means （in causu necessitatis）； in
behoof of the legitimate procedure of a court of justice。 The court
uses this form of spiritual compulsion （tortura spiritualis） as an
available means； in conformity with the superstitious propensity of
mankind； for the ascertainment of what is concealed； and therefore
holds itself justified in so doing。 The legislative power； however； is
fundamentally wrong in assigning this authority to the judicial power；
because even in the civil state any compulsion with regard to the
taking of oaths is contrary to the inalienable freedom of man。
Official oaths； which are usually promissory； being taken on
entering upon an office； to the effect that the individual has sincere
intention to administer his functions dutifully； might well be changed
into assertory oaths； to be taken at the end of a year or more of
actual administration； the official swearing to the faithfulness of
his discharge of duty during that time。 This would bring the
conscience more into action than the promissory oath； which always
gives room for the internal pretext that； with the best intention； the
difficulties that arose during the administration of the official
function were not foreseen。 And； further； violations of duty； under
the prospect of their being summed up by future censors； would give
rise to more anxiety as to censure than when they are merely
represented； one after the other； and forgotten。
As regards an oath taken concerning a matter of belief （de
credulitate）； it is evident that no such oath can be demanded by a
court。 1。 For； first； it contains in itself a contradiction。 Such
belief； as intermediate between opinion and knowledge； is a thing on
which one might venture to lay a wager but not to swear an oath。 2。
And； second； the judge who imposes an oath of belief； in order to
ascertain anything pertinent to his own purpose or even to the
common good； commits a great offence against the conscientiousness
of the party taking such an oath。 This he does in regard both to the
levity of mind； which he thereby helps to engender； and to the
stings of conscience which a man must feel who to…day regards a
subject from a certain point of view； but who will very probably
to…morrow find it quite improbable from another point of view。 Any
one； therefore； who is compelled to take such an oath； is subjected to
an injury。
Transition from the Mine and Thine in the State
of Nature to the Mine and Thine in the
Juridical State Generally。
41。 Public Justice as Related to the Natural
and the Civil State。
The juridical state is that relation of men to one another which
contains the conditions under which it is alone possible for every one
to obtain the right that is his due。 The formal principle of the
possibility of actually participating in such right； viewed in
accordance with the idea of a universally legislative will； is
public justice。 Public justice may be considered in relation either to
the possibility； or actuality； or necessity of the possession of
objects… regarded as the matter of the activity of the will… according
to laws。 It may thus be divided into protective justice （justitia
testatrix）； commutative justice （justitia commutativa）； and
distributive justice （justitia distributiva）； in the first mode of
justice； the law declares merely what relation is internally right
in respect of form （lex justi）； in the second； it declares what is
likewise externally in accord with a law in respect of the object； and
what possession is rightful （lex juridica）； and in the third； it
declares what is right； and what is just； and to what extent； by the
judgement of a court in any particular case coming under the given
law。 In this latter relation； the public court is called the justice
of the country； and the question whether there actually is or is not
such an administration of public justice may be regarded as the most
important of all juridical interests。
The non…juridical state is that condition of society in which
there is no distributive justice。 It is commonly called the natural
state （status naturalis）； or the state of nature。 It is not the social
state； as Achenwall puts it； for this may be in itself an artificial
state （status artificialis）； that is to be contradistinguished from
the 〃natural〃 state。 The opposite of the state of nature is the
civil state （status civilis） as the condition of a society standing
under a distributive justice。 In the state of nature； there may even
be juridical forms of society such as marriage； parental authority；
the household； and such like。 For none of these； however； does any law
a priori lay it down as an incumbent obligation： 〃Thou shalt enter
into this state。〃 But it may be said of the juridical state that： 〃All
men who may even involuntarily come into relations of right with one
another ought to enter into this state。〃
The natural or non…juridical social state may be viewed as the
sphere of private right； and the civil state may be specially regarded
as the sphere of public right。 The latter state contains no more and
no other duties of men towards each other than what may be conceived
in connection with the former state； the matter of private right is；
in short； the very same in both。 The laws of the civil state；
therefore； only turn upon the juridical form of the coexistence of men
under a common constitution； and； in this respect； these laws must
necessarily be regarded and conceived as public laws。
The civil union （unio civilis） cannot； in the strict sense； be
properly called a society； for there is no sociality in common between
the ruler （imperans） and the subject （subditus） under a civil
constitution。 They are not co…ordinated as associates in a society
with each other； but the one is subordinated to the other。 Those who
may be co…ordinated with one another must consider themselves as
mutually equal； in so far as they stand under common laws。 The civil
union may therefore be regarded not so much as being； but rather as
making a society。
42。 The Postulate of Public Right。
From the conditions of private right in the natural state； there
arises the postulate of public right。 It may be thus expressed： 〃In
the relation of unavoidable coexistence with others； thou shalt pass
from the state of nature into a juridical union constituted under
the condition of a distributive justice。〃 The principle of this
postulate may be unfolded analytically from the conception of right in
the external relation； contradistinguished from mere might as
violence。
No one is under obligation to abstain from interfering with the
possession of others； unless they give him a reciprocal guarantee
for the observance of a similar abstention from interference with
his possession。 Nor does he require to wait for proof by experience of
the need of this guarantee； in view of the antagonistic disposition of
others。 He is therefore under no obligation to wait till he acquires
practical prudence at his own cost； for he can perceive in himself
evidence of the natural inclination of men to play the master over
others； and to disregard the claims of the right of others； when
they feel themselves their superiors by might or fraud。 And thus it is
not necessary to wait for the melancholy experience of actual
hostility； the individual is from the first entitled to exercise a
rightful compulsion towards those who already threaten him by their
very nature。 Quilibet praesumitur malus； donec securitatem dederit
oppositi。
So long as the intention to live and continue in this state of
externally lawless freedom prevails； men may be said to do no wrong or
injustice at all to one another； even when they wage war against
each other。 For what seems competent as good for the one is equally
valid for the other； as if it were so by mutual agreement。 Uti
partes de jure suo disponunt； ita jus est。 But generally they must
be considered as being in the highest state of wrong； as being and
willing to be in a condition which is not juridical； and in which；
therefore； no one can be secured against violence； in the possession
of his own。
The distinction between what is only formally and what is also
materially wrong； and unjust； finds frequent application in the
science of right。 An enemy who； on occupying a besieged fortress；
instead of honourably fulfilling the conditions of a capitulation；
maltreats the garrison on marching out； or otherwise violates the
agreement； cannot complain of inju