The Science of Rights/Part 2/Book 1
§ 1.EditSYSTEMATIC DIVISION OF THIS SECOND PART.
THE problem which we were unable to solve, and which we hoped to solve through the conception of a commonwealth, was this: to realize a power which might enforce the Conception of Rights (or that which all persons necessarily will) amongst persons who live together in a community.
The object of their common will is common security; but since only self-love, and not morality, is supposed to exist—the willing of the security of the other emanates from the willing of the security of himself in each person. The former is subordinated to the latter. No one is supposed to care that the rights of the other are secure against his attacks, except in so far as his own security is conditioned by this security of the others. We may express this in the following formula: each one subordinates the common end to his private end.
The law of compulsion is intended to produce this reciprocity or this necessary connection of both ends in the will of each, by combining the welfare of each with the security and the welfare of all others.
But the will of a power which is to execute the law of compulsion can not be of this character; for the subordination of the private to the common will being produced only by this power, which must be superior to all other power, that subordination could be produced in the supreme power only by its own power, which is a contradiction. Hence, that subordination and harmony of private and public will must not wait to be produced, but must exist from the very beginning in the power which is to carry out the law of compulsion; in other words, the private will of that power and the common will of all persons must be one and the same will; the common will itself, and none other, must be the private will of this power, and the power must have no other particular will of its own at all.
II. The problem of the Science of Rights is, therefore, to discover a will, which can not possibly be other than the common will.
Or, to use our previous formula, which is better suited for our investigation, to discover a will, wherein private and common will are synthetically united.
Let this will, which is to be discovered, be called X.
A. Each will has itself (in the future) for its own object. The ultimate end of each willing person is his own preservation. This applies to X also; and hence this is the private will of X. This private will is in X to be the same as the common will. The common will is the security of the rights of all Hence X, as much as it wills itself, must will the security of the rights of all.
B. The security of the rights of all is willed only through the harmonious will of all. Only in this are the wills of all harmonious; for in all other matters their willing is particular and has individual purposes. No individual singly has this for his object, but only all in common will it.
C. X is therefore itself this agreement (harmony) of all. As sure as this harmony wills itself, it must will the security of all, since it is itself this very security of all.
III. But a harmony like this is a mere conception. Such it is not to remain; but to be realized in the sensuous world, that is, to be established in a determined utterance and to have effect as a physical power.
All willing beings in the sensuous world are men to us. Hence, that conception must be realized by men. This requires:
A. The will of a certain number of men in some particular time-moment must become really harmonious, and must declare itself as thus harmonious.
It is important here, to show that this required harmony does not occur of itself, but is grounded in an express act in the sensuous world, perceptible at any time and possible only through free self-determination. The proof of this act has already been given, when it was shown that the applicability of the Conception of Rights is not possible, unless each person has made an express declaration of the extent to which he has subjected objects of the sensuous world to his end, or to which he has taken possession of them.
The further development of this act is undertaken in our first book: CONCERNING STATE ORGANIZATION.
B. This common will must be clothed with a power, and with a supreme power, so that it may maintain itself and its decisions by compulsion. This power involves both the right to decide law disputes and to execute these decisions: Judicial and Executive power.
The manner of its establishment is developed in our second book: CONCERNING THE STATE CONSTITUTION.
C. This common will must be established as the unchangeable and permanent will of all, which each agrees to recognize so long as he remains in the commonwealth; a fact which must always be borne in mind. The whole future will of each individual is concentrated into the one moment when he declares his willingness to participate in the commonwealth; and this extending the present will so as to embrace the whole future, changes the expressed common will into LAW. In so far as the common will determines how far the rights of each person shall extend, the law is called Civil Law; and in so far as it determines the punishment which shall follow a violation of the law, it is called Penal or Criminal Law.
The further development of these conceptions is undertaken in our third book: CONCERNING MUNICIPAL LAW.
§ 2.EditCONCERNING STATE ORGANIZATION.
PRELIMINARY.—Let us analyze more thoroughly than we have done heretofore the conception of the fundamental agreement upon which a commonwealth is established.
An agreement presupposes two persons who are posited as each desiring the same object to be his exclusive property. The object upon which they are to agree must, therefore, first, be of a nature which will allow it to become exclusive property, that is, which will allow the object to remain the same as conceived by either person when subjected to his end; and, second, of a nature which will allow it to be subjected to an end only as exclusive property. (See the deduction of the right of property in the paragraph on Original Rights.) If the former is not the case, then no agreement is possible; if the latter is not the case, no agreement is necessary. Hence a certain amount of light or of air is not a legitimate object of an agreement.
Again: Both parties must have the same right to the object, otherwise there exists no law dispute between them to be settled by an agreement This is, indeed, the case as far as all objects and all free beings, who claim those objects, are concerned. Previous to the agreement, the only legal ground which a person can make valid for the possession of a disputed object is his freedom and rationality; but all free beings can make the same ground valid. A dispute concerning the possession of their bodies is not possible amongst persons, since the natural end of each body, to be moved through free-will, is physically impossible to all but one. But to the rest of the sensuous world, all persons have the same claim.
It is not necessary, however, that both parties need claim the same property at the present moment; the fear that such a claim may be raised in the future is sufficient to make an agreement necessary. But unless either case occurs, an agreement is altogether unnecessary, since then the sphere of freedom for both parties is so separated that a collision of wills is considered impossible. So long, for instance, as their possessions are separated by a river, which both parties consider impassable, it is useless for them to promise each other that they will not cross the river and attack each other's property. Nature has made the river the limit of our physical power. It is only when the river becomes fordable, or when we invent ships, that it becomes necessary to fix the river as the limit of our possessions by agreement.
This will of each party, to have exclusive possession of this or that piece of property, is the private will of each party. Hence, in the agreement there are, firstly, two private wills, which may be called material wills, since they are directed upon an object.
The possibility of an agreement requires, moreover, that both parties have the will to come to an agreement concerning their disputed claims, or to relinquish each a part of his claim until both claims can coexist together. If one or both of the parties have not this will, an agreement becomes impossible, and war is the result. The Conception of Rights requires each rational being to have this will, and there is a law of compulsion to force each person to enter an agreement, (which, it is true, has no applicability, since it is impossible to determine to what extent a person should relinquish his claim,) all of which has already been proved.
This will of both parties to compromise their law dispute peaceably, we shall call, since it refers to the form of the agreement, their formal common will.
Their will to restrict their two private wills so far that they may no longer conflict with each other, and hence to relinquish each a part of his claims for now and ever, we shall call their material common will.
By this agreement of both contracting parties, the will of each now extends also to the property of the other, which, perhaps, it did not previously, since the other party may not even have known it; but it does so only negatively. The will of each party extends beyond its own private end, but merely as a negative will. Each one does not will what the other wills; that is all. Whether a third party wills the possessions of the other, is to each a matter of indifference. The material will of both parties, in so far as it is a common will, is purely negative.
The conception of an agreement requires, moreover, that this common will be established as a permanent will, determining all future free acts of both parties, as the rule of law which fixes their whole future legal relation to each other. As soon as one of the parties transcends the limits of this agreement in the least, the agreement and the whole legal relation established by it is annulled.
It might be supposed that, in case of such a violation of the agreement, the aggrieved party had only a claim to demand damages, and that a restitution would place all things back in their original position. This is true, if the aggrieved party is satisfied with the restitution and is willing to renew the agreement with the other party. But it is very important, for the sake of our future results, that it should clearly appear, that the offended party is not legally bound to be satisfied with damages; the one violation of the agreement strictly annulling the whole legal relation between them.
For this reason: Previous to the agreement each of the parties had the most perfect title to the possessions demanded by the other party and ceded to that other party in the agreement. Though the first party may not even have had knowledge of the existence of those possessions, he might have obtained that knowledge at some future time. His right to those possessions he lost only by the agreement, by his voluntary cession. The agreement, however, exists only in so far as it is always maintained; its violation annuls it. When the ground is annulled, the grounded is also annulled; and since the contract was the only ground of the cession of those possessions to the other, with the contract that cession also is abrogated. Both parties are again in the same relation to each other which they occupied before the agreement.
No legal relation is possible without a positive determination of the limit to which the freedom of each individual is to extend; or, which is the same, without defining their property in the widest sense of that word, namely, in so far as it signifies not only the possession of real estate, but the rights to free acts in the sensuous world generally.
In the organization of a state or commonwealth, therefore, if that organization is to establish a general legal relation between individuals, each individual must agree with all others concerning the property, rights, and liberties which he is to have, and which he is to cede to the others. Each must make this agreement with all the others in person. Each, is the one party, and all the others, as individuals—for only as individual free beings does he agree with them—are the other party. Each one has said to all: I wish to possess this, and demand that you shall release all your legal claims to it. All have responded to each: We do release our claims to it, provided you release your claims to our possessions.
All the requirements of an agreement are contained in this one. Firstly, the private will of each individual to possess something as exclusive property, for otherwise he would not have entered the agreement. Each citizen of a state has, therefore, necessarily a property; for if the other had not guaranteed him his property, he would not have guaranteed theirs. Secondly, the formal will to make the agreement. Thirdly, it is necessary that each shall have agreed with the other concerning the matter of his possessions; otherwise the agreement could not have been effected. Fourthly, the will of each is positive only in so far as his own possessions are concerned, and negative in regard to the possessions of all others. Again, the possessions of each are recognized by the others only so long as the former recognizes their possessions. The least violation cancels the whole agreement, and justifies the offended party, if he has the power, to take away from the aggressor all his possessions. Each, therefore, pledges all his property as security that lie will not violate the property of all others.
I call this first part of a state organization the Property Compact of the citizens.
Each individual has at one time actually thus declared his possessions, whether by word or by deed, in choosing publicly a profession, which all the others, at least tacitly, have consented to, and thus guaranteed.
We have assumed that in a commonwealth all make the agreement with all. Some one might object that this is not necessary, and that, since men do business necessarily in a limited sphere, it would be sufficient if each individual made such an agreement with three or four of his next adjoining neighbors. According to our presupposition, however, this would not be sufficient. Our presupposition must therefore assume that each person can come in conflict with each other; that hence, each is not limited to his chosen sphere in space, but has the right to traverse the whole sphere of the commonwealth. It will appear, hereafter, that this is really the case. At present we only wish to show from this requirement that, in a commonwealth, the agreement should be one of all with all, and that, although the possessions of all on the surface of the earth may be in part, that is, in a certain respect, divided amongst the individuals, still in another respect, which the agreement must also determine, there must be a sphere of action for all; the merchant, for instance, retaining the privilege to travel and to sell his goods, the cattle-raiser to drive his cattle over the high-roads, the fisher to walk upon the property of the agriculturist along the rivers, etc., etc.
Now, since the Conception of Rights can not be realized except through a universal commonwealth of all mankind, the right to realize it must always remain a right of each individual; and it is this right to realize a true lawful relation between mankind, which is the legal ground, why each individual, besides his particular limited sphere in space selected as his exclusive possession, has a right to claim all the rest of the world as sphere of causality. Only, this latter right is neither exclusive nor absolute. It is denned in the separate commonwealths, but a universal determination of this right is not possible until the object contemplated by it, the establishment of a Universal Confederacy, has been realized.
But the object of state organization is, to protect the rights guaranteed to each in the property-compact against all attacks whatever, and so to protect them by compulsion or physical force, if necessary.
Such a protecting power has not been established if the will of each party remains only negative so far as regards the property of the other. The property-compact must, therefore, embrace another compact, in which each individual shall likewise covenant with all the other individuals of the commonwealths that he will protect their specified property (or rights) to the extent of his physical power, provided they will protect his property in the same manner.
This agreement we will call the Protection-Compact.
This second compact is in its matter conditioned by the first. Each can only agree to protect what he has recognized as the right of the other, whether it consist of present possessions or in the permission to obtain future possessions under a certain rule. But he can not promise to assist the other if the other should involve himself in quarrels not provided for in the agreement.
This second compact is distinguished from the first in this, that the negative will in respect to the other's property now becomes positive. Each promises not only to abstain from attacking the property of the other, but, moreover, to assist in defending it against the attacks of any possible third party.
Like every agreement, the protection-compact is conditioned. Each promises to the other protection on condition that the other will also protect him. The agreement is annulled if any party does not fulfill its conditions.
The protection-compact is distinguished from the property-compact remarkably in this, that in the former both parties agree merely not to do certain things, whereas in the latter both parties agree to do certain things. It can, therefore, be known at all times whether the property-compact has been complied with, since it only requires knowledge that certain things have not been done by the other party; but it can not always be known whether the protection-compact has been complied with, since it requires that the other party shall do certain things which he can not do at all times, and which he really is never obliged to do.
Let us examine this important point more closely.
The protection-compact is a conditioned agreement concerning positive duties, and as such it can, in strict law, have no effect whatever, but is null and void.
The formula of such an agreement would be as follows: On condition that you protect my rights, I will protect your rights. How, then, does some party obtain the right to claim the protection of the other? Evidently, by actually protecting the rights of the other.
But if this is so, no party will ever obtain a strictly legal claim to the protection of the other.
It is important for our whole future investigation that this be clearly comprehended, and this comprehension depends upon a thorough insight into the nature of this compact. I am legally bound to protect you only on condition that you protect me.
Let it be clearly noted what this last clause signifies. It does not mean, merely, "that you have the good will to protect me." For good intentions can not be proved before a court of external law, and, moreover, might change at any moment. Indeed, it is the right of each party, never to be compelled to depend on the good intentions of the other party. Nor is that clause equivalent to saying, "On condition that you have protected me at some past occasion." For the past is past, and is of no moment to me at present. Morality, gratitude, and other internal or moral qualities may, it is true, induce me to recompense past services, but in a Science of Right we must not take morality into account at all. On the field of law there is no means to unite men except through this insight: whatever you do to the other party, whether of good or of evil, you do not unto him, but unto yourself.
Applying this to the present cases, it would be necessary to become convinced, that in protecting the other party I simply protect myself, either actually in the present or prospectively in the future, namely, if protection of my rights in the future is the necessary result of my affording protection to him now. The former is not possible; for in protecting the other, I do not need and do not receive present protection. The second is equally impossible; for I can not have absolute certainty that the other will protect me again in the future.
Our above exposition is the most stringent, but the matter may be viewed from various sides. For instance, either both parties are attacked at the same time, and in that case neither can afford protection to the other, or they are attacked at different times. In the latter case, the party called upon to protect the other, might say, Our agreement is a conditioned one; only by affording protection to me do you get a claim to my protection. Now, since you have not actually fulfilled the condition, the conditioned, of course, is null and void. In the same manner the other party will argue, and thus the conditioned will never become realized, because the condition can never be realized. They may come into a relation of moral obligation, if one party assists the other, but never into a relation of legal obligation.
Let us compare this in itself null and void compact with the right based upon the property-compact. In the latter compact, the condition is only negative on either side, namely, that neither party shall attack the rights of the other; and hence it can always be proved before external law, that its conditions have been complied with, and that a legal obligation exists. The condition in the property-compact is not a something, but a nothing; not an affirmation, but a mere negation, continuously possible at all times; and hence the conditioned is also possible at all times. I am always obliged to refrain from attacking the rights of the other, because thereby, and only thereby, do I legally restrain him from attacking my rights.
But if the protection-compact is null and void, then the security of the property-compact is also canceled, and the Conception of Rights can not be realized.
The difficulty must be removed, and the solution of this problem completes the fundamental compact of every state organization.
The chief difficulty was, that it always remains problematical whether the obligation required by the protection-compact has been met or not, and hence, whether the other party has obligations or not. If this uncertainty can be removed, the difficulty is solved. It is removed, if the mere entrance into the agreement, the mere becoming a member of a state organization, carries along with it the fulfillment of the obligation demanded by the protection-compact; in other words, if promise and fulfillment are synthetically united, if word and deed become one and the same.
What we have just stated concerning the protection-compact, applies to all compacts involving positive obligations, since it has been deduced from the general character of such compacts. In establishing, therefore, the form whereby the protection-compact may become valid, that is, by making word and deed one, we have established the universal form of all such compacts.
The protection-compact is to contain, at the same time, the fulfillment of its obligations. How is this to be realized? Evidently in the following manner: The compact, which is to establish the state organization, must at the same time provide for a protective power, to which each member of the organization must furnish his contribution. This contribution would at once be the fulfillment of his promise to protect the rights of all other members, and there could be no further uncertainty as to his affording that protection to the others upon which his own claim to protection is grounded.
But how is this protective power to be established, and what is actually established in establishing it?
To make clear the important conception we shall thus obtain, let us again place ourselves on the standpoint from which we saw the one person entering into an agreement with all the others. He is the one of the contracting parties. A contribution is demanded of him as the condition of his entering the state. By whom is this contribution demanded? Who is the second party to this agreement?
This second party demands a protective power—for what particular individual? For absolutely no particular individual, and yet for all; for each one who may be attacked in his rights. This each one may or may not be every single one of them. The conception of the individual to be protected is, therefore, an undetermined conception; and thus arises the conception of a Whole, which is not merely imaginery, (created by our thinking,) but which is actual; a Whole not merely of all individuals, but of a totality.
Let us describe this totality more at length. A mere abstract conception is created solely through the free act of the mind. Such was the conception of all persons together, which we established above. But the conception which we have now obtained is not created by an arbitrary act, but by something actual; which, however, is as yet unknown, and can be determined only in the future through the apprehended attack. No one knows upon whom this attack will be made, but it may be made upon all. Each can, therefore, believe that the whole contrivance has been established solely for his particular benefit, and hence will cheerfully furnish his contribution. But the attack may also be made upon another. The contribution, however, has already become part of the Whole and can not >e withdrawn. This undeterminedness, this uncertainty as to which individual is to be attacked first, this suspension of the power of imagination, therefore, constitutes the real tie of union. It is it, by leans of which all flow together into one, and are LOW united no longer in, an abstract conception, as compositum, but in fact, as a totum. Thus nature in the state unites again what she separated in the production of many individuals. Reason is only one, and its representation in the sensuous world is also only one; mankind is a single organized and organizing Whole of Reason. Reason was separated into many independent members; but even the natural institution of the commonwealth cancels this independence provisionally and unites separate numbers into a whole, until finally morality recreates the whole race into one.
The conception thus attained can be properly illustrated by the conception of an organized product of nature; for instance, of a tree. If you give each separate part of the tree consciousness and a will, then each part, as it desires its own preservation, must also desire the preservation of the whole tree, because its own preservation is possible only on that condition. Now, what, then, is the tree? The tree in general is nothing but a conception, and a conception can not be violated. But the part wills that not a single part of all the parts shall be violated, because that violation would inevitably be felt by it too. It is different with a mound of sand, where each part exists separately, and can, therefore, be careless as to what other parts are separated, trodden down, or scattered away.
The thus established totality is, therefore, that which is to be protected, and is the required second party to the compact.
The point of union of this totality has been shown. But how and through what determined act of the will has this whole become a Whole?
We remain on our previous standpoint, from which we saw a single person enter the agreement; and our question will soon be answered.
That single person expresses his will to protect, of course, the Whole. He, therefore, becomes a part of the Whole, and joins together with it; whether he become, as can not be foreseen, the protector or the protected. In this manner, through covenants of single persons with other single persons, the Whole has arisen; and when all single persons have covenanted with all other single persons, the Whole is completed.
We call this compact, which secures and protects the two previous compacts, and in union with them forms the fundamental compact of state organization, the Union-Compact.
By virtue of this union-compact, each single person becomes part of an organized whole and melts into one with it. Is he swallowed up into it in all his being and essence, or does he remain free and independent in a certain other respect?
Each gives to the protecting body his contribution; he gives his vote to the election of magistrates and to the constitution, and his fixed contribution of forces, services, natural products, or all of these changed into the common representative of value—money. But he does not give himself and what belongs to him altogether. If he did, what would remain his for the whole to protect? The compact would be a contradiction, established on the pretext of protection, and yet with nothing to protect. Its fundamental principle would be: all promise to protect, although all promise that they will have nothing to protect. Hence, the protecting body consists only of parts of that which belongs to the single individuals. The whole embraces them all, but each of all only in part. But in so far as they are thus embraced in it, they constitute the state and form the true sovereign. Only in giving his contribution does each belong to the sovereign. In a free state the payment of taxes is an exercise of sovereignty.
But that which is to be protected embraces all that each one possesses.
The totality thus established can not undertake to protect any thing which it has not recognized. By undertaking to protect all the possessions of each citizen, it recognizes his title to those possessions; and thus the property-compact—which it at first appeared was only concluded between all as single individuals—is confirmed by the actual totality of the commonwealth.
In so far as the Whole must regard all violation of any of the possessions or rights of the single citizens as inflicted upon itself, the Whole is proprietor of all; but in so far as it wishes to have free use of any thing, only that which each citizen contributes toward the Whole is property of the state.
That which the individual does not contribute to the Whole is his own, and in respect to it he remains individual, a free, independent person; and it is this very freedom which the state has secured to him, and to secure which he became member of a state. Man separates himself from his citizenship in order to elevate himself with absolute freedom to morality; but in order to be able to do so, he becomes a citizen.
In so far as the individual is limited by the law, he is a subject, subject to the protective power within its limited sphere. Again: The agreement was entered into with him only on condition of his furnishing his contribution, and hence the contract is canceled when he does not furnish it. Each one, therefore, guarantees with all his property that he will so contribute, and he loses his right to his property if he does not contribute. The Whole likewise, since he voluntarily resigns all participation in the decision of cases, becomes his judge, and he is in so far subject to it with all his property. If there is a penal law providing for such cases, as is to be supposed, he may buy off his fault by paying a penalty, and may thus save his property by losing only part of it.
Thus our investigation returns into itself, and the synthesis is closed.
The state-compact is, therefore, a compact which each single citizen enters into with the actual Whole, which Whole results from the agreements of the single individuals with each other, and whereby he becomes One with this Whole in regard to a certain part of his rights, receiving in return the rights of sovereignty.
The two parties of the contract are: the individual and the state as a whole. The compact is conditioned by the free, formal will of both parties to enter into an agreement. The material will, about which the parties must agree, is, on the one side, fixed property; on the other side, relinquishment of title to all other property, and a fixed contribution to the protective power. Through this compact the citizen of the one party receives a secured property; and the state of the other party receives both a quit-claim to all other property in the state, which is necessary to perfect the title of all the other citizens of the state, and a fixed contribution to the protecting power.
This compact guarantees itself, it contains in itself the sufficient ground that it will be kept, as indeed all organized bodies have in themselves the sufficient ground of their existence. Either this compact does not at all exist for a person, or, if it does, it completely binds him. But the person who does not belong to this compact stands, indeed, in no legal relation to other persons at all, and is rightfully excluded from a reciprocity with other beings of his kind in the sensuous world.
So far as I know, the conception of the state as a whole has heretofore been established only by an ideal gathering together of the individuals, and thus the true insight into the nature of this relation has been lost. By such a gathering together, all possible things may be collected into a whole. The uniting tie is always merely our thinking, and all the parts remain isolated as before, the moment we think differently.
A true union has not been comprehended until the uniting tie has been shown up outside of the conception—as we say, from the empirical standpoint—or until that which compels us in thinking to make this union, as we say, from the transcendental standpoint, has been shown up. We have shown up this uniting tie of the state as a whole in the conception of the individual who is to be protected. That individual being necessarily undetermined, because any one of all individuals may need the protection, this very undeterminedness unites all individuals into one.
The most proper illustration of this conception is an organized product of nature. Precisely as in it, each part can be what it is only in its connection, and out of it would not be this; nay, out of all organic connection, would be absolutely nothing, since without the reciprocal action of organic forces, holding each other reciprocally in equilibrium, there would be no permanent form at all, but merely an unthinkable eternal war between being and not being: so, also, does man receive only in the state organization a determined position in the series of things, a point of rest in nature; and each receives this determined position toward others and toward nature only by living in this determined organization. Through the union of all organic power does nature constitute herself; through the union of the arbitrariness of all men does mankind constitute itself.
It is the character of inorganic matter, which is thinkable only in conjunction with and as a part of the organized world, that in it no part can be found, which has not the ground of its determinedness in itself, which is not completely explainable in itself; whereas, in organized products no part can be found which has the ground of its determinedness in itself, and which does not refer to and presuppose a being outside of itself.
The same relation exists between the isolated man and the citizen. The former acts purely to satisfy his wants, and none of his wants are satisfied except through his own acts; whatever he is exteriorly he is only through himself. The citizen, on the contrary, has much to do and to leave undone, not for his own sake, but for the sake of the other; and, on the other hand, his highest wants are satisfied not by his own acts, but by the acts of others. In the organic body each part continually preserves the whole, and in preserving it preserves itself; so also is the citizen related to the state. It is not necessary to have this preservation of the whole particularly in view; each citizen, in preserving himself in his position as part of the whole, preserves the whole; and again, the whole, by preserving each in his position, preserves itself, and returns into itself.
- " The Declaration of Independence was a social compact by which the whole people covenanted with EACH citizen of the United States, and each citizen with the whole people, that the United Colonies were, and of right ought to be, free and independent States." (John Quincy Adams, July Oration, 1831.) But they covenanted more. Each citizen also covenanted with the whole people, and the whole people with each citizen, that all men are endowed with the rights of life, liberty, and the pursuit of happiness. These rights they guaranteed to each other in that compact; and hence the Declaration of Independence is the Property Compact of the citizens of the United States.—TRANSLATOR.
- TRANSLATOR'S REMARK.—Fichte does not touch the real point of difficulty here. The objection, as raised by himself, involves this question: Why may not each two or three persons on the earth make such an agreement? why must the state be a large commonwealth? The solution suggested is the true one, though it is not expressed clearly and not at all deduced; namely, the possibility is to remain "that each person may come in conflict with each other" on the face of the whole globe, or rather, with each individual member of the whole human race. I say, Fichte has merely suggested this solution, and has not at all attempted its deduction. Of course, as a principle of law, it must be involved in the conception of rights that each person shall restrict his freedom by the conception of the freedom of all others; and the deduction may be thus sketched in its leading features:
It has been shown that the consent of all human individuals must be obtained in order to render the title to any property (or rights in general) perfect. It has also been empirically stated by Fichte that this universal consent exists in the treaties of adjoining states, recognizing each other's possessions. This is not correct as an empirical statement; if it were, we should have no wars. As a matter of fact, not a single state (our Republic excepted, for reasons which will clearly appear) recognizes the possessions of the other, but only awaits an opportunity to appropriate them; and the ground of this is, that a legal relation is possible only between individuals, but not between states, when such states assume to be absolute bodies. From this universal uncertainty of property in all countries, which uncertainty increases with the number of small absolute states, (and hence was never greater than in Germany during the feudal times,) arises the unlawfulness of all states which do not embrace the possibility of annexing the whole globe, or of uniting the whole human race under one form of government. A small state of two or three persons, therefore, would be in contradiction to the conception of rights. There is not perfect security—and perfect security that conception demands—possible in it. Nor is such security possible in any absolutely limited state. A commonwealth which is to afford perfect security must embrace the whole globe, or at least, in order to be conformable to the conception of rights, must contain the possibility of uniting all mankind. We shall show in another place, that the only commonwealth which contains this possibility is that of the United States, and that hence the United States, with its form of government of a Confederate Republic, is the only lawful commonwealth on the face of the globe.
For only a Confederate Republic furnishes really those states which Fichte wrongly asserted empirically to exist, namely, states which guarantee each other's possessions. None of its states being absolute, there is no cause for a war between them; only riots (our late war was merely an organized gigantic riot)[see NOTE] are possible in a confederation. No state would be bettered by being enlarged, nor even lose by being made smaller.
[NOTE: The distinction between war and riot may be held to be either quantitative or qualitative. If held to be only quantitative, our late war, of course, was a war, and every large riot must then be called a war. But if we wish to make a qualitative distinction, a war can only be waged between separate absolute states, with a view to conquer each other's possessions, directly or indirectly; and a riot or insurrection is a revolt against the law within a certain commonwealth. A riot is opposition to law; a war has no reference to law at all, but ignores it.]
- The protection-compact, therefore, forms part of the Constitution.—TRANSLATOR'S REMARK.
- Our Constitution, (or State constitutions.) Those who do not like to have the Declaration of Independence considered as the fundamental property-compact of our Constitution will, perhaps, be better pleased if we call the Bill of Rights (the amendments) of our Constitution the property-compact; the sections, which constitute the government and provide for its efficacy, the protection-compact; and the preamble the union-compact. Our forefathers originally intended to keep the property-compact separate from the Constitution. They held that the Declaration of Independence specified the original and inalienable rights of men in sufficiently comprehensive terms, and that it would only be productive of harm to specify them in greater detail in the Constitution, since such specification must necessarily be imperfect and would leave room open to the interpretation, that rights not specified could be taken away by act of Congress. The Patrick Henry party, however, insisted on having this specification, and hence the original amendments to the Constitution, which are nothing more than an imperfect specification of the three fundamental original rights asserted in the Declaration of Independence.—TRANSLATOR'S REMARK.
- On such a contradiction the "right" of conscription is based. The citizens of the United States have formed their constitution and government solely to guarantee to each other "life, liberty, and the pursuit of happiness." By ordering conscription, government takes away your freedom, in order to make you free; takes away your life, in order to secure it.—TRANSLATOR'S REMARK.
- The deduction here undertaken lacks comprehensiveness in its application. Firstly: An organized product of nature is not a completed whole. Not only do its parts point to an outside end, but the whole itself expresses this insufficiently, chiefly through the distinction of sex. A tree, as a whole, is not a complete organization. There is only one whole, one true, organized product of nature; and that is the whole of nature itself. Secondly: If within the whole of nature we draw a distinction between organized products of nature and inorganic matter, the line of that distinction is arbitrary. For if it is once clear that there is only one complete organization, embracing all nature, then every part of nature, as part of that organization, must also refer to it, and thus the distinction between organic and inorganic matter falls away. (That distinction has indeed been swept away long ago by LEIBNITZ, whose monad-theory is this very statement.) Every grain of sand is as much an organized product as the tree or the animal; and its reference to the totality of nature is quite as clear, if we get to the inside of it. (Each monad, says LEIBNITZ, from this very character of referring to another, must express the whole universe.) Thirdly: It is, therefore, possible to say both: all parts of matter are organic, or all parts of matter are inorganic. They are organic, if you consider that each atom must still be part of an organization, and as such express it; it is inorganic, if you consider that even the most perfect animal does not describe a complete return into itself, and is no more perfect (qualitatively) a product of nature than a grain of sand or a piece of rock. Both statements are true, or neither is true; for both are true only in their synthesis, under the higher conception of the whole of nature as the complete organization. Fourthly: Hence, that which was to be illustrated by the conception of a product of nature, and which is equally taken from empirical observation, must be modified. The state, as an organization, is either the totality of mankind, or every two individuals may form a state. There is no ground why a state should be limited by another number than the totality of rational beings on earth, just as we found no ground why the conception of organized products of nature should be limited by only quantitative lines. I have already shown that FICHTE never touches this difficulty. But it follows from his speculative ascertainments clearly enough. If every fraction of individuals can form a state organization, then the smallness of the fraction can not be determined, and it is purely a matter of chance how states will shape themselves. Every two individuals have the right to form a different state. I have shown why no limited number of individuals has this right, namely, because they are not perfectly secure until they have agreed with all members of the human race. The only legitimate form of government is, therefore, one which embraces, or proposes ultimately to embrace, all mankind; and a true state organization must embrace all members of the human race. Only then is it a Whole, a Totality.—TRANSLATOR.