1790
The
Science of Right
by
Immanual Kant
translated
by W. Hastie
1 Introduction
to the Science of Right.
General Definitions, And Divisions.
1.1 A.
What the Science of Right is.
The Science of Right has for its object the principles
of all the laws which it is possible to promulgate by external legislation.
Where there is such a legislation, it becomes, in actual application to it, a
system of positive right and law; and he who is versed in the knowledge of this
system is called a jurist or jurisconsult (jurisconsultus). A practical
jurisconsult (jurisperitus), or a professional lawyer, is one who is skilled in
the knowledge of positive external laws, and who can apply them to cases that
may occur in experience. Such practical knowledge of positive right, and law,
may be regarded as belonging to jurisprudence (jurisprudentia) in the original
sense of the term. But the theoretical knowledge of right and law in principle,
as distinguished from positive laws and empirical cases, belongs to the pure
science of right (jurisscientia). The science of right thus designates the
philosophical and systematic knowledge of the principles of natural right. And
it is from this science that the immutable principles of all positive legislation
must be derived by practical jurists and lawgivers.
1.2 B.
What is Right?
This question may be said to be about as
embarrassing to the jurist as the well-known question, "What is
truth?" is to the logician. It is all the more so, if, on reflection, he
strives to avoid tautology in his reply and recognise the fact that a reference
to what holds true merely of the laws of some one country at a particular time
is not a solution of the general problem thus proposed. It is quite easy to
state what may be right in particular cases (quid sit juris), as being what the
laws of a certain place and of a certain time say or may have said; but it is
much more difficult to determine whether what they have enacted is right in
itself, and to lay down a universal criterion by which right and wrong in
general, and what is just and unjust, may be recognised. All this may remain
entirely hidden even from the practical jurist until he abandon his empirical
principles for a time and search in the pure reason for the sources of such
judgements, in order to lay a real foundation for actual positive legislation.
In this search, his empirical laws may, indeed, furnish him with excellent
guidance; but a merely empirical system that is void of rational principles is,
like the wooden head in the fable of Phaedrus, fine enough in appearance, but
unfortunately it wants brain.
1. The conception of right- as referring to
a corresponding obligation which is the moral aspect of it- in the first place,
has regard only to the external and practical relation of one person to
another, in so far as they can have influence upon each other, immediately or
mediately, by their actions as facts. 2. In the second place, the conception of
right does not indicate the relation of the action of an individual to the wish
or the mere desire of another, as in acts of benevolence or of unkindness, but
only the relation of his free action to the freedom of action of the other. 3.
And, in the third place, in this reciprocal relation of voluntary actions, the
conception of right does not take into consideration the matter of the matter
of the act of will in so far as the end which any one may have in view in
willing it is concerned. In other words, it is not asked in a question of right
whether any one on buying goods for his own business realizes a profit by the
transaction or not; but only the form of the transaction is taken into account,
in considering the relation of the mutual acts of will. Acts of will or
voluntary choice are thus regarded only in so far as they are free, and as to
whether the action of one can harmonize with the freedom of another, according
to a universal law.
Right, therefore, comprehends the whole of
the conditions under which the voluntary actions of any one person can be harmonized
in reality with the voluntary actions of every other person, according to a
universal law of freedom.
1.3 C.
Universal Principle of Right.
"Every action is right which in itself,
or in the maxim on which it proceeds, is such that it can coexist along with
the freedom of the will of each and all in action, according to a universal
law."
If, then, my action or my condition
generally can coexist with the freedom of every other, according to a universal
law, any one does me a wrong who hinders me in the performance of this action,
or in the maintenance of this condition. For such a hindrance or obstruction
cannot coexist with freedom according to universal laws.
It follows also that it cannot be demanded
as a matter of right, that this universal principle of all maxims shall itself
be adopted as my maxim, that is, that I shall make it the maxim of my actions.
For any one may be free, although his freedom is entirely indifferent to me, or
even if I wished in my heart to infringe it, so long as I do not actually
violate that freedom by my external action. Ethics, however, as distinguished
from jurisprudence, imposes upon me the obligation to make the fulfillment of
right a maxim of my conduct.
The universal law of right may then be
expressed thus: "Act externally in such a manner that the free exercise of
thy will may be able to coexist with the freedom of all others, according to a
universal law." This is undoubtedly a law which imposes obligation upon
me; but it does not at all imply and still less command that I ought, merely on
account of this obligation, to limit my freedom to these very conditions.
Reason in this connection says only that it is restricted thus far by its idea,
and may be likewise thus limited in fact by others; and it lays this down as a
postulate which is not capable of further proof. As the object in view is not
to teach virtue, but to explain what right is, thus far the law of right, as
thus laid down, may not and should not be represented as a motive-principle of
action.
1.4 D.
Right is Conjoined with the Title or Authority to Compel.
The resistance which is opposed to any
hindrance of an effect is in reality a furtherance of this effect and is in accordance
with its accomplishment. Now, everything that is wrong is a hindrance of
freedom, according to universal laws; and compulsion or constraint of any kind
is a hindrance or resistance made to freedom. Consequently, if a certain
exercise of freedom is itself a hindrance of the freedom that is according to
universal laws, it is wrong; and the compulsion of constraint which is opposed
to it is right, as being a hindering of a hindrance of freedom, and as being in
accord with the freedom which exists in accordance with universal laws. Hence,
according to the logical principle of contradiction, all right is accompanied
with an implied title or warrant to bring compulsion to bear on any one who may
violate it in fact.
1.5 E. Strict
Right may be also Represented as the Possibilityof a Universal Reciprocal Compulsion in
harmony with the Freedom of All according to Universal
Laws.
This proposition means the right is not to
be regarded as composed of two different elements- obligation according to a
law, and a title on the part of one who has bound another by his own free
choice to compel him to perform. But it imports that the conception of right
may be viewed as consisting immediately in the possibility of a universal
reciprocal compulsion, in harmony with the freedom of all. As right in general
has for its object only what is external in actions, strict right, as that with
which nothing ethical is intermingled, requires no other motives of action than
those that are merely external; for it is then pure right and is unmixed with
any prescriptions of virtue. A strict right, then, in the exact sense of the
term, is that which alone can be called wholly external. Now such right is
founded, no doubt, upon the consciousness of the obligation of every individual
according to the law; but if it is to be pure as such, it neither may nor
should refer to this consciousness as a motive by which to determine the free
act of the will. For this purpose, however, it founds upon the principle of the
possibility of an external compulsion, such as may coexist with the freedom of
every one according to universal laws. Accordingly, then, where it is said that
a creditor has a right to demand from a debtor the payment of his debt, this
does not mean merely that he can bring him to feel in his mind that reason
obliges him to do this; but it means that he can apply an external compulsion
to force any such one so to pay, and that this compulsion is quite consistent
with the freedom of all, including the parties in question, according to a
universal law. Right and the title to compel, thus indicate the same thing.
The law of right, as thus enunciated, is
represented as a reciprocal compulsion necessarily in accordance with the
freedom of every one, under the principle of a universal freedom. It is thus,
as it were, a representative construction of the conception of right, by
exhibiting it in a pure intuitive perception a priori, after the analogy of the
possibility of the free motions of bodies under the physical law of the equality
of action and reaction. Now, as in pure mathematics, we cannot deduce the
properties of its objects immediately from a mere abstract conception, but can
only discover them by figurative construction or representation of its
conceptions; so it is in like manner with the principle of right. It is not so
much the mere formal conception of right, but rather that of a universal and
equal reciprocal compulsion as harmonizing with it, and reduced under general
laws, that makes representation of that conception possible. But just as those
conceptions presented in dynamics are founded upon a merely formal
representation of pure mathematics as presented in geometry, reason has taken
care also to provide the understanding as far as possible with intuitive
presentations a priori in behoof of a construction of the conception of right.
The right in geometrical lines (rectum) is opposed, as the straight, to that
which is curved and to that which is oblique. In the first opposition, there is
involved an inner quality of the lines of such a nature that there is only one
straight or right line possible between two given points. In the second case,
again, the positions of two intersecting or meeting lines are of such a nature
that there can likewise be only one line called the perpendicular, which is not
more inclined to the one side than the other, and it divides space on either
side into two equal parts. After the manner of this analogy, the science of
right aims at determining what every one shall have as his own with mathematical
exactness; but this is not to be expected in the ethical science of virtue, as
it cannot but allow a certain latitude for exceptions. But, without passing
into the sphere of ethics, there are two cases- known as the equivocal right of
equity and necessity- which claim a juridical decision, yet for which no one
can be found to give such a decision, and which, as regards their relation to
rights, belong, as it were, to the "Intermundia" of Epicurus. These
we must at the outset take apart from the special exposition of the science of
right, to which we are now about to advance; and we may consider them now by
way of supplement to these introductory explanations, in order that their
uncertain conditions may not exert a disturbing influence on the fixed principles
of the proper doctrine of right.
1.6 F. Supplementary
Remarks on Equivocal Right. (Jus Aequivocum).
With every right, in the strict acceptation
(jus strictum), there is conjoined a right to compel. But it is possible to
think of other rights of a wider kind (jus latum) in which the title to compel
cannot be determined by any law. Now there are two real or supposed rights of
this kind- equity and the right of necessity. The first alleges a right that is
without compulsion; the second adopts a compulsion that is without right. This
equivocalness, however, can be easily shown to rest on the peculiar fact that
there are cases of doubtful right, for the decision of which no judge can be
appointed.
1.6.1 I. Equity.
Equity (aequitas), regarded objectively,
does not properly constitute a claim upon the moral duty of benevolence or
beneficence on the part of others; but whoever insists upon anything on the
ground of equity, founds upon his right to the same. In this case, however, the
conditions are awanting that are requisite for the function of a judge in order
that be might determine what or what kind of satisfaction can be done to this
claim. When one of the partners of a mercantile company, formed under the
condition of equal profits, has, however, done more than the other members, and
in consequence has also lost more, it is in accordance with equity that he
should demand from the company more than merely an equal share of advantage
with the rest. But, in relation to strict right- if we think of a judge
considering his case- he can furnish no definite data to establish how much
more belongs to him by the contract; and in case of an action at law, such a
demand would be rejected. A domestic servant, again, who might be paid his
wages due to the end of his year of service in a coinage that became
depreciated within that period, so that it would not be of the same value to
him as it was when he entered on his engagement, cannot claim by right to be
kept from loss on account of the unequal value of the money if he receives the
due amount of it. He can only make an appeal on the ground of equity,- a dumb
goddess who cannot claim a bearing of right,- because there was nothing bearing
on this point in the contract of service, and a judge cannot give a decree on
the basis of vague or indefinite conditions.
Hence it follows, that a court of equity,
for the decision of disputed questions of right, would involve a contradiction.
It is only where his own proper rights are concerned, and in matters in which
he can decide, that a judge may or ought to give a hearing to equity. Thus, if
the Crown is supplicated to give an indemnity to certain persons for loss or
injury sustained in its service, it may undertake the burden of doing so,
although, according to strict right, the claim might be rejected on the ground
of the pretext that the parties in question undertook the performance of the
service occasioning the loss, at their own risk.
The dictum of equity may be put thus:
"The strictest right is the greatest wrong" (summum jus summa
injuria). But this evil cannot be obviated by the forms of right, although it
relates to a matter of right; for the grievance that it gives rise to can only
be put before a "court of conscience" (forum poli), whereas every
question of right must be taken before a civil court (forum soli).
1.6.2 II. The Right of
Necessity.
The so-called right of necessity (jus
necessitatis) is the supposed right or title, in case of the danger of losing
my own life, to take away the life of another who has, in fact, done me no
harm. It is evident that, viewed as a doctrine of right, this must involve a
contradiction, For this is not the case of a wrongful aggressor making an
unjust assault upon my life, and whom I anticipate by depriving him of his own
(jus inculpatae tutelae); nor consequently is it a question merely of the
recommendation of moderation which belongs to ethics as the doctrine of virtue,
and not to jurisprudence as the doctrine of right. It is a question of the
allowableness of using violence against one who has used none against me.
It is clear that the assertion of such a
right is not to be understood objectively as being in accordance with what a
law would prescribe, but merely subjectively, as proceeding on the assumption
of how a sentence would be pronounced by a court in the case. There can, in
fact, be no criminal law assigning the penalty of death to a man who, when
shipwrecked and struggling in extreme danger for his life, and in order to save
it, may thrust another from a plank on which he had saved himself. For the
punishment threatened by the law could not possibly have greater power than the
fear of the loss of life in the case in question. Such a penal law would thus
fail altogether to exercise its intended effect; for the threat of an evil
which is still uncertain- such as death by a judicial sentence- could not
overcome the fear of an evil which is certain, as drowning is in such
circumstances. An act of violent self-preservation, then, ought not to be
considered as altogether beyond condemnation (inculpabile); it is only to be
adjudged as exempt from punishment (impunibile). Yet this subjective condition
of impunity, by a strange confusion of ideas, has been regarded by jurists as
equivalent to objective lawfulness.
The dictum of the right of necessity is put
in these terms: "Necessity has no law" (Necessitas non habet legem).
And yet there cannot be a necessity that could make what is wrong lawful.
It is apparent, then, that in. judgements relating
both to "equity" and "the right of necessity," the
equivocations involved arise from an interchange of the objective and
subjective grounds that enter into the application of the principles of right,
when viewed respectively by reason or by a judicial tribunal. What one may have
good grounds for recognising as right, in itself, may not find confirmation in
a court of justice; and what he must consider to be wrong, in itself, may
obtain recognition in such a court. And the reason of this is that the
conception of right is not taken in the two cases in one and the same sense.
2 Division
Of The Science Of Right
2.1 A.
General Division of the Duties of Right.
(Juridical Duties).
In this division we may very conveniently
follow Ulpian, if his three formulae are taken in a general sense, which may
not have been quite clearly in his mind, but which they are capable of being
developed into or of receiving. They are the following:
1. Honeste vive. "Live rightly."
juridical rectitude, or honour (honestas juridica), consists in maintaining
one's own worth as a man in relation to others. This duty may be rendered by
the proposition: "Do not make thyself a mere means for the use of others,
but be to them likewise an end." This duty will be explained in the next
formula as an obligation arising out of the right of humanity in our own person
(lex justi).
2. Neminem laede. "Do wrong to no
one." This formula may be rendered so as to mean: "Do no wrong to any
one, even if thou shouldst be under the necessity, in observing this duty, to
cease from all connection with others and to avoid all society" (lex
juridica).
3. Suum cuique tribue. "Assign to
every one what is his own." This may be rendered, "Enter, if wrong
cannot be avoided, into a society with others in which every one may have
secured to him what is his own." If this formula were to be simply
translated, "Give every one his own," it would express an absurdity,
for we cannot give any one what he already has. If it is to have a definite
meaning, it must therefore run thus: "Enter into a state in which every
one can have what is his own secured against the action of every other"
(lex justitiae).
These three classical formulae, at the same
time, represent principles which suggest a division of the system of juridical
duties into internal duties, external duties, and those connecting duties which
contain the latter as deduced from the principle of the former by subsumption.
2.2 B.
Universal Division of Rights.
I. Natural
Right and Positive Right.
The system of rights,
viewed as a scientific system of doctrines, is divided into natural right and
positive right. Natural right rests upon pure rational principles a priori;
positive or statutory right is what proceeds from the will of a legislator.
II. Innate Right and Acquired Right. The
system of rights may again be regarded in reference to the implied powers of
dealing morally with others as bound by obligations, that is, as furnishing a
legal title of action in relation to them. Thus viewed, the system is divided
into innate right and acquired right. Innate right is that right which belongs
to every one by nature, independent of all juridical acts of experience.
Acquired right is that right which is founded upon such juridical acts.
Innate right may also be called the
"internal mine and thine" (meum vel tuum internum) for external right
must always be acquired.
There is only one Innate
Right, the Birthright of Freedom.
Freedom is independence of the compulsory
will of another; and in so far as it can coexist with the freedom of all
according to a universal law, it is the one sole original, inborn right
belonging to every man in virtue of his humanity. There is, indeed, an innate
equality belonging to every man which consists in his right to be independent
of being bound by others to anything more than that to which he may also
reciprocally bind them. It is, consequently, the inborn quality of every man in
virtue of which he ought to be his own master by right (sui juris). There is,
also, the natural quality of justness attributable to a man as naturally of
unimpeachable right (justi), because be has done no wrong to any one prior to
his own juridical actions. And, further, there is also the innate right of
common action on the part of every man, so that he may do towards others what
does not infringe their rights or take away anything that is theirs unless they
are willing to appropriate it; such merely to communicate thought, to narrate
anything, or to promise something whether truly and honestly, or untruly and
dishonestly (veriloquim aut falsiloquim), for it rests entirely upon these
others whether they will believe or trust in it or not.* But all these rights or titles are already
included in the principle of innate freedom, and are not really distinguished
from it, even as dividing members under a higher species of right.
*It is customary to designate every untruth
that is spoken intentionally as such, although it may be in a frivolous manner
a lie, or falsehood (mendacium), because it may do harm, at least in so far as
any one who repeats it in good faith may be made a laughing-stock of to others
on account of his easy credulity. But in the juridical sense, only that untruth
is called a lie which immediately infringes the right of another, such as a
false allegation of a contract having been concluded, when the allegation is
put forward in order to deprive some one of what is his (falsiloquim dolosum).
This distinction of conceptions so closely allied is not without foundation;
because on the occasion of a simple statement of one's thoughts, it is always
free for another to take them as he may; and yet the resulting repute, that
such a one is a man whose word cannot be trusted, comes so close to the
opprobrium of directly calling him a liar, that the boundary-line separating
what, in such a case, belongs to jurisprudence, and what is special to ethics,
can hardly be otherwise drawn.
The reason why such a division into separate
rights has been introduced into the system of natural right, viewed as
including all that is innate, was not without a purpose. Its object was to
enable proof to be more readily put forward in case of any controversy arising
about an acquired right, and questions emerging either with reference to a fact
that might be in doubt, or, if that were established, in reference to a right
under dispute. For the party repudiating an obligation, and on whom the burden
of proof (onus probandi) might be incumbent, could thus methodically refer to
his innate right of freedom as specified under various relations in detail, and
could therefore found upon them equally as different titles of right.
In the relation of innate right, and
consequently of the internal mine and thine, there is therefore not rights, but
only one right. And, accordingly, this highest division of rights into innate
and acquired, which evidently consists of two members extremely unequal in
their contents is properly placed in the introduction; and the subdivisions of
the science of right may be referred in detail to the external mine and thine.
2.3 C.
Methodical Division of the Science of Right.
The highest division of the system of
natural right should not be- as it is frequently put- into "natural
right" and "social right," but into natural right and civil
right. The first constitutes private right; the second, public right. For it is
not the "social state" but the "civil state" that is
opposed to the "state of nature"; for in the "state of
nature" there may well be society of some kind, but there is no
"civil" society, as an institution securing the mine and thine by
public laws. It is thus that right, viewed under reference to the state of
nature, is specially called private right. The whole of the principles of right
will therefore fall to be expounded under the two subdivisions of private right
and public right.
3 First
Part. Private Right
3.1 The
System of those Laws Which Require No External Promulgation.
3.1.1 Chapter I. Of the
Mode of Having Anything External as One's Own.
1. The Meaning of "Mine"
in Right
(Meum Juris).
Anything is "Mine" by right, or is
rightfully mine, when I am so connected with it, that if any other person
should make use of it without my consent, he would do me a lesion or injury.
The subjective condition of the use of anything is possession of it.
An external thing, however as such could
only be mine, if I may assume it to be possible that I can be wronged by the
use which another might make of it when it is not actually in my possession.
Hence it would be a contradiction to have anything external as one's own, were
not the conception of possession capable of two different meanings, as sensible
possession that is perceivable by the senses, and rational possession that is
perceivable only by the intellect. By the former is to be understood a physical
possession, and by the latter, a purely juridical possession of the same
object.
The description of an object as
"external to me" may signify either that it is merely "different
and distinct from me as a subject," or that it is also "a thing
placed outside of me, and to be found elsewhere in space or time." Taken
in the first sense, the term possession signifies rational possession; and, in
the second sense, it must mean empirical possession. A rational or intelligible
possession, if such be possible, is possession viewed apart from physical
holding or detention (detentio).
2. Juridical Postulate of the
Practical Reason.
It is possible to have any external object
of my will as mine. In other words, a maxim to this effect- were it to become
law- that any object on which the will can be exerted must remain objectively
in itself without an owner, as res nullius, is contrary to the principle of
right.
For an object of any act of my will, is
something that it would be physically within my power to use. Now, suppose
there were things that by right should absolutely not be in our power, or, in
other words, that it would be wrong or inconsistent with the freedom of all,
according to universal law, to make use of them. On this supposition, freedom
would so far be depriving itself of the use of its voluntary activity, in thus
putting useable objects out of all possibility of use. In practical relations,
this would be to annihilate them, by making them res nullius, notwithstanding
the fact act acts of will in relation to such things would formally harmonize,
in the actual use of them, with the external freedom of all according to
universal laws. Now the pure practical reason lays down only formal laws as
principles to regulate the exercise of the will; and therefore abstracts from
the matter of the act of will, as regards the other qualities of the object,
which is considered only in so far as it is an object of the activity of the
will. Hence the practical reason cannot contain, in reference to such an
object, an absolute prohibition of its use, because this would involve a
contradiction of external freedom with itself. An object of my free will,
however, is one which I have the physical capability of making some use of at
will, since its use stands in my power (in potentia). This is to be
distinguished from having the object brought under my disposal (in postestatem
meam reductum), which supposes not a capability merely, but also a particular
act of the free-will. But in order to consider something merely as an object of
my will as such, it is sufficient to be conscious that I have it in my power.
It is therefore an assumption a priori of the practical reason to regard and
treat every object within the range of my free exercise of will as objectively
a possible mine or thine.
This postulate may be called "a
permissive law" of the practical reason, as giving us a special title
which we could not evolve out of the mere conceptions of right generally. And
this title constitutes the right to impose upon all others an obligation, not
otherwise laid upon them, to abstain from the use of certain objects of our
free choice, because we have already taken them into our possession. Reason
wills that this shall be recognised as a valid principle, and it does so as
practical reason; and it is enabled by means of this postulate a priori to
enlarge its range of activity in practice.
Any one who would assert the right to a
thing as his must be in possession of it as an object. Were he not its actual
possessor or owner, he could not be wronged or injured by the use which another
might make of it without his consent. For, should anything external to him, and
in no way connected with him by right, affect this object, it could not affect
himself as a subject, nor do him any wrong, unless he stood in a relation of
ownership to it.
4. Exposition of the Conception of the External Mine and Thine.
There can only be three
external objects of my will in the activity of choice:
(1) A corporeal thing
external to me;
(2) The free-will of
another in the performance of a particular act (praestatio);
(3) The state of another
in relation to myself.
These correspond to the categories of substance,
causality, and reciprocity; and they form the practical relations between me
and external objects, according to the laws of freedom.
A. I can only call a
corporeal thing or an object in space "mine," when, even although not
in physical possession of it, I am able to assert that I am in possession of it
in another real nonphysical sense. Thus, I am not entitled to call an apple
mine merely because I hold it in my hand or possess it physically; but only
when I am entitled to say, "I possess it, although I have laid it out of
my hand, and wherever it may lie." In like manner, I am not entitled to
say of the ground, on which I may have laid myself down, that therefore it is
mine; but only when I can rightly assert that it still remains in my possession,
although I may have left the spot. For any one who, in the former appearances
of empirical possession, might wrench the apple out of my hand, or drag me away
from my resting-place, would, indeed, injure me in respect of the inner
"mine" of freedom, but not in respect of the external
"mine," unless I could assert that I was in the possession of the
object, even when not actually holding it physically. And if I could not do
this, neither could I call the apple or the spot mine.
B. I cannot call the performance of
something by the action of the will of another "mine," if I can only
say "it has come into my possession at the same time with a promise"
(pactum re initum); but only if I am able to assert "I am in possession of
the will of the other, so as to determine him to the performance of a
particular act, although the time for the performance of it has not yet
come." In the latter case, the promise belongs to the nature of things
actually held as possessed, and as an active obligation I can reckon it mine;
and this holds good not only if I have the thing promised- as in the first
case- already in my possession, but even although I do not yet possess it in
fact. Hence, I must be able to regard myself in thought as independent of that
empirical form of possession that is limited by the condition of time and as
being, nevertheless, in possession of the object.
C. I cannot call a wife, a child, a
domestic, or, generally, any other person "mine" merely because I
command them at present as belonging to my household, or because I have them
under control, and in my power and possession. But I can call them mine, if,
although they may have withdrawn themselves from my control and I do not
therefore possess them empirically, I can still say "I possess them by my
mere will, provided they exist anywhere in space or time; and, consequently, my
possession of them is purely juridical." They belong, in fact, to my
possessions, only when and so far as I can assert this as a matter of right.
5. Definition of the Conception of
theExternal Mine and Thine.
Definitions are nominal or real. A nominal
definition is sufficient merely to distinguish the object defined from all
other objects, and it springs out of a complete and definite exposition of its
conception. A real definition further suffices for a deduction of the
conception defined, so as to furnish a knowledge of the reality of the object.
The nominal definition of the external "mine" would thus be:
"The external mine is anything outside of myself, such that any hindrance
of my use of it at will would be doing me an injury or wrong as an infringement
of that freedom of mine which may coexist with the freedom of all others
according to a universal law." The real definition of this conception may
be put thus: "The external mine is anything outside of myself, such that
any prevention of my use of it would be a wrong, although I may not be in
possession of it so as to be actually holding it as an object." I must be
in some kind of possession of an external object, if the object is to be
regarded as mine; for, otherwise, anyone interfering with this object would
not, in doing so, affect me; nor, consequently, would he thereby do me any
wrong. Hence, according to SS 4, a rational possession (possessio noumenon) must
be assumed as possible, if there is to be rightly an external mine and thine.
Empirical possession is thus only phenomenal possession or holding (detention)
of the object in the sphere of sensible appearance (possessio phenomenon),
although the object which I possess is not regarded in this practical relation
as itself a phenomenon- according to the exposition of the Transcendental
Analytic in the Critique of Pure Reason- but as a thing in itself. For in the
Critique of Pure Reason the interest of reason turns upon the theoretical
knowledge of the nature of things and how far reason can go in such knowledge.
But here reason has to deal with the practical determination of the action of
the will according to laws of freedom, whether the object is perceivable through
the senses or merely thinkable by the pure understanding. And right, as under
consideration, is a pure practical conception of the reason in relation to the
exercise of the will under laws of freedom.
And, hence, it is not quite correct to
speak of "possessing" a right to this or that object, but it should
rather be said that an object is possessed in a purely juridical way; for a
right is itself the rational possession of an object, and to "possess a
possession," would be an expression without meaning.
6. Deduction of the Conception of a
Purely Juridical Possession of an External Object (Possessio Noumenon).
The question, "How is an external mine
and thine possible?" resolves itself into this other question: "How
is a merely juridical or rational possession possible?" And this second
question resolves itself again into a third: "How is a synthetic
proposition in right possible a priori?"
All propositions of right- as juridical
propositions- are propositions a priori, for they are practical laws of reason
(dictamina rationis). But the juridical proposition a priori respecting
empirical possession is analytical; for it says nothing more than what follows
by the principle of contradiction, from the conception of such possession;
namely, that if I am the holder of a thing in the way of being physically
connected with it, any one interfering with it without my consent- as, for
instance, in wrenching an apple out of my hand- affects and detracts from my
freedom as that which is internally mine; and consequently the maxim of his
action is in direct contradiction to the axiom of right. The proposition
expressing the principle of an empirical rightful possession does not therefore
go beyond the right of a person in reference to himself.
On the other hand, the proposition
expressing the possibility of the possession of a thing external to me, after
abstraction of all the conditions of empirical possession in space and time-
consequently presenting the assumption of the possibility of a possessio noumenon-
goes beyond these limiting conditions; and because this proposition asserts a
possession even without physical holding, as necessary to the conception of the
external mine and thine, it is synthetical. And thus it becomes a problem for
reason to show how such a proposition, extending its range beyond the
conception of empirical possession, is possible a priori.
In this manner, for instance, the act of
taking possession of a particular portion of the soil is a mode exercising the
private free-will without being an act of usurpation. The possessor founds upon
the innate right of common possession of the surface of the earth, and upon the
universal will corresponding a priori to it, which allows a private possession
of the soil; because what are mere things would be otherwise made in themselves
and by a law into unappropriable objects. Thus a first appropriator acquires
originally by primary possession a particular portion of the ground; and by
right (jure) he resists every other person who would hinder him in the private
use of it, although, while the "state of nature" continues, this
cannot be done by juridical means (de jure), because a public law does not yet
exist.
And although a piece of ground should be
regarded as free, or declared to be such, so as to be for the public use of all
without distinction, yet it cannot be said that it is thus free by nature and
originally so, prior to any juridical act. For there would be a real relation
already incorporated in such a piece of ground by the very fact that the
possession of it was denied to any particular individual; and as this public
freedom of the ground would be a prohibition of it to every particular
individual, this presupposes a common possession of it which cannot take effect
without a contract. A piece of ground, however, which can only become publicly
free by contract, must actually be in the possession of all those associated
together, who mutually interdict or suspend each other, from any particular or
private use of it.
This original community of the soil and of
the things upon it (communio fundi originaria), is an idea which has objective
and practical juridical reality and is entirely different from the idea of a
primitive community of things, which is a fiction. For the latter would have
had to be founded as a form of society, and must have taken its rise from a
contract by which all renounced the right of private possession, so that by
uniting the property owned by each into a whole, it was thus transformed into a
common possession. But had such an event taken place, history must have
presented some evidence of it. To regard such a procedure as the original mode
of taking possession, and to hold that the particular possessions of every
individual may and ought to be grounded upon it, is evidently a contradiction.
Possession (possessio) is to be
distinguished from habitation as mere residence (sedes); and the act of taking
possession of the soil in the intention of acquiring it once for all, is also
to be distinguished from settlement or domicile (incolatus), which is a
continuous private possession of a place that is dependent on the presence of
the individual upon it. We have not here to deal with the question of
domiciliary settlement, as that is a secondary juridical act which may follow
upon possession, or may not occur at all; for as such it could not involve an
original possession, but only a secondary possession derived from the consent
of others.
Simple physical possession, or holding of
the soil, involves already certain relations of right to the thing, although it
is certainly not sufficient to enable me to regard it as mine. Relative to
others, so far as they know, it appears as a first possession in harmony with
the law of external freedom; and, at the same time, it is embraced in the
universal original possession which contains a priori the fundamental principle
of the possibility of a private possession. Hence to disturb the first occupier
or holder of a portion of the soil in his use of it is a lesion or wrong done
to him. The first taking of possession has therefore a title of right (titulus
possessionis) in its favour, which is simply the principle of the original
common possession; and the saying that "It is well for those who are in
possession" (beati possidentes), when one is not bound to authenticate his
possession, is a principle of natural right that establishes the juridical act
of taking possession, as a ground of acquisition upon which every first
possessor may found.
It has been shown in the Critique of Pure
Reason that in theoretical principles a priori, an intuitional perception a
priori must be supplied in connection with any given conception; and,
consequently, were it a question of a purely theoretical principle, something
would have to be added to the conception of the possession of an object to make
it real. But in respect of the practical principle under consideration, the
procedure is just the converse of the theoretical process; so that all the
conditions of perception which form the foundation of empirical possession must
be abstracted or taken away in order to extend the range of the juridical
conception beyond the empirical sphere, and in order to be able to apply the
postulate, that every external object of the free activity of my will, so far
as I have it in my power, although not in the possession of it, may be reckoned
as juridically mine.
The possibility of such a possession, with
consequent deduction of the conception of a nonempirical possession, is founded
upon the juridical postulate of the practical reason, that "It is a
juridical duty so to act towards others that what is external and useable may
come into the possession or become the property of some one." And this
postulate is conjoined with the exposition of the conception that what is
externally one's own is founded upon a possession, that is not physical. The
possibility of such a possession, thus conceived, cannot, however, be proved or
comprehended in itself, because it is a rational conception for which no
empirical perception can be furnished; but it follows as an immediate
consequence from the postulate that has been enunciated. For, if it is
necessary to act according to that juridical principle, the rational or
intelligible condition of a purely juridical possession must also be possible.
It need astonish no one, then, that the theoretical aspect of the principles of
the external mine and thine is lost from view in the rational sphere of pure
intelligence and presents no extension of knowledge; for the conception of
freedom upon which they rest does not admit of any theoretical deduction of its
possibility, and it can only be inferred from the practical law of reason,
called the categorical imperative, viewed as a fact.
7. Application of the Principle of the
Possibility of an External Mine and Thine to Objects of Experience.
The conception of a purely juridical
possession is not an empirical conception dependent on conditions of space and
time, and yet it has practical reality. As such it must be applicable to
objects of experience, the knowledge of which is independent of the conditions
of space and time. The rational process by which the conception of right is
brought into relation to such objects so as to constitute a possible external
mine and thine, is as follows. The conception of right, being contained merely
in reason, cannot be immediately applied to objects of experience, so as to
give the conception of an empirical possession, but must be applied directly to
the mediating conception, in the understanding, of possession in general; so
that, instead of physical holding (detentio) as an empirical representation of
possession, the formal conception or thought of having, abstracted from all
conditions of space and time, is conceived by the mind, and only as implying
that an object is in my power and at my disposal (in potestate mea positum
esse). In this relation, the term external does not signify existence in
another place than where I am, nor my resolution and acceptance at another time
than the moment in which I have the offer of a thing: it signifies only an
object different from or other than myself. Now the practical reason by its law
of right wills, that I shall think the mine and thine in application to
objects, not according to sensible conditions, but apart from these and from
the possession they indicate; because they refer to determinations of the
activity of the will that are in accordance with the laws of freedom. For it is
only a conception of the understanding that can be brought under the rational
conception of right. I may therefore say that I possess a field, although it is
in quite a different place from that on which I actually find myself. For the
question here is not concerning an intellectual relation to the object, but I
have the thing practically in my power and at my disposal, which is a
conception of possession realized by the understanding and independent of
relations of space; and it is mine, because my will, in determining itself to
any particular use of it, is not in conflict with the law of external freedom.
Now it is just in abstraction from physical possession of the object of my
free-will in the sphere of sense, that the practical reason wills that a
rational possession of it shall be thought, according to intellectual
conceptions which are not empirical, but contain a priori the conditions of
rational possession. Hence it is in this fact, that we found the ground of the
validity of such a rational conception of possession possessio noumenon) as a
principle of a universally valid legislation. For such a legislation is implied
and contained in the expression, "This external object is mine,"
because an obligation is thereby imposed upon all others in respect of it, who
would otherwise not have been obliged to abstain from the use of this object.
The mode, then, of having something
external to myself as mine, consists in a specially juridical connection of the
will of the subject with that object, independently of the empirical relations
to it in space and in time, and in accordance with the conception of a rational
possession. A particular spot on the earth is not externally mine because I
occupy it with my body; for the question here discussed refers only to my
external freedom, and consequently it affects only the possession of myself,
which is not a thing external to me, and therefore only involves an internal
right. But if I continue to be in possession of the spot, although I have taken
myself away from it and gone to another place, only under that condition is my external
right concerned in connection with it. And to make the continuous possession of
this spot by my person a condition of having it as mine, must either be to
assert that it is not possible at all to have anything external as one's own,
which is contrary to the postulate in SS 2, or to require, in order that this
external possession may be possible, that I shall be in two places at the same
time. But this amounts to saying that I must be in a place and also not in it,
which is contradictory and absurd.
This position may be applied to the case in
which I have accepted a promise; for my having and possession in respect of
what has been promised become established on the ground of external right. This
right is not to be annulled by the fact that the promiser having said at one
time, "This thing shall be yours," again at a subsequent time says,
"My will now is that the thing shall not be yours." In such relations
of rational right, the conditions hold just the same as if the promiser had,
without any interval of time between them, made the two declarations of his
will, "This shall be yours," and also "This shall not be
yours"; which manifestly contradicts itself.
The same thing holds, in like manner, of
the conception of the juridical possession of a person as belonging to the
Having of a subject, whether it be a wife, a child, or a servant. The relations
of right involved in a household, and the reciprocal possession of all its
members, are not annulled by the capability of separating from each other in
space; because it is by juridical relations that they are connected, and the
external mine and thine, as in the former cases, rests entirely upon the
assumption of the possibility of a purely rational possession, without the
accompaniment of physical detention or holding of the object.
Reason is forced to a critique of its
juridically practical function in special reference to the conception of the
external mine and thine, by the antinomy of the propositions enunciated
regarding the possibility of such a form of possession. For these give rise to
an inevitable dialectic, in which a thesis and an antithesis set up equal
claims to the validity of two conflicting conditions. Reason is thus compelled,
in its practical function in relation to right- as it was in its theoretical
function- to make a distinction between possession as a phenomenal appearance
presented to the senses, and that possession which is rational and thinkable
only by the understanding.
Thesis.- The thesis, in this case, is:
"It is possible to have something external as mine, although I am not in
possession of it."
Antithesis.- The antithesis is: "It is
not possible to have anything external as mine, if I am not in possession of
it."
Solution.- The solution is: "Both
Propositions are true"; the former when I mean empirical possession
(possessio phaenomenon), the latter when I understand by the same term, a
purely rational possession (possessio noumenon).
But the possibility of a rational
possession, and consequently of an external mine and thine, cannot be
comprehended by direct insight, but must be deduced from the practical reason.
And in this relation it is specially noteworthy that the practical reason
without intuitional perceptions, and even without requiring such an element a
priori, can extend its range by the mere elimination of empirical conditions,
as justified by the law of freedom, and can thus establish synthetical
propositions a priori. The proof of this in the practical connection, as will
be shown afterwards, can be adduced in an analytical manner.
8. To Have Anything External as One's Own is only
Possible in a Juridical or Civil State of Society under the Regulation of a
Public Legislative Power.
If, by word or deed, I declare my will that
some external thing shall be mine, I make a declaration that every other person
is obliged to abstain from the use of this object of my exercise of will; and
this imposes an obligation which no one would be under, without such a
juridical act on my part. But the assumption of this act at the same time
involves the admission that I am obliged reciprocally to observe a similar
abstention towards every other in respect of what is externally theirs; for the
obligation in question arises from a universal rule regulating the external
juridical relations. Hence I am not obliged to let alone what another person
declares to be externally his, unless every other person likewise secures me by
a guarantee that he will act in relation to what is mine, upon the same
principle. This guarantee of reciprocal and mutual abstention from what belongs
to others does not require a special juridical act for its establishment, but
is already involved in the conception of an external obligation of right, on
account of the universality and consequently the reciprocity of the
obligatoriness arising from a universal Rule. Now a single will, in relation to
an external and consequently contingent possession, cannot serve as a
compulsory law for all, because that would be to do violence to the freedom which
is in accordance with universal laws. Therefore it is only a will that binds
every one, and as such a common, collective, and authoritative will, that can
furnish a guarantee of security to all. But the state of men under a universal,
external, and public legislation, conjoined with authority and power, is called
the civil state. There can therefore be an external mine and thine only in the
civil state of society.
Consequence.- It follows, as a corollary,
that, if it is juridically possible to have an external object as one's own,
the individual subject of possession must be allowed to compel or constrain
every person with whom a dispute as to the mine or thine of such a possession
may arise, to enter along with himself into the relations of a civil constitution.
9. There May, However, Be an
External Mine and Thine Found as a Fact
in the State of Nature, but it is only Provisory.
Natural right in the state of a civil
constitution means the forms of right which may be deduced from principles a priori
as the conditions of such a constitution. It is therefore not to be infringed
by the statutory laws of such a constitution; and accordingly the juridical
principle remains in force, that, "Whoever proceeds upon a maxim by which
it becomes impossible for me to have an object of the exercise of my will as
mine, does me a lesion or injury." For a civil constitution is only the
juridical condition under which every one has what is his own merely secured to
him, as distinguished from its being specially assigned and determined to him.
All guarantee, therefore, assumes that everyone to whom a thing is secured is
already in possession of it as his own. Hence, prior to the civil constitution-
or apart from it- an external mine and thine must be assumed as possible, and
along with it a right to compel everyone with whom we could come into any kind
of intercourse to enter with us into a constitution in which what is mine or
thine can be secured. There may thus be a possession in expectation or in
preparation for such a state of security, as can only be established on the law
of the common will; and as it is therefore in accordance with the possibility
of such a state, it constitutes a provisory or temporary juridical possession;
whereas that possession which is found in reality in the civil state of society
will be a peremptory or guaranteed possession. Prior to entering into this
state, for which he is naturally prepared, the individual rightfully resists
those who will not adapt themselves to it, and who would disturb him in his
provisory possession; because, if the will of all except himself were imposing
upon him an obligation to withdraw from a certain possession, it would still be
only a one-sided or unilateral will, and consequently it would have just as little
legal title- which can be properly based only on the universalized will- to
contest a claim of right as he would have to assert it. Yet be has the
advantage on his side, of being in accord with the conditions requisite to the
introduction and institution of a civil form of society. In a word, the mode in
which anything external may be held as one's own in the state of nature, is
just physical possession with a presumption of right thus far in its favour,
that by union of the wills of all in a public legislation it will be made
juridical; and in this expectation it holds comparatively, as a kind of
potential juridical possession.
This prerogative of right, as arising from
the fact of empirical possession, is in accordance with the formula: "It
is well for those who are in possession" (Beati possidentes). It does not
consist in the fact that, because the possessor has the presumption of being a
rightful man, it is unnecessary for him to bring forward proof that he
possesses a certain thing rightfully, for this position applies only to a case
of disputed right. But it is because it accords with the postulate of the
practical reason, that everyone is invested with the faculty of having as his
own any external object upon which he has exerted his will; and, consequently,
all actual possession is a state whose rightfulness is established upon that
postulate by an anterior act of will. And such an act, if there be no prior
possession of the same object by another opposed to it, does, therefore,
provisionally justify and entitle me, according to the law of external freedom,
to restrain anyone who refuses to enter with me into a state of public legal
freedom from all pretension to the use of such an object. For such a procedure
is requisite, in conformity with the postulate of reason, in order to subject
to my proper use a thing which would otherwise be practically annihilated, as
regards all proper use of it.
3.2 The
System of those Laws Which Require No External Promulgation.
3.2.1 CHAPTER II. The Mode of Acquiring Anything External.
10. The General Principle of
External Acquisition.
I acquire a thing when I act (efficio) so
that it becomes mine. An external thing is originally mine when it is mine even
without the intervention of a juridical act. An acquisition is original and
primary when it is not derived from what another had already made his own.
There is nothing external that is as such
originally mine; but anything external may be originally acquired when it is an
object that no other person has yet made his. A state in which the mine and
thine are in common cannot be conceived as having been at any time original.
Such a state of things would have to be acquired by an external juridical act,
although there may be an original and common possession of an external object.
Even if we think hypothetically of a state in which the mine and thine would be
originally in common as a communio mei et tui originaria, it would still have
to be distinguished from a primeval communion (communio primaeva) with things
in common, sometimes supposed to be founded in the first period of the
relations of right among men, and which could not be regarded as based upon
principles like the former, but only upon history. Even under that condition
the historic communio, as a supposed primeval community, would always have to
be viewed as acquired and derivative (communio derivativa).
The principle of external acquisition,
then, may be expressed thus: "Whatever I bring under my power according to
the law of external freedom, of which as an object of my free activity of will
I have the capability of making use according to the postulate of the practical
reason, and which I will to become mine in conformity with the idea of a possible
united common will, is mine."
The practical elements (momenta attendenda)
constitutive of the process of original acquisition are:
1. Prehension or seizure
of an object which belongs to no one; for, if it belonged already to some one,
the act would conflict with the freedom of others, that is, according to
universal laws. This is the taking possession of an object of my free activity
of will in space and time; the possession, therefore, into which I thus put
myself is sensible or physical possession (possessio phenomenon);
2. Declaration of the
possession of this object by formal designation and the act of my freewill in
interdicting every other person from using it as his;
3. Appropriation, as the
act, in idea, of an externally legislative common will, by which all and each
are obliged to respect and act in conformity with my act of will.
The validity of the last element in the
process of acquisition, as that on which the conclusion that "the external
object is mine" rests, is what makes the possession valid as a purely
rational and juridical possession (possessio noumenon). It is founded upon the
fact that, as all these acts are juridical, they consequently proceed from the
practical reason, and therefore, in the question as to what is right,
abstraction may be made of the empirical conditions involved, and the
conclusion, "the external object is mine," thus becomes a correct
inference from the external fact of sensible possession to the internal right
of rational possession.
The original primary acquisition of an
external object of the action of the will, is called occupancy. It can only
take place in reference to substances or corporeal things. Now when this
occupation of an external object does take place, the act presupposes, as a
condition of such empirical possession, its priority in time before the act of
any other who may also be willing to enter upon occupation of it. Hence the
legal maxim: "qui prior tempore, potior jure." Such occupation as
original or primary is, further, the effect only of a single or unilateral
will; for were a bilateral or twofold will requisite for it, it would be
derived from a contract of two or more persons with each other, and
consequently it would be based upon what another or others had already made
their own. It is not easy to see how such an act of free-will as this would be
could really form a foundation for every one having his own. However, the first
acquisition of a thing is on that account not quite exactly the same as the
original acquisition of it. For the acquisition of a public juridical state by
union of the wills of all in a universal legislation would be such an original
acquisition, seeing that no other of the kind could precede it, and yet it
would be derived from the particular wills of all the individuals, and
consequently become all-sided or omnilateral; for a properly primary
acquisition can only proceed from an individual or unilateral or unilateral
will.
3.3 Division
Of The Subject Of The Acquisition Of The External
I. In respect of the matter of object of
acquisition, I acquire either a corporeal thing (substance), or the performance
of something by another (causality), or this other as a person in respect of
his state, so far as I have a right to dispose of the same (in a relation of
reciprocity with him).
II. In respect of the form or mode of
acquisition, it is either a real right (jus reale), or a personal right (jus
personale), or a real-personal right (jus realiter personale), to the
possession although not to the use, of another person as if he were a thing.
III. In respect of the ground of right or
the title (titulus) of acquisition- which, properly, is not a particular member
of the division of rights, but rather a constituent element of the mode of
exercising them- anything external is acquired by a certain free exercise of
will that is either unilateral, as the act of a single will (facto), or
bilateral, as the act of two wills (pacto), or omnilateral, as the act of all
the wills of a community together (lege).
3.4 Section
I. Principles of Real Right.
The usual definition of real right, or
"right in a thing" (jus reale, jus in re), is that "it is a
right as against every possessor of it." This is a correct nominal
definition. But what is it that entitles me to claim an external object from
any one who may appear as its possessor, and to compel him, per vindicationem,
to put me again, in place of himself, into possession of it? Is this external
juridical relation of my will a kind of immediate relation to an external
thing? If so, whoever might think of his right as referring not immediately to
persons but to things would have to represent it, although only in an obscure
way, somewhat thus. A right on one side has always a duty corresponding to it
on the other, so that an external thing, although away from the hands of its
first possessor, continues to be still connected with him by a continuing
obligation; and thus it refuses to fall under the claim of any other possessor,
because it is already bound to another. In this way my right, viewed as a kind
of good genius accompanying a thing and preserving it from all external attack,
would refer an alien possessor always to me! It is, however, absurd to think of
an obligation of persons towards things, and conversely; although it may be
allowed in any particular case to represent the juridical relation by a
sensible image of this kind, and to express it in this way.
The real definition would run thus: "Right
in a thing is a right to the private use of a thing, of which I am in
possession- original or derivative- in common with all others." For this
is the one condition under which it is alone possible that I can exclude every
others possessor from the private use of the thing (jus contra quemlibet hujus
rei possessorem). For, except by presupposing such a common collective
possession, it cannot be conceived how, when I am not in actual possession of a
thing, I could be injured or wronged by others who are in possession of it and
use it. By an individual act of my own will I cannot oblige any other person to
abstain from the use of a thing in respect of which he would otherwise be under
no obligation; and, accordingly, such an obligation can only arise from the
collective will of all united in a relation of common possession. Otherwise, I
would have to think of a right in a thing, as if the thing has an obligation
towards me, and as if the right as against every possessor of it had to be
derived from this obligation in the thing, which is an absurd way of
representing the subject.
Further, by the term real right (jus reale)
is meant not only the right in a thing (jus in re), but also the constitutive
principle of all the laws which relate to the real mine and thine. It is,
however, evident that a man entirely alone upon the earth could properly
neither have nor acquire any external thing as his own; because, between him as
a person and all external things as material objects, there could be no
relations of obligation. There is therefore, literally, no direct right in a
thing, but only that right is to be properly called "real" which
belongs to any one as constituted against a person, who is in common possession
of things with all others in the civil state of society.
12. The First Acquisition of a Thing
can only be that of the Soil.
By the soil is understood all habitable
Land. In relation to everything that is moveable upon it, it is to be regarded
as a substance, and the mode of the existence of the moveables is viewed as an
inherence in it. And just as, in the theoretical acceptance, accidents cannot
exist apart from their substances, so, in the practical relation, moveables
upon the soil cannot be regarded as belonging to any one unless he is supposed
to have been previously in juridical possession of the soil, so that it is thus
considered to be his.
For, let it be supposed that the soil
belongs to no one. Then I would be entitled to remove every moveable thing
found upon it from its place, even to total loss of it, in order to occupy that
place, without infringing thereby on the freedom of any other; there being, by
the hypothesis, no possessor of it at all. But everything that can be
destroyed, such as a tree, a house, and such like- as regards its matter at
least- is moveable; and if we call a thing which cannot be moved without
destruction of its form an immoveable, the mine and thine in it is not
understood as applying to its substance, but to that which is adherent to it
and which does not essentially constitute the thing itself.
13. Every Part of the Soil may be
Originally Acquired; and the Principle
of the Possibility of such Acquisition is the Original Community of the Soil
Generally.
The first clause of this proposition is
founded upon the postulate of the practical reason (SS 2); the second is
established by the following proof.
All men are originally and before any
juridical act of will in rightful possession of the soil; that is, they have a
right to be wherever nature or chance has placed them without their will.
Possession (possessio), which is to be distinguished from residential
settlement (sedes) as a voluntary, acquired, and permanent possession, becomes
common possession, on account of the connection with each other of all the
places on the surface of the earth as a globe. For, had the surface of the
earth been an infinite plain, men could have been so dispersed upon it that
they might not have come into any necessary communion with each other, and a
state of social community would not have been a necessary consequence of their
existence upon the earth. Now that possession proper to all men upon the earth,
which is prior to all their particular juridical acts, constitutes an original
possession in common (communio possessionis originaria). The conception of such
an original, common possession of things is not derived from experience, nor is
it dependent on conditions of time, as is the case with the imaginary and
indemonstrable fiction of a primaeval community of possession in actual
history. Hence it is a practical conception of reason, involving in itself the
only principle according to which men may use the place they happen to occupy
on the surface of the earth, in accordance with laws of right.
14. The Juridical Act of this
Original Acquisition is Occupancy.
The act of taking possession (apprehensio),
being at its beginning the physical appropriation of a corporeal thing in space
(possessionis physicae), can accord with the law of the external freedom of
all, under no other condition than that of its priority in respect of time. In
this relation it must have the characteristic of a first act in the way of
taking possession, as a free exercise of will. The activity of will, however,
as determining that the thing- in this case a definite separate place on the
surface of the earth- shall be mine, being an act of appropriation, cannot be
otherwise in the case of original acquisition than individual or unilateral
(voluntas unilateralis s. propria). Now, occupancy is the acquisition of an
external object by an individual act of will. The original acquisition of such
an object as a limited portion of the soil can therefore only be accomplished
by an act of occupation.
The possibility of this mode of acquisition
cannot be intuitively apprehended by pure reason in any way, nor established by
its principles, but is an immediate consequence from the postulate of the
practical reason. The will as practical reason, however, cannot justify
external acquisition otherwise than only in so far as it is itself included in
an absolutely authoritative will, with which it is united by implication; or,
in other words, only in so far as it is contained within a union of the wills
of all who come into practical relation with each other. For an individual,
unilateral will- and the same applies to a dual or other particular will-
cannot impose on all an obligation which is contingent in itself. This requires
an omnilateral or universal will, which is not contingent, but a priori, and which
is therefore necessarily united and legislative. Only in accordance with such a
principle can there be agreement of the active free-will of each individual
with the freedom of all, and consequently rights in general, or even the
possibility of an external mine and thine.
15. It is Only within a Civil
Constitution that Anything can be Acquired Peremptorily, whereas in the State
of Nature Acquisition can only be Provisory.
A civil constitution is objectively
necessary as a duty, although subjectively its reality is contingent. Hence,
there is connected with it a real natural law of right, to which all external
acquisition is subjected.
The empirical title of acquisition has been
shown to be constituted by the taking physical possession (apprehensio physica)
as founded upon an original community of right in all to the soil. And because
a possession in the phenomenal sphere of sense can only be subordinated to that
possession which is in accordance with rational conceptions of right, there
must correspond to this physical act of possession a rational mode of taking
possession by elimination of all the empirical conditions in space and time.
This rational form of possession establishes the proposition that
"whatever I bring under my power in accordance with laws of external
freedom, and will that it shall be mine, becomes mine."
The rational title of acquisition can
therefore only lie originally in the idea of the will of all united implicitly,
or necessarily to be united, which is here tacitly assumed as an indispensable
condition (conditio sine qua non). For by a single will there cannot be imposed
upon others an obligation by which they would not have been otherwise bound.
But the fact formed by wills actually and universally united in a legislation
constitutes the civil state of society. Hence, it is only in conformity with
the idea of a civil state of society, or in reference to it and its
realization, that anything external can be acquired. Before such a state is
realized, and in anticipation of it, acquisition, which would otherwise be
derived, is consequently only provisory. The acquisition which is peremptory
finds place only in the civil state.
Nevertheless, such provisory acquisition is
real acquisition. For, according to the postulate of the juridically practical
reason, the possibility of acquisition in whatever state men may happen to be
living beside one another, and therefore in the state of nature as well, is a
principle of private right. And in accordance with this principle, every one is
justified or entitled to exercise that compulsion by which it alone becomes
possible to pass out of the state of nature and to enter into that state of
civil society which alone can make all acquisition peremptory.
It is a question as to how far the right of
taking possession of the soil extends. The answer is, So far as the capability
of having it under one's power extends; that is, just as far as he who wills to
appropriate it can defend it, as if the soil were to say: "If you cannot
protect me, neither can you command me." In this way the controversy about
what constitutes a free or closed sea must be decided. Thus, within the range
of a cannon-shot no one has a right to intrude on the coast of a country that
already belongs to a certain state, in order to fish or gather amber on the
shore, or such like. Further, the question is put, "Is cultivation of the
soil, by building, agriculture, drainage, etc., necessary in order to its
acquisition?" No. For, as these processes as forms of specification are
only accidents, they do not constitute objects of immediate possession and can
only belong to the subject in so far as the substance of them has been already
recognized as his. When it is a question of the first acquisition of a thing,
the cultivation or modification of it by labour forms nothing more than an
external sign of the fact that it has been taken into possession, and this can
be indicated by many other signs that cost less trouble. Again: "May any
one be hindered in the act of taking possession, so that neither one nor other
of two competitors shall acquire the right of priority, and the soil in
consequence may remain for all time free as belonging to no one?" Not at
all. Such a hindrance cannot be allowed to take place, because the second of
the two, in order to be enabled to do this, would himself have to be upon some
neighbouring soil, where he also, in this manner, could be hindered from being,
and such absolute hindering would involve a contradiction. It would, however,
be quite consistent with the right of occupation, in the case of a certain
intervening piece of the soil, to let it lie unused as a neutral ground for the
separation of two neighbouring states; but under such a condition, that ground
would actually belong to them both in common, and would not be without an owner
(res nullius), just because it would be used by both in order to form a
separation between them. Again: "May one have a thing as his, on a soil of
which no one has appropriated any part as his own?" Yes. In Mongolia, for
example, any one may let lie whatever baggage he has, or bring back the horse
that has run away from him into his possession as his own, because the whole
soil belongs to the people generally, and the use of it accordingly belongs to
every individual. But that any one can have a moveable thing on the soil of
another as his own is only possible by contract. Finally, there is the
question: "May one of two neighbouring nations or tribes resist another
when attempting to impose upon them a certain mode of using a particular soil;
as, for instance, a tribe of hunters making such an attempt in relation to a
pastoral people, or the latter to agriculturists and such like?"
Certainly. For the mode in which such peoples or tribes may settle themselves
upon the surface of the earth, provided they keep within their own boundaries,
is a matter of mere pleasure and choice on their own part (res merae
facultatis).
As a further question, it may be asked
whether, when neither nature nor chance, but merely our own will, brings us
into the neighbourhood of a people that gives no promise of a prospect of
entering into civil union with us, we are to be considered entitled in any case
to proceed with force in the intention of founding such a union, and bringing
into a juridical state such men as the savage American Indians, the
Hottentots,and the New Hollanders; or- and the case is not much better- whether
we may establish colonies by deceptive purchase, and so become owners of their
soil, and, in general, without regard to their first possession, make use at
will of our superiority in relation to them? Further, may it not be held that
Nature herself, as abhorring a vacuum, seems to demand such a procedure, and
that large regions in other continents, that are now magnificently peopled,
would otherwise have remained unpossessed by civilized inhabitants and might
have for ever remained thus, so that the end of creation would have so far been
frustrated? It is almost unnecessary to answer; for it is easy to see through
all this flimsy veil of injustice, which just amounts to the Jesuitism of
making a good end justify any means. This mode of acquiring the soil is,
therefore, to be repudiated.
The indefiniteness of external acquirable
objects in respect of their quantity, as well as their quality, makes the
problem of the sole primary external acquisition of them one of the most
difficult to solve. There must, however, be some one first acquisition of an
external object; for every Acquisition cannot be derivative. Hence, the problem
is not to be given up as insoluble or in itself as impossible. If it is solved
by reference to the original contract, unless this contract is extended so as
to include the whole human race, acquisition under it would still remain but
provisional.
16. Exposition of the Conception of
a Primary Acquisition of the Soil.
All men are originally in a common
collective possession of the soil of the whole earth (communio fundi
originaria), and they have naturally each a will to use it (lex justi). But on
account of the opposition of the free will of one to that of the other in the
sphere of action, which is inevitable by nature, all use of the soil would be
prevented did not every will contain at the same time a law for the regulation
of the relation of all wills in action, according to which a particular
possession can be determined to every one upon the common soil. This is the
juridical law (lex juridica). But the distributive law of the mine and thine,
as applicable to each individual on the soil, according to the axiom of
external freedom, cannot proceed otherwise than from a primarily united will a
priori- which does not presuppose any juridical act as requisite for this
union. This Law can only take form in the civil state (lex justitiae distributivae);
as it is in this state alone that the united common will determines what is
right, what is rightful, and what is the constitution of Right. In reference to
this state, however- and prior to its establishment and in view of it- it is
provisorily a duty for every one to proceed according to the law of external
acquisition; and accordingly it is a juridical procedure on the part of the
will to lay every one under obligation to recognise the act of possessing and
appropriating, although it be only unilaterally. Hence a provisory acquisition
of the soil, with all its juridical consequences, is possible in the state of
nature.
Such an acquisition, however, requires and
also obtains the favour of a permissive law (lex permissiva), in respect of the
determination of the limits of juridically possible possession. For it precedes
the juridical state, and as merely introductory to it is not yet peremptory;
and this favour does not extend farther than the date of the consent of the
other co-operators in the establishment of the civil state. But if they are
opposed to entering into the civil state, as long as this opposition lasts it
carries all the effect of a guaranteed juridical acquisition with it, because
the advance from the state of nature to the civil state is founded upon a duty.
17. Deduction of the Conception of
the Original Primary Acquisition.
We have found the title of acquisition in a
universal original community of the soil, under the conditions of an external
acquisition in space; and the mode of acquisition is contained in the empirical
fact of taking possession (apprehensio), conjoined with the will to have an
external object as one's own. It is further necessary to unfold, from the
principles of the pure juridically practical reason involved in the conception,
the juridical acquisition proper of an object- that is, the external mine and
thine that follows from the two previous conditions, as rational possession
(possessio noumenon).
The juridical conception of the external
mine and thine, so far as it involves the category of substance, cannot by
"that which is external to me" mean merely "in a place other
than that in which I am"; for it is a rational conception. As under the
conceptions of the reason only intellectual conceptions can be embraced, the
expression in question can only signify "something that is different and
distinct from me" according to the idea of a non-empirical possession
through, as it were, a continuous activity in taking possession of an external
object; and it involves only the notion of having something in my power, which
indicates the connection of an object with myself, as a subjective condition of
the possibility of making use of it. This forms a purely intellectual
conception of the understanding. Now we can leave out or abstract from the
sensible conditions of possession, as relations of a person to objects which
have no obligation. This process of elimination just gives the rational
relation of a person to persons; and it is such that he can bind them all by an
obligation in reference to the use of things through his act of will, so far as
it is conformable to the axiom of freedom, the postulate of right, and the
universal legislation of the common will, conceived as united a priori. This is
therefore the rational intelligible possession of things as by pure right,
although they are objects of sense.
It is evident that the first modification,
limitation, or transformation generally, of a portion of the soil cannot of
itself furnish a title to its acquisition, since possession of an accident does
not form a ground for legal possession of the substance. Rather, conversely,
the inference as to the mine and thine must be drawn from ownership of the
substance according to the rule: Accessarium sequitur suum principale. Hence
one who has spent labour on a piece of ground that was not already his own, has
lost his effort and work to the former owner. This position is so evident of
itself that the old opinion to the opposite effect, that is still spread far
and wide, can hardly be ascribed to any other than the prevailing illusion
which unconsciously leads to the personification of things; and, then, as if
they could be bound under an obligation by the labour bestowed upon them to be
at the service of the person who does the labour, to regard them as his by
immediate right. Otherwise it is probable that the natural question- already
discussed- would not have been passed over with so light a tread, namely:
"How is a right in a thing possible?" For, right as against every
possible possessor of a thing means only the claim of a particular will to the
use of an object so far as it may be included in the all-comprehending
universal will, and can be thought as in harmony with its law.
As regards bodies situated upon a piece of
ground which is already mine, if they otherwise belong to no other person, they
belong to me without my requiring any particular juridical act for the purpose
of this acquisition; they are mine not facto, but lege. For they may be
regarded as accidents inhering in the substance of the soil, and they are thus
mine jure rei meae. To this category also belongs everything which is so
connected with anything of mine that it cannot be separated from what is mine
without altering it substantially. Examples of this are gilding on an object,
mixture of a material belonging to me with other things, alluvial deposit, or
even alteration of the adjoining bed of a stream or river in my favour so as to
produce an increase of my land, etc. By the same principles, the question must
also be decided as to whether the acquirable soil may extend farther than the
existing land, so as even to include part of the bed of the sea, with the right
to fish on my own shores, to gather amber and such like. So far as I have the
mechanical capability from my own site, as the place I occupy, to secure my
soil from the attack of others- and, therefore, as far as cannon can carry from
the shore- all is included in my possession, and the sea is thus far closed
(mare clausum). But as there is no site for occupation upon the wide sea
itself, possible possession cannot be extended so far, and the open sea is free
(mare liberum). But in the case of men, or things that belong to them, becoming
stranded on the shore, since the fact is not voluntary, it cannot be regarded
by the owner of the shore as giving him a right of acquisition. For shipwreck
is not an act of will, nor is its result a lesion to him; and things which may
have come thus upon his soil, as still belonging to some one, are not to be
treated as being without an owner or res nullius. On the other hand, a river,
so far as possession of the bank reaches, may be originally acquired, like any
other piece of ground, under the above restrictions, by one who is in
possession of both its banks.
An external object, which in respect of its
substance can be claimed by some one as his own, is called the property
(dominium) of that person to whom all the rights in it as a thing belong- like
the accidents inhering in a substance- and which, therefore, he as the
proprietor (dominus) can dispose of at will (jus disponendi de re sua). But
from this it follows at once that such an object can only be a corporeal thing
towards which there is no direct personal obligation. Hence a man may be his
own master (sui juris) but not the proprietor of himself (sui dominus), so as
to be able to dispose of himself at will, to say nothing of the possibility of
such a relation to other men; because he is responsible to humanity in his own
person. This point, however, as belonging to the right of humanity as such,
rather than to that of individual men, would not be discussed at its proper
place here, but is only mentioned incidentally for the better elucidation of
what has just been said. It may be further observed that there may be two full
proprietors of one and the same thing, without there being a mine and thine in
common, but only in so far as they are common possessors of what belongs only
to one of them as his own. In such a case the whole possession, without the use
of the thing, belongs to one only of the co-proprietors (condomini); while to
the others belongs all the use of the thing along with its possession. The
former as the direct proprietor (dominus directus), therefore, restricts the
latter as the proprietor in use (dominus utilis) to the condition of a certain
continuous performance, with reference to the thing itself, without limiting
him in the use of it.
3.5 Section II. Principles of Personal Right
18. Nature and Acquisition of Personal
Right.
The possession of the active free-will of
another person, as the power to determine it by my will to a certain action,
according to laws of freedom, is a form of right relating to the external mine
and thine, as affected by the causality of another. It is possible to have
several such rights in reference to the same person or to different persons.
The principle of the system of laws, according to which I can be in such
possession, is that of personal right, and there is only one such principle.
The acquisition of a personal right can
never be primary or arbitrary; for such a mode of acquiring it would not be in
accordance with the principle of the harmony of the freedom of my will with the
freedom of every other, and it would therefore be wrong. Nor can such a right
be acquired by means of any unjust act of another (facto injusti alterius), as
being itself contrary to right; for if such a wrong as it implies were
perpetrated on me, and I could demand satisfaction from the other, in accordance
with right, yet in such a case I would only be entitled to maintain
undiminished what was mine, and not to acquire anything more than what I
formerly had.
Acquisition by means of the action of
another, to which I determine his will according to laws of right, is therefore
always derived from what that other has as his own. This derivation, as a
juridical act, cannot be effected by a mere negative relinquishment or
renunciation of what is his (per derelictionem aut renunciationem); because
such a negative act would only amount to a cessation of his right, and not to
the acquirement of a right on the part of another. It is therefore only by
positive transference (translatio), or conveyance, that a personal right can be
acquired; and this is only possible by means of a common will, through which
objects come into the power of one or other, so that as one renounces a
particular thing which he holds under the common right, the same object when
accepted by another, in consequence of a positive act of will, becomes his.
Such transference of the property of one to another is termed its alienation.
The act of the united wills of two persons, by which what belonged to one
passes to the other, constitutes contract.
In every contract there are four juridical
acts of will involved; two of them being preparatory acts, and two of them
constitutive acts. The two preparatory acts, as forms of treating in the
transaction, are offer (oblatio) and approval (approbatio); the two constitutive
acts, as the forms of concluding the transaction, are promise (promissum) and
acceptance (acceptatio). For an offer cannot constitute a promise before it can
be judged that the thing offered (oblatum) is something that is agreeable to
the party to whom it is offered, and this much is shown by the first two
declarations; but by them alone there is nothing as yet acquired.
Further, it is neither by the particular
will of the promiser nor that of the acceptor that the property of the former
passes over to the latter. This is effected only by the combined or united
wills of both, and consequently so far only as the will of both is declared at
the same time or simultaneously. Now, such simultaneousness is impossible by
empirical acts of declaration, which can only follow each other in time and are
never actually simultaneous. For if I have promised, and another person is now
merely willing to accept, during the interval before actual acceptance, however
short it may be, I may retract my offer, because I am thus far still free; and,
on the other side, the acceptor, for the same reason, may likewise hold himself
not to be bound, up till the moment of acceptance, by his counter-declaration
following upon the promise. The external formalities or solemnities (solemnia)
on the conclusion of a contract- such as shaking hands or breaking a straw
(stipula) laid hold of by two persons- and all the various modes of confirming
the declarations on either side, prove in fact the embarrassment of the
contracting parties as to how and in what way they may represent declarations,
which are always successive, as existing simultaneously at the same moment; and
these forms fail to do this. They are, by their very nature, acts necessarily
following each other in time, so that when the one act is, the other either is
not yet or is no longer.
It is only the philosophical transcendental
deduction of the conception of acquisition by contract that can remove all
these difficulties. In a juridical external relation, my taking possession of
the free-will of another, as the cause that determined it to a certain act, is
conceived at first empirically by means of the declaration and
counter-declaration of the free-will of each of us in time, as the sensible
conditions of taking possession; and the two juridical acts must necessarily be
regarded as following one another in time. But because this relation, viewed as
juridical, is purely rational in itself, the will as a law-giving faculty of
reason represents this possession as intelligible or rational (possessio
noumenon), in accordance with conceptions of freedom and under abstraction of
those empirical conditions. And now, the two acts of promise and acceptance are
not regarded as following one another in time, but, in the manner of a pactum re
initum, as proceeding from a common will, which is expressed by the term
"at the same time," or "simultaneous," and the object
promised (promissum) is represented, under elimination of empirical conditions,
as acquired according to the law of the pure practical reason.
That this is the true and only possible
deduction of the idea of acquisition by contract is sufficiently attested by
the laborious yet always futile striving of writers on jurisprudence such as Moses
Mendelssohn in his Jerusalem- to adduce a proof of its rational possibility.
The question is put thus: "Why ought I to keep my Promise?" For it is
assumed as understood by all that I ought to do so. It is, however, absolutely
impossible to give any further proof of the categorical imperative implied;
just as it is impossible for the geometrician to prove by rational syllogisms
that in order to construct a triangle I must take three lines- so far an
analytical proposition- of which three lines any two together must be greater
than the third- a synthetical proposition, and like the former a priori. It is
a postulate of the pure reason that we ought to abstract from all the sensible
conditions of space and time in reference to the conception of right; and the
theory of the possibility of such abstraction from these conditions, without
taking away the reality of the possession, just constitutes the transcendental
deduction of the conception of acquisition by contract. It is quite akin to
what was presented under the last title, as the theory of acquisition by
occupation of the external object.
20. What is Acquired by Contract.
But what is that, designated as external,
which I acquire by contract? As it is only the causality of the active will of
another, in respect of the performance of something promised to me, I do not
immediately acquire thereby an external thing, but an act of the will in
question, whereby a thing is brought under my power so that I make it mine. By
the contract, therefore, I acquire the promise of another, as distinguished
from the thing promised; and yet something is thereby added to my having and
possession. I have become the richer in possession (locupletior) by the
acquisition of an active obligation that I can bring to bear upon the freedom
and capability of another. This my right, however, is only a personal right,
valid only to the effect of acting upon a particular physical person and
specially upon the causality of his will, so that he shall perform something
for me. It is not a real right upon that moral person, which is identified with
the idea of the united will of all viewed a priori, and through which alone I
can acquire a right valid against every possessor of the thing. For, it is in
this that all right in a thing consists.
The transfer or transmission of what is mine
to another by contract, takes place according to the law of continuity (lex
continui). Possession of the object is not interrupted for a moment during this
act; for, otherwise, I would acquire an object in this state as a thing that
had no possessor, and it would thus be acquired originally, which is contrary
to the idea of a contract. This continuity, however, implies that it is not the
particular will of either the promiser or the acceptor, but their united will
in common, that transfers what is mine to another. And hence it is not
accomplished in such a manner that the promiser first relinquishes
(derelinquit) his possession for the benefit of another, or renounces his right
(renunciat), and thereupon the other at the same time enters upon it; or
conversely. The transfer (translatio) is therefore an act in which the object
belongs for a moment at the same time to both, just as in the parabolic path of
a projectile the object on reaching its highest point may be regarded for a
moment as at the same time both rising and falling, and as thus passing in fact
from the ascending to the falling motion.
A thing is not acquired in a case of
contract by the acceptance (acceptatio) of the promise, but only by the
delivery (traditio) of the object promised. For all promise is relative to
performance; and if what was promised is a thing, the performance cannot be
executed otherwise than by an act whereby the acceptor is put by the promiser
into possession of the thing; and this is delivery. Before the delivery and the
reception of the thing, the performance of the act required has not yet taken
place; the thing has not yet passed from the one person to the other and,
consequently, has not been acquired by that other. Hence the right arising from
a contract is only a personal right; and it only becomes a real right by
delivery.
A contract upon which delivery immediately
follows (pactum re initum) excludes any interval of time between its conclusion
and its execution; and as such it requires no further particular act in the
future by which one person may transfer to another what is his. But if there is
a time- definite or indefinite- agreed upon between them for the delivery, the
question then arises whether the thing has already before that time become the
acceptor's by the contract, so that his right is a right in the thing; or
whether a further special contract regarding the delivery alone must be entered
upon, so that the right that is acquired by mere acceptance is only a personal
right, and thus it does not become a right in the thing until delivery? That
the relation must be determined according to the latter alternative will be
clear from what follows.
Suppose I conclude a contract about a thing
that I wish to acquire- such as a horse- and that I take it immediately into my
stable, or otherwise into my possession; then it is mine (vi pacti re initi),
and my right is a right in the thing. But if I leave it in the hands of the seller
without arranging with him specially in whose physical possession or holding
(detentio) this thing shall be before my taking possession of it (apprehensio),
and consequently, before the actual change of possession, the horse is not yet
mine; and the right which I acquire is only a right against a particular
person- namely, the seller of the horse- to be put into possession of the
object (poscendi traditionem) as the subjective condition of any use of it at
my will. My right is thus only a personal right to demand from the seller the
performance of his promise (praestatio) to put me into possession of the thing.
Now, if the contract does not contain the condition of delivery at the same
time- as a pactum re initum- and consequently an interval of time intervenes
between the conclusion of the contract and the taking possession of the object
of acquisition, I cannot obtain possession of it during this interval otherwise
than by exercising the particular juridical activity called a possessory act
(actum possessorium), which constitutes a special contract. This act consists
in my saying, "I will send to fetch the horse," to which the seller
has to agree. For it is not self-evident or universally reasonable that any one
will take a thing destined for the use of another into his charge at his own
risk. On the contrary, a special contract is necessary for this arrangement,
according to which the alienator of a thing continues to be its owner during a
certain definite time, and must bear the risk of whatever may happen to it;
while the acquirer can only be regarded by the seller as the owner when he has
delayed to enter into possession beyond the date at which he agreed to take
delivery. Prior to the possessory act, therefore, all that is acquired by the
contract is only a personal right; and the acceptor can acquire an external
thing only by delivery.
3.6 Section
III. Principles of Personal Right that is Real in Kind. (Jus Realiter Personale)
22. Nature of Personal Right of a
Real Kind.
Personal right of a real kind is the right
to the possession of an external object as a thing, and to the use of it as a
person. The mine and thine embraced under this right relate specially to the
family and household; and the relations involved are those of free beings in reciprocal
real interaction with each other. Through their relations and influence as
persons upon one another, in accordance with the principle of external freedom
as the cause of it, they form a society composed as a whole of members standing
in community with each other as persons; and this constitutes the household.
The mode in which this social status is acquired by individuals, and the
functions which prevail within it, proceed neither by arbitrary individual
action (facto), nor by mere contract (pacto), but by law (lege). And this law
as being not only a right, but also as constituting possession in reference to
a person, is a right rising above all mere real and personal right. It must, in
fact, form the right of humanity in our own person; and, as such, it has as its
consequence a natural permissive law, by the favour of which such acquisition
becomes possible to us.
23. What is acquired in the
household.
The acquisition that is founded upon this
law is, as regards its objects, threefold. The man acquires a wife; the husband
and wife acquire children, constituting a family; and the family acquire
domestics. All these objects, while acquirable, are inalienable; and the right
of possession in these objects is the most strictly personal of all rights.
The Rights of the Family as a Domestic Society
Title I. Conjugal Right. (Husband
and Wife)
24. The Natural Basis of Marriage.
The domestic relations are founded on
marriage, and marriage is founded upon the natural reciprocity or intercommunity
(commercium) of the sexes.* This natural union of the sexes proceeds according
to the mere animal nature (vaga libido, venus vulgivaga, fornicatio), or
according to the law. The latter is marriage (matrimonium), which is the union
of two persons of different sex for life-long reciprocal possession of their
sexual faculties. The end of producing and educating children may be regarded
as always the end of nature in implanting mutual desire and inclination in the
sexes; but it is not necessary for the rightfulness of marriage that those who
marry should set this before themselves as the end of their union, otherwise
the marriage would be dissolved of itself when the production of children
ceased.
*Commercium sexuale est usus membrorum et facultatum
sexualium alterius. This "usus" is either natural, by which human
beings may reproduce their own kind, or unnatural, which, again, refers either
to a person of the same sex or to an animal of another species than man. These
transgressions of all law, as crimina carnis contra naturam, are even "not
to be named"; and, as wrongs against all humanity in the person, they
cannot be saved, by any limitation or exception whatever, from entire
reprobation.
And even assuming that enjoyment in the
reciprocal use of the sexual endowments is an end of marriage, yet the contract
of marriage is not on that account a matter of arbitrary will, but is a
contract necessary in its nature by the law of humanity. In other words, if a
man and a woman have the will to enter on reciprocal enjoyment in accordance
with their sexual nature, they must necessarily marry each other; and this
necessity is in accordance with the juridical laws of pure reason.
25. The Rational Right of Marriage.
For, this natural commercium- as a usus
membrorum sexualium alterius- is an enjoyment for which the one person is given
up to the other. In this relation the human individual makes himself a res,
which is contrary to the right of humanity in his own person. This, however, is
only possible under the one condition, that as the one person is acquired by
the other as a res, that same person also equally acquires the other
reciprocally, and thus regains and reestablishes the rational personality. The
acquisition of a part of the human organism being, on account of its unity, at
the same time the acquisition of the whole person, it follows that the
surrender and acceptation of, or by, one sex in relation to the other, is not
only permissible under the condition of marriage, but is further only really
possible under that condition. But the personal right thus acquired is, at the
same time, real in kind; and this characteristic of it is established by the
fact that if one of the married persons run away or enter into the possession
of another, the other is entitled, at any time, and incontestably, to bring
such a one back to the former relation, as if that person were a thing.
26. Monogamy and Equality in
Marriage.
For the same reasons, the relation of the
married persons to each other is a relation of equality as regards the mutual
possession of their persons, as well as of their goods. Consequently marriage
is only truly realized in monogamy; for in the relation of polygamy the person
who is given away on the one side, gains only a part of the one to whom that
person is given up, and therefore becomes a mere res. But in respect of their
goods, they have severally the right to renounce the use of any part of them,
although only by a special contract.
From the principle thus stated, it also
follows that concubinage is as little capable of being brought under a contract
of right as the hiring of a person on any one occasion, in the way of a pactum
fornicationis. For, as regards such a contract as this latter relation would
imply, it must be admitted by all that any one who might enter into it could
not be legally held to the fulfillment of their promise if they wished to
resile from it. And as regards the former, a contract of concubinage would also
fall as a pactum turpe; because as a contract of the hire (locatio, conductio),
of a part for the use of another, on account of the inseparable unity of the
members of a person, any one entering into such a contract would be actually
surrendering as a res to the arbitrary will of another. Hence any party may
annul a contract like this if entered into with any other, at any time and at
pleasure; and that other would have no ground, in the circumstances, to
complain of a lesion of his right. The same holds likewise of a morganatic or
"left-hand" marriage, contracted in order to turn the inequality in
the social status of the two parties to advantage in the way of establishing
the social supremacy of the one over the other; for, in fact, such a relation
is not really different from concubinage, according to the principles of
natural right, and therefore does not constitute a real marriage. Hence the
question may be raised as to whether it is not contrary to the equality of
married persons when the law says in any way of the husband in relation to the
wife, "he shall be thy master," so that he is represented as the one
who commands, and she is the one who obeys. This, however, cannot be regarded
as contrary to the natural equality of a human pair, if such legal supremacy is
based only upon the natural superiority of the faculties of the husband
compared with the wife, in the effectuation of the common interest of the
household, and if the right to command is based merely upon this fact. For this
right may thus be deduced from the very duty of unity and equality in relation
to the end involved.
27. Fulfillment of the Contract of
Marriage.
The contract of marriage is completed only
by conjugal cohabitation. A contract of two persons of different sex, with the
secret understanding either to abstain from conjugal cohabitation or with the
consciousness on either side of incapacity for it, is a simulated contract; it
does not constitute a marriage, and it may be dissolved by either of the
parties at will. But if the incapacity only arises after marriage, the right of
the contract is not annulled or diminished by a contingency that cannot be
legally blamed.
The acquisition of a spouse, either as a
husband or as a wife, is therefore not constituted facto- that is, by
cohabitation- without a preceding contract; nor even pacto- by a mere contract
of marriage, without subsequent cohabitation; but only lege, that is, as a
juridical consequence of the obligation that is formed by two persons entering
into a sexual union solely on the basis of a reciprocal possession of each
other, which possession at the same time is only effected in reality by the
reciprocal usus facultatum sexualium alterius.
Title II. Parental Right. (Parent and Child)
28. The Relation of Parent and
Child.
From the duty of man towards himself- that
is, towards the humanity in his own person there thus arises a personal right
on the part of the members of the opposite sexes, as persons, to acquire one
another really and reciprocally by marriage. In like manner, from the fact of
procreation in the union thus constituted, there follows the duty of preserving
and rearing children as the products of this union. Accordingly, children, as
persons, have, at the same time, an original congenital right- distinguished
from mere hereditary right- to be reared by the care of their parents till they
are capable of maintaining themselves; and this provision becomes immediately
theirs by law, without any particular juridical act being required to determine
it.
For what is thus produced is a person, and
it is impossible to think of a being endowed with personal freedom as produced
merely by a physical process. And hence, in the practical relation, it is quite
a correct and even a necessary idea to regard the act of generation as a
process by which a person is brought without his consent into the world and
placed in it by the responsible free will of others. This act, therefore,
attaches an obligation to the parents to make their children- as far as their
power goes- contented with the condition thus acquired. Hence parents cannot
regard their child as, in a manner, a thing of their own making; for a being
endowed with freedom cannot be so regarded. Nor, consequently, have they a
right to destroy it as if it were their own property, or even to leave it to
chance; because they have brought a being into the world who becomes in fact a
citizen of the world, and they have placed that being in a state which they
cannot be left to treat with indifference, even according to the natural
conceptions of right.
We cannot even conceive how it is possible
that God can create free beings; for it appears as if all their future actions,
being predetermined by that first act, would be contained in the chain of
natural necessity, and that, therefore, they could not be free. But as men we
are free in fact, as is proved by the categorical imperative in the moral and
practical relation as an authoritative decision of reason; yet reason cannot
make the possibility of such a relation of cause to effect conceivable from the
theoretical point of view, because they are both suprasensible. All that can be
demanded of reason under these conditions would merely be to prove that there
is no contradiction involved in the conception of a creation of free beings;
and this may be done by showing that contradiction only arises when, along with
the category of causality, the condition of time is transferred to the relation
of suprasensible things. This condition, as implying that the cause of an
effect must precede the effect as its reason, is inevitable in thinking the
relation of objects of sense to one another; and if this conception of
causality were to have objective reality given to it in the theoretical
bearing, it would also have to be referred to the suprasensible sphere. But the
contradiction vanishes when the pure category, apart from any sensible
conditions, is applied from the moral and practical point of view, and
consequently as in a non-sensible relation to the conception of creation.
The philosophical jurist will not regard
this investigation, when thus carried back even to the ultimate principles of
the transcendental philosophy, as an unnecessary subtlety in a metaphysic of
morals, or as losing itself in aimless obscurity, when he takes into
consideration the difficulty of doing justice in this inquiry to the ultimate
relations of the principles of right.
From the duty thus indicated, there further
necessarily arises the right of the parents to the management and training of
the child, so long as it is itself incapable of making proper use of its body
as an organism, and of its mind as an understanding. This involves its
nourishment and the care of its education. This includes, in general, the
function of forming and developing it practically, that it may be able in the
future to maintain and advance itself, and also its moral culture and
development, the guilt of neglecting it falling upon the parents. All this
training is to be continued till the child reaches the period of emancipation
(emancipatio), as the age of practicable self-support. The parents then
virtually renounce the parental right to command, as well as all claim to
repayment for their previous care and trouble; for which care and trouble,
after the process of education is complete, they can only appeal to the
children, by way of any claim, on the ground of the obligation of gratitude as
a duty of virtue.
From the fact of personality in the
children, it further follows that they can never be regarded as the property of
the parents, but only as belonging to them by way of being in their possession,
like other things that are held apart from the possession of all others and
that can be brought back even against the will of the subjects. Hence the right
of the parents is not a purely real right, and it is not alienable (jus
personalissimum). But neither is it a merely personal right; it is a personal
right of a real kind, that is, a personal right that is constituted and
exercised after the manner of a real right.
It is therefore evident that the title of a
personal right of a real kind must necessarily be added, in the science of
right, to the titles of real right and personal right, the division of rights
into these two being not complete. For, if the right of the parents to the
children were treated as if it were merely a real right to a part of what
belongs to their house, they could not found only upon the duty of the children
to return to them in claiming them when they run away, but they would be then
entitled to seize them and impound them like things or runaway cattle.
TITLE III. Household Right. (Master and Servant)
30. Relation and Right of the Master
of a Household.
The children of the house, who, along with
the parents, constitute a family, attain majority, and become masters of
themselves (majorennes, sui juris), even without a contract of release from
their previous state of dependence, by their actually attaining to the
capability of self-maintenance. This attainment arises, on the one hand, as a
state of natural majority, with the advance of years in the general course of
nature; and, on the other hand, it takes form, as a state in accordance with
their own natural condition. They thus acquire the right of being their own
masters, without the interposition of any special juridical act, and therefore
merely by law (lege); and they owe their parents nothing by way of legal debt
for their education, just as the parents, on their side, are now released from
their obligations to the children in the same way. Parents and children thus
gain or regain their natural freedom; and the domestic society, which was
necessary according to the law of right, is thus naturally dissolved.
Both parties, however, may resolve to
continue the household, but under another mode of obligation. It may assume the
form of a relation between the bead of the house, as its master, and the other
members as domestic servants, male or female; and the connection between them
in this new regulated domestic economy (societas herilis) may be determined by
contract. The master of the house, actually or virtually, enters into contract
with the children, now become major and masters of themselves; or, if there be
no children in the family, with other free persons constituting the membership
of the household; and thus there is established domestic relationship not
founded on social equality, but such that one commands as master, and another
obeys as servant (imperantis et subjecti domestici).
The domestics or servants may then be regarded
by the master of the household as thus far his. As regards the form or mode of
his possession of them, they belong to him as if by a real right; for if any of
them run away, he is entitled to bring them again under his power by a
unilateral act of his will. But as regards the matter of his right, or the use
he is entitled to make of such persons as his domestics, he is not entitled to
conduct himself towards them as if he was their proprietor or owner (dominus
servi); because they are only subjected to his power by contract, and by a
contract under certain definite restrictions. For a contract by which the one
party renounced his whole freedom for the advantage of the other, ceasing
thereby to be a person and consequently having no duty even to observe a
contract, is self contradictory, and is therefore of itself null and void. The
question as to the right of property in relation to one who has lost his legal
personality by a crime does not concern us here.
This contract, then, of the master of a household
with his domestics, cannot be of such a nature that the use of them could ever
rightly become an abuse of them; and the judgement as to what constitutes use
or abuse in such circumstances the is not left merely to the master, but is
also competent to the servants, who ought never to be held in bondage or bodily
servitude as slaves or serfs. Such a contract cannot, therefore, be concluded
for life, but in all cases only for a definite period, within which one party
may intimate to the other a termination of their connection. Children, however,
including even the children of one who has become enslaved owing to a crime,
are always free. For every man is born free, because he has at birth as yet
broken no law; and even the cost of his education till his maturity cannot be
reckoned as a debt which he is bound to pay. Even a slave, if it were in his
power, would be bound to educate his children without being entitled to count
and reckon with them for the cost; and in view of his own incapacity for discharging
this function, the possessor of a slave, therefore, enters upon the obligation
which he has rendered the slave himself unable to fulfil.
Here, again, as under the first two titles,
it is clear that there is a personal right of a real kind, in the relation of
the master of a house to his domestics. For he can legally demand them as
belonging to what is externally his, from any other possessor of them; and he
is entitled to fetch them back to his house, even before the reasons that may
have led them to run away, and their particular right in the circumstances,
have been juridically investigated.
SYSTEMATIC DIVISION OF ALL THE RIGHTS CAPABLE OF BEING ACQUIRED BY
CONTRACT
31. Division of Contracts Juridical
Conceptions of Money and a Book.
It is reasonable to demand that a
metaphysical science of right shall completely and definitely determine the
members of a logical division of its conceptions a priori, and thus establish
them in a genuine system. All empirical division, on the other hand, is merely
fragmentary partition, and it leaves us in uncertainty as to whether there may
not be more members still required to complete the whole sphere of the divided
conception. A division that is made according to a principle a priori may be
called, in contrast to all empirical partitions, a dogmatic division.
Every contract, regarded in itself
objectively, consists of two juridical acts: the promise and its acceptance.
Acquisition by the latter, unless it be a pactum re initum which requires
delivery, is not a part, but the juridically necessary consequence of the
contract. Considered again subjectively, or as to whether the acquisition,
which ought to happen as a necessary consequence according to reason, will also
follow, in fact, as a physical consequence, it is evident that I have no
security or guarantee that this will happen by the mere acceptance of a
promise. There is, therefore, something externally required connected with the
mode of the contract, in reference to the certainty of acquisition by it; and
this can only be some element completing and determining the means necessary to
the attainment of acquisition as realizing the purpose of the contract. And in
his connection and behoof, three persons are required to intervene- the
promiser, the acceptor, and the cautioner or surety. The importance of the
cautioner is evident; but by his intervention and his special contract with the
promiser, the acceptor gains nothing in respect of the object but the means of
compulsion that enable him to obtain what is his own.
According to these rational principles of
logical division, there are properly only three pure and simple modes of
contract. There are, however, innumerable mixed and empirical modes, adding
statutory and conventional forms to the principles of mine and thine that are
in accordance with rational laws. But they lie outside of the circle of the
metaphysical science of right, whose rational modes of contract can alone be
indicated here.
All contracts are
founded upon a purpose of acquisition, and are either:
A. Gratuitous contracts,
with unilateral acquisition; or
B. Onerous contracts,
with reciprocal acquisition; or
C. Cautionary contracts,
with no acquisition, but only guarantee of what has been already acquired.
These contracts may be gratuitous on the one side, and yet, at the same time,
onerous on the other.
A. The gratuitous
contracts (pacta gratuita) are:
1. Depositation
(depositum), involving the preservation of some valuable deposited in trust;
2. Commodate
(commodatum) a loan of the use of a thing;
3. Donation (donatio), a
free gift.
B. The onerous contracts
are contracts either of permutation or of hiring.
I. Contracts of
permutation or reciprocal exchange (permutatio late sic dicta):
1. Barter, or strictly
real exchange (permutatio stricte sic dicta). Goods exchanged for goods.
2. Purchase and sale
(emptio venditio). Goods exchanged for money.
3. Loan (mutuum). Loan
of a fungible under condition of its being returned in kind: corn for corn, or
money for money.
II. Contracts of letting
and hiring (locatio conductio):
1. Letting of a thing on
hire to another person who is to make use of it (locatio rei). If the thing can
only be restored in specie, it may be the subject of an onerous contract
combining the consideration of interest with it (pactum usurarium).
2. Letting of work on
hire (locatio operae). Consent to the use of my powers by another for a certain
price (merces). The worker under this contract is a hired servant
(mercenarius).
3. Mandate (mandatum). The
contract of mandate is an engagement to perform or execute a certain business
in place and in name of another person. If the action is merely done in the
place of another, but not, at the same time, in his name, it is performance
without commission (gestio negotii); but if it is rightfully performed in name
of the other, it constitutes mandate, which as a contract of procuration is an
onerous contract (mandatum onerosum).
C. The cautionary
contracts (cautiones) are:
1. Pledge (pignus).
Caution by a moveable deposited as security.
2. Suretyship
(fidejussio). Caution for the fulfillment of the 3. Personal security
(praestatio obsidis).
Guarantee of personal performance.
This list of all modes in which the
property of one person may be transferred or conveyed to another includes
conceptions of certain objects or instruments required for such transference
(translatio). These appear to be entirely empirical, and it may therefore seem
questionable whether they are entitled to a place in a metaphysical science of
right. For, in such a science, the divisions must be made according to
principles a priori; and hence the matter of the juridical relation, which may
be conventional, ought to be left out of account, and only its form should be
taken into consideration.
Such conceptions may be illustrated by
taking the instance of money, in contradistinction from all other exchangeable
things as wares and merchandise; or by the case of a book. And considering
these as illustrative examples in this connection, it will be shown that the
conception of money as the greatest and most useable of all the means of human
intercommunication through things, in the way of purchase and sale in commerce,
as well as that of books as the greatest means of carrying on the interchange
of thought, resolve themselves into relations that are purely intellectual and
rational. And hence it will be made evident that such conceptions do not really
detract from the purity of the given scheme of pure rational contracts, by
empirical admixture.
Illustration of Relations of Contract by the Conceptions of Money and a Book
Money is a thing which can only be made use
of, by being alienated or exchanged. This is a good nominal definition, as
given by Achenwall; and it is sufficient to distinguish objects of the will of
this kind from all other objects. But it gives us no information regarding the
rational possibility of such a thing as money is. Yet we see thus much by the
definition: (1) that the alienation in this mode of human intercommunication
and exchange is not viewed as a gift, but is intended as a mode of reciprocal
acquisition by an onerous contract; and (2) that it is regarded as a mere means
of carrying on commerce, universally adopted by the people, but having no value
as such of itself, in contrast to other things as mercantile goods or wares
which have a particular value in relation to special wants existing among the
people. It therefore represents all exchangeable things.
A bushel of corn has the greatest direct
value as a means of satisfying human wants. Cattle may be fed by it; and these
again are subservient to our nourishment and locomotion, and they even labour
in our stead. Thus, by means of corn, men are multiplied and supported, who not
only act again in reproducing such natural products, but also by other
artificial products they can come to the relief of all our proper wants. Thus
are men enabled to build dwellings, to prepare clothing, and to supply all the
ingenious comforts and enjoyments which make up the products of industry. On
the other hand, the value of money is only indirect. It cannot be itself
enjoyed, nor be used directly for enjoyment; it is, however, a means towards
this, and of all outward things it is of the highest utility.
We
may found a real definition of money provisionally upon these considerations.
It may thus be defined as the universal means of carrying on the industry of
men in exchanging intercommunications with each other. Hence national wealth,
in so far as it can be acquired by means of money, is properly only the sum of
the industry or applied labour with which men pay each other, and which is
represented by the money in circulation among the people.
The thing which is to be called money must,
therefore, have cost as much industry to produce it, or even to put it into the
hands of others, as may be equivalent to the industry or labour required for
the acquisition of the goods or wares or merchandise, as natural or artificial
products, for which it is exchanged. For if it were easier to procure the
material which is called money than the goods that are required, there would be
more money in the market than goods to be sold; and because the seller would
then have to expend more labour upon his goods than the buyer on the
equivalent, the money coming in to him more rapidly, the labour applied to the
preparation of goods and industry generally, with the industrial productivity
which is the source of the public wealth, would at the same time dwindle and be
cut down. Hence bank notes and assignations are not to be regarded as money,
although they may take its place by way of representing it for a time; because
it costs almost no labour to prepare them, and their value is based merely upon
the opinion prevailing as to the further continuance of the previous
possibility of changing them into ready money. But on its being in any way
found out that there is not ready money in sufficient quantity for easy and
safe conversion of such notes or assignations, the opinion gives way, and a
fall in their value becomes inevitable. Thus the industrial labour of those who
work the gold and silver mines in Peru and Mexico- especially on account of the
frequent failures in the application of fruitless efforts to discover new veins
of these precious metals- is probably even greater than what is expended in the
manufacture of goods in Europe. Hence such mining labour, as unrewarded in the
circumstances, would be abandoned of itself, and the countries mentioned would
in consequence soon sink into poverty, did not the industry of Europe,
stimulated in turn by these very metals, proportionally expand at the same time
so as constantly to keep up the zeal of the miners in their work by the
articles of luxury thereby offered to them. It is thus that the concurrence of
industry with industry, and of labour with labour, is always maintained.
But how is it possible that what at the
beginning constituted only goods or wares, at length became money? This has
happened wherever a sovereign as great and powerful consumer of a particular
substance, which he at first used merely for the adornment and decoration of
his servants and court, has enforced the tribute of his subjects in this kind
of material. Thus it may have been gold, or silver, or copper, or a species of
beautiful shells called cowries, or even a sort of mat called makutes, as in
Congo; or ingots of iron, as in Senegal; or Negro slaves, as on the Guinea
Coast. When the ruler of the country demanded such things as imposts, those
whose labour had to be put in motion to procure them were also paid by means of
them, according to certain regulations of commerce then established, as in a
market or exchange. As it appears to me, it is only thus that a particular
species of goods came to be made a legal means of carrying on the industrial
labour of the subjects in their commerce with each other, and thereby forming
the medium of the national wealth. And thus it practically became money.
The rational conception of money, under
which the empirical conception is embraced, is therefore that of a thing which,
in the course of the public permutation or exchange of possessions (permutatio
publica), determines the price of all the other things that form products or
goods- under which term even the sciences are included, in so far as they are
not taught gratis to others. The quantity of it among a people constitutes
their wealth (opulentia). For price (pretium) is the public judgement about the
value of a thing, in relation to the proportionate abundance of what forms the
universal representative means in circulation for carrying on the reciprocal
interchange of the products of industry or labour.* The precious metals, when
they are not merely weighed but also stamped or provided with a sign indicating
how much they are worth, form legal money, and are called coin.
*Hence where commerce is extensive neither
gold nor copper is specially used as money, but only as constituting wares;
because there is too little of the first and too much of the second for them to
be easily brought into circulation, so as at once to have the former in such
small pieces as are necessary in payment for particular goods and not to have
the latter in great quantity in case of the smallest acquisitions. Hence
silver- more or less alloyed with copper- is taken as the proper material of
money and the measure of the calculation of all prices in the great commercial
intercommunications of the world; and the other metals- and still more
non-metalic substances- can only take its place in the case of a people of
limited commerce.
According to Adam Smith: "Money has
become, in all civilized nations, the universal instrument of commerce, by the
intervention of which goods of all kinds are bought and sold or exchanged for
one another." This definition expands the empirical conception of money to
the rational idea of it, by taking regard only to the implied form of the
reciprocal performances in the onerous contracts, and thus abstracting from
their matter. It is thus conformable to the conception of right in the
permutation and exchange of the mine and thine generally (commutatio late sic
dicta). The definition, therefore, accords with the representation in the above
synopsis of a dogmatic division of contracts a priori, and consequently with the
metaphysical principle of right in general.
A book is a writing which contains a
discourse addressed by some one to the public, through visible signs of speech.
It is a matter of indifference to the present considerations whether it is
written by a pen or imprinted by types, and on few or many pages. He who speaks
to the public in his own name is the author. He who addresses the writing to
the public in the name of the author is the publisher. When a publisher does
this with the permission or authority of the author, the act is in accordance
with right, and he is the rightful publisher; but if this is done without such
permission or authority, the act is contrary to right, and the publisher is a
counterfeiter or unlawful publisher. The whole of a set of copies of the
original document is called an edition.
The Unauthorized Publishing of Books is Contrary to the Principles of
Right, and is Rightly Prohibited
A writing is not an immediate direct presentation
of a conception, as is the case, for instance, with an engraving that exhibits
a portrait, or a bust or cast by a sculptor. It is a discourse addressed in a
particular form to the public; and the author may be said to speak publicly by
means of his publisher. The publisher, again, speaks by the aid of the printer
as his workman (operarius), yet not in his own name, for otherwise he would be
the author, but in the name of the author; and he is only entitled to do so in
virtue of a mandate given him to that effect by the author. Now the
unauthorized printer and publisher speaks by an assumed authority in his
publication; in the name indeed of the author, but without a mandate to that
effect (gerit se mandatarium absque mandato). Consequently such an unauthorized
publication is a wrong committed upon the authorized and only lawful publisher,
as it amounts to a pilfering of the profits which the latter was entitled and
able to draw from the use of his proper right (furtum usus). Unauthorized
printing and publication of books is, therefore, forbidden- as an act of
counterfeit and piracy- on the ground of right.
There seems, however, to be an impression
that there is a sort of common right to print and publish books; but the
slightest reflection must convince any one that this would be a great
injustice. The reason of it is found simply in the fact that a book, regarded
from one point of view, is an external product of mechanical art (opus
mechanicum), that can be imitated by any one who may be in rightful possession
of a copy; and it is therefore his by a real right.
But, from another point of view, a book is
not merely an external thing, but is a discourse of the publisher to the
public, and he is only entitled to do this publicly under the mandate of the
author (praestatio operae); and this constitutes a personal right. The error
underlying the impression referred to, therefore, arises from an interchange
and confusion of these two kinds of right in relation to books.
Confusion of Personal Right and Real Right
The confusion of personal right with real
right may be likewise shown by reference to a difference of view in connection
with another contract, falling under the head of contracts of hiring (B II. I),
namely, the contract of lease (jus incolatus). The question is raised as to
whether a proprietor when he has sold a house or a piece of ground held on
lease, before the expiry of the period of lease, was bound to add the condition
of the continuance of the lease to the contract of purchase; or whether it
should be held that "purchase breaks hire," of course under
reservation of a period of warning determined by the nature of the subject in
use. In the former view, a house or farm would be regarded as having a burden
lying upon it, constituting a real right acquired in it by the lessee; and this
might well enough be carried out by a clause merely indorsing or ingrossing the
contract of lease in the deed of sale. But as it would no longer then be a
simple lease; another contract would properly be required to be conjoined, a
matter which few lessors would be disposed to grant. The proposition, then,
that "Purchase breaks hire" holds in principle; for the full right in
a thing as a property overbears all personal right, which is inconsistent with
it. But there remains a right of action to the lessee, on the ground of a
personal right for indemnification on account of any loss arising from breaking
of the contract.
3.7 Episodical
Section. The Ideal Acquisition of External Objects of the Will
32. The Nature and Modes of Ideal
Acquisition.
I call that mode of acquisition ideal which
involves no causality in time, and which is founded upon a mere idea of pure
reason. It is nevertheless actual, and not merely imaginary acquisition: and it
is not called real only because the act of acquisition is not empirical. This
character of the act arises from the peculiarity that the person acquiring
acquires from another who either is not yet, and who can only be regarded as a
possible being, or who is just ceasing to be, or who no longer is. Hence such a
mode of attaining to possession is to be regarded as a mere practical idea of
reason.
There are three modes of
ideal acquisition:
I. Acquisition by
usucapion;
II. Acquisition by
inheritance or succession;
III. Acquisition by
undying merit (meritum immortale), or the claim by right to a good name at
death.
These three modes of
acquisition can, as a matter of fact, only have effect in a public juridical
state of existence, but they are not founded merely upon the civil constitution
or upon arbitrary statutes; they are already contained a priori in the
conception of the state of nature, and are thus necessarily conceivable prior
to their empirical manifestation. The laws regarding them in the civil
constitution ought to be regulated by that rational conception.
33. I. Acquisition by Usucapion.
(Acquisitio per Usucapionem).
I may acquire the property of another merely
by long possession and use of it (usucapio). Such property is not acquired,
because I may legitimately presume that his consent is given to this effect
(per consensum praesumptum); nor because I can assume that, as he does not
oppose my acquisition of it, he has relinquished or abandoned it as his (rem
derelictam). But I acquire it thus because, even if there were any one actually
raising a claim to this property as its true owner, I may exclude him on the
ground of my long possession of it, ignore his previous existence, and proceed
as if he existed during the time of my possession as a mere abstraction,
although I may have been subsequently apprized of his reality as well as of his
claim. This mode of acquisition is not quite correctly designated acquisition
by prescription (per praescriptionem); for the exclusion of all other claimants
is to be regarded as only the consequence of the usucapion; and the process of
acquisition must have gone before the right of exclusion. The rational
possibility of such a mode of acquisition has now to be proved.
Any one who does not exercise a continuous
possessory activity (actus possessorius) in relation to a thing as his is
regarded with good right as one who does not at all exist as its possessor. For
he cannot complain of lesion so long as he does not qualify himself with a
title as its possessor. And even if he should afterwards lay claim to the thing
when another has already taken possession of it, he only says he was once on a
time owner of it, but not that he is so still, or that his possession has
continued without interruption as a juridical fact. It can, therefore, only be
a juridical process of possession, that has been maintained without
interruption and is proveable by documentary fact, that any one can secure for
himself what is his own after ceasing for a long time to make use of it.
For, suppose that the neglect to exercise
this possessory activity had not the effect of enabling another to found upon
his hitherto lawful, undisputed and bona fide possession, and irrefragable
right to continue in its possession so that he may regard the thing that is
thus in his possession as acquired by him. Then no acquisition would ever
become peremptory and secured, but all acquisition would only be provisory and
temporary. This is evident on the ground that there are no historical records
available to carry the investigation of a title back to the first possessor and
his act of acquisition. The presumption upon which acquisition by usucapion is
founded is, therefore, not merely its conformity to right as allowed and just,
but also the presumption of its being right (praesumtio juris et de jure), and
its being assumed to be in accordance with compulsory laws (suppositio
legalis). Anyone who has neglected to embody his possessory act in a
documentary title has lost his claim to the right of being possessor for the
time; and the length of the period of his neglecting to do so- which need not
necessarily be particularly defined- can be referred to only as establishing the
certainty of this neglect. And it would contradict the postulate of the
juridically practical reason to maintain that one hitherto unknown as a
possessor, and whose possessory activity has at least been interrupted, whether
by or without fault of his own, could always at any time re-acquire a property;
for this would be to make all ownership uncertain (dominia rerum incerta
facere).
But if he is a member of the commonwealth
or civil union, the state may maintain his possession for him vicariously,
although it may be interrupted as private possession; and in that case the
actual possessor will not be able to prove a title of acquisition even from a
first occupation, nor to found upon a title of usucapion. But, in the state of
nature, usucapion is universally a rightful ground of holding, not properly as
a juridical mode of requiring a thing, but as a ground for maintaining oneself
in possession of it where there are no juridical acts. A release from juridical
claims is commonly also called acquisition. The prescriptive title of the older
possessor, therefore, belongs to the sphere of natural right (est juris
naturae).
34. II. Acquisition by Inheritance.
(Acquisitio haereditatis).
Inheritance is constituted by the transfer
(translatio) of the property or goods of one who is dying to a survivor,
through the consent of the will of both. The acquisition of the heir who takes
the estate (haeredis instituti) and the relinquishment of the testator who
leaves it, being the acts that constitute the exchange of the mine and thine,
take place in the same moment of time- in articulo mortis- and just when the
testator ceases to be. There is therefore no special act of transfer
(translatio) in the empirical sense; for that would involve two successive
acts, by which the one would first divest himself of his possession, and the
other would thereupon enter into it. Inheritance as constituted by a
simultaneous double act is, therefore, an ideal mode of acquisition.
Inheritance is inconceivable in the state of nature without a testamentary
disposition (dispositio ultimae voluntatis); and the question arises as to
whether this mode of acquisition is to be regarded as a contract of succession,
or a unilateral act instituting an heir by a will (testamentum). The determination
of this question depends on the further question, whether and how, in the very
same moment in which one individual ceases to be, there can be a transition of
his property to another person. Hence the problem, as to how a mode of
acquisition by inheritance is possible, must be investigated independently of
the various possible forms in which it is practically carried out, and which
can have place only in a commonwealth.
"It is possible to acquire by being
instituted or appointed heir in a testamentary disposition." For the
testator Caius promises and declares in his last will to Titius, who knows
nothing of this promise, to transfer to him his estate in case of death, but
thus continuing as long as he lives sole owner of it. Now by a mere unilateral
act of will, nothing can in fact be transmitted to another person, as in
addition to the promise of the one party there is required acceptance
(acceptatio) on the part of the other, and a simultaneous bilateral act of will
(voluntas simultanea) which, however, is here awanting. So long as Caius lives,
Titius cannot expressly accept in order to enter on acquisition, because Caius
has only promised in case of death; otherwise the property would be for a
moment at least in common possession, which is not the will of the testator.
However, Titius acquires tacitly a special right to the inheritance as a real
right. This is constituted by the sole and exclusive right to accept the estate
(jus in re jacente), which is therefore called at that point of time a haereditas
jacens. Now as every man- because he must always gain and never lose by it-
necessarily, although tacitly, accepts such a right, and as Titius after the
death of Caius is in this position, he may acquire the succession as heir by
acceptance of the promise. And the estate is not in the meantime entirely
without an owner (res nullius), but is only in abeyance or vacant (vacua);
because he has exclusively the right of choice as to whether he will actually
make the estate bequeathed to him his own or not.
Hence testaments are valid according to mere natural right (sunt
juris naturae). This assertion however, is to be understood in the sense that
they are capable and worthy of being introduced and sanctioned in the civil
state, whenever it is instituted. For it is only the common will in the civil
state that maintains the possession of the inheritance or succession, while it
hangs between acceptance or rejection and specially belongs to no particular
individual.
35. III. The Continuing Right of a
Good Name after Death. (Bona fama Defuncti).
It would be absurd to think that a dead
person could possess anything after his death, when he no longer exists in the
eye of the law, if the matter in question were a mere thing. But a good name is
a congenital and external, although merely ideal, possession, which attaches
inseparably to the individual as a person. Now we can and must abstract here
from all consideration as to whether the persons cease to be after death or
still continue as such to exist; because, in considering their juridical
relation to others, we regard persons merely according to their humanity and as
rational beings (homo noumenon). Hence any attempt to bring the reputation or
good name of a person into evil and false repute after death, is always
questionable, even although a well-founded charge may be allowed- for to that
extent the brocard "De mortuis nil nisi bene"* is wrong. Yet to
spread charges against one who is absent and cannot defend himself, shows at
least a want of magnanimity.
*[Let nothing be said of the dead but what
is favourable.]
By a blameless life and a death that
worthily ends it, nothing ends it, it is admitted that a man may acquire a
(negatively) good reputation constituting something that is his own, even when
he no longer exists in the world of sense as a visible person (homo
phaenomenon). It is further held that his survivors and successors- whether
relatives or strangers- are entitled to defend his good name as a matter of
right, on the ground that unproved accusations subject them all to the danger
of similar treatment after death. Now that a man when dead can yet acquire such
a right is a peculiar and, nevertheless, an undeniable manifestation in fact,
of the a priori law-giving reason thus extending its law of command or
prohibition beyond the limits of the present life. If some one then spreads a
charge regarding a dead person that would have dishonoured him when living, or
even made him despicable, any one who can adduce a proof that this accusation
is intentionally false and untrue may publicly declare him who thus brings the
dead person into ill repute to be a calumniator, and affix dishonour to him in
turn. This would not be allowable unless it were legitimate to assume that the
dead person was injured by the accusation, although he is dead, and that a
certain just satisfaction was done to him by an apology, although he no longer
sensibly exists. A title to act the part the vindicator of the dead person does
not require to be established; for every one necessarily claims this of
himself, not merely as a duty of virtue regarded ethically, but as a right
belonging to him in virtue of his humanity. Nor does the vindicator require to
show any special personal damage, accruing to him as a friend or relative, from
a stain on the character of the deceased, to justify him in proceeding to
censure it. That such a form of ideal acquisition, and even a right in an
individual after death against survivors, is thus actually founded, cannot,
therefore, be disputed, although the possibility of such a right is not capable
of logical deduction.
There is no ground for drawing visionary
inferences from what has just been stated, to the presentiment of a future life
and invisible relations to departed souls. For the considerations connected
with this right turn on nothing more than the purely moral and juridical
relation which subsists among men, even in the present life, as rational
beings. Abstraction is, however, made from all that belongs physically to their
existence in space and time; that is, men are considered logically apart from
these physical concomitants of their nature, not as to their state when
actually deprived of them, but only in so far as being spirits they are in a
condition that might realize the injury done them by calumniators. Any one who
may falsely say something against me a hundred years hence injures me even now.
For in the pure juridical relation, which is entirely rational and
surprasensible, abstraction is made from the physical conditions of time, and
the calumniator is as culpable as if he had committed the offence in my
lifetime; only this will not be tried by a criminal process, but he will only
be punished with that loss of honour he would have caused to another, and this
is inflicted upon him by public opinion according to the lex talionis. Even a
plagiarism from a dead author, although it does not tarnish the honour of the
deceased, but only deprives him of a part of his property, is yet properly
regarded as a lesion of his human right. CH3
The System of those Laws Which Require No External Promulgation
3.7.1 Chapter III. Acquisition Conditioned by the Sentence
of a Public Judicatory
36. How and What Acquisition is
Subjectively Conditioned
by the Principle of a Public Court.
Natural right, understood simply as that
right which is not statutory, and which is knowable purely a priori, by every
man's reason, will include distributive justice as well as commutative justice.
It is manifest that the latter, as constituting the justice that is valid
between persons in their reciprocal relations of intercourse with one another,
must belong to natural right. But this holds also of distributive justice, in
so far as it can be known a priori; and decisions or sentences regarding it
must be regulated by the law of natural right.
The moral person who presides in the sphere
of justice and administers it is called the Court of justice, and, as engaged
in the process of official duty, the judicatory; the sentence delivered in a
case, is the judgement (judicium). All this is to be here viewed a priori,
according to the rational conditions of right, without taking into
consideration how such a constitution is to be actually established or
organized, for which particular statutes, and consequently empirical
principles, are requisite.
The question, then, in this connection, is
not merely "What is right in itself?" in the sense in which every man
must determine it by the judgement of reason; but "What is right as applied
to this case?" that is, "What is right and just as viewed by a
court?" The rational and the judicial points of view are therefore to be
distinguished; and there are four cases in which the two forms of judgement
have a different and opposite issue. And yet they may co-exist with each other,
because they are delivered from two different, yet respectively true, points of
view: the one from regard to private right, the other from the idea of public
right. They are: I. The contract of donation (pactum donationis); II. The
contract of loan (commodatum); III. The action of real revindication
(vindicatio); and IV. Guarantee by oath (juramentum).
It is a common error on the part of the
jurist to fall here into the fallacy of begging the question by a tacit
assumption (vitium subreptionis). This is done by assuming as objective and
absolute the juridical principle which a public court of justice is entitled
and even bound to adopt in its own behoof, and only from the subjective purpose
of qualifying itself to decide and judge upon all the rights pertaining to
individuals. It is therefore of no small importance to make this specific
difference intelligible, and to draw attention to it.
37. I. The Contract of Donation.
(Pactum Donationis.
The contract of donation signifies the
gratuitous alienation (gratis) of a thing or right that is mine. It involves a
relation between me as the donor (donans), and another person as the donatory
(donatarius), in accordance with the principle of private right, by which what
is mine is transferred to the latter, on his acceptance of it, as a gift
(donum). However, it is not to be presumed that I have voluntarily bound myself
thereby so as to be compelled to keep my promise, and that I have thus given
away my freedom gratuitously, and, as it were, to that extent thrown myself
away. Nemo suum jactare praesumitur. But this is what would happen, under such
circumstances, according to the principle of right in the civil state; for in
this sphere the donatory can compel me, under certain conditions, to perform my
promise. If, then, the case comes before a court, according to the conditions
of public right, it must either be presumed that the donor has consented to
such compulsion, or the court would give no regard, in the sentence, to the
consideration as to whether he intended to reserve the right to resile from his
promise or not; but would only refer to what is certain, namely, the condition
of the promise and the acceptance of the donatory. Although the promiser,
therefore, thought- as may easily be supposed- that he could not be bound by
his promise in any case, if he "rued" it before it was actually
carried out, yet the court assumes that he ought expressly to have reserved
this condition if such was his mind; and if he did not make such an express
reservation, it will be held that he can be compelled to implement his promise.
And this principle is assumed by the court, because the administration of
justice would otherwise be endlessly impeded, or even made entirely impossible.
38. II. The Contract of Loan.
(Commodatum).
In the contract of commodate-loan
(commodatum) I give some one the gratuitous use of something that is mine. If
it is a thing that is given on loan, the contracting parties agree that the
borrower will restore the very same thing to the power of the lender, But the
receiver of the loan (commodatarius) cannot, at the same time, assume that the
owner of the thing lent (commodans) will take upon himself all risk (casus) of
any possible loss of it, or of its useful quality, that may arise from having
given it into the possession of the receiver. For it is not to be understood of
itself that the owner, besides the use of the thing, which he has granted to
the receiver, and the detriment that is inseparable from such use, also gives a
guarantee or warrandice against all damage that may arise from such use. On the
contrary, a special accessory contract would have to be entered into for this
purpose. The only question, then, that can be raised is this: "Is it incumbent
on the lender or the borrower to add expressly the condition of undertaking the
risk that may accrue to the thing lent; or, if this is not done, which of the
parties is to be presumed to have consented and agreed to guarantee the
property of the lender, up to restoration of the very same thing or its
equivalent?" Certainly not the lender; because it cannot be presumed that
he has gratuitously agreed to give more than the mere use of the thing, so that
he cannot be supposed to have also undertaken the risk of loss of his property.
But this may be assumed on the side of the borrower; because he thereby
undertakes and performs nothing more than what is implied in the contract.
For example, I enter a house, when
overtaken by a shower of rain, and ask the loan of a cloak. But through
accidental contact with colouring matter, it becomes entirely spoiled while in
my possession; or on entering another house, I lay it aside and it is stolen.
Under such circumstances, everybody would think it absurd for me to assert that
I had no further concern with the cloak but to return it as it was, or, in the
latter case, only to mention the fact of the theft; and that, in any case,
anything more required would be but an act of courtesy in expressing sympathy
with the owner on account of his loss, seeing he can claim nothing on the
ground of right. It would be otherwise, however, if, on asking the use of an
article, I discharged myself beforehand from all responsibility, in case of its
coming to grief while in my hands, on the ground of my being poor and unable to
compensate any incidental loss. No one could find such a condition superfluous
or ludicrous, unless the borrower were, in fact, known to be a well-to-do and
well-disposed man; because in such a case it would almost be an insult not to
act on the presumption of generous compensation for any loss sustained.
Now by the very nature of this contract, the
possible damage (casus) which the thing lent may undergo cannot be exactly
determined in any agreement. Commodate is therefore an uncertain contract
(pactum incertum), because the consent can only be so far presumed. The
judgement, in any case, deciding upon whom the incidence of any loss must fall,
cannot therefore be determined from the conditions of the contract in itself,
but only by the principle of the court before which it comes, and which can
only consider what is certain in the contract; and the only thing certain is
always the fact as to the possession of the thing as property. Hence the
judgement passed in the state of nature will be different from that given by a
court of justice in the civil state. The judgement from the standpoint of
natural right will be determined by regard to the inner rational quality of the
thing, and will run thus: "Loss arising from damage accruing to a thing
lent falls upon the borrower" (casum sentit commodatarius); whereas the
sentence of a court of justice in the civil state will run thus: "The loss
falls upon the lender" (casum sentit dominus). The latter judgement turns
out differently from the former as the sentence of the mere sound reason,
because a public judge cannot found upon presumptions as to what either party
may have thought; and thus the one who has not obtained release from all loss
in the thing, by a special accessory contract, must bear the loss. Hence the
difference between the judgement as the court must deliver it and the form in
which each individual is entitled to hold it for himself, by his private
reason, is a matter of importance, and is not to be overlooked in the
consideration of juridical judgements.
39. III. The Revindication of what
has been Lost.(Vindicatio)
It is clear from what has been already said
that a thing of mine which continues to exist remains mine, although I may not
be in continuous occupation of it; and that it does not cease to be mine
without a juridical act of dereliction or alienation. Further, it is evident
that a right in this thing (jus reale) belongs in consequence to me (jus
personale), against every holder of it, and not merely against some particular
person. But the question now arises as to whether this right must be regarded
by every other person as a continuous right of property per se, if I have not
in any way renounced it, although the thing is in the possession of another.
A thing may be lost (res amissa) and thus
come into other hands in an honourable bona fide way as a supposed
"find"; or it may come to me by formal transfer on the part of one
who is in possession of it, and who professes to be its owner, although he is
not so. Taking the latter case, the question arises whether, since I cannot
acquire a thing from one who is not its owner (a non domino), I am excluded by
the fact from all right in the thing itself, and have merely a personal right against
a wrongful possessor? This is manifestly so, if the acquisition is judged
purely according to its inner justifying grounds and viewed according to the
state of nature, and not according to the convenience of a court of justice.
For everything alienable must be capable of
being acquired by anyone. The rightfulness of acquisition, however, rests
entirely upon the form in accordance with which what is in possession of
another, is transferred to me and accepted by me. In other words, rightful
acquisition depends upon the formality of the juridical act of commutation or
interchange between the possessor of the thing and the acquirer of it, without
its being required to ask how the former came by it; because this would itself
be an injury, on the ground that: Quilibet praesumitur bonus. Now suppose it
turned out that the said possessor was not the real owner, I cannot admit that
the real owner is entitled to hold me directly responsible, or so entitled with
regard to any one who might be holding the thing. For I have myself taken
nothing away from him, when, for example, I bought his horse according to the
law (titulo empti venditi) when it was offered for sale in the public market.
The title of acquisition is therefore unimpeachable on my side; and as buyer I
am not bound, nor even have I the right, to investigate the title of the
seller; for this process of investigation would have to go on in an ascending
series ad infinitum. Hence on such grounds I ought to be regarded, in virtue of
a regular and formal purchase, as not merely the putative, but the real owner
of the horse.
But against this position, there
immediately start up the following juridical principles. Any acquisition
derived from one who is not the owner of the thing in question is null and void.
I cannot derive from another anything more than what he himself rightfully has;
and although as regards the form of the acquisition the modus acquirendi- I may
proceed in accordance with all the conditions of right when I deal in a stolen
horse exposed for sale in the market, yet a real title warranting the
acquisition was awanting; for the horse was not really the property of the
seller in question. However I may be a bona fide possessor of a thing under
such conditions, I am still only a putative owner, and the real owner has the
right of vindication against me (rem suam vindicandi).
Now, it may be again asked, what is right
and just in itself regarding the acquisition of external things among men in
their intercourse with one another- viewed in the state of nature according to
the principles of commutative justice? And it must be admitted in this
connection that whoever has a purpose of acquiring anything must regard it as
absolutely necessary to investigate whether the thing which he wishes to acquire
does not already belong to another person. For although he may carefully
observe the formal conditions required for appropriating what may belong to the
property of another, as in buying a horse according to the usual terms in a
market, yet he can, at the most, acquire only a personal right in relation to a
thing (jus ad rem) so long as it is still unknown to him whether another than
the seller may not be the real owner. Hence, if some other person were to come
forward and prove by documentary evidence a prior right of property in the
thing, nothing would remain for the putative new owner but the advantage which
he has drawn as a bona fide possessor of it up to that moment. Now it is
frequently impossible to discover the absolutely first original owner of a
thing in the series of putative owners, who derive their right from one
another. Hence no mere exchange of external things, however well it may agree
with the formal conditions of commutative justice, can ever guarantee an
absolutely certain acquisition.
Here, however, the juridically law-giving
reason comes in again with the principle of distributive justice; and it adopts
as a criterion of the rightfulness of possession, not what is in itself in
reference to the private will of each individual in the state of nature, but
only the consideration of how it would be adjudged by a court of justice in a
civil state, constituted by the united will of all. In this connection,
fulfillment of the formal conditions of acquisition, that in themselves only establish
a personal right, is postulated as sufficient; and they stand as an equivalent
for the material conditions which properly establish the derivation of property
from a prior putative owner, to the extent of making what is in itself only a
personal right, valid before a court, as a real right. Thus the horse which I
bought when exposed for sale in the public market, under conditions regulated
by the municipal law, becomes my property if all the conditions of purchase and
sale have been exactly observed in the transaction; but always under the
reservation that the real owner continues to have the right of a claim against
the seller, on the ground of his prior unalienated possession. My otherwise
personal right is thus transmuted into a real right, according to which I may
take and vindicate the object as mine wherever I may find it, without being
responsible for the way in which the Seller had come into possession of it.
It is therefore only in behoof of the
requirements of juridical decision in a court (in favorem justitae
distributivae) that the right in respect of a thing is regarded, not as
personal, which it is in itself, but as real, because it can thus be most
easily and certainly adjudged; and it is thus accepted and dealt with according
to a pure principle a priori. Upon this principle, various statutory laws come
to be founded which specially aim at laying down the conditions under which
alone a mode of acquisition shall be legitimate, so that the judge may be able
to assign every one his own as easily and certainly as possible. Thus, in the
brocard, "Purchase breaks hire," what by the nature of the subject is
a real right- namely the hire- is taken to hold as a merely personal right;
and, conversely, as in the case referred to above, what is in itself merely a
personal right is held to be valid as a real right. And this is done only when
the question arises as to the principles by which a court of justice in the
civil state is to be guided, in order to proceed with all possible safety in
delivering judgement on the rights of individuals.
40. IV. Acquisition of Security by the
Taking of an Oath. (Cautio Juratoria).
Only one ground can be assigned on which it
could be held that men are bound in the juridical relation to believe and to
confess that there are gods, or that there is a God. It is that they may be
able to swear an oath; and that thus by the fear of an all-seeing Supreme
Power, whose revenge they must solemnly invoke upon themselves in case their
utterance should be false, they may be constrained to be truthful in statement
and faithful in promising. It is not morality but merely blind superstition
that is reckoned upon in this process; for it is evident it implies that no
certainty is to be expected from a mere solemn declaration in matters of right
before a court, although the duty of truthfulness must have always appeared
self-evident to all, in a matter which concerns the holiest that can be among
men- namely, the right of man. Hence recourse has been had to a motive founded
on mere myths and fables as imaginary guarantees. Thus among the Rejangs, a
heathen people in Sumatra, it is the custom- according to the testimony of
Marsden- to swear by the bones of their dead relatives, although they have no
belief in a life after death. In like manner the negroes of Guinea swear by
their fetish, a bird's feather, which they imprecate under the belief that it
will break their neck. And so in other cases. The belief underlying these oaths
is that an invisible power- whether it has understanding or not- by its very
nature possesses magical power that can be put into action by such invocations.
Such a belief- which is commonly called religion, but which ought to be called
superstition- is, however, indispensable for the administration of justice;
because, without referring to it, a court of justice would not have adequate
means to ascertain facts otherwise kept secret, and to determine rights. A law
making an oath obligatory is therefore only given in behoof of the judicial
authority.
But then the question arises as to what the
obligation could be founded upon that would bind any one in a court of justice
to accept the oath of another person as a right and valid proof of the truth of
his statements which are to put an end to all dispute. In other words, what
obliges me juridically to believe that another person when taking an oath has
any religion at all, so that I should subordinate or entrust my right to his
oath? And, on like grounds, conversely, can I be bound at all to take an oath? It
is evident that both these 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 injury or wrong if on another occasion the same treatment is
inflicted upon themselves. But, in fact, all such actions fundamentally involve
the commission of wrong and injustice, in the highest degree; because they take
all validity away from the conception of right, and give up everything, as it
were by law itself, to savage violence, and thus overthrow the rights of men
generally.
4 Second
Part. Public Right.
4.1 The
System Of Those Laws Which Require Public Promulgation. The
Principles Of Right In Civil Society.
43. Definition and Division of Public
Right
Public right embraces the whole of the laws
that require to be universally promulgated in order to produce juridical state
of society. It is therefore a system of those laws that are requisite for a
people as a multitude of men forming a nation, or for a number of nations, in
their relations to each other. Men and nations, on account of their mutual
influence on one another, require a juridical constitution uniting them under
one will, in order that they may participate in what is right. This relation of
the individuals of a nation to each other constitutes the civil union in the
social state; and, viewed as a whole in relation to its constituent members, it
forms the political state (civitas).
1. The state, as constituted by the common interest
of all to live in a juridical union, is called, in view of its form, the
commonwealth or the republic in the wider sense of the term (res publica latius
sic dicta). The principles of right in this sphere thus constitute the first
department of public right as the right of the state (jus civitatis) or
national right. 2. The state, again, viewed in relation to other peoples, is
called a power (potentia), whence arises the idea of potentates. Viewed in
relation to the supposed hereditary unity of the people composing it, the state
constitutes a nation (gens). Under the general conception of public right, in
addition to the right of the individual state, there thus arises another
department of right, constituting the right of nations (jus gentium) or international
right. 3. Further, as the surface of the earth is not unlimited in extent, but
is circumscribed into a unity, national right and international right
necessarily culminate in the idea of a universal right of mankind, which may be
called Cosmopolitical Right (jus cosmopoliticum). And national, international,
and cosmopolitical right are so interconnected, that, if any one of these three
possible forms of the juridical relation fails to embody the essential
principles that ought to regulate external freedom by law, the structure of
legislation reared by the others will also be undermined, and the whole system
would at last fall to pieces.
I. Right of the State and Constitutional Law. (Jus Civitatis)
44. Origin Of the Civil Union and
Public Right
It is not from any experience prior to the
appearance of an external authoritative legislation that we learn of the maxim
of natural violence among men and their evil tendency to engage in war with
each other. Nor is it assumed here that it is merely some particular historical
condition or fact, that makes public legislative constraint necessary; for
however well-disposed or favourable to right men may be considered to be of
themselves, the rational idea of a state of society not yet regulated by right,
must be taken as our starting-point. This idea implies that before a legal
state of society can be publicly established, individual men, nations, and
states, can never be safe against violence from each other; and this is evident
from the consideration that every one of his own will naturally does what seems
good and right in his own eyes, entirely independent of the opinion of others.
Hence, unless the institution of right is to be renounced, the first thing
incumbent on men is to accept the principle that it is necessary to leave the
state of nature, in which every one follows his own inclinations, and to form a
union of all those who cannot avoid coming into reciprocal communication, and
thus subject themselves in common to the external restraint of public
compulsory laws. Men thus enter into a civil union, in which every one has it
determined by law what shall be recognized as his; and this is secured to him
by a competent external power distinct from his own individuality. Such is the
primary obligation, on the part of all men, to enter into the relations of a
civil state of society.
The natural condition of mankind need not,
on this ground, be represented as a state of absolute injustice, as if there
could have been no other relation originally among men but what was merely
determined by force. But this natural condition must be regarded, if it ever
existed, as a state of society that was void of regulation by right (status
justitiae vacuus), so that if a matter of right came to be in dispute (jus
controversum), no competent judge was found to give an authorized legal
decision upon it. It is therefore reasonable that any one should constrain
another by force, to pass from such a nonjuridical state of life and enter
within the jurisdiction of a civil state of society. For, although on the basis
of the ideas of right held by individuals as such, external things may be
acquired by occupancy or contract, yet such acquisition is only provisory so
long as it has not yet obtained the sanction of a public law. Till this
sanction is reached, the condition of possession is not determined by any
public distributive justice, nor is it secured by any power exercising public
right.
If men were not disposed to recognize any
acquisition at all as rightful- even in a provisional way- prior to entering
into the civil state, this state of society would itself be impossible. For the
laws regarding the mine and thine in the state of nature, contain formally the
very same thing as they prescribe in the civil state, when it is viewed merely
according to rational conceptions: only that in the forms of the civil state
the conditions are laid down under which the formal prescriptions of the state
of nature attain realization conformable to distributive justice. Were there,
then, not even provisionally, an external meum and tuum in the state of nature,
neither would there be any juridical duties in relation to them; and,
consequently, there would be no obligation to pass out of that state into
another.
45. The Form of the State and its
Three Powers
A state (civitas) is the union of a number
of men under juridical laws. These laws, as such, are to be regarded as
necessary a priori- that is, as following of themselves from the conceptions of
external right generally- and not as merely established by statute. The form of
the state is thus involved in the idea of the state, viewed as it ought to be
according to pure principles of right; and this ideal form furnishes the normal
criterion of every real union that constitutes a commonwealth.
Every state contains in itself three
powers, the universal united will of the people being thus personified in a
political triad. These are the legislative power, the executive power, and the
judiciary power. 1. The legislative power of the sovereignty in the state is
embodied in the person of the lawgiver; 2. the executive power is embodied in
the person of the ruler who administers the Law; and 3. the judiciary power,
embodied in the person of the judge, is the function of assigning every one
what is his own, according to the law (potestas legislatoria, rectoria, et
judiciaria). These three powers may be compared to the three propositions in a
practical syllogism: the major as the sumption laying down the universal law of
a will, the minor presenting the command applicable to an action according to
the law as the principle of the subsumption, and the conclusion containing the
sentence, or judgement of right, in the particular case under consideration.
46. The Legislative Power and the
Members of the State
The legislative power, viewed in its
rational principle, can only belong to the united will of the people. For, as
all right ought to proceed from this power, it is necessary that its laws
should be unable to do wrong to any one whatever. Now, if any one individual
determines anything in the state in contradistinction to another, it is always
possible that he may perpetrate a wrong on that other; but this is never
possible when all determine and decree what is to be Law to themselves. Volenti
non fit injuria. Hence it is only the united and consenting will of all the
people- in so far as each of them determines the same thing about all, and all
determine the same thing about each- that ought to have the power of enacting law
in the state.
The members of a civil society thus united
for the purpose of legislation, and thereby constituting a state, are called
its citizens; and there are three juridical attributes that inseparably belong
to them by right. These are: 1. constitutional freedom, as the right of every
citizen to have to obey no other law than that to which he has given his
consent or approval; 2. civil equality, as the right of the citizen to
recognise no one as a superior among the people in relation to himself, except
in so far as such a one is as subject to his moral power to impose obligations,
as that other has power to impose obligations upon him; and 3. political
independence, as the light to owe his existence and continuance in society not
to the arbitrary will of another, but to his own rights and powers as a member
of the commonwealth, and, consequently, the possession of a civil personality,
which cannot be represented by any other than himself.
The capability of voting by possession of
the suffrage properly constitutes the political qualification of a citizen as a
member of the state. But this, again, presupposes the independence or
self-sufficiency of the individual citizen among the people, as one who is not
a mere incidental part of the commonwealth, but a member of it acting of his
own will in community with others. The last of the three qualities involved
necessarily constitutes the distinction between active and passive citizenship;
although the latter conception appears to stand in contradiction to the
definition of a citizen as such. The following examples may serve to remove
this difficulty. The apprentice of a merchant or tradesman, a servant who is
not in the employ of the state, a minor (naturaliter vel civiliter), all women,
and, generally, every one who is compelled to maintain himself not according to
his own industry, but as it is arranged by others (the state excepted), are
without civil personality, and their existence is only, as it were,
incidentally included in the state. The woodcutter whom I employ on my estate;
the smith in India who carries his hammer, anvil, and bellows into the houses
where he is engaged to work in iron, as distinguished from the European
carpenter or smith, who can offer the independent products of his labour as
wares for public sale; the resident tutor as distinguished from the
schoolmaster; the ploughman as distinguished from the farmer and such like,
illustrate the distinction in question. In all these cases, the former members
of the contrast are distinguished from the latter by being mere subsidiaries of
the commonwealth and not active independent members of it, because they are of
necessity commanded and protected by others, and consequently possess no
political self-sufficiency in themselves. Such dependence on the will of others
and the consequent inequality are, however, not inconsistent with the freedom
and equality of the individuals as men helping to constitute the people. Much
rather is it the case that it is only under such conditions that a people can
become a state and enter into a civil constitution. But all are not equally
qualified to exercise the right of suffrage under the constitution, and to be
full citizens of the state, and not mere passive subjects under its protection.
For, although they are entitled to demand to be treated by all the other
citizens according to laws of natural freedom and equality, as passive parts of
the state, it does not follow that they ought themselves to have the right to
deal with the state as active members of it, to reorganize it, or to take
action by way of introducing certain laws. All they have a right in their
circumstances to claim may be no more than that whatever be the mode in which
the positive laws are enacted, these laws must not be contrary to the natural
laws that demand the freedom of all the people and the equality that is
conformable thereto; and it must therefore be made possible for them to raise
themselves from this passive condition in the state to the condition of active
citizenship.
47. Dignities in the State and the Original Contract.
All these three powers in the state are
dignities; and, as necessarily arising out of the idea of the state and
essential generally to the foundation of its constitution, they are to be
regarded as political dignities. They imply the relation between a universal
sovereign as head of the state- which according to the laws of freedom can be
none other than the people itself united into a nation- and the mass of the
individuals of the nation as subjects. The former member of the relation is the
ruling power, whose function is to govern (imperans); the latter is the ruled
constituents of the state, whose function is to obey (subditi).
The act by which a people is represented as
constituting itself into a state, is termed the original contract. This is
properly only an outward mode of representing the idea by which the
rightfulness of the process of organizing the constitution may be made
conceivable. According to this representation, all and each of the people give
up their external freedom in order to receive it immediately again as members
of a commonwealth. The commonwealth is the people viewed as united altogether
into a state. And thus it is not to be said that the individual in the state
has sacrificed a part of his inborn external freedom for a particular purpose;
but he has abandoned his wild lawless freedom wholly, in order to find all his
proper freedom again entire and undiminished, but in the form of a regulated
order of dependence, that is, in a civil state regulated by laws of right. This
relation of dependence thus arises out of his own regulative law giving will.
48. Mutual Relations and
Characteristics of the Three Powers
The three powers in the state, as regards
their relations to each other, are, therefore: (1) coordinate with one another
as so many moral persons, and the one is thus the complement of the other in
the way of completing the constitution of the state; (2) they are likewise
subordinate to one another, so that the one cannot at the same time usurp the
function of the other by whose side it moves, each having its own principle and
maintaining its authority in a particular person, but under the condition of
the will of a superior; and further, (3) by the union of both these relations,
they assign distributively to every subject in the state his own rights.
Considered as to their respective dignity,
the three powers may be thus described. The will of the sovereign legislator, in
respect of what constitutes the external mine and thine, is to be regarded as
irreprehensible; the executive function of the supreme ruler is to be regarded
as irresistible; and the judicial sentence of the supreme judge is to be
regarded as irreversible, being beyond appeal.
49. Distinct Functions of the Three Powers.
Autonomy of the State
1. The executive power belongs to the
governor or regent of the state, whether it assumes the form of a moral or
individual person, as the king or prince (rex, princeps). This executive
authority, as the supreme agent of the state, appoints the magistrates, and
prescribes the rules to the people, in accordance with which individuals may
acquire anything or maintain what is their own conformably to the law, each
case being brought under its application. Regarded as a moral person, this
executive authority constitutes the government. The orders issued by the
government to the people and the magistrates, as well as to the higher
ministerial administrators of the state (gubernatio), are rescripts or decrees,
and not laws; for they terminate in the decision of particular cases, and are
given forth as unchangeable. A government acting as an executive, and at the
same time laying down the law as the legislative power, would be a despotic
government, and would have to be contradistinguished from a patriotic
government. A patriotic government, again, is to be distinguished from a
paternal government (regimen paternale) which is the most despotic government
of all, the citizens being dealt with by it as mere children. A patriotic
government, however, is one in which the state, while dealing with the subjects
as if they were members of a family, still treats them likewise as citizens,
and according to laws that recognize their independence, each individual
possessing himself and not being dependent on the absolute will of another
beside him or above him.
2. The legislative authority ought not at
the same time to be the executive or governor; for the governor, as administrator,
should stand under the authority of the law, and is bound by it under the
supreme control of the legislator. The legislative authority may therefore
deprive the governor of his power, depose him, or reform his administration,
but not punish him. This is the proper and only meaning of the common saying in
England, "The King- as the supreme executive power- can do no wrong."
For any such application of punishment would necessarily be an act of that very
executive power to which the supreme right to compel according to law pertains,
and which would itself be thus subjected to coercion; which is
self-contradictory.
3. Further, neither the legislative power
nor the executive power ought to exercise the judicial function, but only
appoint judges as magistrates. It is the people who ought to judge themselves,
through those of the citizens who are elected by free choice as their
representatives for this purpose, and even specially for every process or
cause. For the judicial sentence is a special act of public distributive
justice performed by a judge or court as a constitutional administrator of the
law, to a subject as one of the people. Such an act is not invested inherently
with the power to determine and assign to any one what is his. Every individual
among the people being merely passive in this relation to the supreme power,
either the executive or the legislative authority might do him wrong in their
determinations in cases of dispute regarding the property of individuals. It
would not be the people themselves who thus determined, or who pronounced the
judgements of "guilty" or "not guilty" regarding their
fellow-citizens. For it is to the determination of this issue in a cause that
the court has to apply the law; and it is by means of the executive authority,
that the judge holds power to assign to every one his own. Hence it is only the
people that properly can judge in a cause- although indirectly representatives
elected and deputed by themselves, as in a jury. It would even be beneath the
dignity of the sovereign head of the state to play the judge; for this would be
to put himself into a position in which it would be possible to do wrong, and
thus to subject himself to the demand for an appeal to a still higher power (a
rege male informato ad regem melius informandum).
It is by the co-operation of these three
powers- the legislative, the executive, and the judicial- that the state
realizes its autonomy. This autonomy consists in its organizing, forming, and
maintaining itself in accordance with the laws of freedom. In their union the
welfare of the state is realized. Salus reipublicae suprema lex.* By this is
not to be understood merely the individual well-being and happiness of the
citizens of the state; for- as Rousseau asserts- this end may perhaps be more
agreeably and more desirably attained in the state of nature, or even under a
despotic government. But the welfare of the state, as its own highest good,
signifies that condition in which the greatest harmony is attained between its
constitution and the principles of right- a condition of the state which reason
by a categorical imperative makes it obligatory upon us to strive after.
*["The health of the state is the
highest law."]
Constitutional and Juridical Consequences arising from the Nature of the Civil Union
4.1.1 A. Right of the
Supreme Power; Treason; Dethronement;
Revolution; Reform.
The origin of the supreme power is
practically inscrutable by the people who are placed under its authority. In
other words, the subject need not reason too curiously in regard to its origin
in the practical relation, as if the right of the obedience due to it were to
be doubted (jus controversum). For as the people, in order to be able to
abjudicate with a title of right regarding the supreme power in the state, must
be regarded as already united under one common legislative will, it cannot
judge otherwise than as the present supreme head of the state (summus imperans)
wills. The question has been raised as to whether an actual contract of
subjection (pactum subjectionis civilis) originally preceded the civil
government as a fact; or whether the power arose first, and the law only
followed afterwards, or may have followed in this order. But such questions, as
regards the people already actually living under the civil law, are either
entirely aimless, or even fraught with subtle danger to the state. For, should
the subject, after having dug down to the ultimate origin of the state, rise in
opposition to the present ruling authority, he would expose himself as a
citizen, according to the law and with full right, to be punished, destroyed,
or outlawed. A law which is so holy and inviolable that it is practically a
crime even to cast doubt upon it, or to suspend its operation for a moment, is
represented of itself as necessarily derived from some supreme, unblameable
lawgiver. And this is the meaning of the maxim, "All authority is from
God", which proposition does not express the historical foundation of the
civil constitution, but an ideal principle of the practical reason. It may be
otherwise rendered thus: "It is a duty to obey the law of the existing
legislative power, be its origin what it may."
Hence it follows, that the supreme power in
the state has only rights, and no (compulsory) duties towards the subject.
Further, if the ruler or regent, as the organ of the supreme power, proceeds in
violation of the laws, as in imposing taxes, recruiting soldiers, and so on,
contrary to the law of equality in the distribution of the political burdens,
the subject may oppose complaints and objections (gravamina) to this injustice,
but not active resistance.
There cannot even be an Article contained
in the political constitution that would make it possible for a power in the
state, in case of the transgression of the constitutional laws by the supreme
authority, to resist or even to restrict it in so doing. For, whoever would
restrict the supreme power of the state must have more, or at least equal,
power as compared with the power that is so restricted; and if competent to
command the subjects to resist, such a one would also have to be able to
protect them, and if he is to be considered capable of judging what is right in
every case, he may also publicly order resistance. But such a one, and not the
actual authority, would then be the supreme power; which is contradictory. The
supreme sovereign power, then, in proceeding by a minister who is at the same
time the ruler of the state, consequently becomes despotic; and the expedient
of giving the people to imagine- when they have properly only legislative
influence- that they act by their deputies by way of limiting the sovereign
authority, cannot so mask and disguise the actual despotism of such a
government that it will not appear in the measures and means adopted by the
minister to carry out his function. The people, while represented by their
deputies in parliament, under such conditions, may have in these warrantors of
their freedom and rights, persons who are keenly interested on their own account
and their families, and who look to such a minister for the benefit of his
influence in the army, navy, and public offices. And hence, instead of offering
resistance to the undue pretensions of the government- whose public
declarations ought to carry a prior accord on the part of the people, which,
however, cannot be allowed in peace, they are rather always ready to play into
the hands of the government. Hence the so-called limited political
constitution, as a constitution of the internal rights of the state, is an
unreality; and instead of being consistent with right, it is only a principle
of expediency. And its aim is not so much to throw all possible obstacles in
the way of a powerful violator of popular rights by his arbitrary influence
upon the government, as rather to cloak it over under the illusion of a right
of opposition conceded to the people.
Resistance on the part of the people to the
supreme legislative power of the state is in no case legitimate; for it is only
by submission to the universal legislative will, that a condition of law and
order is possible. Hence there is no right of sedition, and still less of
rebellion, belonging to the people. And least of all, when the supreme power is
embodied in an individual monarch, is there any justification, under the
pretext of his abuse of power, for seizing his person or taking away his life
(monarchomachismus sub specie tyrannicidii). The slightest attempt of this kind
is high treason (proditio eminens); and a traitor of this sort who aims at the
overthrow of his country may be punished, as a political parricide, even with
death. It is the duty of the people to bear any abuse of the supreme power,
even then though it should be considered to be unbearable. And the reason is
that any resistance of the highest legislative authority can never but be
contrary to the law, and must even be regarded as tending to destroy the whole
legal constitution. In order to be entitled to offer such resistance, a public
law would be required to permit it. But the supreme legislation would by such a
law cease to be supreme, and the people as subjects would be made sovereign
over that to which they are subject; which is a contradiction. And the
contradiction becomes more apparent when the question is put: "Who is to be
the judge in a controversy between the people and the sovereign?" For the
people and the sovereign are to be constitutionally or juridically regarded as
two different moral persons; but the question shows that the people would then
have to be the judge in their own cause.
The dethronement of a monarch may be also
conceived as a voluntary abdication of the crown, and a resignation of his
power into the hands of the people; or it might be a deliberate surrender of
these without any assault on the royal person, in order that the monarch may be
relegated into private life. But, however it happen, forcible compulsion of it,
on the part of the people, cannot be justified under the pretext of a right of
necessity (casus necessitatis); and least of all can the slightest right be
shown for punishing the sovereign on the ground of previous maladministration.
For all that has been already done in the quality of a sovereign must be
regarded as done outwardly by right; and, considered as the source of the laws,
the sovereign himself can do no wrong. Of all the abominations in the overthrow
of a state by revolution, even the murder or assassination of the monarch is
not the worst. For that may be done by the people out of fear, lest, if he is
allowed to live, he may again acquire power and inflict punishment upon them;
and so it may be done, not as an act of punitive justice, but merely from
regard to self-preservation. It is the formal execution of a monarch that
horrifies a soul filled with ideas of human right; and this feeling occurs
again and again as of as the mind realizes the scenes that terminated the fate
of Charles I or Louis XVI. Now how is this feeling to be explained? It is not a
mere aesthetic feeling, arising from the working of the imagination, nor from sympathy,
produced by fancying ourselves in the place of the sufferer. On the contrary,
it is a moral feeling arising from the entire subversion of all our notions of
right. Regicide, in short, is regarded as a crime which always remains such and
can never be expiated (crimen immortale, inexpiabile); and it appears to
resemble that sin which the theologians declare can neither be forgiven in this
world nor in the next. The explanation of this phenomenon in the human mind
appears to be furnished by the following reflections upon it; and they even
shed some light upon the principles of political right.
Every transgression of a law only can and
must be explained as arising from a maxim of the transgressor making such
wrong-doing his rule of action; for were it not committed by him as a free
being, it could not be imputed to him. But it is absolutely impossible to
explain how any rational individual forms such a maxim against the clear
prohibition of the law-giving reason; for it is only events which happen according
to the mechanical laws of nature that are capable of explanation. Now a
transgressor or criminal may commit his wrong-doing either according to the
maxim of a rule supposed to be valid objectively and universally, or only as an
exception from the rule by dispensing with its obligation for the occasion. In
the latter case, he only diverges from the law, although intentionally. He may,
at the same time, abhor his own transgression, and without formally renouncing
his obedience to the law only wish to avoid it. In the former case, however, he
rejects the authority of the law itself, the validity of which, however, he
cannot repudiate before his own reason, even while he makes it his rule to act
against it. His maxim is, therefore, not merely defective as being negatively
contrary to the law, but it is even positively illegal, as being diametrically
contrary and in hostile opposition to it. So far as we can see into and
understand the relation, it would appear as if it were impossible for men to
commit wrongs and crimes of a wholly useless form of wickedness, and yet the
idea of such extreme perversity cannot be overlooked in a system of moral
philosophy.
There is thus a feeling of horror at the
thought of the formal execution of a monarch by his people. And the reason it
is that, whereas an act of assassination must be considered as only an
exception from the rule which has been constituted a maxim, such an execution
must be regarded as a complete perversion of the principles that should
regulate the relation between a sovereign and his people. For it makes the
people, who owe their constitutional existence to the legislation that issued
from the sovereign, to be the ruler over him. Hence mere violence is thus
elevated with bold brow, and as it were by principle, above the holiest right;
and, appearing like an abyss to swallow up everything without recall, it seems
like suicide committed by the state upon itself and a crime that is capable of
no atonement. There is therefore reason to assume that the consent that is
accorded to such executions is not really based upon a supposed principle of
right, but only springs from fear of the vengeance that would be taken upon the
people were the same power to revive again in the state. And hence it may be
held that the formalities accompanying them have only been put forward in order
to give these deeds a look of punishment from the accompaniment of a judicial
process, such as could not go along with a mere murder or assassination. But
such a cloaking of the deed entirely fails of its purpose, because this
pretension on the part of the people is even worse than murder itself, as it
implies a principle which would necessarily make the restoration of a state,
when once overthrown, an impossibility.
An alteration of the still defective
constitution of the state may sometimes be quite necessary. But all such
changes ought only to proceed from the sovereign power in the way of reform,
and are not to be brought about by the people in the way of revolution; and
when they take place, they should only effect the executive, and not the
legislative, power. A political constitution which is so modified that the
people by their representatives in parliament can legally resist the executive
power, and its representative minister, is called a limited constitution. Yet
even under such a constitution there is no right of active resistance, as by an
arbitrary combination of the people to coerce the government into a certain
active procedure; for this would be to assume to perform an act of the
executive itself. All that can rightly be allowed, is only a negative
resistance, amounting to an act of refusal on the part of the people to concede
all the demands which the executive may deem it necessary to make in behoof of
the political administration. And if this right were never exercised, it would
be a sure sign that the people were corrupted, their representatives venal, the
supreme head of the government despotic, and his ministers practically
betrayers of the people.
Further, when on the success of a
revolution a new constitution has been founded, the unlawfulness of its
beginning and of its institution cannot release the subjects from the
obligation of adapting themselves, as good citizens, to the new order of
things; and they are not entitled to refuse honourably to obey the authority
that has thus attained the power in the state. A dethroned monarch, who has
survived such a revolution, is not to be called to account on the ground of his
former administration; and still less may he be punished for it, when with
drawing into the private life of a citizen he prefers his own quiet and the
peace of the state to the uncertainty of exile, with the intention of
maintaining his claims for restoration at all hazards, and pushing these either
by secret counter-revolution or by the assistance of other powers. However, if
he prefers to follow the latter course, his rights remain, because the
rebellion that drove him from his position was inherently unjust. But the
question then emerges as to whether other powers have the right to form
themselves into an alliance in behalf of such a dethroned monarch merely in
order not to leave the crime committed by the people unavenged, or to do away
with it as a scandal to all the states; and whether they are therefore
justified and called upon to restore by force to another state a formerly
existing constitution that has been removed by a revolution. The discussion of
this question, however, does not belong to this department of public right, but
to the following section, concerning the right of nations.
4.1.2 B. Land Rights.
Secular and Church Lands, Rights of Taxation
Finance; Police;
Inspection.
Is the sovereign, viewed as embodying the
legislative power, to be regarded as the supreme proprietor of the soil, or
only as the highest ruler of the people by the laws? As the soil is the supreme
condition under which it is alone possible to have external things as one's
own, its possible possession and use constitute the first acquirable basis of
external right. Hence it is that all such rights must be derived from the
sovereign as overlord and paramount superior of the soil, or, as it may be
better put, as the supreme proprietor of the land (dominus territorii). The
people, as forming the mass of the subjects, belong to the sovereign as a
people; not in the sense of his being their proprietor in the way of real
right, but as their supreme commander or chief in the way of personal right.
This supreme proprietorship, however, is only an idea of the civil
constitution, objectified to represent, in accordance with juridical
conceptions, the necessary union of the private property of all the people
under a public universal possessor. The relation is so represented in order
that it may form a basis for the determination of particular rights in
property. It does not proceed, therefore, upon the principle of mere
aggregation, which advances empirically from the parts to the whole, but from
the necessary formal principle of a division of the soil according to
conceptions of right. In accordance with this principle, the supreme universal
proprietor cannot have any private property in any part of the soil; for
otherwise he would make himself a private person. Private property in the soil
belongs only to the people, taken distributively and not collectively; from
which condition, however, a nomadic people must be excepted as having no
private property at all in the soil. The supreme proprietor accordingly ought
not to hold private estates, either for private use or for the support of the
court. For, as it would depend upon his own pleasure how far these should
extend, the state would be in danger of seeing all property in the land taken
into the hands of the government, and all the subjects treated as bondsmen of
the soil (glebae adscripti). As possessors only of what was the private
property of another, they might thus be deprived of all freedom and regarded as
serfs or slaves. Of the supreme proprietor of the land, it may be said that he
possesses nothing as his own, except himself; for if he possessed things in the
state alongside of others, dispute and litigation would be possible with these
others regarding those things, and there would be no independent judge to
settle the cause. But it may also be said that he possesses everything; for he
has the supreme right of sovereignty over the whole people, to whom all
external things severally (divisim) belong; and as such he assigns
distributively to every one what is to be his.
Hence there cannot be any corporation in
the state, nor any class or order, that as proprietors can transmit the land
for a sole exclusive use to the following generations for all time (ad
infinitum), according to certain fixed statutes. The state may annul and
abrogate all such statutes at any time, only under the condition of
indemnifying survivors for their interests. The order of knights, constituting
the nobility regarded as a mere rank or class of specially titled individuals,
as well as the order of the clergy, called the church, are both subject to this
relation. They can never be entitled by any hereditary privileges with which
they may be favoured, to acquire an absolute property in the soil transmissible
to their successors. They can only acquire the use of such property for the
time being. If public opinion has ceased, on account of other arrangements, to
impel the state to protect itself from negligence in the national defence by
appeal to the military honour of the knightly order, the estates granted on
that condition may be recalled. And, in like manner, the church lands or
spiritualities may be reclaimed by the state without scruple, if public opinion
has ceased to impel the members of the state to maintain masses for the souls
of the dead, prayers for the living, and a multitude of clergy, as means to
protect themselves from eternal fire. But in both cases, the condition of
indemnifying existing interests must be observed. Those who in this connection
fall under the movement of reform are not entitled to complain that their
property is taken from them; for the foundation of their previous possession
lay only in the opinion of the people, and it can be valid only so long as this
opinion lasts. As soon as this public opinion in favour of such institutions
dies out, or is even extinguished in the judgement of those who have the
greatest claim by their acknowledged merit to lead and represent it, the
putative proprietorship in question must cease, as if by a public appeal made
regarding it to the state (a rege male informato ad regem melius informandum).
On this primarily acquired supreme
proprietorship in the land rests the right of the sovereign, as universal
proprietor of the country, to assess the private proprietors of the soil, and
to demand taxes, excise, and dues, or the performance of service to the state
such as may be required in war. But this is to be done so that it is actually
the people that assess themselves, this being the only mode of proceeding
according to laws of right. This may be effected through the medium of the body
of deputies who represent the people. It is also permissible, in circumstances
in which the state is in imminent danger, to proceed by a forced loan, as a
right vested in the sovereign, although this may be a divergence from the existing
law.
Upon this principle is also founded the
right of administering the national economy, including the finance and the
police. The police has specially to care for the public safety, convenience,
and decency. As regards the last of these- the feeling or negative taste for
public propriety- it is important that it be not deadened by such influences as
begging, disorderly noises, offensive smells, public prostitution (Venus
vulgivaga), or other offences against the moral sense, as it greatly facilitates
the government in the task of regulating the life of the people by law.
For the preservation of the state there
further belongs to it a right of inspection (jus inspectionis), which entitles
the public authority to see that no secret society, political or religious,
exists among the people that can exert a prejudicial influence upon the public
weal. Accordingly, when it is required by the police, no such secret society
may refuse to lay open its constitution. But the visitation and search of private
houses by the police can only be justified in a case of necessity; and in every
particular instance, it must be authorized by a higher authority.
4.1.3 C. Relief of the
Poor. Foundling Hospitals. The Church.
The sovereign, as undertaker of the duty of
the people, has the right to tax them for purposes essentially connected with
their own preservation. Such are, in particular, the relief of the poor,
foundling asylums, and ecclesiastical establishments, otherwise designated
charitable or pious foundations.
1. The people have in fact united
themselves by their common will into a society, which has to be perpetually
maintained; and for this purpose they have subjected themselves to the internal
power of the state, in order to preserve the members of this society even when
they are not able to support themselves. By the fundamental principle of the
state, the government is justified and entitled to compel those who are able,
to furnish the means necessary to preserve those who are not themselves capable
of providing for the most necessary wants of nature. For the existence of
persons with property in the state implies their submission under it for
protection and the provision by the state of what is necessary for their
existence; and accordingly the state founds a right upon an obligation on their
part to contribute of their means for the preservation of their fellow
citizens. This may be carried out by taxing the property or the commercial
industry of the citizens, or by establishing funds and drawing interest from
them, not for the wants of the state as such, which is rich, but for those of
the people. And this is not to be done merely by voluntary contributions, but
by compulsory exactions as state-burdens, for we are here considering only the
right of the state in relation to the people. Among the voluntary modes of
raising such contributions, lotteries ought not to be allowed, because they
increase the number of those who are poor, and involve danger to the public
property. It may be asked whether the relief of the poor ought to be
administered out of current contributions, so that every age should maintain
its own poor; or whether this were better done by means of permanent funds and
charitable institutions, such as widows' homes, hospitals, etc.? And if the
former method is the better, it may also be considered whether the means
necessary are to be raised by a legal assessment rather than by begging, which
is generally nigh akin to robbing. The former method must in reality be
regarded as the only one that is conformable to the right of the state, which
cannot withdraw its connection from any one who has to live. For a legal
current provision does not make the profession of poverty a means of gain for
the indolent, as is to be feared is the case with pious foundations when they
grow with the number of the poor; nor can it be charged with being an unjust or
unrighteous burden imposed by the government on the people.
2. The state has also a right to impose
upon the people the duty of preserving children exposed from want or shame, and
who would otherwise perish; for it cannot knowingly allow this increase of its
power to be destroyed, however unwelcome in some respects it may be. But it is
a difficult question to determine how this may most justly be carried out. It
might be considered whether it would not be right to exact contributions for
this purpose from the unmarried persons of both sexes who are possessed of
means, as being in part responsible for the evil; and further, whether the end
in view would be best carried out by foundling hospitals, or in what other way
consistent with right. But this is a problem of which no solution has yet been
offered that does not in some measure offend against right or morality.
3. The church is here regarded as an
ecclesiastical establishment merely, and as such it must be carefully
distinguished from religion, which as an internal mode of feeling lies wholly
beyond the sphere of the action of the civil power. Viewed as an institution
for public worship founded for the people- to whose opinion or conviction it
owes its origin- the church establishment responds to a real want in the state.
This is the need felt by the people to regard themselves as also subjects of a
Supreme Invisible Power to which they must pay homage, and which may of be
brought into a very undesirable collision with the civil power. The state has
therefore a right in this relation; but it is not to be regarded as the right
of constitutional legislation in the church, so as to organize it as may seem
most advantageous for itself, or to prescribe and command its faith and ritual
forms of worship (ritus); for all this must be left entirely to the teachers
and rulers which the church has chosen for itself. The function of the state in
this connection, only includes the negative right of regulating the influence
of these public teachers upon the visible political commonwealth, that it may
not be prejudicial to the public peace and tranquility. Consequently the state
has to take measures, on occasion of any internal conflict in the church, or on
occasion of any collision of the several churches with each other, that civil
concord is not endangered; and this right falls within the province of the
police. It is beneath the dignity of the supreme power to interpose in
determining what particular faith the church shall profess, or to decree that a
certain faith shall be unalterably held, and that the church may not reform
itself. For in doing so, the supreme power would be mixing itself up in a
scholastic wrangle, on a footing of equality with its subjects; the monarch
would be making himself a priest; and the churchmen might even reproach the
supreme power with understanding nothing about matters of faith. Especially
would this hold in respect of any prohibition of internal reform in the church;
for what the people as a whole cannot determine upon for themselves cannot be
determined for the people by the legislator. But no people can ever rationally
determine that they will never advance farther in their insight into matters of
faith, or resolve that they will never reform the institutions of the church;
because this would be opposed to the humanity in their own persons and to their
highest rights. And therefore the supreme power cannot of itself resolve and
decree in these matters for the people. As regards the cost of maintaining the
ecclesiastical establishment, for similar reasons this must be derived not from
the public funds of the state, but from the section of the people who profess
the particular faith of the church; and thus only ought it to fall as a burden
on the community.
4.1.4 D. The Right of Assigning Offices
and Dignities in the State.
The right of the supreme authority in the
state also includes:
1. The distribution of offices, as public
and paid employments;
2. The conferring of dignities, as unpaid
distinctions of rank, founded merely on honour, but establishing a gradation of
higher and lower orders in the political scale; the latter, although free in
themselves, being under obligation determined by the public law to obey the
former so far as they are also entitled to command;
3. Besides these relatively beneficent
rights, the supreme power in the state is also invested with the right of administering
punishment.
As regards civil offices, the question
arises as to whether the sovereign has the right, after bestowing an office on
an individual, to take it again away at his mere pleasure, without any crime
having been committed by the holder of the office. I say, "No." For
what the united will of the people would never resolve, regarding their civil
officers, cannot (constitutionally) be determined by the sovereign regarding
them. The people have to bear the cost incurred by the appointment of an
official, and undoubtedly it must be their will that any one in office should
be completely competent for its duties. But such competency can only be
acquired by a long preparation and training, and this process would necessarily
occupy the time that would be required for acquiring the means of support by a
different occupation. Arbitrary and frequent changes would therefore, as a
rule, have the effect of filling offices with functionaries who have not
acquired the skill required for their duties, and whose judgements had not
attained maturity by practice. All this is contrary to the purpose of the
state. And besides it is requisite in the interest of the people that it should
be possible for every individual to rise from a lower office to the higher
offices, as these latter would otherwise fall into incompetent hands, and that
competent officials generally should have some guarantee of life-long
provision.
Civil dignities include not only such as
are connected with a public office, but also those which make the possessors of
them, without any accompanying services to the state, members of a higher class
or rank. The latter constitute the nobility, whose members are distinguished
from the common citizens who form the mass of the people. The rank of the
nobility is inherited by male descendants; and these again communicate it to
wives who are not nobly born. Female descendants of noble families, however, do
not communicate their rank to husbands who are not of noble birth, but they
descend themselves into the common civil status of the people. This being so,
the question then emerges as to whether the sovereign has the right to found a
hereditary rank and class, intermediate between himself and the other citizens?
The import of this question does not turn on whether it is conformable to the
prudence of the sovereign, from regard to his own and the people's interests,
to have such an institution; but whether it is in accordance with the right of
the people that they should have a class of persons above them, who, while
being subjects like themselves, are yet born as their commanders, or at least
as privileged superiors? The answer to this question, as in previous instances,
is to be derived from the principle that "what the people, as constituting
the whole mass of the subjects, could not determine regarding themselves and
their associated citizens, cannot be constitutionally determined by the
sovereign regarding the people." Now a hereditary nobility is a rank which
takes precedence of merit and is hoped for without any good reason- a thing of
the imagination without genuine reality. For if an ancestor had merit, he could
not transmit it to his posterity, but they must always acquire it for
themselves. Nature has in fact not so arranged that the talent and will which
give rise to merit in the state, are hereditary. And because it cannot be
supposed of any individual that he will throw away his freedom, it is
impossible that the common will of all the people should agree to such a
groundless prerogative, and hence the sovereign cannot make it valid. It may
happen, however, that such an anomaly as that of subjects who would be more
than citizens, in the manner of born officials, or hereditary professors, has
slipped into the mechanism of government in olden times, as in the case of the
feudal system, which was almost entirely organized with reference to war. Under
such circumstances, the state cannot deal otherwise with this error of a
wrongly instituted rank in its midst, than by the remedy of a gradual extinction
through hereditary positions being left unfilled as they fall vacant. The state
has therefore the right provisorily to let a dignity in title continue, until
the public opinion matures on the subject. And this will thus pass from the
threefold division into sovereign, nobles, and people, to the twofold and only
natural division into sovereign and people.
No individual in the state can indeed be
entirely without dignity; for he has at least that of being a citizen, except
when he has lost his civil status by a crime. As a criminal he is still
maintained in life, but he is made the mere instrument of the will of another,
whether it be the state or a particular citizen. In the latter position, in
which he could only be placed by a juridical judgement, he would practically
become a slave, and would belong as property (dominium) to another, who would
be not merely his master (herus) but his owner (dominus). Such an owner would
be entitled to exchange or alienate him as a thing, to use him at will except
for shameful purposes, and to dispose of his powers, but not of his life and
members. No one can bind himself to such a condition of dependence, as he would
thereby cease to be a person, and it is only as a person that he can make a
contract. It may, however, appear that one man may bind himself to another by a
contract of hire, to discharge a certain service that is permissible in its
kind, but is left entirely undetermined as regards its measure or amount; and
that as receiving wages or board or protection in return, he thus becomes only
a servant subject to the will of a master (subditus) and not a slave (servus).
But this is an illusion. For if masters are entitled to use the powers of such
subjects at will, they may exhaust these powers- as has been done in the case
of Negroes in the Sugar Island- and they may thus reduce their servants to
despair and death. But this would imply that they had actually given themselves
away to their masters as property; which, in the case of persons, is
impossible. A person can, therefore, only contract to perform work that is
defined both in quality and quantity, either as a day-labourer or as a
domiciled subject. In the latter case he may enter into a contract of lease for
the use of the land of a superior, giving a definite rent or annual return for
its utilization by himself, or he may contract for his service as a labourer
upon the land. But he does not thereby make himself a slave, or a bondsman, or
a serf attached to the soil (glebae adscriptus), as he would thus divest
himself of his personality; he can only enter into a temporary or at most a
heritable lease. And even if by committing a crime he has personally become
subjected to another, this subject-condition does not become hereditary; for he
has only brought it upon himself by his own wrongdoing. Neither can one who has
been begotten by a slave be claimed as property on the ground of the cost of
his rearing, because such rearing is an absolute duty naturally incumbent upon
parents; and in case the parents be slaves, it devolves upon their masters or
owners, who, in undertaking the possession of such subjects, have also made
themselves responsible for the performance of their duties.
4.1.6 E. The Right of
Punishing and of Pardoning.
I. The Right of Punishing.
The right of administering punishment is the
right of the sovereign as the supreme power to inflict pain upon a subject on
account of a crime committed by him. The head of the state cannot therefore be
punished; but his supremacy may be withdrawn from him. Any transgression of the
public law which makes him who commits it incapable of being a citizen,
constitutes a crime, either simply as a private crime (crimen), or also as a
public crime (crimen publicum). Private crimes are dealt with by a civil court;
public crimes by a criminal court. Embezzlement or speculation of money or
goods entrusted in trade, fraud in purchase or sale, if done before the eyes of
the party who suffers, are private crimes. On the other hand, coining false
money or forging bills of exchange, theft, robbery, etc., are public crimes,
because the commonwealth, and not merely some particular individual, is
endangered thereby. Such crimes may be divided into those of a base character
(indolis abjectae) and those of a violent character (indolis violentiae).
Judicial or juridical punishment (poena
forensis) is to be distinguished from natural punishment (poena naturalis), in
which crime as vice punishes itself, and does not as such come within the
cognizance of the legislator. juridical punishment can never be administered
merely as a means for promoting another good either with regard to the criminal
himself or to civil society, but must in all cases be imposed only because the
individual on whom it is inflicted has committed a crime. For one man ought
never to be dealt with merely as a means subservient to the purpose of another,
nor be mixed up with the subjects of real right. Against such treatment his
inborn personality has a right to protect him, even although he may be
condemned to lose his civil personality. He must first be found guilty and
punishable, before there can be any thought of drawing from his punishment any
benefit for himself or his fellow-citizens. The penal law is a categorical
imperative; and woe to him who creeps through the serpent-windings of
utilitarianism to discover some advantage that may discharge him from the
justice of punishment, or even from the due measure of it, according to the
Pharisaic maxim: "It is better that one man should die than that the whole
people should perish." For if justice and righteousness perish, human life
would no longer have any value in the world. What, then, is to be said of such
a proposal as to keep a criminal alive who has been condemned to death, on his
being given to understand that, if he agreed to certain dangerous experiments
being performed upon him, he would be allowed to survive if he came happily
through them? It is argued that physicians might thus obtain new information
that would be of value to the commonweal. But a court of justice would
repudiate with scorn any proposal of this kind if made to it by the medical
faculty; for justice would cease to be justice, if it were bartered away for
any consideration whatever.
But what is the mode and measure of
punishment which public justice takes as its principle and standard? It is just
the principle of equality, by which the pointer of the scale of justice is made
to incline no more to the one side than the other. It may be rendered by saying
that the undeserved evil which any one commits on another is to be regarded as
perpetrated on himself. Hence it may be said: "If you slander another, you
slander yourself; if you steal from another, you steal from yourself; if you
strike another, you strike yourself; if you kill another, you kill
yourself." This is the right of retaliation (jus talionis); and, properly
understood, it is the only principle which in regulating a public court, as
distinguished from mere private judgement, can definitely assign both the
quality and the quantity of a just penalty. All other standards are wavering
and uncertain; and on account of other considerations involved in them, they
contain no principle conformable to the sentence of pure and strict justice. It
may appear, however, that difference of social status would not admit the
application of the principle of retaliation, which is that of "like with
like." But although the application may not in all cases be possible
according to the letter, yet as regards the effect it may always be attained in
practice, by due regard being given to the disposition and sentiment of the
parties in the higher social sphere. Thus a pecuniary penalty on account of a
verbal injury may have no direct proportion to the injustice of slander; for
one who is wealthy may be able to indulge himself in this offence for his own
gratification. Yet the attack committed on the honour of the party aggrieved
may have its equivalent in the pain inflicted upon the pride of the aggressor,
especially if he is condemned by the judgement of the court, not only to
retract and apologize, but to submit to some meaner ordeal, as kissing the hand
of the injured person. In like manner, if a man of the highest rank has
violently assaulted an innocent citizen of the lower orders, he may be
condemned not only to apologize but to undergo a solitary and painful
imprisonment, whereby, in addition to the discomfort endured, the vanity of the
offender would be painfully affected, and the very shame of his position would
constitute an adequate retaliation after the principle of "like with
like." But how then would we render the statement: "If you steal from
another, you steal from yourself?" In this way, that whoever steals
anything makes the property of all insecure; he therefore robs himself of all
security in property, according to the right of retaliation. Such a one has
nothing, and can acquire nothing, but he has the will to live; and this is only
possible by others supporting him. But as the state should not do this gratuitously,
he must for this purpose yield his powers to the state to be used in penal
labour; and thus he falls for a time, or it may be for life, into a condition
of slavery. But whoever has committed murder, must die. There is, in this case,
no juridical substitute or surrogate, that can be given or taken for the
satisfaction of justice. There is no likeness or proportion between life,
however painful, and death; and therefore there is no equality between the
crime of murder and the retaliation of it but what is judicially accomplished
by the execution of the criminal. His death, however, must be kept free from
all maltreatment that would make the humanity suffering in his person loathsome
or abominable. Even if a civil society resolved to dissolve itself with the
consent of all its members- as might be supposed in the case of a people
inhabiting an island resolving to separate and scatter themselves throughout
the whole world- the last murderer lying in the prison ought to be executed
before the resolution was carried out. This ought to be done in order that
every one may realize the desert of his deeds, and that blood-guiltiness may
not remain upon the people; for otherwise they might all be regarded as
participators in the murder as a public violation of justice.
The equalization of punishment with crime
is therefore only possible by the cognition of the judge extending even to the
penalty of death, according to the right of retaliation. This is manifest from
the fact that it is only thus that a sentence can be pronounced over all
criminals proportionate to their internal wickedness; as may be seen by
considering the case when the punishment of death has to be inflicted, not on
account of a murder, but on account of a political crime that can only be punished
capitally. A hypothetical case, founded on history, will illustrate this. In
the last Scottish rebellion there were various participators in it- such as
Balmerino and others- who believed that in taking part in the rebellion they
were only discharging their duty to the house of Stuart; but there were also
others who were animated only by private motives and interests. Now, suppose
that the judgement of the supreme court regarding them had been this: that
every one should have liberty to choose between the punishment of death or
penal servitude for life. In view of such an alternative, I say that the man of
honour would choose death, and the knave would choose servitude. This would be
the effect of their human nature as it is; for the honourable man values his
honour more highly than even life itself, whereas a knave regards a life,
although covered with shame, as better in his eyes than not to be. The former
is, without gainsaying, less guilty than the other; and they can only be
proportionately punished by death being inflicted equally upon them both; yet
to the one it is a mild punishment when his nobler temperament is taken into
account, whereas it is a hard punishment to the other in view of his baser
temperament. But, on the other hand, were they all equally condemned to penal
servitude for life, the honourable man would be too severely punished, while
the other, on account of his baseness of nature, would be too mildly punished.
In the judgement to be pronounced over a number of criminals united in such a
conspiracy, the best equalizer of punishment and crime in the form of public
justice is death. And besides all this, it has never been heard of that a
criminal condemned to death on account of a murder has complained that the
sentence inflicted on him more than was right and just; and any one would treat
him with scorn if he expressed himself to this effect against it. Otherwise it
would be necessary to admit that, although wrong and injustice are not done to
the criminal by the law, yet the legislative power is not entitled to
administer this mode of punishment; and if it did so, it would be in
contradiction with itself.
However many they may be who have committed
a murder, or have even commanded it, or acted as art and part in it, they ought
all to suffer death; for so justice wills it, in accordance with the idea of
the juridical power, as founded on the universal laws of reason. But the number
of the accomplices (correi) in such a deed might happen to be so great that the
state, in resolving to be without such criminals, would be in danger of soon
also being deprived of subjects. But it will not thus dissolve itself, neither
must it return to the much worse condition of nature, in which there would be
no external justice. Nor, above all, should it deaden the sensibilities of the
people by the spectacle of justice being exhibited in the mere carnage of a
slaughtering bench. In such circumstances the sovereign must always be allowed
to have it in his power to take the part of the judge upon himself as a case of
necessity- and to deliver a judgement which, instead of the penalty of death,
shall assign some other punishment to the criminals and thereby preserve a
multitude of the people. The penalty of deportation is relevant in this
connection. Such a form of judgement cannot be carried out according to a
public law, but only by an authoritative act of the royal prerogative, and it
may only be applied as an act of grace in individual cases.
Against these doctrines, the Marquis
Beccaria has given forth a different view. Moved by the compassionate
sentimentality of a humane feeling, he has asserted that all capital punishment
is wrong in itself and unjust. He has put forward this view on the ground that
the penalty of death could not be contained in the original civil contract;
for, in that case, every one of the people would have had to consent to lose
his life if be murdered any of his fellow citizens. But, it is argued, such a
consent is impossible, because no one can thus dispose of his own life. All
this is mere sophistry and perversion of right. No one undergoes punishment
because he has willed to be punished, but because he has willed a punishable
action; for it is in fact no punishment when any one experiences what he wills,
and it is impossible for any one to will to be punished. To say, "I will
to be punished, if I murder any one," can mean nothing more than, "I
submit myself along with all the other citizens to the laws"; and if there
are any criminals among the people, these laws will include penal laws. The
individual who, as a co-legislator, enacts penal law cannot possibly be the
same person who, as a subject, is punished according to the law; for, qua
criminal, he cannot possibly be regarded as having a voice in the legislation,
the legislator being rationally viewed as just and holy. If any one, then,
enact a penal law against himself as a criminal, it must be the pure
juridically law-giving reason (homo noumenon), which subjects him as one
capable of crime, and consequently as another person (homo phenomenon), along
with all the others in the civil union, to this penal law. In other words, it
is not the people taken distributively, but the tribunal of public justice, as
distinct from the criminal, that prescribes capital punishment; and it is not
to be viewed as if the social contract contained the promise of all the
individuals to allow themselves to be punished, thus disposing of themselves
and their lives. For if the right to punish must be grounded upon a promise of
the wrongdoer, whereby he is to be regarded as being willing to be punished, it
ought also to be left to him to find himself deserving of the punishment; and
the criminal would thus be his own judge. The chief error (proton pseudos) of
this sophistry consists in regarding the judgement of the criminal himself,
necessarily determined by his reason, that he is under obligation to undergo
the loss of his life, as a judgement that must be grounded on a resolution of
his will to take it away himself; and thus the execution of the right in
question is represented as united in one and the same person with the
adjudication of the right.
There are, however, two crimes worthy of
death, in respect of which it still remains doubtful whether the legislature
have the right to deal with them capitally. It is the sentiment of honour that
induces their perpetration. The one originates in a regard for womanly honour,
the other in a regard for military honour; and in both cases there is a genuine
feeling of honour incumbent on the individuals as a duty. The former is the
crime of maternal infanticide (infanticidium maternale); the latter is the
crime of killing a fellow-soldier in a duel (commilitonicidium). Now
legislation cannot take away the shame of an illegitimate birth, nor wipe off
the stain attaching from a suspicion of cowardice, to an officer who does not
resist an act that would bring him into contempt, by an effort of his own that
is superior to the fear of death. Hence it appears that, in such circumstances,
the individuals concerned are remitted to the state of nature; and their acts
in both cases must be called homicide, and not murder, which involves evil
intent (homicidium dolosum). In all instances the acts are undoubtedly
punishable; but they cannot be punished by the supreme power with death. An
illegitimate child comes into the world outside of the law which properly
regulates marriage, and it is thus born beyond the pale or constitutional
protection of the law. Such a child is introduced, as it were, like prohibited
goods, into the commonwealth, and as it has no legal right to existence in this
way, its destruction might also be ignored; nor can the shame of the mother,
when her unmarried confinement is known, be removed by any legal ordinance. A
subordinate officer, again, on whom an insult is inflicted, sees himself
compelled by the public opinion of his associates to obtain satisfaction; and,
as in the state of nature, the punishment of the offender can only be effected
by a duel, in which his own life is exposed to danger, and not by means of the
law in a court of justice. The duel is therefore adopted as the means of
demonstrating his courage as that characteristic upon which the honour of his
profession essentially rests; and this is done even if it should issue in the killing
of his adversary. But as such a result takes place publicly and under the
consent of both parties, although it may be done unwillingly, it cannot
properly be called murder (homicidium dolosum). What then is the right in both
cases as relating to criminal justice? Penal justice is here in fact brought
into great straits, having apparently either to declare the notion of honour,
which is certainly no mere fancy here, to 'be nothing in the eye of the law, or
to exempt the crime from its due punishment; and thus it would become either
remiss or cruel. The knot thus tied is to be resolved in the following way. The
categorical imperative of penal justice, that the killing of any person
contrary to the law must be punished with death, remains in force; but the
legislation itself and the civil constitution generally, so long as they are
still barbarous and incomplete, are at fault. And this is the reason why the
subjective motive-principles of honour among the people do not coincide with
the standards which are objectively conformable to another purpose; so that the
public justice issuing from the state becomes injustice relatively to that
which is upheld among the people themselves.
The right of pardoning (jus aggratiandi),
viewed in relation to the criminal, is the right of mitigating or entirely
remitting his punishment. On the side of the sovereign this is the most
delicate of all rights, as it may be exercised so as to set forth the splendour
of his dignity, and yet so as to do a great wrong by it. It ought not to be
exercised in application to the crimes of the subjects against each other; for
exemption from punishment (impunitas criminis) would be the greatest wrong that
could be done to them. It is only an occasion of some form of treason (crimen
laesae majestatis), as a lesion against himself, that the sovereign should make
use of this right. And it should not be exercised even in this connection, if
the safety of the people would be endangered by remitting such punishment. This
right is the only one which properly deserves the name of a "right of
majesty."
50. Juridical Relations of the
Citizen to his Country and to Other Countries. Emigration; Immigration;
Banishment
Exile.
The land or territory whose inhabitants- in
virtue of its political constitution and without the necessary intervention of
a special juridical act- are, by birth, fellow-citizens of one and the same
commonwealth, is called their country or fatherland. A foreign country is one
in which they would not possess this condition, but would be living abroad. If
a country abroad form part of the territory under the same government as at
home, it constitutes a province, according to the Roman usage of the term. It
does not constitute an incorporated portion of the empire (imperii) so as to be
the abode of equal fellow-citizens, but is only a possession of the government,
like a lower house; and it must therefore honour the domain of the ruling state
as the "mother country" (regio domina).
1. A subject, even regarded as a citizen,
has the right of emigration; for the state cannot retain him as if he were its
property. But he may only carry away with him his moveables as distinguished
from his fixed possessions. However, he is entitled to sell his immovable
property, and take the value of it in money with him.
2. The supreme power, as master of the
country, has the right to favour immigration and the settlement of strangers
and colonists. This will hold even although the natives of the country may be unfavourably
disposed to it, if their private property in the soil is not diminished or
interfered with.
3. In the case of a subject who has
committed a crime that renders all society of his fellow-citizens with him
prejudicial to the state, the supreme power has also the right of inflicting
banishment to a country abroad. By such deportation, he does not acquire any
share in the rights of citizens of the territory to which he is banished.
4. The supreme power has also the right of
imposing exile generally (jus exilii), by which a citizen is sent abroad into
the wide world as the "out-land." And because the supreme authority
thus withdraws all legal protection from the citizen, this amounts to making
him an "outlaw" within the territory of his own country.
51. The Three Forms of the State:
Autocracy
Aristocracy; Democracy.
The three powers in the state, involved in
the conception of a public government generally (res publica latius dicta), are
only so many relations of the united will of the people which emanates from the
a priori reason; and viewed as such it is the objective practical realization
of the pure idea of a supreme head of the state. This supreme head is the
sovereign; but conceived only as a representation of the whole people, the idea
still requires physical embodiment in a person, who may exhibit the supreme
power of the state and bring the idea actively to bear upon the popular will.
The relation of the supreme power to the people is conceivable in three
different forms: either one in the state rules over all; or some, united in
relation of equality with each other, rule over all the others; or all together
rule over each and all individually, including themselves. The form of the
state is therefore either autocratic, or aristocratic, or democratic. The
expression monarchic is not so suitable as autocratic for the conception here
intended; for a monarch is one who has the highest power, an autocrat is one
who has all power, so that this latter is the sovereign, whereas the former
merely represents the sovereignty.
It is evident that an autocracy is the
simplest form of government in the state, being constituted by the relation of
one, as king, to the people, so that there is one only who is the lawgiver. An
aristocracy, as a form of government, is, however, compounded of the union of
two relations: that of the nobles in relation to one another as the lawgivers,
thereby constituting the sovereignty, and that of this sovereign power to the
people. A democracy, again, is the most complex of all the forms of the state,
for it has to begin by uniting the will of all so as to form a people; and then
it has to appoint a sovereign over this common union, which sovereign is no
other than the united will itself. The consideration of the ways in which these
forms are adulterated by the intrusion of violent and illegitimate usurpers of
power, as in oligarchy and ochlocracy, as well as the discussion of the so
called mixed constitutions, may be passed over here as not essential, and as
leading into too much detail.
As regards the administration of right in
the state, it may be said that the simplest mode is also the best; but as
regards its bearing on right itself, it is also the most dangerous for the
people, in view of the despotism to which simplicity of administration so
naturally gives rise. It is undoubtedly a rational maxim to aim at
simplification in the machinery which is to unite the people under compulsory
laws, and this would be secured were all the people to be passive and to obey
only one person over them; but the method would not give subjects who were also
citizens of the state. It is sometimes said that the people should be satisfied
with the reflection that monarchy, regarded as an autocracy, is the best
political constitution, if the monarch is good, that is, if be has the
judgement as well as the will to do right. But this is a mere evasion and
belongs to the common class of wise tautological phrases. It only amounts to saying
that "the best constitution is that by which the supreme administrator of
the state is made the best ruler"; that is, that the best constitution is
the best!
52. Historical Origin and Changes
A Pure Republic.
Representative Government.
It is vain to inquire into the historical
origin of the political mechanism; for it is no longer possible to discover
historically the point of time at which civil society took its beginning.
Savages do not draw up a documentary record of their having submitted
themselves to law; and it may be inferred from the nature of uncivilized men
that they must have set out from a state of violence. To prosecute such an
inquiry in the intention of finding a pretext for altering the existing
constitution by violence is no less than penal. For such a mode of alteration
would amount to revolution, that could only be carried out by an insurrection
of the people, and not by constitutional modes of legislation. But insurrection
against an already existing constitution, is an overthrow of all civil and
juridical relations, and of right generally; and hence it is not a mere
alteration of the civil constitution, but a dissolution of it. It would thus
form a mode of transition to a better constitution by palingenesis and not by
mere metamorphosis; and it would require a new social contract, upon which the
former original contract, as then annulled, would have no influence.
It must, however, be possible for the
sovereign to change the existing constitution, if it is not actually consistent
with the idea of the original contract. In doing so it is essential to give
existence to that form of government which will properly constitute the people
into a state. Such a change cannot be made by the state deliberately altering
its constitution from one of the three forms to one of the other two. For
example, political changes should not be carried out by the aristocrats
combining to subject themselves to an autocracy, or resolving to fuse all into
a democracy, or conversely; as if it depended on the arbitrary choice and
liking of the sovereign what constitution he may impose on the people. For,
even if as sovereign he resolved to alter the constitution into a democracy, he
might be doing wrong to the people, because they might hold such a constitution
in abhorrence, and regard either of the other two as more suitable to them in
the circumstances.
The forms of the state are only the letter
(littera) of the original constitution in the civil union; and they may
therefore remain so long as they are considered, from ancient and long habit
(and therefore only subjectively), to be necessary to the machinery of the
political constitution. But the spirit of that original contract (anima pacti
originarii) contains and imposes the obligation on the constituting power to
make the mode of the government conformable to its idea; and, if this cannot be
effected at once, to change it gradually and continuously till it harmonize in
its working with the only rightful constitution, which is that of a pure
republic. Thus the old empirical and statutory forms, which serve only to
effect the political subjection of the people, will be resolved into the
original and rational forms which alone take freedom as their principle, and
even as the condition of all compulsion and constraint. Compulsion is in fact
requisite for the realization of a juridical constitution, according to the
proper idea of the state; and it will lead at last to the realization of that
idea, even according to the letter. This is the only enduring political
constitution, as in it the law is itself sovereign, and is no longer attached
to a particular person. This is the ultimate end of all public right, and the
state in which every citizen can have what is his own peremptorily assigned to
him. But so long as the form of the state has to be represented, according to
the letter, by many different moral persons invested with the supreme power,
there can only be a provisory internal right, and not an absolutely juridical
state of civil society.
Every true republic is and can only be
constituted by a representative system of the people. Such a representative
system is instituted in name of the people, and is constituted by all the
citizens being united together, in order, by means of their deputies, to
protect and secure their rights. But as soon as a supreme head of the state in
person- be it as king, or nobility, or the whole body of the people in a
democratic union- becomes also representative, the united people then does not
merely represent the sovereignty; but they are themselves sovereign. It is in
the people that the supreme power originally resides, and it is accordingly
from this power that all the rights of individual citizens as mere subjects,
and especially as officials of the state, must be derived. When the sovereignty
of the people themselves is thus realized, the republic is established; and it
is no longer necessary to give up the reins of government into the hands of
those by whom they have been hitherto held, especially as they might again
destroy all the new institutions by their arbitrary and absolute will.
It was therefore a great error in judgement
on the part of a powerful ruler in our time, when he tried to extricate himself
from the embarrassment arising from great public debts, by transferring this
burden to the people, and leaving them to undertake and distribute them among
themselves as they might best think fit. It thus became natural that the
legislative power, not only in respect of the taxation of the subjects, but in
respect of the government, should come into the hands of the people. It was
requisite that they should be able to prevent the incurring of new debts by
extravagance or war; and in consequence, the supreme power of the monarch
entirely disappeared, not by being merely suspended, but by passing over in
fact to the people, to whose legislative will the property of every subject
thus became subjected. Nor can it be said that a tacit and yet obligatory
promise must be assumed as having, under such circumstances, been given by the
national assembly, not to constitute themselves into a sovereignty, but only to
administer the affairs of the sovereign for the time, and after this was done
to deliver the reins of the government again into the monarch's hands. Such a
supposed contract would be null and void. The right of the supreme legislation
in the commonwealth is not an alienable right, but is the most personal of all
rights. Whoever possesses it can only dispose by the collective will of the
people, in respect of the people; he cannot dispose in respect of the
collective will itself, which is the ultimate foundation of all public
contracts. A contract, by which the people would be bound to give back their
authority again, would not be consistent with their position as a legislative
power, and yet it would be made binding upon the people; which, on the
principle that "No one can serve two masters," is a contradiction.
II. The Right of Nations and International Law. (Jus Gentium
53. Nature and Division of the Right of Nations.
The individuals, who make up a people, may
be regarded as natives of the country sprung by natural descent from a common
ancestry (congeniti), although this may not hold entirely true in detail.
Again, they may be viewed according to the intellectual and juridical relation,
as born of a common political mother, the republic, so that they constitute, as
it were, a public family or nation (gens, natio) whose members are all related
to each other as citizens of the state. As members of a state, they do not mix
with those who live beside them in the state of nature, considering such to be
ignoble. Yet these savages, on account of the lawless freedom they have chosen,
regard themselves as superior to civilized peoples; and they constitute tribes
and even races, but not states. The public right of states (jus publicum
civitatum), in their relations to one another, is what we have to consider
under the designation of the "right of nations." Wherever a state,
viewed as a moral person, acts in relation to another existing in the condition
of natural freedom, and consequently in a state of continual war, such right
takes it rise.
The right of nations in relation to the
state of war may be divided into: 1. the right of going to war; 2. right during
war; and 3. right after war, the object of which is to constrain the nations
mutually to pass from this state of war and to found a common constitution
establishing perpetual peace. The difference between the right of individual
men or families as related to each other in the state of nature, and the right
of the nations among themselves, consists in this, that in the right of nations
we have to consider not merely a relation of one state to another as a whole,
but also the relation of the individual persons in one state to the individuals
of another state, as well as to that state as a whole. This difference,
however, between the right of nations and the right of individuals in the mere
state of nature, requires to be determined by elements which can easily be
deduced from the conception of the latter.
54. Elements of the Right of
Nations.
The elements of the right of nations are as
follows:
1. States, viewed as nations, in their external
relations to one another- like lawless savages- are naturally in a
non-juridical condition;
2. This natural condition is a state of war
in which the right of the stronger prevails; and although it may not in fact be
always found as a state of actual war and incessant hostility, and although no
real wrong is done to any one therein, yet the condition is wrong in itself in
the highest degree, and the nations which form states contiguous to each other
are bound mutually to pass out of it;
3. An alliance of nations, in accordance
with the idea of an original social contract, is necessary to protect each
other against external aggression and attack, but not involving interference
with their several internal difficulties and disputes;
4. This mutual connection by alliance must
dispense with a distinct sovereign power, such as is set up in the civil
constitution; it can only take the form of a federation, which as such may be
revoked on any occasion, and must consequently be renewed from time to time.
This is therefore a right which comes in as
an accessory (in subsidium) of another original right, in order to prevent the
nations from falling from right and lapsing into the state of actual war with
each other. It thus issues in the idea of a foedus amphictyonum.
55. Right of Going to War as related
to the Subjects of the State.
We have then to consider, in the first
place, the original right of free states to go to war with each other as being
still in a state of nature, but as exercising this right in order to establish
some condition of society approaching the juridical And, first of all, the
question arises as to what right the state has in relation to its own subjects,
to use them in order to make war against other states, to employ their property
and even their lives for this purpose, or at least to expose them to hazard and
danger; and all this in such a way that it does not depend upon their own
personal judgement whether they will march into the field of war or not, but
the supreme command of the sovereign claims to settle and dispose of them thus.
This right appears capable of being easily
established. It may be grounded upon the right which every one has to do with
what is his own as he will. Whatever one has made substantially for himself, he
holds as his incontestable property. The following, then, is such a deduction
as a mere jurist would put forward.
There are various natural products in a
country which, as regards the number and quantity in which they exist, must be
considered as specially produced (artefacta) by the work of the state; for the
country would not yield them to such extent were it not under the constitution
of the state and its regular administrative government, or if the inhabitants
were still living in the state of nature. Sheep, cattle, domestic fowl the most
useful of their kind- swine, and such like, would either be used up as
necessary food or destroyed by beasts of prey in the district in which I live,
so that they would entirely disappear, or be found in very scant supplies, were
it not for the government securing to the inhabitants their acquisitions and
property. This holds likewise of the population itself, as we see in the case
of the American deserts; and even were the greatest industry applied in those
regions- which is not yet done- there might be but a scanty population. The
inhabitants of any country would be but sparsely sown here and there were it
not for the protection of government; because without it they could not spread
themselves with their households upon a territory which was always in danger of
being devastated by enemies or by wild beasts of prey; and further, so great a
multitude of men as now live in any one country could not otherwise obtain
sufficient means of support. Hence, as it can be said of vegetable growths,
such as potatoes, as well as of domesticated animals, that because the
abundance in which they are found is a product of human labour, they may be
used, destroyed, and consumed by man; so it seems that it may be said of the
sovereign, as the supreme power in the state, that he has the right to lead his
subjects, as being for the most part productions of his own, to war, as if it
were to the chase, and even to march them to the field of battle, as if it were
on a pleasure excursion.
This principle of right may be supposed to
float dimly before the mind of the monarch, and it certainly holds true at
least of the lower animals which may become the property of man. But such a
principle will not at all apply to men, especially when viewed as citizens who
must be regarded as members of the state, with a share in the legislation, and
not merely as means for others but as ends in themselves. As such they must
give their free consent, through their representatives, not only to the
carrying on of war generally, but to every separate declaration of war; and it
is only under this limiting condition that the state has a right to demand
their services in undertakings so full of danger.
We would therefore deduce this right rather
from the duty of the sovereign to the people than conversely. Under this
relation, the people must be regarded as having given their sanction; and,
having the right of voting, they may be considered, although thus passive in
reference to themselves individually, to be active in so far as they represent
the sovereignty itself.
56. Right of Going to War in
relation to Hostile States
Viewed as in the state of nature, the right
of nations to go to war and to carry on hostilities is the legitimate way by
which they prosecute their rights by their own power when they regard
themselves as injured; and this is done because in that state the method of a
juridical process, although the only one proper to settle such disputes, cannot
be adopted.
The threatening of war is to be
distinguished from the active injury of a first aggression, which again is
distinguished from the general outbreak of hostilities. A threat or menace may
be given by the active preparation of armaments, upon which a right of prevention
(jus praeventionis) is founded on the other side, or merely by the formidable
increase of the power of another state (potestas tremenda) by acquisition of
territory. Lesion of a less powerful country may be involved merely in the
condition of a more powerful neighbour prior to any action at all; and in the
state of nature an attack under such circumstances would be warrantable. This
international relation is the foundation of the right of equilibrium, or of the
"balance of power," among all the states that are in active
contiguity to each other.
The right to go to war is constituted by
any overt act of injury. This includes any arbitrary retaliation or act of
reprisal (retorsio) as a satisfaction taken by one people for an offence
committed by another, without any attempt being made to obtain reparation in a
peaceful way. Such an act of retaliation would be similar in kind to an
outbreak of hostilities without a previous declaration of war. For if there is
to be any right at all during the state of war, something analogous to a
contract must be assumed, involving acceptance on the side of the declaration
on the other, and amounting to the fact that they both will to seek their right
in this way.
The determination of what constitutes right
in war, is the most difficult problem of the right of nations and international
law. It is very difficult even to form a conception of such a right, or to
think of any law in this lawless state without falling into a contradiction. Inter
arma silent leges.* It must then be just the right to carry on war according to
such principles as render it always still possible to pass out of that natural
condition of the states in their external relations to each other, and to enter
into a condition of right.
*["In the midst of arms the laws are
silent." Cicero.]
No war of independent states against each
other can rightly be a war of punishment (bellum punitivum). For punishment is
only in place under the relation of a superior (imperantis) to a subject
(subditum); and this is not the relation of the states to one another. Neither
can an international war be "a war of extermination" (bellum
internicinum), nor even "a war of subjugation" (bellum
subjugatorium); for this would issue in the moral extinction of a state by its
people being either fused into one mass with the conquering state, or being
reduced to slavery. Not that this necessary means of attaining to a condition
of peace is itself contradictory to the right of a state; but because the idea
of the right of nations includes merely the conception of an antagonism that is
in accordance with principles of external freedom, in order that the state may
maintain what is properly its own, but not that it may acquire a condition
which, from the aggrandizement of its power, might become threatening to other
states.
Defensive measures and means of all kinds
are allowable to a state that is forced to war, except such as by their use
would make the subjects using them unfit to be citizens; for the state would
thus make itself unfit to be regarded as a person capable of participating in
equal rights in the international relations according to the right of nations.
Among these forbidden means are to be reckoned the appointment of subjects to
act as spies, or engaging subjects or even strangers to act as assassins, or
poisoners (in which class might well be included the so called sharpshooters
who lurk in ambush for individuals), or even employing agents to spread false
news. In a word, it is forbidden to use any such malignant and perfidious means
as would destroy the confidence which would be requisite to establish a lasting
peace thereafter.
It is permissible in war to impose
exactions and contributions upon a conquered enemy; but it is not legitimate to
plunder the people in the way of forcibly depriving individuals of their
property. For this would be robbery, seeing it was not the conquered people but
the state under whose government they were placed that carried on the war by
means of them. All exactions should be raised by regular requisition, and
receipts ought to be given for them, in order that when peace is restored the
burden imposed on the country or the province may be proportionately borne.
The right that follows after war, begins at
the moment of the treaty of peace and refers to the consequences of the war.
The conqueror lays down the conditions under which he will agree with the
conquered power to form the conclusion of peace. Treaties are drawn up; not
indeed according to any right that it pertains to him to protect, on account of
an alleged lesion by his opponent, but as taking this question upon himself, he
bases the right to decide it upon his own power. Hence the conqueror may not
demand restitution of the cost of the war; because he would then have to
declare the war of his opponent to be unjust. And even although he should adopt
such an argument, he is not entitled to apply it; because he would have to
declare the war to be punitive, and he would thus in turn inflict an injury. To
this right belongs also the exchange of prisoners, which is to be carried out
without ransom and without regard to equality of numbers.
Neither the conquered state nor its
subjects lose their political liberty by conquest of the country, so as that
the former should be degraded to a colony, or the latter to slaves; for
otherwise it would have been a penal war, which is contradictory in itself. A
colony or a province is constituted by a people which has its own constitution,
legislation, and territory, where persons belonging to another state are merely
strangers, but which is nevertheless subject to the supreme executive power of
another state. This other state is called the mother-country. It is ruled as a
daughter, but has at the same time its own form of government, as in a separate
parliament under the presidency of a viceroy (civitas hybrida). Such was Athens
in relation to different islands; and such is at present (1796) the relation of
Great Britain to Ireland.
Still less can slavery be deduced as a
rightful institution, from the conquest of a people in war; for this would
assume that the war was of a punitive nature. And least of all can a basis be
found in war for a hereditary slavery, which is absurd in itself, since guilt
cannot be inherited from the criminality of another.
Further, that an amnesty is involved in the
conclusion of a treaty of peace is already implied in the very idea of a peace.
The rights of peace are:
1. The right to be in peace when war is in
the neighbourhood, or the right of neutrality.
2. The right to have peace secured so that
it may continue when it has been concluded, that is, the right of guarantee.
3. The right of the several states to enter
into a mutual alliance, so as to defend themselves in common against all
external or even internal attacks. This right of federation, however, does not
extend to the formation of any league for external aggression or internal
aggrandizement.
60. Right as against an Unjust
Enemy.
The right of a state against an unjust enemy
has no limits, at least in respect of quality as distinguished from quantity or
degree. In other words, the injured state may use- not, indeed any means, but
yet- all those means that are permissible and in reasonable measure in so far
as they are in its power, in order to assert its right to what is its own. But
what then is an unjust enemy according to the conceptions of the right of
nations, when, as holds generally of the state of nature, every state is judge
in its own cause? It is one whose publicly expressed will, whether in word or
deed, betrays a maxim which, if it were taken as a universal rule, would make a
state of peace among the nations impossible, and would necessarily perpetuate
the state of nature. Such is the violation of public treaties, with regard to
which it may be assumed that any such violation concerns all nations by
threatening their freedom, and that they are thus summoned to unite against such
a wrong and to take away the power of committing it. But this does not include
the right to partition and appropriate the country, so as to make a state as it
were disappear from the earth; for this would be an injustice to the people of
that state, who cannot lose their original right to unite into a commonwealth,
and to adopt such a new constitution as by its nature would be unfavourable to
the inclination for war.
Further, it may be said that the expression
"an unjust enemy in the state of nature" is pleonastic; for the state
of nature is itself a state of injustice. A just enemy would be one to whom I
would do wrong in offering resistance; but such a one would really not be my
enemy.
61. Perpetual Peace and a Permanent
Congress of Nations.
The natural state of nations as well as of
individual men is a state which it is a duty to pass out of, in order to enter
into a legal state. Hence, before this transition occurs, all the right of
nations and all the external property of states acquirable or maintainable by
war are merely provisory; and they can only become peremptory in a universal
union of states analogous to that by which a nation becomes a state. It is thus
only that a real state of peace could be established. But with the too great
extension of such a union of states over vast regions, any government of it,
and consequently the protection of its individual members, must at last become
impossible; and thus a multitude of such corporations would again bring round a
state of war. Hence the perpetual peace, which is the ultimate end of all the
right of nations, becomes in fact an impracticable idea. The political
principles, however, which aim at such an end, and which enjoin the formation
of such unions among the states as may promote a continuous approximation to a
perpetual peace, are not impracticable; they are as practicable as this
approximation itself, which is a practical problem involving a duty, and
founded upon the right of individual men and states.
Such a union of states, in order to
maintain peace, may be called a permanent congress of nations; and it is free
to every neighbouring state to join in it. A union of this kind, so far at
least as regards the formalities of the right of nations in respect of the
preservation of peace, was presented in the first half of this century, in the
Assembly of the States-General at the Hague. In this Assembly most of the
European courts, and even the smallest republics, brought forward their
complaints about the hostilities which were carried on by the one against the
other. Thus the whole of Europe appeared like a single federated state,
accepted as umpire by the several nations in their public differences. But in
place of this agreement, the right of nations afterwards survived only in
books; it disappeared from the cabinets, or, after force had been already used,
it was relegated in the form of theoretical deductions to the obscurity of
archives.
By such a congress is here meant only a
voluntary combination of different states that would be dissoluble at any time,
and not such a union as is embodied in the United States of America, founded
upon a political constitution, and therefore indissoluble. It is only by a
congress of this kind that the idea of a public right of nations can be established,
and that the settlement of their differences by the mode of a civil process,
and not by the barbarous means of war, can be realized.
III. The Universal Right of Mankind.
(Jus Cosmopoliticum)
62. Nature and Conditions of
Cosmopolitical Right.
The rational idea of a universal, peaceful,
if not yet friendly, union of all the nations upon the earth that may come into
active relations with each other, is a juridical principle, as distinguished
from philanthropic or ethical principles. Nature has enclosed them altogether
within definite boundaries, in virtue of the spherical form of their abode as a
globus terraqueus; and the possession of the soil upon which an inhabitant of
the earth may live can only be regarded as possession of a part of a limited
whole and, consequently, as a part to which every one has originally a right.
Hence all nations originally hold a community of the soil, but not a juridical
community of possession (communio), nor consequently of the use or
proprietorship of the soil, but only of a possible physical intercourse
(commercium) by means of it. In other words, they are placed in such
thoroughgoing relations of each to all the rest that they may claim to enter
into intercourse with one another, and they have a right to make an attempt in
this direction, while a foreign nation would not be entitled to treat them on
this account as enemies. This right, in so far as it relates to a possible
union of all nations, in respect of certain laws universally regulating their
intercourse with each other, may be called "cosmopolitical right"
(jus cosmopoliticum).
It may appear that seas put nations out of
all communion with each other. But this is not so; for by means of commerce,
seas form the happiest natural provision for their intercourse. And the more
there are of neighbouring coastlands, as in the case of the Mediterranean Sea,
this intercourse becomes the more animated. And hence communications with such
lands, especially where there are settlements upon them connected with the mother
countries giving occasion for such communications, bring it about that evil and
violence committed in one place of our globe are felt in all. Such possible
abuse cannot, however, annul the right of man as a citizen of the world to
attempt to enter into communion with all others, and for this purpose to visit
all the regions of the earth, although this does not constitute a right of
settlement upon the territory of another people (jus incolatus), for which a
special contract is required.
But the question is raised as to whether,
in the case of newly discovered countries, a people may claim the right to
settle (accolatus), and to occupy possessions in the neighbourhood of another
people that has already settled in that region; and to do this without their
consent.
Such a right is indubitable, if the new
settlement takes place at such a distance from the seat of the former that
neither would restrict or injure the other in the use of their territory. But in
the case of nomadic peoples, or tribes of shepherds and hunters (such as the
Hottentots, the Tungusi, and most of the American Indians), whose support is
derived from wide desert tracts, such occupation should never take place by
force, but only by contract; and any such contract ought never to take
advantage of the ignorance of the original dwellers in regard to the cession of
their lands. Yet it is commonly alleged that such acts of violent appropriation
may be justified as subserving the general good of the world. It appears as if
sufficiently justifying grounds were furnished for them, partly by reference to
the civilization of barbarous peoples (as by a pretext of this kind even
Busching tries to excuse the bloody introduction of the Christian religion into
Germany), and partly by founding upon the necessity of purging one's own
country from depraved criminals, and the hope of their improvement or that of
their posterity, in another continent like New Holland. But all these alleged
good purposes cannot wash out the stain of injustice in the means employed to
attain them. It may be objected that, had such scrupulousness about making a
beginning in founding a legal state with force been always maintained, the
whole earth would still have been in a state of lawlessness. But such an
objection would as little annul the conditions of right in question as the
pretext of the political revolutionaries that, when a constitution has become
degenerate, it belongs to the people to transform it by force. This would amount
generally to being unjust once and for all, in order thereafter to found
justice the more surely, and to make it flourish.
5 Conclusion.
If one cannot prove that a thing is, he may
try to prove that it is not. And if he succeeds in doing neither (as often
occurs), he may still ask whether it is in his interest to accept one or other
of the alternatives hypothetically, from the theoretical or the practical point
of view. In other words, a hypothesis may be accepted either in order to
explain a certain phenomenon (as in astronomy to account for the retrogression
and stationariness of the planets), or in order to attain a certain end, which
again may be either pragmatic, as belonging merely to the sphere of art, or
moral, as involving a purpose which it is a duty to adopt as a maxim of action.
Now it is evident that the assumption (suppositio) of the practicability of
such an end, though presented merely as a theoretical and problematical
judgement, may be regarded as constituting a duty; and hence it is so regarded
in this case. For although there may be no positive obligation to believe in
such an end, yet even if there were not the least theoretical probability of
action being carried out in accordance with it, so long as its impossibility
cannot be demonstrated, there still remains a duty incumbent upon us with
regard to it.
Now, as a matter of fact, the morally
practical reason utters within us its irrevocable veto: There shall be no war.
So there ought to be no war, neither between me and you in the condition of
nature, nor between us as members of states which, although internally in a
condition of law, are still externally in their relation to each other in a
condition of lawlessness; for this is not the way by which any one should prosecute
his right. Hence the question no longer is as to whether perpetual peace is a
real thing or not a real thing, or as to whether we may not be deceiving
ourselves when we adopt the former alternative, but we must act on the
supposition of its being real. We must work for what may perhaps not be
realized, and establish that constitution which yet seems best adapted to bring
it about (mayhap republicanism in all states, together and separately). And
thus we may put an end to the evil of wars, which have been the chief interest
of the internal arrangements of all the states without exception. And although
the realization of this purpose may always remain but a pious wish, yet we do
certainly not deceive ourselves in adopting the maxim of action that will guide
us in working incessantly for it; for it is a duty to do this. To suppose that
the moral law within us is itself deceptive, would be sufficient to excite the
horrible wish rather to be deprived of all reason than to live under such
deception, and even to see oneself, according to such principles, degraded like
the lower animals to the level of the mechanical play of nature.
It may be said that the universal and
lasting establishment of peace constitutes not merely a part, but the whole
final purpose and end of the science of right as viewed within the limits of
reason. The state of peace is the only condition of the mine and thine that is
secured and guaranteed by laws in the relationship of men living in numbers
contiguous to each other, and who are thus combined in a constitution whose
rule is derived not from the mere experience of those who have found it the
best as a normal guide for others, but which must be taken by the reason a
priori from the ideal of a juridical union of men under public laws generally.
For all particular examples or instances, being able only to furnish
illustration but not proof, are deceptive, and at all events require a
metaphysic to establish them by its necessary principles. And this is conceded
indirectly even by those who turn metaphysics into ridicule, when they say, as
they often do: "The best constitution is that in which not men but laws
exercise the power." For what can be more metaphysically sublime in its
own way than this very idea of theirs, which according to their own assertion
has, notwithstanding, the most objective reality? This may be easily shown by
reference to actual instances. And it is this very idea, which alone can be
carried out practically, if it is not forced on in a revolutionary and sudden
way by violent overthrow of the existing defective constitution; for this would
produce for the time the momentary annihilation of the whole juridical state of
society. But if the idea is carried forward by gradual reform and in accordance
with fixed principles, it may lead by a continuous approximation to the highest
political good, and to perpetual peace.
-THE END- .