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THE PHILOSOPHY OF LAW.
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THE PHILOSOPHY OF LAW
3n (Exposition
OF THE
FUNDAMENTAL PRINCIPLES OF JURISPRUDENCE
A<J
THE SCIENCE OF RIGHT.
BY
IMMANUEL KANT.
Cranslatcto from tfjc German
BY
W. HASTIE, B.D.
EDINBURGH:
T. & T. CLARK, 38 GEORGE STREET.
1887.
6
next to a new History of Law, what we most require is a
new Philosophy of Law. '—Sir HENRY SUMNER MAINE.
7, it> , 9$ 7
TRANSLATOR'S PREFACE.
KANT'S Science of Riykt 1 is a complete exposition of the
Philosophy of Law, viewed as a rational investigation of
the fundamental Principles of Jurisprudence. It was
published in 1796,2 as the First Part of his Metaphysic
of Morals,3 the promised sequel and completion of the
Foundation for a Metaphysic of Morals? published in
1785. The importance and value of the great thinker's
exposition of the Science of Eight, both as regards the
fundamental Principles of his own Practical Philosophy
and the general interest of the Philosophy of Law, were
at once recognised. A second Edition, enlarged by an
1 Rechfcdehre.
- It appeared soon after Michaelmas 1796, but with the year 1797 on
the title-page. This has given rise to some confusion regarding the date
• >f th«- fii>t Edition, which is now usually quoted as 1796-7. (Schubert,
f rente, Bd. ix. viii., and /Hoijrafihie, p. 145.)
1 Dit- .M.-t.iphyMk .lor Siitm. Krst.-r Thril. Metaphysische Anl'.i
iimn.li' il.-r K.-rhNlrhn-. Kniii^herL', 1797.
4 Grundlegung /in M. -tapliy.-ik d. r Sitt«-n. Translated by Willi«-h
(1798), Semple (1836), and Abbott (1873).
VI
KANT'S PHILOSOPHY OF LAW.
Appendix, containing Supplementary Explanations of the
Principles of Right, appeared in 1798.1 The work has
since then been several times reproduced by itself, as
well as incorporated in all the complete editions of
Kant's Works. It was immediately rendered into Latin
by Born2 in 1798, and again by Konig 3 in 1800. It
was translated into French by Professor Tissot in 1837,4
of which translation a second revised Edition has
appeared. It was again translated into French by M.
Barni, preceded by an elaborate analytical introduction,
in 1853.5 With the exception of the Preface and
Introductions,6 the work now appears translated into
English for the first time.
Kant's Science of Eight was his last great work of an
independent kind in the department of pure Philosophy,
1 These Supplementary Explanations were appended by Kant to th«
First Part of the work, to which most of their detail more directly
apply ; but they are more conveniently appended in this translation to the
whole work, an arrangement which has also been adopted by the other
Translators.
2 Initia Metaphysica Doctrinse Juris. Immanvelis Kantii Opera ad
philosophiam criticam. Latine vertit Fredericus Gottlob Born. Volumen
qnartum. Lipsiae, MDCCLXXXXVIII.
1 Elementa Metaphysica Juris Doctrinae. Latine vertit G. L. Konig.
Amstel. 1800, 8. (Warnkonig and others erroneously refer it to Gotha.)
4 Priucipes Metaphysiques du Droit, par Emm. Kant, etc. Paris, 1837.
5 Elements Metaphysiques de la Doctrine du Droit, etc. Paris, 1853.
c The Preface and the Introductions (infra, pp. 1-58, 259-265) have
been translated by Mr. Semple. See The Metaphyaic of Ethics by
TIIAXSLATOR'S PBWACE. vii
and with it he virtually brought his activity as a m
of thought to a close.1 It fittingly crowned the rich
practical period of his later philosophical teaching, and
he shed into it the last effort of his energy of thought.
Full of years and honours he was then deliberately
engaged, in the calm of undisturbed and unwearied
reflection, in gathering the finally matured fruit of all
the meditation and learning of his life. His three
immortal Critiques of the Pure Reason* (1781), the
Practical Reason* (1788), and the Judgment* (1790),
had unfolded all the theoretical Principles of his Critical
Philosophy, and established his claim to be recognised as
at once the most profound and the most original thinker
of the modern world. And as the experience of life
deepened around and within him, towards the sunset, his
Immanuel Kant, translated by J. W. Semple, Advocate. Fourth Ed.
Edited with Introduction by Rev. Henry Calderwood, LL.D., Professor
of Moral Philosophy, University of Edinburgh. Edin. : T. & T. Clark,
1886.— These are indispensable parts of the present work, but they have
been translated entirely anew.
1 He ceased lecturing in 1797 ; and the only works of any importance
published by himself subsequent to the Rechtslehre, were the Mtta
physwche Aiifanfjwjrunde tier Tugendlehre in 1797, and Der Ktreit der
Facidtaten and the Anthropoloyie in 1798. The Loyik was edited by
Jiische in 1800 ; the Physische Geographic by Rink in 1802, and the
Pddaf/orjik, also by Rink, in 1803, the year before Kant's death.
* Kritik der reinen Vernunft. Translated anew by Max Mailer (1881).
3 Kritik der praktischen Vernunft. Translated by Abbott.
1 Kritik der Urthcilskraft. Translated into French by M. Barai.
viii KANT'S PHILOSOPHY OF LAW.
interest had been more and more absorbed and concen
trated in the Practical. For to him, as to all great and
Comprehensive thinkers, Philosophy has only its beginning
in the theoretical explanation of things ; its chief end is
the rational organization and animation and guidance of
the higher life in which all things culminate. Kant had
carried with him through all his struggle and toil of
thought, the cardinal faith in God, Freedom, and Immor
tality, as an inalienable possession of Eeason, and he had
beheld the human Personality transfigured and glorified
in the Divine radiance of the primal Ideas. But he had
further to contemplate the common life of Humanity in
its varied ongoings and activities, rising with the innate
right of mastery from the bosom of Nature and asserting
its lordship in the arena of the mighty world that it
incessantly struggles to appropriate and subdue to
itself. In the natural chaos and conflict of the
social life of man, as presented in the multitudinous
ami ever-changing mass of the historic organism, he
had also to search out the Principles of order and
form, to vindicate the rationality of the ineradicable
belief in human Causation, and to quicken anew the
lively hope of a higher issue of History. The age of the
i Revolution called and inspired him to his task. With
keen vision he saw a new world suddenly born before
him, as the blood-stained product of a motion long toiling in
TKANSI.ATUUS I'KKFACE. IX
tlie gloom, and all old things tlius passing away ; and h.
knew that it was only the pure and the practical Reason,
in that inmost union which constitutes the birthright of
Freedom, that could regulate and harmonize the future
order of this strongest offspring of time. And if it was
not given to him to work out the whole cycle of the
new rational ideas, he at least touched upon them all,
and he has embodied the cardinal Principle of the
System in his Science of Right as the philosophical ^
Magna Charta of the age of political Reason and the
permanent foundation of all true Philosophy of Law.
Thus produced, Kant's Science of Right constituted an
epoch in jural speculation, and it has commanded the
homage of the greatest thinkers since. Fichte, with
characteristic ardour and with eagle vision, threw his
whole energy of soul into the rational problem of Right,
and if not without a glance of scorn at the sober limita
tions of the ' old Lectures ' of the aged professor, he yet
acknowledges in his own more aerial flight the initial
safety of this more practical guidance.1 In those early
days of eager search and high aspiration, Hegel, stirred
to the depths by Kant, and Fichte, and Schelling, wrote
his profound and powerful essay on the Philosophy of
i Fichte's Nachgelassene Werke, 2 Bd. System der Rechtslehre (1804),
498, etc. (Bonn, 1834.) Fichte's Grundlage dcs Naturrechts (1796),
hims.-lf pointeout, was published before Kant's Jtcchtalehre, butits principle*
IN all «-s<uiti;illy Kantian. (Translated by Kroeger, Philadelphia, 1870.)
\ KANT S PHILOSOPHY OF LAW.
Right, laden with an Atlantean burden of thought and
strained to intolerable rigidity and severity of form, but
his own highest achievement only aimed at a completer
integration of the Principles differentiated by Kant.1 It
was impossible that the rational evangel of universal
freedom and the seer-like vision of a world, hitherto
groaning and travailing in pain but now struggling into
the perfection of Eternal Peace and Good- will, should
find a sympathetic response in Schopenhauer, notwith
standing all his admiration of Kant ; but the racy
cynicism of the great Pessimist rather subsides before
him into mild lamentation than seeks the usual refuge
from its own vacancy and despair in the wilful caustic
of scorching invective and reproach.2 Schleiermacher,
N the greatest theologian and moralist of the Century, early
discerned the limitations of the & priori formalism, and
supplemented it by the comprehensive conceptions of the
primal dominion and the new order of creation, but he
owed his critical and dialectical ethicality mainly to
Kant.3 Krause, the leader of the latest and largest
1 Hegel's Werke, Bd. i. Philosophische Abhandlungen, iv. Ueber
die Wi^enschaf (lichen Behandlungsarten des Naturrechts (1802-3) ;
and the Grundlinien der Philosophie des Rechts, oder Naturrecht und
Staatsvrissenschaft im Grundrisse (1821). Werke, Bd. viii. (passim}.
Dr. J. Hutchison Stirling's Lectures on the Philosophy of Law present a
most incisive and suggestive introduction to Hegel's Philosophy of Right.
%J Die beiden Grundprobleme der Ethik (1841), pp. 118-9.
1 Grundlinien einer Kritik der bisherigen Sittenlehre (1803). Entmirf
TRANSLATOR'S PRKI xi
thought in this sphere — at once intuitive, radical, and
productive in his faculty, analytic, synthetic, and organic
in his method, and real, ideal, and historic in his product
— caught again the archetypal perfectibility of the human
reflection of the Divine, and the living conditions of the
true progress of humanity. The dawn of the thought of
the new age in Kant rises above the horizon to the*
clear day, full-orbed and vital, in Krause.1 All the
continental thinkers and schools of the century in this
sphere of Jurisprudence, whatever be their distinctive
characteristics or tendencies, have owned or manifested
their obligations to the great master of the Critical
Philosophy.
eines Systems der Sittenlehre, herausg. von A. Schweizer(1835). Grund-
riss der philosophischen Ethik, von A. Twesten (1841). Die Lehre vom
Staat, herausg. von Ch. A. Brandes (1845).
1 Grundlage des Naturrechts (1803). Abriss des Systems der Philo
sophic dos Rechts oder des Naturrechts (1828). Krause is now univery
sally recognised as the definite founder of the organic and positive school
of Natural Right. His principles have been ably expounded by his two
most faithful followers, Ahrens (Court de Droit Naturel , 7th ed. 1875) and
Roder (Orundzuge des Naturrechts o. der Rechtsfiloaofie, 2 Auf. 1860).
Professor J. S. del Rio of Madrid has vividly expounded and enthusiastically
advocated Krause's system in Spanish. Professoj^I/oriiner of the Edin
burgh University, while maintaining an independent and critical attitude
towards the various Schools of Jurisprudence, is in close sympathy with
the Principles of Krause (The Institutes of Law: a Treatise of the Prin
ciple* of Jurisprudence as determined by Nature, 2nd ed. 1880, and The
Institutes of the Law of Nations). He has clearly indicated his agreement
with the Kantian School, so far as its principles go (Instlt. p. 336, n.).
Ml
KANT'S PHILOSOPHY OF LAW.
The influence of the Kantian Doctrine of Eight has
thus been vitally operative in all the subsequent progress
of jural and political science.1 Kant, here as in every
other department of Philosophy, summed up the frag
mentary and critical movement of the Eighteenth
Century, and not only spoke its last word, but inaugu
rated a method which was to guide and stimulate the
highest thought of the future. With an unwonted
blending of speculative insight and practical knowledge,
an ideal universality of conception and a sure grasp of
the reality of experience, his effort, in its inner depth,
vitality, and concentration, contrasts almost strangely
with the trivial formalities of the Leibnitzio-Wolffian
nationalists on the one hand,2 and with the pedantic
1 This applies to the latest German discussions and doctrines. The
following works may be referred to as the most important recent contribu
tions, in addition to those mentioned above (such as Ahrens and Rbder,
xi. n.) :— Trendelenburg, Naturrecht auf dem Grunde der Ethik, 2 Auf.
1868. Post, Das Naturgesetz des Rechts, 1867. W. Arnold, Cultur und
Rechtsleben, 1865. Ulrici, Naturrecht, 1873. Zoepfl, Grundriss zu
Vorlesungen iiber Rechtsphilosophie, 1878. Rudolph von Ihering, Der
Zweck im Recht, i. 1877, ii. 1883. Professor Frohschammer of Munich
has discussed the problem of Right in a thoughtful and suggestive way
from the standpoint of his original and interesting System of Philosophy,
in his new volume, Ueber die Organisation und Cultur der menschlichen
Gesellschaft, Philosophische Untersuchungen iiber Recht und Staat,
sociales Leben und Erziehung, 1885.
2 Leibnitz, Nova Methodus discendae docendseque Jurisprudent, 1767.
Observationes de principio Juris. Codex Juris Gentium, 1693-1700.
Wolff, Jus Naturae Methodo Scientifica pertractatum, Lips. 8 Tomi.
TRANSLATOB'S PREFACE. xiii
inliousncss of the Empiricists of the School of Clrotius
on tlie other.1 Thomasius and his School, the expound
of the Doctrine of Right as an independent Science, y
were the direct precursors of the formal method of
Kant's System.2 Its firm and clear outline implies the
substance of many an operose and now almost unread
able tome ; and it is alive throughout with the quick,
keen spirit of the modern world. Kant's unrivalled
genius for distinct division and systematic form, found
full and appropriate scope in this sphere of thought. He
1740-48. lustitutiones Juris Naturae et Gentium, Hahe, 1754. (In
French by Luzac, Amsterdam, 1742, 4 vols.) Vernunftigc Gcdanken.
Vatel, Le Droit des Gens, Leyden, 1758. Edited by Royer-Collard,
Paris, 1835. English translation by Chitty, 1834. [For the other works
of this school, see Ahrens, i. 323-4, or Miller's Lecture*, p. 411.]
1 Grotius, De Jure Belli ac Pacis, lib. iii. 1625. Translated by
Barbeyrae into French, 1724 ; and by "NVhewell into English, 1858.
Pufcndorf, Elementa Juris Universalis, 1660. De Jure Natura- et
Gentium, 1672. [English translation by Kennett, 1729.]
Cumberland, De Legibus Natune Disquisitio Philosophica, London,
1672. Translated into English by Towers, Dublin, 1750.
Cocceji, Grotius illustratus, etc., 3 vols. 1744-7. [See Miller, 409.]
* Christian Thomasius (1655-1728) first clearly distinguished between
the Doctrine of Right and Ethics, and laid the basis of the celebrated
d^tinction of Perfect and Imperfect Obligations as differentiated by the
i-l« -ini-nt of Constraint. See Professor Lorimer's excellent account of
Thomasius and of Kant's relation to his System, Inst. qf Law, p. 288 ;
and Uoder, i. 240. The principal works of this School are : Thomasius,
Fumlimenta juris natura? et gentium ex sensu communi deducta, 1705.
(Mihard, Delincatio juris naturalis, 1712. Gundlinpr, Jus Naturn' et
gentium. Koehler, Exercitationes, 1728. Achenwall, Prolegomena Juris
iiriturulis :md Jus Naturae, 1781.
xiv KANT'S PHILOSOPHY OF LAW.
had now all his technical art as an expounder of Philo-
\ sophy in perfect control, and after the hot rush through
the first great Critique he had learned to take his time.
His exposition thus became simplified, systematized, and
clarified throughout to utmost intelligibility. Here, too,
the cardinal aim of his Method was to wed speculative
thought and empirical fact, to harmonize the abstract
universality of Eeason with the concrete particularities of
Right, and to reconcile the free individuality of the
citizen with the regulated organism of the State. And
the least that can be said of his execution is, that he has
rescued the essential principle of Eight from the debase
ment of the antinomian naturalism and arbitrary politi-
cality of Hobbes1 as well as from the extravagance of the
lawless and destructive individualism of Rousseau,2 while
conceding and even adopting what is substantially true
in the antagonistic theories of these epochal thinkers ;
and he has thereby given the birthright of Freedom
again, full-reasoned and certiorated, as ' a possession for
ever' to modern scientific thought. With widest and
1 Hobbes, De Give, 1642. Leviathan seu de civitate ecclesiastica et
civili, 1651. On Hobbes generally, see Professor Croom Robertson's
Monograph in 'Blackwood's Philosophical Classics.'
2 L'origine et les fondements de I'inegalite parnii les hommes, Dijon,
1751. Contrat social, 1762. Rousseau's writings were eagerly read by
Kant, and greatly influenced him. On Rousseau generally, see John
Morley's Rousseau, Lond. 1878.
TRANSLATOR'S PREFACE. \\
furthest vision, and with a wisdom incomparably superior
to the reactionary excitement of the great English
Orator,1 he looked calmly beyond ' the red fool-fury of
the Seine ' and all the storm and stress of the time, to
the sure realization of the one increasing purpose that
runs through the ages. The burden of years chilled
none of his sympathies nor dimmed any of his hopes for
humanity ; nor did any pessimistic shadow or murmur
becloud his strong poetic thought, or disturb ' the
mystical lore ' of his eventide. And thus at the close of
all his thinking, he made the Science of Eight the very
corner-stone of the social building of the race, and the
practical culmination of all Religion and all Philosophy.
It is not meant that everything presented here by
Kant is perfect or final. On the contrary, there is
probably nothing at all in his whole System of Philo
sophy — whose predominant characteristics are criticism, v
initiation, movement — that could be intelligently so
regarded ; and the admitted progress of subsequent
theories of Right, as briefly indicated above, may be
considered as conceding so much. It must be further
admitted of Kant's Science of Right that it presents
1 Burke is assigned to the Historical School of Jurisprudence by
Ahrens, who not inaptly designates him ' the Mirabeau of the anti-
revolution ' (i. 58). See the Reflections on the French Revolution (1790).
Stahl gives a high estimate of Burke as ' the purest representative of
Conservatism.'
Xvi KANT'S PHILOSOPHY OF LAW.
everywhere abundant opening and even provocation for
' Metacriticism ' and historical anticriticism, which have
certainly not been overlooked or neglected. But it is
meant withal that the Philosophy of Jurisprudence has
really flourished in the Nineteenth Century only where
Kant's influence has been effective, and that the higher
altitudes of jural science have only come into sight
where he has been taken as a guide. The great critical
thinker set the problem of Eight anew to the pure
Speculative Reason, and thus accomplished an intellec
tual transformation of juridical thought corresponding to
the revolutionary enthusiasm of liberty in the practical
sphere. It is only from this point of view that we can
rightly appreciate or estimate his influence and signifi
cance. The all-embracing problem of the modern meta
morphosis of the institutions of Society in the free State,
lies implicitly in his apprehension. And in spite of his
negative aspect, which has sometimes entirely misled
superficial students, his solution, although betimes tenta
tive and hesitating, is in the main faithful to the highest
ideal of humanity, being foundationed on the eternity of
Eight and crowned by the universal security and peace
of the gradually realized Freedom of mankind. As Kant
saved the distracted and confused thought of his time
from utter scepticism and despair, and set it again with
renewed youth and enthusiasm on its way, so his spirit
TKANSLATOK'S m:: xvii
seems to be -ain upon n- in this our hour of
need, with fresh healing in his win^s. ( hir Jurists must
thrrefore also join the ever increasing throng of contem
porary thinkers in the now general return to Kant.1 Their
principles are even more conspicuously at hazard than
any others, and the whole method of their science, long
dying of intellectual inanition and asphyxia, must seek
the conditions of a complete renovation. It is only thus,
too, that the practical Politician will find the guidance of
real principle in this agitated and troubled age in which
the foundations of Government as well as of Right are
so daringly scrutinised and so manifestly imperilled,2
and in which he is driven by the inherent necessary
1 ' The very cry of the hour is, Ficlite and Schelling are dead, and Hegel,
if not clotted nonsense, is unintelligible ; let us go back to Kant. See, v
too, in other countries, what a difference the want of Kant has made.1
Dr. J. H. Stirling, Mind, No. xxxvi. ' Within the last ten years many
voices have been heard, both in this country and in Germany, bidding us
return to Kant, as to that which is alone sound and hopeful in Philo
sophy ; that which unites the prudence of science with the highest
speculative enterprise that is possible without idealistic extravagances.'
Professor E. Caird, Journal of Speculative Philosophy, vol. xiv. 1, 126.
1 From Hegel, we must, I think, still return upon Kant, seeking fresh
hope for Philosophy in a continued use of the critical method.' Professor
Calderwood, Introduction to Kant's Mttaphynic of Ethic*, p. xix.
1 The Socialistic and Communistic Doctrines of Owen (1771-1858),
Fourier (1777-1837), Saint-Simon (1760-1825), Louis Blanc, Proudhon,
and Ciibet, * considered as aberrations in the development of Right,' an
sk- tdied by Ahrens (i. § 12) with his characteristic discrimination and
fid i ness. The principles of the contemporary English Socialism will be
xviii KANT'S PHILOSOPHY OF LAW.
implication of local politics to face the inevitable issue
of world- wide complications and the universal problem
of human solidarity. And thus only, as it now appears,
will it be possible to find a Principle that will at once
be true to the most liberal tendency of the time, and
yet do justice to its most conservative necessities.
Of criticism and comment, blind adulation and
unjust depreciation of Kant's system of Eight, there
has been, as already hinted, abundance and even more
than enough. Every philosophical Jurist has had to
define more or less explicitly his attitude towards the
Kantian standpoint. The original thinkers of the
dogmatic Schools — Fichte, Schelling,1 Hegel, and Krause,
found summed up in A Summary of the Principles of Socialism written
for the Democratic Federation, by H. M. Hyndman and William Morris
(1884). Compare also Hyndman's The Historical Basis of Socialism in
England, and To-day and Justice, the organs of the Social Democracy.
1 Schclling's contributions to the Science of Right have hardly
received the attention they deserve. The absorption of his thought in
the Philosophy of Nature left him less free to devote himself to the
Philosophy of History, but it is mainly to him that the idea of the
systematic objectivity and the organic vitality of the State, in
its latest forms, is due. Hegel and Krause have severally adopted
and developed the two sides of this conception. Compare Schelling's
Abhandiuny iiber das Naturrecht in Fichte and Niethammer's Journal,
iv. and v. ; and his Vorlesungen ilber die Methode des akademischcn
Ktudiums, p. 146, etc. See Stahl's excellent account of Schelling' s
Doctrine, Philosophic, des Rechts, i. 403-14, and The Journal of
Speculative Philosophy, vol. xiii. No. 3, vi., 'Schelling on History and
Jurisprudence.'
TRANSLATOR'S PIIEFACK. xix
—have made it the starting-point of their special efforts,
and have elaborated their own conceptions by positive or
negative reference to it. The recent Theological School
of Stahl and Baader, De Maistre and Bonald,1 represent
ing the Protestant and Papal reaction from the modern
autonomy of Reason, has yet left the Kantian principle
unshaken, and has at the best only formulated its doctrine
of a universal Divine order in more specific Christian
terms. The Historical School of Hugo and Savigny2
and Puchta,3 — which is also that of Bentham, Austin
1 Stahl and Baader represent the Neo-Schellingian standpoint in their
philosophical doctrines.— F. J. Stahl, Die Philosophic des Rechts, 3 Bdc.,
3 Auf. 1865 (an important and meritorious work).— Franz von Baader's
Summtliche Werke, 16 Bde. 1851-60. (Cf. Franz Hoffmann's Beleuchtuny
des Anrjri/s auf Baader in Thilo's Schrift : ' Die theologisikende Rechts-
und Staatslehre,' 1861.)— Joseph de Maistre, Soirees de St. Petersburg,
Paris, 1821. Memoires, etc., par A. Blanc, 1858.— L' Abbe de Bonald,
Legislation primitive, 1821.
1 Hugo (1768-1844) is usually regarded as the founder, and Savigny
(1778-1861) as the chief representative of the Historical School. Hugo,
Lchrbuch des Naturrechts als finer Philosophic des positiven Rechte,
1799, 3 Auf. 1820. Frederich Carl von Savigny, Vom Benif unserer
Ztit fiir Gexetzycbunri und Reclit8ici*aen*chaft , 1814 ; System des heutiyen
Romischen Rechls, 1840. (See Guthrie's translation of Savigny, Treatise
on the Conflict of Laws, with an excellent Preface. T. & T. Clark. )
8 The Historical School, as Ahrciis shows, must be carried back so as
to include such thinkers as Cujas, the great French Jurist of the 16th
century, who called the History of Right his ' hame9on d'or ; ' Mon-
ti-s.juicu (1689-1755), whose well-known book, UEnpr'd des Lois (1748),
ran through twenty-two editions in a few years ; and the Neapolitan Vico
(1688-1744), the founder of the ' New Science ' of History. Vico is only
im\v becoming properly appreciated. See Professor's Flint's able and
xx KANT'S PHILOSOPHY OF LAW.
and Buckle, Sir George C. Lewis and Sir Henry
Simmer Maine, and Herbert Spencer, — with all its
apparent antagonism, has only so far supplemented
the rational universality of Kant by the necessary
counterpart of an historical Phenomenology of the rise
and development of the positive legal institutions, as
the natural evolution and verification in experience of
the juridical conceptions.1 The conspicuous want of a
criterion of Eight in the application of the mere his-
instructive ' Vico ' in Blackwood's Philosophical Classics. ' In his work,
De universi juris uno principio et fine (1820), Vico divides the whole
Science of Right into three parts : (1) the Philosophy of Right, (2) the
History of Right, and (3) the Art of applying the Philosophy to facts.
He distinguishes profoundly in Laws the spirit or will of the legislator
(mens legis) and the reason of the law (ratio legis), which consists in the
accordance of a law with historical facts and with the eternal principles
of the True and Good ' (Ahrens). The contemporary Historical School
does not yet occupy so philosophical a position.
1 Sir Henry Sumner Maine, the most eminent English representative
of the Historical School, continues to regard ' the philosophy founded on
the hypothesis of a state of nature ' as ' still the greatest antagonist of the
Historical Method ' (Ancient Law, pp. 90, 91) ; but this is evidently said in
disregard of the transformation of Rousseau's theory by Kant, and the
contributions to the application of the Historical Method by Hegel and
his school, in whose principle the historic evolution is an essential
element. Sir H. S. Maine's own contributions cannot be too highly
recommended for their thoroughness and suggestiveness. He has gathered
much of his original and pregnant matter from direct acquaintance with
India, where, as is the case with the forms of nature, the whole genesis
and stratification of the forms of Society are presented livingly to view.
(Ancient Law, 1861, 7th ed. 1880. Village Communities in the East
and West, 4th ed. 1881. Early History of Institutions, 1874.)
TRANSLATORS I'KKFACE. XXI
Method to the manifold, contingent, and vari
able institutions of human society, has been often
signalized ; and the representatives of the School have
been driven again, especially in their advocacy of
political liberalism, upon the rational principles of
Freedom.1
The Civil Jurists who have carried the unreasoning
admiration of the Roman Law almost to the idolatry of
its letter, and who are too apt to ignore the movement
of two thousand years and all the aspirations of the
modern Reason, could not be expected to be found in
sympathy with the Rational Method of Kant. Their
multiplied objections to the details of his exposition,
from Schmitthenner 2 to the present day, are, however,
founded upon an entire misapprehension of the purpose
of his form. For while Kant rightly recognised the
1 Extremes meet in the moral indifference of the universal naturalism
of the ultra-historical School and the abstract absolute rationalism of
Spinoza. It was Grotius who first clearly distinguished between positive
fact and rational idea in the sphere of Right, and thus originated thn
movement of modern ' jural ' speculation. For evidence of the statement
in the text, see Bentham's Work*, Buckle's History of Civilisation, Mill
on Liberty, and especially Puchta's Encyclojxidie, introductory to hU
CursuH der Intttitutionen, 6 Auf. 1865. The standpoint of the Historical
School has been thoroughly reviewed by Stahl, i. 570-90 ; Ahrens, L
61-61 ; and Rbder, i. 266-279.
* ' Ueber den Charakter und die Aufgaben unserer Zeit in Beziehung auf
und Staatswissenschaft,' Giess. 1832. Zwblf Biicher vom Staate,
1839. See Rosenkranz's Ge*cliichtt dtr KanCurlfn Philosophic, p. 268.
xxii KANT'S PHILOSOPHY OF LAW.
Roman Law as the highest embodiment of the juridical
Reason of the ancient world, and therefore expounded
his own conceptions by constant reference to it, he
clearly discerned its relativity and its limitations ; and
he accordingly aims at unfolding everywhere through its
categories the juridical idea in its ultimate purity. In
Kant the juridical Idea first attains its essential self-
realization and productivity, and his system of Private
Right is at once freer and more concrete than the
Systems of Hobbes and Rousseau, because it involves
the ancient civil system, corrected and modernized by
regard to its rational and universal principles. This
consideration alone will meet a host of petty objections,
and guard the student against expecting to find in this
most philosophical exposition of the Principles of Right
a mere elementary text-book of the Roman Law.1
In England, Kant's Science of Eight seems as yet to
f
1 This remark especially applies to the running fire of criticism in Von
Kirchmann's recent Erlauterungen zu Kant's Metaphysilc der Sitten,
1882. It is a matter of regret that such criticisms cannot be here dealt
with in detail. Kant has himself clearly indicated the position stated
above, as at p. 54, infra.— The depth and subtlety of Kant's method, so
far transcending the common modes of juridical thinking in England, are
inseparable from the system, but he has himself given the sufficient reason
for their appearance in it (infra, p. 116). Without entering in detail
upon the point, the translator may remark with regard to one con
spicuous, yet irremoveable blot, that he homologates the unanimous
disapprobation of subsequent jurists, and would only refer to Dr.
Hutchison Stirling's drastic castigation of it in his Lectures, p. 51. But
TKANSLATOK'S I-KK; xxiii
have been little studied, and it has certainly exerted but
little influence on English Juridical Science. This has
no doubt been mainly due to the traditional habit of the
national mind, and the complete ascendancy during the
present century of the Utilitarian School of Bentham.1
The criterion of Utility found a ready application to the
more pressing interests of Political and Legal Reform,
and thus responding to the practical legislative spirit of
the time, its popular plausibilities completely obscured or
superseded all higher rational speculation. By Austin
the system was methodically applied to the positive
determination of the juridical conceptions ; under aid of
the resources of the German Historical School, with the
result that Eight was made the mere 'creature' of positive
law, and the whole Rational Method pretentiously con
demned as irrational ' jargon.' In Austin * we have only
of this and other difficulties in so original and originative a work i-an
only be said in the meantime :
' Sunt delicta tamen, quibus ignovisse velimus.'
And every reader and student should be ready to apply the Horatinn
rule here too :
' Verum ubi plura nitent . . . non ego paucis
Offendar maculis, quas aut incuria fiulit
Aut humana parum cavit natura.'
1 Fragment on Government, 1776. Essay on Political Tactics, 1791.
Principles of Morals and Legislation, 1780. Traite's de Legislation, 1802.
2 Province of Jurisprudence determined, or Philosophy of Positive Law,
1832. Lectures on Jurisprudence, edited by his Widow.
Austin (1790-1859) has been greatly overestimated as a Jurist by hi§
KANT'S PHILOSOPHY OF LAW.
' the positive outcome of Hobbes and Hume and Bentham.
The later forms of this legal positivism have not been
fruitful in scientific result, and the superficiality and
infutility of the standpoint are becoming more and more
apparent. Nor does the Utilitarian Principle,1 with all
friends and followers. The affectionate tributes of his widow may be
borne with, but it is more extraordinary to find Professor Sheldon Amos
characterizing him as ' the true founder of the Science of Law ' (S. Amos,
The Science of Law, p. 4). Here is Austin's estimate of Kant's Science.
of Right : ' A treatise darkened by a philosophy which, I own, is my aver
sion, but abounding, I must needs admit, with traces of rare sagacity. He
has seized a number of notions, complex and difficult in the extreme, with
distinction and precision which are marvellous, considering the scantiness
of his means. For of positive systems of law he had scarcely the
slightest tincture ; and the knowledge of the principles of jurisprudence,
which he borrowed from other writers, was drawn, for the most part, from
the muddiest sources ; from books about the fustian which is styled the
Law of Nature.' (Lecture*, iii. 157.) And here is his account of the
German Jurists generally .- ' It is really lamentable that the instructive
and admirable books which many of the German Jurists have certainly
produced, should be rendered inaccessible, or extremely difficult of access,
by the thick coat of obscuring jargon with which they have wantonly
incrusted their necessarily difficult science ' (ii. 405). Comment on this
is superfluous. In the same breath a more condemnatory judgment is dealt
out even to Sir W. Blackstone. So long as such statements passed as
philosophical criticism there was no possibility for a genuine Philosophy of
Law in England. Austin, notwithstanding his English reputation, is
entirely ignored by the German Jurists. He seems to have known only
enough of German to consult the more popular productions of the
Historical School. Dr. Hutchison Stirling has dealt with Austin's com
monplace Hedonism in a severe way, and yet not too severely, in his
Lectures on the Phllosoj)hy of Law (sub fin.}.
1 Utilitarianism has been the subject of, incessant discussion in England
down to its latest systematic exposition in Sidgwick's Methods of Ethics.
TRANSLATOR'S PKEI xxv
its seeming justice and humanity, appear capable of
longer satisfying the popular mind with its deepening
Consciousness of Right, or of resolving the more funda
mental political problems that are again coming into
view. In this connection we may quote and apply the
authority of Sir Henry Sumner Maine when he says : 1
'There is such widespread dissatisfaction with existing
theories of jurisprudence, and so general a conviction that
they do not really solve the questions they pretend to
dispose of, as to justify the suspicion that some line
of inquiry necessary to a perfect result has been in
completely followed, or altogether omitted by their
authors.' The present unsatisfactory condition of the
Science of Plight in England — if not in Scotland2 — could
not be better indicated.
On the Continent the system has also been carefully and ably reviewed by
Th. JouflVoy (Court de droit natural, 1835), Ahrens (i. 48, but less fully
in the later editions), I. II. Fichte (Die philoxophitchtn Lehren von Recht,
' und Sitte, 1850), De Wai (Prysverhandeling van het Natuurregt,
1833), and particularly by the Italian Jurists (Ruder, i. 108).
1 Ancient Law, p. 118.
2 Much more may be justly claimed for Scotland than for England
since the middle of the last century in regard to the cultivation of the
IMiilosophy of Right. The Scottish School of Philosophy started on this
side from Orotius and Thomasius. Gershom Carmichael edited Pufendorf
with praiseworthy notes. Hutchison discussed the doctrine of Right with
fulness and care in his System of Moral Philosophy (1755). Hume, in
consistency with the method of his Intellectual Philosophy, derationalized
thr conceptions of Justice and Right, and resolved them into empirical
products of public Utility (Treatise, on Human Natvre, 1739. E*say»,
XXVI KANTS PHILOSOPHY OF LAW.
In these circumstances, no other alternative is left for
us but a renewed and deepened appeal to the universal
V principle of Iteason, as the essential condition of all true
progress and certainty. And in the present dearth of
philosophical origination and the presence of the un-
assimilated products of well-nigh a century of thought, it
seems as if the prosecution of this Method of all methods
1742). Reid, leading the realistic reaction, examined this side of Hume's
speculation with his characteristic earnestness, and advanced by his
practical principle of Common Sense to positions akin to those of Kant's
Practical Reason (Active Powers, 1788, Essay V. c. iii. Of Systems of
Natural Jurisprudence, and the following chapters on Hume's Utili
tarianism). Henry Home, Lord Kames, prosecuted the same method
with more juridical knowledge (Principles of Equity ; Historical Law
Tracts, 1758 ; Sketches of the History of Man). The movement was
carried on by Adam Ferguson (Principles of Moral and Political Science,
1792 ; Essay on the History of Civ'd Society, 1767), Dugald Stewart (see
especially the account of the Grotian School in the Dissertation, 1815),
and Dr. Thomas Brown (Lectures). Sir James Mackintosh wrote a
Discourse on the Study of the Law of Nature and Nations, 1835. The
cultivation of the Philosophy of Law has never been extinct in the
Scottish Universities. Since the revival of the Chair of Public Law in
the University of Edinburgh in 1862, Professor Lorimer has done much
by his devotion and erudition to further the cultivation of the subject.
(See the reference to his own works, supra, xi. n. ) One of his pupils, Mr.
W. G. Miller, Lecturer on Public Law in the University of Glasgow, has
published a series of excellent Lectures on the subject, displaying exten
sive knowledge and critical acumen, with general regard to the Hegelian
standpoint (Lectures on the Philosophy of Law, designed mainly as an
introduction to the study of International Law, 1884). Professor Flint's
important work on the Philosophy of History in France and Germany,
and Professor Edward Caird's recent book on Comte's Social Philosophy,
may also be referred to in this connection.
TRANSLATOR'S PREFACE. xxvii
• an only now be fruitfully carried on by a return to
K«nt and advance through his System. Enough has
perhaps already been said to indicate the recognised
importance of the Kantian standpoint, and even to point
to the rich fields of thought and inquiry that open every
where around it to the student. Into these fields it was
the original intention of the translator to attempt to
furnish some more definite guidance by illustrative
comment and historical reference in detail, but this
intention must be abandoned meanwhile, and all the
more readily as it must be reckoned at the most but a
duty of subordinate obligation and of secondary import
ance. The Translation is therefore sent forth by itself in
reliance upon its intelligibility as a faithful rendering of
the original, and in the hope that it will prove at once a
help to the Students and an auxiliary to the Masters of
our present juridical science. "W. II.
EDINBURGH, Jamtary 1887.
BIBLIOGRAPHICAL NOTE.
K.'II.KH remarks (i. 254) that by far the most of the later philosophical
is on Natural Right — ' nomen illis leyio! ' — follow the system of Kant
ami Fichtc, which is in the main identical in principle with that of
Thomasius. It was impossible to refer to them in detail in these pre
fatory remarks, but it may be useful to quote the following as the more
xxviii KANT'S PHILOSOPHY OF LAW.
important works on the subject from this standpoint since the appearance
•if Kant's Rechtalchre : —
A. Mellin, Grundlegung zur Metaphysik der Rechte, 1796.
P. J. A. Feuerbach, Kritik des natiirlichen Rechts, 1796.
H. Stephani, Grundlinien der Rechtswissenschaft, 1797.
Ph. Schmutz, Erklarung der Rechte des Menschen u. des Burgers,
1798. Handbuch der Rechtsphilosophie, 1807.
R. Gerstacker, Metaphysik des Rechts, 1802.
L. Bendavid, Versuch eincr Rechtslehre, 1802.
K. H. v. Gros, Lehrbuch des Naturrechts, 1802. 6 Ausg. 1841.
Fries, Philosophische Rechtslehre u. Kritik aller positiven Gesetz
Gebung, 1803.
L. N. Jacob, Philosophische Rechtslehre, 2 A. 1802.
K. S. Zacharia, Anfangsgriinde der Philosoph. Privatrechts, 1804.
Philosophische Rechtslehre o. Naturrecht u. Staatslehre, 1819.
Vierzig Bucher vom Staate, 1839-43.
Chr. Weiss, Lehrbuch der Philosophic des Rechts, 1804.
A. Bauer, Lehrbuch des Naturrechts, 1808. 3 Ausg. 1825.
J. C. F. Meister, Lehrbuch des Naturrechts, 1809.
Dresch, Systematische Entwickelung der Grundbegriffe u. Grundpriu-
zipien des gesammten Privatrechts, Staatsrechts, und Volkerrechts
1810, 1822.
V. Zeiller, Naturrecht, 1813.
W. F. Krug, Dikiiologie oder philosophische Rechtslehre, 1817, 1830.
Eschenmeyer, Normalrecht, 2 Thle. 1819.
S. Beck, Lehrbuch des Naturrechts, 1820.
V. Droste-Hiilshoff, Lehrbuch des Naturrechts o. der Rechtsphilo
sophie, 1823, 1831.
Pblitz, Natur- und Volkerrecht, Staats- und Staatenrecht, 1823, 1825.
J. Haus, Elementa doctrinse philosophic sive juris naturalis. Gondavi
1824.
K. von Rotteck, Lehrbuch des Vernunftrechts und der Staatswissen-
schaft, 4 Bde. 1829-34, 1841.
Ant. Virozsil, Epitome juris naturalis. Pesthini, 1839.
F. Fischer, Naturrecht und natiirliche Staatslehre, 1848.
G. Schilling, Lehrbuch des Naturrechts, 1859.
TRANSLATOR'S PREFACE. xxix
l!'->iJea these a considerable number of similar German works might b«
referred to by Schaumann, Heydenreich, Klein, A. Thomas, Weiss, J. K.
S.-hmid, T. M. Zacharia, Stbckhardt, E. Reinhold, Schnabel, Pfitzer, and
others.
Of the French works, from the Kantian standpoint, may be quoted
(Ahrens, i. 326) :—
M. Bussart, Elements de droit naturel prive*. Fribourg en Suisse, 1836.
V. Belime, Philosophic du droit. Paris, 1844, 4 ed. 1881.
In Italy, where the Philosophy of Law has been cultivated ' with great
zeal and intelligence' (Ahrens, i. 327 ; Roder, Krit. Zeitschrift fur Rechte-
tciss. xv. 1, 2, 3), the Kantian system has been ably discussed by Mancini,
Mamiani, Rosmini, Poli, and others. Its chief representatives have been —
Baroli, Diritto naturale private e publico, 6 vol. Cremona, 1837.
Tolomei, Corso elementare di diritto naturale, 2 ed. Padova, 1855.
Soria di Crispan, Filosofia di diritto publico. (Philosophic du droit
public. Brux. 1853-4.) Transl. into French.
Rosmini-Serbati, Filosofia del diritto, 1841. (In part Kantian.)
[Since writing the foregoing Preface there has come to hand the import
ant work, ' La Vita del Diritto, nei suoi rapporti colla Vita Sociale :
Studio comparative di Filosofia Giuridica. Per Giusseppe Carle, Pro-
fessore ordinario di Filosofia de Diritto nella R. Universita di Torino.'
Its comprehensive method and profound insight add to the already ample
evidence of the ' great zeal and intelligence ' with which the Philosophy
of Law is now being cultivated by the countrymen of Vico, the natural
successors of Antistius Labeo, and Papinian. Professor Curie points out
the relation of Kant not only to Rosmini, but also to Mamiani and others.
Hit view of the importance and influence of the Kantian System is in
accord with the brief indications ventured in these Prefatory hints. It is
impossible to quote his exposition here, but attention may be directed to
P. ii. L. i. Cap. ii. § 3, * Emmanuele Kant come iniziatore del metodo
rationale nello studio del diritto naturale ; ' and L. ii. Cap. v. ' Ulteriore
svolgimento,' etc. — TK.]
CONTEXTS.
KANT'S METAPHYSICAL PRINCIPLES OF THE
SCIENCE OF RIGHT.
PAor
I'l.i.i ATOUY EXPLANATIONS, ..... 3
PROLEGOMENA
GENERAL IHTRODUCTION TO THE METAPHYSIC OF MORALS.
vl. Relations of the Faculties of the Human Mind to the Moral
Laws, ....... 9
v II. The Idea and Necessity of a Metaphysic of Morals, . . If.
III. The Division of a Metaphysic of Morals, ... 20
GENERAL DIVISIONS OF THE METAPHYSIC OF MORALS.
I. Division of the Metaphysic of Morals as a System of Duties
generally, . . . . . . .21
II. Division of the Metaphysic of Morals according to Relations
of Obligation, ...... 2f>
ylll. Division of the Metaphysic of Morals according to its Prin
ciples and Method, ...... 27
yiV. General Preliminary Conceptions defined and explained, . 28
INTRODUCTION TO THE SCIENCE OF RIGHT.
GENERAL DEFINITIONS AND DIVISIONS.
A What the Science of Right is, . . . .4:?
-E. What is Right? ...... 44
> C. Universal Principle of Right, . . . 45
D. Ki^ht is conjoined with the Title to compel, ... 47
rict Right ; Compulsion, Freedom, Universal Laws, 47
i'plrmentary Remarks on Equivocal Right, . .60
I. Equity, •. f>0
II. Tin- Ri-ht
XXxil CONTEXTS.
DIVISION OF THE SCIENCE OF EIGHT.
PAGE
A. General Division of the Duties of Right, . . 54
B. Universal Division of Rights, .
I. Natural Right and Positive Right, . 55
II. Innate Right and Acquired Right, . 55
v There is only one Innate Right, the Birthright of
Freedom, . . • 56
X C. Methodical Division of the Science of Right, ... 58
THE SCIENCE OF EIGHT.
PART FIRST : PRIVATE RIGHT.
THE SYSTEM OF THOSE LAWS WHICH REQUIRE NO
EXTERNAL PROMULGATION.
THE PRINCIPLES OF THE EXTERAL MINE AND THINE.
PRIVATE RIGHT.
CHAPTER FIRST.
OF THE MODE OF HAVING ANYTHING EXTERNAL AS ONE'S OWN.
1. The Meaning of ' Mine ' in Right, .... 61
2. Juridical Postulate of the Practical Reason, ... 62
3. Possession and Ownership, . . . . .64
4. Exposition of the Conception of the External Mine and
Thine, . . . . . . .64
5. Definition of the Conception of the External Mine and
Thine, ....... 66
6. Deduction of the Conception of Juridical Possession of an
External Object, ...... 67
7. Application of the Principle of the possibility of an External
Mine and Thine to Objects of Experience, ... 72
8. To have anything External as one's own is only possible in a
Juridical or Civil State of Society, .... 76
9. An External Mine and Thine in the State of Nature only
provisory, . . . . . . .78
CHAPTER SECOND.
THE MODE OF ACQUIRING ANYTHING EXTERNAL.
10. The General Principle of External Acquisition, . , 81
CONTENTS. XXX111
FIRST SECTION : PRINCIPLES OF REAL RIGHT.
PAGE
11. What is a Real Right?
12. The First Acquisition of a Thing can only be that of the
Soil -7
13. Every part of the Soil may be originarily acquired, .
14. The Juridical Act of this original Acquisition is Occupancy, . 89
15. Peremptory and Provisory Acquisition, ... 90
16. Conception of a Primary Acquisition of the Soil, . . 94
17. Deduction of the Conception of original primary Acquisition, 95
Property, . . . . . . .98
SECOND SECTION : PRINCIPLES OF PERSONAL RIGHT.
13. Nature and Acquisition of Personal Right, . . .100
19. Acquisition by Contract, . . . . .101
20. What is acquired by Contract ? . . . .104
21. Acceptance and Delivery, ..... 105
THIRD SECTION : PRINCIPLES OF PERSONAL RIGHT THAT
is REAL IN KIND.
22. Nature of Personal Right of a Real Kind, . . .108
23. What is acquired in the Household, . . . .109
RIGHTS OF THE FAMILY AS A DOMESTIC SOCIETY.
TITLE FIRST : CONJUGAL RIGHT (Husband and Wife).
24. The Natural Basis of Marriage, . . . .109
25. The Rational Right of Marriage, . . . .110
26. Monogamy and Equality in Marriage, . . . Ill
27. Fulfilment of the Contract of Marriage, . . . 113
TITLE SECOND : PARENTAL RIGHT (Parent and Child).
28. The Relation of Parent and Child, . . . .114
29. The Rights of the Parent, . . . . .116
TITLE THIRD : HOUSEHOLD RIGHT (Master and Servant).
30. Relation and Right of the Master of a Household, . .118
XXXIV CONTEXTS.
SYSTEMATIC DIVISION OF ALL THE RIGHTS CAPABLE OF
BEING ACQUIRED BY CONTRACT.
PAGE
81. Division of Contracts, .
Illustrations: I. What is Money ? . . 125
II. What is a Book? . 129
The Unauthorized Publishing of Books, . 130
Confusion of Personal Right and Real Right, . 131
EPISODICAL SECTION : THE IDEAL ACQUISITION OF
EXTERNAL OBJECTS OF THE WILL.
32. The Nature and Modes of Ideal Acquisition, . . 132
33. I. Acquisition by Usucapion, . 133
34. II. Acquisition by Inheritance, .... 136
35. III. The Right of a good Name after Death, . . .138
CHAPTER THIRD.
ACQUISITION CONDITIONED BY THE SENTENCE OF A
PUBLIC JUDICATORY.
36. How and what Acquisition is subjectively conditioned by
the Principle of a Public Court, . . . .141
37. I. The Contract of Donation, .... 143
38. II. The Contract of Loan, ..... 144
39. III. The Revindication of what has been Lost, . . 147
40. IV. Acquisition of Security by taking of an Oath, . . 151
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, . 155
42. The Postulate of Public Right, , . . . . 157
CONTENTS. XXXV
PART SECOND: PUBLIC RIGHT.
THE SYSTEM OF THOSE LAWS WHICH REQUIRE
PUBLIC PROMULGATION.
THE PRINCIPLES OF RIGHT IN CIVIL SOCIETY.
PAUK
43. Definition and Division of Public Right, . . . 1G1
PUBLIC RIGHT.
I. RIGHT OF THE STATE AND CONSTITUTIONAL LAW.
44. Origin of the Civil Union and Public Right, . . .163
45. The Form of the State and its Three Powers, . . 16r>
46. The Legislative Power and the Members of the State, . 166
47. Dignities in the State and the Original Contract, . . 169
48. Mutual Relations and Characteristics of the Three Powers, . 170
49. Distinct Functions of the Three Powers. Autonomy of the
State, . . . . . 171
CONSTITUTIONAL AND JURIDICAL CONSEQUENCES ARISING
FUOM THE NATURE OF THE CIVIL UNION.
A. Right of the Supreme Power. Treason ; Dethronement ;
Revolution ; Reform, ..... 174
B. Land Rights. Secular and Church Lands. Rights of
Taxation ; Finance ; Police ; Inspection, . . 182
C. Relief of the Poor. Foundling Hospitals. The Church, 186
D. The Right of assigning Offices and Dignities in the
State, 190
E. The Right of Punishing and of Pardoning, . . 194
50. Constitutional Relations of the Citizen to his Country and to
other Countries. Emigration ; Immigration ; Banish
ment ; Exile, ...... 205
51. The Three Forms of the State. Autocracy ; Aristocracy ;
Democracy, ....... 206
52. Historical Origin and Changes. A Pure Republic. Repre
sentative Government, ..... 208
II. THE RIGHT OF NATIONS AND INTERNATIONAL LAW.
53. Nature and Division of the Right of Nations, . .213
f,4. The -Elements of the Right of Nations, . . .214
1 ;:.-{ht of going to War as related to the Subjects of the State, 215
lit of going to War in relation to Hostile States, . . 218
xx xvi CONTENTS.
57. Right during War, ... . '219
58. Right after War, ...... 221
f>9. The Rights of Peace, ...... 222
HO. Right as against an unjust Enemy, .... 223
61. Perpetual Peace and a Permanent Congress of Nations, . 224
III. THE UNIVERSAL RIGHT OF MANKIND.
62. Nature and Conditions of Cosmopolitical Right, . . 226
CONCLUSION, ....... 229
SUPPLEMENTARY EXPLANATIONS OF
PETNCIPLES OF EIGHT.
OCCASION AND OBJECT OF THESE SUPPLEMENTARY EXPLANATIONS.
Objection as to the Faculty of Desire, .... 234
I. Logical Preparation for the preceding Conception of Right, 235
II. Justification of the Conception of a Personal Right of a
Real Kind, 237
III. Examples of Real-Personal Right, . . . .238
IV. Confusion of Real and Personal Right, . . . 241
V. Addition to the Explanation of the Conception of Penal
Right, ....... 243
VI. On the Right of Usucapion, .... 245
VII. On Inheritance and Succession, .... 247
VIII. The Right of the State in relation to Perpetual Founda
tions for the benefit of the Subjects, . . . 249
A. Hospitals, ...... 250
B. Churches, ...... 251
C. The Orders in the State, .... 253
D. Primogeniture and Entail, .... 254
IX. Concluding Remarks on Public Right and Absolute Submis
sion to the Sovereign Authority, .... 255
APOLOGIA.
Kant's Vindication of his Philosophical Style, . . . 259
THE METAPHYSICAL PRINCIPLES
OF
THE SCIENCE OF EIGHT
AS CONTAINED IN
THE METAPHYSK; OF MORALS.
BY
IMMANUEL KANT.
2Translatft» from tfjc (German.
PREFATORY EXPLANATIONS.
THE METAPHYSIC OF MORALS, as constituting the System
of Practical Philosophy, was to follow the ' Critique of
the Practical Reason,' as it now does. It falls into two
parts: (1) THE METAPHYSICAL PRINCIPLES OF JURIS
PRUDENCE AS THE SCIENCE OF EIGHT, and (2) THE META
PHYSICAL PRINCIPLES OF ETHICS AS THE SCIENCE OF
VIRTUE. The whole System forms a counterpart to the
' Metaphysical Principles of the Science of Nature/ which
have been already discussed in a separate work (1786).
The General Introduction to the ' Metaphysic of Morals '
bears mainly on its form in both the Divisions ; and the
Definitions and Explanations it contains exhibit and, to
some extent, illustrate the formal Principles of the whole
System.
THE SCIENCE OF PtiGHT as a philosophical exposition
of the fundamental Principles of Jurisprudence, thus
forms the First Part of the Metaphysic of Morals. Taken
here by itself — apart from the special Principles of Ethics
as the Science of Virtue which follows it — it has to be
4 KANT'S PREFATORY EXPLANATIONS.
treated as a System of Principles that originate in Reason ;
and, as such, it might be properly designated ' The Meta-
physic of Right' But the conception of Right, purely
rational in its origin though it be, is also applicable to
cases presented in experience ; and, consequently, a
Metaphysical System of Rights must take into considera
tion the empirical variety and manifoldness of these cases
in order that its Divisions may be complete. For com
pleteness and comprehensiveness are essential and indis
pensable to the formation of a rational system. But, on
the other hand, it is impossible to obtain a complete
survey of all the details of experience, and where it may
be attempted to approach this, the empirical conceptions
embracing those details cannot form integral elements of
the system itself, but can only be introduced in subordinate
observations, and mainly as furnishing examples illustrative
of the General Principles. The only appropriate designa
tion for the First Part of a Metaphysic of Morals, will,
therefore, be THE METAPHYSICAL PRINCIPLES OF THE
SCIENCE OF RIGHT. And, in regard to the practical appli
cation to cases, it is manifest that only an approximation
to systematic treatment is to be expected, and not the
attainment of a System complete in itself. Hence the
same method of exposition will be adopted here as was
followed in the former work on ' The Metaphysical Prin
ciples of the Science of Nature.' The Principles of Right
which belong to the rational system will form the leading
M'S I'UEFATOllY EXPLANATIONS. 5
portions of the text, and details connected with Eights
which refer to particular cases of experience, will be
appended occasionally in subordinate remarks. In this
way a distinction will be clearly made between what is a
Metaphysical or rational Principle, and what refers to the
empirical Practice of Plight
Towards the end of the work, I have treated several
sections with less fulness of detail than might have been
expected when they are compared with what precedes
them. But this has been intentionally done, partly
because it appears to me that the more general principles
of the later subjects may be easily deduced from what has
gone before; and, also, partly because the details of the
Principles of Public Plight are at present subjected to so
much discussion, and are besides so important in them
selves, that they may well justify delay, for a time, of a
final and decisive judgment regarding them.
PROLEGOMENA.
GENERAL INTRODUCTION
TO
THE METAPHYSIC OF MORALS.
GENERAL INTRODUCTION TO THE
METAPHYSIC OF MORALS.
THE RELATION OF THE FACULTIES OF THE HUMAN MIND
TO THE MORAL LAWS.
The Practical Faculty of Action. — THE ACTIVE FACULTY
OF THE HUMAN MIND, as the Faculty of Desire in its widest
sense, is the Power which man has, through his mental
representations, of becoming the cause of objects corre
sponding to these representations. The capacity of a
IJeing to act in conformity with his own representations,4'
is what constitutes the Life of such a Being.
The Feeling of Pleasure or Pain. — It is to be observed,
first, that with Desire or Aversion there is always con
nected PLEASURE or PAIN, the susceptibility for which is
called FEELING. But the converse does not always hold.
For there may be a Pleasure connected, not with the
desire of an object, but with a mere mental represen
tation, it being indifferent whether an object correspond
ing to the representation exist or not And, second, the
-ure or Pain connected with the object of desire
not always precede the activity of Desire ; nor can
it be regarded in every case as the cause, but it may
.'•11 be the Effect of that activity. The capacity
periencing Pleasure or Pain on the occasion of u
10 KANT'S PHILOSOPHY OF LAW.
mental representation, is called ' Feeling,' because Plea
sure and Pain contain only what is subjective in the
relations of our mental activity. They do not involve
any relation to an object that could possibly furnish a
knowledge of it as such; they cannot even give us a
knowledge of our own mental state. For even Sensa
tions,1 considered apart from the qualities which attach to
them on account of the modifications of the Subject, — as,
for instance, in reference to Eed, Sweet, and such like, —
are referred as constituent elements of knowledge to
Objects, whereas Pleasure or Pain felt in connection with
what is red or sweet, express absolutely nothing that is
in the Object, but merely a relation to the Subject.
And for the reason just stated, Pleasure and Pain con
sidered in themselves cannot be more precisely defined.
All that can be further done with regard to them is
merely to point out what consequences they may have
in certain relations, in order to make the knowledge of
them available practically.
1 The Sensibility as the Faculty of Sense, may be defined by reference to
the subjective Nature of our Representations generally. It is the Under
standing that first refers the subjective Representations to an object ; it
alone thinks anything by means of these Representations. Now, the subjec
tive nature of our Representations might be of such a kind that they could
be related to Objects so as to furnish knowledge of them, either in regard
to their Form or Matter — in the former relation by pure Perception, in
the latter by Sensation proper. In this case the Sense-faculty, as the
capacity for receiving objective Representations, would be properly called
Sense-perception. But mere mental Representation from its subjective
nature cannot, in fact, become a constituent of objective knowledge,
because it contains merely the relation of the Representations to the
Subject, and includes nothing that can be used for attaining a knowledge
of the object. In this case, then, this receptivity of the Mind for sub
jective representations is called FEELING. It includes the effect of the
Representations, whether sensible or intellectual, upon the Subject ; and
it belongs to the Sensibility, although the Representation itself may
belong to the Understanding or the Reason.
THE MKTAPIIYSIC OF MORALS. 11
Practical Pleasure, Interest, Inclination. — The Pleasure,
which is necessarily connected with the activity of Desire,
when the representation of the object desired affects the
rapacity of Feeling, may be called Prcictical Pleasure.
And this designation is applicable whether the Measure
is the cause or the effect of the Desire. On the other
hand, that Pleasure which is not necessarily connected
with the Desire of an object, and which, therefore, is not
a pleasure in the existence of the object, but is merely
attached to a mental representation alone, may be called
Inactive Complacency, or mere Contemplative Pleasure. The
Feeling of this latter kind of Pleasure, is what is called
Taste. Hence, in a System of Practical Philosophy, the
Contemplative Pleasure of Taste will not be discussed as
an essential constituent conception, but need only be
referred to incidentally or episodically. But as regards
Practical Pleasure^ it is otherwise. For the determina-
t ion of the activity of the Faculty of Desire or Appe
tency, which is necessarily preceded by this Pleasure
as its cause, is what properly constitutes DESIRE inf
the strict sense of the term. PfaBitual Desire, again,
and the connection of Plea
sure with the activity of Desire, in so far as this
roiinection is judged by the Understanding to be
valid according to a general Rule holding good at
for the individual, is what is called Interest.
Hence, in such a case, the Practical^ Pleasure is an
est of the. Inclination of the individual. On
other hand, if the Pleasure can only follow a pre
ceding determination of the Faculty of Desire, it is an
Intellectual Pleasure, and the interest in the object must
II 1 a "rational Interest; for were the Interest
lous, and not based only upon pure Principles of
1 2 KANT'S PHILOSOPHY OF LAW.
Eeason, Sensation would necessarily be conjoined with
the Pleasure, and would thus determine the activity of
the Desire. Where an entirely pure Interest of Eeason
must be assumed, it is not legitimate to introduce into it
an Interest of Inclination surreptitiously. However, in
order to conform so far with the common phraseology,
we may allow the application of the term ' Inclination '
even to that which can only be the object of an ' Intel-
J lectual ' Pleasure in the sense of a habitual Desire
, arising from a pure Interest of Eeason. But such
| Inclination would have to be viewed, not as the Cause,
I but as the Effect of the rational Interest ; and we might
call it the non- sensuous or RATIONAL INCLINATION (pro-
pensio intellectualis). — Further, Concupiscence is to be dis
tinguished from the activity of Desire itself, as a stimulus
or incitement to its determination. It is always a sen-
vsuous state of the mind, which does not itself attain to
the definiteness of an act of the Power of Desire.
The Will generally as Practical Reason. — The activity
of the Faculty of Desire may proceed in accordance with
Conceptions ; and in so far as the Principle thus deter
mining it to action is found in the mind, and not in its
object, it constitutes a Power of acting or not acting
according to liking. In so far as the activity is accom
panied with the Consciousness of the Power of the
action to produce the Object, it forms an act of Choice ;
if this consciousness is not conjoined with it, the
Activity is called a Wish. The Faculty of Desire, in so
far as its inner Principle of determination as the ground
' of its liking or Predilection lies in the Eeason of the
Subject, constitutes THE WILL. The Will is therefore
the Faculty of active Desire or Appetency, viewed not
so much in relation to the action — which is the relation
THE METAI'HYSIC OF MORALS. 13
of the act of Choice — as rather in relation to the Principle
that determines the power of Choice to the action. It
has, in itself, properly no special Principle of determina
tion, but in so far as it may determine the voluntary act
of Choice, it is THE PRACTICAL REASON ITSELF.
The Will as the Faculty of Practical Principles. _
Under the Will, taken generally, may be included the
volitional act of Choice, and also the mere act of Wish,
in so far as Reason may determine the Faculty of Desire
in its activity. The act of Choice that can be determined
by pure Reason, constitutes the act of Free-will. That
act which is determinable only by Inclination as a
sensuous impulse or stimulus would be irrational brute
Choice (arbitrium brufatm). The human act of Choice,
however, as human, is in fact affected by such impulses orV
stimuli, but is not determined by them ; and it is, there-
fore, not pure in itself when taken apart from the
acquired habit of determination by Reason. But it may
be determined to action by the pure Will. The Freedom
of the act of volitional Choice, is its independence of
being determined by sensuous impulses or stimuli. This
forms the negative conception of the Free-will. The
/ ^jOoncepficrot freedom is given by the fact that
tin- Will is the capability of Pure Reason to be practical
of itself. But this is not possible otherwise than by the
M .im of every action being subjected to the condition
of being practicable as a universal Law. Applied as
Purr Reason to the act of Choice, and considered aparl
from its objects, it may be regarded as the Faculty of
and, in this connection, it is the source of
.
Piif ticil Principles. Hencejt isjtp be viewed as a law-;4
giving Faculty. But as the material upon which to
' ruct a~Taw is not furnished to it, it can only make
14 KANT'S PHILOSOPHY OF LAW.
Vthe/orw of the Maxim of the act of Will, in so far as
it is available as a universal Law, the supreme Law and
I ; determining Principle of the Will. And as the Maxims,
or Rules of human action derived from subjective causes,
'do not of themselves necessarily agree with those that
^are objective and universal, Eeason can only prescribe
ithis supreme Law as an absolute Imperative of prohibi
tion or command.
The Laws of Freedom as Moral, Juridical, and Ethical.—
The Laws of Freedom, as distinguished from the Laws
of Nature, are moral Laws. So far as they refer only
"» to external actions and their lawfulness, they are called
Juridical ; but if they also require that, as Laws, they
£ shalT themselves be the determining Principles of our
Q actions, -they are Ethical. The agreement of an action
with Juridical Laws, is its Legality ; the agreement of
/ an action with Ethical Laws, is its Morality. The Free-
a dom to which the former laws refer, can only be Freedom
in external practice ; but the Freedom to which the
/ latter laws refer, is Freedom in the internal as^ well as
the external exercise of the activity of the Will in so
far as it is determined by Laws of Reason. So, in
Theoretical Philosophy, it is said that only the objects
of the external senses are in Space, but all the objects
both of internal and external sense are in Time ; because
the representations of both, as being representations, so
far belong all to the internal sense. In like manner,
whether Freedom is viewed in reference to the external
or the internal action of the Will, its Laws, as pure
practical Laws of Reason for the free activity of the
Will generally, must at the same time be inner Prin
ciples for its determination, although they may not
always be considered in this relation.
THE METAPHYSIC OF MOKALS. 15
II.
THE IDEA AND NECESSITY OF A METAPHYSIC OF MORALS.
The Laws of Nature Rational and also Empirical. — It
has been shown in The Metaphysical Principles of the
Science of Nature, that there must be Principles ft priori ^
for the Natural Science that has to deal with the objects
i»i the external senses. And it was further shown that
it is possible, and even necessary, to formulate a System
of these Principles under the name of a ' Metaphysical
Srjfuce of Nature/ as a preliminary to Experimental
Physics regarded as Natural Science applied to particular
objects of experience] But this latter Science, if care
be taken to keep its generalizations free from error, may
accept many propositions as universal on the evidence of
»• \j.< -Hence, although if the term ' Universal ' be taken in
its strict sense, these would necessarily have to be
deduced by the Metaphysical Science from Principles a
priori. Thus Newton accepted the principle of the
K«(uality of Action and Reaction as established by ex- ^
perience, and yet he extended it as a universal Law
the whole of material Nature. The Chemists go
even farther, grounding their most general Laws regard
ing the combination and decomposition of the materials
of bodies wholly upon experience ; and yet they trust so
completely to the Universality and Necessity of those laws,
that they have no anxiety as to any error being found
in propositions founded upon experiments conducted in
an ,>]•< hmoe with them.
Moral Laws a priori and Necessary. — But it is other-
with Moral Laws. These, in contradistinction to
Natural Laws, are only valid as Laws, in so far as they
1 6 KANT'S PHILOSOPHY OF LAW.
can be rationally established & priori and comprehended
as necessary. In fact, conceptions and judgments regard
ing ourselves and our conduct have no moral significance,
if they contain only what may be learned from experi
ence ; and when any one is, so to speak, misled into
making a Moral Principle out of anything derived from
this latter source, he is already in danger of falling into
the coarsest and most fatal errors.
If the Philosophy of Morals were nothing more than
a Theory of Happiness (Eudwmonism), it would be
absurd to search after Principles a priori as a foundation
for it. For however plausible it may sound to say that
lieason, even prior to experience, can comprehend by what
means we may attain to a lasting enjoyment of the real
pleasures of life, yet all that is taught on this subject
a priori is either tautological, or is assumed wholly
without foundation. It is only Experience that can
show what will bring us enjoyment. The natural im
pulses directed towards nourishment, the sexual instinct,
or the tendency to rest and motion, as well as the higher
desires of honour, the acquisition of knowledge, and such
like, as developed with our natural capacities, are alone
capable of showing in what those enjoyments are to be
found. And, further, the knowledge thus acquired, is
available for each individual merely in his own way ;
and it is only thus he can learn the means by which he
has to seek those enjoyments. All specious rationalizing
<:> priori, in this connection, is nothing at bottom but
carrying facts of Experience up to generalizations by
induction (secundum principia yeneralia non univcrsalia) ;
and the generality thus attained is still so limited that
numberless exceptions must be allowed to every indi
vidual in order that he may adapt the choice of his
THE METAPIIYSIC OF MORALS. 17
«• of life to his own particular inclinations and his
rapacity for pleasure. And, after all, the individual
really to acquire his Prudence at the cost of his own
suffering or that of his neighbours.
But it is quite otherwise with the Principles oft-
Morality. They lay down Commands for every one
without regard to his particular inclinations, and merely
because and so far as he is free, and has a practical
Reason. Instruction in the Laws of Morality is not
drawn from observation of oneself or of our animal
nature, nor from perception of the course of the world
in regard to what happens, or how men act.1 But
Reason commands howjve_ ought to act, even although
no example of such action were to be found ; nor does
Reason give any regard to the Advantage which mayi/
accrue to us by so acting, and which Experience could alone
actually show. For, although Reason allows us to seek
what is for our advantage^m" every possible way, and
although, founding upon the evidence of Experience, it may
further promise that greater advantages will probably
follow on the average from the observance of her commands
than from their transgression, especially if Prudence guides
the conduct, yet the authority of her precepts as Commands
does not rest on such considerations. They are used by
•>n only as Counsels, and by way of a counterpoise
a - a i nst seductions lo ~an opposite course, when adjusting
beforehand the equilibrium of a partial balance in the
sphere of Practical Judgment, in order thereby to secure
tin- decision of this Judgment, according to the due weight
>• a priori Principles of a pure Practical Reason.
1 This holds notwithstanding the fart that the term 'Morals,' in Latin
and in German Sitten, signifies originally only Manners or Mode
'
B
18 KAXT'S PHILOSOPHY OF LAW.
The Necessity of a Metaphysic of Morals. — 'META
PHYSICS' designates any System of Knowledge a priori
that consists of pure Conceptions. Accordingly a
Practical Philosophy not having Nature, but the Free
dom of the Will for its object, will presuppose and
require a Metaphysic of Morals. It is even a Duty
to have such a Metaphysic ; and every man does, indeed,
possess it in himself, although commonly but in an
obscure way. For how could any one believe that he
has a source of universal Law in himself, without Prin
ciples a priori ? And just as in a Metaphysic of Nature
there must be principles regulating the application of
the universal supreme Principles of Nature to objects
of Experience, so there cannot but be such principles in
the Metaphysic of Morals; and we will often have to deal
objectively with the particular nature of man as known
only by Experience, in order to show in it the conse
quences of these universal Moral Principles. But this
mode of dealing with these Principles in their particular
applications will in no way detract from their rational
purity, or throw doubt on their a priori origin. In other
words, this amounts to saying that a Metaphysic of
Morals cannot be founded on Anthropology as the
Empirical Science of Man, but may be applied to it.
Moral Anthropology. — The counterpart of a Metaphysic
of Morals, and the other member of the Division of
Practical Philosophy, would be a Moral Anthropology, as
the Empirical Science of the Moral Nature of Man. This
Science would contain only the subjective conditions
that hinder or favour the realization in practice of the
universal moral Laws in human Nature, with the means
of propagating, spreading, and strengthening the Moral
Principles, — as by the Education of the young and the
THE METAPHYSIC OF MORALS. 19
instruction of the people,— and all other such doctrines
and precepts founded upon experience and indispensable
in themselves, although they must neither precede the
metaphysical investigation of the Principles of Reason,
nor be mixed up with it. For, by doing so, there would
be a great danger of laying down false, or at least very
flexible Moral Laws, which would hold forth as unattain
able what is not attained only because the Law has not
bet -n comprehended and presented in its purity, in which
also its strength consists. Or, otherwise, spurious and
mixed motives might be adopted instead of what is
dutiful and good in itself; and these would furnish no
certain Moral Principles either for the guidance of the
Judgment or for the discipline -of the heart in the
pni.-tice of Duty. It is only by Pure Reason, therefore,
that Duty can and must be prescribed.
Practical Philosophy in relation to Art. — The higher
Division of Philosophy, under which the Division just
mentioned stands, is into Theoretical Philosophy and
Pruetical Philosophy. Practical Philosophy is just Moral
Philosophy in its widest sense, as has been explained
..here.1 All that is practicable and possible, accord
ing to Natural Laws, is the special subject of the activity
i , and its precepts and rules entirely depend on the
ry of Nature. It is only what is practicable accord
ing to Laws of Freedom that can have Principles in
dependent of Theory, for there is no Theory in relation
ty what passes beyond the determinations of Nature.
Philosophy therefore cannot embrace under its practical
ion a technical Theory, but only a morally practical
Doctrine. But if the dexterity of the Will in acting
according to Laws of Freedom, in contradistinction to
1 In the Critique of the Judgment (1790).
20 KANT'S PHILOSOPHY OF LAW.
Nature, were to be also called an Art, it would neces
sarily indicate an Art which would make a System of
Freedom possible like the System of Nature. This
would truly be a Divine Art, if we were in a position by
means of it to realize completely what Reason prescribes
to us, and to put the Idea into practice.
III.
THE DIVISION OF A METAPHYSIC OF MORALS.
Two Elements involved in all Legislation. — All Legis
lation, whether relating to internal or external action,
and whether prescribed a priori by mere Eeason or laid
down by the Will of another, involves two Elements : —
1st, a LAW which represents the action that ought to
happen as necessary objectively, thus making the action
a Duty; 2nd, a MOTIVE which connects the principle
determining the Will to this action with the Mental repre
sentation of the Law subjectively, so that the Law makes
Duty the motive of the Action. By the first element,
the action is represented as a Duty, in accordance with
the mere theoretical knowledge of the possibility of
determining the activity of the Will by practical Rules.
By the second element, the Obligation so to act, is
connected in the Subject with a determining Principle of
the Will as such.
Division of Duties into Juridical and Ethical. — All
Legislation, therefore, may be differentiated by reference
to its Motive -principle.1 The Legislation which niako
1 This ground of Division will apply, although the action which it
makes a duty may coincide with another action, that may be otherwise
looked at from another point of view. For instance, Actions may in all
cases be classified as external.
THE METAPHYSIC OF MORALS. 21
an Action a Duty, and this Duty at the same time a
Motive, is ethical. That Legislation which does not
include the Motive - principle in the Law, and conse-
4iu'iitly admits another Motive than the idea of Duty
itself, is juridical. In respect of the latter, it is evident
that the motives distinct from the idea of Duty, to
which it may refer, must be drawn from the subjective
(pathological) influences of Inclination and of Aversion,
<lctcrmining the voluntary activity, and especially from
the latter; because it is a Legislation which has to
be compulsory, and not merely a mode of attracting
or persuading. The agreement or non-agreement of an
ad ion with the Law, without reference to its Motive,
is its Legality; and that character of the action in
whicli the idea of Duty arising from the Law, at
the same time forms the Motive of the Action, is its
Morality.
Duties specially in accord with a Juridical Legislation,
can only be external Duties. For this mode of Legisla
tion does not require that the idea of the Duty, which is
internal, shall be of itself the determining Principle of
the act of Will ; and as it requires a motive suitable to
the nature of its laws, it can only connect what is
external with the Law. Ethical Legislation, on the
other hand, makes internal actions also Duties, but not
to the exclusion of the external, for it embraces
everything which is of the nature of Duty. And
,ju>t because ethical Legislation includes within its
Law the internal motive of the action as contained
in the idea of Duty, it involves a characteristic which
cannot at all enter into the Legislation that is external.
Hence, Ethical Legislation cannot as such be external,
not even when proceeding from a Divine Will, although
22 KANT'S PHILOSOPHY OF LAW.
it may receive Duties which rest on an external Legis
lation as Duties, into the position of motives, within its
own Legislation.
Jurisprudence and Ethics distinguished. — From what
has heen said, it is evident that all Duties, merely
because they are duties, belong to Ethics ; and yet the
Legislation upon which they are founded is not on that
account in all cases contained in Ethics. On the con
trary, the Law of many of them lies outside of Ethics.
Thus Ethics commands that I must fulfil a promise
entered into by Contract, although the other party might
not be able to compel me to do so. It adopts the Law
' pacta sunt serranda,' and the Duty corresponding to it,
from Jurisprudence or the Science of Right, by which
they are established. It is not in Ethics, therefore, but
Jurisprudence, that the principle of the Legislation
lies, that 'promises made and accepted must be kept.'
Accordingly, Ethics specially teaches that if the Motive-
principle of external compulsion which Juridical Legis
lation connects with a Duty is even let go, the idea of
Duty alone is sufficient of itself as a Motive. For were
it not so, and were the Legislation itself not juridical,
and consequently the Duty arising from it not specially
a Duty of Right as distinguished from a Duty of Virtue,
then Fidelity in the performance of acts, to whicrP'the
individual may be bound by the terms of a Contract,
would have to be classified with acts of Benevolence and
the Obligation that underlies them, which cannot be
correct. To keep one's promise is not properly a Duty
of Virtue, but a Duty of Right ; and the performance of
it can be enforced by external Compulsion. But to
keep one's promise, even when no Compulsion can be
applied to enforce it, is, at the same time; a virtuous
THE METAPIIYSIC OF MORALS. 23
action, and a proof of Virtue. Jurisprudence as the
Scienceof Right, and Ethics as the "Science of Virtue,
are therefore distinguished not so much by their different
Duties, as rather by the difference of the Legislation
which connects the one or the other kind of motive with
their Laws.
EthicalJ.egislation is that which cannot be external,
although the Duties it prescribes may be external
as well as internal. Juridical Legislation is that
which may also be external Thus it is an external
duty to keep a promise entered into by Contract ; but
the injunction to do this merely because it is a duty,
without regard to any other motive, belongs exclusively
to the internal Legislation. It does not belong thus to
the ethical sphere as being a particular kind of duty
or a particular mode of action to which we are bound, —
for it is an external duty in Ethics as well as in Juris
prudence, — but it is because the Legislation in thi*
case referred to is internal, and cannot have an external
Lawgiver, that the Obligation is reckoned as belonging
to Ethics. For the same reason, the Duties of Benevo
lence, although they are external Duties as Obligations
to external actions, are, in like manner, reckoned as
belonging to Ethics, because they can only be enjoined
by Legislation that is internal. — Ethics has no doubt its
own peculiar Duties, — such as those towards oneself, —
but it has also Duties in common with Jurisprudence,
only not under the same mode of OlUyation. In short,
the peculiarity of Ethical Legislation is to enjoin the
performance of certain actions merely because they are!
Duties, and to make the Principle of Duty itself — what-/
ever be its source or occasion — the sole sufficing motive
of the activity of the Will. Thus, then, there are many
24 KANT'S PHILOSOPHY OF LAW.
ethical Duties that are directly such; and the inner
Legislation also makes the others— all and each of them
— indirectly Ethical.
The Deduction of the division of a System is the
proof of its completeness as well as of its continuity,
so that there may be a logical transition from the
general conception divided to the members of the
Division, and through the whole series of the sub
divisions without any break or leap in the arrange
ment (divisio per saltum). Such a Division is one of
the most difficult conditions for the architect of a
System to fulfil. There is even some doubt as to
what is the highest Conception that is primarily
divided into Right and Wrong (aut fas aut nefas).
1 1 is assuredly the conception of the activity of the
yFree-will in general. In like manner, the expounders
of Ontology start from 'Something' and 'Nothing'
without perceiving that these are already members of
a Division for which the highest divided conception
is awanting, and which can be no other than that of
' Thing ' in general.
GENERAL DIVISIONS OF THE METAPHYSIC
OF MORALS.
I.
DIVISION OF THE METAPHYSIC OF MORALS AS A SYSTEM
OF DUTIES GENERALLY.
1. All Duties are either Duties of Right, that is,
JURIDICAL DUTIES (Officia Juris}, or Duties of Virtue,
that is, ETHICAL DUTIES (Officia Virtutis s. ethica).
Juridical Duties are such as may be promulgated by
external Legislation ; Ethical Duties are those for which
THE METAPHYSIC OF MORALS. 25
such legislation is not possible. The reason why the
latter cannot be properly made the subject of external^
Legislation is because they relate to an End or final pur
pose, which is itself, at the same time, embraced in these
Duties, and which it is a Duty for the individual to have
as such. But no external Legislation can cause any one
to adopt a particular intention, or to propose to himself
a certain purpose ; for this depends upon an internal
condition or act of the mind itself. However, external
actions conducive to such a mental condition may be
commanded, without its being implied that the individual
will of necessity make them an End to himself.
But why, then, it may be asked, is the Science of
Morals or Moral Philosophy, commonly entitled—
especially by Cicero — the Science of Duty and not
also the Science of Right, since Duties and Eights
refer to each other ? The reason is this. We know
our own Freedom — from which all Moral Laws
and consequently all Rights as well as all Duties
arise — 011ly through the Moral Imperative, which
is an immediate injunction of Duty; whereas tne,.
conception of Right as a ground of putting others*
under Obligation has afterwards to be developed out
of it.
2. In the Doctrine of Duty, Man may and ought to be
represented in accordance with the nature of his faculty
of Freedom, which is entirely supra-sensible. He is,
therefore, to be represented purely according to his
Humanity as a Personality independent of physical
determinations (homo noumcnori), in distinction from the
same person as a Man modified with these determina
tions (homo phenomenon). Hence the conceptions of
IJi-ht and End when referred to Duty, in view of this
twofold quality, give the following Division: —
26
KANT'S PHILOSOPHY OF LAW.
DIVISION OF THE METAPHYSIC OF MORALS
ACCORDING TO THE OBJECTIVE RELATION OF THE LAW TO DUTY
I. THE RIGHT OF HUMANITY
in our own Person
I. JURIDICAL) , °XESELF
DUTIES l
to
II. ETHICAL
OTHERS.
OTHERS.
(Juridical Duties towards
Oneself).
II. THE RIGHT OF MANKIND
in Others (Juridical
Duties towards Others).
rill. THE END OF HUMANITY
in our Person (Ethical
Duties towards Oneself).
IV. THE END OF MANKIND
in Others (Ethical Duties
towards Others).
II.
DIVISION OF THE METAPHYSIC OF MORALS ACCORDING TO
RELATIONS OF OBLIGATION.
As the Subjects between whom a relation of Ei«ht
Duty is apprehended— whether it actually exist°or
-admit of being conceived in various juridical
itions to each other, another Division may be pro
posed from this point of view, as follows :—
,»:::•' s:1";:;;;- T " '• '- "i"-"™- »~* , „„.
sasSs&S* A*" *•""'••'
be put under Obligation by them.
THE METAPHYSIC OF MORALS. 27
3. 4.
The juridical Relation of Man The juridical Relation of Man
to Beings who have only Duties to a Being who has only Rights
and no Rights. and no Duties — (Goo).
VACAT. — There is no such Re- VACAT. — There is no such Re
lation. For such Beings would lation in mere Philosophy, because
be Men without juridical Person- such a Being is not an object of
ality, as Slaves or Bondsmen. possible experience.
A real relation between Right and Duty is therefore
found, in this scheme, only in No. 2. The reason why
such is not likewise found in No. 4 is, because it would
constitute a transcendent Duty, that is, one to which no
corresponding subject can be given that is external and
capable of imposing Obligation. Consequently the Rela
tion from the theoretical point of view is here merely
ideal ; that is, it is a Relation to an object of thought
which we form for ourselves. But the conception of this ,
object is not entirely empty. On the contrary, it is a |
fruitful conception in relation to ourselves and the
maxims of our inner morality, and therefore in relation :
to practice generally. And it is in this bearing, that all V
the Duty involved and practicable for us in such a merely
ideal relation lies.
III.
DIVISION OF THE METAPHYSIC OF MORALS.
AS A SYSTEM OF DUTIES GENERALLY.
According to the constituent Principles and the Method of the System.
I. PRINCIPLES,/ I.Duru.o'B.onT, },£ gggagp
( II. DUTIES OF VIRTUE, ETC. — And so on, in
cluding all that refers not only
to the Materials, but also to the
Architectonic Form of a scientific
system of Morals, when the Meta
physical investigation of the ele
ments has completely traced out
the Universal Principles consti
tuting the whole.
II. METHOD,
28 KANT'S PHILOSOPHY OF LAW.
IV.
GENERAL PKELIMINARY CONCEPTIONS DEFINED AND
EXPLAINED.
(Philosophia practica universalis.)
Freedom. — Tlie conception of FREEDOM is a conception
of pure Eeason. It is therefore transcendent in so far
as regards Theoretical Philosophy ; for it is a conception
tor which no corresponding instance or example can be
found or supplied in any possible experience. Accord
ingly Freedom is not presented as an object of any
theoretical knowledge that is possible for us. It is in
no respect a constitutive, but only a regulative con
ception ; and it can be accepted by the Speculative
Reason as at most a merely negative Principle. In the
practical sphere of Eeason, however, the reality of
Freedom may be demonstrated by certain Practical
Principles which, as Laws, prove a causality jof___the
I'1'-'''1 Keuson in the process of di'tmnining the activity
oitneWill, that is independent of all empirical and
sensible conditions. And thus there is established the
f fact of a pure Will existing in us as the source of all
; moral conceptions and laws.
Moral Laws and Categorical Imperatives. — On this
positive conception of Freedom in the practical relation
certain unconditional practical Laws are founded, and
they specially constitute MOBAL LAWS. In relation to
us as human beings, with an activity of Will modified by
sensible influences so as not to be conformable to the
pure Will, but as often contrary to it, these Laws appear
us IMPERATIVES commanding or prohibiting certain
THE METAPHYSIC OF MORALS. 2$
actions ; and as such they are CATEGORICAL or UNCON
DITIONAL IMPERATIVES. Their categorical and uncon
ditional character distinguishes them from the Technical
Imperatives which express the prescriptions of Art, and
which always command only conditionally. According
to these Categorical Imperatives, certain actions arc
allowed or disallwved as being morally possible or im
possible ; and certain of them or their opposites are
morally necessary and obligatory. Hence, in reference,
to such actions, there arises the conception of a Duty
whose observance or transgression is accompanied with a
Pleasure or Pain of a peculiar kind, known as Moral
reeling. We do not, however, take the Moral Feelings or
Sentiments into account, in considering the practical
Laws of Reason. For they do not form the foundation
or principle of practical Laws of Reason, but only the sub
jective Effects that arise in the mind on the occasion of
our voluntary activity being determined by these Laws.
And while they neither add to nor take from the objec
tive validity or influence of the moral Laws in the judg
ment of Reason, such Sentiments may vary according to
the differences of the individuals who experience them.
The following Conceptions are common to Jurisprudence
and Ethics as the two main Divisions of the Meta-
physic of Morals.
Obligation. — OIJLIGATION is the Necessity of a free
Action when viewed in relation to a Categorical Impera
tive of Reason.
An IMPERATIVE is a practical Rule by which an
Action, otherwise contingent in itself, is made neces
sary. It is distinguished from a practical Law, in
30 KAXT'S PHILOSOPHY OF LAW.
that such a Law, while likewise representing the
Action as necessary, does not consider whether it is
internally necessary as involved in the nature of the
Agent — say as a holy Being — or is contingent to him,
as in the case of Man as we find him ; for, where the
first condition holds good, there is in fact no Impera
tive. Hence an Imperative is a Eule which not only
represents but makes a subjectively contingent action
necessary ; and it, accordingly, represents the Subject
as being (morally) necessitated to act in accordance
with this Eule. — A Categorical or Unconditional
Imperative is one which does not represent the action
in any way mediately through the conception of an
End that is to be attained by it ; but it presents the
action to the mind as objectively necessary by the
mere representation of its form as an action, and thus
makes it necessary. Such Imperatives cannot be put
forward by any other practical Science than that which
prescribes Obligations, and it is only the Science of
Morals that does this. All other Imperatives are
technical, and they are altogether conditional. The
ground of the possibility of Categorical Imperatives,
lies in the fact that they refer to no determination of
the activity of the Will by which a purpose mi^ht be
assigned to it, but solely to its FREEDOM.
The Allowable.— Every Action is ALLOWED (licitum)
which is not contrary to Obligation ; and this Freedom
eing limited by an opposing Imperative, constitutes
i Moral Eight as a warrant or title of action (facultas
inoralis). From this it is at once evident what actions
are DISALLOWED or illicit (illicita).
Duty. — Duty is the designation of any Action to
i any one is bound by an obligation. It is there-
the subject-matter of all Obligation. Duty as
the Action concerned, may be one and the same
yet we may be bound to it in various ways
THE METAPHYSIC OF MORALS. 31
The Categorical Imperative, as expressing an Obli
gation in respect to certain actions, is a morally
practical Law. But because Obligation involves not
merely practical Necessity expressed in a Law as such,
but also actual Nccessitation, the Categorical Impera
tive is a Law either of Command or Prohibition,
according as the doing or not doing of an action is
represented as a Duty. An Action which is neither
commanded nor forbidden, is merely allowed, because
there is no Law restricting Freedom, nor any Duty in
respect of it. Such an Action is said to be morally
indifferent (indifferens, adiaphoron, res mercc facultatis).
It may be asked whether there are such morally in
different actions ; and if there are, whether in addition
to the preceptive and prohibitive Law (lex prceccptiva
ct prohibitiva, lex mandati et vetiti), there is also
required a Permissive Law (lex permissiva), in order
that one may be free in such relations to act, or to
forbear from acting, at his pleasure ? If it were so,
the moral Plight in question would not, in all cases,
refer to actions that are indifferent in themselves
(adiaphora) ; for no special Law would be required to
establish such a liight, considered according to Moral
Laws.
Act ; Agent. — An Action is called an ACT — or moral
Deed — in So far as it is subject to Laws of Obligation,
and consequently in so far as the Subject of it is regarded
with reference to the Freedom of his choice in the
exercise of his Will. The AGENT — as the actor or doer
of the deed — is regarded as, through the act, the Autlwr
of its effect ; and this effect, along with the action itself,
may be imputed to him, if he previously knew the Law,
in virtue of which an Obligation rested upon him.
Person ; Imputation. — A PERSON is a Subject who is
capable of having his actions imputed to him. Moral
Personality is, therefore, nothing but the Freedom of a
r
32 KANT'S PHILOSOPHY OF LAW.
rational Being under Moral Laws ; and it is to be dis
tinguished from psychological Freedom as the mere
faculty by which we become conscious of ourselves in
different states of the Identity of our existence. Hence
it follows that a Person is properly subject to no other
Laws than those he lays down for himself, either alone
or in conjunction with others.
Thing. A THING is what is incapable of being the
subject of Imputation. Every object of the free activity
of the Will, which is itself void of freedom, is there
fore called a Thing (res corporealis).
Right and Wrong. — RIGHT or WRONG applies, as a
general quality, to an Act (rectum aut minus rectum), in
so far as it is in accordance with Duty or contrary to
Duty (factum licitum aut illicitum), no matter what may
be the subject or origin of the Duty itself. An act that
is contrary to Duty is called a Transgression (reatus).
Fault; Crime. — An unintentional Transgression of a
Duty, which is, nevertheless, imputable to a Person, is
called a mere FAULT (culpa). An intentional Transgres
sion — that is, an act accompanied with the consciousness
that it is a Transgression — constitutes a CRIME (dolus).
Just and Unjust. — Whatever is juridically in accord
ance with External Laws, is said to be JUST (Jus,
iustum}\ and whatever is not juridically in accordance
with external Laws, is UNJUST (unjustum).
Collision of Duties. — A COLLISION OF DUTIES OR OBLI-
<;ATIOXS (collisio officiorum s. obliyationum} would be the
result of such a relation between them that the one
would annul the other, in whole or in part. Duty and
Obligation, however, are conceptions which express the
objective practical Necessity of certain actions, and two
opposite Rules cannot be objective and necessary at
THE METAPHYSIC OF MORALS. 33
the same time ; for if it is a Duty to act according to
one of them, it is not only no Duty to act according
to an opposite Rule, but to do so would even be contrary
to Duty. Hence a Collision of Duties and Obligations
is entirely inconceivable (obligationes non colliduntur).
There may, however, be two grounds of Obligation
(rationes obligandi), connected with an individual under
a Rule prescribed for himself, and yet neither the one
nor the other may be sufficient to constitute an actual
Obligation (rationes obliyandi non obligantes) ; and in that
case the one of them is not a Duty. If two such
grounds of Obligation are actually in collision with each
other, Practical Philosophy does not say that the stronger
Obligation is to keep the upper hand (fortior olligatio
vincit), but that the stronger ground of Obligation is to
maintain its place (fortior obligandi ratio vincit).
Natural and Positive Laws. — Obligatory Laws for
which an external Legislation is possible, are called
generally External Laws. Those External Laws, the
obligatoriness of which can be recognised by Eeason
a priori even without an external Legislation, are called
NATURAL LAWS. Those Laws, again, which are not
obligatory without actual External Legislation, are called
POSITIVE LAWS. An External Legislation, containing
'pure Natural Laws, is therefore conceivable ; but in
that case a previous Natural Law must be presupposed
to establish the authority of the Lawgiver by the Eight
to subject others to Obligation through his own act of
Will.
Maxims. — The Principle which makes a certain action
> a Duty, is a Practical Law. The Eule of the Agent or
Actor, which he forms as a Principle for himself on sub-
'ective grounds, is called his MAXIM. Hence, even when
c
34 KANT'S PHILOSOPHY OF LAW.
the Law is one and invariable, the Maxims of the
Agent may yet be very different.
The Categorical Imperative. — The Categorical Impera
tive only expresses generally what constitutes Obligation.
It may be rendered by the following Formula : ' Act
according to a Maxim which can be adopted at the same,
time as a Universal Law.' Actions must therefore be
considered, in the first place, according to their subjective
Principle; but whether this principle is also valid
objectively, can only be known by the criterion of the
Categorical Imperative. For lieason brings the principle
or maxim of any action to the test, by calling upon the
Agent to think of himself in connection with it as at the
same time laying down a Universal Law, and to consider
whether his action is so qualified as to be fit for entering
into such a Universal Legislation.
The simplicity of this Law, in comparison with the
great and manifold Consequences which may be drawn
(from it, as well as its commanding authority and
supremacy without the accompaniment of any visible
' motive or sanction, must certainly at first appear very
, surprising. And we may well wonder at the power of
our Keason to determine the activity of the Will by the
mere idea of the qualification of a Maxim for the
universality of a practical Law, especially when we are
taught thereby that this practical Moral Law first reveals
a property of the Will which the Speculative Eeason
would never have come upon either by Principles a priori,
or from any experience whatever; and even if it had
ascertained the fact, it could never have theoretically
stablished its possibility. This practical Law, however,
>t only discovers the fact of that property of the Will,
which is FREEDOM, but irrefutably establishes it. Hence
THE METAPHYSIC OF MORALS. 35
it will be less surprising to find that the Moral Laws
are uudenionstralle, and yet apodictic, like the mathe- \
matical Postulates ; and that they, at the same time, /
open up before us a whole field of practical knowledge,/
from which Reason, on its theoretical side, must find
itself entirely excluded with its speculative idea of Free
dom and all such ideas of the Supersensible generally.
The conformity of an Action to the Law of Duty
constitutes its Legality ; the conformity of the Maxim of
the Action with the Law constitutes its Morality. A
Maxim is thus a subjective Principle of Action, which
the individual makes a Rule for himself as to how in
fact he will act.
On the other hand, the Principle of Duty is what
Reason absolutely, and therefore objectively and univer
sally, lays down in the form of a Command to the
individual, as to how he ought to act.
The SUPREME PKINCIPLE of the Science of Morals
accordingly is this : ' Act according to a Maxim which
can likewise be valid as a Universal Law.' — Every
Maxim which is not qualified according to this condition,
is contrary to Morality.
Laws arise from the Will, viewed generally as
Practical Reason ; Maxims spring from the activity
of the Will in the process of Choice. The latter in
Man, is what constitutes free-will. The Will which
refers to nothing else than mere Law, can neither be
called free nor not free ; because it does not relate to
actions immediately, but to the giving of a Law for the
Maxim of actions; it is therefore the Practical Reason
itself. Hence as a Faculty, it is absolutely necessary
in itself, and is not subject to any external necessita-
tion. It is, therefore, only the act of Choice in the
voluntary process, that can be called free.
:>,G EAST'S PHILOSOPHY OF LAW.
The Freedom of the act of Will, however, is not to
be defined as a Liberty of Indifference (libertas indi/er-
N entice), that is, as a capacity of choosing to act for or
against the Law. The voluntary process, indeed, viewed
as a phenomenal appearance, gives many examples of
this choosing in experience ; and some have accordingly
so defined the free-will. For Freedom, as it is first
I made knowable by the Moral Law, is known only as
A A /a negative Property in us, as constituted by the fact of
(not being necessitated to act by sensible principles of
determination. Regarded as a noumenal reality, how
ever, in reference to Man as a pure rational Intelli
gence, the act of the Will cannot be at all theoretically
exhibited ; nor can it therefore be explained how this
power can act necessitatingly in relation to the sensible
activity in the process of Choice, or consequently in
what the positive quality of Freedom consists. Only
thus much we can see into and comprehend, that
although Man, as a Being belonging to the world of
Sense, exhibits — as experience shows — a capacity of
choosing not only conformably to the Law but also
contrary to it, his Freedom as a rational Being belong
ing to tlie world of Intelligence cannot be defined by
reference merely to sensible appearances. For sensible
phenomena cannot make a supersensible object — such
as free-will is — intelligible ; nor can Freedom ever be
^ placed in the mere fact that the rMional^iljJect can
make a choice in conflict with his own Lawgiving
Keason, although experience may prove that it
happens often enough, notwithstanding our inability
to conceive how it is possible. For it is one thing
to admit a proposition as based on experience, and
another thing to make it the defining Principle and
the universal differentiating mark of the act of free
will, in its distinction from the arUtrium brutum s.
urvum; because the empirical proposition does not
assert that any particular characteristic necessarily
belongs to the conception in question, but this is
THE METAPHYSIC OF MORALS. 37
requisite in the process of Definition. — Freedom in /
relation to the internal Legislation of Reason, can *
alone be properly called a Power ; the possibility oi
diverging from the Law thus given, is an incapacity
or want of Power. How then can the former be
defined by the latter ? It could only be by a Defini
tion which would add to the practical conception of
the free-will, its exercise as shown by experience;
but this would be a hybrid Definition which would
exhibit the conception in a false light.
Law; Legislator. — A morally practical LAW is a pro
position which contains a Categorical Imperative or
Command. He who commands by a Law (imperans)
is the Lawgiver or LEGISLATOR. He is the Author of
the Obligation that accompanies the Law, but he is not
always the Author of the Law itself. In the latter case,
the Law would be positive, contingent, and arbitrary.
The Law which is imposed upon us & priori and uncon
ditionally by our own Reason, may also be expressed as
proceeding from the Will of a Supreme Lawgiver or the
Divine Will. Such a Will as Supreme can conse-y)
quently have only Rights and not Duties ; and it only
indicates the idea of a moral Being whose Will is Law
for all, without conceiving of Him as the Author of that
Will.
Imputation ; Judgment ; Judge. — IMPUTATION, in the
moral sense, is the Judgment by which any one is
declared to be the Author or free Cause of an action
which is then regarded as his moral fact or deed, and is
subjected to Law. When the Judgment likewise lays
down the juridical consequences of the Deed, it is judicial
or valid (imputatio judiciaria s. valida) ; otherwise it
would be only adjudicative or declaratory (imputatio
dijudicatoria). — That Person — individual or collective —
38 KANT'S PHILOSOPHY OF LAW.
who is invested with the Eight to impute actions judicially,
is called a JUDGE or a Court (judex s. forum).
Merit and Demerit. — When any one does, in conformity
with Duty, more than he can be compelled to do by the
Law, it is said to be meritorious (meritum). What is
done only in exact conformity with the Law, is what is
due (debitum). And when less is done than can be
demanded to be done by the Law, the result is moral
Demerit (demeritum) or Culpability.
Punishment ; Reward. — The juridical Effect or Con
sequence of a culpable act of Demerit is PUNISHMENT
(poena) ; that of a meritorious act is REWARD (prcemium),
assuming that this Eeward was promised in the Law and
that it formed the motive of the action. The coinci
dence or exact conformity of conduct to what is due, has
no juridical effect. — Benevolent REMUNEEATION (remune-
ratio s. repensio benefica) has no place in juridical Rela
tions.
The good or bad Consequences arising from the
performance of an obligated action — as also the Con
sequences arising from failing to perform a meritori
ous action — cannot be imputed to the Agent (modus
imputationis tollens).
The good Consequences of a meritorious action — as
also the bad Consequences of a wrongful action — may
be imputed to the Agent (modus imputationis poneus).
The degree of the Imputalility of Actions is to be
reckoned according to the magnitude of the hin
drances or obstacles which it has been necessary for
them to overcome. The greater the natural hin
drances in the sphere of sense, and the less the moral
hindrance of Duty, so much the more is a good Deed
imputed as meritorious. This may be seen by con
sidering such examples as rescuing a man who is an
entire stranger from great distress, and at very consider-
THE METAPHYSIC OF MOIIALS. 39
able sacrifice. — Conversely, the less the natural hin
drance, and the greater the hindrance on the ground of
Duty, so much the more is a Transgression imputable
as culpable. — Hence the state of mind of the Agent
or Doer of a deed makes a difference in imputing its
consequences, according as he did it in passion or
performed it with coolness and deliberation.
INTRODUCTION
ro
THE SCIENCE OF RIGHT.
INTRODUCTION TO THE SCIENCE
OF RIGHT.
GENERAL DEFINITIONS AND DIVISIONS.
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 (juris-
consultus). A practical Jurisconsult (jurisperitus), or a
professional Lawyer, is one who is skilled in the know
ledge 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
44 KANT'S PHILOSOPHY OF LAW.
immutable Principles of all positive Legislation must be
derived by practical Jurists and Lawgivers.
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 judgments, 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 Ph^drus, fine enough in appearance, but
unfortunately it wants brain.
1. The conception of RIGHT, — as referring to a corre
sponding Obligation which is the moral aspect of it, — in
the first place, has regard only to the external and practical
INTRODUCTION TO THE SCIENCE OF RIGHT. 45
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 Eight 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 unkinduess, 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
Bight does not take into consideration 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 Ilight whether any one on
buying goods for his own business realizes a profit by
the transaction or not ; but only the form of the trans
action 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.
EIGHT, therefore, comprehends the whole of the con
ditions 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.
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 co-exist along
with the Freedom of the Will of each and all in action,
according to a universal Law.'
46 KANT'S PHILOSOPHY OF LAW.
If, then, my action or my condition generally can
co-exist 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 co-exist 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 fulfilment
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 co-exist 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 obliga
tion, 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.
INTRODUCTION TO THE SCIENCE OF RIGHT. 47
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. Con
sequently, 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 or 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.
E.
Strict Right may be also represented as the possibility of
a universal reciprocal Compulsion in harmony with
the Freedom of all according to universal Laws.
This proposition means that Plight is not to be regarded
as composed of two different elements — Obligation accord
ing 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 possi
bility of a universal reciprocal Compulsion, in harmony
with the Freedom of all. As Right in general lias for its
48 KANT'S PHILOSOPHY OF LAW.
object only what is external in actions, Strict Eight, 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 Eight, and is unmixed with
any prescriptions of Virtue. A strict Eight, then, in the
exact sense of the term, is that which alone can be called
wholly external. Now such Eight is founded, no doubt,
upon the consciousness of the Obligation of every indi
vidual according to the Law ; but if it is to be pure as
such, it neither may nor should refer to this conscious-
ness 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 co-exist 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
Eeason 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. Eight and the Title to
compel, thus indicate the same thing.
The Law of Eight, as thus enunciated, is repre
sented 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 Eight, by exhibiting it in a pure intuitive percep
tion d 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
INTRODUCTION TO THE SCIENCE OF RIGHT. 49
its objects immediately from a mere abstract concep
tion, but can only discover them by figurative con
struction 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 & 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 intersect
ing 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 ovm 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 juri
dical 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 ' Inter-
mundia ' of Epicurus. These we must at the outset
take apart from the special exposition of the Science
50 KANT'S PHILOSOPHY OF LAW.
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 influ
ence on the fixed Principles of the proper doctrine of
Eight.
F.
Supplementary Remarks on Equivocal Right.
(Jus aequivocum.)
With every Right, in the strict acceptation (jus
stridum), 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.
I. EQUITY.
EQUITY (/Equitas), 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 Eight to the same. In this case, how
ever, the conditions are awanting that are requisite for
the function of a Judge in order that he might determine
vhat or what kind of satisfaction can be done to this claim.
When one of the partners of a Mercantile Company,
INTRODUCTION TO THE SCIENCE OF RIGHT. 51
formed under the condition of Equal profits, has, how
ever, done more than the other members, and in conse
quence 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 con- /
sidering his case, — he can furnish no definite data to
establish how much mdre belongs to him by the Con
tract ; 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
hearing 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 tha/
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.
52 KANT'S PHILOSOPHY OF LAW.
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 poll),
whereas every question of Right must be taken before
a CIVIL COURT (forum soli}.
II. THE KIGHT OF NECESSITY.
The so-called Right of Necessity (Jus iiccessitatis) 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 con
tradiction. For this is not the case of a ivrongful
aggressor making an unjust assault upon my life, and
whom I anticipate by depriving him of his own (jus
inculpates tutda>) ; nor consequently is it a question merely
of the recommendation of moderation which belongs to
Ethics as the Doctrine of Virtue, and not to Jurispru
dence 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
3 pronounced by a Court in the case. There can, in
ict, be no Criminal Law assigning the penalty of deatli
a man who, when shipwrecked and struggling in extreme
danger for his life, and in order to save it, may thrust
INTRODUCTION TO THE SCIENCE OF RIGHT. 53
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 circum
stances. An act of violent self-preservation, then, ought ,
not to be considered as altogether beyond condemnation/
(inculpcibile) ; it is only to be adjudged as exempt from
punishment (impunibilc). Yet this subjective condition of/
impunity, by a strange confusion of ideas, lias been)
regarded by Jurists as equivalent to objective lawfulness.
The Dictum of the Kight of Necessity is put in these
terms, ' Necessity has no Law ' (Neccssitas non habet
legcvi). And yet there cannot be a necessity that could
make what is wrong lawful.
It is apparent, then, that in judgments relating both to
' Equity ' and ' the Right of Necessity/ the Equivocations
involved arise from an interchange of the objective andl/i7' v,
subjective grounds that enter into the application of the)
Principles of Eight, when viewed respectively by Keason
or by a Judicial Tribunal. What one may have gooc
grounds for recognising as Kight 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 con-
ception of Eight is not taken in the two cases in one
the same sense.
DIVISION OF THE SCIENCE OF EIGHT.
A.
GENERAL DIVISION OF THE DUTIES OF EIGHT.
(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 Eecti-
tude, 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 pro
position, '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 Eight of Humanity in
our own Person (Lexjusti}.
, NEMINEM L*DE. • Do Wrong to no one.' This
* ormula may be rendered so as to mean, < Do no
Wrong to any one, even if thou shouldst be under the
necessity, m observing this Duty, to cease from all
connection with others and to avoid all Society'
(Lex juridica). J
SUUMCUIQUE TKIBUE. 'Assign to every one
what ; his own.' This may be rendered, 'Enter if
-, "?? }Cann0t be avoided> into » Society with others
ch every one may have secured to him what is
-If this Formula were to be simply trans-
Give every one his own; it would express an
xsurdity for we cannot ^e any one what he already
t is to have a definite meaning it must
INTRODUCTION TO THE SCIENCE OF RIGHT.
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 justitice).
These three classical Formula?, at the same time, repre
sent 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 sub-
sumption.
B.
UNIVERSAL DIVISION OF RIGHTS.
I. Natural Right and Positive Right.
The System of Eights, viewed as a scientific System of
Doctrines, is divided into NATURAL RIGHT and POSITIVE
RIGHT. Natural Right rests upon pure rational Prin
ciples 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 refer
ence 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 ' (Mcum vel Tuum internum) ; for External
Right must always be acquired.
56 KANT'S PHILOSOPHY OF LAW.
\ 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 co-exist with the Free
dom of all according to a universal Law, it is the one
sole original, inborn Plight belonging to every man in
virtue of his Humanity. There is, indeed, an innate
EQUALITY belonging to every man which consists in his
Kight to be independent of being bound by others to
anything more than that to which he may also recipro
cally bind them. It is, consequently, the inborn quality
of every man in virtue of which he ought to be his own
master by Eight (sui juris). There is, also, the natural
I quality of JUSTNESS attributable to a man as naturally of
unimpeachable Right (justi), because he has done no Wrong
to any one prior to his own juridical actions. And°
j further, there is also the innate Eight 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
mything that is theirs unless they are willing to appro-
such as merely to communicate thought to
arrate anything, or to promise something whether truly
honestly, or untruly and dishonestly (veriloquium
siloquium), for it rests entirely upon these others
3ther they will believe or trust in it or not.1 But all
ights or Titles are already included in the Prin-
a
INTRODUCTION TO THE SCIENCE OF RIGHT. 57
ciple of Innate FREEDOM, and are not really distinguished ^
from it, even as dividing members under a higher species
of Right.
The reason why sjiichaJJiyision 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 dis
pute. 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 noW
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.
is his (falxiloquium 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.
58 KANT'S PHILOSOPHY OF LAW.
C.
METHODICAL DIVISION OF THE SCIENCE OF EIGHT.
The highest Division of the System of Natural Bight
should not be — as it is frequently put — into' Natural Eight'
and ' Social Eight,' but into NATURAL EIGHT and CIVIL
EIGHT. The first constitutes PRIVATE EIGHT ; the second,
PUBLIC EIGHT. 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 Eight, viewed under reference to the state
of Nature, is specially called Private Eight. The whole
of the Principles of Eight will therefore fall to be
expounded under the two subdivisions of PRIVATE EIGHT
and PUBLIC EIGHT.
THE SCIENCE OF BIGHT
PART FIRST.
PRIVATE RIGHT.
THE SYSTEM OF THOSE LAWS WHICH REQUIRE
NO EXTERNAL PROMULGATION.
PRIVATE RIGHT.
THE PRINCIPLES OF THE EXTERNAL MINE AND
THINE GENERALLY.
CHAPTEK FIKST.
OF THE MODE OF HAVING ANYTHING EXTERNAL
AS ONE'S OWN.
1.
The meaning of ' Mine ' in Right.
(Meum Juris.)
'ANYTHING is ' Mine ' ly 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 ;i
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 tny 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
02 KANT'S PHILOSOPHY OF LAW.
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 objectv
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 t 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 suppo
sition, Freedom would so far be depriving itself of the
use of its voluntary activity, in thus putting usedble
objects out of all possibility of use. In practical rela
tions, this would be to annihilate them, by making them
res nullius, notwithstanding the fact that acts of Will in
THE PRINCIPLES OF PRIVATE RIGHT. 63
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 potestatcm 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 there
fore 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
64 KANT'S PHILOSOPHY OF LAW.
Ecason; and it is enabled by means of this Postulate
d priori to enlarge its range of activity in practice.
3.
Possession and Ownership.
Any one who would assert the Eight 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 Eight, 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 (prccstatio') ;
(3) The State of another in relation to myself.
These correspond to the categories of Substance, Caus
ality, 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
*ssion of it, I am able to assert that I am in
possession of it in another real non-physical sense.
THE PRINCIPLES OF PRIVATE RIGHT. 65
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 wrar ' 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
I
66 KAXT'S PHILOSOPHY OF LAW.
command them at present as belonging to my house
hold, 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 them
selves 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 posses
sions, only when and so far as I can assert this as a
matter of Plight.
5.
Definition of the conception of the external 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 hold
ing it as an object.'— I must be in some kind of posses
sion of an external object, if the object is to be regarded
as mine; for, otherwise, any one interfering with this
object would not, in doing so, affect me; nor, conse
quently, would he thereby do me any wrong. Hence,
THE PRINCIPLES OF PRIVATE RIGHT. 67
according to § 4, a rational Possession (possessio nou-
mcnon) must be assumed as possible, if there is to be
rightly an external ' Mine and Thine.' Empirical Posses
sion 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
Season — 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 think
able by the pure Understanding. And Right, as under con
sideration, 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
68 KANT'S PHILOSOPHY OF LAW.
is a merely juridical or rational Possession possible ?' And
this second question resolves itself again into a third, 'How
is a synthetic proposition in Eight possible a priori ? '
All Propositions of Plight — as juridical propositions-
are Propositions a priori, for they are practical Laws of
lieason (Dictamina rationis). But the juridical Pro
position & priori respecting empirical Possession is
analytical ; for it says nothing more than what follows
by the principle of Contradiction, from the conception of
sucli 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 Plight. The pro
position expressing the principle of an empirical rightful
Possession, does not therefore go beyond the Plight 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 posses
sion 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 Keason to show how such a Proposition,
extending its range beyond the conception of empirical
possession, is possible ci priori.
In this manner, for instance, the act of taking
possession of a particular portion of the soil, is a mode
THE PRINCIPLES OF PKIVATE EIGHT. 69
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 & 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 Eight (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 (<h
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, how
ever, 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.
70 KANT'S PHILOSOPHY OF LAW.
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 Eight 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 sucli 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 domi
ciliary 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 Eight to the
thing, although it is certainly not sufficient to enable
.0 regard it as Mine. Eelative to others, so far
they know, it appears as a first possession in har-
>ny with the law of external freedom ; and, at the
is embraced in the universal original
possession which contains a priori the fundamental
iciple of the possibility of a private possession
isturb the first occupier or holder of a
portion of the soil in his use of it, is a lesion or
"g done to him. The first taking of Possession
has therefore a Title of Eight (titulm possession**)
favour, which is simply the principle of the
THE PRINCIPLES OF PRIVATE RIGHT. 71
original common possession ; and the saying that
1 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, some
thing 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 considera
tion, the procedure is just the converse of the
theoretical process ; so that all the conditions of per
ception 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 conse
quent Deduction of the conception of a non-empirical
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 exter
nally 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 com
prehended in itself, because it is a rational concep
tion for which no empirical perception can be
72 KANT'S PHILOSOPHY OF LAW.
furnished ; but it follows as an immediate conse
quence from the Postulate that has been enunciated.
For, if it is necessary to act according to that
juridical Principle, the rational or intelligible con
dition 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 Eeason, 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
an empirical conception dependent on conditions of
Space and Time, and yet it lias practical reality. As
such it must be applicable to objects of experience, the
knowledge of which is independent of the conditions
Space and Time. The rational process by which the
conception of Eight is brought into relation to such
so as to constitute a possible external Mine and
s as follows. The Conception of Eight, bein*
contained merely in Eeason, cannot be immediately
applied to objects of experience, so as to give the con-
ception of an empirical Possession, but must be applied
*ly to the mediating conception in the Under-
'Possession in general; so that, instead of
] lysical holding (Detcntio) as an empirical representation
asion, the formal conception or thought of
THE PRINCIPLES OF PRIVATE RIGHT. 73
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
potcstate mea positum esse). In this relation, the term
'external' does not signify existence in anotlier place,
than where I am, nor my resolution and acceptance at
another time than the moment in which I have the ofler
of a thing : it signifies only an object different from or
other than myself. Now the practical Reason by its
Law of Kight 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 Plight. 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 & 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
74 KANT'S PHILOSOPHY OF LAW.
(posscssio noumcnon) as the principle of a universally
valid Legislation. For such a Legislation is implied and
contained in the expression, ' This external object is
mi tie' 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 Eight. 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 Eight 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 § 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 say
ing 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 Eight. This Eight is not to
THE PRINCIPLES OF PRIVATE RIG11T. 75
be annulled by the fact that the promiser having said
at one time, ' This thing shall be yours/ again at a sub
sequent time says, ' My will now is that the thing
shall not be yours.' In such relations of rational Eight
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 Con
ception of the juridical possession of a Person as belong
ing 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 separat
ing 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 con
ception 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 com
pelled, in its practical function in relation to Right,-—
as it was in its theoretical function, — to make a dis
tinction between Possession as a phenomenal appear
ance presented to the senses, and that Possession which
is rational and thinkable only by the Understanding.
70 KANT'S PHILOSOPHY OF LAW.
THESIS.— The Thesis, in this case, is, l It is _
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 Posses
sion (possessio phenomenon), the latter when I under
stand 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 Eeason. And in this
relation it is specially noteworthy that the Practical
Keason without intuitional perceptions, and even
without requiring such an element a priori, can extend
its range by the mere elimination of empirical con
ditions, 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
THE PRINCIPLES OF PRIVATE RIGHT. 77
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 guar
antee 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 Eight, 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.
78 KANT'S PHILOSOPHY OF LAW.
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 Eight in the state of a Civil Constitution, means
the forms of Eight 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 distinguised from its being
specially assigned and determined to him. — All Guar
antee, therefore, assumes that every one to whom a thing
is secured, is already in possesion 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 Eight to compel every one
with whom we could come into any kind of intercourse,
to enter witli 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 accord
ance 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 Pos-
THE PRINCIPLES OF PRIVATE RIGHT. (.)
session. — 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 Eight ; as he would have
to assert it. Yet he 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 ex
pectation 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 every one 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
KANT'S PHILOSOPHY OF LAW.
l»y 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 any one 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°re«ards
all proper use of it.
PRIVATE RIGHT
CHAPTER SECOND.
THE MODE OF ACQUIRING ANYTHING EXTERNAL.
10.
The general Principle of External Acquisition.
I ACQUIRE a thing when 1 act (cfficio) 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 he
acquired by an external juridical Act, although there may
be an original and common possession of an external ob
ject. Even if we think hypothetically of a state in which
the Mine and Thine would be originally in common as
a ' Communio mci et tui originaria,' it would still have
to be distinguished from a primeval communion (Com-
F
g2 KANT'S PHILOSOPHY OF LAW.
munio primccva) with things in common, sometimes
supposed to be founded in the first period of the
relations of Eight 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 derivative).
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 Pteason, 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) con
stitutive 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 free-will in inter
dicting 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
THE PRINCIPLES OF PRIVATE RIGHT. 83
Acquisition, as that on which the conclusion that ' the
external object is mine ' rests, is what makes the pos
session valid as a purely rational and juridical possession
(possessio noumcnon). 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 infer
ence 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,
1 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
84 KANT'S* PHILOSOPHY OF LAW.
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 uni
lateral Will.
DIVISION OF THE SUBJECT OF THE ACQUISITION OF TIIK
EXTERNAL MlNE AND TlIINE.
I. In respect of the MATTER or 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 Eight 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 HEAL EIGHT (jus reule), or a PERSONAL
RIGHT (jus personak), or a REAL-PERSONAL RIGHT (>*
realitcr personate), 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
(tilulus) of Acquisition — which, properly, is not a par
ticular member of the Division of Rights, but rather a
constituent element of the mode of exercising them — any
tiling 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
THE PRINCIPLES OF PRIVATE RIGHT. 85
FIRST SECTION.
PRINCIPLES OF HEAL RIGHT.
11.
What is a 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 vindicationcm, 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
8G KANT'S PHILOSOPHY OF LAW.
juridical relation by a sensible image of this kind, and
to express it in this way.
The Real Definition would run thus:
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 condi
tion under which it is alone possible that I can exclude
every other possessor from the private use of the Thing
(jus contra quemlilet hujus rci possessorem). For, except
by presupposing such a common collective possession, it
cannot be conceived how, when I am not in actual pos
session 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 had 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 rcale) 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 thatxa 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,
THE PRINCIPLES OF PRIVATE RIGHT. 87
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 pos
session 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 exist
ence of the Moveables is viewed as an Inherence in it.
And just as, in the theoretical acceptation, 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 hypo
thesis, no possessor of it at all. But everything that
can be destroyed, such as a Tree, a House, and such lik<;
— as regards its matter at least — is moveable ; and if
we call a thing which cannot be moved without destruc
tion of its form an immovedble, 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 essen
tially constitute the thing itself.
KANT'S PHILOSOPHY or LAW.
13.
Every part of the Soil may be originarily 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 (§ 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 1 light to be wherever Nature or Chance has placed
them without their will. Possession (possessio), which is
to be distinguished from residential settlement (secies) 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
b 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
ichcal acts, constitutes an original possession in common
mo possessions originaria). The conception of
an original, common Possession of things is not
rived from experience, nor is it dependent on condi-
time, as is the case with the imaginary and
indemonstrable fiction of a primeval Community of posses-
| m actual history. Hence it is a practical conception
son, involving in itself the only Principle according
ich Men may use the place they happen to occupy
THE PRINCIPLES OF PRIVATE RIGHT. 89
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 (appreliensio), as being
at its beginning the physical appropriation of a corporeal
thing in space (possession™ physiccc}, 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
net 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 uni-
lateralis s. propria). Now, OCCUPANCY is the Acqui
sition 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 Ueason in any way, nor
established by its Principles, but is an immediate conse
quence from the Postulate of the Practical Reason. The
Will as practical Reason, however, cannot justify ex
ternal 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
90 KANT'S PHILOSOPHY OF LAW.
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 Eights 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 Eight, to which all external Acquisition is subjected.
The empirical Title of Acquisition has been shown to
l>e constituted by the taking physical possession (Appre-
hensio physica) as founded upon an original community of
1 light 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 PRINCIPLES OF PRIVATE RIGHT. 01
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 nori). 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 provi
sory. The Acquisition, which is peremptory, finds place
only in the Civil state.
Nevertheless, such provisory Acquisition is real Acqui
sition. 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 Plight. And in accordance with this Principle,
every one is justified or entitled to exercise that compul
sion 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 appro
priate 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 con-
92 K AST'S PHILOSOPHY OF LAW.
stitutes a free or closed Sea must be decided. Tims,
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 build
ing, 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 recognised 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 indi
cated 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 Eight 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 neighbour
ing 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 Eight of Occupation, in
the case of a certain intervening piece of the Soil, to
let it lie unused as a neutral ground for the separa
tion 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
nullius), just because it would be used by both in
order to form a separation between them.— Again
lay one have a thing as his, on a Soil of which no
one has appropriated any part as his own ? ' Yes. In
THE PRINCIPLES OF PRIVATE RIGHT. 93
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 mercc facullatis).
As a further question, it may be asked : Whether,
when neither Nature nor Chance, but merely our own
AVill, 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 civil
ised inhabitants, and might have for ever remained
thus, so that the end of Creation would have so far
94 KANT'S PHILOSOPHY OF LAW.
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
lie 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.
s
All men are originally in a common collective possession
of the Soil of the whole Earth (Communio fundi origi-
naria), and they have naturally each a Will to use it
(Icxjusti). 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
m action, according to which a particular possession can
be determined to every one upon the common soil. This
the juridical Law (lex juridica). But the distributive
Law of the Mine and Thine, as applicable to each indi-
idual on the soil, according to the Axiom of external
Freedom, cannot proceed otherwise than from a primarily
THE PRINCIPLES OF PRIVATE RIGHT. 95
united Will ti priori — which does not presuppose any
juridical act as requisite for this union. This Law can
only take form in the Civil State (lex justitice distribu
tive?) ; 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 Eight. 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 accord
ing 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 juridi
cally 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 guar
anteed 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
00 KANT'S PHILOSOPHY OF LAW.
an external Acquisition in space ; and the Mode, of
Acquisition is contained in the empirical fact of taking
possession (Apprekensio), 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 Ueason 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 IJational 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
1 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 con
tinuous activity in taking possession of an external object;
and it involves only the notion of ' having something in
mi/ 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 Posses
sion, 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
« conformable to the Axiom of Freedom, the Postulate
ight, and the universal Legislation of the common
Will conceived as united a priori. This is therefore tlu-
THE PRINCIPLES OF PRIVATE RIGHT. 97
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, liather, con
versely, the inference as to the Mine and Thine must
be drawn from ownership of the Substance according
to the rule, ' Accessarium sequitur mum principalc.'
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 Kight. Other
wise it is probable that the natural question — already
discussed — would not have been passed over with so
light a tread, namely, 'How is a Kight in a thing
possible ? ' For, Bight 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 leyc. For
they may be regarded as Accidents inhering in the
Substance of the Soil, and they are thus mine jure
rci rnrcc. To this Category also belongs everything
98 KANT'S PHILOSOPHY OF LAW.
which is so connected with anything of mine, that
it cannot be separated from what is mine without
ilturiii" it substantially. Examples of this are
Gildin° 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 m
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 Eight to
fish on my own shores, to gather Amber and such
like. So far as 1 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
daumm). 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
libernm). 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 Eight 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 Eiver,
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.
PROPERTY.
An external Object, which, in respect of its Substance,
can be claimed by some one as his own, is called the
THE PRINCIPLES OF PRIVATE RIGHT. 90
PROPERTY (dominium) of that Person to whom all the
Eights 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). lint 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 Pro
prietor of himself (sui dominus), so as to be able to
dispose of himself at will, to say nothing of the possi
bility of such a relation to other men ; because he is
responsible to Humanity in his own person. This point,
however, as belonging to the Eight of Humanity as such,
rather than to that of individual men, would not be dis
cussed 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, with
out 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 Ms 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 other belongs all the Use of the thing along with its
Possession. The former as the direct Proprietor (dominus
diredus), therefore, restricts the latter as the Proprietor
in use (dominus utilis) to the condition of a certain con
tinuous performance, with reference to the thing itself,
without limiting him in the use of it.
100 KANT'S PHILOSOPHY OF LAW.
SECOND SECTION.
I'lilXCIPLES OF PERSONAL IllGHT.
18.
Nature and Acquisition of Personal Eight,
The possession of the active free-will of another
person, as the power to determine it by my Will to a
ertain action, Wording to Laws of Freedom » a form
of BWit relating to the external Mine and Thine, as
dfected by the Causality of another. It is possible to
£ several such Bight, in reference to the , «ne 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 Hight, and there is only one
Principle. ,
The Acquisition of a Personal Eight 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 Eight be acquired by means of my unjust act
of another (faoto injusti alterius), as being itself con
trary to Eight/, for if such a wrong as it implies were
perpetrated on me, and I could demand satisfaction from
the other, in accordance with Eight, 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
THE PRINCIPLES OF PRIVATE RIGHT. 101
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 relinquiskmcnt or renunciation
of what is his (per derelict ionem aut renunciationem) ;
because such a negative Act would only amount to a
cessation of his Right, and not to the acquirement of a
1 tight 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.
19.
Acquisition by 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 Constitu
tive 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 ayrceallc to the Party to whom it is offered, and this
102 KANT'S PHILOSOPHY OF LAW.
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
Promisor 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 con
sequently so far only as the Will of both is declared at
the same time or simultaneously. Now, such simul-
taneousness is impossible by empirical acts of declara
tion, 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
THE PRINCIPLES OF PRIVATE RIGHT. 1 03
relation, my taking possession of the free-will of another,
as the cause that determined it to a certain Act, is con
ceived 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 (posscssio
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 (pro-
missum) 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 Mendels
sohn 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, how
ever, 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 Pro
position — of which three Lines any two together must
104 KANT'S PHILOSOPHY OF LAW.
be greater than the tliird-a Synthetical Proposition,
and like the former a priori. It is a Postulate o the
Pure Reason that we ought to abstract from all
sensible conditions of Space and Time in reference to
the conception of Eight; and the theory of the pos
sibility 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, there
fore, 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 riclier in possession (locuplctior) by the Acquisition of
an active Obligation that I can bring to bear upon the
Freedom and Capability of another. — This my Eight,
however, is only a personal Plight, 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
Mural Person, which is identified with the Idea of the
united Will of All viewed a priori, and through which
THE PRINCIPLES OF PRIVATE RIGHT. 105
alone I can acquire a Eight valid against every Possessor
of the Tkinfj. For, it is in this that all Eight in a T/tiny
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, im
plies 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 (derclinquit) his Pos
session for the benefit of another, or renounces his
Plight (renunciat), and thereupon the other at the
same time enters upon it ; or conversely. The Trans
fer (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.
21.
Acceptance and Delivery.
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 exe
cuted otherwise than by an act whereby the Acceptor
106 KANT'S PHILOSOPHY OF LAW.
is put by the Promiser into possession of the Thing ; and
this is Delivery. Before the Delivery and the Keception
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 Eight arising
from a Contract, is only a Personal Right ; and it only
becomes a Heal 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 Con
tract, 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
Rii*ht 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 Tiling shall be before my taking pos
session of it (apprehensio), and consequently before
the actual change of possession, the Horse is not yet
mine ; and the Right which 1 acquire is only a Right
THE PRINCIPLES OF PRIVATE RIGHT. 107
against a particular Person — namely, the Seller of the
Horse — to be put into possession of the object (posccndi
traditionem) as the subjective condition of any use of
it at my will. My Eight is thus only a Personal
Itight to demand from the Seller the performance of
his promise (prccstatio) 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 in
tervenes 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 posse ssorium)
which constitutes a special Contract. This Act con
sists 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 Tiling 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 Uight ; and the
Acceptor can acquire an external Thing only by
Delivery.
10S KANT'S PHILOSOPHY OF LAW.
THIRD SECTION.
PRINCIPLES OF PERSONAL RIGHT THAT IS REAL IN KlND.
(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 com
posed 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 con
stituting 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 Per
missive Law, by the favour of which such Acquisition
becomes possible to us.
THE PRINCIPLES OF PRIVATE RIGHT. 109
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 2lcrsoJlfl^
of all Rights.
THE RIGHTS OF THE FAMILY AS A DOMESTIC
SOCIETY.
T I T L E FIRS T.
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.1 This natural
1 Commercium nexua.lt est u*ux membrorum ft facn/fahtm texualiwn
altering. This ' UBUX' is either natural, by winch 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 num.
These transgressions of all Law, as ' crimina carnix contra ncUuram,'
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.
110 KANT'S PHILOSOPHY OF LAW.
union of the sexes proceeds either according to the mere
animal Nature (vaga libido, vcnus vulgivaga, fornicatio),
or according to Law. The latter is MARRIAGE (matri-
monium), 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 im
planting 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.
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 Pieason.
25.
The Rational Right of Marriage.
For, this natural ' Commercium ' — as a ' usus mem-
Irorum scxnalium alterius ' — is an enjoyment for which
the one person is given up to the other. In this rela
tion 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,
THE PRINCIPLES OF PRIVATE RIGHT. Ill
that as the one Person is acquired by the other as a res,
that same Person also equally acquires the other recipro
cally, and thus regains and re-establishes 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 Eight 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 Plight 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
1 2 KANT'S PHILOSOPHY OF LAW.
under a Contract of Right, as the hiring of a person
on any one occasion, in the way of a pactum forni-
cationis. 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 fulfilment of their promise if they
wished to resile from it. And as regards the former,
a Contract of Concubinage would also fall as a
padum tiLrpe; because as a Contract of the hire
(locatio, condudio), 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 arbi
trary 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 Eight. 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
Eight, 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 Hus
band in relation to the Wife, ' he shall be thy master,'
so that he is represented as the one who commands,
and she as 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 Plight may thus be deduced from the very
THE PRINCIPLES OF PRIVATE RIGHT. 113
duty of Unity and Equality in relation to the End
involved.
27.
Fulfilment of the Contract of Marriage.
The Contract of Marriage is completed only by con
jugal cohabitation. A Contract of two Persons of
different sex, with the secret understanding either to
abstain from conjugal cohabitation or with the conscious
ness 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 Eight 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 subse
quent 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.'
KANT'S PHILOSOPHY OF LAW.
RIGHTS OF THE FAMILY AS A DOMESTIC
SOCIETY.
TITLE SECOND.
PARENTAL EIGHT.
(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 Eight 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 con
stituted, 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 Eight — distinguished from mere hereditary
Eight — to be reared by the care of their Parents till
they are capable of maintaining themselves ; and this pro
vision 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
THE PRINCIPLES OF PRIVATE RIGHT. 115
consent into the world, and placed in it by the respon
sible 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, alon^
with the Category of Causality, the Conilition 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
116 KANT'S PHILOSOPHY OF LAW.
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 in
vestigation, 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 the problem to be
solved, and also the necessity of doing justice in this
inquiry to the ultimate relations of the Principles of
Right.
29.
The Rights of the Parent.
From the Duty thus indicated, there further neces
sarily arises the Right of the Parents to THE MANAGE
MENT 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 con
tinued 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
THE PRINCIPLES OF PRIVATE RIGHT. 11?
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 Eight of the Parents is not a purely Eeal
Plight, and it is not alienable (jus personalissimum). But
neither is it a merely Personal Right ; it is a Personal
Eight of a real kind, that is, a Personal Eight that is
constituted and exercised after the manner of a Eeal
Eight.
It is therefore evident that the Title of a Personal
lliyht of a Eeal Kind must necessarily be added, in the
Science of Eight, to the Titles of Eeal Eight and
Personal Eight, the Division of Eights into these two
being not complete. For, if the Eight of the Parents to
the Children were treated as if it were merely a Eeal
Eight 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 to
impound them like things or runaway cattle.
118 KANT'S PHILOSOPHY OF LAW.
EIGHTS OF THE FAMILY AS A DOMESTIC
SOCIETY.
TITLE THIKD.
HOUSEHOLD EIGHT.
(Master and Servant.)
30.
Relation and Eight 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 Eight 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 Eight, is Jthus
naturally dissolved.
Uotli Parties, however, may resolve to continue the
THE PRINCIPLES OF PRIVATE RIGHT. 119
Household, but under another mode of Obligation. It
may assume the form of a relation between the Head 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 member
ship of the Household ; and thus there is established a
domestic relationship not founded on social equality, but
such that one commands as Master, and another obeys as
Servant (Imperantis et subjecti Domestic!).
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 Eeal Eight ; 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 Eight, or the use he is entitled to make of
such persons as his Domestics, he is not entitled to con
duct himself towards them as if he was their proprietor
or owner (domimis 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 ad
vantage 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 Eight of Property in relation
to one who has lost his legal personality by a Crime, does
not concern us here.
120 KAXT'S PHILOSOPHY OF LAW.
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 judgment as to what constitutes use or abuse in
such circumstances 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 inca
pacity 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 Eight 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 circum
stances, have been judicially investigated. [See Sup
plementary Explanations, I. u. m.]
THE PRINCIPLES OF PRIVATE RIGHT. 121
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
<>f Kight shall completely and definitely determine the
members of a logical Division of its Conceptions & priori,
and thus establish them in a genuine System. All
empirical Division, on the other hand, is merely fragmen
tary 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 & 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 Conse
quence, it is evident that I have no Security or Guarantee
that this will happen by the mere Acceptance of a Pro
mise. There is therefore something externally required
122 KANT'S PHILOSOPHY OF LAW.
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
PKOMISER, 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 Divi
sion, 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 the Mine and Thine that are
in accordance with rational Laws. But they lie outside
of the circle of the Metaphysical Science of Plight, whose
Itational Modes of Contract can alone be indicated here.
All Contracts are founded upon a purpose of Acquisi
tion, and are either
A. GRATUITOUS CONTRACTS, with unilateral Acquisi
tion; or
B. ONEROUS CONTRACTS, with reciprocal Acquisition; or
C. CAUTIONARY CONTRACTS, with no Acquisition,
lut only Guarantee of what has leen 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 Preser
vation of some valuable deposited in Trust.
THE PRINCIPLES OF PRIVATE RIGHT. 123
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 EECIPROCAL
EXCHANGE (permutatio late sic dicta) :
1. Barter, or strictly real Exchange (permutatio
stride 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 con-
ductio) :
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 Con
tract combining the consideration of Interest
with it (pactum usurarium).
2. Letting of Work on Hire (locatio opera1).
Consent to the use of my Powers by
another for a certain Price (mcrces). The
Worker under this Contract is a hired
Servant (mercenarius).
3. Mandate (mandatum). The Contract of Man
date 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
124 KANT'S PHILOSOPHY OF LAW.
not, at the same time, in his name, it is
performance without Commission (fjcstio
ncgotii) ; but if it is (rightfully) performed
in name of the other, it constitutes Man
date, which as a Contract of Procuration is
an onerous Contract (mandatum onerosum).
C. THE CAUTIONAKY CONTRACTS (cautiones) are : —
1. Pledge (pignus). Caution by a Moveable
deposited as security.
2. Suretyship (fidcjussio). Caution for the ful
filment of the promise of another.
:>. Personal Security (prcestatio obsidis). Guar
antee of Personal Performance.
This List of all the 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 Eight. 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 Boole. And considering these as illustra
tive examples in this connection, it will be shown that
the conception of MONEY as the greatest and most usealle
of all the Means of human intercommunication through
Things, in the way of Purchase and Sale in commerce,
THE PRINCIPLES OF PRIVATE RIGHT. 125
as well as that of Books as the greatest Means of carry
ing 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.
I. What is Money ?
MONEY is a tiling 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 exchange
able 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 nourish
ment and locomotion, and they even labour in our stead.
Thus by means of corn men are multiplied and sup-
126 KANT'S PHILOSOPHY OF LAW.
ported, 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 provi
sionally 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, there
fore, 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
THE PRINCIPLES OF PRIVATE RIGHT. 127
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 chang
ing them into Ready Money. But on its being in any
way found out that there is not Ready Money in suffi
cient 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 un
rewarded 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 ottered 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
a 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
128 KANT'S PHILOSOPHY OF LAW.
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 Makutcs, as in Congo ; or Ingots of Iron, as in
Senegal; or Negro Slaves, as on the Guinea Coast. When
the Baler of the country demanded such things as im
posts, those whose Labour had to be put in motion to
procure them were also paid by means of them, accord
ing 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 (pcrmutatio pullica), deter
mines 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
judgment 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.1 The precious metals, when they are not merely
1 Hence where Commerce is extensive neither Gold nor Copper is
specially used as Money, but only as constituting wares ; because there u
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
THE PRINCIPLES OF PRIVATE RIGHT. 129
-weighed but also stamped or provided with a sign
indicating how much they are worth, form legal Money,
and are called Coin.
According to Adam Smith, ' Money has become, in
nil civilised nations, the universal instrument of Com
merce, 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 Eight 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.
II. What is a Book ?
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.
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-metallic substances— can only take its place in the
rase of a people of limited commerce.
I
130 KANT'S PHILOSOPHY OF LAW.
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 Kight, and he is the right
ful Publisher ; but if this is clone without such permis
sion or authority, the act is contrary to Eight, 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 Engrav
ing that exhibits a Portrait, or a Bust or Caste 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 un
authorized 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
'niandatarium 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 Plight (furtum
usus). Unauthorized Printing and Publication of Books
THE PRINCIPLES OF PRIVATE RIGHT. 131
is therefore forbidden — as an act Counterfeit and Piracy
— on the ground of Eight.
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
imclumicum), that can be imitated by any one who may
be in rightful possession of a Copy ; and it is therefore
his by a Real Riglit. 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 (prce-
statio operce) ; 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. 1), namely, the Con
tract of LEASE (jus incolatus). The question is raised as
to whether a Proprietor when he lias 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 deter
mined by the nature of the subject in use. — In the
132 KANT'S PHILOSOPHY OF LAW.
former view, a house or farm would be regarded as having
a Burden lying upon it, constituting a Eeal Eight 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 Eight in a Thing as a Property,
overbears all Personal Eight which is inconsistent with
it. But there remains a Eight of Action to the Lessee,
on the ground of a Personal Eight for indemnification
on account of any loss arising from breaking of the
Contract. [See Supplementary Explanations, IV.]
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,
THE PRINCIPLES OF PRIVATE RIGHT. 133
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 Keason.
There are three Modes of Ideal Acquisition : —
I. Acquisition by USUCAPION ;
II. Acquisition by INHERITANCE or SUCCESSION;
III. Acquisition by UNDYING MKKIT (meritum im-
inortalc), 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 in '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 Ion;/
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 conscnsum prcc-
mmptum) ; nor because I can assume that as he does not
oppose my Acquisition of it, he has relinquished or aban
doned 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
134 KANT'S PHILOSOPHY OF LAW.
durin^ 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 Acquisi
tion is not quite correctly designated Acquisition by
Prescription (per proscription*™) ; for the exclusion of
all other claimants is to be regarded as only the Conse
quence 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 Eight 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 by a juridical process of Posses
sion, 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 posses
sory activity had not the effect of enabling another to
found upon his hitherto lawful, undisputed and lona fid*'
Possession, an irrefragable Eight to continue in its pos
session 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
THE PRINCIPLES OF PRIVATE RIGHT. 135
is evident on the ground that there are no historical
Uecords 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
llight as allowed and just, but also the presumption of
its being Eight (prcesumtio juris ct de jure), and its being
assumed to be in accordance with compulsory Laws
(snppositio legalis). Any one who has neglected to
embody his possessory Act in a documentary Title, has
lost his Claim to the Eight 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 main
taining oneself in possession of it where there are no
Juridical Acts. A release from juridical claims is com
monly also called Acquisition. The Prescriptive Title of
136 KANT'S PHILOSOPHY OF LAW.
the older Possessor, therefore, belongs to the sphere of
Natural Eight (est juris naturce). [See Supplementary
Explanations, VI.]
34.
II. Acquisition by Inheritance.
(Acquisitio hoereditatis.)
INHERITANCE is constituted by the transfer (translatw)
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 (hceredis
instituti) and the Ptelinquishment 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 — iTi articulo mortis — and just when the Testator
(.•eases to be. There is therefore no special Act of
Transfer (translatw) 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 con
stituted by a simultaneous double Act is, therefore, an
ideal Mode of Acquisition. Inheritance is inconceivable
in the State of Nature without a Testamentary Disposi
tion (dispositio ultima wluntatis) ; 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 (testamentitm). The deter
mination 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,
THE PRINCIPLES OF PI5IVATE RIGHT. 137
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 Cains 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 simultanca) which, however, is here awant-
ing. So long as Cains lives, Titius cannot expressly
accept in order to enter on Acquisition, because Cains
lias 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. — How
ever, 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
hccreditas jaccns. 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 Cains 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 be
queathed to him, his own or not.
138 KANT'S PHILOSOPHY OF LAW.
Hence Testaments are valid according to mere
Natural Right (mnt juris naturce). 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. [See Supplementary Explanations, vn.]
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 Pteputa-
tion 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.
By a blameless life and a death that worthily ends it,
THE PRINCIPLES OF PRIVATE RIGHT. 1 : ','.'
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 phenomenon'). It is further held
that his Survivors and Successors — whether relatives or
strangers — are entitled to defend his good Name as a
matter of Kight, 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 Plight is a peculiar and, nevertheless, an undeni
able manifestation in fact, of the ft priori law-giving
lleason thus extending its Law of Command or Prohibi
tion 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 of 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 Plight 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
140 KANT'S PHILOSOPHY OF LAW.
Plight 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 Eight, 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, how
ever, made from all that belongs physically to their
existence in Space and Time ; that is, men are
considered logically apart from these physical con
comitants 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
suprasensible, 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 Ei«ht.
PRIVATE RIGHT.
CHAPTER THIRD.
ACQUISITION CONDITIONED BY THE SENTENCE OF A PUBLIC
JUDICATOKY.
36.
How and what Acquisition is subjectively conditioned
by the Principle of a Public Court.
NATUKAL RIGHT, understood simply as that Right which
is not statutory, and which is knowable purely h 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 inter
course 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 Judi-
eatory ; the Sentence delivered in a case, is the Judgment
142 KANT'S PHILOSOPHY OF LAW.
(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 Judgment of Eeason ;
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 Judgment have a different and opposite issue.
And yet they may coexist 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 CONTKACT OF DONATION (pactum dona-
tionis), II. THE CONTRACT OF LOAN (commodatum), III.
THE ACTION OF REAL REVINDICATION (vindicatio), and
IV. GUARANTEE BY OATH (jur amentum).
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 (yitium 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.
THE PRINCIPLES OF PRIVATE RIGHT. 143
37.
I. The Contract of Donation.
(Pactum donationis.)
The Contract of Donation signifies the gratuitous
alienation (gratis) of a Tiling or Eight 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 Eight, by which
what is mine is transferred to the latter, on his accept
ance 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
mum jactare prxsumitur. 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 Promisor, 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
144
mind ; and if he did not make such an express reserva
tion, it will be held that he can be compelled to imple
ment 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 con
tracting Parties agree that the Borrower will restore the
very same thing to the power of the Lender. But the
Pieceiver of the Loan (commodatarius) cannot, at the
same time, assume that the Owner of the Thing lent
(commodam) 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
Pteceiver. For it is not to be understood of itself, that
the Owner, besides the use of the Thing, which he has
granted to the lieceiver, and the detriment that is
inseparable from such use, also gives a Guarantee or
Wanandice 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
<l to guarantee the property of the Lender, up to
THE PRINCIPLES OF PRIVATE RIGHT. 145
restoration of the very same Thing or its equivalent ?
Certainly not the Lender; because it cannot be pre
sumed 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 other
wise, however, if on asking the use of an article, I
discharged myself beforehand from all responsibility, in
case of its coming to grief among 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
K
146 KANT'S PHILOSOPHY OF LAW.
damage (casus) which the Thing lent may undergo
cannot be exactly determined in any Agreement. Com-
modate is therefore an uncertain Contract (pactum
inccrtum], because the consent can only be so far pre
sumed. The Judgment, in any case, deciding upon
whom the incidence of any loss must fall, cannot there
fore be determined from the conditions of the Contract
in itself, but only ly 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 Judgment passed in the state of
Nature, will be different from that given by a Court
of Justice in the Civil state. The Judgment from the
standpoint of Natural Eight 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 com-
modatarius) ; 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 Judg
ment turns out differently from the former as the
Sentence of the mere sound Eeason, 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 Judgment as the Court must
deliver it, and the form in which each individual is
entitled to hold it for himself by his private Eeason, is a
matter of importance, and is not to be overlooked in the
consideration of Juridical Judgments.
THE PRINCIPLES OF PRIVATE RIGHT. 147
39.
III. The Revindication of what has been Lost.
(Vindicatio.)
^ It is clear from what has been already said that ;i
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
Eight in this Thing (jus reale) belongs in consequence
to me (jus personate), 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 Eight 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 bond fide way as a sup
posed ' 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 Eight
in the Thing itself, and have merely a personal Eight
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
Xature, and not according to the convenience of a Court
of Justice.
For everything alienable must be capable of being
acquired by any one. The Eightfulness of Acquisition",
148 KANT'S PHILOSOPHY OF LAW.
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
prccwmitur 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
Eight, 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 Eight when I deal in a stolen horse ex
posed for sale in the market, yet a real Title warranting
THE PRINCIPLES OF PRIVATE RIGHT. 149
the Acquisition was awanting ; for the horse was not really
the property of the Seller in question. However I may
be a bond fide Possessor of a Thing under such conditions,
I am still only a putative Owner, and the real Owner has
the Eight of Vindication against me (rem suam vindi-
candi).
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 Com
mutative Justice ? And it must be admitted in this
connection, that whoever has a purpose of acquiring
anything, must regard it as absolutely necessary to in
vestigate 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 bond 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 Kights 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.
150 KANT'S PHILOSOPHY OF LAW.
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 it 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, fulfilment of the formal con
ditions of Acquisition that in themselves only establish
a Personal Plight, 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 Eight, valid before a Court, as a
Peal 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 justitice distribu
tives) 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
THE PRINCIPLES OF PRIVATE RIGHT. 151
is thus accepted and dealt with according to a pure
Principle & 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 Keal 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 judgment
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
lelieve 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
152 KANT'S PHILOSOPHY OF LAW.
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 Eight of Man. Hence recourse has been
had to a motive founded on mere myths and fables
as imaginary guarantees. Thus among the Rcjangs, 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 impre
cate 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, indispens
able 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 obli
gatory, 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
THE PRINCIPLES OF PRIVATE RIGHT. 153
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 Keligion, under
the supposition that every one has it, it may be utilized
as a necessary means (in cavxu 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 ascertain
ment 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 con
trary 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 admini
stration 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.
154 KANT'S PHILOSOPHY OF LAW.
As regards an Oath taken concerning a matter of
Belief (de crcdulitate}, it is evident that no such Oath
can be demanded by a Court. 1. For, first, it con
tains 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 PRIVATE RIGHT TO PUBLIC RIGHT. 155
TRANSITION
FROM THE MINE AND THINE IN THE STATE OF NATURE
TO THE MINE AND TlIINE 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 Distri
butive Justice (justitia distributiva). In the first mode of
Justice, the Law declares merely what Relation is inter
nally 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
Judgment of a Court in any particular case coming
under the <'iven Law. In this latter relation, the Public
156 KANT'S PHILOSOPHY OF LAW.
€ourt is called the Justice of the Country ; and the ques
tion whether there actually is or is not such an admini
stration 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 (static natumlis), 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 involun
tarily come into Relations of Eight with one another,
ouyht 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 co-existence of men
under a common Constitution ; and in this respect these
Laws must necessarily be regarded and conceived as
Public Laws.
TRANSITION FROM PRIVATE RIGHT TO PUBLIC RIGHT. 157
The Civil Union (Unio civilis) cannot, in the strict
sense, be properly called a Society; for there is no
sociality in common between the Kuler (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 Eight.
From the conditions of Private Right in the Natural
state, there arises the Postulate of Public Eight. It may
be thus expressed : ' In the relation of unavoidable
co-existence 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, contradis
tinguished 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 absten
tion 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 Incli
nation of men to play the master over others, and to
158 KANT'S PHILOSOPHY OF LAW.
disregard the claims of the Eight 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.
Quilibct prccsumitur malus, donee sccuritatem dedcrit
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
partcs 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 fre
quent application in the Science of Eight. 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
Eight, and give up everything, as it were by law
itself, to savage Violence, and thus overthrow the
Eights of Men generally.
THE SCIENCE OF EIGHT
PART SECOND.
PUBLIC RIGHT.
THE SYSTEM OF THOSE LAWS WHICH REQUIRE
PUBLIC PROMULGATION.
PUBLIC RIGHT.
THE PRINCIPLES OF RIGHT IN CIVIL SOCIETV.
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
a 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 eacli 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 puUica latins sic dicta). The
Principles of Eight in this sphere, thus constitute the
first department of Public Eight as the EIGHT OF THE
STATE (jus Civitatis) or National Eight. — 2. The State,
again, viewed in relation to other peoples, is call(d a
L
162 KANT'S PHILOSOPHY OF LAW.
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.
PUBLIC RIGHT.
I.
PLIGHT 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 Kight men may be considered to be of
themselves, the rational Idea of a state of Society not yet
regulated by Kight, 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 sctms yuod
and rifjht in his man eyes, entirely independent of the
opinion of others. Hence, unless the institution of Right
164 KANT'S PHILOSOPHY OF LAW.
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 recognised 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, aw
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 Eight (status justitice vacuus), so that if a matter of
Eight came to be in dispute (jus contr over sum), no com
petent 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 rion - juridical state of life and enter within the
jurisdiction of a civil state of Society. For, although on
the basis of the ideas of Eight 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 Eight.
THE PRINCIPLES OF PUBLIC RIGHT. 165
If men were not disposed to recognise any Acquisi
tion 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 Xature,
contain formally the very same thing as they pre
scribe 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 gener
ally, — 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 Common
wealth.
Every State contains in itself THREE TOWERS, the
universal united Will of the People being thus personi
fied in a political triad. These are the Legislative Power,
the Executive Power, and the Jiuliciary Power. — 1. The
Legislative Power of the Sovereignty in the State, is
1G6 KANT'S PHILOSOPHY OF LAW.
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, em
bodied in the person of the Judge, is the function of
assigning every one what is his own, according to the
Law (Potcstas Icyixlatoria, rcctoria 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 judgment 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. Tor, 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,
THE PRINCIPLES OF PUBLIC RIGHT. 167
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 Right 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 qualifica
tion 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 com
munity with others. The last of the three qualities
involved, necessarily constitutes the distinction be
tween 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
(naturalitcr 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,
168 KANT'S PHILOSOPHY OF LAW.
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 dis
tinguished from the European Carpenter or Smith,
who can offer the independent products of his labour
as wares for public sale ; the resident Tutor as dis
tinguished 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 Common
wealth and not active independent Members of it,
because they are of necessity commanded and pro
tected 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 con
stitute 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 the 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 Plight 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 Free
dom of all the people and the Equality that is con
formable thereto; and it must therefore be made
THE PRINCIPLES OF PUBLIC RIGHT. 1C9
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 essen
tial 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
riding Power, whose function is to govern (imperans) ;
the latter is the ruled Constituents of the State, whose
function is to obey (sulditi).
The act by which a People is represented as consti
tuting 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 Common
wealth. 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
170 KANT'S PHILOSOPHY OF LAW.
undiminished, but in the form of a regulated order of
dependence, that is, in a Civil state regulated by laws of
llight. 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 rela
tions to each other, are, therefore — (1) co-ordinate 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 main
taining 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
Plights.
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 irreprehcnsible ; 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.
THE PRINCIPLES OF PUBLIC RIGHT. 171
49.
Distinct Functions of the Three Powers. Autonomy of the
State.
1. The Executive Power belongs to the Governor or
llegent of the State, whether it assumes the form of a
Moral or Individual Person, as the King or Prince (rex,
princcps). This Executive Authority, as the Supreme
Agent of the State, appoints the Magistrates, and pre
scribes 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 Govern
ment. The Orders issued by the Government to the
People and the Magistrates as well as to the higher
Ministerial Administrators of the State (gubcrnatio), 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 recognise their independence,
each individual possessing himself and not being dcpen-
172 K AST'S PHILOSOPHY OF LAW.
(lent 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 Execu
tive Power — can do no wrong.' For any such applica
tion of Punishment would necessarily be an act of that
very Executive Power to which the supreme Eight 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 Repre
sentatives 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 deter-
THE PRINCIPLES OF PUBLIC RIGHT. 173
mined, or who pronounced the judgments 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 — by 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 reye male wfonnato ad reycm meHu*
infonnandum).
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 accord
ance with the Laws of Freedom. In their union the
Welfare of the State is realized. Salus reipuUiccc suprcma
lex. By this is not to be understood merely the indi
vidual 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.
Hut 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.
174 K AST'S PHILOSOPHY OF LAW.
CONSTITUTIONAL AND JUKIDICAL CONSEQUENCES ARISING
FROM THE NATURE OF THE CIVIL UNION.
A. Right of the Supreme Power, Treason ; Dethronement ;
Revolution; Reform.
The Origin of the Supreme Power is practically in
scrutable 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 contr over sum). For as the People, in
order to be able to adjudicate with a title of Plight
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 Eight, 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
THE PRINCIPLES OF PUBLIC RIGHT. 175
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 Prin
ciple of the Practical Pteason. 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 com
mand 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
176 KANT'S PHILOSOPHY OF LAW.
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 Parlia
ment, under such conditions, may have in these war
rantors of their Freedom and Plights, 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 pre
tensions 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 Govern
ment. 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
Plight, 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 Plights by his
arbitrary influence upon the Government, as rather to
cloak it over under the illusion of a Eight 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
THE PRINCIPLES OF PUBLIC RIGHT. 177
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 tyranni-
cidii). The slightest attempt of this kind is lliyh
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 con
sidered 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 Constitu
tion. 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. — See Supplementary Explanations, ix.
The Dethronement of a Monarch may be also con
ceived 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
M
178 KANT'S PHILOSOPHY OF LAW.
under the pretext of a ' Right of Necessity ' (cams
neeessitatis) ; and least of all can the slightest Eight
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 often 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, pro
duced 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, inexpiaUle) ; 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 reflec
tions 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 trans
gressor making such wrong-doing his rule of action ;
lor were it not committed by him as a free Being, it
THE PRINCIPLES OF PUBLIC RIGHT. 179
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 lawgiving Keason ; 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 accord
ing 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 wicked
ness, and yet the idea of such extreme perversity
cannot be overlooked in a System of Moral Philo
sophy.
There is thus a feeling of horror at the thought of
the formal Execution of a Monarch by his People.
And the reason of it is, that whereas an act of Assassi
nation 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 per
version of the Principles that should regulate the
relation between a Sovereign and his People. For it
makes the People, who owe their constitutional exist
ence to the Legislation that issued from the Sovereign,
180 KANT'S PHILOSOPHY OF LAW.
to be the Kuler 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 Eight, 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 accompany
ing them, have only been put forward in order to give
these deeds a look of Punishment from the accom
paniment 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 pur
pose, 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 restora
tion 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 affect 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 Constitu
tion. 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
THE PRINCIPLES OF PUBLIC RIGHT. 181
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 Eight 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 Sub
jects 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 admini
stration ; and still less may he be punished for it, when
withdrawing into the private life of a citizen he prefers
his own quiet and the peace of the State to the un
certainty 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 Monarcli 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
1S2 KANT'S PHILOSOPHY OF LAW.
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 Eight, but to the following
section, concerning the Eight of Nations.
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 Euler of the People by the
laws ? As the Soil is the supreme condition under whicli
it is alone possible to have external things as one's own,
its possible possession and use constitute the first acquir-
able basis of external Eight. Hence it is that all such
Eights must be derived from the Sovereign as Over-lord
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
Eeal Eight, but as their Supreme Commander or Chief in
the way of Personal Eight. This Supreme Proprietor
ship, however, is only an Idea of the Civil Constitution,
objectified to represent, in accordance with juridical con
ceptions, 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 Eights 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 prin-
THE PRINCIPLES OF PUBLIC 1UGHT. 183
ciple 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 liis 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 (yleucc
adscripti). As possessors only of what was the private
property of another, they might thus be deprived of Jill
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 be also said that he
possesses everything ; for he has the Supreme Right of
Sovereignty over the whole People, to whom all external
things severally (divisini) 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 genera
tions for all time (ad infinitum\ according to certain
fixed Statutes. The State may annul and abrogate all
184 KANT'S PHILOSOPHY OF LAW.
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 connec
tion 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 judgment 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).
THE PRINCIPLES OF PUBLIC RIGHT. 185
On this primarily acquired Supreme Proprietorship in
the Land, rests the Eight 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 Eight.
This may be effected through the medium of the Body
of Deputies who represent the People. It is also per
missible, in circumstances in which the State is in
imminent danger, to proceed by a forced Loan, as a
Eight vested in the Sovereign, although this may be a
divergence from the existing Law.
Upon this Principle is also founded the Eight 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 vulyi-
vaga), or other offences against the Moral Sense, as it
greatly facilitates the Government in the task of regulat
ing the life of the People by law.
For the preservation of the State there further belongs
to it a Eight of Inspection (jus inspect ionis), 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
186 KANT'S PHILOSOPHY OF LAW.
Police, can only be justified in a case of Necessity ; and
in every particular instance, it must be authorized by a
higher Authority.
C. Relief of the Poor. Foundling Hospitals. The
Church.
The Sovereign, as undertaker of the duty of the
People, has the Eight to tax them for purposes essenti
ally connected with their own preservation. Such are,
in particular, the Eelief 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 per
petually 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 neces
sary 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 Eight 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
THE PRINCIPLES OF PUBLIC PJGIIT. 187
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 Riyht 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
Ilelief 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 Assess
ment 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 Bight 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 Eight 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
188 KANT'S PHILOSOPHY OF LAW.
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 Eight. 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 Eeligion, 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 often be brought into a very
undesirable collision with the Civil Power. The State
has therefore a Eight in this relation ; but it is not to be
regarded as the Eight of Constitutional Legislation in the
Church, so as to organize it as may seem most advan
tageous 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 con
nection, only includes the negative Eight of regulating the
influence of these public teachers upon the visible political
Commonwealth, that it may not be prejudicial to the
public peace and tranquillity. Consequently the State
has to take measures, on occasion of any internal conflict
in the Church, or on occasion of any collision of the
THE PRINCIPLES OF PUBLIC RIGHT. 1 39
several Churches with each other, that Civil concord is
not endangered ; and this Kight falls within the province
of the Police. It is beneath tlie difjnity 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 Eights. 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. — See
Supplementary Explanations, vin.
100 KANT'S PHILOSOPHY OF LAW.
D. The Right of assigning Offices and Dignities in
the State.
The Plight of the Supreme Authority in the State also
includes :
1. The Distribution of Offices, as public and paid em
ployments ;
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
support by a different occupation. Arbitrary and
THE PRINCIPLES OF PUBLIC RIGHT. 101
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
judgments 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 pro
vision.
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 Eight 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 Kight 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
102 KANT'S PHILOSOPHY OF LAW.
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 regard
ing themselves and their associated citizens, cannot be
constitutionally determined by the Sovereign regarding
the People.' Now a hereditary Nobility is a Hank 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 the Government in olden times, as in the
case of the Feudal System, which was almost entirely
organized with reference to War. Under such circum
stances, the State cannot deal otherwise with this error
of a wrongly instituted Ptank in its midst, than by the
remedy of a gradual extinction through hereditary posi
tions being left unfilled as they fall vacant. The State
has therefore the Plight 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 two
fold and only natural division into Sovereign and People.
THE PRINCIPLES OF PUBLIC RIGHT. 193
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
judgment, he would practically become a Slave, and would
belong as property (dominium) to another, who would be
not merely his Master (herns) 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 con
dition 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 dis
charge 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 (scrvus). 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 Islands, — 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 con
tract to perform work that is defined both in quality and
quantity, either as a Day-labourer or as a domiciled Subject.
N
194 KANT'S PHILOSOPHY OF LA.W.
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 bonds
man, or a serf attached to the soil (glebce 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 wrong-doing. 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.
E. The Right of Punishing and of Pardoning.
I. THE EIGHT OF PUNISHING.
The Eight of administering Punishment, is the Eight
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
THE PRINCIPLES OF PUBLIC RIGHT. 195
dealt with by a Civil Court ; Public Crimes by a Criminal
Court. — Embezzlement or peculation 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 aljectcc) and those of a violent character (indolis
violcnticc).
Judicial or Juridical Punishment (pcena forensis) is
to be distinguished from Natural Punishment (pcena
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 admini
stered 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
196 KANT'S PHILOSOPHY OF LAW.
maxim : ' It is better that one man should die than that
the whole people should perish.' For if Justice and
Kighteousness 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 under
stand that if he agreed to certain dangerous experiments
being performed upon him, he would be allowed to sur
vive 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 ren
dered 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 your
self.' This is the Eight of EETALIATION (jus talionis) ;
and properly understood, it is the only Principle which
in regulating a Public Court, as distinguished from mere
private judgment, 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 prin-
THE PRINCIPLES OF PUBLIC RIGHT. 197
ciple 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 witli
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 com
mitted 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
judgment 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 imprison
ment, 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
198 KANT'S PHILOSOPHY OF LAW.
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 propor
tion 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 Mur
derer 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 bloodguiltiness 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 there
fore only possible by the cognition of the Judge
extending even to the penalty of Death, according to
the Plight 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 wicked-
ness; as may be seen by considering the case when the
THE PRINCIPLES OF PUBLIC RIGHT. 199
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 Judgment 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.1 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 judgment to be pronounced over a number of
criminals united in such a conspiracy, the best Equalizer
1 ' Animam pneferrc i>iulori, Juvtn.
200 KANT'S PHILOSOPHY OF LAW.
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 Eeason.
But the number of the Accomplices (corrci) 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 Sove
reign 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 Judgment which, instead
of the penalty of death, shall assign some other punish
ment to the Criminals, and thereby preserve a multitude
of the People. The penalty of Deportation is relevant
in this connection. Such a form of Judgment cannot
THE PRINCIPLES OF PUBLIC RIGHT. 201
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 compas
sionate 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 he 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 Eight. 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
\vills, 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 he the pure juridically law -giving
lleason (lioino noumcnon), which subjects him as one
capable of crime, and consequently as another Person
202 KANT'S PHILOSOPHY OF LAW.
(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 dis
posing of themselves and their lives. For if the Eight
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 (irpwrov
>/re{}8o?) of this sophistry consists in regarding the
judgment of the Criminal himself, necessarily deter
mined by his Reason, that he is under obligation to
undergo the loss of his life, as a judgment that must
be grounded on a resolution of his Will to take it away
himself ; and thus the execution of the Eight in question
is represented as united in one and the same person with
the adjudication of the Eight.
There are, however, two crimes worthy of death, in
respect of which it still remains doubtful whether the
Legislature have the Eight to deal with them capitally.
It is the sentiment of Honour that induces their per
petration. 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
THE PRINCIPLES OF PUBLIp RIGHT. 203
wipe off the stain attaching from a suspicion of cowardice,
to an officer who does not resist an act that would brintr
O
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 ille
gitimate 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 ex
posed 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
winch 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 consent of both parties, although it may be
done unwillingly, it cannot properly be called Murder
(homicidium dolosum). — What then is the Eight in both
cases as relating to Criminal Justice ? Penal Justice is
204 KANT'S PHILOSOPHY OF LAW.
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 clue 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. [See Supplementary Explanations, v.]
II. THE EIGHT OF PARDONING.
The RIGHT OF PARDONING (Jus aygratiandi), viewed in
relation to the Criminal, is the Eight of mitigating or
entirely remitting his Punishment. On the side of the
Sovereign this is the most delicate of all Eights, 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 on
occasion of some form of TREASON (crimen Icesce tnajes-
fctis), as a lesion against himself, that the Sovereign
should make use of this Eight. And it should not be
THE PRINCIPLES OF PUBLIC RIGHT. 205
exercised even in this connection, if the safety of th«
People would be endangered by remitting such Punish
ment. This Right is the only one which properly
deserves the name of a ' Plight of Majesty.'
50.
Juridical Relations of the Citizen to his Country and to
other Countries. Emigration ; Immigration ; Banish
ment; 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 (imperil) so as to be the aboil t-
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 ' (rcgio domino).
1. A Subject, even regarded as u Citizen, has the
Right of Emifjration ; 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 immov
able 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 Imm it/ration, and the settlement of
206 KANT'S PHILOSOPHY OF LAW.
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 Eight of inflicting Banishment to a Country abroad.
By such Deportation, he does not acquire any share in
the Eights of the Citizens of the territory to which he is
banished.
4. The Supreme Power has also the Eight 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 con
ception of a Public Government generally (res publica
latins dicta), are only so many Eelations of the united
Will of the People which emanates from the a priori
Eeason ; 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 con
ceived only as a Eepresentation of the whole People, the
Idea still requires physical embodiment in a Person, who
1 In the old German language ' Elend,' which in its modern use means
'misery.'
THE PRINCIPLES OF PUBLIC 1IIGIIT. 207
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 con
ceivable in three different forms : Either Chic in the State
rules over all ; or Some, united in a 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 hiyhcst
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 rela
tion 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 LTnion, 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 OcJdocracy, 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.
208 KANT'S PHILOSOPHY OF LAW.
As regards the Administration of Eight in the State,
it may be said that the simplest mode is also the best ;
but as regards its bearing on Eight itself, it is also tlu;
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 simpli
fication 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
he has the judgment 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
Euler ; ' 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 dis
cover historically the point of time at which Civil
Society took its beginning. Savages do not draw up ;i
documentary Eecord of their having submitted themselves
to Law ; and it may be inferred from the nature of
uncivilised men that they must have set out from a state
of violence. To prosecute such an inquiry in the inten-
THE PRINCIPLES OF PUBLIC RIGHT. 209
tion of finding a pretext for altering the existing Con
stitution by violence, is no less than penal. For such a
mode of alteration would amount to a 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
IJiglit 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 Con
stitution by Palingenesis and not by mere Meta
morphosis ; 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 Auto
cracy, 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.
210 KANT'S PHILOSOPHY OF LAW.
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 sub
jectively), to be necessary to the machinery of the political
Constitution. But the spirit of that original Contract
(anima pacti originarii) contains and imposes the obliga
tion 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 con
tinuously 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 ns their principle, and even as the con
dition of all compulsion and constraint. Compulsion
is in fact requisite for the realization of a juridical Con
stitution, 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 Eight, and the state in
which every citizen can have what is his own peremp
torily 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 Eight, and
not an absolutely juridical state of Civil Society.
Every true Eepublic is and can only be constituted
by a Representative System of the People. Such a Eepre-
scntative System is instituted in name of the People,
THE PRINCIPLES OF PUBLIC RIGHT. 211
and is constituted by all the Citizens being united together,
iii order, by means of their Deputies, to protect and secure
their Eights. 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 — be
comes also representative, the United People then does
not merely represent the Sovereignty, but they are them
selves 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 Insti
tutions by their arbitrary and absolute Will.
It was therefore a great error in judgment 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 dis
tribute 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; arid in conse
quence, 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 sub
jected. Nor can it be said that a tacit and yet
obligatory promise must be assumed as having, under
212 KANT'S PHILOSOPHY OF LAW.
such circumstances, been given by the National
Assembly, not to constitute themselves into a Sove
reignty, 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 Legis
lation in the Commonwealth is not an alienable
Right, but is the most personal of all Rights. Who
ever 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 Con
tracts. 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.
PUBLIC RIGHT.
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 (congcniti), 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 law
less freedom they have chosen, regard themselves as
superior to civilised 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 designa
tion of the ' Right of Nations.' Wherever a State, viewed
214 KANT'S PHILOSOPHY OF LAW.
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 Eight takes it rise.
The Eight of Nations in relation to the State of War
may be divided into: 1. The Eight of going to War;
2. Eight during War ; and 3. Eight after War, the object
of which is to constrain the nations mutually to pass
from this state of war, and to found a common Con
stitution establishing Perpetual Peace. The difference
between the Eight of individual men or families as
related to each other in the state of Nature, and the
Eight of the Nations among themselves, consists in this,
that in the Eight 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 Eight of Nations and the Eight of Individuals in
the mere State of Nature, requires to be determined
by elements which can easily be deduced from the con
ception of the latter.
54.
Elements of the Right of Nations.
The elements of the Eight of Nations are as
follow : —
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 Eight of the stronger prevails ; and although
it may not in fact be always found as a state of actual
THE PRINCIPLES OF PUBLIC RIGHT. 215
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 pro
tect 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 Tower, 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 Eight which comes in as an
accessory (in subsidium) of another original Eight, in
order to prevent the Nations from falling from Eight,
and lapsing into the state of actual war with each other.
It thus issues in the idea of a Fcedus Ampliidyonum.
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 Eight of free States to go to War with each
other as being still in a state of Nature, but as exercis
ing this Eight in order to establish some condition of
society approaching the juridical state. And, first of all,
the question arises as to what Eight the State has in
relation to its own Subjects, to use them in order to make
216 KANT'S PHILOSOPHY OF LAW.
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 judgment
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 Plight appears capable of being easily estab
lished. It may be grounded upon the Eight 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 Con
stitution 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
THE PRINCIPLES OF PUBLIC RIGHT. 217
here and there were it not for the protection of Govern
ment ; because without it they could not spread them
selves 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 multi
tude 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 con
sumed 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 representa
tives, 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.
218 KANT'S PHILOSOPHY OF LAW.
Under this relation the people must be regarded as
having given their sanction ; and, having the Eight 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 Eight of
Nations to go to War and to carry on hostilities is the
legitimate way by which they prosecute their Eights 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 pre
paration of Armaments, upon which a Eight of Preven
tion (jus prccventionis) 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 Eight 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
THE PRINCIPLES OF PUBLIC RIGHT. 219
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 peace
ful 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
one side of the declaration on the other, and amounting
to the fact that they both will to seek their Eight in
this way.
57.
Right during War.
The determination of what constitutes Eight 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 con
dition of the states in their external relations to each
other, and to enter into a condition of Right.
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 subfugatorium) ; for this would issue in the moral
220 KANT'S PHILOSOPHY OF LAW.
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 Eight 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 allow
able 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 Eight 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 malig
nant and perfidious means as would destroy the con
fidence which would be requisite to establish a lasting
peace thereafter.
It is permissible in war to impose exactions and con
tributions 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
THE PRINCIPLES OF PUBLIC RIGHT. L' '1 1
carried on the war by means of them. All exactions
should be raised by regular Requisition, and lieceipts
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.
58.
Right after War.
The Eight that follows after War, begins at the
moment of the Treaty of Peace and refers to the con
sequences 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 restitu
tion 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
KANT'S PHILOSOPHY OF LAW.
constitution, legislation, and territory, where persons be
longing 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 Parlia
ment under the presidency of a Viceroy (civitas Uybrida).
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 institu
tion, 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
Jicreditary 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.
59.
The Rights of Peace.
The Eights of Peace are : —
1. The Eight to be in Peace when War is in the
neighbourhood, or the Kight of Neutrality.
. The Kight to have Peace secured so that it may
continue when it has been concluded, that is, the Kight
of Guarantee.
. The Kight of the several States to enter int.. „
mutual Allmnce, so as to defend themselves in common
unst all external or even internal attacks. This Eight
of Federation, however, does not extend to the formation
B
THE PRINCIPLES OF PUBLIC RIGHT.
of any League for external aggression or internal aggran
dizement.
60.
Right as against an Unjust Enemy.
The Hight 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
1 tight to what is its own. But what then is an unjust
enemy according to the conceptions of the liight 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
u maxim which, if it were taken as a universal rule,
would make a state of Peace among the nations impos
sible, 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 free
dom, 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 liight 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
Eight to unite into a Commonwealth, and to adopt such
a new Constitution as by its nature would be unfavour
able 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
004 KANT'S PHILOSOPHY OF LAW.
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 Eight 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 conse
quently 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 Eight of Nations, becomes in fact an impractic
able 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 impractic
able ; they are as practicable as this approximation
itself, which is a practical problem involving a duty,
and founded upon the Eight 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
THE PRINCIPLES OF PUBLIC RIGHT. 22
_ •_' .
is free to every neighbouring State to join in it. A
union of this kind, so far at least as regards the for
malities 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 differ
ences. But in place of this agreement, the Right of
Nations afterwards survived only in books; it dis
appeared 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 con
stitution, 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.
PUBLIC RIGHT.
III.
THE UNIVERSAL EIGHT 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 terraqucus ; 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 & 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
THE PRINCIPLES OF PUBLIC RIGHT. 227
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
Eight, 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 ' Cosmo-
political Kight ' (jus cosmopoliticum}.
It may appear that seas put nations out of all com
munion 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 coast - lands, 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 con
nected 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 pur
pose to visit all the regions of the earth, although this
does not constitute a right of settlement upon the terri
tory 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
228 KANT S PHILOSOPHY OF LAW.
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 appro
priation 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 civilisation 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 main
tained, the whole earth would still have been in a state
of lawlessness. But such an objection would as little
annul the conditions of Eight in question as the pre
text of the political revolutionaries, that when a con
stitution 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.
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 station-
ariness 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 (suppo-
xitio) of the practicability of such an End, though pre
sented merely as a theoretical and problematical judgment,
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
230 KANT'S PHILOSOPHY OF LAW.
utters within us its irrevocable Veto : ' There shall le 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 Eight.
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 Eepubli-
canism 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 establish
ment of Peace constitutes not merely a part, but the
whole final purpose and End of the Science of Eight as
viewed within the limits of Reason. The state of Peace
is the only condition of the Mine and Thine that is
THE PRINCIPLES OF PUBLIC RIGHT. 231
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 Keason h 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.
SUPPLEMENTARY EXPLANATIONS
OF THE
PEINCIPLES OF EIGHT
[Written by Kant in 1797, and added to the
Second Edition in 1798.1
SUPPLEMENTARY EXPLANATIONS OF THE
PRINCIPLES OF RIGHT.
The Occasion for these Explanations was furnished
mainly by a Review of this work that appeared in the
Gottingen Journal, No. 28, of 18th February 1797.
The Review displays insight, and with sympathetic
appreciation it expresses ' the hope that this Ex
position of Principles will prove a permanent gain
for juridical Science.' It is here taken as a guide in
the arrangement of some critical Remarks, and at the
same time as suggesting some expansion of the system
in certain points of detail.
Objection as to the Faculty of Desire.
In the very first words of the GENERAL INTRODUCTION
the acute Reviewer stumbles on a Definition. He asks
what is meant by 'the Faculty of Desire.' In the said
Introduction it is defined as ' the Power which Man has,
through his mental representations, of becoming the cause
of objects corresponding to these representations.' To
this Definition the objection is taken, ' that it amounts
to nothing as soon as we abstract from the external con
ditions of the effect or consequence of the act of Desire.'
' But the Faculty of Desire,' it is added, ' is something
even to the Idealist, although there is no external world
according to his view.' — ANSWER : Is there not likewise
SUPPLEMENTARY EXPLANATIONS OF PRINCIPLES. 235
a violent and yet consciously ineffective form of Desire
as a mere mental longing, which is expressed by such
words as ' Would to God such a one were still alive ! '
Yet although this Desire is actless in the sense of not
issuing in overt action, it is not effectless in the sense of
having no consequence at all ; in short, if it does not
produce a change on external things, it at least works
powerfully upon the internal condition of the Subject,
and even may superinduce a morbid condition of disease.
A Desire, viewed as an active Striving (nisiis) to be a cause
by means of one's own mental representations, even
although the individual may perceive his incapacity to
attain the desired effect, is still a mode of causality
within his own internal experience. — There is therefore
a misunderstanding involved in the objection, that because
the consciousness of one's Power in a case of Desire may
be at the same time accompanied with a consciousness
of the Want of Power in respect of the external world,
the definition is therefore not applicable to the Idealist.
But as the question only turns generally upon the rela
tion of a Cause (the Representation) to an Effect (the
Feeling), the Causality of the Representation in respect
of its object — whether it be external or internal — must
inevitably be included by thought in the conception of
the Faculty of Desire.
I.
Logical Preparation for the Preceding Conception of
Right.
If philosophical Jurists would rise to the Metaphysical
Principles of the Science of Right, without which all
their juridical Science will be merely statutory, they
236 KANT'S PHILOSOPHY OF LAW.
must not be indifferent to securing completeness in the
Division of their juridical conceptions. Apart from
such internal completeness their science would not be a
rational System, but only an Aggregate of accidental
details. The topical arrangement of Principles as deter
mined by the form of the System, must therefore be
made complete ; that is to say, there must be a proper
place assigned to each conception (locus communis) as
determined by the synthetic form of the Division. And
it would have to be afterwards made apparent that when
any other conception were put in the place of the one
thus assigned, it would be contradictory to itself and out
of its own place.
Now Jurists have hitherto received only two formal
commonplaces in their Systems, namely, the conceptions
of Real Eight and of Personal Eight. But since there
are other two conceptions possible even a priori by a
mere formal combination of these two as members of a
rational Division, giving the conception of a Personal
Eight of a Eeal Kind, and that of a Eeal Eight of a
Personal Kind, — it is natural to ask whether these
further conceptions, although viewed as only proble
matical in themselves, should not likewise be incorporated
in the scheme of a complete Division of the juridical
System ? This in fact does not admit of doubt. The
merely logical Division, indeed, as abstracting from the
object of Knowledge, is always in the form of a
Diclwtomy ; so that every Eight is either a Eeal or a
not-Eeal Eight. But the metaphysical Division, here
under consideration, may also be in the fourfold form
of a Tdrachotomy ; for in addition to the two simple
members of the Division, there are also two relations
between them, as conditions of mutual limitation arising
SUPPLEMENTARY EXPLANATIONS OF PRINCIPLES. 237
from the one Eight entering into combination with the
other ; and the possibility of this requires a special
investigation. — But the conception of a Real Eight of a
Personal Kind falls out at once ; for the Right of a
Thing as against a Person is inconceivable. It remains,
therefore, only to consider, whether the converse of this
relation is likewise inconceivable ; or whether the con
ception of a Personal Right of a Real Kind is not only
free from internal contradiction, but is even contained a
priori in Reason and belongs as a necessary constituent
to the conception of the external Mine and Thine in its
completeness, in order that Persons may be viewed so
far in the same way as Things ; not indeed to the extent
of treating them in all respects alike, but by regard to
the possession of them, and to proceeding with Persons in
certain relations as if they were Things.
II
Justification of the Conception of a Personal Right of a
Real Kind.
The Definition of a Personal Right of a Real Kind
may be put shortly and appropriately thus : ' it is the
Right which a man has to have another Person than
himself as his.' I say intentionally a ' Person ; ' for one
might have another man who had lost his civil per
sonality and become enslaved as 7m ; but such a Real
Right is not under consideration here.
Now we have to examine the question whether this
conception — described as ' a new phenomenon in the
juristic sky ' — is a stella mirdbilis in the sense of growing
into a star of the first magnitude, unseen before but
gradually vanishing again, yet perhaps destined to return,
238 KANT'S PHILOSOPHY OF LAW.
or whether it is to be regarded as merely a shooting and
falling star ! l
III.
Examples of Real-Personal Right.
1. To have anything external as one's own, means to
possess it rightfully ; and Possession is the condition of
the possibility of using a thing. If this condition is
regarded merely as physical, the possession is called
detention or holding. But legal detention alone does
not suffice to make an object mine, or to entitle me so
to regard it. If, however, I am entitled, on any ground
whatever, to press for the possession of an object which
has escaped from my power or been taken from me,
this conception of right is a sign in effect that I hold
myself entitled to conduct myself towards it as being
mine and in my rational possession, and so to use it as
my object.
The ' Mine ' in this connection does not mean that it
is constituted by ownership of the Person of another ;
for a man cannot even be the owner of himself, and
much less of another person. It means only the right
of Usufruct (jus utendi fruendi) in immediate reference
to this person, as if he were a thing, but without infring-
1 According to the Definition, I do not use the expression ' to have
another Person as my Person,' but as ' mine ' (™ meum), as if the Person
were viewed in this relation as a Thing. For I can say ' this is my
father ' in indicating my natural relationship of connection with him, by
which I merely state that I have a father. But I may not say ' I have
him as mine ' in this relation. However, if I say 'my Wife,' this
indicates a special juridical relation of a possessor to an object viewed as
a thing, although in this case it is a person. But physical possession is
the condition of the use of a thing as such (manipulatio) ; although in
another relation the object must at the same time be treated as a Person.
SUPPLEMENTARY EXPLANATIONS OF PRINCIPLES. 239
ng on the right of his personality, even while using him
is a means for my own ends.
These ends, however, as conditioning the rightfulness
of such use, must necessarily be moral. A man may
neither desire a wife in order to enjoy her as if she were
a thing by the immediate pleasure in mere physical
intercourse, nor may the wife surrender herself for this
purpose ; for otherwise the rights of personality would
be given up on both sides. In other words, it is only
under the condition of a marriage having been previously
concluded that there can be such a reciprocal surrender
of the two persons into the possession of each other that
they will not dehumanize themselves by making a
corporeal use of each other.
When this condition is not respected, the carnal
enjoyment referred to, is in principle, although not
always in effect, on the level of cannibalism. There
is merely a difference in the manner of the enjoyment
between the exhaustion which may thus be produced
and the consumption of bodies by the teeth and maw of
the savage ; and in such reciprocal use of the sexes
the one is really made a res fungibilis to the other.
Hence a contract that would bind any one for sucli
mere use would be an illegal contract (pactum turpe).
2. In like manner, a husband and wife cannot produce
a child as their mutual offspring (res artificialis) without
both coming under the obligation towards it and towards
each other to maintain it as their child. This relation
accordingly involves the acquisition of a human being
as if it were a thing, but it holds only in form according
to the idea of a merely Personal Eight of a real kind.
The parents have a Right against any possessor of the
child who may have taken it out of their power (jus in
240 KANT'S PHILOSOPHY OF LAW.
re), and they have likewise a Right to compel the child
to perform and obey all their commands in so far as
they are not opposed to any law of freedom (jus ad
rein) ; and hence they have also a Personal Eight over
the child.
3. Finally, it', on attaining the age of majority, the
duty of the parents in regard to the maintenance of
their children ceases, they have still the Eight to use
them as members of the house subjected to their
authority, in order to maintain the household until
they are released from parental control. This Eight of
the parents follows from the natural limitation of the
former Eight. Until the children attain maturity, they
belong as members of the household to the family ; but
thereafter they may belong to the domestics (famulatus)
as servants of the household, and they can enter into
this relation only by a contract whereby they are bound
to the master of the house as his domestics. In like
manner, a relation of master and servant may be formed
outside of the family, in accordance with a personal right
of a real kind on the part of the master ; and the
domestics are acquired to the household by contract
(famulatus domcsticus). Such a contract is not a mere
letting and hiring of work (locatio conductio operce) ;
but it further includes the giving of the person of the
domestic into the possession of the master, as a letting
and hiring of the person (locatio conductio personal). The
latter relation is distinguished from the former in that
the domestic enters the contract on the understanding
that he will be available for everything that is allowable
in respect of the well-being of the household, and is not
merely engaged for a certain assigned and specified piece
of work. On the other hand, an artisan or a day-
SUPPLEMENTARY EXPLANATIONS OF PRINCIPLES. 241
labourer who is hired for a specific piece of work-
does not give himself into the possession of another,'
nor is he therefore a member of his household. As the
latter is not in the legal possession of his employer, who
has bound him only to perform certain things, the
employer, even though he should have him dwelling
in his house (inquilmus), is not entitled to seize him as a
thing (via facti), but must press for the performance of
his engagement on the ground of personal right, by the
legal means that are at his command (via juris).
So much, then, for the explanation and vindication of
this new Title of Right in the Science of Natural Law,
which may at first appear strange, but which has never
theless been always tacitly in use.
IV.
Confusion of Real and Personal Right.
The proposition 'Purchase breaks Hire' (§ 31, p. 131)
has further been objected to as a heterodoxy in the
doctrine of Natural Private Right. It certainly appears
at first sight to be contrary to all the Rights of contract,
that any one should intimate the termination of the lease'
of a house to the present Lessee before the expiry of the
period of occupation agreed upon ; and that the former
can thus, as it appears, break his promise to the latter,
if he only gives him the usual warning determined by
the customary and legal practice. P>ut let it be supposed
that it can be proved that the Lessee when he entered
upon his contract of hire knew, or must have known,
that the promise given to him by the Lessor or pro
prietor was naturally (without needing to be expressly
stated in the contract, and therefore tacitly) connected
KANT'S PHILOSOPHY OF LAW.
with the condition ' in so far as he should not sell his
house within this time, or might have to renounce it on
the occasion of an action on the part of his creditors.'
On this supposition the Lessor does not break his promise,
which is already conditioned in itself according to reason,
and the Lessee does not suffer any infringement of his
Eight by such an intimation being made to him before
the period of lease has expired. For the Eight of the
latter arising from the contract of hire, is a Personal
Eight to what a certain person has to perform for
another (jus ad rem) ; it is not a Eeal Right (jus in re)
that holds against every possessor of the thing.
The Lessee might indeed secure himself in his lease
and acquire a Eeal Eight in the house ; but he could do
this only by having it engrossed by a reference to the house
of the Lessor as attached to the soil. In this way he
would provide against being dispossessed before the expiry
of the time agreed upon, either by the intimation of the
proprietor or by his natural death, or even by his civil
death as a bankrupt. If he did not do this, because he
would rather be free to conclude another lease on better
conditions, or because the proprietor would not have such
a burden (onus) upon his house, it is to be inferred that,
in respect of the period of intimation, both parties were
conscious of having made a tacit contract to dissolve
their relation at any time, according to their convenience,
— subject, however, to the conditions determined by the
municipal law. The confirmation of the Eight to break
hire by purchase, may be further shown by certain
juridical consequences that follow from such a naked
contract of hire as is here under consideration. Thus
the Heirs of the Lessee when he dies should not have
the obligation imposed upon them to continue the hire,
SUPPLEMENTARY EXPLANATIONS OF PRINCIPLES. 243
because it is only an obligation as against a certain
person and should cease with his death, although here
again the legal period of intimation must be always kept
in view. The right of the Lessee as sucli can thus only
pass to his heirs by a special contract. Nor, for the
same reason, is he entitled even during the life of both
parties, to sublet to others what he has hired for himself,
without express agreement to that effect.
V.
Addition to the Explanation of the Conceptions of
Penal Right.
The mere idea of a political Constitution among men
involves the conception of a punitive Justice as belonging
to the supreme Power. The only question, then, is to
consider whether the legislator may be indifferent to the
modes of punishment, if they are only available as means
for the removal of crime, regarded as a violation of the
Security of property in the State ; or whether he must
also have regard to respect for the Humanity in the
person of the criminal, as related to the species ; and if
this latter alternative holds, whether he is to be guided
by pure principles of Right, taking the jus talionis as in
form the only & priori idea and determining principle
of Penal Right, rather than any generalization from
experience as to the remedial measures most effective for
his purpose. But if this is so, it will then be asked how
he would proceed in the case of crimes which do not
admit of the application of this Principle of Retaliation,
as being either impossible in itself, or as in the circum
stances involving the perpetration of a penal offence
against Humanity generally. Such, in particular, are
944 KANT'S PHILOSOPHY OF LAW.
the relations of rape, paederasty, and bestiality. The
former two would have to be punished by castration
(after the manner of the white or black eunuchs in a
seraglio), and the last by expulsion for ever from civil
society, because the individual has made himself un
worthy of human relations. Per quod quis peccat per
idem, punitur et idem. These crimes are called unnatural,
because they are committed against all that is essential
to Humanity. To punish them by arbitrary penalties,
is literally opposed to the conception of a penal Justice.
l>ut even then the criminal cannot complain that wrong
is done to him, since his own evil deed draws the punish
ment upon himself ; and he only experiences what is in
accordance with the spirit, if not the letter, of the penal
Law which he has broken in his relation to others.
Every punishment implies something that is rightly
degrading to the feeling of honour of the party con
demned. For it contains a mere one-sided compulsion.
Thus his dignity as a citizen is suspended, at least in a
particular instance, by his being subjected to an ex
ternal obligation of duty, to which he may not oppose
resistance on his side. Men of rank and wealth,
when mulcted in a fine, feel the humiliation of being
compelled to bend under the will of an inferior in
position, more than the loss of the money. Punitive
Justice (justitia punitiva), in which the ground of
the penalty is moral (quia peceatum est), must be
distinguished from punitive Expediency, the foundation
of which is merely pragmatic (ne peccetur) as being
grounded upon the experience of what operates most
effectively to prevent crime. It has consequently an
entirely distinct place (locus justi) in the topical
arrangement of the juridical conceptions. It is
neither the conception of what is conduciUe to a
SUPPLEMENTARY EXPLANATIONS OF PKINCIl'LES. 245
certain effect (conducililis), nor even that of the pure
Jloneslum, which must be properly .placed in Ethics.
VI.
On the Right of Usucapion.
Referring to § 33, p. 133, it is said that 'the Eight
of Usucapion ought to be founded on natural right ; for
if it were not assumed that an ideal acquisition, as it is
here called, is established by bona fide possession, no
acquisition would be ever peremptorily secured.'— But I
assume a merely provisory acquisition in the state of
nature; and, for this reason, insist upon the juridical
necessity of the civil constitution. — Further, it is said,
' I assert myself as lona fide possessor only against any
one who cannot prove that he was lona fide possessor of
the same thing before me, and who has not ceased by
his own will to be such.' But the question here under
consideration is not as to whether I can assert myself
as owner of a thing although another should put in a
claim as an earlier real owner of it, the cognizance of
his existence as possessor and of his possessorship as
owner having been absolutely impossible; which case
occurs when such a one has given no publicly valid
indication of his uninterrupted possession, — whether
owing to his own fault or not, — as by Registration in
public Records, or uncontested voting as owner of the
property in civil Assemblies.
The question really under consideration is this : Who
is the party that ought to prove his rightful Acquisition ?
This obligation as an onus probandi cannot be imposed
upon the actual Possessor, for he is in possession of the
thing so far back as his authenticated history reaches.
246 KANT'S PHILOSOPHY or LAW.
The former alleged owner of it is, however, entirely sepa
rated, according to juridical principles, from the series of
successive possessors by an interval of time within which
he gave no publicly valid indications of his ownership.
This intromission or discontinuance of all public posses
sory activity reduces him to an untitled claimant. But
here, as in theology, the maxim holds that conservatio cst
continua creatio. And although a claimant, hitherto
unmanifested but now provided with discovered docu
mentary evidence, should afterwards arise, the doubt
again would come up with regard to him as to whether
a still older claimant might not yet appear and found
a claim upon even earlier possession. — Mere length of
time in possession effects nothing here in the way of
finally acquiring a thing (acquirere per usucapionem).
For it is absurd to suppose that what is wrong, by being
long continued, would at last become right. The use of
the thing, be it ever so long, thus presupposes a Eight in
it ; whereas the latter cannot be founded upon the former.
Hence Usucapion, viewed as acquisition of a thing merely
by long use of it, is a contradictory conception. The
prescription of claims, as a mode of securing possession
(conservatio possessionis mece per prcescriptionem), is not
less contradictory, although it is a different conception as
regards the basis of appropriation. It is in fact a
negative Principle ; and it takes the complete disuse of
a Eight, even such as is necessary to manifest possessor-
ship, as equivalent to a renunciation of the thing (dere-
lictio). But such renunciation is a juridical act, and it
implies the use of the Eight against another, in order
to exclude him by any claim (per perscriptioncm) from
acquiring the object ; which involves a contradiction.
I acquire therefore without probation, and without any
SUPPLEMENTARY EXPLANATIONS OF PRINCIPLES. 247
juridical act ; I do not require to prove, but I acquire
by the law (lege). What then do I acquire? The
public release from all further claims ; that is, the legal
security of my possession in virtue of the fact that I do
not require to bring forward the proof of it, and may
now found upon uninterrupted possession. And the fact
that all Acquisition in the state of Nature is merely
provisory, has no influence upon the question of Security
in the Possession of what has been acquired, this con
sideration necessarily taking precedence before the
former.
VII.
On Inheritance and Succession.
As regards the ' Right of Inheritance,' the acuteness
of the Reviewer has here failed him, and he has not
reached the nerve of the proof of my position. I do not
say (§ 34, p. 136) that 'every man necessarily accepts
every thing that is offered to him, when by such accept
ance he can only gain and can lose nothing ; ' for there
are no things of such a kind. But what I say is, that
every one always in fact accepts the Right of the offer of
the thing, at the moment in which it is offered, inevit
ably and tacitly, but yet validly ; that is, when the
circumstances are such that revocation of the offer is
impossible, as at the moment of the Testator's death.
For the Promiser cannot then recall the offer ; and the
nominated Beneficiary, without the intervention of any
juridical act, becomes at the moment the acceptor, not
of the promised inheritance, but of the Right to accept
it or decline it. At that moment he sees himself, on the
opening of the Testament and before any acceptance of
the inheritance, become possessed of more than he was
248 KANT'S PHILOSOPHY OF LAW.
before; for he has acquired exclusively the Eight to
accept, which constitutes an element of property. A
Civil state is no doubt here presupposed, in order to
make the thing in question the property of another
person when its former owner is no more ; but this
transmission of the possession from the hand of the dead
(mort-main) does not alter the possibility of Acquisition
according to the universal Principles of Natural Eight,
although a Civil Constitution must be assumed in order
to apply them to cases of actual experience. A thing
which it is in my free choice to accept or to refuse
unconditionally, is called a res jacens. If the owner of
a tiling offers me gratuitously a thing of this kind, — as,
for instance, the furniture of a house out of which 1 am
about to remove, — or promises it shall be mine, so long
as he does not recall his offer or promise, which is im
possible if he dies when it is still valid, then I have
exclusively a Eight to the acceptance of the thing offered
(jus in re jacente) ; in other words, I alone can accept
or refuse it, as I please. And this Eight, exclusively to
have the choosing of the thing, I do not obtain by means
of a special juridical act, as by a declaration that ' I will
that this Eight shall belong to me;' but I obtain it
without any special act on my part, and merely by the
law (lege). I can therefore declare myself to this effect :
' I will that the thing shall not Mong to me ' (for the
acceptance of it might bring me into trouble with others).
But I cannot will to have exclusively the choice as to
whether it shall or shall not belong to me ; for this Eight
of accepting or of refusing it, I have immediately by
virtue of the Offer itself, apart from any declaration of
acceptance on my part. If I could refuse even to have
the choice, I might choose not to choose ; which is a
SUPPLEMENTARY EXPLANATIONS OF PRINCIPLES. 1
contradiction. Now this right to choose passes at the
moment of the death of the Testator to me ; but although
instituted heir by his Will (institutio hcvrcdis), I do not
yet, in fact, acquire any of the property of the Testator,
but merely the juridical or rational possession of that
property or part of it, and I can renounce it for the
benefit of others. Hence this possession is not inter
rupted for a moment, but the Succession, as in a con
tinuous series, passes by acceptance from the dying
Testator to the heir appointed by him ; and thus the
proposition testamcnta sunt juris naturae is established
beyond all dispute.
VIII.
The Right of the State in relation to Perpetual
Foundations for the Benefit of the Subjects.
A FOUNDATION (Sanctio tcstainentaria leneficii pcrpetui)
is a voluntary beneficent institution, confirmed by the
State and applied for the benefit of certain of its
members, so that it is established for all the period of their
existence. It is called perpetual when the ordinance
establishing it is connected with the Constitution of the
State ; for the State must be regarded as instituted for
all time. The beneficence of such a foundation applies
tiither to the people generally, or to a class as a part of
the people united by certain particular principles, or to
a certain family and their descendants for ever. Hospitals
present an example of the first kind of foundations ;
Churches of the second ; the Orders in the State (spiritual
and secular) of the third ; Primogeniture and Entail of
the fourth.
Of these corporate institutions and their Rights of sue-
250 KANT'S PHILOSOPHY OF LAW.
cession, it is said that they cannot be abolished ; because
the Right has been made the property of the appointed
heirs in virtue of a legacy, and to abrogate such a con
stitution (corpus mysticum) would amount to taking from
some one what was his.
A. Hospitals.
Such benevolent institutions as Hospitals and other
Foundations for the poor, for invalids, and for the sick,
when they have been founded by the property of the
State, are certainly to be regarded as indissoluble. But
if the spirit, rather than the mere letter, of the will of
a private Testator is to form the ground of determination,
it may be that circumstances will arise in the course of
time such as would make the abolition of such founda
tions advisable, at least in respect of their form. Thus
it has been found that the poor and the sick may be
better and more cheaply provided for by giving them
the assistance of a certain sum of money proportionate
to the wants of the time, and allowing them to board
with relatives or friends, than by maintaining them
in magnificent and costly institutions like Greenwich
Hospital, or other similar institutions which are main
tained at great expense and yet impose much restriction
on personal liberty. Lunatic asylums, however, must
be regarded as exceptions. In abolishing any such
institutions in favour of other arrangements, the State
cannot be said to be taking from the people the enjoy
ment of a benefit to which they have a right as their
own ; rather does it promote their interest by choosing
wiser means for the maintenance of their rights and the
advancement of their well-bein".
SUPPLEMENTARY EXPLANATIONS OF PRINCIPLES. 251
B. Churches.
A spiritual order, like that of the Koman Catholic
Church, which does not propagate itself in direct descend
ants, may, under the favour of the State, possess lands
with subjects attached to them, and may constitute a
spiritual corporation called the Church. To this corpora
tion the laity may, for the salvation of their souls,
bequeath or give lands which are to be the property
of the Church. The Pioman Clergy have thus in fact
acquired possessions which have been legally transmitted
from one age to another, and which have been formally
confirmed by I'apal Bulls. Now, can it be admitted that
this relation of the clergy to the laity may be annulled
by the supreme power of the secular State ; and would
not this amount to taking violently from them what was
their own, as has been attempted, for example, by the
unbelievers of the French Kepublic ?
The question really to be determined here is whether
the Church can belong to the State or the State to the
Church, in the relation of property; for two supreme
powers cannot be subordinated to one another without
contradiction. It is clear that only the former consti
tution (politico - hierarchical, according to which the
property of the Church belongs to the State, can have
proper existence ; for every Civil Constitution is of this
viorld, because it is an earthly human power that can
be incorporated with all its consequences and effects in
experience. On the other hand, the believers whose
Kingdom is in Heaven as the otJter world, in so far as
a hierarchico-political constitution relating to this world
is conceded to them, must submit themselves to the
sufferings of the time, under the supreme power of the
>:>-2 KANT'S PHILOSOPHY OF LAW.
men who act in the world. Hence the former Con
stitution is only, in place.
lieligion, as manifested in the form of belief in the
dogmas of the Church and the power of the Priests who
form the aristocracy of such a constitution, even when
it is monarchical and papal, ought not to be forced upon
the people, nor taken from them by any political power.
Neither should the citizen — as is at present the case in
Great Britain with the Irish Nation — be excluded from
the political services of the State, and the advantages
thence arising, on account of a religion that may be
different from that of the Court.
Now, it may be that certain devout and believing
souls, in order to become participators of the grace
which the Church promises to procure for believers even
after their death, establish an institution for all time,
in accordance with which, after their death, certain lands
of theirs shall become the property of the Church.
Further, the State may make itself to a certain extent,
or entirely, the vassal of the Church, in order to obtain
by the prayers, indulgences, and expiations administered
by the clergy as the servants of the Church, participa
tion in the boon promised in the other world. Lut
such a Foundation, although presumably made for all
time, is not really established as a perpetuity ; for the
State may throw off any burden thus imposed upon it
by the Church at will. For the Church itself is an
institution established on faith, and if this faith be an
illusion engendered by mere opinion, and if it disappear
with the enlightenment of the people, the terrible
power of the Clergy founded upon it also falls. The
State will then, with full right, seize upon the presumed
property of the Church, consisting of the land bestowed
SUPPLEMENTARY EXPLANATIONS OF PRINCIPLES. 2
upon it by legacies. However, the feudatories of the
hitherto existing institution, iuay of their own right
demand to be indemnified for their life interests.
In like manner, Foundations established for all time,
in behoof of the poor as well as educational Institutions
even supposing them to have a certain definite character
impressed by the idea of their founder, cannot be held
as founded for all time, so as to be a burden upon the
land. The State must have the liberty to reconstitute
them, in accordance with the wants of the time. No
one may be surprised that it proves always more and
more difficult to carry out such ideas, as for instance a
provision that poor foundationers must make up for the
inadequacy of the funds of their benevolent institution
by singing as mendicants; for it is only natural that
one who has founded a beneficent institution should
feel a certain desire of glory in connection with it,
and that he should be unwilling to have another altering
his ideas, when he may have intended to immortalize
himself by it. But this does not change the conditions
of the thing itself, nor the right, and even the duty of
the State, to modify any foundation when it becomes
inconsistent with its own preservation and progress ; and
hence no such institution can be regarded as unalterably
founded for all time.
C. The Orders in the State.
The nobility of a country which is not under an.
aristocratic but a monarchical Constitution, may well
form an institution that is not only allowable for a
certain time, but even necessary from circumstances,
Hut it cannot be maintained that such a class may b«
254 KANT'S PHILOSOPHY OF LAW.
established for all time, and that the Head of the State
should not have the right entirely to abolish the privi
leges of such a class ; nor, if this be done, can it be held
that thereby what belonged to the Nobility as Subjects,
by way of a hereditary possession, has been taken from .
them. The Nobility, in fact, constitute a temporary
corporation or guild, authorized by the State ; and it
must adapt itself to the circumstances of the time, nor
may it do violence to the universal right of man, how
ever long that may have been suspended. For the rank
of the nobleman in the State is not only dependent
upon the Constitution itself, but is only an accident, with
a merely contingent inherence in the Constitution. A
nobleman can be regarded as having a place only in the
Civil Constitution, but not as having his position grounded
on the state of Nature. Hence, if the State alters its
constitution, no one who thereby loses his title and rank
would be justified in saying that what was his own had
been taken from him ; because he could only call it his
own under the condition of the continued duration of
the previous form of the State. But the State has the
right to alter its form, and even to change it into a pure
Eepublic. The Orders in the State, and the privilege
of wearing certain insignia distinctive of them, do not
therefore establish any right of perpetual possession.
D. Primogeniture and Entail.
By the Foundation of Primogeniture and Entail is
meant that arrangement by which a proprietor institutes
a succession of inheritance, so that the next proprietor
in the series shall always be the eldest born heir of the
family, after the analogy of a hereditary monarchy in
SUPPLEMENTARY EXPLANATIONS OF PRINCIPLES. 255
the State. But such a Foundation must be regarded
as always capable of being annulled with the consent of
all the Agnates ; and it may not be held to be instituted
as for all time, like a hereditary Kight attaching to the
Soil. Nor, consequently, can it be said that the abroga
tion of it is a violation of the Foundation and Will of
the first ancestral Founder. On the contrary, the State
lias here a Kight and even a duty, in connection with
gradually emerging necessity for its own Reform, if it
has been once extinguished, not to allow the resuscita
tion of such a federative system of its subjects, as if
they were viceroys or sub-kings, after the analogy of
the ancient Satraps and Heads of Dynasties.
IX.
Concluding Remarks on Public Right and Absolute
Submission to the Sovereign Authority.
\Vitli regard to the ideas presented under the Heading
of PUBLIC RIGHT, the Reviewer says that ' the want of
room does not permit him to express himself in detail.'
But he makes the following remarks on one point : ' So
far as we know, no other philosopher has recognised this
most paradoxical of all paradoxes, that the mere idea of
a Sovereign Tower should compel me to obey as my
master any one who gives himself out to be my master,
without asking who has given him the Right to com
mand me? That a Sovereign Power and a Sovereign
are to be recognised, and that the one or the other whose
existence is not given in any way A priori is also to be
regarded a priori as a master, are represented so as
to be one and the same thing.' Now, while this view
is admitted to be paradoxical, I hope when it is more
256 KANT'S PHILOSOPHY OF LAW.
closely considered, it will not at least be convicted of
heterodoxy. Rather, indeed, may it be hoped that this
penetrating, thoughtful, and modestly censuring Critic may
not grudge to make a second examination of this point,
nor regret to have taken the whole discussion under his
protection against the pretentious and shallow utterances
of others. And this all the more, in view of his state
ment that he ' regards these Metaphysical Principles of
the Science of Right as a real gain for the Science.'
Now, it is asserted that obedience must be given to
whoever is in possession of the supreme authoritative
and legislative power over a people ; and this must be
done so unconditionally by right, that it would even be
penal to inquire publicly into the title of a power thus
held, with the view of calling it in doubt, or opposing
it in consequence of its being found defective. Accord
ingly it is maintained, that ' Obey the authority which has
power over you ' (in everything which is not opposed to
morality), is a Categorical Imperative. This is the
objectionable proposition which is called in question ;
and it is not merely this principle which founds a right
upon the fact of occupation as its condition, but it is
even the very idea of a sovereignty over a people
obliging me as belonging to it, to obey the presumptive
right of its power, without previous inquiry (§ 44), that
appears to arouse the reason of the Reviewer.
Now every fact is an object which presents itself to
the senses, whereas what can only be realized by pure
Reason must be regarded as an idea for which no
adequately corresponding object can be found in experi
ence. Thus a perfect juridical Constitution among men
is an ideal Thing in itself.
If then a people be united by laws under a sovereign
SUPPLEMENTARY EXPLANATIONS OF 1'KIXCIPLES. 257
power, it is conformable to the idea of its unity as such
under a supreme authoritative will, when it is in fact so
presented as an object of experience. But this holds
only of its phenomenal manifestation. In other words,
a juridical constitution so far exists in the general sense
of the term ; and although it may be vitiated by great
defects and coarse errors, and may be in need of important
improvements, it is nevertheless absolutely unallowable
and punishable to resist it. For if the people regarded
themselves as entitled to oppose force to the Constitu
tion, however defective it may be, and to resist the
supreme authority, they would also suppose they had a
right to substitute force for the supreme Legislation that
establishes all rights. But this would result in a
supreme will that would destroy itself.
The idea of a political Constitution in general,
involves at the same time an absolute command of a
practical Keason that judges according to conceptions of
right, and is valid for every people; and as such it is
holy and irresistible. And although the organization
of a State were defective in itself, yet no subordinate
power in the State is entitled to oppose active resist
ance to its legislative Head. Any defects attaching to
it ought to be gradually removed by reforms carried °out
on itself ; for otherwise, according to the opposite maxim,
that the subject may proceed according to his own
private will, a good Constitution can only be realized by
blind accident. The precept, ' Obey the authority that
has power over you,' forbids investigating into how this
power has been attained, at least with any view to
undermining it. For the Power which already exists,
and under which any one may be living, is already in
possession of the power of Legislation; and one may,
258 KANT'S PHILOSOPHY OF LAW.
indeed, rationalize about it, but not set himself up as an
opposing lawgiver.
The will of the people is naturally un-unified, and
consequently it is lawless ; and its unconditional sub
jection under a sovereign Will, uniting all particular
wills by one law, is a fact which can only originate in
the institution of a supreme power, and thus is public
Eight founded. Hence to allow a Eight of resistance to
this sovereignty, and to limit its supreme power, is a
contradiction ; for in that case it would not be the
supreme legal power, if it might be resisted, nor could
it primarily determine what shall be publicly right or
not. This principle is involved a priori in the idea of
a political Constitution generally as a conception of the
practical Eeason. And although no example adequately
corresponding to this principle can be found in experi
ence, yet neither can any Constitution be in complete
contradiction to it when it is taken as a standard or
rule.
APOLOGIA.
KANT'S VINDICATION OF HIS PHILOSOPHICAL
STYLE.
[IN THE PREFACE TO THE FIRST EDITION, 1796-97. J
KANT'S VINDICATION OF HIS PHILOSOPHICAL
STYLE
THE reproach of obscurity, and even of a studied inde-
tiniteness affecting the appearance of profound insight,
has been frequently raised against my philosophical style
of exposition. I do not know how I could better meet
or remove this objection than by readily accepting the
condition which Garve, a philosopher in the genuine
sense of the term, has laid down as a duty incumbent
upon every writer, and especially on philosophical authors.
And for my part, I would only restrict his injunction by
the condition, that it is to be followed only so far as the
nature of the science which is to be improved or enlarged
will allow.
Garve wisely and rightly demands, that every philo
sophical doctrine must be capable of being presented in
a popular form, if the expounder of it is to escape the sus
picion of obscurity in his ideas ; that is, it must be capable
of being conveyed in expressions that are universally in
telligible. I readily admit this, with the exception only
of the systematic Critique of the Faculty of Keason, and
all that can only be determined and unfolded by it ; for
all this relates to the distinction of the sensible in our
knowledge from the supersensible, which is attainable
Reason. This can never be made popular, nor can any
2C2 KANT'S PHILOSOPHY OF LAW.
formal Metaphysic as such be popular; although their
results may be made quite intelligible to the common
reason, which is metaphysical without its being known
to be so. In this sphere, popularity in expression is not
to be thought of. We are here forced to use scholastic
accuracy, even if it should have to bear the reproach of
troublesomeness ; because it is only by such technical
language that the precipitancy of reason can be arrested,
and brought to understand itself in face of its dogmatic
assertions.
But if pedants presume to address the public in
technical phraseology from pulpits or in popular books,
and in expressions that are only fitted for the Schools,
the fault of this must not be laid as a burden upon the
critical philosophers, any more than the folly of the
mere wordmonger (logodcedalus) is to be imputed to the
grammarian. The laugh should here only turn against
the man and not against the science.
It may sound arrogant, egotistical, and, to those who
have not yet renounced their old system, even derogatory,
to assert ' that before the rise of the Critical Philosophy,
there was not yet a philosophy at all.' Now, in order
to be able to pronounce upon this seeming presumption,
it is necessary to resolve the question as to whether there
can really be more than one philosophy. There have, in
fact, not only been various modes of philosophizing and of
going back to the first principles of Reason in order to
found a system upon them, with more or less success ;
but there must be many attempts of this kind of which
every one has its own merit at least for the present.
However, as objectively considered there can only be one
human Eeason, so there cannot be many Philosophies ;
in other words, there is only one true System of Philo-
VINDICATION OF HIS PHILOSOPHICAL STYLE.
sophy founded upon principles, however variously and
however contradictorily men may have philosophized over
one and the same proposition. Thus the Moralist rightly
says, there is only one virtue, and only one doctrine
regarding it ; that is, one single system connects all the
duties of virtue by one principle. The Chemist, in like
manner, says there is only one chemistry, that which is
expounded by Lavoisier. The Physician, in like manner,
says there is only one principle, according to Brown, in
the system of classifying Diseases. But because it is
held that the new systems exclude all the others, it is not
thereby meant to detract from the merit of the older
Moralists, Chemists, and Physicians; for without their
discoveries, and even their failures, we would not have
attained to the unity of the true principle of a complete
philosophy in a system. Accordingly, when any one
announces a system of philosophy as a production of his
own, this is equivalent to saying that ' before this Philo
sophy there was properly no philosophy.' For should he
admit that there had been another and a true philosophy,
it would follow that there may be two true systems of
philosophy regarding its proper objects ; which is a con
tradiction. If, therefore, the Critical Philosophy gives
itself forth as that System before which there had been
properly no true philosophy at all, it does no more than
has been done, will be done, and even must be done, by
all who construct a Philosophy on a plan of their own.
Another objection has been made to my System which
is of less general significance, and yet is not entirely
without importance. It has been alleged that one of the
essentially distinguishing elements of this Critical Philo
sophy is not a growth of its own, but has been borrowed
from some other philosophy, or even from an exposition
264 KANT'S PHILOSOPHY OF LAW.
of Mathematics. Such is the supposed discovery, which
a Tubingen Reviewer thinks he has made, in regard to
the Definition of Philosophy which the author of the
Critique of tJie Pure Reason gives out as his own, and as
a not insignificant product of his system, but which it is
alleged had been given many years before by another
writer, and almost in the same words.1 I leave it to any
one to judge whether the words : ' intellectualis qucedam
construct™' could have originated the thought of the pre
sentation of a given conception in an intuitive perception
h priori, by which Philosophy is at once entirely and
definitely distinguished from Mathematics. I am certain
that Hausen himself would have refused to recognise this
as an explanation of his expression ; for the possibility of
an intuitive perception h priori, and the recognition of
Space as such an intuition and not the mere outward
coexistence of the manifold objects of empirical per
ception (as Wolf defines it), would have at once repelled
him, on the ground that he would have felt himself thus
entangled in wide philosophical investigations. The
presentation, constructed, as it were, ly the Understanding, re
ferred to by the acute Mathematician, meant nothing more
than the (empirical) representation of a Line correspond
ing to a conception, in making which representation
attention is to be given merely to the Eule, and abstrac
tion is to be made from the deviations from it that
inevitably occur in actual execution, as may be easily
perceived in the geometrical construction of Equalities.
And least of all is there any importance to be laid
Porro de actual! constructione hie non quaeritur, cum ne possint
quidem seusibiles figurae ad rigorem definitionum effingi ; sed requiritur
cognitio eorum, quibus absolvitur formatio quse intellectualis quadam
tructio est. C. A. Hausen, Elem. Mathes. Pars I. p. 86 (1734)
VINDICATION OF HIS PHILOSOPHICAL STYLE.
upon the objection made regarding the spirit of this
Philosophy, on the ground of the improper use of some
of its terms by those who merely ape the system in
words. The technical expressions employed in the
Critique of the Pure Reason cannot well be replaced by
others in current use, but it is another thing to employ
them outside of the sphere of Philosophy in the public
interchange of ideas. Such a usage of them deserves to
be well castigated, as Nicolai has shown ; but he even
shrinks from adopting the view that such technical terms
are entirely dispensable in their own sphere, as if they
were adopted merely to disguise a poverty of thought.
However, the laugh may be much more easily turned
upon the unpopular pedant than upon the uncritical
ignoramus; for in truth the Metaphysician who sticks
rigidly to his system without any concern about Criticism,
may be reckoned as belonging to the latter class, although
his ignorance is voluntary, because he will only not
accept what does not belong to his own older school. But
if, according to Shaftesbury's saying, it is no contemptible
test of the truth of a predominantly practical doctrine,
that it can endure Ridicule, then the Critical Philosophy
must, in the course of time, also have its turn ; and it
may yet laugh lest when it will be able to laugh last.
This will be when the mere paper systems of those who
for a long time have had the lead in words, crumble to
pieces one after the other ; and it sees all their adherents
scattering away, — a fate which inevitably awaits them.
MORRISON AND GIBB, EDINBURGH,
PRINTERS TO HER MAJESTY'S STATIONERY OFFICE.
T. and T. Clark's Publication*.
In crown 8vo, Fourth Edition, price 68.,
THE METAPHYS/C OF ETHICS.
BY IMMANUEL KANT.
TRANSLATED IJY J. \V. SEMPLE, ADVOCATE.
EDITED BY REV. PROFESSOR HENRY CALDERWOOD, LL.D.
4 Mr. Sample's translation lias been accepted by scholar* as a real success.'
—Contemporary Review.
LOTZE 8 MICROCOSMUS
Just published, in Two Vols., 8vo (1450 pages), price 36».,
MICROCOSMUS:
CONCERNING MAN AND HIS RELATION TO THE WORLD.
BY HERMANN LOTZE.
CoxTBNTs:-Book I. The Body. II. The Soul. III. Life. IV. Man.
V. Mind. VI. The Microcosmic Order ; or. The Course of Human Lift-.
VII. History. VIII. Progress. IX. The Unity of Things.
4 These are indeed two masterly volumes, vigorous in intellectual power
and translated with rare ability. . . . This work will doubtless find a place
on the shelves of all the foremost thinkers and students of modern times.'—
Evangelical Magazine.
• The English public have now before them the greatest philosophic work
produced in Germany by the generation just past. The translation comes at
an opportune time, for the circumstances of English thought just at the
present moment are peculiarly those with which Lotze attempted to deal
when he wrote his 44 Microcosraus " a quarter of a century ago. . . . Few
philosophic books of the century are so attractive both in stylo and matter.'—
Atlienccum.
4 The translation of Lotze's 44 Microcosmus " is the most important of recent
events in our philosophical literature. . . . The discussion is carried on on
the basis of an almost encyclopaedic knowledge, and with the profoundest and
subtlest critical insight Wo know of no other work containing so much of
speculative suggestion, of keen criticism, and of sober judgment on these
topics.'— Andover Review.
T. and T. Clark's Publications.
Just published, in Two Vols., 8vo, price 21s.,
NATURE AND THE BIBLE:
LECTURES ON THE MOSAIC HISTORY OF CREATION
IN ITS RELATION TO NATURAL SCIENCE.
BY DR. FR. H. REUSCH.
REVISED AND CORRECTED BY THE AUTHOR.
CranslatrtJ from tfjc JFourtfj lEDftion
BY KATHLEEN LYTTELTON.
'Other champions much more competent and learned than myself might
have been placed in the field ; I will only name one of the most recent,
Dr. Reusch, author of "Nature and .the Bible." '^-The Right Hon. W. E!
GLADSTONE.
' We owe to Dr. Reusch, a Catholic theologian, one of the most valuable
treatises on the relation of Religion and Natural Science that has appeared
for many years. Its fine impartial tone, its absolute freedom from passion,
its glow of sympathy with all sound science, and its liberality of religious
views, are likely to surprise all readers who are unacquainted with the fact
that, whatever may be the errors of the Romish Church, its more enlightened
members are, as a rule, free from that idolatry of the letter of Scripture
which is one of the most dangerous faults of ultra-Protestantism.' — Literary
World.
In One Volume, 8vo, Second Edition, price 12s.,
FINAL CAUSES.
BY PAUL JANET, Member of the Institute, Paris.
TRANSLATED FROM THE FRENCH BY WILLIAM AFFLECK, B.D.
4 This very learned, accurate, and, within its prescribed limits, exhaustive
work. ... The book as a whole abounds in matter of the highest interest
and is a model of learning and judicious treatment.' — Guardian.
'Illustrated and defended with an ability and learning which must command
the reader's admiration.' — Dublin Review.
'A great contribution to the literature of this subject. M. Janet has
mastered the conditions of the problem, is at home in the literature of science
and philosophy; ... in clearness, vigour, and depth it has been seldom
equalled, and more seldom excelled, in philosophical literature.'— Spectator.
4 A wealth of scientific knowledge and a logical acumen which will win the
admiration of every reader.'— Church Quarterly Review.
BY THE SAME AUTHOR.
Just published, in demy 8vo, price 10s. 6d.,
THE THEORY OF MORALS.
TRANSLATED FROM THE LATEST FRENCH EDITION.
' As remarkable for the force and beauty of its form of expression as for its
vast and varied learning, its philosophical acumen, and its uniform attitude
of reverence toward religious and moral problems of the most transcendent
interest to mankind.'— Library World.
'This book is really a valuable addition to the literature of the subject .
Let the student of morals and religion read it for himself. It is pleasant
reading, and the translation seems to us in every respect admirable'—
Q-
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CV
JAN 1 9 1983
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