power. If natural right is identical with
non-historical right, then the first doctrine is for the modern state
that of natural right, the second that of historical right. However much
the boundaries of that recognized liberty have changed in the course of
time, the consciousness that such boundaries existed was never
extinguished in the Teutonic peoples even at the time of the absolute
state.[113]

This liberty accordingly was not created but recognized, and recognized
in the self-limitation of the state and in thus defining the intervening
spaces which must necessarily remain between those rules with which the
state surrounds the individual. What thus remains is not so much a right
as it is a condition. The great error in the theory of a natural right
lay in conceiving of the actual condition of liberty as a right and
ascribing to this right a higher power which creates and restricts the
state.[114]

At first glance the question does not seem to be of great practical
significance, whether an act of the individual is one directly permitted
by the state or one only indirectly recognized. But it is not the task
of the science of law merely to train the judge and the administrative
officer and teach them to decide difficult cases. To recognize the true
boundaries between the individual and the community is the highest
problem that thoughtful consideration of human society has to solve.

FOOTNOTES:

[Footnote 108: "The most high and absolute power of the realm of England
consisteth in the Parliament ... all that ever the people of Rome might
do, either in _centuriatis comitiis_ or _tributis_, the same may be done
by the Parliament of England, which representeth and hath the power of
the whole realm, both the head and the body." _The Commonwealth of
England_, 1589, Book II, reprinted in Prothero, _Select Statutes and
Documents of Elizabeth and James I._, Oxford, 1894, p. 178.]

[Footnote 109: 4 _Inst._ p. 36.]

[Footnote 110: Art. 63. Stubbs, p. 306.]

[Footnote 111: Art. 11. Stubbs, p. 527.]

[Footnote 112:

For years I have used my nose to smell with,
Have I then really a provable right to it?]

[Footnote 113: The idea of all individual rights of liberty being the
product of state concession has been recently advocated by Tezner,
_Gruenhuts Zeitschrift fuer Privat-und oeffentliches Recht_, XXI, pp. 136
_et seq._, who seeks to banish the opposing conception to the realm of
natural right. The decision of