IF reason is to be realized in the sensuous world, it must be possible for many rational beings to live together as such; and this is permanently possible only if each free being makes it its law to limit its own freedom by the conception of the freedom of all others. For each free being having the physical power to check or destroy the freedom of other free beings, and being dependent in its free actions only upon its will; it is only when all free beings have voluntarily made it their law (rule of action) never so to check the freedom of all others that a community of free beings becomes possible, wherein such a check never occurs.
What we have here stated is nothing but the judgment of the reflecting philosopher concerning the possibility of a community of free beings, and is to signify nothing more. If free beings, as such, are to exist together, then it can be thought possible only in the above manner; but whether they are so to exist together, and whether the condition of their living together, namely, the Law, has really been acknowledged by each—this we do not take into account.
At present we can, at the utmost, say: it is nature that desires free beings to live together in the sensuous world, and hence produces a number of bodies capable of reason, culture, and freedom. It is not to be understood as if we thus asserted nature to possess understanding and will, ordesire; we merely say: if nature is assumed to have a will, then her end and purpose in the production of many such bodies can have been only that they should live together in the indicated manner. Under that assumption, it is nature who wills that the freedom of each free being shall be restricted by the freedom of the others. But since in that case she likewise must will each rational being to be free generally, she must will that they restrict their freedom voluntarily, and that this law of restriction shall not be one of her own mechanical laws, but a law of freedom. What other arrangements nature may have made to realize her end in spite of that freedom, we shall see hereafter.
The above law is to be a law; that is, it is to be impossible that an exception should occur to it; the law must command universally and categorically after it has once been assumed.
In consequence of this law, each one is to limit his freedom; that is, the sphere of his voluntarily resolved acts and utterances in the sensuous world. The conception of freedom here is, therefore, quantitative and material.
He is to limit his freedom thus by the possibility of the freedom of all others.
Here the same word has another meaning, and its significance is altogether qualitative and formal. Each of these others is to have the privilege of freedom, of being a person; but how far the sphere of their possible free acts is to extend, the law does not determine. In other words, no one has the right to do an act which would make impossible the freedom and personality of another; but all other free acts each has a right to commit.
The first question would, therefore, be: What constitutes a free person, or what is requisite to make a person free? And, since the whole of this requisite is here considered only as condition of the possibility of a living together of free beings, it is in so far termed a Right. For the same reason we shall here demonstrate the conditions of freedom and personality only in so far as a violation thereof is. possible through physical power.
Now this right, or these rights, are involved in, the mere conception of the person, as such, and in so far are called Original (or inalienable) Rights. The Science of these Rights arises through the: mere analysis of the conception of personality, in so far as that which this conception involves can be violated by the free acts of others, but must not be so violated in virtue of the conception of Rights.
The first division of our Science of Rights will, therefore, treat of the Original Rights of Men.
B.
Our established result is hypothetical. If free beings, as such, are to exist together, then each one must subject himself to the described law. The latter part of the sentence is, therefore, the condition of the first. Unless they so subject themselves to the law, they can not live together; and hence the only ground why the philosopher assumes such a law is, because he presupposes that they are to live together.
Now, we have already shown that, by reason of this very conditionedness of the law, each free being can adopt it only as a conditioned law, that is, can adopt it only to attain the end which conditions it. The end of the law is to make a common intercourse of free beings possible. But this is possible only if the person with whom I thus enter into a community has subjected himself to this law, if he has resolved to respect my freedom or my original rights. The law is not at all applicable, however, to a person who has not subjected himself to it, since the e/id no longer exists for which I adopted that law. Hence, although I have generally subjected myself to that law, I have not done so in regard to the particular person, who, for his person, has not adopted it. In other words, I have adopted that law, and have not adopted it; I have adopted it in general, and have not adopted it in this particular case. Because I have adopted it in general, and have placed myself under the conception of Rights, I act rightfully, and have, therefore, a Right; and because I do not adopt it in this particular case, I have a right to compel that other individual by attacking his freedom and personality. My right is, therefore, a Right of Compulsion.
The law being conditioned, and adoptable only in this its conditionedness, each person has the right to judge whether the case of its applicability exists or not. Each is necessarily his own judge; and where the right of compulsion exists, the one who has the right is, at the same time, the judge of the other, against whom he has this right; for the right of compulsion is possible only through the adoption of the Conception of Rights. Where this condition does not exist, no one is, or can be, the judge of the other.
No right of compulsion without a right of judgment, is the result of this investigation.
It is necessary, as we have shown, that the person who is to have the right of compulsion must have subjected himself to that law; for otherwise he may well have the physical power of compulsion, but can never obtain a right to it, since the right only follows from the law.
Again: The right of compulsion results from the silence or the non-applicability of the law, but is by no means positively commanded by that law. Hence, there is only a right of compulsion, not a duty to compel.
From this deduction of the right of compulsion, it is clear that this right is applicable when one person violates the original rights of another person.
The first division of the Science of Rights having, therefore, established the original rights of man, the second division, which treats of the Right of Compulsion, (Penal Law,) has only to establish the various cases to which the right of compulsion applies.
C.
I. The right of compulsion, as well as each of its applications, has a ground; but all that is grounded is necessarily finite, and reaches no further than its ground. If, therefore, the limit of the applicability of the ground can be fixed, the limit of the grounded also can be fixed. The ground of my law of compulsion is, that the other person did not adopt the rule of law, did not subject himself to the conception of Rights. By appealing to this ground, therefore I assume that I should have no right of compulsion, if the other did adopt that law, and—quantitatively expressed—that my right of compulsion extends only so far as the other does not submit to that law. The right of compulsion has its limit, and this limit is the voluntary subjection of the other to the law; all compulsion beyond this limit is unrightful, (illegal.) As a general principle, this is immediately clear. The only question in our case—we teaching a real, and not a merely formal Science of Rights—is this, whether and how this limit can be discovered and determined in its application.
A right of compulsion is incurred only when an original right has been violated; but then it follows necessarily; and hence the general right can be proved in each specific case. It is also clear that he, who desires that right to be valid, does not desire the violation of the original rights, or, if the violation has taken place, desires it to be annulled. Hence the quantity of that right seems also provable in each specific case; that is, in each case the limit of the legal compulsion (punishment) can be accurately defined; it extends to complete satisfaction and restitution; both parties must be placed back in the same condition which they occupied before such violation took place.
But—and this is a circumstance which, in recent treatises on Law, seems to have been generally overlooked—the right of compulsion is grounded not only upon the present fact, that a person did not respect the law in this present case, but upon the fact that he thereby acknowledges not to have made that law his general rule of action. One single unlawful act—even after a series of lawful acts—proves that the rule of law is not his irrevocable rule of action, and that his previous lawful acts were induced, not by respect for the law, but by other possible motives. It is this inference which warrants the conclusion that no free being can in safety live together with him, since safety can be grounded only upon a law. The person whose original rights have been violated, thus becomes justified in completely annihilating the freedom of the violator, and in canceling the possibility of ever again coming into contact with him in the sensuous world. The right of compulsion in so far is infinite, and has no limit at all—a proposition which the writers on Law have partly asserted one-sidedly and partly denied one-sidedly—unless, indeed, the violator subjects himself to the law. As soon as he so subjects himself, the right of compulsion ceases, since its continuance was grounded only upon the continuance of the lawlessness of the other; and all further compulsion is now unlawful. In this respect the limit of compulsion is conditioned.
But how shall the condition, the true subjection of the other to the law, be given?
Not through signs of repentance, promises of future better behavior, offers of damages, etc.; for there is no ground to believe his sincerity. It is quite as possible that he has been forced by his present weakness into this repentance, and is only awaiting a better opportunity to renew the attack. This uncertainty does not warrant the other in laying down his arms and thus again exposing all his safety. He will, therefore, continue to exercise his compulsion; but since the condition of the right is problematical, his exercise also will be problematical.
It is the same with the violator. If he has offered the complete restitution which the law inevitably requires, and it being possible that he may now have voluntarily subjected himself in all sincerity to the law, it is also likely that he will oppose any further restriction of his freedom, (any further compulsion by the other,) but his right to make this opposition is also problematical.
It seems, therefore, that the decisive point can not be ascertained, since it rests in the ascertainment of inner sincerity, which can not be proved, but is a matter of conscience for each. The ground of decision, indeed, could be given only, if it were possible to ascertain the whole future life of the violator.
If, of the original violator it could be known that, after having been liberated from the compulsion, he would not, in his whole future life, ever violate the law again; and if, on the other hand, it could be known of the attacked party that, after having received restitution, he would, in his whole future life, refrain from all further exercise of his right of compulsion, then it might be believed that the former had sincerely subjected himself to the law, and that the latter had asserted his right of compulsion only with a view to assert his original rights. But such a knowledge of the future is impossible; because, to make the future possible, the one must first liberate the other from his compulsion; and this we have shown he can not do unless he has that knowledge of the future, since no one can abandon his acquired superiority merely because the other protests that he is sincere. There is a circle here. The grounded is not possible without the ground; and vice versa. Before we see how the synthetical method shall get us out of this circle, let us examine it a little closer.
A right of compulsion, as a general conception, has been easily enough deduced from the Conception of Rights; but as soon as that right was to be applied, we found ourselves wrapped up in an unsolvable contradiction; because the ground of decision of such an application could not be given in the sensuous world, resting, as it does, in the conscience of each individual. The right of compulsion, as an applicable right, is in evident contradiction with itself, since it can never be decided whether, in a given case, the compulsion is lawful or not.
But the final decision of the question whether the right of compulsion can be exercised by the offended party himself or not, will also decide the question whether a real Science of Rights is possible in so far as such a science is to designate a science of the legal relation between persons outside of an established state organization and without positive laws. As most of the previous teachers of the Science of Rights were content to philosophize formaliter about the Conception of Rights, and were satisfied if their conceptions were thinkable—little caring about their applicability—they easily avoided this question.
We have here answered the first question in the negative, and hence also the second question; and in order to become convinced of our science, it is necessary to attain a complete insight into the impossibility, which we have here demonstrated, of having the right of compulsion exercised by the offended party himself. Hence, this result is important for our whole Science of Rights.
The circle was this: The possibility of mutually liberating each other on the part of the offended and the offender is conditioned by the knowledge of their whole future; but this knowledge, again, is impossible, unless they mutually liberate each other. The method, which has been prescribed by the Science of Knowledge, tells us synthetically to unite both opposites, and thus to get rid of the contradiction.
A synthesis of this kind would be, in our case: the mutual liberation of both parties and the knowledge of the whole future must be one and the same; or, in other words, this mutual liberation must involve of itself and guarantee the whole future, whereof knowledge is desired.
There is no question that such must be the result; the only problem is, how is it possible?
The whole future experience, and the conviction of the perfect safety of both persons, is to be expressed in the one moment of liberation, and to be so expressed valid for external conviction, since no one can know the inner sentiments of the other. Both parties must, therefore, make it physically impossible for each other thereafter to attack each other; and each must become externally convinced of this impossibility. Such a security for the future is called a guarantee.
Hence, the above synthetical result requires that both persons must mutually guarantee their safety; otherwise, they can not live together, and one of them must be destroyed.
How is this guarantee possible? We found that neither could put down the arms, because neither could trust the other. They must, therefore, place their arms, that is, their whole power, in the hands of a third party in whom both trust. Both must enjoin this third party immediately to repress that one of them who may in the future attack the other. The third party must have the power to do this, and must, therefore, be the more powerful. This third party would thus exercise the right of compulsion for both.
If he is to exercise this right for both, both must transfer to him the right of deciding not only their present dispute but all future disputes between them; that is, they must confer upon the third party the power of judging, or the judicial power. They must confer this power upon the third party without reserve; there must be no appeal from it. Both parties must, therefore, unconditionally transfer their physical power and their power of judgment, that is to say, all their rights, to that third party.
2. THESIS. The freedom of the person, according to the Conception of Rights, is limited only by the possibility that other persons are also to live with him as free persons, and hence as also having rights. Whatsoever does not violate the rights of another, each person has the right to do, and this, indeed, constitutes each person's right. Each one, moreover, has the right to judge for himself what is, and to defend, by his own powers, what he so judges to be, the limit of his free actions.
ANTITHESIS. According to a correct conclusion drawn from the same Conception of Rights, each person must utterly and unconditionally transfer all his power and judgment to a third party, if a legal relation between free persons is to be possible. By this transfer each person loses altogether the right to judge the limits of his own right and to defend those limits. He makes himself completely dependent upon the knowledge and good-will of the third party, to whom he has made the transfer, and ceases to be a free being.
The antithesis contradicts the thesis. The thesis is the Conception of Rights itself; the antithesis is a correct result obtained from that conception. The Conception of Rights is, therefore, involved in a self-contradiction. This contradiction must be canceled. The root of this contradiction lies here: Under the Conception of Rights I can surrender only that portion of my freedom which is requisite for the coexistence of other free beings with whom I come in contact in the sensuous world. But now I am to transfer all my rights to the arbitrary power of a third party. This is impossible and contradictory, unless in this transfer I nevertheless remain secured in the possession of my proper sphere of freedom. Rationally, I can not transfer all my rights, and no one can demand that I should transfer them except upon this condition.
I must be able, therefore, to decide in my own person whether I have that security or not. My transfer is conditioned by the possibility of my being able to decide and of my deciding upon the sufficiency of this guarantee. When I do not decide upon it, my transfer of all my rights to a third party is impossible and illegal. When I do transfer my rights thus, it must be done with my own perfect free-will.
After I have once transferred my rights, I have, as has been clearly shown, no further right to decide upon the sphere of my freedom. My expressed decision on the sufficiency of the guarantee must, therefore, be possible, and be given before I make the transfer.
In this decision, that the guarantee is sufficient for me, I virtually say: "I am sure that, after I have thus transferred all my rights and made myself subject to a third party, my lawful freedom will not be in the least abrogated; I am sure that I shall never have to sacrifice any more of it than I should have been compelled to do in my own judgment by the mere Conception of Rights." In making this decision, I must overlook, therefore, the whole future experience of my state of subjection to a third party, and then judge whether the guarantee of my perfect security within the limits of Law will be sufficient.
What is it which is to be guaranteed to me? Perfect security of all my rights, as well against the third party to whom I have transferred my rights, as also through it against all individuals with whom I may come in contact. I must be convinced that all possible future law decisions, which may be pronounced in affairs of mine, will always be precisely as I should myself be compelled to pronounce them under the Conception of Rights. Rules of these future law decisions must, therefore, be submitted to my examination, according to which rules the Conception of Rights is to be applied to all possible future cases which may occur. Such rules are called positive laws.
All positive laws are, in a greater or less degree, deduced from the Conception of Rights. There is and can be no arbitrariness in them. They must be such as every rational being would necessarily make them.
In these positive laws the rule of Rights is applied to the specific objects which the rule comprises. Positive law floats in the midst between the Conception of Rights and the Decision of Law In positive law, the rule of Rights is applied to particular objects; in the decisions of law, the positive law is applied to particular persons. The civil judge has to decide only what has occurred, and then to state the law which applies to the occurrence. If the law is clear and complete, the decision or sentence should already be contained in it.
The contradiction has been in part canceled. If I subject myself to a law which I have examined and approved, (such approval being the exclusive condition of a lawful possibility of my subjection,) then I have not subjected myself to the arbitrary will of a man, but to an unchangeable, determined will, in fact, to the will of Reason in general, or to my own will, as that will must be, if determined by the Conception of Rights; and unless my will is so determined, I have no rights at all, as has been shown. Hence, far from losing my rights by such subjection, I rather first obtain them through it, since only by this subjection have I fulfilled the condition under which alone man obtains rights. Although I am subject, I am subject only to my own will. I have once really exercised my right of judgment, and that once was for my whole life and for all possible cases. All that has been taken from me is the care to carry out my own law decisions by physical force.
RESULT.
Man can transfer his physical power and right of judgment only to the necessary and unchangeable will of the Law, but not to the free and arbitrary will of a man. The former alone is required by the Conception of Rights, is alone the condition of all rights. The latter is not precisely against the Conception of Rights—simply because a right is not a duty, and because any one may therefore abandon a right if he chooses to do so—but neither is it a result of that conception.
3. But the contradiction has been solved only in part. The law is to give me the guarantee that, after I transfer my rights to it I shall still be protected in all my rights for the future. But what is the law? A mere conception. How, then, can this mere conception be realized in the sensuous world?
Again: I am to become convinced before the transfer of my rights of the utter impossibility that my rights can ever be violated hereafter. How can I become thus convinced? or, in other words, even after the mere will of the law pronounces that impossibility, who will guarantee me that the will of the law, and only of the law, will always rule?
I am to be secured against the law itself; hence it must be made impossible to turn the power of the law against me, except in the cases provided by the law. The law is to secure me against all others; hence the law must always act where it is intended to act. It must never sleep where it is called upon to act.
In short, the law must be a power. The Conception of Law, which we obtained from the last part of our investigation, and the conception of a supreme power, which we had obtained previously, must be synthetically united. The law itself must be the supreme power, and the supreme power must be the law. Both must be one and the same; and in subjecting myself to the law, I must convince myself that it is so; that it is completely impossible that any power except that of the law can ever be turned against me.
The question is, therefore, How does the law become a power? The power we seek is not a force of nature, is not a mechanical force, as we have already shown; and hence men have the physical power of inflicting wrongs upon each other. The required power must, therefore, be a power dependent upon a will. This will, however, must not be free, but unalterably and necessarily determined through the law. Such a will can not exist, therefore, as the will of an individual. We are in search of a will which shall have power only where the law wills, and which shall have no power whatever where the law does not will; a will, in short, which is an infallible power, but only when in conformity with the will of the law.
Superior power over a free being can only be realized by the union of many free beings, since the sensuous world holds nothing so powerful as a free being—for the very reason that it is free and can direct its forces with matured consideration—and nothing more powerful than a single free being, except many. Their strength would, therefore, consist only in their union. In the present case, their power is to depend upon the fact whether or not they will the will of the law. Their union, therefore, as the basis of their power, must depend upon that fact; the only bond of their union must be that fact. The moment their will should differ from the will of the law, their union also, and hence their whole power, must come to an end.
Now, this fact, that the desire to commit injustice necessarily destroys their union, is the case in every community of free beings. A number of free beings unite themselves, signifies: they desire to live together. But this they can not do, unless each restricts his freedom by the freedom of all others. If a million of men live together, it is very possible for each to desire as much freedom as possible. But if you unite the will of all of them in one conception, as one will, then that one will divides the amount of possible freedom in equal parts amongst all; desires all to be free, and hence desires the freedom of each to be restricted by the freedom of all others. The only possible point of union for their will is, therefore, the Law, and, in our case—where a fixed number of men of various inclinations and occupations live together—the Law, in its application to them, or their Positive Law. As sure as they are united, they must will the law. If but one of them is wrongly treated, this one certainly protests, and they are no longer united.
That, wherein they agree, we have stated to be their positive law, which fixes the rights of freedom of each. It is not expressly necessary that they should all give utterance to it, or, perhaps, vote upon it. Each rational being who has a knowledge of their number, occupation, etc., can tell them wherein they all agree. Their positive law has been given to them by the Conception of Rights and by their physical status, just as two factors give the product. The content of the law, therefore, does not depend at all upon arbitrariness; indeed, the least influence thereof upon the law would involve the seed of dissension and future dissolution.
But the form of the law, its obligatory power, it only receives from the consent of the several individuals who unite thus into a commonwealth.
Concerning justice and law, therefore, all are agreed; and all who are agreed necessarily desire law and justice. There can not be a community, whereof one member has another will than the other member. But as soon as two individuals are no longer united in their will, at least one of the two is also at variance with all the others; his will is an individual, and hence an unjust will. If the will of the other, with whom he is in conflict, agrees with the will of all the others, then this other is necessarily in the right.
There is no question as to the fact that, in such a commonwealth, the just will, if rallying into action, will be always able to overpower the unjust will, since the latter will is only that of an individual, whereas the former is that of all others.
The only question is, How can it be arranged that this will of all the others will be active and effective, wherever an individual will is to be repressed; how, therefore, the physical powers of the individuals may be united with the power of the commonwealth into one, just as the wills of these individuals were united into one conception? There must be a necessary and strict rule, whereby this union of all individual forces into one will result infallibly; for each one who subjects himself to the law is to have a convincing guarantee that it will be impossible throughout the whole future for any other force than the power of the law to be active against him; and that his security does not depend upon chance or the good-will of his neighbors, but is absolutely secured by the organization of the whole.
The strictest and only sufficient guarantee which each individual can justly demand is this, that the existence of the commonwealth itself be made to depend upon the effectiveness of the law.
(True, as a general thing this is already so. If injustice should become universal, society would necessarily dissolve itself, and thus perish. Often, it is true, law steps beyond its limits, and often, again, remains inactive; but these isolated cases do not necessarily dissolve the connection in actuality. For the individual there is, of course, little guarantee in the reflection that the whole commonwealth can not well perish unless each member thereof suffers injustice, and that he or other persons may well suffer violence at times without the protection of the law.)
The relation between each member and the commonwealth must, therefore, be thus, that, from each however apparently petty an injustice against the individual, there also results, necessarily, injustice against all. How is this to be attained? The law is to be, necessarily, Deed. Now, the law can not fail to be deed if, on the other hand, the deed is always law; that is to say, if each act which is once permitted by the law does, by that one permission, become lawful,[1] and may be done by all others; in other words, if each act of each individual results in a universally valid law. If this has been recognized, then each injustice necessarily falls upon all; each offense is a public misfortune; what was allowable against me is now also allowable against every member of the commonwealth; and if a single one of them is to be secure, it is the first interest of all, first to protect me, and to secure me my right, and to punish the unlawful deed. It is clear that this guarantee is sufficient, and that, if this rule is established, the law must always be effectual, though it can also never transgress its limit, because, if it did, transgression would become lawful for all.
It is clear that the individual who enters such an agreement receives his freedom, although he renounces it, and receives it because he renounces it; it is clear, that through it all contradictions are solved, and through its realization the supreme rule of law can be secured; it is clear, that every one who desires the supremacy of the law must necessarily desire such a commonwealth; and that through the conception thereof, our investigation has therefore been brought to a close. The analysis of this conception will lead us from the First Part of the Science of Rights, as the Science of Natural Rights, to its Second Part, or to the Science of Rights in a Commonwealth.
§ 2. edit
CONCERNING THE ORIGINAL RIGHTS OF MEN.
Rights can be spoken of only on the condition that a person is thought as a person, that is, as an individual, or, in other words, as occupying a relation to other individuals, between whom and him a community, though not actually posited, perhaps, is at least fictitiously assumed. For those things which, through speculative philosophy, we discovered to be conditions of personality, become rights only if other persons are added in thought, who dare not violate those conditions. Free beings can not, however, be thought as coexisting at all, unless their rights reciprocally limit each other, that is, unless the sphere of their original rights changes into the sphere of rights in a commonwealth. It would seem, therefore, impossible to reflect upon rights as original rights, that is, without regard to their necessary limitations through the rights of others. Nevertheless, such a reflection must occur and furnish the ground for an investigation of rights in a commonwealth. All limitations must, therefore, be abstracted from, and this is, indeed, so easy a matter for speculation, that it rather makes this abstraction involuntary, and needs only be reminded of having made it. The possibility of the abstraction offers no difficulty.
But it must be well remembered at all times, THAT the abstraction has been made, and that the conception produced by it, though it have ideal possibility, (for thinking,) has no real significance. If this is forgotten, a purely formal Science of Rights will be the result.
There is no status of original rights for Man. Man attains rights only in a community with others as indeed he only becomes man—whereof we have shown the grounds heretofore—through intercourse with others. Man, indeed, can not be thought as one individual. Original Rights are, therefore, a pure fiction, but a fiction necessary for the purpose of Science. It must also be always remembered, that the conditions of personality should be thought as rights only in so far as they appear in the sensuous world, and as they can be checked or disturbed by other free beings. It is proper, therefore, to speak, for instance, of a right of sensuous self-preservation, that is, of preserving my body as such; but it is improper to speak of a right to freely think or will. I have a right of compulsion against the man who attacks my body, but not against the man who, perhaps, disturbs me in my peaceful convictions, or who annoys me by his immoral behavior.
The fundamental principle of all rules of law we have found to be this: Let each one restrict his freedom or the sphere of his free acts through the conception of the freedom of the other, (that is, so that the other may also exist as generally free.)
The conception of freedom as applied here to the other, namely, in its merely formal significance, furnishes the conception of the Original Rights, that is, those rights which absolutely belong to a person as such. Let us analyze that conception.
It is, in regard to its quality, the conception of a power to be absolute first cause. In regard to its quantity, it is the conception of an unlimited or infinite power, since it merely states that the person is to be free, but not how far he is to be free. Hence, the Conception of Quantity is opposed to the Conception of Original Rights as here expressed in its formal significance. In regard to its relation, this conception speaks of the freedom of the person only in so far as the sphere of the free actions of others is to be limited by it, because those others might make the required formal freedom impossible. Through its relation, therefore, the quantity is determined; namely, the conception refers only to causality in the sensuous world, since in it alone can freedom be limited by freedom. In regard to its modality, finally, this conception has apodictical certainty. Each person is to be absolutely free.
The Original Right of a person is, therefore, his absolute right to be only cause (never effect) in the sensuous world.
The conception of a cause and here of an absolute cause, involves, first, that the quality and quantity of the act shall be completely determined by the cause itself; and, secondly, that, as soon as the quality and quantity of the act is determined, the quality and quantity of the effect in the object of the act is also immediately given. You can proceed from the one to the other, you can determine immediately the one through the other; as soon as you know one, you necessarily know both.
In so far as the person is the absolute and final ground of the conception of his causality, or of his purpose, the freedom manifested therein does not come within the limits of this investigation, since it never enters the sensuous world, and can, therefore, not be checked in it. The will of the person enters the sensuous world only in so far as it is expressed in the determination of the body. On this sphere of the sensuous world the body itself of a free being is, therefore, to be regarded as itself the final ground of its own determination; and the free being, as appearance is here identical with its body. The body is the representative of the Ego in the sensuous world, and where the sensuous world alone enters into consideration, the body itself is the Ego. Hence, we use every day such phrases as, " I was not there," "He has seen me," " He is born, he died, he was buried," etc.
The body, therefore, considered as a person, must be absolute and final cause of its determining itself to have causality. In what limits and under what laws the body is placed by its own organization, does not concern us here. Whatsoever the body is not originally, does not appertain to it, or, that the body is not; and hence that is not taken into account here. Only that which is physically possible for the body, must also be possible of being actualized in the body, whenever the person so wills, and only when the person so wills. An external cause must neither induce the body's motion, nor check its motion; in fact, no external influence must immediately affect it.
Again: From this movement of the body, the effect made possible by it must infallibly result in the sensuous world. Not exactly the result intended; for if the person did not know well the nature of the things he operated upon, or did not properly calculate his force and their power of resistance, then the fault was his own, and he has no right to complain of the sensuous world. But the sensuous world must not be determined by a foreign free power outside of it, in opposition to that person's will; for if it is so determined, then he ceases to be free cause.
But the intentional determination of the body for the purpose of producing a certain effect upon the object, follows upon and from a preceding knowledge of the object to be effected; and hence the free being is, after all, dependent.
In a general way, we have already acknowledged this, and excluded it from our present investigation. Causality and definite knowledge mutually condition each other, and fill up the same sphere, as has been shown and explained before. A person can not will to have causality previous to and beyond the given, factical existence of the objects; for to have such a will would be self-contradictory; it is only within the sphere of the factical existence of the objects that the person is free. Within that sphere the person is free to leave things as they are or to change them in accordance with his purpose. He is free to reciprocally relate the various manifolds given to him, to determine them through each other, and to unite them into a whole as may best suit his purpose. If he is not free to do either of these, he is no longer dependent solely upon his will.
It is, therefore, required that every thing should remain precisely as it has once been gathered into the conception of the rational being, whether it be already modified through it or not. Indeed, that which is not so modified in nature, becomes—by the very thinking of it, as not modified, and by joining it in thought to the modified—modified itself. The person has not modified it because it suited better to the modified things in its natural shape; and the person would have modified it if it had so suited better. In refraining from a specific activity, he was, therefore, also active, and modified—if not the specific thing, at least—the whole, to which this specific thing was to be conformed.
Now, nature, obeying her mechanical laws, can not really change. All change in nature contradicts the conception of nature. That which appears to us self-alteration of nature, occurs in virtue of those mechanical laws, and could not appear to us as a change, but would appear to us as a permanent, if we sufficiently knew those laws. Hence, if those laws work any change in the world which we have proposed to form to our conception, it is our own fault; for either those laws are too powerful for us, and then we should have considered that beforehand, or they are not too powerful, and then we should have controlled them through art and inventive ability. It is only through other free beings that unforeseen and unpreventable changes can be produced in our world—that is, in the system of that which we have received into our knowledge and related to our purpose—and that our free causality can, therefore, be disturbed. Now, a person has the right to demand that, in the whole sphere of this, his known world, every thing should remain as he has known it from the first, because in exercising his causality upon this his known world, he is regulated by that knowledge of it, and will be led astray, will find his causality checked, or will obtain other results than those he has desired, if his knowledge should turn out meanwhile to have been incorrect because a change had taken place in his world.
Here lies the ground of all right of property. That part of the sensuous world which is known to me, and has been subjected by me, though only in thought, to my purposes, is originally my property, (originally, I say, not in a community.) And being thus my property, no other person can have causality upon it without checking the freedom of my causality.
The old dispute, whether the right of property to a thing is obtained only through my forming it—modifying it in some way—or also through my mere will to take possession of it, is thus settled. It is settled by the synthetical union of both these determinations, as could not be expected otherwise in a strictly synthetical system, or by showing that the mere subjection of a thing to my will is equally a positive modification of that thing, since it presupposes my free resolve to abstain from a possible activity for a certain end or purpose; and by showing, moreover, as will appear directly, that the modification of a thing gives a right of property to it only in so far as something is and remains thereby subjected to our end. The final ground of the right of property is, therefore, the subjection of that property to our purposes or ends.
A person desires his activity in the sensuous world to be cause, signifies, therefore: a person desires a perception to result from it, which perception shall correspond to his conception of the end and purpose of his activity.
It has already been remarked that, if this is to be possible at all, the object of his activity must not be disturbed by other influences; and that the person, in willing his activity to be cause, must also necessarily will the latter.
But it is equally clear, that the person who desires that future perception to result, must also necessarily will the continuance of his own body and of its present relation to himself as a willing and knowing being; or, more definitely expressed, the person must also will a future state to exist, which shall have resulted from the present state, in consequence of the rule which he followed when he resolved upon his act of causality.
Through the will, therefore, and only through the will, is the future embraced in the present; though the will alone is the conception of the future, as such, made possible, and the will not only embraces, but also determines the future. It is to be such a future, and in order that the future can be such a one, I must be such a one; and if I am to be such a one, I must have existence in general.
The argument is here that, from the willing of a determined mode of existence in the future, the willing of a future in general and the wish of our continued existence is the result. The assertion is, here, that we have the will to continue to exist, not for the continuance in itself, but for the sake of a determined state in the future; the continued existence is not absolute end itself at all, but merely the means for some specific end. This experience, indeed, fully confirms. All men desire to live, the nobler men to do something more, the less noble, at least to enjoy something more.
The person wills what we have just shown as sure as he wills at all, no matter what it is he wills. This determined willing is, therefore, the condition of all willing, and its realization, namely, the preservation of our body, which, in Natural Law, is as much as self-preservation, is a condition of all other acting and of all manifestation of freedom.
If we unite all our results into one, the person, in demanding his original rights, demands a continued reciprocal causality between his body and the sensuous world, determined and determinable solely through his freely formed conception of that world.
The conception of an absolute causality in the sensuous world, or, since this conception was found to be equivalent to that of Original Rights, the conception of Original Rights itself, is thus completely exhausted.
The Original Rights are, therefore, an absolute and closed Whole; each partial violation whereof affects the Whole and influences the Whole. If it is desirable to make divisions in the conception of Original Rights, that division can be only the one which the conception of causality itself involves, and which we have already developed. This would give, as the Original Rights of Men:
1st. The right to the continuance of the absolute freedom and inviolability of the body.
2d. The right to the continuance of our free influence upon the whole sensuous world.[2]
There is no particular right of self-preservation; for that the use of the body as a tool, or of the things as means, should have, in a certain case, the immediate purpose of preserving our body, as such, is accidental. Even if we have a lesser purpose, our freedom must not be disturbed; for it must not be disturbed at all.
But it is well to be remarked, that our Original Rights are valid not only for present purposes, but extend as far into the future as we can embrace the future in our minds or plans; and that, hence, they immediately and naturally involve the right to secure those rights for all future.
The Original Rights return in themselves, justify themselves, and constitute themselves as Right; that is to say, they become an absolute Right; and this proves that the circle of our investigation, as far as these rights are concerned, is completely closed, since a complete synthesis has now been established. I have the right to will the exercise of my rights throughout all the future, so far as I posit myself, simply because I have these rights; and I have these rights because I have the right to will them. The right to be free cause, and the conception of an absolute will are the same. He who denies the freedom of the will must also necessarily deny the reality of the Conception of Rights, as Spinoza indeed does, whose right signifies merely the power of the determined individual, limited by the All.
PRELIMINARY.—The right of compulsion, according to the above, is to have its ground in a violation of the original rights, that is, when one free being extends the sphere of its free actions so far as to violate thereby the rights of another free being. But that first free being, being free, has assuredly also its original rights, which are infinite, as we have shown. How then can it, by the free exercise of those rights, violate the rights of another? It seems as if the original rights must, after all, have a determined quantity, fixed by the law, if, by their exercise, the violation of a right is to be possible. The answer to the question, In what case is a right violated and does the law of compulsion therefore apply? depends, therefore, upon the answer to another question, namely: what quantity of freedom does the Conception of Rights determine for each free being?
In other words, if any exercise of freedom is to be illegal, and may thus authorize compulsion, then the legal use of freedom, that is, of the original rights, must be limited by definite boundaries; and the illegal use can not be determined unless the legal use is known; both are determinable only through opposition. If these limits can be ascertained, and if each person keeps within them, then a right of compulsion does not arise at all; an equilibrium of rights is the result, which it must now be our task to determine, for only where this equilibrium of rights is disturbed, may the law of compulsion become applicable. After we have determined this equilibrium of rights, we can proceed to a consideration of the right of compulsion, but not before.
II.
DEDUCTION OF AN EQUILIBRIUM OF RIGHTS.—All law relations are determined by this principle: each one must restrict his freedom by the possibility of the freedom of the other. We have shown what the conception of freedom, or pf original rights, involves. Such an infinite freedom would, however, cancel the freedom of all but a single person; nay, would even cancel the physical existence of freedom; and the conception of rights would therefore contradict itself. But this contradiction solves itself as soon as it is remembered that the law applies not to a single one free being, but is valid for all free beings. If A is to limit his freedom so that B can also be free, B, on the other hand, must also limit his freedom so that A can be free, etc., etc. Nay, A can not even self-limit his own freedom by the possibility of B's freedom, unless B also limits his own freedom by the possibility of A's, the principle of law being not applicable at all unless both take place. Unless both self-limit their freedom, neither does. This has indeed been shown already sufficiently. The only question is, how does this as yet empty conception become applicable? If one person says to the other, "Leave that alone, it limits my freedom !" why should not the other reply, "But it limits my freedom to leave it alone?"
The question therefore is, how far shall each one limit the quantum of his free actions by the possibility of the other's freedom; how far does the freedom extend which each may retain for himself, and only by respecting which the other can show himself also entitled to rights; and how far does the freedom extend which he must resign to the others in his conception of their freedom, and only by respecting which he can show himself entitled to his own freedom?
The law-relation is determined solely by the established principle of law. Our question can therefore be determined only by that law principle. But this we have discovered to be purely formal, and not at all determining any quantity. It fixes merely the that, not the in how far. The whole principle of law is, therefore, either not at all applicable, and results merely in a play of empty conceptions, or the in how far must result from the that, and by determining the latter the former must also be determined. In other words, the mere conception of the freedom of another being must also determine the quantity of limitation which I have to put upon my own freedom.
Let us see what this synthesis may involve, and what it may therefore signify. It involves
A. The actual self-limitation of a free being is conditioned by the cognition of another free being. Whosoever has no such cognition can not self-limit his freedom; and the possible free beings whom he does not know, do not bind him to limit his freedom.
(In the deduction of original rights a person is thought isolated in the sensuous world. Not knowing, therefore, any other person, he may extend his freedom as far as he chooses, and take possession of the whole world. His right is really—if original rights ever could be real rights—infinite, for the condition which would limit it does not exist.)
B. The self-limitation of a free being is not only posited by the cognition of another free being, but also, at the same moment, completely determined. That it is so posited we have already shown. But it must also be determined; that is, the mere cognition of the other must determine the limit which the person has to put upon his own freedom.
C. My freedom is limited by the freedom of the other only on condition that he limits his freedom by the conception of mine. Otherwise he is lawless. Hence, if a law-relation is to result from my cognition of the other, the cognition and the consequent limitation of freedom must have been mutual. All law-relation between persons is, therefore, conditioned by their mutual cognition of each other, and is, at the same time, completely determined thereby.
We now proceed to apply our synthesis to the several cases determined by it; and firstly to the right of the continuing freedom of the body.
1. We have shown that a rational being, when perceiving a body articulated for the representation of reason in the sensuous world, must posit that same as the body of a rational being. By positing that body, it determines it also as a certain quantity of matter in space, which fills this space and is impenetrable in it.
Now, the body of a rational being is necessarily free and inviolable in virtue of its original rights. Hence, the other person who takes a cognition of that body must, by virtue of this his cognition, be forced to restrict his freedom to causality in the sensuous world, by that body and by the space which it occupies. He can not posit that body as a thing to be influenced by him arbitrarily and subjected to his purposes, but solely as something whereby the sphere of his causality is limited. That causality may extend everywhere except to the space occupied by this body. As soon as I have seen the body and recognized it as that which it is, I have also recognized something which limits my causality in the sensuous world. My causality is excluded from the space occupied by that body at any time.
But since this self-limitation depends upon the fact that the other has also seen and recognized me in the same manner, and limited his freedom as I limited mine, my limitation and the right of the other to it is, after all, only problematical; and it is impossible to decide whether it has occurred or not.
2. By positing the body of that other being as absolutely free in its self-determination to have causality, and by positing the being represented by it, as a free cause in the sensuous world, I must necessarily posit that this being desires to have some effect in the sensuous world to correspond to its conception, and hence that it has subsumed certain objects of the sensuous world to its ends, according to the conception of original rights. The other being must assume the same of me.
These objects, subjected by each to his particular purposes, must be mutually inviolable to both of us, if we know them. But since this subjection remains within the consciousness of each, and does not manifest itself in the sensuous world, the objects of this right and limitation remain also problematical.
3. The objects of this right are problematical, and not only they, but the right itself is problematical, is uncertain, and depends upon the unknown condition, whether both parties have mutually rights upon each other. I am bound to respect the objects which the other has subordinated to his ends only in so far as the other respects those which I have subordinated to my ends. But he can not respect them until he knows them; nor can I respect his until I know them. This mutual ignorance cancels even the possibility to approve each other as beings who have rights. And since this ignorance extends even to the fact whether each intends to respect the freedom and inviolability of the other's body, the result is, that no law-relation at all is possible between them; every thing is and remains problematical.
In our deduction of the right of compulsion, we discovered already that, as soon as that right is to be applied, men can not live together without an agreement. We now find that this impossibility exists even before the right of compulsion is applied, and enters, indeed, as soon as mutual rights are tried to be established.
That problematical state and uncertainty can not remain permanent if a living together of individuals under the conception of rights is to be possible; for if it does, no one can subject objects to his ends without fearing that the other may already have subjected them to his own purposes, and without fearing, therefore, to trespass upon the other's rights. Nay, neither can be secure of his previous possessions, since it is always possible that the other may take possession of it under the presumption that it has as yet no owner, and since in that case it would be impossible for the previous owner to prove his title; which title again might also be illegal, however honestly supposed to be legal, since the other may previously have subjected the object of it to his purposes. How is this to be decided? It is quite possible that neither of the parties know which of them has the previous title; or, if they could know it, their ground of decision would always remain a matter of internal conscience, and could, therefore, not attain external right. A law-dispute arises between them, which can not be decided, and a dispute of physical powers, which can only end with the physical annihilation of one of them. Only by pure chance, namely, if it should happen that neither has a desire for what the other has, could they possibly live together in peace. But they can not possibly allow all their right and security to depend upon pure chance.
Unless this uncertainty is removed, a legal relation between both is impossible.
If it is problematical, moreover, what the objects of the rights of both parties and of their mutual obligation are, it is also problematical whether a condition of rights and whether obligation do at all exist. He who desires the conception of rights to be realized, desires this problematical condition to cease. This condition must be removed; and the Conception of Rights itself desiring that removal, there must be a right to remove it. The person, who does not desire to remove that condition of uncertainty, testifies by that very fact that he does not desire Law to rule. He becomes, therefore, lawless, and justifies, on the part of the other, an infinite compulsion.
But how shall their ignorance be removed? It has been shown, that the conception of a person involves the assumption that he has subjected something in the sensuous world to his purposes. It would thus seem necessary that each person, when obtaining cognizance of the existence of another person, must limit his possession of the sensuous world to some finite quantum; for otherwise, the other person could not exist as a free being; but what particular finite quantum each person so chooses as his own, must depend altogether upon his freedom. Again: This choice remains a matter of the person's own consciousness, and does not manifest itself in the sensuous world. Each must, therefore, state to the other what he has thus appropriated as his own, since such is the only way to remove the uncertainty which threatened to cancel the Conception of Rights. Each is legally bound to determine himself internally as to what he desires to appropriate for his exclusive use; and each has the right to compel an undetermined person to thus determine himself, since the establishment of Right requires that the determination of each in this respect should be made known. Each is, therefore, moreover, legally bound to express himself externally concerning this his self-determination, and the other has a right to compel him to this expression, that is, to compel him to make a declaration of his possessions.
All lawful relation between persons is thus conditioned by the reciprocal declaration of what each desires exclusively to possess, and becomes possible only through such a declaration.
These declarations of several parties may agree or may conflict with each other; agree, if no one declares a wish to possess what the others have appropriated, and conflict if both claim the same object. In the first case they are already united; but in the latter case their dispute can not be settled by grounds of law at all. For as to the claim of previous possession, this neither of the parties can prove externally, and hence neither can furnish a legal proof. For since the law declares the expression of the will to possess something to be the ground of all property, and since both parties express that will at the same time, both parties have an equal right before the law.
Two solutions of this difficulty are possible.
Firstly. Both parties may mutually compromise as to their respective claims, and may thus enter the required condition of harmony. It must be remembered, however, that neither has the right to compel the other to compromise; for the other's refusal to cede part of his claims does not prove his unwillingness to recognize law in general. He has chosen a particular possession and thus has fulfilled the requirement of the law. He is, moreover, willing to subject himself to the rule of the law hereafter, provided his claim to his choice possession be granted. But he has no notion of of ceding that claim merely in obedience to my will, and because I also desired that same piece of possessions. He holds my will to be a particular, individual will, and not the common will of the law, which we both ought to acknowledge, but which does not decide in this case as to whose claim is the right one.
Or, secondly, if they can not agree, a quarrel or war will ensue, which can end only with the complete extermination of one of the parties. Now, since such a war—as, indeed, all war—is against the law, or is absolutely unlawful, they are bound, in order to prevent the war, to transfer the decision of their dispute to a third party, and hence to transfer their whole right of deciding questions at law and their physical power to enforce such decision to this third party. Or, as we expressed it before, they must both join a commonwealth; and each has the right to compel the other to join a commonwealth with him, since only thus the maintenance of law and a legal relation between men is made possible.
How the rights of property are settled, if the parties thus enter a commonwealth, we shall see hereafter, when we come to speak of the Conception of Rights as applied in a commonwealth. At present the only question which concerns us is this: Supposing, therefore, all parties to be agreed from the start, or to have agreed by a compromise as to their exclusive possessions, and supposing each one to have now lawful possession only of what has thus been ceded to him by the general declaration of property, upon what ground is his right of property to the particular and fixed objects based, which the general division has assigned to him?
Evidently, altogether upon the fact that their wills were agreed and not in conflict, or that the one has ceded what the other claimed. Each one, by saying, "This only shall be my possession," says, at the same time, "Every thing else may be thine," and vice versa. Their right of property, that is, the right of exclusive possession, is therefore completed and conditioned by mutual recognition, and does not exist without it. All property is based upon the union of many wills into one will. Through this mutual recognition, indeed, does a possession change into property.
I am excluded from the possession of a determined object, not through the will of the other, but only through my own free-will. If I had not excluded myself, I should not be excluded. But I must exclude myself from something in virtue of the Conception of Rights.
Another result could, indeed, not have been expected. If each person is to have original right of property to the whole sensuous world, but not to retain that right in actuality, and yet is to be and remain absolutely free, this is the only possible solution.
My right of property to a particular object (not the right of property in general) is, therefore, valid only for those who have recognized this right of property amongst each other, and no further. It always remains possible, that all the rest of mankind will come and dispute my right of property to something recognized as mine by the few with whom I have entered into a legal relation. There is, hence, no sure and absolute title to property except a title recognized by the whole human race. To obtain this recognition seems an infinite task, and yet it is easy of solution, and has, indeed, been solved long ago by men. To wit, each citizen of a commonwealth guarantees to each other citizen thereof his right of property to his selected possession. Now, the adjoining commonwealths acknowledge and guarantee the right of property of this commonwealth, and hence of each citizen thereof. The commonwealths adjoining those again acknowledge their property, etc., etc. Even the remote commonwealths, therefore, which have not directly recognized my right of property in my commonwealth, have done so implicitly, since they have recognized the right of property in adjoining states, and can therefore not trespass upon the property of those states, which adjoining states again have acknowledged the same rights in the states next to them, etc., etc. As our earth is an absolutely closed and connected whole, each piece of property is, therefore, mediately recognized by all mankind, through the immediate mutual recognition of adjoining commonwealths. True, in a state of war all law relation ceases, and the property of all the states at war becomes insecure; but a state of war is not a lawful condition.
When this general declaration of property occurs, if some objects of the sensuous world should remain unappropriated, these unappropriated objects are property of none, (res neutrius.) It needs no special declaration to fix these objects, since all objects not expressly declared to be appropriated are unappropriated. Now, in regard to these unappropriated objects the same difficulty may arise, which we met at the first start, when attempting to fix the right of property in general. After this general declaration, two persons may desire to possess themselves also of this unappropriated property, and, as each one has the same right to it, a state of uncertainty will again result, which can not be allowed to remain if the Conception of Rights is to rule. That uncertainty must be removed. In the first general establishment of a state of law, therefore, a rule regarding this future appropriation of unappropriated possessions must be fixed. It is not only advisable to do so, but such a rule must be fixed and agreed upon, or a complete and secure state of law is impossible. Each person has, therefore, the right to compel the other to agree to some rule, generally valid, for those future appropriations.
What sort of a rule may this be? The declaration of property determines the object taken possession of; the recognition secures to the proprietor the guarantee and consent necessary to make it his property. Now, this recognition may precede the declaration; that is, at the moment of the first agreement, a rule of recognition may be fixed for all future time; but the declaration can not precede the recognition, if it is to refer to future appropriations. To make such a rule possible, therefore, it would be necessary to mutually agree, that each will hereafter recognize each declared possession of the other in the region of the unappropriated objects to be that other's property the moment such a declaration is made.
In virtue of such an agreement, the one who would first make public his declaration would thereby secure a complete right of property and title to it, since all others would have agreed in advance to respect such a title. Hence, there arises here for the first time, and solely in consequence of a voluntary but legally necessary agreement, a rule of law from priority of time; and the law formula: Qui prior tempore, potior jure, which had hitherto no legal validity for an external court of law, has now been grounded. Another law formula, Res nullius cedit primo occupanti, is at the same time more particularly determined and limited. There are no absolutely res nullius in the eye of external law. Things are ownerless only through a mutual declaration and exclusion from them, (res neutrius.)
The possibility of an endless law dispute has not been removed, and the proper law relation has not been completely secured, unless it can be so arranged that the declaration follows immediately the taking possession of an object. For unless I do immediately declare my possessions, another person may come to declare his possession of the same object, (not having known of mine,) and the law dispute will again be interminable.
Possession and declaration must therefore be synthetically united, or the occupied object must, at the occupation, be so determined that the other can not perceive the object without perceiving that it has been taken possession of. The object itself must express the declaration; hence, both parties must have agreed upon certain signs of occupation; and since it is necessary to have these signs in order to make possible the rule of law, there is a right to compel the other to make and respect these signs. These signs are signs only in so far as they have been agreed upon. Hence, they may be of any possible nature. The signs used in landed property are usually fences or ditches. Animals are thereby prevented from entering such property, and rational beings are thereby reminded that they are not to make use of their power to enter it.
Concerning the abandonment of property, (derelictio dominii,) in regard to which law disputes might also be possible, it is at once clear, that the first property which was acquired through mutual declaration and recognition, can be abandoned only by the express declaration of the possessor, that he no longer desires to possess it. For the grounded reaches as far as the ground. Now, the declaration is the sole ground of this kind of property, hence the property can not be deemed abandoned until the declaration is annulled. When it is annulled, the property becomes ownerless, and belongs to the class of ownerless objects already alluded to.
As far as the afterward acquired property (dominium acquisitum) is concerned, the title to which is obtained through the sign of occupation, it can, of course, be abandoned only by the removal of the sign; and, by the removal of the sign the title to this property is abandoned in virtue of the same rule; the grounded extends no further than the ground. It might be maintained, that the sign having once been fixed upon the property, every body now ought to know that it has been taken possession of, and that the removal or destruction of the sign ought not to invalidate the title. But you never can prove that others have seen the sign. They may never have seen the property, or if they have seen it, may never have noticed the sign. Hence the sign is not superfluous, but is the necessary and continuing ground of right to the property; and if the owner takes it away or allows it to be destroyed, he is to be considered as one who has abandoned his property.
By making this fixed agreement concerning their property, the persons who make it reciprocally prove to each other that they have subjected themselves to the law, and hence, that they are beings who have rights. By means of this property covenant, therefore, do the freedom and inviolability of their bodies, which before remained problematical, also receive sanction, and now become a categorical right. Of course, to secure it in a particular agreement is not necessary, since the in how far of that freedom is not at all disputable, but is given in the mere cognition. The that of those rights of the body, however, is decided by the property covenant.
Our investigation has thus returned into itself. What was first problematical, has become in its simple self-development categorical; and our investigation is, therefore, completely exhausted.
The free beings have now been completely determined in regard to the limits of their free acts in relation to each other. Each has its determined stand-point in the sensuous world, and they can not get at all into a law dispute, if they keep on that stand-point. An equilibrium of rights has been established between them. ,
The synthetical proposition, that the in itself formal principle of law does also determine the material extent of the rights of each person, has approved itself as true by its universal applicability. Through the mere cognition of a free being my law relation to it is immediately determined for me, that is, is posited as necessarily to be determined. Either I must determine it myself freely, or the state determines it for me.
We have thus answered the most important question of the Science of Rights: How can a purely formal rule of law be applied to determined objects?
III.
THE PRINCIPLE OF ALL LAWS OF COMPULSION OR OF PENAL LAW.—Our whole argumentation in the deduction of an equilibrium of rights turns around in a circle; and if we reflect upon this circle, the lawful condition, which was to be made possible through the establishment of an equilibrium of rights, again becomes impossible, and the Conception of Rights appears still empty and without an applicability.
The rational beings, which we posited as reciprocally recognizing each other as such, were all uncertain whether the one could depend upon its rights being secured against the attacks of the other; and hence whether the other one had any rights at all, or ought not rather to be driven away by physical force from the sphere of causality of the first one. This uncertainty we claimed to have removed in causing both to mutually recognize and determine the sphere of their rights, since this recognition and determining was evidence that both had subjected themselves to the Conception of Rights.
But their mutual security is so far from being based upon their agreement to live together in a lawful condition, that it rather is based altogether upon the fact, whether in all their future acts they will conform to this agreement. Hence, the agreement presupposes mutual confidence of the one in the other, that he will make that agreement his irrevocable rule of action. But the adoption of such a rule presupposes in each party the will to establish and maintain a lawful condition between them; presupposes, therefore, their subjection to the Conception of Rights; and thus that which was to prove the honesty and lawfulness of each party, namely, his subjection to the law, proves it only if that which is to be proved is presupposed, and has no validity or significance unless such presupposition is made.
Our whole subsequent investigation depends upon the correct and strict comprehension of this point. The security of both parties is to depend, not upon chance, but upon a necessity, equal to a mechanical necessity, and one from which there is no exception possible. Now, such a security is possible only if the Conception of Rights has been made the irrevocable rule of action of each party; and unless both are convinced that each has thus adopted it, the agreement to respect each other's property and personal liberty affords no security at all, since it rests upon this very subjection to the Conception of Rights and has no effect otherwise. There are many reasons which might induce either party to enter an agreement without having the slightest intention to keep up to it. Or they may have made the agreement with sincere intention to keep it and to live together in a legal state, and yet may have since changed their minds. The moment one party can suppose this possible of the other, he has no security any longer, but must always be prepared for disturbance and war, and thus can lead the other party, who may still be honest and sincere in his submission to the law, to entertain the same distrust. Each party thus obtains the right to annul the agreement and to get rid of the other party, since the possibility of both parties living together as free beings has been canceled. Their agreement is annulled, because that upon which it was based, mutual confidence, has been annulled.
Result: The possibility of a legal relation between persons is conditioned by mutual fidelity and confidence. But mutual fidelity and confidence are not dependent upon the Conception of Rights, and can not be compelled by law, nor is there a right to compel confidence and fidelity, since confidence and fidelity can not be externally manifested, and hence do not appertain to the sphere of the Conception of Rights. Nor can I even compel any body not to manifest his distrust in me; for if I had that right of compulsion, it would force him to abandon all care for his own security, and hence all care for his freedom and his rights. Such a right on my part would make him subject to my arbitrary law decisions and to my power; in other words, would enslave him, and no one has the right to enslave another.
Whenever fidelity and confidence between persons living together have been lost, mutual security and legal relation between them have become impossible, as we have seen. The parties can not become convinced of the groundlessness of their distrust, simply because such a conviction can be based only upon a fixed, unchangeable good will—a will which each person can scarcely presuppose in himself, much less in others. Fidelity and confidence, therefore, when once lost, can not be restored; either the distrust continues and spreads, or a war finally breaks out, which is an unlawful state, and, moreover, can not restore confidence.
Now, none of the parties care about the good will of the other in itself, in its form; for, as far as the good will is concerned, each is accountable only to his conscience. It is the results, or the material of the will, which they care for. Each wills and has the right to will that the other party's acts shall always be such as would result if he had a good will. Whether this good will really is the incentive of those acts or not, is all the same to him. Each has claim only to the Legality of the other, not to his Morality.
Nevertheless, the provision to be made to repress acts which ought not to occur, must not operate through means of a mechanical power of nature; firstly, because this can not be done, man being free, and hence able to resist and overcome any power of nature; and secondly, because such a procedure would be unlawful; for man would thus be changed into a mere machine in his legal state, and would not be supposed to have any freedom of will, to secure which, alone, the whole legal relation is established. Hence, the arrangement to be established must be of such a character as to relate to the will itself, as to induce and compel the will to determine itself never to will any thing inconsistent with lawful freedom.
It is easy to see, that such must be the solution of the problem; but it is far more difficult to determine what this solution may really signify and involve.
The free being with absolute freedom proposes to itself certain ends. It wills because it wills, and the willing of an object is itself the last ground of such willing. Thus we have previously determined a free being, and any other determination would destroy the conception of an Ego, or of a free being.
Now, if it could be so arranged that the willing of an unlawful end would necessarily—in virtue of an always effective law—result in the very reverse of that end, THEN THE UNLAWFUL WILL WOULD ALWAYS ANNIHILATE ITSELF. A person could not will that end for the very reason because he did will it; his unlawful will would become the ground of its own annihilation, as the will is indeed always its own last ground.
It was necessary to establish this principle in all its synthetic fullness, since upon it all laws of compulsion (the whole Penal Law) are grounded. We shall now proceed to analyze it.
The free being proposes to itself an end. Let this end be called A. Now, it is very possible that this A may be related to other ends as a means, and that these other ends are again so related to still others, etc. But no matter how far this relation extends, at the end there must be an absolute end which is willed simply because it is willed. All possible mediating ends are related to this absolute and total end as its parts, and in so far are also to be regarded as absolute end. I will A, signifies, I demand that something corresponding to the conception of A be given in perception as existing. Hence, the conception of the real existence of A, or the will that A shall exist, is the real motive power of the will A. As sure as I desire A and its real existence, I must detest its opposite as the greatest evil possible to me.
Hence, if I can foresee that an act which I undertake to realize A must necessarily result in the opposite of A, I can not wish to realize A, for the very reason that I do desire it and do not desire its opposite; I can not will A because I will it. Our problem is therefore solved. The lawless will annihilates itself and keeps itself in its own limits.
Hence, if a contrivance could be secured which would operate with mechanical necessity so as to cause each lawless act to result in the very opposite it was intended to produce, then such a contrivance would compel the will to desire only what is lawful; and would restore the security which must be restored, after fidelity and confidence have been lost. The good will would be rendered superfluous for the external realization of right, since the bad will would be forced by its very badness to effect the same end. A contrivance of this kind is called a Law of Compulsion.
There exists a general right to establish such a contrivance, since reciprocal legal freedom and security can only exist, as we have discovered, by means of it. Hence, the problem to establish it is involved in the Conception of Rights.
The freedom of the lawful will remains unviolated by this contrivance, and retains all its dignity. So long as a person desires that which is lawful only for the sake of lawfulness, he experiences no longing for the unlawful; and since the law of compulsion operates only where this longing exists, it never effects the just person at all. His own good will places him above all external law, and he is utterly freed from it.
But a person may trespass upon another person's right without being thereunto impelled by a bad will. It may be done through carelessness. The law of compulsion, however, is operative only when a bad will exists; and hence, through its means the rights of persons are not yet sufficiently protected. Let us examine this.
All carelessness can be reduced to this, that the careless person has no will at all in cases when he ought to have a will and when he must be assumed to have had one as sure as he claims to be a free and rational being. If in a certain case he has acted without a clear conception of his acting, if he has acted mechanically, obedient to chance impulses, it is impossible to live together with him in security as a rational being. He ceases to be a rational being, and becomes a product of nature, which ought to be compelled to inactivity. But this can not be done, both because he has, after all, a free-will, and because his general freedom must be respected.
The following rule applies to such cases: Each person must take as much care not to violate the rights of others as he takes care that his own are not violated. The proof of the validity of this rule is as follows: the final end required of me by law is, mutual security. This involves the end, that the rights of the other shall not be violated by me, in the same degree as the end, that mine shall not be violated by him. Both these ends, the inviolability of mine as well as that of the other's rights, must be equally ends of my will, and until they are so, my will is not a lawful will.
The question is: How is it to be so contrived that a person will have a will when he ought to have it, or, as we have just now determined the proposition, that he will take as much care not to violate the right of the other, as he takes care to protect his own right against the other?
Let us first examine the rule as we determined it at the outset, because it is the most difficult, and hence makes the investigation most interesting. How then is it to be contrived to produce a will where it ought to be?
That which has no will at all is not a free or a rational being. The free persons, whom we have posited here, have a will; the direction of that will is also known, for they have announced the objects which they have subjected to their ends, (their property.) This will, which is known to exist, must be so worked upon by the contrivance postulated, as to produce of itself the will which is lacking, and which, nevertheless, is necessary for mutual security; that is to say, the gratification of the will, which they have, must be conditioned by their having the other will, which they ought to have but perhaps have not.
To illustrate: I am known to have the end A. Now the law relation I have entered into with other free beings, demands that I also must have the end B; but it is not known whether I will always entertain the end B. The way to force me to entertain B at all times, is to make it the condition of A. For in that case I am compelled to will B, since A is not possible without it. A is the end to assert my own right, B the end not to violate those of the other. Hence, if a law of compulsion can be contrived, which with mechanical necessity will make the violation of the rights of the other a violation of my own rights, then I will certainly take as much care to protect his as to protect my own. In short, each loss which the other suffers through my carelessness, must become my own loss.
The distinction between the former and the latter application of the law of compulsion is clear: In the first case, my will went beyond its limits, and attacked the exclusive rights of the other, with a view to use them for my own advantage. The law of compulsion addressed itself to this going beyond of my will, in order to drive it back within its limits.
But in the second case, my will did not go far enough; for it did not notice at all the rights of the other, as it should have done. Here, therefore, the law addressed itself to the care I take of my own rights, in order to impel my will to go far enough. Regard for my own security has, therefore, under the law of compulsion, the contrary effect intended by my own will, namely, to induce regard for the other's security. Thus the equilibrium of rights is fully secured, and the conception of a law of compulsion, which is to secure those rights, has been completely exhausted.
IV.
THE ESTABLISHMENT OF A LAW OF COMPULSION.—The law of compulsion is to work in such a manner that every violation of the rights of the other is to result for the violator in the same violation of his own rights. The question is, How can such an order of things be established?
A compulsory power is evidently required which shall irresistibly punish the violator. Who is to establish such a power?
This power is posited as a means to realize reciprocal security, whenever fidelity and confidence have been lost; and is posited in no other respect. Hence, it can be desired only by a person who has that object in view; such a person, however, must necessarily desire its establishment. The persons posited by us as making the agreement, have that object in view; hence they, and they alone, can desire the means to realize it. Their will is united in the object in view, and hence must also be united in the only means to realize it; that is, they must will to make an agreement concerning the establishment of a law of compulsion and of a compulsory power.
What sort of a power is this to be? As a power operative under a conception, and under a conception of absolute freedom—namely, of the limits posited by the contracting parties to their causality in the sensuous world—this power can not be a mechanical power, but must be a free power. Such a power, however, is not posited beyond their own common power. Their agreement to establish a law of compulsion will thus have to contain the provision: that both parties agree to treat, with united strength, that one of them who shall violate the rights of the other, in accordance with the provisions of the law of compulsion.
But if the law of compulsion becomes applicable, one of these parties must be the violator, and it is contradictory that this one should lend his own strength to repel his own attack. He can, therefore, only promise that he will not resist the compulsion of the other, but will voluntarily submit to the punishment of the other. This, however, is also contradictory, since his original violation presupposes that he intended to deprive the other person of his rights, and if he did, he will not now voluntarily give them up.
Nevertheless, it must be so. For how else can a superior power of right be realized? since we must ascribe to both parties equal physical strength. Thus it seems that the same party whom I could not trust to refrain from violating my rights, and who, moreover, has since shown that this my distrust was justified, must now be trusted by me voluntarily to submit to the punishment provided by the law of compulsion. But this same difficulty remains if that party does so submit. For if the aggrieved party himself inflicts the punishment provided by the law of compulsion, who is to guarantee to the aggressor that the aggrieved party will not purposely step beyond the provisions of the law of compulsion, or that he has not made a mistake in applying it? The aggressor also must, therefore, have an impossible confidence in the justice and wisdom of the other, after first having lost that confidence; all of which is contradictory.
An agreement such as we have found necessary is, therefore, contradictory, and can not be realized.
It could be realized only if the aggrieved party had always superior power, extending, however, only to the limit provided by the law of compulsion, and if he lost all that power as soon as he had reached that limit; in other words, if each party had precisely as much power as right.
This condition is, as we have seen before, possible only in a commonwealth. Hence, an application of the law of compulsion is not possible except in a commonwealth; outside of a commonwealth compulsion is only problematically lawful, and for that very reason is always unlawful if really applied.
Hence, Natural Law, or a legal relation between men, is not possible at all except in a commonwealth and under positive laws.
Either general morality, and universal faith in this morality, prevails—and even in that case it would be the most marvellous of all chances if men could agree upon their claims; and if morality so rules, law does not exist at all; for that which law should enforce occurs without its application, and that which it prohibits is never done. For a race of perfect moral beings there is no law. That mankind can not be this race is clear from the simple fact that man must first be educated, or must first educate himself, to become a moral being.
Or there is no such general morality, or, at least, no universal confidence in it. In that case, the external rule of law certainly becomes applicable but it can be applied only in a commonwealth. Natural law, therefore, becomes inoperative.
But what we thus lose on the one hand, we get back with profit on the other hand; for the commonwealth now becomes the natural condition of man, and its laws will, after all, be only Natural Law realized.
Notes edit
- ↑ Law of Precedents.—TRANSLATOR.
- ↑ Our Declaration of Independence, wherein the original rights of men, which have here been philosophically deduced, are expressed in their results, or simply asserted, specifies the right to the continuance of the absolute freedom of the body as the Right to Life; the right to the inviolability of the body as the Right to Freedom; and the right to the continuance of our free influence upon the whole sensuous world, as the Right to the Pursuit of Happiness. The latter right is also often called the Right to Property. Our Declaration of Independence, therefore, completely exhausts the conception of original rights. By proceeding "and in order to have these rights," etc., the Declaration of Independence further asserts, by inferring the right of compulsion, that original rights can only be secured as rights by the establishment of a commonwealth. In that one immortal sentence from the Declaration of Independence, therefore, the whole Science of Rights is involved, and can be deduced from it in its application to the least of possible law-cases.—TRANSLATOR'S REMARK.