The Philosophy of Law: An Exposition of the Fundamental Principles of Jurisprudence as a Science of Right, Exams of Philosophy of Law

Download The Philosophy of Law: An Exposition of the Fundamental Principles of Jurisprudence as a Science of Right and more Exams Philosophy of Law in PDF only on Docsity! THE PHILOSOPHY OF LAW an Expirlsitiirn OF TBE FUNDAXENTAL PRINCIPLES OF JURISPRUDENCE Ar THE SCIENCE OF RIGHT. BY IMMANUEL KANT. E r a n s I a t e b from tbe G e r m a a BY W. HASTIE, B.D. EDINBURGH : T. & T. CLARK, 38 QEORGE STREET. 1887. T R A N S L A T O R ' S P R E F A C E . 'But next to a new ~ i s t o & of Law, what we most require is a new Philosophy of faw.'-Sir HENRY SUMNE~ MAINE. KANT'S Science of Riyht ' is a complete exposition of the Yhilosophy of Law, viewed as a rational investigation of the fundamental Principles of Jurisprudence. It was published in 1'796,2 as the First Part of his Metaphysic of Mo~nls: the promised sequel and completion of the Foundation for a ilfetaphysic of Movals~ published in 1'785. The irnportance and value o£ the great thinker's exposition of the Science of Right, 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 Rechtslehre. 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 of the first Edition, which is now usually quoteri as 1796-7. (Schubert, Kant's Werke, Bd. ix. viii., and Biographie, p. 145.) * Die Metaphysik der Sitten. Erster Theil. Metaphysische Anfangs- gründe der Rechtslehre. Köriigsberg, 1797. 4 Grundlegung zur Metaphysik der Sitten. Translated by Willich (1798), Semple (1836), and Abbott (1873). Right, laden with an Atlantean burden of thought and striined to intolerable rigidity and severity of form, but his own highest achievement only aimed at a coinpleter integration of the Principles differentiated by Kant.' I t 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 ; biit the racy cynicism of the great Pessimist rather subsides before him into mild lamentation than seeks the usual refuge from its own vacancy and dospair in the wilful caustic of scorching invective and reproach? Schleiermacher, the greatest theologian and moralist of the Century, early discer~led the limitations of the b priori formalism, and supplemented it by the comprehensive conceptions of the prima1 dominion and the new order of creation, but he owed his critical and dialectical ethicality mainly to KanL8 Krause, the leader of the latest and largest 1 Hegel's Werke, Bd. i. Philosophische Abhandlungen, iv. Ueber tlie Wissenschaftlichen Behandlungsarten des Natzbrrechts (1802-3) ; and the Grundlinien der Philosophie des Rechts, oder Naturrecht und Staatswissenschaft 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 t o Hegel's Philosophy of Right. Die beiden Grundprobleme der Ethik (1841), pp. 118-9. Grundlinien einer Kritik der bisherigen Sittenlehre (1803). Entwurf tliought in this sphere-at once intuitive, radieal, and productive in his faculty, analytic, synthetic, and o r p i c in his method, and real, ideal, and historic in his product -caught again ths 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 tlie new age in Kant rises above the horizon to the clear day, full-orbed and vital, in Krause? 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). Gmnd- riss der philosophischen Ethik, von A. Taesten (1841). Die Lehre vom Staat, herausg. von Ch. A. Brandes (1845). Grundlage des Naturrechts (1803). Abriss des Systems der Philo- sophie des Rechts oder des Naturrechts (1828). Krause is now univer- sally recognised as the definite founder of the organic and positive &hool of Natural Right. His principles have been ably expoiinded by his two nlost faithful followers, Ahrens (Cours de Droit Naturel, 7th ed. 1875) and Roder (Urundzüge des Naturrechts o. der Rechts$loso$e, 2 Auf. 1860). Professor J. S. del Rio of Madrid has vividly expounded and enthusiastically advocated Krause's System in Spanish. Professor Lorimer of the Edin- burgh University, ivhile maintaining an independent and critical attitude towards the various Schools of ~ur i s~ idence , is in close sympathy with the Priiiciples of Krause (The Institutes of Law : a Trentise of the Prin- ciples 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 p'nciples go (Instit. p. 336, n.). xii KANT'S PHILOSOPHY OP LAW. TRANSLATOR'S PREFACE. xiii The influence of the Kantian Doctrine of Right has thus been vitally operative in all the subsequent Progress of jural and political science.' 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 Rationalists on the one hand? and with the pedantic This applies to the latest Gernan discussions and doctrines. The following works may ba referred to as the most important recent contribu- tions, in addition to thore mentioned above (such as Ahrens and Roder, 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 über Rechtephilosophie, 1878. Rudolph von Ihering, Der Zweck im Recht, i. 1877, ii.. 1883. Professor Frohschammer of Munich has discussed the problebo 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 Cdtur der menschlichen Ce~eUschaft, Philosophische Untersuchungen über Recht und Staat, sociales Leben und Erziehung, 1885. Leibnitz, Nova Uethodus discendrie docendzeque Jurisprudentia, 1767. Observationes de principio Juris. Codex Juris Gentium, 1693-1700. Wolff, Jus Natum Methodo Scieiitifica pertractatiim, Lips. 8 Tomi. t,ecliousness of tlie Empiricists of tlie School of Grotius on the 0ther.l Tliomasius and his School, the expounders of the Doctrine of Rigllt as an independent Science, were the direct precursors of the formal method of IS;antJs System.2 Its firm and clear outline iniplies tlie substance of rna;ny an operose and now almost unread- able tome ; and it is alive throughout with the quick, - keen spirit of tlie 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. Institutioncs Juris Nature et Gentium, Hala, 1754. (In French by Luzccc, Amsterdam, 1742, 4 vols.) Vernünftige Gedanken. Vatel, Le Droit des Gens, Leyden, 1758. Edited by Royer-Collard, Paris, 1835. English translation by Chitty, 1834. [For the other workv of this school, see Ahrens, i. 323-4, or Miller's Lectures, p. 411.1 ' Grotius, De Jure Belli ac Pacis, lib. i i i 1625. Translated hy Barbeyrae iuto French, 1724 ; and by Whewell into English, 1858. Pufendorf, Elementa Juris Universalis, 1660. De Jure Nature et Gentiuni, 1672. [English translation by Kennett, 1729.1 Cumberlaud, De Legibus Naturzp Disquisitio Philosophica, London, 1672. Translated into English by Towers, Dublin, 1750. Cocceji, Grotius illustratus, etc., 3 vols. 1744-7. [See Miller, 409.1 2 Christian Thomasius (1655-1728) first clearly distinguished betreen the Doctrine of Riglit and Ethics, and laid the basis of the celebrated distinction of Perfect and Imperfect Obligations as differentiated by the element of Constraint. See Professor Lorimer's excellent account of Tliomasius aiid of Kant's relation to his System, Inst. of Law, p. 288 ; and Köder, i. 240. The principal works of this School are : Thomasius, Fundamenta juris nature et gentium ex sensu communi deducta, 1705. Gerhard, Delineatio juris naturalis, 1712. Gundling, Jus Nature. et gentium. Koehler, Exercitationes, 1728. Aclienwall, Prolegomena Juris nattiiralis, and Jus Natiirix, 1761. siv KANT'S PHILOSOPHY OF LAW. TRANSLATOR'S PREFACE. XV had now all his technical art as an expounder of Pliilo- sophy in perfect control, and after the hot rush through the first great Critique he had leicrned 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 Reason 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 Right from the debase- ment of the antinomian naturalism and arbitrary politi- cality of Hobbesl as well as from the extravagance of the lnwless 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 Cive, 1642. Leviathan seu de civitate ecclesiastica et civili, 1651. On Hobbes generally, See Professor Croom Robertson's Monograph in Blackwood's Philosophical Classics.' L'origine et les fondements de l'in6galit6 parmi 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 Roußseau, Lond. 1878. furthest vision, and with a wisdom iiicomparably superior to the reactionary excitement of the great English Orator: 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 Right the very corner-stone of the social building of the race, and the practical culminntion of all Religion and all Philosophy. I t is not meant that everything presented here by Kant is perfect or firial. On the contrary, there is probably nothing at all in his whole System of Philo- sophy-whose predominant characteristics are criticism, initiation, movement - that could be intelligently so regarded ; and the admitted Progress of subsequent theories of Right, as briefly iildicated above, may be considered as conceding so much. It must be further admitted of Kant's Scielzce of Riglzt that it presents 1 Burke is assigned to the Historical School of Jurisprudence by Ahrens, who not inaptly designates hin1 'Che Mirabeau of the anti- revolution' (i., 53). See the Rejeections on the French Revolution (1790). Stahl gives a high estimate of Biirke as ' the purest representative of Conservatism.' XX KBKT'S PHILOSOPHY OB LAW. TBANSLATOR'S PREFACE. xxi and Buckle, Sir George C. Lewis and Sir Henry Siimner Maine, and Herbert Spencer,-with all its apparent antagonism, has only so far supplemented the rational universality of Kant by the necessary connterpart 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? The conspicuous want of a criterion of Right in the application of the niere his- instructive ' Vico ' in Blackwood's PhilosophicaZ Classics. ' In his work, De universi juris uno principio et $ne (1820), Vico divides tlie whole Science of Right into three parts : (1) the Philosophy of Right, (2) the History of Right, and (3) the Art of applying the Phiiosophy to facts. He distinguishes profoundly in Laws the spirit or will of the legislator (mens leg&) and the reason of the 1aw (ratio legis), which consists in the accordance of a Iaw with historical facts and with the etemal principles of the Tiue and Good' (Ahrens). The contemporary Historical School does not yet occupy so philosophicd a position. 1 Sir Henry Sumner Maine, the most eminent English representative of the Historical School, continues to regard ' the philosophy founded on tlie hypothesis of a state of nature ' as ' still the greatest antagonist of the Historical afethod ' (Ancient Law, pp; 90, 91) ; but thisis evidently said in disregard of the transformation of Roiisseau's theory by Kant, and the contributions to the application of the Historical Method by Hege1 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 oP nature, the whole genesis and stratification of the forms of Society are presented livingly to view. (Anctent Law, 1861, 7th ed. 1880. Vil2aye Comnaunities in the East aild Wat, 4th ed. 1881. EarZy History of Znstitutions, 1874.) torical Method to the manifold, contingent, and vari- able institutions of human society, has been often aignalized ; and the representatives of the School have been driven again, especially in their advocacy of political liberalism, upon the rational principles of Freedom? 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 R,eason, could not be expected to be found in sympathy witli the Rational Method of Kant. Their multiplied objections to the details of his expositio~i, from Schmitthenner to the present day, are, however, founded upon an cntire misapprehension of the purpose of his form. For while Kant rightly recognised the 1 Extremes meet in the moral indigerence of the universal naturalism of the ultra-historical School and the abstract absolute rationalism of Spinoza. I t was Grotius who first clearly distinguished between positive fact aiid rational idea in the sphere of Right, and thus originated the movement of modern 'jural ' speculation. For evidence of the statement in the text, see Bentham's Works, Buckle's History of Civiltation, Mi11 on Liberty, aud especially Puchta's Encyclopädie, introductory to his Cursus der Institutionen, 6 Auf. 1865. The standpoint of the Historical School has been thoroughly reviewed by Stahl, i. 570-90 ; Ahrens, i. 51-61 ; and Köder, i. 266-219. ' Ueber den Charakter unddie Aufgaben unserer Zeit in Beziehung aiif Staat uild Staatswissenschaft, ' Giess. 1832. Zwölf Bücher vom Staate, 1839. See Rosenkranz's Geschichte der Kant'sches Philosopl~ie, p, 268. xxii ICANT'S PHILOSOPHY OE 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 ; aild he accordingly aims at unfolding everywhere through its categories the juridical idea in its ultimate purity. In Xant the juridical Idea first attains its essential self- realization and productivity, and his system of Private ltight is at orice freer and more concrete than the Systems of Hobbes and Rousseau, because it involves tlie 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.' In England, Kant's Scielzce of R9ht seems as yet to V h i s remark especially applies to the running fire of criticism in Voii Kirchmann's recent Erläuterz~ngen zu Kant'~ Metaphysik der Sitten, 1882. I t is a matter of regret that such criticisnis cannot be here dealt ivith in detail. Kant has himself clearly iiidicated 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, buthe has himself given the sufficient reasoii for their appearance in it (infra, p. 116). Without entering in detail iipon the point, the translator may remark with regard to one con- spieuoiis, yet irremoveable blot, that he homologates the uiianimoiis disapprobation of subsequent jurists, and would only refer to Dr. Hutchison Stirling's drastic castigation of it in his Leclzbres, p. 51. But have been little studied, and it has certaiiily exerted biit little influence ori 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.' The criterion of Utility found a ready application to the more pressing interests of Political and Legal Eeform, 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 inethodically applied to the positive determination of the juridical conceptions , under aid of the resources of the German Historical School, with the result that Right was made the inere 'creature' of positive law, and the whole Rational Method pretentiously con- demned as irrational ' jargon.' I n Austin %e have only of this and other difficulties in so original and originative a work can only be said in the meantime : ' Sunt delicta tarnen, quibus ignovisse velimus.' And every reader and student should be ready to apply the Horatian niIe here too : ' Verum ubi plura nitent . . . nonego paucis Offendar maculis, quas aut incuria fudit Aut humana parum cavit natura.' l Fragment on Government, 1776. Essay on Political Tactics, 1791. Principles of Morals and Legislation, 1780. Traites de Legislation, 1802. Province of Jurisprudenee 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 his xsiv KANT'S PHILOSOPHY OF LAUr. TRANSLATOR'S PREFACE. xxv the positive outcome of Hobbes and Hurrie and Bentham. The later forms of this legal positivism have not been fruitful in scientific resnlt, and tlie superficiality and infutility of tlie standpoint are becoming more and more apparent. Nor does the Utilitarian Principle,' with all friends and followers. The affectionate tributes of his widow rnay be borne with, but i t 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 Kaut's Seienee of Right : ' A treatise darkened by a philosophy which, I own, is my aver- sion, but abounding, I miist needs admit, with traces of rare sagacity. He has seized a number of notions, complex and difficult in the extreme, with distinction and precision wliich 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 froni other sriters, was drawn, for the most part, from the muddiest sources ; from books about the f~istian which is styled thc Law of Nature.' (Leetures, iii. 157.) And here is his account of the German Jurists generally : ' I t 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 incriisted their necessarily ciifficult sciencs' (ii. 405). Comment on this is superfluous. In the Same breath a more condemnatory judgrnent is dealt out cven 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 eritirely ignored by the German Jurists. He seenis to have known only enough of German to consult the more popular productions of the Historical School. Dr. Hutchison Stirling has dealt witli Austin's com- monplace Hedonism in a severe way, and yet not too severely, in his Lectures on the Philosophy of Law (subjn.). 1 Utilitarianism has been the subject of incessanf discussion in England down to its latest systematic exposition in Sidgwick's Methods of Ethies. its seeining justice and humaiiity, 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 end apply the nuthority of Sir Henry Sumner Maine when he says : ' '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 Right in England-if not in Scotland2-could not be better indicated. On the Continent the system has also been carefully and abIy reviewed by Th. Jouffroy (Cour,s de droit naturel, 1835), Ahrens (i. 48, but less fully in the Iater editions), I. H. Fichte (Die philosophischen Lehren von Recht, Staat tcnd Sitte, 1850), De Wal (Prysverhandeling van het Natuurregt, 1833), and particularly by the Itzlian Jurists (Köder, i. 108). 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 Philosophy of Right. The Scottish School of Philosophy started on this side from Grotius 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 the conceptions of Justice and Right, and resolved them into en.pirica1 products of public Utility (Treatise on Hzcman Nature, 1739. Essays, KANT'S METAPHYSICAL PBINCIP1,ES OF THE SCIENCE OF RIGHT. I. Relations of the Faculties of the Huinan Mind to the Moral Laws, 9 11. The Idea and Necessity of a Metaphysic of Morals, . . 15 I I I. The Division of a Metaphysic of Morals, . . 20 I. Division of the Metaphysic of Morals as a System of Duties generally, . . 24 11. .Division of the Metaphysic of Morals according to Relations of Obligation, . 26 111. Division of the Metapliysic of Morals accorcling to its Prin- ciples and Metliod, . . 27 IV. General Preliminary Conceptioiis defined and explained, . 28 INTRODUCTION T 0 THE SCIENCE OF RIGHT. GENERAL DEFINITIONS AND DIVISIONS. A. What the Science OE Right is, . B. What is Right ? C. Universal Principle of Right, . D. Right is conjoined with tlie Title to compel, . E. Strict Right ; Compulsion, Freedom, Universal Laws, F. Supplementary Remarks on Epiiivocal Right, . I. Equity, . 11. The Right of Necessity, xxxii CONTENTS. CONTENTS. xxxiii DIVISION OF THE SCIENCE OF RIGHT. PAGE 8. General Division of the Diities of Right, . 54 B. Universal Division of Rights, . . 55 I. Natural Right and Positive Right, . . 55 11. Innate Right aiid Acqiiired Right, . . 55 There is only one Innate Hight, the Birthright of Freedom, . . 55 C. Jfcthodical Division of the Scieiice of Right, . . 58 THE SCIENCE OF RIGHT. PART FIRST : PRIVATE RIGHT. THE SYSTEM OF THOSE LAWS WHICH REQUIRE NO EXTERNAL PROMULGATION. THE PRINCIPLES OF THE EXTERAL MINE AND THINE. P R I V A T E RIGHT. CHAPTER FIRST. 1. The Meaning of 'Mine ' in Right, . 2. Juridial Postulate of the Practical Reason, . 3. Possession and Ownership, . 4. Exposition of the Conception of the External AIin0 aiid Thine, . 5. Definition of the Conception of the. External Mine and Thine, 6. Deduction of the Conception of Jiiridical Possession of an External Object, . 7. Application of the Priiiciple of the possibility of an External Mine and Thine to Objects of Experience, . 8. To have anything External as one's own is orily possible in a Jiiridical or Civil State of Society, . 9. An External Mine and Thine in the State of Nature only provlsory, . CHAPTER SECOND. THE MODE OF ACQUIRING ANYTHING EXTERNAL. 10. The General Priiiciple of External Acquisition, . 11. What is a Real Right ? 12. The First Acquisition of a Tliiiig can only be that of the Soil, 13. Every part of the Soil may be oiiginarily acqnired, . 14. The Juridical Act of this original Acquisition is Occupancy, . 15. Peremptory and Provisory Acqiiisition, . 16. Conception of a Primary Acqiiisition of the Soil, . 17. Deduction of the Conception of original primary Acquisition, Property, . SECOND SECTION :PRINCIPLES OF PERSONAL RIUET. 18. Nature and Acquisition of Personal Right, . 19. Acquisition by Contract, . 20. What is acquired by Contract ? . 21. Acceptance and Delivery, . THIRD SECTION : PRINCIPLES OF PERSONAL BIGHT THAT 1s REAL IN KIND. 22. Nature of Personal Right of a Real Kind, . 23. What is acquired in the Household, . RIGHTS OF THE FAMILY AS A DOMESTIC SOCIETY. TITLE FIRST : CONJUGAL RIGHT (Husband and Wife). 24. The Natural Basis of Xarriage, . 25. The Rational Right of Marriage, . 26. Monogamy and Equality in Marriage, 27. Fulfilment of the Co.ntract of Mariiage, . TITLE SECOND : PARENTAL RIGHT (Parent and Child). 28. The Relation of Parent and Child, . 29. The Rights of the Parent, . TITLE TEIRD : HOUSEHOLD RIGHT (Master and Servant). 30. Relation and Right of the Master of a Household, . CONTENTS. CONTENTS. I iXXV SYSTEMATIC DIVISION OB ALL THE RIGHTS CAPABLE OF BEING ACQUIRED BY CONTRACT. PAGE 31. Division of Contracts, . . 121 Iiiustrations : I. What is Money ? . . 125 11. What is a Book ? . 129 The Unauthorized Publishing of Books, . 130 Confusion of Personal Right and Real Right, . 131 32. The Nature and Modes of Ideal Acqiiisition, . . 132 33. I. Acquisition by Usucapion, . . 133 34. 11. Acquisition by Inheritance, . . 136 35. 111. The Right of a good Name after Death, . . 138 CHAPTER THIRD. 36. How and what Ac uisition is subjectively conditioned by the Principle ofa Public Court, . . . . 141 37. I. The Contract of Donation, . . 143 38. 11. The Contract of Loan, . . 144 39. 111. The Revindication of what has been Lost, . . 147 40. IV. Aquisition of Security by taking of an Oath, . . 151 TRANSITION FROM THE MIXE AND T H I ~ E IN THE STATE OF NATURE T0 THE MIRE AND THINE IN THE JURID~CAL STATE GENERALLY. 41. Piiblic Justice as relatsd to the Natural and the Civil State, . 155 42. The Postulate OE Public Right, . 1.57 PART SECOND : PUBLIC RIGHT. THE SYSTEM OF THOSE LAWS WHICH REQUIRE PUBLIC PROMULGATION. THE PRINCIPLES OF RIGHT IN CIVIL SOCIETS. P A a E 43. Definition and Division of Public Right, . . 161 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, . 165 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 ND JURIDICAL CONSEQUENCES ARISING FROM THE NATURE OF TEE CIVIL UNION, 8. Ri ht of the Supreme Power. Treason ; Dethronenient ; %evolution ; Reform, . B. Land Rights. Secular and Church Lands. Rights of Taxation ; Finance ; Police ; Inspection, . C. Relief of the Poor. Foundling Hospitals. The Church, D. The Right of assigning OAFices and Dignities in the State, . E. The Right of Punishing and of Pardoning, . 50. Constitutional Relations of the Citizen to his Couiitry and to other Countries. Emigration ; Immigration ; Banish- ment ; Exile, 51. The Three Forms of the State. Autocracy; Aristocracy ; Democracy, . 52. Historical Origin and Changes. A Piire Republic. Repre- sentative Government, . 11. THE RIGHT OF NATIONS AND INTERNATIONAL LAW. 53. Nature and Dirision of the Right of Nations, . 213 54. The Elements of the Right of Nations, . 214 55. Riglit of going to War as related to the Subjects of tlie State, 215 56. Riglit of going to War in relation to Hostile States, . . 218 KÄNT'S 13REFATORY EXPLANATIONS. 5 treated as a System of Principles that originate in Reason ; and, as such, i t might be properly designated ' The Meta- physic of Rigbt.' But the conception of Right, purely rational in its origin though it be, is also applicable to cases preseiited in experience; and, consequently, a Metaphysical System of Rights must take into considera- tion the empirical variety and maiiifoldness 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 tlie 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 T m METAPHYSICAL PRINCIPLES OF THE SCIENCE OF RIGHT. And, in regard to the practical appli- cation to cases, it is manifest that only an apgroximation to systematic treatment is to be expected, and not the qttainment 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 wilI form the leading portions of the text, and cletails connected with Rights which refer to particular cases of experience, will bs appended occasionally in subordinate remarks. I n this way a distinction will be clearly made between what is a Metaphysical or rational Principle, and what refers to the empirical Practice of Right. 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 Piiblic Right are at present subjected to so much discussion, and are besides so important in theni- selves, that they may well jiistify delay, for a time, of a final and decisive judgment regarding them. P R O L E G O M E N A . G E N E R A L INTRODUCTION T0 T H E i l f E T A P H Y S I C OF M O K A L S . GENERAL INTRODUCTION T 0 T H E METAPHYSIC OF MORALS. 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 Being to act in conformity with his own representations, is what constitutes the Life of such a Being. The Feeling of Pleasure or Pain.-It is to be observed, Jirst, 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 Pleasure or Pain connected with the object of desire does not always precede the activity of Desire ; nor can it be regarded in every case as the cause, but it may as well be the Effect of that activity. The capacity of experiencing Pleasure or Pain on the occasion of a THE METAPHYSIC OB MOKALS. 16 the form of the Maxim of the act of Will, in so far as it is available as a universal Law, the supreme Law and 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, Reason can only prescribe this supreme Law as an absolute Imperative of prohibi- tion or command. The Laws of Freedom as Moral, Juridical, and Ethica1.- The Laws of Freedom, as distinguished from the Laws of Nature, are mo~al Laws. So far as they refer only to external actions aiid their lawfulness, they are called JzcrZdieal; but if they also require that, as Laws, they shall themselves be the deterrnining Principles of our actions, they are Ethical. The agreement of an action with Juridical Laws, is its Le,gality; the agreement of an action with Ethical Laws, is its Morali$y. The Free- 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. 11. THE IDEA AND NECESSITY OB A METAPHYSIC OB MORALS. The Laws of Nature Rational and also Empirica1.-It has been shown in l'he Metaphysical Principks of tlze Science of Nature, that there must be Principles d, priori for the Natural Science that has to deal with the objects of 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 Science of Nature,' as a preliminary to Experimental Physics regarded as Natural Science applied to particular objects of experience. Rut this latter Science, if care be taken to keep its generalizations free from error, may accept many propositions as universal on the evidence of experience, although if the term ' Universal ' be taken in its strict sense, these would necessarily have to be deduced by the Metaphysical Science from Principles 2c pl.iori. Thus Newton accepted the principle of the Equality of Action and Reaction as established by ex- perience, and yet he extended it as a universal Law over 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 experinients conducted in accordance with them. Moral Laws il priori and Necessary-But it is other- wise with Moral Laws. These, in contradistinction to Natural Laws, are only valid as Laws, in so far as they 16 KANT'S PIIILOSOPHY OF LAW. THE METAPHYSIC OF MORALS. 17 can be rationally established ci p ~ i o r i and compreliended as necessay. I n fact, conceptions and judgments regard- ing ourselves and our conduct have no.mora1 significance, if they contain only what may be Iearned 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 Happii~ess (Euda~nzonisrn), it would be absurd to search after Principles 2z priori as a foundation for it. Por however plausible it may sound to say that Reason, even prior to experience, can comprehend by what lneans we may attain to a lasting enjoyment of the real pleasures of life, yet all that is taught on this subject h pl.iori is either tautological, or is assumed wholly without foundation. It is only Experience that cari. 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 i t 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 (secundz~m principia generalia non z~niversalia) ; and the generality thus attained is still so limited that numberless exceptioiis must be allowed to every indi- vidual in order that he niay adapt the choice of his niode of life to his own particular inclinations and his capacity for pleasure. And, after all, the individual has rmlly to acquire his Prudence at the cost of his own suffering or that of his neighbours. But i t is quite otherwise with the Principles of 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 Beason. 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? But Reason commands how we oyht to act, even although no example of such action were to be found; nor does Reason give any regard to the Advantage which may accrue to us by so acting, and which Experience could alone actually show. For, altliough Reason allows us to seek what is for our advantage in 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 giiides the conduct, yet the authority of her precepts as Commartds does aot rest on such considerations. They are used by Reason only as Counsels, and by way of a counterpoise against seductions to an opposite course, when acljusting beforehand the equilibrium of a partial balance in the sphere of Practical Judgment, in order thereby to secure the decision of this Judgment, according to the due weight of the & priori Principles of a pure Practical Reason. * This holds notwithstanding the fact that the term <Morals,' in Latin Mores, and in German Sitten, signifies originally only Man~?ers or Mode of Lge, THE METAPHYSIC OB MORALS. 19. The Necessity of a obetaphysic of Mo~~Is.-<META- PHYSICS ' designates any System of Knowledge h pri0.l.i that consists of pure Conceptions. Accordingly a Practical Philosophy not having Nature, but the Free- dorn of the Will for its object, will presuppose and require a Metaphysic of Morals. I t 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 codd any one believe that he has a source of universal Law in himself, without Prin- ciples h priwri 1 And just as in a Metaphysic of Nature there must be principles reguIating 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 lzatzlre of man as known only by Experience, in order to show in it the conse- quences of these universal Moral Principles. But this inode of dealing with these Principles in their particular applications will in no way detract from theii. rational purity, or throw doirbt on their h p.piori 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 Anthropo1ogy.-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 realizatiolz in practice of the universal moral Laws in human Nature, with the means of propagating, spreading, and strengthening the Moral P r i n c i p l e ~ ~ a s by the Education of the young and the instrnction 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 vith 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 attairied only because the Law has not been comprehended and presented in its purity, in which also its strength consists. Or, otherwise, spurious and rnixed rnotives 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 practice of Duty. I t is only by Pure Reason, therefore, that Duty can and must be prescribed. Practical Philosophy in relation to Art.-The h i g h ~ i v i i i o n of Philosophy, under which the Division just rnentioned stands, is into Theoretical Philosophy and Practical Philosopliy. Practical Philosophy is just Moral Philosophy in its widest sense, as has been explained elsewhere? All that is practicable and possible, accord- ing to Natural Laws, is the special subject of the activity of Art, and its precepts and rules entirely depend on the Theory of Nature. I t 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 to what passes beyond the determinations of Nature. Philosophy therefore cannot ernbrace under its practical Division a techltical Theory, but only a morally practical Doctrine. But if the dexterity of the Will in acting according to Laws of Freedom, in contradistinction to In the Cmtipue of the Judgment (1790). TEE METAPHYSIC OF MORALS. 2 5 ethica2 Duties that are directly such ; and the inner Legislation also makes the others-all and each of them -indirectly Ethical. The Deducti0.n 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 (divkio 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 ab tQ: what is the highest Conception that is primarily divided into Right and Wrong (aut fas aut nefas). I t is assuredly the conception of the activity of the Free-will in general. I n 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. DIVISION O F THE METAPHYSIC OF MORALS AS A SYSTEM OB DUTIES GENERALLY. 1. All Duties are either Duties of Right, that is, JURIDICAL DUTIES (Oficia Juris), or Duties of Virtue, that is, ETHICAL DUTIES (Oflcia YirtutG s. ethica). Juridical Duties are such as may be promulgated by external Legislation ; Ethical Duties are those for which 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 rnay 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 h t y and not also the Science of Right, since Duties and Rights 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- only through the Moral Imperative, which is an immediate injunct,ion of Duty ; whereas the conception of Right as a ground of putting others - iinder 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 accoiding to his Humanity as a Personality independent of physical determinations (homo noumeno.n), in distinction from the Same person as a Man modified with these determina- tions (homo phenomenon). Hence the conceptions of Right and End when referred to Duty, in view of this twofold quality, give the following Division :- THE METAPHYSIC OB MORALS. 27 DIVISION OF THE METAPHYSIC OF MORALS ACCORDINQ TO TEE OBJECTIVE RELATION OF THE LAW TO DUTY. I. THE RIQHT OF HUNANITY in oiir own Person (Juridical Diities towards 6 I. JURIDICAL! to DUTIES OTHERS. 11. THE RIQHT OF MANRIND k Others foridical & Diities towards thers). 111. THE END OF HUMANITY in onr Person (Ethical Duties towards Oneself). IV. THE END OE MANKIND in Others (Ethical Duties towards Others). DIVISION OF THE METAPHYSIC OF MORALS ACCORDING T0 RELATIONS OF OBLIGATION. As the Subjects between whom a relation of Right to Duty is apprehended-whether it actually exist or not - adrnit of being conceived in various juridical relations to each other, another Division may be pro- posed from this point of view, as follows :- DIVISION POSS~BLE ACCORDINQ TO THE SUBJECTIVE RELATION OF THOSE WHO BIND UNDER OBLIGATIONS, AND THOSE WHO ARE BOUND UNDER OBLIGATIONS. 1. 2. The juridical Relation of Man The juridical Relation of Mai to Beings who h v e neither Right to Beings who have both Rights nor Duty. and Duties. V~car.-There is no such Re- ADEST.-There is such a Rela- lation. For such Reings are tion. For it is the Relation of irrational, and they neither put Men to Men. us under Obligation, nor can we be put iinder Obligation by them. 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-(GoD). VAc~~.-There is no such Re- VACAT.-There is no such Re- lation. For such Beings would lation in merePhilosophy, 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 t~anscendent Duty, that is, one to which no corresponding subject can be given that is external and capable of irnposing 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 oiirselves. But the conception of this object is not entirely empty. On the contrary, it is a fruitful conception in relation to oiirselves and the maxirns of our inner morality, and therefore in relation to practice generally. And it is in this bearing, that all the Duty involved and practicable for us in such a merely ideal relation lies. 111. DIVISION OF THE METAPHYSIC OB MORALS. AS A SYSTEM OI(< DUTIES QENERALLY. Accordinq to the cmtituent Prineiples und the Method of the System. I. private Ri ht. I. PRIXCELES, { I' RIQHT, {II. Public ILigft. 11. DUTIES OF VIRTUE. ETC.-And so on. in- cliiding ail 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. - 11 METHOD, . { I. DIDACTICS. TI. ASCETICS. KANT'S PHILOSOPHY OF LAW. THE METAPHYSIC OF MORALS, 2 9 IV. GENE~UL PRELIMINARY CONCEPTIONS DEFINED AND EXPLAINED. (Philosophia practica universslis.) Freedom.-Tlie conception of FKEEDOM is a coiieeption of pure Eeason. I t js therefore tramcendent in so far i ~ s regards Theoretical Philosophy ; for it is a conception for whicli no corresponding instance or example caii be found or supplied in any possible experience. Accord- ingly Freedoni 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. I n the practical sphere of Reason, however, the reality of Freedom may be demonstrated by certain Practical Principles which, as Laws, prove a causality of the Pure Reason in the process of determining the activity of the Will, that is independent of all empirical and sensible conditions. And thus there is established the 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 Freedoni in the practical relation certain unconditional practical Laws are founded, and they specially constitute MORAL LAWS. I n rdation to 11s as human beings, with an activity of Will modified by sensible influences so as not to be conforinable to the pure Will, but as often contrary to it, these Laws appear as IMPERATIVES comnianding or prohibiting certain actions; and as such they are CATEGORICAL or UNCON- DITIONAL IMPERATIVES. Their categorical and uncon- ditional character distinguishes tliem from the 'Technical Imperatives which express the prescriptions of Art, and which always command only conditionally. Accordi~ig to these Categorical Imperatives, certain actions are allowed or disallowed as being morally possible or iin- possible ; and certain of them or their opposites are morally necessary and obligatory. ~ e n c e , in reference to sucli actions, tliere arises the conception of a Duty whose observance or transgression is accompanied with a Pleasure or Pain of a peculiar kind, known as Moral Feeling. 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 Efects that arise in the mind on the occasion of our voluntary activity being deterrnined 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. O b ~ i g a t i o n . - O ~ ~ 1 ~ ~ ~ 1 0 ~ 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 ail Action, otherwise contingent in itself, is made neces- sary. It is distinguished from a practical Law, in 3 1 KANT'S PHILOSOPHY OF LAW. THE METAPHYSIC OF MORALS. 3 5 the Law is one and invariable, the Maxims of tlie Agent may yet be very different. The CategoricaI Imperative.-The Categorical Impera- tive only expresses generally what constitutes Obligatioii. 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 Reason 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 enteririg into such a Universal Legislation. The simplicity of this Law, in comparison with the great and manifold Consequences which may be drawri , 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 Reason to determine the activity of the Will by tlie mere idea of the qualification of a Maxim for the univarsality 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 Reason would never have come upon either by Principles h priol-i, or from any experience whatever; and even if it had ascertained the fact, it could ilever have theoretically established its possibility. This practical Law, however, not only discovers the fact of that property of the Will, which is FRJZEDOM, but irrefutably establishes it. Heilce it will be less surprising to find that the Moral Lnws are undemonstrabb, 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 Maxirn of the Action with the Law constitutes its Momlity. A Mmim is thus a subjective Principle of Action, whicli the individual makes a Rule for himself as to how iii 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 PRINCIPLE 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 Clioice. 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 i t 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 sabject to any external necessita- tion. I t is, therefore, only the act of Choice in the voluntary process, that can be called @ee. TIIE METAPHPSIC OF MORALS. 3 '7 The Freedom of the act of Will, however, is not to be defined as a Liberty of Indifference (libertas indifer- ewtim), that is, as a capacity of choosing to act for or against the Lnw. The voluntary process, indeed, viewed as a phenomenal appeararice, gives rnany examples of this choosing in experience ; and some have accordingly so defined the free-will. For Freedom, as i t is first made knowable by the Moral Law, is known only as a negative Property in us, as constituted by the fact of not being necessitated to act by sensible principles of determination. Regarded as a no~~menal reality, how- ever, in reference to Man as a pure rational Intelli- gence, the act of the Will cannot be at all theoretimlly exhibited; nor can it therefore be exylained 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 bclonging to the world of Sense, exhibits-as experience shows-a capacity of choosing not only eonformably to the Law but also contraqy to it, his Freedom as a rational Being belong- ing to the world of Intelligence cannot be defined by reference merely to sensible appearances. For sensible phenomeria cannot make a supersensible object-such as free-will is-intelligible ; nor can Freedom ever be placed in the mere fact that the rational Subject can make a choice in conflict with his own Lawgivirig Reason, 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 dejwing Principle and the universal differentiating mark of the act of free- will, in its distinction from the arbitriuvt butzcm s. servum; because the empirical proposition does not assert that any particular characteristic necessarily belongs to the conception in question, but this is requisite in the process of Definition.-Freedom in relation to the internal Legislation of Reascn, C ~ I L alone be properly called a Power ; the possibi1it.y o2 diverging from the Law thus giveri, is an incapacity or want of Power. How then can the former be defined by the latter ? I t could only be by a Defini- tion which would add to the practical conception of the free- will, its mereise as shown by experience ; but this would be a hybrid Dejnitwn which would exhibit tlie conception in a false light. Law; Legis1ator.-A morally practical LAW is a pro- position which contains a Categorical Imperative or Command. He who commands by a Law (impernns) is the Lawgiver or LEGISLATOR. He is the Author of the Obligation t.hat acconipanies 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 iinposed upon us d priori and uncon- ditionally by our own Reasoii, may also be expressed as proceeding from the Will of a Supreme Lawgiver or the Divine Will. Such a Will as Supreme can conse- quently have only Rights and not Duties ; and it only indicates the idea of a moral Eeing 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 judiciar;a s. validu) ; otherwise i t would be only adjudicative or declaratory (imputatio d+dicatoria).-That Person-individual or collective- 3 8 KANT'S PHILOSOPBY OP LAIV. TIIE METAPHYSIC OF XORALS. 3 9 who is iiivested with the Right to impute actions judicially, is called a JUDGE or a Court (judex s. forunz). 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 (meriturn). What is done only in exact conforrnity with the Law, is what is tlzse (dehitum). And when less is done than can be clemanded to be done by the Law, the result is moral Demerit (demerikm) or Culpability. Punishment ; Reward.-The jzcrz'dical Effect or Con- sequence of a culpable act of Demerit is PUNISHMENT (poena) ; that of a meritorious act is REWARD (prmitsm), assuming that this Reward was promised in the Law and that i t formed the motive of the action. The coinci- dence or exact conformity of conduct to what is due, has no jiiridical effect.-Benevolent REMUNERATION (remune- ratio s. repensio benefia) has no place in juridical Rela- tions. The good or bad Consequences arising from the performance of an obligated action-as aIso the Con- sequences arising from failing to perform a meritori- ous action-cannot be imputed to the Agent (modus imputationis tollem). The good Consequences of a meritorious action-as also the bad Consequences of a wrongful action-may be imputed to the Agent (modus Zmputationis poneus). The degree of the Imputability of Actions is to be reckoned accordiiig 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 DeecZ imputed as rneritorious. This may be Seen by con- sidering stich examples as resciiing a man who is an entire stranger from great distress, and at very consider- 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 cu1pable.-Hence the state of mind of the Agent or Doer of a deed makes a difference in imputing its consequences, accorcling as he did it in passion or performed it with coolness and deliberation. INTRODUCTION T0 THE SCIENCE OF RIGHT. 4 5 irnmutable Principles of all positive Legislation lllust be nivers. derived by practical Jurists and Law,' 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. I t is all the morc 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 (pug 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 whicli 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 Phedrus, fine enough in appearance, bnt mfortunately it wants brain. 1. The conception of RIGHT,-as referring to a corre- sponding Obligation which is the moral aspect of it,-iii thefirst place, has regard only to the external and practical relation of one Person to another, in so far as they can have influence upon each other, immediately or mediately, by their Aetior~s as facts. 2. I n the second place, the conception of Right does not indicate the relation of the action of an individual to the wish or the mere desire of another, as in acts of benevolence or of unkindness, but only the relation of his free action to the freedom of action of the other. 3. And, in the third place, in this reciprocal relation of voluntary actions, the conception of Right does not take into consideration the matter of the act of Will in so far as the end which any one may have in view in willing it, is concerned. In other words, i t is not asked iii a question of Right whether any one on buying goods for his own business realizes a profit by the transaction or not; but only the form of the 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 fiee, and as to whether the action of one can harmonize with the Freedom of another, according to a universal Law. RIGHT, therefore, comprehends the whole of the con- 'ditions iinder 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. 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. IYTRODUCTION T 0 THE SCIENCE OF RIQHT. 4 '7 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 obstructioii cannot CO-exist with Freedom according to universal Laws. I t 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 i t the maxim of my actions. For any one rnay 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 mm'm of my conduct. The universal Law of Right rnay then be expressed, thus: ' Act externally in such a manner that the free exercise of thy Will rnay 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 rnay be likewise thus limited in fact by others; and i t 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, rnay not and should not be represented as a motive-principle of action. 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 furtlierance 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 hindrailce or resistance made to Freedom. Con- sequently, if a certaiii exercise of Freedom is itself a hindrance of tlle Freedom that is according to universal Laws, i t is wrong ; and the coinpulsion or coilstraint which is opposed to i t is right, as being a hindering of U hin&rance of Frecdom, arid as being in accord with the Freedom which exists in accordance with universal Laws. Hence, according to the logical pririciple of Contradiction, all Right is accompanied with an implied Title or Warrant to bring compiilsion to bear on any one who rnay violate it in fact. E. Strict Right rnay 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 Right. is not to be regarded as cbnlposed of two different elements-Obligation accord- ing to a Law, and a Title on the part of one who has bound another by liis own free choice, to compel him to perform. But it imports that the conception of Right rnay be viewed as consisting immediately in the possi- bility of a universal reciprocal Compulsion, iii Iiarmony with the Freedom of all. As Right in general lias for its object only what is external in actions, Strict Right, as that with which nothing ethical is intermingled, requires ilo other motives of action than those that are merely external ; for it is then pure Right, and is unmixed with any prescriptions of Virtue. A strict Right, then, in the exact sense of the term, is that which alone can be called wholly external. Now such Right is founded, no doubt, upon the consciousness of the Obligation of every 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 Reason obliges him to do this ; but it means that he can apply an external compulsion to force any such one so to pay, and that this compulsion is quite consistent with the Freedom of all, including the parties in question, according to a universal Law. Right and the Title to compel, thus indicate the Same thing. The Law of Right, as thus enunciated, is repre- sented as a reciprocal Conipulsion necessarily in accordance with the Freedom of every one, under the principle of a universal Freedom. It is thus, as i t were, a representative Const?.uction of the conception of Right, by exhibiting it in a pure intuit,ive 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 und Reaction. Now, as in pure Slat.hematics, we cannot deduce the properties of its objects immediately from a mere abstract concep- tion, but can only discover thein by figurative con- struction or representation of its conceptions; so i t is in like manner with the Principle of Right. I t is not so much the mere formal Conceptwn 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 d priori in beboof of a Construction of the conception of Right. The Right in geometrical lines (rectum) is opposed as the Straight to that which is Ciirved, 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 fwo 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 i t divides space on either side into two equal parts. After the manner of this analogy, the Science of Right aims at determining what every one shall have as his own with mathematical exactness ; but this is not to be expected in the ethical Science of Virtue, as it cannot but allow a certain latitude for exceptions. But without passing into the sphere of Ethics, there are two cases-known as the equivocal Right of Equity and Necessity-which claim a 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 'lnte9~- mundia' of Epicurus. These we must at the outset take apart from the Special exposition of the Science KANT's PHILOSOPHY OF LAW. DIVISION OF THE SCIENCE OF RIGHT. A. GENERAL DIVISION OB THE DUTIES OB RIGHT. ' (Juridical Duties.) I n this Division we rnay very conveniently follow ULPIAN, if his three Formulze are taken in a general sense, which rnay 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 riglitly.' Juridical Recti- tude, or Honour (Honestas juridica), consists in maintaining one's own worth as a man in relation to others. This Duty rnay 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 Forrnula as an Obligation arising out of the Right of Hunlanity in our own Person (Lexjusti). 2. NEMINEM ~ D E . 'Do Wrong to no one.' This Formula rnay be rendered so as to mean, 'Do no Wrong to any one, even if thon shouldst be under the necessity, in observing this Duty, to cease from all connection with others and to avoid all Society ' (Lex jzcridica). 3. SUUM CUIQUE TRIBUE. 'Assign to every one what is his own.' This rnay be rendered, ' Enter, if Wrong cannot be avoided, into a Society with others in which every one nlay have secured to him what is his own.'-If this Formula were to be simply trans- lated, ' Give every one iLis om, ' it would express an absurdity, for we cannot give any one what he already 21as. If i t is to have a definite meaning, it must INTRODUCTION T0 THE SCIENCE OB RIGHT. 5 5 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 justiticz). These three classical Formulze, at the same time, repre- sent principles which suggest a Division of the System of Juridical Duties into Inte~nal DutGs, Externul Duties, and those Connecting Duties which contain the latter as deduced from the Principle of the forrner by sub- siimption. B. I. Natural Right and Positive Right. The System of Rights, viewed as a scientific System of Doctrines, is divided into NATURAL RIGHT and POSITIVE RIGHT. Natural Right rests upon pure rational Prin- ciples h priori; Positive or Statutory Right is what proceeds from the Will of a Legislator. 11. Innate Right and Acquired Right. ' The Systeni of Rights rnay 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 thern. Thus viewed, the System is divided into INNATE RIGHT and ACQUIRED RIGHT. Innate Right is tliat 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 rnay also be called the ' Interna1 Mine and Thine ' (Meum vel Tuum internum) ; for External Right must always be acquired. INTRODUCTION T0 THE SCIENCE OF RIGHT. 5 7 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 Right belonging to every man in virtue of his Humanity. There is, indeed, an innate EQUALITY belonging to every man which consists in his Right to be independent of being bound by others to anything more than that to which he rnay also recipro- cally bind them. I t is,'consequently, the inborn quality of every man in virtue of which he ought to be his o m master by Right (sui juris). There is, also, the natural 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, further, there is also the innate Right of COMMON ACTION On the part of every man so that he rnay do towards others what does not infringe their Rights or take away nnything that is theirs unless they are willing to appro- priate it ; such as merely to communicate thought, to narrate anything, or to promise something whether truly and honestly, or untruly and dishonestly (verilopuium aut falsilopz~ium), for it rests entirely upon these others whether they will believe or trust in it or not.' But all these Rights or Titles are already included in the Prin- z I t is customary to designate every untruth that is spoken intention- nlly as such, although i t rnay be in a frivoloiis manner, a ' Lie,' or Falsehood (mendaciurn), beeause i t rnay do harm, at least in so far as any one who repeats i t in good faith rnay be made a laughing-stock of to others on account of his easy credulity. But in the juridical sense, only that Untruth is called a Lie which immediately infringes the Right of another, such as a false allegation of a Contract having been concluded, when the allegation is put forward in order to deprive some one of what ciple of Innate FREEDOM, and are not really distinguished from it, even as dividing members under a higher species of Right. The reason why such a Division into separate Rights has been introduced into the System of Natural Right viewed as including all that is innate, was not without a purpose. Its object was to enable proof to be more readily put forward in case of any controversy arising about an Acquired Right, and questions emerging either with reference to a fact that might be in doubt, or, if that were established, in reference to a Right under dis- pute. For the party repudiating an obligation, and on whom the burden of proof (onzcs 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 Interna1 ' Mine ' and ' Thine,' there is therefore not Rights, but only ONE RIUHT. 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 rnay be referred in detail to the External Mine and Thiiie. is his (falsiloquizcrn dolosurn). This distinction of conceptions so closely allied is not without foundation; because on the occasion of a simple statement of one's thoughts, i t is always free for another to take them as he rnay ; 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 wliat is Special to Etliics, can hardly be otherwise drawn. KANT'S PHILOSOPHY OP LAW. The highest Division of the System of Natural Right should not be-as it is frequently put-intoCiVaturaZ Right' and 'Social Right,' but into NATURAL RIGHT and CIVIL RIGHT. The first constitutes PRIVATE RIGHT ; the second, PUBLIC RIGHT. For it is not the ' Social state ' but the ' Civil state ' that is opposed to the ' State of Nature ; ' for in the ' State of Nature ' there may well be Society of some kind, but there is no ' civil' Society, as an Institution securing the Mine and Thine by public laws. I t is thus that Right, viewed under reference to the state of Nature, is specially called Private Right. The whole of the Principles of Right will therefore fall to be expounded under the two subdivisions of PRIVATE RIGHT and PUBL~C RIGHT. THE S C I E N C E O F R I G H T . PART FIRST. P R I V A T E RIGHT. THE SYSTEM OF THOSE LAWS WHICH REQUIRE NO EXTERNAL PROMULGATION. 6 4 KANT'S PHILOSOPHY OF LAW. THE PRIRCIPLES OF PRIVATE RIGHT. 6 5 Reason; and i t is enabled by meails of this Postulate d p~yiori to enlarge its range of activity in practice. 3. Possession and Ownership. Any one who would assert the Right to a thing as his, must be in possession of i t 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 i t without his consent. For, should anything external to him, aiid in no way connected with him by Right, affect this object, i t 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 Conoeption 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 F~ee-will of another in the performance of a particular act (prmstatio) ; (3) The Stute of another in relation to myself. These correspond to the categories of Substance, Cam- nlity, 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 qace ' mine,' when, even altitough not in physical possesswn of it, I am able to assert that I am iii possession of i t in another real non-physical sense. Thus, I am not entitled to call an apple nzine 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 i t out of my hand, and wherever i t may lie.' I n like manner, I am not entitled to say of the ground, on which I may have laid myself down, that therefore it is ?nnine; but only when I cari rightly assert that i t still remains in my possession, although I may have left the spot. For any one wlio, 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, injiire me in respect of the h e r 'Mine' of Freedom, but not in respect of the external 'Mine,' iinless I could assert that I was in the possession of the Object, even when not actually holding i t physically. And if I coiild 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 ' i t has come into ruy possession at the sama time with a promise' (pactum re iqzitum) ; 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 performarice of i t has not yet come.' I n the latter case, the promise belongs to the nature of things actually helcl as possessed, and as an 'active obligation' I cari reckon i t mine ; and this holds good not only if I have the thingpronzised-as in the first case-already in my possession, but even although I do not yet possess i t 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 becaiise I 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 withdrawu 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 Right. 5. Definition of the conception of the external Mine and Thine. Definitions are nominal or real. A nominal Definition is sufficient merely to dhthgzcish the object defined froin all other objects, and it spriiigs 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. T h e nominal Dejnition of the external ' Mine ' would thus be: 'The external Mine is anything outside of myself, such that any hindrance of my use of it a t 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 Dejnition of this conception may be put thus : ' The external Mine is anything outside of myself, such that any prevention of my use of i t would be a wrong, althozcgh I may not be i n possession of i t so as to be actually hold- ing it as an object.'-I must be in some kind of posses- sion of an external object, i f 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 thervby do me any wrong. Hence, THE PRINCIPLES OB PRIVATE RIGHT. 6 '1 according to 5 4, a rational Possession (possessio nou- rnalzon) must be assuined as possible, if there is to be rightly an externnl ' 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 Chtique of Pure Reason-but as a Thing in itself. For in the CTZtipzce of Awe Reason the interest of Reason turns upon the theoreticc6l knowledge of the Nature of Things, and how far Reason cail go in such knowledge. But here Reason has to deal with the practical determination of the action of the Will according to Laws of Preedom, 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, i t is not quite correct to speak of 'possessing' a Riglit to this or that object, but i t should rather be said that an object is possessed in a pwely juridical way ; for a Kiglit is itself the rational possession of sin Object, and to ' possess a possession,' would be an expression without meaning. Deduction of the conception of a purely juridical Possession of an External Object. (Possessio noumenon.) The question, ' How is an external Mine nnd IThine possible ? ' resolves itself into this other question, ' How THE PRINCIPLES OB PRIVATE BIGHT. 6 9 is a merely jzu%dical or gmtional Possession possible?' And this second question resolves itself again into a third, 'How is a synthetic proposition in Right possible 6 priori ? ' All Propositions of Right-as juridical propositions- are Propositions 6 priori, for they are practical Laws of Reason (Dktcbmina rationis). But the juridical Pro- position 6 priori respecting empirz'cal Possession is cmaly2icnl; for it says nothing more than what follows by the principle of Contradiction, from the conception of such possession; namely, that if I am the holder of a thing in the way of being physically connected with it, any one interfering with it without my consent-as, for instance, in wrenching an apple out of my hand-affects and detracts from my freedom as that which is internally Mine; and consequently the maxim of his action is in direct contradiction to the Axiom of Right. The pro- position expressing the principle of an empirical rightful Possession, does not therefore go beyond the Right of a Person in reference to himself. On the other hand, the Proposition expressing the possibility of the Possession of a thing external to. me, after abstraction of all t he conditions of empirical posses- sion in space and time-conseqiiently presenting the assumption of the possibility of a Possessio Noumenon- goes beyond tliese limiting conditions ; and because this Proposition asserts a possession even without physical holding, as necessary to the conception of the external Mine and Thine, i t is synthetical. Aild thus it becomes a problem for Reason to show how stich a Proposition, extending its range beyond the conception of empirical possession, is possible d priori. I n this manner, for instance, the act of taking possession of a particular portion of the soil, is a mode exercising the private free-will without being an act of tcsz~rpatz'on. The possessor founds iipon the innate Right of common possession of the surface of the earth, and upon the universal Will corresponding h p~iori to it, which allows a private Possessz'olz of the soil ; because what are mere things would be otherwise made in themselves and by a Law, into unappropriable objects. Thus a first appropriator acquires originally by primary possession a particular portion of the ground ; and by Right (jure) he resists every other Person who would hinder him in the private use of it, although while the 'state of Nature' continues, this cannot be done by juridical means (de jure), because a public Law does not yet exist. And although a piece of ground should be regarded as free, or declared to be such, so as to be for the public use of all without distinction, yet i t cannot be said that i t is thus free by nature and o~iginally 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 i t was denied to any particular individual; and as this public freedoin of the ground w6uld be a prohibition of i t to every particular individual, this presupposes a cornmon possession of i t 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 inutually interdict or suspend each other, from any particular or private use of it. This o~iginal Community of the soil a r~d of the things upon it (eommu?zio fu7zdi originuria), is an idea which has objective and practical Juridical reality, and is entirely different from the idea of a primitive commnnity of things which is a fiction. 7 1 KANT'S PHILOSOPHY OB LAW. TIIE PRINCIPLES OF PRIVATE RIGHT. 7'5 (possessio nounzenon) as the principle of a univei.sally valid Legislation. For such a Legislation is implied aiid contaiiled in the expression, 'This external object is rnilbe,' because an Obligation is thereby imposed upon all others in respect of it, who would otherwise not have beeil 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 e~npirical 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 i t with my body; for the question here discussed refers only to my external Freedoni, and coiisequently i t affects only the possession of niyself, which is not a thing external to me, and therefore only involves an internal Right. But if I continue to be i i ~ possession of the spot, although I have taken myself away froin it and gone to another place, only under that condition is my external Right concerned in connection with it. And to make the continuous possession of this spot by my Person a condition of having i t as mine, must either be to assert that it is not possible at all to have anytliing External as one's own, which is contrary to tlie 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 niust 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 tlie ground of external Right. This Right is not to be aiinulled by the fact that the promiser having said at one time, ' This thing shall be yours,' again a t a sub- sequent time says, 'My will now is that the thing shall not be yours.' I n such relations of rational Right the conditions hold just the Same as if the promiser had, without any illterval of time between them, made the two declarations of his Will, ' This shall be yours,' and also ' This shall not be yours ; ' which manifestly coiltradicts itself. The Same thing holds, in like mailner, of the Con- ception of the juridical possession of a Person as belong- ing to the ' Having' of a subject, wliether i t 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 eacli other in spacc ; because i t is by jzwidical relatioris tliat they are connected, and the external ' Mine' and 'Thine,' as iii the former cases, rests entirely upon the assumption of the possibility of a ~ u r e l y 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 a.n inevitable Dialectic, in which a Thesis and an Antithesis set up equal Claims to the validity of two conilicting Conditioris. Reason is thns con1- pelled, iii its practical function in relation to Right,- as i t was in its theoretical function,-to make a dis- tinction between Possession as a pkenomenal appear- ance presented to the senses, and that Possession which is rational and thinliable only by tlie Uiideistanding. '76 KANT'S PHILOSOPHY OF LAW. THE PRINCIPLES OF PHIVATE RIGIIT. '7'7 THESIS.-The Thesis, in this case, is, ' l t is possiblr: to have something external as mine, although I arn not in possession of it.' ANTITHESIS.-The Antithesis is, ' It is not possible to have anything external as mine, if I an1 not in possession of it.' SOLUTION. -The Solution is, ' Botli Propositions are true;' the former when I mean empirical Yosses- sion (possessw phnomenon), the latter when I under- stand by the same term, a purely rational Possession ( possessw noumenon). But the possibility of a rational possession, and consequently of an external Mine and Thine, cannot be comprehended by direct insight, but must be deduced from the Practical Reason. And in this relation it is specially noteworthy that the Practical Eeason without intuitional ~ierceptions, and even withoiit requiring such an element h priori, cari extend its range by the mere elintination of empirical con- ditions, as justified by the law of Freedom, and can thus establish synthetical Propositions h priori. The proof of this in the practical coniiection, as will be shown afterwards, can be adduced in an analytical rnanner. 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 whicli no one would be under, without such a juridical act on my part. But the assumption of this Act, at the Same time involves the admission that I ani 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 an1 riot obliged to let alone what another person declares to be externally his, unless every other person likewise secures me by a giiarantee that he will act in relation to what is mine, upon the same Principle. This guar- antee of reciprocal and mutual abstention from wliat belongs to others, does not require a Special juridical act for its establishment, but is already involved in the Conception of an external Obligation of Right, on account of the universality and consequently the reciprocity of the obligatoriness arising from a universal Ru1e.-Now a Single Will, in relation to an external and consequently contingent Possession, cannot serve as a compulsory Law for all, becaiise that would be to do violence to the Freedom which is in accordance with universal Laws. Therefore i t is only a Will that binds every one, and as such a comxuon, 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 i t 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, witl-i 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 Constitu tion. 9. There may, however, be an external Mine and Thine found as a fact in the state of Nature, but i t is only provisory. Natural Right in the state of a Civil Constitution, means the forins of Right which may be deduced from Principles b priori as the conditions of such a Cotistitution. 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 wliich 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 iinder ~vhich every one has what is liis owri merely secnred 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 Constitiition-or apart from i t - an exteriial Mine and Thine must be assumed as possible, and along with i t a Right to compel every one with whom we could come into any kind of intercourse, to enter with us into a constitution in which what is Mine or Thine can be secured.-There rnay 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 i t 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 peremptorg or giiaranteed Pos- THE PRINOIPLES OF PRIVATE RIGHT. '1 9 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, i t would still be only a one-sided or unilateral Will, and consequently it would have just as little legal Title- which can be properly based only on the universalized Will-to contest a claim of Right ; as he would have to assert it. Yet 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. I n a word, the mode in which anything external may be helcl as one's own in the state of Nature, is just physical possession with a presumpiion of Right thus far in its favour, that by union of the WilIs of all in a public Legislation, i t will be made jzc.ridical; and in this ex- pectation i t holds comparatively, as a kind of potential jiiridical Possession. This Prerogative OE Riglit, as arising from the fact of empirical possession, is in accordsnce with the Formula, ' I t is well for those who are in possession ' (Beati possidentes). I t does not consist; in the fact that because the Possessor has the presumption of being a rightfirl man, i t is iinnecessftry 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 i t 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, conseqnently, all actual possession is a state whose rightfulness is established upon that Postulate 8 4 XAST'S PIIILOSOPBY OF LAIV. TIlE PRIXCIPLES OF PRIVATE EIGIIT. 8 3 could prececle it, ancl yet i t would be clc!~,iz.crl from tlie particillar Wills of all the indi-viduals, and consequently becoine all-sidecl or oaznilateml; for a properly p~il,za?:3/ Acquisition can only proceed from an individual or uni- lateral Will. ~ I V I S I O X OJ? THE SUBJPCT OP TIIE ACQUISITION OF TIIE EXTEItXAL MINE AND TIIINE. I. Iii respect of the MATTER or Object of Acquisitiori, I acquire either a Corporeal THING (Substance), or the I'ERFORMANCE of something by another (Causality), or this other as a PERSON in respect of his state, so far as I have a Iiight to dispose of the sarne (in a relation of Reciprocity with him). 11. I n respect of the FORM or Mode of Acquisition, i t is either a REAL RIGHT (jus ~ec~le), or a PERSONAL RIGHT ( ~ Z L S pemonale), or a REAL-PERSONAL RIGHT (jus ~ealiter pe~sonale), to the possession, although not to the use, of another Person as if he were a Thing. 111. I n respect of the Ground of Right or THE TITLV (titulus) of Acqiiisition-which, properly, is not a par- ticular menlber of the Division of Rights, but rather a. constituent element of the mode of exercising thern-any thing External is acquired by a certain free Exercise of Will that is either t~nilate~ctl, as the act of a single Will (facto), or bilc(tc~n1, as the act of two Wills (pacto), or onznilate~cd, as the act of all tlie Wills of a Community together (lege). F I R S T S E C T I O N . 11. What is a Real Right ? The iisual Definition of Real Right, or ' 1:iglit in 8 Thing ' (jzu qeenle, jzu in re), is that ' i t is a Eight as ugcbinst eveq possessor of it.' This is a correct Nominal Definition. But what is it that entitles me to claim an external object froni any one who may appear as its possessor, and to compel him, per vindicationem, to put ine again, in place of himself, into possession of it ? 1s this external juridical relatioil of my Will a kind of immediate relation to an external thing ?-If so, whoever might thinlc 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 E g h t on one side has always a Duty corresponding to i t on the other, so that an external thing, although away from the liands of its first Possessor, continues to be still connected with him by a continning obligation ; and thus i t refuses to fall nnder the claim of any other possessor, because i t is already bound to another. I n this way my Right, viewed as a kind of good Genius accompanying a thing and preserving i t from all external attack, would refer an alien possessor always to me ! I t is, however, absurd to thinlc of an obligation of Persons towards Things, and conversely ; although i t may be aIIowed in any psrticular case, to represent the 86 KANT'S PHILOSOPHY OF Law, juridical relation by a sensible image of this kind, and to express it in this way. The Real Definition wowld run thus: ‘RicHT mv a Tixc 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 quemlibet hayus rei possessoren). 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 fram 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 jn 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 reale) is meant not only the ‘ Right in a Thing’ (jus in re), but also the constitutive principle of all the Laws which relate to the real Mine and Thine—lIt is, however, evident that a man entirely alone upon the earth could properly neither have nor acquire any external thing as his own; because between him as a Person and all external Things as material objects, there could be no relations of Obligation. There is therefore, literally, 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 ig 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 like —-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 émmoveable, 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. THE FRWCIPLES (3% PItIVATE RIGHT. 8 9 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 iipoli tlie Postulate of the Yractical Reasoil ( 5 2) ; the second is established by the following Proof. AI1 Men are originally and before any juridical act of Will in rightful possession of the Soil; that is, tliey have ;L Right to be wherever Nature or Chance has placed them without their wilI. Possession (po&essio), whicli is t.o be distingnished from residential settlement (sedes) as a voluntary, acquired, and permanent possession, becomes common possession, on account of the connection witli each other of all the places on the siirface of the Earth as a globe. For, hacl tlie surface of tlie earth been an infinite plain, men could liave been so dispersed upon i t that they might not have come into any necessary communioii with each otlier, and a state of social Comnlunity would not have been a ilecessary consequence of tlieir existente iipon the Earth.-Now that Possession proper to all men iipon the earth which is prior to all their particular jiiridical acts, constitutes an oryinnl possession in colnnzo9b (Conzmunio possessionis originnria). The conception of such ,211 original, common Possession of things is not clerived from experience, nor is i t dependent on concli- tions of time, as is the case with the iinaginary aiid inclemonstrable fiction of U prinzmval C'o~onzmzmity of posses- sioiz in actual history. Hence it is a practical conception of Reason, involving in itself the only Principle according to whicli Men may iise the placc tliey happeii to occnpy oll the siirface of the Earth, in accordance with Laws of I!ight. 14. The juridical Act of this original Acquisition is Occupancy. The Act of taking possession (cpprelhcnsio), as being ilt its beginning the physical appropriation of a corporeal thing in space (possessionis pl~ysicm), can accord with the Law of the external Freedoin of all, under no other condition than that of its Priority in respect of Time. In this relation i t must have the characteristic of a first R C ~ in the way of talring possession, as a free exercise of Will. The activity of Will, hovever, 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 &lateral (volz~ntas zmni- lnterctlis s. propria). Now, OCCUPANCY is the Acqui- sition of an exteriial object by an individual act of Will. The original Acquisition of stich an object as a limited portioii of the Soil, can therefore only be accomplished by an act of Occupation. The possibility of this mode of Acquisition cannot be intnitively apprehended by pure Beason 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, liowever, cannot justify ex- ternal Acquisition otherwise than only in so far ns it is itself included in an absolntely authoritative Will, witli which i t is iinited by implication ; or, in other worcls, only in so far as i t is contained within a union of tHe Wills of all who come into practical relation witll eacli I~XST'S PHILOSOPHY O F LXW. THE PRINCIPLES OF PRIVATE RIGHT. 0 5 beeii fisiisti.atecl ? I t is alinost uiinecessary to answer ; for it is easy to See thraugh all this flimsy veil of injustice, which just anlounts to the Jesuitisin of rnalring n good End justify any Means. This mode of acqiiiring the Soil is, therefore, to be repudiated. The Indefiniteness of esternal acquirable oh.jects in respect of their Quantity, as well as their Quality, makes the problem of the sole prirnary external Acquisition of them one of the niost dificult to solve. There must, however, be sonie olle first Acquisition of an external object ; for every Acquisition cannot be derivative. Hence, the problem is not to be given iip as insoluble, or in itself as impossible. If i t is solved by reference to t$he Original Contract, unless this Contract is extended so as to include the whole human race, Acquisition under i t would still rernain biit provisional. 16. Exposition of the Conception of a Primary Acquisition of the Soil. All men are originally in a comnzort collectiuc posssssion of the Soil of the whole Earth (Commzcnio fundi orifi- naria), and they have naturally each a Will to use i t (lcx jzwti). But on account of the opposition of the free Will of one to that of the other in the sphere of action, tvhiclz is inevitable by nature, all use of the soil would he preveiited did riot every will contain at the Same time a Law for tlie regulatiori of the relation of all Wills in action, according to which a particular posscssion cail be determined to every one upon the comrnon soil. This is the juridical Law (la juridica). But the distributive Law of the Mine and Thine, as applicable to each indi- vidual on tlie soil, according to the Axiom of external Frevdon~, cannot proceed otherwise than from a prirnarilp united Will C?, prio9-i-which does not presiippose any juridical act as requisite for this union. This Law can only tage form in the Civil State (lex jzlstitim dZStrib2~- tiva); as it is in this state alone that the nnitecl common Will determines what is rigl~t, what is rifiqzbl, and what is the constitution of Right. I n reference to this state, however,-and prior to its establishment and in view of it, -it is p~ovisol-ily a Dhty for every one to proceed accord- ing to tlie Law of external Acquisition; and accordingly i t is a juridical procedure on the part of the Will to lay every one under Obligation to recognise tlie act of possessing and appropriating, although i t 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 favozw of a Permissive Law (Lcx permzksiva), in respect of the determination of the limits of juridi- cally possible Possession. For i t precedes the juridical state, and as merely introductory to i t is not yet pereniptory; 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 i t carries al1 the effect of a guar- anteed juridical Acquisition with it, because the advance from tl-ie state of nature Lo the Civil State is founded ripon a Duty. 17. Deduction of the Conception of the original Primary Acquisition. We have found the Titk of Acquisition in a universal original community of the Soil, under the conditioiis of TIIE PRIHCIPLES OF PXIVATE RIGHT. 9 7 aii external Acquisition in space ; and tlie Mode of Acquisition is contained in the einpirical fact of takiag possession (App~eJ$ensio), conjoined with the Will to have an external object as one's own. I t is further necessary to unfold from tlie Principles of tlie pure juridically Practical Reason involved in the conception, the juridical Acquisition proper of an object,-that is, the external Mine and Tliine tliat follows from tlie two previous conditions, as Rational Possession (possessio rnoz~uzenon). The jusidical Conceptiort of the externnl Mine aiid Tliine, so far as i t involves the category of Substance, cannot by ' that which is extc~nal to nle' mean merely ' i n a 2~lace other than that in which I afn ;' for i t is ;L mtional conception. As under tlie conceptions of the Reason only intellectual conceptions can be embraced, tlie espression in question can only signify 'something that is different and distinct from me' according to the idea of a non-empirical Possession througli, as it were, a cori- tinuous activity in taking possession of an external object; and i t involves only the notion of ' I~nving sometlbing i n ~12y po2ue1;' which indicates the coniiection of an object with myself, as a subjective condition of the possibility of making use of it. This forins a purely intellectual conccption of tlie Understandin;. Now we can leave out or abstract from the sensible conditions of Posses- sion, as relations of a Person to objects which have no obligat.ion. This process of elimination jiist gives the rational relation of a Person to Pemons; and i t is such that lie can bind them al1 by an obligation in reference to tlie use of things through his act of Will, so far as i t is coiiformable to the Axio~~z of Freedolil, the Postz~latu of Rigl~t, aiid the universal Ltgiskation of the common Mrill conceived as united a priori. This is tlierefore tlie rational intelligible possession of things as by pure Riglit, altliongh they are objects of sense. I t is evident that the first modification, limitatiori, or trc~~zsfo~~lzation generally of a portion of the Soil cannot of itself furnish a Titlt? to its Acquisition, since possession of an Accident does not form a ground for legal possession of the Substance. Rather, con- versely, the inference as to the Mine and Thine must Be drawn from owiiership of the Substance accordinp to the rule, Accessnriunt sequitur sz~um pri~zcipab.' Hence one who has spent labour on a piece of ground that was not already liis own, has lost his effort and work to the former Owner. This position is so evident of itself, that tlie olcl opinion to the oppbsite effect, that is still spread far and wide, can hardly be ascribed to any other than the prevailing illusion which unconsciously leads to the Yersonification of things; and, then, as if they coiild be bound under an obligation Ily the laboiir bestowed upon them to be at the Service of the Person who does the labour, to regard them as his by immediate Right. Other- wise i t is probable that the natural question-already discussed-would not have been passed over with so light a tread, namely, 'How is a Riglit in a thing possible?' For, Right as against every possible possessor of a Thing, means only the claim of a particular Will to the use of an object so far as i t may be included in the All-comprehending universal Will, and can be thought as in harmony with its law. As regards bodies situated iipon a piece of groiind whicli 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 Acq~iisition ; they are mine not fc~cto, biit lege. For they may be regarded as Accidents inhering in the Snbstance of the Soil, and they are thus niine j u ~ e rci nzece. To this Category aIso belongs everything 9 8 KANT'S PHILOSOPHY OB LAW. THE PRIXCIPLES OB PBIVATE RIGHT. 9 9 wliich is so connected with anything of mine, tliat it cannot be separated from wliat is mine withont altering i t substantially. Examples of this are Gilding 011 an object, Mixtiire of a material belonging to me with other things, Alluvial deposit, or even Alteration of the adjoining bed of a streani or river in my favour so as to produce an increase of my land, etc. By the sanle principles tlie question must also be decided as to whether the acquirable Soil rnay extend fartlier than the existing land, so as even to include part of the bed of the Sea, with the Right. to fish on my own shores, to gather Amber and such like. So far as I have the mechanical capability from my own Site, as the place I occupy, to secure my Soil frorn the attack of others-and, therefore, as far as Cannon can carry from the shore-all is includecl in my possession, and the sea is thus far closed (mare clausum). But as there is no Site for Occupation upon the wide sea itself, possible possession cannot be extended so far, and the Open sea is free (rnnre liberz~m). But in the case of men, or things that belong to them, becoming st?-anded on the Shore, since the fact is not voluntary, i t cannot be regarded by the owner of the shore as giving him a Right of Acquisition. For shipwreck is not an act of Will, nor is its resiilt a lesion to him; and things which may have come thus upon his Soil, as still belonging to some one, are not to be treated as being without an Owner or Res nullius. On the other hand, a River, so far as possession of the bank reaches, may be originally acquired, like any other piece of ground, under the above restrictions, by one mho is in possession of both its banks. PBOPERTY (don~iniz~17~) of that Person to whom all tlie Rights in i t as a thing belong, like the Accideilts inlierina in a Substance, and which, therefore, Iie as the Yroprietor (~Zo~?zinz~) can dispose of at will (jus disponendi de Te sun). Eut from t,liis it follows at once, that such an object can only be a Corporeal Thing towards which theie is no direct personal Obligation. Heiice a mall nlay be 131s OWN MASTER (sz~i jzc~is) but not the Pro- prietor of hi~nself (szci c701ninzbs), so as to be sble to dispose of himself at will, to say nothing of tlie possi- bility of such a relation to other men; because he is responsible to Huinanity in his own Person. This point, however, as belonging to the Right of Humanity as such, rather than to that of individual men, would not be dis- cussed at its proper place here, but is only mentioned incidentally for the better elncidation of what has just been said. I t may be further observed that there rnay be two full Proprietors of one and the same thing, with- out there beii~g a Mine and Thine in common, but only in so far as they are common Possessors of what belongs only to one of them as his own, In such a case the whole Poesession without the Use of the thing, belongs to one only of the Co-proprietors (condonzini); while to the other belongs all the Use of the thing along with its Possession. The former as the direct Proprietor (domintu directzls), therefore, restricts the latter as the Proprietor in use (clonzinus utilis) to the conclition of a certain con- tinuoi~s performance, with reference to the tliiilg itself, without limiting him in the use of it. An external Object, which, in respect of its Substance, can be claimed by some one as his own, is called the 104 ICAXT'S PHILOSOPHY OF LAW. THE PRINCIPLES OB PRIVATE RIGIIT. 105 be greater than the third-a Sgnthetical Proposition, and like the former C?, priori. I t is a Postulate of the Pure Reason that we ought to abstract from all the sensible conditions of Space and Time in reference to the conception of I-light; 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. I t is quite nkin to what was presented under the last Title, as the Theory of Acquisition by Occupation of tlie external object. What is acquired by Contract ? But what is that, clesignated as 'External,' which I acquire by Contract ? As i t 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 rinder my power so that I mnke i t mine.-By the Contract, there- fore, I acquire the Promise of another, as distinguished from the Thing promised ; and yet something is thereby adaed to my Having and Possession. I have become the richr in possession. (loczpletior) by the Acquisition of an active Obligation that I can bring to bear upon the Freedom and Capability of another. - This my Right, however, is only a personal Right, valid only to the effect of acting upon a particulur physical Person arid specially upon the Causality of his Will, so that he shall perfornt something for me. It is not a Rcnl Eight upon' that Moral Person, which is identified with the Idea of the united Will of All viewed Zc priori, and through which nlone I can acqiiire a Right 2:c~licl agciinst every Posscssor of the Thing. For, it is iii this that all Eight i n n Thing consists. The Transfer or transmission of mliat is mine to another by Contract, takes place according to tlie Law of Continuity (Lex Co?zlinui). Possession of the object is not interriipted for a moment during this Act; for, otherwise, I would acquire an object in this state as a Thing that had no Yossessor, and i t tvoiild thiis be acquired originally ; wliich is corltrary to the iclea of a Contra&.-This Continuity, however, ini- plies that it is not the particular Will of either the Prorniser or the Acceptor, but their united Will i ~ i common, that transfers what is mine to another. And Iicnce i t is not accomplished in such a manner that the Promiser first relinquishes (derelinquit) his 1'0s- session for the beriefit of aiiother, or renounces his Right (ren.ilncint), and thereupoii the other at the snme time enters upon i t ; or conversely. ,The Trans- fer (translntio) is therefore an Act i r i which tlie object belongs for a moment ut the sa?ne time to both, just as in the parabolic path of a projectiIe the object on reaching its highest point may be regarded for a i~ioment as at tl~e snme tinze both rising and falling, and as thus passing iii fact from the ascending to the falliiig rnotion. Acceptance and Delivery. d thing is ilot acquired in a case of Contract by the ACCEPTANCE (ncceptatio) of the Promise, but only by the DELIVERY (trnditio) of the object proniised. For sll l'romise is relative to Pc~formance ; and i f what was promised is a Thirig, the Performance cannot be exe- ciitecl otherwise than by an act whereby tIie Acceptor THE PRINCIPLES OF PRIVATE RICIIT. 307 is put by the Promiser into possession of tlie Thiilg ; and tliis is Delivery. Before tlie Delivery and tlle Reception of tlie Thing, the Performance of the act reqiiired has not yet taken place ; tlie Thing has not yet passed from tlie one Person to the other, and consequently has not beeil acquired by that other. Hence the Riglit arising frorn a Contract, is only a Personal Right ; ancl i t only becomes a Real Right by Delivery. A Contract upoii wliich Delivery immediately follows (pactzcm r e initum) excludes ariy interval of time between its concliision and its execution ; and as such i t requires no further particular act in the future by which one persoii rriay transfer to anotlier 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 nlust be entered upon, so that the Right that is acquired by mere Acceptance is oiily a Personal Right, and thus it does not become a Right in the Thing until Delivery ? That the relation rnust 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 acqiiire,-such as a Horse,-and that I take i t immediately into my Stable, or otherwise into my possession ; then it is mine (vi pacti re initi), and niy Right is a Right in the Thing. But if I leave it in the hands of the Seller witliont arranging witli him specially in whose physical possession or holding (detentio) this Thing shall be before my taking pos- Session of it (apprehelzsio), and consequently before the actual Change of possession, the Korse is not yet rnine ; and the Right which 1 acquire is only a Right against a particular Person-namely, the Seller of the Horse-to beput into possessio~~ of the object ( poscendi traditio7~em) as the subjective condition of any use of i t a t my will. My Right is thus only a Personal Eight to demand from tlie Seller the pe~formance of his promise (prmstatio) to put me into possession of the thing. Now, if the Contract does not contaiii the condition of Delivery a t the sawze time,-as a pactunz r e 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 i t during this interval otherwise than by exercising tlie partlcnlar juridical activity called a possesso~y Act (uctzcm possessorium) which constitntes a special Coritract. Tliis Act con- sists in my saying, ' I will send to fetch the horse,' to wllich the Seller has to agree. For i t is not self- evident or universally reasonable, that any one will take a Thing destined for the use of another into his Charge at his owri risk. On the contrary, a special Contract is necessary for this arrangement, according to wliich the Alienator of a thing continues to be its owner during a certain de$nite time, and must bear the risk of wliatever may happen to i t ; while the Acquirer can only be regarded by the Seller as the Owner, when he has delayed to enter irito 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 .light; and the Acceptor can acquire an external Thing oiily by Delivery. KANT'S PHILOSOPHY OB LAW. T H I E D S E O T I O N . (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 esternal object AS A THING, and to the use of it AS A PERSON.-T~~ Mine and Thine embraced under this Eight relate specially to the Family and Household ; and tlie relations involved are those of free beings in reciprocal real interaction with each other. Througli their relations and influence as Persons upoii one another, in accordance with the principle of external Freedom as the cnzbse of it, they form a Society com- posed as a whoie of members stailding in commuiiity with each other as Persons; and this constitutes the HOUSEHOLD.-The mode in which tliis social statiis is acquired by individuals, and the functions which prevail within it, proceed neither by arbitrary individual action (fitcto), nor by mere Contract (paeto), 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 Eight rising above all mere Real and Personal Right. I t nliist, in fact, form the Right of Humanity in our own Person ; and, as such, i t has as its consequence a natural Per- missive Law, by the favour of which such Acquisition becomes possible to us. What is acquired in the Kousehold ? Tlie Acquisition that is fouiided upon tliis Law is, as regards its objects, threefold. The Man acquires a WIFE ; tlie Husband and Wife acquire CHILDREN, constituting a Family ; ancl the Family acquire DOMESTICS. All these objects, while acquirable, are inalienable ; and tlie Riglit of Possession in these objects is tlte most st~ictly perso~tnl of nll Rights. THE RIGHTS OF THE FAMILY AS A DOMESTIC SOCIETY. T I T L E F I R S T . CONJUGAL RIGHT. (Husband and Wife.) 24. The Natural Basis of Marriage. The domestic Relations are founded on 'Marriage, alid Marriage is fouiided upon the natural Reciprocity or iiitercommunity (conzmercizint) of the Sexes.' This naturaI 1 Commerciztm sextbale est ZLSZCS membrorum et facultatum scx~tali~i~it, alterias. This 'USUS' is either natiiral, by which hiiinan beings may reprodiice their own kind, or iinnatural, which, again, refers either to a persoii of the same Sex or to an animal of another species than niari. These transgressions of all IAaw, as ' crimina carnis contra naturam,' are even ' not to be named ; ' and as urongs against all Hiimanity in tlie Person they caniiot be saved, by aiig limitatioii or exception whate~er, froiii entire rcprobation. RIGHTS OF THE FAMILY AS A DOMESTIC SOCIETY. T I T L E S E C O N D . YAKENTAL RIGHT. (Parent and Child.) The Relation of Parent and Child. From the Duty of Man towards himself-that is, towards the Humanity in his own Person-there tlius arises a personal Right on the part of the Members of the opposite sexes, as Persons, to acquire one another really and reciprocally by Marriage. I n like manner, from the fact of P~ocreation in the union thus con- stituted, there follows the Duty of preserving and rearing Childrcn as the Pioducts of this Union. Accordingly Children, as Persons, have, at the Same time, an original congenital Right-distinguished from mere hereditary 1Zight-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 particnlar juridical Act being required to determine it. For what is thus produced is a Person, and i t is impossible to think of a Being endowed with personal Freedom as produced merely by a physical process. And lience, i n the practical relation, i t is quite a correct and even a necessary Idea to regard the act of generation as a process by which a Person is brouglit without his THE PI{INCIPLES OB PRIVATE RIGHT. 115 consent into the world, and placed in it by the respon- sible free will of others. This Act, therefore, attachw 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 tiiei~ own snaking, for a Beiilg endowed with Freedom cannot be so regarded. Nor, conseqiiently, have they a Right to destroy i t as if i t 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 i t is possible that GOD ccbn create FREE Beings ; for it dppears as if ail 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 Beason ; 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 Contradietion involved in the conception of a CREATION OB BRXE BEINGS; and tbis may be done by showing that Contradiction only arises wheri, along with the Category of Causality, the Condition of Time is transferred to the relation of suprasensible Things. This condition, as implying that the cause of an effect must precede the effect as its reason, is inevitable in thinking the reIation of objects of sense to one 116 KBPI'T'S PHILOSOPHY OF LAW. THE PRINCIPLES OF PRIVATE RIGHT. 11'7 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 eensible point of view, and consequently as in a non-, 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 I'hilosophy, as an unnecessary subtlety in a Metaphysic of Morals, or as losing itself in airnless 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 Yrinciples of Right. 29. The Rights of the Parent. From the Duty thus indicated, there further rieces- sarily arises the Right of the Parents to THE MANAGK- MENT AND TRAINIXG OB 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 nourishmeilt and the care of its Education. This includes, in general, tlie 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 reaclies the period of Emancipation (emancipatio), as the age of practicable self-support. The Parents then virtually renounce the parental Right to command, as well as all claim to repayment for their previous care and trouble; for which care and trouble, after the process of Education is complete, they can only appeal to the Children by way of any claim, on the ground of the Obligation of Gratitude as a Duty of Virtue. From the fact of Personality in the Children, it fiirther follows that they can never be regarded as the Yroperty of the Parents, but only as belonging to them by way of being in their possessiom, like other things that are held apart from the possession of all others and that can be brought back even against the will of the Subjects. Hence the Right of the Parents is not a purely Real Right, and it is not alienable (juspersonalissimum). But neither is it a mcrely Personal Right ; i t is a Personal Right of a real kind, that is, a Personal Right that is constituted and exercised after the nzanwr of a Real Right. I£ is therefore evident that the Title of a Personul Right of a a a l Kind must necessarily be added, in the Science of Right, to the Titles of Real Right and Personal Right, the Division of Rights into these two being not complete. For, if the Right of the Parents to the Children were treated as if it were merely a Real Right to a part of whnt 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. RIGHTS OF THE FAMILY AS A DOMESTIC SOCIETY. TITLE THIRD. Hovsexoip Ricut. (Master and Servant.) 30. Relation and Right of the Mester of a Household. The Children of the House, who, along with the Parents, constitute a Family, attain majority, and become Masrers or 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 y and, on the other hand, it takes form, as a state in accordance with their own natural condition. They thus acquire the Right of being their own Masters, without the interposition of any special juridical act, and therefore merely by Law (lege); and they owe their Parents nothing by way of legal debt for their Education, just as the parents, on their side, are now released from their Obligations to the Children in the same way. Parents and Children thus gain or yegain their natural Freedom; and the domestic society, which was necessary according to the Law of Right, is thus naturally dissolved. Both Parties, however, may resolve to eontinue 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 im 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 (Zenperantis et suljecti Domestici). The Domestics or Servants may then be regarded by the Master of the household, as thus far his. As regards the form or mode of his Possession of them, they belong to him as if by a Real Right; for if any of them run away, he is entitled to bring them again under his power by a unilateral act of his will, But as regards the matter of his Right, or the wse 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 (dominus servi) ; because they are only subjected to his power by Contract, and by a Contract under certain definite restrictions. For a Contract by which the one party renounced his whole freedom for the 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 Right of Property in relation to one who has lost his legal personality by a Crime, does not concern us here, THE PRINCIPLES OB PRIVATE RIGHT. 125 not, at tlze Same time, in his name, i t is performance without Comnzission (gestio negotii) ; but if it is (rightfully) perforined in name of the other, it constitutes Man- date, whicli as a Contract of Procuration is an onerous Contract (mandatum olzeroszcm). C. TIIE CAUTIONARY CONTRACTS (caz~tiones) are :- 1. Pledge (pignus). Caution by a Moveable deposited as security. 2. Suretyship (fidt$ssio). Caution for the ful- filment of the promise of another. 3. Personal Security (prmtatio 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 (t7-anslatio). These appear to be entirely empirical, and i t may therefore seem questionable whether they are entitled to a place in a Jfetaphysical Science of Right. For, in such a Science the Divisions must be made according to Principles d, 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 Boolc. And considering these as illustra- tive examples in this connection, i t will be shown that the conception of MONEY as the greatest and most useable of all the Means of human intercommunication through Things, in the way of Purohase and Sale in commerce, as well as that of Books as the greatest Means of carry- iiig on the interchange of Thought, resolve themselves into relations that are purely intellectnal and rational. And hence it will be made evident that such Conceptions do not really detract from the purity of the given Schenie of pure Rational Contracts, by empirical admixture. ILLUSTRATION OF RELATIONS OF CONTRACT BY THE COXCEPTIONS OF MONEY AND A BOOK. I. What is Money P MONEY is a thing which can only be mslde zbse of, by being nlienated 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 Orierous Contract ; and (2) that it is regarded as a mere means of carrying on Comrnerce, universally adopted by the people, but liaving 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 ~epresents 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 i t ; and these again are subservient to our nourish- ment and locomotion, and they even labour in oiir stead. Tlius by means of corn meii are multiplied and sup- 1 2 6 KBNT'S PHILOSOPHY OF LAW. THE PRINCIPLES OE PRIVATE RIGHT. 127' ported, who not only act again in reprodiicing 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. I t 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. I t may thus be defined as the universal means of car~ying on the INDUSTRY of men i n exchanying intercomrnunicatiolzs zuith euch 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 reqiiired for tlie acquisition of the Goods or Wares or Merchandise, as natural or artificial products, for wliich it is exchanged. For if i t 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 procluctivity which is the source of the public Wealth, would at the same time dwindle and be cut down. -Hence Bank Notes and Assignations are not to be regarded as Money although they may take its place by way of representing i t for a time ; because it costs almost no Labour to prepare thein, 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 nletals-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 luxiiry thereby offered to them. I t 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 consurner of a particular substance, which he at first used merely for the adornment and decoration of his ser.i7ants and coiirt, has enforced the 128 KANT'S PHILOSOPHY OB LAW. TIIE PRINCIPLES OF PRIVATE HIGHT. 129 tribiite of his subjects in this kind of material, Thiis it may have been Gold, or Silver, or Copper, or a species of beautiful shells called Cow~ies, or even a sort of mat called Malczltes, as in Congo ; or Ingots of Iron, as in Senegal; or Negro Slaves, as on the Guinea Coast. Wherl the Ruler 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 rneans of them, accord- ing to certain regulations of commerce then established, as in a Market or Excliange. As it appears to me, it is oiily thus that a particular species of goods came to be made a legal means of carrying on the indnstrial labour of the Subjects in their commerce witli each other, and thereby forming the medium of the national Wealth. And thus i t practically becanle MONEY. The Rational Conception of Money, under which tlie empirical conception is embraced, is therefore that of a thing wliich, in the Course of the public permutation or Exchange of possessions (pmmutatio publiea), deter- mines the Price of all the other things that form prodiicts or Goods - under wliich term even the Seiences are included, in so far as they are not taught g~utis to others. The quantity of it anlong a people constitutes their Wealth (opulentia). For Price (pretium) is the public judgment about the Vnlzce of a thing, in relation to the proportionate abundance of what forms the universal representative means in circixlation for carrying on the reciprocal interchailge of the products of Industry or Labour.' The precious metals, when tliey are not merely 1 Hence whcre Commerce is estensive neither Gold nor Copper is specially used as Money, bnt only as constitiiting wares ; because there is too little of the first and too niiicli of the second for them to be easiIy broiight iuto circulation, so as at once to have the former in such small tvcighed but also stamped or provided with a sigii indicating how mucli they are wortli, form legal Moiiey, and are called Coilt. According to Adam Smith, ' Money has become, in nll civilised nations, the universal instrunient of Com- merce, by the intervention of which Goods of all kincis are bouglit and sold or exchanged for one another.'-Tliis Definition expands the empirical conception of Money to the rational idea of it, by taking regard only to the implied form af the Reciprocal Performances in tlie Onerous Contracts, and thus abstracting from their matter. It is thus conformable to the conception of Right i i ~ the Permutation and Exchange of tlie Mine and Thine generally (commzrtatio late sic dicta). The Definition, therefore, accords with the representation in the above Synopsis of a Dogmatic Division of Contracts C% pr io~i , qnd consequently with the Metaphysical Prineiple of Right in general. 11. 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. I t 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 Iiis own name, is the AUTHOK. pieces as are necessary in paymeiit for particular goods and not to have tho latter in great qiiantity 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 tlie great commercial intercommunications of the world ; aiid the other Metals -and still more non-metallic substances-can only take its place in che case of a people of limitcd commerce. THE PRINCIPLES OF PRIVATE RIGHT. 13 5 during the time of my Possession as a mere abstraction, although I may have been subsequently apprized of his reality as well as of his claiin. This Mode of Acquisi- tion is not quite correctly designated Acquisition by Prescription. (per prmscription.en~) ; for the exclusion of all other claimants is to be regarded as only the Conse- quence of the Usucapion ; and the process of Acquisitioii 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 coiltinuous possesso~y activity (actzu possessorizu) in relation to a Thing as his, is regarded with good Right as one who does not at all exist as its Possessor. For he cannot complain of lesioii so lorig as he does not qualify himself with a Title as its Possessor. And even if he should afterwards lay claini to the Thing when another has already taken possessioii 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 jiiridical fact. I t 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, uildisputed and bona jicle Possession, an irrefragable Right to continue in its pos- session so Lhat 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 aild teinporary. This is evident on the ground that there are no historical Records available to carry the investigation of a Title back to the first Possessor and his act of Acquisition.- The Presumption upon which Acquisition by Usucapioii is fonnded is, therefore, not merely its coilformity to Right as allowed and just, but also tlie presumptioii of its being Right (prmsutntio juris et de jzbre), and its being assumed to be in accordance with compulsory Laws (nppositio legalis). Any one who has neglected to embody his possessory Act in a documentary Title, has lost his Claim to the Right of being Possessor for the time ; and the length of the period of his neglecting to do so-which need not necessarily be particularly defined -can be referred to only as establishing the certainty of this neglect. And i t would contradict the Postulate of the Juridically Practical Reason to maintain that olle hitherto unknown as a Possessor, and whose possessory activity has at least been interrupted, whether by or without fault of his own, could always a t any time re- acquire a Property; for this would be to make all Ownership uncertain (Dominia rerum incerta face~e). 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 fourid 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 possessioii of it where there are no Juridical Acts. A release from juridical claims is com- n~only also called Acquisition. The Prescriptive Title of 136 KANT'S PHILOSOPHY OF LA'CV. THE PRINCIPLES O F PRIVATE RIGHT. 137 the older Possessor, therefore, belongs to the sphere of Natural Right (est jw& natz~rm). [See S~tpplernenta- Explawtions, VI.] 34. 11. Acquisition by Inheritance. (Acquisitio hcereditatis.) INHERITANCE i~ constituted by the transfer (tra?alatio) of the Property or goods of one who is dying to a Suxvivor, through the consent of the Will of both. The Acquisition of the HEIR who takes thc Estate (haredis instituti) and the Relinquishment of the TESTATOR who leaves it, being the acts that constitute the Exchange of the Mine and Thine, take place in the sanie moment of time-& articulo mortis-and just when the Testator ceases to be. There is therefore no special Act of Transfer (tra~zslatio) 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 zdtimce voluntatk) ; and the question arises as to whether this mode of Acquisitioii is to be regarded as a Contract of Succession, or a z~nilnteral Act instituti.fig an fiir by a Will (testamentzinz). The deter- mination of this question depends on the further cluestion, Whether and How, in the very Same moment in which one individual ceases to be, there can be a transition of his Property to another Person. Hence the problem as to how a mode of Acquisition by Inheritance is possible, must be investigated independently of the varioiis possible forms-in which it is practically carried out, and which can have place only in a Commonwealth. ' I t is possible to acquire by being instituted or appointed Heir in a Testamentary Disposition.' For the Testator Caius promises and declares in his last Will to Z'itius, 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 simultaneoiis bilateral act of Will (volz~ntas imultnnea) which, however, is here awant- ing. So long as Caius lives, Titius cannot expressly accept in order to enter on Acqiiisition, because Caius has only promised in case of death; otherwise the Property would be for a moment at least in commori 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 hareditas jacens. Now as every man-because he must always gain and never lose by it-necessarily, althoiigh tacitly, accepts such a Right, and as Titius after the cleath of Caiirs 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 (vacm) ; because he has exclusively the Right of Choice as to whether he will actually malte the Estate be- queathed to him, his own or not. 138 KANT'S PHILOSOPHY 01 LAW. THE PRINCIPLES OF PRIVATE RIGHT. 130 Hence Testament,~ are valid according to mere Natural Right (sqcnt j u rh naturap). 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, ~vhile i t hangs between Acceptance or Rejection and specially belongs to no particular individual. [See Szcpplementc~ry Explnnations, VII.] 111. The continuing Right of a good Name after Death. (Bona fama Defuncti.) I t would be absurd to think that a dead Person coulcl possess anything after his death, when he no loiiger 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 esist; because in considering their juridical relation to others, we regard Persons merely according to their humanity and as rational Beings (homo noz~menon). Hence any attempt to bring the Reputa- tion or good Name of a Person into evil and false repute after deatli, is always questionable, even although a well- founded charge may be allowed-for to that extent the br~card 'Be nzortuis nil nisi bene ' is wrong. Yet to spread cliarges against one who is absent and cannot defend himself, shows at least a want of magnanimity. Ry a blameless life and a deatli thnt worthily ends it, i t is admitted that a man may acqiiire 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 phanonienon). I t is further held that his Survivors and Successors-whether relatives or strangers-are entitled t o defend his good Name as a matter of Itight, on the ground that unproved accusations subject them all to the danger of similar treatnlent after death. Now that a Man when dead can yet acquire such a Right is a peculiar and, nevertheless, an undeni- able manifestation in fact, of the d priori law-giving Reason thus extending its Law of Command or Prohibi- tion beyond the liinits of the present life. If some one then spreads a charge regarding a dead person that would have dishonoured hirn when living, or even made hirn despicable, any one who can adduce a proof that this accusation is intentionally false and untrue, may publicly declare hirn who thus brings the dead person into ill repute to be a Calumniator, and affis dishonour to hirn in turn. This would not be allowable unless i t were legitimate to assume that the dead person was injured by the accusation, althougli he is dead, and that a certain just satisfaction was done to hirn by an Apology, although he no longer sensibly exists. A Title to act tlie part of the Vindicator of the dead person does not require to be established; for every olle necessarily claims this of himself, not ~nerely as a Duty of Virtue regarded ethically, but as a Right belonging to hirn in virtue of his Humanity. Nor does the Vindicator require to show any Special personal damage, accruing to hirn as a friend or relative, from a stain on the character of the Deceased, to justify hirn in proceeding to censure t . That such a form of ideal Acquisition, and even a THE PRINCIPLES OF PRIVATE RIGHT. 143 rnind,; 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. 11. The Contract of Loan. (Commodatum.) I n the Contract of Commodate-Loan (commodatum) I give some orie 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 tl~e very Same th+g to the power of the Lender. But the Receiver of the Loan (commodatariz~s) cannot, at the Same time, assume that the Owner of the Thing leiit (commodans) will take upon himself all risk (Casus) of any possible loss bf it, or of its useful quality, that may arise from having given it into the possession of the Receiver. For it is not to be understood of itself, that the Owner, besides the ?M of the Thing, which he has granted t,o the Eeceiver, and the detriment that is inseparable from such use, also gives a Gua~antee or Warrandice against all damage that may arise from such use. On the contrary, a special Accessory Contract woiild have to be entered into for this purpose. The only question, then, that can be raised is this: 1s it incumbent on the Lender or the Borrower to add expressly the condition of iiildertaking the risk that inay accrue to the Thing lent ; or, if this is not done, which of the Parties is to be presunied to have consented and nyreed to gutirantee tlie progerty of the Lender, up to restoration of the very Same Thing or its equivalent ? Certainly not the Lender; because i t 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 i t 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 aii act of Courtesy in expressing sympathy with the Owner on account of his loss, seeing he can claim nothing on the ground of Pjght.-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 comperisate 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; becanse 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 146 KMT'S PHILOSOPHY OF LAMr. THE PRIXCIPLES OF PRIVATE RIGHT. 14'7 damage (caszcs) whicll the Thing lent may undergo canilot be exactly determined in any Agreement. Com- modate is therefore aii uncertain Contract (pactziw $ncertum), because the coilsent can only be so far pre- sumed. The Judgment, in ariy 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 by the P~inciple 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 IZight will be deterniined 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 cont- modataritis) ; whereas the Sentenee of a Court of Justice in the Civil etate will run thus : ' The Loss falls upon the Xen&.i. ' (casz~m semtit dominz~s). The latter Judg- ment turns out differently froni the former as the Sentence of the mere sound Reason, because a Public Judge cannot found upon presumptions as to what either party may have thought ; ar~d thus the one who has not obtaiiled release from all loss in the Thing by a special Accessory Contract, must bear the 1oss.-Hence the difference between the Judgment as the Court must deliver it, and the form in which each individual is entitled to hold i t for himself by his private Reason, is ;1 matter of importance, and is not to be overlooked in tlie consideration of Juridical Judgments. 111. The Revindication of what has been Lost. (Vindicatio.) I t is clear from what has been already said that a Thing of mine which contiilues to exist, remains miile although I may not be in continuous occupation of i t ; and tliat i t does not cease to be mine without a Juridical Act of dereliction or alienation. Further, i t is evident that a Right in this Thing (jz~s reale) belongs in eonsequence to me (jus pe~sonale), 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 eveyy other Person as a continuous Right of Property 23er se, if I have not in any way renounced it, although the Thing is in tlle possession of another. A Thing may be lost (res a~lzissa), and thus eome into other hands in an honourable bond fide way as a sup- posed ' Find ; ' or i t rnay 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 questioii arises, Whether, since I cannot acquire a Thing from one who is not its Owner (a noit dontino), I am excluded by tlie fact from all Right in the Thing itself, and have merely a personal Right against a wrongful Possessor ? This is manifestly so, if tlie Acquisition is judged purely according to its inner justifying grounds and viewed according to the State of Nature, and not according to t l ~ e convenience of a Court of Justice. For everything alienable niiist be capable of being acquired by any one, The Rightfulness of Acquisition, THE PRINCIPLES OB PRIVATE RIGHT. 149 however, rests entirely upon the form in accordance with which what is in possession of another, is transferred to me and accepted by me. I n 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 i t ; because this would itself be an injury, on the ground that Quilibet pmsumitzcr bonzu. Now sqppose i t 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 nothii~g away from him, when, for example, I bought his horse according to the Law (titulo empti venditz) when it was offered for sale in the public market. The Title of Acqiiisition is therefore unimpeachable on my side ; and as Buyer I am not bound, nor even have I the Right, to investigate the Title of the Seller; for this process of investigation would have to go on in an ascending series ad 2fi.fiitum. Hence on such grounds I ought to be regarded, in virtue of a regular and formal pnrchase, as not merely the pzdative, 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 rightfiilly has ; and although as regards the form of the Acquisition-the modus acquirendi-I rnay proceed in accordance with all the conditions of Right when I deal in a stolen horse ex- posed for sale in the marlcet, yet a real Title warranting the Acquisition was awanting ; for the. horse was not really the property of the Seller in question. However I may be a bond fide Possessor of a Thing under such conditions, I am still only a pwtative Owner, and the real Owner has the Right of Yindicatiolz against me (rem szeam vindi- candi). Now, i t rnay 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 i t 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 rnay carefully observe the formal conditions required for appropriating what rnay 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 rnay not be the real Owner. Hence, if some other person were to come forward, and prove by clociimentary evidence a prior Right of property in the Thing, nothing would rernain for the putative new Owner but the advantage which he has drawn as a bond fide Possessor of it up to that nioment. Now it is frequently impossible to discover the absolutely first original Owner of a Thing in the series of putative Owners, who derive their Rights from one another. Hence no mere exchange of external things, however well it rnay agree with the formal conditions of Commutative Justice, can ever guarantee an absolutely certain Acquisition. TRh,USITION FBOM PRIVATE RIGRT T0 PUBLIC RIGHT, 15 5 As regards an Oath taken concerning a matter of Belief (de credulitate), i t is evident that no such Oath can be deriianded by a Court. 1. For, j ~ s t , it coii- tains in itself a Contradiction. Such Belief, as intermediate between Opinion and Knowledge, is a thing on which one might ventiire to lay a wage?. but not to swear an Oath. 2. And, second, the Juclge who imposes an Oath of Belief, in order to ascertaiii anything pertinent to his own purpose or even to the Common Good, commits a great offence against the Conscientiousness of the party talcing such an oath. This he does in regard both to the levity of miiid, whicli he thereby helps to engender, and to the stings of conscience which a man miist feel who to-day regards a subject from a certain point of view, but who will very probably to-morrow find i t quite improbable from another point of view. Any one, therefore, who is cornpelled to take such an Oath, is subjected to an injixry. TRANSITION REOM THE MINE AND TRINE IN THE STATE OF NATURE TO THE MINE AND THINE IN THE JURIDICAL STATE GENERALLY. 41. Public Justice as related to the Natural and the Civil state. The Juridical state is that relation of men to one another which contains the conditions, under which it is alone possible for every one to obtain the Right that is his due. The formal Principle of the possibility of actually participating in such Right, viewed in accordance with the Idea of a universally legislative Will, is PUBLIC JUSTICE. Public Justice may be considered in relation either to the Possibility, or Actuality, or Necessity of the Possession of objects - regarded as the matter of the activity of the Will-according to laws. I t may thiis be divided into Protective Jz~tice (justitia testatrix), Commutatiw Justice (justith commutativa), and Distri- bzctive Justice ( j d t i a distributiva). I n the @t mode of Justice, the Law declares merely what Relation is inter- nally riglzt in respect of Form (lm justi) ; in the second, i t declares whnt 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 jast, and to what extent, by the Jiidgment of a Court in any particular case coming rinder the given Law. In this latter relation, the Public TRAXSITION FROM PRIVATE RIGHT T0 PUBLIC RIGHT. 15? Court is called the Jz~stiee of the Country ; and the ques- tion whether there actually is or is not such an admini- stration of Public Justice, inay 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. I t is commonly called the Natural state (statm natzwalis), or the state of Nature. I t is not the ' Social State,' as Achenwall puts it, for this rnay be in itself an artijeiul state (statzu artzj2ciaZ&), tha t is to be contradis tinguished from the ' Natural ' sta te. The opposite of the state of Nature is the Civil state (status eivilis) as the condition of a Society standing under a Distributive Justice. I n the state of Nature there rnay even be juridical forms of Society- such as Marriage, Parental Authority, the Household, and such like. For none of these, however, does any Law & pfio9.i lay it down as an incumbent obligation, ' Thou shalt enter into this state.' But it msy be said of the Juridieal state that 'all men who mny even involun- tarily come into Relations of Right with one another, ozcght to enter into this state.' The Natural or non - juridical Social state rnay 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 rnay 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. The Civil Union (Uni0 civilis) cannot, in the strict sense, be properly called a Society; for there is no sociality in common between the Ruler (imperam) 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 subordhated to the other. Those who rnay be CO-ordinated with one another ~ u s t consider themselves as mutually equal, in so far as they stand under common Laws. The Civil Union rnay therefore be regarded not so much as being, but rather as making a Society. 42. The Postulate of Public Right. From the conditions of Private Right in the Natural state, there arises the Postulate of Public Right. I t rnay be thus expressed: 'In the relation of unavoidable CO-existente 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 rnay be unfolded analytically from the conception of R@ht 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 rieed of this guarantee, in view of the antagonistic disposition of others. He is therefore under no obligation to wait tili 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 disregard the Claims of the Right of others, when they feel themselves their Superiors by Might or Fraud And thus i t 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. Qisilihet prmsu?nitu?* malzcs, donec securitatem decierit 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 olze nnother, even when they wage war against each other. For what seems cornpetent as good for the one, is equally valid for the other, as if i t were so by mutual agreement. Uti partes de jzire sz~o disponzint, 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 fornzally and what is also materially wrong and unjust, finds fre- quent application in the Science of Right. An enemy wlio, on occupying a besieged fortress, instead of honourably fulfilling the conditions of a Capitulation, nlaltreats the garrison on rnarching out, or otlierwise 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 coinmission of wrong and injustice, in the highest degree; because they take all validity away from the conception of Right, and give up everything, as it were by law itself, to savage Violence, and thus overthrow the Rights of Meii generally. THE S C I E N C E O F R I G H T . PART SECOND. P U B L I C R I G H T . THE SYSTEM OF THOSE LAWS WHICH REQUIRE PUBLIC PROMULGATIOR.