127 SeeJhering, "Zweck im Recht"; Wundt, "Ethik," part i, ch. 3.
128 Gareis, "Encyklopadie" [vol. i of this Series], section 5, places the line between law and morals in this, that the former acts on external relations, the other on states of mind, or internal relations. [In this form, the distinction attempted is hardly stated with accuracy.-Eds.]
129 "System," Sec. 60.
130 Thus Wundt, "Ethik," part iii, chapter 4: "The purpose of law must necessarily be conceived as an ethical one. Although it is not customary to say so expressly in formulating specific rules, yet the principle is implied in these rules that according to general consent the intention of the law must never be interpreted so as to be in conflict with general ethical standards. Comp. also Savigny, "System des heutigen not differ from the possession of the hallway, and yet we should be much more inclined to admit the existence of a cause of action. For now another ethical motive is thrown into the balance, to wit: the high value placed on the undisturbed peace of a man's home, and on that account we incline to condemn A for not respecting B's rights, merely to escape the annoyance of getting wet. Our change of attitude need not imply complete consciousness of the ethical forces at work; in our juridical thinking we may simply project some conception, such as the unlawfulness of B's action, in such a manner as to comply with the ethical consideration.
As a matter of fact, such influences are easily demonstrated.131 For instance, what is known as the extraordinary mitigation in penal law in the Code of 1852,132 was originally really intended for extraordinary cases only, and the letter of the statute so provides. Yet its application has become so common that now it is the exception when the nominal penalty is imposed. A softening of our moral conceptions has increased the weight attributed to reasons for mitigation of punishment. As a consequence, the concepts here in question are being projected much farther than was intended by the law in 1852, or rather in 1803.
Here is a more concrete case: during a heavy shower, A takes refuge in the hallway of B and stays there till the worst of the rain is over, notwithstanding B, the owner, orders him away. In all probability we should dismiss an action of trespass by B, on the ground that the facts lacked some element necessary to constitute the cause of action - say for instance the "unlawfulness" of the entry. We shall realize, however, without difficulty that one of the effective motives of such a judgment is our deprecation of the unreasonable harshness of B, if we assume that it was not the hallway but the living room of B into which A intruded from the street and which he would not leave, although ordered to do so. The legal nature of the possession of the living room does romischen Rechts," section 15, where the object of all law is stated as the realization of the ultimate end of Man according to Christian ethics.
131 I do not mean to refer here to the open and conscious reception of a system of ethical principles, or a part thereof, into a legal code, such as takes place when the code itself directs the judge to decide, to some extent, according to "good morals" or the like. Comp. in this connection Steinbach ("Moral als Schranke des Rechtserwerbs und der Rechts-ausubung"). He calls the influence of morals on the administration of justice merely negative, consisting in this, that "Law declines to lend its compulsory force when it is claimed on behalf of acts disapproved by Morals."
132 OSG Sec. 54.
Occasionally, our ethical volition interpolates an independent premise, necessary to our conclusion as an intermediate link, because from a moral standpoint we insist on this intermediate link. We may assume it as something that goes without saying, or we may not realize at all that we are interpolating it. Thus, in his treatise133 Pfaff-Krainz infers from section 166 of the Austrian Civil Code, in which illegitimate children are given a cause of action for maintenance against their parents, that "legitimate children also may bring an action for maintenance against their parents," although nowhere does the statute expressly give them this right.134 This form of reasoning Pfaff-Krainz designates "conclusio a minori ad majus." However, the concepts "illegitimate children" and "legitimate children" do not bear to each other the relation of a part to the whole. In fact they do not stand in a relation of quantity at all, neither the one nor the other is "minus" or "majus." The conclusion becomes possible135 merely by the interposition of a concealed premise, let us say this: "Legitimate children ought not to have fewer rights than illegitimate." This would be a premise originating in our high ethical rating of the institution of matrimony. Consequently the power of conviction possessed by the above conclusion is by no means based on its logical stringency but on the force of the direction of our will by means of which we place a higher value on matrimony than on free sexual intercourse.
133 "System des dsterreichischen Privatrechts," Sec. 13, note 6. 134 Nor is such express provision found in section 1220, OBGB, which is not referred to by Pfaff- Krainz.
135 Pfaff- Hoffmann ascribe this conclusion to the efficacy of legal tact.
We may observe also the influence of groups of value judgments other than those of morals, although they are considerably weaker. For instance, to call anybody an informer will beyond question be considered slanderous. It will hardly be possible to justify this view from the law alone. To "inform" is nothing more than to lay before the proper authorities suspicious or unlawful facts one has observed. From the point of view of law that is a very laudable act which in some cases may be even expressly enjoined. Why do we then project upon the epithet "informer" the concept of "slander," or any of the concepts contained in the definition of defamation of character? The intermediate premise is found in the traditional deprecation of informing, which may perhaps date back to the days of sycophancy in antiquity, and is familiar to the social system of chivalric point of honor. It may be, if this social disesteem should change, that this particular "projection" will become obsolete although the provisions of the code may remain intact.