PROLEGOMENA. GENERAL INTRODUCTION to THE METAPHYSIC OF MORALS.
I.: The Relation of the Faculties of the Human Mind to the Moral Laws.
The Practical Faculty of Action. — The active Faculty of the Human Mind, as the Faculty of Desire in its widest sense, is the Power which man has, through his mental representations, of becoming the cause of objects corresponding to these representations. The capacity of a Being to act in conformity with his own representations, is what constitutes the Life of such a Being.
The Feeling of Pleasure or Pain. —It is to be observed, first, that with Desire or Aversion there is always connected Pleasure or Pain, the susceptibility for which is called Feeling. But the converse does not always hold. For there may be a Pleasure connected, not with the desire of an object, but with a mere mental representation, it being indifferent whether an object corresponding to the representation exist or not. And, second, the Pleasure or Pain connected with the object of desire does not always precede the activity of Desire; nor can it be regarded in every case as the cause, but it may as well be the Effect of that activity. The capacity of experiencing Pleasure or Pain on the occasion of a mental representation, is called ‘Feeling,’ because Pleasure and Pain contain only what is subjective in the relations of our mental activity. They do not involve any relation to an object that could possibly furnish a knowledge of it as such; they cannot even give us a knowledge of our own mental state. For even Sensations, 1 considered apart from the qualities which attach to them on account of the modifications of the Subject,—as, for instance, in reference to Red, Sweet, and such like,—are referred as constituent elements of knowledge to Objects, whereas Pleasure or Pain felt in connection with what is red or sweet, express absolutely nothing that is in the Object, but merely a relation to the Subject. And for the reason just stated, Pleasure and Pain considered in themselves cannot be more precisely defined. All that can be further done with regard to them is merely to point out what consequences they may have in certain relations, in order to make the knowledge of them available practically.
Practical Pleasure, Interest, Inclination. —The Pleasure, which is necessarily connected with the activity of Desire, when the representation of the object desired affects the capacity of Feeling, may be called Practical Pleasure. And this designation is applicable whether the Pleasure is the cause or the effect of the Desire. On the other hand, that Pleasure which is not necessarily connected with the Desire of an object, and which, therefore, is not a pleasure in the existence of the object, but is merely attached to a mental representation alone, may be called Inactive Complacency, or mere Contemplative Pleasure. The Feeling of this latter kind of Pleasure, is what is called Taste. Hence, in a System of Practical Philosophy, the Contemplative Pleasure of Taste will not be discussed as an essential constituent conception, but need only be referred to incidentally or episodically. But as regards Practical Pleasure, it is otherwise. For the determination of the activity of the Faculty of Desire or Appetency, which is necessarily preceded by this Pleasure as its cause, is what properly constitutes Desire in the strict sense of the term. Habitual Desire, again, constitutes Inclination; and the connection of Pleasure with the activity of Desire, in so far as this connection is judged by the Understanding to be valid according to a general Rule holding good at least for the individual, is what is called Interest. Hence, in such a case, the Practical Pleasure is an Interest of the Inclination of the individual. On the other hand, if the Pleasure can only follow a preceding determination of the Faculty of Desire, it is an Intellectual Pleasure, and the interest in the object must be called a rational Interest; for were the Interest sensuous, and not based only upon pure Principles of Reason, Sensation would necessarily be conjoined with the Pleasure, and would thus determine the activity of the Desire. Where an entirely pure Interest of Reason must be assumed, it is not legitimate to introduce into it an Interest of Inclination surreptitiously. However, in order to conform so far with the common phraseology, we may allow the application of the term ‘Inclination’ even to that which can only be the object of an ‘Intellectual’ Pleasure in the sense of a habitual Desire arising from a pure Interest of Reason. But such Inclination would have to be viewed, not as the Cause, but as the Effect of the rational Interest; and we might call it the non-sensuous or rational Inclination ( propensio intellectualis ).—Further, Concupiscence is to be distinguished from the activity of Desire itself, as a stimulus or incitement to its determination. It is always a sensuous state of the mind, which does not itself attain to the definiteness of an act of the Power of Desire.
The Will generally as Practical Reason. —The activity of the Faculty of Desire may proceed in accordance with Conceptions; and in so far as the Principle thus determining it to action is found in the mind, and not in its object, it constitutes a Power of acting or not acting according to liking. In so far as the activity is accompanied with the Consciousness of the Power of the action to produce the Object, it forms an act of Choice; if this consciousness is not conjoined with it, the Activity is called a Wish. The Faculty of Desire, in so far as its inner Principle of determination as the ground of its liking or Predilection lies in the Reason of the Subject, constitutes the Will. The Will is therefore the Faculty of active Desire or Appetency, viewed not so much in relation to the action—which is the relation of the act of Choice—as rather in relation to the Principle that determines the power of Choice to the action. It has, in itself, properly no special Principle of determination, but in so far as it may determine the voluntary act of Choice, it is the Practical Reason itself.
The Will as the Faculty of Practical Principles. —Under the Will, taken generally, may be included the volitional act of Choice, and also the mere act of Wish, in so far as Reason may determine the Faculty of Desire in its activity. The act of Choice that can be determined by pure Reason, constitutes the act of Free-will. That act which is determinable only by Inclination as a sensuous impulse or stimulus would be irrational brute Choice ( arbitrium brutum ). The human act of Choice, however, as human, is in fact affected by such impulses or stimuli, but is not determined by them; and it is, therefore, not pure in itself when taken apart from the acquired habit of determination by Reason. But it may be determined to action by the pure Will. The Freedom of the act of volitional Choice, is its independence of being determined by sensuous impulses or stimuli. This forms the negative conception of the Free-will. The positive Conception of Freedom is given by the fact that the Will is the capability of Pure Reason to be practical of itself. But this is not possible otherwise than by the Maxim of every action being subjected to the condition of being practicable as a universal Law. Applied as Pure Reason to the act of Choice, and considered apart from its objects, it may be regarded as the Faculty of Principles; and, in this connection, it is the source of Practical Principles. Hence it is to be viewed as a lawgiving Faculty. But as the material upon which to construct a Law is not furnished to it, it can only make the form of the Maxim of the act of Will, in so far as it is available as a universal Law, the supreme Law and determining Principle of the Will. And as the Maxims, or Rules of human action derived from subjective causes, do not of themselves necessarily agree with those that are objective and universal, Reason can only prescribe this supreme Law as an absolute Imperative of prohibition or command.
The Laws of Freedom as Moral, Juridical, and Ethical. —The Laws of Freedom, as distinguished from the Laws of Nature, are moral Laws. So far as they refer only to external actions and their lawfulness, they are called Juridical; but if they also require that, as Laws, they shall themselves be the determining Principles of our actions, they are Ethical. The agreement of an action with Juridical Laws, is its Legality; the agreement of an action with Ethical Laws, is its Morality. The Freedom to which the former laws refer, can only be Freedom in external practice; but the Freedom to which the latter laws refer, is Freedom in the internal as well as the external exercise of the activity of the Will in so far as it is determined by Laws of Reason. So, in Theoretical Philosophy, it is said that only the objects of the external senses are in Space, but all the objects both of internal and external sense are in Time; because the representations of both, as being representations, so far belong all to the internal sense. In like manner, whether Freedom is viewed in reference to the external or the internal action of the Will, its Laws, as pure practical Laws of Reason for the free activity of the Will generally, must at the same time be inner Principles for its determination, although they may not always be considered in this relation.
II.: The Idea and Necessity of a Metaphysic of Morals.
The Laws of Nature Rational and also Empirical. —It has been shown in The Metaphysical Principles of the Science of Nature, that there must be Principles à priori for the Natural Science that has to deal with the objects of the external senses. And it was further shown that it is possible, and even necessary, to formulate a System of these Principles under the name of a ‘Metaphysical Science of Nature,’ as a preliminary to Experimental Physics regarded as Natural Science applied to particular objects of experience. But this latter Science, if care be taken to keep its generalizations free from error, may accept many propositions as universal on the evidence of experience, although if the term ‘Universal’ be taken in its strict sense, these would necessarily have to be deduced by the Metaphysical Science from Principles à priori. Thus Newton accepted the principle of the Equality of Action and Reaction as established by experience, and yet he extended it as a universal Law over the whole of material Nature. The Chemists go even farther, grounding their most general Laws regarding the combination and decomposition of the materials of bodies wholly upon experience; and yet they trust so completely to the Universality and Necessity of those laws, that they have no anxiety as to any error being found in propositions founded upon experiments conducted in accordance with them.
Moral Laws à priori and Necessary. —But it is otherwise with Moral Laws. These, in contradistinction to Natural Laws, are only valid as Laws, in so far as they can be rationally established à priori and comprehended as necessary. In fact, conceptions and judgments regarding ourselves and our conduct have no moral significance, if they contain only what may be learned from experience; and when any one is, so to speak, misled into making a Moral Principle out of anything derived from this latter source, he is already in danger of falling into the coarsest and most fatal errors.
If the Philosophy of Morals were nothing more than a Theory of Happiness ( Eudæmonism ), it would be absurd to search after Principles à priori as a foundation for it. For however plausible it may sound to say that Reason, even prior to experience, can comprehend by what means we may attain to a lasting enjoyment of the real pleasures of life, yet all that is taught on this subject à priori is either tautological, or is assumed wholly without foundation. It is only Experience that can show what will bring us enjoyment. The natural impulses directed towards nourishment, the sexual instinct, or the tendency to rest and motion, as well as the higher desires of honour, the acquisition of knowledge, and such like, as developed with our natural capacities, are alone capable of showing in what those enjoyments are to be found. And, further, the knowledge thus acquired, is available for each individual merely in his own way; and it is only thus he can learn the means by which he has to seek those enjoyments. All specious rationalizing à priori, in this connection, is nothing at bottom but carrying facts of Experience up to generalizations by induction ( secundum principia generalia non universalia ); and the generality thus attained is still so limited that numberless exceptions must be allowed to every individual in order that he may adapt the choice of his mode of life to his own particular inclinations and his capacity for pleasure. And, after all, the individual has really to acquire his Prudence at the cost of his own suffering or that of his neighbours.
But it is quite otherwise with the Principles of Morality. They lay down Commands for every one without regard to his particular inclinations, and merely because and so far as he is free, and has a practical Reason. Instruction in the Laws of Morality is not drawn from observation of oneself or of our animal nature, nor from perception of the course of the world in regard to what happens, or how men act. 1 But Reason commands how we ought to act, even although no example of such action were to be found; nor does Reason give any regard to the Advantage which may accrue to us by so acting, and which Experience could alone actually show. For, although Reason allows us to seek what is for our advantage in every possible way, and although, founding upon the evidence of Experience, it may further promise that greater advantages will probably follow on the average from the observance of her commands than from their transgression, especially if Prudence guides the conduct, yet the authority of her precepts as Commands does not rest on such considerations. They are used by Reason only as Counsels, and by way of a counterpoise against seductions to an opposite course, when adjusting beforehand the equilibrium of a partial balance in the sphere of Practical Judgment, in order thereby to secure the decision of this Judgment, according to the due weight of the à priori Principles of a pure Practical Reason.
The Necessity of a Metaphysic of Morals. —‘ Metaphysics ’ designates any System of Knowledge à priori that consists of pure Conceptions. Accordingly a Practical Philosophy not having Nature, but the Freedom of the Will for its object, will presuppose and require a Metaphysic of Morals. It is even a Duty to have such a Metaphysic; and every man does, indeed, possess it in himself, although commonly but in an obscure way. For how could any one believe that he has a source of universal Law in himself, without Principles à priori? And just as in a Metaphysic of Nature there must be principles regulating the application of the universal supreme Principles of Nature to objects of Experience, so there cannot but be such principles in the Metaphysic of Morals; and we will often have to deal objectively with the particular nature of man as known only by Experience, in order to show in it the consequences of these universal Moral Principles. But this mode of dealing with these Principles in their particular applications will in no way detract from their rational purity, or throw doubt on their à priori origin. In other words, this amounts to saying that a Metaphysic of Morals cannot be founded on Anthropology as the Empirical Science of Man, but may be applied to it.
Moral Anthropology. —The counterpart of a Metaphysic of Morals, and the other member of the Division of Practical Philosophy, would be a Moral Anthropology, as the Empirical Science of the Moral Nature of Man. This Science would contain only the subjective conditions that hinder or favour the realization in practice of the universal moral Laws in human Nature, with the means of propagating, spreading, and strengthening the Moral Principles,—as by the Education of the young and the instruction of the people,—and all other such doctrines and precepts founded upon experience and indispensable in themselves, although they must neither precede the metaphysical investigation of the Principles of Reason, nor be mixed up with it. For, by doing so, there would be a great danger of laying down false, or at least very flexible Moral Laws, which would hold forth as unattainable what is not attained only because the Law has not been comprehended and presented in its purity, in which also its strength consists. Or, otherwise, spurious and mixed motives might be adopted instead of what is dutiful and good in itself; and these would furnish no certain Moral Principles either for the guidance of the Judgment or for the discipline of the heart in the practice of Duty. It is only by Pure Reason, therefore, that Duty can and must be prescribed.
Practical Philosophy in relation to Art. —The higher Division of Philosophy, under which the Division just mentioned stands, is into Theoretical Philosophy and Practical Philosophy. Practical Philosophy is just Moral Philosophy in its widest sense, as has been explained elsewhere. 1 All that is practicable and possible, according to Natural Laws, is the special subject of the activity of Art, and its precepts and rules entirely depend on the Theory of Nature. It is only what is practicable according to Laws of Freedom that can have Principles independent of Theory, for there is no Theory in relation to what passes beyond the determinations of Nature. Philosophy therefore cannot embrace under its practical Division a technical Theory, but only a morally practical Doctrine. But if the dexterity of the Will in acting according to Laws of Freedom, in contradistinction to Nature, were to be also called an Art, it would necessarily indicate an Art which would make a System of Freedom possible like the System of Nature. This would truly be a Divine Art, if we were in a position by means of it to realize completely what Reason prescribes to us, and to put the Idea into practice.
III.: The Division of a Metaphysic of Morals.
Two Elements involved in all Legislation. —All Legislation, whether relating to internal or external action, and whether prescribed à priori by mere Reason or laid down by the Will of another, involves two Elements:—1st, a Law which represents the action that ought to happen as necessary objectively, thus making the action a Duty; 2nd, a Motive which connects the principle determining the Will to this action with the Mental representation of the Law subjectively, so that the Law makes Duty the motive of the Action. By the first element, the action is represented as a Duty, in accordance with the mere theoretical knowledge of the possibility of determining the activity of the Will by practical Rules. By the second element, the Obligation so to act, is connected in the Subject with a determining Principle of the Will as such.
Division of Duties into Juridical and Ethical. — All Legislation, therefore, may be differentiated by reference to its Motive-principle. 1 The Legislation which makes an Action a Duty, and this Duty at the same time a Motive, is ethical. That Legislation which does not include the Motive-principle in the Law, and consequently admits another Motive than the idea of Duty itself, is juridical. In respect of the latter, it is evident that the motives distinct from the idea of Duty, to which it may refer, must be drawn from the subjective (pathological) influences of Inclination and of Aversion, determining the voluntary activity, and especially from the latter: because it is a Legislation which has to be compulsory, and not merely a mode of attracting or persuading. The agreement or non-agreement of an action with the Law, without reference to its Motive, is its Legality; and that character of the action in which the idea of Duty arising from the Law, at the same time forms the Motive of the Action, is its Morality.
Duties specially in accord with a Juridical Legislation, can only be external Duties. For this mode of Legislation does not require that the idea of the Duty, which is internal, shall be of itself the determining Principle of the act of Will; and as it requires a motive suitable to the nature of its laws, it can only connect what is external with the Law. Ethical Legislation, on the other hand, makes internal actions also Duties, but not to the exclusion of the external, for it embraces everything which is of the nature of Duty. And just because ethical Legislation includes within its Law the internal motive of the action as contained in the idea of Duty, it involves a characteristic which cannot at all enter into the Legislation that is external. Hence, Ethical Legislation cannot as such be external, not even when proceeding from a Divine Will, although it may receive Duties which rest on an external Legislation as Duties, into the position of motives, within its own Legislation.
Jurisprudence and Ethics distinguished. —From what has been said, it is evident that all Duties, merely because they are duties, belong to Ethics; and yet the Legislation upon which they are founded is not on that account in all cases contained in Ethics. On the contrary, the Law of many of them lies outside of Ethics. Thus Ethics commands that I must fulfil a promise entered into by Contract, although the other party might not be able to compel me to do so. It adopts the Law ‘ pacta sunt servanda, ’ and the Duty corresponding to it, from Jurisprudence or the Science of Right, by which they are established. It is not in Ethics, therefore, but in Jurisprudence, that the principle of the Legislation lies, that ‘promises made and accepted must be kept.’ Accordingly, Ethics specially teaches that if the Motive-principle of external compulsion which Juridical Legislation connects with a Duty is even let go, the idea of Duty alone is sufficient of itself as a Motive. For were it not so, and were the Legislation itself not juridical, and consequently the Duty arising from it not specially a Duty of Right as distinguished from a Duty of Virtue, then Fidelity in the performance of acts, to which the individual may be bound by the terms of a Contract, would have to be classified with acts of Benevolence and the Obligation that underlies them, which cannot be correct. To keep one’s promise is not properly a Duty of Virtue, but a Duty of Right; and the performance of it can be enforced by external Compulsion. But to keep one’s promise, even when no Compulsion can be applied to enforce it, is, at the same time, a virtuous action, and a proof of Virtue. Jurisprudence as the Science of Right, and Ethics as the Science of Virtue, are therefore distinguished not so much by their different Duties, as rather by the difference of the Legislation which connects the one or the other kind of motive with their Laws.
Ethical Legislation is that which cannot be external, although the Duties it prescribes may be external as well as internal. Juridical Legislation is that which may also be external. Thus it is an external duty to keep a promise entered into by Contract; but the injunction to do this merely because it is a duty, without regard to any other motive, belongs exclusively to the internal Legislation. It does not belong thus to the ethical sphere as being a particular kind of duty or a particular mode of action to which we are bound,—for it is an external duty in Ethics as well as in Jurisprudence, — but it is because the Legislation in the case referred to is internal, and cannot have an external Lawgiver, that the Obligation is reckoned as belonging to Ethics. For the same reason, the Duties of Benevolence, although they are external Duties as Obligations to external actions, are, in like manner, reckoned as belonging to Ethics, because they can only be enjoined by Legislation that is internal.—Ethics has no doubt its own peculiar Duties,—such as those towards oneself,—but it has also Duties in common with Jurisprudence, only not under the same mode of Obligation. In short, the peculiarity of Ethical Legislation is to enjoin the performance of certain actions merely because they are Duties, and to make the Principle of Duty itself—whatever be its source or occasion—the sole sufficing motive of the activity of the Will. Thus, then, there are many ethical Duties that are directly such; and the inner Legislation also makes the others—all and each of them— indirectly Ethical.
- The Deduction of the Division of a System is the proof of its completeness as well as of its continuity, so that there may be a logical transition from the general conception divided to the members of the Division, and through the whole series of the subdivisions without any break or leap in the arrangement ( divisio per saltum ). Such a Division is one of the most difficult conditions for the architect of a System to fulfil. There is even some doubt as to what is the highest Conception that is primarily divided into Right and Wrong ( aut fas aut nefas ). It is assuredly the conception of the activity of the Free-will in general. In like manner, the expounders of Ontology start from ‘ Something ’ and ‘ Nothing, ’ without perceiving that these are already members of a Division for which the highest divided conception is awanting, and which can be no other than that of ‘ Thing ’ in general.
GENERAL DIVISIONS OF THE METAPHYSIC OF MORALS.
I.: Division of the Metaphysic of Morals as a System of Duties generally.
1. All Duties are either Duties of Right, that is, Juridical Duties ( Officia Juris ), or Duties of Virtue, that is, Ethical Duties ( Officia Virtutis s. ethica ). Juridical Duties are such as may be promulgated by external Legislation; Ethical Duties are those for which such legislation is not possible. The reason why the latter cannot be properly made the subject of external Legislation is because they relate to an End or final purpose, which is itself, at the same time, embraced in these Duties, and which it is a Duty for the individual to have as such. But no external Legislation can cause any one to adopt a particular intention, or to propose to himself a certain purpose; for this depends upon an internal condition or act of the mind itself. However, external actions conducive to such a mental condition may be commanded, without its being implied that the individual will of necessity make them an End to himself.
- But why, then, it may be asked, is the Science of Morals or Moral Philosophy, commonly entitled—especially by Cicero—the Science of Duty and not also the Science of Right, since Duties and Rights refer to each other? The reason is this. We know our own Freedom — from which all Moral Laws and consequently all Rights as well as all Duties arise — only through the Moral Imperative, which is an immediate injunction of Duty; whereas the conception of Right as a ground of putting others under Obligation has afterwards to be developed out of it.
2. In the Doctrine of Duty, Man may and ought to be represented in accordance with the nature of his faculty of Freedom, which is entirely supra-sensible. He is, therefore, to be represented purely according to his Humanity as a Personality independent of physical determinations ( homo noumenon ), in distinction from the same person as a Man modified with these determinations ( homo phenomenon ). Hence the conceptions of Right and End when referred to Duty, in view of this twofold quality, give the following Division:—
II.: Division of the Metaphysic of Morals according to Relations of Obligation.
As the Subjects between whom a relation of Right to Duty is apprehended—whether it actually exist or not — admit of being conceived in various juridical relations to each other, another Division may be proposed from this point of view, as follows:—
DIVISION possible according to the Subjective Relation of those who bind under Obligations, and those who are bound under Obligations.
1.
The juridical Relation of Man to Beings who have neither Right nor Duty.
Vacat. —There is no such Relation. For such Beings are irrational, and they neither put us under Obligation, nor can we be put under Obligation by them.
2.
The juridical Relation of Man to Beings who have both Rights and Duties.
Adest. —There is such a Relation. For it is the Relation of Men to Men.
3.
The juridical Relation of Man to Beings who have only Duties and no Rights.
Vacat. —There is no such Relation. For such Beings would be Men without juridical Personality, as Slaves or Bondsmen.
4.
The juridical Relation of Man to a Being who has only Rights and no Duties—( God ).
Vacat. —There is no such Relation in mere Philosophy, because such a Being is not an object of possible experience.
A real relation between Right and Duty is therefore found, in this scheme, only in No. 2. The reason why such is not likewise found in No. 4 is, because it would constitute a transcendent Duty, that is, one to which no corresponding subject can be given that is external and capable of imposing Obligation. Consequently the Relation from the theoretical point of view is here merely ideal; that is, it is a Relation to an object of thought which we form for ourselves. But the conception of this object is not entirely empty. On the contrary, it is a fruitful conception in relation to ourselves and the maxims of our inner morality, and therefore in relation to practice generally. And it is in this bearing, that all the Duty involved and practicable for us in such a merely ideal relation lies.
III.: Division of the Metaphysic of Morals.
IV.: General preliminary Conceptions defined and explained.
(Philosophia practica universalis.)
Freedom. —The conception of Freedom is a conception of pure Reason. It is therefore transcendent in so far as regards Theoretical Philosophy; for it is a conception for which no corresponding instance or example can be found or supplied in any possible experience. Accordingly Freedom is not presented as an object of any theoretical knowledge that is possible for us. It is in no respect a constitutive, but only a regulative conception; and it can be accepted by the Speculative Reason as at most a merely negative Principle. In the practical sphere of Reason, however, the reality of Freedom may be demonstrated by certain Practical Principles which, as Laws, prove a causality of the Pure Reason in the process of determining the activity of the Will, that is independent of all empirical and sensible conditions. And thus there is established the fact of a pure Will existing in us as the source of all moral conceptions and laws.
Moral Laws and Categorical Imperatives. — On this positive conception of Freedom in the practical relation certain unconditional practical Laws are founded, and they specially constitute Moral Laws. In relation to us as human beings, with an activity of Will modified by sensible influences so as not to be conformable to the pure Will, but as often contrary to it, these Laws appear as Imperatives commanding or prohibiting certain actions; and as such they are Categorical or Unconditional Imperatives. Their categorical and unconditional character distinguishes them from the Technical Imperatives which express the prescriptions of Art, and which always command only conditionally. According to these Categorical Imperatives, certain actions are allowed or disallowed as being morally possible or impossible; and certain of them or their opposites are morally necessary and obligatory. Hence, in reference to such actions, there arises the conception of a Duty whose observance or transgression is accompanied with a Pleasure or Pain of a peculiar kind, known as Moral Feeling. We do not, however, take the Moral Feelings or Sentiments into account, in considering the practical Laws of Reason. For they do not form the foundation or principle of practical Laws of Reason, but only the subjective Effects that arise in the mind on the occasion of our voluntary activity being determined by these Laws. And while they neither add to nor take from the objective validity or influence of the moral Laws in the judgment of Reason, such Sentiments may vary according to the differences of the individuals who experience them.
The following Conceptions are common to Jurisprudence and Ethics as the two main Divisions of the Metaphysic of Morals.
Obligation. — Obligation is the Necessity of a free Action when viewed in relation to a Categorical Imperative of Reason.
- An Imperative is a practical Rule by which an Action, otherwise contingent in itself, is made necessary. It is distinguished from a practical Law, in that such a Law, while likewise representing the Action as necessary, does not consider whether it is internally necessary as involved in the nature of the Agent—say as a holy Being—or is contingent to him, as in the case of Man as we find him; for, where the first condition holds good, there is in fact no Imperative. Hence an Imperative is a Rule which not only represents but makes a subjectively contingent action necessary; and it, accordingly, represents the Subject as being (morally) necessitated to act in accordance with this Rule. — A Categorical or Unconditional Imperative is one which does not represent the action in any way mediately through the conception of an End that is to be attained by it; but it presents the action to the mind as objectively necessary by the mere representation of its form as an action, and thus makes it necessary. Such Imperatives cannot be put forward by any other practical Science than that which prescribes Obligations, and it is only the Science of Morals that does this. All other Imperatives are technical, and they are altogether conditional. The ground of the possibility of Categorical Imperatives, lies in the fact that they refer to no determination of the activity of the Will by which a purpose might be assigned to it, but solely to its Freedom.
The Allowable. — Every Action is allowed ( licitum ) which is not contrary to Obligation; and this Freedom not being limited by an opposing Imperative, constitutes a Moral Right as a warrant or title of action ( facultas moralis ). From this it is at once evident what actions are disallowed or illicit ( illicita ).
Duty. — Duty is the designation of any Action to which any one is bound by an obligation. It is therefore the subject-matter of all Obligation. Duty as regards the Action concerned, may be one and the same, and yet we may be bound to it in various ways.
- The Categorical Imperative, as expressing an Obligation in respect to certain actions, is a morally practical Law. But because Obligation involves not merely practical Necessity expressed in a Law as such, but also actual Necessitation, the Categorical Imperative is a Law either of Command or Prohibition, according as the doing or not doing of an action is represented as a Duty. An Action which is neither commanded nor forbidden, is merely allowed, because there is no Law restricting Freedom, nor any Duty in respect of it. Such an Action is said to be morally indifferent ( indifferens, adiaphoron, res meræ facultatis ). It may be asked whether there are such morally indifferent actions; and if there are, whether in addition to the preceptive and prohibitive Law ( lex præceptiva et prohibitiva, lex mandati et vetiti ), there is also required a Permissive Law ( lex permissiva ), in order that one may be free in such relations to act, or to forbear from acting, at his pleasure? If it were so, the moral Right in question would not, in all cases, refer to actions that are indifferent in themselves ( adiaphora ); for no special Law would be required to establish such a Right, considered according to Moral Laws.
Act; Agent. —An Action is called an Act —or moral Deed—in so far as it is subject to Laws of Obligation, and consequently in so far as the Subject of it is regarded with reference to the Freedom of his choice in the exercise of his Will. The Agent —as the actor or doer of the deed—is regarded as, through the act, the Author of its effect; and this effect, along with the action itself, may be imputed to him, if he previously knew the Law, in virtue of which an Obligation rested upon him.
Person; Imputation. —A Person is a Subject who is capable of having his actions imputed to him. Moral Personality is, therefore, nothing but the Freedom of a rational Being under Moral Laws; and it is to be distinguished from psychological Freedom as the mere faculty by which we become conscious of ourselves in different states of the Identity of our existence. Hence it follows that a Person is properly subject to no other Laws than those he lays down for himself, either alone or in conjunction with others.
Thing. —A Thing is what is incapable of being the subject of Imputation. Every object of the free activity of the Will, which is itself void of freedom, is therefore called a Thing ( res corporealis ).
Right and Wrong. — Right or Wrong applies, as a general quality, to an Act ( rectum aut minus rectum ), in so far as it is in accordance with Duty or contrary to Duty ( factum licitum aut illicitum ), no matter what may be the subject or origin of the Duty itself. An act that is contrary to Duty is called a Transgression ( reatus ).
Fault; Crime. —An unintentional Transgression of a Duty, which is, nevertheless, imputable to a Person, is called a mere Fault ( culpa ). An intentional Transgression—that is, an act accompanied with the consciousness that it is a Transgression—constitutes a Crime ( dolus ).
Just and Unjust. —Whatever is juridically in accordance with External Laws, is said to be Just ( Jus, iustum ); and whatever is not juridically in accordance with external Laws, is Unjust ( unjustum ).
Collision of Duties. —A Collision of Duties or Obligations ( collisio officiorum s. obligationum ) would be the result of such a relation between them that the one would annul the other, in whole or in part. Duty and Obligation, however, are conceptions which express the objective practical Necessity of certain actions, and two opposite Rules cannot be objective and necessary at the same time; for if it is a Duty to act according to one of them, it is not only no Duty to act according to an opposite Rule, but to do so would even be contrary to Duty. Hence a Collision of Duties and Obligations is entirely inconceivable ( obligationes non colliduntur ). There may, however, be two grounds of Obligation ( rationes obligandi ), connected with an individual under a Rule prescribed for himself, and yet neither the one nor the other may be sufficient to constitute an actual Obligation ( rationes obligandi non obligantes ); and in that case the one of them is not a Duty. If two such grounds of Obligation are actually in collision with each other, Practical Philosophy does not say that the stronger Obligation is to keep the upper hand ( fortior obligatio vincit ), but that the stronger ground of Obligation is to maintain its place ( fortior obligandi ratio vincit ).
Natural and Positive Laws. — Obligatory Laws for which an external Legislation is possible, are called generally External Laws. Those External Laws, the obligatoriness of which can be recognised by Reason à priori even without an external Legislation, are called Natural Laws. Those Laws, again, which are not obligatory without actual External Legislation, are called Positive Laws. An External Legislation, containing pure Natural Laws, is therefore conceivable; but in that case a previous Natural Law must be presupposed to establish the authority of the Lawgiver by the Right to subject others to Obligation through his own act of Will.
Maxims. — The Principle which makes a certain action a Duty, is a Practical Law. The Rule of the Agent or Actor, which he forms as a Principle for himself on subjective grounds, is called his Maxim. Hence, even when the Law is one and invariable, the Maxims of the Agent may yet be very different.
The Categorical Imperative. —The Categorical Imperative only expresses generally what constitutes Obligation. It may be rendered by the following Formula: ‘Act according to a Maxim which can be adopted at the same time as a Universal Law.’ Actions must therefore be considered, in the first place, according to their subjective Principle; but whether this principle is also valid objectively, can only be known by the criterion of the Categorical Imperative. For Reason brings the principle or maxim of any action to the test, by calling upon the Agent to think of himself in connection with it as at the same time laying down a Universal Law, and to consider whether his action is so qualified as to be fit for entering into such a Universal Legislation.
The simplicity of this Law, in comparison with the great and manifold Consequences which may be drawn from it, as well as its commanding authority and supremacy without the accompaniment of any visible motive or sanction, must certainly at first appear very surprising. And we may well wonder at the power of our Reason to determine the activity of the Will by the mere idea of the qualification of a Maxim for the universality of a practical Law, especially when we are taught thereby that this practical Moral Law first reveals a property of the Will which the Speculative Reason would never have come upon either by Principles à priori, or from any experience whatever; and even if it had ascertained the fact, it could never have theoretically established its possibility. This practical Law, however, not only discovers the fact of that property of the Will, which is Freedom, but irrefutably establishes it. Hence it will be less surprising to find that the Moral Laws are undemonstrable, and yet apodictic, like the mathematical Postulates; and that they, at the same time, open up before us a whole field of practical knowledge, from which Reason, on its theoretical side, must find itself entirely excluded with its speculative idea of Freedom and all such ideas of the Supersensible generally.
The conformity of an Action to the Law of Duty constitutes its Legality; the conformity of the Maxim of the Action with the Law constitutes its Morality. A Maxim is thus a subjective Principle of Action, which the individual makes a Rule for himself as to how in fact he will act.
On the other hand, the Principle of Duty is what Reason absolutely, and therefore objectively and universally, lays down in the form of a Command to the individual, as to how he ought to act.
The Supreme Principle of the Science of Morals accordingly is this: ‘Act according to a Maxim which can likewise be valid as a Universal Law.’ — Every Maxim which is not qualified according to this condition, is contrary to Morality.
- Laws arise from the Will, viewed generally as Practical Reason; Maxims spring from the activity of the Will in the process of Choice. The latter in Man, is what constitutes free-will. The Will which refers to nothing else than mere Law, can neither be called free nor not free; because it does not relate to actions immediately, but to the giving of a Law for the Maxim of actions; it is therefore the Practical Reason itself. Hence as a Faculty, it is absolutely necessary in itself, and is not subject to any external necessitation. It is, therefore, only the act of Choice in the voluntary process, that can be called free.
- The Freedom of the act of Will, however, is not to be defined as a Liberty of Indifference ( libertas indifferentiæ ), that is, as a capacity of choosing to act for or against the Law. The voluntary process, indeed, viewed as a phenomenal appearance, gives many examples of this choosing in experience; and some have accordingly so defined the free-will. For Freedom, as it is first made knowable by the Moral Law, is known only as a negative Property in us, as constituted by the fact of not being necessitated to act by sensible principles of determination. Regarded as a noumenal reality, however, in reference to Man as a pure rational Intelligence, the act of the Will cannot be at all theoretically exhibited; nor can it therefore be explained how this power can act necessitatingly in relation to the sensible activity in the process of Choice, or consequently in what the positive quality of Freedom consists. Only thus much we can see into and comprehend, that although Man, as a Being belonging to the world of Sense, exhibits—as experience shows—a capacity of choosing not only conformably to the Law but also contrary to it, his Freedom as a rational Being belonging to the world of Intelligence cannot be defined by reference merely to sensible appearances. For sensible phenomena cannot make a supersensible object—such as free-will is—intelligible; nor can Freedom ever be placed in the mere fact that the rational Subject can make a choice in conflict with his own Lawgiving Reason, although experience may prove that it happens often enough, notwithstanding our inability to conceive how it is possible. For it is one thing to admit a proposition as based on experience, and another thing to make it the defining Principle and the universal differentiating mark of the act of free-will, in its distinction from the arbitrium brutum s. servum; because the empirical proposition does not assert that any particular characteristic necessarily belongs to the conception in question, but this is requisite in the process of Definition.—Freedom in relation to the internal Legislation of Reason, can alone be properly called a Power; the possibility of diverging from the Law thus given, is an incapacity or want of Power. How then can the former be defined by the latter? It could only be by a Definition which would add to the practical conception of the free-will, its exercise as shown by experience; but this would be a hybrid Definition which would exhibit the conception in a false light.
Law; Legislator. —A morally practical Law is a proposition which contains a Categorical Imperative or Command. He who commands by a Law ( imperans ) is the Lawgiver or Legislator. He is the Author of the Obligation that accompanies the Law, but he is not always the Author of the Law itself. In the latter case, the Law would be positive, contingent, and arbitrary. The Law which is imposed upon us à priori and unconditionally by our own Reason, may also be expressed as proceeding from the Will of a Supreme Lawgiver or the Divine Will. Such a Will as Supreme can consequently have only Rights and not Duties; and it only indicates the idea of a moral Being whose Will is Law for all, without conceiving of Him as the Author of that Will.
Imputation; Judgment; Judge. — Imputation, in the moral sense, is the Judgment by which any one is declared to be the Author or free Cause of an action which is then regarded as his moral fact or deed, and is subjected to Law. When the Judgment likewise lays down the juridical consequences of the Deed, it is judicial or valid ( imputatio judiciaria s. valida ); otherwise it would be only adjudicative or declaratory ( imputatio dijudicatoria ).—That Person—individual or collective—who is invested with the Right to impute actions judicially, is called a Judge or a Court ( judex s. forum ).
Merit and Demerit. —When any one does, in conformity with Duty, more than he can be compelled to do by the Law, it is said to be meritorious ( meritum ). What is done only in exact conformity with the Law, is what is due ( debitum ). And when less is done than can be demanded to be done by the Law, the result is moral Demerit ( demeritum ) or Culpability.
Punishment; Reward. —The juridical Effect or Consequence of a culpable act of Demerit is Punishment ( poena ); that of a meritorious act is Reward ( præmium ), assuming that this Reward was promised in the Law and that it formed the motive of the action. The coincidence or exact conformity of conduct to what is due, has no juridical effect.—Benevolent Remuneration ( remuneratio s. repensio benefica ) has no place in juridical Relations.
- The good or bad Consequences arising from the performance of an obligated action—as also the Consequences arising from failing to perform a meritorious action—cannot be imputed to the Agent ( modus imputationis tollens ).
- The good Consequences of a meritorious action—as also the bad Consequences of a wrongful action—may be imputed to the Agent ( modus imputationis poneus ).
- The degree of the Imputability of Actions is to be reckoned according to the magnitude of the hindrances or obstacles which it has been necessary for them to overcome. The greater the natural hindrances in the sphere of sense, and the less the moral hindrance of Duty, so much the more is a good Deed imputed as meritorious. This may be seen by considering such examples as rescuing a man who is an entire stranger from great distress, and at very considerable sacrifice.—Conversely, the less the natural hindrance, and the greater the hindrance on the ground of Duty, so much the more is a Transgression imputable as culpable.—Hence the state of mind of the Agent or Doer of a deed makes a difference in imputing its consequences, according as he did it in passion or performed it with coolness and deliberation.
INTRODUCTION to THE SCIENCE OF RIGHT.
GENERAL DEFINITIONS AND DIVISIONS.
A.: What the Science of Right is.
The Science of Right has for its object the Principles of all the Laws which it is possible to promulgate by external legislation. Where there is such a legislation, it becomes in actual application to it, a system of positive Right and Law; and he who is versed in the knowledge of this System is called a Jurist or Jurisconsult ( jurisconsultus ). A practical Jurisconsult ( jurisperitus ), or a professional Lawyer, is one who is skilled in the knowledge of positive external Laws, and who can apply them to cases that may occur in experience. Such practical knowledge of positive Right, and Law, may be regarded as belonging to Jurisprudence ( Jurisprudentia ) in the original sense of the term. But the theoretical knowledge of Right and Law in Principle, as distinguished from positive Laws and empirical cases, belongs to the pure Science of Right ( Jurisscientia ). The Science of Right thus designates the philosophical and systematic knowledge of the Principles of Natural Right. And it is from this Science that the immutable Principles of all positive Legislation must be derived by practical Jurists and Lawgivers.
B.: What is Right?
This question may be said to be about as embarrassing to the Jurist as the well-known question, ‘What is Truth?’ is to the Logician. It is all the more so, if, on reflection, he strives to avoid tautology in his reply, and recognise the fact that a reference to what holds true merely of the laws of some one country at a particular time, is not a solution of the general problem thus proposed. It is quite easy to state what may be right in particular cases ( quid sit juris ), as being what the laws of a certain place and of a certain time say or may have said; but it is much more difficult to determine whether what they have enacted is right in itself, and to lay down a universal Criterion by which Right and Wrong in general, and what is just and unjust, may be recognised. All this may remain entirely hidden even from the practical Jurist until he abandon his empirical principles for a time, and search in the pure Reason for the sources of such judgments, in order to lay a real foundation for actual positive Legislation. In this search his empirical Laws may, indeed, furnish him with excellent guidance; but a merely empirical system that is void of rational principles is, like the wooden head in the fable of Phædrus, fine enough in appearance, but unfortunately it wants brain.
1. The conception of Right, —as referring to a corresponding Obligation which is the moral aspect of it,—in the first place, has regard only to the external and practical relation of one Person to another, in so far as they can have influence upon each other, immediately or mediately, by their Actions as facts. 2. In the second place, the conception of Right does not indicate the relation of the action of an individual to the wish or the mere desire of another, as in acts of benevolence or of unkindness, but only the relation of his free action to the freedom of action of the other. 3. And, in the third place, in this reciprocal relation of voluntary actions, the conception of Right does not take into consideration the matter of the act of Will in so far as the end which any one may have in view in willing it, is concerned. In other words, it is not asked in a question of Right whether any one on buying goods for his own business realizes a profit by the transaction or not; but only the form of the transaction is taken into account, in considering the relation of the mutual acts of Will. Acts of Will or voluntary Choice are thus regarded only in so far as they are free, and as to whether the action of one can harmonize with the Freedom of another, according to a universal Law.
Right, therefore, comprehends the whole of the conditions under which the voluntary actions of any one Person can be harmonized in reality with the voluntary actions of every other Person, according to a universal Law of Freedom.
C.: Universal Principle of Right.
‘Every Action is right which in itself, or in the maxim on which it proceeds, is such that it can co-exist along with the Freedom of the Will of each and all in action, according to a universal Law.’
If, then, my action or my condition generally can co-exist with the freedom of every other, according to a universal Law, any one does me a wrong who hinders me in the performance of this action, or in the maintenance of this condition. For such a hindrance or obstruction cannot co-exist with Freedom according to universal Laws.
It follows also that it cannot be demanded as a matter of Right, that this universal Principle of all maxims shall itself be adopted as my maxim, that is, that I shall make it the maxim of my actions. For any one may be free, although his Freedom is entirely indifferent to me, or even if I wished in my heart to infringe it, so long as I do not actually violate that freedom by my external action. Ethics, however, as distinguished from Jurisprudence, imposes upon me the obligation to make the fulfilment of Right a maxim of my conduct.
The universal Law of Right may then be expressed, thus: ‘Act externally in such a manner that the free exercise of thy Will may be able to co-exist with the Freedom of all others, according to a universal Law.’ This is undoubtedly a Law which imposes obligation upon me; but it does not at all imply and still less command that I ought, merely on account of this obligation, to limit my freedom to these very conditions. Reason in this connection says only that it is restricted thus far by its Idea, and may be likewise thus limited in fact by others; and it lays this down as a Postulate which is not capable of further proof. As the object in view is not to teach Virtue, but to explain what Right is, thus far the Law of Right, as thus laid down, may not and should not be represented as a motive-principle of action.
D.: Right is conjoined with the Title or Authority to compel.
The resistance which is opposed to any hindrance of an effect, is in reality a furtherance of this effect, and is in accordance with its accomplishment. Now, everything that is wrong is a hindrance of freedom, according to universal Laws; and Compulsion or Constraint of any kind is a hindrance or resistance made to Freedom. Consequently, if a certain exercise of Freedom is itself a hindrance of the Freedom that is according to universal Laws, it is wrong; and the compulsion or constraint which is opposed to it is right, as being a hindering of a hindrance of Freedom, and as being in accord with the Freedom which exists in accordance with universal Laws. Hence, according to the logical principle of Contradiction, all Right is accompanied with an implied Title or warrant to bring compulsion to bear on any one who may violate it in fact.
E.: Strict Right may be also represented as the possibility of a universal reciprocal Compulsion in harmony with the Freedom of all according to universal Laws.
This proposition means that Right is not to be regarded as composed of two different elements—Obligation according to a Law, and a Title on the part of one who has bound another by his own free choice, to compel him to perform. But it imports that the conception of Right may be viewed as consisting immediately in the possibility of a universal reciprocal Compulsion, in harmony with the Freedom of all. As Right in general has for its object only what is external in actions, Strict Right, as that with which nothing ethical is intermingled, requires no other motives of action than those that are merely external; for it is then pure Right, and is unmixed with any prescriptions of Virtue. A strict Right, then, in the exact sense of the term, is that which alone can be called wholly external. Now such Right is founded, no doubt, upon the consciousness of the Obligation of every individual according to the Law; but if it is to be pure as such, it neither may nor should refer to this consciousness as a motive by which to determine the free act of the Will. For this purpose, however, it founds upon the principle of the possibility of an external Compulsion, such as may co-exist with the freedom of every one according to universal Laws. Accordingly, then, where it is said that a Creditor has a right to demand from a Debtor the payment of his debt, this does not mean merely that he can bring him to feel in his mind that Reason obliges him to do this; but it means that he can apply an external compulsion to force any such one so to pay, and that this compulsion is quite consistent with the Freedom of all, including the parties in question, according to a universal Law. Right and the Title to compel, thus indicate the same thing.
- The Law of Right, as thus enunciated, is represented as a reciprocal Compulsion necessarily in accordance with the Freedom of every one, under the principle of a universal Freedom. It is thus, as it were, a representative Construction of the conception of Right, by exhibiting it in a pure intuitive perception à priori, after the analogy of the possibility of the free motions of bodies under the physical Law of the Equality of Action and Reaction. Now, as in pure Mathematics, we cannot deduce the properties of its objects immediately from a mere abstract conception, but can only discover them by figurative construction or representation of its conceptions; so it is in like manner with the Principle of Right. It is not so much the mere formal Conception of Right, but rather that of a universal and equal reciprocal Compulsion as harmonizing with it, and reduced under general laws, that makes representation of that conception possible. But just as those conceptions presented in Dynamics are founded upon a merely formal representation of pure Mathematics as presented in Geometry, Reason has taken care also to provide the Understanding as far as possible with intuitive presentations à priori in behoof of a Construction of the conception of Right. The Right in geometrical lines ( rectum ) is opposed as the Straight to that which is Curved, and to that which is Oblique. In the first opposition there is involved an inner quality of the lines of such a nature that there is only one straight or right Line possible between two given points. In the second case, again, the positions of two intersecting or meeting Lines are of such a nature that there can likewise be only one line called the Perpendicular, which is not more inclined to the one side than the other, and it divides space on either side into two equal parts. After the manner of this analogy, the Science of Right aims at determining what every one shall have as his own with mathematical exactness; but this is not to be expected in the ethical Science of Virtue, as it cannot but allow a certain latitude for exceptions. But without passing into the sphere of Ethics, there are two cases—known as the equivocal Right of Equity and Necessity—which claim a juridical decision, yet for which no one can be found to give such a decision, and which, as regards their relation to Rights, belong, as it were, to the ‘ Intermundia ’ of Epicurus. These we must at the outset take apart from the special exposition of the Science of Right, to which we are now about to advance; and we may consider them now by way of supplement to these introductory Explanations, in order that their uncertain conditions may not exert a disturbing influence on the fixed Principles of the proper doctrine of Right.
F.: Supplementary Remarks on Equivocal Right.
(Jus æquivocum.)
With every Right, in the strict acceptation ( jus strictum ), there is conjoined a Right to compel. But it is possible to think of other Rights of a wider kind ( jus latum ) in which the Title to compel cannot be determined by any law. Now there are two real or supposed Rights of this kind — Equity and the Right of Necessity. The first alleges a Right that is without compulsion; the second adopts a compulsion that is without Right. This equivocalness, however, can be easily shown to rest on the peculiar fact that there are cases of doubtful Right, for the decision of which no Judge can be appointed.
I.: EQUITY.
Equity (Æquitas), regarded objectively, does not properly constitute a claim upon the moral Duty of benevolence or beneficence on the part of others; but whoever insists upon anything on the ground of Equity, founds upon his Right to the same. In this case, however, the conditions are awanting that are requisite for the function of a Judge in order that he might determine what or what kind of satisfaction can be done to this claim. When one of the partners of a Mercantile Company, formed under the condition of Equal profits, has, however, done more than the other members, and in consequence has also lost more, it is in accordance with Equity that he should demand from the Company more than merely an equal share of advantage with the rest. But, in relation to strict Right, —if we think of a Judge considering his case,—he can furnish no definite data to establish how much more belongs to him by the Contract; and in case of an action at law, such a demand would be rejected. A domestic servant, again, who might be paid his wages due to the end of his year of service in a coinage that became depreciated within that period, so that it would not be of the same value to him as it was when he entered on his engagement, cannot claim by Right to be kept from loss on account of the unequal value of the money if he receives the due amount of it. He can only make an appeal on the ground of Equity,—a dumb goddess who cannot claim a hearing of Right,—because there was nothing bearing on this point in the Contract of Service, and a Judge cannot give a decree on the basis of vague or indefinite conditions.
Hence it follows, that a Court of Equity for the decision of disputed questions of Right, would involve a contradiction. It is only where his own proper Rights are concerned, and in matters in which he can decide, that a Judge may or ought to give a hearing to Equity. Thus, if the Crown is supplicated to give an indemnity to certain persons for loss or injury sustained in its service, it may undertake the burden of doing so, although, according to strict Right, the claim might be rejected on the ground of the pretext that the parties in question undertook the performance of the service occasioning the loss, at their own risk.
The Dictum of Equity may be put thus: ‘The strictest Right is the greatest Wrong’ ( summum jus summa injuria ). But this evil cannot be obviated by the forms of Right although it relates to a matter of Right; for the grievance that it gives rise to can only be put before a ‘Court of Conscience’ ( forum poli ), whereas every question of Right must be taken before a Civil Court ( forum soli ).
II.: THE RIGHT OF NECESSITY.
The so-called Right of Necessity ( Jus necessitatis ) is the supposed Right or Title, in case of the danger of losing my own life, to take away the life of another who has, in fact, done me no harm. It is evident that, viewed as a doctrine of Right, this must involve a contradiction. For this is not the case of a wrongful aggressor making an unjust assault upon my life, and whom I anticipate by depriving him of his own ( jus inculpatæ tutelæ ); nor consequently is it a question merely of the recommendation of moderation which belongs to Ethics as the Doctrine of Virtue, and not to Jurisprudence as the Doctrine of Right. It is a question of the allowableness of using violence against one who has used none against me.
It is clear that the assertion of such a Right is not to be understood objectively as being in accordance with what a Law would prescribe, but merely subjectively, as proceeding on the assumption of how a sentence would be pronounced by a Court in the case. There can, in fact, be no Criminal Law assigning the penalty of death to a man who, when shipwrecked and struggling in extreme danger for his life, and in order to save it, may thrust another from a plank on which he had saved himself. For the punishment threatened by the Law could not possibly have greater power than the fear of the loss of life in the case in question. Such a Penal Law would thus fail altogether to exercise its intended effect; for the threat of an Evil which is still uncertain —such as Death by a judicial sentence—could not overcome the fear of an Evil which is certain, as Drowning is in such circumstances. An act of violent self-preservation, then, ought not to be considered as altogether beyond condemnation ( inculpabile ); it is only to be adjudged as exempt from punishment ( impunibile ). Yet this subjective condition of impunity, by a strange confusion of ideas, has been regarded by Jurists as equivalent to objective lawfulness.
The Dictum of the Right of Necessity is put in these terms, ‘Necessity has no Law’ ( Necessitas non habet legem ). And yet there cannot be a necessity that could make what is wrong lawful.
It is apparent, then, that in judgments relating both to ‘Equity’ and ‘the Right of Necessity,’ the Equivocations involved arise from an interchange of the objective and subjective grounds that enter into the application of the Principles of Right, when viewed respectively by Reason or by a Judicial Tribunal. What one may have good grounds for recognising as Right in itself, may not find confirmation in a Court of Justice; and what he must consider to be wrong in itself, may obtain recognition in such a Court. And the reason of this is, that the conception of Right is not taken in the two cases in one and the same sense.
DIVISION OF THE SCIENCE OF RIGHT.
A.: General Division of the Duties of Right.
(Juridical Duties.)
In this Division we may very conveniently follow Ulpian, if his three Formulæ are taken in a general sense, which may not have been quite clearly in his mind, but which they are capable of being developed into or of receiving. They are the following:—
- 1. Honeste vive. ‘Live rightly.’ Juridical Rectitude, or Honour ( Honestas juridica ), consists in maintaining one’s own worth as a man in relation to others. This Duty may be rendered by the proposition, ‘Do not make thyself a mere Means for the use of others, but be to them likewise an End.’ This Duty will be explained in the next Formula as an Obligation arising out of the Right of Humanity in our own Person ( Lex justi ).
- 2. Neminem læde. ‘Do Wrong to no one.’ This Formula may be rendered so as to mean, ‘Do no Wrong to any one, even if thou shouldst be under the necessity, in observing this Duty, to cease from all connection with others and to avoid all Society’ ( Lex juridica ).
- 3. Suum cuique tribue. ‘Assign to every one what is his own.’ This may be rendered, ‘Enter, if Wrong cannot be avoided, into a Society with others in which every one may have secured to him what is his own.’—If this Formula were to be simply translated, ‘Give every one his own, ’ it would express an absurdity, for we cannot give any one what he already has. If it is to have a definite meaning, it must therefore run thus, ‘Enter into a state in which every one can have what is his own secured against the action of every other’ ( Lex justitiæ ).
These three classical Formulæ, at the same time, represent principles which suggest a Division of the System of Juridical Duties into Internal Duties, External Duties, and those Connecting Duties which contain the latter as deduced from the Principle of the former by subsumption.
B.: Universal Division of Rights.
I.: Natural Right and Positive Right.
The System of Rights, viewed as a scientific System of Doctrines, is divided into Natural Right and Positive Right. Natural Right rests upon pure rational Principles à priori; Positive or Statutory Right is what proceeds from the Will of a Legislator.
II.: Innate Right and Acquired Right.
The System of Rights may again be regarded in reference to the implied Powers of dealing morally with others as bound by Obligations, that is, as furnishing a legal Title of action in relation to them. Thus viewed, the System is divided into Innate Right and Acquired Right. Innate Right is that Right which belongs to every one by Nature, independent of all juridical acts of experience. Acquired Right is that Right which is founded upon such juridical acts.
Innate Right may also be called the ‘Internal Mine and Thine’ ( Meum vel Tuum internum ); for External Right must always be acquired.
There is only one Innate Right, the Birthright of Freedom.
Freedom is Independence of the compulsory Will of another; and in so far as it can co-exist with the Freedom of all according to a universal Law, it is the one sole original, inborn Right belonging to every man in virtue of his Humanity. There is, indeed, an innate Equality belonging to every man which consists in his Right to be independent of being bound by others to anything more than that to which he may also reciprocally bind them. It is, consequently, the inborn quality of every man in virtue of which he ought to be his own master by Right ( sui juris ). There is, also, the natural quality of Justness attributable to a man as naturally of unimpeachable Right ( justi ), because he has done no Wrong to any one prior to his own juridical actions. And, further, there is also the innate Right of Common Action on the part of every man so that he may do towards others what does not infringe their Rights or take away anything that is theirs unless they are willing to appropriate it; such as merely to communicate thought, to narrate anything, or to promise something whether truly and honestly, or untruly and dishonestly ( veriloquium aut falsiloquium ), for it rests entirely upon these others whether they will believe or trust in it or not. 1 But all these Rights or Titles are already included in the Principle of Innate Freedom, and are not really distinguished from it, even as dividing members under a higher species of Right.
The reason why such a Division into separate Rights has been introduced into the System of Natural Right viewed as including all that is innate, was not without a purpose. Its object was to enable proof to be more readily put forward in case of any controversy arising about an Acquired Right, and questions emerging either with reference to a fact that might be in doubt, or, if that were established, in reference to a Right under dispute. For the party repudiating an obligation, and on whom the burden of proof ( onus probandi ) might be incumbent, could thus methodically refer to his Innate Right of Freedom as specified under various relations in detail, and could therefore found upon them equally as different Titles of Right.
In the relation of Innate Right, and consequently of the Internal ‘Mine’ and ‘Thine,’ there is therefore not Rights, but only one Right. And, accordingly, this highest Division of Rights into Innate and Acquired, which evidently consists of two members extremely unequal in their contents, is properly placed in the Introduction; and the subdivisions of the Science of Right may be referred in detail to the External Mine and Thine.
C.: Methodical Division of the Science of Right.
The highest Division of the System of Natural Right should not be—as it is frequently put—into ‘ Natural Right’ and ‘ Social Right,’ but into Natural Right and Civil Right. The first constitutes Private Right; the second, Public Right. For it is not the ‘ Social state’ but the ‘ Civil state’ that is opposed to the ‘State of Nature;’ for in the ‘State of Nature’ there may well be Society of some kind, but there is no ‘civil’ Society, as an Institution securing the Mine and Thine by public laws. It is thus that Right, viewed under reference to the state of Nature, is specially called Private Right. The whole of the Principles of Right will therefore fall to be expounded under the two subdivisions of Private Right and Public Right.
THE SCIENCE OF RIGHT. PART FIRST. PRIVATE RIGHT. THE SYSTEM OF THOSE LAWS WHICH REQUIRE NO EXTERNAL PROMULGATION.
PRIVATE RIGHT. THE PRINCIPLES OF THE EXTERNAL MINE AND THINE GENERALLY.
CHAPTER FIRST. Of the Mode of having anything External as one’s own.
1.: The meaning of ‘Mine’ in Right.
(Meum Juris.)
Anything is ‘ Mine ’ by Right, or is rightfully Mine, when I am so connected with it, that if any other Person should make use of it without my consent, he would do me a lesion or injury. The subjective condition of the use of anything, is Possession of it.
An external thing, however, as such could only be mine, if I may assume it to be possible that I can be wronged by the use which another might make of it when it is not actually in my possession. Hence it would be a contradiction to have anything External as one’s own, were not the conception of Possession capable of two different meanings, as sensible Possession that is perceivable by the senses, and rational Possession that is perceivable only by the Intellect. By the former is to be understood a physical Possession, and by the latter, a purely juridical Possession of the same object.
The description of an Object as ‘ external to me’ may signify either that it is merely ‘different and distinct from me as a Subject,’ or that it is also ‘a thing placed outside of me, and to be found elsewhere in space or time.’ Taken in the first sense, the term Possession signifies ‘rational Possession;’ and, in the second sense, it must mean ‘Empirical Possession.’ A rational or intelligible Possession, if such be possible, is Possession viewed apart from physical holding or detention ( detentio ).
2.: Juridical Postulate of the Practical Reason.
It is possible to have any external object of my Will as Mine. In other words, a Maxim to this effect—were it to become law—that any object on which the Will can be exerted must remain objectively in itself without an owner, as ‘res nullius,’ is contrary to the Principle of Right.
For an object of any act of my Will, is something that it would be physically within my power to use. Now, suppose there were things that by right should absolutely not be in our power, or, in other words, that it would be wrong or inconsistent with the freedom of all, according to universal Law, to make use of them. On this supposition, Freedom would so far be depriving itself of the use of its voluntary activity, in thus putting useable objects out of all possibility of use. In practical relations, this would be to annihilate them, by making them res nullius, notwithstanding the fact that acts of Will in relation to such things would formally harmonize, in the actual use of them, with the external freedom of all according to universal Laws. Now the pure practical Reason lays down only formal Laws as Principles to regulate the exercise of the Will; and therefore abstracts from the matter of the act of Will, as regards the other qualities of the object, which is considered only in so far as it is an object of the activity of the Will. Hence the practical Reason cannot contain, in reference to such an object, an absolute prohibition of its use, because this would involve a contradiction of external freedom with itself.—An object of my free Will, however, is one which I have the physical capability of making some use of at will, since its use stands in my power ( in potentia ). This is to be distinguished from having the object brought under my disposal ( in potestatem meam reductum ), which supposes not a capability merely, but also a particular act of the free-will. But in order to consider something merely as an object of my Will as such, it is sufficient to be conscious that I have it in my power. It is therefore an assumption à priori of the practical Reason, to regard and treat every object within the range of my free exercise of Will as objectively a possible Mine or Thine.
This Postulate may be called ‘a Permissive Law’ of the practical Reason, as giving us a special title which we could not evolve out of the mere conceptions of Right generally. And this Title constitutes the Right to impose upon all others an obligation, not otherwise laid upon them, to abstain from the use of certain objects of our free Choice, because we have already taken them into our possession. Reason wills that this shall be recognised as a valid Principle, and it does so as practical Reason; and it is enabled by means of this Postulate à priori to enlarge its range of activity in practice.
3.: Possession and Ownership.
Any one who would assert the Right to a thing as his, must be in possession of it as an object. Were he not its actual possessor or owner, he could not be wronged or injured by the use which another might make of it without his consent. For, should anything external to him, and in no way connected with him by Right, affect this object, it could not affect himself as a Subject, nor do him any wrong, unless he stood in a relation of Ownership to it.
4.: Exposition of the Conception of the External Mine and Thine.
There can only be three external Objects of my Will in the activity of Choice:
(1) A Corporeal Thing external to me;
(2) The Free-will of another in the performance of a particular act ( præstatio );
(3) The State of another in relation to myself.
These correspond to the categories of Substance, Causality, and Reciprocity; and they form the practical relations between me and external objects, according to the Laws of Freedom.
- A. I can only call a corporeal thing or an object in space ‘mine,’ when, even although not in physical possession of it, I am able to assert that I am in possession of it in another real non-physical sense. Thus, I am not entitled to call an apple mine merely because I hold it in my hand or possess it physically; but only when I am entitled to say, ‘I possess it, although I have laid it out of my hand, and wherever it may lie.’ In like manner, I am not entitled to say of the ground, on which I may have laid myself down, that therefore it is mine; but only when I can rightly assert that it still remains in my possession, although I may have left the spot. For any one who, in the former appearances of empirical possession, might wrench the apple out of my hand, or drag me away from my resting-place, would, indeed, injure me in respect of the inner ‘Mine’ of Freedom, but not in respect of the external ‘Mine,’ unless I could assert that I was in the possession of the Object, even when not actually holding it physically. And if I could not do this, neither could I call the apple or the spot mine.
- B. I cannot call the performance of something by the action of the Will of another ‘Mine,’ if I can only say ‘it has come into my possession at the same time with a promise’ ( pactum re initum ); but only if I am able to assert ‘I am in possession of the Will of the other, so as to determine him to the performance of a particular act, although the time for the performance of it has not yet come.’ In the latter case, the promise belongs to the nature of things actually held as possessed, and as an ‘active obligation’ I can reckon it mine; and this holds good not only if I have the thing promised —as in the first case—already in my possession, but even although I do not yet possess it in fact. Hence, I must be able to regard myself in thought as independent of that empirical form of possession that is limited by the condition of time, and as being nevertheless in possession of the object.
- C. I cannot call a Wife, a Child, a Domestic, or, generally, any other Person ‘mine’ merely because I command them at present as belonging to my household, or because I have them under control, and in my power and possession. But I can call them mine, if, although they may have withdrawn themselves from my control and I do not therefore possess them empirically, I can still say ‘I possess them by my mere Will, provided they exist anywhere in space or time; and, consequently, my possession of them is purely juridical. ’ They belong, in fact, to my possessions, only when and so far as I can assert this as a matter of Right.
5.: Definition of the conception of the external Mine and Thine.
Definitions are nominal or real. A nominal Definition is sufficient merely to distinguish the object defined from all other objects, and it springs out of a complete and definite exposition of its conception. A real Definition further suffices for a Deduction of the conception defined, so as to furnish a knowledge of the reality of the object.—The nominal Definition of the external ‘Mine’ would thus be: ‘The external Mine is anything outside of myself, such that any hindrance of my use of it at will, would be doing me an injury or wrong as an infringement of that Freedom of mine which may coexist with the freedom of all others according to a universal Law.’ The real Definition of this conception may be put thus: ‘The external Mine is anything outside of myself, such that any prevention of my use of it would be a wrong, although I may not be in possession of it so as to be actually holding it as an object.’—I must be in some kind of possession of an external object, if the object is to be regarded as mine; for, otherwise, any one interfering with this object would not, in doing so, affect me; nor, consequently, would he thereby do me any wrong. Hence, according to § 4, a rational Possession ( possessio noumenon ) must be assumed as possible, if there is to be rightly an external ‘Mine and Thine.’ Empirical Possession is thus only phenomenal possession or holding (detention) of the object in the sphere of sensible appearance ( possessio phenomenon ), although the object which I possess is not regarded in this practical relation as itself a Phenomenon,—according to the exposition of the Transcendental Analytic in the Critique of Pure Reason —but as a Thing in itself. For in the Critique of Pure Reason the interest of Reason turns upon the theoretical knowledge of the Nature of Things, and how far Reason can go in such knowledge. But here Reason has to deal with the practical determination of the action of the Will according to Laws of Freedom, whether the object is perceivable through the senses or merely thinkable by the pure Understanding. And Right, as under consideration, is a pure practical conception of the Reason in relation to the exercise of the Will under Laws of Freedom.
And, hence, it is not quite correct to speak of ‘possessing’ a Right to this or that object, but it should rather be said that an object is possessed in a purely juridical way; for a Right is itself the rational possession of an Object, and to ‘possess a possession,’ would be an expression without meaning.
6.: Deduction of the conception of a purely juridical Possession of an External Object.
(Possessio noumenon.)
The question, ‘How is an external Mine and Thine possible?’ resolves itself into this other question, ‘How is a merely juridical or rational Possession possible?’ And this second question resolves itself again into a third, ‘How is a synthetic proposition in Right possible à priori? ’
All Propositions of Right—as juridical propositions—are Propositions à priori, for they are practical Laws of Reason ( Dictamina rationis ). But the juridical Proposition à priori respecting empirical Possession is analytical; for it says nothing more than what follows by the principle of Contradiction, from the conception of such possession; namely, that if I am the holder of a thing in the way of being physically connected with it, any one interfering with it without my consent—as, for instance, in wrenching an apple out of my hand—affects and detracts from my freedom as that which is internally Mine; and consequently the maxim of his action is in direct contradiction to the Axiom of Right. The proposition expressing the principle of an empirical rightful Possession, does not therefore go beyond the Right of a Person in reference to himself.
On the other hand, the Proposition expressing the possibility of the Possession of a thing external to me, after abstraction of all the conditions of empirical possession in space and time — consequently presenting the assumption of the possibility of a Possessio Noumenon —goes beyond these limiting conditions; and because this Proposition asserts a possession even without physical holding, as necessary to the conception of the external Mine and Thine, it is synthetical. And thus it becomes a problem for Reason to show how such a Proposition, extending its range beyond the conception of empirical possession, is possible à priori.
In this manner, for instance, the act of taking possession of a particular portion of the soil, is a mode exercising the private free-will without being an act of usurpation. The possessor founds upon the innate Right of common possession of the surface of the earth, and upon the universal Will corresponding à priori to it, which allows a private Possession of the soil; because what are mere things would be otherwise made in themselves and by a Law, into unappropriable objects. Thus a first appropriator acquires originally by primary possession a particular portion of the ground; and by Right ( jure ) he resists every other person who would hinder him in the private use of it, although while the ‘state of Nature’ continues, this cannot be done by juridical means ( de jure ), because a public Law does not yet exist.
And although a piece of ground should be regarded as free, or declared to be such, so as to be for the public use of all without distinction, yet it cannot be said that it is thus free by nature and originally so, prior to any juridical act. For there would be a real relation already incorporated in such a piece of ground by the very fact that the possession of it was denied to any particular individual; and as this public freedom of the ground would be a prohibition of it to every particular individual, this presupposes a common possession of it which cannot take effect without a Contract. A piece of ground, however, which can only become publicly free by contract, must actually be in the possession of all those associated together, who mutually interdict or suspend each other, from any particular or private use of it.
- This original Community of the soil and of the things upon it ( communio fundi originaria ), is an idea which has objective and practical Juridical reality, and is entirely different from the idea of a primitive community of things which is a fiction. For the latter would have had to be founded as a form of Society, and must have taken its rise from a Contract by which all renounced the Right of Private Possession, so that by uniting the property owned by each into a whole, it was thus transformed into a common possession. But had such an event taken place, History must have presented some evidence of it. To regard such a procedure as the original mode of taking possession, and to hold that the particular possessions of every individual may and ought to be grounded upon it, is evidently a contradiction.
- Possession ( possessio ) is to be distinguished from habitation as mere residence ( sedes ); and the act of taking possession of the soil in the intention of acquiring it once for all, is also to be distinguished from settlement or domicile ( incolatus ), which is a continuous private Possession of a place that is dependent on the presence of the individual upon it. We have not here to deal with the question of domiciliary settlement, as that is a secondary juridical act which may follow upon possession, or may not occur at all; for as such it could not involve an original possession, but only a secondary possession derived from the consent of others.
- Simple physical Possession, or holding of the soil, involves already certain relations of Right to the thing, although it is certainly not sufficient to enable me to regard it as Mine. Relative to others, so far as they know, it appears as a first possession in harmony with the law of external freedom; and, at the same time, it is embraced in the universal original possession which contains à priori the fundamental principle of the possibility of a private possession. Hence to disturb the first occupier or holder of a portion of the soil in his use of it, is a lesion or wrong done to him. The first taking of Possession has therefore a Title of Right ( titulus possessionis ) in its favour, which is simply the principle of the original common possession; and the saying that ‘It is well for those who are in possession’ ( beati possidentes ), when one is not bound to authenticate his possession, is a principle of Natural Right that establishes the juridical act of taking possession, as a ground of acquisition upon which every first possessor may found.
- It has been shown in the Critique of Pure Reason that in theoretical Principles à priori, an intuitional Perception à priori must be supplied in connection with any given conception; and, consequently, were it a question of a purely theoretical Principle, something would have to be added to the conception of the possession of an object to make it real. But in respect of the practical Principle under consideration, the procedure is just the converse of the theoretical process; so that all the conditions of perception which form the foundation of empirical possession must be abstracted or taken away in order to extend the range of the juridical Conception beyond the empirical sphere, and in order to be able to apply the Postulate, that every external object of the free activity of my Will, so far as I have it in my power, although not in the possession of it, may be reckoned as juridically Mine.
- The possibility of such a possession, with consequent Deduction of the conception of a non-empirical possession, is founded upon the juridical Postulate of the Practical Reason, that ‘It is a juridical Duty so to act towards others that what is external and useable may come into the possession or become the property of some one.’ And this Postulate is conjoined with the exposition of the Conception that what is externally one’s own, is founded upon a possession, that is not physical. The possibility of such a possession, thus conceived, cannot, however, be proved or comprehended in itself, because it is a rational conception for which no empirical perception can be furnished; but it follows as an immediate consequence from the Postulate that has been enunciated. For, if it is necessary to act according to that juridical Principle, the rational or intelligible condition of a purely juridical possession must also be possible. It need astonish no one, then, that the theoretical aspect of the Principles of the external Mine and Thine, is lost from view in the rational sphere of pure Intelligence, and presents no extension of Knowledge; for the conception of Freedom upon which they rest does not admit of any theoretical Deduction of its possibility, and it can only be inferred from the practical Law of Reason, called the Categorical Imperative, viewed as a fact.
7.: Application of the Principle of the Possibility of an external Mine and Thine to Objects of Experience.
The conception of a purely juridical Possession, is not an empirical conception dependent on conditions of Space and Time, and yet it has practical reality. As such it must be applicable to objects of experience, the knowledge of which is independent of the conditions of Space and Time. The rational process by which the conception of Right is brought into relation to such objects so as to constitute a possible external Mine and Thine, is as follows. The Conception of Right, being contained merely in Reason, cannot be immediately applied to objects of experience, so as to give the conception of an empirical Possession, but must be applied directly to the mediating conception in the Understanding, of Possession in general; so that, instead of physical holding ( Detentio ) as an empirical representation of possession, the formal conception or thought of ‘ Having, ’ abstracted from all conditions of Space and Time, is conceived by the mind, and only as implying that an object is in my power and at my disposal ( in potestate mea positum esse ). In this relation, the term ‘external’ does not signify existence in another place than where I am, nor my resolution and acceptance at another time than the moment in which I have the offer of a thing: it signifies only an object different from or other than myself. Now the practical Reason by its Law of Right wills, that I shall think the Mine and Thine in application to objects, not according to sensible conditions, but apart from these and from the Possession they indicate; because they refer to determinations of the activity of the Will that are in accordance with the Laws of Freedom. For it is only a conception of the Understanding that can be brought under the rational Conception of Right. I may therefore say that I possess a field, although it is in quite a different place from that on which I actually find myself. For the question here is not concerning an intellectual relation to the object, but I have the thing practically in my power and at my disposal, which is a conception of Possession realized by the Understanding and independent of relations of space; and it is mine, because my Will in determining itself to any particular use of it, is not in conflict with the Law of external Freedom. Now it is just in abstraction from physical possession of the object of my free-will in the sphere of sense, that the Practical Reason wills that a rational possession of it shall be thought, according to intellectual conceptions which are not empirical, but contain à priori the conditions of rational possession. Hence it is in this fact, that we found the ground of the validity of such a rational conception of possession ( possessio noumenon ) as the principle of a universally valid Legislation. For such a Legislation is implied and contained in the expression, ‘This external object is mine, ’ because an Obligation is thereby imposed upon all others in respect of it, who would otherwise not have been obliged to abstain from the use of this object.
The mode, then, of having something External to myself as Mine, consists in a specially juridical connection of the Will of the Subject with that object, independently of the empirical relations to it in Space and in Time, and in accordance with the conception of a rational possession.—A particular spot on the earth is not externally Mine because I occupy it with my body; for the question here discussed refers only to my external Freedom, and consequently it affects only the possession of myself, which is not a thing external to me, and therefore only involves an internal Right. But if I continue to be in possession of the spot, although I have taken myself away from it and gone to another place, only under that condition is my external Right concerned in connection with it. And to make the continuous possession of this spot by my person a condition of having it as mine, must either be to assert that it is not possible at all to have anything External as one’s own, which is contrary to the Postulate in § 2, or to require, in order that this external Possession may be possible, that I shall be in two places at the same time. But this amounts to saying that I must be in a place and also not in it, which is contradictory and absurd.
This position may be applied to the case in which I have accepted a promise; for my Having and Possession in respect of what has been promised, become established on the ground of external Right. This Right is not to be annulled by the fact that the promiser having said at one time, ‘This thing shall be yours,’ again at a subsequent time says, ‘My will now is that the thing shall not be yours.’ In such relations of rational Right the conditions hold just the same as if the promiser had, without any interval of time between them, made the two declarations of his Will, ‘This shall be yours,’ and also ‘This shall not be yours;’ which manifestly contradicts itself.
The same thing holds, in like manner, of the Conception of the juridical possession of a Person as belonging to the ‘Having’ of a subject, whether it be a Wife, a Child, or a Servant. The relations of Right involved in a household, and the reciprocal possession of all its members, are not annulled by the capability of separating from each other in space; because it is by juridical relations that they are connected, and the external ‘Mine’ and ‘Thine,’ as in the former cases, rests entirely upon the assumption of the possibility of a purely rational possession, without the accompaniment of physical detention or holding of the object.
- Reason is forced to a Critique of its juridically Practical Function in special reference to the conception of the external Mine and Thine, by the Antinomy of the propositions enunciated regarding the possibility of such a form of Possession. For these give rise to an inevitable Dialectic, in which a Thesis and an Antithesis set up equal claims to the validity of two conflicting Conditions. Reason is thus compelled, in its practical function in relation to Right,—as it was in its theoretical function,—to make a distinction between Possession as a phenomenal appearance presented to the senses, and that Possession which is rational and thinkable only by the Understanding.
- Thesis. —The Thesis, in this case, is, ‘ It is possible to have something external as mine, although I am not in possession of it.’
- Antithesis. —The Antithesis is, ‘ It is not possible to have anything external as mine, if I am not in possession of it.’
- Solution. — The Solution is, ‘Both Propositions are true;’ the former when I mean empirical Possession ( possessio phænomenon ), the latter when I understand by the same term, a purely rational Possession ( possessio noumenon ).
- But the possibility of a rational possession, and consequently of an external Mine and Thine, cannot be comprehended by direct insight, but must be deduced from the Practical Reason. And in this relation it is specially noteworthy that the Practical Reason without intuitional perceptions, and even without requiring such an element à priori, can extend its range by the mere elimination of empirical conditions, as justified by the law of Freedom, and can thus establish synthetical Propositions à priori. The proof of this in the practical connection, as will be shown afterwards, can be adduced in an analytical manner.
8.: To have anything External as one’s own is only possible in a Juridical or Civil State of Society under the regulation of a public legislative Power.
If, by word or deed, I declare my Will that some external thing shall be mine, I make a declaration that every other person is obliged to abstain from the use of this object of my exercise of Will; and this imposes an Obligation which no one would be under, without such a juridical act on my part. But the assumption of this Act, at the same time involves the admission that I am obliged reciprocally to observe a similar abstention towards every other in respect of what is externally theirs; for the Obligation in question arises from a universal Rule regulating the external juridical relations. Hence I am not obliged to let alone what another person declares to be externally his, unless every other person likewise secures me by a guarantee that he will act in relation to what is mine, upon the same Principle. This guarantee of reciprocal and mutual abstention from what belongs to others, does not require a special juridical act for its establishment, but is already involved in the Conception of an external Obligation of Right, on account of the universality and consequently the reciprocity of the obligatoriness arising from a universal Rule.—Now a single Will, in relation to an external and consequently contingent Possession, cannot serve as a compulsory Law for all, because that would be to do violence to the Freedom which is in accordance with universal Laws. Therefore it is only a Will that binds every one, and as such a common, collective, and authoritative Will, that can furnish a guarantee of security to all. But the state of men under a universal, external, and public Legislation, conjoined with authority and power, is called the Civil state. There can therefore be an external Mine and Thine only in the Civil state of Society.
Consequence. —It follows, as a Corollary, that if it is juridically possible to have an external object as one’s own, the individual Subject of possession must be allowed to compel or constrain every person, with whom a dispute as to the Mine or Thine of such a possession may arise, to enter along with himself into the relations of a Civil Constitution.
9.: There may, however, be an external Mine and Thine found as a fact in the state of Nature, but it is only provisory.
Natural Right in the state of a Civil Constitution, means the forms of Right which may be deduced from Principles à priori as the conditions of such a Constitution. It is therefore not to be infringed by the statutory laws of such a Constitution; and accordingly the juridical Principle remains in force, that, ‘Whoever proceeds upon a Maxim by which it becomes impossible for me to have an object of the exercise of my Will as Mine, does me a lesion or injury.’ For a Civil Constitution is only the juridical condition under which every one has what is his own merely secured to him, as distinguised from its being specially assigned and determined to him.—All Guarantee, therefore, assumes that every one to whom a thing is secured, is already in possesion of it as his own. Hence, prior to the Civil Constitution—or apart from it — an external Mine and Thine must be assumed as possible, and along with it a Right to compel every one with whom we could come into any kind of intercourse, to enter with us into a constitution in which what is Mine or Thine can be secured.—There may thus be a Possession in expectation or in preparation for such a state of security, as can only be established on the Law of the Common Will; and as it is therefore in accordance with the possibility of such a state, it constitutes a provisory or temporary juridical Possession; whereas that Possession which is found in reality in the Civil state of Society will be a peremptory or guaranteed Possession.—Prior to entering into this state, for which he is naturally prepared, the individual rightfully resists those who will not adapt themselves to it, and who would disturb him in his provisory possession; because if the Will of all except himself were imposing upon him an obligation to withdraw from a certain possession, it would still be only a one-sided or unilateral Will, and consequently it would have just as little legal Title—which can be properly based only on the universalized Will—to contest a claim of Right; as he would have to assert it. Yet he has the advantage on his side, of being in accord with the conditions requisite to the introduction and institution of a civil form of Society. In a word, the mode in which anything external may be held as one’s own in the state of Nature, is just physical possession with a presumption of Right thus far in its favour, that by union of the Wills of all in a public Legislation, it will be made juridical; and in this expectation it holds comparatively, as a kind of potential juridical Possession.
- This Prerogative of Right, as arising from the fact of empirical possession, is in accordance with the Formula, ‘It is well for those who are in possession’ ( Beati possidentes ). It does not consist in the fact that because the Possessor has the presumption of being a rightful man, it is unnecessary for him to bring forward proof that he possesses a certain thing rightfully, for this position applies only to a case of disputed Right. But it is because it accords with the Postulate of the Practical Reason, that every one is invested with the faculty of having as his own any external object upon which he has exerted his Will; and, consequently, all actual possession is a state whose rightfulness is established upon that Postulate by an anterior act of Will. And such an act, if there be no prior possession of the same object by another opposed to it, does, therefore, provisionally justify and entitle me, according to the Law of external Freedom, to restrain any one who refuses to enter with me into a state of public legal Freedom, from all pretension to the use of such an object. For such a procedure is requisite, in conformity with the Postulate of Reason, in order to subject to my proper use a thing which would otherwise be practically annihilated, as regards all proper use of it.
PRIVATE RIGHT
CHAPTER SECOND. The Mode of acquiring anything External.
10.: The general Principle of External Acquisition.
I acquire a thing when I act ( efficio ) so that it becomes mine. —An external thing is originally mine, when it is mine even without the intervention of a juridical Act. An Acquisition is original and primary, when it is not derived from what another had already made his own.
There is nothing External that is as such originally mine; but anything external may be originally acquired when it is an object that no other person has yet made his. — A state in which the Mine and Thine are in common, cannot be conceived as having been at any time original. Such a state of things would have to be acquired by an external juridical Act, although there may be an original and common possession of an external object. Even if we think hypothetically of a state in which the Mine and Thine would be originally in common as a ‘ Communio mei et tui originaria, ’ it would still have to be distinguished from a primeval communion ( Communio primæva ) with things in common, sometimes supposed to be founded in the first period of the relations of Right among men, and which could not be regarded as based upon Principles like the former, but only upon History. Even under that condition the historic Communio, as a supposed primeval Community would always have to be viewed as acquired and derivative ( Communio derivativa ).
The Principle of external Acquisition, then, may be expressed thus: ‘Whatever I bring under my power according to the Law of external Freedom, of which as an object of my free activity of Will I have the capability of making use according to the Postulate of the Practical Reason, and which I will to become mine in conformity with the Idea of a possible united common Will, is mine.’
The practical Elements ( Momenta attendenda ) constitutive of the process of original Acquisition are:—
1. Prehension or Seizure of an object which belongs to no one; for if it belonged already to some one the act would conflict with the Freedom of others that is according to universal Laws. This is the taking possession of an object of my free activity of Will in Space and Time; the Possession, therefore, into which I thus put myself is sensible or physical possession ( possessio phenomenon );
2. Declaration of the possession of this object by formal designation and the act of my free-will in interdicting every other person from using it as his;
3. Appropriation, as the act, in Idea, of an externally legislative common Will, by which all and each are obliged to respect and act in conformity with my act of Will.
The validity of the last element in the process of Acquisition, as that on which the conclusion that ‘the external object is mine’ rests, is what makes the possession valid as a purely rational and juridical possession ( possessio noumenon ). It is founded upon the fact that as all these Acts are juridical, they consequently proceed from the Practical Reason, and therefore in the question as to what is Right, abstraction may be made of the empirical conditions involved, and the conclusion ‘the external object is mine’ thus becomes a correct inference from the external fact of sensible possession to the internal Right of rational Possession.
The original primary Acquisition of an external object of the action of the Will, is called Occupancy. It can only take place in reference to Substances or Corporeal Things. Now when this Occupation of an external object does take place, the Act presupposes as a condition of such empirical possession, its Priority in time before the act of any other who may also be willing to enter upon occupation of it. Hence the legal maxim, ‘ qui prior tempore, potior jure. ’ Such Occupation as original or primary is, further, the effect only of a single or unilateral Will; for were a bilateral or twofold Will requisite for it, it would be derived from a Contract of two or more persons with each other, and consequently it would be based upon what another or others had already made their own.—It is not easy to see how such an act of free-will as this would be, could really form a foundation for every one having his own.—However, the first Acquisition of a thing is on that account not quite exactly the same as the original Acquisition of it. For the Acquisition of a public juridical state by union of the Wills of all in a universal Legislation, would be such an original Acquisition, seeing that no other of the kind could precede it, and yet it would be derived from the particular Wills of all the individuals, and consequently become all-sided or omnilateral; for a properly primary Acquisition can only proceed from an individual or unilateral Will.
Division of the Subject of the Acquisition of the external Mine and Thine.
I. In respect of the Matter or Object of Acquisition, I acquire either a Corporeal Thing (Substance), or the Performance of something by another (Causality), or this other as a Person in respect of his state, so far as I have a Right to dispose of the same (in a relation of Reciprocity with him).
II. In respect of the Form or Mode of Acquisition, it is either a Real Right ( jus reale ), or a Personal Right ( jus personale ), or a Real-Personal Right ( jus realiter personale ), to the possession, although not to the use, of another Person as if he were a Thing.
III. In respect of the Ground of Right or the Title ( titulus ) of Acquisition—which, properly, is not a particular member of the Division of Rights, but rather a constituent element of the mode of exercising them—any thing External is acquired by a certain free Exercise of Will that is either unilateral, as the act of a single Will ( facto ), or bilateral, as the act of two Wills ( pacto ), or omnilateral, as the act of all the Wills of a Community together ( lege ).
FIRST SECTION. Principles of Real Right.
11.: What is a Real Right?
The usual Definition of Real Right, or ‘Right in a Thing’ ( jus reale, jus in re ), is that ‘it is a Right as against every possessor of it. ’ This is a correct Nominal Definition. But what is it that entitles me to claim an external object from any one who may appear as its possessor, and to compel him, per vindicationem, to put me again, in place of himself, into possession of it? Is this external juridical relation of my Will a kind of immediate relation to an external thing?—If so, whoever might think of his Right as referring not immediately to Persons but to Things, would have to represent it, although only in an obscure way, somewhat thus. A Right on one side has always a Duty corresponding to it on the other, so that an external thing, although away from the hands of its first Possessor, continues to be still connected with him by a continuing obligation; and thus it refuses to fall under the claim of any other possessor, because it is already bound to another. In this way my Right, viewed as a kind of good Genius accompanying a thing and preserving it from all external attack, would refer an alien possessor always to me! It is, however, absurd to think of an obligation of Persons towards Things, and conversely; although it may be allowed in any particular case, to represent the juridical relation by a sensible image of this kind, and to express it in this way.
The Real Definition would run thus: ‘ Right in a Thing is a Right to the Private Use of a Thing, of which I am in possession—original or derivative—in common with all others.’ For this is the one condition under which it is alone possible that I can exclude every other possessor from the private use of the Thing ( jus contra quemlibet hujus rei possessorem ). For, except by presupposing such a common collective possession, it cannot be conceived how, when I am not in actual possession of a thing, I could be injured or wronged by others who are in possession of it and use it.—By an individual act of my own Will I cannot oblige any other person to abstain from the use of a thing in respect of which he would otherwise be under no obligation; and, accordingly, such an Obligation can only arise from the collective Will of all united in a relation of common possession. Otherwise, I would have to think of a Right in a Thing, as if the Thing had an Obligation towards me, and as if the Right as against every Possessor of it had to be derived from this Obligation in the Thing, which is an absurd way of representing the subject.
Further, by the term ‘Real Right’ ( jus reale ) is meant not only the ‘Right in a Thing’ ( jus in re ), but also the constitutive principle of all the Laws which relate to the real Mine and Thine.—It is, however, evident that a man entirely alone upon the earth could properly neither have nor acquire any external thing as his own; because between him as a Person and all external Things as material objects, there could be no relations of Obligation. There is therefore, literally, no direct Right in a Thing, but only that Right is to be properly called ‘real’ which belongs to any one as constituted against a Person, who is in common possession of things with all others in the Civil state of Society.
12.: The First Acquisition of a Thing can only be that of the Soil.
By the Soil is understood all habitable Land. In relation to everything that is moveable upon it, it is to be regarded as a Substance, and the mode of the existence of the Moveables is viewed as an Inherence in it. And just as, in the theoretical acceptation, Accidents cannot exist apart from their Substances, so, in the practical relation, Moveables upon the Soil cannot be regarded as belonging to any one unless he is supposed to have been previously in juridical possession of the Soil so that it is thus considered to be his.
For, let it be supposed that the Soil belongs to no one. Then I would be entitled to remove every moveable thing found upon it from its place, even to total loss of it, in order to occupy that place, without infringing thereby on the freedom of any other; there being, by the hypothesis, no possessor of it at all. But everything that can be destroyed, such as a Tree, a House, and such like—as regards its matter at least—is moveable; and if we call a thing which cannot be moved without destruction of its form an immoveable, the Mine and Thine in it is not understood as applying to its substance, but to that which is adherent to it, and which does not essentially constitute the thing itself.
13.: Every part of the Soil may be originarily acquired; and the Principle of the possibility of such Acquisition is the original Community of the Soil generally.
The first Clause of this Proposition is founded upon the Postulate of the Practical Reason (§ 2); the second is established by the following Proof.
All Men are originally and before any juridical act of Will in rightful possession of the Soil; that is, they have a Right to be wherever Nature or Chance has placed them without their will. Possession ( possessio ), which is to be distinguished from residential settlement ( sedes ) as a voluntary, acquired, and permanent possession, becomes common possession, on account of the connection with each other of all the places on the surface of the Earth as a globe. For, had the surface of the earth been an infinite plain, men could have been so dispersed upon it that they might not have come into any necessary communion with each other, and a state of social Community would not have been a necessary consequence of their existence upon the Earth.—Now that Possession proper to all men upon the earth which is prior to all their particular juridical acts, constitutes an original possession in common ( Communio possessionis originaria ). The conception of such an original, common Possession of things is not derived from experience, nor is it dependent on conditions of time, as is the case with the imaginary and indemonstrable fiction of a primæval Community of possession in actual history. Hence it is a practical conception of Reason, involving in itself the only Principle according to which Men may use the place they happen to occupy on the surface of the Earth, in accordance with Laws of Right.
14.: The juridical Act of this original Acquisition is Occupancy.
The Act of taking possession ( apprehensio ), as being at its beginning the physical appropriation of a corporeal thing in space ( possessionis physicæ ), can accord with the Law of the external Freedom of all, under no other condition than that of its Priority in respect of Time. In this relation it must have the characteristic of a first act in the way of taking possession, as a free exercise of Will. The activity of Will, however, as determining that the thing—in this case a definite separate place on the surface of the Earth—shall be mine, being an act of Appropriation, cannot be otherwise in the case of original Acquisition than individual or unilateral ( voluntas unilateralis s. propria ). Now, Occupancy is the Acquisition of an external object by an individual act of Will. The original Acquisition of such an object as a limited portion of the Soil, can therefore only be accomplished by an act of Occupation.
The possibility of this mode of Acquisition cannot be intuitively apprehended by pure Reason in any way, nor established by its Principles, but is an immediate consequence from the Postulate of the Practical Reason. The Will as practical Reason, however, cannot justify external Acquisition otherwise than only in so far as it is itself included in an absolutely authoritative Will, with which it is united by implication; or, in other words, only in so far as it is contained within a union of the Wills of all who come into practical relation with each other. For an individual, unilateral Will — and the same applies to a Dual or other particular Will—cannot impose on all an Obligation which is contingent in itself. This requires an omnilateral or universal Will, which is not contingent, but à priori, and which is therefore necessarily united and legislative. Only in accordance with such a Principle can there be agreement of the active free-will of each individual with the freedom of all, and consequently Rights in general, or even the possibility of an external Mine and Thine.
15.: It is only within a Civil Constitution that anything can be acquired peremptorily, whereas in the State of Nature Acquisition can only be provisory.
A Civil Constitution is objectively necessary as a Duty, although subjectively its reality is contingent. Hence, there is connected with it a real natural Law of Right, to which all external Acquisition is subjected.
The empirical Title of Acquisition has been shown to be constituted by the taking physical possession ( Apprehensio physica ) as founded upon an original community of Right in all to the Soil. And because a possession in the phenomenal sphere of sense, can only be subordinated to that Possession which is in accordance with rational conceptions of right, there must correspond to this physical act of possession a rational mode of taking possession by elimination of all the empirical conditions in Space and Time. This rational form of possession establishes the proposition, that ‘whatever I bring under my power in accordance with Laws of external Freedom, and will that it shall be mine, becomes mine.’