a priori foundations of civil lay

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tETHEIA

al ournal hilosophy

Josef Seifert

Damian Fedoryka Michael Healy

Francesca Murphy ?-oy

Varghese

Consultants For Aletheia:

---

Evanghelos

Moutsopoulos, Greece

Tarcisio

Padilha Brazil

Juan-Miguel

Palacios Spain

Andrzej Poltawski, Poland

tFritz-Joachim

von

Rintelen,

West

Germany

Balduin Schwarz, Austria

Stephen Schwarz, USA

Wladislaw

Strozewski, Poland

Andrzej Szostek, Poland

Tadeusz

Styczen, Poland

Wolfgang

Waldstein,

Austria

Winfried

Weier Germany

Fritz

Wenisch Austria-USA

.. In

and Logic 1984)

: luenc::no glcal Realism as Classical Philosophy 1985)

nd

inside

ck cover for pu lic tion d t

1984

by Aletheia

OPPERTP

The

International

Academy

Philosophy

Press

Britain Irving Texas 75060

253-2884 / 253-6444

ISSN

0149-2004

L TH I

AN INTERNATIONAL JOURNAL OF PHILOSOPHY

VOLUME III

PHILOSOPHY

OF LAW

1983

ERRATA

1.

In se r t

between l i nes 8-9 from

the

top

on

p

92:

/

i s

divided

between the

r ep resen ta t ive

hear ing and th e ac t of the other

2. I n se r t between l i nes 4-5 from the

bottom on p.

106: /

t ions o r judgments. But

we

have

d i s -

t i n c t

kinds of

propos i t ions in

The International Academy of Philosophy Press


2/135

ACKNOWLEDGEMENTS

e

wish to

thank the

De Rance Foundation for

generous

grant

part

of

which has

been pu t towards

the

publication

of

this issue

of

letheia

e

lso thank

Mr

Alphons Horten

of West

Germany

for

his generous

support of letheia

The preparat ion of this

volume

by John

Crosby

wh o made ll the

translations

wrote

th e biographical sketch of Reinach an d

th e critic l

study of Reinach was made

possible

by

grant

to

him

from the Transla-

tion Program of th e National Endowment

for

th e

Humanities


3/135


4/135

T BLE

OF CONTENTS

John

Crosby:

BriefBiography of Reinach ix

Reinach as a Philosophical Personality

Edmund Husserl xi

Dietrich von

Hildebrand

xv

Edith

Stein

xxvii

Hedwig Conrad-Martius xxx

dolf Reinach The Apriori Foundat ions of

th e

Civil Law

John Crosby: Reinach s Discovery of

the

Social cts 143

Discussion:

195

Josef Seifert:

Is

Reinach s

Apriorische

Rechtslehre More

Important for Positive Law

than

Reinach Himself Thinks?

197

T BLE

OF CONTENTS

John

Crosby:

BriefBiography of Reinach ix

Reinach as a Philosophical Personality

Edmund Husserl xi

Dietrich von

Hildebrand

xv

Edith

Stein

xxvii

Hedwig Conrad-Martius xxx

dolf Reinach The Apriori Foundat ions of

th e

Civil Law

John Crosby: Reinach s Discovery of

the

Social cts 143

Discussion:

195

Josef Seifert:

Is

Reinach s

Apriorische

Rechtslehre More

Important for Positive Law

than

Reinach Himself Thinks?

197


5/135

Brief Biographyof einach

ix

A Brief

Biography

of

Reinach

1

by John F Crosby

Adolf

Reinach was born

in

Mainz

on

December 23, 1883,

into

an

established Jewish

family

of the city. Already in the gymnasium of Mainz

he discovered

Plato,

and

developed a love fo r his philosophy which he

never lost. Reinach

began

his

university

s tudies in

th e

fall

of

1901

in

Munich,

where

he

studied

philosophy and psychology

with Theodor

Lipps

and

also

took

courses

in

jurisprudence and

history.

In

1905

he

completed his doctorate under Lipps with a dissertation

entitled, On

th e

Concept of Causality in

the Present Criminal

Code while minoring in

criminal law

and

history.

It

was

Alexander

pfander who at

this t ime

made

Reinach

and

other

students

of Lipps aware of Husserl's ogical Investigations which made a

great

impression on them, andwhiCR made

them

break completely

with

whatever attachment

they

may

have had to

th e

psychologism repres

ented by Lipps. In th e

spring of

1905 some

of them, including Reinach,

went

to

Gottingen to study

with

Husser . Reinach

was

convinced

that

philosophy had

been put on

a new basis by

Husserl's breakthrough

to

objective

being

and

by

th e

exactness

and stringency which he

cultivated

in

his work.

After one semester in Gottingen, however, Reinach's work

with

Husser

was

interrupted by his legal studies,

which

apparently his

parents had insisted on . These studies

he pursued in Munich and

Tiibin

gen,

and in

1907

he

completed

them

by

passing th e ]uristische StaaJsprufung

in

Wiirttemberg. He

immediately resumed his

philosophical studies in

Munich, working on problems of epistemology and logic and at tending

courses

in

mathematics and theoretical

physics.

June

of

1909

he

completed his Habilitation

under Husser

in

Gottingen

with

a

work entitled

The

Nature

of

th e

Judgment.

Though

this

work

ha s

been lost i t seems that much, perhaps all of it s content was

taken over in Reinach's monograph, Toward

the Theory

of

the

Negative

Judgment which appeared

in 1911

in Munich in a Festschrift

fo r

Theo

do r

Lipps.

After

his Habilitation

Reinach began

teaching as

Husserl's

assistant in G6ttingen.

The

unanimous testimony of h is

students

is that

he was

an extraordinarily

gifted teacher,

who was

especially

admired

fo r

th e

clari ty of

his

thought.

Many

of

these

students,

such

as

A.

Koyre,

T.

Conrad, D. von Hildebrand,

and

Stein looked

more

to Reinach than to

Husserl

as

to their real master in philosophy.

his classes

Reinach

did fa r

more than just mediate th e thought of Husserl

to

his s tudent s; he

understood phenomenology as a

philosophical

realism,

and

while Husserl

was developing

his transcendental

phenomenology,

Reinach was devel-


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THE

PR OR FOUND TIONS

OF

THE

IVIL

L W

by dolfReinach

T

ransla ted by

ohn

rosby


18/135

The priori

Foundations

of the Civil

w XXXIII

TRANSLA

TOR S FOREWORD

I wish to thank

Prof.

Josef Seifert

of the International Academy

of

Philosophy,

and

Prof. Wolfgang Waldstein, chairman of the

Department

of Roman

Law

in

the

Law Faculty

of t he

University

of

Salzburg, fo r

the

help they gave me

in

making this

translation.

I also

wish to

thank the Translation Program of th e National Endow

ment

for the

Humanities

for a generous grant

which

enabled me to make

the translation and

to

write the critical study

which

is here published for

the f irs t t ime, Reinach s Discovery of

th e

Social Acts.

As for

Reinach s

footnotes, I have kept them just as they

appear

in

his

text,

with th e exception

of

the

one

originally

English work

from

which

he quotes below, Hume s Treatise on Human Nature which will

of

course

be

quoted

according

to the

English original.

I

have added some

notes

of my

own which have the

purpose

of

explaining

my translation of

some

important

concepts,

or

of

offering a remark on

what

Reinach

means,

or

of making a cross-reference. More

properly

critical remarks I

have reserved

for my study of Reinach

which

immediately follows the

translation.

The

notes

which

I have added are printed in italics

and

enclosed in brackets .

Reinach s monograph was first published in th e first issue (1913) of

Husserl s

Jahrbuch

fur Philosophie und phanomenologische Forschung, pp. 685-847;

reprinted

in

Reinach s

Gesammelte Schriften Halle:

Niemeyer,

1921),

pp.

166-350;

reprinted again

under

the title Zur Phiinomenologie des Rechts

(Munich: Koset

1953) , 215

pp. What follows is the first English transla

tion of

Reinach s monograph , and in

fact as fa r as I

can telt

th e first

translation

of it

into

another language,

except

fo r the Spanish

translation

of

Jose Luis

Alvarez,

Los Fundamentos prioristicos

del

Derecho Civil Barcelona:

Libreria

Bosch 1934), with a

foreword by

Jose

M.a Alvarez

M.

Taladriz.

By the

way, this translation

includes a

valuable bibliography of mose

if

not

alt of

the German

works

in

philosophy

and

jurisprudence as of

1934

which

deal

with Reinach s monograph.

John

Crosby

CONTENTS

INTRODUCTION

1 The

idea

of

the

apriori

theory

of r ight Rechtslehre

CHAPTER ONE

Claim, Obligation and Promise

Claim

and obligation

The

social acts

4

The

act

of

promising as the origin

of

claim

and

obligation

CHAPTER TWO

Basic Themes of the prioriTheory of Right

5 Rights and obligations. Property

6

The

apriori laws

determining the

origin of relations

of right

7 Representation

CHAPTER THREE

The prioriTheory of Right and

the

Positive w

8

Enactments

and the proposit ions which express enactments

9

The

positive law

10 The

apriori

theory

of right

and the natural

law


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196

fo r pos it ive law

than

do th e condi tional apr io ri laws. Crosby also

r j ~ t s Husserl s

interpretation of

Reinach s

t heory of apriori right as

entIrely non-normative. He

believes that a

more differentiated account

of

th e wh?le of

Reinach s

work will

allow

us to elucidate

more

clearly

both th :

.dIfferences

and th e agreements between Reinach s theory

and

th e

posItlon

espoused

in

th e

following pages.

These, and

many other of

Crosby s observations

as

well

as

those of other readers

will,

we hope, be

further developed

and

will

enliven th e discussions of apriorische Rechtslehre

which

will

be printed in further issues of letheia

REINACH S APRIORISCHE RECHTSLEHRE

MORE IMPORTANT

FOR

POSITIVE LAW THAN

REINACH HIMSELF THINKS?


116/135

Josef

Seifert

by Josef

Seifert

The International Academy of Philosophy

Introduction

There is

perhaps no other

work

which could

fulfill

better

than

Reinach s

ieapriorischen

Grundlagen

des burgerlichen Rechts th e r ole of an

exemplary

philosophical analysis which

demonstrates to

it s reader th e

rigor

of th e authentic philosophical-phenomenological method and th e

character

of philosophy as a science in th e classical

sense

of t he t erm

scientia

as a

rationally grounded,

certain,

and systematic evident knowl

edge

of

objective being

and

truth. The

masterfully elaborated

investiga

tions which form the main

content of

this book seem

to

s i l n ~ any

objection and to demand respect and admirat ion rather than

a cri tical

commentary,

especially in

this

issue

of letheiawhich commemorates

th e

hundreth

anniversary

of

Reinach s birth.

And yet ,

th e philosopher s task stated

by

the Platonic

Socrates,

to

love

all

truth and to

love

in everything, which constitutes th e lAP

Motto, imposes upon us a duty which is s ti ll higher than reverence

for

one s great

models and teachers, and which

refers a t the

same time

to the

condition

of

all

true reve rence fo r pe rsons, an

obligation

which

th e

Ancients formulated thus: amicus Plato, magis

arnica

veritas. We

must

turn

even

to the greatest and most imposing works, written by minds

whose

brilliance

and

depth

far surpass

our own,

and

ask the

question

about th e truth of their positions.

To

do

this

is

no t

only

a higher

duty

of

th e

philosopher

than

reverently to open oneself to

greater

minds; only

such a critical

and

Simultaneously

humbly listening spirit, in which

th e

philosopher

opens

himself to

all

truth seen

by

other thinkers in l ight of

all

reality

accessible

to

his

own cognition,

will

be

a

true s ign of reverence

for

others as philosophers and lovers of truth. Thus

it seems

fitting to honor

Reinach in thi s volume, dedicated to

his memory

and inspired by an

197


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4

241

S

J

Hamburger

M. Healy

Table of

Contents

ofVolume I: Metaphysics two installments

The Idea of Value

and

the Reform of

The Traditional Metaphysics of

Bonum

Liebe,

Schonheit

and Einheit

Substance

and

Spiritual

Substance:

A

Criticism of

David

Hume

D. von Hildebrand The Essence of Love and

th e

Need for

a Phenomenological Metaphysics

translated

from

the German by

M.

Heyne-Seifert

J Crosby

An International Journal

of

Philosophy

ALETHEIA

Can Serve As An Excellent

Textbook

For

Philosophy

Courses Or

Special Topic

Seminars


134/135

Aletheia OPPERTP

M. Waldstein

J

Seifert

D. Ferrari

Table of

Contents

of Volume II: Epistemology

A Reinach A Contribution Toward the Theory

th e

Negative Judgment

translated

from

the German by Don Ferrari

Retention - Memory, Perception and

the Cognit ion of Enduring

Objects

Expression

and

Knowledge of

Other Persons

Karol Cardinal Wojty.ra Pope John Paul

II

as Philosopher and the Cracow/Lublin

School of Philosophy

n emori m x cheler

8

74 -

1

92

8

D.

Ferrari

F

Wenisch

Seifert

W Hoeres

Crit ique of

the Transcendental

Metaphysics of

Knowing:

Phenomenology and Neo-Scholastic

Transcendental Philosophy translated

from

the German by W Marshner

Essence and Existence: A New

Foundation of Classical Metaphysics

on the Basis of Phenomenological

Realism, and a Critical Investigation

of

Existentialist Thomism

The Finiteness of the

Past:

A Dialogue

A Reply to

the Finiteness

of

the

Past

Metaphysics two installments,

1977

Epistemology 1981

Philosophy of

Law 1983

Epistemology

Logic 1984

Phenomenological Realism as Classical

Philosophy

1985

EACH VOLUME FEATURES A UNITY OF THEME

DEVOTED

PRIMARILY

OR

EXCLUSIVELY

TO

ONE FIELD OF PHILOSOPHY

The International Academy of Philosophy Press

403

S Britain Irving, Texas 75060

Tel. 214

253-2884

/

253-6444

Special

Features of

L TH I

*The only

publication representing phenomenology

in

its

original form as a philosophical realism

*Each issue will be devoted to one theme

or

field of philosophy,

thus making it suitable

for

use in classes

*Articles of various lengths, including full monographs

*Translations of hitherto untranslated

works

Vol. I

Vol. II

Vol. III

Vol. IV

Vol. V

Table

of

ontents

of

Volume IV

1984

Reinach What is Phenomenology? (Translated

by

D. Willard .

243

Evident Knowledge Concerning

Table

of

ontentsof Volume V 1985

Theme Phenomenological Realism

lassical Philosophy

D. von Hi ldebrand Fundamental e Akte. Ein

Beitrag

zur

Erkenn

tnistheorie, Spr

achphilosophie,

und

Anthropologie logischer

Akte.

An Appreciation of Max Scheler s

Essay on Humility, Introduction

and

Commentary

Humility

Scheler s Idea of Man: Phenomenology

Versus

Metaphysics

in th e

Late

Works

Reply to th e Dialogue The Finiteness

of

th e Past

W Craig

B Fiand

M.

Scheler

F Dunlop

242


135/135

Theme Epistemology and Logic

Dedicated to Roman Ingarden

1893-1970

Things-in-Themselves and

Appearances - Phenomenology as

Noumenology: A Thematic Study into

the

Epistemological-Metaphysical

Foundations

of Phenomenological

Realism, a Reformulation

of the

Phenomenological

Method/ and a

Critique of Transcendental

Philosophy and

Phenomenology.

Seifert

Theory of Knowledge

as

Phenomenology

of

th e

Essence of

Cognitive

Experiences

and

Their

Correlates.

First English

translation

from th e Polish

by A. Szylewicz .

Teoria

del Objeto Puro.

La Pensee Philosophique de Karol

Wojtyla

et

la Faculte de Philosophie de

L

Universite

de Lublin.

Insight and

Objective

Necessity:

A

Demonstration

of

the

Existence

of

Propositions

which are Simultaneously

Informative and

Necessarily

True.

Reply to Kalinowski: By Way of an

Addendum to

the Addenda.

(Translated

by D.

Fedoryka .

Freedom

and ~ n i t y in th e Work

of

Karol Wojty}a.

Sobre

la Naturaleza de las Leyes

Empiricas.

Roman Ingarden s Aesthetic Program.

(Translated by

D. Fedoryka .

Subjectivity and Philosophy.

F Wenisch

A. Millan-Puelles

G. Kalinowski

R.Ingarden

T. Styczen

M. Garcia-Baro

A.

Poltawski

W Strozewski

D.

Fedoryka

a priori foundations of civil lay

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